Brunswick Meat Packers

National Labor Relations Board - Board Decisions

May 23, 1967

164 N.L.R.B. 887 (N.L.R.B. 1967)

BRUNSWICK MEAT PACKERS 887
Ben Ginsburg , Inc. d/b/a Brunswick Meat
Packers, Brunswick Tallow Co. and
Local 294 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 3-CA-2896.
May 23, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
signing the card only because he was already a member This
evidence clearly establishes that Gilbert, by his paid-up
membership therein, had designated the Union to represent him
and that he intended the unsigned authorization card as a
reaffirmation of that designation . Accordingly, his authorization is
added to those counted in determining the Union 's majority
status See Harris - Woodson Co , Inc., 77 NLRB 819, 834, In. 15.
Also see Von Der Ahe Van Lines, Inc , 155 NLRB 126, 144, 1
Taitel and Son, 119 NLRB 910, In. 3 In view of the foregoing, we
find it unnecessary to consider the merit of Respondent ' s motion
to reopen the record as the allegation therein that employee
Woodward's authorization card is invalid would not affect the
Union 's majority status herein. The Respondent 's motion is
therefore denied
On February 16, 1967, Trial Examiner James T.
Barker issued his Decision in the above-entitled
proceeding, 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 affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Decision and a supporting brief. Respondent
filed a motion to reopen record, with a supporting
brief, and an answer to General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the motion to reopen
record, the exceptions and briefs, and the entire
record in the case, and hereby adopts the findings,'
conclusions , and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Ben Ginsburg, Inc.
d/b/a Brunswick Meat Packers, Brunswick Tallow
Co., its officers, agents, successors , and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
i In his exceptions the General Counsel asserts , inter alta, that
in determining the Union ' s majority status the Trial Examiner
should have included as a valid designation the completed and
delivered but unsigned union authorization and membership
application card of employee Gilbert We find merit in this
exception Record evidence establishes that when he was
solicited by a fellow employee in February 1966, Gilbert advised
that he was already a paid -up member of the Union . Although he
was told that under these circumstances it would be unnecessary
to submit a card, he nevertheless filled in and returned the card
leaving blank only the signature on the line provided therefor It is
the unchallenged testimony of Gilbert that he refrained from
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER , Trial Examiner : Upon a charge and
an amended charge filed, respectively, on March 31 and
April 29, 1966,' by Local 294, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, hereinafter called the Union, the Regional
Director of the National Labor Relations Board for
Region 3, on May 6, issued a complaint and notice of
hearing designating Ben Ginsburg, Inc. d /b/a Brunswick
Meat Packers, Brunswick Tallow Co., as Respondent, and
alleging violations of Section 8(a)(1), (3 ), and (5) of the
National Labor Relations Act, as amended, hereinafter
called the Act.
Pursuant to notice a hearing was held at Albany, New
York, on June 21, 22, 23, and 24. All parties were
represented at the hearing and were afforded full
opportunity to be heard, to introduce relevant evidence, to
present oral argument, and to file briefs with me. The
parties waived oral argument and on August 8 filed briefs
with me.
Upon consideration of the entire record2 and the briefs
of the parties, and upon my observations of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein , Respondent has been a
New York corporation maintaining its principal office and
place of business at Brunswick, New York, where it has
been at all times material engaged in the sale and
distribution of meats, waste fats, bone trimmings, and
related products.
During the 12-month period immediately preceding the
issuance of the complaint herein, in the course and
conduct of its business operations Respondent purchased,
transferred, and delivered to its Brunswick, New York,
place of business, meats and other goods and materials
valued in excess of $50,000, of which goods and materials
valued in excess of $50,000 were transported to said place
of business directly from States of the United States other
than the State of New York.
i Unless otherwise specified , all dates relate to 1966
2 Pursuant to the motion of the counsel for the General Counsel
to correct the transcript of this proceeding , and upon
consideration of the reply of the Respondent thereto, and my own
notes taken at the hearing , the transcript is corrected as set forth
in Appendix A hereto [not published]
164 NLRB No. 111
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the same period of time, in the course and
conduct of its business operations , Respondent processed,
sold, and distributed at said place of business , meats,
waste fats , and bone trimmings valued in excess of
$50,000, of which products so valued were shipped from
said place of business directly to States of the United
States other than the State of New York.
Upon these admitted facts I find that at all times
material herein Respondent has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Deveaux and Eugene Loya were discharged for cause; that
the March 22 strike was an economic strike; and that the
four employees who struck were economic strikers and
thus subject to replacement at the discretion of the
Employer. The Respondent further asserts, with respect
to the alleged unlawful refusal to bargain collectively with
the Union, that the unit in which the Union sought
recognition was inappropriate for the purposes of
collective bargaining ; at no time did the Union represent a
majority of the employees in the appropriate collective-
bargaining unit ; and at all times the Respondent
entertained a good -faith doubt as to the majority status of
the Union.
Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is
admitted by Respondent to be a labor organization within
the meaning of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint, as amended , alleges that at all times
since March 2, the Union has been the majority
representative of truckdrivers and mechanics in the
employ of Respondent and that commencing on or about
March 8, and at all material times thereafter, the
Respondent has refused to recognize and bargain
collectively with the Union as the exclusive collective-
bargaining representative of the employees in an
appropriate bargaining unit.
The complaint further alleges that , in violation of
Section 8(a)(3) of the Act, Respondent , on March 2,
discharged Herman Deveaux and Eugene Loya.3
Additionally, the complaint alleges that a strike
commenced on March 22 and was caused and prolonged
by Respondent' s unfair labor practices . The complaint, as
amended at the hearing , also alleges that Respondent
discriminated against four strikers who, on April 28,
sought unconditionally to return to work by denying them
reinstatement.4
With respect to the alleged violation of Section 8(a)(1) of
the Act, the allegations of the complaint assert that
commencing on or about February 14, the Respondent,
through Ben Ginsburg , Mrs. Ben Ginsburg , and Alvin
Ginsburg, engaged in various acts of interrogation,
promises of benefits , and threats . Additionally alleged as
violative of the Act is the asserted conduct of Ben
Ginsburg which the General Counsel contends created
among Respondent 's employees the impression that
Respondent was engaging in surveillance of its employees'
union activities . The complaint further alleges that,
through Ben Ginsburg, Respondent , by threats of
reprisals, solicited employees engaged in a strike to return
to work and to abandon the Union.
The Respondent denies the commission of any unfair
labor practices , and affirmatively contends that Herman
a The allegation of the complaint alleging the unlawful
discharge of Melvin Smith on March 11 was deleted on motion of
the General Counsel made at the hearing
B. Background Facts
1. The Respondent 's operations
At its Brunswick , New York , place of business,
Respondent conducts its meatpacking and tallow
operations , which are devoted to the wholesale sale and
distribution of meats, fats, bones, and trimmings.
On Respondent 's premises are located a dwelling house,
a retail and wholesale general store, and a garage which
serves as a warehouse , a storage facility for frozen meats,
a repair shop for vehicles used in transporting meats and
allied products , and a storage area for the general store.
In the general store is sold hardware , electrical supplies,
plumbing supplies , groceries , and frozen foods.
Ben Ginsburg is president of Respondent; Ann
Ginsburg is vice president and a stockholder; and Alvin
Ginsburg is secretary -treasurer . Each is actively engaged
in a phase of Respondent 's operation . Ann Ginsburg works
in the general store and draws a salary . Ben Ginsburg
maintains an office in the house which he and his wife
occupy, and an office is maintained over the store.
By use of company owned vehicles -which are stored
in the open yard area of Respondent 's Brunswick,
New York , premises , and which are operated by truck-
driver employees of Respondent who allegedly comprise
the appropriate collective -bargaining unit herein-
Respondent collects waste meat materials , fats, bones,
and suet from the upstate New York area in the environs
of Albany, and from areas of Massachusetts and Vermont;
and transports the materials to collection stations in
New Jersey.
In addition , Respondent purchases to its specification
fresh meats from Canadian suppliers , which meat is
packaged by the supplier and then transported by
Respondent directly from the point of purchase in Canada
to the customers of Respondent in New York and New
Jersey.5
2. The employee complement
Exclusive of Ben , Alvin , and Ann Ginsburg, and of
Herman Deveaux and Eugene Loya whose employment
status is in issue , Respondent's employee complement for
" One of them , Aubrey Griffin , was reinstated on May 28
5 The foregoing is based upon the credited testimony of Alvin
Ginsburg and Ben Ginsburg
BRUNSWICK MEAT PACKERS
the payroll period ending March 10 and that ending
March 17, respectively, was comprised of 19 persons.6
During each of these payroll periods 12 employees were
employed exclusively as truckdrivers.7 Guy Hoag was
employed as a mechanic, and Earl Simmons was employed
as a combination truckdriver and mechanic.
Earl Simmons worked at various times for Respondent.
During pertinent times, he worked, as needed, at nights
servicing trucks, and was also employed as a truckdriver.
In addition, at times material he was also employed as a
truckdriver by a cement and concrete firm. However,
during the winter months he assumed a layoff status with
this latter employer and accepted employment with
Respondent. He commenced the relevant term of
employment with Respondent in December 1965. During
the payroll period ending March 12, he was employed for
12 hours, but did not work during the ensuing payroll
period. However, he worked 24 hours during the payroll
period ending March 24 and for a full week during the
payroll period ending March 31. He worked during the
payroll period ending April 7, and was last employed
during the week ending May 12.
During those weeks when Simmons worked full time he
was paid a salary, as were other truckdrivers and
mechanic personnel, but was paid an hourly wage for
hours worked on a part-time basis. Simmons had been
assured by Ben Ginsburg of continued employment on the
foregoing basis. During this last period of employment by
Respondent he also worked in the employ of a third firm
transporting beef and meat products. His hours of
employment at the concrete firm and at the meat transport
company exceeded, annually, those at Respondent."
During pertinent payroll periods John O'Brien, then a
high school student of 17, worked as a clerk on a regular,
part-time basis 4 hours in the evening at the store,
performing such miscellaneous tasks as were required of
him. In addition to his store duties, as needed, on the order
of once or twice a week, O'Brien assisted truckdrivers in
unloading their trucks. While on occasions, he drove a
truck on company premises, he had no off-premises
driving duties. Unlike the regular truckdrivers, he had no
special permit allowing him to operate trucks.
6 I predicate this finding upon documentary evidence of record
and the credited testimony of Alvin and Ben Ginsburg, considered
together with that of Aubrey Griffin and Alfred Loya
' They were Herman LaClair, Lloyd Shuhart, Harold
Woodward, Wilford Brior, Alfred Loya, Jack Paul, Aubrey
Griffin, James Nathan, Joseph Gilbert, Charles Major, Anthony
Taurone, and Larry Walsh
Anthony Taurone was hired on March 14, and remained in
Respondent's employ at the time of the hearing He was carried
on the March 17 payroll Similarly, Larry Walsh was carried on
the March 17 payroll Alvin Ginsburg testified that Walsh had
been a permanent employee but had been absent due to illness
He did not specify the period or length of Walsh's illness and
testified that he thought Walsh returned to work on March 21, the
day before the strike However, Aubrey Griffin and Alfred Loya,
longtime employees of Respondent, testified that they had not
observed Walsh working prior to the March 22 strike, and further
testified that Walsh had been hired by Respondent as a strike
replacement upon the commencement of the strike on March 22 I
credit them to the extent of finding that Walsh had no status as an
employee during relevant periods prior to the payroll period
commencing March 11 and ending March 17. However, contrary
to their testimony and the speculation of Alvin Ginsburg, I rely
upon the payroll records reflecting that Walsh was employed on
March 17, the critical date at issue herein
889
Peter Babulas, a young man employed full time by
another employer, was employed by Respondent at
pertinent times as a store clerk. He worked Saturdays and
during evenings 3 nights each week. In addition to his
store duties, at the direction of Alvin Ginsburg, and
depending upon his availability, once or twice a week
Babulas would assist truckdrivers in transferring meat
products from one truck to another. On each such
occasion he would spend from 1 to 3 hours in performing
this task. On Saturdays he would perform principally store
duties, but also did some work in the company yard.
Although he was licensed to drive certain classes of
trucks, he drove off premises only rarely in Respondent's
employ.
Wilma Bleau was employed during the payroll period
ending March 10 and March 17, respectively as a store
clerk. Like O'Brien and Babulas, she was hourly paid.'
C. Union Organizational Efforts
1. The notebook signatures
During the month of February , employees of
Respondent, including Guy Hoag and Herman Deveaux,
discussed the desirability of union representation.
Pursuant to a preliminary discussion Herman Deveaux
obtained a notebook, and Guy Hoag assumed the initiative
in obtaining employees ' signatures therein . Pursuant to his
inquiry as to their desire for Teamsters representation, 11
employees at different times during working hours on
February 17 and 18 , at the Respondent 's garage, entered
their name on a page of the notebook . 1o The page on which
these names were entered bears a date of February 17. 11
2. Authorization cards signed
After Hoag had obtained these signatures in the
notebook , Deveaux obtained the sheet from him. He
contacted Union Respresentative Anthony Spazioso,
informing him of the desire of the employees for union
affiliation . Pursuant to arrangements , the following day
Deveaux obtained union authorization cards from
Spazioso . Deveaux later gave seven blank authorization
The record further establishes that M A Borgia, who was
carried on the payroll for the week ending March 10 but who was
dropped from the payroll for the following week, was employed as
an interim, temporary employee in the place of Charles Major who
had been ill Major's status as of March 17 is not an issue.
N The foregoing is based on the credited testimony of Earl
Simmons
" William Bouche and William Dallas were employed as part-
time bookkeepers in Respondent's office in the store They
worked for Respondent parttime 3 days per week. Respondent
concedes their exclusion from any assertedly appropriate unit
here in issue
'" The informality of this approach is suggested by the fact that
employee Harold Woodward entered his name merely as
"Woody"
i' It appears that the page was postdated, for Guy Hoag
testified that the sheet of paper contained no date at the time that
these signatures were obtained However, his testimony, and that
of Herman Deveaux, convinces me that the signatures were
obtained on February 17 and 18
Additionally, 8 of the 11 employees testified credibly that they
affixed their signatures to the sheet of paper Three employees,
Herman LaClair, Jack Paul, and Harold Woodward did not
testify However, Guy Hoag testified convincingly that he
observed LaClair, Paul, and Woodward each sign the paper
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards to Guy Hoag with instructions that he have them
completed and that he obtain a $10 initiation fee from any
employee who completed a card.
There are in evidence 10 authorization cards duly dated,
and bearing the signatures of truckdrivers and the
principal mechanic, Guy Hoag, in Respondent's employ at
times pertinent herein. Four cards bear a date of
February 23, five a February 24 date, and one is dated
March 2. In addition, one card beaiing the date of
February 23 and purporting to be that of Joseph Gilbert, a
driver, bears no signature. The 10 signed cards are
assertedly those of Guy Hoag, Eugene Loya, Alfred Loya,
James Nathan, Lloyd Shuhart, Aubrey Griffin, Herman
Deveaux, Harold Woodward, Melvin Smith, and Herman
LaClair. The first seven mentioned employees testified
credibly they executed and dated union authorization
cards. I find upon this credited testimony that the union
authorization cards in evidence bearing their signatures
are valid authorization cards.
Joseph Gilbert credibly testified that he was presented
with a union authorization card and filled it out, but did not
sign it. He testified that because he was already a member
of the Union he considered execution of the card
unnecessary. 12
Herman Deveaux credibly testified that he gave Herman
LaClair an authorization card and LaClair filled it out and
signed it in his presence.
Guy Hoag credibly testified that he presented Harold
Woodward with an authorization card and that Woodward
returned the completed card to him the following day at
work. Hoag was unable to recall with any certitude
whether or not he presented Melvin Smith with an
authorization card and recalled no other details
concerning a card.
Herman Deveaux testified that the completed and
executed cards purporting to be those of Woodward and
Smith were returned to him by Hoag.
On March 2, Herman Deveaux presented the 11
authorization cards, including the unsigned card of
Gilbert, and the cards purporting to be those of Woodward
and Smith to Anthony Spazioso.
According to the credited testimony of Spazioso, in
checking the cards he observed that those of Gilbert and
Smith were unsigned. He further erroneously testified,
however, that at a meeting he held with employees of
Respondent on March 5, Smith, who was in attendance, in
the presence of Spazioso, executed his card which had
been filled out and dated earlier.
Herman Deveaux testified with conviction that a
meeting of the type described by Spazioso was held on
Sunday, March 6. However, other evidence of record,
including the testimony of Alfred Loya, convinces me that
the only meeting which Spazioso held with employees was
a meeting held on Sunday, March 20, 2 days before the
strike which transpired herein. I accordingly find that it
was at this meeting, and not on March 5 or 6, the signature
of Melvin Smith was affixed to the authorization card
received in evidence in this proceeding.
D. Alleged Interference, Restraint, and Coercion
1. Management approval of unionization
Guy Hoag credibly testified that over a period of some 2
years he had conversed intermittently in general terms
with Ben Ginsburg concerning a union for the employees.
Ginsburg had expressed himself as favorably disposed
toward a union. Hoag further credibly testified that in
February or March he conversed with Ginsburg and
Ginsburg stated he was in favor of a union and that it was a
matter for the employees to decide.
Earl Simmons testified credibly that during the period of
union interest which developed among the employees in
February and March, Ben Ginsburg related to him this
conversation that he had had with Hoag, and stated that he
had told Hoag that he thought a union was a good thing.
Ben Ginsburg similarly testified credibly that he had
told employees frequently that if they desired a union he
was favorably disposed.13
According to the credited testimony of Lloyd Shuhart,
during February or March, prior to the strike, he was
asked on several occasions by Ben Ginsburg and by Alvin
Ginsburg if he thought the Union would be helpful to the
employees. In conversing with Shuhart, Ben Ginsburg
stated that he did not think a union would help the
employees.
2. Interrogation and impression of surveillance
During an evening in late February, Earl Simmons
conversed with Ben Ginsburg in the garage while
Simmons was working on a truck. Simmons asked Ben
Ginsburg if the employees were going to have a union.
Ginsburg did not answer but asked, "Where is the list of
names?" Simmons responded that he did not know, but
surmised that it was in the parts room. Ginsburg later
stated to Simmons that he had not seen the book in the
parts room.14
Eugene Loya testified that on or about February 18 he
came into the store and Alvin Ginsburg approached him
stating, "I heard you signed cards for a union.""'
During the last week in February, Aubrey Griffin was
asked by Ben Ginsburg if he had signed a union card
Griffin answered that he had. Ginsburg then inquired if
Griffin had given the Union any money, and Griffin
answered in the negative. Thereupon, Ginsburg stated he
had heard that Griffin had endeavored to borrow $10 with
which to pay union dues. When Griffin confirmed this
Ginsburg asked the identity of the lender. Griffin asserted
that he had been unsuccessful in obtaining a loan.
Ginsburg answered, "Okay, Aubrey, that's all I wanted to
know. I know the card was signed, and who paid the
dues."
12 Gilbert testified credibly that in January 1966 lie endeavored
to pay dues to the Union but the union representative refused to
accept them He further credibly testified that he has not paid
dues since Without supporting documentary evidence, Anthony
Spazioso , business agent of the Union, testified that as of
February 23, Gilbert was a member in good standing of the Union,
and that he was a "dues paying member" during the period March
through May 1966
13 This testimony finds confirmation in that of Lloyd Shuhart,
Aubrey Griffin, and James Nathan Additionally, Alfred Loya and
James Nathan testified that they were told by Alvin Ginsburg that
he, Alvin, was in favor of a union
14 Simmons could not place the time of this conversation with
certainty However, he testified that it was before the March 2
discharge of Herman Deveaux As I have found the notebook
signatures were obtained on February 17 and 18, I conclude the
conversation occurred during the last 2 weeks of February
15 Loya placed this event as having occurred on the day after he
affixed his name to the notebook page.
BRUNSWICK MEAT PACKERS 891
During March, Griffin was asked by Ginsburg if he had
paid his money yet. During the conversation that followed
Ginsburg also observed that he had known what had been
"going on" with respect to the organizational efforts of the
employees; and who had signed cards and were behind the
Union. He further stated that it did not make any
difference to him who joined the Union.
Alfred Loya testified that on an occasion immediately
after he had given his $10 union initiation fee to either
Herman Deveaux or Guy Hoag, he came into the store and
Ben Ginsburg addressed him saying, "I heard you paid
your $10 to the Union." Loya stated that he had,
whereupon Ginsburg said, "Well, there is a man that can
afford to pay $10 for a union, but can't afford to give me
$10 that he owes me."
In late February, James Nathan was asked by Alvin
Ginsburg whether he had given Herman Deveaux $10 for
the Union. Nathan said he had not, and Alvin asked him if
he knew the name of anyone who had. Nathan answered
that he did not know the names. Alvin said that he knew
the names and that he wanted to "make sure they [got]
their $10 back."
Herman Deveaux testified that on February 18, upon
returning from a run, Alvin Ginsburg asked him, "What is
this I heard about you signing the fellows up for the
Union." Deveaux responded that he had signed his own
name but had not signed other employees. He asserted
that other employees had signed voluntarily. Thereupon,
Alvin asked Deveaux why he thought the Union would help
him. Deveaux answered that he thought the Union would
help him, management , and the business generally. Alvin
answered, "We will talk about it "is
Herman Deveaux further testified that during the last
week of February during a conversation in the store Ben
Ginsburg stated that he had heard Deveaux had signed the
employees for the Union. Deveaux disavowed this asserted
action, stating that the employees had signed of their own
volition. In response, Ben Ginsburg inquired why Deveaux
desired a union. Deveaux explained that he was desirous
of receiving the benefits which unionization would accord
him. Ginsburg responded that he would get Deveaux "any
kind of benefit" if he wished to pay for it. Deveaux
answered that he would first have to receive the
compensation in order to pay for benefits. Ginsburg
answered that if the Union came in he would work the
employees 40 hours a week and then let them go.
In mid-February, according to the testimony of James
Nathan, Ben Ginsburg asked Nathan how he felt about the
Union. Nathan answered that it made no difference to him
as long as the employees obtained more money.
During the week of February 23, on the same day and
within a brief time span , Alvin Ginsburg spoke separately
with Eugene Loya and Aubrey Griffin in the store. Ann
Ginsburg, Alvin's mother, was also present. Initially,
Eugene Loya entered the store and Alvin Ginsburg
approached him and said, "I heard you signed cards for
the Union." Loya confirmed that he had done so and
stated that he "had gone along" with the rest of the men.
Ann Ginsburg interjected, "If the men wanted a union job,
why didn't they get a union job. We don't want a union in
this place." She added, "We have been in business 25
years, and we will have nobody tell us what to do now."
She observed further that the business could be sold and
the family could " live on the store" very comfortably.
Aubrey Griffin testified that in the presence of Eugene
Loya and Alvin Ginsburg, Ann Ginsburg spoke to him in a
similar vein . 17 According to the testimony of Aubrey
Griffin, he entered the store and spoke with Alvin
concerning the loss of an account. Alvin Ginsburg, in
response, observed, "On top of that Herman is trying to
get the Union in on me." Ann Ginsburg then stated, "Well,
if Herman wants a union job, he should get out and get a
union job." Mrs. Ginsburg further stated, "I think it is a
shame, when all these many years you work hard, and then
the Union comes in ." Mrs. Ginsburg additionally said that
the business was hers and that she wouldn't "appreciate
the Union coming in.""'
During the latter part of February, Alvin Ginsburg
observed to Alfred Loya that he had heard "somebody was
trying to form a union," and he asked Loya if he were
"going along with the union." Loya answered that "he
guessed" he would. Alvin thereupon inquired if Loya knew
who was trying to "form" the union and Loya responded
that he did not know. He stated that he had just been given
a card and had signed it. I 4
Aubrey Griffin further testified credibly that on
March 10, after the discharge of Herman Deveaux, Ben
Ginsburg invited him to the house to converse about his
work. During the conversation Ginsburg characterized
Herman Deveaux as having been his "right hand man,"
and observed that he "liked" Herman . Ben Ginsburg
stated that if Deveaux had wanted the raise, he should
have come to him for it. During the conversation he asked
Griffin if Deveaux was " going down to the union hall for
the National Labor Relations Board." Griffin asserted that
he did not know. Ginsburg observed that he had heard
Herman was a good friend of Griffin and that he did not
want to break up their friendship.L0
I credit the testimony of the employee witness
concerning the foregoing incidents, which, except as
above found, was either not specifically denied or was
subject to the most transient general denial.
3. Ben Ginsburg's implied threat to Deveaux
Additionally, during the last week of February, Deveaux
testified that he returned to the store from a meat pickup
and presented an invoice to Ben Ginsburg. Ginsburg
instructed Deveaux to take the invoice upstairs to the
bookkeeper and Deveaux did so Ginsburg followed
Deveaux upstairs and stated to the bookkeeper, "I want
you to write Gene Loya and Aubrey Griffin a lay off slip
16 Alvin Ginsburg did not deny the occurrences of this
conversation
'1 I conclude that this conversation followed immediately that
between Eugene Loya, Alvin Ginsburg, and his mother, Ann
(,insburg
18 Alvin Ginsburg testified that he had no recollection of this
conversation having transpired Ann Ginsburg was not called as a
witness However, Aubrey Griffin testified convincingly
concerning this incident and his testimony finds some support in
that of Eugene Loya
11 The foregoing is based upon the credited testimony of Alfred
Loya Alvin Ginsburg testified he did not recall having had any
such conversation with Loya However, this testimony of Loya
impressed me as credible, and as Alvin Ginsburg had made
similar inquiries of other employees , it is my conclusion that the
credible and essentially plausible testimony of Alfred Loya should
be credited over the denial of Alvin Ginsburg
20 Griffin testified that on other occasions Ginsburg had stated
that lie had held Herman Deveaux in high esteem as an employee
and had stated that Griffin should aspire to measure up to
Deveaux in this respect
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right now. I don't want them around here. They are trouble
makers." Ginsburg then stated, looking directly at
Deveaux, "that goes for the big union man, too." Ginsburg
then stated that he would get "good help if he had to pay
them $200 per week. Deveaux interjected, in reply, that he
was only being paid $135 per week. Ginsburg answered,
"Yes, you are a good man, but you are too expensive for
me."
Thereupon, Deveaux went downstairs and was informed
by fellow employees that a trailer loaded with merchandise
was ready for Deveaux. When Deveaux stated that he had
been terminated, Ginsburg stated he had only been
"kidding" and instructed Deveaux to take the
assignment.21
4. Alvin Ginsburg's alleged promise of benefit
James Nathan testified that Alvin Ginsburg approached
him one morning in the yard a week prior to the March 22
strike, and inquired if Nathan believed the employees
would be receptive to an offer by the Company of pay
equal to that which they could obtain through union
representation. He suggested he was prepared to present
such an offer to the employees at a special meeting.
Nathan stated that he thought the idea was a good one. No
such meeting was held.
On the other hand, Alvin Ginsburg testified that he
conversed with James Nathan during the early afternoon
of a day in the last week of February. According to
Ginsburg, he asked Nathan if he had signed for the Union
yet. Nathan answered that he had not and Ginsburg then
asked Nathan if he thought the Union would "do [him]
any good." Ginsburg further stated that he was concerned
over "where the money [would come] from." Ginsburg
went on to assert that the money would still come from the
Company whether or not the Union represented the
employees, and he then asked Nathan if he felt that the
Company would give the employees as much as the Union
would be able to obtain for them. Nathan answered that he
didn't care where the money came from just so long as the
employees received it. According to Ginsburg, during the
conversation Nathan made reference to benefits as a
primary point of interest on the part of employees, and
Ginsburg asked him if he thought the Union would give the
employees more benefits than the Company was now
giving the employees.
I credit Alvin Ginsburg's version of this conversation
and find that the testimony of James Nathan is inaccurate
with respect to the alleged suggestion of Alvin Ginsburg of
company willingness at a convened meeting of employees
to proffer benefits equivalent or superior to those which
the Union would obtain for them. I am convinced that in
reconstructing the conversation after the passage of time
Nathan appended a meaning to Ginsburg's remarks which
is not supported by the actual words and terminology
employed by Alvin Ginsburg during the conversation.
5. Herman Deveaux labeled an "agitator"
Alfred Loya testified that after the discharge of Eugene
Loya and Herman Deveaux, he was in the store and either
Ben Ginsburg or Alvin Ginsburg observed, "It's a lot
quieter around here since we got rid of the instigator."22
Aubrey Griffin testified that on the morning of March 2,
Alvin Ginsburg addressed him stating, "Well, Aubrey, I
had to let two men go this morning.... I let your buddy go,
Herman Deveaux." Griffin inquired as to the reason for
letting Deveaux go and Alvin said, "Aubrey, a lot of union
trouble is here. I had to let Herman and Eugene go."
Alvin Ginsburg testified that he did discuss the
discharges of Deveaux and Loya with Griffin on March 2,
but testified that, contrary to Griffin, he stated that they
had been discharged for causing too much trouble "around
the place" and "among the help ."23 I credit Alvin
Ginsburg's version of this conversation. Not only did he
testify convincingly and forthrightly concerning this
incident, but I am convinced that it is entirely unlikely he
would have so candidly and pointedly stated an antiunion
motive for the discharges. I am convinced Griffin's
testimony was affected by this subjective interpretation of
the meaning of Alvin Ginsburg's remarks.
Conclusions
I find upon the foregoing evidence of record that,
despite his pronouncements of approval upon the desires
of the employees for unionization, Ben Ginsburg reacted
with hostility when these theoretical yearnings for
collective representation achieved the form of overt
organizational efforts. I find that the Ginsburgs in their
respective managerial and proprietary capacities, upon
learning of the unionization efforts of their employees,
became unified in their objections to collective
representation for the employee complement, and sought
to undermine and frustrate collective representation. This
they endeavored to achieve through interrogation and
through foreseeably inhibitory statements to employees
suggesting managerial awareness of their union activities.
Thus, as found above, in interrogating employees
concerning the existence of a list of names signifying union
adherence, in verbally asserting an awareness of the union
activities or other protected activities and conduct of its
employees ;24 in interrogating employees concerning their
card signing activities and their payment of dues to the
Union; in stating its objections to the Union and its power
to close down operations to defeat it;25 in simulating the
discharge of Herman Deveaux in context with the
classification of him as a "union man"; and, in context of
the foregoing, in inferring to a fellow employee, Alfred
21 I credit the testimony of Herman Deveaux with respect to
this incident Not only is his testimony intrinsically believable, as
demonstrated by abundant record evidence of the volatile nature
of Ben Ginsburg, but there is independent record suggestion that
Ginsburg frequently "discharged" employees only to recant
Further, Ben Ginsburg did not deny this incident
22 While I credit Alfred Loya to the extent of finding that one of
the Ginsburgs made this statement, I do not find that, as the
record context of the General Counsel's interrogation endeavors
to suggest, that the comment was one directed in meaning to both
Herman Deveaux and Eugene Loya The literal reference was to a
single "agitator" and had no plural connotation. Further, other
evidence of record reveals that to management, Herman Deveaux
and not Eugene Loya was the "instigator" of the union movement
23 In the record context, it is apparent that Alvin Ginsburg was
referring to the driver personnel.
24 The interrogation of Aubrey Griffin regarding the resort of
Herman Deveaux to the Board's processes is embraced within
this finding
25 This sentiment expressed in a veiled threat spoken by Ann
Ginsburg, a vice president, stockholder, and active participant in
the business, is attributable to Respondent despite the pleadings
denying her agency status vis-a-vis Respondent.
BRUNSWICK MEAT PACKERS 893
Loya, that Herman Deveaux's discharge resulted from his
actions as an "instigator"; and in similarly inferring to
Aubrey Griffin on March 10, in context with other conduct
violative of the Act, that Herman Deveaux's discharge
resulted from his desire for a raise, the Respondent
interferred with, restrained, and coerced its employees in
the rights guaranteed them in Section 7 of the Act, and did
thereby violate Section 8(a)(1) of the Act.
I do not find violative of the Act Ben Ginsburg's order to
his bookkeeper issued in Herman Deveaux's presence at
the time of his simulated discharge, to issue layoff slips to
"troublemakers" Loya and Griffin. The evidence of record
suggests this statement had a different meaning or
connotation known to Deveaux, and, indeed, Ginsburg
specifically differentiated between Deveaux's union-
caused "termination" and the basis for the "termination"
of Loya and Griffin.
In similar vein I find no violation flowing from Alvin
Ginsburg's comments to Aubrey Griffin regarding the
discharge of Deveaux and Eugene Loya.
Nor, contrary to the General Counsel, do I find violative
of the Act-separate and apart from the unlawful inquiry
into his card signing activity which on this occasion he
made-statements of Alvin Ginsburg made to James
Nathan in the yard at the plant premises during the week
prior to the strike.
E. The Alleged Discriminatory Discharges
1. The discharge of Herman Deveaux
a. The employment history of Deveaux
Herman * Deveaux credibly testified that he was
employed as a truckdriver by Respondent during the
period April 23, 1961, to January 6, 1963, and from April
1964 until March 2, 1966.
b. His discharge affected
According to the credited testimony of Alvin Ginsburg,
he discharged Herman Deveaux on the morning of
March 2. He further credibly testified that on the morning
of March 2 he summoned Deveaux to his office and
informed Deveaux that the family had worked for years to
build the business and that they "were getting good
cooperation from all the drivers, but that [ Deveaux] was
doing nothing but causing trouble with all the workers."
Ginsburg stated that he had received complaints from all
of the drivers to the effect that they were not "going to
take Deveaux' abuse anymore." Ginsburg stated further
that it had become a question of keeping Deveaux and
losing other men, or discharging Deveaux and keeping the
majority of the men happy.
Ginsburg testified credibly that at this point in the
conversation Deveaux asserted he was going to the Union,
and Ginsburg answered that his discharge had nothing to
do with the Union.
The conversation then turned to the pay due Deveaux
and after a brief discussion, at Deveaux's insistence, he
was paid for the full week of March 2.26
c. The alleged basis for discharge
(1) The Troy meat pickup
Alvin and Ben Ginsburg testified that they and Ann
Ginsburg met together on Sunday, February 27, and
decided to terminate Deveaux. Alvin Ginsburg testified
that the event which led to the meeting was Deveaux's
refusal on the previous Friday, February 25, to make a
meat pickup as he had been requested to do.
In this regard, Alvin Ginsburg testified that on the
morning of February 25, he requested Deveaux to make a
meat pickup in Troy. Deveaux objected to being asked to
do so and became intemperate with Alvin Ginsburg.
Deveaux stated that he would make the pickup, if
Ginsburg would obtain someone else to take the route
which he was scheduled that evening to take. Ginsburg
objected, observing that Deveaux only made three runs
per week. Alvin Ginsburg further credibly testified that,
following his discussion with Deveaux, he assigned
another employee to make the pickup. He further testified
that the employee to whom he gave the assignment had
returned from a run the previous evening and was resting
at home. He further testified that it took this employee an
hour to accomplish the Troy pickup.
The evidence shows that Deveaux worked from 8 a.m. to
12 p.m. and from 12:30 p.m. to 6 p.m. on February 25 at
the Respondent's yard. Ginsburg testified that under
procedures in effect during pertinent times, Deveaux
would have been free to set his own hours on the day in
question, as he was scheduled to make a meat run that
evening.
With respect to his refusal to take a Troy meat run,
Herman Deveaux testified that when he reported for work
at 8 a.m. on the morning in question'27 he was asked by
Alvin Ginsburg to make the meat pickups in Troy. He
testified further that he had worked the previous day; that
the day in question it had snowed 6 or 7 inches; that his
previous experience had indicated to him that by taking
the Troy meat pickups, he would not be able to return to
the plant until approximately 4 p.m.; that he was
scheduled to take his normally assigned run to New Jersey
on the evening in question; and that the New Jersey run
would require 15 hours or more to complete. Deveaux
further testified that when Alvin Ginsburg requested him
to make the Troy meat pickups, he asked Alvin who would
make the New Jersey run that evening, asserting that he
did not want to "fight" the snow all day and do the same all
night. Deveaux testified further that Alvin Ginsburg
became incensed and remonstrated that Deveaux only
made three runs per week. Deveaux denied that he
refused to make the Troy run.
In amplification, Alvin Ginsburg testified further that
the Troy meat pickup which he requested Deveaux to
26 Herman Deveaux testified that in discharging him, Ginsburg
expressed regret at having to take the discharge action in view of
the close personal regard he had for Deveaux Deveaux further
testified that in recounting the effort which the family had
expended in building the business, Ginsburg stated that for this
reason his mother and father did not want a union, and that as
Deveaux was a union "instigator" he was being discharged.
This facet of Deveaux's testimony, depicting Ginsburg as
blandly labeling Deveaux as the union "instigator" and revealing
this as the basis of and reason for his discharge, impresses me as
being overdrawn and implausible I am convinced that Ginsburg
would not have so candidly expressed himself with respect to the
motivation allegedly underlying Deveaux's termination
Considering this testimony, I am convinced that Deveaux
endeavored to enhance the General Counsel's case, and further
his own interest therein, by attributing to Alvin Ginsburg an
expression of sentiment which I am convinced Ginsburg did not
articulate
27 Deveaux places this incident as having occurred some 2
weeks prior to his March 2 discharge
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make was a single pickup to be accomplished as a favor to
a customer. He further testified that the regular Troy
pickups were made on Thursday. Further, Alvin Ginsburg
testified that on February 25, there was no snow on the
roads at Brunswick , New York.
Alvin Ginsburg testified with apparent certitude with
respect to the date of the above occurrence and its
relationship to the actual discharge of Deveaux . Deveaux
was less specific about the date, but, as above noted, his
estimate was that it transpired some 2 weeks prior to the
date fixed by Ginsburg. Upon an overall analysis of the
pertinent aspects of the record, I credit Alvin Ginsburg. I
am convinced , in part , from the credited testimony of
Lloyd Shuhart, that Respondent had decided to terminate
Deveaux some weeks prior to March 2. Having made the
decision-which I find was unlawfully motivated-and
having been accorded through Deveaux's intransigent
challenge to Alvin Ginsburg's authority, a plausible basis
for discharge , I am convinced that Respondent acted as
promptly as practicable in terminating Deveaux. I am
convinced further, contrary to Deveaux , and in agreement
with Alvin Ginsburg, that 2 weeks' time did not elapse
after the Troy pickup incident before Deveaux's discharge
was effected. Moreover, I am convinced that Alvin
Ginsburg correctly testified that his request of Deveaux
was for a special meat pickup and was understood by
Deveaux to be a pickup of this character. As Alvin
Ginsburg testified without refutation that the normal, more
time-consumming Troy meat pickups are made under
established routine on Thursday, and as the request of
Deveaux was made on a Friday, I am convinced that
Deveaux was aware that Ginsburg 's request related to a
special circumstance.
This conclusion that the pickup was not the normal
Thursday pickup is supported by the similarly unrefuted
testimony of Alvin Ginsburg that the run took an hour to
accomplish and that a driver who had returned from a run
and who was resting at home was selected for the task. It
is most doubtful that a driver in this status would have
been selected for an all-day pickup assignment.
With respect to the foregoing , the log sheet which
Deveaux completed for March 2 gives some room for
conjecture , for it does not reveal that Deveaux performed
any driving duties on the night of March 2. Deveaux
testified , with a degree of insistence , that on the night on
which he was requested to make the Troy pickup, he was
scheduled for a New Jersey route, and Ginsburg, in his
testimony, seemed to concede he was. This ambiguity,
with respect to the log sheet , which was not resolved in the
record, and the variant recollection of Ginsburg and
Deveaux as to the weather conditions on the day in
dispute, have been weighed in making the above
credibility resolution , but are considered less persuasive
indicia than those above stated as the basis for my
conclusion.
In sum, I conclude that on Friday, February 25, Alvin
Ginsburg requested Herman Deveaux to make a special
meat pickup in Troy and that he objected to doing so
because he was scheduled to make his assigned New
Jersey route trip on the evening of February 25.
(2) Other contributory factors
Ben Ginsburg testified that the decision to discharge
Deveaux was triggered by the meat pickup incident, but
that the disenchantment of management with Deveaux's
work performance had grown out of a series of incidents
revealing his inefficiency as a driver and his
uncooperative , disruptive propensity as an employee.
Thus, Ben Ginsburg testified that some 4 or 5 months prior
to his discharge , Deveaux ran his truck over and destroyed
a barrel which he had been told to remove from under his
tractor ; 211 he failed to refuel his vehicle before
commencing a trip and ran out of fuel, with a resultant
expense to Respondent ; 2`' that through his failure to
properly observe the loading of his truck for weight, and
through his attitude toward a police officer who stopped
him to check the weight of his vehicle , he was given a
citation ; and that on an occasion during a run to New
Jersey, Deveaux spent excessive time from his duties for
personal convenience.
With respect to Deveaux's propensities for disruption,
Ben Ginsburg further testified that Deveaux sought a raise
in pay for his duties in connection with his assigned New
Jersey run and threatened to terminate his employment if
his pay demands were not met ; and that Deveaux
demanded his own discharge if Respondent should take
discharge action against Aubrey Griffin on grounds of
excessive vehicular breakdowns.
In further support of Respondent 's contention regarding
Deveaux's record as an employee, Guy Hoag testified that
in 1965 or 1966 he had to make repairs to the wheels of a
new vehicle driven by Deveaux because, contrary to
instructions , Deveaux failed to tighten wheel lugs;30 and
that during the same period, it was necessary for him to
replace a broken tailgate on Deveaux 's vehicle which had
been damaged through Deveaux 's negligence.31
Hoag further testified that over the period of Deveaux's
employment, Deveaux, more often than other drivers,
requested him to perform work which was part of a
driver's normal duties, and that he observed Deveaux
make similar requests to other employees . Hoag also
testified that he complained to Ben Ginsburg about this
practice.
Conclusions Regarding Deveaux's Discharge
While there is much in the record to establish that
Respondent had grounds for displeasure over the
undercautious attitude of Deveaux toward his duties as a
driver, I find it unnecessary to make a detailed resolution
of the conflicts resulting from testimony attributing
derelictions to Deveaux , and Deveaux 's own denials
thereof. This is so because, even construed most favorably
to the Respondent, the evidence reveals that , in sum, the
L8 Guy Hoag confirmed the occurrence of this incident , but was
unable to place the time Herman Deveaux confirmed the
occurrence , but denied that he had been warned of the presence
of the barrel under the truck
t" Herman Deveaux testified that the truck was that of another
employee and that his departure from the plant on this occasion
occurred at night and the fuel indicator revealed that the fuel tank
was full He conceded that it was his duty to fill the truck with
fuel, but that it was his practice to do so not at the plant, but in
New Jersey where the tax is less
"" Herman Deveaux testified he recalled no such incident
having occurred
31 Deveaux testified that the tailgate was damaged in unloading
a trailer attached to the truck through the use of a motor in front
of the truck He testified that in operating the motor, it was
impossible to observe the tailgate and that he was not at fault for
the resultant damage
BRUNSWICK MEAT PACKERS
derelictions constituted nothing more than irritants to
management and were on each occasion and in cumulation
tolerated over a subsequent period of several months
without disciplinary or terminal action.
The Troy meat run incident stands on separate grounds,
and, if Deveaux's conduct on that occasion had indeed
been the sole, moving cause for his termination, or, as
Respondent contends, the proximate cause capping a
series of incidents, Respondent's defense could be valid,
as against the General Counsel's charge of unlawful
motivation. However, I find that against a background of
disharmony and resentment-taking unlawful form-over
the employees' resort to the Union, and over Deveaux's
role therein, Deveaux's conduct with respect to the Troy
meat run was seized upon by Respondent as a cloak to
cover discharge action designed to punish Deveaux for his
part in seeking to unionize the drivers, and to serve as a
deterent to further union effortsby the employees.
As a predicate consideration bearing directly upon the
motive for Deveaux's discharge, the record reveals the
existence of intelligence sources which quickly informed
management of the progression of the organizational
efforts of the employees, and, as indeed the record
independently suggests, the Ginsburgs, through these
sources, became quickly aware of the leading role therein
of Herman Deveaux.
To be sure, Respondent's actions with respect to
Herman Deveaux must be measured against the record
portrait of the gregariously effusive nature of Ben
Ginsburg which caused him, respecting the union desires
of his employees, to equivocate between paternal
permissiveness and pointed inquisition. Through words,
he assured employees of their freedom to organize, but
through his verbal acts, he demonstrated a hostility toward
unionization, not in the abstract, but when applied as an
economic reality to his own operations. Thus, as found
above, in seeking to obtain the names of those who had
affixed their names to the notebook page; in inquiring of
employees whether they had signed union cards; in
interrogating them concerning their payment of initiation
fees to the union, in characterizing Herman Deveaux as
the "big union man"; in inferring, as he did to Aubrey
Griffin on March 10, following Deveaux's discharge, that
Deveaux's interests would have been better served
through a direct approach to management than through
the Union; and, during the climatic period of the
organizational effort, in hiring a replacement for Deveaux,
whom he had not yet discharged and, notably, who had not
then perpetrated the act which was ultimately ascribed as
the proximate cause for his discharge, Ben Ginsburg
revealed a hostility toward the concept of unionization and
toward Deveaux's affinity to the Union which was not
wholly disguised by the facade of congentiality which
marked the relationship of Ben Ginsburg to his employees.
31 These deficiencies, according to Alvin Ginsburg, were
Loya's tendency to trade or reorganize routes inter se with other
drivers, and his excessive absenteeism between runs Alvin
Ginsburg testified that employees frequently reported Loya's
efforts to adjust routes and schedules, and he further testified that
Loya lost an average of 1 day per week through absenteeism
Alvin Ginsburg conceded that these practices had prevailed
throughout each term of Loya's employment Additionally, Alvin
Ginsburg testified that in the fall of 1965 for training purposes
l.oya left the plant in a truck accompanied by a new employee and
that later he observed the new employee alone in the truck Upon
inquiry Ginsburg was told by the new employee that Loya had left
to go home
895
In similar vein, as revealing the general attitude of
management, toward unionization generally, and Deveaux
in particular, the remark of Ann Ginsburg to the effect that
Deveaux should have sought a union job if he desired to be
represented by a union, in the context of the developed
record, must be construed as clearly indicative of
resentment toward Herman Deveaux for his union
activities.
But additionally to be weighed, beyond this strong,
affirmative showing of unlawful motivation, is the
transparency of Respondent's assertion that Deveaux's
recalcitrance over the Troy meat run assignment was the
finale in an accumulating series of derelictions. The
transparency arises from two considerations. Initially, the
record strongly suggests that deficiencies-tolerated, as
found, without penalty-were passed over because Ben
Ginsburg held Deveaux in high esteem; and Deveaux's
disputation with Alvin Ginsburg-given the friendly,
"family" atmosphere that the record reveals existed
between management and employees at Respondent's
operations-was not of a variety calculated to have
normally given rise to strong retributive action. I am
convinced that, rather, a supervening consideration served
as the catalyst for Deveaux's discharge and that Deveaux's
leadership in the organizational effort was that agent.
The second indicia of transparency is found in the
evidence revealing that Respondent gave to the Board in
the investigatory stages of this proceeding inconsistent
reasons in justification of Deveaux's discharge, and, after
Deveaux's discharge solicited a letter from a former
employee of Deveaux casting in an unfavorable light
Deveaux's capabilities as a driver. These latter actions
strongly suggest an effort to obscure and disguise.
In view of the foregoing, I conclude and find that
Herman Deveaux was discharged by Respondent because
he engaged in union activities. I further find that the
reason advanced by Respondent for Deveaux's discharge
was a mere pretext.
2. The discharge of Eugene Loya
Eugene Loya entered Respondent's employ in August
1964 and worked until February 13, 1965. He subsequently
worked for Respondent from May 15, 1965, until
September 1965; from September 17 to October 9, 1965,
and from November 20, 1965, until March 2, 1966, when
he was terminated.
Alvin Ginsburg testified credibly that on the occasion of
each of Loya's rehires, Loya requested employment on the
basis of economic necessity, and the decision was made
by management to give him a further chance to overcome
his past deficiencies as an employee.32
The credited testimony of Alvin Ginsburg, Ben
Ginsburg, and Eugene Loya establishes that Loya did not
work on February 28 or March 1 or 2.
Further, Ben Ginsburg testified that at the time of his
discharge, Loya was indebted to the Company for money which
the Company had paid to a bank on Loya's behalf, that he had
loaned Loya a sum of money to meet his wife's maternity
expenses and that Loya had used the funds for the purchase of an
automobile, and that Loya had, subsequent to the loan, applied
for welfare payments
Loya admitted having borrowed $100 from Ben Ginsburg for
maternity purposes but stated that it had become necessary to
expend the money for food and for his wife's medicine He further
conceded that he made application for welfare after the birth of
his baby
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eugene Loya testified that on Sunday evening,
February 27, he became wet from the rain and that upon
his return home he discovered that his wife had suffered
an attack from a recurring illness from which it is
conceded she suffered. He testified that the following
morning, Monday, February 28, he had contacted a cold
and, as a consequence, he went next door to his brother's
residence and informed his brother, Alfred Loya, that
neither he nor his wife were feeling well, and requested
Alfred to report this to the Ginsburgs and to inform them
that, he Eugene, would not be reporting to work that day.33
Alfred Loya testified that upon reporting to work on
Monday morning, February 28, he informed Alvin
Ginsburg of the illness of his brother and of Mrs. Eugene
Loya, and stated that Eugene would not report to work that
morning. Thereafter, that evening Alfred conversed with
Eugene Loya who informed him that he would not be able
to work the following day and requested that Alfred inform
Alvin of this fact. Alfred testified that he did inform Alvin
Ginsburg of this and Alvin requested that he have Eugene
contact him by telephone the following day.
Alfred further testified that on Wednesday morning he
again conversed with Alvin and informed him that Eugene
Loya would not be able to work that day.
Thereafter, according to the testimony of Eugene Loya
on Wednesday morning, he contacted Alvin Ginsburg by
telephone and Alvin asked him "what the matter" was.
Eugene stated that he and his wife had been ill. Alvin
answered that he had heard Eugene had been looking for
work. Loya denied this and offered to prove this by
obtaining " some kind of statement." Alvin Ginsburg
stated that this would not be necessary. He added that he
would not need Loya any more.
Alvin Ginsburg testified that on the evening of March 1,
after Loya had been absent from work for 2 days, Earl
Simmons told Ben Ginsburg that he, Simmons, had been
informed that Loya had been seeking employment at K.C.
Trucking Company.34
Thereupon, Ben Ginsburg instructed Alvin Ginsburg to
terminate Loya.
Alvin Ginsburg testified that he had received no
communication from Eugene Loya concerning his absence
from work, and on the evening of February 28, after
Eugene Loya had been absent for 1 day, he asked Alfred
Loya for information concerning his brother's
whereabouts. According to Alvin Ginsburg, Alfred merely
answered, in substance, jokingly, that "he was not his
brother's keeper."35
33 Alfred Loya testified that this information was
communicated to him by Eugene Loya not on Monday morning
but during a conversation which he had with Eugene at Eugene's
home on Sunday evening Alfred testified that he did visit with
Eugene briefly on Monday morning but that no instructions were
given to him on the occasion of that brief visit
34 Earl Simmons confirms the substance of this conversation
but testified that it was after Loya was discharged that the
conversation transpired Later on cross-examination he was
unable to place the date of the conversation and showed a clear
lack of certitude with respect to whether the conversation
preceded or followed Loya's discharge
I do not credit Earl Simmons with respect to his placement of
the date of his conversation I believe it quite likely that in
testifying at open hearing attended by other employees Simmons
rationalized this facet of his testimony out of a desire to avoid the
onus of seeming to serve in the role of an informer Indeed, at one
juncture of Simmons' testimony he stated that he had proffered
the information concerning Loya's job hunting venture to Ben
Ginsburg after Ginsburg observed that Loya "hadn't shown up
The following day, Tuesday, March 1, according to the
testimony of Alvin Ginsburg, he conversed by telephone
with Mrs. Eugene Loya. Mrs. Loya informed Alvin
Ginsburg that Eugene was out of the house and Alvin
requested that she have her husband call him "in the
morning. "36
Alvin Ginsburg further testified that Eugene Loya called
him by telephone on Wednesday morning, March 2. He
testified that the call was received at approximately 9:30
or 10 a.m. after the other drivers had left on their routes.
Ginsburg testified that he informed Loya that he had been
absent for 2 or 3 days and that he received no messages
from him during that period of time. Loya answered that
his wife was ill and that he had been attending her.
Ginsburg testified that he interjected with the observation
that Loya had not informed him of this and Ginsburg
further observed that he had received information that
Loya had been looking for work. He stated that he had
received an inquiry seeking a reference for employment.37
He informed Loya that he didn't want him "around any
more.
Eugene Loya testified that approximately a week prior
to his discharge he had heard a rumor that K.C. Trucking
Company, at which he had previously filed an application
for work, was seeking drivers. Accordingly, he stopped
during his lunch hour and made inquiry.
Upon consideration of the foregoing record evidence I
conclude and find that, contrary to the testimony of Alvin
Ginsburg, he was informed by Alfred Loya on Monday,
February 28, and on Tuesday, March 1, that Eugene Loya
would not be reporting to work because of illness.
However, I conclude and find that Respondent did become
possessed of information indicating to management that
Eugene Loya was seeking employment at a trucking firm
and concluded upon this information that Eugene Loya
was not ill but was endeavoring to find employment
elsewhere.
It is not unlikely that Alvin made some effort during the
period of Loya's absence to contact the Loya residence by
telephone and that he was unable to obtain a response to
his call . It is likely, in this circumstance , that he concluded
from this that Eugene's debility was feigned.
Moreover, in light of the temperament of Ben Ginsburg
and his propensity for strong, implusive action, the
likelihood is great that, upon being informed by Earl
Simmons of Eugene Loya's rumored effort to find
employment at K.C. Trucking, Ben Ginsburg ordered
Loya's immediate discharge and that Alvin Ginsburg acted
[for work] for two or three days " The thrust of this testimony is
clearly that the information was imparted after Loya's absence
but before discharge action was taken Ben Ginsburg's testimony
that this information was imparted to him either a week or two
before Loya 's discharge must be evaluated in light of the marked
imprecision with which Ben Ginsburg throughout his entire
testimony fixed dates. It must also be evaluated against his
further testimony, which I deem credible, that upon learning of
Loya's job hunting venture he gave orders for Loya's immediate
termination . I find the testimony of Alvin Ginsburg regarding the
date of this conversation the more reliable.
as However, at one point in his testimony Alvin Ginsburg
conceded that at sometime during Eugene Loya's absence, his
brother Alfred informed him that Eugene was ill
as The parties stipulated that if called as a witness , Mrs Loya
would testify that she received no telephone call from Alvin
Ginsburg on either February 28 or March 1 or 2
30 Alvin Ginsburg testified that in point of fact he had received
no such call
BRUNSWICK MEAT PACKERS 897
in response to his father's direction without making what,
in different circumstances, would otherwise be requisite
inquiry into the actual health status of an employee set
apart for discharge.
I am convinced upon the record before me that Eugene
Loya was terminated because he commanded, at best, an
exceedingly marginal status from the standpoint of
efficiency and desirability as an employee, and because
Respondent's management became possessed of
information which indicated to it that he was seeking to
terminate his employment relationship.
I find little in the way of credible evidence of the record
to support the General Counsel's contention that Eugene
Loya was terminated for union activities. While there is
evidence revealing he was labeled a "trouble maker" by
Ben Ginsburg, and, in substance, by Alvin Ginsburg, he
was not a leading union advocate, and did no more in
fostering the organizational efforts of the employees than
to demonstrate, as 10 other employees had done, his union
desires by the execution of a union authorization card and
the affixing of his name to the notebook sheet. That other
employees who had been ill had not suffered the discharge
fate of Loya is not , on this record, probative, for the
circumstances were dissimilar, and none had been under
suspicion of job hunting. In all the circumstances, I
conclude the mere coincidence in timing between the
union organizational effort of Loya's discharge is not
sufficient, even in the context of other unlawful conduct,
to sustain the allegations of the complaint in regard to the
discharge of Eugene Loya.
F. The Refusal to Bargain
1. The bargaining demand and refusal
a. The initial request for recognition
On Monday, March 14, Anthony Spazioso, Herman
Deveaux, and Timothy Lane, an associate of Spazioso,
went to Respondent's premises and spoke with Alvin
Ginsburg.38 After introductions were made, Spazioso
asserted that he represented Respondent's employees as
bargaining agent for Teamsters Local 294 and wanted
recognition. He stated that he had in his possession a piece
of paper which he desired Alvin Ginsburg to sign which
would authorize him to bargain for Respondent's
employees. Alvin Ginsburg observed that his father was
out of town and that only his father had authority to sign
such a document. Alvin Ginsburg stated that his father
would possibly return that evening, or, on the other hand,
without returning might go directly to Canada on business.
He suggested that Spazioso make a definite appointment
for later in the week to speak with his father. However,
Spazioso pressed Alvin Ginsburg for an immediate
recognition of the Union's status. Ginsburg insisted,
nonetheless, that Spazioso speak with his father. During
the course of the meeting which lasted approximately 5
minutes, Spazioso read the document in his possession
aloud, in its entirety, to Alvin Ginsburg. The initial
paragraph of the document read as follows:
GINSBERG & COMPANY hereby recognizes
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 294 as
the exclusive collective bargaining representative for
its truck drivers employed at its place of business at
Troy, New York and hereby agrees to bargain with
said Union for the purpose of entering a collective
bargaining agreement covering the wages, hours, and
working conditions of said employees.
The meeting ended with an understanding that Spazioso
would speak with Ben Ginsburg.39
Later that morning, Alvin Ginsburg spoke with his
father by telephone and informed him of the visit of
Spazioso and Deveaux, and the purpose thereof. Ben
Ginsburg stated he would meet with Spazioso on his
return.
Thereafter, Alvin Ginsburg contacted Herman Deveaux
in an effort to obtain the telephone number of Spazioso. He
subsequently spoke with Spazioso by telephone and
informed him that his father would meet with him upon his
return, either the following day, or later in the week. A
tentative arrangement was made for a meeting on Friday,
March 18.
b. The written demand
Thereafter, by letter dated March 16, Spazioso informed
the Respondent that the Union had been designated by a
majority of Respondent's truckdrivers as their collective-
bargaining representative; offered to prove its majority
status by a third party card check; and requested an
"early meeting for the purpose of commencing the
negotiations of a collective bargaining agreement...."
Record evidence and testimony establish that
Respondent received the letter on March 17.
c. The March 17 telephone conversation
In the late afternoon of March 17, Ben Ginsburg
returned to the plant. Thereafter he was called by
Spazioso and they conversed by telephone. Spazioso
identified himself as a representative of the Teamsters and
stated that Ginsburg's employees desired to have the
Union represent them. He further said that, in this
connection, he had a paper he desired Ginsburg to sign.
Ginsburg invited Spazioso to come to the house and to
speak with him and further asserted that he would study
the paper and if it was "fair" he would sign it. Ginsburg
further observed that he was in favor of the Union if the
Union "would give him good help" but that he had
i I reject the testimony of Anthony Spazioso and Herman
Deveaux to the effect that they first met with Alvin Ginsburg on
March 8 and demanded recognition The diary of Spazioso
contains no confirmation of his testimony that the initial meeting
transpired on March 8, and the testimony of Timothy Lane
concerning a visit to the plant-which he described as having
occurred on March 16-strongly indicates that the later meeting
to which Lane testified was the first meeting between Ginsburg
and Spazioso . Indeed the testimony of Herman Deveaux confirms
that Lane was present on the first visit Considering these factors,
and the credible testimony of Alvin Ginsburg placing the date on
March 14, 1 reject the testimony of Spazioso with respect to the
date of the initial recognition demand
3' The foregoing is predicated principally upon the credited
testimony of Alvin Ginsburg as supported by that of Anthony
Spazioso and Timothy Lane Timothy Lane testified credibly that
he accompanied Spazioso to Respondent's premises and his
testimony confirms that a demand for recognition was made by
Spazioso upon Alvin Ginsburg He testified, as did Spazioso, and
contrary to Alvin Ginsburg, that Spazioso read the recognition
document aloud to Alvin Ginsburg I credit Lane and Spazioso. I
am convinced that Alvin Ginsburg 's recollection of this detail of
the meeting was not accurate.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees whose work performance and punctuality were
unsatisfactory, and inquired if the Union would
countenance this type of performance. Spazioso observed
that because of another assignment he could not meet with
Ginsburg immediately and Ginsburg terminated the
conversation on that note.40
d. Spazioso and Ben Ginsburg again converse
Subsequently, on Friday, March 18, Spazioso again
spoke with Ben Ginsburg by telephone. According to a
composite of the credited testimony of Ginsburg and
Spazioso, Spazioso again requested Ginsburg to extend
recognition to the Union by signing the paper to which he
had previously referred. The Union's letter of March 16
was also discussed during the course of this conversation
and Ginsburg replied that he desired to have his attorney
examine the letter. Spazioso stated that this was
unnecessary because the letter was self-explanatory, but
Ginsburg remained adamant, stating, in effect, that he was
entitled to seek legal advice. He identified his attorney as
Robert Gray.
e. The prestrike union meeting
On Sunday, March 20, Spazioso met with employees of
Respondent and informed them that if the Company did
not grant recognition to the Union he would call a strike.4 i
f. The March 22 recognition demand
On Tuesday morning, on March 22, Spazioso again
came to the plant premises . He arrived shortly before
8 a.m. and spoke with Alvin Ginsburg. According to a
composite of the credited testimony of Alvin Ginsburg and
Anthony Spazioso, Spazioso stated that he wanted
"somebody" to sign the recognition document, and Alvin
stated that his father would be the person to sign the
instrument . Spazioso responded that as the Union had not
received recognition , the employees were going to strike.
The conversation ended abruptly, upon Spazioso's
immediate departure from the store premise S.42
g. Robert Gray and Anthony Spazaoso converse
Thereafter on March 24, according to the credited
testimony of Robert Gray, Gray conversed with Anthony
Spazioso by telephone. Gray stated that the purpose of his
call was to inquire if the Union intended to file a
representation petition. Spazioso asserted that the Union
had no intention of doing so, stating that it was incumbent
upon the Respondent to come to the Union and to sit down
and bargain. He inquired if Gray had received the Union's
letter requesting bargaining which Ben Ginsburg had
stated he would transmit to Gray. Spazioso observed that
he had conversed with Ben Ginsburg and Ginsburg had
indicated that he had no objection to the Union. Gray
stated that he had received a similar impression but that
the strike of March 22 had given rise to difficulty by reason
of the fact that only 4 employees in a unit of 18 had
supported the strike. Gray asserted that, as a
consequence, Ben Ginsburg had concluded that his
employees who remained at work were not interested in
union representation. Gray again asked if the Union
intended to file a representation petition and Spazioso
answered that he did not intend to do so. Gray stated he
would contact Spazioso again.43
h. The Respondent files RM petition
The parties stipulated at the hearing that on March 25
in Case 3-RM-348 the Respondent filed a petition seeking
an election in a unit of truckdrivers, mechanics, yard men,
and clerks which petition, on May 10, was dismissed by
the Regional Director.
G. The Strikers Seek Reinstatement
On April 26, Aubrey Griffin, James Nathan, Alfred
Loya, and Lloyd Shuhart served on Respondent a written
document in which they stated their unconditional "offer
to return to work at [their] former jobs." The signature of
each was affixed to the document, as was that of Eugene
Loya.
The Respondent received this request on April 28.
40 With regard to the substance of this conversation , I credit
the testimony of Ben and Alvin Ginsburg However, I find that
they were mistaken as to the date of this conversation , and I find
that it did not occur on March 14, as Alvin Ginsburg testified It is
quite unlikely that, having conversed with Alvin Ginsburg on the
afternoon of March 14 , and having scheduled a tenative meeting
for Friday, March 18, Spazioso would initiate a call later the same
evening This is particularly so if, as Ben Ginsburg credibly
testified, Spazioso asserted his inability to immediately meet with
Ginsburg because of a conflicting engagement The more
reasonable explanation is that Spazioso called Ben Ginsburg at a
time when he could reasonably anticipate the return home of Ben
Ginsburg in an effort to give impetus to the Union 's recognition
and bargaining demands which had been served upon
Respondent
41 Alfred Loya places the meeting as having occurred the
Sunday before the strike , and adhered tenaciously to this
testimony I credit him He testified that this was the only meeting
between Spazioso and the employees of which he was aware
42 Alvin Ginsburg testified credibly that at the time of the
conversation in question his father was on the premises in the
house but that Spazioso did not request an opportunity to
converse with Ben Ginsburg , nor, because of the aggressive,
terse , and abbreviated nature of Spazioso' s demands, was an
opportunity for such a conversation accorded
43 I rely upon the testimony of Robert Gray and reject that of
Anthony Spazioso I do not credit Spazioso with respect to his
placement of the date of the conversation or his account of the
subject matter of the conversation Nor do I credit Spazioso to the
effect that his call to Gray was at his own initiative and not in
response to an earlier call from Gray When first interrogated by
the General Counsel during the General Counsel 's case in chief
concerning this conversation , Spazioso demonstrated, and,
indeed, conceded, a vagueness of recollection It was not until
called as a rebuttal witness that he demonstrated certitude
concerning the details of the conversation
I credit Spazioso to the extent of finding that during the
conversation he did raise some question concerning Gray's
receipt of the Union' s bargaining demand However, implicit in
Gray 's testimony is an underlying assumption that as Ben
(,insburg 's attorney he was fully apprised of the status of the
union demand upon the Respondent and, as a consequence, I
reject Spazioso's testimony that Gray informed him during this
telephone conversation that he had not received from Ginsburg
the Union's bargaining request letter of March 16
BRUNSWICK MEAT PACKERS 899
H. The Unfair Labor Practice Strike
1. The strike commences
Upon leaving the presence of Alvin Ginsburg the
morning of March 22, Spazioso conveyed to waiting
employees the information that Alvin Ginsburg had
refused to execute the recognition document. Thereafter,
four employees, Aubrey Griffin, James Nathan, Alfred
Loya, and Lloyd Shuhart, engaged in a strike and picketed
the plant premises. Herman Deveaux also participated in
the picketing. The balance of Respondent's employees,
including truckdrivers and mechanics, worked behind the
picket line.44
At the commencement of the strike the picket sign
carried by the pickets and displayed at places away from
the company premises read as follows: "Truck Drivers of
Ginsburg Do Not Receive Union Wages and Benefits.
Teamsters Local 294."
A week later, and for the period preceding the April 26
reinstatement request of the strikers, the following picket
sign was utilized at the plant premises: "Ginsburg Guilty
of Unfair Labor Practices. Company refuses to bargain
and fires Union supporters. Teamsters Local 294."
2. Respondent's telegraphic demand
Alvin Ginsburg credibly testified that on March'22 he
sent to the strikers, Aubrey Griffin, James Nathan, Alfred
Loya, and Lloyd Shuhart, the following telegram:
You are directed to report to work 8 a.m. Wednesday,
March 23, or you will be permanently replaced.
1. Conclusions
1. The appropriate unit
I find, upon the evidence of record, that on March 17 the
Union made a valid demand upon Respondent for
recognition and bargaining in a unit of all truckdrivers,
which unit, in the absence of a controlling history of
bargaining and any competing representation claim, is one
appropriate for the purposes of collective bargaining
within the meaning of the Act.45 While I find that the
Union did not specifically seek inclusion of the mechanic,
his inclusion in the appropriate unit is requisite in light of
the functional integration of his duties to those of the
drivers and significant community of interest factors.46
However, this inclusion does not alter the essential nature
of the unit , nor affect the Union's majority status'47 which,
I hereinafter find, it commanded on March 17.
In concluding and finding that the Union commanded a
majority status on March 17, I find, however, contrary to
the General Counsel, that Earl Simmons was a regular
part-time employee who must be included in the unit
herein found appropriate . Simmons had worked a
substantial number of hours during the first calendar
quarter of 1966 as well as during the preceding and
subsequent calendar quarters. Additionally, he had
substantial previous history of employment by
Respondent, and the record establishes the likelihood of
his subsequent employment by the Respondent during the
winter and spring months of the years to come. These
considerations require a finding, which I make, that Earl
Simmons is a regular part -time employee.48
Additionally, I find that, as Herman Deveaux was
discriminatorily discharged from his employment, he was
properly to be included in the unit . However, as Eugene
Loya and Melvin Smith were lawfully terminated prior to
March 17, they are excluded.
I find, contrary to Respondent, however, that employees
• John O'Brien, Peter Babulas, and Wilma Bleau, who at
pertinent times were employed as clerks in the general
store, and thus had duties dissimilar and not functionally
related to those of the truckdrivers and mechanics, need
not be included in the unit here found appropriate .49
As they are excluded on a community of interest and
dissimilarity of duty grounds, the question of the alleged
temporary or casual nature of the employment of John
O'Brien and Peter Babulas need not here be considered.
Thus, I find the unit here found appropriate was
comprised on March 17 of 15 employees.
2. The Union's majority status
I further find that the authorization cards of Guy Hoag,
Alfred Loya, James Nathan, Lloyd Shuhart, Aubrey
Griffin, Herman LaClair, and Herman Deveaux may be
counted in computing the Respondent's asserted majority.
No witness testified at the hearing as to the precise
circumstances under which Harold Woodward signed an
authorization card. However, Guy Hoag credibly testified
that he delivered a blank authorization card to Woodward
and that the following day Woodward delivered a signed
and otherwise completed card to him. The testimony of
Hoag establishes that this transpired on or about
February 23. The custody of the authorization card
purporting to be that of Woodward from the time of said
delivery by Woodward to Hoag, and by Hoag to Deveaux
and thence to Spazioso, is established by credible
evidence. In the circumstances, absent evidence
reflecting adversely upon the genuineness of the
signatures affixed thereto, the authenticity of the card of
Harold Woodward is sufficiently established to warrant its
inclusion in a computation of the Union's majority.50
However, as neither Eugene Loya nor Melvin Smith
retained status as employees on March 17, I do not include
their cards in determining the Union's majority.
In view of the foregoing , I find that the record
establishes that as of March 17, Respondent had been
designated as collective- bargaining representative by at
least 8 employees in a unit of 15.51
44 The foregoing is predicated upon the credited testimony of
Anthony Spazioso, as supported by that of Alfred Loya
45 E H Koester Baking Co , Inc , 136 NLRB 1006, Queen City
Transports, 141 NLRB 964, 973
46 See Queen City Transports, supra
47 E.g United Butchers Abattoir, Inc , 123 NLRB 946, 956,
American Rubber Products, Corp , 106 NLRB 73,76
48 See Motor Transport Labor Relations, Inc , 139 NLRB 70,
72, C T L Testing Laboratories, Inc , 150 NLRB 982, 984-985
44 A unit of truckdrivers and mechanics is not the only
appropriate unit of Respondent's employees, but it is an
appropriate unit, and the only unit which a labor organization was
seeking to represent.
5" See I Tattel and Son, 119 NLRB 910, 912, Hunter
Engineering Company, 104 NLRB 1016, 1020, cf Pizza Products
Corporation 153 NLRB 1265, 1269, Winn-Dixie Stores, Inc , 153
NLRB 273,306
Si It is therefore unnecessary to determine whether the alleged
membership of Joseph Gilbert in the Union as of March 17 need
be considered in arriving at the Union's majority status The
authorization card purporting to be his designation, containing no
signature, manifestly may not be regarded as a valid designation
298-668 0-69-58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The unlawful refusal to bargain
I further find that the Respondent 's refusal to recognize
and bargain collectively with the Union on and after
March 18 ,52 was based not upon a good -faith doubt of the
Union ' s majority status, but upon a rejection of the
principle of collective bargaining; and upon a further
consideration that to refuse negotiations would serve to
bring a successful culmination to the month-long
campaign of unlawful interrogation and coercion designed
to undermine the Union , upon which campaign the
Respondent embarked in learning of the desire of the
employees to organize . In context of this campaign after
receiving the Union's March 16 bargaining demand, Ben
Ginsburg on March 18 sought to delay recognition and
bargaining , and on March 24, through his attorney , sought
indefinitely to postpone it pending an election. In the
atmosphere created by its unlawful campaign and the
related unlawful discharge of Herman Deveaux, the
leading employee proponent of unionization , the erosion of
at least overt union allegiance of employees was
manifestly foreseeable. Respondent may not , then , defend
its refusal to grant recognition upon evidence establishing
the inability of the Union upon calling the March 22 strike,
to command the support of a majority of the employees
which it sought to represent . Nor, in the aforementioned
circumstances , does Respondent 's refusal to recognize
and bargain collectively with the Union find sanction in
Respondent 's abstinence from any unlawful conduct on
and after the date of the Union 's bargaining demand. In
circumstances , here found to exist , revealing affirmatively
an employer 's bad faith and manifesting its rejection of the
collective -bargaining principle , it is of no material
consequence that conduct calculated successfully to
undermine the union precedes rather than follows the
bargaining demand.53
4. The strike and the refusal to reinstate
I further find that the March 22 strike was caused by
Respondent ' s unlawful refusal to recognize and bargain
collectively with the Union, and that, as a consequence, it
was an unfair labor practice strike from its inception. In so
finding, I have evaluated the evidence revealing that the
picket sign utilized at the beginning of the strike was of the
variety typically used in an organizational effort . Whatever
the explanation for the use of this picket sign , the evidence
is convincing that at this point in time, the Union had a
recognition objective ; and the evidence is similarly
convincing , and I find, that the employees struck in
compliance with the decision reached at the union meeting
on March 20 to do so if, upon demand , Respondent refused
to recognize and bargain with the Union. I further find that
the Respondent's refusal to recognize and bargain with the
Union was the principal, if not sole, causative factor of the
strike.
Si I find no violation based on the statements or conduct of Ben
Ginsburg during his March 17 conversation with Anthony
Spazioso While I am of the opinion that at no time after the
receipt of the Union ' s March 16 bargaining demand did
Respondent intend to bargain in good faith with the Union, this
suspicion does not find requisite record substantiation until
consideration is given to the reticence of Ben Ginburg on
March 18 presaging Respondent 's refusal to recognize the Union
and enter into negotiations with it.
51 See Becker County Sand & Gravel Company, 157 NLRB 557,
I find also that, as the strike was an unfair labor practice
strike, in sending the telegram of March 22 to the strikers
demanding their return to work on March 23, Respondent
violated Section 8(a)(1) of the Act .54
Further , in refusing pursuant to their joint unconditional
request of April 26 to reinstate striking employees
Aubrey Griffin, James Nathan, Alfred Loya, and Lloyd
Shuhart, displacing, if necessary, all drivers hired on or
after March 22, Respondent violated Section 8 (a)(1) and
(3) of the Act.55
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'
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3 ), and (5) of
the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent has discriminated
against Herman Deveaux by discharging him on March 2;
and against Aubrey Griffin, James Nathan , Alfred Loya,
and Lloyd Shuhart by failing and refusing to reinstate
them to their former positions of employment immediately
upon their unconditional request for reinstatement, dated
April 26, 1966, I shall recommend that Respondent cease
and desist therefrom and offer to each of said employees,
save Aubrey Griffin who was reinstated on May 28,
reinstatement to his former or substantially equivalent
position of employment and make them whole for any loss
of pay they may have suffered because of the
discrimination against them , by payment to them of a sum
of money equal to that which they normally would have
earned in Respondent 's employ from the date of
discharge , or the date of their unconditional request for
reinstatement , as the case may be , to the date of
Respondent 's offer of reinstatement (or, in the case of
Aubrey Griffin, to the date of his actual reinstatement),
less net earnings, if any , during said period . Loss of pay
shall be computed upon a quarterly basis in the manner
established by the Board in F . W. Woolworth Company, 90
NLRB 289 , with interest at 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138 NLRB 716.
Joy Silk Mills, Inc , 85 NLRB 1263, enfd in relevant part 185 F 2d
752 (C A D C ), cert denied 341 U S 914, cf. Aaron Brothers,
Company of California, 158 NLRB 1077, John P Serpa, Inc, 155
NLRB 99; Houston Sheet Metal Contractors Association, 147
NLRB 774, Corrosion Coating Company of West Texas, Inc., 157
NLRB 166
5i US Sorties Corporation , 135 NLRB 818, 825
55 See, e .g, Webb Fuel Company, 135 NLRB 309, enfd 308
F 2d 936 (C.A. 6) As found above , the record reveals that Aubrey
Griffin was reinstated on May 28
CONCLUSIONS OF LAW
BRUNSWICK MEAT PACKERS 901
1. The Respondent, Ben Ginsburg, Inc. d/b/a
Brunswick Meat Packers, Brunswick Tallow Co., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the At.
2. Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Herman Deveaux on March 2, and by
failing and refusing to reinstate to their former or
substantially equivalent positions of employment
employees Aubrey Griffin, James Nathan, Alfred Loya,
and Lloyd Shuhart (the former until May 28) despite their
April 26, 1966, unconditional offer to return to work, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
4. Since March 17, the Union has been at all material
times the statutory bargaining representative of
Respondent's employees in the following appropriate unit
for purposes of collective bargaining: all truckdrivers and
mechanics employed at Respondent's Brunswick, New
York, place of business, excluding all other employees,
office clerical employees, professional employees, guards,
and supervisors as defined in the Act.
5. By refusing on and after March 17, 1966, to recognize
the Union as the collective-bargaining representative of
Respondent 's employees in an appropriate unit, and to
bargain collectively with the Union, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
6. By interrogating employees concerning their union
activities , by giving its employees the impression that their
union activities are under surveillance , and by threatening
employees for engaging in union activities the Respondent
has engaged in unfair labor practices within the meaning
of Section 2(6) and (7) of the Act.
7. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby recommended that Respondent,
Ben Ginsburg, Inc. d/b/a Brunswick Meat Packers,
Brunswick Tallow Co., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 294,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America or any other labor
organization, by discharging or otherwise discriminating
against employees because they have engaged in union or
concerted activity or seek to bargain collectively through a
representative of their choosing.
(b) Refusing to bargain collectively, upon request, with
the Union as the statutory collective-bargaining
representative of its employees in a unit appropriate for
the purposes of collective bargaining.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist the Union or any other
labor organization of their choosing, to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or
to refrain from any such activity.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Offer Herman Deveaux, James Nathan, Alfred Loya,
and Lloyd Shuhart immediate and full reinstatement to
their former or substantially equivalent positions of
employment, without prejudice to their seniority or other
rights and privileges, and make them, together with
Aubrey Griffin, whole for any loss they may have suffered
by reason of the discrimination against them in the manner
set forth in the section entitled "The Remedy."
(b) Upon request bargain collectively with the Union as
the bargaining representative of the employees in the
above-described appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel cards and reports, and all other
records necessary to analyze the amount of backpay due
under this Recommended Order.
(d) Post at its premises at Brunswick, New York, copies
of the attached notice marked "Appendix B."5fi Copies of
said notice, to be furnished by the Regional Director for
Region 3, after being duly signed by Respondent's
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.57
se In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 3, in writing, within 10 days from the
date of this Order, what steps Respondent has taken to comply
herewith "
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership in Local 294,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, by discharging or otherwise
discriminating against employees in regard to their
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hire or tenure of employment or any term or condition
of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization, to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
WE WILL offer Herman Deveaux, James Nathan,
Alfred Loya, and Lloyd Shuhart immediate and full
reinstatement to their former or substantially
equivalent positions of employment, without
prejudice to their seniority or other rights and
privileges, and make them, together with Aubrey
Griffin who was reinstated on May 28, 1966, whole for
any loss of wages that they may have suffered as a
result of our discrimination against them because of
their union or concerted activities.
WE WILL bargain collectively, on request, with
Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of employees in the
bargaining unit described below with respect to
wages, rates of pay, hours of employment, or other
terms and conditions of employment, and, if an
understanding is reached, embody such
understanding in a signed agreement. The bargaining
unit is:
All truckdrivers and mechanics of Ben Ginsburg,
Inc. d/b/a Brunswick Meat Packers, Brunswick
Tallow Co., employed at the Company's
Brunswick, New York, place of business,
excluding all other employees, office clerical
employees, professional employees, guards, and
supervisors as defined in the Act.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members of any labor
organization, 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, as amended.
BEN GINSBURG, INC. D/B/A
BRUNSWICK MEAT PACKERS,
BRUNSWICK TALLOW CO.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify any of the above-named employees
if presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 4th Floor, 120
Delaware Avenue, Buffalo, New York, Telephone
842-3100.