Jays Foods, Inc.

National Labor Relations Board - Board Decisions

Nov 17, 1960

129 N.L.R.B. 690 (N.L.R.B. 1960)

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jays Foods, Inc. and Automobile Mechanics Lodge No. 701,
International Association of Machinists , AFL-CIO. Case No.
13-CA-3379. November 17, 1960
DECISION AND ORDER
On May 18, 1960, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceedings, 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, and Respondent and the Gen-
eral Counsel filed briefs.
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 Leedom and Members Jenkins and Fanning].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
case,1 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 Re-
lations Board hereby orders that the Respondent, Jays Foods, Inc.,
Chicago, Illinois, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Automobile Mechanics Lodge No.
701, International Association of Machinists, AFL-CIO, or in any
I The Respondent's request for oral argument is denied as the record, the exceptions,
and the briefs adequately present the positions of the parties.
2 The Respondent asserted that it closed its automotive service department and dis-
charged the employees working therein for economic reasons This assertion was based
on the Respondent's subjective anticipation of what the Union, which 'had just obtained
Board certification and demanded recognition, might insist on in its representation of
these employees, It was not based on anything the Union had done We reject this
defense. The record shows and, in agreement with the Trial Examiner, we find, that
the employees herein were discharged by the Respondent because they joined the Union
and sought through the Union to exercise the right to collective bargaining, a right
guaranteed them under Section 7 of the Act. We further find that these discharges were
in violation of Section 8(a) (3) and (1) of the Act. Butler Brothers, et al, 41 NLRB
843, 865, enfd 134 F. 2d 981 (C.A. 7), cert denied 320 U.S 789; Brown-Dunkin Com-
pany, Inc., 125 'NLRB 1379. We express our respectful disagreement with the Sixth
Circuit Court of Appeals in denying enforcement of our orders in N.L R B. v. Adkins
Transfer Company, Inc., 226 F. 2d 324 (C.A. 6), and In N.L.R.B. v. The R. C. Mahon
Company, 269 F 2d 44 (CA. 6).
129 NLRB No. 70.
JAYS FOODS, INC. 691
other labor organization of its employees, 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.
(b) Threatening employees with economic reprisals or making
promises of benefit to discourage membership in or activity on behalf
of any labor organization.
(c) Refusing to bargain with the Union as the collective-bargaining
representative of the employees in the appropriate unit.
(d) 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 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 agreement 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 Re-
porting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Reopen its automotive repair and maintenance department at
its main plant in the city of Chicago and offer to Alvin Carter, Roy
Baker, Eugene Godwin, Jack Rowen, James R. Smith, and Emil
Stemple immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay
suffered by them in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy."
(b) Upon request, bargain collectively with the Union as the exclu-
sive representative of all the employees in the appropriate unit, and
embody any understanding reached in a signed agreement.
(c) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary or useful to determine the amount of
backpay due and the rights of reinstatement under the terms of this
Order.
(d) Post at its main plant, and all of its branches in the State
of Illinois, copies of the notice attached hereto marked "Appendix." s
Copies of said notice, to be furnished by the Regional Director for the
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."
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thirteenth Region, shall, after being duly signed by Respondent's
representative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure
that such notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Decision and Order,
what steps Respondent has taken to comply herewith.
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 our employees that:
WE WILL NOT threaten our employees with economic reprisals
or promise benefits to our employees to discourage union member-
ship or activities.
WE WILL NOT discourage membership in, or activity in behalf
of, Automobile Mechanics Lodge No. 701, International Associa-
tion of Machinists, AFL-CIO, or in any other labor organization
of our employees, by discriminating against them in their hire or
tenure of employment or any term or condition of their
employment.
WVE WILL NOT in any other 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 Auto-
mobile Mechanics Lodge No. 701, International Association of
Machinists, AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any and all of such activities except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the National Labor Relations Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL reopen our automotive repair and maintenance de-
partment at our main plant in the city of Chicago and offer to
Alvin Carter, Roy Baker, Eugene Godwin, Jack Rowen, James R.
Smith, and Emil Stemple immediate and full reinstatement to
their former or substantially equivalent positions, without prej-
JAYS FOODS, INC. 693
udice to any rights and privileges previously enjoyed by them,
and we will make them whole for any loss of wages suffered as
a result of the discrimination against them.
WE WILL bargain collectively, upon request, with Automobile
Mechanics Lodge No. 701, International Association of Machin-
ists, AFL-CIO, as the exclusive representative of all employees
in the bargaining unit described herein, with respect to grievances,
labor disputes, wages, rates of pay, hours of employment, and
other conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement. The
bargaining unit is:
All mechanics, apprentices, and helpers at our facilities in
the State of Illinois, excluding office clerical employees,
guards, professional employees, and supervisors as defined
in the Act, and all other employees.
a All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-named Union, or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8(a) (3) of the
amended Act. We will not discriminate in regard to hire or tenure
of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such
labor organization.
JAYS FOODS, INC.,
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
Upon a charge duly filed by Automobile Mechanics Lodge No. 701, International
Association of Machinists , AFL-CIO, herein called the Union, against Jays Foods,
Inc., herein called Respondent, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Thirteenth Region, issued a complaint here-
in, alleging that Respondent had violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended, herein called the Act.
With respect to the unfair labor practices, the complaint alleges, in substance, that
on or about June 29, 1959, Respondent promised its employees benefits if they
would refrain from engaging in union or concerted activities and threatened them
with loss of benefits if the Union represented them, or if they engaged in union or
concerted activities. The complaint further alleges that on or about July 31, 1959,
Respondent discriminatorily terminated the employment of Alvin Carter, Roy Baker,
Eugene Godwin, Jack Rowen, James R. Smith, and Emil Stemple because they en-
gaged in union or other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and has ever since failed and refused to reinstate
them for the same reason . The complaint also alleges that on or about July 31,
1959, and ever since Respondent has refused to bargain with the Union, the duly
certified representative of Respondent's employees for collective bargaining in a
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specified appropriate unit, by discharging the employees as alleged above and thereby
destroying the collective-bargaining unit, and by further failing and refusing to
negotiate with the Union concerning rates of pay, wages, hours of employment, and
other terms and conditions of employment.
By its duly filed answer, Respondent denied the commission of any unfair labor
practice and pleaded specifically that it had terminated the employment of the em-
ployees named above because "Respondent believed, and had come to the con-
clusion from its past experience in sending out or farming out in part its automotive
repair and servicing work to independent garages, that it could obtain such auto-
motive repair and servicing work as might be necessary for the trucks and vehicles
of the Respondent at lower and more economical cost by having such work done by
independent garages than by maintaining an automotive repair and servicing depart-
ment of its own."
Pursuant to due notice, a hearing was held before the duly designated Trial Ex-
aminer on January 4 to 7, 1960, at Chicago, Illinois. All parties were represented at
the hearing, and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce relevant evidence, to present oral argument at the
close of the hearing, and to file briefs. After the close of the hearing, the General
Counsel and Respondent filed exhaustive and well-prepared briefs, both of which
have been fully considered.'
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT P
Respondent is, and at all times material herein has been, a corporation duly
organized and existing by virtue of the laws of the State of Illinois, engaged in the
manufacture and distribution of potato chips and popcorn at and from plants located
in Illinois and Wisconsin. During the calendar year 1958, Respondent's gross
volume of business was approximately $5,000,000. During the same period, Re-
spondent purchased materials valued at approximately $1,500,000 outside the State
of Illinois which materials were shipped directly to its plant located at Chicago,
Illinois. During the same period Respondent's Chicago, Illinois, plant shipped
finished products valued at approximately $500,000 to customers located outside
the State of Illinois. Respondent is, and at all times material herein has been, en-
gaged in commerce, and its operations affect and have affected commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent's answer admits, and I find that Automobile
Mechanics Lodge No. 701, International Association of Machinists, AFL-CIO, is,
and at all times material herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Sequence of Events
Respondent was incorporated in 1950, at which time it took over a potato chip
business owned and operated by Leonard Japp, who subsequently became president
of Respondent, and his wife. The volume of its business apparently mounted steadily
until, at the time of the hearing herein, it carried on its operation at a main plant
located at 825 East 99th Street in the city of Chicago, and at four other branches
located in other parts of that city known as the South Side branch, Oak Park or West
Side branch, the Near South Side branch, and the North Side branch. It also main-
tains branches at Milwaukee, Wisconsin, and at Silver Lake, Wisconsin. At the
time of the hearing, Respondent had in its employ about 275 employees and required
the services of approximately 115 trucks or automobiles to deliver its products to its
customers To keep these trucks in repair and maintenance, Respondent, on and
prior to July 31, 1959, had in its employ the six employees alleged to have been
discriminatorily discharged, one other mechanic, ,and John R. Jutkins, as fleet super-
i On or about February 26, 1960, the General Counsel and Respondent submitted a
stipulation to correct certain errors in the official report of proceedings herein. The
stipulation is approved and the transcript of testimony is corrected in accordance with
that stipulation.
JAYS FOODS, INC. 695
intendent. Jutkins and five of the six employees referred to immediately above,
were stationed at Respondent's main plant and garage.
In June 1959, the Union filed a petition with the Board seeking to be certified
as collective-bargaining representative of the seven nonsupervisory employees de-
scribed above. Notice of the filing of this petition was received by Respondent on
June 29. Within -a day or two thereafter, Leonard Japp, president of Respondent,
called a meeting of the group affected by the petition and advised them of the filing
thereof. He told the men that if they "wanted a contract, [they] could have it with-
out the Union." 2 Japp then turned the discussion to the continuance of the "free
cafeteria" which all of Respondent's employees were then enjoying.
The reference to this subject was to a long-established practice at Respondent's
main plant whereby it maintained a cafeteria and supplied its employees with food
at meal times and during coffee breaks, all without cost to the employees. Japp ex-
plained to the men that in 1950 or 1951, the Internal Revenue Service had ruled
"that if the employer gave food to its employees for nothing, it was to automatically
become part of their income and would be taxed as such" and that such a result
could be avoided only if the "free food was [supplied] for the convenience of the
Company, and not the convenience of the [employees]." He added that up to that
time Respondent had been able to satisfy the Government that the cafeteria was
being operated for the convenience of Respondent, but that if the men "should vote
for a contract there is a good possibility that this free food might be written into
[their] contract . . . and then it could be taxable as income" to the employees He
concluded his remarks by asking them "not to upset the applecart."
At a consent election conducted during the morning of July 21, 1959, six of the
seven employees in the unit voted for the Union, and one against. Immediately
following the election, Japp met Frank LoFurno, the Union's business representative,
and asked him whether he wanted to talk to Japp. LoFurno replied that he pre-
ferred to wait until the Union was certified at which time he would "come in, and
sit down and negotiate." On Friday, July 24, LoFurno went to Respondent's main
plant and, not finding Japp, handed Jutkins two copies of a contract which the
Union had with another employer in the area.
Japp, Jutkins, and Thomas Stanislawski, Respondent's vice president and treasurer,
met on Monday, July 27, to consider the contract left by LoFurno and observed
that the labor costs described therein were higher than those for which Respondent
was then obligated to its employees. At the conclusion of the study of the contracts,
Jutkins was instructed to ascertain whether facilities were available whereby Re-
spondent could close its garage and "farm out" all of its truck repair and main-
tenance work in the Chicago area Jutkins reported on the following day that such
facilities were available, but no definite decision to close Respondent's repair shop
was reached until Thursday, July 30. On July 31, all seven mechanics were dis-
charged and Respondent thereafter farmed out all of its truck repair and main-
tenance work.
In the meantime, on or about July 29, the Union was certified as the duly elected
representative for purposes of collective bargaining of the employees in the following
appropriate unit- All mechanics, apprentices, and helpers, excluding all office clerical
employees, guards, and professional and supervisory employees as defined in the Act,
and all other employees at Respondent's facilities in the State of Illinois.
On July 31, before the men were discharged, and in accordance with his promise to
confer with Japp after the Union had been certified, LoFurno went to Respondent's
plant and again found Japp unavailable. He encountered Jutkins who told him that
there were "possibilities that the garage was going to be closed." LoFurno then
asked Jutkins to tell Japp that he wanted "an opportunity to sit down with him" to
see what could be worked out. LoFurno did not learn of the discharges until the
following Monday.
Concluding Findings
On the entire record I conclude that Japp's statement to the employees that if they
wanted a contract they could have one without the interposition of the Union, and
by his remarks concerning the future of the free cafeteria service, Respondent violated
Section 8(a)(1) of the Act. The latter remarks, when considered in context and
against the background of the Union's pending petition for representation, can only
lead to the conclusion that they were intended to be, and were so understood by the
2 This finding is based on the credited testimony of Roy Baker who impressed me as
being most worthy of belief among all the witnesses who testified at the hearing it is
supported by the testimony of Eugene Godwin, and Japp's own admission that he told
the men that "if they wanted a contract, they could have a contract 11
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees,3 as promises of a benefit the employees would enjoy, and continue to
enjoy, if they surrendered the right guaranteed by the Act-the right to be represented
by the Union?
Turning now to the discharge of the employees on July 31, it is the contention
of the General Counsel that they were discharged because they had designated the
Union as their collective-bargaining representative. Respondent, on the other hand,
contends that it discharged the men and closed the department because it had "come
to the conclusion from its past experience in sending out or farming out in part its
automotive, repair, and servicing work to independent garages, that it could obtain
such automotive, repair, and servicing work as might be necessary on the trucks and
vehicles of the Respondent at lower and more economical cost by having such work
done by independent garages than by maintaining automotive, repair, and servicing
department of its own." On the entire record, I am convinced and find that the
employees under consideration were discharged for the reasons assigned by the
General Counsel, and not for those urged upon me by Respondent.
In arriving at this conclusion I have been fully cognizant that an employer may,
with impunity so far as the Act is concerned, change his business methods, or suspend
a part of his operations, so long as his actions are not motivated by the objective of
defeating employee rights guaranteed by the Act. Nor have I been unmindful of the
fact that Respondent was, as are all employers at all times, seriously concerned with
labor costs. Indeed, Stanislawski testified that he had weekly conferences with all
department heads because he was deeply "interested in reducing cost" in all depart-
ments. It was this concern which caused him, in March 1958, to install a job-clock
and job-sheet reporting system in the automotive maintenance department. And
though he further testified that he had "made up [his] mind that the auto service
department should be closed and the mechanics discharged in the middle of 1958."
the decision to close the department was not made until more than a year later, on
July 30, 1959, after the Union had won the election and made its demands for a con-
tract. Japp similarly testified, albeit inconsistently, that in the middle of 1958 he
"was very definite . . . and very determined" to abolish the department because of
its excessive cost,5 but nevertheless took no action thereon until a year later when the
Union made its demand for recognition. In any event, this lapse of a year between
decision and action, assuming earlier resolution ever took place, takes on added
significance in light of Japp's further testimony that no one during that year ever
interposed an objection to the abolishment of the department, and when considered in
light of the great reliance Japp placed on Stanislawski's recommendations.6
Further doubts arise that Respondent gave any serious consideration to farming
out the Chicago area repair work until after the employees had elected the Union as
their collective-bargaining representative. There is no credible testimony that prior
to the discharge of the men under consideration were Respondent's officers ever pre-
sented with any meaningful analysis or comparison showing that farming out all of
its Chicago automotive repair work would result in a saving. Under examination by
Respondent's own counsel concerning the matters discussed at the July 27 conference
between Japp, Stanislawski, and Jutkins, the latter was asked the following question:
"Did any discussion ensue at that time between the parties present relative to the com-
parative costs of handling your own automotive maintenance and repair work, com-
pared to farming the same out?" In reply thereto, Jutkins testified: "With the ex-
ception that we did mention at this time that figures showed a very substantial saving
in my own operations in Milwaukee and Silver Lake, that we should be able to show
the same thing in Chicago and it had good possibilities." The fair inference to draw
from that reply is that no inquiry concerning comparative costs had ever been made in
3 Though most of the employees did not fully understand Japp's explanation of his
dealings with the Internal Revenue Service, I find, nevertheless, that all of them con-
strued Japp's remarks as a warning that the free cafeteria service would be in jeopardy
if Respondent executed a contract with the Union.
4I find it difficult to understand how the execution of a contract with the Union would
alter the true character of the free cafeteria service, 1 e , whether it was for the "con-
venience" of the employer or the "convenience" of the employees
5 Jutkins, however, testified that during a visit he and his wife had with Mr and Mrs
Japp at the latter's home during an evening in the 1958 Christmas season, he suggested
that perhaps Respondent would be better off by farming out its automotive repair work
According to Jutkins, Japp made no "decisive" comment but contented himself with the
suggestion that the matter "bears looking into."
6 Japp testified "when Tom Stanislawskl comes In to you with an argument, he has It
sewed up. He has all the loopholes plugged, there is no doubt about it, he doesn't come
in with a wishy-washy thing. When he comes in, he has the facts."
JAYS FOODS, INC. 697
the Chicago area. The excessive cost of the operations in Milwaukee and Silver Lake
were occasioned by the costly and time-consuming practice of sending one or more
mechanics from the main plant in Chicago to those distant places to perform work
there, a practice which was stopped long before Christmas 1958 when it was decided
to farm out that work to garages in those two cities.
In this connection, it should also be borne in mind that Respondent arrived at its
determination to abolish the department and discharge its employees without inquir-
ing from the Union what its minimum wage demands were. Though the sample con-
tract submitted by LoFurno admittedly contained a wage scale higher than what
Respondent was then paying, Japp, as an experienced business man, must have been
aware that this was, at most, only a beginning demand, and that all collective-
bargaining negotiations covering, as they must, such a wide range of subjects, result
in compromise. Indeed, he testified that on July 27 he and his associates were, in
fact, aware "that maybe LoFurno would chop this thing down a little bit . .. and
maybe he could give [Respondent] a better deal." Instead of pursuing that approach
to ascertain what result it would produce, Respondent summarily discharged the
entire crew of men and completely ignored the Union's request to negotiate concern-
ing Respondent's labor costs.
Furthermore, though Respondent was given an opportunity to do so, the record
does not contain sufficient probative evidence to establish that a saving was in fact
realized by the change in operations. No attempt was made to establish, and it
would be extremely unrealistic to assume, that all of Respondent's 115 trucks of
varying ages either required, or received, the same repair and maintenance service
during four periods of 4 weeks each following July 31 as they did during four periods
of similar length prior to that time, and upon which aggregate-cost comparison Re-
spondent relies to show that the farmed-out operation actually resulted in a saving.
As Respondent's counsel conceded at the hearing, "it is utterly impossible to com-
pare one job with another with exactitude because there are too many variations."
In any event, even if it be assumed, arguendo, that Respondent had an honest belief
on July 30 that farnung out its work would result in economic benefit, such a belief
did not immunize Respondent against a charge of discrimination. If avoiding the
necessity of recognizing or bargaining with the Union was a "substantial or motivat-
ing reason," the Act has nevertheless been violated. N.L.R.B. v. Whitin Machine
Works, 204 F. 2d 883 (C A. 1). Here, however, the precipitate nature of the decision
to abolish the department and to discharge the employees following almost immedi-
ately on the heels of the election, and the summary rejection by Respondent of all
opportunity to negotiate with the Union on wage costs, impels me to conclude that
the discharges were entirely motivated by discrimination and a desire to rid Respond-
ent of any obligation to recognize or bargain with the Union.
Significant also is the testimony of Respondent's own witnesses that it was on July
27, 1959, that Jutkins was instructed to ascertain whether suitable outside facilities
would be available to take over the work previously done in Respondent's own garage.
The failure to earlier obtain this information takes on additional import in light of
the testimony of Japp, Jutkins, and Stanislawski that final decision was postponed
from July 27 to 30 only to ascertain this important information. If Respondent had
seriously considered making the change in 1958, why was this search so long delayed?
The record supplies no answer thereto.?
For the foregoing reasons, and upon the authority of Adkins Transfer Company,
Inc., 109 NLRB 956, The R. C. Mahon Company, 118 NLRB 1537, and Brown-
Dunkin Company, Inc., 125 NLRB 1379, I find that by abolishing its automotive
repair department and discharging the six employees named in the complaint,
Respondent violated Section 8(a)(1) and (3) of the Act.8
7It is appropriate at this time to point to several of the many other inconsistencies in
the testimony of Respondent's witnesses Thus, Respondent now urges, and Japp, Jutkms,
and Stanislaw,,];!, when called as witnesses by Respondent, all testified that final decision
was not reached until July 30 Japp, however, when testifying under questioning by the
General Counsel pursuant to Rule 43(b) at the opening of the hearing, repeatedly testified
that "the decision was made [on July 27] when Mr. Jutkins brought the contract in . . .
IHe, Japp, was] sure it was on Monday morning," July 27
Japp also testified that Jutkins three times repeated on July 27 that he was "sure" on
that day that lie could enlist adequate facilities Jutkins, however, testified that he told
Japp on July 27 that lie was "not sure" that he could get such adequate facilities.
8In arriving at this conclusion I have not been unmindful that the Court of Appeals
for the Sixth Circuit, for varying reasons, has rejected the Board's rationale, and denied
enforcement of the, Board's order, in Adkins and Mahon, supra With due deference to
the opinion of the court, as an arm of the Board, "it remains the Trial Examiner's duty
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The abolishment of the department and the discharges as found above also had
the effect of destroying the bargaining unit created by the Board's certification.
That conduct, and Respondent's refusal to meet and bargain with the Union con-
cerning wages and other terms and conditions, were both violative of Section 8(a) (5)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set out in section III, above, occurring in connection
with the operations of Respondent described in section 1, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent promised benefits to its employees if they voted
against the Union, and had expressed the belief that they would lose economic
benefits then enjoyed if they voted for the Union, I shall recommend that it cease
and desist from such conduct.
It has further been found that Respondent closed its automotive repair and main-
tenance department at its main plant on July 30, 1959, farmed out the work thereof,
and terminated the employment of the employees hereafter named on that date in
violation of Section 8(a)(3) of the Act. In order to remedy that violation, and
in accordance with the Board's policy in such cases, I recommend that Respondent
be required and ordered to reopen that department and offer Alvin Carter, Roy
Baker, Eugene Godwin, Jack Rowen, James R. Smith, and Emil Stemple immediate
and full reinstatement to their former or substantially equivalent positions without
prejudice to seniority or other rights and privileges.
It is further recommended that Respondent make whole each of the employees
named immediately above for any loss of pay or economic benefit each may have
suffered by reason of Respondent's discrimination by payment to him of a sum of
money equal to the amount of wages he would have earned, together with the
reasonable value of the benefits he would have enjoyed, but for such discrimination,
between July 30, 1959, and the date of a proper offer reinstatement to him as afore-
said. Loss of pay shall be computed as prescribed in F. W. Woolworth Company, 90
NLRB 289.
Having found that Respondent, on July 30, 1959, and at all times thereafter, has
refused to bargain collectively with the Union as the representative of the employees
in an appropriate unit, I recommend that Respondent be required, upon request, to
bargain collectively with that organization as the exclusive representative of all the
employees in the unit heretofore found appropriate, and, if an agreement is reached,
to embody such understanding in a signed agreement.
In my opinion, the unfair labor practices committed by Respondent in the instant
case are such as to indicate an attitude of opposition to the purposes of the Act
generally. In order, therefore, to make effective the interdependent guarantees of
Section 7 of the Act, thereby minimizing industrial strife which burdens and obstructs
commerce, and thus effectuate the policies of the Act, it will be recommended that
Respondent be ordered to cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Automobile Mechanics Lodge No. 701, International Association of Machinists,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2 All mechanics, apprentices, and helpers, excluding office clerical employees,
guards, and professional and supervisory employees as defined in the Act, and all
other employees at Respondent's facilities in the State of Illinois, constitute, and at
all times material herein constituted, a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
to apply established Board precedent which the Board or the Supreme Court has not
reversed " Insurance Agents' International Union, API -CIO ( The Priulential Insurance
Co of America ), 119 NLRB 768, 773
NATIONAL CATERERS OF NEW YORK, INC. 699
3. Automobile Mechanics Lodge No. 701, International Association of Machinists,
AFL-CIO, was on July 30, 1959, and at all times thereafter has been , and now is,
the exclusive representative of all the employees in the above-described unit for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
4. By failing and refusing on July 30, 1959 , and at all times thereafter , to bargain
with the Union as the exclusive representative of all the employees in the appro-
priate unit , Respondent has engaged in and is - engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
5. By discharging Alvin Carter, Roy Baker , Eugene Godwin, Jack Rowen, James
R. Smith, and Emil Stemple on July 30, 1959 , thereby discouraging membership in
the Union , Respondent has engaged in and is engaging in unfair labor practices
proscribed by Section 8(a) (3) of the Act.
6. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has violated , and is continuing
to violate , Section 8 ( a) (1) thereof.
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.]
National Caterers of New York , Inc. and'Local 295, International
Brotherhood of Teamsters, Petitioner
National Caterers of New York , Inc. and Local 71, Transporta-
tion Terminal , Interplant and Commissary Food Employees
Union, AFL-CIO, Petitioner
Idlewild Hot Shoppes , Inc., of New York i and Local 71, Trans-
portation Terminal , Interplant and Commissary Food Em-
ployees Union , AFL-CIO, Petitioner. Cases Nos. 2-RC-10870,
2-RC-10871, and 2-RC-10872. November 17, 1960
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
A. G. Niro, 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 Leedom and Members Fanning and
Kimball].
Upon the entire record in this case, the Board finds :
1. The Employers, National Caterers of New York, Inc., and Idle-
wild Hot Shoppes, Inc., of New York, hereinafter referred to as
Caterers and Idlewild, respectively, are engaged in commerce within
the meaning of the Act.
2. The labor organizations named below claim to represent certain
employees of the Employers.
'The petition in Case No . 2-RC-10872 lists the Employer 's name as Hot Shoppes, Inc.,
but was amended at the hearing to Id-lewild Hot Shoppes , Inc., of New York.
129 NLRB No. 85.