Pusey, Maynes & Breish Co.

National Labor Relations Board - Board Decisions

Apr 8, 1936

1 N.L.R.B. 482 (N.L.R.B. 1936)

In the Matter Of PUSEY , MAYNES & BREISH COMPANY and AMALGA-
MATED MEAT CUTTERS AND BUTCHER WORKMEN or NORTH AMERICA,
LOCAL No. 195
Case No. C-08.-Decided April 8, 1936
Meat Packing Industry Interterenoe, Restraint or Coercion: expressed
opposition to labor organization-Discriminations: discharge-Reinstatement
Ordered-Back Pay: awarded.
Mr. Gerhard P. Van Arkel for the Board.
Mr. Patrick J. Friel, of Philadelphia , Pa., for respondent.
Mr. Louis F. McCabe, of Philadelphia , Pa., for Local No. 195.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
STATEMENT OF CASE
On December 2, 1935, Local No. 195, Amalgamated Meat Cutters
and Butcher Workmen of North America, hereinafter referred to as
Local No. 195, filed a charge with the Regional Director for the
Fourth Region against Pusey, Maynes R Breish Company, Philadel-
phia, Pennsylvania, hereinafter referred to as the respondent, charg-
ing the respondent with violations of the National Labor Relations
Act, approved July 5, 1935, hereinafter referred to as the Act. On
December 27, 1935, a complaint and notice of hearing were issued by
the Regional Director for the Fourth Region. copies of which were
served upon the respondent and upon Local No. 195. The complaint
alleged the respondent had committed unfair labor practices as pro-
hibited by Section 8, subdivisions (1) and (3) of the Act by the dis-
charge of John Carsello, Marco Carsello and Silverio Carsello on
November 2, 1935, because they joined and assisted Local No. 195 and
engaged in concerted activities with other employees of the respond-
ent for the purpose of collective bargaining and other mutual aid
and protection. The respondent filed an answer to the complaint in -
which it asked that the complaint be dismissed because the Act is
unconstitutional, but no specific ground of unconstitutionality was
stated. At the conclusion of the hearing, counsel for the respondent
renewed the motion to dismiss on the ground that the Act violates
due process, and on the further ground that the allegations of the
482
DECISIONS AND ORDERS 483
complaint had not been sustained. The Trial Examiner made no
rulings on these motions. Both motions are now denied. The rul-
ings of the Trial Examiner in regard to the admission of evidence
are hereby affirmed.
The answer of the respondent admitted that the business of the
respondent constitutes a continuous flow of trade, traffic and coin-
merce among the several States, and the discharge of the persons
named in the complaint. The answer stated that the discharge of
these persons occurred "for the following reasons inter alia: (a)
the services performed by the Complainants were unsatisfactory
and they were discharged for inefficiency; (b) the Complainants
indulged in Communistic activities, distributed communistic and sedi-
tious literature, inciting discontent and seriously impairing the effi-
cency and discipline of the business operations."
Pursuant to the notice of hearing, a hearing was held on Janu-
ary 13, 1936 at Philadelphia, Pennsylvania before A. Howard
Myers, duly designated to act as Trial Examiner, at which hearing
full opportunity to be heard, to examine and cross-examine witnesses
and to introduce evidence bearing on the issues was afforded both
parties.
By order of the National Labor Relations Board, dated January
9, 1936, the proceeding was transferred to and continued before the
Board in accordance with Article II, Section 35 of National Labor
Relations Board Rules and Regulations-Series 1.
Upon the entire record now before it, including the transcript of
the hearing, exhibits introduced and pleadings filed, the National
Labor Relations Board makes the following:
FINDINGS OF FACT
1. The respondent is and has been since 1920 a corporation exist-
ing under and by virtue of the laws of the State of Pennsylvania,
having its principal office and place of business in Philadelphia,
Pennsylvania, hereinafter referred to as the Philadelphia plant. It
is engaged in the purchasing and slaughtering for sale of lambs,
calves and sheep. The respondent employs between 20 and 25 persons
in its Philadelphia plant.
2. The lambs, calves and sheep purchased for slaughter and sale
by the respondent are raised entirely outside the State of Pennsyl-
vania. Approximately 25 to 50% of this livestock is purchased by
the respondent from commission men within the State of Pennsyl-
vania, who purchase and transport such livestock from outside the
State of Pennsylvania. The balance of 50 to 75% of the livestock
is purchased directly by the respondent from producers outside the
State of Pennsylvania.
484 NATIONAL LABOR RELATIONS BOARD
3. The meats prepared for sale by the respondent are sold by 3
salesmen employed by the respondent to solicit business within the
City of Philadelphia and by means of telephone and telegraphic
orders received by the respondent in its Philadelphia plant. Sales
are made to purchasers in Pennsylvania, New Jersey, Delaware, New
York and Florida. Purchasers from the respondent include the
Atlantic & Pacific Tea Co. and the American Stores Co. About 10%
of the meats prepared by the respondent are sold to purchasers
outside the State of Pennsylvania. Deliveries to purchasers are
made either by means of trucks owned and operated by the re-
spondent or by means of a contract carrier. The respondent's trucks
make deliveries in certain parts of New Jersey as well as in the
State of Pennsylvania.
4. All of the aforesaid constitutes a continuous flow of trade,
traffic and commerce among the several States.
5. Local No. 195 is a labor organization which, since about No-
venmber 1, 1935, has been a local of Amalgamated Meat Cutters and
Butcher Workmen of North America, affiliated with the American
Federation of Labor. At the time of the events discussed hereafter,
this labor organization was known as Local 101, United Meat Cut-
ters, hereinafter referred to as Local 101.
6. John Carsello and his two sons, Marco and Silverio Carsello, all
employed by the respondent, became members of Local 101 on Octo-
ber 22, 1935. On November 2, 1935 Harrison J. Pusey, President
of the respondent, sent word to John Carsello, who was then at work,
to report to the office. Pusey told Carsello that it was necessary for
him to lay off John Carsello and his two sons. In response to Car-
sello's request for the reason for the lay-offs Pusey said: "Well, I
have to economize." Carsello then asked why, if it was necessary to
lay off some one, he-selected three persons from one family. Pusey
gave no reason for the selection, but made the further statement that
John Carsello was "no good down there any more." Carsello said
he could not understand such a statement, since he had rendered sat-
isfactory services to the respondent for twenty-three years. Pusey
then said that liver was being stolen, but admitted he did not believe
John Carsello was stealing it. Carsello, being unsatisfied with these
explanations, insisted upon being given a satisfactory reason for the
lay-off of himself and his two sons. Pusey then replied : "I'm going
to tell you. What is this new union going down there . . . ?" He
then said he believed John Carsello had started to organize the men
in the respondent's plant and added : "I don't want no union in here."
John Carsello notified his two sons that they had been laid off, and
neither of the sons talked to any of the management of the respond-
ent at that time.
DECISIONS AND ORDERS 485
7. At the request of John Carsello a committee from United Meat
Cutters which included Natalo Masi, business agent of Local 101
and of Local No. 195, and Morris Goldberg, had two interviews with
the respondent shortly after the Carsellos were laid off. At the first
meeting Pusey stated he had no contract with any union and did not
recognize any union. At first he would not discuss the case of the
Carsellos with the committee, but upon the threat of being boycotted,
he finally stated that John Carsello was honest and a good butcher.
He also admitted that John Carsello's union affiliation was one of the
reasons he was laid off. Pusey asked the committee to give him a
week to discuss the matter with his associates, which request the com-
mittee granted. In the second interview, about one week later, Mr.
Maynes, whose position with the respondent was not determined at
the hearing, acted as spokesman for the respondent, stated in effect
that he did not want any union organization in the respondent's
plant, that John Carsello was not working for the interests of the
company, and that he would not reinstate the Carsellos under any
circumstances.
8. John Carsello, a butcher, had worked steadily for the respondent
since 1911 or 1912. He began working at a salary of $14.00 a week,
which was gradually increased to $40.00. About two years before
his discharge his salary was, decreased to $30.00 a week, all other
employees of the respondent receiving a salary cut at the same time.
At the time he was laid off John Carsello was receiving $30.73 a
week. Carsello had been made foreman of the butchers employed
by the respondent about 1930 and his two sons worked as butchers
under his supervision. As foreman he had no authority to hire or
discharge employees.
John Carsello testified that in all his years of service with the
respondent his work had never been criticised, and that he had been
reprimanded only once or twice, both times concerning his being late
in reporting for work in the morning. He also testified that while
it had been the policy of the respondent to lay off the other butchers
in rotation during slack periods, he had never before been laid off.
Marco Costello began working for the respondent in 1929 for
$20.00 a week. He was subsequently raised to $25.00, then cut to
$22 00 but prior to the time he was laid off had again been increased
to $25.00 a week. The respondent had never made any complaint
about Marco Carsello's work and he had worked for the respondent
steadily since 1929, except for the seasonal periods of lay-offs in
which all butchers except John Carsello participated. About two
weeks after the lay-off of November 2, 1935, Marco Carsello returned
to the plant and asked Pusey to give him a recommendation in order
that he might secure other employment. In response to Marco Car-
486 NATIONAL LABOR RELATIONS BOARD
sello's question as to whether the respondent had any complaint about
his work , Pusey replied : "No, no; I like you, Marco , you are a good
boy, but you are going in with the wrong company ." Pusey agreed
to give him a recommendation.
Silverio Carsello had been employed by the respondent for about
three years . He had never been reprimanded about his work and
except for the customary seasonal lay-offs had worked steadily. At
the time he was laid off he was receiving $20.00 a week , having been
cut from $25 .00 to $20.00 at the time all other employees of the
respondent received a cut.
9. It is obvious from the record that the Carsellos were discharged
and not laid off. It is also obvious , in the light of the work records
of the three Carsellos, that the reason for the discharge and the
refusal to reemploy was their joining Local 101 and a belief on the
part of the respondent that John Carsello was attempting to organize
the employees of the respondent . This conclusion is substantiated by
the conversation of Pusey with John Carsello at the time of the dis-
charge; by the conversations of Pusey and Maynes with the com-
mittee from United Meat Cutters ; by the statement of Pusey to
Marco Carsello upon the occasion of his return to the plant to secure
a recommendation ; and lastly, by the respondent 's answer to the com-
plaint in this case. The allegations of the respondent in the, answer
that the Carsellos indulged in communistic activities and distributed
communistic and seditious literature are not relevant . In any event
no evidence in support of these allegations was offered . The allega-
tion that the Carsellos incited discontent and thereby impaired effi-
ciency and discipline was likewise not supported by any evidence.
The evidence does show that John Carsello , about two weeks before
his discharge and on a Saturday afternoon when he was not working,
visited two other slaughter houses in the vicinity for the purpose
of distributing literature concerning the organization . No evidence
was offered by the respondent to show that any literature was dis-
tributed in the respondent 's plant. John Carsello testified he had
never engaged in any union activities during working hours. Sil-
verio Carsello testified that he had never engaged in any union
activities during working hours , had never distributed any literature,
had never attempted in or out of working hours to organize workers
in any other company, and had never seen any union literature in
the respondent 's plant. Marco Carsello testified he had never en-
gaged in any union activities during working hours and had never
at any time attempted to organize the employees of the respondent
or of any other company.
10. At the time of the hearing none of the Carsellos had received
any income from other work since the time they were discharged
DECISIONS AND ORDERS 487
by the respondent, except Silverio Carsello, who had earned $4.00
to $5.00 a week as a musician. Since Silverio Carsello earned the
same amount in a similar way prior to the time he was discharged,
and since employment as a butcher would not preclude such extra
work, the respondent is not entitled to deduct this sum from the
amount which the respondent is hereinafter ordered to pay Silverio
Carsello.
11. By the discharge and refusal to reemploy John, Marco and
Silverio Carsello, and each of them, the respondent has discrim-
inated in regard to hire and tenure of employment and thereby
discouraged membership in a labor organization.
12. By the discharge of and refusal to reemploy John, Marco and
Silverio Carsello, and each of them, the respondent has interfered
with, restrained and coerced its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
13. The aforesaid acts of the respondent tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding the Board finds and concludes as a
matter of law :
1. Local 101, United Meat Cutters, was, and Local No. 195, Amal-
gamated Meat Cutters and Butcher Workmen of North America,
now is, a labor organization, within the meaning of Section 2, sub-
division (5) of the Act.
2. The respondent, by the discharge of and refusal to reemploy
John, Marco and Silverio Carsello, and each of them, has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8, subdivision (3) of the Act.
3. The respondent, by interfering with, restraining and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8, subdivision (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law and
pursuant to Section 10, subdivision (c) of the National Labor Re-
lations Act, the National Labor Relations Board hereby orders that
the respondent, Pusey, Maynes & Breish Company :
97571-36-vol i--32
Ogg NATIONAL LABOR RELATIONS BOARD
1. Cease and,desist :
(a) From in any manner interfering with, restraining or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining, and other
mutual aid and protection ;
(b) From discriminating in regard to hire or tenure of em-
ployment and thereby discouraging membership in any labor
organization.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to John, Marco and Silverio Carsello, and each of them,
reinstatement to their former positions without prejudice to any
rights and privileges previously enjoyed; -
(b) Make whole John, Marco and Silverio Carsello for the loss
they have suffered by reason of their discharge, by payment to each
of them, respectively, of a sum of money equal to that which they
would normally have earned as wages during the period from the
time they were discharged to the date of such offer of reinstatement,
computed at the weekly wage received at the time of discharge, as set
forth in paragraph 8 of the findings of fact, less the amount which
each, respectively, may have earned subsequent to the time of dis-
charge and up to the time of the offer of reinstatement, except that
any money earned by Silverio Carsello as a musician during said
period shall not be deducted unless such money was earned by him
during the hours he would have worked for the respondent had he
not been discharged.