Star Beef Co.

National Labor Relations Board - Board Decisions

Dec 29, 1950

92 N.L.R.B. 1018 (N.L.R.B. 1950)

In the Matter of SAMUEL J. KOBRITZ D/B/A STAR BEEF COMPANY and
AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN , LOCAL 385,
AFL
Case No.1-CA-510.Decided December 29,1950
DECISION AND ORDER
On May 4, 1950, Trial Examiner C. W. Whittemore issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
.practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications noted
below.
1. We agree with the Trial Examiner that the Respondent's opera-
tions substantially affect commerce within the meaning of the Act,,
and that we should exercise jurisdiction in this case. The juris-
dictional facts show that the Respondent purchased meats and allied
products valued in excess of $1,000,000 in 1949, which were shipped
to it directly from or originated outside the State of Maine. In ac-
cordance with our decisions in Dorn's House of Miracles, Inc., 91
NLRB 632, and in Federal Dairy Co., Inc., 91 NLRB 638, we find that
it will effectuate the policies of the Act to assert jurisdiction here.
2. The Trial Examiner found that the offer of Respondent's counsel
to reinstate Moon and Grant, made at a conference for the settlement
of the strike, was not unconditional. We agree with that conclusion.
The offer to reinstate Moon and Grant was to take effect only if settle-
ment was reached on all the other points in issue in the strike. Such
92 NLRB No. 170.
1018
i
STAR BEEF COMPANY 1019
an offer to employees 'discriminated against in violation of Section
8 (a) (3), as were Moon and Grant, is not an unconditional offer of
reinstatement; the rights of such employees are independent of, and
may not be made contingent upon, the settlement of other issues.
3. The Trial Examiner permitted the General Counsel to amend the
complaint at the hearing to allege that the Respondent had violated
Section 8 (a) (5) by refusing to bargain collectively with the charging
Union on and after August 1, 1949. Respondent objected to this
amendment of the complaint, under Section 10 (b), but upon being
overruled amended its answer to deny the allegation. The Trial Ex-
aminer offered to entertain a motion by the Respondent for additional
time to prepare a defense. However, the Respondent made no such
motion, and the issue was fully litigated at the hearing.
We find that the amendment is supported by the original charge
filed herein, which contained allegations. of violations of other sub-
sections of Section 8 (a). Cathey Lumber Company, 86 NLRB 157.
It is also supported by an intermediate charge, which specifically
alleged a violation of Section 8 (a) (5). We further find that neither
the original nor the intermediate charge, was withdrawn -or super-
seded by the subsequent filing of amended charges.
4. We find no merit in Respondent's exception to the Trial. Ex-
aminer's finding that the appropriate unit consists of all production
and maintenance employees including truck drivers, and shipping
employees, but excluding clerical employees, executives, guards, pro-
fessional employees, and supervisors as defined in the Act. We are
satisfied, particularly from Kobritz's testimony describing the opera-
tions of his plant, that this unit is appropriate. Although we do not
rely on the prior stipulation of Respondent's counsel as to the appro-
priateness of this unit, inasmuch as the Union withdrew the repre-
sentation petition which occasioned the stipulation, we note that
the Respondent did not contend for any other unit nor dispute the
appropriateness of this unit. We further find, as did the Trial Ex-
aminer, that the Respondent violated Section 8 (a) (5) of the Act.
5. We agree with the Trial Examiner's finding that the strike
which began August 15, 1949, was caused and prolonged both by
Respondent's discharge of Moon and Grant, and by its refusal to
bargain with' the Union. The Respondent's later offer to the strikers
did not include any remedy for the unfair labor practices which caused
and prolonged the strike. • Thus, the offer did not convert the unfair
labor practice strike into .a mere economic strike. Nor can an em-
ployer avoid "the consequences of an unfair labor practice strike by
offering the strikers less than they were entitled to-and particularly,
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this case, the immediate recognition of their selected bargaining
representative.
The Remedy
Since the issuance of the Trial Examiner's Intermediate Report, the
Board has adopted a method of computing back pay different from
that prescribed by the Trial Examiner.' Consistent with that new
policy we shall order that the loss of pay be computed on the basis of
each separate calendar quarter or portion thereof during the period
from the Respondent's discriminatory action to the date of a proper
offer of reinstatement. The quarterly periods, hereinafter called
"quarters," shall begin with the first day of January, April, July, and.
October. Loss_of pay shall be determined by deducting, from a sum
equal to that which each employee would normally have earned for
each quarter or portion thereof, his net earnings, if any, in other em-
ployment during that period. Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other quarter.
We shall also order the Respondent to make available to the Board,
upon request, payroll and other records to facilitate the checking of
the amount of back pay due.
ORDER
Upon the entire record in this case, and pursuant to. Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Samuel J_
Kobritz, d/,b/a Star Beef Company, Bangor, Maine, and its agents,.
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to-bargain collectively with Amalgamated Meat Cut-
ters and Butcher Workmen, Local 385, AFL, as the exclusive repre-
sentative of all its production and maintenance employees, including
truck drivers and shipping employees, but excluding clerical em-
ployees, executives, guards, professional employees, and supervisors
as defined in the Act. .
(b) Discouraging membership in Amalgamated Meat Cutters and.
Butcher Workmen, Local 385, AFL, or any other labor organization
of its employees, by discriminatorily discharging or refusing to re-
instate any of its employees, or by otherwise discriminating in regard
to their hire or tenure of employment or any term or condition of
employment.
. (c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right taself-organization, to form
' F. W. Woolworth Company , 90 NLRB 289.
STAR BEEF COMPANY 1021
labor organizations , to join or assist Amalgamated Meat Cutters and
'Butcher Workmen , Local 385, AFL, 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 collective
bargaining or other mutual aid or protection , or to refrain from any
,or all such activities , except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment , as authorized in Section 8 (a) (3) of
-the Act.
2. Take the following affirmative action , which the Board finds will
.effectuate the policies of the Act :
(a) Offer to Everett Moon, George Grant, Donald Cobb, Millard
Chase, Walter Gaudette , Eugene Crawford , Roger Warren, Fred-
-erick Arthers , Herbert Rowe, and Bernard Lucas immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges,
and make them and John McLeod whole in the manner set forth in
-the section entitled "The Remedy," for any loss of pay they may have
suffered by reason of the Respondent 's discrimination against them.
(b) Upon request , make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
'records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due under the
terms of this Order.
(c) Upon request, bargain collectively with Amalgamated Meat
Cutters and Butcher Workmen, Local 385, AFL, as the exclusive rep-
resentative of all its employees in the above-described appropriate
unit with respect to grievances , labor disputes , wages , rates of pay,
.hours of employment , and other conditions of employment, and, if
:an understanding is reached , embody such understanding in a signed
agreement.
(d) Post at its plant in Bangor , Maine, copies of the notice at,
-tached hereto, marked Appendix A.2 Copies of such notice, to be
furnished by the Regional Director for the First Region, shall, after
being duly signed by the Respondent , be posted by the Respondent
immediately upon receipt thereof and maintained by it for sixty (00)
consecutive days thereafter in conspicuous places, including all places
-where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that such notices are not
altered , defaced , or covered 'by any other material.
2 In the event this Order is enforced by a decree of a United States Court of Appeals,
-there shall be inserted before the words , "A Decision and Order," the words , "A Decree of
the United States Court of Appeals Enforcing."
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
CHAIRMAN HExzoG took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN, LOCAL 385, AFL, 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 collective bargaining or
other mutual aid or protection, or to refrain from any or, all such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
WE WILL OFFER to the employees named below (except John
McLeod) immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their
seniority and other rights and privileges, and' make them (in-
cluding John McLeod) whole for any loss of pay suffered as a
result of the discrimination :
Everett Moon Millard Chase
Donald Cobb Eugene Crawford
Walter Gaudette Frederick Arthers
Roger Warren Bernard Lucas
Herbert Rowe John McLeod
George Grant
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein, with respect to grievances,
labor disputes, wages, rates of pay, hours of employment, and
other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement.
STAR BEEF COMPANY 1023
The bargaining unit is:
All production and maintenance employees, including
truck drivers and shipping employees, but excluding clerical
employees, executives, guards, professional employees, and
supervisors' as defined in the Act. -
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
SAMUEL J . KOBRITZ D/B/A
STAR BEEF COMPANY,
Employer.
Dated ------------------ By -----------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Joseph Lepie, of Boston, Mass ., for the General Counsel.
Mr. Benjamin E. Gordon, ( Gordon & Epstein ), of Boston , Mass., for the Re-
spondent.
Messrs. John M. Sullivan and Lester Travers, of Portland, Me., for the Union.
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Amalgamated Meat Cutters
and Butcher Workmen, Local 385, AFL , herein called the Union , the General
Counsel of the National Labor Relations Board; herein respectively called the
General Counsel and the Board , by the Regional Director of the First Region
(Boston, Massachusetts ), issued a complaint dated January 16, 1950, against
Samuel J . Kobritz, d/b/a Star Beef Company, herein called the Respondent , alleg-
ing that the Respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (a) (1) and (3) and
Section 2 ( 6) and ( 7) of the National Labor Relations Act, as amended (Pub.
Law 101, 80th Cong., 1ss Sessiotn ), herein called the Act. Copies of the charges
•were duly served upon the Respondent.
Copies of the complaint and notice of hearing thereon were duly served upon
the Respondent and the Union.
With respect to unfair labor practices the complaint , as issued , alleges in sub-
stance .that the Respondent : ( 1) On August 3, 1949, discharged employees Everett
Moon and George Grant because of their activities on behalf of the Union; (2)
pn September 16, 1949, refused reinstatement to eight named employees' who,
on August 15, had gone on strike because of the discriminatory discharges of
Moon and Grant , although said. eight employees had unconditionally requested
' Donald Cobb , Millard Chase , Walter Gaudette , Eugene Crawford , Roger Warren,
Frederick Arthers, Herbert Rowe , and Bernard Lucas.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement; (3) interrogated its employees concerning their union member-
ship, threatened them with certain reprisals if the Union successfully organized,
and promised them benefits if they ceased their concerted activities; and (4) by
these acts interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed by the Act.
Thereafter the Respondent filed its answer, dated January 27, 1950, denying
the commission of the alleged unfair labor practices and denying that it is
subject to the jurisdiction of the Board.
Pursuant to notice, a hearing was held at Bangor, Maine, on February 7, 8, 9,
.and 10, 1950, before. the undersigned Trial Examiner duly designated by the
Chief Trial Examiner. General Counsel and, the Respondent were represented
by counsel, the Union by international representatives. All parties participated
in the hearing, and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the issues.
During the presentation of his case-in-chief, General counsel moved to amend
the complaint to allege further that the Respondent had engaged in unfair
labor practices within the meaning of Section 8 (a) (1) and (5) of the Act
by refusing to bargain collectively with the Union on and after August 1, 1949,
although on and after July 26, 1949, the Union represented a majority of its
employees in a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9 (b) of the Act. The motion was granted. Counsel
for the Respondent was informed that a motion for reasonable adjournment
to meet the amended complaint would be entertained if made at the conclusion
of General Counsel's case-in-chief. No motion for such adjournment was made.
Thereafter a motion to amend the answer was granted ; said amendment
denying the 8 (5) allegations.
A motion to conform the pleadings to the proof in matters of minor variances;
not going to the substance of the complaint, was granted at the close of the
hearing. Ruling was reserved upon motions to dismiss the complaint, in part
and in its entirety. Said motions are disposed of by the findings of fact, con-
clusions of law, and recommendations appearing below. The parties waived
opportunity to argue orally before the Trial Examiner, and were afforded
opportunity to submit briefs. and/or proposed findings of fact and conclusions
Hof law. On March 20 a brief was received from counsel for the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Samuel J . Kobritz, doing business as Star Beef Company , is engaged in the
wholesale purchase and distribution of meat, provisions , and produce, with
principal place of business in Bangor, Maine. During 1949 the Respondent
purchased meats and allied products valued at $1,178,667.28 which were shipped
to it by rail and truck from points outside the State of Maine. During the
same period its purchases within the State of Maine totaled in value $318 ,412.43.
Almost all of its meats and produce are distributed to retail markets in Maine,
within a radius of 125 miles from Bangor.
The Respondent urges that the Board should not assert jurisdiction . General
Counsel points to Muscarella Company, 87 NLRB 120, where the Board asserted
jurisdiction over a wholesale banana distributor , whose purchases were but a
STAR BEEF COMPANY 1025
fraction of those made by Kobritz. The Trial Examiner considers the cited
case, and others referred to therein, to be controlling.
II. THE ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen, Local 385, AFL, is a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Major events and issues 2
The present controversy arose out of organizational efforts begun by employee
Everett Moon at the Respondent's plant in the summer of 1949. In response
to Moon's attempt to locate a union organizer, Michael J. Mahon, an international
representative of the Union, came to Bangor and called upon Moon on July 25.
Mahon left a number of membership applications with the employee who, the
next day at the plant, solicited signatures and gave some of the cards to employee
George Grant for distribution by him.
On July 26, Moon obtained signatures, including his own, upon 5 applications,
Grant upon 3. At this time there were 12 employees in the unit claimed by
General Counsel to be appropriate for purposes of collective bargaining.
On Monday, August 1, Mahon called upon Samuel Kobritz, presented his card,
introduced himself as a representative of the Union, informed him that "all of
the boys had signed up with him,"' and asked for a contract. Kobritz declined.
From this event stems the issue of refusal to bargain.
Immediately. after Mahon's visit, according to his own testimony, Kobritz
proceeded to inquire among employees who had signed applications as to what
they knew about the Union. As described more fully below, Kobritz also asked
who had signed the cards.
On August 3 Kobritz was told by employee Cobb that Moon and Grant were
the leaders in the union activities. Later the same day Moon and Grant were
discharged. Whether or not their dismissals were violative of the Act is in issue.
When these two employees were discharged Kobritz paid them for the remainder
of the current and the following week. On August 13 a number of employees
met with Mahon and decided to strike the next Monday unless Korbritz reinstated
Moon and Grant. The next day Mahon repeatedly communicated with Kobritz,
who merely referred him to his lawyer. On Monday all but one of the employees
went on strike, and remained out until mid-September, when they applied uncon-
ditionally for reinstatement. Kobritz refused to reinstate them, claiming that
their jobs had been filled. Since their applications for reinstatement were made
only one of the employees has been rehired. It is General Counsel's position,
opposed by Respondent's counsel , that: (1) The strike was caused by the Re-
spondent's unfair labor practices; and (2) that the strikers were discriminatorily
denied reinstatement on September 16, 1949.
2 The findings of fact in this^ and following sections are based upon the Trial Examiner's
consideration of the record as a whole and upon his observation of the witnesses . It would
unnecessarily burden the Report to describe , in minute detail , his analysis of all testimony,
varying and in some cases contradictory, bearing upon each relevant incident.
8 The quotations are from, and the findings based upon, Kobritz' own testimony, on direct
examination by General Counsel. Upon cross-examination by his own counsel he altered his
testimony somewhat.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The refusal to bargain; the discrinvinatory discharges and refusals to rein-
state; interference, restraint, and coercion
1. Relevant events
The complaint alleges, the answer does not deny, at a previously held repre-
sentation hearing held by the Regional Office of the Board' counsel for the
Respondent and a union representative stipulated, and the Trial Examiner finds,
that a unit of the Respondent's employees appropriate for the purpose of collec-
tive bargaining within the meaning of Section 9 (b) of the Act consists of the
following :
All production and maintenance employees including truck drivers and shipping
department employees at its Bangor plant, excluding clerical employees , execu-
tives, guards, professional employees, and supervisors as defined in the Act.
By agreement counsel at the hearing introduced into evidence a document
listing 12 employees as having been on the July 30, 1949, payroll in the above-
described unit. Documentary evidence also establishes, and the Trial Examiner
finds, that on July 26, 1949, 8 of these 12 employees signed applications desig-
nating the Union as their exclusive collective bargaining agent. It is therefore
found that on July 26, 1949, and at all times thereafter a majority of the Respond-
ent's employees in the appropriate unit had selected the Union as their bargain-
ing representative, and that at all times since July 26 the Union has been and
is now the exclusive representative of all the employees in said unit for-the
purpose of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
On August 1, Mahon, after introducing and identifying himself to Kobritz
according to the latter's own testimony, claimed that he represented all of the
employees and requested a contract. The Trial Examiner finds that Mahon's
interview with Kobritz on this occasion was both an effective claim of majority
representation and an effective request for collective bargaining . The evidence
as to precisely what reply Kobritz made to Mahon is somewhat confused. Mahon
had died before the hearing. Having at first candidly admitted, while being
questioned by General Counsel, that Mahon had identified himself as the repre-
sentative of the Union involved in this case, after a series of objections by his
own counsel Kobritz became vague in his replies, and said that Mahon told him
"he represented some union , or he was a union representative of some kind-
which I am sure I knew not what he even meant, or who he was, or what he
was." As to his reply to Mahon's request for a contract, Kobritz testified :
T told him first, I didn't know what it was all about, or I never heard
of it, I never knew what it was.
In any event, it is clear that on August 1, Kobritz declined to agree to a con-
tract. Determination as to whether or not his declination that day amounted
to an effective refusal to bargain depends somewhat upon appraisal of Kobritz'
later conduct.
On July 30, the Saturday preceding Mahon's visit, Kobritz asked at least three
employees, including Moon and Grant, to work -overtime. Since work on
Saturday afternoon was not compulsory and a union meeting had been planned,
the three employees declined. There is no credible evidence that Kobritz ordered
the men to work that day, and according to uncontroverted testimony of many
4 Case No. 1-RC-1145.
C
STAR BEEF COMPANY 1027:
-witnesses declining offers of overtime work on Saturdays and other days was
not uncommon at the plant. Finally Kobritz found two employees willing to
-work that afternoon. According to his own testimony he said nothing to Moon
and Grant on July 30 about discharging them for any reason.
Following Mahon's visit, on August 1 and 2, Kobritz interrogated his em-
ployees as to whether or not they had signed union cards. While they were at
work Kobritz asked employees Millard Chase and Grant, previously identified,
if they had signed. When both admitted that they had, Kobritz told them he
did not believe they would treat him that way, that they should come to the
office if dissatisfied with their pay, and that they could leave if, they did not get it.
Kobritz called employee Roger Warren to his office and accused him of joining
the Union. Warrent admitted it. The next day Kobritz told him he could
not live "on 40 hours a week" if the Union "got it." Kobritz interrogated em-
ployees Crawford and Cobb as to whether or not they had joined. Both admitted
the fact. Kobritz told Crawford he "didn't know any better". and told Cobb :
(1) That if he believed the Union would get in he would "close the doors" ; (2)
that he could let the employee go at any time; and (3) that he saw no reason
why he should join since he was going to get more money anyway. Kobritz
also asked employees Gaudette, Lucas, and McLeod if they had joined or were
going to join.
At noon, August 3, Kobritz asked employee Cobb who the "ring leaders of the
Union" were. Cobb told him Moon and Grant ° Later that afternoon Kobritz
called these two employees, separately, into his office. He informed both that
.they were being discharged because he did not think they were satisfied with
their work. He also told Moon that he had learned, he had organized the
Union. Each was discharged, being given 10 days' additional pay.
On August 13 a number of the employees met with Mahon and decided to strike
the following Monday unless Moon and Grant were reinstated. The delay in
making this demand was reasonably explained, as testified by one of the former
strikers, by the fact that the two had been paid by Kobritz through the week end-
ing August 13. Mahon communicated an ultimatum to Kobritz on Sunday, by
several telephone calls. The precise wording of his demand is disputed, Kobritz
claiming that Mahon merely insisted upon a contract, or the strike would be
called, while two employees,' present when Mahon was telephoning, testified that
they heard Mahon demand reinstatement. From all the credible evidence, and
the probabilities inherent in the controversy then existing, the Trial Examiner is
convinced, and finds, that Mahon demanded both reinstatement of the two em-
5 Crawford's testimony on this point is unrefuted. Counsel for the Respondent attacked
the employees' credibility generallys however, by introducing a statement on other matters,
obtained shortly after the strike by a Bangor attorney, acting for and under instructions
of local counsel for the Respondent. Evidence was thereupon developed which established
clearly, in the opinion of the Trial Examiner, that the questioning attorney misrepresented
himself when interrogating Crawford by stating that he represented the Board. Credible
evidence and the demeanor of the respective witnesses also convinces the Trial Examiner
that. the same attorney likewise and the same evening misrepresented himself when inter-
viewing William Gaudette, father of one of the Respondent's employees. Although flatly
denying that he had claimed any connection with the Board, the attorney himself admitted
that shortly after calling upon Crawford and Gaudette he was berated by Mahon for
falsely representing himself, and that he called upon no more of the Respondent's
employees . Under these circumstances , the Trial Examiner places scant reliance upon
the document obtained by the attorney. .
° gobritz admitted that Cobb told him who the "ring leaders" were , but placed the
conversation as after August 3.
Chase and Warren.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees and negotiations for a contract . Had the Union intended to strike solely-
for recognition , no apparent reason existed for delay of such action after August.
1, when Mahon's first demand was rejected . Moreover , the Union had already-
started representation proceedings with the Board . Although dual demands were
made, it is plain that the strike action was precipitated by the discharges, and'
decision delayed until the end of the pay period.
On August 15, 9 of the 10 employees remaining in the unit went on strike and.
the plant was picketed.
While on the picket line during the strike , employee Donald Cobb was ap-
proached by Kobritz and offered an increase of $5 a week if he would come back
to work . Within a week after this occasion Kobritz offered him $50 a week and
promised to arrange a loan so he could buy a care Such conduct on the part of
Kobritz was clearly violative of the Act.
The employees remaineil . on strike until September 16, when they abandoned
their collective action and unconditionally requested reinstatement . Kobritz-:
denied their request. During the strike he had hired a new crew , and told them.
no work was available . Only one .applicant for reinstatement has since then.
been rehired . John McLeod, who was recalled a few weeks later.
Neither Moon nor Grant has been offered unconditional reinstatement.'
2. The Respondent 's contentions
In its answer , as amended , the Respondent denied all allegations bearing upon
the question of refusal to bargain except as to the alleged appropriate unit,
which it neither admitted nor denied . It denied that the Union requested to.
bargain collectively for the employees . Kobritz' testimony makes plain, how-
ever, and it has been found that demand was made upon the Respondent on
August 1, at a time when the Union ' represented a majority of the employees'
in the appropriate unit.
In his brief , counsel for the Respondent claims that the only evidence of a de-
mand to bargain was during Mahon's visit to Kobritz on August 1. On the con-,
trary, if Kobritz is to be believed , Mahon called him so many times asking for a
contract and to "recognize the Union " on August 13 and 14 that he finally "had'
to get out of the house ." Furthermore , the Respondent conceded receiving
notice on or about August 5 that the Union had filed a representation petition
with the Board. And testimony of the Respondent ' s local counsel establishes that
as of August 20 he refused to agree to a consent election.
8 Kobritz admitted offering to sign a note for purchase of a car ' and urging Cobb to
return , but claimed he did so at the behest of Cobb's wife and parents-in-law. In any-
event, the responsibility of making an illegal inducement was plainly upon Kobritz; the-
Trial Examiner is aware of no interpretation of the Act which permits subservience of-
public rights to the interests of relatives.
e Local counsel for the Respondent testified that on August 20, in a conference with
Mahon , he offered unconditional reinstatement of Moon and Grant and the strikers, but-
declined to agree to a consent election or, in effect , to.recognize the Union unless and
until the Board had determined whether or not the Respondent was engaged in commerce-
within the meaning of the Act. Although the attorney ' s testimony remains undisputed,.
Mahon being deceased , the Trial Examiner is unable to construe counsel's version as a
clearly enunciated offer to reinstate the two discharged employees . Counsel admitted that-
the preceding day, before the Board of Conciliation, State of Maine, he had flatly refused'-
to reinstate them. At the hearing in the instant proceedings counsel declined to reply to a
question as to whether or not the Respondent would then offer reinstatement . No' direct
offer was ever made either to Moon or Grant. The Trial Examiner is of the opinion,
that the conference of August 20 was no more than an effort by the parties to the dispute-
to seek, futilely as it happens , settlement of the several issues involved in the strike.
STAR BEEF COMPANY 1029
Again in his brief, counsel claims: (1) That Kobritz questioned "in good faith"
the majority status of the Union; and (2) that the Board is without jurisdic-
tion. Any "good faith" doubt that Kobritz may have had on August 1 was
quickly dissipated by his own illegal. conduct in questioning the employees in-
dividually as soon as Mahon left. And the last vestige of any such doubt must
have vanished when all but one of his remaining employees refused to work on
August 15 following, according to his own testimony, Mahon's demand to recog-
nize the Union.
As to the discharge of Moon and Grant, it is the Respondent's contention that
they were dismissed because they would not work overtime on July 30, when
requested by Kobritz. Kobritz at first said he "actually discharged them" on
July 30, but then said he did not tell them "directly" until August 3. Also ac-_
cording to Kobritz, on July 30 he told two employees who did work with him that
afternoon, McLeod and Cobb, that "next week Moon and Grant wouldn't be
here." McLeod, a witness for the Respondent and the only striking employee
to he rehired, testified that on July 30 Kobritz said he was going to fire Moon
and Grant for refusing to work. Since McLeod admittedly had previously given
contradictory statements to a Board representative on this same point, changing
his statement after being approached by Kobritz, the Trial Examiner is unable
to accept as trustworthy his testimony on the matter. Cobb, on the other hand,
testified that Kobritz merely said, on July 30, that he was going to let them go in
the fall, "when things get slack."
Unrefuted evidence of many employees establishes that declining to work over-
time was not an uncommon practice for most of them and that never had any of
them been disciplined or, warned for refusing.
3. Conclusions
As to the discharges, credible evidence fails to support the Respondent 's posi-
tion. It is reasonable to believe that Kobritz was not pleased by his difficulty
in persuading employees , including Moon and Grant, to work on July 30. But
it is also reasonable to believe that had he intended to discipline , by discharge
or. otherwise, either Moon or Grant for declining to work that day, he would
have told them so at the time, and not have waited until the middle of the
following week . Other employees had frequently turned down similar requests;
none had been discharged . Employee Chase , who also refused on July 30,
received no disciplinary action. The Trial' Examiner is convinced by all the
evidence that the real reason for Kobritz' action on August 3 was not because
of the failure of the two employees to work on July 30.10
It is concluded and found that the actual reason for the discharges was
Kobritz' discovery that Moon and Grant were "ring leaders" in the union move-
ment, and that his action was designed to discourage union membership. Sur-
rounding circumstances concerning which there is little dispute lead inescapably
to this conclusion. The discharges occurred in the middle of the workweek, a
10 Bookkeeper Anne Matangelo testified that some 2 or 3 weeks before the discharges,
when preparing some prospective payroll schedule , she was told by Kobritz to "hold up"
Moon and Grant "because they are a couple of dead beats and I am not going to have
them with me any longer-much longer." No documents were submitted to support her
testimony . Since payrolls commonly record time already worked , and not what may
occur in the future, the Trial Examiner is unable to determine exactly what, if anything,
Matangelo did or did not do as the result of any instructions from Kobritz. Kobritz
himself testified that he did not make up his mind until July 30, long after the incident
described by Matangelo, to discharge Moon and Grant.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
few hours after Kobritz had learned from Cobb the identity of the "ring leaders,"'
and following his'many inquiries among the employees. Kobritz admitted that
he "might have" told McLeod, also a witness for the Respondent, that the "Union
is not going to get in here if I can help it," as McLeod testified. Kobritz also-
admitted, as McLeod testified, that on August 23, while the strike was in progress,.
that he told McLeod he had made a mistake in letting Moon and Grant go but
it had made him so mad, after hearing "what they started," that he did not.
want them around.
As to the refusal to bargain issue, the preponderance of evidence establishes
and the Trial Examiner concludes and finds that on August 1, 1949, and at all
times thereafter, the Respondent has failed and -refused to bargain in good
faith with the Union as the exclusive representative of all employees in. the
appropriate unit. Kobritz' lack of good faith bargaining was manifested not
only by refusal to recognize the Union, but also by : (1) His polling of the•
employees as to their union affiliations; (2) his efforts to deal individually
by advising them to "come to the office" if they wanted increases ; (3) threaten-
ing to close the plant if the Union got in; and (4) discharging Moon and Grant.
As to the failure to reinstate the nine striking employees when they uncon-
ditionally abandoned their concerted -activities on September 16, this refusal.
was plainly unprotected by the claim that the jobs had already been filled, since-
the strike was caused by the Respondent's unfair labor practices. The principle
has. long been affirmed by the courts that unfair labor practice strikers must be
reinstated upon unconditional application for their positions, even if the dis-
charge of strikebreakers is necessary.
In summary, it is concluded and found that the Respondent, by the acts above.
described, has interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in,
connection with the operations of the Respondent described in Section I, above,
have aclose, 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
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent discriminated in the hire and tenure
of employment of Everett Moon and George Grant on August 3, 1949, and dis-
criminatorily denied reinstatement on 'September 16, 1949, to Donald Cobb,.
Millard Chase, Walter Gaudette, Eugene Crawford, Roger Warren, Frederick.
Arthers, Herbert Rowe, Bernard Lucas, and John McLeod." It will be recom-
mended that the Respondent offer them (except John McLeod) immediate
and full reinstatement to their former or substantially equivalent positions.
11 McLeod was not named in the complaint. However, the facts are fully revealed in
the record showing that, like the others, he was denied reinstatement on September 16
and rehired later. There is no evidence as to whether or not he was made whole from
the date of refusal to the date of rehire.
STAR BEEF COMPANY 1031
(Chase National Bank, et al ., 65 NLRB 827 ), without prejudice to their seniority
or other rights and privileges and make them ( including John McLeod) whole
for any loss of pay they may have suffered by reason of the Respondent's dis-
crimination against them by payment to each of them a sum of money equal
to that which he would normally have earned as wages from the date of.the
discrimination against him to the date of offer of reinstatement , less his net
earnings during that period.
Having found that the Respondent has refused to bargain collectively with
the Union as the exclusive representative of its employees in the appropriate
unit, it will be recommended that the Respondent , upon request , bargain col-
lectively with the Union , and if an agreement is reached to embody such under-
standing in a signed agreement.
In the opinion of the Trial Examiner the Respondent 's conduct discloses a
fixed purpose to defeat self-organization and its objectives . Because of the
Respondent 's unlawful conduct and its underlying purpose the Trial Examiner
is convinced that the unfair labor practices found are. persuasively related to
the other unfair labor practices proscribed by the Act and that the danger of
their commission in the future is to be anticipated from the course of the Re-
spondent 's conduct in the past . The preventive purpose of the Act will be
thwarted unless the recommendations are coextensive with the threat. In
order, therefore , to make effective the interdependent guarantees of Section 7,
to prevent a recurrence of unfair labor practices , and to minimize strife which
burdens and obstructs commerce, and thus to effectuate the policies of the Act,.
it will be recommended that the Respondent cease and desist from infringing in
any manner upon the rights guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , the Trial Examiner makes the following:
CoN cLusior s of LAW
1. Amalgamated Meat Gutters and Butcher Workmen, Local 385, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Everett Moon , George Grant , Donald Cobb , Millard Chase , Walter Gaudette,
Eugene Crawford, Roger Warren , Frederick Arthers, Herbert Rowe, Bernard
Lucas, and John McLeod, thereby discouraging membership in the Union, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (3) of the Act.
3. All production and maintenance employees including truck drivers and
shipping department employees at the Respondent 's plant in Bangor, Maine,
excluding clerical employees, executives , guards, professional employees, 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. Amalgamated Meat Cutters and Butcher Workmen, Local 385, AFL, was
on July 26 , 1949, and at all times thereafter has been, the exclusive representa-
tive 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 refusing on August 1, 1949, and at all times thereafter , to bargain
collectively with Amalgamated Meat Cutters and Butcher Workmen, Local 385,
AFL, as the exclusive representative of all its employees in the aforesaid ap-
propriate unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the'Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]