United Packinghouse Workers of America

National Labor Relations Board - Board Decisions

Dec 5, 1955

114 N.L.R.B. 1279 (N.L.R.B. 1955)

UNITED PACKINGHOUSE WORKERS OF AMERICA 1279
United Packinghouse Workers of America, Local 267, C. I. 0. and
Henry Kubelus. Case No. 13-CB-361. December 5, 1955
DECISION AND ORDER
On June 24, 1955, Trial Examiner W. Gerard Ryan issued his Inter-
mediate Report 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 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 Trial Examiner's findings, conclusions,
and recommendations.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, United Packinghouse
Workers of America, Local 267, C. I. 0., and its officers, representa-
tives, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Pfaelzer Bros., Inc., to dis-
criminate against Henry Kubelus or any other employee in violation
of Section 8 (a) (3) of the Act.
(b) In any other manner restraining or coercing employees of
Pfaelzer Bros., Inc., in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Henry Kubelus for any loss of pay he may have
suffered as a result of the discrimination against him by payment to
him of a sum of money equal to that which he normally would have
earned as wages from the date of the discrimination against him
to the date of his reinstatement by the Company, less his net earnings
during said period.' In computing the amount of back pay due Henry
Kubelus, the customary formula of the Board shall be applied.2
Crossett Lumber Company, 8 NLRB 440.
2 F. W Woolworth Company, 90 NLRB 289.
114 NLRB No 197.
1-280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post in conspicuous places at the business office of the Respond-
ent, and in all places where notices or communications to its members
are customarily posted, copies of the notice attached to the Inter-
mediate Report marked "Appendix A." 3 Copies of said notice to be
furnished by the Regional Director for the Thirteenth Region shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for a period of sixty (60) consecutive days thereafter. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
.
(c) Mail to the Regional Director for the Thirteenth Region signed
copies of the notice, attached to the Intermediate Report as "Appen-
dix A," for posting, the Company willing, on the bulletin boards of
the Company, at its place of business in Chicago, Illinois, where notices
to employees are customarily posted. Such notices are to be posted
and maintained for a period of sixty (60) consecutive days after
receipt by the Company. Copies of the notice, to be furnished by the
Regional Director for the Thirteenth Region, shall, after being duly
signed by an official representative of the Respondent, be forthwith
returned to the Regional Director for said posting.
(d) Notify the Regional Director for the Thirteenth Region in
writing; within ten (10) days from the date of this Order, what steps
-it has taken to comply herewith.
MEMBERS MURDOCK and BEAN took no part in the consideration of
the above Decision and Order.
8 Said notice is hereby amended by substituting for the words "The Recommendations
of a Trial Examiner" the words "A Decision and Order ." In the event that this Order
is entorced by a decree of a United States Court of Appeals, there shall be substituted for
.the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On October 21, 1954 , the Charging Party, Henry Kubelus , filed a charge that
United Packinghouse Workers of America , Local 267, C. I. 0., the above-named
Respondent, by its officers and agents on October 20, 1954, had caused Pfaelzer
Bros., Inc., herein called the Company , to terminate his employment by informing the
Company that if he was not laid off all the employees of the Company would walk
out. No charge was filed against the Company. A complaint and notice of hearing
having been issued and served by the General Counsel , and an answer having been
filed by the Respondent, the hearing involving allegations of unfair labor practices
by the Respondent in violation of Section 8 (b) (1) (A) and (2 ) and Section 2 (6)
and (7) of the Labor - Management Relations Act, 1947 , herein called the Act,
was held on May 17, 1955 , before W. Gerard Ryan , the duly designated Trial Ex-
aminer , at Chicago , Illinois.
At the hearing full opportunity to be heard , to examine and cross-examine wit-
nesses, to introduce evidence pertinent to the issues, to argue orally upon the record,
and to file briefs, proposed findings, and conclusions , was afforded all parties. At
the hearing , I reserved decision on a motion by the Respondent to strike all the
UNITED'PACKINGHOUSE• WORKERS OF AMERICA 1281
testimony relating to- conversations held not in the presence of any representative
of the Respondent as not binding on the Respondent. I now deny the motion, not
because such testimony is binding on the Respondent, as of course it is not, but
because it is relevant and probative evidence in support of the allegation that the
Company discriminatorily discharged Henry Kubelus in violation of Section 8 (a)
(3) of the Act. It properly belongs in the record as bearing on the Company's mo-
tive but is not binding on the Respondent. An unopposed motion by the General
Counsel to conform the pleadings to the proof with respect to such formal matters
as names and dates was granted. At the conclusion of the hearing, oral arguments
were waived. The General Counsel and the Respondent have filed briefs.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a corporation duly organized and existing by virtue of the laws
of the State of Illinois, with its principal plant and place of business in Chicago,
Illinois, where it is engaged in the processing and sale of meat to restaurants, hotels,
and similar type users. During the year 1954, the Company, in the course and con-
duct of its business, purchased raw materials valued at approximately $15,997,000
of which approximately 12 percent was shipped to its Chicago, Illinois, plant from
points and places located outside the State of Illinois. During the same year, the
Company, in the course and conduct of its business, sold meat and meat products
produced by it valued at approximately $21,678,000 of which approximately 68 per-
cent was shipped from its Chicago, Illinois, plant to points and places located outside
the State of Illinois. The Company is, and at all times referred to herein has been,
engaged in commerce, and its operations affect, at all times material have affected,
and will affect commerce within the meaning of Section 2 (6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Respondent is and at all times material herein has been a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleged and the answer denied that the Respondent on or about
October 20, 1954, in violation of Section 8 (b) (2) of the Act attempted to cause
and did cause the Company to discriminate against Henry Kubelus in violation of
Section 8 (a) (3) of the Act by discharging him; and by such acts the Respondent
restrained and coerced and is restraining and coercing employees of the Company
in the exercise of the rights guaranteed them in Section 7 of the Act, thereby en-
gaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act. The Company is not a party to the proceeding.
•
Introduction and Background
Henry Kubelus was employed by the Company from 1935 to his discharge or lay-
off on October 20, 1954, excepting military service from 1942-45. In October
1954 1 he was a scaler in the scaling department (also called the shipping depart-
ment ) where orders for the city of Chicago and out-of-town orders for meat are
weighed, wrapped, boxed, and stamped. Nine employees including Kubelus, were
employed in the scaling department. Kubelus alone worked on orders for delivery
in the city. After his return from military service, Kubelus joined the Respondent
and held the offices of recording secretary, president, and vice president. Four or
five years before the date of the hearing herein, he quit the Respondent while still
serving as an officer. The record shows that out of approximately 200 employees
at least 3 other employees besides Kubelus were not members of the Respondent in
October 1954.
On Monday morning, October 18, after the coffeebreak about 9:15, the other 8
scalers, all of whom were members of the Respondent, refused to continue working.
They informed the assistant foreman, Al James, that they had stopped work be-
cause Kubelus was working in the department. He reported the work stoppage to
Superintendent Jack Schoenhofen, who went out and spoke to the scalers and they
informed him they were not going back to work as long as Kubelus was in the same
room with them. The superintendent telephoned William Harper, the president of
1 All dates hereafter mentioned refer to 1954, unless otherwise specified.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Local who has been employed for the past 8 years as a meatcutter by the Com-
pany. The telephone conversation according to Harper was:
Schoenhofen: You better get up here.
Harper: For what reason?
Schoenhofen: None of the scalers are working.
Harper: What's the reason for it?
Schoenhofen: Something about Henry [Kubelus].
Harper went to see Schoenhofen, stopping on the way to get Earl Johnson, the
vice president of the Local and an employee of the Company employed as a butcher
in the chuck and round department. Harper, Johnson, and Schoenhofen conversed at
the doorway of the shipping room. After talking with Schoenhofen, Harper and
Johnson went over and talked to the scalers and urged them to return to work but
they refused; and, indicating Kubelus, said, "We are not going to work if he is."
Harper pointed out to the scalers that their contract allowed no work stoppages
but they refused, to work and when Harper suggested they might be disciplined for
the stoppage they replied they did not care. Harper and Johnson then rejoined
Schoenhofen who suggested they see Ellard Pfaelzer who was in charge of plant
operations. They went to Pfaelzer's office where the matter was discussed. To
Pfaelzer's inquiry, Schoenhofen suggested that Kubelus be transferred to the food
specialty (souphouse) department. No objection to that was made by Harper
or Johnson. Schoenhofen then told Kubelus that the Union was pulling a wildcat
strike and he would have to go over to the souphouse "until this thing is settled."
When Kubelus left, the scalers resumed work. Kubelus reported to Foreman Carl
Kahn• in the souphouse and worked there for the rest of the day. Kahn asked
Schoenhofen if Kubelus were going to work there permanently and Schoenhofen told
him he was not. Kahn said he did not want Kubelus to work there, further stat-
ing that he did not need another man and did not want Kubelus to take employee
Ryan's place there. In a conversation with Harper, Kahn told Harper that if the
guys in the plant did not want to work with Kubelus, Kahn did not care to be
around him either. Ryan did not stop working at the souphouse while Kubelus
worked there, but he did ask Kahn for a transfer to another department.
When Kubelus reported to Schoenhofen on Tuesday morning, October 19, Schoen-
hofen sent him to work in the chuck and round department, telling him at the time
that while he did not want to influence him in any way, he thought it would be a
good idea if Kubelus joined the Union and talked with Earl Johnson, vice president
of the Respondent and also a butcher in that department. Kubelus reported to the
chuck and round department, which is located in a room off the shipping (scaling)
department in the main building, and asked Johnson if it was all right to work
there. Johnson replied it was all right as far as he was concerned but he did not
know about the others. Kubelus then told Johnson he would like to join the Union
rather than have all this squabble, but Johnson said it would take about a month
before they could call a union meeting.2 Johnson told Kubelus the men did not
like Kubelus and did not want to work with him because he did not belong to the
Union .3
After that conversation, Kubelus reported to Foreman Looney in the chuck and
round department and worked there until 10 or 10:30 in the morning. During the
time he worked there, Contreras, the steward for the Respondent in that department,
telephoned Harper and said the guys were grumbling and when Harper asked what
Contreras thought the employees were going to do, Contreras said it looked as though
they might walk off the job. Harper told him to keep them on the job and not let
them do anything foolish. Harper then went with Frometta, who was the chief
steward, to Schoenhofen and told Schoenhofen that Contreras had reported the
employees in that room objected to working with Kubelus. Schoenhofen then re-
marked that he did not think it would affect Kubelus as long as he had taken him
out of the room where the scalers were, but it seemed the boys in the chuck and round
department objected to him too. Schoenhofen thereupon sent Kubelus to the soup-
house (food specialty department) for the remainder of the morning .4
Later that day, after lunch, Harper went to Schoenhofen and inquired where
Kubelus was working. When told he was in the souphouse, Harper told Schoen-
hofen that the boys objected to Kubelus working in any room where any of their
a All the foregoing findings are based on undisputed testimony.
3 The findings contained in this sentence are based upon the credited testimony of
Kubelus.
* The findings in this paragraph are based on undisputed testimony.
UNITED PACKINGHOUSE WORKERS OF AMERICA 12833,
members were working. Schoenhofen then sent Kubelus to the warehouse where
he helped another employee unload a truck and then he worked cleaning up the
warehouse for the remainder of the day.5
The Layoff of Henry Kubelus on October 20
On Wednesday, October 20, when Kubelus reported for work, Schoenhofen sent
him back to work in the warehouse. During the morning, Harper and Frometta met
Schoenhofen on the shipping floor and inquired where Kubelus was working. Schoen-
hofen told them he was working in the warehouse. Harper inquired what he was
going to do with Kubelus and stated that the boys in the Union wanted to know
his decision by 11 o'clock "or else." After consulting with Pfaelzer, Schoenhofen
went to Kubelus and told him he would have to lay him off for a while until this
thing blew over because if he did not, all the union members would walk out.
Kubelus was laid off on October 20 and rehired on December 6. During that period
of time there was work for him to do and no one performed the work that he usually
did. While he was employed, his work at all times was satisfactory to the Company.6
During his layoff, Kubelus telephoned Schoenhofen almost every day to find out
when he would get his job back. By letter dated November 29, the Respondent
wrote to the Company as follows:
We have been advised that Henry Kubelus has filed-with the National Labor
Relations Board charges alleging that his layoff or discharge have been caused
by this organization or its agents. We regard these charges as totally without
foundation since, so far as we are aware neither this union nor its agents have
at any time caused or attempted to cause you to lay that employee off or to
discharge him.
However, to make certain that there is no room at the present time for
doubt or misunderstanding on this subject, we now advise you expressly that,
subject of course to the provisions of our collective bargaining agreement, this
union regards and has regarded the employment status of Henry Kubelus as
a matter completely within the power and discretion of the company. Neither
the union nor its agents have requested or sought or now request or seek any
lay off or discharge of Mr. Kubelus, nor does this union or any of its agents
make any objection to whatever action the company may wish to take con-
sistent with the collective bargaining agreement toward recall or reinstate-
ment of Mr. Kubelus.
The foregoing facts as found rest in the main upon uncontroverted testimony, ex-
cept that there is a square conflict of testimony (1) as to whether on Tuesday aft-
ernoon, October 19, Harper asked Schoenhofen where Kubelus was working and in--
formed Schoenhofen that the boys objected to Kubelus working in any room where
any of their members were working; and (2) as to whether on October 20 Harper, in,
the presence of Frometta, asked Schoenhofen where Kubelus was working, and
upon being told, that Harper then asked Schoenhofen what he was going to do with
Kubelus and the boys in the union wanted to know his decision by 11 o'clock "or
else." Harper denied Schoenhofen's testimony that on Tuesday afternoon he asked
where Kubelus was working and told Schoenhofen that the boys objected to Kubelus
working in any room where any of their members were working. Harper and.
Frometta both denied Schoenhofen's testimony that they had any conversation with
Schoenhofen during the morning of October 20. Frometta and Harper denied being,
present together at any conversation between Harper and Schoenhofen except on
the one occasion on October 19 when they met with Harper to report to Schoenhofen
what Contreras had reported as to the situation in the chuck and round department.
Harper denied that on the morning of October 20 he inquired from Schoenhofen
where Kubelus was working, that he inquired what Schoenhofen was going to do.
with Kubelus, and that the boys in' the union wanted to know his decision by 11-
o'clock or else. On this conflict of testimony between Harper, Frometta, and
Schoenhofen, I credit Schoenhofen's testimony. Schoenhofen impressed me as a truth-
ful and reliable witness. The denials by Harper and Frometta were unconvincing.
There is a further conflict of testimony between Schoenhofen and Harper as to a con-
versation between them on October 20 after Kubelus was laid off. In substance,
Schoenhofen testified that he told Harper he had laid off Kubelus; that Harper
inquired if it could have been-for poor work and Schoenhofen replied it hardly-
5 The findings in this paragraph are based on the credited testimony of Schoenhofen.
9 The findings in this paragraph are based on the credited testimony of Schoenhofen.
387644-56-vol. 114-82
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could have been for poor work after so many years of employment with the Com-
pany. Harper testified, in substance, that Schoenhofen started the conversation
by saying he had come to notify Harper that they were laying off Kubelus; that
Harper asked why he was being laid off, and that Schoenhofen replied it was for
unsatisfactory work; to which Harper replied that seemed rather silly "because if
the guy did not learn how to do his work properly in 16 years this would not be
the time to try anything like that." Harper continued to testify that Schoenhofen
then, said they would lay him off for about a week and bring him back, saying, "We
are laying him off, that is what you guys want, isn't it?" Harper continued that he
(Harper) then became angry and said to Schoenhofen "What you are doing now
you are doing on your own. We are not telling you what to do, nor we haven't
in the past, but if you are laying him off, then don't say that we are telling you to
do this." On the issue as to what the conversation was between Harper and
Schoenhofen on October 20, after Kubelus was laid off, I credit the testimony of
Schoenhofen.
There is also testimony in the record adduced by the Respondent that Kubelus'
difficulties stemmed from a personal dislike on the part of his coworkers because
of his personal traits. While it is true that Kubelus was disliked, as he himself
admitted, there is also testimony from Kubelus and James that such dislike or resent-
ment began from the time that Kubelus resigned from the Union.
While it is true that Harper sought to have the scalers end their work stoppage
on October 18, thereafter Harper and other officers and stewards acquiesced in the
movement to oust Kubelus. No action was taken by the Respondent to discipline
the responsible persons with the Respondent-'s organization. In The Englander
Company, Inc., 108 NLRB 38, the Board found as an indicia of responsibility that
fact that the union took no action to discipline those responsible for the walkout.
Here, the record demonstrates that the Respondent not only failed to invoke any
disciplinary action but sanctioned and participated in the plan to discriminate against
Kubelus because of his nonmembership in the Respondent.
Upon all the foregoing, and upon the entire record in the case, I conclude and find
that the Respondent by causing the Company to discriminate as to the hire and
tenure of employment of Henry Kubelus, thus encouraging membership in the
Respondent, violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Company, Pfaelzer Bros., Inc., described in
section I, above, 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 thereof.
2. United Packinghouse Workers of America, Local 267, C. I. 0., is a labor organ-
ization within the meaning of the Act.
3. By causing the Company to discriminate against Henry Kubelus in regard to
his employment in violation of Section 8 (a) (3) of the Act, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (b) (1) (A) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL MEMBERS OF UNITED PACKINGHOUSE WORKERS OF AMERICA, LOCAL
267, C. I. 0., AND ALL EMPLOYEES OF PFAELZER BROS., INC.
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT cause or attempt to cause Pfaelzer Bros., Inc., to discriminate
against Henry Kubelus or any other employee in violation of Section 8 (a) (3)
of the Act.
WE WILL NOT in any other manner restrain , or coerce employees of Pfaelzer
Bros., Inc., in the exercise of their rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected by an agreement requiring
UNITED STATES GYPSUM COMPANY 1285
membership in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
WE WILL make whole Henry Kubelus for any loss of pay he may have suffered
as a result of the discrimination against him.
UNITED PACKINGHOUSE WORKERS OF AMERICA,
LOCAL 267, C. I. 0.,
Labor Organization.
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.
United States Gypsum Company and- United Stone and Allied
Products Workers of America , CIO, Petitioner . Case No. 8-RC-
2463. December 5,1955
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Edward A. Grupp, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board fords : _
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks a unit of all production and maintenance em-
ployees at the Employer's Gypsum, Ohio, plant and mine, including
working foreman, leaders, inspectors, laboratory employees, power-
house employees, truckdrivers, and construction workers, but exclud.
ing office clerical employees, guards, professional employees, and
supervisors as defined in the Act.' The Employer agrees that a pro-
duction and maintenance unit is appropriate for the purposes of col-
lective bargaining. The Employer, however, would exclude from
the unit certain classifications of employees which the Petitioner would
include, as follows :
Machine operators : Falling into this general classification are board
machine operators, moulding machine operators, automatic finishing
3In 1946 the Board directed an election at this plant , finding a production and main-
tenance unit appropriate ( 72 NLRB 863). Thereafter , United Cement , Lime and Gypsum
Workers, AFL , was certified and entered into a contract with the Employer . This contract
expired June 23, 1948, and since this date, there has been no collective bargaining at the
Employer 's plant.
114 NLRB No. 195.