Hazen & Jaeger Funeral Home

National Labor Relations Board - Board Decisions

Aug 13, 1951

95 N.L.R.B. 1034 (N.L.R.B. 1951)

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all elevator pilots and janitors employed by the Strawn
Realty Corporation at the United States National Bank Building,
including the regular part-time elevator pilot,' but excluding watch-
men, the elevator starter, the building superintendent, the assistant
building superintendent, the head janitor, and all other supervisors,
constitute an appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
[Text of Direction of Elections omitted from publication in this
volume.]
we find that two elevator pilots, Eileen Furman and Agnes Graydon , who are called
upon only in emergencies to fill in for regular pilots who are absent , do not have sufficient
interest to entitle them to vote . Great Trails Broadcasting Company, supra.
ALICE B. HAZEN, C. P. JAEGER, H. W. RYMOND , AND C . E. GILMAN,
CO-PARTNERS , DOING BUSINESS AS HAZEN & JAEGER FUNERAL HOME,
AND ITS SUCCESSOR ALICE B. HAZEN, C. P. JAEGER, HELEN RYMOND
IN HER OWN RIGHT AND AS EXECUTRIX OF TILE ESTATE OF H. W.
RYMOND , C. E. GILMAN, AND PATRICIA JAEGER DIBLEE, CO-PARTNERS,
DOING BUSINESS AS HAZEN & JAEGER FUNERAL HOME ' and LICENSED
EMBALMERS ' DIVISION OF WAREHOUSEMEN , GARAGE AND SERVICE STA-
TION EMPLOYEES LOCAL UNION No. 334 , INTERNATIONAL BROTI-IER-
HOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS,
A. F. OF L. Case No.19-CA-3. 5. August 13, 1951
Decision and Order
On May 4, 1951, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and a supporting brief 2
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Respondents' exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
I The names of the Respondents appear as amended at the hearing.
2 The Respondents have requested oral argument before the Board . As the record and
the Respondents ' exceptions and brief fully present the issues involved herein and the
position of the parties , the Respondents ' request is hereby denied.
95 NLRB No. 137.
HAZEN & JAEGER FUNERAL HOME 1035
and recommendations of the Trial Examiner with the following addi-
tions and modifications :
1. The Respondents except to the Trial Examiner's finding that
they refused to bargain with the Union in violation of Section 8 (a)
(5) of the Act, on the ground that the Union did not at the time of
the alleged refusal represent a majority of their, licensed embalmers
and registered apprentices in the unit which the Union contended was
appropriate.
The Respondents employed seven embalmers and two apprentices.
One employee, Wilson, although licensed as an embalmer in Oregon,
was not similarly licensed in Washington, where the Respondents'
funeral home is located, nor was he registered as an apprentice in
the latter State. Furthermore, one of the Respondents testified that
Wilson was spending the major portion of his time performing duties
other than those involving embalming operations, and that he was
being groomed to assume the functions of a funeral director. Accord-
ingly, we find, in agreement. with the Trial Examiner, that Wilson
was properly excluded from the unit.
The Trial Examiner also excluded from the unit one other indi-
vidual, Thomas, on the ground that he was a supervisor within the
meaning of the Act. The Respondents contend that Thomas was
not a supervisor. The record indicates that Thomas had no authority
to hire or discharge employees, or effectively to recommend such
action; that a majority of his time was spent in performing the same
duties as the other embalmers in the Respondents' employ; that any
difference in the pay received by Thomas and-the other embalmers
was attributable to the fact that Thomas worked longer hours than
the others; that Thomas' privilege of selecting his vacation period
before the other employees was due to his length of service with the
Respondents ; and that his occasional inspection of the work done
by some of the other embalmers and apprentices was due to his greater
skill and proficiency acquired by length of service and did not involve
responsible direction by him of the work of these other employees.
Under all the circumstances, we find, contrary to the Trial Examiner,
that Thomas was not a supervisor within the meaning of the Act,
and that he should therefore have been included in the unit.
Of the nine embalmers and apprentices employed by the Respond-
ents, four (Smith, Conboy, Slind, and Poffenroth) were concededly
members of the Union at the time the Trial Examiner found the
refusal to bargain occurred. The Trial Examiner, having excluded
Thomas as well as Wilson from the unit, found that the Union rep-,
resented four in a unit of seven employees. However, as we have
included Thomas who was not a member of the Union, we find that
the Union represented four in a unit of eight employees, or less than
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a majority of the employees in the unit, and that the Respondents'
refusal to bargain with the Union did not therefore constitute a vio-
lation of Section 8 (a) (5) of the Act.
2. The Trial Examiner found, and we agree, that the Respondents
discriminated in the tenure of employment of four employees, thereby
discouraging membership in a labor organization in violation of Sec-
tion 8, (a) (3) and (1) of the Act.3 The Trial Examiner further
found, and we agree, that the Respondents, by threatening employees
that if they organized they would lose life insurance , health, and acci-
dent policies carried for them by the Respondents, as well as bonuses
and the privilege of occasionally leaving work to attend to personal
`wants; by refusing to effectuate vacation schedules because of the
employees ' concerted activities; by inquiring of employees concern-
ing events at union meetings; and by threatening employees with dis-
charge if they engaged in lawful picketing, thereby interfered with,
restrained, and coerced their employees within the meaning of Section
8 (a) (1) of the Act.
The Trial Examiner also, found that the Respondents, by preparing
letters of withdrawal from the organizational effort on behalf of
certain employees, had violated Section 8 (a) (1) of the Act. The
record indicates, however, that the employees in question had them-
selves prepared a draft of a letter of withdrawal from the Union,
and that they merely asked permission to utilize the Respondents'
typists to type the letters. There is no evidence that the Respondents
initiated the preparation of these letters, or that they actively partici-
pated in their preparation. Accordingly, we find that the Respondents
did not violate Section 8 (a) (1) of the Act by granting employees
permission to have their-letters typed 4
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Alice B. Hazen,
C. P. Jaeger, Helen Rymond in her own right and as executrix of
the estate of H. W. Rymond, C. E. Gilman, and Patricia Jaeger Diblee,
co-partners doing business as Hazen & Jaeger Funeral Home,. their
agents, successors , and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Licensed Embalmers' Division of
Warehousemen, Garage and Service Station Employees Local Union
3In finding a violation of Section 8 (a) (3), we do not rely on the remarks in which
Thomas asked Poffenroth where he would work to complete his apprenticeship, as, we
have found that Thomas was not a supervisor.
4 See Empire Pencil Company, 86 NLRB 1187 ; Chicopee Manufacturing Corporation of
Georgia, 85 NLRB 1439.
HAZEN & JAEGER FUNERAL HOME 1037
No. 334, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers, A. F. of L., or any other labor organization
of their employees, by discharging any of their employees because
of their union membership or activity, or in any other manner dis-
^criminating in regard to their hire or tenure of employment. or any
term or condition of employment.
(b) Threatening employees that if they organize they will lose life
insurance and health and accident policies carried for. them by the
Respondents, as well as bonuses and the privilege of occasionally leav-
ing work to attend to personal wants; refusing to effectuate vacation
schedules because of the employees' concerted activities; inquiring of
employees concerning events at union meetings; and threatening
employees with discharge if they engage in lawful. picketing.
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist.the above-named union, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage-in concerted activities for
the purposes of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring membership
in a labor organization as authorized in Section 8 (a) (3) of the Act,
as guaranteed in Section 7 thereof.
. 2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to Earl Smith, Ellis Conboy, Milo Slind, and John Pof-
fenroth immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or
other rights or privileges, and make each of them whole for any loss
of pay he may have suffered as a result of the discrimination against
him, in the manner set forth in the section of the Intermediate Report
entitled "The remedy."
(b) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary for a determination of the
amounts of back pay due and the right of reinstatement under the
terms of this Order.
(c) Post at their place of business at Spokane, Washington, copies
of the notice attached hereto and marked "Appendix." 5 Copies of the
notice, to be furnished by the Regional Director for the Nineteenth Re-
5 In the event that 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."
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gion, shall, after being duly signed by the Respondents' representative,
be posted by the Respondents- immediately upon receipt thereof and
maintained by them for at least sixty. (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondents to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director, within ten (10) days from the-
date of this Order, what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondents violated Section 8 (a) (5) of the Act, be, and it
hereby is, dismissed.
CHAIRMAN HERZOG and MEMBER REYNOLDS took no part in the con-
sideration of the above Decision and Order.
Appendix
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, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in LICENSED EMBALMERS,.
DIVISION OF WAREHOUSEMEN, GARAGE AND SERVICE STATION EM-
PLOYEES LOCAL UNION No. 334; INTERNATIONAL BROTHERHOOD OF'
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, A. F.
op L., or in any other labor organization of our employees, by dis-
charging any of our employees or discriminating in any other-
manner in regard to their hire or tenure of employment or any
term or condition of their employment.
WE WILL NOT threaten employees that if they engage in self-
organization they will lose life insurance and health and accident
policies carried for them by us, as well as bonuses and the privilege
of occasionally leaving work to attend to personal wants.
WE WILL NOT refuse to effectuate vacation schedules because of
the employees' concerted activities.
WE WILL NOT inquire of employees concerning events at union
meetings.
WE WILL NOT threaten employees with discharge if they engage
in lawful picketing.
WE WILL NOT in any other manner interfere with, restrain, or'
coerce 'any of our employees in the exercise of their right to. self-
organization, to form labor organizations, to join or assist the
above-named or any other labor organizations, to bargain collec-
HAZEN & JAEGER FUNERAL HOME 1039
tively through representatives of their own choosing , to engage
in concerted activities for the purposes 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 organi-
zation as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights or privi-
leges enjoyed, and make them whole for any loss of pay suffered
as a result of our unlawful conduct.
Earl Smith
Ellis Conboy
Milo Slind
John Poffenroth
All our employees are free to become or remain, or to refrain from
becoming or remaining, members in good standing of the above-
named or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section 8
(a) (3) of the National Labor Relations Act. We will not discrimi-
nate in regard to hire or tenure Of employment or any term or condi-
tion of employment against any employee because of membership in
or activity on behalf of any labor organization.
ALICE B. HAZEN , C. P. JAEGER , HELEN RYMOND
IN HER OWN RIGHT AND AS EXECUTRIX OF THE
ESTATE OF H. W. RYMOND , C. E. GILMAN, AND
PATRICIA ' JAEGER DIBLEE, CO-PARTNERS, DO-
ING BUSINESS AS HAZEN & JAEGER. FUNERAL
HOME
Employer.
By ------------------------------------------------
. (Representative) (Title)
Dated ------------------------------------
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 and Recommended Order
STATEMENT OF THE CASE
Upon an amended charge duly filed by Licensed Embalmers ' Division of Ware-
housemen , Garage and Service Station Employees Local Union No. 334 , Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers,
A. F. of L ., Spokane, Washington , herein called the Union , the General Counsel
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the National Labor Relations Board" by the Regional Director for the Nine-
teenth Region (Seattle, Washington), issued an amended complaint dated
February 21, 1951, against Alice B. Hazen, C. P. Jaeger, Helen Rymond in her
own right and as executrix of the estate of H. W. Rymond, C. E. Gilman, and
Patricia Jaeger Diblee, co-partners, doing business as Hazen & Jaeger Funeral.
Home, Spokane, Washington, herein called the Respondents, alleging that the
Respondents had engaged in and were engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section.
2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act. Copies of the amended complaint and notice of hearing
thereon were duly served upon the Respondents and the Union, and copies of
the charges were duly served upon the Respondents.2
With respect to the unfair labor practices, the amended complaint, as further-
amended at the hearing, alleged in substance that : (1) On May 5, 1950, and
at all times thereafter, the Respondents refused to bargain collectively with the
Union as the exclusive representative of their employees in an appropriate unit,
although a majority of said employees had designated the Union to represent
them for such purposes ; (2) on May 22, 1950, the Respondents discharged Ellis-
P. Conboy, Earl W. Smith, John A. Poffenroth, and Milo W. Slind, and thereafter
refused to reinstate them, because of their union membership and activities;
and (3) on April 16, 1950, and thereafter, the Respondents (a) threatened the
employees with discharge and economic reprisal if they joined a labor organiza-
tion or engaged in concerted activities, (b) interrogated the employees concern-
ing organizational activity, and (c) effectuated unilateral changes in wages and
hours of work.
On February 27, 1951, the Respondents filed their answer to the amended.
complaint, admitting certain allegations concerning their business activities
and that they had refused to bargain collectively with the Union, but denying
.that they are subject to the jurisdiction of the Board and that they had engaged
in unfair labor practices. The answer alleges affirmatively that Conboy, Smith,
Poffenroth, and Slind were not discharged, but voluntarily terminated their-
employment, and that the Union was not designated by a majority of the em-
ployees in an appropriate unit to represent them..
Pursuant to notice, a hearing was held at Spokane, Washington, on March 5•
to 8, 1951, inclusive, before the undersigned Trial Examiner duly designated by
the Associate Chief Trial Examiner. The General Counsel, the Respondents,.
and the Union were represented by counsel, and all participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence pertinent to the issues was afforded all parties. At the open-
ing of the hearing, the Respondents made a motion,, in the nature of a motion
to dismiss on jurisdictional grounds, which was denied with leave to renew. At
the close of the General Counsel's case, the motion was renewed, and again
denied. At the close of the hearing, the General Counsel moved to conform the-
pleadings to the proof as to minor matters, and this motion was granted. He.
also moved to amend the amended complaint so as to correctly set forth the
1 The General Counsel and the attorney representing him at the hearing are referred:
to as the General Counsel. The National Labor Relations Board is referred to as the
Board.
2 On January 1, 1951, following the death of H. W. Rymond, the partnership was:
reorganized and enlarged. The partners listed above constitute the present partnership;.
and the amended complaint was further amended at the hearing to name each present
partner as a respondent. There is no issueconcerning notice of the proceeding to any'
partner.
HAZEN & JAEGER FUNERAL HOME 1041
names of all present partners as parties respondent, and the Respondents moved
that the answer to the amended complaint stand as the answer of all the partners.
These motions were granted. The Respondents renewed their motion to dismiss
the allegations of the amended complaint, and this motion was taken under
advisement. It is hereby denied. The parties did not avail themselves of an
opportunity to argue orally, but pursuant to leave granted the Respondents and
the Union 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 RESPONDENTS
The Respondents, who do business as Hazen & Jaeger Funeral Home, operate
a mortuary at Spokane, Washington. During the year 1949, the Respondents
furnished services and supplies valued at approximately $342,000 in connection
with the bodies of 1,238 deceased persons. Of this amount, $26,821 was received
in connection with 78 corpses which the Respondents shipped to points outside the
State of Washington! The sum of about $7,000 was received in connection with
67 corpses shipped to the Respondent from points outside the State of
Washington.
During 1950, the Respondents handled 1,085 corpses and received approxi-
mately $318,000 for services and supplies. Of this amount, the sum of $21,856
was received in connection with 53 corpses which were shipped by the Respond-
ents to points outside the State of Washington , 13 corpses which were transported-
to points outside the State in the Respondents' own vehicles, and 6 corpses
which were transported to out-of-State points by other morticians after embalm-
ing operations had been performed by the Respondents. In addition, the
Respondents received $3,480 for services and. supplies furnished in connection
with the cremation of 43 corpses, after which the cremains were shipped out of
State by the Respondents. Thirty-one of the 53 corpses had been shipped to the'
Respondents from points out of State for purposes of cremation. The Re-
spondents point out that by cremation a corpse is destroyed and that the
containers in which cremains are shipped are of minute monetary value. The
Respondents argue, therefore, that the figure of $3,480 should not be added to,
the figure of $21,856 to reach the Board's jurisdictional standard of $25,000.4
O The figure of $26 ,821 is in excess of the jurisdictional standard announced by the
Board , in Stanislaus Implement and Hardware Company, Limited , 91 NLRB 618. The
Respondents assert, however , that 1949 was not a representative year and that the figure
should not be considered . The record does not contain monetary figures concerning the
Respondents ' business in any year earlier than 1949 , although it does disclose that
during 1948 the Respondents furnished services and supplies in connection with 1,067
corpses , a number which is slightly less than the number . for 1950 , discussed below. The
Respondents ' purchases of supplies which originated out of State will not be discussed
since they are substantially below the standards announced in Federal Dairy Co., Inc.,
91 NLRB 638, and Dorn's House of Miracles , Inc., 91 NLRB 632.
4 In connection with their shipments to points out of State during 1950 , the Respondents
expended approximately $1,600 for such items as taxes , the services of ministers and
musicians , and transportation costs . The portion of this figure which was devoted to
transportation costs was first received by the Respondents from clients for the purpose
of defraying those costs , and was later expended by the Respondents accordingly. The
remainder of the figure was advanced by the Respondents for the uses mentioned, and
the Respondents thereafter were reimbursed. While it may be said that a portion of
the services rendered by the Respondents to their clients was to arrange transportation
and other details of funerals, I believe that the $1,600 really represents expenditures for
the services of persons and carriers other than the Respondents , and should not be con-
sidered in determining the jurisdictional issue.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board recently exercised its jurisdiction over a mortuary. Riverside
Memorial Chapel, Ine., 92 NLRB 1594.° I find that the Respondents are engaged
in commerce. The question, however, is whether they are,engaged therein to
such an extent as to warrant assertion of the Board's jurisdiction under its
present policies. In the Riverside Memorial case, the Board took into consider-
ation not only the value of the containers in which the remains of deceased
persons were shipped across State lines by the employer, but the total value
of all the employer's services and supplies in connection with the shipment,
and preparation for shipment, of such remains. The 43 instances of cremation
are a part of the interstate aspects of the Respondents' business, and the value
of the. Respondents' services and supplies in connection therewith are properly
to be considered as an addition to the figure of $21,856. Thus, the Board's
jurisdictional standard is reached .0
In addition to their business with private clients, the Respondents are under
contract to furnish services and supplies to certain military establishments.
Another jurisdictional question is whether, in view of this phase of the Respond-
ents' operations, it would effectuate the purposes of the Act to exercise jurisdic-
tion herein. Prior to July 1950, the Respondents were under contract with
Spokane Air Force Base. During August 1950, a new contract was executed
for the period ending July 1, 1951, under which the Respondents were given
the exclusive right to furnish services and supplies in connection with the corpses
of deceased military personnel at Spokane Air Force Base ; Naval Air Station
at Geiger Field, Spokane ; Naval Supply Depot, Veelox, Washington ; and Air
National Guard of the United States, Geiger Field. The contract provides
for a number of corpses to be handled by the Respondents at stipulated prices
for each aspect of the Respondents' operations, with a total contract price of
$3,326.44. The contract is based upon an estimated number of deaths, and the
Respondents are compensated only to the extent that services and supplies
are actually rendered. At the time of the hearing, the contract was still in
Effect.. If, before its expiration date, the compensation to the Respondents
reaches the total contract price, the contract terminates and the contracting
branch of the Government is free thereafter to utilize the services of the Re-
spondents' competitors. During the year 1950, under the earlier and the
existing contracts, the Respondents furnished services and supplies for which
they were compensated in the sum of approximately $2,500, about $1,000 of which
is included within the $21,856 figure above. The Respondents argue that their
operations under the contracts do not have such relationship to the national
defense effort as to warrant the assertion of the Board's jurisdiction.' While
$ In that case jurisdiction was based not alone upon the fact that the employer was
engaged in commerce , but also on the fact that the employer was an integral part of a
multistate enterprise.
6 The Respondents seek to distinguish the Riverside Memorial case by pointing out
inter alia that their business is substantially local; that they are not a part of a multi-
state enterprise; and that Spokane is not a health or resort city as is Miami, Florida,
the location of the employer in the Riverside Memorial case. This argument is more
properly to be addressed to the Board, rather than to the Trial Examiner, since the
jurisdictional standard has been reached. The Respondents. also argue that their unfair
labor practices had no effect upon commerce. It is well settled, however, that the "Board
need not prove an actual stoppage in the flow of comnrerce or even the immediate likelihood
of such stoppage before It assumes jurisdiction . ," N. L. R. B. v. Phoenix Mutual Life
Ins. Co. 167 F. 2d 983 (C. A. 7) certiorari denied 335 U. S. 845.
' The only cases involving the national defense doctrine announced by the Board in
Westport Movinq and Storage Company, 91 NLRB 902, so far as I am aware, are that case
and Richland Laundry Dry Cleaners, 93 NLRB 680. The latter case, involving an
employer licensed to do business on an atomic energy reservation, is clearly distinguishable
and is inapplicable. The former case involved a manufacturer of boxes, under contracts
HAZEN & JAEGER FUNERAL HOME 1043
those operations, from a monetary standpoint, are relatively small ; I believe
that the contractual relationship, including the provision which gives to the
Respondents the exclusive right to perform operations essential to military
establishments, coupled with the interstate aspects of the Respondents' busi-
ness above described, warrants the assertion of the Board's jurisdiction. I
find that the Respondents are engaged in commerce and that it will effectuate
the policies of the Act to assert jurisdiction herein.8
II. THE LABOR ORGANIZATION INVOLVED
Licensed. Embalmers' Division of Warehousemen, Garage and Service Sta-
tion Employees Local Union No. 334, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers, A. F. of L., is a labor organization ad-
witting to membership employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
During April 1950, an effort was made to organize the licensed embalmers
and apprentice embalmers in Spokane and to achieve a charter as a Federal
labor union from the American Federation of Labor. As will be related, the
charter was not secured.
On April 16, H. W. Rymond, one of the members of the partnership as it was
then constituted, called a meeting of employees! Rymond said to them that
he wished to talk about an organizational meeting which had been scheduled
for the following day, and suggested that if the employees organized they should
form a "local union" and not be associated with a Federal labor union in Seattle,
which represents embalmers and apprentice embalmers in the western area of
the State. Rymond said also that if the employees organized they would lose
certain life insurance and health and accident policies carried for them by the
Respondents; as well as bonuses, and that the privilege of leaving work for
such purposes as having coffee and obtaining, haircuts would be terminated. 10
with Fifth Army Headquarters, for the shipment of personal effects of military personnel
to overseas points. The decision does not disclose the monetary figures set, forth in the
contracts, although It indicates that the value of the boxes manufactured. in 1949 was
very small, and that there was a sizeable increase in the number of boxes manufactured
under a contract executed in May 1950.
s In their brief, the Respondents argue that the Interstate Commerce Commission has
held several times that mortuaries are not engaged in commerce, and that, as intrastate
businesses , they also are outside the scope of the Fair Labor Standards Act. A like
argument has been considered and rejected by the Board in other cases.. Plumbing
Contractors Association, etc., 93 NLRB 1081; Phoenix Mutual Life Ins. Co., 73
NLRB 1463, 1471.
0 On September 14, 1950, Rymond died. The testimony concerning Rymond's remarks
to employees on this and later occasions was received over the Respondents' objections.
The Respondents rely upon Remington's Revised Statutes of the State of Washington,
Section 1211, which, under certain circumstances, makes inadmissible as evidence in courts
of that State testimony .attributing statements to a deceased person. The General
Counsel and the Union, taking a contrary position, rely upon Quarles Manufacturing
Company, 83 . NLRB 697, and The Linde Air Products Company, 86. NLRB 1333, and
contend that the evidence was admissible wifhout limitation, and that, in any event, upon
authorities cited in the Union's brief, the evidence was admissible against all partners
other than Rymond's widow as executrix of his estate. The evidence was received
without (imitation: It has been subjected to close, scrutiny. by me, and in each instance
where it forms the basis of a finding of fact my reasons. for accepting it appear.
10 These findings are based upon the reliable and uncontradicted testimony of Earl Smith,
Ellis Conboy, and Milo Slind, employees whose terminations of employment are discussed
.below . The Respondents were not without means; to contradict this testimony if they
961974-52-vol.95-67 ;
1044 DECISIONS,:OF NATIONAL LABOR RELATIONS BOARD
On April 17,. the organizational meeting. was held. It was attended by a
number of employees of the various mortuaries.
On April 18, Rymond and two other partners, C. P. Jaeger and C. E. Gilman,
called another meeting of employees. Rymond asked what had occurred at
the organizational meeting, and Smith answered that there had been a majority
vote to form a union and that all the Respondents' employees in attendance had
"signed up." Rymond said,,:"So that is the way it is," and the meeting ended.'1
Gilman testified, and I find, that within a few days after April 18, three em-
ployees came to one or more of the partners and expressed desires to withdraw
from the labor organization which was being formed. The Respondents, con-
cede, and I find, that on April 20 a letter of withdrawal on behalf of Jesse Thomas,
and on April 22 similar letters on behalf of John Egan and June Bastian, were
prepared on the Respondents' premises with their approval.
On May 1, the effort to secure a charter as a federal labor union was aban-
doned, and the organizational scope of the Union which is the charging party
here was enlarged by creating a Licensed Embalmers Division. The employees
of the several funeral homes who had retained their interest in the organizational
effort voted to affiliate with the Union. . Four of the Respondents' employees
joined it.
About May 3, the Union submitted proposed contracts to the Respondents and
other local funeral homes. On May 5, six funeral homes, including the Re-
spondents', wrote to the Union, expressing the view that unionization was out
of place in their business, and refusing to bargain collectively.
At that time of the year, the periods for annual vacations were approaching.
Conboy was scheduled to begin his vacation on May 8. Several days prior thereto,
Rymond told Conboy to "hold off" on his vacation until the "union issue was
settled." The next day, Conboy reported to Smith, Thomas, and Wilson: as,well
as to other employees whose names he could not recall, that vacations were not
to be taken until the matter was settled. - On May 8, Smith spoke with Rymond,
relating his conversation with Conboy and asking whether the employees were
going to receive vacations. Rymond answered that vacations were being post-
poned "until the questions concerning the union were settled." 12
regarded it as unreliable. Although Rymond was the only partner present at the time
of his remarks , the three witnesses testified that one or more of the following employees
were present: Jesse Thomas, Orville Wilson, Peter Robold, and John Egan. These four
persons were still employed by the Respondents at the time of the hearing and, so far as
the record shows, none of them is a member of the Union. The Respondents did not call
any of them as a witness, however. Under these circumstances, coupled with the con-
vincing nature of the testimony and the fact that the statements attributed to.,Rymond
are consistent with later statements by him and conduct by the Respondents; as found
below, I find that he made those statements to the employees.
"The findings concerning the meeting of April 18 are. based upon the testimony of
Smith, Slind, and John Poffenroth, all witnesses for the General Counsel. Gilman, a
partner, testified that he recalled "a discussion" in which the employees "were asked if
they wanted to say what happened" at the organizational meeting that he thought Smith
had answered that they did not "care to talk about it," that he received information
that all of the Respondents' employees who had attended the organizational meeting had
"signed up," but that he did not remember whether lie received this information at the
meeting with employees on April 18. Jaeger, another partner, was a witness for the
Respondents, but did not testify concerning that meeting, and the Respondents did not
call as witnesses employees who had attended
i The findings concerning Conboy's conversation with Rymond and his report to the
employees are based upon Conboy's testimony. The findings concerning Smith's xbnversa-
tion with Rymbnd are based upon Smith's testimony. Conboy did not' take his vacation
as scheduled, his employment having been terminated 2 weeks later, is discussed ' below
Thereafter, he asked the Respondentsfor compensation for the vacation period and it igas
given to' him. The Respondents offered no evidence that Conboy's vacation had been
HAZEN.'& `JAEGER FUNERAL-,HOME 1045
Conboy worked the night shift. During the night of May 7, he was told by
Rymond' that there would be a Meeting of employees the next morning and that
he should remain on the premises to attend it. Slind, whose weekly day off
fell on May 8, received a telephone call from one of. the Respondents to be
present. May 8 was a payday. When the employees were assembled, in the
presence of Rymond, Jaeger, and. Gilman, they were given their pay checks.,
Smith, Conboy, Blind, and P,offenroth; the four employees .who had joined the
Union' on May 1, were given their respective checks, each enclosed in an envelope
with a copy of the letter from the funeral home to the Union in which they re-
fused to bargain. Thereafter checks-were distributed to.other employees, butt'
were unaccompanied by copies -of the letter."
On May 19, at a union meeting,.. the Respondents' employees who were mem-
bers agreed to strike and to picket the Respondents if there was a continued,
refusal to bargain. On the same day, the Union began to picket the Thornhill-
Carey Funeral Home, herein called Thornhill-Carey, which adjoins the Respond-
ent's premises." On May 20, the six funeral homes which had refused to bargain
wrote to the Union, calling attention to the picketing and advising "that inter-
ference with a dead body or a funeral is a. violation of both the criminal and:
civil law of the State of Washington." The letter also said that the funeral
homes would hold the Union and its members "directly responsible for any,;
damages suffered " by them "as a result of violation of these laws." The laws:
cited by the employers in that communication are referred to below.
Conboy, who worked the night shift, spent a portion of his nonworking hours,
on May 20 on the picket line at Thornhill-Carey. -It was arranged that Smith.
should relieve Conboy, and Smith asked Gilman for permission to cease work
early that day. Gilman replied that Smith would be given such permission
upon condition that he not relieveConboy. Smith did not relieve him.16 That
evening , while Conboy was at work, in the presence of Gilman and Jaeger,.
Rymond gave Conboy a copy of the letter of May 20 to the Union and said°tthat:
Conboy would be discharged if he picketed again . On May 21, a Sunday , Thorn-
hill-Carey was not picketed. On that day, Rymond showed a copy of the letter
to Poffenroth , saying that he too would be discharged if he engaged in picketing.
Rymond also telephoned Blind at the latter's home, read the letter to Blind,
pointed out that Blind was not scheduled to work the next day , and said that
Blind would be discharged if he picketed.10
postponed for any reason other than as related by him, nor did the Respondents call any
witnesses . to testify that vacations had not been-postponed . Under these circumstances,
I believe that the testimony of Conboy and Smith is to be credited.
13 There is no dispute that copies of the letter were , given to the four named employees-.
The General Counsel contends , with supporting evidence , that only those four employees
received copies of the letter . The Respondents , disputing this contention , failed to ca1L
any other employee as a witness to testify concerning whether he received a copy of the
letter. I find that , only those employees received copies.
14 Thornhill-Carey is one of the funeral homes which refused to bargain collectively with
the Union . The General Counsel asserted in his opening statement that the picketing.
of this employer was because of its refusal to bargain . On the other hand, counsel for
the Respondents , in his opening statement, asserted that the picketing of Thornhill-Carey
was because of the discharge of Harvey Lanz , an ambulance driver for that employer.
Thornhill-Carey is not a party to this proceeding and the evidence does not establish
the cause of the picketing.
v This finding is based upon the testimony of Smith . Gilman testified that he also-
told other employees that they would not be permitted to leave work if they intended
to.pic$et..:...
ie The findings concerning the threats - by,Rymond to discharge employees for picketin-
are based upon the testimony of the employees . With respect to Conboy, the threat wasp
made in the presence of Gilman and Jaeger . Gilman testified that the employees were
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 22, picketing of Thornhill-Carey was resumed, and Conboy partici-
pated. Also on that day, Ray R. Atkinson and Ben Kuttner, representatives. of
the Union, called upon Jaeger. They asked that the Respondents bargain col-
lectively, but Jaeger refused with the statement that the funeral homes had
agreed not to bargain. Atkinson told Jaeger that he had heard that the Respond-
ents would discharge any of their employees who picketed Thornhill-Carey, and
asked if the report were true. Jaeger' confirmed it. Atkinson told Jaeger that
the Respondents' position made it necessary that the Respondents themselves be
picketed, and the conversation ended 1T Picketing of the Respondents' premises
began promptly. Smith and Poffenroth, who were at work, left the premises
under circumstances which the General Counsel and the Union contend were
discharges. Conboy and Slind did not work that day or thereafter. The facts
and issues respecting the terminations of employment of these four individuals
are discussed below.
On May 22, the day when picketing of the Respondents began, the Union wrote
to them in response to the letter of May 20, saying that the pickets had been
instructed not to interfere, and were not interfering, with funerals. The Union
reiterated its request that the Respondents bargain collectively. There does not
appear to have been an answer to this communication. The picketing lapsed
during June or July, and was later resumed. It ceased during August.
B. Interference, restraint, and coercion
I find that the following conduct of the Respondents was violative of Section
8' (it) (1) of the Act: First, Rymond's threats to the employees that if they
organized they would lose certain life insurance and health and accident policies
carried for them by the Respondents, as well as bonuses and the privilege of
occasionally leaving work to attend to personal wants. Bochner et al., d/b/a
B & Z Hosiery Products Co., 85 NLRB 633, enforced 180 F. 2d 1021 (C. A. 3),
25 LRRM 2529; Wytheville Knitting Mills, Inc., 78 NLRB 640, enforced as modi-
fied 175 F. 2d 238 (C. A. 3), 24 LRRM 2108; Brown & Root, Inc., et at., 86 NLRB
520. Second, the refusal to effectuate the vacation schedule until the. "union
issue was settled." Linde Air Products Company, supra. Third, the inquiries
of employees concerning events at the organizational meeting. New Jersey Carpet
Mills, Inc., 92 NLRB 604; Standard-Coosa-Thatcher Company, 85 NLRB 1358.
Fourth, the preparation, on behalf of Egan and Bastian, of the letters of with-
drawal from the organizational effort. Magnolia Cotton Mill Co., Inc.,, 79
NLRB 91.
not threatened with discharge, but "were cautioned not to do any picketing" because of the
legal contentions embodied in the letter to the Union. Jaeger did not testify concerning
the conversation, but his testimony relating to a conversation with representatives of
the Union on May 22, set out in the next footnote, does not tend to dispute Conboy's
testimony. With respect to Poffenroth, he testified that Bastian, an employee, was present
when Rymond made the threat. Bastian was not called as a witness. With respect to
Slind, Gilman confirmed that the letter was read to Slind over the. telephone by Rymond,
but Gilman testified that he did not hear what Rymond said.
11 The findings concerning this conversation are based upon the testimony of Atkinson
and Buttner. For the Respondents , Jaeger testified that the Union 's representatives
sought a "compromise," that he did not know of anything to compromise, and that he
"couldn' t afford to have our men picketing our neighbors next door." He also testified
that his recollection concerning the remainder of the conversation was not good, but that
they "ta ' ked in generalities about the boys walking out," although "at that time, they
had not walked out." Jaeger's testimony does not furnish a reasonable basis for rejecting
the clear and convincing testimony of Atkinson and KuttneF.
HAZEN & JAEGER FUNERAL HOME 1047
With respect to Rymond's statements to the employees that they would be
discharged if they engaged in picketing, consideration must be given to the
letter of May 20 from the various funeral homes to. the Union, citing a State
--statute and a State Court opinion as applicable to, the picketing of Thornhill-
Carey. As related, copies of the letter were. shown or read to employees by
Rymond. The Respondents argue in their brief that the letter .
amounted to the establishment of a rule by Respondent that its employees
should not engage in picketing activities at the neighboring Thornhill Funeral
i Home. In view of the statute and decision of the Supreme Court of the State
of Washington, this was a reasonable rule and a breach of it by the employees
amounted to engaging in illegal acts which would bar them from any right
to reinstatement.
The statute referred to, cited as Remington's. Revised Statutes of the State of
Washington, Section 2492, is entitled "Interfering With a Dead Body or Funeral,"
and reads as follows :
Every person who shall arrest or attach the dead body of a human being
upon a debt or demand, or shall detain or claim to detain it for any debt
or demand, or upon any pretended lien or charge, or who, without authority
of law, shall obstruct or detain a person engaged in carrying or accompanying
the dead body of a human 'being to a place of burial or cremation, shall be
guilty of a misdemeanor.
The case referred to, Gadbury v. Bleitz, 133 Wash. 134, 233 P. 299, involved a.
successful suit by a relative of a deceased person against a funeral home to,
recover damages for mental suffering occasioned by the refusal of the funeral
home to cremate a body which the funeral home had been paid to cremate. The
refusal was founded in an effort of the funeral home to collect from the plaintiff
the cost of a funeral for another deceased person some time previously.
,The General Counsel and the Union argue that the statute and decision are
inapplicable to picketing, and in its brief the Union cites State authorities in
pupport of its contention that the picketing was authorized by State law. The
Union,-also points out that there is no evidence that the-picketing resulted in.
the obstruction of a funeral, cremation, or burial. In my judgment, it is unneces-
sary to consider the authorities cited by the Union and to decide the question
whether the picketing contravened State law. It may be assumed arguendo that
the statute and decision cited by the Respondents were applicable to the picketing.
That assumption brings the statute and decision into sharp conflict with the Act,
which guarantees to the Respondents' employees the right to engage in concerted
activities, including peaceful picketing for objects not prohibited therein. The
Act is paramount, and conflicting local authorities must yield to it. Amalgamated
Association, etc. v. Wisconsin Employment Relations Board, 340 U. S. 383, 71 S. Ct.
359, 27 LRRM 2385; N. L. R. B. v. Kalamazoo Stationery Company, 160 F. 2d 465
(C. A. 6), 19 LRRM 2554, certiorari denied 332 U. S. 762. Accordingly, I find
that the Respondents, by establishing the rule prohibiting picketing, and by threat-
ening employees with discharge if they picketed, violated' Section 8 (a) (1) of
the Act.
C. The refusal to bargain
1. The appropriate unit
The complaint, as amended at the hearing, alleges that the appropriate unit
consists of all licensed embalmers and registered embalmers' apprentices employed
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondents, excluding office and clerical employees, guards, professional
employees, supervisory employees as defined in the Act, and all other employees.
Thus, the allegation is that the unit consists of licensed embalmers and registered
embalmers' apprentices. The issues are two : (1) whether apprentices should
be included in a unit with embalmers, and (2) whether certain employees were
within the unit at times material.
The duties of an embalmer are to prepare the remains of a deceased human
being for burial or other disposition. By State statute, to practice embalming
one must be licensed, the requirements for which include a particular educational
background, an apprenticeship, and passing an examination. Apprentice em-
balmers must be registered with the State, and their duties are to assist em-
balmers, under whose direction they work. Both categories of employees, in the
.Respondents' business, also perform certain functions in the conduct of funerals.
,The Respondents assert that the embalmers are professional employees within
the meaning of Section 2 (12) of the Act, that the apprentices are not professional
employees, and that under the proviso to Section 9 (b) the embalmers may not be
included in a unit with the apprentices. In the Riverside Memorial case, supra,
the Board held that embalmers in the State of Florida are not professional
employees within the meaning of said section. Contrary to the Respondents'
contention, I do not believe that the differences in the statutory requirements for
licensing as an embalmer are such as to warrant not applying the Riverside
'enaorial determination here. I find that the embalmers are not professional
employees.
In employing apprentices, the Respondents seek to select individuals who
possess the qualifications and intend to become embalmers as a life work. The
apprentices, in assisting the embalmers, work closely with and under the
:direction of the latter. The Respondents' rate of pay for newly hired embalmers
is $60 weekly, with the rate being higher after satisfactory periods of service.
The compensation for apprentices, some of which is received from the United
States Government in the instances of veterans, ranges upward to between $50
.and $60 weekly. I find that there is a sufficient community of interest among
categories within a single unit.
The next question is whether four individuals should be excluded from
the unit. The General Counsel and the Union seek the exclusion of three ;
the Respondents of one. At times material, the Respondents employed six
licensed embalmers, one person who allegedly performed embalming functions
;although not licensed, and two apprentices.
Thomas was the head embalmer, and the issue concerning him is whether
he should be excluded as a supervisor. Smith testified, and I find, that at the
time of his employment as an embalmer, Rymond introduced Thomas to him
as the head embalmer, saying also that Smith would be responsible to Thomas
in the performance of his duties. Smith also testified that Egan was present.
Conboy testified, and I find , that at the time of his employment as an embalmer,
.Rymond said to him, in the presence of Jaeger that Thomas was "in charge"
of the embalmers and that Thomas "would check" Conboy's work. Conboy
-worked at night. He testified further, and I find, that Thomas told him of
instances in which embalming operations had not been completed by embalmers
who worked daytime hours and that he should complete the operations at night,
and that he did so after being advised by the embalmers themselves of what
remained to be ' done in each instance. Conboy also testified, and I "find, that
the embalmers and apprentice embalmers to warrant the inclusion of both
HAZEN & JAEGER FUNERAL HOME 1049
on mornings following his night work, Thomas examined it to ascertain whether
it had been performed properly.18
Poffenroth, an apprentice, testified, and I find, that- Thomas told him which
embalmers he should assist and gave him assignments . Smith testified, and
I find, that when he was employed Thomas explained to him the embalming
methods used by the Respondents, and that on three occasions Thomas took
him''-into the private office of a partner, Gilman, and constructively criticized
his work. Smith also testified, and I find, that Thomas made assignments
of work to him 79 Thomas, as head embalmer, was given the initial choice in
selecting a vacation period each year, while the remaining embalmers made
choices in the order of seniority. Thomas' rate of compensation at times mate-
rial exceeded that of all other embalmers by $5 to $15 per week, and the
Respondents' explanation for the added compensation is that Thomas worked
longer hours than others, particularly by working on the one day a week when
he was not required to work. Thomas, not a witness, did not testify concerning
his duties or the basis for his added compensation. He made an inquiry of
Smith which indicates, however, that the added compensation was in connec-
tion with his position as head embalmer. Thus, at the time of the initial
organizational meeting, Thomas asked Smith whether his position as head
embalmer with the added compensation made him ineligible for membership
in the Federal labor union which the employees were seeking to form. The
-record;-;does not disclose Smith's reply, and since Thomas withdrew from the
organizational effort on April 20, as above related, the question of his eligibility
was never squarely posed. It does not appear that the Union sought to repre-
sent him in its efforts to bargain collectively. Thomas' inquiry of Smith is
significant , however, in that it demonstrates his own estimate of himself as a
supervisor.
Gilman testified that Thomas did not have authority to hire or discharge,
to _transfer or Suspend, or to lay off, recall or promote, an employee. It is
clear, however, that he made work assignments for embalmers and apprentices,
supervised them in their work, and was authorized to confer with the Respond=
ents concerning the quality of an. individual's work and whether -the individual
should be retained as an employee. I find that Thomas is a supervisor within
the meaning of the Act and that he should .be excluded from the appropriate
unit. '
18 The testimony of Smith and Conhoy is uncontradicted . Thomas was not in Spokane
at the time of the hearing, but the Respondents did not move for an adjournment until
his return . Jaeger, although a witness , did not dispute Conboy's testimony , and Egan
was not called as a witness to testify concerning Thomas' introduction to Smith. For
the Respondents , Gilman testified that although Thomas was "head embalmer ," he had
"no authority whatsoever ,". and that the reason employees were told to take questions to
Thomas was that he had been employed by the Respondents longer than some other
emba1thth*. -Gilman also testified, however, that Thomas, who was employed in 1946,
was given "probably a little more authority" than other embalmers because of his length
of service. Slind was employed in 1941 and there is no evidence that he possessed
authority as did Thomas.
39 Gilman testified for the Respondents that the work assignments were made by one
or more partners , and that "many times" the assignments were posted on a blackboard
for the attention of the employees. Gilman testified further that on occasions when
Thomas wished to speak with employees whom be had observed "doing something wrong,
he would come to us [Respondents] first, and then if he thought the man was not
satisfactory , he would come and tell us . That was not only his privilege , but everybody
bad that privilege ; every embalmer." It does not appear , however, that the "privilege"
of observing and criticizing the work of associates , and reporting to the Respondents that
an associate was incapable , was exercised by other embalmers.
1050 DECISIONStOF NATIONAL LABOR RELATIONS BOARD
With respect to Conboy, the Respondents contend that he exercised as much
supervisory authority as Thomas, and that if one should be excluded from the
unit, so should the other. As related, Conboy worked at night, and apparently
was the only embalmer on the night shift. As such, he had the responsibility
of seeing that night work was performed properly, which included calling upon
others for aid if needed. In performing certain functions, such as calling at
a place of death to receive a body,,Conboy, was assisted by an apprentice or a
hearse driver, and Conboy was in charge. I do not believe, however, that Con-
boy's direction of an apprentice or driver in such circumstances warrants a
conclusion that he was a supervisor within the meaning of the Act. His work
was largely embalming, in which the driver did not participate. His subordinate
position to Thomas is demonstrated ' by the fact that Thomas inspected his
work. I find that Conboy should be included within the unit.
We turn next to Orville Wilson, who was not licensed as an embalmer or reg-
istered as an apprentice in the State of Washington during times material.'°
Wilson worked for the Respondents during 1938 to 1942, and during one or more
of those years he appears to have been registered as an apprentice. With his
entry into the armed forces; his registration lapsed. He returned to the Respond-
ents' employ during 1948, but did not renew his apprentice registration. He
endeavored instead to obtain a license as an embalmer, but the effort was unsuc-
cessful and was discontinued. He became licensed, as a funeral director, how-
ever. The question is whether Wilson should be counted as having been within
the unit because of embalming functions which the Respondents allege that he
performed."
The General Counsel contends that Wilson did not perform embalming oper-
ations at times material and that, in any event, in determining the appropriate
unit, effect should be given to the State's regulation of embalmments. The
statutory requirement of a license to engage in embalming was not met by
Wilson. Moreover, during and after 1948, he was not qualified by those regu-
lations even to be present at embalmments. The Rules and Regulations of the
Department of Licenses, State of Washington, provide, inter alia:
2. Restriction to Presence of Authorized. Persons During Actual Embalm-
ing
The care and preparation for burial or other disposition of all human
dead bodies shall be strictly private and no one shall be allowed in the
embalming room while a dead body is being embalmed, except the licensed
embalmers and their duly 'registered apprentices, and . . . [certain excep
tions not here material]
Gilman testified that after Wilson's return to the Respondents' employ in
1948, he engaged in embalming and also was given certain office duties which
are not performed by embalmers. According to Gilman, after 1948 the.Respond-
ents "gradually tried to place him [Wilson] "more in the funeral directing part"
of their business. With the death of Rymond in September 1950, and Wilson's
acquisition of 'a funeral director's license during that month, Gilman testified
. 20 Since 19-'6, Wilson has had a license issued by the State of Oregon which Is equivalent
to that of both an embalmer and funeral director:
21 During September 1950, Wilson was licensed by the State of Washington as a funeral
director. The Respondents' licensed embalmers are licensed also as funeral directors.
,There is no contention here, however , that Wilson should be included within the unit as a
funeral director, in which . capacity he received his license after the refusal to bargain,
or because of his other nonembalming functions. The unit is limited to embalmers and
apprentices , and no party seeks to enlarge it. Cf. the Riverside Memorial case, Where the
unit contained an embalmer and funeral director , apprentices, and ambulance men.
HAZEN & JAEGER FUNERAL HOME 1051
that Wilson thereafter devoted himself entirely to office matters and funeral
directing. Gilman could not relate the extent to which Wilson allegedly had
been permitted to engage in embalming notwithstanding the State' s require-
ments. His testimony is that Wilson performed embalming operations under
the supervision of a licensed embalmer, but he could not recall whether the
occasions were "substantial" or "rare." Gilman "imagined" that Wilson per-
formed those operations during May 1950, in which ` month the Respondents
refused to bargain. Wilson was not a witness.
I do not believe that Wilson should be considered as having been within the
dlargaining unit. The proposed contract which was submitted by the Union to
the Respondents covered only licensed embalmers and registered apprentices.
Wilson, being neither, was outside the scope of the contract. The extent to
which Wilson engaged in embalming during times material is not disclosed in
the record, but it. is clear that he was at most a part-time embalmer. For these
reasons, coupled with the State's requirements concerning embalmments, Wilson
will be excluded from the unit
The final employee about whose inclusion within the unit we have an issue is
Robert Forsythe, a licensed embalmer. Forsythe was employed by the Respond-
ents on May 1, 1950, 5 days before the initial refusal to bargain. He was
discharged during July 1950. The issue concerning Forsythe is whether he was
outside the unit as a temporary employee. The General Counsel's position is
that Forsythe was employed on a temporary basis, and the Respondents' position
is to the contrary. Since Forsythe is no longer employed by the Respondents, the
issue was litigated only because of the possible effect of Forsythe's inclusion
within the unit upon the Union's claimed majority status. However, with the
exclusion of Thomas and Wilson, the majority status is clear, as found below,
and the issue concerning Forsythe becomes moot. It will be disposed of in the
footnote "
$' The amended complaint alleged originally that the appropriate unit consisted of' "All
embalmers and embalmers ' apprentices .. . 11 During the presentation of the General
'Counsel's case, he moved to amend the allegation to read : "All licensed embalmers and
registered embalmers ' apprentices ..." (Emphasis added. ) The Respondents objected,
but the motion was granted . Cf. N. L. it . B. v. Chicago Apparatus Company , 116 F. 2d 753
(C. A. 7), 7 LRRM 498. I believe that the State 's requirements are properly to be
given weight in deciding the Issue involving Wilson and in determining the confines of
the appropriate unit. This Is not an instance where a State 's requirements are. in
derogation of employees ' rights guaranteed by the Act. As an employee , Wilson has the
_.,4igbt to -engage in concerted activities and to be represented by a labor organization
in collective bargaining . But, as related in the footnote last preceding ,'the Respondents
do not seek to enlarge the unit so as to include Wilson because of his duties in any
capacity other than as an embalmer . In my judgment, in deciding that the appropriate
unit be confined to licensed embalmers and registered apprentices , it is appropriate that
weight be given to the requirements of the State , which have their basis in considerations
of.heulth and sanitation and which do not infringe upon the rights of employees guaranteed
by tse Act.
-3 Forsythe was not a witness, and his whereabouts at the time of the beating was
pnknown ,tothe parties . There is no testimony concerning the circumstances of Forsythe's
,employment except that of Gilman for the Respondents . Gilman testified that the
business outlook on May 1 warranted the employment of an additional licensed embalmer
on a permanent basis , that Forsythe was hired on that basis , and that he was discharged
because he proved unsatisfactory . The record contains figures showing the number of
corpses Dandled by the Respondents during a period of several months which include the
tenure of Forsythe's employment . On the other hand, , the General Counsel ' asserts'that
Foray-the -was - hired to work during' the summer vacation season and that on May 22,
when the' 'employment of three licensed embalmers was terminated , Forsythe was 'made
n'"permanent ' employee and continued in such category until his discharge . In support
of"this ' contention, the General Counsel points out that after May' 22 the Respondents
hired only one licensed embalmer to replace the three whose employment was terminated.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that the licensed embalmers and registered embalmers' apprentices em-
ployed by the Respondents, excluding office and clerical employees, guards, pro-
fessional employees, supervisory employees as defined in the Act, and all other
employees, constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
2. The Union's majority status and the refusal to bargain
The Respondents' initial refusal to bargain, which is not disputed, occurred
on May 5 as above described. It is also undisputed that at times material, Smith,
Conboy, and Slind, licensed embalmers; and Poffenroth, an apprentice, had desig-
nated the Union to represent them. In addition to those employees, there were
within the unit on May 5 the following : Egan and Forsythe, licensed embalmers,
and Bastian, registered apprentice. Thus, the Union represented four of seven
and its majority status is established.
In addition to the Respondents' refusal to bargain on May 5, it is also clear
that Jaeger refused to bargain on May 22 when he was visited by Atkinson and
Buttner. At an undisclosed date thereafter, without consultation with the Union,
the Respondents raised the salaries of the licensed embalmers. The Respondents
also altered the hours in which their establishment is open for business, but it
is unclear in what manner, if any, the difference in business hours had an effect
upon the hours of work of the employees within the appropriate unit.
I find that,on May 5, 1950, and at all times thereafter, the Union was the-duly
designated representative of a majority of the employees in the appropriate unit
and, pursuant to Section 9 (a) of the Act, was the exclusive representative of
all employees in such unit for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, and other conditions of employment.
I find further that on May 5, 1950, and thereafter, particularly on May 22 and
on the undisclosed date when the salaries of licensed embalmers were elevated,
the. Respondents refused to bargain collectively with the Union as the exclusive
representative of their employees in an appropriate unit, and that the Respondents
have thereby interfered with, restrained, and coerced, and are interfering with,
restraining, and coercing their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
D. The discharges
The principal question to be determined here is whether Smith, Conboy,
-Slind, and Poffenroth were discharged on May 22 or went on strike that : day
and did not later apply for reinstatement. As related, on May 19, at a union
meeting, the employees agreed to strike and to picket the Respondents if there
was a continued refusal to bargain. It does not appear, however, that this
agreement was communicated to the Respondents. On May 20, the six funeral
homes wrote to the Union concerning the alleged violation of State law by the
picketing of Thornhill-Carey. On that and the following day the Respondents
brought the letter to the attention of Conboy, Slind, and Poffenroth with the
.statement that they would be discharged if they picketed Thornhill-Carey, and
-and he argues that there was not enough business on May 1, when Forsythe was hired,
to warrant the employment of another embalmer on a permanent basis. Under the
.circumstances , the evidence need not be detailed .. It suffices to say that , absent testimony
by Forsythe or someone having knowledge of the circumstances of his employment, to
dispute the testimony of Gilman that he was hired on a permanent basis, I do not believe
that the record will support a finding that he was a temporary employee at the time
of the refusal to bargain . Accordingly , he will be counted within the appropriate unit.
HAZEN & JAEGER FUNERAL HOME' 1053
on May 22 Jaeger told Atkinson and Buttner that the. employees would be.
discharged if they did so.
On May 22, when picketing of, the Respondents. commenced; Smith and Pof-
fenroth were at work. They left after learning. of the picketing. Slind was
enjoying a day off from work, and participated,4n.,picketing the Respondents.
Conboy, the night embalmer, was on the picket line at Thornhill-Carey during
his nonworking hours. The General Counsel contends that, whatever intention
the employees had to strike if the refusal to bargain continued, with the excep-
tion of Slind they were discharged before they could place the intention into
effect, and that Slind was discharged while picketing the Respondents. On the
other hand, the Respondents allege in their answer that the employees "volun-
tarily quit . ... upon being advised [by the Respondents] that the laws of the
State of Washington make it a crime to interfere with a dead body or a funeral
and that they could not maintain their employment with respondent while
actively violating said law, even though said violation was under the guise of
picketing." In their brief, the Respondents assert that the employees went on
strike "to engage in illegal acts [peaceful picketing] designed to violate a
criminal statute and civil law of the State of Washington." With these prefatory
statements, we shall consider the events surrounding the terminations of employ-
ment.
May 22 was a payday. When the picketing began that morning, the employees,
had- not been paid. Smith learned of the picketing upon being told by Gilman
that it was underway and that-he was free to leave if he wished. Smith an-
swered that he "could not work behind the picket line." Gilman then told him
that Rymond wished to see him, and they both went to Rymond. Smith had
not been shown a copy of the letter of May 20 to the Union, but he had heard
that picketing would result in discharge. Rymond showed Smith a copy of
the letter, saying that he wanted Smith "to be aware of it." He gave Smith
a pay; check, saying that he hoped there were "no hard feelings" and that
Smith's withholding tax statement would be mailed later. Smith obtained his
instruments and license, and left the premises. He testified that he had intended
to picket as a striker, but that his conversation with Rymond led him to believe
that he was being discharged.24
Unlike Smith, who was directed to see Rymond; Poffenroth went toRymond
of his own accord. Rymond said that he supposed Poffenroth was "going too,"
and gave Poffenroth a pay check. Poffenroth also had a brief conversation with
Thomas, the head embalmer, in. which Thomas asked Poffenroth where he would
work to complete his apprenticeship, and Poffenroth answered that he did not
know. As Poffenroth was leaving the premises, Mrs. Rymond said to him in
the presence of Rymond, that he would "look real cute on the picket line."
That afternoon Poffenroth picketed the Respondents .0
Slind, it will be remembered, received a telephone call from Rymond on May
21 in which Rymond read to him. the letter of May 20 to the Union, and said
that Slind would be discharged if he picketed Thornhill-Carey. On May 22,.
Slind's day off for that week, he waited outside the Respondent's premises `when'
24 The findings concerning Smith's termination of employment are based upon his
testimony. Gilman testified that he informed Smith of the picketing, saying to Smith
that he understood Smith, as a union member, could not "be on the premises of a place,
that is being picketed." Gilman also testified that he distinctly recalled the conversation,,
but that he could not recall the circumstances under which Smith was paid.
1. 25 The findings in this paragraph are based upon the testimony of Poffenroth. Neither
Thomas nor Mrs . Rymond was a witness.
1054 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
-Atkinson and Buttner conferred with Jaeger. After that conversation, when
Atkinson reported his lack of success, Slind and other persons began to picket.
,Slind testified without contradiction, and I find, that Gilman sought to take
pictures of the pickets and that Rymond gave him his pay check' with the state-
mnent that he might need it.. Slind did not report for work thereafter.
After picketing of the Respondents began, Gilman walked by Thornhill-Carey
where Conboy was picketing. Conboy asked Gilman to bring to him his pay
check, and Gilman agreed. Shortly thereafter, Gilman returned with Conboy's
check, instruments and license, and said that a withholding tax statement would
be mailed later. Conboy had not requested the articles other than his check.
Sometime later Conboy picketed the Respondents. He did not later report for
work.28
The factual situation related above supports the General Counsel's position.
that Smith, Conboy, Slind, and Poffenroth were discharged. It is true that those
employees were not told in precise words on May 22 that they were being dis-
charged. It is true also that the employees had intended to strike if the
Respondents continued the refusal to bargain, and that there was such refusal.
I believe, however, that Smith and Poffenroth were discharged as they prepared
to leave the Respondents' premises to join the picketing outside, that Slind was
discharged while on the picket line at the Respondents' premises, and that Conboy
was discharged while on the picket line at Thornhill-Carey. Several reasons
impel these conclusions. First, the Respondents' answer candidly states that
the employees were told that they "could not maintain their employment" if they
engaged in picketing. Moreover, Rymond told Conboy, Slind, and Poffenroth that
picketing would result in discharge. Rymond had reference to the picketing at
Thornhill-Carey, in which Conboy previously had engaged and thereafter was
engaged at the time Gilman conversed with him. Rymond 's reference was equally
applicable to the later picketing of the Respondents, as their answer shows. As
found above, the threats to discharge were violative of Section 8 (a) (1) of
the Act. The rule prohibiting picketing was an attempted derogation of the
employees' rights and could not lawfully be enforced. There is no reason to
believe, however, that the Respondents did not fully intend on May 22 to enforce
the rule. Second , Gilman delivered to Conboy-his instruments and license, which
had not been requested by Conboy, and the delivery is significant that Gilman
regarded Conboy's employment as terminated. I am unable to credit Gilman's
initial testimony that Conboy requested delivery of those articles, or Gilman's
later testimony that the delivery was made because of a fear that the articles
might be lost if they remained on the Respondents' premises . See footnote 26.
Third, the remarks to some of the employees that their withholding tax state-
inents would be mailed to them is significant that the Respondents regarded the
employment status as being terminated, and, about June 22, before the picketing
ended, the statements were mailed to the four employees 27 Fourth, Thomas'
" The findings in this paragraph are based upon the testimony of Conboy. On the
other hand, Gilman testified when called as an adverse witness by the General Counsel,.
that Conboy asked for his pay check and instruments and that he, Gilman, may have
taken them and the license to Conboy with the check. Gilman testified also that he
would not have taken the instruments to Conboy unless there had been a request for
them , and that he did not know whether he mentioned the withholding tax statement to
Conboy. Thereafter Conboy testified . When Gilman was later 'recalled to the stand;.,
he testified that he still could not recall having taken the instruments to Conboy, but
that his reason for doing so , as well as for having taken the license , was because they
might have been misplaced or lost if they had remained on the Respondents ' premises.
?7 The Respondents argue that regulations of the Bureau of Internal Revenue which
were in effect at the time of the discharges provided that withholding tax statements
should be given to discharged employees at the time of the last payment of wages. I am
HAZEN & JAEGER FUNERAL HOME 1055
inquiry of Poffenroth concerning where he would complete his apprenticeship
-is significant of management's belief that his employment was being terminated.
I find that the discharges of Smith, Conboy, Slind, and Poffenroth were violative
of Section 8 (a) (3) of the Act, and that the Respondents thereby also violated
Section 8 (a) (1). There was no request for reinstatement by any of the-
employees, nor did the Respondents offer them reinstatement 28
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above , occurring in
connection with the operations of the Respondents 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 of . commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor. prac
tices, I shall recommend that they cease and desist therefrom and that they take:
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Union represented a majority of the employees in the
appropriate unit and that the Respondents refused to bargain collectively with it.
Accordingly, I shall recommend that the Iespondents, upon request, bargain
collectively with the Union as the exclusive representative of the employees in
the appropriate unit.
I have found that on May 22, 1950, the Respondents discharged Earl Smith,
Ellis Conboy, Milo Slind, and John Poffenroth because of their union membership
and activities. I shall recommend, therefore, that the Respondents offer immedi-
ate and full reinstatement of Smith, Conboy, Slind, and Poffenroth, to their
former or substantially equivalent positions," without prejudice to their seniority
not persuaded that the Respondents' failure to give the statements to the employees on
May 22 demonstrates that the employees were not discharged.. The Respondents assert
also that for approximately 2 months thereafter they continued to pay the premiums
on the life insurance and health and accident policies for the dischargees, and they offer
this factor as proof that the employees had not been discharged. It is not persuasive.
Cf. Blue Ridge Shirt Mfg. Co., Inc., 70 NLRB 741, enforced 177 F. 2d 202 (C. A. 6),
25 LRRM 2094.
28 During June 1950, a local newspaper published an article about the labor dispute
in which it correctly quoted a representative of the Union, Atkinson,, as saying that
picketing of Thornhill-Carey, the Respondents, and Smith Funeral Home would be termi-
nated if those employers would "take back" three unindentified employees whom "they
fired for union activities." The next day Attorney Hennessey, counsel for the funeral
homes, was correctly quoted in the press as saying that "The funeral homes are willing 40,
rehire the three men if the union will name them." The newspaper excerpts were rejected
as exhibits , and an objection was sustained to certain testimony in connection therewith,
upon the ground that they did not constitute a proper offer of reinstatement. In my
judgment , Atkinson's statement was at most a publication of the Union's position con-
cerning a cessation of the picketing. The statement of Attorney Hennessey that his
clients were willing to "rehire" upon identification of the employees was not a fulfillment
of the Respondents ' obligations to the dischargees. The Respondents, having discharged
them, were obligated to offer them reinstatement to their former positions without
prejudice to their seniority or other rights or privileges. The Respondents knew their
identities. It would have been a simple matter for the Respondents to fulfill their
obligations by making proper offers of reinstatement directly to the employees. The
Respondents have not "made a prima facie showing of a bona fide effort to offer reinstate-
ment," Deena Products Company, 93 NLRB 549. See also B & Z Hosiery Products Cot,
supra; panDeusen Dress Mfg. Co., 45 NLRB 679, enforced 138 F. 2d 893 (C. A. 2),
13 LRRM 603; Warsaw Elevator Company, 53 NLRB 746; Houston and North Texea
Motor Freight, 88 NLRB 1462.
29 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,.
65 NLRB 827.
1056 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
or other rights or privileges, and that the Respondents make each of them whole
for any loss of pay he has suffered by reason of the discrimination against him
.by payment to him of a sum of money equal to that which he normally would have
(earned from the date of the discrimination to the date of a proper offer of rein-
statement, less his net earnings 30 during said period, the payment to be computed
upon a.quarterly basis in the manner established by the Board in F. W. Woolworth
Co., 90 NLRB 289. I shall also recommend,.in accordance with the Woolworth
decision, that the Respondents, upon request, make available to the Board and its
agents all pertinent records.
In view of the nature of the unfair labor practices committed, particularly the
.unlawful discharges, I. shall also recommend, in order to make effective the inter-
dependent guarantees of Section 7 of the Act, that the Respondents cease and
desist from in any manner infringing upon the rights guaranteed in Section 7 of
the Act. N. L. R. B. v. Express Publishing Company, 312 U. S. 426, 61 S. Ct. 693;
N. L. R. B. v. Entwistle Manufacturing Company, 120 F. 2d 532,536 (C. A. 4).
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. Licensed Embalmers' Division of-Warehousemen, Garage and Service Station
Employees Local Union. No. 334, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers, A. F. of L., is a labor organization within the
meaning of Section 2 (5) of the Act.
2. The licensed embalmers and registered embalmers' apprentices employed by
the Respondents, excluding office and clerical employees, guards, professional
employees, supervisory employees as defined in the Act, and all other employees,
constitute a unit appropriate for the purposes of collective bargaining, within the
meaning of Section 2 (5) of the Act.
3. The Union, on May 5, 1950, was, and at all times thereafter has been, the
exclusive representative of all the, employees in such unit for the purposes of
collective bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively' with the Union as the exclusive represent-
ative of their employees in an appropriate unit, the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (a)
(5) of the Act.
5. By discriminating in the hire or tenure of employment of Earl Smith, Ellis
Conboy, Milo Slind, and John Poffenroth, and each of them, and thereby discourag-
ing membership in a labor organization, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
6. By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have. engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
•30,Cros8ett Lumber Company, 8 NLRB 440, 497-8.