Squirrel Brand Co., Inc.

SQUIRREL BRAND CO., INC. 179 SQUIRREL BRAND CO., INC. and LOCAL 348, BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA , A. F. L. SQUIRREL BRAND CO.', INC. and LOCAL 348, BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, A. F. L. Cases Nos. 1-CA-824 and 1-RC-1879. September 14,1951 Decision and Order On May 22, 1951, Trial Examiner C. W. Whittemore issued his In- termediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it be ordered to cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. It was further recommended that the Board set aside the election which was held on November 28, 1950. Thereafter, the Respondent filed exceptions to the Intermedi- ate Report, and a supporting brief. 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 Interme- diate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications : 1. The Trial Examiner found, and we agree, that the Respondent interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act. In reaching this conclusion, we rely on the following conduct, which occurred, after the Union's organi- zational campaign began and before the election was held : (1) Grant- ing a wage increase on November 3, 1950,2 days after the union organi- zational campaign began; 2 (2) illegal surveillance of union meetings, by Superintendent Guptill on the 3rq or 4th of November 1950, and by President Gerrish on the 10th or 11th of November 1950; 3 (3) Guptill's coercive statement to Mary Burbul, one of the employees, on November 27, 1950, the day before the election, that if she voted "for the Com- pany" she would retain her seniority, but would "get laid off" if she voted for the Union ; (4) and the inducement to vote against the Union implicit in the announcement by Gerrish, for the first time, also on 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds, and Styles]. s Continental Nut Company, Inc., 91 NLRB 1058; Intertown Corporation, 90 NLRB 1145; Hudson Hosiery Company, 72 NLRB 1434. 3 See Salant & Salant, Inc., 92 NLRB 343. 96 NLRB No. 27. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 27, 1950, that the Respondent had provided- for employees and their families "a free bed at the Mount Auburn Hospital;" 2. Like the Trial Examiner, we find that the discharges of employ- ees Barbara M. Shallow and Barbara F. Annino on November 3, 1950, and'employees Mary E. Compton, Helen'S. Jones, Theresa McCusker, and Marie H. (Vokey) ' Keith ' on November 6, 1950, were discrimina- tory and in violation of Section 8 (a) (3) and 8 (a) (1) of the Act.4 3. The Trial Examiner found, and we agree, that on or about No- vember 4, 1950, and) at' all. times, thereafter, the' Respondent has re- fused to bargain collectively with the Union, in violation of Section 8 (a) (5) of the Act. As indicated above, the-union organizational campaign, began, on the- morning of November 1, 1950. Shortly after noon of that day the union representatives requested; recognition of President Gerrisli but were refused: The Union - thereupon, on, the same day, file'd' a petition for, an election in Case' No: 1-RC-1879: On' Nove nbe3'' 41 1950, having obtained 42 authorization cards-a majority of the eni ployees in the appropriate unit-the uliion'representatives again re- quested recognition, and againa were rebuffed by the, Respondent:5 The parties executed a consent election agreement' on November'16; 1950. The election, whicli ' was held on' November" 28, 1950, was' lost by the Union. It is clear from the record that, immediately upon the inceptions of the Union's organizing campaign, the Respondent embarked- on -a' campaign of unfair' labor''practices, which included surveillance, a unilateral wage increase, .threats of) reprisal, promise of b'eneffts; and discriminatory discharges. Moreover, - on November 3, President Gerrish told the union organizer-- that "I'll' never give your Union' recognition." Under' these circumstances, and-on the 'basis of=the' entire record, -we are convinced that'the Respondent-did not withhold recognition of the Union on November 4, 1950, because ofI a good faith doubt' of=the Union's majority. We find, on ' the contrary, that the Respondent's refusal to recognize 'the'Union"on November 4i-1950, and thereafter, was motivated' by a• desire to gain time in which to destroy- the d In addition to the basis upon which the Trial Examiner predicates knowledge by man- agement of union adherence of the dischargees , we take into consideration the acts of sur- veillance on the part of the Respondent and the relatively small size ' of the plant. See Portage-Manley Sand Company, 95 NLRB No. 91. In discussing the discharge of the girls who had been seen openly associating with Union Organizer Iannuzzi , the Trial Examiner ' inadvertently attributed to Geriish a' remark characterizing Ianhuzzi 'as a' "bum" and advising' him to go to work' According to the record the remark in question was made by Guptill on November 4, 1950, when ' Iannuzzi offered Guptill a union circular. G Although Gerrish fixed the date of this refusal as'November 6, 1950, he' referred to'it as, "Saturday , November 6th." Saturday was Noventber '4th.- Moreover,' as found by the Trial Examiner, the other evidence clearly established the date as November 4,'-1950. SQUIRREL BRAND Co., INC. 181 Union's majority, and by a rejection of the collective bargaining principle s 4. The Respondent contends that by proceeding with the election on November 28, 1950, with knowledge of the Respondent's interference with the election, the Union waived its right to have the election set aside. We find no merit in this contention. Apart from the fact that the waiver doctrine has no application to a situation such as in the instant case where the coercive conduct continued up to the eve of the election, we find that no genuine question concerning representa- tion existed at any time by reason of the Respondent's bad faith in refusing to recognize the Union.7 We therefore regard the election as a nullity and shall set it aside. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Squirrel Brand Co. Inc., Cambridge, Massachusetts, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local 348, Bakery and Confec- tionery Workers International Union of America, A. F. L., or in any other labor organization of its employees, by discriminatorily dis- charging or refusing to reinstate any of them, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment, because of their membership in, or activity on behalf of, any such labor organization. (b) Refusing, upon request, to bargain collectively with Local 348, Bakery and Confectionery Workers International Union of America, A. F. L., as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of em- ployment, or other conditions of employment. (c) By surveillance, threats of economic reprisal, promises of bene- fit, 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 Local 348, Bakery and Confectionery Workers International Union of America, A. F. L., or 'Howell Chevrolet Company, 95 NLRB 410; Joy Silk Mills v. N. L . R. B., 185 F. 2d 732 (C. A. D. C.). IM. H. Davidson Company, 94 NLRB 142; Howell Chevrolet Company, supra . Although Member Reynolds agrees that the Union has not waived its right to have the election set aside, in reaching this conclusion he does not rely upon the reasoning of the Davidson and Howell cases in which he did not participate . Rather, he believes that the coercive acts of Gerrish and Guptill on November 27, 1950, the day before the election , occurred too close to the election to warrant application of the waiver doctrine. Cf. Denton Sleeping 'Garment Mills, Inc., 93 NLRB 329; and Member Murdock's dissenting ' opinion in the Davidson case to the extent it explicates the waiver doctrine. 974176-52-vol 96-13 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 pro- tection, or to refrain from any and all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Barbara M. Shallow, Barbara F. Annino, Mary E. Compton, Helen S. Jones, Theresa McCusker, and Marie H. (Vokey) Keith immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole the above-named individuals, and each of them, for any loss of pay they may have suffered by reason of the Re- spondent's discrimination against them, in the manner prescribed in the section of the Intermediate Report entitled "The remedy." (c) Upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of back pay due and the right of reinstatement under the terms of this order. (d) Upon request, bargain collectively with Local 348, Bakery and Confectionery Workers International Union of America, A. F. L., as the exclusive representative of all its employees in the appropriate unit as found in the Intermediate Report, and embody any under- standing reached in a signed agreement. (e) Post at its plant in Cambridge, Massachusetts, copies of the notice attached hereto and marked "Appendix A." 8 Copies of such notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's authorized repre- sentative, be posted by the Respondent immediately upon receipt thereof, 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. (f) Notify the Regional Director for the First Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the election in Case No. 1-RC-1879' be set aside, and that the petition therein be, and it hereby is, dismissed. s In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted in the notice, before the words, "A Decision and Order," the word "A Decree of the United States Court of Appeals Enforcing." SQUIRREL BRAND CO., INC . 183 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 by means of surveillance, threats of reprisal, promises of benefit, or 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 LocAL 348, BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL NOT discourage membership in LOCAL 348, BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, A. F. L., or in any other labor organization, by discriminatorily discharging any of our employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any terms or conditions of employment. WE WILL offer to the employees listed below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Barbara M. Shallow Helen S. Jones Barbara F. Annino Theresa McCusker Mary E. Compton Marie H. (Vokey) Keith WE WILL bargain collectively, upon request, with the above- named union as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, wages, hours of work, or other terms and conditions of employ- ment, and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is : All production employees, including the shipping room and truck drivers, but excluding office and clerical employees, maintenance employees, professional employees, guards, watchmen, and all supervisors as defined in the Act. All our employees are free to become, or refrain from becoming, members of the above-named union or any other labor organization 184 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not dis- criminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any labor organization. SQUIRREL BRAND CO., INC., 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. Intermediate Report STATEMENT OF THE CASE Upon objections duly filed by Local 348, Bakery and Confectionery Workers International Union of America, A. F. L., herein called the Union, to an election 'held in Case No. 1-RC-1879, and upon charges duly filed by the Union in Case No. 1-CA-824, the General Counsel of the National Labor Relations Board, herein respectively called General Counsel and the Board, by the Regional Di- rector for the First Region (Boston, Massachusetts), issued a complaint dated April 6, 1951, against Squirrel Brand Co., Inc., Cambridge, Massachusetts, herein called the Respondent, alleging that the Respondent had engaged in and was. engaging in unfair labor practices 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 complaint, charges, and notice of hearing on the consolidated cases were duly served upon the Respondent and the Union. With respect to unfair labor practices the complaint alleges, in substance, that the-Respondent: (1) Since on or about November 1, 1950, and by various officers and agents, engaged in acts of surveillance, interrogated employees concerning their union activities, threatened and administered economic reprisals, unilater- ally granted a wage increase, offered financial inducements to employees to vote against the Union, and warned employees to refrain from activities on behalf of the Union; (2) discriminatorily and to discourage union membership dis- charged six named employees ;1 (3) on or about November 4,1950, and since then, has refused to bargain collectively with the Union as the exclusive bargaining agent of all employees in an appropriate unit ; and by these acts has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. The Union's objections to the election, held on November 28, 1950, included allegations of misconduct also included in the complaint. On April 17, 1951, the Respondent filed its answer, in which it denied having engaged in the alleged unfair labor practices and affirmatively alleged that the six employees had been discharged for cause. Pursuant to notice, a hearing was held in Boston, Massachusetts, on April 23, 24, 25, and 26, 1951, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel, participated in the hearing, and were afforded full 1 Barbara M. Shallow and Barbara F. Annino on November 3, and on November 6 Mary E. Compton, Helen S. Jones, Theresa McCusker, and Marie H. (Vokey ) Keith. SQUIRREL BRAND CO., INC. 185 opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing upon the issues. The parties waived oral argument at the close of the hearing; briefs have been received from General Counsel and the Respondent. Upon the entire record in the case, and from his observation of the wit- nesses, the Trial Examiner makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Squirrel Brand Co., Inc., is a Massachusetts corporation engaged in the manu- facture of salted peanuts, other peanut products, and candy. The principal raw materials used by the Respondent in its business include peanuts, sugar, corn syrup, and nuts. The annual expenditure of the Respondent for its raw ma- terials exceeds $100,000, more than 90 percent of which is purchased outside the Commonwealth of Massachusetts. Annual sales of the Respondent exceed $100,000; more than 80 percent of such sales is shipped to customers outside the Commonwealth of Massachusetts. The Respondent does not contest General Counsel's position that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 348, Bakery and Confectionery Workers International Union of America, A. F. L., is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES • A. The setting and issues Organization began on November 1, 1950, among the Respondent's approxi- mately 70 employees. Early that day more than 30 employees signed cards authorizing the Union to represent them in collective bargaining. Shortly after noon 2 union officials, Marino Matarazzo and S. T. Iannuzzi, went to the office of Hollis G. Gerrish, president of the Respondent, and informed him that the Union represented the "people in the shop." After Gerrish told them that he had "stockholders to consult," the 2 union representatives went to the Regional Office and filed a representation petition. According to Gerrish's own testimony, he was visited by the 2 union representatives again on November 6, was asked to recognize the Union, and was offered the signed cards as proof of majority. He declined, however, and insisted that an election be held. Beginning almost immediately after Gerrish was informed of the Union's claim on November 1 there began at the plant a series of events which General Counsel claims were designed to discourage union membership and activity. These events include the discharge of six girls, surveillance of union meetings, a sudden general increase in pay, and many remarks by the superintendent which are alleged as either coercive or promises of benefit. By consent agreement an election was held on November 28. The Union lost the election. Thereafter charges and objections to the election were filed. B. The discharges; interference, restraint, and coercion 1. The wage increase On November 3, 1950, 2 days after union organization began, employees gen- eraly found in their pay envelopes a wage increase of 5 cents per hour. No an. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nouncement of the increase was made before its receipt by the employees. It is General Counsel's contention that the increase was given by Gerrish in an effort to undermine the organizational efforts. Gerrish, on the other hand, claimed as a witness that decision to grant the increase was made "around the middle of October," that,it was put into effect on October 23 for the pay period ending October 28, and that the purpose was to "off-set the increased withholding taxes." He also added that "we were in the fall of 1950 momentarily expecting a wage freeze and we were trying to an- ticipate that problem." The Trial Examiner is unable to credit Gerrish on the issue of the wage increase. No company records were produced to establish when the decision actually was made. Gerrish's testimony generally, as amply shown by the record, was confused, garrulous, and often evasive. Furthermore, lie claimed as a witness that he and his "associates" conferred and decided to grant the increase. Later in his testimony, he admitted that in December, 1950, he had told a field examiner of the Board that the increase was decided upon by him "without consultation with other members of management, on the basis of an anticipated war emergency wage freeze." Nor was Gerrish recalled to dispute the testimony of another field examiner that on January 15, 1951, Gerrish had told him that decision was made during the week of the payday in November. As explanation for not making an announcement of the increase before payday, Gerrish said that it was "not the custom," because "some get it and some don't." This explanation collides with the contrary facts of a general wage increase, and deprives itself of merit. The more credible testimony of employee Edna McCarthy, who has worked for the Respondent for 12 years, is to the effect that on all previous occasions when her pay was raised advance, announcement was made. The Trial Examiner is persuaded by the preponder- ance of credible evidence, and the inherent probabilities stemming from the Respondent's hostility toward the Union, more fully described in sections below, that Gerrish did not decide to make the general wage increase until aware of the union organization , and that it was given for the purpose of inducing em- ployees to cease activities on its behalf -2 2. Surveillance of union meetings On the morning of either November 3 or 4, Organizer Iannuzzi passed out leaflets at the plant gate announcing a meeting to be held that evening at the union office. Before the meeting some 8 or 10 girls stopped in a drug store near the union headquarters. When they came out Superintendent Ray Guptill was standing in front of a nearby theatre, facing them. They crossed the street to 11 the union office. Guptill apparently followed, and stood near the entrance to the office, watching the girls enter . On November 10 or 11 a meeting of employees was held at another hall. On this occasion, while employees were gathering, Gerrish slowly drove back and forth three or four times. There is no dispute that either Guptill or Gerrish were at the points on the occasions established by credible testimony of employees and union officials. Gerrish said, "I might very well have been on Austin Street on that night," gave no specific reason for his having been there then, but in general explained that sometimes he drove along that street on the way to the post office or to the YMCA. He merely testified 2 Factors of this situation, described below, include Gerrish's announcement to employees, the day before the election , that "At the time the last increase was given you, I decided to make certain other changes that I have been unable to do since this agitation for a union started, because it might be construed that I was attempting to prevent the formation of the union," and that "Once a union sets certain minimum rates, these become your maxi- mum rate. Left to ourselves without, the intervention of a third party, we can run this company for the advantage of all of us." SQUIRREL BRAND CO., INC. 187 that he had no recollection of driving "in the manner described by Mr. Matarazzo and Mr. Iannuzzi" and the record without direct refutation of the former's testimony that Gerrish was "looking directly at the hall and me standing in front of it" while employees were there. Although Guptill was at the hearing, he was not called as a witness. General Counsel and counsel for the Respondent stipulated that if Guptill were called he would deny having "spied" on the employees but would admit having been at the spot "on two or three occasions in the fall of 1950 ... for the purpose of meeting Mrs. Guptill." The explana- tions of both Gerrish and Guptill fail of persuasive merit, in view of other anti- union conduct by the same officials, described below. It is reasonably inferred, and the Trial Examiner finds, that both Gerrish and Guptill engaged in sur- veillance of union meetings, thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed by the Act. 3. The discharges The Respondent asserts that the discharges of the six employees on November 3 and 6 were in effect a unit reduction in force, necessitated by lack of work. The discharges will therefore be treated as a group in this section. As to the claim of General Counsel that all were discharged to discourage union activities, it appears that none of the six girls was either more or less active than others on behalf of the Union. In fact, there appears to have been no particular employee leader except, perhaps, one truck driver not involved in these proceedings. Credible and uncontroverted testimony of employees, how- ever, establishes that all six girls, during the week organization began and there- after until discharged, gathered at lunch hour with Organizer Iannuzzi on the ' office steps, where they were in full view of Superintendent Guptill, who could and did watch them from the office window. Each of the six girls signed a Lard au- thorizing the Union to represent her in collective bargaining, on November 1. It is found that management knew of their union adherence. Gerrish testified at considerable and confused length as to the discharges. He declared that he told a union official, a few days after the discharges, that they had been caused by "lack of work." He said that on November 15, at a con- ference in the Regional Office, he told the same union official that the discharges were caused by "the lack of materials and that we had to discontinue making the product." On this occasion, Gerrish said, he also told the union official that McCusker had been selected for discharge because "on several occasions short weight and over-weight-especially over-weight packages had been traced" to her, but that she had been told her discharge was due to lack of work in order that she might more easily obtain another job. As a witness, Gerrish testified at first that he decided to let six girls go because about November 2 it appeared that the Company was not going to receive a shipment of cellophane bags, pre- viously ordered for delivery on November 1. The bags were for the packing of peanut butter kisses. "If we did not get the cellophane we could not manufacture peanut butter kisses," he said. He stated that he and Guptill decided which individuals to discharge.' He added that it was "obvious we were not going to get the bags." As to the specific individuals, and why they were selected, he said that Shal- low had worked only 12 days, Annino 28 days, Keith (Vokey) and Jones 6 days, Compton 36 days, and McCusker 8 months. Later in his testimony he declared that all of these six girls were "packing peanut butter kisses, and there was no other job that we had, that they could have been put on." Casting significant light upon Gerrish's credibility as to the reasons for the discharges is his direct answer to a question by his counsel as to whether or not 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he knew whether or not these six employees were members of the Union : "I had no way of knowing Mr. Matarazzo wouldn't show me any of the cards." Later in his testimony he admitted that Matarazzo offered him the cards for inspection provided he would agree to recognize the Union if inspection convinced him of a majority, but that he refused the offer. More credible testimony establishes that Gerrish misstated facts in claiming that all six were "packing peanut butter kisses" when he decided to discharge them, which he asserts was about November 2. McCusker's testimony is unre- futed that her job, until a few hours before her discharge, had been "operating a peanut machine, filling jars," and that not until the late morning of her layoff was she shifted to "filling kisses." Until the day of her discharge, November 3, Barbara Shallow had been working with employee French, on a "shaker pack machine," which filled bag with "penny 'peanuts"-not peanut butter kisses. French was not discharged. Furthermore, French's testimony is not credibly refuted that she observed peanut butter kisses to be packed, in her department, with the single exception of 1 week beginning about the middle of November, until after Christmas, when she left her employment. Gerrish himself admitted that from 30 to 50 dozen bags of peanut butter kisses were packed on November 7, after the discharges, and that some 600 bags were packed 2 or 3 weeks later. Testimony of the supplier of the cellophane bags in question establishes that the Respondent's previous order for the same type bags was not delivered until 2 weeks after the date called for in the order. Delayed deliveries appear to have been not unusual, and there is no evidence that theretofore the Respondent had discharged employees because bags were unavailable. The Trial Examiner is unable to find merit in Gerrish's claim that a reduction in force was necessitated by lack of bags. Credible evidence and his own admis- sions establish that packing of peanut butter kisses in bags continued after the layoffs, and before the delivery was finally made of the order previously placed for delivery on November 18 Nor was any reasonable explanation offered as to why, if shortage existed, McCusker was transferred from her regular job to "filling kisses" on the day of her layoff. No records were submitted to show the actual inventory of bags. And the record of employment as well as Garrish's testimony clearly establishes that from November to Christmas at the Respondent's plant is normally a peak season. Credible evidence establishes that shifting girls from job to job was customary and frequent. From Gerrish's own records it is established that overtime work, on Saturdays, more than quadrupled from September 30, when 5 girls worked, to November 18, when 21 were called in for extra work. The Trial Examiner is of the opinion that in the last-hour transfer of McCusker is revealed a reasonable inference that some pretext was sought by Gerrish for dismissing a number of girls who had been seen openly associating with the union organizer whom, it is undenied, he had called a bum and advised to "go to work." As to McCusker, his claim that she was chosen because of having misweighed products in the past fails to withstand scrutiny. As to this employee specifically, the Respondent' s answer contends that she was dismissed "for conduct which merited such discipline." The only "conduct" cited by Gerrish or any other supervisor dealt with alleged mistakes in weighing products. On direct examination he said "we had had numerous cases of her 8 Also tending to discredit Gerrish's claim of necessity is his own testimony to the effect, that "just prior to November 1st" he had called the supplier of bags and had been counselled to "be patient . . . It was just a question of a short time ; and so we were waiting for them." SQUIRREL BRAND CO., INC. 189 lack of interest in the work," and declared she had put up short-weight jars of nuts. He said that "we spoke to her, and ahother time found the same thing happening on boxes of peanut brittle." On cross-examination he said that her work was all right until sometime during the fall; "specially in October." His testimony as to specific occasions was vague , and he finally admitted that "When she was called on it, she no longer was slack ; she went on and weighed it right." Finally, Gerrish answered in the affirmative when asked by General Counsel : "It is fair to say, isn't it , Mr. Gerrish, that for a period of probably weeks before this girl was discharged by you, her work was satisfactory ?" Thus Gerrish com- pletely negated his previous claim as to a reason for dismissing McCusker. The Trial Examiner is convinced , and finds, that the temporary shortage of bags and, in the case of McCusker a fault admittedly remedied , were but pretexts, and that the real motive for the discharges was to discourage union activities, and were discriminatory . By thus discriminating against certain employees the Respondent interfered with, restrained , and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. 4. Other acts of restraint and coercion The testimony of employee Mary Puczito is not credibly contradicted ,' and the Trial Examiner finds, that within a week or two after organization began Guptill asked why the girls were "against the firm" and told her to go among the employees and tell them that he would get for them everything the Union could. On November 27, the day before the election , Guptill told the elevator man and a candy maker that employees who voted against the Union would get a raise. On the same day Guptill told employee Mary Burbul that if she voted "for the Company" she would retain her seniority , but would "get laid off" if she voted for the Union . Shortly before the election Guptill told an assemblage of employees that they would "be better off if" they did their own talking and did not have the Union do it for them. The day before the election Gerrish read a prepared speech to the assembled employees . In it he said , in part : Do you realize that as a member of a union you will be paid according to the average, not according to your ability to produce . Average rates are set in the industry for average jobs. These become your rates of pay. If you are dissatisfied , you have to deal with the union. If you are a member of a union, you cannot walk up to me and say, "How about it? Don't you think I am worth more ?" You can't do this. You must wait until the union acts. During this speech , for the first time he announced that the Company had pro- vided for employees "a Free Bed at the Mount Auburn Hospital" The Trial Examiner is convinced and finds that the above-noted remarks of Guptill and Gerrish , particularly since made at a time when the Union was, as found below , the legal bargaining representative of all employees in an appro- priate unit , coercive and not privileged . Gerrish's statement that employees could not come to him is contrary to rights guaranteed specifically in Section 9 (a) of the Act . His announcement of the "free bed," admittedly before then 4 As noted above, Guptill was not called as a witness. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not made known to employees generally, by clear implication was an inducement to vote against the Union! 5. The refusal to bargain The complaint alleges, the Respondent does not contest and agreed at the consent election in November 1950, and the Trial Examiner concludes and finds that a unit of the Respondent's employees appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act consists of the following: All production employees at its Cambridge plant, including the shipping room and truck drivers, but excluding office and clerical employees, maintenance em- ployees, professional employees, guards, watchmen, and all supervisors as defined in the Act At the hearing there was introduced into evidence a list of female employees on the payroll as of November 4, 1950, in the above unit, numbering 39.° Also at the hearing Gerrish read into the record the names of 317 male employees like- wise in said unit. Thus the total of all employees in the appropriate unit on November 4, 1950, was 70. During the hearing counsel for the Respondent conceded the genuineness of signatures and dates appearing on union authorization cards totaling 46. Of this total 42 bear dates of November 4 or earlier. The testimony of a union official is unrefuted that no revocations of such authorization cards have been received. The Trial Examiner therefore concludes and finds that: (1) On November 4, 1950, a majority of the employees in the appropriate unit had designated the Union as their representative for the purposes of collective bargaining; and (2) on that date and at all times since then the Union was and has been the ex- clusive bargaining representative of all employees in the appropriate unit. The Respondent's answer admits that on or about November 4 it refused and since then has continued to refuse to bargain collectively with the Union. As a witness, Gerrish admitted that on November 6 he refused to agree to bargain with the Union even if inspection by him of the authorization cards proved majority representation. It is undisputed that on November 3 Gerrish told lannuzzi, official of the Union, that "I'll never give your Union recognition." The Trial Examiner concludes and finds that on or about November 4, 1950, and at all times thereafter, the Respondent has refused to bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit. This conclusion is based not only upon the factors set forth in the para- graph immediately above, but also upon the Respondent's entire course of con- duct designed to discourage union activity, as described in the preceding sections 6 The Trial Examiner finds the evidence insufficient to support the allegation of the complaint that the Respondent "paid certain of its employees sums of money for voting against the Union." The only direct evidence that extra money was actually seen in a pay envelope is in the testimony of employee Burbul, who said that on the payday following the election she saw some "loose bills" in a white envelope received by employee Loles. Burbul also said, however, that "she cover up quick so it don't show," and Loles denied receiving any extra money. Office Manager Sprague testified that some six or eight employees received their regular pay in white envelopes on the payday in question, because the supply of regular smaller envelopes was exhausted. While some suspicion is attached to the coincidence, the Trial Examiner is unable, from a preponderance of credible evi- dence, to find that any employee actually received money for voting against the Union. 6 Excluded is Floorlady Katherine O'Brien whose duties, as described by herself and numerous employees, are clearly supervisory. 7Included is Michael Nicoloro, claimed by General Counsel to be a supervisor. Credible evidence, however, establishes that his duties as a candy maker fall short of establishing him a supervisor within the meaning of the Act. SQUIRREL BRAND CO., INC. 191 of this Report, including the discriminatory discharges, the increase in wages, and the acts of interference, restraint, and coercion. Under circumstances here revealed, the Respondent may not with merit maintain that it was privileged to insist upon and rely upon the outcome of an election, since it is plain that it used the interim period for the purpose of discouraging union activity. By thus re- fusing to bargain, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. It is further concluded and found that the Respondent's conduct, above de- scribed, constituted interference and restraint of employees in the exercise of their rights to engage in the Board election of November 28,1950. 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 in 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 Respondent has engaged in certain unfair labor prac- tices, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. It will further be recommended that the election among the Respondent's employees held on November 28, 1950, be set aside. It has been found that the Respondent discriminatorily discharged Barbara M. Shallow and Barbara F. Annino, on November 3 and Mary E. Compton, Helen S. Jones, Theresa McCusker, and Marie H. (Vokey) Keith, on November 6, 1950. The Trial Examiner will recommend that the Respondent offer to them immediate and full reinstatement to their former or substantially equiva- lent positions 8 and make them whole for any loss of pay they may have suffered as a result of the discrimination against them by payment to each of them of a sum of money equal to that which she would have earned as wages from the date of the discrimination to the date of the offer of reinstatement. Loss of pay will be computed on the basis of each separate calendar quarter or portion thereof during the period from November 1950 to the date of a proper offer of rein- statement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which each would normally have earned for each quarter or portion thereof, her net earnings,' if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter.10 In accordance with the Woolworth decision, it will be recommended that the Respondent, upon reasonable request, make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay. It has been found that the Respondent has refused to bargain collectively with the Union. It will therefore be recommended that the Respondent cease and desist therefrom, and also that upon request it bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employ- 8 The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch, 65 NLRB 827. ° Crossett Lumber Company, 8 NLRB 440. 'IF. W. Woolworth Company, 90 NLRB 289. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went, and, if understanding is reached , embody such understanding in a signed agreement. The unfair labor practices found reveal on the part of the Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that the commission of other unfair labor practices may be anticipated. The preventive purposes of the Act may be frustrated unless the Respondent is re- quired to take some affirmative action to dispel the threat. It will be recom- mended, therefore, that the Respondent cease and desist from in any manner interfering with, restraining , or coercing its employees in the exercise of rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case , the Trial Examiner makes the following : CONCLUSIONS OF LAW 1. Local 348, Bakery and Confectionery Workers International Union of America, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Barbara M. Shallow, Barbara F. Annino, Mary E. Compton, Helen S. Jones, Theresa McCusker, and Marie H. (Vokey) Keith, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. All production employees at the Respondent's Cambridge plant, including the shipping room and truck drivers, but excluding office and clerical employees, maintenance employees, professional employees, guards, watchmen, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. Local 348, Bakery and Confectionery Workers International Union of America, A. F. L., was .on November 4, 1950, and at all times since has been, the exclusive representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. 5. By refusing to bargain collectively with the said Union as the exclusive bargaining representative of the employees in the appropriate unit the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of 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) 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.] THE INDEPENDENT, INC. and ST. PETERSBURG CIRCULATION DISTRIBU- TORS LOCAL, INTERNATIONAL PRINTING PRESSMEN AND ASSISTANT'S UNION OF NORTH AMERICA, AFL, PETITIONER. Case No. 10-RC- 1240. September 14,1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clarence D. Musser, hearing 96 NLRB No. 23.