Julian Freirich Co.

National Labor Relations Board - Board Decisions

Oct 14, 1949

86 N.L.R.B. 542 (N.L.R.B. 1949)

In the Matter Of JULIAN FREIRICII AND SELMA FREIRICII, CO-PARTNERS
DOING BUSINESS UNDER THE TRADE NAME AND STYLE OF JULIAN
FREIRICH Co. and GEORGE G. BARBARA, ANTHONY MANZELLA, ALLEN
PEITERSEN AND CHARLES H. SUSSMAN
Case No. f3-CA-30,9.-----Decided October 14,1949
DECISION
AND
ORDER
On May 24,1949, Trial Examiner Louis Plost issued his Intermediate
Report in the above-entitled proceeding, finding that the Respondents
had engaged in, and were engaging in, certain unfair labor practices,
and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondents had not unlawfully refused to reinstate George G. Bar-
bara, Anthony Manzella, and Charles H. Sussman, as alleged in the
complaint, and had not violated Section 8 (a) (1) of the Act, as also
alleged in the complaint, by committing certain other acts therein set
forth ; and he recommended that the complaint be dismissed as to these
allegations. Thereafter, the General Counsel, and Barbara, Manzella,
and Sussman filed exceptions to the Intermediate Report, with sup-
porting memoranda. No exceptions to the Intermediate Report were
filed by the Respondents or by the intervening union, Local 640,
Butcher Workmen of New York and New Jersey, hereinafter called
Local 640.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions,
the memoranda, and the entire record in this case. It hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Nembers Houston and Gray].
86 N. L. R. B., No. 75.
542
JULIAN FREIRICH CO. 543
only to the eittent that they are consistent with the modifications and
additions hereinafter set forth.
1. The Trial Examiner found that the Respondents discriminatorily
discharged Allen Peitersen because of his refusal to join Local 640, and
because of his membership in, and activities on behalf of Local 627,
Provision Salesmen and Distributors Union of New York and New
Jersey, hereinafter called Local 627.1 No exceptions to this finding
were filed by the Respondents or by Local 640. Accordingly, we
adopt the Trial Examiner's finding in this respect.
2. The Trial Examiner concluded that the Respondents did not, vio-
late Section 8 (a) (1) of the Act by their activities in support of
Local 640 and in opposition to Local 627. The Respondents' activi-
ties in this connection are in part described in the Intermediate Report.
The Trial Examiner's conclusion was predicated upon his finding
that there existed a valid closed-shop contract between the Respondents
and Local 640, which, in the Trial Examiner's opinion, provided legal
sanction for the Respondents' conduct 3 We disagree both with the
Trial Examiner's finding with respect to the existence of a valid closed-
shop contract, and with his ultimate conclusion that the Respondents
did not violate Section 8 (a) (1) of the Act by their conduct which we
set forth in detail below.
A. The closed-shop contract: The bargaining contract between the
Respondents and Local 640, which the Trial Examiner found to be
valid, contains the following clause:
THIRD : The Employer agrees to employ only members of the
Union in good standing and all help required by the Employer
shall be hired through the Union, except as hereinafter provided.
(a) Where the Union cannot furnish competent workers within
24 hours, the Employer may employ people other than Union
members who must, however, make application for membership in
this Union within 24 hours from the beginning of employment.
2 Both Local 640 and Local 627 are constituent parts of Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL.
3 The complaint against the Respondents alleged that the Respondents , in violation of
Section 8 (a) (1) of the Act, interrogated their employees concerning their union affilia-
tions ; urged , persuaded , threatened, and warned their employees to assist and to become,
or remain , members of Local 640, and to refrain from assisting, becoming , or remaining
members of Local 627 ; and threatened their employees with discharge or other reprisals if
they joined or assisted Local 627, or refused to join or assist Local 640. The Respond-
ents' answer denied such allegations . The answer pleaded the Respondents ' contract
with Local 640 not as a defense to the Section 8 (a) (1) allegations , but as a partial
affirmative defense to Section 8 (a) (3) allegations also set forth in the complaint. In
their brief filed with the Trial Examiner after the hearing, the Respondents for the first
time contended that their contract with Local 640 was a defense to the Section 8 (a) (1)
allegations.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) If such new employees are rejected for membership by the
Union, the Employer shall discharge such employees im-
mediately.
(c) New employees, if hired, shall be deemed temporary em-
ployees and on a trial basis for a period of two weeks. Thereafter,
they shall be deemed regular employees and such new employees
shall receive the same benefits, terms and conditions as regular
members of the Union.
(d) The Employer shall have the privilege of engaging as
many extra or special day workers as he needs, provided that they
are members in good standing and supplied by the Union.
This clause provides, in effect, for the establishment in the Respond-
ents' plant of a closed shop, a form of union security rendered illegal
by the 1947 amendments to the Act.' These amendments became ef-
fective on August 22, 1947, and, accordingly, the date upon which the
contract was executed determines its validity.
The contract is set forth in a mimeographed document consisting
of eight pages, with various dates and the name of the Respondents
added in ink. Its initial sentence recites that it is an agreement "en-
tered into this 14 day of Aug. 1947," and it provides in its body that
it "shall take effect on the 14th day of August 1947." However, the
space in its attestation 'clause providing for the insertion of a date
is left incompleted.5
Pursuant to language in the contract providing that the agree-
ment shall be applicable to the Respondents' employees as "set forth in
Schedule `A' hereto attached," the last of its eight pages is headed
Schedule "A," and thereon in ink are listed the names and salaries of
six individuals. According to the testimony of Harold Lippel, who
was the recording and corresponding secretary for Local 640, and
who executed the contract on behalf of Local 640, the document was
signed on August 14, 1947, with Schedule "A" at that time filled out
and included among its pages. Lippel further testified that he
thought that all of the individuals listed on Schedule "A" were in the
Respondents' employ on the date the contract was signed.'
" See Section 8 (a) (3) of the Act.
5 The attestation clause provides : "IN WITNESS WHEREOF, the parties have hereto
set their hands and seals this day of August 1047."
9 The Trial Examiner made no credibility findings either with respect to Lippel 's testi-
mony regarding the execution date of the contract in question or his testimony pertaining
to other matters . He did , however , set forth in the Intermediate Report an admission by
Lippel with respect to the 8 (a) (3) charge against the Respondents , which was elicited,
according to the Trial Examiner , "after much evasive testimony" by Lippel . The Trial
Examiner also characterized Lippel ' s testimony on that subject as an attempt to create
an impression contrary to the actual state of facts. On the basis of such conclusions by
the Trial Examiner , and in view of the inconsistency between Lippel 's statements and the
JULIAN FREIRICA CO. 545
Other evidence introduced at the hearing shows, however, that two
of the six individuals listed on Schedule "A," namely, Paul Cappolla
and Max Kahn, had not been employed by the Respondents by August
14, 1947. Cappolla 7 himself testified without contradiction that he
first began to work for the Respondents on September 19, 1947. The
Respondents' pay-roll records revealed, and the parties stipulated,
that Max Kahn was employed by the Respondents for 1 week either
beginning or ending September 26, 1947, and that he was employed at
no other time.
On the basis of the evidence showing the dates when Cappolla and
Kahn first were employed by the Respondents, we are unable to find
that the contract between the Respondents and Local 640 was executed,
as contended, on August 14, 1947. In fact, it appears, and we find,
that the contract in question could not have been executed upon a date
earlier than September 1947.8 Accordingly, as the contract was exe-
cuted after August 22, 1947, and as it includes an illegal union-
security provision, we conclude and find that the contract is invalid
as a defense to the unfair labor practice charges 10
evidence showing the dates when Cappolla and Kahn actually commenced to work for the
Respondents , we discredit Lippel ' s testimony that the contract between the Respondents
and Local 640 was signed on August 14, 1947.
The name listed on Schedule "A" is "Paul Capulo." Although the validity of the
contract was in issue at the hearing, no contention was made by the Respondents or by
Local 640 , either during the hearing or in their briefs filed with the Trial Examiner, that
the Paul Caputo listed on Schedule "A" was a different person from the Paul Cappolla who
testified at the hearing. The Intermediate Report does not mention this discrepancy in
names. We find, on this state of the record, that the Paul Caputo listed on Schedule "A"
and the Paul Cappolla who testified in this proceeding are one and the same person.
8 Language in the contract suggests the possibility that had the contract been signed
on August 14, 1947, as alleged, the names of Cappolla and Kahn could have been added to
Schedule "A " sometime thereafter . The contract provides : "This agreement shall apply
to all of the employees now employed , or hereafter to be employed by the Employer in the
appropriate collective bargaining unit set forth in Schedule 'A' hereto attached .. .
[italics supplied ]. Doubt in this connection is dispelled , however, by the sequence in
which the names are listed on the schedule . Thus, Cappolla's name is the third listed, and
directly underneath is listed the name of Harry Sussman . Sussman, it was shown, com-
menced to work for the Respondents in July 1947 , and was in the Respondents ' employ on
August 14, 1947 . As Schedule "A" formed part of the contract when it was executed, it
follows that Cappolla's name could not have preceded Sussman's in the listing on the
schedule, had the contract in fact been signed on August 14, 1947.
8 The execution of the contract after August 22, 1947, with the illegal union-security
provision included therein, itself constituted a violation of Section 8 (a) (1) and (2) of
the Act. Matter of Julius Resnick, Inc., 86 N. L. R. B. 38. We, however, make no
finding in this respect because execution of the contract was not alleged as a violation in the
Complaint.
'0 In view of our finding that the contract is illegal for the reasons indicated in the
text, we need not consider the further reasons, urged by the General Counsel and indicated
in the Intermediate Report, which allegedly rendered the contract invalid as a defense.
In passing , however , we do not endorse the Trial Examiner ' s rejection of the General
Counsel 's contention that the status of Local 640 as a majority representative when it
executed the closed -shop contract was relevant to a determination of the validity of the
contract . See,.for example , Matter of Federal Mogul Corporation , 76 N. L. R. B. 1, 13-15
Matter of Albert Love Enterprises, 66 N. L. R. B, 461, 422.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Respondents' activities: The Intermediate Report describes
some of the activities on behalf of Local 640 undertaken by the Re-
spondents after they learned that four of their salesman-drivers,
Barbara, Manzella, Peitersen, and Sussman, had signed membership
applications in Local 627. Recounted therein are statements made
by Julian Freirich, one of the Respondents, that he would have no
local in the plant except Local 640; that Local 640 was his organization
and that he did not want it changed; and that, as far as he was con-
cerned, the salesman-drivers who were members of Local 627 could not
stay in the plant. The Intermediate Report also describes other
incidents in which Respondents unlawfully urged and ordered the
salesman-drivers to join Local 640, offered to pay the dues of one of
them in Local 640 if he joined that organization, passed out application
cards for membership in Local 640, and permitted business agents of
Local 640 to address the salesman-drivers in the Respondents' office.
Additional evidence adduced at the hearing shows other occurrences
of a similiar, and even more flagrant, nature. Each of the four sales-
man-drivers who joined Local 627 recounted promises of economic
benefit made to him by Respondent Julian Freirich to induce his alle-
giance to Local 64011 According to Barbara, Julian Freirich told him
that he "would do great things" for him, and would "take bare" of him,
if he would join Local 640. Barbara also testified regarding an offer
made to him by Freirich whereby Barbara was to state the facts of the
union matter to his parish priest, and if the priest did not urge Barbara
to join Local 640, Freirich would then donate $25 to Barbara's church.
Manzella testified that Freirich promised that he would pay Manzella
a bigger bonus if Manzella remained with Local 640, and that he
would discharge Manzella if the latter did not. Freirich likewise
promised Peitersen that his sales bonus would be doubled, and also
promised Sussman a vacation bonus, if they, respectively, joined or
remained with the Local 640.
Barbara, Manzella, and Peitersen also described a meeting of the
salesman-drivers called by Freirich to discuss the union situation.
Freirich began the meeting by peremptorily discharging Barbara and
Peiterson for their failure to join Local 640. Thereupon, when these
employees started to leave the meeting, Freirich recalled them and
asked that they talk the matter over. Freirich then harangued the
drivers at length, urging their loyalty to Local 640, and also addressed
Those of the Respondents ' acts pertaining to their support of Local 640 which are set,
forth in the Intermediate Report are based upon the testimony of Barbara , Manzella,
I eitersen , and Sussman . The Trial Examiner credited the testimony of these witnesses,
although it was in part denied by evidence offered on behalf of the Respondents. We
accordingly credit the testimony of Barbara , Manzella , Peitersen , and Sussman as to the
matters detailed in the text above , most of which was not controverted by the Respondents.
JULIAN FREIRICH CO. 547
unflattering epithets to Peitersen, Sussman, Manzella, and Barbara.
The meeting lasted approximately 4 hours, during which Freirich
passed a bottle of whiskey to the men, and ultimately rehired Barbara
and Peitersen.
These acts show a calculated effort on the part of the Respondents
to perpetuate the existence of Local 640 in their plant, and to prevent
their employees from joining another labor organization. They finally
culminated in the unlawful discharge of Peitersen, which, as found
above, was discriminatorily effected in furtherance of the Respond-
ents' program to support Local 640 and undermine the organizational
drive of Local 627. Indeed, even if we were to assume,that the closed-
shop contract between the Respondents and Local 640 was a valid and
subsisting agreement at the time the acts were committed, that con-
tract, contrary to the Trial Examiner's finding, would have provided
no legal justification for the Respondents' conduct,12 without regard
to the discharge of Peitersen.13 Under the closed-shop provisions of
the contract the Respondents were bound to employ members of Local
640 who were in good standing, and to discharge employees rejected
for membership in the union. The Respondents' activities, however,
included measures going far beyond the requirements of any such
contractual obligations.
Accordingly, we conclude and find that, in violation of Section 8
(a) (1) of the Act, the Respondents' forespecified activities constituted
unlawful assistance and support to Local 640,14 and interfered with,
restrained, and coerced their employees in the exercise of rights
guaranteed by the Act.
3. We disagree with the Trial Examiner's analysis and conclusions
regarding the strike by the Respondents' salesman-drivers which
followed the discriminatory discharge of Peitersen.
As set forth in the Intermediate Report, on May 10, 1948, which
was the first work day following the date on which Peitersen was
notified that he had been discharged, Barbara, Manzella, and Sussman,
three of the Respondent's salesman-drivers, reported for work at the
Respondents' garage, and there met with Peitersen and with Frank
Collins, the latter an organizer for Local 627. Following their dis-
covery that Peitersen's truck was not in the garage, Barbara, Manzella,
and Sussman, instead of manning their own trucks, went to the vicinity
12 See Matter of American -West African Lines, Inc ., 21 N. L . It. B. 691 , 705; Matter of
Beckerman Shoe Corporation, 19 N. L. It. B. 820, 824-829.
11 No evidence was adduced showing that Local 640 ever demanded that the Respondents
discharge Peitersen , or other employees who had not joined Local 640.
14 The Respondents ' activities in support of Local 640 also contravened Section 8 (a)
(2) of the Act . Matter of The Carpenter Steel Company , 76 N. L . R. B. 670; Matter of
Hershey Metal Products Company, 76 N. L. R. B. 695. Because no 8 (a ) ( 2) violation was
alleged in the complaint , however, we do not make such a finding.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Respondents' plant. Their motive in so doing was explained by
Manzella and Barbara in testimony which is set forth in the Inter-
mediate Report. According to Manzella, they did not drive their
trucks out "because Peitersen had been fired and we were told we
would go to the plant and try to have Peitersen reinstated and then
we would continue to work." Barbara testified that he was advised
by Collins that "since Mr. Peitersen was discharged, let us all go down
to the plant, see if he couldn't iron this thing out . . . ."
When the salesman-drivers arrived at the Respondents' plant, they
observed that all the Respondents' trucks were being loaded and were
later driven away by other drivers. They then left the plant, but
each morning during the following week they returned nearby.
The Trial Examiner found that the primary purpose of the strike
by the salesman-drivers was an economic one-to compel the Respond-
ents to recognize Local 627-and that Peitersen's unlawful discharge,
and the attainment of his reinstatement, was only a subordinate cause.
He thereupon concluded that the strike was essentially economic.
The Trial Examiner's finding that an economic motive was the pri-
mary cause of the strike is unsupported by the record.'° As found by
him, Local 627 made no bargaining demands on the Respondents either
before or after the strike. And, as the Trial Examiner also found, the
only direct contact which Local 627 had with the Respondents involved
a telephone call made by Frank Collins on May 9, 1.948, to Julian
Freirich. On that occasion, Collins told Freirich that he was calling
with reference to the discharge of Peitersen, and requested that Peiter-
sen be reinstated for at least 1 week to permit the heads of Locals 627
and 640 to straighten out the matter. On the basis of the above-quoted
testimony of Manzella and Barbara, and upon all the circumstances
surrounding the strike which ensued so quickly after Peitersen's dis-
charge, we find that the cause underlying and prolonging the strike by
the salemen-drivers was the Respondents' unlawful discharge of
Peitersen and their failure to reinstate him.'7 In any event, even if it
were true, as the Trial Examiner believed, that the strike had as it pur-
pose both the achievement of an economic goal and the dissipation of
the Respondents' unfair labor proctice, it is a well-established principle
that a strike caused in part by an unfair labor practice does not lose
15 The Trial Examiner made no specific credibility findings with respect to this testimony
by Barbara and Manzella. As their testimony in this respect was not controverted by other
evidence adduced at the hearing, we find it credible.
11 In their brief filed with the Trial Examiner, the Respondents conceded that Barbara,
lanzella, and Sussman left their work because of Peitersen ' s discharge.
17 In their brief filed with the Trial Examiner, the Respondents contended that the action
of the three salesman -drivers was a "wildcat strike" violative of a no -strike clause in the
contract between the Respondents and Local 640 allegedly signed on August 14, 1947. In
view of our conclusion that such contract is invalid as a defense to charges under the Act,
we do not pass upon this contention.
JULIAN FREIRICH CO. 549
its character as an unfair labor practice strike because economic reasons
may also have brought it about."'
As the strike of the salesman-drivers was an unfair labor practice
strike, it follows that the striking salesman-drivers are, upon their 'ap-
plication, entitled to reinstatement to their former positions. For this
reasons, although we are constrained to adopt the Trial Examiner's
findings that Barbara, Manzella, and Sussman did not apply for rein-
statement prior to the hearing herein and that they were not discharged
by the Respondents, we shall order that these employees as unfair labor
practice strikers, be reinstated if they apply to the Respondents for
reinstatement.19
TT-Cl RE\IEI)1
It has been found that the Respondents violated Section 8 (a) (1)
of the Act by unlawfully assisting and supporting Local 640 and by
interfering with, restraining, and coercing their employees-in the exer-
cise of rights guaranteed by the Act. In order to restore the status
quo and to free the employees from this restraint tipon their freedom
of self-organization, we shall order that the Respondents withdraw
and withhold all recognition from Local 640 as the representative of
their employees for the purpose of dealing with the Respondents con-
cerning grievances, labor disputes, wages, rates of pay, hours of eln-
ployment, or other conditions of employlnent, unless and until it is
certified by the Board as such representative. Because the existence
of the Respondents' invalid contract with Local 640, bearing date of
August 14, 1947, perpetuates the effects of the Respondents' unlawful
assistance and support to Local 640, we shall order that the Respon-
dents cease and desist from giving effect to that contract, or to any
extension, renewal, modification, or supplement thereto. Nothing in
our order, however, shall be construed to require the Respondents, in
their relations with the employees themselves, to vary any wage, hour,
seniority, or other substantive provision which the Respondents have
established in the performance of the contract, or to prejudice the as-
sertion by the employee of any rights they may have under such agree-
ment.
We have found that an unfair labor practice by the Respondents
caused and prolonged the strike by Barbara, Manzella, and Sussman,
'IN. L. R. B. v. Remington Rand, Inc., 94 F. 2d 862, 871-872 (C. A. 2), cert. denied
304 U. S. 576; N. L. R. B. v. Staclapole Carbon Co., 105 F. 2d 167, 175-176 (C. A. 3), cert.
denied 308 U. S. 605 ; Republic Steel Corporation v. N. L. R. B., 107 F. 2d 472, 478 (C. A. 3),
modified as to other provisions 311 U. S. 7 ; Matter of Brown Radio Service and Labora•
tory, 70 N. L. R. B. 476.
19 See Matter of Ford Brothers, 73 N. L. R. B., 49, 70 ; Matter of Athens Manufacturing
Company, 69 N. L. R. B., 605, 608; Matter of Brashear Freight Lines, Incorporated, 1-
N. L. R. B. 191, 203.
867351-50-vol. 86-36
•550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which commenced on May 10, 1948. In order, again, to restore the
status quo as it existed prior to the time the Respondents engaged in
the unfair labor practice, we shall order that the Respondents, upon
.application made by Barbara, Manzella, and Sussman, offer these em-
ployees reinstatement to their former or substantially equivalent po-
., itions, without prejudice to their seniority or other rights and priv-
ileges, dismissing, if necessary, all persons hired on or after May 10,
1948. We shall also order that the Respondents make whole Barbara,
Manzella, and Sussman for any loss of pay they may have suffered, or
may suffer, by reason of the Respondents' refusal, if any, to reinstate
them upon their applications. In the event that the Respondents
have not offered reinstatement to any one of these employees upon his
application made between January 28, 1949, the date upon which the
hearing herein ended, and May 19, 1949, a date 5 days before the date
.of the Intermediate Report, the Respondents shall make him whole
by the payment to him of a sum of money equal to that which he
normally would have earned as wages during the periods: (1) from
five (5) days after the date upon which his application was made to
May 24, 1949, the date of the Intermediate Report, and (2) from the
date of our Decision and Order herein to the date of the Respondents'
offer of reinstatement; less his net earnings during such periods. In
the event that either Barbara, Manzella, or Sussman applies for rein-
statement after the date of our Decision and Order, the Respondents
shall make him whole by the payment to him of a sum of money equal
to that which he normally would have earned as wages during the
period commencing five (5) clays after the date on which he applies
for reinstatement to the date of the Respondents' offer of reinstatement,
less his net earnings during such period.
ORDER
Upon the entire record. in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Julian Freirich
and Selma Freirich, co-partners doing business under the trade name
and style of Julian Freirich Co., Long Island City, Queens, New
York, and their agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Assisting Local 640, Butcher Workmen of New York and New
Jersey, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL, by coercing their employees, or by offering them eco-
nomic benefits, to become or remain members of that labor organiza-
tion, and to refrain from becoming or remaining members of Local 627,
JULIAN FREIRICH CO. 551
Provision Salesmen and Distributors Union of New York and New
Jersey, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL;
(b) Recognizing the afore-mentioned Local 640 as the exclusive
bargaining representative of their employees for the purposes of col-
lective bargaining, unless and until it shall have been certified by the
Board as the representative of such employees;
(c) Giving effect to their contract with the afore-mentioned Local
640, bearing date of August 14, 1947, or to any extension, renewal,
modification, or supplement thereto;
(d) Discouraging membership in the afore-mentioned Local 627,
or in any other labor organization, by discharging or refusing to
reinstate any of their employees, or by discriminating in any other
manner in regard to the hire and tenure of their employment, or any
term or condition thereof; and
(e) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist the afore-mentioned Local
627, or any other labor organization, to bargain 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 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from the aforemen-
tioned Local 640 as the exclusive bargaining representative of their
employees for the purpose of dealing with the Respondents concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until the said organiza-
tion shall have been certified by the Board as the representative of such
employees ;
(b) Offer to Allen Peitersen immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges ;
(c) Make whole Allen Peitersen for any loss of earnings he may
have suffered by reason of the Respondents' discrimination against
him, by the payment to him of a sum of money equal to the amount
he normally would have earned as wages during the period from the
date of his discharge to the date of the Respondents' offer of reinstate-
ment, less his net earnings during such period;
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Upon their respective applications, offer George G. Barbara,
Anthony Manzella, and Charles H. Sussman immediate and full rein-
statement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, dismissing,
if necessary, all persons hired on or after May 10, 1948;
(e) Make Whole, in the manner provided in the section of this
Decision entitled "The Remedy," the persons named in the preceding
paragraph, by the payment to each of them of a sum of money equal
to that which he normally would earn as wages during the period, or
periods, described in the section entitled "The Remedy," less his net
earnings during such period or periods;
(f) Post at their plant in Long Island City, Queens, New York,
copies of the notice attached hereto marked "Appendix A." 20 Copies
of such notice, to be furnished by the Regional. Director for the Second
Region, after being duly signed by the Respondents' representative,
shall be posted by the Respondents immediately upon receipt thereof
and maintained by them for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees,
are customarily posted. Reasonable steps shall be taken by the Re-
spondents to insure that said notices are not altered; defacer, or covered
by any other material ; and
(g) Notify the Regional Director for the Second Region in writing,.
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
APPENDIX A
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, we hereby notify our employees that :
NVE WILL NOT
(a) ASSIST LOCAL 640, BUTCHER AVORKMIEN OF NEW YORK AND
NEW JERSEY, AMALGAMATED MEAT CUTTERS AND BUTCHER WORK-
MEN OF NORTH AMERICA, AFL, by coercing our employees, or by
offering them economic benefits, to become or remain members
of that labor organization, and to refrain from becoming or re-
maining members of LOCAL 627, PROVISION SALESMAN AND DIS-
TRIBUTORS UNION OF NEW YORK AND NEW JERSEY, AMALGAMATED
MEAT CUTTERS AND BUTCI-IER WORKMEN OF NORTH AMERICA, AFL;
20 In the event that this Order is enforced by decree of a Court of Appeals, there shall
be inserted in the notice, before the words : "A DECISION AND ORDER," the words : "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
JULIAN FREIRICH CO. 553
(b) Recognize the afore-mentioned LOCAL 640 as the exclu-
sive bargaining representative of our employees for the purposes
of collective bargaining, unless and until it shall have been certified
by the Board as the representative of our employees;
(c) Give effect to our contract with the afore-mentioned LOCAL
,640, bearing date of August 14, 1947, or to any extension, renewal,
modification, or supplement thereto;
(d) Discourage membership in the afore-mentioned LocAL
627, or in any other labor organization, by discharging or refusing
to reinstate any of our employees, or by discriminating in any
other manner in regard to the hire and tenure of their employ-
ment, or any term or condition thereof;
(e) In any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the afore-mentioned LOCAL
627, or any other labor organization, to bargain 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, and 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.
WE WILL
(a) Withdraw and withhold all recognition from the afore-
mentioned LOCAL 640 as the exclusive bargaining representative of
our employees for the purpose of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, unless and until said
organization shall have been certified by the Board as the repre-
sentative of our employees ;
(b) Offer to Allen Peitersen immediate and full reinstatement
to his former or substantially equivalent position, without preju-
dice to his seniority or other rights and privileges ; and we will
make him whole, in the manner provided in the Decision and
Order, for any loss of pay suffered by him as a result of our
discrimination against him ;
(c) Upon their respective applications, offer to George G. Bar
bara, Anthony Manzella, and Charles H. Sussman immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, all persons hired on or after
May 10, 1948; and we will make Barbara, Sussman, and Manzella
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole, in the manner provided in the Decision and Order, for any
loss of pay suffered by them as a result of our failure to reinstate
them upon their applications.
All our employees are free to become or remain members of any
labor organization.
JULIAN FREIRICH and SELMA FRFIRIC>-I
co-partners d/b/a JIJLAN FREIRICI3 Co.,
Employer.
By ---------------------------------------------
(Representative) (Title)
Dated --------------------
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
Lloyd S. Greenich, Esq., Vincent M. Rotolo, Esq., and Jerome A. Reiner, Esq.,
for the General Counsel.
Frederick W. Scholem, Esq., of New York, N. Y., for the Respondents.
Felig and Felig, by Elias Felig, Esq., of New York, N. Y., for the Complainants.
Arnold Cohen, Esq., of New York, N. Y., for Local 640, Intervenor.
STATEMENT OF THE CASE
Upon individual charges filed May 27, 1948, by George G. Barbara, Anthony
Manzella, Allen Peitersen, and Charles H. Sussman, and thereafter on Noveui-
ber 23, 1948, consolidated for purposes of hearing, the General Counsels for the
National Labor Relations Board, by the Regional Director for the Second Region
(New York, New York), issued a complaint dated November 24, 1948, against
Julian Freirich and Selma Freirich, co-partners d/b/a Julian Freirich Co., of
Long Island City, Queens, New York, herein called the Respondents, alleging
that the Respondents had engaged in and were engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, as amended by Public Law 101, 80th Congress,.
First Session, herein called the Act.' Copies of the complaint and the charge
together with the Regional Director's order consolidating the cases accompanied
by a notice of hearing were duly served upon the Respondents and the com-
plainants s
With respect to the unfair labor practices the complaint alleged in substance :
(a) that from about April 19, 1948, the Respondent threatened, warned, urged,
and persuaded their employees to refrain from becoming or remaining members of
Provision Salesmen Distributors Union of New York and New Jersey, Local 627,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,
1 The General Counsel and his representatives are herein referred to as the General
Counsel . The National Labor Relations Board is called the Board.
a 61 Stat. 136.
8 Provision Salesmen Distributors Union of New York and New Jersey, Local 627, Amal-
gamated Meat Cutters and Butcher Workmen of North America , AFL and Butcher Workmen
of New York and New Jersey , Local 640, Amalgamated Meat Cutters and Butcher Workmen
of North America , AFL were also served , but were not made parties to the proceeding.
JULIAN FREIRICH CO. 555,
herein called Local 627 , and urged them to become members of or remain mem-
bers of Butcher Workmen Union of New York and New Jersey, Local 640 of the
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,
herein called Local 640; (b ) that on May 7,1948, the Respondents discriminatorily
discharged and have refused to reinstate Allen Peitersen ; ( c) that on and after
May 11, 1948 , the Respondents have discriminatorily refused to reinstate Charles
H. Sussman , Anthony Manzella , and George G. Barbara ; and (d ) that by these
acts the Respondents have interfered with, restrained , and coerced their em-
ployees and are interfering with , restraining , and coercing their employees in
the exercise of rights guaranteed in Section 7 of the Act , more particularly Sec-
tion 8 (a) (1) and ( 3) thereof.
Thereafter on December 13, 1948, the Respondents filed an answer in which
they averred that the Board was without jurisdiction in the matter ; denied that
they had engaged in any of the unfair labor practices alleged in the complaint;
averred that Peitersen was discharged for cause ; that Barbara, Manzella, and
Sussman voluntarily quit their employment and that "all of which was pursuant
to a contract between the respondents and Local 640."
Pursuant to notice a hearing was opened at New York, New York , on January
11, 1949, before Louis Plost , the undersigned Trial Examiner , duly designated
by the Chief Trial Examiner . At the opening of the hearing the Respondent's
attorney filed an application for a continuance , together with a statement of a
physician to the effect that the Respondent Julian Freirich was ill and confined
to his bed . The undersigned recessed the hearing until January 24 , at which
time it was reconvened and continued until January 28 . On January 24, Local
640 moved to intervene on the ground that it held a collective bargaining contract
with the Respondents . The undersigned granted the motion without objection
and admitted Local 640 as a party insofar as its interests might appear . There-
after the General Counsel , the complainants , the Respondents , and Local 640 were
all represented by counsel , participated in the hearing and were afforded a full
opportunity to be heard , to examine and cross -examine witnesses , and to intro-
duce evidence bearing upon the issues.
At the close of the evidence in the General Counsel's case in chief and again,
at the close of the hearing the Respondents moved to dismiss the complaint.
The undersigned denied the motion in each instance . Likewise at the close of
the hearing the undersigned granted, without objection , a motion by the General
Counsel to conform the pleadings to the proof with respect to the spelling of
names, dates , and like matters , not substantive.
All parties argued orally on the record . A date was set for the filing of briefs,
conclusions of law and findings of fact or both , with the undersigned , the time
for the filing thereof being extended by the undersigned on motion by the Re-
spondents . Briefs have been received from the General Counsel, the Respondents,.
and the Intervenor and have been considered by the undersigned.
Upon the entire record in the case and from his observation of the witnesses,.
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Respondents , Julian Freirich and Selma Freirich are a copartnership.
doing business under the style and name of Julian Freirich Co. The principal,
place of business and office maintained by the Respondents is in Long Island City,.
Queens, New York . The Respondents are engaged in processing meats, prin--
.556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cipally tongues, corned beef, tenderloins, and Canadian bacon. During the
calendar year 1948, the Respondents purchased "green" or unprocessed meats
from the Armour, Cudahy, Wilson, Swift, and Decker packing companies amount-
ing to approximately $1,600,000 in value. Twenty five percent of such unpro-
cessed meats came to the Respondents directly from points outside the State of
New York. The Respondents' sales of processed meats exceed the purchases in
money value and are all made to customers within the State of New York.'
The Respondents contend that their business operations do not constitute com-
merce within the meaning of the Act.
The undersigned finds no merit in this contention.
II. THE ORGANIZATIONS INVOLVED
Butcher Workmen Union of New York and New Jersey, Local 640 of the Amal-
gamated Meat Cutters and Butcher Workmen of North America, affiliated with
the American Federation of Labor, is a labor organization admitting employees
of the Respondents to membership.
The above-named organization was permitted to intervene and become a party
to the proceeding.
Provision Salesmen Distributors Union of New York and New Jersey, Local 627,
.Amalgamated Meat Cutters and Butcher Workmen of North America, affiliated
with the American Federation of Labor, is a labor organization admitting em-
ployees of the Respondents to membership.
The above-named organization was not made a party to the proceeding in the
-complaint and did not seek to intervene.
III. THE UNFAIR LABOR PRACTICES
A. The Contractual relationship between the Respondents and Local 6110
The General Counsel did not make either Local 640 or Local 627 a party, nor
does the General Counsel in his complaint make any attack on any contract be-
tween the Respondents and any labor organization, however, as hereinbefore
stated the Respondents in their answer plead a contract between themselves and
Local 640, moreover, Local 640 was permitted to intervene on its contention that
it held a collective bargaining contract with the Respondents.
Evidence was adduced to show that the Respondents and Local 640 had been
under contract covering the wages, hours, and working conditions of certain of
The Respondents' employees from at least 1940.
There is evidence that on November 12, 1946, the Respondents and Local 640
Centered into a "closed shop" agreement, effective for a period of 1 year (subject
to automatic renewal) from November 10, 1946.
The closing date of this agreement was therefore November 10, 1947.
The effective date of the Act was August 22, 1947, after which date the law
prohibited the negotiation of "closed shop" contracts.
There was introduced as an exhibit a contract alleged to have been negotiated
.and signed on August 14, 1947, approximately 3 months before the expiration
date of the agreement then in effect between Local 640 and the Respondents and
.8 days prior to the "dead line" date created by the Act. This document set up a
."closed shop" and according to the testimony of Louis Block, the secretary-
,manager of Local 640 was negotiated in order to replace the then existing contract.
1t was also stated on the record by the attorney for Local 640 during his oral
4 This finding is based on a stipulation of the parties.
JULIAN FREIRICH CO. 557'
argument that the contract of August 14 was entered into in order to circumvent
the Act.
During the investigation of the case the Respondents were requested by the
General Counsel to furnish a copy of the August 14 contract. The Respondents
furnished a photostatic copy of the contract and did not offer a convincing
explanation for the absence of the original at the hearing. It is apparent that
the photostatic copy is made from the copy of Local 640 which was introduced by
it. The latter document is a mimeographed form contract, the dates and the
Respondents' name being written in ink on lines left blank, some blanks are not
filled in and some matter is crossed out. The document is signed in ink "Julian
Freirich" on the line reserved for the Union's representative. The firm name,
used by the Respondents does not appear, although it does so appear on all'
previous contracts introduced in evidence. In ambiguous language the contract
seeks to bind the parties to a term of 2 years and an automatic renewal of 1 year..
The last sheet of the contract is a schedule of employees subject to its terms
and it was admitted by the secretary of Local 640 that this sheet was part of the
contract when signed. Six individuals are named. Of these six individuals one
testified that he began to work for the Respondents on a date about 1 month after-
the date of the contract. The respondents' records show this individual to have
started with the Respondent no earlier than October 1948, approximately 2 months
after the time the contract lists him as an employee. A second of the individuals'
named as being covered by the contract, did not work for the Respondents longer'
than a period of 1 week. This week contained therein the date September 26,.
1947.
Evidence regarding the above-mentioned contract was adduced by the respond-
ents and Local 640.
Harold Lippe], the recording secretary of Local 640, testified that he signed'
the August 14 contract, and that the contract was signed "in Julian Freirich's
office."
Julian Freirich testified ` that he signed the contract but that he did not know
whether or not lie affixed his signature in his office or at his home. Julian,
Freirich further testified, "I doubt if I read any part of the contract."
6 Julian Freirich was present throughout the entire hearing and testified briefly as the
last witness called by the Respondents . The following statement made on the record by
the undersigned following Julian Freirich ' s testimony is self explanatory
Trial Examiner PLOST . The hearing will be in order.
Before we begin let me state for the record that towards the close of yesterday's
session Mr. Julian Freirich , one of the Respondents in this matter , was on the wit-
ness stand . There was a short direct examination , after which he was taken for
cross-examination and while he was cross-examined by the attorney for the com-
plainants , the trial examiner noted that Mr. Freirich was evidently ill and was not
conducting himself in the manner that a normal well person would on the stand.
The cross -examination had not been concluded . Mr. Freirich had been cross-
examined with courtesy . There apparently was nothing in the manner of the cross-
examination or the cross -examination itself to have unduly affected a person who.
was not ill.
The witness was within 3 feet from the trial examiner . The trial examiner was
observing the witness and noted his apparent discomfort . At this point the ex-
aminer stopped the proceedings and was off the record , asked Mr. Freirich whether'
or not he was ill and whether he wished to continue with his testimony. Mr.
Freirich replied that he knew that he had to testify and that he felt he could con-
tinue with his testimony.
The trial examiner had been informed , ex parte , before Mr . Freirich took the
stand , that Mr . Freirich suffered from a heart ailment. He then , after speaking to.
Mr. Freirich , meaning speaking to him while he was on the witness stand , made the-
statement to the attorney who was cross -examining the witness that Mr. Freirichn
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Through the above related and similar testimony the validity of the August 14
contract between the Respondents and Local 640 was litigated in the hearing.
In his brief the General Counsel argues that the contract is invalid e In their
brief the Respondents argue that the contract is valid and contend that the
"closed shop" provisions therein are a defense to the allegations of unfair labor
practices of the complaint.
The Intervenor, Local 640, in its brief filed with the undersigned also argues
the validity of the contract.
Although the complaint does not allege that the August 14 contract is invalid
or that its negotiation, its terms, or its administration either singly or collec-
tively constitute an unfair labor practice, yet the validity of the contract became
.an issue properly before the undersigned through litigation in the hearing and
.requires a finding.
In matters wherein a contract is pleaded as a defense the trier of fact is under
.a strong presumption that the contract adduced is wholly regular and valid.
This presumption can be overcome.
Under all the circumstances and upon all the evidence considered as a whole
-the undersigned is not entirely persuaded that the contract of August 14 is
-invalid.
It is true that the appearance of the document introduced by Local 640 as
the original signed copy of the August 14 contract between it and the Respond-
ents ; the fact that the Respondents did not produce an original copy and offered
no convincing reason for not doing so, but produced a photostatic copy which
is an exact copy of that in the possession of Local 640, including the peculiarly
.misplaced signature; the employees named therein as being subject to the con-
tract ; and the conflict in testimony by the signatories, all point to irregularities
-which could be fatal, however the undersigned is not persuaded that the evidence
.of irregularity is so conclusive as to overcome the original presumption of
legality. Although the matter is far from free of doubt the undersigned finds
that the contract of August 14, 1947, existing between the Respondents and
suffered from a heart ailment, and that the attorney should please bear it in mind
during the cross-examination and make the cross-examination as brief as possible,
not intending to limit it, however. The attorney stated that he had practically
finished with his examination and would only require one more question to close his
examination.
We went back on the record. The attorney asked the question, which was an-
swered. Mr. Freirich then left the stand and then collapsed immediately. Ile was
removed to another room. A physician was immediately called, as well as another
member of Mr. Freirich's family. The physician arrived within the course of 20 or
30 minutes and was with Mr. Freirich for a half or three-quarters of an hour, Mr.
Freirich then being removed from the building by members of his family who had
arrived and by the physician.
The physician informed the trial examiner, ex parte, at the time that he was Mr.
Freirich's personal physician, that Mr. Freirich had for quite some time been subject
to a heart ailment and that this was a heart attack which he deemed to be quite
serious.
I make this statement, gentlemen, for the purpose of the record and because I
feel that if the testimony of the witness Freirich should ever be evaluated through
the record by any other person other than the trial examiner, who was present, and
-observed the occurrence, that it will be evaluated in the light of all the circum-
stances under which the testimony was given and taken.
We will be off the record.
9 The General Counsel argues in his brief that the contract is invalid for the reason
-that there was no showing that Local 640 represented a majority in an appropriate unit
when it was signed. The undersigned finds no merit in this contention. See Electro-
Metallurgical Co., 72 N. L. R. B. 1396.
JULIAN FREIRICH Co. 559
Local 640 is legal and binding insofar as the matters pertaining to this hearing
:are concerned.
B. Alleged interference, restraint, and coercion
On April 9, 1948, the Respondent had in their employ four route or salesman-
drivers. By the terms of the August 14, 1947, contract between the Respondents
:and Local 640 these salesman-drivers, namely, George G. Barbara, Anthony
Manzella, Allen Peitersen, and Charles H. Sussman were required to become
members of Local 640 on penalty of discharge at its request if they did not do so.
.At the time Manzella and Sussman were affiliated with Local 640, while Peitersen
and Barbara were not.
All four of the above-named salesman-drivers testified that on April 9, 1948,
they signed applications for membership in Local 627.
Manzella testified that upon his arrival at the Respondents' loading dock at 6
a. in. on April 19, 1948, he observed Julian Freirich there and asked him "how
come he had been there so early" and that Freirich replied it was "on account
of you fellows signing up with a different local." Manzella further testified
that Julian Freirich then told all the salesman-drivers that Local 640 had in-
formed him that they had joined Local 627 but that "he wasn't going to have
any other local there except 640, and as far as he was concerned the men could
not stay in the plant that were members of Local 627." Manzella also testi-
fied that at the time Freirich offered to pay Manzella's dues in Local 640.
Peitersen testified to seeing Julian Freirich at the loading dock on the morning
of April 19, at which time Freirich told him inter alia "you make it your busi-
ness to go up and sign with 640."
Barbara testified that on the morning of April 19, he held a conversation with
Julian Freirich "between two trucks" wherein the latter told him that "640
was his [Freirich's] organization and that he didn't want to change it," inas-
much "that 640 had represented him [Freirich] for 10 years."
All of the salesman-drivers testified to various telephone conversations with
Freirich in which they were urged by Freirich to affiliate with Local 640.
The record is clear from mutually corroborative and undenied testimony that
after working hours on April 23, the Respondents met with the salesman-drivers
at the Respondents' office and during the meeting the men were urged to join
Local 640 by the Respondents. It is also undenied that Peitersen was given
an application card for Local 640 by the Respondents and that the business agents
of Local 640 were permitted to talk to the man in the Respondents' office.
Sussman testified that when he made final settlement of his account with the
Respondents, he was charged with union dues paid to Local 640 by the Re-
spondents for his account. This testimony was undenied.
Some of the incidents brought out in the complainants' testimony as above set
out were denied by the Respondents but in the main the testimony was not de-
nied, and is credited by the undersigned.
All of the evidence relating to interference, restraint, and coercion, other than
derivative 8 (a) (1), consists of statements made to their salesman-drivers by
the Respondents urging them to join Local 640. Inasmuch as the Respondents
were party to a "closed shop" contract with Local 640 which required that these
employees join Local 640 as a condition of continued employment, and inasmuch
as it has been found herein that the "closed shop" contract between the Re-
spondents and Local 640 was a valid agreement insofar as this proceeding is con•
cerned the undersigned finds that the Respondents did not violate the Act by
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
urging their salesman-drivers, subject to the contract, to join Local 640, by
giving them application cards for membership in Local 640, by withholding dues
in accordance with the terms of the contract and by permitting the agents of
Local 640 access to their premises in order to speak with the salesman-drivers.
C. The discriminatory discharge of Allen Peitersen
Allen Peitersen was employed by the Respondents in January 1948, and was
discharged on May 8, 1948. Peitersen testified that at the time he was first em-
ployed by the Respondents he was told by Julian Freirich that he would be re-
quired to join a labor union but that he was not told the name of the union of
which he was a prospective member.
Julian Freirich testified that at the time he hired Peitersen, Freirich told
him, "Our local is 640. I would give him 30 days times and after 30 days he
would have to join the Union."
Inasmuch as the Respondents were under contract with Local 640, and in view
of Peitersen's testimony that he was told that he would be required to join a
union, the undersigned is persuaded that Freirich's version of the conversation
regarding Peitersen's prospective union membership is the more accurate and
that Peitersen was in fact told at the time he was employed that he would be
required to join Local 640. In any event some time prior to his discharge Peit-
ersen was told by the Respondents that he must join Local 640 in order to con-
tinue in the Respondent's employ.
Peitersen testified that he did not join Local 640, and that from the time of
his first conversation with Julian Freirich until some time in March, 1948, no
person asked him to do so.
Louis Berkowitz testified that he is a business agent for Local 640, and that
some time "about the middle of '48"' he told Peitersen that "he would have to
join the Union" ; [Local 640] that lie made this statement to. Peitersen "three
or four times" ; and that Peitersen asked him (Berkowitz) to be his labor rep-
resentative.
Peitersen denied that Berkowitz had ever asked him to join Local 640, and
testified that he had never met Berkowitz.
Berkowitz was a witness skilled in circumlocution and expert in evasion.
From his observation of Berkowitz on the stand and from the character of his
testimony the undersigned believes Berkowitz to be a wholly unreliable witness
and does not credit his testimony. The undersigned credits Peitersen's testi-
mony to the effect that Berkowitz did not inform him that he would be required
to join Local 640 and that Peitersen did not in fact know Berkowitz.
Harold Lippel, the recording secretary of Local 640, after much evasive testi-
mony in which it was apparent that he was attempting to create the impression
that Local 640 legally represented Peitersen by the latter's consent admitted that
at the time of Peitersen's discharge he had at no time applied for membership in
Local 040.
Regarding the Local's claim to represent individuals in Peitersen's situation
Lippel testified as follows :
Trial Examiner PLoST. What does lie do to get you to be his representa-
tive?
WITNESS. Well more or less he has to sign an application.
7 Peitersen was of course not in the Respondents ' employ in "the middle of '48."
JULIAN FREIRICH CO. 561
Trial Examiner PLOST. And until he has signed an application card you
do not represent him?
WiTNass. No.
It has been found herein that Peitersen applied for membership in Local 627
on April 9. It is clear that by April 19, the Respondents had full knowledge
that Peitersen had signed an application card for membership in Local 627, and
it is also clear that by April 23, the Respondents through Julian Freirich and
Jerry Freirich had urged Peitersen to join 640, and that application cards for
Local 640 were given to Peitersen by the Respondents' bookkeeper.
Peitersen testified that on May 7, 1948, after he had received his pay, checked
out and was ready to take his truck to the garage Jerry Freirich, the son of
Julian Freirich who was in charge of the plant asked Peitersen for the keys to
his truck at the same time telling him that the Respondents wished to take the
truck to a painter during the week end. Peitersen turned his keys over to Jerry
Freirich and drove his truck to the garage where he noticed that his route book
and his overalls (which were the property of the Respondents) were missing.
Peitersen testified that he then telephoned a report of the loss to Jerry Freirich
who told him that the foreman had taken the route book to check the addresses.
On May 8, Peitersen received a letter from the Respondents by registered special
delivery mail. This letter was a copy of a letter the Respondents had sent to
Local 640 in which the Respondents informed Local 640 that they were dis-
charging Peitersen and giving their reasons therefor .8
Peitersen testified that the letter was his first initimation that he was being
discharged.
After the receipt of the letter Peitersen notified Collins, the Local 627 organizer,
and at the latter's suggestion also notified the other three salesmen-drivers.
The Respondents contend that Peitersen was not discharged under the terms
of their contract with Local 640,° but that lie was discharged solely "on two
distinct counts of dishonesty." One count being the disappearance of an entire
"porkette" weighing "about two and a half pounds" worth "about 75 cents a
pound." The second instance of dishonesty was the disappearance of "an entire
box of porkettes, weighing about 30 pounds."
Jerry Freirich testified that some time in April he was told by a customer, one
Schwartz of the Grand Royal Market, in a telephone conversation that Peitersen
had delivered an order which was short in weight about 21/2 pounds, and that
he told Peitersen "we can't stand for that kind of stuff" ; that Peitersen then
e The letter read as follows :
GENTLEMEN : Pursuant to the provisions of paragraph Fourth of our existing agree-
ment, we are notifying you that effective as of May 8th, 1948, we are discharging
Allen Peitersen from our employ. The reasons for the discharge are as follows :
General inability to give satisfactory service as a route driver.
1-Short weight in accounts.
2-Poor service to accounts.
8-Poor results of specific items.
Very Fruly yours,
,,JULIAN FREIRICH CO.,
By JERRY FREIRICH.
6 The record is clear that (a) the contract gave Local 640 the right to demand the dis-
charge of any of the Respondents' employees who did not maintain membership in Local
640, it did not give the Respondents the right to discharge for such cause without such
request by Local 640. (b) There was no request made by, Local 640 that the Respondents
discharge Peitersen. The Respondents cannot therefore advance the contract as a defense.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted removing a "porkette" from the customer's order; and that Peitersea
called on the customer the same day and gave the customer another "porkette."
Lee D. Schwartz testified that Peitersen delivered an order to his store which
was discovered to be short one "porkette" and that he notified the Respondents,
and that later a porkette was delivered to him by Peitersen to make good the
shortage.
William Reinmann testified that in April 1948, he was present in the Respond-
ents' office and heard Jerry Freirich tell Peitersen of the complaint by Schwartz
and that Peitersen admitted the short delivery and said "it will not happen again "
and that Jerry Freirich then told Peitersen "If it does happen again, you and I
are finished. We don't want to lose our reputation."
Peitersen, on cross-examination by the Respondents, testified as follows :
Q. Do you remember that they told you that a customer said that you
delivered a box of porkettes and there was one missing?
A. I remember that distinctly. It was one pound and a quarter missing.
Q. Did you admit to Jerry Freirich and William Reinmann that you had
removed that porkette?
A. I did not.
There is evidence that shortages were common due to natural shrinkages and
the methods of packing whereby the salesman-drivers could open boxes in order
to fill customers' requests for partial packages. There is also undenied evidence
to the effect that on one occasion the Respondents' scale was found to be
inaccurate.
On all the evidence in the case the undersigned is persuaded that Peitersen did
deliver an order to a customer, namely, Lee D. Schwartz, Grand Royal Market,
which was short one "porkette" and that the shortage was made good, however,
in view of the clear evidence that shortages were not an uncommon occurrence
the undersigned is not persuaded that Peiterson was guilty of theft in the occur-
rence. The undersigned does not credit the testimony of Jerry Freirich to the
effect that Peitersen was accused of theft and admitted theft but is persuaded
that Peitersen merely accepted the customers' word as conveyed to him by Jerry
Freirich, and replaced the shortage on the Respondents' order to do so.
Jerry Freirich further testified that on May 7, 1948, he received a telephone
call from Martin Lush of the Butcher Boy Market informing him that Peitersen
had delivered and received a receipt for a box of "porkettes" which called for
120 pounds but the box contained only 90 pounds.
Jerry Freirich testified :
Peitersen came in and after he settled up with the girl I went downstairs:
with him and asked for his keys, his book, his routebook and told him that I
had gotten in touch with Dad [Julian Freirich].
Q. Did you tell him at that time that your father told you that he was fired?
A. Yes.
Jerry Freirich denied that he told Peitersen he wanted the keys in order to use
the truck in connection with the painting of another truck.
Martin Lush testified that he is the owner of Butcher Boy Market ; that on
May 6, 1948, Peitersen delivered an order of "porkettes" to his establishment;
that the delivery was made at a time when all the personnel was busy and that a
receipt for 120 pounds was given Peitersen before the merchandise was checked;
JULIAN FREIRICH CO. 563
that when the container,was checked it was found to be 30 pounds short; that he
notified the Respondents the next day and was credited for the shortage.
Jerry Freirich further testified that when he received the call from Lush he
called the office of Local 640 and informed Lippel that he intended to discharge
Peitersen and that Lippel then asked him for a letter. Freirich then dictated
the letter sending a copy to Peitersen.
Jerry Freirich admitted that at the time he discharged Peitersen and before
he wrote and mailed the letter above referred to, he knew Peitersen to have become
affiliated with Local 627. The Respondents also knew that Peitersen had not
joined Local 640 as he had been urged to do by the Respondents. Moreover the
Respondents contend that they (lid not discharge Peitersen because of his failure
to join Local 640,10 or because he sought membership in Local 627, but for the
sole reason that he was dishonest.
The copy of the letter which the Respondents allegedly sent to Local 640, and
which was sent to Peitersen is dated May 7, 1948; it states that "effective as of
May 8th, 1948, we are discharging Allen Peitersen." It strikes the undersigned
that had Jerry Freirich already discharged Peitersen for dishonesty prior to.
writing the letter, as he testified, he would hardly have notified Local 640 that
the discharge was effective the next day. The letter also lists as reasons for-
discharge "poor service of accounts and poor results of specific items." Ac-
cording to the testimony of Jerry Freirich he did not advance these reasons for-
Peitersen's discharge to either Local 640 or Peitersen. Jerry Freirich testified
that lie dictated the letter after a conversation with Harold Lippel, secretary of
Local 640, and yet the letter is not addressed to Lippel or any other official but.
impersonally to the organization.
Sometime after Peitersen's discharge he received a letter from the Respondents.
asking that he settle his account. On May 20, Peitersen settled his account with
the Respondents, he testified that lie was first told of the shortage in the Butcher
Boy Market account at that time and that he had never been told by the Re-
spondents or any of their agents that dishonesty was the cause of his discharge.
until the date of this final settlement.
The record shows that at or about the time the Respondents settled their,
account with Peitersen they also settled outstanding accounts with three other
salesmen-drivers who had severed their employment with the Respondents under
circumstances hereinafter discussed. In the statement given each of these-
salesman-drivers the Respondents had included a shortage consisting of a box-
of meat. The Respondents did not contend that these three salesman-drivers:
were guilty of theft by reason of these shortages.
In view of the inconsistencies apparent in the Respondents' letter to Local 640,
regarding Peitersen, and from the evidence in the record considered as a whole-
the undersigned does not credit Jerry Freirich's testimony to the effect that on.
May 7, 1948, he informed Peitersen that he was being discharged because of
dishonesty. The undersigned credits Peitersen's account of the incidents relat-
ing to his turning over the keys of the truck to the Respondents on the last
day of his employment and the undersigned further credits Peitersen's testimony
to the effect that he was not told by the Respondents that his dishonesty was the-
cause of his discharge until the day he called at the Respondents' office in order-
to settle his account.
On all the evidence the undersigned is convinced and finds that the Respondents:
did not discharge Peitersen for dishonesty.
10 See Footnote 7, supra.
.564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inasmuch as the Respondents' sole contention for the discharge of Peitersen
is the latter's dishonesty; having found that such was not the cause thereof, the
sole remaining cause for the discharge can only be Peitersen's membership in
Local 627, or his refusal to join Local 640, or both. This finding is strongly but-
tressed by the findings that the Respondents urged Peitersen and other of their
employees to join Local 640. The undersigned has found that the Respondents
were under a valid contract with Local 640. However, the Respondents can in
no event rely on their contract with Local 640 as a defense for their discharge
of Peitersen inasmuch as Local 640 did not request Peitersen's discharge for fail-
ure to maintain membership in Local 640. The contract does not give the Re-
spondents the right to discharge their employees failing to maintain their mem-
bership in Local 640 absent a request by Local 640. Upon all the evidence the
undersigned finds that the reason advanced by the Respondents for the discharge
of Peitersen is not the real reason therefor, but is a mere pretext and finds that
the Respondents on May 8, 1948, discharged Allen Peitersen because of his mem-
bership in and activities on behalf of Local 627, which organization he had a
right to join without interference by the Respondents, as well as his refusal
to join Local 640. Thereby the Respondents have discriminated in respect to
his hire and tenure of employment, discouraged membership in a labor organiza-
tion and have interfered with, restrained, and coerced their employees in the
exercise of rights guaranteed in Section 7 of the Act and are now so discrimin-
ating against, interfering with, restraining, and coercing their employees in
violation of the Act.
Peitersen testified that he did not ask the Respondents for reinstatement.
The undersigned finds such request to be unnecessary as it would clearly have
been futile.
D. The strike and the alleged discriminatory discharges of George G. Barbara,
Anthony Manzella, and Charles H. Sussman
George G. Barbara, Anthony Manzella, and Charles H. Sussman were em-
ployed together with Peitersen as salesmen-drivers by the Respondents. All of
'the men signed application cards for membership in Local 627 on April 9, 1948.
At the time they signed the applications for Local 627, all of the salesman-
drivers were subject to the contract then in existence between the Respondents
and Local 640. Manzella and Sussman can be said to have been affiliated with
Local 640. Barbara was not.
On May 10, 1948, all of the above-named men reported to the Respondents'
garage at approximately 6 a. in. and there learned that the truck customarily
driven by Peitersen had already been removed. The men had already been in-
formed that Peitersen was discharged. At the garage the men also met Frank
Collins, then an organizer for Local 627.
Manzella testified that after "we spoke to Mr. Collins" it was decided to go
to the Respondents' plant. "Because Peitersen had been fired and we were told
we would go to the plant and try to have Peitersen reinstated and then we would
continue to work."
Barbara testified that Collins "told us since Mr. Peitersen was discharged let.
us all go down to the plant, see if he couldn't iron this thing out, and we got
in Mr. Collins' car and went to the plant."
Collins testified that he met the men at the garage on the morning of May
10 and told them, "Leave your trucks there a few minutes. We wilhhgo down and
see what we can do about this thing meaning we'd go down to the plant."
JULIAN FREIRICH CO. 565
The four salesman-drivers accompanied Collins to the Respondents' plant and
remained in the vicinity for some time, observing that all of the Respondents'
trucks were finally loaded and driven out. At least one of the drivers who took
the trucks out was furnished by Local 640.
Collins did not speak to the Respondents and eventually Collins and the four
men went to the office of Local 627.
Collins testified :
Q. (By Trial Examiner PLOST) : Did you, at any time, on May 10, have
any conversation or any contact with the Respondent, Julian Freirich,
or any of his representatives?
A. No.
Q. Did you on May 11, the day following that you went down?
A. No.
Q. There has been testimony here that for several days following the dis-
charge of Mr. Peitersen and the incidents related by yourself on May 10
that these men, accompanied by you, meaning Mr. Sussman, Mr. Peitersen,
Mr. Barbara and Mr. Manzella, visited the vicinity of the plant daily, and
that you were with them.
Now, during that time, did you, at any time, talk to the respondent
Freirich or any of his representatives regarding the matters on which this
complaint is based?
A. No.
Q. You had no conversation with him whatever?
A. No.
Collins testified that the only conversation he had with the Respondents was
over the telephone with Julian Freirich on Sunday, May 9. Collins testified that
in this conversation with Julian Freirich which "didn't last more than two min-
utes, two and a half minutes" he told Freirich that "I called in reference to
Peitersen" and upon being told by Freirich that Peitersen had been discharged
for cause Collins then said "All right Mr. Freirich, if that is how you feel. I
called you up to see if I could get this man back to work for at least a week until
the heads of both unions, Local 627 and 640 came back from Chicago and there-
after it will be straightened out very easily."
It is clear that after the morning of May 10, the four salesman-drivers accom-
panied by Collins came to the vicinity of the Respondents' plant each morning
during the following week and remained until some time after the trucks were
loaded and left. They held some desultory conversations with the men who were
driving the trucks they formerly manned. It is also clear that the trucks left
each day to cover the routes formerly covered by the four salesman-drivers, and
it is equally clear that the striking employees were replaced by new drivers.
Manzella testified that on May 11, the Respondents' bookkeeper who was on
the loading platform asked Manzella for his keys and that he replied that they
were in the truck and that Julian Freirich was present, but he did not speak to
Manzella.
Manzella testified that personally he never at any time offered to return to
work.
Sussman testified that on the morning of May 11, Julian Freirich "beckoned
for me to come over to the platform." Sussman testified that he and Barbara
then walked to the platform and according to Sussman :
Mr. Freirich said, "Give Sylvia the keys for your truck." And I said,
"Well, why the keys, aren't we going to go to work? What is going on?"
867351-50-vol. 86-37
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He says, "I don't need you, I don't need the whole lot of you. You are
finished...."
Then he asked Jerry [Barbara] for his keys, and Jerry said, "I haven't
got them, but I will bring them tomorrow."
Regarding the same occurrence Barbara testified as follows :
Q. Did you see Mr. Julian Freirich on that date?
A. Yes.
Q. Where did you see him?
A. I saw him in the plant, on the platform. That is, I was away from
the platform and I could only see him if he stepped out on the platform.
Q. Did you have a conversation with Mr. Freirich on this occasion?
A. Not directly, no.
Along about nine o'clock, I would say, of that morning, Sylvia waived to me
and Sussman, so we walked over to her and she asked us for the keys.
Q. Was Mr. Freirich present at this time?
A. Yes. And I told Sylvia that I had left my keys homd, and that I
would bring them the following morning.
Julian Freirich categorically denied that he ever asked Barbara and Sussman
for the keys to the trucks or told them that "they were through."
Considering the conflict in the testimony of Sussman and Barbara with re-
spect to the occurrence of May 11,.as above set forth as well as the testimony of
Julian Freirich the undersigned is convinced that as between the testimony of
Sussman and Julian Freirich, that of the latter is the more accurate version,
therefore the undersigned credits the testimony of Julian Freirich with respect
to such testimony and does not credit the testimony of Charles H. Sussman, that
Julian Freirich did in effect discharge the striking salesman-drivers.
Except for Sussman none of the other salesman-drivers testified that they
in any way offered to return to work. The General Counsel contends that Suss-
man's alleged conversation with Freirich on May 11, as above set out constituted
an unconditional offer to return to work by the salesman-drivers then on strike
and a refusal to reinstate them by the Respondents. The undersigned has not
credited Sussman's testimony and therefore finds on all the evidence that none
of the strikers either as individuals or through any representative offered to
return to work after they first failed to take their trucks out on May 10, 1948,
and further finds that the Respondents did not discharge Manzella , Sussman,
or Barbara.
Concluding findings on the strike and alleged discriminatory discharges
Manzella, Sussman, and Barbara all testified that they did not go to work on
May 10, and thereafter, because Peitersen had been discharged and they were
following the instructions given them by Collins, the organizer for Local 627.
They continued to follow Collins' instructions during the week they picketed the
Respondents' plant and apparently abided by the advice of Local 627 thereafter.
The salesman-drivers struck for two reasons, intermingled and inseparable.
The undersigned is of the opinion that the primary motive for the strike was to
compel the Respondents to recognize Local 627 as the bargaining representative
of the salesman-drivers. Peitersen's reinstatement was to follow such recog=
nition. Regarding that part of the strikers' motive which relates to recognition
of Local 627, the undersigned has found that the Respondents and Local 640
were parties to a valid collective bargaining agreement which was binding upon
JULIAN FREIRICH CO. 567
the parties and the employees subject to its terms until August 10, 1948. It is
therefore clear that the instant matter does not fall within the ambit of the
Rutland Court" doctrine, wherein the protection of the Act is extended to em-
ployee members of a contract holding union engaged in an effort to change their
bargaining representative at or near the termination of a contract period.
Assuming arguendo that because Local 640 had never been certified by the
Board and that a competing labor organization may lawfully strike for recog-
nition during the effectii'e term of a contract held by an uncertified union" Local
627, in order to effectively challenge its contract holding rival and at the same
time keep its striking member employees of the Respondents within the protec-
tion of the Act would be required to fulfill certain well-established conditions
.among which is the elementary one that the employer must be put on notice of
the Union's claim to majority status and a demand for recognition must be made.
This was not done. Local 627 neither before nor after the strike made any
demand on the Respondents.
The only contact which Local 627 had with the Respondents was by a telephone
conversation between Collins and Julian Freirich on Sunday May 9. Collins
testified that he called Julian Freirich at the latter's home and in a conversation
which lasted 21/ minutes he asked that Peitersen be reinstated "at least one
week" in order to give "the heads of both unions, Local 627 and 640" an oppor-
tunity to settle matters among themselves. During this conversation, Collins also
found time to tell Freirich "there would be trouble." 13
It cannot be argued that the Respondents had notice because they knew that
the salesman-drivers had affiliated with Local 627. Campaigning with the
knowledge of the employer is not equivalent to a claim by the campaigning organi-
zation that it represents a majority of the employees nor is it tantamount to a
request for exclusive bargaining rights under the Act.14
11 Matter of Rutland Court Owners, Inc., 44 N. L. R . B. 587.
12 Matter of Perry Norvell Co., 80 N. L. R. B. 225.
13 Collins appears to have held peculiar ideas regarding the method of obtaining recogni-
tion for Local 627. Likewise , the attorney for Local 640 seems to have a distorted sense
of values with respect to the importance of the Board 's legal processes and the will of his
client. At the close of the hearing the attorney who had not been in attendance during
all of the proceedings came into the hearing room, asked if the hearing had been closed,
and then stated :
Mr. COHEN : I am in receipt of an original Western Union telegram that's been
addressed to Louis Block , Amalgamated Meat Cutters, Local 640, from Patrick E.
Gorman.
An examination of the telegram indicates that it was sent from Miami , Florida. I
think the Trial Examiner can take official notice that there are executive counsel meet-
ings of the AFL in Florida at this time , that Mr. Gorman is in Florida and that Mr.
Felig's as a local that is affiliated with the Amalgamated Meat Cutters , know that
Mr. Gorman is in Florida now, too.
This telegram was sent to clear up one point here , and I am going to offer this tele-
gram either in evidence-I am going to offer it in evidence and if it is not received
in evidence it should be marked for identification that the Board can consider whether
they want to receive it in evidence.
Trial Examiner PLOST : What are you offering?
Mr. COHEN: The telegram reads as follows : "The Freirich plant should remain
status quo . Jurisdiction was given to Local 640 as a result of conferences during
convention in Chicago last May.- Any appeal from this understanding should come
before our General Executive Board meeting in Denver on March 9th ." Endorsed
Patrick E . Gorman.
The undersigned declined to receive the telegram in evidence . He did not however strike
the attorney 's statement.
14 See Matter of Electro Metallurgical Company.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Realistically the very information given the Respondents by the salesman-
drivers, was such as to create doubt instead of certainty. Thus Sussman
testified :
Mr. Freirich told me then, "Harry you are playing with fire" and I said to
him at the time, "I don't want this no more than you do . . .
Sussman also testified he told Freirich that he joined Local 627 because :
I wasn't looking for trouble, using the vernacular, I did say I didn't want
my head handed to me.
In the opinion of the undersigned, the action of Local 627 in calling the strike
of the salesman-drivers in order to obtain recognition from the Respondents was
under all the circumstances in the case an economic strike which can best be
described as a naked attempt at coercion. The discharge of Peitersen was also
a motive for the strike and Peitersen's discharge has been found to have been
unlawful, still the fact that one element in the cause of the strike was an unfair
labor practice of the Respondents' does not change the general character of the
strike as an economic strike.
However, assuming arguendo that the unfair labor practice of the Respondents
was the prime motivation of the strike there is one common element necessary to
establish a right of reinstatement by the strikers in both an unfair labor practice
or an economic strike, namely; an offer to return to work, and a request for rein-
statement which was never met for it is clear that neither the strikers nor
anyone in their behalf has requested reinstatement of the Respondents or made
any offer of their return to the work they abandoned.
The undersigned has found that the Respondents did not discharge either
Manzella, Sussman, or Barbara. The undersigned has found that the above-
named salesman-drivers went on strike on May 10, 1948, and that they have since
been replaced. The undersigned further finds on all the evidence that neither
Manzella, Sussman, or Barbara, or .anyone in their behalf has since the work
stoppage of May 10, 1948, offered to return to work for the Respondents, or
requested the Respondents to reinstate them. The undersigned also finds that
the strike of the driver-salesmen against the Respondents is no longer current.
The undersigned will therefore recommend that the complaint be dismissed
insofar as it alleges that the Respondents refused to reinstate Anthony Man-
zella, Charles H. Sussman, and George G. Barbara or discharged them.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents as set forth in Section III, above, occurring
in connection with the operations of Respondents described in Section 1, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since the undersigned has found that the Respondents have engaged in unfair
labor practices, the undersigned will recommend that the Respondents cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
JULIAN FREIRICH CO. 569
The undersigned has found that the Respondents discriminated in regard to
the hire and tenure of employment of Allen Peitersen, therefore, be will recom-
mend that the Respondents offer Peitersen immediate and full reinstatement to
his former or substantially equivalent position" without prejudice to his senior-
ity or other rights and privileges, and that the Respondents make him whole for
any loss of pay he may have suffered by reason of the Respondents' discrimina-
tion against him, by payment to him of a sum of money equal to that which
Peitersen normally would have earned as wages from the date of such discrim-
ination to the date of the offer of reinstatement, less his net earnings 16 during
said period. As it has also been found that the Respondents have engaged in
certain acts of interference, restraint, and coercion, in violation of the rights
guaranteed employees under Section 7 of the Act, therefore the undersigned will
also recommend that the Respondents be ordered to cease and desist from inter-
fering with, restraining, or coercing their employees in the exercise of such
guaranteed rights.
Upon the basis of the foregoing findings of facts, and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. The operations of Julian Freirich and Selma Freirich, co-partners, doing
business under the trade name and style of Julian Freirich Co., (Long Island
City, Queens, New York,) constitute commerce within the meaning of Section 2
(6) and (7) of the Act.
2, Butcher Workmen Union of New York and New Jersey, Local 640 of
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL and
Provision Salesmen Distributors Union of New York and New Jersey, Local 627,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,
are labor organizations within the meaning of Section 2 (5) of the Act.
3, By illegally discharging and thereafter failing to reinstate Allen Peitersen
the Respondents have engaged in, and are engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged
in, and are engaging in, unfair labor practices within the meaning of Section,
8 (a) (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondents have not engaged in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act by urging, persuading, threatening, and
warning their employees not to become or remain members of Local 627, and
by urging them to become and remain members of Local 640.
7. The Respondents have not engaged in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act, by refusing to reinstate Anthony
Manzella, Charles H. Sussman, and George G. Barbara.
36 In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible , but if such position Is no longer in existence, then to a substantially equivalent
position ." See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico , Branch , 65 N. L. R. B. 827.
10 Matter of Crossett Lumber Co ., 8 N. L. R. B. 440, 497-498.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondents , Julian Freirich and Selma
Freirich , co-partners , doing business under the trade name and style of Julian
Freirich Co., Long Island City , Queens, New York, their agents, successors,
and assigns shall :
1. Cease and desist from :
Discouraging membership in any labor organization by discharging or refusing
to reinstate any of their employees or in any manner interfering with, restraining,
or coercing their employees in the exercise of the right to self-organization, to
form labor organizations , to join or assist any 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 , and 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 guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Allen Peitersen immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and privileges.
(b) Make whole Allen Peitersen for any loss he may have suffered by reason
of the Respondents ' discrimination against him by the payment to him of a sum
of money as set forth in the section of this report entitled "The remedy."
(c) Post at their plant in Long Island City , Queens, New York , copies of the
notice attached hereto as "Appendix A." Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall , after being duly signed
by an official representative , be posted by the Respondents immediately upon
receipt thereof and maintained for a period of sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken by them to insure that
said notices are not altered , defaced, or covered by any other material ; and
(d) Notify the Regional Director for the Second Region in writing, within
twenty ( 20) days from the date of this Intermediate Report, what steps they
have taken to comply herewith.
It is further recommended that the complaint be dismissed insofar as it alleges
that the Respondents engaged in unfair labor practices by urging their employees
to become or remain members of Local 640 ; that the complaint be dismissed
insofar as it alleges that the Respondents warned, urged , threatened , persuaded
their employees to refrain from joining or remaining members of Local 627;
that the complaint be dismissed insofar as it alleges that the Respondents unlaw-
fully discharged Anthony Manzella , Charles H. Sussman , and George G. Barbara.
It is further recommended that, unless the Respondents shall , within twenty
(20) days from receipt of this Intermediate Report notify said Regional Director
in writing that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondents to
take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, effective August 18 , 1948, any party may,
JULIAN FREIRICH CO. 571
within twenty ( 20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board , Washington 25, D. C., an original and six copies of a statement
in writing setting forth such exceptions to the Intermediate Report and Recom-
mended Order or to any other part of the record or proceedings ( including rulings
upon all motions or objections ) as he relies upon , together with the original and
six copies of a brief in support thereof ; and any party may, within the same
period, file an original and six copies of a brief in support of this Intermediate
Report and Recommended Order. Immediately upon the filing of such state-
ment of exceptions and/or briefs , the party filing the same shall serve a copy
thereof upon each of the other parties. Statements of exceptions and briefs
shall designate by precise citation the portions of the record relied upon and
shall be legibly printed or mimeographed , and if mimeographed shall be double
spaced. Proof of service on the other parties of all papers filed with the Board
shall be promptly made as required by Section 203.85. As further provided in
said Section 203.46 should any party desire permission to argue orally before
the Board , request therefor must be made in writing to the Board within ten
( 10) days from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings, conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington , D. C., this 24th day of May 1949.
Louis PLOST,
Trial Examiner.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with, restrain , or coerce our employees in the
exercise of the right to self-organization , to form, join , or assist labor organ-
izations , to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purposes 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 Act, as guaranteed
by Section 7 thereof, by discharging or refusing to reinstate any of our em-
ployees, or in any other manner discriminating in regard to their hire or
tenure of employment , or any term or condition of their employment , because
of their participation in concerted activities for their mutual aid or protec-
tion, or by any like or related conduct.
WE WILL OFFER to Allen Peitersen, immediate and full reinstatement to his
former or a substantially equivalent position , without prejudice to any
seniority or other rights and privileges previously enjoyed.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make Allen Peitersen whole for any loss of pay suffered as a
result of the discrimination against him, in accordance with the Order of
the National Labor Relations Board.
JULIAN FREIRICH and SELMA FREIRICH,
co-partners d/b/a JULIAN FREIRICH Co.,
Employer.
By ---------------------------------------------
(Representative ) ( Title)
Dated----------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.