Capitol Smoked Fish Corp.

National Labor Relations Board - Board Decisions

Jan 12, 1954

107 N.L.R.B. 752 (N.L.R.B. 1954)

752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. All production and maintenance employees in the New
Hyde Park, New York, plant of Hamilton Art Metal Corporation,
excluding suprvisors as defined in the Act.5
2. All employees of Simplex Tool and Die Corporation at
New Hyde Park, New York, including diemakers, junior die-
makers, diemaker's helpers, die repairmen, machinists, lathe
men, and tool crib attendants , but excluding supervisors as
defined in the Act.
If the employees in group 2 select the Intervenor for a
bargaining agent, the Board finds that these employees con-
stitute a separate appropriate unit; and in these circumstances
if the employees in group 1 select the Petitioner as their
bargaining representative, the Board finds that the employees
in group 1 also constitute an appropriate unit. If the employees
in the 2 groups select the Petitioner as their bargaining rep-
resentative, the Board finds that together they constitute an
appropriate unit. The Regional Director conducting the elec-
tions directed herein is instructed to issue a certification of
representatives in the unit or units which may result from
the elections.
[Text of Direction of Elections omitted from publication.]
5 The Employer requested the Board to rule on the supervisory status of 3 shift leadmen
in the casting room, whom the Petitioner contended should be included in the unit. Each of
these leadmen is in charge of his department during his shift and is responsible for the
performance of 15 to 18 men. As they responsibly direct the work on their shift, assign and
reassign duties, check work performed, and maintain order, we find that these leadmen are
supervisors, and accordingly they are excluded from the unit. West Virginia Pulp and Paper
Company, 96 NLRB 871.
CAPITOL SMOKED FISH CORP. and FISH, SEA FOOD.
SMOKED FISH & CANNING WORKERS UNION OF GREAT-
ER NEW YORK, LOCAL 635, AMALGAMATED MEAT
CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA,
AFL. Case No. 2-CA-2946. January 12, 1954
DECISION AND ORDER
On September 8, 1953, Trial Examiner Herbert Silberman
issued his Intermediate Report in the above-entitled pro-
ceeding, finding that the Respondent had engaged in and was
engaging in unfair labor practices in, violation of Section 8
(a) (1) and (3) of the Act and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
107 NLRB No 155
CAPITAL SMOKED FISH CORP 753
committed. The rulings are hereby affirmed.' The Board has
considered the Intermediate Report, the Respondent' s excep-
tions and brief, and the entire record in the case and finds
merit in the Respondent' s exceptions insofar as they allege,
as grounds for the dismissal of the complaint, that Lubitz
was not an employee within the meaning of the Act and was
not, therefore, entitled to the benefits of Sections 7 and 8 (a)
thereof.
In support of its contention that Lubitz was not an employee
within the contemplation of the Act, the Respondent relied
u,pon the testimony of its president, Fertel. He testified that
Lubitz was employed under an oral agreement which provided
that Lubitz would work for a trial period to enable Lubitz and
Fertel to determine whether or not they should become equal
owners of the Respondent corporation.2 Lubitz testified to the
contrary, denying the existence of any such agreement and
claiming that his relationship to the Respondent was that of
an ordinary employee. The Trial Examiner failed to resolve
this conflict in testimony because, in his view, even if Lubitz
was, in fact, employed under the circumstances related by
Fertel, such relationship would not remove Lubitz from the
protection of Sections 7 and 8 (a) of the Act. We do not agree.
With respect to Lubitz relationship to the Respondent, Fer-
tel testified that Lubitz approached him with a proposal con-
templating Lubitz' purchase of 50 percent of the Respondent's
stock and that he and Lubitz then agreed that the latter would
work for the Respondent for a trial period; that if the work
relationship proved satisfactory, Lubitz would become a full
business partner with a 50 percent stock ownership in the
Respondent; that during the trial period, Lubitz would receive
$125 per week (the same salary Fertel drew from the corpo-
ration) and would work the same number of hours as Fertel
(approximately 90 hours per week); that Lubitz would deposit
$ 1,000 with Fertel as a manifestation of good faith; and that
specific arrangements for establishing a "partnership" would
be left for further discussion in the event of mutual acqui-
esence.
Fertel's wife partially corroborated this testimony by testi-
fying that Lubitz telephoned on two occasions to talk to her
husband prior to the day Fertel returned Lubitz' calls and
arranged for a meeting. She also stated that she heard the
initial portion of the conversation between her husband and
Lubitz at this meeting and that she heard Lubitz say he wanted
to become a "partner" in the Respondent corporation.
1The Respondent excepted to the Trial Examiner's refusal to strike from the record the
testimony of witness Masour who refused to state, on cross-examination, whether he had
ever been convicted of a crime, and excepted further to the action of the Trial Examiner
in crediting Masour's testimony relating to the merits of the case. In the light of our dispo-
sition of this case, we find it unnecessary to pass upon the Trial Examiner's ruling in this
regard.
2 The Respondent is a close corporation, wholly owned by Fertel and his wife.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lubitz, on the other hand, testified that Fertel approached
him with a job offer, that he, Lubitz, was hired as an ordinary
employee at a $125 weekly salary for a40-hour week, and that
he had loaned $1,000 to Fertel who was short of funds.
The record shows that Lubitz turned over $1,000 to Fertel;
that, at about the time of Lubitz' discharge, the money was
returned to him without interest; that Lubitz and Fertel each
worked 90 hours a week 3 and was paid the same rate; that
during the first 5 weeks he worked, Lubitz received no regular
salary, receiving instead a lump sum payment at the end of
the fifth week. In the light of these circumstances and Mrs.
Fertel's testimony, we are satisfied that Fertel's testimony
is more consistent with the actual facts than is that of Lubitz.
We accordingly credit Fertel's version of Lubitz' relationship
to the Respondent and conclude that an ordinary employer-em-
ployee relationship was not contemplated when Lubitz associ-
ated himself with the Respondent, nor did such a relationship
ever in fact exist. Accordingly, we find that Lubitz was not an
employee within the meaning of the Act.
In view of the above conclusion and the absence of any show-
ing that the allegedly illegal actions of Fertel were directed
to, or involved, any of the Respondent's rank-and-file em-
ployees, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
3On ccoss-examination, Lubitz admitted that he worked 90 hours a week, rather than 40
hours as he had previously testified on direct.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed by Fish, Sea Food, Smoked Fish & Canning Workers Union of
Greater New York, Local 635, Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL, herein called the Union, the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for the Second Region (New York, New York), issued
his complaint on April 23, 1953, against the Respondent, Capitol Smoked Fish Corp., alleging
that the Respondent had engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge, complaint, and
notice of hearing thereon were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleges, in substance, that the
Respondent on or about January 25, 1953, discharged Jacob Lubitz because he joined or
assisted the Union, in violation of Section 8 (a) (1) and (3) of the Act; and that the Respondent
from December 19, 1952, by various acts set forth in the complaint, has interfered with,
restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of
the Act, in violation of Section 8 (a) (1) of the Act. The Respondent denied that it committed
the alleged unfair labor practices.
Pursuant to notice, a hearing was held on July 30 and 31, 1953, at New York, New York,
before Herbert Silberman, the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. All parties were represented by counsel. Full opportunity to be heard, to
examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to
present oral argument was afforded all parties. The General Counsel's motion, made at the
CAPITOL SMOKED FISH CORP. 755
hearing, to amend the pleadings to reflect the correct name of the Respondent was granted.
The Respondent's motion, made at the conclusion of the General Counsel's case-in-chief, to
dismiss paragraph 11 (a) and 11 (b) of the complaint was denied. At the conclusion of the
entire case, the Respondent renewed its motion to dismiss the allegations contained in para-
graph 11 of the complaint and also moved to dismiss the entire complaint. Disposition of
these motions was reserved and is made by the findings, conclusions, and recommendations
in this Intermediate Report and Recommended Order. The parties waived their right to sub-
mit briefs and proposed findings of fact and conclusion of law to the undersigned.
Upon the record in the case and from my observation of the witnesses, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Capitol Smoked Fish Corp., a New Jersey corporation, is engaged at its plant in Newark,
New Jersey, in the manufacture, sale, and distribution of smoked fish and related products.
During the year ending 1952, which period is representative of all times material herein,
it purchased fish and other products valued in excess of $100,000, of which approximately
50 percent was shipped to Respondent's Newark plant from points outside the State of New
Jersey. During the same period, Respondent sold products , manufactured and prepared at
its Newark plant, valued in excess of $125,000, of which products valued in excess of $ 100,000
were shipped from its Newark plant to points outside the State of New Jersey.
Respondent admits that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Fish, Sea Food, Smoked Fish & Canning Workers Union of Greater New York, Local 635,
Amalgamated Meat Cutters & Butcher Workmen of North America , AFL, is an organization
in which employees participate and which exists for the purpose of dealing with employers
concerning grievances , labor disputes , wages , rates of pay, hours of employment , and con-
ditions of work, and admits to membership employees of the Respondent.
Ill. THE UNFAIR LABOR PRACTICES
A., The relationship between Lubitz and Respondent
Jacob Lubitz worked for the Respondent for a period of about 8 weeks from sometime in
November 1952 until January 25, 1953. The Respondent contends, as a defense to the com-
plaint herein, that Lubitz was not an employee within the meaning of the Act. Lubitz began
working for Respondent on a Monday in November 1952. An understanding concerning the
terms and conditions of Lubitz' employment was reached during a conversation, held on the
preceding day, between Lubitz and Benjamin Fertel, Respondent's president. There is sharp
conflict in the testimony of Lubitz and Fertel concerning the substance of their agreement.
According to Lubitz, he was hired by Fertel to work until the middle of April 1953 as an
"all-around man" at Respondent's Newark plant at a net weekly salary of $125, after pay-
ment of social security and withholding taxes, for a 5-day, 40-hour week. On the other hand,
according to Fertel, his conversation with Lubitz in November 1952 centered about a dis-
cussion of the possibility of Lubitz becoming Fertel's partner in the business of the Respond-
ent. Fertel testified that the understanding reached between Lubitz and himself was that
Lubitz would work for the Respondent for a trial period i and if Fertel found Lubitz satis-
factory, they would become partners. During the trial period Lubitz was to receive the same
salary from the Respondent as Fertel, which was a net amount of $ 125 per week, and was
expected to work about the same number of hours. Arrangements concerning the investment
in the business to be made by Lubitz was left for future discussion, as well as arrangements
concerning a merger with a business operated by Lubitz during the summer season in Monti-
cello, New York. However, Lubitz was to make an immediate capital contribution of $1,000
iFertel testified on direct examination that the trial period was to be a few weeks. On
redirect examination he testified that the trial period was to extend until the middle of
April 1953.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which would be returned to him in the event the partnership arrangement was not consum-
mated.
It is unnecessary to resolve the foregoing conflict in testimony. Even if I were to credit
in its entirety Fertel's testimony concerning his conversation with Lubitz in November 1952,
I would find, nevertheless, that Lubitz was an employee of the Respondent during the times
involved in this proceeding. According to Fertel, the so-called partnership was not to begin,
if at all, until several weeks or months after Lubitz began working for the Respondent. Fertel
used the words "partner" and "partnership" loosely. Respondent is a corporation and its
capital stock is closely held by Fertel and his wife. Respondent's counsel, in his oral argu-
ment, explained that Fertel is not sophisticated in the use of legal language and that Fertel,
in referring to a "partnership" with Lubitz, meant that Lubitz would acquire stock in the
Respondent, either by issuance of treasury stock to him or by transfer to him of stock held
by Fertel and his wife. This development depended upon both parties finding that they were
able to get along with one another and reaching an agreement concerning the investment
Lubitz would make in the Respondent. It is conceded that, during the period he worked for
the Respondent, Lubitz was neither a stockholder nor an officer. Furthermore, while he
worked for the Respondent, Lubitz exercised no managerial or supervisory functions.? There
is no contention that Lubitz was an independent contractor. Accordingly, I find that during
all times material herein Lubitz was an employee of the Respondent within the meaning of
the Act.
B. The events preceding Lubitz' discharge
During the times material herein Respondent employed at its plant, in addition to Fertel
and Lubitz, two other persons who are referred to in the testimony as Steve and Bolger or
Boulo. Fertel was president of Respondent and appears to have been the only person respon-
sible for management of Respondent's business and for the supervision of Respondent's
employees.
Lubitz testified that while he worked for the Respondent, he went to the fish market on
Monday and Friday mornings of each week. There he regularly met Sol Pruzan, president
of the Union. Sometime in November, Lubitz had a conversation with Pruzan in which they
discussed organization of the employees of Respondent. The same day Lubitz told Steve and
Bolger that he had been advised by Pruzan to organize Respondent's employees and, at that
time and on several other occasions, urged them to join the Union. During the morning of
December 19, 1952, Pruzan and Salzman, another union official, visited the premises of Re-
spondent. Fertel was not present Lubitz signed an application for membership in the Union
and gave Pruzan $ 20 on account of the initiation fee.3 Lubitz further testified that when
Fertel returned to the plant Steve told him about the visit of the union officials. During the
succeeding conversation, Fertel said to Lubitz:
I don't want no union in my place. I will never allow it. This place should be a union
shop, I would quicker close up the business. And anybody who becomes to be a union
man will lose his job in my place.
During the same conversation Fertel asked Lubitz if he had signed an application for
membership in the Union and Lubitz admitted that he had.
Lubitz customarily drove home from work with Fertel. Lubitz testified that while driving
home the same evening he had a further conversation with Fertel concerning the Union in
which Fertel said he would never sign a contract with the Union and tried to persuade Lubitz
to drop his application for membership in the Union. A few days later, according to Lubitz
he had another conversation with Fertel while they were driving home during which Fertel
said:
2 Respondent's counsel, in his oral argument, admitted that he was unable to prove that
Lubitz exercised any supervisory functions. However, he argued that Lubitz was a potential
stockholder or a temporary stockholder and, therefore, he was a supervisor because he was
then in the same position as a stockholder would be. I find this argument unconvincing.
3 Sol Pruzan corroborated the testimony of Lubitz concerning the visit of the union offi-
cials at the premises of Respondent on December 19, 1952.
CAPITOL SMOKED FISH CORP. 757
Don't worry , if you become to be a union man you will not work for me . I am not afraid
for the union . I have got my smoker [Steve], and Boujo, the wet worker , give me signa-
tures they will not go into the union , and as long as I have got the two men to smoke the
fish and prepare , I will not sign up with the union.
On Christmas eve of the same year Lubitz had another conversation with Fertel. According
to Lubitz , Fertel offered to reimburse him for the $ 20 he paid on account of the union initi-
ation fee if he were to resign and threatened him with the loss of his job if he stuck with the
Union . When Lubitz indicated he would not resign from the Union , Fertel said there was a
young fellow he intends to hire to replace Lubitz , but he wants Lubitz to teach him to pack
and grade fish . About 1 or 2 weeks later a young man was hired whom , Lubitz testified he
tried to teach as much as possible.
Irving Masour , a business agent for the Union , called on behalf of the General Counsel,
testified that on December 22, 1952, he visited Respondent 's plant . He met Fertel there and
handed him a contract saying, "We want you to look at it and want you to sign ." Masour then
walked to the back of the plant and spoke to Steve about signing an application for member-
ship in the Union . Masour filled out an application for Steve and asked him to sign it. Steve
said he wanted to speak to the boss first and left Masour. When he returned , Steve refused
to sign the application . Masour then left Steve and spoke again to Fertel asking why he had
told Steve not to sign the application . Fertel replied , "Look, I did tell him that. We are only
a couple of men here . What do we need it [ the Union] for? Let is forget the whole thing."
Fertel also said he was not interested in talking about the contract . 4 Although these remarks
directed to Masour , a union official not employed by the Respondent , cannot be considered
as violating Section 8 (a) (1) of the Act,5 they corroborate Lubitz' testimony concerning
Fertel 's union animus.
Sol Pruzan , the Union 's president , testified that on December 29, 1952, Fertel telephoned
him. Fertel said that Masour had been at the plant and left a contract and asked if he was re-
quired to sign the agreement . Pruzan replied in the affirmative . Fertel then said, "Well,
supposing we do it this way, supposing I pay the initiation fee and pay the dues and forget
the contract" " Pruzan turned down this offer. Although this testimony of the union president,
who is not in Respondent's employ , does not support a finding of an independent violation of
Section 8 (a) (1) of the Act, nevertheless , it tends to corroborate Lubitz' testimony that
Fertel made him a similar offer .6
In many material respects the foregoing testimony given by the General Counsel's wit-
nesses was denied by Fertel . Relative to Lubitz ' testimony concerning the visit of the un-
ion officials at the plant on December 19, Fertel testified that Lubitz told him that Pruzan
and Salzman had been at the plant . However, Fertel denied that Lubitz told him on that
occasion or at any other time that he was a member of the Union . Fertel denied that he
advised any employee as to whether he should or should not sign an application for member-
ship in the Union . With reference to Masour 's testimony , Fertel denied he ever told anybody
that he advised an employee not to sign an application for membership in the Union . Fertel
admitted he discussed the Union with Lubitz on occasions when they were driving home to-
gether and Lubitz told him the Union had been attempting to organize the plant . Fertel, how-
ever, testified that in these conversations Lubitz would "curse the hell out of every one of
them union officials ," and he was told by Lubitz that when Lubitz owned a business in New-
4Counsel for the Respondent moved to strike all the testimony of Irving Masour on the
ground that Respondent was denied a full cross-examination of the witness. Decision on the
motion was reserved . At the end of his cross - examination of Masour , Respondent's counsel
asked the witness whether he ever had been convicted of a crime . The witness refused to
answer the question on the ground that an answer to the question may tend to degrade him
The purpose of the question was to impeach the general credibility of the witness The
question did not relate to any matter in issue in the proceeding . The witness answered all
other questions asked him on both direct and cross- examination. He testified calmly, simply,
seriously , directly , and without evasion . The witness in giving his testimony impressed me
as being forthright and truthful . Assuming that had the witness answered the question re-
ferred to above he would have answered it in the affirmative , I would still credit Masour's
testimony. Accordingly , I deny Respondent ' s motion to strike the testimony of the witness,
Irving Masour.
5Parkside Hotel , 74 NLRB 809 , 810; Wingert Contracting Co., Inc., 72 NLRB 244.
6Footnote 5, supr
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port Street "they [union officials] stole a contract out of his office, and he had a lot of trouble
way back then, there." Fertel also denied that he had a conversation with Lubitz about
training a young man to take Lubitz' place, although Ferrel admitted that he had hired one,
Al Sokowski, as a chauffeur, but not as a replacement for Lubitz.
Fertel contradicted Masour's testimony concerning the latter's visit to Respondent's
plant on December 22, 1952. Fertel denied seeing Masour at any time during November and
December 22, 1952. With reference to Pruzan's testimony, Fertel also denied that he had any
conversation with Pruzan concerning the union contract. According to Fertel, Masour left
a contract with him in August 1952 and he spoke to Salzman about the contract in November
1952.
C. The discharge
On Sunday, January 25, 1953, Fertel telephoned Lubitz and told him not to report to work
the next day. According to Fertel, Lubitz' work was satisfactory during the early weeks of
his employment.7 However, after 5 or 6 weeks, Fertel began to find fault with Lubitz. Ac-
cording to Fertel: (1) Customers obtained by Lubitz were taking unjustified discounts when
they paid their bills; (2) Lubitz was dirty which offended the retail trade; (3) entries made
by Lubitz in the books were illegible; (4) Lubitz was unable to read scales correctly so that
Fertel received complaints from jobbers supplied by Respondent; and (5) towards the end of
January there was a $20 shortage in the cash register which Fertel attributed to an error
by Lubitz.
On January 15 or 16, Fertel returned to Lubitz the $1,000 which he had previously received
from Lubitz. On direct examination Fertel testified that when he returned the $1,000 to
Lubitz he said to Lubitz:
Here is your check. You are not for me. Let's be friends. You know me since I am a
kid, let's go away the same way you came. I don't want to be your partner. Go be alone,
the way it was all the time.
However, on redirect examination, Fertel testified that Lubitz was not discharged when the
$1,000 was returned to him, but was discharged on January 25, 1953, more than 1 week
later. In further contradiction of the testimony quoted above, Fertel also testified that he had
no conversation with Lubitz concerning the termination of the latter's employment when he
returned the $1,000 or at any time during the 2 weeks preceding Lubitz' discharge. On 2
occasions during this 2-week period Fertel asked Lubitz to come to his home. Lubitz never
called in response to these invitations. Finally, on January 25, 1953, Fertel telephoned
Lubitz and told Lubitz, "It is no go between us ... and I will get along without you." Lubitz
did not report to work after this conversation.
With respect to the discharge Lubitz testified only that about 9 p. m. on January 25, 1953,
Fertel telephoned him and said:
Don't go tomorrow morning in the market . I don't need you no more. Al is very pre-
pared to take your job, and I don 't need you no more. Don't come no more to work.
D. Concluding findings
The determination of the issues in this proceeding rests largely upon resolving the credi-
bility of the testimony of Lubitz and Fertel concerning conversations between them on occa-
sions when no third person was present. Lubitz, although unable to recall the dates on which
various events about which he was questioned occurred and the details of various transac-
tions, nevertheless, impressed me as having tried within the limitations of his vocabulary
7 Fertel's testimony in this regard was:
Q. At the beginning was his work satisfactory, Mr. Fertel9
A Partly, yes,
Q. Did there come a time when you found fault with his work?
A. I did.
Q. About when was that?
A Oh, about five or six weeks.
CAPITOL SMOKED FISH CORP. 759
and memory to answer truthfully the questions asked him. On the other hand, Benjamin Fertel
was argumentative on cross -examination , positive in some of his answers , evasive in his
answers to other questions , and self-contradictory in several respects . Furthermore , Lubitz'
version of the various events connected with the alleged unfair labor practices are more con-
sistent with such facts as are undisputed than is Fertel 's version . Also, in several respects
Lubitz' testimony is corroborated by the testimony of Masour and Pruzan, who as witnesses
in this proceeding answered all questions asked them directly , simply, and without evasion.
Upon due consideration of the demeanor of Lubitz and Fertel while testifying and the plausi-
bility of their respective testimony , I credit the testimony of Lubitz set forth in sections B
and C , above, and discredit those portions of the testimony of Fertel which are in conflict.
I find, therefore , that the Respondent has violated Section 8 (a) (1) of the Act by reason
of the following conduct of its president , Benjamin Fertel:
1. On December 19, 1952, questioning Lubitz as to whether he had signed an application
for membership in the Union (Syracuse Color Press , Inc., 103 NLRB 377.)
2. On 3 different occasions , 2 occuring on December 19, and 1 occurring several days
thereafter , telling Lubitz , in effect , that Respondent would never recognize the Union or sign
a collective-bargaining contract with the Union (Augusta Bedding Company, et ano., 93 NLRB
211.)
Inasmuch as the allegations in the complaint concerning violations of Section 8 (a) (1) of
the Act, independent of the discharge of Lubitz , are specifically limited to conduct involving
interrogation of employees and telling employees that Respondent would never recognize or
sign an agreement with the Union , I shall make no findings as to whether other conduct of
the Respondent also constitute violations of Section 8 (a) (1) of the Act. (Tennessee Coach
Company, 84 NLRB 703, 729 ; enfd. den. 191 F. 2d 546 (C. A. 6).)
As to Lubitz ' discharge : Respondent does not contend that Lubitz was discharged because
the agreed term of his employment had expired or because of incompetency or lack of in-
dustry.8 On the contrary , it is admitted that Lubitz worked between 90 and 100 hours per
week . Fertel testified that he was satisfied with Lubitz during the first 5 or 6 weeks. There-
after, he began to find fault with Lubitz and testified to 5 factors which prompted him to
discharge Lubitz . Considering these alleged reasons for discharging Lubitz : (1) As to the
fact that customers obtained by Lubitz were deducting unjustified discounts from their bills,
Fertel testified that he said to Lubitz, "I don't want to work for nothing , Yonkel[Lubitz].
Let's give up some of them customers ." Fertel did not criticize Lubitz for not obtaining
more suitable customers . And it does not appear from the record that Lubitz was expected
to obtain customers . (2) As to the $ 20 shortage referred to by Fertel , the latter testified
that the shortage occurred towards the end of January 1953 , and that he believed Lubitz was
unaware of the shortage until it was called to his attention by Fertel . Thus, Fertel was not
implying that this incident was a reflection upon Lubitz ' honesty . These 2 factors do not
appear to offer substantial reason for discharging Lubitz.
Two additional factors mentioned by Fertel were that Lubitz' entries in the books were
illegible and he could not read scales correctly . The Respondent does not explain in what
manner Lubitz' handwriting and reading worsened after the first 5 or 6 weeks of Lubitz'
employment during which time his work was satisfactory . As the final reason , Fertel stressed
most strongly that Lubitz was dirty . Here too , there is no explanation as to the manner in
which Lubitz ' personal habits changed after the first 5 or 6 weeks of his employment.
It appears from Fertel 's testimony that he decided to terminante Lubitz ' employment
about 2 weeks before the actual discharge . Also, Fertel testified that Lubitz ' services were
satisfactory during the first 5 or 6 weeks . Thus , since Lubitz worked for the Respondent a
total of about 8 weeks , within a period of about 1 week the unsatisfactory qualities on the part
of Lubitz became apparent and Fertel decided to discharge him. Qualities , such as hand-
writing, ability to read scales , and personal cleanliness are not characteristics which nor-
mally change abruptly . Further , Fertel never criticized Lubitz on account of the latter's
handwriting or ability to read scales . I do not, therefore, believe that these reasons signifi-
cantly motivated Fertel's decision to discharge Lubitz.
In view of my findings that Fertel was hostile towards the Union, knew of Lubitz ' member-
ship in the Union , attempted to induce Lubitz to resign from the Union , threatened to discharge
him if he did not resign, and the absence of satisfactory explanation for Lubitz ' discharge, I
tRespondent contends that there was no discharge but merely a termination of an inchoate
partnership arrangement . However , because I find that Lubitz was an employee of Respondent,
the involuntary termination of his employment was a discharge.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further find that Respondent discharged Lubitz because he joined and supported the Union
and thereby has violated Section 8 (a) (3) and (1) of the Act
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III4 above, occurring in connection
with the operations of the Respondent described in section I, above, have a close , intimate,
and substantial relation to trade, traffic , and commerce among the several States and tend
to led to labor disputes burdening and obstructing commerce and the free flow thereof
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices , it will be
recommended that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act
Because Lubitz was hired by Respondent to work only until about April 15, 1953, it will not
be recommended that the Respondent offer Lubitz reinstatement to his former , or a substan-
tially equivalent , position . However, it will be recommended that the Respondent make Lubitz
whole for any loss of pay he may have suffered , by payment to him of a sum of money equal
to that which he normally would have earned as wages from the date of his discriminatory
discharge to April 15, 1953, less his net earnings during said period . Said loss of pay shall
be computed in the manner established by the Board in F. W. Woolworth Company, 90 NLRB
289 It will also be recommended that the Respondent , upon request, shall make available to
-the Board and its agents all payroll and other records to facilitate the determination of the
amount due
The findings made in this case indicate a consistent purpose on the part of the Respondent
to defeat self-organization of its employees . I am persuaded that the unfair labor practices
committed are related to other unfair labor practices proscribed by the Act and that the
danger of their commission in the future is to be anticipated from the Respondent ' s conduct
in the past Accordingly, it will be recommended that the Respondent cease and desist from
in any manner infringing upon the rights of employees guaranteed them in Section 7 of the
Act
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1 Capitol Smoked Fish Corp is and at alitimes relevant herein was engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act
2. Fish, Sea Food, Smoked Fish & Canning Workers Union of Greater New York, Local
635, Amalgamated Meat Cutters & Butcher Workmen of North America , AFL, is a labor
organization within the meaning of Section 2 -(5) of the Act
3 By discharging Jacob Lubitz and thereby discouraging membership in the above-named
labor organization , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act
4 By interfering with, restraining, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act
5 The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
CAPITOL SMOKED FISH CORP. 761
WE WILL NOT interrogate our employees regarding their union membership or
activities , or threaten or warn them against union membership or activity.
WE WILL NOT discourage membership in Fish, Sea Food, Smoked Fish & Canning
Workers Union of Greater New York , Local 635 , Amalgamated Meat Cutters & Butcher
Workmen of North America , AFL, or any other labor organization of our employees,
by discharging any of our employees , or in any other manner discriminating against
them in regard to their hire, tenure of employment , or any term or condition of em-
ployment.
WE WILL NOT in any manner interfere with, restrain , or coerce our employees in
the exercise of their right to self-organization, to form labor organizations , to join or
assist Fish , Sea Food, Smoked Fish & Canning Workers Union of Greater New York,
Local 635 , Amalgamated Meat Cutters & Butcher Workmen of North America , AFL, or
any other labor organization , to bargain collectively through representatives of their
own choosing , and 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 activi-
ties except to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized in Section 8
(a) (3) of the Act.
WE WILL make whole Jacob Lubitz for any loss of pay he may have suffered by reason
of his discharge.
CAPITOL SMOKED FISH CORP.,
Employer.
Dated . ............... By............................................................................................. .
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
BRASWELL MOTOR FREIGHT LINES and LOCAL UNION NO.
745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF A-
MERICA, AFL. Case No. 33-CA-192. January 12, 1954
DECISION AND ORDER
On August 4, 1953, Trial Examiner Wallace E. Royster
issued his Intermediate Report in the above - entitled proceed-
ing, finding that the Respondent had engaged in and was engag-
ing in certain unfair labor practices, and recommending that
it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report at-
tached hereto. The Trial Examiner also found that the Respond-
ent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those
allegations. Thereafter, the General Counsel and the Respond-
ent each filed exceptions to the Intermediate Report and sup-
porting briefs.
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 Intermediate Report, the exceptions , the briefs,
107 NLRB No. 154.