Concordia Ice Co., Inc.

National Labor Relations Board - Board Decisions

Aug 5, 1943

51 N.L.R.B. 1068 (N.L.R.B. 1943)

In the Matter Of CONCORDIA ICE COMPANY, INC., and AMALGAMATED
MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR
Case No. C-2658.-Decided August 5, 1943
DECISION
AND
ORDER
On June 28, 1943, the Trial Examiner issued his Intermediate Re-
port 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 out in the copy of the Intermediate Report
attached hereto. Thereafter the respondent filed exceptions to the
Intermediate Report and a brief in support of the exceptions. No
request for oral argument before the Board was made by any of the
parties. The Board has considered the rulings of the'Trial Examiner
at the hearing and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's brief and exceptions, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the exceptions and
qualifications noted below :
1. The Trial Examiner found, and we agree, that the respondent
is engaged in commerce within the meaning of the Act. In so con-
cluding we have given due consideration to the fact that, in finding
that one phase of the respondent's business during 1942 involved the
selling, furnishing, and placing of ice within refrigerator cars, oper-
ated in interstate commerce by the Chicago, Burlington, and Quincy
Railroad, the Union Pacific Railroad, the Missouri Pacific Railway,
and the Atchison, Topeka and Santa Fe Railway, the Trial Examiner
inadvertently fixed the value of such ice at $4,783.19. The record
reveals and we find that the aforesaid amount represents not only the
cost of the ice but also the cost of labor in servicing the refrigerator
cars.
2. The Trial Examiner found that by refusing on May 13 to enter
into the consent election agreement to which it had agreed the day
51 N. L. R B., No. 170.
1068
0
CONCORDIA ICE COMPANY, INC. 1069
before, the respondent' demonstrated its bad; faith in, the bargaining
negotiations. While we are convinced, as was the Trial Examiner,
of the respondent's refusal to bargain collectively with the Union on
that date, We are unable to find, under the' circumstances of the case,
that the refusal of the respondent to-enter into the consent election
agreement alone constituted bad faith. Rather do we find that by its
shifting position on the issue of a consent election, together with its
other acts and conduct, as found by the Trial Examiner, evincing hos-
tility toward the Union and a fixed purpose to avoid recognizing the
Union- as the exclusive representative of its employees in an appro-
priate unit, the respondent disclosed its unwillingness to take an
active and sincere part in the negotiations to the end that an agree-
ment might be reached, and thereby failed in its duty to bargain
collectively within the meaning of Section 8 (5),of the Act.
3: The Trial Examiner found, and we, agree, that on May 18,
during the course of the strike, Huscher, in violation of the Act,
discussed with Union members La Voie and Blochlinger how they
could resign from the Union, and that, at his suggestion, they re-
tained a, lawyer who prepared letters of resignation, used by them
in effecting their withdrawal from the Union on May 19. Although
the resignations did not, in fact, destroy the Union's majority, it is
clear and we find that these defections, occurring after the respond-
ent's refusal to bargain, were not the product of the independent and
considered action of the employees, but the result of the respondent's
unfair labor practices. Accordingly, we conclude that, by its conduct
in causing such defections, the respondent interfered with, restrained,
and coerced its employees in the exercise ' of their rights guaranteed
in Section 7 of the Act.
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, Concordia Ice Company,
Inc., Concordia, Kansas, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Meat Cut-
ters & Butcher Workmen of North America, affiliated with the Amer-
ican Federation of Labor, as the exclusive representative of the pro-
duction, maintenance, and distribution employees of its Concordia,
Kansas, plant, exclusive,of supervisory and office employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities for the purpose, of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National.Labor
Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Amalgamated Meat
Cutters & Butcher Workmen of North America, affiliated with the
American Federation of Labor, as the exclusive representative of, the
production, maintenance, and distribution employees of its Concordia,
Kansas, plant, exclusive of supervisory and office employees, with
respect to rates of pay, wages, hours of employment, and other
conditions of employment;
(b) Post immediately -in=-conspicuous places throughout its Con-
cordia, Kansas, plant, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its em-
ployees stating: (1) that the respondent will not engage in the con-
duct from which it is ordered to cease and desist in paragraphs 1 (a)
and (b) of this Order; and (2) that the respondent will take the
affirmative action set out in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. John A. Weiss, for the Board.
Mr. Charles L. Hunt, of Concordia, Fans, for the respondent.
Mr. Robert Nielubowski, of Chicago, Ill., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on May 22, 1943, by Amalgamated Meat
Cutters & Butcher Workmen of North Amei lca, affiliated with the American
Federation of Labor, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Seventeenth
Region (Kansas City, Missouri), issued its complaint dated May 22, 1943,
against the Concordia Ice Company. Inc.,' 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 (1) and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, accompanied by notice of
hearing thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended at the
hearing,' alleged in, substance, that the respondent: (1) on and after March 1,
1 Styled "Concordia Ice Co , Inc " In the complaint and corrected pursuant to motion of
counsel for the Board
2 At the opening of the bearing , the undersigned allowed without objection the motion
of counsel for the Board to amend the complaint by changing one date on which the re-
spondent was alleged to have refused to bargain, and adding one.
CONCORDIA ICE COMPANY, INC. 1071
1943,' by its officers and agents, uttered statements prejudicial to the Union
and its officers and agents, sought to dissuade its employees from joining the
Union, and caused them to be questioned concerning their membership in, and
activities on behalf of the Union; (2) on March 26, April 7, 16 and 24, May
10, 11, 12, 13, 17, 18, 19 and 20, 1943, and at all times thereafter, refused upon
request to bargain collectively with the Union which was at all such times the
exclusive representative of the respondent's employees in a unit appropriate
for the purposes of collective bargaining; and (3) by such activities interfered
with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
On May 31, 1943, the respondent filed its special{.appearapce denying. that it
'was engaged in commerce within the meaning of the Act, and denying all other
allegations contained in the complaint with the exception that it admitted that
it was a Kansas corporation.
Pursuant to notice, a hearing was held at Concordia, Kansas, on June 4 and
5, 1943, before the undersigned, Josef L. Hektoen, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondent were
represented by counsel and the Union by a representative. All participated
in the hearing. Full opportunity to be heard, to examine and cross- examine
witnesses, and to introduce evidence bearing on the, issues was afforded all
parties.
At the opening of the hearing, the undersigned reserved ruling upon the
motion of counsel for the respondent to dismiss the complaint for want of
jurisdiction by the Board.8 This niotion was reiterated at the close of the
Board's- case and the undersigned again reserved-ruling= thereon. The motion
is hereby denied. At the opening of the hearing; Wthe''undersiglied^'rilled"that
the allegation of the respondent's special appearance that the complaint was
not sufficiently specific to enable respondent to meet the allegations thereof
constituted a motion for a bill of particulars of the complaint and allowed such
motion in part. In conformity with the order of the undersigned, counsel for
the Board immediately furnished counsel for the respondent on the record the
name of the officer of the respondent by whom it was alleged to have committed
certain unfair labor practices. At the close of the Board's case, counsel for
the respondent moved to dismiss the complaint for failure to proof. The motion
was'denied by the undersigned. At the close of the hearing, the parties waived
oral argument before the undersigned. Counsel for the respondent thereafter
filed a brief with him.
Upon the entire record in the case and from his observations of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Concordia Ice Company, Inc., is a Kansas corporation, hav-
ing its principal place of business in Concordia, Kansas. It is engaged in the
manufacture and production of ice and in the sale and distribution of ice, beer,
coal, and domestic refrigerators. During 1942 the respondent purchased from
points outside the State of Kansas beer to the approximate value of $146,700,
G The special appearance stated that the respondent "denies and challenges the juris-
diction" of the Board "to conduct said hearing or to inquire into the various matters" set
forth in the complaint.
1072 DECISIONS ' OAF NATIONAL LABOR RELATIONS BOARD
all of which was sold within the State of Kansas for the sum of $182 ,817.' -All
beer is ordered from the respondent 's office at Concordia. o
During 1942 the company purchased from points outside the State of Kansas
coal to the value of $2416.34 and from within the State of Kansas coal to the value
of $5224 70. The respondent sold such coal within the State of Kansas and
realized therefrom the sum of $8060.55.
During 1942 the respondent sold, furnished, and placed within refrigerator
cars, operated in interstate commerce by the Chicago, Burlington & Quincy Rail-
road, the Union Pacific Railroad, the Missouri Pacific Railway, and the Atchison,
Topeka & Santa Fe Railway, ice to the value of $4783.19.
Under the decisions of the Board and of the Courts' it is clear that the re-
spondent is engaged in Commerce, within the meaning of the Act. The under-
signed so finds.
II. THE ORGANIZATION INVOLVED
Amalgamated Meat Cutters & Butcher Workmen of North America, affiliated
with the American Federdtion of Labor, is a labor organization admitting em-
ployees of the respondent to membership.
III. THE UNFAIR LABOR PRACTICES
,A. The refusals to, bargain
1. The appropriate unit
,The complaint alleged that the production, maintenance, and distribution em=
ployees of the respondent's Concordia, Kansas, plant, exclusive of supervisory
and office employees, constitute a unit appropriate for the purposes of collective
bargaining. No objection thereto was voiced by the respondent during its nego-
tiations with the Union or at the hearing.
The undersigned finds that the production, maintenance, and distribution
employees of the respondent's Concordia, Kansas, plant, exclusive of supervisory
and cfiice employees, at all times material herein constituted and now consti-
tute a unit appropriate for the purposes of collective bargaining and that such
unit insures to employees of the respondent the full benefit of their right to self-
organization and collective bargaining and otherwise effectuates the policies of
.the Act.
2. Representation by the Union of a majority within the appropriate unit
The evidence reveals the following facts respecting the Union's representa-
tion :
Number of Union Number of Union
Date emplovices designa-
I
Date employees
h
designa-,
t iin the unit lions e unitin t ions
April 2,1943 1 ---------- ---_- 14 9 May 19 , 1943 ---------------
22 14I
April 16,1943--------------- , 15 10 May 20, 1943 --------------- 23 14
May 10, 1943 ---------------- 21 16
I The designations specifically named the Union as the sole bargaining representative of the employees
signing them and were part of the Union's applications for membership
2 As is found antra, the Union and the respondent first negotiated on this date.
4 The respondent maintains a warehouse at Junction City, Kansas (92 miles from Con-
cordia), and from it distributed beer to the value of $94,735. The remainder was distrib-
uted from the Company's plant at Concordia.
N. L R. B. v Facnblatt, 306 U. S 601 ; N L. R. B v. Suburban Lieniber Company, 121
F. (2d) 829 (C. C. A 3), cert. den. 314 U. S 693.
CONCORDIA ICE COMPANY, INC . 1073
The undersigned finds that on April 2, 1943, and at all times thereafter, the
Union was the duly designated representative of the majority of the employees
In the appropriate unit, and, pursuant to Section 9 (a) of the Act, was the
exclusive representative of all the employees in such unit for the purposes of
collective bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment.
3. The refusal to bargain
On April 1, 1943, Robert Nielubowski, J. T. Lloyd, and James Huff, union
representatives, called on Ernest Huscher, vice president and general manager
of the respondent at his office.' According to Nielubowski, Lloyd informed
Huscher that the Union represented the majority of the respondent's employees
and desired to bargain collectively with him. Huscher replied that he was not
familiar with unions, doubted the Union's majority representation of the em-
ployees, and refused to recognize it. Huscher testified that while Lloyd informed
him of the Union's representation, he merely inquired as to whether Fluscher
desired to bargain or wished to have an election. Huscher replied that he was
surprised, knew nothing of unions, and suggested that they meet the following
day. Huff testified that no conversation respecting recognition occurred at the
meeting. The undersigned finds that the events transpired as testdl2d by
Huscher.
On April 2, the same parties met again at Huscher's office. Lloyd outlined
the functions of unions at length, explained the operation of the Board, and how
an election among the respondent's employees could be arranged.' Huscher
reiterated his ignorance of unions, but stated that if he "wasn't waiving" his
"rights," he would accept for examination a proposed contract from the Union.
On April 3, the Union delivered a form of proposed contract to the secretary
of the respondent, Huscher being absent. Nielubowski left word that he would
call on Huscher on April 7.
On April 7, according to both Nielubowski and Huff, they called at Huscher's
office. Huscher told them that any discussion of the contract would have to
be postponed for about a week because he had not had sufficient opportunity
to acquaint himself with it and further informed them that he refused to recog-
nize or bargain with the Union because he doubted its majority representation,
and in response to Nielubowski's statement that he had proof thereof, said "Well,
I imagine some of these boys have been forced to sign." Huscher testified that
on April 7, he met Nielubowski in a local restaurant and that on Huscher's
representation that he needed more time in which 'the consider the contract,
Nielubowski finally agreed to postpone their meeting for a week. He did not
deny that he refused to recognize or bargain with the Union. The undersigned,
from the entire record, concludes and finds that the events of April 7 transpired
as testified by Nielubowski and Huff.
On April 16,' the same parties met again. Huscher and Niclubowski considered
In detail the provisions of the proposed contract tendered by the Union. Huscher
accepted none of the provisions, expressed his complete disapproval of the
8 Nielubowski and Huff (Lloyd did not testify) testified that the meeting took place on
Maich 26. Five witnesses for the respondent testified that the correct date was Apiil 1.
From the weight of the evidence, including documentary proof produced by the respondent,
the undersigned finds that the meeting in fact occurred on April 1.
7 Nielubowski and Huff testified that these events transpired at the first meeting- between
the parties. From all of the relevant evidence, the undersigned concludes, and finds that
they occurred on April 2, the date of the second meeting
8 The record is not entirely clear as to whether this meeting occurred on April 15 or 16.
From all the evidence, the undersigned concludes and finds that it occurred on April 16.
1074 DECISIONS OF NATIONAL LABOR RELAT IONS BOARD
entire contract, and stated that he had difficulty in understanding many parts
thereof. Both Nielubowski and Huff testified, and Huscher denied, that the
latter again refused to recognize the Union. The undersigned, from the weight
of the evidence and in, the light of all of the surrounding circumstances, con-
cludes and finds that Huscher refused to recognize the Union on this occasion.
Nielubowski testified without contradiction, and the undersigned finds, that at
this meeting he offered to permit Huscher to inquire of each of the respondent's
employees as to his union membership. Huscher refused the offer.
On April 24, the same parties met again. Huscher reiterated his disapproval
of the contract, once again questioned the Union's representation, and. refused
it recognitions At this meeting, as he testified, Huscher, "more as a joke
than anything else," offered to give the respondent's employees an annual bonus
of a percentage of the respondent's profits Nielubowski replied that the Union
would prefer "an hourly basis," whereupon Huscher explained that as to the re-
ipondent's profit, "Frankly the figure is nothing. We haven't made a dime."
Huscher, according to his testimony, then made certain offers respecting hourly
and weekly rates of pay, prefacing his remarks, "I don't want to waive any of
my rights, but for the purpose.of the discussion here.. . .' Nielubowski denied
that he did so. The undersigned finds it unnecessary to resolve this conflict
since Huscher's reservation with respect to the purported offers effectively
negatived the possibility of their being acted upon with finality by the Union.
At the close of the meeting, Nielubowski stated that he would refer the
whole question to the Board or to a conciliator.
On May 10, Robert Moore, conciliator of the U. S. Department of Labor, met
with the same persons in Huscher's office. Moore examined the proposed con-
tract and informed Huscher that it contained the usual provisions of collective
bargaining contracts in similar situation. He also made certain suggestions
respecting clarification of the proposed seniority clause with which Huscher had
purportedly experienced difficulty. The record does not disclose Huscher's re-
action to Moore's statements or suggestions. Huscher again expressed doubt
respecting the Union's representation and refused Moore's offer to conduct a
consent election the following day. At Moore's suggestion, Huscher inquired
of Nielubowski respecting possible concessions by the Union in the event that
the respondent agreed to a consent election. Nielubowski offered a reduction
in hourly pay from that proposed in the contract and stated that perhaps an
alternative to the demanded closed-shop clause which Hascher found distaste-
ful could be worked out. Huscher replied that he was "not interested in that" and
asked for more time. Nielubowski, however, stated that the Union would peti-
tion the Board for an investigation and certification of representatives.
On May 11, the 16 union members of the then 21 employees of the respond-
ent within the appropriate unit, went out on strike.
On May 12, Nielubowski told Huscher that the Union desired an election by
the end of the current week. Nielubowski testified that Huscher agreed to a
consent election provided a Board agent appeared in Concordia at that time.
Huscher testified that he told Nielubdw'ski in response to the lattef's statement,
"Well, I suggest you ask the Board about that [an election by the end of the
week], they have jurisdiction, and it will all be handled in a legal manner."
The undersigned finds that Huscher agreed to a consent election to be con-
ducted by a Board agent at the time stated.
9 Huscher testified that he could not "recall that anything like that was said." The un-
dersigned , upon the testimony of Nielubowski and Huff, finds that Huscher spoke as related
above.
CONCORDIA ICE COMPANY, INC. 1075
On May 13, the Union having requested the Regional office of -the Board for
his presence pursuant to arrangements between Nielubowski and Huscher, Field
Examiner Erwin A. Peterson arrived in Concordia. Peterson proposed that
Huscher sign an agreement for a consent election to be held the following
day. Huscher refused, telling Peterson, as he (Huscher) testified, that he
"doubted very much if this Board had jurisdiction" and that he declined to
"waive any, rights by signing anything." 10 He again stated that the Union
had forced some of the respondent's employees "to sign."
On May 17, Nielubowski telephoned Huscher, asked him to bargain with the
Union, and was refused.
On May 18, Nielubowski and Huff called on Huscher at his office, requested
recognition of the Union, and were informed by Huscher that there was "nothing
to talk about."
On May 19, Nielubowski telephoned Huscher, made the same request and
received the same answer.
On May 20,' Nielubowski endeavored in vain to reach Huscher by telephone
and requested the respondent's telephone operator to ask Huscher to return
his call. His message was not acted upon by Huscher. No further conversa-
tions between the Union and the respondent occurred.
On 'May 21, the striking employees returned to work and but for two who
ceased work for the respondent on May 28 for reasons not shown to have any
bearing on the issues in this proceeding, were employed by the respondent at
the time of the hearing."
Conclusion
The, entire record discloses a fixed purpose on the part of the respondent,
acting through Huscher, to avoid bargaining with the Union. To that end,
Huscher uniformly throughout the conferences above described, refused to
recognize it as the exclusive representative of his employees. Recognition is
a necessary prerequisite to bargaining. On April 16, when the Union extended
Huscher permission to satisfy himself respecting its representation among the
employees, he refused to take advantage thereof. The strike effectively proved
that the majority of the employees were uncoerced union members. On May
13, despite this fact, he refused to enter into the consent election agreement he
had agreed to on the day before, and reiterated, as testified by Nielubowski,
that the Union had forced some of the employees to join it. A consent election
would have demonstrated the facts with respect to his contention. It was
obviously advanced in bad faith.
Huscher sought to defend his conduct on the ground that he had difficulty
in obtaining adequate counsel In view of the almost 7 weeks covered by the
negotiations outlined above, and his patent bad faith, the undersigned rejects
Huscher's purported excuse as frivolous. He admitted, and as related above,
the record clearly shows, that he refused to bargain with the Union after
May 11, the date of the strike. After the introduction of evidence at the hearing
proving the Union's majority at all times materal herein, Huscher stated on
the record that he continued to doubt it."
10 On May•15, the Regional office wrote the respondent that the Union had filed a petition
for investigation and certification of representatives On May 17, the Regional Office wrote
the respondent stating that the Union's petition had been withdrawn without prejudice.
11 On May 22, the Regional Office wrote the respondent that the Union had filed charges
alleging the commission by the respondent of unfair labor practices, within the meaning
of Section 8 (1), (3) and (5) of the Act. The charge of alleged discrimination was
omitted in the Union's first amended charge on which the instant complaint is based.
1' The only possible basis for such doubt was that the employees had been forced into the
Union. There is no evidence in the record of any such coercion.
540612-44-vol 51 69
1076 DECISIONS OF NATIONNAL , LABOR RELATIONS BOARD
Doubt of a union's majority, not advanced in good faith, cannot excuse an
employer's refusal to bargain.' Nor does doubt respecting the jurisdiction of
the Board excuse or rebut such refusal.14 Similarly, it pis not excused by the
existence of a strike,' nor by the pendency of a Board representation
proceeding."
The undersigned finds that the respondent on May 13, 1943, and at all times
thereafter, has, refused to bargain collectively with the Unions as the exclusive
representative of its employees in an appropriate unit, and has thereby inter-
fered with, restrained, and coerced its employees in the exercise of,the rights
guaranteed in Section 7 of the Act.
B. Interference, restraint, and coercion
Employee Leo Vignery, a union member at the time, testified that on April
8, 1943, Huscher called him to his office, asked him what he thought of the
Union, and when Vignery told him he believed it to be good, said "To be frank
with you, I'm afraid it will get us into a lot of trouble." Huscher testified
that he asked Vignery if he sincerely believed "the boys here want a union"
and that when Vignery replied that they desired a union in order to have
"some protection when the war is over," he told Vignery he was surprised. The
entire evidence, particularly Huscher's April 30 conversations, related below,
convinces the undersigned that Huscher spoke to Vignery as the latter testified.
He so finds.
On April 30, Huscher called employee Melvin Beers, a union member, to his
office. Huscher read the seniority clause of the proposed union contract and
stated that he did not understand it. According.to Beers, Huscher then told
him that on account of the fact that Beers' job tenure had been interrupted for
a time during the summer of 1942, he believed that respecting his seniority
rights, the Union would do him more harm than good. Huscher substantiated
Beers' testimony but could not recall that he had told Beers that the Union
might harm him. The undersigned finds that the events transpired as testified
by Beers.
Immediately after talking to Beers on April 30, Huscher called union member
Merle LaVoie to his office, told him, according to LaVoie, that he thought
LaVoie's seniority rights under the proposed union contract "would be pretty
low," that in the event Huscher was forced to dispense with the services of
some of the respondent's employees, LaVoie would be one of them, and advised
him to "think it over" and determine his seniority rights before he "signed
anything." Huscher admitted speaking to LaVoie respecting his seniority rights,
and testified that he told him, "I think we ought to think this over pretty
carefully in getting it written up, so we will be able to keep our good route
men." 14 Non-union employee John Vint, who was also present, testified to the
same effect. The undersigned finds that the conversation transpired as related
by LaVoie.
Huscher testified that he called Beers and LaVoie to his office in order to
obtain their aid in interpreting the seniority clause of the Union's proposed
is N. L. R. B. v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2).
14 N. L. R. B. v. Robert S. Green, Inc., 125 F. (2d) 485 (C. C. A. 4).
16 This is true both where the strike is caused by the respondent' s unfair labor practices
(M. H. Ritzwoller Co. v. N. L. R. B., 114 F. (2d) 432 (C. C. A. 7), and when it is not.
(N. L. R. B. v. Reed & Prince Mfg Co., 118 F. (2d) 874, Cert. den. 313 U. S. 595.)
26 N. L. R. B. v. Dixie Motor Coach Corp., 128 F. (2d) 201 (C. C. A. 5) ; N. L. R. B. v.
National Seal Corp., 127 F. (2d) 776 (C. C. A. 2).
17 LaVoie was a route man.
CONCORDIA ICE COMPANY, INC. I , 1077
contract, but did not explain why he consulted these particular employees nor
why he did not consult union representatives regarding the matter.
On May 18, union members LaVoie and John Blochlinger asked Huscher how
they could get out of the Union. Huscher replied that they could resign and.
that in order to do so they should write a letter of resignation to the Union.
He advised them to retain a lawyer for this purpose. On May 19, following
Huscher's suggestions, they did so. Their withdrawals were received by Nielu-
bowski on the same day and they thereafter reported their resignations to
Huscher.
The undersigned finds that by Huscher's acts and statements, related above,
the respondent has interfered with, coerced, and restrained its employees in the
exercise of the rights guaranteed in 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 a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and have led 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 and is engaging in certain
unfair labor practices, it will be recommended that it cease and desist therefrom,
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent has refused to bargain collectively with
the Union. It will therefore be recommended that the respondent upon request
bargain collectively with the Union as the exclusive representative of its em-
ployees within the appropriate unit.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters & Butcher Workmen of North America, affiliated
with the American Federation of Labor, is a labor organization , within the
meaning of Section 2 (5) of the Act.
2. The production, maintenance, and distribution employees of the respondent's
Concordia, Kansas, plant, exclusive of supervisory and office employees, con-
stitute a unit appropriate for the purpose of collective bargaining , within the
meaning of Section 9 (b) of the Act.
3. Amalgamated Meat Cutters & Butcher Workmen of North America, affili-
ated with the American Federation of Labor, was on April 2, 1943, and at all
times thereafter has been, the exclusive representative of all employees of the
respondent in such unit for the purposes of collective bargaining , within the
meaning of Section 9 (a) of the Act.
4. By refusing on May 13, 1943, and at all times thereafter, to bargain
collectively with Amalgamated Meat Cutters & Butcher Workmen of North
America, affiliated with the American Federation of Labor, as the exclusive
representative of its employees in the appropriate unit, the respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (5) of the Act.
1078, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By interfering with , restraining , and coercing its employees in the exercise
of the 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 (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practIces77 affecting
commerce, within the' meaning of Section 2 (6) and (7) of the Act.- - "'
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of, law, the
undersigned recommends that the respondent, Concordia Ice Company, Inc.,
Concordia, Kansas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Meat Cutters & Butcher
Workmen of North America, affiliated with the American Federation of Labor,
as the exclusive representative of the production, maintenance, and distribution
employees of its Concordia, Kansas, plant, exclusive of supervisory and, office
employees, with respect to rates of pay, wages, hours of employment, and other
conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, as guaranteed in Section.
I of the National Labor Relations Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Amalgamated Meat Cutters &
Butcher Workmen of North America, affiliated with the American Federation,
of Labor, as the exclusive representative of the production, maintenance, and
distribution employees of its Concordia, Kansas, plant, exclusive of supervisory
and office employees, with respect to rates of pay, wages, hours of employment,
and other conditions of employment;
(b) Post immediately in conspicuous places throughout its Concordia, Kansas,
plant, and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating: (1) that the respondent
will not engage in the conduct from which it is recommended that it cease
and desist in paragraphs 1 (a) and (b) hereof; and (2) that the respondent
will take the affirmative action set out in paragraph 2 (a) hereof;
(c) Notify the Regional Director for the Seventeenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from
the receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent
co take the action aforesaid. °
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, any party may within
tifteen (15) days from the date of the' entry of the order transferring the
case to the Board, pursuant to Section 32 of Article II of said Rules and
Regulations, file with the Board, Rochambeau Building, Washington, D. C.,
CONCORDIA ICE COMPANY, INC . 1079
an original and four copies of a statement in writing setting forth such excep-
tions to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and four copies of a brief in support thereof. As further
provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case
to the Board.
JOSEF L.REKTOEN,
Trial Examiner.
Dated June 28, 1943.