National Biscuit Co.

In the Matter of NATIONAL BISCUIT COMPANY and BAKERY DRIVERS UNION LOCAL No. 485, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L. Case No. 6-CA-69.-Decided April 25, 1919 DECISION AND ORDER On February 18, 1949, Trial Examiner Howard Myers, issued his Intermediate. Report in the above-entitled proceeding, finding that the Respondent had engaged and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent' filed exceptions to the Intermediate Report, together with a support- ing brief. The Respondent's request for oral argument is hereby denied, as the record and brief, in our opinion, adequately present the issues and the positions of the parties. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications and additions.' 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three -member panel [Chairman Herzog and Members Houston and Murdock]. 2 There are certain inadvertences in the Intermediate Report which we hereby correct : (a) The Trial Examiner found that at the conclusion of the hearing held in this pro- ceeding on January 19, 1949, counsel for the Union "moved to strike certain evidence from the record which was introduced in support of the Section 8 (a) (1) allegations of the complaint." We find that the motion in question was to strike the Section 8 (a) (1) allegations of the complaint. (b) The Trial Examiner found that Eugene J. Liebold was hired by the Respondent on February 14, 1948. ' We find that Liebold was hired on February 16, 1948. (c) The Trial Examiner found that "neither Cooper nor Finley could remember when Liebold was on their respective routes." We find that at the hearing Finley did testify that Liebold was assigned to and worked with him during March 1948. 83 N. L. R. B., No. 8. 79 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. We agree with the Trial Examiner that the Respondent interfered with, restrained, and coerced its employees, in violation of Section 8 (a) (1) of the Act, by interrogating,-its employees with respect to their union affiliations, inducing its employees to resign from the Union, and questioning a job applicant concerning his union affiliations while employed elsewhere. The Respondent, at the hearing and in its brief, urges that the portion of the complaint alleging the violations of Section 8 (a) (1) should be dismissed because of a settlement agreement entered into by the Union and the Respondent after the charge had been filed.' This agreement, the Respondent contends, renders moot all matters concerning the Section 8 (a) (1) allegations of the complaint, since under its terms the Union agreed to waive the alleged Section 8 (a) (1) violations. We agree with the Trial Examiner in refusing to dismiss the 8 (a) (1) portion of the complaint on this ground. As the Board did not participate in the agreement to waive the previously' filed charges, it is, by long established precedent,4 not precluded from de- termining in its own discretion, whether under the circumstances of the case, it will effectuate the purposes and policies of the Act to give effect to any waiver or settlement of charges of unfair labor practices. We find that, in this case, it will not effectuate the purposes and policies of the Act to dismiss that portion of the complaint dealing with the Respondent's violation of Section 8 (a) (1) of the Act.5 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 Respondent, National Biscuit Company, Pittsburgh, Pennsylvania, and its officers, agents, successors, and assigns,. shall : 1. Cease and desist from : (a) Discouraging membership in Bakery Drivers Union Local No, 485, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, A. F. L., or in any other labor organiza- tion of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to 3It should be noted that , so far as is here relevant, this agreement related only to the Respondent's violations of Section 8 (a) (1). Determination of the legality of Liebold's discharge was left to the Board. _ 4 Matter of Kelly Springfield Tire Company, 6 N. L. R. B. 325, 347-348; Matter of Granite State Machine Company , Inc., 80 N. L. R. B. 79. See N. L. R. B. v. Federal Engineering Company, 153 F. ( 2d) 233, 234 ( C. A. 6, 1946) N. L. R B. v. Walt Disney Productions, 146 F. (2d) 44, 48 (C. A. 9, 1944 ), cert. den. 324 U. S 877; N L. R. B. v Revlon Products 0 orp., 144 F. ( 2d) 88, 90 ( C. A. 2d , 1944). NATIONAL BISCUIT COMPANY 81 their hire and tenure of employment, or any term or condition of employment ; (b) Interrogating its employees concerning their union affiliations, activities, or sympathies, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Bakery Drivers Union Local No. 485, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., or any other labor organization, to bargain collectively through representatives of their own -choosing, and to engage in concerted activities for the•purpose 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 re- quiring membership in a labor organization, as authorized in Section 8 (a) (3) of the amended Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Eugene J. Liebold immediate and full reinstatement to his former or substantially equivalent position 6 without prejudice to his seniority or other rights and privileges; (b) Make whole Eugene J. Liebold for any loss of pay he may have suffered by reason of the Respondent's discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings 7 during said period; (c) Post at its plant in Pittsburgh, Pennsylvania, copies of the notice attached hereto and marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Sixth Region, after being signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, 6 In accordance with the Board's consistent interpretation of the term , the expression "former or substantially equivalent position " Is intended to mean "former position wher- ever possible and if such position Is no longer In existence then to a substantially equiva- lent position." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L R B. 827. 1 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee In connection with obtaining work and working else- where, which would not have been incurred but for this unlawful discrimination and the consequent necessity of his seeking employment elsewhere . Matter of Crossett Lumber Company, 8 N. L. R. B . 440. Monies received for work performed upon Federal, State, county, municipal , or other work-relief projects shall be considered earnings . Republio Steel Corporation v. N. L. R. B, 311 U. S. 7. 1In the event that this Order is enforced by a decree of a United States Court of Ap- peals, there shall be Inserted In the notice, before the words : "A DECISION AND ORDER," the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to be sure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Sixth Region in writing, within ten (10) days from the receipt of this Order, what steps the Respondent has taken to comply therewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union affiliations, activities, or sympathies, or in any other manner iri-' terfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist BAKERY DRIVERS UNION LOCAL No. 485, INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, A. F. L., or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose 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 member- ship in a labor organization as a 'condition of employment, as authorized in Section 8 (a), (3) of the amended Act. WE WILL OFFER to Eugene J. Liebold immediate and full rein- statement to his former or substantially equivalent position with- out prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become, remain, or-refrain from becoming members of the above-named Union 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 amended Act. WE WILL NOT discriminate with regard to 'the hire or tenure of employment or any term or condition of employment against any NATIONAL BISCUIT COMPANY 83 employee because of membership in or activity on behalf of any such labor organization. NATIONAL BISCUIT COMPANY, 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 Erwin Lerten, Esq., for the General Counsel. Charles C. Arenberg, Esq., of Pittsburgh, Pa., for the Respondent. Ben Paul Jubeltrer, Esq., of Pittsburgh, Pa., for the Union. STATEMENT OF THE CASE Upon a charge duly filed on March 17, 1948, by Bakery Drivers Union Local No 485, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, herein called the Union, the General Counsel of the National Labor Relations Board, herein called, respectively, the General Counsel and the Board, by the Regional Director of the Sixth Region (Pittsburgh, Pennsylvania), issued his complaint, dated November 29, 1948, against National Biscuit Company, 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 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and charge, together with notice of hearing thereon, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in sub- stance, that the Respondent (1) since March 1948, through certain named officers, agents, representatives, and employees, by various stated means inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and (2) on or about March 10, 1948, discrimina- torily discharged Eugene Liebold, and thereafter refused to reinstate him because of his membership and activities in behalf of the Union and because he engaged in concerted activities with his coworkers for the purpose of collective bargaining and other mutual aid and protection. The Respondent duly filed an answer admitting certain factual allegations of the complaint with respect to its corporate structure and operations but denying the commission of any of the alleged unfair labor practices. Pursuant to notice, a hearing was held at Pittsburgh, Pennsylvania, on January 19, 1949, before the undersigned Howard Myers, the duly designated Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to hear, examine and cross-examine witnesses, and to introduce evidence pertinent to the issues was afforded the parties. At the conclusion of the taking of evi- dence the motion of the General Counsel to conform the pleadngs to the proof 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was granted with respect to minor variances without objection.' Counsel for the Union then moved to strike certain evidence from the record which was intro- duced in support of the Section (8) (a) (1) allegations of the complaint. Counsel for the Respondent and the General Counsel opposed the motion. Deci- sion thereon was reserved. The motion is hereby denied. A brief has been received by the undersigned from Counsel for the Respondent which has been duly considered. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT National Biscuit Company, a New Jersey corporation, having its principal office and place of business at New York, New York, is engaged in the manufac- ture, sale, and distribution of various and sundry bakery products. The Re- spondent operates various plants and places of business located throughout the United States, including a plant located in Pittsburgh, Pennsylvania. The Pittsburgh plant, and the employees thereof, is the only plant of the Respondent involved in these proceedings. During the 12-month period ending January 19, 1949, the Respondent's pur- chases for use at its Pittsburgh plant aggregated approximately $3,395,000, of which amount approximately 70 percent was shipped to that plant from points located outside the Commonwealth of Pennsylvania. During the same period, the sales of the said plant aggregated approximately $7,748,000, of which amount approximately 60 percent was sold and shipped to points located outside the Commonwealth of Pennsylvania. The Respondent concedes, and the undersigned finds, that it is engaged in commerce, within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Bakery Drivers Union Local No. 485, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Respondent's Pittsburgh plant. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; the discriminatory discharge of Eugene J. Liebold On the evening of February 27, 1948, after the regular business meeting of the salesmen of the Respondent, 11 of the said salesmen met at a restaurant in the vicinity of the Respondent's plant and, after some discussion, all 11 sales- men signed membership application blanks of the Union. The Respondent's reaction to the union activities of its employees is revealed in the conversation between employee Edward R. Lucko and David Brown, a ,special salesman of the Respondent and admittedly a supervisor, as the term supervisors is defined in the Act. According to Lucko's undenied and credible testimony while "working" his district on March 4, 1948, he met David Brown who stated that the boss had sent him to help Lucko ; that after they had finished NATIONAL BISCUIT COMPANY 85 their day's work, but before returning to the plant, the two of them got into Lucko's car and talked for awhile ; that during the conversation, Brown asked him whether he had attended the February 27 meeting at which the 11 salesmen had signed membership application cards ; that he replied in the negative ; that Brown then said "You are sure you don't know anything about It?"; that he again replied in the negative ; that Brown then said "Some of the fellows are trying to organize a union and we heard you were in on it . . . I am glad to bear you had nothing to do with it, and keep your nose clean" ; and that before he and Brown separated , the latter said that he had been sent to find out if Lucko had joined the Union. Regarding a certain interview he had on March 6, with District Sales Manager Stanton S. Roberts and Sidney P. Albert, the Manager of the plant involved in these proceedings, Eugene J. Liebold testified without contradiction, and the undersigned credits his testimony, as follows : March 6, 1948 was a Saturday, a non-working day. I was at home. About approximately 9: 00 or 9: 30 o'clock a. in., I received a phone call from Mr. Sidney Albert, the Sales Manager of the Cracker Division. He asked me what I was doing at the time. I said I was reading a book. He asked me if I could come out to the office. I asked if it was important. He said yes. He asked if I knew where the entrance to the Bread Division was as the Cracker Division was closed that day and he would have to meet me outside and show me into the building. I said, "Yes", and he asked me how long it would take me to be there. I said approximately 45 minutes. Approximately 45 minutes later I drove up to the plant. Mr. Albert was standing on the steps of the Bread Division. He escorted me to the Cracker Division sales room. Then he left and came back shortly with Mr. Stanton Roberts, the Dis- trict Sales Manager. I was introduced to Mr. Roberts at that time. Mr. Albert said, "Gene, when you first started here, I told you the chair in which you are sitting was to be used by at any time you had any troubles or prob- lems. Right?" I said, "Right." He said, "Why haven't you used it?" I said, "I haven't had any problems." He said, "I received reports your actions have not been entirely favorable." I said, "The fellows said I was doing okay." He said, "The reports we are receiving are not favorable." Q. Who said that? A. Mr. Roberts. Mr. Albert interrupted and said, "Enough of this. Did you or did you not, a week ago last Friday, leave this office after the regular ,sales meeting, go down to Aurelia Street, into a local cafe, where you at- tended a meeting with other salesmen ?" I said, "I didn't", and I was in- terrupted. Mr. Roberts said, "On your word of honor, did you or did you not, •on leaving this office a week ago last Friday, February 27, 1948, go down to Penn Avenue, walk down Penn Avenue to Denniston Street over to Aurelia, and into a cafe, where you attended a meeting with other salesmen in regard to a movement? Now, yes or no?" I said, "No", being as I had rode there with Tony Rago and did not walk. So, Mr. Roberts said, "Is that your answer?" I said, "Yes." He shook my hand and turned to Mr. Albert and said, "Do you believe what he said?" He said, "Well, I'd like to, but I heard differently." I said, "Well, you asked me and I told you." He said, "The reports we have been getting about you aren't favorable. We heard there was a meeting and there is a movement afoot." Q. Who said that? A. Albert. He said , "You know, Gene, you have only been with this Com- pany a short while and your actions should be favorable." He said "What 844340-50--vol. 83-7 •86 DECISIONS.OF NATIONAL LABOR RELATIONS BOARD right have you to bring a crew, of outsiders to run this Company?" ' Mr. Roberts said, "About 14 years ago, I was in the same position you are in. L I had to make up my mind and I. did. I think I have done okay. This is a big Company. Who knows? You tell.us what we want to know and there 'may'be a good job in the-office for you.". I said, "Well, I am content with what I am doing now. I like the outside." : Mr. Roberts left, and Mr. Albert said, "Gene, -I am certainly disappointed in'you", and I said, "Well if there is something wrong with my work, tell me what it is and maybe it may be corrected." He said, "Why should we tell you when you won't tell us what we want to know?" I said, "Is that the way it is?" He said, "That is the ay it is", and I said, "Okay," and left. Lietiold'further testified without contradiction, and the undersigned credits his testimony, that on returning to the plant on March' 10, after completing his day's work, "Albert came over and asked me to step over to his desk. I went over to .,his desk and he said, `You have been with us for a while now and you aren't exactly favorable, so in all fairness to you, we are paying you for the month of March and giving you notice.' He then handed me a check. I said, 'Is that all?' -He said, `That is all.' I said, `Okay.' Then I left." Lucko also testified without contradiction, and the undersigned finds, that on March 11, he had a conversation with Roberts in which the latter said that he knew that Lucko "was in this movement" and that he admitted to Roberts that he had joined the Union, and that the following then ensued : I said, "Yes", I was, but I felt there was nothing.I could do about it. I Joined the Union and that is all. That is all there was to it.. He said, "If you-really mean that, ,I will tell you what to do." I said, "Yes, I mean it." He said, "Well, you write a letter to the Union, saying after further consideration you have decided not to join and will they please return your application and deposit." Lucko further testified, and the undersigned finds, that later that day he wrote and sent a letter to the Union wherein he stated that he had decided not to be affiliated with the Union and requested the return of his signed application blank together with the initia- tion fee he had previously paid. Regarding a conversation he had with Roberts on March 9, former employee John J. Crouse testified without contradiction, and the undersigned credits his testimony, as follows : Q. Will you tell us what you observed and did on March 9, 1948? A. While I was working my territory, I was met by District Sales Man- ager S. S. Roberts. He met me at Reymer's on Fifth Avenue and told me he wished to discuss the reason why I turned down the new district, which had been offered me. After giving my reason for that, we drifted on the subject of the movement afoot, and he informed me he was well aware of every man who had joined the movement and that he was interested in some of us, particularly in that he knew I had trouble with the previous Sales Manager in regard to a raise, obtaining a raise, and he said that was the why the new district had been offered me. I asked him if it were absolutely necessary that I change districts in order to obtain a raise, and he said no, but that if I would write a letter to the'union, asking for my application and initiation fee, that this would come about. Q. Did he suggest the exact language you were to use in this letter? A. He gave me a brief outline, stating that I should say, "After due con- sideration, I find it would not be to my advantage to belong to your organi- zation. Please return my application." Crouse did not write the letter referred to in the above quoted conversation with Roberts nor did he receive the wage increase. NATIONAL BISCUIT COMPANY 87 Former employee Anthony L. Rago testified without contradiction, and the undersigned finds, that on March 12, during a conversation with Brown regarding the Union, the latter suggested that he write a letter to the Union withdrawing therefrom. However, Rago did not do as Brown suggested. Roberts, Albert, and Brown testified at the hearing but were not questioned with respect to the statements, summarized above, which were attributed to them by Liebold, Crouse, and Rago. The testimony of Roberts, Albert, and Brown was almost exclusively confined to Liebold's ability and qualifications and the reasons for his discharge. Liebold was interviewed for the position of student salesmen by Albert on February 12. During the interview Liebold was told the duties of the job, which, according to Liebold, consisted mainly of "going with other salesmen along their routes, observing what they did, occasionally writing orders, and help them with their work." In short, the student-salesman job was a training position or a training period prior to becoming a salesman.' This period, ac- cording to the credible evidence, consisted of a period varying from 1 to 3 months, depending on the individual and also upon the availability of the position of salesman. Liebold was hired by Albert on February 14 and was assigned, from time to time, to various regular salesmen. From then on, Liebold continued his train- ing, without receiving any adverse criticisms from any person connected with management or from any of the salesmen. Nevertheless he was discharged 'on March 10, by Albert allegedly because he did not possess the necessary qualifi- cations. Albert testified that from his observation of Liebold "around the office" and from the reports he received from Salesmen Cooper and Finley, he prepared on February 26, an evalution report which disclosed that Liebold was an unde- sirable employee. Both Albert and Roberts admitted on the witness stand that an evaluation report on a student salesman is not usually prepared until the man had been on the job for a period of 1 to 3 months, unless the man could not obtain the usual surety company bond or had been discovered drinking intoxicating liquor, or discovered to have a criminal record, etc. Despite these admissions, Albert testified that he had prepared this report after Liebold had been on the job but 8 working days. Albert testified that prior to preparing the evaluation report on Liebold, he was told by Salesmen Cooper and Finley that while Liebold was on their re- spective routes, each of them came to the conclusion that Liebold would not make a good salesman because he did not "shape up." The credible, undenied, evidence, however, clearly shows that Liebold was not assigned to either Cooper or Finley until sometime in March. In fact, neither Cooper nor Finley could remember when Liebold was on their respective routes. Liebold, how- ever, testified, and the undersigned finds, that he was assigned to Cooper on March 1, 2, and 3 and to Finley on March 4, 5, 8, 9, and 10. Despite the fact that there is no evidence in the record that Brown ever reported to Albert, about Liebold's ability, Brown was called as a witness for the Respondent and testified that he worked with Liebold one day only, adding that Liebold's "enthusiasm and initiative were very lacking as a student sales- man. I spent one hour with him going over the price sheet, the carton num- bers, and not one time in that whole hour did he ask me one question." Albert testified that because Liebold never asked him any questions, he con- cluded that Liebold's "loyalty" to the Respondent was "doubtful" and that I According to Roberts, a student salesman is a newly hired man who, after his appli- cation has been approved, is sent with a regular salesman so as to learn "what the job comprises and what he is expected to do to be a salesman." 88 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD Liebold did not inspire confidence. Albert also testified that from Liebold's "actions around the sales room°' he concluded that Liebold needed prodding! Besides the above reasons, Albert testified that from his observation of Liebold, coupled with the fact that Liebold never asked him any questions, he concluded Liebold should be discharged. When this decision was reached, Albert was unable to state. B. Concluding Findings The instant case presents a situation replete with instances of a flagrant dis- regard by the Respondent of the rights of its employees to self-organization. The right of employees to complete and unhampered freedom in their choice of bar- gaining representatives, and the corollary duty of employers to refrain from intruding by use of their economic power upon the exercise of that right, has, since the inception of the original Act in 1935, never been questioned by any court. However, the Respondent, within the course of few days of its employees' efforts to organize, sought to persuade some of the Union's adherents to withdraw therefrom. In fact, at least two of them did as the Respondent requested. Cooper testified that he was going to withdraw because of certain personal reasons, but he did not do so, however, until he was asked to withdraw by Roberts. Besides seeking to induce some employes to withdraw from the Union, the Respondent interrogated others about their membership therein. Seeking to obtain the withdrawals and interrogating the employees about their union affiliations are per se violative of the Act 2 The Respondent did not limit its anti-union activities to questioning its em'- ployees regarding their Union membership and requesting known members to wthdraw from the Union, but discharged Liebold because he had signed a Union membership application blank. Admittedly, Albert knew prior to the March 6 interview, referred to above, that Liebold had attended the meeting of February 27. Therefore Liebold's denial thereof to Albert and Roberts on March 6, was of no material significance. A mere reading of the Liebold's testimony regarding that meeting leads one to the inescapable and logical conclusion that Albert and Roberts first desired to obtain from Liebold the names of the persons who attended the February 27 meeting. Failing in that effort, Albert charged Liebold, a newly hired employee, with bringing the Union in the plant. It is true, as Liebold testified, that at the March 6 interview Roberts and Albert said that they had received "unfavorable reports" about him, but when those remarks are read in the context in which they were made, and when considered together with the record as a whole, it is clear, and the undersigned finds, that the ""unfavorable reports" referred to the fact that Liebold attended the meeting of February 27, had signed a membership application blank, and had paid the necessary initiative fee. On this state of the record, the undersigned finds that Liebold was not discharged because he was inefficient or had performed his work unsatisfactorily, or that the Respondent discharged him for those reasons. Upon all the evidence, the undersigned rejects the varied grounds upon which Albert sought to justify his discharge of Liebold and finds that Liebold's membership and activities was the real reason for his discharge. 2 See N. L. R. B. v. Fitzpatrick and Weller, 138 F. (2d) 697 (C. A. 2); N. L. R. B. v. Rock Hill Printing & Finishing Co., 131 F. (2d) 171 (C. A. 4) : Canyon Corp. v. N. L. R. B., 128 F. (2d) 953 (C. A. 8) ; N. L. R. B. v. Chicago Apparatus Co., 116 F. (2d) 753 (C. A. 7) ; N. L. R. B. v. Fairmont Creamery Company, 143 F. (2d) 668, cert. denied 323 U. S. 752. c. NATIONAL BISCUIT COMP.A Y-:, - . ° ''-3 89 Albert's anti-union animus is clearly revealed in the interview- he-had with Liebold when the latter sought employment with the Respondent. There, Liebold was questioned by Albert as to his past employment; Liebold stated that, prior to entering the Armed Services, he worked for a welding company which had a union-shop agreement with a union ; Albert then asked Liebold whether he was "forced" to Join the union and Liebold replied in the negative ; Albert then asked if he had voluntarily joined ; again Liebold replied in the negative, adding that he was an apprentice and therefore was not in the unit covered by the contract. It is well settled that Albert's inquiry as to whether Liebold was a member of a Union when employed elsewhere is violative of the Act e Upon the entire record in the case, particularly by. discriminating in regard to the hire and tenure of employment of Eugene J. Liebold, by soliciting resigna- tions for the Union, by interrogating its employees concerning their union mem- bership, by questioning Liebold about his union membership when Liebold was applying for a job with the Respondent, the Respondent discouraged member- ship in the Union thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) and (3) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III above, occurring in connection with the operations of the Respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as has been found to be unfair labor practices, tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violating Section 8 (1) and (3) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has discriminated in regard to the hire and tenure of employment of Eugene J. Liebold the undersigned will recommend that the Respondent offer to him immediate and full reinstatement to his former or substantially equivalent position' without prejudice to his seniority and other rights and privileges. The undersigned will also recommend that the Respond- ent make Eugene J. Liebold whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount he would have normally earned as wages from the date of his discharge to the date of the Respondent's offer to reinstatement, less his net earnings during such period' 3 See P. H. Glatfelter Co. v. N. L. R. B., 141 F. ( 2d) 631 ( C. A. 3) ; Gamble-Robinson Co. v. N. L. R. B., 129 F. (2d) 588 (C. A. 8) ; N. L. R. B. v. Idaho Refining Co., 143 F. (2d) 246 (C. A. 9). 1 In accordance with the Board 's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wher- ever possible and if such position is no longer in existence then to a substantially equivalent position." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 4 See Matter of Crossett Lumber Co., 8 N. L. R. B. 440. '90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The scope of the Respondent's illegal conduct discloses a purpose to defeat self-organization among its employees . Shortly after the Respondent learned 'of- the union activities of its employees it sought to coerce them in the exercise of the rights guaranteed them in the Act by discriminatorily discharging Liebold. Such conduct, which is specifically violative of Section 8 (1) and (3) of the Act, reflects a determination generally to interfere with, restrain, and coerce its employees in the exercise of the right to self-organization, to form, -join, or assist labor organizations , to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, and presents a ready land effective means of destroying self-organization among its employees. Be- -cause of the Respondent's unlawful conduct and since there appears to be an 'underlying attitude of opposition on the part of the Respondent to the purposes of the Act to protect the rights of employees generally,' the undersigned is con- vinced that if the Respondent is not restrained from committing such conduct, the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past, and the policies of the Act will be defeated. In order , therefore, to make effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, the undersigned will recommend that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case , the undersigned makes the following : CONOLusioNs OF LAW 1. Bakery Drivers Union Local No. 485, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices , within the meaning of Section ,8 (a). (1). 3. By discharging and discriminating in regard to the hire and tenure of em- ployment of Eugene J. Liebold, thereby discouraging membership in the In- ternational Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, affiliated with the American Federation of Labor, the Respondent has engaged in, and is engaging in, unfair labor practices , within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law , and upon the entire , record in the case, the undersigned recommends that the Respondent, ,National , Biscuit - Company,. Pittsburgh , Pennsylvania, its officers, agents, suc- cessors, and assigns, shall 6 See May Department Stores Company, etc. v. N. L. R. B. 326 U. S. 376. NATIONAL BISCUIT COMPANY 91 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , affiliated with the Ameri- can Federation of Labor, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire and tenure of. employment, or any term or condition of employment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to form labor organizations, to join or assist the International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, affiliated with the American Federation of Labor, or any other labor organization , to bargain collectively through repre- sentatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Eugene J. Liebold immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges ; (b) Make whole Eugene J. Liebold for any loss of pay he may have suffered by reason of the Respondent's discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings, during said period ; (c) Post at its plant in Pittsburgh, Pennsylvania , copies of the notice attached to this Intermediate Report marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Sixth Region, shall, after being signed by the Respondent 's representative, be posted by the Respondent, and maintained by it for 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Sixth Region in writing , within twenty (20) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before twenty ( 20) days from the receipt of this Intermediate Report, the Respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any' party may, within twenty ( 20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board , Rochambeau Building, Washington 25, D. C.,- an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended Order or to any other part of the record or proceeding ( including rulings upon all motions or objections ) as he relies, upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period , file an original and six copies of a brief - in support of the Intermediate Report and Recommended Order . Immediately 92 DECISIONS OF'-NATIONAL LABOR RELATIONS BOARD upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed , and if mimeo- graphed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 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 service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations , and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 18th day of February 1949. HOWARD MYERS, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL BROTHERHOOD of TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, affiliated with the American Fed- eration of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining.or other mutual aid or protection. WE WILL OFFER to Eugene J. Liebold immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. NATIONAL BISCUIT COMPANY, Employer. Dated-------------------- By--------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material.