Ward Baking Co.

In the• Matter of WARD BAKING COMPANY ccnd GERTRUDE WXONROY Cc$e'No.'C--544.Decided April 30, 1943 DECISION AND ORDER Upon 'complaint issued pursuant to charges duly filed by Gertrude W., Conroy, an individual, against Ward Baking Company, herein called the- respondent, a hearing was held before a Trial Examiner at Boston, Massachusetts, from'February 10 to 12,• 1943, in which the Board and the respondent,participated by their representatives. The Board has reviewed the rulings of the Trial Examiner made on motions and on objections to the admission of evidence and finds that no preju- dicial errors .were committed. The 'rulings are hereby affirmed. 11 On March 4; 1943, the Trial Examiner issued his Intermediate Re- port finding that the respondent had not engaged in the unfair 'la practices alleged in the complaint and recommending' that the com- plaint be dismissed. Exceptions to the Intermediate Report and a brief were thereafter filed by Conroy. Oral argument was held be- fore the Board on April 27,1943. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the, case,, and, hereby affirms and adopts the findings, conclusions, and- recommendations of the Trial Examiner. 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 complaint issued herein against the re- spondent, Ward Baking Company, Cambridge, Massachusetts, be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. Thomas H. Ramsey, for the Board. Mr. ,Henry B., Foley, and Mr. F. A. Boudreau, of Boston, Mass.,' for. the respondent. x,49:N: L. R B:, No., 37. 291 ' 1, 1 531647-43-vol. 49-20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE Upon a charge duly filed on March 5, 1942, by Gertrude W. Conroy, an individ- ual, herein called Conroy, the National Labor Relations Board, herein called the Board, by the Regional Director for the First Region (Boston, Massachu- setts), issued its complaint dated January 25, 1943, against Ward Baking Com- pany, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint, together with notices of hearing thereon, were duly served upon the respondent and Conroy. With respect to the unfair labor practices, the complaint alleged, in substance, that the respondent: (1) on or about January 25, 1941, discharged Gertrude W. Conroy, forelady of the cake wrapping department in its Cambridge, Mass., plant, and thereafter refused to reinstate her because she joined or assisted the American Federation of-Labor, herein called the A. F. of L., or engaged in other concerted activities for the purposes of collective bargaining or other mutual aid or protection ; and (2) from on or about December 1, 1940, and at various times down to and including the date of the issuance of the complaint, interfered with, restrained, and coerced its employees in the exercise of their rights guar- anteed in Section 7 of the Act, by questioning employees regarding their union membership, advising them not to join the Union and maintaining, surveillance over members of,the Union. In pursuance-of leave granted' at the hearing, the respondent filed its answer -dated February 11, 1943, in which it admitted the allegations of the complaint respecting the nature of its business, but denied,,the commission of any of the unfair labor practices alleged. • Pursuant to notice, a hearing was held on February 10, 11 and 12, 1943, at Boston, Massachusetts, before Mortimer Riemer, the undersigned' Trial Examiner, duly, designated by,the Chief Trial Examiner. The Board and the respondent were represented by counsel and'pai•ticipated 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 conclusion of the Board's case, counsel for the respondent moved to dismiss the complaint. The motion was denied. At the conclusion of the hear-, ing, the Board moved to conform the pleadings to the proof in respect to names and dates, which motion was granted over objection of counsel for the re- spondent. Decision was reserved on the motion of counsel for the respondent to dismiss the complaint. This motion is now granted: After all the evidence had been adduced, counsel for the Board and the respondent presented oral argument on the record before,the undersigned. Although advised that they might do so, all parties waived the right to file briefs with the undersigned. .'Upon the, entire record in the case and from his observation of the witnesses,' the undersigned makes the following : FINDINGS , OF FACT 1. THE BUSINESS OF THE RESPONDENT 1 , 1 , 1 ..The • respondent, Ward Baking Company, a New `York • corporation with its principal office at New York, operates` a bread and cake baking plant at Cam-' bridge, Massachusetts. The present proceeding is concerned only with' this plant. During the first 6 months of 1942, the respondent purchased raw materials for use at Cambridge, consisting of flour, sugar, shortening, eggs and milk, amount- i - WARD BAKING COMPANY 293 ing in value to $754,530„ 70 percent of which raw material was-shipped to the Cambridge plant from points outside the Commonwealth of Massachusetts. ,During the same period, the value of finished products produced at the Cam- bridge plant amounted to more than $2,000,000, over 10 percent of which repre- sented shipments to points outside the Commonwealth of Massachusetts. The respondent , as of September 17, 1942, employed 633 employees at Cambridge. II. THE ALLEGED UNFAIR LABOR PRACTICES Alleged interference, restraint and coercion ; the discharge of Conroy Gertrude W. Conroy, until the time of her discharge on January- 25, 1941, had been in the respondent's employ for about 23 years. During that period Conroy had risen from the position of cake wrapper at a weekly range of $6 to the position of forelady of the cake wrapping department earning $36.25 a week. As forelady, Conroy supervised on the average the work of about 50 female employees engaged in wrapping by hand and machine the varieties of cake pro- duced in the respondent's plant. The record is clear that Conroy maintained production levels and on that score there was no complaint about her work. In 'June 1937, the respondent entered into a contract with Bakery andf Con- fectionery Workers' International Union of America, Local No. 348, affiliated with the A. F. of L., herein called the Union, covering all of the respondent's production and maintenance employees. The contract was renewed from time to time thereafter and at the time of the hearing the respondent was operating under contract with the Union. These contracts contained provisions establishing machinery for the settlement of employee grievances, first with heads of departments wherein the grievance arose and in the event of non-settlement, with higher management officials. In this way differences between supervisors and employees over working conditions were brought to the attention of Frank E. Wolfe, plant manager, Albert E. Tolley, chief production supervisor, and Mary Wallace, traveling supervising forewoman, the latter two from the respondent's New Yo'rk'office. On Saturday, January 25, 1941, during the lunch hour, Conroy was summoned to Wolfe's office and told by him that her services were no longer required. Wolfe, upon being asked for an explanation, stated to Conroy that he had been con- sidering a change for some time and this was the time for the change.' It is the contention of the Board that Conroy's discharge was due to her activity during the few days previous to January 25, in attempting to organize a supervisor's union in the respondent's plant. The respondent contends that she was discharged because of a long history of failure-to obtain the cooperation of the girls under her' supervision due to alleged favoritism and harshness in the performance of her'duties and that the decision to discharge her had been made on January 21, prior to her union activities, and at a time therefore when the respondent neither had nor could have had any knowledge of those activities. In support of its contention the respondent called numerous witnesses including supervisors, employees and union officials who testified that Conroy abused-and antagonized the employees in her department, that the Union 'complained about Conroy's attitude and conduct'and that for that reason the respondent discharged Conroy. e "This finding is based upon the testimony of Conroy. Wolfe's.testimony concerning the discharge 'was not substantially different. He testified : "I told her that I was letting her out, and I was dissatisfied with conditions'in the cake shop, and she remarked that she was expecting it. And I believe that she also said that I would be sorry for it." e, 294 DECISIONS OF- NiATIO NV,AL LABOR RELATIONS BOARD ' 'Members of the Union called as witnesses by the respondent testified that they had lodged numerous complaints with Wolfe about Conroy's attitude and conduct towards the employees in her department., George, D. McGoldrick, the Union's first shop steward and later its president, testified that from 1939 on he was informed of employee grievances -against Conroy in which Conroy was charged with failing to allow the girls proper rest periods, and favoring certain workers over others in the matter of overtime. Stasia Ferry, who was the first shop steward in Conroy's department, a witness called by the Board in rebuttal, testified, that employees registered complaints to her about "every petty thing" that Conroy did; that she spoke to Conroy; the grievances were adjusted, but began again ; that Conroy lost her temper and'would "bawl out" the girls and they, resented Conroy's attitude. Ferry took these mat- ters,up with Burris, the business agent. Connie Spitaleri, the shop steward who succeeded Ferry, testified that in 1940 she spoke to,Conroy about favoritism and her failure to observe the, provisions of the union contract pertaining to rest periods. Spitaleri testified that unrest and, dissension prevailed in Conroy's department throughout 1939 and 1940 because Conroy "kept picking on one girl right after.another, . . . seemed.to get satisfaction out of seeing the girls cry," and,insisted on the girls being at their work places five minutes before the starting hour. Spitaleri likewise spoke of these affairs to Burns. Burns testified that from 1937 on.there were grievances in the cafe wrapping department; that union members, complained to him of, Conroy's sarcasm and failure to allow relief periods ; that he, too, spoke to Conroy about the complaints and in turn was told to take the matter up with Wolfe since it was the Union and no Conroy that was running the department. Burns discussed these matters wih Wolfe, Wallace, Albert Tolley, and Robert Tolley, the latter at that time a supervising foreman. Conroy's dismissal was not sought but Wolfe and others were told according to Burns that if the respondent "couldn't get a forelady that would carry out orders of the manager, the management ought to get a new forelady." 2 WVolfe, Wallace, Albert and Robert Tolley testified in, substance that, they were aware of these complaints ; that they conferred with union representatives and Conroy about them,;'that Conroy, was cautioned and warned ,to mend her ways, cooperate with the employees and the Union and to avoid action or conduct that would antagonize the workers. Albert Tolley testified for example `-`,that Mrs. Conroy could not get along,with the help in the plant, the girls who were wrapping cake" ; that the biggest complaint about Conroy washer, inability to adjust herself to conditions brought about by union recognition ; that she was partial to certain employees ; and that at a grievance committee meeting with Union representatives late in the summer- of 1940, Conroy was told that unless she could control the girls, in her, department,,,she>was.ahrough. e Robert Tolley corroborated the, testi- money of Albert Tolley. Wolfe's testimony was, substantially the ' save concern- ing Conroy's conduct and he testified that in 1940,he and Wallace discussed the possibility of replacing Conroy, as forelady. Although Conroy denied knowledge of,these grievances and asserted that there was no valid cause for complaint in,the, way she handled her department, the undersigned cannot credit her denials in the face. of, voluminous, and credible testimony 'to the contrary. Conroy, admitted that, she was • criticized at times but insisted that it was for routine matters. According to her own testimony she was so dissatisfied with conditions in her department early in 1940 that she 2 Burns complained also but the conduct of six other'supervisors. He testified that there were more complaints about Conroy." It appears that Meister was laid off in July 1942 as a result of the Union's complaints.' WARD BAKING' COMPANY J 295 declared her intention to quit to Robert Tolley. It may be true that many of the Union's grievances were, as characterized by Ferry, petty and made because the Union took advantage of its contract with the respondent. But whether justified or not,' it is clear that complaints continued against Conroy throughout 1940,and the Union placed them before the respondent for,action. I , Sometime in the summer of 1940 Wallace was asked by Albert Tolley to seek another forelady for, the Cambridge plant. Wallace thereupon, asked Gladys Backman, • an employee in the respondent's Bronx, New York plant, who had once 'been an assistant forelady, if she was available to fill a forelady' s job in the Cambridge plant in the event a vacancy occurred. Backman stated she was available but Wallace thereafter did nothing to qualify Backman further for the Cambridge post.- In September 1940, Burns and' McGoldrick, on a visit to New York, complained to Executive Vice-President Barber about Conroy's lack of cooperation with the Union and asked that Barber do something about it. Barber asked the Union representatives for time in which to adjust the matter. In the same month, according to Wolfe's testimony, which is credited, he and Albert Tolley decided with respect to Conroy "that there would be a change made as soon as possible." Although, ,as Albert Tolley testified,and as the undersigned, finds, Wolfe had sought permission to discharge Conroy, early in 1940, the respondent held off decision with'respect thereto because of Conroy's long service and its desire to give her every, opportunity to improve. The complaints against Conroy con- tinued and in late November or early December 1940, Wolfe again asked that Conroy be dismissed. The decision to discharge Conroy was finally made- on January 21,1941. On that day Albert Tolley wrote Wolfe in part as follows : ,Your Assistant Forelady has already been changed as you know. Miss Wallace has been training a young lady to replace your Forelady Mrs. Gertie Conroy. This change shall be made during the week of January 27th. Miss Wallace shall be in your plant on Monday, January 27th to get the new Forelady started. It is customary when making changes to give the dis- charged department head two weeks pay.3 Following the receipt of the letter, Wolfe, on January 25, 1941, discharged Conroy as related above About a month prior to the discharge Conroy asked Jack Turner, the head shipper, and George Menter, the head porter, whether they would be interested in having her obtain information about forming a supervisors' union in the respondent's plant. There is no proof, however, that Conroy took any active steps to organize such a ,union until after her sister's demotion, which occurred on January 20. Conroy admitted that it was only after her sister's demotion that she talked with Burns, the Union's business agent, and that it was probably the day following that interview that Burns took her to John Murphy, the New Eng- land director for the A. F. of L., who gave her application blanks to use in soliciting members.' By January 21, however, the respondent, as is evidenced by the communi cation of that date addressed by Tolley to Wolfe, had already determined to discharge Conroy. The earliest date fixed for any of her solicita- tions was January 22, in the testimony of Cameron Meany, an order clerk formerly 8 The letter, a copy of which was sent to Robert Tolley, also instructed Wolfe to demote O'Brien, an assistant foreman , and place Semmler, a supervisor , on probation. The Union had complained about the actions of these two men. The Assistant Forelady referred to a Alice Larson, Conroy's,sister, who was demoted to the position of head wrapper on January 20, 1941. ' ' a Murphy advised Conroy that in the event she obtained the signed applications of six clerical employees , the A. F. of • L. would issue a charter for a Federal local to which de- partment heads would be admitted. I , 296 DiECISIONS OF NATIONAL- LABOR RELATIONS BOARD I employed by the respondent, and the earliest date of any of the signed applica- tions obtained by Conroy was January 24; 1941. Not only is the record-devoid of proof that Conroy's union activities com- menced - as early as January 21 , but there is also a complete absence of proof that, even if her activities had commenced as early as January 20 or 21, they had come of the respondent's notice. Nor is there proof that at the time Albert Tolley wrote the letter of January, 21, 1941, authorizing Conroy's discharge, he or Wolfe knew of Conroy's labor activity. Up to about this date, Conroy had by her own 'testimony, confined her activity to discussions with two employees, Turner and Menter, and had obtained their acquiescence in seeking further union informa- tion. This information Conroy sought for the first time on or about January 20, when,she called upon Burns. There is not a 'scintilla of evidence that Albert Tolley was aware'of this fact when he wrote his letter of January 21, 1941. -The fact that during the few days immediately preceding her discharge on Jan- uary 25, Conroy had spoken to about 12 clerical employees about joining, can therefore have had,no part in motivating her discharge. The Board introduced testimony for the purpose of establishing anti-union expressions by the respondent at the time of and following Conroy's discharge. Meany,' who was solicited by Conroy on Januar r 22, testified that in the same afternoon Clarence W. Gunning, Meany's superior and the respondent's chief clerk, talked to Meany in the office, or called Meany aside in the back locker room (in which respect Meany's testimony is not clear) and said to him: "I understand 3 ou are mixing in- the union again. . . . You know, anyone that values their position in this office wants to stay clear of all unions. We have had that discus- sion before " 5 Gunning, the only other participant in this alleged conversation, denied Meany's testimony, could not recall any specific conversation with Meany on January 22, but admitted that he might have conversed with him because both men worked in the same department. The undersigned was not impressed with Meany as a witness He was verbose and talkative and the circumstances of his later discharge in June 1942, indicate to the undersigned that be was a partisan and biased witness. Accordingly, the undersigned finds that Gunning did not make the remarks attributed to him by Meany: George N. Menter, the respondent's head porter, testified that he overheard a conversation between Robert Tolley, supervising foreman, and Harold Bloom- field, purchasing agent, wherein the former is alleged to have said to Bloomfield: "I saw Joe O'Connell down talking to Gertie. Find out what they were talking about." Mentor could not fix the time of this conversation except to place it prior to Conroy's discharge. Conroy fixed her conversation with O'Connell on January 25, 1941. Bloomfield did not testify. Robert Tolley denied uttering these remarks to Bloomfield, testifying further that he was doubtful whether he knew O'Connell. Assuming that Tolley had observed a conversation between O'Connell and Conroy, it is doubtful in the undersigned's opinion, that he would have ordered Bloomfield to ascertain the substance of the conversation or chosen the .very moment that Menter passed by to issue such a direction. The under- signed accepts Tolley's denial and finds that no, such conversation was held -between Robert Tolley and Bloomfield. - In addition Conroy testified that on returning to the cake department after her discharge by. Wolfe,' she met Robert Tolley and even before mentioning her discharge, Tolley attempted to console her by stating: "Now, don't tell me any of your plans, because what I don't know,_ 1 can't repeat, and then you won't blame me for anything." She testified in addition that Tolley mentioned the, instance of an acquaintance of his who also had tried to organize employees and - 6 Meany testified that therefore he did not sign an A. F. of L. application. WARD BAKING COMPANY 297 was left "holding the bag" 'and that he stated : "I want to tell you, that is just what is, going to-happen to you.... You area good forelady. They couldn't get any better." Conroy testified that the conversation was-a long one wherein they also discussed mismanagement in the plant . She could not recall any of the details of the conversation other than related above. Robert Tolley denied any conversation with Conroy on the afternoon of her discharge although admit- ting several conversations with her subsequent thereto. As will appear hereafter,- Tolley had been apprised earlier in the week of Conroy's impending dismissal. The undersigned is not persuaded that Tolley would voluntarily suggest the discharge was due to Conroy's labor activity rather than for business reasons. The undersigned is of the opinion that Conroy was so distraught by the experience of discharge after long years of service, that she confused and enlarged upon other conversations she may have had with Robert Tolley both before and after her discharge. The undersigned is not persuaded that the conversation occurred as testified to by Conroy." Following her discharge, Conroy continued her efforts to organize. At least one A. F. of L. application, identified at the hearing, was dated April 25, 1941 In the interim following her discharge Conroy met on one or more occasions with Mary Wallace. At one of these meetings at the Kenmore Hotel in Boston, Conroy told Wallace that she had been discharged for her union activities. According to Conroy, Wallace told her she was foolish trying to organize de partment heads ; that the respondent's officials were laughing at her efforts ; that Conroy lacked the education and ability to do such a job and that she was hurting her chance of future employment in the industry. Wallace identified one dinner meeting with Conroy wherein she told Conroy that her dismissal was caused by her failure to cooperate with Wolfe ; that Conroy in reply attributed her discharge to union activities and stated that she could have been a business agent like "Red" Burns and that Wallace answered that this was a foolish idea, Conroy lacking the experience and qualifications to be a union business agent. Wallace denied telling Conroy that the respondent's leading officials were laughing at her organizing efforts On a review of all the evidence pertaining to these discussions the undersigned is of the opinion that the version given by Wallace is, on the whole, the one that accords more nearly with the truth Menter testified that about three or four weeks after Conroy's discharge, Robert Tolley stated to him: "I hear Gertie [Conroy] is trying to organize the depart- ment heads." He testified also, that on other occasions, the times of which he could not fix, Tolley asked him if he had seen Conroy, inquired about "the union", wanted to know if Menter had joined and how Conroy was "coming along with the union". Menter admitted that these were friendly conversations Robert Tolley, on the contrary, testified that on two occasions two to three weeks after Conroy's discharge, Menter initiated discussions with him wherein he stated that Conroy was soliciting him for membership in a union and that Tolley replied, "What are you telling me for? Why don't you tell your boss? " Following. her discharge, Conroy went to see John Murphy who referred her to Aaron Vellemen , an A F. of L. organizer. Velleman filed charges on Conroy's behalf with the Board alleging a discriminatory discharge . These charges were dated January 27, 1941, and were filed by Federal Labor Union No. 14965, A. F. of L. Without notice to Conroy, the charges were withdrawn without prejudice by Velleman on February 11, 1941. The respondent was notified of this fact . Conroy first learned that charges had been with- drawn in September 1941 On September 25, 1941, Conroy filed charges on, her own behalf but at her request they were not filed as of record pending her application for reinstatement . On Maich 5 , 1942, Conroy again filed charges upon which the present'pro- ceeding is based. 298 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD I haven't anything to do with -that". Tolley testified further that he "certainly wouldn't be going around, to a porter boss talking about labor union matters." The undersigned credits Tolley's denials., Sometime after Conroy's discharge, both Wallace and Robert Tolley suggested that Conroy try to obtain a transfer or employment elsewhere in the respondent's system. It is clear that Conroy declined to accept these suggestions, on'the ground that she was unwilling to leave her home. Nor is there any evidence that Conroy approached Wolfe and asked reinstatement from him. She did ask Robert Tolley for a reference shortly after her discharge but this was refused on the ground that he had no authority to issue one. In October 1941, Conroy wrote Albert Tolley a letter seeking reinstatement. In reply to Conroy's letter,' Albert Tolley wrote on November 18, 1941: • There were points in it with which I do not agree. The main one being where j took sides against you in one of the early meetings with representa- tives of the union. There never was a bit of doubt about your desire to keep your job, but unfortunately things happened which made a change necessary. When this time came, I think,you made a mistake in the attitude you took. This, however, does not mean that you will not receive some con- sideration if an opportunity presents itself. ' Tolley testified that by "mistake in the attitude" mentioned in his letter, he meant Conroy's "attitude towards the different girls, the way she would favor some and not favor others." The undersigned credits Tolley's testimony. Although Conroy continued her union activity following her discharge and, by reason of her meetings with Wallace, the respondent must have known of Conroy's labor interest, the undersigned is not persuaded upon a review of all the evidence, that Conroy was refused reinstatement because of her concerted activities. More persuasive as the grounds for refusing reinstatement at Cam- bridge, was the testimony of employees called by the respondent that they did not want to work under Conroy and the respondent's obvious efforts, as in- dicated by the entire record, to cooperate with the Union. Upon a review of all the evidence and in the considered judgment of the undersigned there is lacking clear and persuasive evidence sufficient to warrant a finding that Conroy was discharged and thereafter refused reinstatement, be- cause of her union membership or concerted activities, or that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The undersigned will therefore rec- ommend that the complaint be dismissed. 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. Ward Baking Company is engaged in commerce, within the meaning of Section 2 (6) of the Act. 2. The respondent, Ward Baking Company, has not engaged in unfair labor practices, within the meaning•of Section 8 (1) or (3) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the' undersigned recommends that the complaint against the respondent, Ward Bak- ing Company, be dismissed. WARD BAKING COMPANY - 299 As provided in Section 33 of Article II of the Rules and Regulations of the National' Labor Relations Board, Series 2-as amended, effective October 28, 1942-any party may within fifteen (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, Shoreham Building, Washing- ton, D. C., an original and four copies of a statement in 'writing setting forth such exceptions to the Intermediate Report to 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. ' ' MORTIMER RIEMER, Trial Examiner. Date March 4, 1943