Samuel B. Gass

National Labor Relations Board - Board Decisions

Aug 27, 1965

154 N.L.R.B. 728 (N.L.R.B. 1965)

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the appropriate unit described below, concerning rates of pay,
wages, hours of employment, and other conditions of employment. The bar-
gaining unit is:
All lithographic production employees at our New York City, New York,
plant, excluding sales employees, professional sketch artists, office and
clerical employees, nonworking supervisors, plant superintendents, and all
supervisors as defined in Section 2(11) of the Act.
WE WILL NOT encourage membership in N. Y. Printing Pressmen's Union No.
51, I.P.P. & A.U. of N A, AFL-CIO, or in N. Y. Press Assistants' Union No 23,
I.P.P. & A.U. of N.A., AFL-CIO, or in any other labor organization or discour-
age membership in Local 1, Amalgamated Lithographers of America, or in any
other labor organization, by discharging or laying off employees or discriminat-
ing against them in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of employment, except to the extent that their
rights in that regard may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized by Section
8(a)(3) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7 of the Act.
WE WILL baigain collectively, upon request, with Local 1, Amalgamated
Lithographers of America, as the exclusive representative of all our employees
described above with respect to rates of pay, wages, hours of employment and
other conditions of employment and, if an understanding is reached, embody
such understanding in a signed agreement.
WE WILL reimburse Nicholas Napolitano and Joseph J. Patini for any loss
of earnings suffered by reason of the discrimination practiced against them.
All our employees are free to become, remain, or refrain from becoming or remain-
ing, members of Amalgamated Lithographers of America, except to the extent that
such right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by Section 8(a)(3) of the Act.
HEMISPHERE PRESS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
TRU-FIT PLATE CORP.,
Employer.
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 employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New York, No. 751-5500.
Samuel B . Gass; Lipman Bros., Inc.; Lipman Poultry Products,
Inc.; Riverside Poultry Farms , Inc.; Lipman Poultry Farms,
Inc.; By-Products , Inc.; Samuel Lipman Sons; Pinecrest
Hatcheries , Inc. and Truck Drivers, Warehousemen and Help-
ers Union , Local No. 340, affiliated with International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers of
America. Case No. 1-CA-4715. August 27,1965
DECISION AND ORDER
On March 17, 1965, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
154 NLRB No. 62.
SAMUEL B. GASS, ET AL. 729
'ents had engaged in and were engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent Gass and the other
corporations named in the caption hereof, referred to herein collec-
tively as Respondent Lipman, filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs, and the entire
record in this case, and hereby adopts the findings,2 conclusions, and
recommendations of the Trial Examiner to the extent consistent
with this Decision.
1. We agree with the Trial Examiner that the various Lipman
corporations named herein constitute an integrated enterprise,' and
that Respondents Lipman and Gass are joint employers of the
1 Respondents ' requests for oral argument are hereby denied as the record , the excep-
tions, and the briefs adequately present the issues and the positions of the parties.
2 These findings and conclusions are based , in part , upon credibility determinations of
the Trial Examiner , to which Respondents except. After a careful review of the record,
we conclude that the Trial Examiner's credibility findings are not contrary to the clear
preponderance of all the relevant evidence . Accordingly , we find no basis for disturbing
the Examiner 's credibility findings in this case . Standard Dry Wall Products , Inc., 91
NLRB 544 , enfd. 188 F . 2d 362 ( C.A. 3). We also reject Respondents ' charge that the
Trial Examiner was biased and prejudiced.
We do not adopt the characterization in footnote 8 of the Trial Examiner 's Decision
regarding the testimony of Respondents ' witness Pushard , referred to by the Trial Ex-
aminer as the man who had purchased a jeep from Samuel Gass . Pushard 's testimony,
when considered in its entirety , is fragmentary and equivocal , and neither confirms nor
contradicts Miville. There is nonetheless no basis for disturbing the Trial Examiner's
findings concerning the events of August 24, 1964. Miville 's testimony concerning his
conversation that day with Samuel Gass is supported by employee Bennett, and Samuel
Gass did not testify on this issue
We find no merit in Respondents ' exceptions to the Trial Examiner ' s conclusions, in
footnote 10 of the Decision , with regard to Roy's testimony , as Roy was in fact im-
peached by employee Bennett's unrebutted testimony
Respondent Gass moved to remand the case and reopen the record so that it could
introduce the transcript of a proceeding before the Maine Employment Security Commis-
sion and the Decision therein for the purpose of discrediting Mr. and Mrs. Miville. The
General Counsel opposed the motion on the grounds that at the time of the hearing herein
Respondent Gass had possession both of the transcript , as appears from the cross-
examination of Miville by Respondent Gass ' attorney in the instant proceeding, and of
the Commission 's Decision , which it introduced into evidence in the instant proceeding.
There is , accordingly, no merit to Respondent Gass ' motion and it is hereby denied.
8 The Trial Examiner properly took official notice of the Board 's prior decision involv-
Ing Respondent Lipman, Lipman Bros ., Inc., etc., 147 NLRB 1342 , wherein the Board
found that the various Lipman corporations constituted a single integrated enterprise.
Seane and Line Fishermen's Union of San Pedro , etc. (William J. Horner, et al.), 136
NLRB 1, footnote 4.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers here involved. In so doing, we note the following. The only
officers and directors, and the controlling shareholders of all the
Lipman corporations are the three Lipman brothers, Bernard,
Frank, and Harold. Until the instant charges were filed, the three
directors of Respondent Gass were its president, Samuel B. Gass;
Harold Lipman; and Beverly Lipman Gass, Samuel Gass' wife and
the Lipmans' sister. Respondent Lipman is Respondent Gass' sole
customer under an oral contract which Lipman can cancel unilaterally
and the Gass trucking firm performs an essential function for
Respondent Lipman.
The events in the instant case shed further light on the relation-
ship between the Respondents. On the morning of August 19, 1964,4
immediately following the signing of authorization cards by all the
Gass drivers, Morgan, the feedmill superintendent, castigated two
of the drivers for their organizational activity and their failure to
discuss it with Gass. On the following day,5 notices were posted at
the feedmill putting its facilities "off limits" to the drivers although
they had previously had access thereto, and driver Miville was dis-
charged by Harold Lipman, and told that Lipinan was taking over
the trucking firm. When Miville questioned Samuel Gass about
Harold Lipman's claim to ownership of the trucking firm, Gass did
not deny it. When Miville and other drivers questioned Gass about
reinstatement for Miville, he repeatedly told them "he'd try every-
thing in his power" to effectuate this result. On August 20, when
Gass received the Union's letter requesting recognition and bargain-
ing, he brought it to one or more of the Lipmans, and thereafter
immediately advised his employees that he was going out of business,
and that a new company would be taking over. During the meeting
between the drivers and Mr. and Mrs. Gass which ensued to avoid
this result, one of the drivers expressed a fear of discharge when the
Lipmans took over, and Mrs. Gass told him this would not happen
because "I believe you was [sic] picked as one of the men to remain
on the job." At this meeting, the employees signed a document ex-
pressing their disinterest in union representation. Thereafter, the
feedmill's facilities were again opened to the drivers, Gass told
Miville that he [Gass] could now keep his trucking outfit, and
Morgan told another Gass driver that if the employees had not
signed the document, they would have been working for him the
following Monday morning.
It is clear from the above that Respondent Lipman possessed and
exercised such control over the working conditions and employment
' Unless otherwise specified , all events occurred in 1964.
The Trial Examiner's Decision incorrectly indicates that the notice posting occurred
on August 19 rather than August 20.
SAMUEL B. GASS, ET AL. 731
status of the Gass drivers as to make it their joint employer with
Respondent Gass. Accordingly, we find that Respondents Lipman
and Gass are the joint employers of the drivers herein involved and,
as such, are jointly and severally liable for the unfair labor practices
found here.6
2. Respondents urge that all the drivers herein involved are "agri-
cultural laborers" within the meaning of Section 2 (3) of the Act, and
not therefore "employees" subject to the jurisdiction of the Board.
In agreement with the Trial Examiner's conclusion, we find no merit
to this contention.
Respondent Lipman is engaged in various enterprises connected
with poultry, including the hatching and raising of chickens, their
preparation for market, their sale, and the manufacture of chicken
feed. It employs Respondent Gass in two ways. (1) Under oral
contract with Lipman Poultry Farms, Inc.,7 Respondent Gass de-
livers feed produced at the Lipman feedmill to poultry farms owned
and operated by Respondent Lipman, and to other farms where
poultry is raised for Respondent Lipman by independent formers 8
(2) Pursuant to another oral arrangement, Gass delivers most of the
products from the byproducts processing plant to the feedmill. This
latter work is a minor part of the Gass operation involving only 1
to 3 percent of the 1,500 tons hauled weekly.
Section 2(3) of the Act excludes agricultural laborers from the
definition of employees covered by the Act. Annually, since 1946,
Congress has added a rider to the Board's appropriation bill provid-
ing that no part of the appropriation shall be "used in connection
with ... bargaining units composed of agricultural laborers . . ." as
set forth in section 3(f) of the Fair Labor Standards Act. On
numerous occasions, the Board has stated that it was its policy to
6 Accord N.L R.B. v. Dayton Coal and Iron Corp., 208 P. 2d 394 (C.A. 6) ; N.L R.B.
v. Long Lake Lumber Company, etc., 138 F. 2d 363 (C A 9) ; Harvey Aluminum (Incorpo-
rated ), et al., 147 NLRB 1287; Freda Redmond and Sir James, Inc., 147 NLRB 1025, Gay-
lord Discount Stores of Delaware, Inc., Gay Apparel Corporation, 137 NLRB 557, 567-568;
International Trailer Company, Inc., et al, 133 NLRB 1527; Panther Coal Company, Inc.,
et al ., 128 NLRB 409 ; H. E. Stoudt & Son, Inc., 114 NLRB 838.
We also agree with the Trial Examiner's conclusions that Respondents Lipman and
Gass each meets the Board's jurisdictional standards As Respondent Lipman annually
sells and transports quantities of poultry valued in excess of $50,000 directly to States
of the United States other than the State of Maine, it is subject to the Board's jurisdic-
tion on the basis of its direct outflow. As Respondent Gass annually performs services
valued in excess of $50,000 for Respondent Lipman, it is subject to the Board's jurisdic-
tion on the basis of indirect outflow. Kenilworth Delivery Service, Inc, 140 NLRB
1190 ; H P 0 Service, Inc, 122 NLRB 394.
7 The Trial Examiner's Decision erroneously states that this agreement is with Lipman
Poultry Products, Inc.
8 Respondent Lipman has various arrangements for the hatching and raising of its
chickens, two of which are involved here. Respondent Lipman owns 10 farms, on which
its employees raise chickens. In addition, it has oral agreements with about 150 to 200
independent farmers who have no employees but themselves raise chickens owned by
Respondent Lipman. Respondent Lipman keeps title to the chickens, and provides the
feed. The farmers are paid according to the number of birds they raise for the period
of time in which they raise them.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consider the interpretation of that section and Act by the Labor
Department in view of that agency's responsibility and experience
in administering that section.
Section 3(f) states :
"Agriculture" includes farming in all its branches and includes
... the raising of ... poultry, and practices ... performed by a
farmer or on a farm as an incident to, or in conjunction with,
such farming operations, .. .
That part of the definition relating to various branches of farm-
ing itself, including work such as the cultivation of the soil, the
growing of agricultural commodities, and the raising of livestock or
poultry, is commonly termed the "primary" definition of agriculture,
whereas "practices . . . performed by a farmer or on a farm" are
within the "secondary" definition.9 The work performed by the
drivers herein involved does not constitute a branch of farming or
the raising of poultry such as would bring it within the "primary"
definition. In order to satisfy the requirements of the "secondary"
definition, the work which is performed, whether by a farmer or on
a farm, must be performed "as an incident to, or in conjunction
with" the operations of the farmer performing the function or the
farm on which it is performed.
The line between practices that meet these requirements and those
that do not is not susceptible of precise definition. The relationship
of the practice to agricultural activity or to a commercial activity
must be determined by an examination and evaluation of all the
relevant facts and circumstances. The result depends not on any
mechanical application of isolated factors or tests but rather on a
consideration of the total situation.1° In making a determination in
the instant case, we note the following factors. The individuals
involved are engaged in the work of truckdriving. They are em-
ployed by joint employers, Respondent Gass, a truckdriving firm,
and Respondent Lipman, which engages in various nonagricultural
and agricultural operations. A minor part of the drivers' work,
deliveries from the byproducts plant to the feedmill, is clearly non-
agricultural as both these plants are commercial enterprises where
the products involved undergo substantial change." The major part
0 Farmers Reservoir & Irrigation Company v . McComb, Wage and Hour Administrator,
337 U S. 755.
10 Mitchell v. Budd, 350 US 473; Maneja v. Waialua Agricultural Co., Ltd. See also
the Wage -Hour Administrator 's interpretations of the agricultural exemption in the Fair
Labor Standards Act, 29 C .F.R. part 780 , § 780 153 and 780.154.
"The byproducts plant processes byproducts of Lipman - owned chickens for delivery to
the feedmill and sale to other customers The feedmill mixes these byproducts with
various other materials to produce chicken feed . See Mitchell v. Budd, supra, at 481-482 ;
Oxford Royal Mushroom Products , Inc., 139 NLRB 1015; cf. McAnally Enterprise, Inc.,
162 NLRB 527 ; Calaf v. Gonzalez , 127 F. 2d 934 ( C.A. 1) ; Bowie v. Gonzalez, 117 F. 2d
11 (C.A. 1) ; Armour Ches-Peake etc., 120 NLRB 681.
SAMUEL B. GASS, ET AL. 733
of the drivers' work involves the fulfillment of the feedmill's com-
mitments to supply feed for the 10 farms owned by Respondent
Lipman and the 150 to 900 farms on which independent farmers
raise Lipman chickens. We find, upon consideration of the above,
that the work of the drivers is performed as an incident to or in con-
junction with the operations of the feedmill rather than to the
operations of any farmer or farm. Accordingly, these drivers are
"employees" within the meaning of the Act subject to the jurisdic-
tion of the Board.12
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondents Samuel B. Gass, Augusta, Maine; and Lipman Bros.,
Inc. ; Lipman Poultry Products, Inc. ; Riverside Poultry Farms, Inc. ;
Lipman Poultry Farms, Inc.; By-Products, Inc.; Samuel Lipman
Sons; and Pinecrest Hatcheries, Inc., Augusta, and Winslow, Maine;
their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discharging and thereafter refusing to reinstate any employee,
or discriminating in any other manner in regard to the hire, tenure of
employment, or any term or condition of employment of any em-
ployee in order to discourage membership and activities in Truck
Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organization.
(b) Coercively or otherwise unlawfully interrogating their em-
ployees concerning their union activities or sympathies; or threaten-
ing to cease business in order to coerce their employees not to assist
or support any labor organization.
(c) Refusing to bargain collectively with respect to rates of pay,
wages, hours of employment, or other terms and conditions of em-
ployment, with the above-named Union as the exclusive representative
of all their employees in the following appropriate unit :
All full-time truckdrivers, driver-mechanics and mechanics, em-
ployed at the Samuel B. Gass plant or terminal, exclusive of office
12 Both Respondents moved to remand the case and reopen the record for the taking
of additional evidence on the question of the agricultural exemption . Respondent Gass
offered to prove that the drivers here involved had been ruled exempt as agricultural
laborers from the minimum wage and overtime provisions of the Fair Labor Standards
Act, and Respondent Lipman offered to present further detailed information concerning
its various operations . The General Counsel opposed these motions , and Respondent
Lipman filed a response thereto.
We find merit in the General Counsel ' s opposition to a remand Respondent Gass sub-
mitted no documentary evidence in support of its allegation concerning a Labor De-
partment ruling, and we have been administratively advised that there has been no
such ruling . Furthermore , even if we assumed the truth of the matters proffered by
Respondent Lipman concerning its operations , it would not change our conclusions with
regard to the work of the truckdrivers here involved . Accordingly , the motions to
remand are hereby denied.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerical employees, salesmen, professional employees, guards, and
supervisors as defined in the Act.
(d) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Truck Drivers, Ware-
housemen and Helpers Union, Local No. 340, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of colleerive bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right might be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by Section 8(a) (3)
of the Act.
2. Take the following affirmative action which the Board finds
necessary and appropriate to effectuate the purposes of the Act :
(a) Offer to Gerald Miville immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges. and make him whole in
the manner set forth in the section of the Trial Examiner's Decision
entitled "The Remedy." Notify the above-named employee if pres-
ently serving in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed
Forces.
(b) Upon request, bargain collectively with Truck Drivers, Ware-
housemen and Helpers Union, Local No. 340, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of the employees
in the above-described appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms of conditions of employ-
ment, and embody any understanding reached in a signed agreement.
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post in conspicuous places at the Samuel B. Gass plant or
terminal located at Augusta, Maine, including all places where
notices to employees are customarily posted, copies of the attached
SAMUEL B. GASS, ET AL. 735
notice marked "Appendix." 13 Copies of said notice , to be furnished
by the Regional Director for Region 1, shall, after being duly signed
by Respondents' representatives, be posted by them immediately upon
receipt thereof, and be maintained by them for 60 consecultive days
thereafter . Reasonable steps shall be taken by Respondents to insure
that said notices are not altered , defaced, or covered by any other
material.
(e) Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondents have taken to
comply herewith.
13 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 "a Decision and Order " the words "a
Decree of the United States Court of Appeals . Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate 'the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discharge and thereafter refuse to reinstate any
employee, or discriminate in any other manner in regard to the
hire, tenure of employment, or any term or condition of employ-
ment of any employee in order to discourage membership and
activities in Truck Drivers, Warehousemen and Helpers Union,
Local No. 340, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization.
WE WILL NOT refuse to bargain collectively with Truck
Drivers, Warehousemen and Helpers Union, Local No. 340,
affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the exclusive
bargaining representative of the employees in the bargaining
-unit described below.
WE WILL, upon request of the Union, bargain collectively with
Truck Drivers, Warehousemen and Helpers Union, Local No.
340, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the ex-
elusive bargaining representative of the employees in the bar-
gaining unit described below, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of em-
ployment, and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All full-time truckdrivers, truckdriver-mechanics, and
mechanics, employed at the Samuel B. Gass plant or termi-
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nal, exclusive of office clerical employees, salesmen, pro-
fessional employees, guards, and supervisors as defined in
the Act.
WE WILL offer Gerald Miville immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to any seniority or other rights previously enjoyed,
and make him whole for any loss of pay he may have suffered
as a result of our discrimination against him.
WE WILL NOT coercively or otherwise unlawfully interrogate
our employees concerning their union activities or sympathies;
or threaten to cease business in order to coerce our employees not
to assist or support any labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-orga-
nization, to form labor organizations, to join or assist Truck
Drivers, Warehousemen and Helpers Union, Local No. 340,
affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right might be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section
8(a) (3) of the Act.
All our employees are free to become and remain, or refrain
from becoming or remaining, members of the above-named or any
other labor organization, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
SAMUEL B. GASS,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LIPMAN BROS., INC.; LIPMAN POULTRY PRODUCTS,
INC. ; RIVERSIDE POULTRY FARMS, INC. ; LIPMAN
POULTRY FARMS, INC. ; BY-PRODUCTS, INC. ; SAM-
UEL LIPMAN SONS; PINECREST HATCHERIES, INC.,
Employer.
Dated---------------- By-------------------------------------
(RepresentativP ) (Title)
SAMUEL B. GASS, ET AL. 737
NOTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional
Office, Boston Five Cents Savings Bank Building, 24 School Street,
Boston, Massachusetts, Telephone No. 523-8100, if they have any
question concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on August 21, 1964, and amended on September 24, 1964, by
Truck Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, hereinafter called the Union or Charging Party, the General Counsel
of the National Labor Relations Board, hereinafter called the General Counsel' and
the Board respectively, by the Regional Director for Region 1 (Boston, Massachu-
setts), issued its complaint dated October 5, 1964, against Samuel B. Gass, hereinafter
referred to as Respondent Gass, and the other corporations named above, herein
referred to collectively as Respondent Lipman. The complaint alleged that Respond-
ents Gass and Lipman were an integrated enterprise with a common labor policy and
had engaged in and were engaging in unfair labor practices affecting commerce
within the meaning of Sections 8 (a) (1), (3), and (5) and 2 (6) and (7) of the Labor
Management Relations Act, 1947, as amended, herein called the Act. Copies of
the charge and amended charge, complaint and notice of hearing thereon were
duly served upon the Union and Respondents individually and collectively.
Respondent Gass and Respondent Lipman duly filed individual answers admitting
certain allegations of the complaint but denying the commission of any unfair labor
practices.
Pursuant to notice , a hearing hereon was held at Augusta, Maine, on November 23
and 24, 1964, before Trial Examiner Thomas S. Wilson. All parties appeared
at the hearing, were represented by counsel or a representative, and were afforded full
opportunity to be heard, to produce, examine, and cross-examine witnesses, to intro-
duce evidence material and pertinent to the issues, and were advised of their right
to argue orally upon the record and to file briefs and proposed findings and con-
clusions or both. Oral argument at the conclusion of the hearing was waived.
Briefs have been received from General Counsel, and from Respondent's Gass
and Lipman on January 14, 1965.
Upon the entire record in this case, and from my observation of the witnesses,
I make the following:
FINDING OF FACT
1. THE RESPONDENTS
Each of the named Respondents is, and has been at all times material herein, a
corporation duly organized under and existing by virtue of the laws of the State of
Maine.
At all times herein mentioned, Respondent Lipman has maintained its principal
office and places of business at Riverside Drive, Augusta, Maine, and Winslow,
Maine, herein called Respondent Lipman's plant, and is now and continuously has
been engaged at said plants in the hatching, feeding, general care, processing, sale,
and distribution of poultry. The only officers and directors of the various Lipman
corporations are the three Lipman brothers, Bernard, Harold, and Frank.
'This term specifically includes the attorney appearing for the General Counsel at the
hearing.
206-446-66-vol. 151 48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These separate Lipman corporations constitute a single integrated organization
engaged in the chicken business from the egg, or the chicken, to the dressed poultry
and return , In general these operations work something like this:
Respondent Pinecrest Hatcheries, Inc., hatches chicks from eggs and sells such
chicks to Lipman Poultry Farms, Inc., which grows such chicks on 150 to 200 farms
owned or leased by it and at the proper time sells the grown chickens to Lipman Bros.,
Inc., which kills, dresses, and sells the dressed poultry on the market and sells the
feathers, feet, and other byproducts to By-Products, Inc., which processes such by-
products and sells the resulting product to Samuel Lipman Sons which mixes such
byproducts with grain, flour, etc., to make chicken feed at its feedmill and sells
said feed to Lipman Poultry Farms, Inc., which feeds same to its growing chicks-
and then the whole process starts all over again .2
In general, and disregarding the individual corporations involved, the Lipman
brothers have divided the overall Lipman operations so that brother Frank takes
care of the growing of the chicks on the farms, Bernard the sales and Harold the
rolling stock and the maintenance and production of the feedmill and other plants.
During the past year, Respondent Lipman sold and transported quantities of
poultry valued in excess of $50,000 directly to States of the United States other
than the State of Maine.
About 3 years ago Respondent Samuel B. Gass was incorporated under the laws
of the State of Maine. Prior to that time Samuel B. Gass, an individual, here
referred to as Sam Gass, had operated this same trucking business as a sole pro-
prietorship. Sam Gass, the individual, is now the president of the corporation and
Beverly Lipman Gass, Sam's wife, is its treasurer. Until after the filing of the charges
in the instant matter the directors of the corporation were Sam and Beverly Gass
and Harold Lipman. After the filing of the charges herein Harold Lipman was
replaced as such director by a third party unrelated to the Lipmans.
As her name implies, Beverly Lipman Gass is the sister of Bernard, Harold, and
Frank Lipman.
At all times herein mentioned , Respondent Gass, the corporation, has maintained
its principal office and place of the business at Bangor Street, in the city of Augusta,
and State of Maine, hereinafter referred to as Respondent Gass' terminal and is
now and continuously has been engaged at said plant in the hauling and transpor-
tation of poultry feed from Respondent Lipman's feedmill to chicken farms owned
or leased by Respondent Lipman Poultry Farms, Inc.
During the past year Respondent Gass, in the course and conduct of its said
trucking operations within the State of Maine, derived gross income in excess of
$100,000 from said trucking operations which were performed pursuant to an oral
contract or arrangement with Respondent Lipman Poultry Products, Inc. In addi-
tion the evidence shows that Respondent Gass is also engaged in the trucking of
some products from By-Products, Inc., to the feedmill operated by Respondent
Samuel Lipman Sons under some arrangement not disclosed in this record.
I find that Respondent Lipman and Respondent Gass are engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America is a labor organization admitting to membership employees of Respond-
ent Gass.
M. THE UNFAIR LABOR PRACTICES
A. The facts
As of August 1, 1964, Respondent Gass was operating nine specially equipped
tank trucks for the hauling and unloading of feed with seven drivers, one mechanic,
and one mechanic-driver.
Shortly prior to August 1 Gass employed Henry Roy, who had formerly been
employed by one of the Lipman corporations, as a bookkeeper with the authority
to hire and fire. The announcement of Roy's authority caused driver Gerald Miville,
2I recognize that two Respondents , Riverside Poultry Farms, Inc., and Lipman Poultry
Products, Inc., remain unaccounted for in the above-enumeration-just as they did during
the testimony of Harold Lipman upon whose testimony the above -findings are made. Each,
however, plays its part in this integrated process. No doubt one or both of these Re-
spondents have something to do with the production of hatching eggs which appears to
have been the one part of the operations omitted during Lipman's testimony. Other
testimony indicated that Respondent Lipman did produce its own hatching eggs.
SAMUEL B. GASS, ET AL. 739
whose 8 years of employment with Gass made him the second longest driver in
point of service, to worry about job security and to begin talking with his fellow
employees about joining a union.
So on August 14, at the request of Miville and from the Miville home, Robert W.
(Pinnoccio) McLaughlin telephoned Albert Hastings, the president and business
agent of Local 340, about the possibility of the Gass employees joining the Union
and requesting union authorization cards for that purpose.
The requested union authorization cards were received by McLaughlin through
the mails on August 17. That evening Miville and McLaughlin visited all but two
of the Gass employees and secured their signatures on such authorization cards.
Early the next morning the other two employees also executed cards so that 100
percent of the Gass employees had signed cards for the Union. The signed cards
were mailed back to Hastings who, on August 19, sent Respondent Gass a letter
offering to prove the Union's majority and demanding bargaining rights. This letter
was received by Respondent Gass on the morning of August 20.
However on the morning of August 19 Thomas Morgan, superintendent of
Respondent Lipman's feedmill, having heard that the Gass employees had signed
union authorization cards and immediately following a conversation he had with
Sam Gass, met Gass drivets Parlor and McLaughlin in the scaleroom of the feedmill
while they were waiting to load their trucks. Morgan told them that Sam Gass
knew what the employees were up to, that Sam could not figure out what caused
the employees to do what they had done and that he, Morgan, thought the men
had jumped into the Union too quickly and that they should have gone to Sam and
talked it over with him first. Morgan also stated that Gass did not seem to be
bothered about the matter.
Later that same day, August 19, signs were suddenly posted at the feedmill inform-
ing the Gass employees that the mill and all its facilities were "off limits" to them.
These signs effectively prevented the drivers from using the restrooms and the
vending machine which, until that time, they had customarily used.
Also either later that same day or some day prior thereto,3 driver Miville was on
the top of his truck loading the same when Harold Lipman, Thomas Morgan, and
Lipman employee Caron passed by. According to Lipman and Caron, Miville made
a vulgar remark to Lipman relative to a character with a feminine name.4 Lipman
and the others with him walked on without comment.
On Thursday, August 20, about 4:45 a.m. Sam Gass stopped Miville as he was
about to start his day's work telling him that Frank Lipman wanted him off Lipman
property and wanted to see Miville in person at 6.45 am. at the feedmill.
Upon reporting at the feedmill office as ordered, Miville was met by Harold
Lipman and inquired for Frank. Harold said that he would take care of Miville
and that Miville was "all through." When Miville asked for an explanation,
Harold answered, "you've been shooting your mouth off at my chicken farmers and
been fooling at women on the farms." Miville replied that his discharge was really
on account of the Union. Harold retorted, "You didn't have to sign the union papers"
and then inquired as to how many Gass employees had signed such papers When
Miville told him "100 percent," Lipman said, "I'm taking the trucking outfit over"
and ended the interview by ordering Miville off his property again.5
8 Harold Lipman and Caron placed this incident on August 19 whereas Miville thought
it had happened a month or more before. Respondent's witness , Thomas Morgan, who
supposedly was present , was not interrogated about the matter , raising the inference that
his testimony in regard thereto would have been unfavorable to Respondent
6 Contrary to the testimony of Lipman, this unknown and apparently fictitious female
appears to have been a standing joke of some years standing both at the feedmill and
between Miville and Harold Lipman
5In his testimony Lipman maintained that he , not Frank Lipman, telephoned Sani Gass
to have Miville report in the morning because he , Harold , "wanted the pleasure of
kicking [Miville] to hell out of the yard" because of Miville's "vulgar" remark of Au-
gust 19 to him regarding this fictitious female
As for the discharge interview itself, Harold Lipman testified that "I told him
[Miville] not to get on my property and I don ' t want to see his dirty face again."
When asked if there was any talk of a union at that interview , Lipman answered, "I
don't know of any talk of no union."
It is noteworthy that Lipman 's testimony of the Miville interview contained no refer-
ence to the alleged vulgar remark which supposedly caused the interview.
When I asked when he first learned of any union activity among the Gass employees,
Harold Lipman became evasive and noticeably indefinite except for the fact that his
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later that morning Miville and Union President Hastings drove to the Gass
terminal where Hastings asked to see Sam Gass. Mrs. Gass answered that Sam
was away but that she could take care of his business. Hastings then introduced
himself as the president and business agent of Local 340. With that Mrs. Gass
broke with, "Oh, you're from the Union. You get out of this yard and get off from
this property. Go on and get out. Get out . . . . You get out of this yard or I'll
call the police. We don't have any union around here yet, and we're not going
to . Now get out or I'll call the police if you don't get out this instant."
Hastings and Miville departed quietly.
An hour or so later Miville telephoned the terminal and asked Sam Gass if
Hastings could talk to him. Sam refused, saying that Hastings would have to talk
to Sam's attorney. Mrs. Gass broke into the conversation on an office extension line
and said, "We don't want to talk to no union man. We don't want no union man
around here." Sam Gass then said, "I'll take care of my own business, ... you'll
hear from my lawyer." When Miville asked Gass if he were "all through," Gass
said, "Yes, ... Lipman don't want you on the farm. I have no more work for you." 6
During the afternoon of August 20 Sam Gass informed all the drivers that their
employment would be terminated as of Friday. He also told them to tell their
wives to come for the drivers' checks later than usual the next day because they
would be given two checks. When asked about these two checks, Sam stated that
he was quitting the business and that a new trucking company would take over on
Monday.
On the morning of August 21, McLaughlin, having thus been informed that Sam
was losing his business, inquired of Superintendent Thomas Morgan at the feedmill
as to what would happen to Sam's business if the employees should "sign off" the
Union. Morgan, saying that he would call the Lipmans and find out the answer
to that question, departed ostensibly to consult the Lipmans. A few minutes later
Morgan returned and reported to employees McLaughlin and Parlin that, if the
drivers got together with Sam Gass before 5 p.m. that day, they [the Lipmans]
would give Sam back his business.
Acting upon this advice, McLaughlin returned to the terminal and reported his
conversation with Morgan to some of his fellow employees and then to bookkeeper
Roy. Roy telephoned to Sam Gass who agreed to meet with the drivers at the ter-
minal and did so within the hour accompanied by Mrs. Gass. Morgan also came
over from the feedmill. After some discussion in the office the Gasses stated that,
in order to "save Sam's business," it would be necessary for the drivers to send the
Union a registered letter and a telegram signed by all the drivers withdrawing from
the Union. Mrs. Gass instructed them to bring her back receipts for both. Driver
Parlin arrived at the office about this time and Sam Gass suggested that Parlin
write the letter to the Union because his handwriting was good. Parlin reluctantly
agreed to do so and did write the letter of withdrawal with assistance on phraseology
from Sam Gass who consulted a slip of paper he had in his pocket from time to time
as he did so. Mrs. Gass stated at least once that the Gasses could have "nothing" to.
do with it and that whatever the men did they were doing "voluntarily." After the
letter had been written and each driver present had signed the same, the drivers
set out to secure the missing signatures of drivers Pooler and Carleton. After
locating Pooler and Carleton, all the drivers set off in two automobiles, one of which
was Sam Gass', for the postoffice where a telegram signed by each of the drivers
was sent to the Union.
With the accomplishment of this mission a little after 11 a.m., the drivers returned'
to their regular work. The 3 hours so spent was not deducted from their pay.
Subsequently McLaughlin and Parlin asked Sam Gass about the possibilities of
returning Miville to work now that the drivers had "signed off" the Union. Sam
stated that he would do everything in his power but did not know if the Lipmans
would want Miville back on the farms.?
Later that day Morgan informed McLaughlin that, if the drivers had not withdrawn
from the Union, they would have been working for him on Monday morning under
knowledge came "after" the interview with Miville Thus the Harold Lipman testimony
is contradicted by the testimony not only of Miville but also of Thomas Morgan and
Sam Gass
Harold Lipman was a most unconvincing witness As a witness he was sly, evasive,
argumentative, inconsistent, and contradicted the testimony of numerous other witnesses,
including those called by Respondents. In addition his demeanor upon the stand was
such as to cause me to have grave doubts as to his veracity. Consequently I have been
forced to credit the testimony of others over the testimony of Harold Lipman.
8 Again the alleged vulgar remarks were not mentioned.
7 Again there was no mention of vulgar remarks.
SAMUEL B. GASS, ET AL. 741
rules whereby there would have been no coffee breaks, a driver would have been
subject to discharge if caught taking unauthorized coffee breaks, and would have
had to punch in and out for the lunch period. None of these things were required
by the rules under which Gass operated.
On Friday afternoon, Miville reported at the terminal in response to a telephone
call from Mrs. Gass. At this time Sam Gass told Miville that the drivers had "signed
off the Union" so that he could retain his trucking business and that he, Gass, would
,do everything possible to get Miville back to work.
As a result of information received over the weekend that Gass had been telling
his employees that he had offered Miville his job back but that Miville had refused,
Miville went down to the terminal to straighten this incorrect information out on
Monday, August 24. Gass offered Miville his job back "under the old conditions "
Miville stated that he would come back under the condition that he could talk
freely with the boys about a union. To this Gass replied "I have no work for you."
Gass hired a new driver at that same time.8
On September 10 Miville received the following letter over the signature of Gass'
attorney:
Mr. Gass has authorized me to offer you immediate and unconditional
reinstatement to your job at the trucking company. The offer is made not-
withstanding the fact that you are previously offered reemployment on Au-
gust 21, 1964, and later on August 24, 1964, which offers you then refused.
If you wish to return to employment, will you please get in touch with Mr.
Gass immediately at the garage on receipt of this letter.
Promptly upon receipt of this letter, Miville and his wife drove to the terminal
'office where, in the absence of Sam Gass, Miville told Mrs. Gass that he was
reporting for work in accordance with the letter he had received from the Gass'
attorney. To the inquiry as to whether his job was available Mrs. Gass answered,
as she testified, that "his job has always been available, and as far as I was concerned
it was only his big mouth that had got him fired in the first place." She then added
that she did not have a truck available at that time and probably would not have
until Monday morning. At this point mechanic Darveau broke in to report that
he would have a truck available sometime that afternoon. When Mrs. Gass ordered
him to report on Monday, Miville stated he was just reporting back for work. He
then left the office, went outside into the garage about 10 feet away where he and
his wife chatted with Darveau for a couple of minutes about the fact that Darveau
was entering the hospital that afternoon for an operation. 9
About 2 minutes after Miville had left the office, Mrs. Gass appeared at the
office doorway to the garage and angrily told Miville "it was my garage and I
wouldn't have him or anybody coming in using . . . swearing or insulting me," as
Mrs. Gass phrased it in her testimony. Miville's response was, in his words, "what
the hell are you talking about?" Whereupon Mrs. Gass claimed that she had been
insulted again and threatened to fire Miville. Miville inquired how Mrs. Gass was
going to fire him when he did not even have a timecard in the rack and was not
to report for work until Monday. At this point Roy stepped in and ordered Miville
to report for work on Monday-which ended the episode for the time.is
8 Sam Gass did not deny Miville's testimony as to the condition attached to his return
to work. Instead Respondent produced a witness who had just purchased a jeep from
Sam Gass, who heard a part of the conversation between Gass and Miville only, but did
hear Gass say, "well, If you want to come back and forget everything, come back like
It was or used to be, something to that effect, he [Gass] said everything is okay."
This testimony would appear to confirm Miville that there were conditions to Miville's
reinstatement.
0 Every witness to this Incident testified that the conversation between Mrs . Gass and
Miville had been completely amicable to this point.
10In Mrs. Gass ' account of the episode she claimed that, while Miville was conversing
with his wife and Darveau in the garage, he suddenly said to her "Sam Gass Is a nice
man, one of the nicest men I ever worked for," to which she replied , "Yes, Sam is a nice
man" whereupon Miville retorted with a remark no gentleman should make to a lady.
Miville denied having made the statement as claimed by Mrs Gass, on the ground, as
he put It, "I know better than that . . . . I wouldn't say a thing like that to her. I
knew she would fire me in a minute If I said that. Any boss would fire ." The other
two witnesses to this episode , Darveau and Roy, were neither sure as to what had actually
been said and, In addition , both were rather successfully impeached.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At 4:15 p.m. the following day, September 11, Sam Gass sent the following
telegram to Miville.
Because of your insubordination and profanity to Mrs. Gass on September
10. You are hereby discharged and requested not to report for work on Sep-
tember 14.
Subsequently Miville has never been employed or offered reinstatement by
Respondent Gass.
B. Conclusions
1. Discharge of Gerald Miville
For 8 years Miville had been a satisfactory employee to Respondents Gass and
Lipman despite his well-known tendencies toward vulgarity and joking.
Then Miville became the leader in the move to organize the Gass drivers into
the Union for their mutual protection. Slightly more than 2 days after Miville's
successful campaign to secure signed union authorization cards from 100 percent
of the Gass drivers, he was precipitously discharged from his employment with
Gass by Harold Lipman, who claimed not even to be connected with Respondent
Gass despite the fact that he had been a director thereof from its incorporation
until after the charges here had been filed. Even before the discharge of Miville,
Lipman official, Thomas Morgan, was advising Gass employees that they were
wrong in jumping into the Union without first consulting Gass. In addition Respond-
ent Lipman had indicated its displeasures at these union developments among the
Gass employees by placing the Lipman feedmill with its restrooms and vending
machine facilities "off limits" to all Gass employees.
Despite Harold Lipman's double negative "denial," quoted supra, that he knew
of any union activity among the Gass employees until some unspecified time almost
immediately after he discharged Miville at 6 45 a m., August 20, it is crystal clear
that Respondents Gass and Lipman had definite knowledge of the union activity then
going on among the Gass employees, at least as early as the morning of August 19.
Respondents' claim to the contrary is therefore unbelievable and here discredited.
If Harold Lipman intended his aforementioned double negative denial of any
knowledge of union activities among the Gass employees to constitute also a denial
of the fact that he affirmatively stated in the discharge interview that Miville had
executed a union authorization card as well as inquired as to how many other Gass
employees had done likewise, I cannot credit any such intended denial and must find
from all the circumstances that at that dismissal interview Lipman asserted that
Miville had signed a union authorization card as well as threatened to take over the
Gass trucking concern because 100 percent of the Gass employees had executed
similar authorization cards.
This threat, which Gass confirmed by announcing the demise of his trucking
business to his employees later that same day, as Lipman obviously intended it to be
conveyed, constituted a threat of loss of their employment as a penalty to the
employees for their known union activity and amounted to a violation of Section
8(a)(1) of the Act by both Respondents. I so find.
Respondent Lipman argues that it cannot be held responsible for the discharge
of Miville because he was not an employee of Respondent Lipman. Technically
Miville was an employee of Respondent Gass. But Miville lost his employment
with Respondent Gass at the insistence and order of Respondent Lipman. In fact,
Harold Lipman demanded and received "the pleasure of" informing Miville that he
was discharged.
Respondent Lipman assumed and was granted authority over the employment
status of Miville and the rest of the Gass employees by reason of its threat to ter-
minate its oral agreement with Gass. By thus assuming and exercising that authority
over the employment status of the Gass employees, Respondent Lipman made itself
the joint employer of those employees with Respondent Gass."
In addition the facts here clearly prove that Respondent Gass constituted but
another segment of the whole integrated Lipman enterprise and was subject to the
same management and labor policies as were the other Lipman corporations com-
prising the rest of that integrated complex.
Respondents contended at the hearing that they had no union animus at least
since Respondent Lipman had executed a union contiact covering some of its em-
ployees after a 5-day strike in October 1963 under what Harold Lipman volun-
teered at the instant hearing were conditions of "blackmail." No further proof of
Harold Lipman's antiunion feelings beyond his undenied threat to terminate the
u See West Texas Utilities Company, 108 NLRB 407, enfd. 218 F. 2d 824 (C.A. 5),
cert. denied 349 U.S. 953.
SAMUEL B. GASS, ET AL. 743
Gass contract immediately upon learning that 100 percent of the Gass drivers had
signed union authorization cards is required. The similar animus of Respondent
Gass was made all too apparent by the statements and actions of Mrs. Gass to
require further comment.
The timing of the Miville discharge together with the statements made at the'
time of his dismissal leave no doubt but that Miville was discharged on August 20
by Respondent Gass and Lipman because both Respondents knew or believed that
Miville was the leader of the union movement among the Gass employees, and in
order to discourage such union membership and activities among the employees of
Respondent Gass in violation of Section 8(a) (3) and (1) of the Act.
Contrary to this finding Harold Lipman would have us believe that he personally
discharged Miville solely because of certain alleged vulgar remarks made by Miville
to Lipman supposedly on the morning of August 18 at a time when Lipman claimed
that he had no knowledge of Miville's union activity. As noted supra, the record
disproves the latter part of this contention. As for the first part thereof, the record
is clear that to Lipman's own knowledge Miville had been making similar vulgar,
but joking, remarks over a period of years without objection from Harold Lipman.
Such remarks had been considered as jokes, bad though they may have been, for a
long period of time. Even accepting Lipman's testimony that Miville made the
disputed remark on August 19, a finding which I cannot make due to Lipman's
proven lack of veracity, Miville's denial and Respondent's failure to even seek
corroboration from Lipman official, Morgan, who supposedly was present, it is
noteworthy that Harold Lipman paid no attention to the remark at the time it
supposedly was made, became infuriated by it, if at all, only after Miville's union
activity had become known, at which time Lipman demanded "the pleasure" of
kicking Miville off his property. Thus, even from Harold Lipman's testimony it
becomes apparent that his aggravation was caused by Miville's union activity rather
than the alleged vulgar remarks.
The sockdolager, of course, is the fact that, despite his alleged righteous anger
at the vulgarity, during the dismissal interview Harold Lipman made no mention
of the alleged vulgar remarks although he would have us believe that they were
the cause of Miville's discharge Instead the record is clear that Harold Lipman
talked about Miville's union activity and, upon learning that 100 percent of the
Gass employees had executed union authorization cards, immediately threatened to
take over the trucking concern. Under these facts it is unmistakably clear, and I
have no hesitancy in finding, that the alleged vulgarity, even if it occurred, was no
more than a pretext used by Harold Lipman to attempt to disguise the real reason
for Miville's discharge which was his union activity among the Gass employees.
2. The offers of reinstatement
The speed with which Respondents offered Miville reinstatement on August 24,
after the union matter had been taken care of to the satisfaction of Respondents,
serves to confirm the discriminatory nature of Miville's discharge, particularly as
Gass conditioned that reinstatement on Miville's refraining from discussing the
Union.
On September 10 Miville received a letter from Respondent's attorney offering
him "immediate and unconditional reinstatement" to his job if he would get in
touch with Respondent "immediately " As requested, Miville reported immediately.
The first half of his conversation with Mrs. Gass, all witnesses agree, was perfectly
amicable throughout with arrangements being completed between the two for
Miville to return to work on Monday, September 14. This was so even though
Mrs. Gass admittedly threw in a provocative remark about Miville's "big mouth"
and unnecessarily delayed Miville's reinstatement because of her inability to locate
a truck for him despite advice from her mechanic that a truck would be available
that same Thursday afternoon. Everybody agreed that even these irritants did
not bother Miville.
Then followed approximately a 2-minute break after Miville left Mrs. Gass'
office during which he conversed so quietly in the garage with his wife and mechanic
Darveau that Roy in the office could not hear the conversation.
The second portion of the conversation began, everybody agrees, when for some
unaccountable reason, Mrs. Gass left her desk in the office and went to the doorway
leading into the garage after which Mrs. Gass claims Miville made the offending
statement to her, a remark which came right out of a clear sky as Mrs. Gass tells it.
Actually Mrs. Gass was the only witness to testify that Miville made the offending
statement Not even bookkeeper Henry Roy, who wanted to retain his job with
Respondent Gass, corroborated the testimony of Mrs. Gass, although he did testify
that he "was under the impression," and, "it was my understanding at that particular
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time" that Miville did make some statement similar to that testified to by Mrs. Gass.
But even this corroboration, if such it was, was greatly weakened by the fact acknowl-
edged by all that the episode ended when Roy ordered Miville to report for work
on Monday, an order which would not have been given if Miville had actually used
the phrase in question. The other two participants in the episode flatly denied the
use of the phrase by Miville.
On the other hand Mrs. Gass admitted to being "excitable." She had amply
demonstrated that trait, plus her animus against the Union, by furiously threatening
Business Agent Hastings with the police if he did not get off her property immediately,
the threat being made just as soon as Hastings had introduced himself to her in his
union capacity. She demonstrated the same thing again when she impetuously
broke into the telephone conversation between Miville and Sam Gass to say that
they would not talk to a union man.
So at the end of the first part of the conversation of September 10, Mrs. Gass
had failed to provoke Miville into some untoward action which would justify a
further refusal of reinstatement even with her reference to his "big mouth" and the
uncalled for delay in reinstating him until Monday. She could forsee Miville's
imminent return to work, a revival of interest in the union activity she had worked
so hard to stop and the further possibility of Lipman's terminating her valuable
cartage contract for this reason. Excited and frustrated she moved to the doorway
and made her remark that nobody was going to insult and swear at her, which
explains Miville's genuinely astonished, "What the hell are you talking about?"
Accordingly I am convinced and, thereafter, find, contrary to Mrs. Gass' testimony,
that Miville never uttered the words which Mrs. Gass has now convinced herself
he used on that occasion.
3. Interference, restraint, and coercion
Respondents Gass and Lipman learned of the union activity among the Gass
drivers at least on August 19. Respondent's campaign to interfere with, restrain,
and coerce the Gass drivers into abandoning this organizational effort began imme-
diately when feedmill Superintendent Thomas Morgan attempted to persuade the
drivers to discuss the matter with Sam Gass before joining the Union.
This attempted persuasion not having proved successful on August 19, Harold
Lipman discharged Miville before Miville could even get to work on the morning
of August 20. Upon interrogating Miville, Lipman learned that 100 percent of the
drivers had joined the Union. Hence, discharging one man was obviously going to
be insufficient for the purpose so Lipman promptly reverted to a maneuver which had
worked successfully when used by these same parties before: He threatened to take
over Respondent Gass' trucking outfit with the resultant loss of employment by all
the rest of the Gass drivers.
On Thursday afternoon Sam Gass made it a point to notify all his drivers that
Friday would be their last day of employment as he was going out of business. Such
a threat to cease business because of a union is so well recognized as a violation of
8(a) (1) as to require no citation of authority.12
Also on Thursday Superintendent Morgan took occasion to notify the Gass em-
ployees that, if they succeeded in getting together with Sam Gass before 5 p.m. and
settling their difficulties, Sam would be permitted to retain his buisness. This meant
also the men's employment.
Through these threats to the Gass drivers of losing their employment unless they
could "save Sam's business" by withdrawing from the Union, the drivers met with
Sam and Mrs. Gass on the morning of August 21 and were then instructed by the
Gasses that "in order to save Sam's business," the drivers must withdraw from the
Union through a registered letter signed by each of the drivers, which Sam Gass
helped them to compose, and through a similar telegram of withdrawal signed by
each and sent to the Union. Mrs. Gass demanded that the receipts for both these
messages of withdrawal be returned to her, in contradistinction to her protestations
made during the meeting at the terminal office that what the men were doing they
were doing on their own.
12 This is so even if Sam Gass had testified truthfully that he "voluntarily " decided
to retire from business because his liabilities to Respondent Lipman were so great for
any failure to make feed deliveries that he could not undertake those responsibilities if
he was forced to operate with a union crew and under a union contract. Actually Sam
Gass' "decision" was only a part and parcel of Respondent Lipman's campaign of
coercion which commenced with its threat to cancel the Gass carriage contract and to
take over the trucking concern.
SAMUEL B. GASS, ET AL. 745
By this well contrived and coordinated campaign Respondents Gass and Lipman
succeeded in coercing the Gass drivers once again into abandoning their union
membership in violation of Section 8(a)(1) of the Act.
4. The refusal to bargain
The evidence shows, and I find, that all full-time truckdrivers, driver-mechanics,
and mechanics employed by Respondent Gass at Respondent Gass' plant or terminal,
exclusive of office clerical employees, salesmen, professional employees, guards, and
supervisors as defined in the Act, constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.13
As of August 17, 1964, Respondent Gass employed seven full-time drivers, one
full-time driver-mechanic, and one full-time mechanic in said appropriate unit.
By early morning of August 18, 1964, each one of said employees in the afore-
mentioned appropriate unit had executed voluntarily a card applying for membership
in the Union and authorizing said Union to bargain on their behalf with Respondent.
Thus the Union was the duly authorized bargaining representative of the employees
in the appropriate unit.
By letter dated August 19, 1964, over the signature of David Hastings as president
and business agent, the Union advised Respondent that a majority of its truckdrivers
and mechanics were represented by the Union for the purposes of collective bargain-
ing and requested recognition of said Union with an offer to prove the Union's
majority status upon request. This letter was received by Respondent Gass on the
morning of August 20.
Respondent Gass has never answered that request in writing.
Instead of answering the Union's request by letter, Respondents Gass and Lipman
promptly undertook their campaign to coerce the Gass drivers into abandoning the
Union as found above. The indulging in such unfair labor practices in order to
dissipate the Union's majority constitutes a refusal to bargain in violation of Section
8(a)(5) and (1) of the Act. I so find.14
C. The agricultural exemption defense
Unlike the prior case involving these same Respondent Lipman corporations alone,
147 NLRB 1342, and now on appeal, Respondents Gass and Lipman have pleaded
in the instant case: (1) Respondent Gass is engaged exclusively in the State of
Maine in hauling feed from the feedmill under contract with Respondent Lipman
Poultry Farms, Inc., which in turn is engaged exclusively in farming in the State
of Maine and thus not engaged in interstate commerce, and (2) That all em-
ployees of Respondent Gass are agricultural workers and thus exempt from the Act
under the exemption for agricultural employees contained in Section 2(3) of the Act.
On the other hand Respondent Lipman has also pleaded in its answer here that
Respondent Lipman Bros., Inc., sold and transported poultry at a value in excess of
$50,000 through and into States of the United States other than the State of Maine.
By pleading thus Respondents are attempting to carry water on both shoulders:
(1) In maintaining that Lipman Poultry Farms, Inc., is not engaged in interstate
commerce, Respondents are in effect contending that each of these numerous Lipman
corporations are separate and distinct employers and that each must be judged on
its own particular little segment of the total activities involving the whole Lipman
commercial operation, while (2) In the instance of Respondent Gass Respondents
by this pleading are contending the opposite; i e., that Gass, instead of being a mere
commercial hauler of feed, is an integral part of the farming branch of the Lipman
enterprises, Lipman Poultry Farms, Inc., but not of the remainder of the integrated
enterprise. As such integral part of the Lipman Poultry Farms, Inc., the Gass
employees become agriculture employees like those of the Poultry Farms.
The facts here show that through these various individually named Lipman cor-
porations Respondent Lipman operates a commercial enterprise from the egg to
the dressed poultry on the market shelf. For reasons best known to themselves, the
Lipmans have chosen to operate each of the many integral segments of this com-
mercial enterprise under a differently named corporate entity, each of which has the
same officers and directors: Bernard, Frank, and Harold Lipman.
18 See Edward P. Tepper, d/b/a Shoenberg Farms, 132 NLRB 1331.
14 See Joy Silk Mills , Inc., 85 NLRB 1263, enfd. In pertinent part 185 F. 2d 732
(C.A.D C.), cert. denied 341 U.S. 914.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the prior hearing involving all these same Lipman corporations, but not Respond-
ent Gass, I and the Board found "Upon the foregoing facts, the Respondents concede,
and I find, that at all times material herein they have been a single integrated enter-
prise and joint employer engaged in commerce within the meaning of the Act."
As Respondents here introduced no evidence to the contrary of the above finding,
I adopt the above-quoted finding for the instant case. The facts presented here would
permit no other finding.
The facts here show that Respondent Gass was either an integral part of this
integrated commercial enterprise which was engaged in commerce or else it was an
independent trucking concern hauling for a commercial enterprise which in turn
was engaged in commerce. In either event the employees of Respondent Gass do
not qualify as "Agricultural employees" or "working on the farm" so as to be
exempt from the provisions of the Act. See Farmers Reservoir & Irrigation Company
v. McComb, Wage and Hour Administration, 337 U.S. 755.
This defense is without merit.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondents described in section I, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that Respondents have engaged in certain unfair labor prac-
tices, it will be recommended that each of them cease and desist therefrom and that
they take certain affirmative action designed to effectuate the policies of the Act.
It having been found that Respondents discriminated in regard to the hire and
tenure of employment of Gerald Miville by discharging him on August 20, 1964,
and thereafter refusing to reinstate him, I will recommend that Respondents offer
him immediately and full reinstatement to his former, or substantially equivalent
position without prejudice to his seniority or other rights and privileges, and make
him whole for any loss of pay he may have suffered by reason of said discrimination
against him by payment to him of a sum of money equal to that which he would
have earned as wages from the date of the discrimination to the date of his reinstate-
ment, less his net earnings during such period in accordance with the formula set
forth in F. W. Woolworth Company 90 NLRB 289, with interest thereon at 6 percent
per annum.
It having been found that on and after August 20, 1964, and at all times thereafter,
Respondents have refused to bargain collectively in good faith with Truck Drivers,
Warehousemen and Helpers Union, Local No. 340, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as
the duly authorized exclusive bargaining representative of Respondent Gass' em-
ployees in the aforefound appropriate unit, it will be recommended that Respondents,
upon request, bargain collectively with said Union in good faith as the exclusive
bargaining representative of Respondents' employees in the appropriate unit.
Because of the variety, extent, and type of the unfair labor practices engaged in
by Respondents, I sense an opposition to the policies of the Act in general, and hence
deem it necessary to order Respondents to cease and desist from in any manner
infringing upon rights guaranteed their employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Truck Driver, Warehousemen and Helpers Union, Local No. 340, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America is a labor organization within the meaning of Section 2(5) of the Act.
2. By discharging Gerald Miville on August 20, 1964, and thereafter refusing
to reinstate him, thereby discriminating in regard to his hire and tenure of employ-
ment, and discouraging union membership and activities among their employees,
Respondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act
3. All full-time truckdrivers, driver-mechanics, and mechanics employed by
Respondent Gass at its plant or terminal, exclusive of office clerical employees, sales-
men, professional employees, guards, and supervisors as defined in the Act constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times since August 18, 1964, Truck Drivers, Warehousemen and Helpers
Union, Local No. 340, affiliated with International Brotherhood of Teamsters,
THE WESTON AND BROOKER COMPANY 747
.'Chauffeurs , Warehousemen and Helpers of America, has been, and now is, the
exclusive representative of all the employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. By failing and refusing on, and at all times since , August 20, 1964, to bargain
•collectively with Truck Drivers, Warehousemen and Helpers Union, Local No. 340,
affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, as such exclusive bargaining representative , Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By interfering with , restraining , and coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act, Respondents have engaged in
and are 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.
[Recommended Order omitted from publication.]
'The Weston and Brooker Company and United Stone and Allied
Products Workers of America, AFL-CIO, CLC. Case No. 11-
CA- 4192. August 97,1965
DECISION AND ORDER
On March 24, 1965, Trial Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent 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 Decision. He also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, Respondent, the Charging Party, and the General Counsel
filed exceptions to the Decision and supporting briefs.
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 briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications.'
1 The Trial Examiner 's Decision , section III , C, 1, inaccurately reports a conversation
concerning longevity pay that took place during bargaining negotiations . The date of
the bargaining session was July 23 and not March 23. Moreover , the statements at-
tributed by the Trial Examiner to Respondent 's Counsel Smith were in fact made by
President Weston.
Also, the Trial Examiner 's Decision , section III , C, 2, refers to Section 10(d) of the
Act. The correct section is Section 8(d).
154 NLRB No. 58.