M. Yoseph Bag Co.

National Labor Relations Board - Board Decisions

Jul 21, 1960

128 N.L.R.B. 211 (N.L.R.B. 1960)

YOSEPH BAG COMPANY 211
in a disruption of existing intraunion relationships." Under the cir-
cumstances , we find that a schism does not exist.
On the basis of the foregoing , we find that the petition is prema-
turely filed and that the contract between the Intervenor and the
Employer is a bar to the petition .' Accordingly, we shall dismiss the
petition.
[The Board dismissed the petition.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
'Hershey Chocolate Corporation , 121 NLRB 901, 906-909
5 Deluxe Metal Furniture Company, 121 NLRB 995, 999.
Morris and David Yoseph , d/b/a M . Yoseph Bag Company and
District 65, Retail , Wholesale and Department Store Union,
AFL-CIO. Case No. 4-CA-1593. July 21, 1960
DECISION AND ORDER
On May 2, 1958, Trial Examiner Henry S. Salim issued his Inter-
mediate Report in the above-entitled proceeding finding that the Re-
spondent had not engaged in certain unfair labor practices alleged
in the complaint and that incidents adduced in support of certain
allegations were too isolated to warrant a remedial order, and recom-
mending that the complaint be dismissed in its entirety as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the Charging Party and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs. On June 16, 1959, the
Board issued its Order remanding this proceeding to the Regional
Director. The parties waived their rights to a further hearing and
Supplemental Intermediate Report and entered into a stipulation
of fact.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was commited. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, the stipulation of facts,
and the entire record in this case and finds merit in the exceptions to
the Intermediate Report for the reasons discussed below. Accord-
ingly, the Board adopts only those findings, conclusions, and recom-
mendations of the Trial Examiner which are consistent with the
Decision herein.
The record facts, some of which were not alluded to by the Trial
Examiner in his Intermediate Report, are as follows: The Respond-
ent, a New Jersey partnership, was engaged in purchasing feed bags
128 NLRB No. 21.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from various sources, cleaning and repairing them, and selling these
reconditioned bags to various customers. By July 11, 1957, District
65, Retail, Wholesale and Department Store Union, AFL-CIO, here-
inafter referred to as District 65, had been designated by 14 of the
Company's 16 employees as their bargaining representative. Through
organizers Saul Klein and Romadell Jones, District 65, on that date,
informed partner David Yoseph of its majority status and requested
recognition as the collective-bargaining agent of Yoseph's employees.
Yoseph told the union organizers that the Company's financial po-
sition'had been deteriorating since 1956 due to the inroads being made
by the bulk feed system on the use of bags,' and that he was in the
process of deciding whether or not to continue his business. Yoseph
requested additional time to talk to his employees and to decide
whether or not he was going to remain in business. He told Klein
he would advise him as to his decision in a week.
On Friday, July 12, David Yoseph asked employee Vernal Soltau
why he had joined the Union and Yoseph said, according to Soltau,
"It is going to be hard for you because he was going to cut us down to
40 hours a week." Subsequently, Soltau and employee Robert John-
son were deprived of all overtime work.
Yoseph testified that on the same day he called the R & T Bag Com-
pany of Lakewood, New Jersey (which is in the same business as Re-
spondent), whose employees were represented by District 65, with
whom R & T had a collective-bargaining contract. Lakewood, New
Jersey, is not in the same competitive area where Respondent did its
business; Yoseph's competitors were located in metropolitan Phila-
delphia. Yoseph stated that he was advised what the R & T Bag
Company contract with District 65 provided for in regard to wages
and conditions of employment. Yoseph testified that shortly after
receiving this information, he decided he would be unable to make
ends meet if he had to pay the Lakewood wage scale. He then con-
tacted the Girard Bag Company of Philadelphia and began to ne-
gotiate for the sale of his business to Girard.
On Monday, July 15, 1957, employee Annie Johnson, who had been
sick, returned to work and was questioned as to her knowledge of
District 65, to which she replied that she knew nothing. Employee
Randolph Allen, one of Respondent's drivers, testified that on that
same day, Yoseph said to him "I know that you joined the Union, but
with or without the Union would you still continue buying bags for
me? I am going to close the plant down and if I can have the 2
drivers, including myself and the other driver, I would have the Union
licked."
1 Under this system, feed is delivered by truck directly from mill to farm without the
use of bags.
YOSEPH BAG COMPANY 213
Yoseph stated that he orally agreed on that day to sell to Girard
Respondent's business, consisting of its goodwill, all customers but
two, inventory, and physical assets except for two pieces of equipment
and the plant itself. In return, David Yoseph became a director and
a salaried vice president of Girard and obtained stock and real estate
valued at about $45,000, which represented approximately a one-third
interest in Girard. Girard had, immediately before this sale, pur-
chased a new plant approximately two and one-half times the size
of its old plant, and the Trial Examiner found additional employees
were hired at that time.
On Wednesday, July 17, District 65's organizer called Yoseph and
was told to come to the plant at 4: 30 p.m., on Friday, July 19, for
Yoseph's decision.
Yoseph testified that on the morning of July 19, he assembled the
employees and told them that he could not pay the wage rates de-
manded by District 65, that he had decided to close the plant, and
that the employees had the choice of quitting immediately or finishing
out the day. Employees Robert Johnson and Vernal Soltau, however,
testified that on the morning of July 19, Yoseph told them he would
not be able to meet the rates which District 65 demanded and remain
in business, but that he had looked over the contracts of the "Phila-
delphia Union," which represented the employees of his competitors,
and that if the employees chose that union instead of District 65 he
could stay in business. Johnson and Soltau testified further that
Yoseph gave them until 4 p.m. to decide what they wanted to do, since
he told them that he must inform District 65 of his decision at 4: 30
p.m. That afternoon the employees told Yoseph that they had deter-
mined to remain with District 65.
At 4: 30 p.m., July 19, 1957, Romadell Jones, District 65's assistant
organizer, arrived at the plant and, in the presence of the assembled
employees, was told by Yoseph that the business was being closed
because of Yoseph's inability to meet the wage rates that District 65
would demand. When Jones replied that there were no fixed wage
rates, that District 65 was willing to negotiate, and that he was sure
they could come to an agreement, Yoseph refused to discuss the matter
further.
All employees were terminated as of July 19, 1957, but the Respond-
ent did not cease functioning entirely. It appears that only that part
of its operations which had to do with cleaning, baling, and packing
of bags was shut down, while Yoseph continued to receive and deliver
bags for some time thereafter.
The assets of the Respondent, with the exception of the land, build-
ing, and two pieces of equipment were sold by bill of sale to the Girard
Bag Company of Philadelphia on August 17,1957.
577684-61-vol . 128-15 °
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Trial Examiner found that the Respondent did not violate
Section 8 (a) (3) of the Act by closing its plant, selling the assets of its
business, and discharging its employees. We do not agree.
The Trial Examiner correctly stated the legal proposition in-
volved-shutdown of a plant and/or sale of a business with resultant
discharges based upon valid economic considerations are not illegal,
whereas the same conduct based upon an employer's union animus
is violative of the Act 2 However, he found that there was no such
animus here. One of the two principal reasons for the Trial Ex-
aminer's conclusion of lack of unlawful motivation on the part of the
Respondent was his crediting of Yoseph's testimony that he had not
threatened to close the plant unless the employees selected the Phila-
delphia union in preference to District 65. According to the Trial
Examiner, Yoseph's denial that he so threatened them was credited 3
because the Trial Examiner was convinced that Yoseph merely ex-
plained that the wage rates of his Philadelphia competitors under
contract with the Philadelphia union were the equivalent of those he
was paying and that he could afford to pay those rates and still remain
in business, that he could not afford to remain in business if he were
compelled to pay the same wage rates provided for in District 65's
contract with the R & T Bag Company, and that he therefore re-
quested the employees to decide what they wanted to do and let him
know by 4 p.m., as he had an appointment with District 65's repre-
sentative at 4: 30 p.m. But these latter statements, as found by the
Trial Examiner, are based on the employees', not Yoseph's, testimony.4
Indeed, Yoseph testified that at this meeting he told the employees
that he was closing up and offered them only the choice of leaving
then or finishing out the day.
Upon analysis of this credibility resolution, it is apparent that the
Trial Examiner has credited merely Yoseph's denial, but not his testi-
mony as to what he said. The Trial Examiner has then found, in
effect, that the statements made by Yoseph were as testified to by the
employees but that these statements were tantamount to an explanation
of his position rather than a threat. We do not agree that by eu-
phemistically describing what occurred as constituting an "explana-
tion" by Yoseph the Trial Examiner has effectively disposed of the
2 Rudy Barber, Louis B. Barber and Robert Hamiyn, d/b/a Barbera Iron Foundry,
126 NLRB 30.
3In crediting Yoseph's denial, the Trial Examiner also stated that "[d]ue to language
difficulties, the employees, most of whom were natives of the west Indies, were not
articulate and found it onerous to express themselves when they testified. As a con-
sequence, their testimony, much of which was in reply to leading questions , might appear
on the cold record to indicate that Yoseph threatened to close the plant unless they
selected the Philadelphia union in preference to the charging union." However, the
record is devoid of any evidence as to the national origin of the employees. Nor are the
findings that they were not "articulate" and that many of their replies were to "leading
questions" borne out in any sense by the record.
* In this. connection, it may be noted that the three employees who testified on this
point were in agreement, but there is no corroboration of Yoseph' s denial.
YOSEPH BAG COMPANY 215
impact or thrust upon the employees of Yoseph's statements. When,
as here, an employer "explains" to his employees that if they select
union A he can remain in business, but if they choose union B he
cannot remain in business, and requests them to decide what they want
to do, we are drawn to the inevitable conclusion that he has thereby
threatened to close the plant unless they select union A. Moreover,
the Trial Examiner's statement, quoted in footnote 3 above, that it
might appear from the "cold" record that Yoseph threatened the
employees, indicates that he in fact agrees that there is support in the
record for his conclusion. Under these circumstances, the Trial Ex-
aminer's crediting of Yoseph's denial cannot be sustained.
The second major reason of the Trial Examiner for concluding that
the Respondent was lawfully motivated was his finding that the
closing of the plant and the discharge of the employees were based
upon valid economic considerations. Briefly, the economic factors
relied upon by the Trial Examiner were : (1) the fact that the com-
bined types of operations of Respondent and Girard complemented
each other; (2) lower gross sales of Respondent for the first 6 months
of 1957 as compared with the same period of 1956; (3) increased
labor costs; (4) the advent of the aforementioned bulk feed system;
(5) the testimony of William J. Fox, manager of the Farmers' Co-
operative Association of Vineland, Inc., that his mill purchased all
of its bags from the Respondent and that there had been a substantial
decrease in the number so purchased each week; and (6) Yoseph's
testimony that because of the bleak prospects of the business he had
been negotiating with Girard "any number of times, over a period of
a couple of years."
On the other hand, the record discloses the following supervening
factors: (1) the complementary nature of Respondent's and Girard's
operations does not appear material (if, instead, Respondent's opera-
tions had been identical with Girard's so that the acquisition of Re-
spondent's business would not have necessitated the use of different
equipment, the utilization of more space, and the employment of ad-
ditional personnel to replace those discharged by Yoseph, the char-
acter of the two operations would be of significance) ; (2) the func-
tions previously performed by Yoseph were merely taken over by
Girard, which proceeded to serve the same customers in the same
area; (3) Girard had found it necessary to expand its physical fa-
cilities by acquiring a new plant approximately two and a half times
the size of its former building , and it was allegedly because of this
expansion that it could take over Respondent's operations; (4) the
very nature of the operation as it was performed by Girard after the
sale, that is, to purchase bags in the Bridgeton-Vineland, New Jersey,
area, where Yoseph's plant and customers were located, ship them to
Philadelphia for processing, and return them to the New Jersey area
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for sale, as must now be done, necessitates a total of some 80 miles
of trucking with attendant costs as well as tolls on the bridges which
must be used in driving between Philadelphia and the New Jersey
area; (5) in March 1957, Respondent purchased a bailing press valued
at $700 to $800 and a forklift truck for $450, and about 2 weeks before
the closing Respondent hired two new employees; 6 and (6) contrary
to the Trial Examiner, Fox's mill did not deal exclusively with Re-
spondent, and Fox's testimony was couched in extremely qualified
language, and he repeatedly stated that his figures were not complete.
If the Respondent's general behavior during the months preceding
District 65's appearance on the scene did not reflect actual confidence
in its business future, it established, at the very least, the intention to
continue as an operating concern. It was not until District 65 re-
quested recognition on July 11 that the Respondent's attitude toward
its operations abruptly changed. Only then, and in a short span of 4
or 5 days, did Yoseph extract a promise from District 65's organizers
to wait a week while he decided whether to close his business; question
his employees regarding their union activities; call R & T Bag Com-
pany about the wage rates under its contract with District 65, despite
the fact that R & T was not a competitor of Yoseph; and enter into a
verbal sales agreement with Girard. Indeed such intention to con-
tinue operating is made manifest by the fact that thereafter, on July
19, despite the asserted deterioration of the business and sale thereof,
Yoseph clearly indicated to the employees that if they renounced
District 65 as their representative he would remain in business. Also,
as the Trial Examiner and we have found, Yoseph's decision to close
the plant was not announced until he was informed of the employees'
choice to continue being represented by District 65.6
In these circumstances we cannot accept the Trial Examiner's second
major reason, namely, that the closing of the plant and the attendant
discharges were based upon valid economic considerations. On the
contrary, we are impelled to conclude that Respondent's alleged eco-
nomic justification for its conduct constituted a pretext to obscure its
real motivation which was to evade dealing with the Charging Union.
The mere coincidence of union organization of a plant with the
shutting down thereof is not conclusive evidence of a discriminatory
6 Respondent alleges that these employees were hired on a temporary basis, and the
General Counsel contends they were permanent employees One of these employees
testified that when they were hired , Yoseph told them that his employees had "worked
for him steady , 5 or 6 years" and that he could be employed only if be intended to stay
in the area . Moreover , Yoseph testified they were to replace two ill employees , but only
one was sick and another was on 1 week's vacation and was known to be returning.
The two allegedly temporary employees were terminated with all the others on July 19.
6 Since Yoseph would not have closed down if the employees had not chosen District 65,
this situation is clearly distinguishable from that in the case of Mount Hope Finishing
Company v . N.L.R.B., 211 F . 2d 365 ( C.A. 4), cited by the Trial Examiner, where no
violation was found when the appearance of a union merely substantiated a decision to
close based on preexisting lawful considerations.
YOSEPH BAG COMPANY 217
motive in shutting down that plant, although the coincidence itself
is evidence bearing upon discriminatory intent.' However, here there
is a substantial additional showing of union animus, and when we con-
sider all the circumstances referred to above, we think the evidence of
unlawful motivation is conclusive. Based upon the entire record
herein, we find that the Respondent discriminated in regard to its
employees' tenure of employment by closing its plant and going out
of business 8-thereby discharging the employees-and, because the
plant closing and cessation of operations was the direct result of the
employees' selection of District 65 as their collective-bargaining rep-
resentative, the Respondent's retaliation against them for their ac-
tivity on behalf of District 65 discouraged the employees' continued
membership in District 65.1
2. We find, in disagreement with the Trial Examiner, that the
Respondent also violated Section 8(a) (5) of the Act. District 65
was the designated representative of the majority of the employees at
Yoseph's plant when it requested recognition from him on July 11.
We have found that the Respondent did not determine to go out of
business until July 19 (if, indeed, then). As heretofore indicated, on
that day Jones informed Yoseph that District 65 had no fixed wage
rates and that it was willing to negotiate. We construe what Jones
said to Yoseph as a clear request to bargain. In the absence of an
adamant insistence upon a particular wage rate on the part of District
65, the Respondent had a positive duty to meet and bargain with that
Union, and its refusal to do so in the face of Organizer Jones' pro-
testations of desire to negotiate constituted a violation of Section
8(a) (5). Moreover, that duty to bargain survived the unlawful
decision to avoid the Union by closing down the plant and ceasing
operations.10
3. We find, contrary to the Trial Examiner, that the Respondent
violated Section 8(a) (1) of the Act by : (a) interrogating the em-
ployees; (b) threatening to deprive them of overtime and in fact doing
so; (c) threatening individual employees that the plant would be
closed; and (d) threatening the assembled employees on July 19 that
the plant would be closed if they did not renounce their chosen
representative. The Trial Examiner found, principally on the basis
of the Board's Blue Flash decision," that this conduct did not violate
the Act. The Trial Examiner's application of the Blue Flash rule
to the threats is erroneous, since that decision holds that interrogation
7Walter Holm ,& Company , 87 NLRB 1169.
8 Barbers Iron Foundry , supra.
9 AT L R B v. Jones J Laughlin Steel Corp, 301 U S 1; Associated Press v A'.L R.B.,
301 U.S. 103.
10 Symns Grocer Co., et al., 109 NLRB 346, 348 , 349; Jefferson Company, Inc., 110
NLRB 757, 760; Industrial Fabrlcatong. Inc., et al., 119 NLRB 162, 173-174.
" Blue Flash Express, Inc., 109 NLRB 591.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing alone is not sufficient to constitute a violation of the Act.
Nor can we agree with the Trial Examiner that these incidents were
isolated when viewed in the context of the unfair labor practices by
the Respondent which we have heretofore found.
CONCLUSIONS OF LAW
1. Morris and David Yoseph, d/b/a M. Yoseph Bag Company
(Respondent) is engaged in commerce within the meaning of the Act.
2. District 65, Retail, Wholesale and Department Store Union,
AFL-CIO, is a labor organization within the meaning of the Act.
3. On July 11, 1957, and at all times since, the Union aforesaid has
been the exclusive representative of all the employees in an appro-
priate unit of the Respondent's employees for the purposes of collec-
tive bargaining within the meaning of Section 9 (a) of the Act.
The unit of the Respondent's employees, appropriate for collective
bargaining is and has been :
All production and maintenance employees, including truckdrivers,
of the Employer's Bridgeton, New Jersey, plant, but excluding office
clerical employees, guards, and supervisors as defined in the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of the employees by closing its plant and discharging the em-
ployees on July 19,1957, the Respondent has discouraged membership
in a labor organization and by such discrimination and by interfering
with, restraining, and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act, as hereinabove found, the Re-
spondent has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8 (a) (3) of the Act and Section 8 (a) (1)
thereof.
5. By refusing, on and after July 19, 1957, to bargain collectively
with the aforesaid Union as the exclusive representative of the em-
ployees, in the aforesaid appropriate unit, the Respondent has engaged
in, and is engaging in, an unfair labor practice within the meaning of
Section 8 (a) (5) of the Act.
6. By interrogating the employees, threatening to deprive them of
overtime and in fact doing so, threatening individual employees that
the plant would be closed, and threatening assembled employees, on
July 19, 1957, that the plant would be closed if they did not renounce
their chosen representative, the Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of Section
8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
YOSEPH BAG COMPANY
REMEDY
219
For the reasons stated in Barbers Iron Foundry," and under all the
circumstances, we conclude that although the discriminatees are en-
titled to backpay for the period from which their employment was
terminated (July 19, 1957) until the business was sold (August 17,
1957) or until the Respondent in fact ceased functioning, whichever
was later, they are not entitled to any monetary compensation for the
period subsequent thereto.
In reaching this conclusion, we are not unmindful of the hardships
imposed upon these employees by the Respondent's decision to go out
of business rather than deal with the Union. We do not condone
such conduct, but at the same time, contrary to the views of Members
Jenkins and Fanning, we do not feel that an employer, who perma-
nently closes his plant and discontinues business operations, should be
ordered to continue paying wages to its employees for an indefinite
period of time, the duration of which is contingent upon the em-
ployees obtaining substantially equivalent employment elsewhere.
As the Respondent has permanently discontinued its business opera-
tions, we shall not order immediate reinstatement for the discrimina-
tees. Instead, we shall order the Respondent to create a preferential
hiring list, notify its employees of said list, and, in the event it resumes
operation of its business, to offer the discriminatees immediate rein-
statement to -their former or substantially equivalent positions without
prejudice to their seniority and other rights and privileges previously
enjoyed.
We also expressly reserve the right to modify the backpay and
reinstatement provisions of this Decision and Order if made necessary
by a change of conditions in the future, and to make such supplements
thereto as may hereafter become necessary in order to define or clarify
their application to a specific set of circumstances not now apparent.13
ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Morris and
David Yoseph , d/b/a M . Yoseph Bag Company, Bridgeton, New
Jersey, its officers , agents, successors, and assigns , shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with District 65, Retail,
Wholesale and Department Store Union , AFL-CIO, as the exclusive
representative of all the employees in the appropriate unit consisting
of all production and maintenance employees including truckdrivers,
22 Supra.
13 Bermuda Knitwear Corporation, 120 NLRB 332.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Employer's Bridgeton, New Jersey, plant, but excluding office
clerical employees, guards, and supervisors as defined in the Act.
(b) Threatening employees with loss of employment if they do
not renounce the Union as their collective -bargaining representative.
(c) Threatening to deprive employees of overtime and to close the
plant.
(d) Interrogating employees in a manner violating Section 8 (a) (1)
of the Act.
(e) Discouraging membership in District 65, Retail, Wholesale and
Department Store Union, AFL-CIO, or in any other labor organiza-
tion of its employees, by discriminating in any manner in respect to
their hire or tenure of employment, or any term or condition of
employment.
(f) Discouraging membership in the above-named labor organiza-
tion or any other labor organization by discharging employees for
their union activities.
(g) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self -organization , to form
labor organizations , to join or assist District 65, Retail , Wholesale
and Department Store Union, AFL-CIO, or any other labor organiza-
tion, or bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection , or to refrain
from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section
8(a) (3) of the Act, as modified by the Labor Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) If and when the Respondent resumes its operations , bargain
collectively, upon request, with District 65, Retail, Wholesale and
Department Store Union, AFL-CIO, as the exclusive representative
of all employees in the appropriate unit here found, and embody any
understanding reached in a signed agreement.
(b) Make whole those individuals found discriminated against for
any loss they may have suffered by reason of the discrimination
against them in the manner set forth in the section of the Decision
herein entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary for determination of the amount of back-
pay due under the terms of this Order.
YOSEPH BAG COMPANY 221
(d) Create a preferential hiring list containing the names of all
those individuals found herein entitled to reinstatement if and when
the Respondent resumes its operations, such reinstatement rights aris-
ing from the layoff of the individuals on July 19, 1957. The Respond-
ent shall notify the Union and all said listed employees of the estab-
lishment of said list and its content and shall offer all said individuals
full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges
previously enjoyed if and when the Respondent resumes its operations,
all as set forth in the section entitled "The Remedy."
(e) Inasmuch as the posting of a notice as customarily required
would result in a notice posted in a plant not operating and therefore
be inadequate to inform affected parties, the Respondent shall mail an
exact copy of the notice attached hereto marked "Appendix." 14 to
the Union and to each of the employees. Copies of said notice to be
furnished by the Regional Director for the Fourth Region, shall, after
being duly signed by an authorized representative of the Respondent,
be mailed immediately after receipt thereof.
(f) Notify the Regional Director for the Fourth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the Board reserves to itself the right to
modify the backpay and reinstatement provisions of this Order, if
made necessary by circumstance not now apparent.
MEMBERS JENKINS and FANNING, concurring in part and dissenting
in part :
We are in complete agreement with Chairman Leedom and Member
Bean regarding the substantive violations described and found in the
main opinion. We also concur in the Order adopted by our colleagues
as far as it goes . However, we believe that an order much broader
in scope is required to remedy the unlawful conduct engaged in by the
Respondent.
Our colleagues have noted, and we, too, are aware of, marked simi-
larities between this case and Barbers Iron Foundry; 15 our findings
of violations here are predicated upon much of the same reasoning as
convinced us in that case. And, as in that case, we differ with our
colleagues on the applicability of the usual backpay order; we did
not see then, and we do not see now, any logical basis for the denial
of backpay for a period of unemployment caused, beyond any doubt,
by the Respondent's discrimination. As we noted in our separate
opinion in Barbers, none of the cases cited to support the majority
>A In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
15 Supra.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rationale was apposite. We therefore adhere to our position and
would direct backpay for the discriminatees. However, there is a
salient distinction between the case at bar and Barbers which war-
rants a different measure of relief. That distinction is the existence
in Barbers of an intervening, nondiscriminatory cause for shutdown
of the business; a factor which is not present herein. We concluded,
as a matter of fact in Barbers that the death of Louis Barber, which
occurred after the shutdown of the business, would in any event have
caused the respondent to legally cease operations, since Louis Barber
was the moving or most important partner essential to the continued
operation of the plant. Here, however, not only is David Yoseph, the
essential partner in the operation, still living and active in the same
business in the same area, as an officer of Girard, but also there is no
evidence of any circumstances subsequent to the violations found,
which would either convince or suggest to us any nondiscriminatory
-reason for Yoseph to go out of business. Consequently, we perceive
no basis upon which to limit Respondent's backpay liability.
Accordingly, we would expand the Order entered herein by award=
ing backpay to the discriminatees for loss of earnings resulting from
the discrimination against them'until such time as they obtained sub-
stantially equivalent employment with other employers."
The only possible reason we discern for our colleagues' reluctance
to join us in this award is the statement that they do not feel, that the
employer should be ordered to pay wages to-its employees for an in=
definite period of time, contingent upon the employees' obtaining sub-
stantially equivalent employment elsewhere. We do not consider this
statement meaningful. As we have previously shown, in our dissent
in Barbers Iron Foundry, 126 NLRB 30, the remedy we propose is
identical in principle and effect to the Board's normal backpay order.
It is true that when an employer is actively in business, he can
always end the period of his liability by an offer of reinstatement.
However, it is clear that in the conventional case of discriminatory
discharge, no less than in this type of case, the period of backpay is
necessarily indefinite. Thus, in a long series of cases the Board has
made it clear that this period between discrimination and reinstate-
ment is not one in which the employee may do nothing. The possi-
bility of backpay is not an excuse for the employee to remove himself
from the labor market. On the contrary, the amount of backpay ulti-
mately is based on the requirement that the employee will attempt, in
good faith and with all diligence, to seek other employment. And to
the extent that this is not done, backpay is not awarded. Further in-
vestigation and possibly formal backpay proceedings will be had to
"Pursuant to Board practice, we would also reimburse the employees for expenses
justifiably incurred in seeking such employment.
YOSEPI-I BAG COMPANY 223
make certain that the employer will not be unjustly mulcted or the
employee unjustly enriched.
Precisely the same istandards will, in our view, be applicable in this
type of case.l' We wish to stress that the absence of so clear an end
point as reinstatement does not change either the nature of the remedy
or what its amount will be. The duty of a discriminatee in either
case is exactly the same, and would be so measured at the compliance
stage of the proceeding. The remedy we propose is not intended to,
and does not, require any more.
Of course, as the Respondent is no longer in business, and hence in
no position to reinstate its former employees, we concur with our
colleagues that Respondent should not be ordered to reinstate its
former employees.
MEMBER RODGERS , dissenting :
The Trial Examiner concluded that it had not been shown that the
Respondent shut down its plant for other than valid business consid-
erations. My colleagues, reversing this finding, have concluded that
Respondent's real reason in shutting down its plant was to evade
dealing with the Charging Union.
I need not, and do not, decide whether the Trial Examiner or my
colleagues are correct in the reason they attribute to the Respondent
for shutting down its plant. The fact remains, and all agree, that the
plant has been shut down and Respondent is no longer in business.
For the reasons set forth in my dissenting opinion in the Barbers
Iron Foundry case, 126 NLRB 30, "there is nothing contained in the
Act which limits an employer's right to go out of business at such
time and under such circumstances as he chooses, regardless of the
reasons therefor." See also my dissent in Bonnie Lass Knitting Mills,
Inc., 126 NLRB 1396. Consequently, regardless of the Respondent's
motivation, I would not find that Respondent violated the Act by
going out of business, and I would issue no remedial order with respect
thereto.
17 Thus , in the case at bar, of course , the period between the issuance of the Trial
Examiner 's Intermediate Report finding no violations of the Act, and the issuance of
this decision , would also be excluded from any backpay order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL, if and when we resume operations, upon request,
bargain collectively with District 65, Retail, Wholesale and Der
partment Store Union, AFL-CIO, as the exclusive representative
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of all the employees in the unit described below with respect to
rates of pay, wages, hours of employment, or other conditions of
employment, and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All production and maintenance employees, including truck-
drivers in our Bridgeton, New Jersey, plant, but excluding
office clerical employees, guards, and supervisors as defined
in the Act.
WE WILL NOT threaten employees with loss of employment if
they do not renounce the Union as their collective-bargaining
representative.
WE WILL NOT threaten to deprive employees of overtime and to
close the plant.
WE WILL NOT interrogate employees.
WE WILL NOT discourage membership in District 65, Retail,
Wholesale and Department Store Union, AFL-CIO, or in any
other labor organization of our employees, by discriminating in
any manner in respect to their hire or tenure of employment, or
any term or condition of employment.
WE WILL NOT discourage membership in the above-named labor
organization, or any other labor organization , by discharging
employees for their union activities.
WE WILL make whole those individuals found discriminated
against for any loss they may have suffered by reason of the dis-
crimination practiced against them by their discharge on July
19, 1957.
WE WILL offer those individuals found discriminated against
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, if and when we resume operations.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form, 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 Sec-
tion 8(a) (3) of the National Labor Relations Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the above-named Union or any other
labor organization, except to the extent that this right may be affected
YOSEPH BAG COMPANY 225
by an agreement in conformity with Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of
1959.
MORRIS AND DAVID YOSEPH, D/B/A
M. YOSEPH BAG COMPANY,
Employer.
Dated--- ------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The question here presented is whether the dismissal of his employees by an
employer when he disposed of his business and which resulted in a shutdown of
operations was motivated by valid economic considerations or because he wanted
to avoid bargaining with the Union and thus defeat the Union's organizational
efforts.
The complaint alleges (and Respondent denies ) that the Respondent , M. Yoseph
Bag Company , engaged in the following unfair labor practices:
( 1) Restrained and coerced employees in violation of Section 8(a) (1).
(2) Discriminatorily discharged 15 employees because of union activities in
violation of Section 8 (a) (3).
( 3) Refused to bargain with the Union in violation of Section 8(a) (5).
The proceeding was heard in Vineland , New Jersey , on December 17 and 18,
1957, pursuant to due notice and with all parties represented by counsel. Both
parties filed briefs.
FINDINGS OF FACT
Respondent is a partnership who had been doing business as M. Yoseph Bag
Company near Bridgeton , New Jersey . It was engaged in purchasing feed bags
from various sources, cleaning and repairing them , and selling these reconditioned
bags to various purchasers . During the year 1956 , Respondent shipped more than
$50,000 worth of such bags to customers located outside the State of New Jersey.
By reason of the foregoing facts, it is found that the Respondent partnership was
engaged in commerce at all times within the meaning of the National Labor Rela-
tions Act, as amended (61 Stat . 136), herein called the Act, and that it will further
the purpose and policies of the Act to assert jurisdiction in this case.
On or about June 23, 1957 , District 65 , Retail , Wholesale and Department Store
Union , AFL-CIO, the Charging Party, hereinafter called the Union , which is a
labor organization within the meaning of Section 2(5) of the Act , began to organize
the employees of M. Yoseph Bag Company , the Respondent in this proceeding.
By July 11, 1957, 14 of the approximately 16 eligible workers employed by
Respondent, signed cards authorizing the Union to represent them in collective-
bargaining negotiations with the Company.
On July 11, Saul Klein , organizer for the Charging Union ,' accompanied by
Romadell Jones , his assistant , came to David Yoseph 's home . He stated the Union
represented a majority of the partnership 's employees and requested that it be
recognized as the collective-bargaining agent for the employees . Yoseph told
Klein that the partnership 's financial position had been deteriorating since 1956,
due to the inroads being made by the bulk feed system on the use of bags2 and
I Klein's geographical jurisdiction includes within New Jersey , the following : Vineland-
Bridgeton area in the southern portion of the State and as far north as Somerville on the
west and Freehold on the east.
Under the bulk feed system which eliminates the use of bags , bulk feed is loaded into
a truck at the mill . The truck then parks near the farmer 's bulk bin setup which is a
superstructure usually located on the top of the chicken coops ( the principal use of feed
in this area is by poultry farmers). The feed is conveyed to the back of the truck by
means of a drag belt in the bottom of the truck. At the end of the truck , the feed is
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since he took a pessimistic outlook of the bag industry's prospects with the advent
of bulk feed that he was then in the process of deciding whether to continue his
business .3 Yoseph requested additional time and told Klein he would advise him
as to his decision in a week.
On July 12, Yoseph testified that he telephoned the R & T Bag Company at Lake-
wood, New Jersey (which is in the same business as Respondent), and whose
employees are represented by the Charging Union and with whom R & T has a
collective-bargaining contract.4 Yoseph spoke to a Mr. Rosenberg, one of the own-
ers of the R & T Bag Company, who told Yoseph the terms of the contract he had
with the Charging Union with respect to rates of pay and fringe benefits.
Shortly after receiving this information, Yoseph testified that he decided he
would be unable to make ends meet if he had to pay the "Lakewood" wage scale,
whereupon he contacted the Girard Bag Company in Philadelphia, one of his
competitors. He spoke to Mr. Wolf of the Girard Bag Company and inquired
whether his company would be interested in buying the Respondent partnership.
At a subsequent meeting in Philadelphia, a verbal understanding was arrived at on
July 15, 1957, and a bill of sale executed on August 17, whereby Respondent sold
its business to Girard for $45,000 in stock which represented a one-third interest
in the Girard Company.5 David Yoseph is now vice president of the Girard Bag
Company, Inc.
Yoseph met with his employees at the plant around noon on July 19, and informed
them he could not afford to pay the wage rates that the R & T Bag Company in
Lakewood,6 which had a contract with the Charging Union, was paying its employees
and still stay in business.? He explained that his competitors, who were principally
located in the Philadelphia area (approximately 40 miles away), all had contracts
with a union in Philadelphia (Local 57, Laborers Union, AFL-CIO), whose wage
rates were "the equivalent" of what he was presently paying his employees. How-
ever, explained Yoseph, he could not afford to remain in business if he were com-
pelled to pay the same wage rate provided for in the contract that the Charging
Union had with the R & T Bag Company in Lakewood. He, therefore, requested
them to decide what they wanted to do and to let him know by 4 p.m. as he had
an appointment with the Charging Union's representative at 4:30 p.m. At 4 p.m.
his employees advised Yoseph that they desired the Charging Union to represent
them.
Shortly after Yoseph received the employees' decision, Romadell Jones, assistant
organizer for the Union, came to the plant at about 4:30 p.m. on July 19, to ask
Yoseph what he had decided to do. Yoseph's answer, which was stated in the
presence of the assembled employees, was that he had decided to close down the
discharged from the belt into a rotary feeder which conveys the feed to the bottom of the
feeder. At the bottom of the feeder, the (feed is met and continuously conveyed by a
stream of air from an air pump located near the front of the truck and blown through
flexible lengths of hose into the farmer's bin where it is stored and used as needed. In
addition to the convenience of this method, there is a saving of 15 cents on each 100
pounds of feed purchased, so that in about 6 months the average purchaser pays for the
installation of the bulk feed system.
I Klein testified that Yoseph said to him • "I don't know how long I'm going to stay in
business, whether I am going to stay in business ; this was a decision I figured I might
have to make, so I might as well make this decision now, seeing as this cropped up,
instead of waiting maybe 6 months or a year, and make the decision at that time."
Yoseph's version is as follows : "Well, I told Mr. Klein that I just received reports from
my wife ['his bookkeeper] for the first 6 months of 1957, . . . and our gross had dropped
and our labor costs had increased. . . . I told him that I didn't know whether I was
going to remain in business or go out of business ; that I would have to think it over,
but it looked like a pretty good bet to me that I would go out of business."
* Lakewood, New Jersey, is not in the same competitive area where Respondent did
its business. Yoseph's competitors were located in metropolitan Philadelphia which in-
cludes the Vineland-Bridgeton area.
G In addition to the tangible assets of Respondent (see Respondent's Exhibit No. 1),
Girard took over all of Respondent's customers except two accounts. The partnership
still owns the plant in Bridgeton and two baling presses.
U Lakewood, which is 75 miles distant from Bridgeton, is not in Respondent's competi-
tive area.
7 Yoseph estimated the Lakewood wage rates to be approximately 30 percent higher
( including fringe benefits) than the wage rates he was paying his employees.
YOSEPH BAG COMPANY 227
plant.8 Klein was told the same thing when he telephoned Yoseph on July 19.
This resulted in all of the employees being terminated on July 19, 1957.
Discussion and Conclusions
Before resolving whether Respondent committed unfair labor practices by shutting
down its plant under the circumstances related above, it might be well to consider
what the Board and courts have decided in analogous situations. Where the Board
has held an employer to have violated the Act by shutting down his plant, it was
found that it was caused by his union antipathy and that his purpose was to abort a
union's organizational campaign, or to exclude an incumbent statutory representa-
tive, or otherwise to evade the duty to bargain collectively.9 However, it is no
violation of the Act where the employer locates his plant elsewhere, or ceases oper-
ating his plant, or part of it, for reasons having no connection whatsoever to either
concerted or union activities. Thus, where the evidence does not allow a finding
that a discontinuance, reduction, suspension of operations, or a change in the
methods of operation was motivated by purposes condemned by the Act, but was
due to a decline in business, loss of customers, or some similar reasons involving
economic considerations, with the resultant discharge of employees, it was held
that no unfair labor practices could be predicated upon such action.10 It would
appear, therefore, in this type of situation, that the test is whether the employer
closed his plant for valid economic considerations or to get rid of his employees
for union activity or to break an existing union or impede the organization of a
new union.
In applying the principles enunciated above to the facts in this case, it is manifest
that the key to resolving the issue as to whether Respondent closed its plant for
valid business reasons or reason proscribed by the Act is dependent upon a determi-
nation of what was its motive. Motivation is a subjective matter, which if found,
must be found from objective circumstances established by the entire record after
duly considering all countervailing testimony. What then are the objective circum-
stances revealed by this record? One objective circumstance is that beginning in
1956 with the advent of the bulk feed system, substantial inroads had been made
in the bag business with a resultant decrease in income. Another objective circum-
stance is that the gross sales of the partnership for the first 6 months of 1956 were
$207,173.46 and for the first 6 months of 1957, $187,008.84. An additional ob-
jective circumstance is that labor costs for the same periods of time increased from
$20,917.86 to $23,747.48.11 Moreover, Yoseph testified that another factor in his
decision to cease operating the Bridgeton plant was that the combined types of
8 Jones' testimony is as follows : "He told me he was going to close the place down. He
said he couldn't afford to pay the wages, that this union [Charging Union] was asking
the same that we had at the R. & T. Bag Company in Lakewood."
E.g., N.L.R.B. v. Sam Wallick, et al., d/b/a Wallick and Schwalm Company, et al.,
198 F. 2d 477 (C.A. 3) ; N.L.R.B. v. Somerset Classics, Inc., et al ., 193 F. 2d 613 (C.A. 2),
cert. denied 344 U.S. 816; N.LR.B. v. E. C. Brown Co., et al., 184 F. 2d 829 (C.A. 2) ;
N.L.R.B. v. Piedmont Cotton Mills, 179 F. 2d 345 (C.A. 5), enfg. as modified 79 NLRB
1218; N.L.R.B. v. Cowell Portland Cement Company, 148 F. 2d 237, 243 (C.A. 9) ;
N.L.R.B. v. Cape County Milling Company, 140 F. 2d 543 (C.A. 8) ; N.L.R B. v. National
Motor Bearing Company, 105 F. 2d 652, 657-658 (C.A. 9) ; N.L.R.B. v. Hopwood Re-
tinning Co., Inc., 98 F. 2d 97, 100 (C.A. 2) ; Industrial Fabricating, Inc, et al., 119
NLRB 162; Tennessee-Carolina Transportation, Inc., 108 NLRB 1369; L. W. Scott, d/b/a
Scott Paper Boa Company, 81 NLRB 535; Howard Rome, an individual, d/b/a Rome
Products Company, et al., 77 NLRB 1217, 1219-1220; Max M. Joffee, at al., d/b/a
M. M. Joffee Company, et al., 74 NLRB 1568; Pepsi-Cola Bottling Company of Mont-
gomery, 72 NLRB 601, 602.
ioE.g., Trim fit of California, Inc., 101 NLRB 706 (alterations of machines) ; Walter
Holm i Company, 87 NLRB 1169 (financial loss from particular operation) ; Worthington
Creamery and Produce Company, 52 NLRB 121 (decline in orders) ; Julius Breckwoldt t
Son, Inc, 9 NLRB 94 (where protected strike) ; C. C. Bennett, d/b/a Novelty Peanut
Company, 69 NLRB 1031; Diaper Jean Manufacturing Company, 109 NLRB 1045 (3-day
shutdown due to lack of material) ; Bickford Shoes, Inc., 109 NLRB 1346, 1347 (activity
in a portion of plant made it uneconomical to continue other operations, a shutdown of
remaining operations was not an unfair labor practice). See also Ballston-Stillwater
Knitting Co., Inc. v. N.L.R.B., 98 F. 2d 758 (C.A. 2) ; Acme Air Appliance Company,
Inc., 10 NLRB 1385, 1402; Trenton Garment Company, 4 NLRB 1186; Lengel-Pencil
Company, 8 NLRB 988; Brown-McLaren Manufacturing Company, et al., 34 NLRB 984.
n Yoseph was apprised of these figures by his wife, the bookkeeper for the partnership,
shortly after July 4, 1957.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations of the partnership and Girard Bag Company complemented one another,
resulting in a more efficient and economical operation after the merger . la William
J. Fox, manager of the Farmers Cooperative Association of Vineland, Inc., a dis-
interested witness called by the General Counsel, testified that his mill purchased all
its bags from the Respondent and that for the 6-month period before August 1956,
the mill used approximately 13,500 bags each week. After this mill converted to
the bulk feed system in July 1957, Fox testified they purchased only 10,400 bags
from Respondent, a decrease of 3,100 bags a week. Fox's testimony also revealed
that "there has been a continual decrease in bags since that time."
Although a countervailing circumstance in this case is the fact that the sale of
Respondent's business occurred at approximately the same time the Union asked
for recognition, nevertheless, Yoseph's testimony that due to the bleak prospects
which the future held for the bag business, he had been negotiating with Girard for
the sale of the partnership's business "any number of times, over a period of a couple
of years," stands not only uncontradicted on the record but partially corroborated.
Indeed, there is support for a finding that the employees' terminations would have
occurred in the not-too-distant future even absent the intervention of the Union.'3
Moreover, there is nothing in the record which reflects upon Respondent's good
faith: it did not mislead the employees or the union representatives as to its future
plans, nor is there present the element of a plan to escape the union by subterfuge in
its decision to close its Bridgeton plant.14 Furthermore, Respondent's bargaining
obligation with respect to the Union, if any there was, terminated when it decided
to sell out to Girard and it notified the employees and their union representatives
that it was discontinuing its business in Bridgeton.15 Nor is there any probative
evidence in the record casting any doubt upon the bona fides of the contractural
agreement whereby the partnership disposed of its business to the Girard Bag Com-
pany. Finally, it is concluded there is not substantial evidence that the Respondent's
decision to close the plant with its resultant discharge of the employees was in
derogation of its statutory responsibilities or that the evidence proves by a pre-
ponderance of the probative evidence that union animus rather than valid economic
considerations was Respondent's purpose in selling its business . The rights con-
ferred upon Respondent's employees by the statute rise no higher than Respondent's
fundamental right of economic self-preservation. It is concluded, therefore, that
Respondent did not violate Section 8(a)(3) or (5) of the Act because it has not
been shown that its actions were motivated by illegal antiunion reasons rather than
valid business considerations based upon economic survival.16
The General Counsel raised some interesting theories in his brief. However, he
failed to elicit at the hearing, or to introduce into the record, tangible evidence to
buttress these theories that Respondent was illegally motivated. The burden of
proving unlawful motivation rests with the General Counsel and this determination
must be based on "substantial" evidence on the record considered as a whole and
not on surmise or speculation. 17 It is not the burden of the Respondent to show
the absence of illegal motivation but that of the General Counsel to show its pres-
ence.1s Nor is this burden satisfied by evidence which gives equal support to incon-
"When Respondent partnership sold its assets and transferred its customers to Girard,
Girard purchased a building large enough to accommodate the combined operation and
additional workers were employed.
13 Fox's testimony, supra, corroborates the decline in sales, and Klein, the Union's
organizer, estimated that of those mills which, in recent years, had converted to delivering
feed in bulk-that 65 to 75 percent of their feed "goes out in bulk "
14The Girard Bag Company has had a collective-bargaining agreement for the past
10 years with Laborers Local No. 57, AFL-CIO, covering its employees.
15,Cf. California Footwear Company. 114 NLRB 765.
10 In Mount Hope Finishing Company v. N.L.R.B., 211 F. 2d 365 (C.A. 4), the court
absolved an employer of alleged unfair labor practices growing out of the removal of a
textile plant from Massachusetts to North Carolina. The court at page 372 said :
"The glaring and undeniable fact which dominates all others in the record is that long
before the union made its appearance the business was deteriorating and operating at a
loss and that the managers were seeking a suitable location in the South. . . . The
Union was not the cause that closed the plant in Massachusetts " See also Brown Truck
and Trailer Manufacturing Company, Inc., et at, 106 NLRB 999.
17 N L.R B. v. Consolidated Edison Co. of New York, 305 U.S. 197, 229; N.L.R.B. v.
Columbian Enamelinq & Stamping Co., Inc, 306 US 292, 299; N L R.B. v. Stafford
Operating Company, 206 F. 2d 19, 22-23 (CA. 8) ; N.L.R B. v. Montgomery Ward d Co.,
157 P. 2d 486, 491 (C.A. 8).
>e Brady Aviation Corporation v. N.L.R.B, 224 F. 2d 23 (C A. 5).
YOSEPH BAG COMPANY 229'
sistent inferences.19 Under these circumstances, it is found that the General Counsel
has failed to sustain the requisite burden of proof.
With respect to the allegations of the complaint that Respondent violated Section
8(a) (1), the record reveals that Vernal Soltau, an employee, testified that on
July 12, 1957, while he was at the plant, David Yoseph asked him why he joined
the Union. Yoseph said, according to Soltau: "It's going to be hard for you be-
cause [he was] going to cut us down to forty hours a week." Randolph Allen,
an employee, testified that on July 15, Yoseph said to him: "I know that you joined
the Union, but with or without the Union, would you still continue buying bags for
me? I am going to close the plant down and if I can have the two drivers including
myself, and the other driver, I would have the Union licked." These incidents did
not reasonably tend to restrain or interfere with said employees in the exercise of
their rights under the Act.20
The General Counsel also contends that the Respondent threatened to close the
plant unless the employees selected the "Philadelphia Union" as their bargaining
representative. The Trial Examiner's interpretation of the record does not, how-
ever, confirm this contention. Due to language difficulties, the employees, most
of whom were natives of the West Indies, were not articulate and found it onerous
to express themselves when they testified. As a consequence, their testimony, much
of which was in reply to leading questions, might appear on the cold record to.
indicate that Yoseph threatened to close the plant unless they selected the Philadel-
phia Union in preference to the Charging Union. Yoseph's denial that he so
threatened them is credited because the Trial Examiner is convinced Yoseph merely
explained to the assembled employees, on July 19, that since the wage rates provided
for in the collective-bargaining agreement which his competitors had with the
Philadelphia union were "the equivalent" of what he was paying them, he could
afford to pay that wage rate and still remain in business. However, explained
Yoseph to the employees, he could not afford to remain in business if he were
compelled to pay the same wage rate provided for in the contract that the Charging
Union had with the R & T Bag Company at Lakewood because it was approximately
30 percent more than he was presently paying his employees.
Based upon the isolated incidents described above which the General Counsel
adduced with respect to his allegations of violations of Section 8(a)( I), it is found
that there is insufficient evidence upon which to predicate a finding that Respondent
restrained, interfered, or coerced the employees within the meaning of Section
8(a)(1) of the Act21
Accordingly, it is recommended that the complaint against the Respondent be
dismissed in its entirety 22
11 Eastern Coal Corporation v. N.L R, B., 176 F. 2d 131, 135 (C A 4) Cf. N L R.B. v.
The Citizen-News Company, 134 F 2d 970, 974 (C A. 9) ; N L.R B. v. West Point Mfg. Co.,
245 F. 2d 783, 786 (C.A. 5)
° Blue Flash Express, Inc., 109 NLRB 591, 593
21 See Howard Aero, Inc., 119 NLRB 1531 ; General Electric Company, Apparatus
Service Shop, 119 NLRB 1821 ; Mid-South Manufacturing Company, Inc, 120 NLRB 230'.
No evidence was produced with respect to the allegation in the complaint that Respondent
refused "to give vacation pay because the employees joined District 65." This allega-
tion is, therefore, dismissed.
22 N L R B. v. Adkins Transfer Company, Inc, 226 F 2d 324 (C A. 6). See N.L.R.B. v.
New Madrid Manufacturing Company et al., d/b /a Jones Manufacturing Company, 215
F. 2d 908, 914 (C.A 8). Industrial Fabricating, Inc, et al., supra, and The R. C. Mahon
Company, 118 NLRB 1537, which are cited by the General Counsel in his brief, are
inapposite. In Industrial Fabricating, the dischargees were represented by a union which
the Board had certified as the employees' statutory representative and which the company
had dealt with for over 6 years. Moreover, unlike this case, the respondent company had
committed unfair labor practices prior to discharging the employees and had "surrepti-
tiously continue[d] in business at a different location and under an assumed name," from
which the Board concluded that the plant's shutdown was motivated by union 'hostility
and not economic considerations In Mahon Company, although the guard force was not
represented by a certified union , there was a certified union in the plant which repre-
sented the production employees. Moreover, when the guards attempted to organize a
union, the company engaged in various illegal activities which showed union animus
and discriminatory motivation in abolishing its guard force and contracting out its plant
protection work. Furthermore, it was shown it was not as economically advantageous
for the company to contract for its guard protection services with an outside firm and
that its purpose in doing so was motivated by the advent of the union and to avoid
dealing with the union.
577684-61-vol 128-16