Deena Artware, Inc.

National Labor Relations Board - Board Decisions

Jul 6, 1951

95 N.L.R.B. 9 (N.L.R.B. 1951)

DEENA ARTWARE, INCORPORATED 9
labor force . Although the seasonal employees work in close contact
with the regular employees , we are of the opinion that their tenure
of employment is not sufficiently regular or substantial to entitle them
to participate in the election , and accordingly , we find that they are
ineligible to vote.3
[Text of Direction of Election omitted from publication in this
volume.]
8 Gerber Products Company, supra; The urchin Can Company, 88 NLRB 726.
DEENA ARTWARE , INCORPORATED and UNITED BRICK AND CLAY WORK-
ERS OF AMERICA , AFFILIATED WITH TFIE AMERICAN FEDERATION OF
LABOR. Cabe No. 9-CA-44. July 6, 1951
Supplemental Decision
On October 25, 1949, the National Labor Relations Board, herein
called the Board, issued its Decision and Order in this case,' in which
it found that Deena Artware, Incorporated, herein called the Re-
spondent, had engaged in and was engaging in certain unfair labor
practices affecting commerce, and ordered the Respondent to cease
and desist therefrom and take certain affirmative remedial action.
The Board thereafter petitioned the United States Court of Ap-
peals for the Sixth Circuit to enforce its Order against the Respond-
ent. On October 12, 1950, the court granted a motion by the Re-
spondent to remand the case to the Board for the purpose of
receiving and considering additional evidence. The order of remand
does not indicate that the court has as yet considered the merits of
the Board's Decision and Order.
Pursuant to the remand, a further hearing was held before Herman
Marx, the Trial Examiner who presided at the original hearing. On
February 9, 1951, the Trial Examiner issued his Supplemental In-
termediate Report, in which he found that the additional evidence
received required no change in the Board's Decision and Order, and
recommended that the Board reaffirm it without modification, as set
forth in the copy of the Supplemental Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Supple-
mental Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Supple-
mental Intermediate Report, the Respondent's exceptions and brief,
and the entire record in the case (including the original record), and
1 86 NLRB 732.
95 NLRB No. 6.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following additions.
1. Fallowing issuance of the Board's cease and desist order, the
Respondent now seeks, for the first time, to find a defense for its
past unfair labor practice conduct in the provisions of the Union's
constitution relating to strike procedures. Apparently, it contends
that because its employees, who struck in protest over the Respond-
ent's unlawful refusal to bargain with their Union, neglected to
:satisfy self-imposed procedural requirements for strike action, their
concerted activity lost the protection of the Act. Like the Trial Ex-
aminer, we find no merit in this argument, even assuming, although
the` evidence on this point does not affirmatively establish the fact,
that Local 908 did not comply with the constitutional -provisions of
its parent body.2
2. At. the reopened hearing the Respondent introduced further evi-
dence in support of its original contention that some of the strikers
had engaged in illegal secondary picketing activity. It proved that
an employee working on behalf of Black & Son, an independent-con-
tractor not mentioned in the original hearing who was performing
work on the Respondent's premises, refused to cross the strikers' picket
line.. On the Respondent's property, the contractor was building. a
monorail joining the plant to the warehouse. The monorail was de-
signed to connect the two buildings at their respective .doors, which
some of the employees used in the regular course of their work in
going from one building to the other. Further evidence received
pursuant to the remand shows, with greater particularity than ap-
peared at the original hearing, the names of strikers who picketed
that portion of the Respondent's premises where an extension to, the
existing warehouse was being constructed by the independent con-
tractors, Vandevelde and Augustus.. No evidence was offered to show,
nor does the Respondent claim, • that the employees picketed any
premises other than the sole property of the Respondent in Paducah.
As the additional evidence placed in the record pursuant to the
remand is limited to picketing at the Respondent's immediate premises,
we perceive no reason for altering the Board's earlier conclusion that
all picketing was primary, and therefore entirely protected by the Act.
,Our decision here reaffirms the principle enunciated by the Board in
United Electrical, Radio and Machine Workers of America, et al.
(Ryan Construction Co.) .3 We note that after issuance of the Board's
Decision and Order herein, the Supreme Court of the United States,
in its recent decision in N. L. R. B. v. International Rice Milling Co.,4
cited the Board's decision in the Ryan case with approval. Indeed,
2 Cf. Automobile Workers Union v. O'Brien, 339 U. S. 454, and Intertown Corporation
(Michigan ), 90 NLRB 1145.
3 85 NLRB 417.
4 340 U . S. 902, decided June 4, 1951, reversing 183 F. 2d 21 (C. A. 5).
DEENA ARTWARE, INCORPORATED 11
the principle of the Ryan case finds further support in the language of
the Supreme Court where, in holding picketing at the employer's im-
mediate premises to be lawful, it said, "There were no inducements or
encouragements applied elsewhere than at the picket line." 5 [Empha-
sis supplied.]
For the foregoing reasons, and also for the further reasons set forth
in the Supplemental Intermediate Report, we conclude, as did the
Trial Examiner, that the additional evidence received pursuant to the
order of remand neither requires nor justifies any change in the Deci-
sion and Order issued in this case. Accordingly, we hereby affirm that
Decision and Order without modification.
MEMBER STYLES took no part in the consideration of the above Sup-
plemental Decision.
Supplemental Intermediate Report
PREFATORY STATEMENT
Iii its decision (86 NLRB 732) in the above proceeding, dated October 25,.
1949, the National Labor Relations Board' found that the Respondent had vio-
lated Section 8 (a) (1), 8 (a) (3) and 8 (a) (5) of the National Labor Rela-
tions Act (49 Stat. 449-457, as amended by 61 Stat. 136-163), herein referred..
to as the Act. In brief, the Board held that the Respondent had interfered
with, restrained, and coerced its employees at its Paducah, Kentucky, plant, in
the exercise of rights guaranteed to them by the Act ; that it had failed and
refused to bargain in good faith with the Union as the duly designated representa-
tive of the plant's employees ; and that it had discriminatorily discharged and
refused to reinstate 66 employees because they had engaged in concerted activi-
ties protected by the Act. The Board's order appended to its decision directed.
the Respondent to cease and desist from its unlawful conduct ; to bargain col-
lectively with the Union ; to offer reinstatement to the 66 employees ; and to make
the said employees whole for any loss of pay they suffered as a result of the
discrimination against them.
Thereafter, the Board filed a petition in the United States Court of Appeals for
the Sixth Circuit praying for the enforcement of its order. The Respondent
subsequently filed a motion in the court of appeals requesting that the cause
pending in the court be remanded to the Board, "with direction to hear such
new evidence as may be necessary to ascertain the facts upon the issues referred'
to in this motion and to make a new decision and order upon a reconsideration
of the entire case."
5 Our conclusion that all picketing at the Respondent ' s premises was "primary" in,
character is also in accord with the opinion of the Kentucky court of appeals, which had
occasion to consider the picketing activities at the warehouse construction area. In
vacating the temporary injunction of a lower court directed to the very picketing here'
claimed to have been illegal, that court said : "The area which was picketed was contiguous
to the warehouse, which unquestionably could be picketed, and it might reasonably be
said to be an integral part of one industrial facility in the process of physical expansion,.
since it .is separated from the remainder by a mere artificial line ." 28 LRRM 2025.
' The National Labor Relations Board will be referred to herein as the Board ; Deena
Artware, Incorporated, as the Respondent ; and United Brick and Clay Workers of America,
as the Union . References herein to the General Counsel include the attorney who.
represented him at the hearing before the Examiner.
12 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD
The basic matters upon which the Respondent sought leave of the-court to.
adduce additional evidence before the Board may be briefly summarized as fol-.
lows :
1. The authority of one Edmund F. Grimes to participate in collective bargain-
Ing negotiations between the Union and the Respondent.
'2. The right of the Respondent's employees to strike and the cause of the strike.
S. _ The legality of the picketing at the Respondent's premises.
On October 12, 1950, the court of appeals entered an order granting the Re-
-spondent's motion. Pursuant to the provisions of that order, the Board, on
November 13, 1950, entered an order reopening the record of. its proceedings and
remanding the case to the Regional Director for the Ninth Region of the Board
"for the purpose of conducting the further hearing," and authorizing him "to
issue notice thereof.'.' The Regional Director thereupon issued a notice of hearing
dated December 8, 1950. Copies of the notice were thereafter duly served upon
the Union and Respondent.
Pursuant to the terms of the said notice, a hearing (referred to herein as the
second hearing) was held on January 8, 1951, at Paducah, Kentucky, before the
undersigned, Herman Marx, duly designated as the Trial Examiner by the Chief
'Trial Examiner. All parties were represented by counsel, participated therein,
and were afforded a full opportunity to examine and cross-examine witnesses,
adduce evidence bearing on the issues, submit oral argument, and file briefs.
'The parties waived oral argument at the second hearing. The General' Counsel
bas filed a brief. The Union and the Respondent have not done so.
- Upon the entire record of this proceeding, and from my observation of the
witnesses therein, I make the following :
SUPPLEMENTAL FINDINGS or FACT
A. The authority of Edmund F. Grimes to participate on behalf of the Union in
the collective bargaining negotiations
Edmund F. Grimes is an organizer employed by the American Federation of
Labor. The record of the hearing (referred to herein as the first hearing) upon
which the Board's Decision and Order is based contains undisputed evidence that
prior to the Union's selection as the Respondent's employees' bargaining agent
'at an election conducted by the Board, Grimes participated actively in the or-
ganization of the plant; that, without objection by the Respondent, he was a
signatory, on behalf of.the Union, to the agreement between it and the Re-
-spondent for the holding of the election ; that the Respondent's attorney who
appears for the firm in this proceeding signed the agreement in its behalf ; that on
the day preceding the election, at the invitation of George H. Weiner, the Com
pany's president, Grimes addressed its employees and was introduced to them
by Weiner as a representative of the Union ; that Allie Messer, the Union's vice
president,' and Earl Bellew, its international representative, requested Grimes
to attend the bargaining meetings with Bellew and to give the latter "all assistance
possible" in negotiating a contract ; that without any objection by the Respondent,
Grimes, together with Bellew and a committee of 1.0 of the Respondent's employ-
ees, represented the Union at its first bargaining meeting with management
2
Messer testified at the second hearing, without contradiction, and I find, that he is
also a member of the Union's executive board ; that he is the highest ranking of the Union's
officials resident in Kentucky : that lie has the function of supervising and directing in
that State the Union's organizational work and collective bargaining negotiations ; and
that he requested Grimes, because of his greater experience in such matters, to assist
Bellew in the negotiations.
'DEENA ARTWARE, INCORPORATED 13
-representatives ; and that the Respondent excluded Grimes from the second meet-
`ing, stating that it did so because he was "not a member or officer" of the Union.
The record of the first hearing contains much additional evidence bearing on the
question of the Respondent's good faith in the bargaining negotiations, but as
the relevant evidence is fully discussed in the findings adopted by the Board,
no additional analysis of the evidence need be made here. The only question
.presented at this point is whether the. evidence adduced at the second'hearing
warrants a reversal of the finding that Grimes was authorized by the Union to
participate in the bargaining negotiations.
To support its position that Grimes' exclusion was justified, the Respondent
-produced at the second hearing copies of minutes of meetings of the Union's
local, of which employees of the Respondent were members; and of an affidavit
-executed by George Meany, secretary-treasurer of the American Federation of
Labor,' describing Grimes' employment by the Federation and his duties and
functions.'
The Respondent is correct in its claim, as expressed in the motion for remand
that the minutes of the local do not contain any authorization by it for Grimes
to participate in the bargaining negotiations for the Union. However, it must
'be borne in mind that the bargaining agent selected by the Respondent's em-
ployees was the Union and not its local. The point at issue is whether Grimes
was authorized by the Union to participate in the negotiations and not whether
one of its locals did so. Thus, the minutes of the local contribute nothing to the
Respondent's position.
The Meany affidavit describes Grimes as an organizer of the Federation, as-
serting that he works under supervision of other officials of the Federation and
that he has "no authority to make contracts on behalf of or otherwise bind"
that organization. Initially, it may be pointed out that neither Meany nor the
Federation is a party to this proceeding, nor was Meany produced as a witness.
However, irrespective of the question whether the affidavit is probative evidence,'
its contents do not support the Respondent's position. It is clear that the Fed-
•eration is not the bargaining agent selected by the-employees, and whether or not
Grimes has authority to bind the Federation is wholly beside the point. It was
within the Union's province to authorize Grimes to participate in the bargaining
negotiations,' notwithstanding the fact that he was "not a member or officer"
9 The affidavit had been filed by the Federation in support of a motion to set aside service
of process upon it in an action brought against it and the Union in the United States
District Court for the Western District of Kentucky.
' The Respondent also introduced a document entitled "Itemized statement of expenses
from reports of A. F. of L, Organizer E. F. Grimes," and purporting to list Grimes'
salary and expenses for the period from the week ending May 29, 1.948, to September 18,
1948. The purpose and meaning of the exhibit are far from clear. Apparently it is
drawn from an attachment to answers to interrogatories addressed by the Respondent
to one or more of the defendants in the action it brought in the United States district
court. Neither the relevant interrogatory nor the answer to which the itemization
apparently applies is in evidence. If the purpose of the exhibit is to show that Grimes'
salary and expenses were paid by the Federation, it may be noted, first, that the exhibit
is silent on that question, second, that it covers a period after the bargaining negotiations
between the Union and the Respondent had terminated, and, finally, that the mere fact
that Grimes wa sa paid employee of the Federation has no bearing on the question whether
the Union authorized him to participate in the meetings. In fact, the evidence is
undisputed that one of his functions as an employee of the Federation is, upon request, to
assist its member affiliates such as the Union, in collective bargaining negotiations.
6 The affidavit was offered at the first hearing as an exhibit, but was rejected. It was'
received at the second hearing because it falls within the purview of the order of remand.
6 See, among other cases, Hancock Brick and Tile Co., 44 NLRB 920; The Oliver
Corporation, 74 NLRB 483; New Era Die Co., 19 NLRB 227, enforced as modified, 118 F.
2d 500 (C. A. 3).
14 DECISIONS' .OF 'NATIONAL LABOR RELATIONS BOARD
of the Union or that he was unauthorized to contract for the Federation which
was a stranger to the bargaining negotiations.
The record of the first hearing ( see testimony of Grimes and Bellew ), as well.
as the evidence adduced ' at the' second ( see testimony of Messer), establishes
Grimes' authority to participate in the negotiations . Accordingly , I find that the-
Union authorized Grimes to participate in the negotiations in its behalf and that
his exclusion was without any legal justification.
B. The right of the employees to strike and the cause of the strike
The evidence at the first hearing established , and the Board found , that on.
May 26 , 1948, the Union 's negotiating committee decided to call a strike ; that
they . notified the plant 's employees of their decision ; that 66 employees re-
sponded to the call and went on strike ; that on May 29 , 1948, the striking-
employees made an offer to the Respondent 's plant superintendent ( who is vested
with authority to hire and discharge employees ) to return to work "uncondi-
tionally"; that the superintendent refused to reinstate the employees , stating
that it was.his understanding that the employees who struck on May 26 "were dis-
charged" ; and that the strikers subsequently made written applications to the
Respondent to return to work , but that the Respondent refused to reinstate
them.
, At the second hearing, the Respondent introduced copies of minutes of meetings-
held by Local No . 908 of the Union both before and after the strike commenced ;
a copy of the Union 's constitution ; and an excerpt of testimony given by Bellew
at the trial of an action brought by the Respondent against the Union and others-
in the United States District Court for the Western District of Kentucky.
The minutes of the local for May 7, 1948, show that Bellew reported to the
membership at that meeting that bargaining negotiations with the Respondent.
were deadlocked , that he had gone as far as he could go with the negotiations,
but that "before we call a strike ," he would like to use the facilities of the
conciliation service "and see if they can help us." The next entry in the min-
utes for May 7 discloses that a motion was made and seconded "that we go on,
strike at.the plaua of Deena Artware Inc. 632 South 3rd St. due to the breaking
off of negotiations by the Company , and that we give Earl Bellew, International
Representative full power and authority to name the day and hour of the strike."
The motion was carried unanimously.
' Section 6 of article XVIof the Union's constitution prescribes the organiza-
tion 's procedure for approving a strike of a local . In sum, before members of a
local may strike, they are required to submit, "over the. seal" of the local , to the-
parent body 's president a "detailed statement" of the controversy ; it is the
president 's duty then to furnish a copy of the statement to each member of the
Union's executive council ; and if, after investigation , the council approves,.
"a strike may be ordered." Locals are forbidden to strike "without sanction
of the Executive Council."
The nub of Bellew's relevant testimony in the district court is that on May
26 he did not "submit a detailed statement over the seal " of the local, as pro
-vided in the constitution, and that he could not recall whether he had done so at=
any other time in May 1948.
The Respondent has submitted neither oral argument nor a brief in connection
with the second hearing. Reference may be made, however, to the motion for
remand for a statement of the . Respondent's position with respect to the exhibits-
referred to above. There it is asserted that the evidence sought to be adduced
DEENA ARTWAR1 , INCORPORATED-,:- 15
would show that the local'` did not take necessary and proper 'steps..^to vest"ld
in Bellew "power or authority to call a' strike at any time." While not stated
in terms, it is evident that the Respondent challenges the legality of, the strike
because of an alleged noncompliance by Bellew with the provisions of the
constitution.
The Respondent misconceives both the law and the evidence. Bellew: did not
"call a strike." The minutes for May disclose that the local (of which substan-
tially all the strikers were members) resolved to strike almost 3 :weeks
before the strike broke out, leaving. it to Bellew to "name the day and' hour of
the strike," apparently to afford the negotiators an opportunity,to invoke the
facilities of the conciliation service. As found by the Board, it was the nego-
tiating committee which decided on May 26 to place the local's previous resolu-
tion in effect. Hence, whether Bellew sent "a detailed statement over the
seal" of the local to the Union's president is beside the point; for it does not
establish that the local did not do so. Be that-as it may, the Union's constitu-
tional machinery for its own governance is not the concern-.of the Respondents
Such hypertechnical emphasis upon the internal affairs of the Union and its
local cannot-obscure the basic fact that the 66 employees saw fit .to leave their
employment in order to implement their demands upon the Respondent and
that it was their undoubted right to do so under Section 7 of the Act; without
discriminatory reprisals, notwithstanding. the provisions of their constitution.'
In the findings adopted by the Board, it concluded that the root causes of the
strike were the Respondent's unfair labor practices, as well as the. employees'
desire to give economic implementation to their request for a contract embodying
an improvement in wages, hours, and other working conditions. The Respondent
"contends in its motion for remand that that conclusion is erroneous and refers to
the undisputed evidence (set out in the Board's findings) at the first hearing that
a meeting between a conciliator and the Respondent's and Union's representatives
was scheduled for May 26, 1948, at the office of the Respondent's counsel ; that
the meeting was postponed by the conciliator who undertook to notify Bellew;
and that. notice of the postponement did not reach Bellew, as ,a result'of which
the Union's agents arrived at the meeting place but found neither the conciliator
nor the Respondent's representatives there. The claim is advanced by the
Respondent, as at the first hearing, that the strike which commenced later that
day resulted "solely" from Bellew's "annoyance" at the failure to notify him
of the postponement. This contention was' analyzed in detail in the . Board's
findings and rejected because it ignores a number of important operative facts
and principles to which brief reference will be made again. below.
T In the motion the Respondent refers to both the Union and the local as "the union."
To avoid any confusion with the parent body, this Report will refer to the subsidiary as
"the local."
8 Ala8ka Juneau Gold Mining Co., 2 NLRB 125 , 143; Lane Cotton Mills Co., 9 NLRB 953,
967-8, enforced 111 F. 2d 814 (C. A. 5), cert. dismissed 311 U. S. 723.
e The General Counsel, at the second hearing,, presented the testimony of Harold H.
Fleagal ( referred to as Flegal at the first hearing ), president of the Union, to the effect
that sometime in April 1948, Bellew informed him that the Respondent had discharged
nine members of the negotiating committee and that the plant's employees were disturbed
about the matter; and that he (Fleagal)'told Bellew that "he should strike the plant if
that was necessary to put those nine men back to work." Fleagal also testified that in
1937, subsequent to the promulgation of the constitution (in 1928), the Union's executive
body, in order to expedite its business, delegated to the president and secretary treasurer
the power to authorize strikes. In view of the conclusion reached regarding the right
,. of the• 66,employees to strike, it is unnecessary to consider the effect of Fleagal's testimony.
16 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
The Respondent now places emphasis on the local's minutes as substantiating-
the claim advanced, but they do. not do so. The resolution to strike ( minutes=
for the meeting of May 7) asserts that "we go-on strike ... due to the breaking
off of negotiations by the Company." The local's decision to strike antedated.
the incident of the postponed meeting and the strike by almost 3 weeks and it is
obvious that the postponement could not have had anything to do with the resolu-
tion. Moreover, it may be borne in mind that what is termed "the breaking off-
of negotiations by the Company," was preceded, as found by the Board, by a course
of conduct by the Respondent throughout the bargaining conferences "to frustrate-
the Union's efforts to achieve a meeting of the minds. on any important issue."
Thus, the minutes of May 7 do not support.the claim that the isolated incident of"
the postponed meeting or Bellew's "annoyance" at the postponement caused the
strike ; if anything, they negate that contention. The only other reference in the
minutes to the reason for the strike appears in the local's proceedings for May 29.
There the question was put (by an unidentified member) as to the reason for the
strike, and Bellew responded that "it seemed that negotiations had broke off
and the meeting with the conciliator and company had been put off without
notification to him or the committee. But even this colloquy does not support.
the claim that the "sole" cause of the strike was Bellew's "annoyance" at the con-
ciliator's failure to notify him. Bellew adverts not only to the failure of noti-
fication but states the added reason that "negotiations with the Company had
been broke off," in substantially the same language employed in the resolution
of May 7 where the local reached its decision to strike.
Whatever interpretation may be given to the somewhat limited language of
the minutes, it is inappropriate to isolate them from the entire context of events
and to give them exclusive emphasis . The Respondent's claim as to the "sole""
reason for the strike ignores not only some of its own evidence in the form of
the minutes, but the Respondent's whole course of conduct covering a period of
almost 2 months before the strike. This included coercive threats voiced to.
employees by the Respondent's president and acts of reprisal leveled at them
soon after the Union won the election ; the exclusion of the employees' most
experienced repesentative from the negotiations ; and the Respondent' s failure.
and refusal to bargain in good faith. Moreover, the Respondent's thesis over-
looks the undoubted right of ,the 66 employees to leave their work in concert in:
order to secure a collective bargaining agreement, and that they did so for that
reason, among others, is manifested by the picketing signs which .appeared at
the very inception of the strike. For that reason alone; it is plain that the cessa-
tion of work was a concerted activity protected by the Act, and that the dis-
charge o# •the employees and the refusal to reinstate them contravened the statute.
Based upon the entire record, consisting of :the evidence' presented' at both
hearings , I find and conclude that the strike which occurred at the plant was a
lawful concerted activity and.was the exercise of a right guaranteed to the
employees by Section 7 of the Act ; and that the cause of the strike was the Re-
spondent 's unfair labor practices, as well as the employees' desire to secure eco-
nomic concessions from the Respondent."
C. The picketing of the Respondent's premises
Although the findings adopted by the Board contain a detailed description of
the plant's location, some additional reference to the site is appropriate here
10 It; is - well nettled that employees who strike for . economic: reasons are entitled tol
reinstatement if they apply for it as in this case , before repl4eements are hired . Hence,.
apart from the Respondent 's antecedent unfair labor practices , the discharge of, and
refusal to reinstate , the 66 employees on May 29 was unlawful. N. L. R. B . v. Mackai
Radio and Telegraph Co., 304 U. S. 333.
DEENA ARTWARE, INCORPORATED 1.7
to facilitate consideration of the evidence adduced at the second hearing. The.
Respondent's premises consist of a factory, a warehouse, and the construction site
of an addition to its plant facilities. The .block in which the premises are situ-
ated is bounded by Third, Ohio, Second, and Jackson Streets. The factory is at
the northeast corner of Third and Ohio Streets and extends along both streets..
The warehouse is near the northwest corner of Second and Ohio Streets and is.
separated from the factory by a railroad right-of-way containing a double set of
tracks which intersect Ohio and Jackson Streets. The main entrance to the
factory faces the corner of Third and Ohio Streets. At the rear of the factory,
facing the tracks is another entrance which is frequently used by employees.
This door may be approached from Second Street by walking along the right-of-
way or by cutting across the lot containing the construction site. The ware-
house has an entrance on Ohio Street and a loading door on the side of the build-
ing facing the tracks. Employees work not only in the factory but also in the
warehouse, and during the day a factory employee may have occasion to go to
the warehouse for supplies several times (see Scillion's testimony at second
hearing ). In so doing , it is necessary to cross the tracks and enter the warehouse
through either one of its two doors.
The construction site is immediately adjacent to the rear of the warehouse, and
the proposed addition was to have been physically joined to it. At the time of
the strike, work on the addition had progressed as far as the laying of the founda-
tion. The work on the structure was being performed for the Respondent by an
independent contractor.
There was evidence at the first hearing that in the course of picketing the
Respondent's property, some pickets followed a route which began on the Ohio
Street side of.the warehouse , turned north on Second Street, and proceeded past.
the warehouse and the construction site adjacent to its rear as far as Jackson
Street, turned west on that street to the railroad tracks, and then south along
the tracks past the rear entrance of the factory to the beginning point on Ohio
Street. According to the evidence, the purpose of the route was to cover the vari-
ous entrances to the plant and warehouse.
The Respondent contends , as it did at the first hearing , that the picketing
past the construction site was what it terms a "secondary boycott" by the Union
in violation of Section 8 (b) (4) [as phrased in the answer , the Respondent's.
defense presumably has reference to Section 8 (b) (4) (B ) and that, as a
consequence, the strikers forfeited their right to reinstatement.
The Board rejected that contention , holding that, as the picketing was confined
to the Respondent 's immediate premises , the picketing was primary and not
secondary . In view of its holding, the Board found it unnecessary to consider
the status , under Section 8 (b) (4) (B ), of secondary picketing by a certified
collective bargaining agent, or the effect of such picketing upon the reinstatement..
rights of discriminatorily discharged employees,
With- respect to the picketing , the Respondent , at the second hearing, adduced.
evidence in the form of answers to interrogatories propounded to the Union in
the district court action , and testimony concerning a specific picketing incident.
on September 3, 1948. As stated in the motion for remand, the purpose of the
additional evidence was to show that the construction site was in fact picketed,
the naives of the pickets , and the dates on which such picketing occurred.-.
Apparently stress is placed on the names of the pickets because of the well-
established principle that unlawful conduct by a Union or an individual cannot
affect the reinstatement rights of a striker who does not participate in such
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct" The relevant- answers to interrogatories state, in--substance;, that
certain named 32 individuals on various occasions 12 picketed past the construc-
tion site., but that they did not picket it "exclusively, but only as part of the
plaintiff's (Respondent's) entire property at Paducah, Kentucky, which said
persons were picketing."
The scant information contained in the answers adds little, if anything, to the
record of the first hearing. Clearly, whether viewed on the basis of the answers
alone or in the light of the whole record, the picketing was primary in nature.
The relevant evidence bearing on the incident of September 3, which involved
a striker named Hines, may be summarized briefly." About the beginning of
September 1948, an independent contractor, Ray Black and Son (not the con-
tractor engaged in building the addition), commenced the construction for the
Respondent of an overhead conveyor system which was to run across the right-
of-way between the factory and the warehouse and was to connect the two
structures. The contractor dug a hole in the space between the two buildings
and sank a few anchor bolts in the space along the right-of-way between the two
buildings approximately 15 feet from Ohio Street. On the morning of September
3, a truck driver employed by a supplier of the contractor delivered two loads of
concrete to the site. A short while later that morning, he returned with a third
load, but left without delivering it when he saw Hines carrying a picket sign.
The picket's route was on Ohio Street parallel to the factory and warehouse, and
in walking along Ohio Street he crossed the right-of-way which intersects it.
To hold that Hines' picketing was a "secondary boycott" is to do violence both
to the provisions of the Act and to well-established concepts of the nature and
objects of lawful picketing. Clearly, Hines had a right to pass with a picket sign
up and down the street on which the Respondent's plant facilities were located."
Upon the basis of the evidence adduced at the second hearing, as well as upon
the record as a whole, I find and conclude that the picketing in question did not
contravene the provisions of the Act.
11 N. L. R . B. v. Ohio Calcium Co., 133 F. 2d 721 (C. A. 6 ) ; Republic Steel Corporation v.
N. L. R. B ., 107 F . 2d 472 ( C. A. 3), enforced as modified , 311 U . S. 7; N. L . R. B. v.
Mt. Clemens Pottery Co ., 147 F. 2d 262 ( C. A. 6) ; El Paso Electric Company , 13 NLRB 213,
enforced 119 F. 2d 581 ( C. A. 5).
12 The evidence specifies the names of 12 persons who engaged in such picketing. :Four
of these (Bennett, Fowler , Capps, and Story ) were not employees of the Respondent at
the time in question . It may be noted that Capps and Story were members of the
Teamsters Union which had a labor dispute with the independent contractor who was
engaged in the construction work. The picketing by Bennett , Fowler , Capps, and Story
is irrelevant to any issue in this proceeding.
12 The motion for remand adverts to the dates upon which alleged picketing of ' the
construction site occurred. In view of the findings made herein , whether the picketing
involved took place on one date rather than another is of no moment.
14 The Respondent produced two somewhat varying versions of the picketing , Incident
(see testimony by Champion and Scillion ). In view of the conclusions reached herein, It is
unnecessary to go into the details of the testimony or to attempt a reconciliation of the
two versions.
15 See Ryan Construction. Corporation , 85. NLRB 417. I have noted International Rice
Milling Co ., Inc., v. N. L. R. B ., 183 F. 2d 21 ( C. A. 5), where the court held that a
union had violated Section 8 (b) (4) because its pickets had refused to permit a, truck
driver employed by another employer to enter the premises of the , employer against whom
the strike was directed . The Supreme Court has granted certiorari in the International
Rice case ( 340 U. S. 902 ). Without touching on the theory expressed by the court of
-appeals, it may be observed that ( 1) the question'at issue in that case'was the legality
of the union 's conduct and not whether employees who engage In conduct forbidden to .a
union by Section 8 (b) (4) .thereby forfeit their reinstatement rights .; and (2 .) the pickets'
activities in the International Rice case were specifically directed at the driver seeking to
enter the plant , whereas in the instant case there is no substantial evidence that the
picketing was directed at the employees of the independent contractors.
i
CENTRAL PACKING COMPANY 19
Recommendations
As reflected in its motion for remand, the Respondent seeks "a new decision
and order upon a reconsideration of the entire case." The Respondent, however,
has filed neither a brief nor a motion defining explicitly the scope of the "new
decision and order" which it seeks. I have concluded in effect that the evidence
adduced upon the remand does not warrant any modification of the findings of
fact, conclusions of law, and remedy embodied in the Board's Decision and Order.
It would, therefore, be needlessly repetitive for the Board to issue a Decision and
Order reiterating the provisions of the one now in effect. Accordingly, upon the
basis of the entire record in this proceeding, including the evidence adduced at
both the first and second hearings, and upon the foregoing findings of fact, I
recommend that :
1. The Board construe the Respondent's position before it as in effect an appli-
cation for the entry of a new Decision and Order containing such modification of
the one now in effect as may be warranted by a reconsideration of the additional
evidence adduced at the second hearing ; and
2. The Board enter a Decision and Order denying the application for modifi-
cation of the Decision and Order now in effect and reaffirming its terms and
provisions.
CENTRAL PACKING COMPANY, AND RABBIS M. BURNSTEIN AND TIBOR
STERN 1 and UNITED PACKINGHOUSE WORKERS OF AMERICA, LOCAL No.
36, CIO, PETITIONER. Case No. 17-RC--966. July 6, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Eugene Hoffman, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel. [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer, as defined in paragraph numbered 2, below, is
engaged in commerce within the meaning of the Act.
2. The Petitioner, a labor organization, claims to represent the five
schochtim and the two tag men performing kosher butchering work
at the plant of Central Packing Company, herein called the Company,
at Kansas City, Kansas. The Petitioner contends that these workers
are employed by the Company with which it desires to bargain. The
Company contends that it does not employ these workers, but that
they are employed by Rabbis Burstein and Stern. The Rabbis, while
desiring to control the provisions of any collective bargaining agree-
ment for these employees which may touch upon the religious aspects
1 The name of the Employer is amended to conform with our finding herein.
95 NLRB No. 8.
961974-52-vo1. 95-3