Fine's Nearby Egg Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1961

132 N.L.R.B. 1585 (N.L.R.B. 1961)

FINE'S NEARBY EGG CORPORATION 1585
Fine's Nearby Egg Corporation and Local 277, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America . Case No. 3-CA-1455 (formerly 2-CA-
7341). August 31, 1961
DECISION AND ORDER
On September 16, 1960, Trial Examiner C. W. Whittemore issued
his Intermediate Report 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 Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
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 [Members Rodgers, Fanning, and Brown].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in this
case,' and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent, Fine's Nearby
Egg Corporation , Glen Wild, New York, its officers , agents, suc-
cessors, and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in Local 277, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, or in any other labor organization of its employees , by dis-
charging, laying off, refusing to reinstate , or in any other manner
'The- Respondent 's request for oral argument is denied as the record , the exceptions,
and the brief adequately present the positions of the parties
2 The Trial Examiner discredited Respondent ' s witness , Fine, as- to his alleged plans,
prior to the advent of the Union, to contract out all Respondent' s trucking operatiods
The evidence indicates no more than a general and indecisive outlook by Respondent to
continue its practice , when the pressure of business warranted , of employing independent
truckers to supplement its own drivers and trucks . Respondent's reason for the discharge
of the three drivers and assigning their routes to independent truckers ( while continuing
to use two or three of its own drivers ) Is shown, for example , in the credited testimony
that Fine told one of the drivers he had been fired "because you went to the Union behind
my back." The violations of Section 8(a) (3) and ( 1) and the remedy ordered herein
are justified in any case on the clear evidence that Respondent discriminatorily selected
the three drivers for discharge.
132 NLRB No. 133.
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminating in regard to their hire or tenure of employment, or any
term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named 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 activities, except to the extent that
such right may be affected by an agreement requiring membership in
it labor organization as a condition of employment as authorized by
Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 277, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of the Respond-
ent's employees in the unit found appropriate, and, if an understand-
ing is reached, embody such understanding in a signed agreement.
(b) Offer employees Max Pressman, Vincent Schmidt, and Harold
Robinson immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or
other rights and privileges, resuming if necessary the operations sus-
pended and make such employees whole for any loss of earnings they
may have suffered by reason of the discrimination against them, in
the manner set forth in the section of the Intermediate Report en-
titled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary for the determination of the amount of
backpay due and the right of reinstatement under this Order.
(d) Post at its Glen Wild, New York, plant, copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Third Region, shall, after
being duly signed by the Respondent, be posted immediately upon
receipt thereof, and be maintained for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
FINE'S NEARBY EGG CORPORATION 1587
(e) Notify the Regional Director for the Third Region, in writing,
within 10 days from the date of this Order, what steps it has taken
to comply herewith.
MEMBER RODGERS, dissenting :
I do not agree with my colleagues ' finding that the Respondent vio-
lated the Act when it contracted certain of its trucking operations to
independent truckers and discharged three of its drivers. Admittedly,
the timing of the Respondent's actions and certain statements made to
these three drivers when they were discharged offer support for my
colleagues' finding when those factors are considered in isolation.
However, under all the circumstances, I am of the opinion that the
Respondent's actions were motivated by legitimate economic reasons.
The record establishes that prior to the appearance of the Union,
the Respondent had been in financial difficulties, that it had searched
for means to make its operations more economical and that 'it had de-
cided to change its manner of doing business by contracting out its
trucking operations. I think that a fair appraisal of the Respondent's
conduct leads to the conclusion that the Respondent, already burdened
with serious financial troubles,. believed, and with good reason, that
the Union meant increased costs and that an immediate move in the
interest of economy was essential. This being the situation, I believe
that the decision of the Court of Appeals for the 'Sixth Circuit in
N.L.R.B. v. J. M. Lassing, et at., d/b/a Consumers Gasoline Stations,
284 F. 2d 781, cert. denied 366 U.S.'909, is dispositive. There the court
found that an employer did not violate the Act when, on the appear-
ance of a union, it accelerated its plans to economize by contracting out
its trucking operation. The court stated :
Fundamentally,' the change was made because of reasonably an-
ticipated increased costs, regardless of whether this increased costs
was caused by the advent of the Union or by some other factor
entering into the picture. This did not constitute discrimination
against the three employees with respect to their tenure of em-
ployment because of membership in the Union ... .
For the foregoing reasons, I would dismiss the complaint, herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and -Order of the National Labor Relations
Board, and in'order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discourage''membership in Local' 277, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
614913-62-vol. 132-101
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helpers of America, or in any other labor organization of our em-
ployees, by discharging, laying off, refusing to reinstate, or in
any other manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual
aid, or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer Max Pressman, Vincent Schmidt, and Harold
Robinson immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole for
any loss of earnings they may have suffered by reason of the dis-
crimination against them.
WE WILL, upon request, bargain collectively with the above-
named labor organization as the exclusive representative of our
employees in the appropriate unit described below, and, if an
understanding is reached, embody such understanding in a signed
agreement. The appropriate unit is :
All truckdriver employees at the Glen Wild plant, exclusive
of all other employees and all supervisors as defined in
the Act.
FINE's NEARBY Eao CORPORATION,
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed and duly served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board , and an answer having been filed by Fine's Nearby Egg
Corporation, a hearing involving allegations of unfair labor practices in violation of
Section 8 (a)(1), (3), and (5) of the National Labor Relations Act, as amended,
was held in Monticello, New York, on July 28, 1960, before the duly designated
Trial Examiner.
FINE 'S NEARBY EGG CORPORATION 1589
At the hearing all parties were represented-by counsel and were afforded full
opportunity to present evidence pertinent- to the issues, to argue orally, and to file
briefs. Argument was waived. Briefs have been received from General Counsel
and the Respondent; the latter party also filed proposed findings. Except as consist-
ent with findings made below, these proposed findings are rejected.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Fine's Nearby Egg Corporation is a New York corporation, having its principal
office and place of business at Glen Wild, New York, where it engages in the process-
ing, sale, and distribution of eggs.
During the year before issuance of the complaint it processed, sold, and distributed
products valued at more than $100,000, and such products valued at more than
$100,000 were shipped in interstate commerce from said plant to points outside the
State of New York.
The Respondent is engaged in commerce within the-meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED*
Local 277, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization admitting to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues raised by the complaint
The chief issue is whether the Employer involved, Samuel Fine, fired a number
of his truckdrivers on April 11, 1960, because they had joined the Charging Union
and to avoid bargaining with the Union. The chief issue raised by the answer is
whether Fine may avoid an obligation imposed by Congress by pleading business
expediency.
All events relating to such issues occurred within 3 or 4 days after a majority of
Fine's truckdrivers designated the Charging Union as their bargaining agent, and
after a representative of Local 277 asked Fine to negotiate a collective-bargaining
agreement.
B. Events pertinent to the issues raised by General Counsel
On Saturday, April 9, 1960, Business Representative Distini of Local 277
met with four of Fine's five or six truckdrivers.i All four signed application cards.
The drivers and the business representative then went to. Fine, where Distini told
him the drivers had signed and asked to discuss a contract. Fine said he could not
do so at the moment . Distini suggested that they meet the following Monday in
New York City, with one Sam Hoffman , a stockholder of the corporation and with
whom the Union had had other dealings. Fine finally agreed to meet with him there
in the early afternoon of April 11 .2
At the appointed time neither Hoffman. nor Fine showed up. Distini telephoned
Fine and asked what he was going to do to straighten things out. Fine replied that
there was nothing to straighten out. Distini asked, "You mean you don't want
to recognize the Union?" Fine answered, "No, there's nothing to talk about."
In a few words this depicts the demand and refusal to bargain-which in substance
was admitted by Fine as a witness . Although Fine had'avoided keeping the appoint-
ment , he was not idle on Monday. Without previous warning he fired at least three
of the four drivers who had signed union cards.
Undisputed testimony of the drivers involved establishes that:
(1) When driver Max Pressman returned to the plant shortly before noon on April
11, after picking up eggs , Fine met him and asked if he had signed up in the Union.
Pressman replied that all four had. Fine then declared, "This'is your last day here,
i General Counsel claims five drivers ; as noted below Fine claimed at, the hearing there
were six.
2 That Fine agreed to the time and place is based upon Distini 's credible testimony and
the inherent probabilities of the situation . Fine's testimony, which the Trial Examiner
cannot fully credit for reasons revealed later in this report , is to ,the effect that Distini
wanted to meet with Hoffman , not himself.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because I don't recognize the Union.... You should have come to see me first. I
am going to only keep three drivers.... When the other boys come in, you can
talk it over with them."
(2) Pressman told driver Vincent Schmidt of Fine's action as soon as that em-
ployee came in from his pickups. The two were then sent to the office, where Fine
gave them each 1 day's pay-their regular pay having been given them as usual the
preceding Friday. Fine told them, "I won't be needing you any more . . . I am
going to contract out the hauling."
(3) When driver Harold Robinson came to the plant shortly after the discharge of
Pressman and Schmidt, he was told to go to the office and get his pay from the book-
keeper. He did so. The next morning he approached Fine, who told him he was
fired "because you went to the Union behind my back."
(4) Driver H. Bolduc who, like the three named above, had signed a union appli-
cation, was also given his pay that Monday afternoon without explanation. That
night, this employee telephoned Fine, and told him that although he had signed a
card he did not care about the Union. He was told to return to work the next
morning and has been employed by Fine since then.3
C. The Respondent's case
In view of the undisputed evidence upon which the above findings rest, it would
appear that the complaint is fully sustained as to both the issue of discriminatory
discharges and that of refusal to bargain.
Without encumbering this report with all details and figures offered in evidence
through his counsel, in substance it is Fine's contention that he fired his drivers
because he believed it would be, and later experience proved it to be, cheaper to
have his eggs hauled by independent contractors.
As to the motive for his admitted discharge of the three drivers, it seems rudi-
mentary logic to consider that whatever savings he may have made after April 11
could not have been a factor in any determination he may have made before
that date.4
And Fine's varied and inconsistent claims as to earlier plans cast grave doubt
upon his credibility. For example, the answer states that "for several years prior to
and up to April 9, 1960," the Respondent "had been attempting to arrange a better
method of transporting its product to market . and had been negotiating with
several trucking companies . .. " According to Fine's testimony, however, his busi-
ness operations did not start until December 1958, and in answer to his counsel's
query as to when he started to consider such a move, he replied, "About a year ago
from today." Also as a witness Fine said that he first made actual investigation of
having independent contractors haul for him in "the winter of '59-'60." Again, on
direct examination Fine claimed that he concluded arrangements with one contractor
before April 9, when the Union came to him. On cross-examination he admitted
that he first contacted this trucker "about the first of May"-which was long after he
had fired his employees.
Again, as a witness he claimed he had made final arrangements with another inde-
pendent trucker "about the beginning of March." In a sworn statement made on
April 26 to a Board representative, Fine declared that such final arrangements were
not made until April 5.
Fine admitted candidly that although he had intended to have one trucker start
on April 15, "when the union came up and I saw I was going to have some trouble,
I told him (this trucker), I said, `You better start right now (April 11) because I
can't wait any longer."'
Even if it were possible to give full credit to Fine's vacillating testimony, the
above-quoted admission establishes that at least for a period of 4 days he violated
the Act as alleged.
Finally, Fine's admission on cross-examination that as to one such independent
trucker-Burns-no arrangement or agreement as to price for this service was made
S Bolduc was a most reluctant and evasive witness. At first he claimed he could re-
member nothing , but when confronted with his statement to a Board agent he finally
admitted the nature of his call to Fine He claimed, however, that Fine had told him on
Monday afternoon to be at work the next day, and before his call that night. The claim
is patently false. Had he been told to be at work the next day, there would have been
no reason to call Fine that night
Furthermore, the Trial Examiner is not aware that the courts are Inclined to condone
an unlawful act merely because its perpetration nas proved ,profitable.
FINE'S NEARBY EGG CORPORATION 1591
until the service began proves that there was small factual basis for his claimed antici-
pation of economic savings.
Under the circumstances described above, the Trial Examiner can place no re-
liance upon Fine's various claims, and finds no merit in them.
D. Conclusions as to the discharges
On the basis of the foregoing findings of fact the Trial Examiner concludes and
finds that Fine discriminatorily discharged employees Pressman, Schmidt, and
Robinson on April 11, 1960, to discourage union membership and activity, and that
by such discrimination and by Fine's interrogating Pressman the same day as to
whether he "signed" with the Union, the Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed by the Act.
E. Conclusions as to the refusal to bargain
Nature of the work performed by the truckdrivers employed by the Respondent
fully supports the complaint's allegation that:
All truckdriver employees of Respondent employed at its Glen Wild plant, ex-
clusive of all other employees and all supervisors as defined in Section 2(11)
of the Act, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
Although the answer denies the allegation, no evidence was adduced by the Respond-
ent to support its denial. The Trial Examiner therefore concludes that the unit as
alleged in the complaint is appropriate for the purposes above set forth .5
According to Fine's testimony, on April 9, 1960, there were six truckdrivers em-
ployed by him .6 Credible evidence shows that on that date four of them signed
union cards. A majority having so designated the Union, it is concluded that on
that date and at all times thereafter the Union was and now is the exclusive bargain-
ing representative of all employees in the said unit.
The Trial Examiner concludes, finally, that on April 11, 1960, the Respondent
refused to recognize and bargain with the Union, as was its legal obligation, by
discharging the three employees named herein and by declining to meet the union
representative for negotiations, following the Union's effective claim of majority
and demand to bargain. Such refusal constituted interference, restraint, and co-
ercion of employees in the exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection 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 lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
It will be recommended that the Respondent, upon request, bargain collectively
with Local 277, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive bargaining representative of employees in
the appropriate unit described herein, and, in the event an understanding is reached,
embody such understanding in a signed agreement.
In accordance with Board policy set forth in The R. C. Mahon Company, 118
NLRB 1537 at 1544,7 and cases cited therein, it will be recommended that the Re-
spondent resume its customary operations, and offer to the three employees dis-
criminatorily discharged immediate and full reinstatement to their former or sub-
See Tenne88ee Egg Company, 110 NLRB 189
9 Fine listed them as Robinson, Schmidt, Pressman, Gries, Bolduc, and Fuchs He said
he discharged the first three and retained the latter three. According to Fine, also, he
discharged Cries a few days before the hearing opened. It therefore appears that at the
time of the hearing there were still two employees In the unit.
7 As in the Mahon case, the delivery operation 1s still required , although a good part of
it Is being accomplished by independent truckers , but not under contract.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantially equivalent positions , without prejudice to seniority or other rights and
privileges . It will be further recommended that the Respondent make them whole
for any loss of pay suffered by reason of the discrimination against them , by pay-
ment to each of them of a sum of money equal to that which he would normally
have earned as wages, absent the discrimination from April 11, 1960 , to the date
of the Respondent 's offer of full reinstatement , less their net earnings during said
period and in a manner consistent with Board policy set out in F. W. Woolworth
Company, 90 NLRB 289 , and Crossett Lumber Company , 8 NLRB 440. It will also
be recommended that the Respondent , upon request , make available to the Board
and its agents all payroll and other records pertinent to the analysis of the amounts
of backpay due and the right of reinstatement.
. Since the violations of the Act which the Respondent committed are related to
other unfair. labor practices proscribed by the Act, and the danger of their commis-
sion in the future is reasonably to be anticipated from its past conduct , the preventive
purposes of the Act maybe thwarted unless the recommendations are coextensive
with the threat . To effectuate the policies of the Act, therefore, it will be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 277, International Brotherhood of Teamsters ,- Chauffeurs , Warehouse-
men and Helpers of America , is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employees , thereby dis-
couraging membership in the above-named labor organization , the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. All truckdriver employees of the Respondent employed at its Glen Wild plant,
exclusive of all other employees and all supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
4. On April 9 , 1960 , and at all times since that date, the above -named labor
organization has been and now is the exclusive bargaining representative of all
employees in the above-described unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other terms and conditions
of employment , by virtue of Section 9(a) of the Act.
5. By refusing , on April 11 , 1960 , and at all times thereafter , to bargain col-
lectively with the aforesaid labor organization , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(5) of
the Act.
6. By interfering with, restraining , and coercing 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.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
Greene County Farm Bureau Cooperative Association , Inc. and
Sales Drivers, Sales and Service Local No. 176, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Case No. 9-CA-P3P238. August 31, 1961
DECISION AND ORDER
On March 16, 1961 , Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had 'engaged in certain unfair labor practices and recom-
132 NLRB No. 139.