Local 378, Amalgamated Meat Cutters, Etc.

National Labor Relations Board - Board Decisions

Jul 16, 1965

153 N.L.R.B. 1482 (N.L.R.B. 1965)

1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is, and at material times has been, an employer engaged in com-
merce within the meaning of the Act.
2. The record does not establish that Respondent has engaged in the unfair labor
practices , or any of them, alleged in the amended complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record , it is recommended that the Board enter an order dismissing the
complaint.
Local 378, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO and Waldbaum , Inc. Case No. 29-
CP-7. July 16, 1965
DECISION AND ORDER
On April 21, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that Respondent, Local 378, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, its officers, agents, and repre-
sentatives, shall take the action set forth in the Trial Examiner's Rec-
ommended Order.
153 NLRB No. 130.
LOCAL 378, AMALGAMATED MEAT CUTTERS, ETC. 1483
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , heard before Trial Examiner Frederick U. Reel at Brooklyn, New
York, on March 8, 1965, pursuant to a charge filed November 30, 1964 , and a com-
plaint issued December 28, 1964 , presents the question whether the picketing which
the Respondent Union conducted at premises of the Charging Party in late November
and December 1964, violated Section 8 (b) (7) (A) of the Act. ' Upon the entire
record in this proceeding , including my observation of the witnesses , and after due
consideration of the briefs filed by all parties hereto, I make the following
FINDINGS OF FACT
1. THE EMPLOYER AND THE LABOR ORGANIZATIONS INVOLVED
The Charging Party, herein called the Company , operates a chain of retail grocery
stores in the New York City area , and maintains a warehouse in Garden City, Long
Island, which services these stores . The value of the food products which are annually
shipped to that warehouse from directly outside the State exceeds $50,000, so that
the Company is engaged in commerce within the meaning of the Act . The Respond-
ent Union , herein called Local 378, is a labor organization within the meaning of
the Act, as are two other unions which figure in this proceeding : Local 174, Amalga-
mated Meat Cutters and Butcher Workmen of North America , AFL-CIO, herein
called Local 174, and Local 338 of the Retail Wholesale and General Store Food
Employees Union, AFL-CIO , herein called Local 338.
H. THE UNFAIR LABOR PRACTICES
A. Background
For many years prior to the fall of 1964 , the Company operated a warehouse in
Brooklyn , New York , from which it handled all the groceries sold in its retail stores,
but no meat . The meat sold at the stores came through a warehouse located on 12th
Avenue in New York City which was operated by Emerald Packing Company, a
wholly owned subsidiary of the Company . At the meat warehouse , Emerald employ-
ees received the product shipped from the western part of the United States in fore-
quarters and hindquarters . Emerald employees broke the meat down into "primal
cuts" ( loin, round , flank, hip, rib, shoulder , etc.), and it was then distributed either
to the Company 's retail stores or to hotel supply houses or to manufacturers of
corned beef or hamburger patties. Employees at the Company 's Brooklyn warehouse
were represented by Local 338, under a contract which covered all the Company's
warehouse and store employees except supervisors , office clerical employees , and meat
department employees . The latest contract between Local 338 and the Company ran
from October 1, 1962, to September 30, 1965. The employees at the Emerald ware-
house are represented by Local 174 under a contract running from May 1963 to
April 30, 1966 . Article 1 of this contract recited that Emerald recognized Local 174
as the representative of all its employees ( with statutory exclusions) in Emerald's
plant "or any and all other plants ... hereinafter acquired and operated ... located in
the State of New York ...." Article 36 of that contract provided:
This Agreement shall be binding upon the parties herein , and their successors
and assigns , and no provision herein contained shall be nullified or affected in
any manner as a result of any consolidation , sale, transfer or assignment of the
parties herein, or by any change to any other form of business organization, or
by any change , geographical or otherwise , in the location of the parties herein.
The parties agree that they will not conclude any of the above transactions
unless an agreement has been entered into as a result of which this Agreement
shall continue to be binding on the person or persons or any business organiza-
tion continuing the business . It is the intent of the parties that this Agreement
shall remain in effect for the full term hereof regardless of any change of any
kind in the management , location, form of business organization or ownership.
Prior to November 1961, the territorial jurisdiction of Local 174 included not only
the Manhattan area of New York but also all of Nassau and Suffolk Counties on Long
Island. At that time, however, Local 378 was chartered and given as its jurisdiction
'The complaint alleges a violation of Section 8(b)(7). General Counsel in his brief
limits the scope of the complaint to Section 8(b) (7) (A).
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the two Long Island counties just named. Existing Long Island contracts which at
that time were in the name of Local 174 were taken over and administered by Local
378. Thereafter when an employer under contract with Local 174 moved his plant
to an area within the jurisdiction of Local 378, that local "serviced" the contract until
its expiration
In the fall of 1964, the Company moved its Brooklyn warehousing operations to a
new warehouse in Garden City, Long Island, where it also handled meat products,
theretofore warehoused at Emeiald, which closed its doors. Local 338 continued to
represent the warehouse employees, including those now handling meat, and the Com-
pany has recognized it as their representative, but Local 378 claims the right to repre-
sent the latter, arguing that it succeeds to the rights of Local 174 under its contract
This gives rise to the controversy before us, and as we have now passed from "back-
ground" to "foreground," the details of the moves to Long Island and the closing of
Emerald are set forth in the next section
B. The opening of the Garden City warehouse and the closing of Eineiald
In the summer of 1964, the Company erected a new warehouse at Garden City,
designed to house not only the materials previously warehoused in Brooklyn, but also
to handle meat, which had theretofore been handled through Emerald. The new
Garden City facility included a meat storage cooling unit to that end Early in the
fall of 1964, the Brooklyn operation was moved to Garden City, and 45 of the 50
Brooklyn employees transferred to the new location
The imminent closing of the Emerald plant. and the ensuing transfer of the meat
warehousing function to Garden City was widely known in the industry. As early
as October 5, 1964, Local 378 wrote the Company that "effective on the transfer to
your new warehouse in Nassau County of your meat operations, currently being per-
formed within the jurisdiction of Local 174, this Union shall commence to represent
the butchers and other meat workmen so employed by you " The Company did not
respond to this letter. On November 13, 1964, however, it wrote Local 174 as
follows:
As you have been advised for some time Emerald Packing Corp. is terminating
all business operations as of the close of business on November 27, 1964. The
corporation will be dissolved without any further business activities
We appreciate the efforts of your Union on behalf of its members in the many
discussions that we have had since you were notified of this company's inten-
tions. However, as we stated from the outset, we are constrained to end all
business operations.
Therefore, as of the end of business on November 27, 1964, the agreement
existing between us will be deemed cancelled for all purposes.
A few days prior to the closing of the Emerald plant, Aaron Freedman, an official
of the Company and of Emerald, spoke to the assembled Emerald employees and
advised them that if they desired work at the new Garden City warehouse they should
go there to fill out application forms. Only a few Emerald employees filed such
applications; the others were apparently dissuaded from doing so by Frank Kissell,
secretary-treasurer of Local 174, who told the Emerald employees that Freedman
did not want them at the new warehouse. The record does not indicate that Freed-
man authorized or knew of Kissell's statement to that effect. Only six Emerald
employees found employment at Garden City This group included two office clerical
employees, the manager and the comanager of the meat operation at Garden City,
and two rank-and-file employees, whose duties at Emerald and at Garden City are
described below. Some Emerald employees applied for and received "severance pay"
through Local 174.
C Comparison of the Emerald and Garden City warehouses
Although the Company's retail stores which formerly received meat from the
Emerald warehouse now receive it from Garden City, substantial differences exist
between the old and new warehouse with respect to meat handling. At Emerald, as
noted above, some meat was destined for sale to hotel supply houses, and to manufac-
turers of corned beef and of hamburger patties. All the meat handled at Garden
City is destined for the Company's retail stores. Of more importance is the fact that
at Emerald meat arrived in forequarters and hindquarters, and was cut into large
cuts, but the meat handled at Garden City has already been cut into primal cuts before
it is shipped to the warehouse from the West. One "handsaw" was brought from
Emerald to Garden City and installed there about 2 months after the meat facility
LOCAL 378, AMALGAMATED MEAT CUTTERS, ETC. 1485
opened, or about 1 month before the hearing. This bandsaw had not yet been used to
cut meat at the new location, and in any event is not suitable for cutting meat into
primal cuts but only for smaller operations.
The duties of the employees have also changed somewhat in the course of the move
from Emerald to Garden City. At the new location meat is not physically lifted as
was the case at Emerald. The meat is now received on rolling hooks and is pushed
on rails from the delivering vehicle into the warehouse The meat is not taken off the
hook even to be weighed. Hence the term "lugger," which describes a man who
pushes, carries, and helps unload meat, is not used at Garden City although it was used
at Emerald.
About 13 or 14 luggers, including one McDonald, were employed at Emerald;
McDonald and 5 newly hired men are engaged in moving meat in and out of the
Garden City warehouse. One Lyons, who was employed as a "scaler" at Emerald,
performs a similar function at Garden City, his job is to weigh the meat. McDonald's
pay was cut from $113 per week to $90 per week in the move, whereas Lyons' pay
which was $135 per week at Emerald and was cut to $120 when he moved to Garden
City has now been raised to $175 per week, as his duties have expanded. The mini-
mum wage in Local 338's contract is $60 per week, with provision for annual
increases for each employee of $4 in 1962, and $3 in 1963 and 1964.
About 15 percent of the space at Garden City is devoted to meat. Certain employ-
ees are engaged primarily in handling meat, but as need arises they will also work in
other sections of the warehouse. Although most of their time is spent on meat, and in
some weeks all their time is so devoted, it has happened that as much as half their
time in a particular week was spent on other matters.
D. The picketing
Promptly upon the opening of the meat operation at Garden City, Local 378
commenced picketing that warehouse and several of the Company's retail stores.
Although some of the picketing was done by former employees of Emerald, and
although the picket signs proclaimed that the Company had "locked out" its employ-
ees, the record is clear that the purpose of the picketing was to have the Company
recognize Local 378 as the bargaining representative of the employees handling meat
at the warehouse, under the theory that Local 378 succeeded to the rights of Local
174 and could administer on behalf of those employees Local 174's contract with
Emerald. When the picketing commenced, a company official apprised Larry Burke,
business agent of Local 174, who expiessed disapproval of Local 378's action and
promised that Local 174 men would cross the picket lines to deliver meat to the ware-
house. Local 174 men did cross the picket lines of its sister local, although the parent
International gave support to the strike. The picketing was enjoined in a Section
10(1) proceeding, the decision in which is reported at 236 F. Supp. 709 (D.C E.N Y.).
E. Concluding findings
As Local 378 was admittedly picketing for recognition as the bargaining repre-
sentative of the employees handling meat at the Garden City warehouse, and as the
Company is recognizing Local 338 as the representative of those employees, the issue
in this case is whether the Company "has lawfully recognized" Local 338 as repre-
senting these employees and whether a question concerning their representation may
appropriately be raised Local 378 contends that the recognition of Local 338 is not
lawful because Local 378 has a contractual right in this area as successor to Local
174. As I view the facts, however, Emerald's contractual obligations to Local 174
(which obligations would have been binding on Waldbaum as successor to, or alter
ego of, Emerald) do not extend to according either Local 174 or Local 378 any
status at Garden City. In my view, the contract at Emerald was terminated when
Emerald's business was terminated. The successor clause in that contract recites
that the contract shall not be affected by "consolidation, sale, transfer or assignment
of the parties herein, or by any change to any other form of business organization, or
by any change, geographical or otherwise, in the location of the parties .. ." That
clause further provided that in the event of such change the contract would be binding
on "any business organization continuing the business" and that it would remain in
effect for its full term "regardless of any change of any kind in the management, loca-
tion, form of business organization, or ownership." But none of these recitals encom-
passes what actually happened to Emerald, for its business was discontinued.
Emerald's business had been receiving meat in forequarters and hindquarters, cutting
it into primal cuts, and distributing it to company stores and to hotel supply houses, to
manufacturers of corned beef, and to manufacturers of hamburger patties. This
business was not sold or moved to Garden City. It was terminated. As a result of
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this termination , the hotel supply houses and manufacturers to whom it had sold had
to go elsewhere for their source of meat The Company 's stores also had to look
elsewhere , and they are now supplied from the Garden City warehouse . In view of
the close relationship between the Company and Emerald this fact alone would not
establish a real termination of Emerald . But added thereto is a significant change in
the operation , for Emerald cut meat into primal cuts , and that process is not per-
formed at Garden City which serves purely as a warehouse , receiving and shipping
products without altering their appearance . 2 Furthermore , even if Local 174's con-
tract with Emerald were not terminated ( and the parties thereto appear to have so
regarded it, as witness the payment of severance pay thereunder , and Local 174's
refusal to respect the picket lines ), it would not follow that Local 378 acquired any
status at Garden City . Local 378 had apparently taken over the Long Island territory
which some years ago was within the jurisdiction of Local 174, but this means no
more than that for purposes of organization the parent International has determined
that a separate local should handle that territory . An employer who while under con-
tract with one local moves his business to another area does not automatically transfer
the contract to another local of the same International , and employees at the new
location (whether they have moved from the former location or are newly hired) are
not automatically and without any voice in the matter placed under a new collective-
bargaining representative they have never selected, merely because another local
affiliated with the same International represented the employees at the prior location.
See Graphic Finishers , Inc, 119 NLRB 374, 378-379 ; Cleveland Decals, Inc, 99
NLRB 745; Lenscraft Optical Corporation and Rayex Corporation , 128 NLRB 836,
854.
The finding that Local 378 is not the bargaining representative of the employees in
question at Garden City, however, does not conclude our inquiry or automatically
establish a violation of Section 8(b) (7) (A ) on its part . There remains for considera-
tion whether "a question concerning representation may not appropriately be
raised ...... The short answer proffered by General Counsel is that the Company's
contract with Local 338 constitutes a bar to the raising of such a question. This
would be true under familiar principles if the contract was properly extended to the
employees handling meat . If, on the other hand , those employees constitute a sepa-
rate unit , the contract would not be a bar , a question concerning representation could
be raised with respect to that unit , and the picketing would not violate Section 8(b)
(7) (A). The question whether Local 338's contract was properly extended to cover
the employees here in issue turns upon whether the meat warehousing at Garden City
is properly to be considered a mere accretion to the general warehousing unit which
predated the move from Brooklyn to Garden City. If it is an "accretion," the contract
is a bar and the violation is established.
Local 378 argues that the meat warehousing is not an accretion . It points to the
existence of separate supervision , to the physically separated refrigerated area, to the
fact that these employees are primarily engaged in handling meat , to the substantial
discrepancy between their wages and the wages of employees covered by Local 338's
contract , and to the exclusion of "meat department employees" from the Local 338
contract . Although these considerations are not without weight, I find that they are
overbalanced by the similarity of working conditions and the existence of interchange-
ability of duties, prevailing at the warehouse as a whole. See A. Harris & Co., 116
NLRB 1628, 1632-1633 ; Grand Union Co., 118 NLRB 685, 688; Cupples Company
Manufacturers , 127 NLRB 1457, 1458 ; Jay Kay Metal Specialties Corporation, 129
NLRB 31, 34-35; Lily -Tulip Cup Corporation , 124 NLRB 982, 984 The exclusion
of "meat department employees " from the contract is occasioned by the contract's
applicability to retail outlets as well as to the warehouse . At the time the contract
was executed , the Company had no meat department in its warehouse , and the exclu-
sion of meat department employees had no significance so far as the warehouse was
concerned . See The Cessna Aircraft Company, 123 NLRB 855, 857. In the retail
stores, Local 338 did not purport to represent the butchers, who were represented by
Local 342 of the Amalgamated Meat Cutters The exclusion of meat department
employees might be given more significance for present purposes if the functions of
that department at the Garden City warehouse resembled more closely those at the
Emerald warehouse But the change from Emerald to Garden City involved not only
a shift in location and an abandonment of sales to outsiders but also a significant
change in the operation itself . What had been at Emerald a combination processing
and warehousing now became at Garden City purely a warehousing function. The
elimination of the cutting operation removed the feature which distinguished meat
warehousing from general warehousing . I find, therefore , that the meat warehousing
2 This change of function suffices to distinguish the "successorship" cases relied on
by Local 378.
LOCAL 378 , AMALGAMATED MEAT CUTTERS, ETC. 1487
operation at Garden City was an accretion to the preexisting warehouse work there
and at Brooklyn , so that Local 338's contract applies and constitutes a bar to a repre-
sentation proceeding . It follows, of course, that Local 378's picketing violated Sec-
tion 8 (b) (7) (A).
CONCLUSION OF LAW
By picketing the Company 's warehouse and retail stores with an object of forcing
the Company to recognize it as representative of the warehouse employees handling
meat at a time when the Company lawfully recognized another labor organization as
bargaining representative of those employees and a question concerning representation
could not appropriately be raised , Local 378 engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(b) (7) (A) and Section 2(6) and (7)
of the Act.
THE REMEDY
I shall recommend that Local 378 cease and desist from its unlawful picketing and
that it post an appropriate notice.
RECOMMENDED ORDER
Accordingly , upon the foregoing findings and conclusions and the entire record, I
recommend , pursuant to Section 10(c) of the National Labor Relations Act, as
amended, that the Respondent , Local 378, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, its officers , agents, and representatives , shall:
1. Cease and desist from picketing , or causing or threatening to picket any premises
of Waldbaum , Inc., where an object thereof is to force or require that employer to
recognize or bargain with said Local 378 as representative of any employees in the
Garden City warehouse of Waldbaum , Inc., during any period when Waldbaum is
recognizing another union as bargaining representative of such employees and a ques-
tion concerning representation may not appropriately be raised.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Post at its offices and meeting halls, copies of the attached notice marked
"Appendix ." 3 Copies of said notice, to be furnished by the Regional Director for
Region 29 , shall, after being duly signed by Respondent 's authorized representative,
be posted by Respondent immediately upon receipt thereof , and be maintained by it
for 60 consecutive days thereafter , in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be taken to insure
that such notices are not altered , defaced , or covered by any other material.
(b) Forthwith mail copies of the said notice to the said Regional Director at the
Regional Office of the National Labor Relations Board in Brooklyn , New York, after
such copies have been signed as provided above, for posting by Waldbaum, Inc., if it
so chooses , at the places where it customarily posts notices affecting its employees.
(c) Notify the Regional Director for Region 29, in writing, within 20 days from
the date of receipt of this Decision , what steps Respondent has taken to comply
herewith?
' In the event that this Order be adopted by the Board , the words "a Decision and
Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
in the notice In the further event that the Board 's Order is enforced by a decree of a
United States Court of Appeals , the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and Order".
4 In the event that this Order is adopted by the Board , this provision shall be modified
to read "Notify said Regional Director , in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 378 , AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA , AND TO EMPLOYEES OF WALDBAUM,
INC
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that-
WE WILL NOT picket , or cause to be picketed , or threaten to picket Waldbaum,
Inc., where an object is to force or require Waldbaum , Inc , to recognize or bar-
gain with us as the representative of Waldbaum's employees or to force or require
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees of Waldbaum, Inc., to accept or select us as their collective-
bargaining representative, where Waldbaum, Inc., has lawfully recognized, in
accordance with the National Labor Relations Act, another labor organization
and a question concerning representation may not appropriately be raised under
Section 9(c) of the said Act.
LOCAL 378, AMALGAMATED MEAT CUTTERS AND BUTCHER WORK-
MEN OF NORTH AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 16 Court
Street, Brooklyn, New York, Telephone No. 596-5386.
The Greyhound Corporation (Southern Greyhound Lines Divi-
sion ) and Floors , Inc. of Florida and Amalgamated Transit
Union , AFL-CIO.' Case No. 12-CA-2987. July 19, 1965
DECISION AND ORDER
Upon charges filed by Amalgamated Transit Union, AFL-CIO,
herein called the Union, the General Counsel of the National Labor
Relations Board, herein called the Board, by the Regional Director for
Region 12, issued a complaint and notice of hearing dated August 4,
1964, against The Greyhound Corporation (Southern Greyhound Lines
Division), herein called Respondent or Greyhound, and Floors, Inc. of
Florida, herein called Respondent or Floors, alleging that said
Respondents had engaged in and were engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before a Trial Examiner
were duly served upon the Respondents and the Union.
On October 5, 1964, all parties to this proceeding entered into a stipu-
lation wherein they waived a hearing before a Trial Examiner and the
issuance of a Trial Examiner's Decision, agreeing to submit the case
directly to the Board for its findings of fact., conclusions of law, and a
Decision and Order. By order of the Board dated October 9, 1964,
the parties' stipulation was approved by the Board and made part of
the record herein, and this proceeding was transferred to the Board.
Thereafter, Respondents Greyhound and Floors and the Union filed
briefs with the Board.
i Prior to July 1, 1964 , known as Amalgamated Association of Street , Electric Railway
and Motor Coach Employees of America , AFL-CIO.
153 NLRB No. 118.