Seyfert Foods Co.

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because the Employer's construction period is now at peak , eligibil- ity will be determined by the usual payroll period. [Text of Direction of Elections omitted from publication.] MEMBER PETERSON took no part in the consideration of the above Decision and Direction of Elections. CHARLES H. SEYFERT, AN INDIVIDUAL D/B/A SEYFERT FOODS Co. and LOCAL No. 40, BAKERY & CONFECTIONERY WORKERS OF AMERICA, AFL. Case No. 13-CA-1495. August 13,1954 Decision and Order STATEMENT OF THE CASE Upon a charge and an amended charge duly filed by Local No. 40, Bakery & Confectionery Workers of America, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel' and the Board, through the Acting Regional Director for the Thirteenth Region (Chicago, Illinois), issued his complaint dated August 13,1953, against Charles H. Seyfert, an individual d/b/a Seyfert Foods Co., herein called Seyfert or the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 charges and the com- plaint, together with the notice of the hearing, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that : (1) The Respondent discriminatorily discharged Martha Christine Johnson on or about June 15, 1953, and at all times thereafter has discriminatorily neglected, failed, and refused to rein- state her; (2) the Respondent caused a number of its employees to engage in a concerted work stoppage or strike in protest against John- son's discharge; (3) the Respondent, on or about June 15 and 16 and July 9, 1953, rejected the striking employees' unconditional requests for reinstatement and, beginning on or about June 17, 1953, hired re- placements for the striking employees; (4) the Respondent increased the wages of the nonstriking employees in order to discourage their joining in the strike; (5) the strike was an unfair labor practice strike or, alternatively, was an economic strike converted and prolonged by 'This term specifically includes counsel for the General Counsel appearing at the hearing. 109 NLRB No. 115. SEYFERT FOODS CO. 801 the Respondent into an unfair labor practice strike; and (6) the Re- spondent uttered various threats against the striking employees be- cause of their union membership and participation in the strike. On September 21, 1953, the Respondent filed his answer to the com- plaint, admitting that his operations affected interstate commerce but reserving the right to contest the jurisdiction of the Board, denying the commission of the alleged unfair labor practices, and interposing as affirmative defenses that: (1) Johnson was discharged for miscon- duct in the course of her employment; (2) the striking employees did, of their own free will and without notice to the Respondent, leave their jobs and thereafter failed to offer to return or report for work; and (3) all those employees who expressed a desire to return to work were informed by the Respondent to apply, and some of them have returned to work for the Respondent. Pursuant to notice, a hearing was held in this case from October 12, 1953, through October 15, 1953, before Horace A. Ruckel, a Trial Ex- aminer duly designated by the Chief Trial Examiner. All parties were represented by counsel, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce rel- evant evidence, to argue orally upon the record, and to file briefs. Briefs were received from the Respondent and the General Counsel. During the course of the hearing, the Trial Examiner ruled on ob- jections to the admission of evidence and on various other motions. At the close of the General Counsel's presentation of his case, the Trial Examiner denied the Respondent's motions to dismiss the com- plaint. The Respondent again moved to dismiss the case at the close of the hearing; the Trial Examiner reserved ruling thereon. The motion is hereby denied for the reasons indicated below. Subsequent to the conclusion of the hearing, Trial Examiner Ruckel became unavailable to the Board for the purpose of preparing an In- termediate Report. Thereafter, the Board, acting pursuant to Sec- tion 102.62 of National Labor Relations Board Rules and Regulations, Series 6, as amended, issued an order that this case be transferred and continued before the Board; that no Trial Examiner's Intermediate Report be issued therein; and that proposed findings of fact, proposed conclusions of law, and proposed order be issued. On May 11, 1954, the Board issued its proposed findings of fact, proposed conclusions of law, and proposed order in this proceeding. Thereafter, the Respondent filed exceptions thereto and a supporting brief. The Respondent's request for oral argument is hereby denied as, in our opinion, the record, including the exceptions and briefs, ade- quately presents the issues and positions of the parties. The Board has considered the proposed findings of fact, proposed conclusions of law, and proposed order, the exceptions and brief, and the entire record in the case, and hereby makes the following : 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is engaged in the business of manufacturing, dis- tributing, and selling potato chips, popcorn, and allied products at his sole plant and principal office located in Fort Wayne, Indiana. In the course and conduct of his business, the Respondent has continu- ously caused large quantities of raw materials, supplies, and equip- ment valued 'annually in excess of $250,000 to be used in the manufacture, 'distribution, and sale of his products, of which total more than 50 percent originated outside the State of Indiana and was shipped directly to the Respondent; and he has continuously caused large quantities of his products valued annually in excess of $500,000 to be sold, of which total more than 15 percent was shipped and trans- ported in interstate ' commerce from Fort Wayne, Indiana, into and through States of the United States other than the State of Indiana. Although the Respondent conceded that these facts as to his opera- tions, which were set forth in the complaint, were correct, and conceded also that he was engaged in interstate commerce, he contended that the impact of his operations upon commerce was so slight that the Board should as a matter of policy decline to assert jurisdiction herein. We find, however, that the Respondent is engaged in com- merce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED Local No., 40, Bakery & Confectionery Workers of America, AFL, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES 2 A. The discharge of Martha Christine Johnson 1. Johnson's union activity The Union began its campaign to organize the Respondent's em- ployees about the middle of May 1953. Finck, an organizer, handed out union literature and application forms to the employees as they left the plant. Very early in the campaign, Johnson was asked by some of her fellow workers to take an active part. As she was one of the oldest employees in the plant in point of service, they main- tained that she would have considerable influence upon the relatively 2 Except as otherwise indicated, the facts set forth herein are based upon uncontradicted testimony or unimpeached documentary evidence or both. SEYFERT FOODS CO. 803 newer employees. Johnson agreed to talk to some of the employees and to ask them if they were going to sign applications. She signed an application herself on May 22, and, during lunch and rest periods, handed out applications to other employees and asked if they wanted to sign them. Those who signed either mailed their applications to the Union or gave them to Johnson for mailing. On or about June 9 or 10, Van Wagoner, who Seyfert admitted was a supervisor, called Johnson away from the girls with whom she was working. Johnson testified as to their conversation as follows : I went down there, and lie said, "what do you think about this union," and I said "What do you mean?" He said, "Do you think it is going to be in," and I said, "Yes, I think so. They are pretty nearly all signed up, so that they can get them voted in." He said, "Do you think that they are doing right?" And I said, "Well, if they didn't think it was right, why would they be send- ing these slips in to sign up for it, if they didn't." . . . He said, "I knew that if I asked you, I would find out what it was all about, and I have found out the truth." Van Wagoner did not testify. We credit Johnson's uncontradicted testimony, and find that by Van Wagoner's inquiries the Respondent indicated its knowledge of Johnson's interest in the Union. On Thursday morning, June 11, an employee named Perry asked Johnson for a union application form. Johnson gave her one during the rest period. The next morning, Friday, June 12, Perry told John- son she had not had time to fill out the application form and asked Johnson to do it for her. Johnson did so, and gave it to Perry to sign when she relieved Perry at her machine. Perry signed it and gave it back to Johnson, commenting as she did so that Johnson should not permit Popplewell, a foreman who was present, to see what she was doing. Johnson replied, "I don't know why you don't want him to see it. They ought to know it by this time; they all know it anyhow." The employees who were present when this incident occurred and who testified agreed that Popplewell was present but disagreed as to how far he was from Johnson and Perry. Employee Hilgeman, who was standing near Popplewell, testified that she noticed Perry and Johnson were engaged in conversation, which was unusual as a girl going out for her rest period did not usually linger. However, Hilgeman said her back was turned to them and she could not hear what was said. Employee Robinson testified, however, that she was 5 or 6 feet from Johnson and Perry, that Hilgeman and Popplewell were about the same distance, and that she heard what was said. Johnson also placed Popplewell about 5 feet from her. Neither Pop- plewell nor Perry testified. 334811-55-vol. 109-52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of all the testimony, we find that Popplewell, whose supervisory status was admitted by Seyfert, heard the conversation between Johnson and Perry and saw the incident which took place. The Respondent admitted knowledge that the Union was conduct- ing an organizing campaign. From the incidents described above we find that the Respondent was aware also of Johnson's assistance in the organizing campaign. 2. Johnson's employment history Johnson had been employed by the Respondent for about 8 years prior to her discharge on June 15, 1953. The Respondent conceded that her work was satisfactory, and that she was reliable in attendance and in the performance of her duties. Her job was to pop corn, but because of her long experience she was capable of performing prac- tically every production job in the plant, and was consequently fre- quently assigned to relieve other operators. The only criticism of her work was made by Reed, who had been her foreman before he became the plant superintendent in about the spring of 1951. She testified that he sometimes had to caution her against popping too much corn. The corn she popped on the second floor was conveyed by chute to the first floor, where it was packed in bags of various sizes. The rate at which corn was packed depended upon the sizes being used, which were changed from time to time, and Johnson was not informed as to these changes. She was never criticized for not popping enough corn. The Respondent claimed that Johnson was discharged for pilfering and eating merchandise and for misconduct. The alleged misconduct consisted of her being seen at times away from her work station. This did occur, but it is not clear from the record whether or not on these occasions her duties took her to the places in question. In addition to working in various parts of the plant, at times she had to go to storerooms for supplies, labels, and packaging materials. The Respondent permitted his employees to eat all they wanted of items it manufactured, such as popcorn and potato chips, but forbade their eating items which were purchased for resale. Johnson and two other employees testified that they were told of this rule at a meeting about 2 years ago, and not since then. Reed, on the other hand, testi- fied that he called the employees together frequently to warn them against pilferage, that these meetings were sometimes called for that express purpose and that the subject was raised also at meetings called for other purposes, that more than one such meeting had been called in 1953, and that the most recent of these meetings was in the spring of 1953. He could not recall, and had not recorded, the dates of these meetings nor the subjects discussed other than pilferage. SEYFERT FOODS CO. 805 Reed also testified that sometime early in 1953 he posted notices, stating the rule against eating any of the jobbed merchandise, on the walls and doors of the warehouse where these items were stored, but that these notices had gradually disappeared and were not replaced so he had no copy to put in evidence. No employee testified to having seen such notices, and Johnson denied that she had. Although the Respondent maintained that pilferage by employees was a very serious problem, he did not know and could not estimate the cost as none of his inventories or other records contained this in- formation. Reed stated that he did not contend that Johnson or other employees were carrying stolen food out of the plant, but that they were eating the food they pilfered in the plant. Although the Re- spondent admitted that more than one employee must have been pil- fering food, Seyfert testified that he did not know of anyone other than Johnson who was fired for pilfering but that there probably were some others. Reed testified that employees other than Johnson had been dis- charged for stealing, but he could not recall any of their names, and he stated that there had been no such discharges since he was promoted from foreman to superintendent about 11/2 years ago. The Respondent pointed to specific incidents upon which he relied to establish that Johnson was discharged for pilferage. One such incident occurred in April 1953 and involved a can of sardines. The Respondent bought for resale cards to which were attached glassene wrappers, each of which contained a can of sardines, crackers, a nap- kin, and a fork. On occasion the Respondent accumulates a quantity of these cards on which a package is missing, a can is rusted, a label is torn, or the crackers are broken, and reassembles them onto complete and presentable cards. On the day in question Johnson was sent by Foreman Popplewell to the room where sardines were being retarded to help with this work. Employees Johnson and Hilgeman testified without contradiction that Popplewell asked the girls who were doing this work if they had ever tasted the sardines; that when Hilgeman answered in the negative, Popplewell said they were very good; that when the girls found a can which was rusted and had a torn label, they asked him if they could open it; that when he merely shrugged, John- son opened the can; and that she found the sardines were packed in oil, which she could not eat, but some of the other girls tasted them. Cawvey, who was in charge of buying and selling jobbed items for the Respondent, entered the room at that moment and saw Johnson holding the opened can. He said nothing to Johnson about it, but re- ported it to Seyfert, who told him to see Superintendent Reed about it, which he did. Reed testified that he went to where the girls were work- ing, saw Johnson still holding the opened can, and "told her that she knew better than that, and that we couldn't' permit that to go on for- ever " Reed testified that he noticed there were several other girls 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present, but that he said nothing to any of them, and he could not iden- tify anyone who was present except Johnson. Cawvey testified that he did not know whether or not Reed went to the room where the girls were working. Although Johnson and Hilgeman both testified about Cawvey coming into the room, neither of them mentioned that Reed did, and on cross-examination by the Respondent both of them denied that he did. Johnson claimed that the rule against eating jobbed items made an exception of damaged goods, but Cawvey, when asked about this, tes- tified that if a can were without a label or for any other reason unsal- able, "I would have thrown it away, and see that it was thrown away."' Johnson testified, without contradiction, that 10 or 15 minutes after this sardine incident, Foreman Popplewell warned her not to open any more sardine cans "because they are hollering about it," that she offered to pay for the can she had opened, but that Popplewell told her not to do so. Seyfert testified that Reed and Cawvey had reported to him before April that Johnson was pilfering food and was leaving her post, but that the sardine incident in April was the last one, and that he knew of no incident between April and June. Reed, however, testified that he saw Johnson once since the sardine incident, on about May 1, in a storeroom, that he was with an insurance inspector, that he motioned to Johnson to leave, which she did, and that he said nothing to her- about it then or later. Although some of the storage rooms in the plant are kept locked, this one was not. In addition to pretzels and_ nuts, packing materials are kept in this room. The Respondent claimed that the storeroom adjoining the room where Johnson worked was kept locked, and that the 2 windows in the wall between the 2 rooms were nailed shut. Various employees as well as supervisors, however, had access to the locked storerooms, and Cawvey admitted that these employees could have eaten some of the missing items. Furthermore, foods were kept in various places. that were not locked. Cawvey testified that construction was started in April of storage space that would be large enough and adequately safeguarded. In the meantime, however, Cawvey testified, "I always take a walk through our plant in all departments every time I am in the building since we have merchandise from top to bottom." In the course of those walks, he saw Johnson once during May in the warehouse. He had no idea what she was doing and did not ask her. He reported it to Reed, with whom he said he discussed pilfering at least once a week, and asked Reed to compel Johnson to stay at her work station. About the first of June, Cawvey reported to Reed that he had caught Johnson in the nut room with a package of nuts in her hand, and_ SEYFERT FOODS CO. ^ ' 807 that when he came in she put it down' and left. Reed stated, on cross- examination by the General Counsel, that it was a small package which she might have brought with her as part of her lunch, that he did not investigate or speak to Johnson about it, and that he did not believe Cawvey spoke to her about being away from her post or about pilfering as he was not her supervisor. There is no evidence that Caw- vey ever spoke about this matter to Johnson's immediate supervisor, Popplewell, but he reported it to Reed and, on at least one occasion, to Seyfert. Cawvey testified that the next time he spoke to Reed about pilfering was during the second week in June, and that he showed him a collec- tion of items which had apparently been tampered with, and also a list he had made of goods affected during the preceding month 3 Caw- vey then took Reed to the garage to show him a number of items there which he was "cleaning up" or reclaiming. When Reed was asked what Cawvey said to him in the garage, he replied : Well, that was when he said, "We are going to have to put an end to this," and he said, "that you have enough on her now; that we know she has been into these things; that it is time to do something." Later the following testimony was adduced from Reed : Trial Examiner RucKEL: What has this to do with Martha Johnson. Are you contending that you have information that she got in the garage and pilfered these things? The WITNESS : No. They had some merchandise that had been pilfered, and they were bringing it down to see if they could not salvage it and try to dispose of it. Trial Examiner RUCKEL : You are not contending that she pil- fered those missing packages? The WITNESS : No, I am not contending that she pilfered those. Employee Rema Brown testified about a conversation with Cawvey a few days after Johnson's discharge in which- I asked him why they fired Martha and he didn't say nothing. I said they fired her for union activities, didn't they? . . . And he said that is right . . . "We are going to prove we caught her stealing." Cawvey testified but did not deny that he made these remarks. We credit Brown's testimony, and find that Cawvey made these admissions. 3 The list showed a total of items valued at $265.97, but many of the items listed could admittedly be reclaimed. Furthermore, Seyfert testified , "The suppliers, as a general rule, would stand the spoilage." 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The discharge of Johnson When Johnson arrived at work on Monday, June 15, she found her card missing from the rack. When she went to Superintendent Reed's office, he told her that she was discharged for stealing and misconduct. Seyfert was out of the city on June 15. Although Reed was author- ized to hire and discharge employees, and was in complete charge of the plant in Seyfert's absence, nevertheless, Seyfert testified, he was "consulted by Mr. Reed concerning her discharge prior to the dis- charge being effected." He testified further that "Mr. Reed is in charge of the hiring and firing, and he brought to my attention what had happened Friday of the previous week, and this same matter had been discussed innumerably before, and I told Reed that it was up to him to do as he saw fit since he is in that capacity. That is what he is being paid for." It was not explained why Reed consulted Seyfert on a matter within his jurisdiction, nor what was meant by Seyfert's reference to something that happened "Friday of the previous week." Weighing all the probabilities, we find that Seyfert meant the incident in which Johnson solicited employee Perry's union application in Foreman Popplewell's presence. While this incident occurred on the Friday preceding the conversation between Seyfert and Reed, and not on the Friday of the previous week, we attribute this discrepancy to• an inadvertency in Seyfert's testimony, as the record contains no, other reference to any incident occurring on the latter Friday. On June 18, Johnson went to the plant to get her report of unem- ployment. Noting that the reason checked on the printed form for her termination was "Discharged for misconduct in connection with his work," she asked Reed to state on it the reason he gave her, namely, stealing. He refused although the form contains the item "Discharged for admitted or proved dishonesty in connection with his work." The Respondent introduced in evidence as his Exhibit No. 1 the report of a deputy for the Indiana Employment Security Division stat- ing, as the reasons for the discharge, that : ". . . The employer states the claimant was not discharged for alleged union activities. She was discharged for misconduct in connection with work. Such mis- conduct consisted of causing dissatisfaction among her coworkers and frequently absenting herself from her work area without permission of and report to the foreman." There was no reference to stealing. The deputy found that Johnson was discharged for misconduct. After the close of the hearing in the instant case, the Union received the following decision of the Indiana Employment Security Division Appeals Referee :' 4 The Union sent copies of this decision to the Respondent, the Regional Office, and the Board with a request that the decision be received in evidence as the Union's Exhibit No. 1. No objection to its receipt has been filed. It is hereby incorporated as part of the record in this case. SEYFERT FOODS CO. 809 CASE HISTORY-SOURCE OF APPEAL : The claimant has appealed from the initial determination of the claims deputy who ruled that she was discharged for misconduct in connection with her work. A hearing was held before a referee in Fort Wayne, In- diana. On October 22, 1953, at which time the claimant appeared in person and was represented by counsel. The employer was represented by its owner, the superintendent, and by counsel. STATEMENT OF FACT : The claimant, who had been employed at the employer's food processing concern in Fort Wayne, In- diana, was discharged on or about June 15, 1953. In April, 1953, the claimant was reprimanded by her superiors for opening and consuming a can of sardines, which belonged to the employer and was one of the food items distributed by them. On or about June 14, 1953, the sales manager of the employer concern com- plained to the superintendent that merchandise was disappear- ing and he informed the superintendent that he had noticed the claimant in the storage room on different occasions. Also, it was established here that the claimant had been away from her work on a number of occasions, although it was contended by her that it was necessary for her to be away from her post of duty to obtain supplies. In view of the time element, it must be said that apparently the employer condoned such act, for her dis- charge did not immediately follow such violation. Although the sales manager had complained to the superintendent of the claim- ant's activity, which no doubt eventually contributed to her dis- missal, yet, no action of misconduct was established by competent evidence for which a disqualification can be imposed for having been discharged for misconduct in connection with her work. DECISION : The initial determination of the claims deputy is hereby set aside. It is held that the claimant was discharged on June 15, 1953, but not for misconduct in connection with her work and she is entitled to benefits if otherwise eligible. Concluding Findings We have found above that the Respondent knew of Johnson' s inter- est in and activities on behalf of the Union, as demonstrated by Super- visor Van Wagoner selecting her for questioning regarding the progress of the union organizing campaign. This knowledge of the Respondent was corroborated when Foreman Popplewell observed Johnson on Friday, June 12, obtaining employee Perry's signed union application. Johnson was summarily discharged the following Mon- day morning. We regard the following as significant factors in re- solving the issues as to Johnson's discharge : The length of time that Johnson had worked for the Respondent; the Respondent's admis- sions as to the satisfactory quality of her work; the failure to explain 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD why Superintendent Reed consulted Seyfert about the discharge al- though Reed had full authority to effect the discharge without Sey- fert's permission; the reference to this Seyfert-Reed conversation to the incident on Friday when Foreman Popplewell saw Johnson sign- ing up Perry; the Respondent's attempt to show large-scale pilfering of foods followed by Reed's admission that much of the loss clearly had no connection with Johnson; Supervisor Cawvey's admissions to employee Brown that Johnson had been discharged because of the Union but that the Respondent would prove that she had been dis- charged for stealing ; Reed's refusal to state on Johnson's termina- tion slip that she had been discharged for stealing although he gave her that reason orally; the Respondent's failure to mention stealing in the reasons advanced to the Indiana Employment Security Division; the determination by the appeals referee of that agency that Johnson had not been discharged for misconduct in connection with her work; 5 and the Respondent's failure to establish any dereliction by Johnson following the sardine incident in April to explain her discharge in June. Upon the basis of these factors and upon the entire record, we find that Johnson was not, as the Respondent claimed, discharged for misconduct and pilferage, but that she was discriminatorily dis- ,charged because of her participation in the Union' s organizing cam- paign, in violation of Section 8 (a) (3) and (1) of the Act. B. The walkout The parties stipulated at the hearing that 19 named employees 4`walked out concertedly on the morning of June 15, 1953, in protest at the discharge of Martha Johnson in accordance with their own voluntary decision and without prior notice to or consultation with the Respondent," and that 2 named employees "did not walk out on June 15, 1953, but on June 19, 1953, did not report for work." 6 The striking employees remained in front of the plant about an hour, then went to union headquarters. Before noon that day, Bar- bour, the business agent of the Union, and Johnson called on Reed. Later the same day Barbour and the president of the union local called on Reed. The following day, June 16, Barbour and Finck, the or- ganizer, called on Reed. The testimony as to what was said at these conferences is in sharp conflict, the witnesses for the General Counsel contending that Bar- bour, on each occasion, made unconditional requests for reinstatement on behalf of the striking employees, whereas the witnesses for the s While a decision by another agency as to an issue over which the Board has exclusive jurisdiction is not binding upon the Board , it is given due consideration . See Aerovow Corporation, 104 NLRB 246, enfd. 211 F. 2d 640 (C. A., D. C.). 6 Other employees who worked on the second shift joined the group who had walked out but reported to work when they were due. SEYFERT FOODS CO. 811 Respondent maintained that Barbour was chiefly concerned with gaining the Respondent's recognition of the Union as bargaining representative.7 When Barbour reported back to the union hall after the June 16 conference, the strikers present voted to begin picketing the following morning, June 17. Reed had hired no replacements of the strikers prior to June 17 because, as he testified, "I didn't know whether these people were figuring on returning to work or what was going on." After he saw the pickets on June 17, however, he stopped production to call the employees together and, he testified, "I told them I appreciated them for sticking with us," and "I informed the employees that we were going to need help at this time of the year, and that I was increasing our pay scale so that we could obtain more help." As a result, some replacements were hired, but the Respondent's witnesses could not state how many. Following a conference at the Board's Regional Office, the Union, on July 3, 1953, sent the Respondent a written application, containing the signatures of all but ones of the complainants, which stated that- WE, the undersigned employees hereby unconditionally repeat our request to return to work immediately. The same uncondi- tional offer was made in our behalf by Mr. Barbour on June 15th, 1953 and by Mr. Finck on June 16th, 1953. We repeat again that we are ready and willing to go to work immediately. In response, Reed, on July 9, wrote to Barbour as follows: I am in receipt of a registered communication under date of July 3, 1953 on the stationery of the Bakery and Confectionery Workers Union, though not signed by any official of that union or yourself. Our company has no comment with respect to the type- written assertions set forth therein, but with regard to the con- text thereof, it seems that certain of our former employees indi- cate a willingness to return to work. These employees voluntarily, and with no notice to the com- pany, and with their own volition, left their jobs. Whatever prompted their decision to do so, was their own business. Our company regretted their decision and we wish them to know if at any time they would like to apply for employment, this company will consider their application. Copies of this letter will be sent to those employees who have signed the communication above referred to. '' Some of the striking employees testified that they had also made individual applica- tions for reinstatement during the strike which the Respondent rejected , but the Respond- ent denied that these requests were made. 8 Richard Tipton. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reed also sent letters to the individual complainants dated September 21, 1953, stating that : "If you are interested in returning to work please see me in our office not later than 2:30 p. in. Wednesday, Sep- tember 23,1953." Some of the complainants have been reinstated, but the Respondent's witnesses were unable to state how many. In addition, some of the complainants who were working during the summer vacation have returned to school. Concluding Findings The parties herein stipulated that the employees "walked out con- certedly on the morning of June 15, 1953, in protest at the discharge of Martha Johnson. . . ." We have found that Johnson was dis- criminatorily discharged in violation of the Act. Accordingly, on the basis of the stipulation of the parties and on the entire record, we find that the strike was an unfair labor practice strike. The stipulation stated further, and the Respondent emphasized throughout the hearing and in his brief, that the strikers went out on June 15 "in accordance with their own voluntary decision and without prior notice or consultation with the respondent." The Respondent does not make clear what effect he thinks should be given to the failure to notify or consult with it. In Vest Coast Casket Company, Inc.,9 the Board stated as follows : The Respondent further contends that even if the strike was motivated in part by Smith's discharge, it was never so advised by the Union and was therefore not given an opportunity to correct any unfair labor practice it may have committed. The Respond- ent argues, therefore, that the strike should not be considered an unfair labor practice strike. However, we are aware of no reason in law or policy which would make the rights of unfair labor practice strikers turn upon whether or not the union had pre- viously advised the employer of its strike demand; this Board has already held otherwise [citing case]. Having violated the law in discharging Smith, the Respondent must be held responsible for the consequences which flowed therefrom, including the fact that the discharge provoked a strike. Moreover, in this particular case, whatever superficial equity there may be in the Respondent's position is destroyed by the fact that the Respondent was not without knowledge that the Union was protesting the discharge of Smith and claiming that it was discriminatory before the Re- spondent denied reemployment to the strikers. As the walkout on June 15 was an unfair labor practice strike, the Respondent had a duty to reinstate the strikers, upon their uncon- 0 97 NLRB 820, enfd. 205 F. 2d 902 (C. A. 9). SEYFERT FOODS CO. 813 ditional application, to their former or substantially equivalent posi- tions, laying off if necessary any replacements hired during the strike to It must be determined, therefore, whether or not there was an un- conditional request for reinstatement. Without resolving the disputed versions of the several witnesses as to what occurred at the June 15 and 16 conferences between the representatives of the Union and of the Respondent, we find that in any event the written request of July 3 was without question an unconditional application for reinstatement. Just as clearly, the Respondent, in its reply of July 9, rejected this application. It invited the strikers who wished to return "to apply for employment" without explaining why the July 3 application was unacceptable. Under all the circumstances, we find that the Respondent, on July 91 1953, discriminatorily rejected the unconditional request for rein- statement of the unfair labor practice strikers who signed the appli- cation of July 3, 1953, in violation of Section 8 (a) (3) and (1) of the Act." C. Interference, restraint, and coercion 1. The wage increase The complaint alleges as a violation of Section 8 (a) (1) of the Act that the Respondent "On or about June 16, 1953, did increase the wages of all its employees that continued to work despite the aforesaid unfair labor practice strike in order to discourage the said employees from joining in the said unfair labor practice strike." Employee William Baker testified that it was on June 15, the same day as the walkout, that Reed announced "that we was getting a ten cent raise and explained the situation about everybody walking out, and said it was for appreciation of our staying with the company." Reed's testimony, however, was that it was on June 17 or 18, after he saw the pickets, that he told the nonstriking employees that he ap- preciated their loyalty, that he needed replacements for the strikers, and that he was increasing the wage rates. The increase was given to the employees who continued to work during the strike, and also to new employees and to striking employees who returned to work. In Wagner Iron Works '12 the Board affirmed the Trial Examiner's finding that the employer therein had engaged in unlawful interfer- ence, restraint, and coercion by, among other acts : ... granting to employees who worked during the strike 10 hours' pay for 9 hours' work to induce them to refrain from join- ing the strike; promising and granting to employees an increased 10 De Soto Hardwood Flooring Company, 96 NLRB 382. ' See Marden Manufacturing Company, 106 NLRB 1335. 32 1 t►a 'aLRB 445. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bonus for bringing in new employees during the strike, James Thompson d Co., Inc., 100 NLRB 456; West Coast Casket Com- pany, Inc., 97 NLRB 820... . In James Thompson c Co., Inc.,13 the Board found a violation of Section 8 (a) (1) of the Act on the basis that the employer therein- ... admitted at the hearing that the Respondent placed the $5 bills in the employees' pay envelopes, in part, to reward nonstrik- ers and replacements for crossing the Union's picket line. Under the circumstances, we find that the Respondent granted the $5 wage increase for the purpose of discouraging strike and other union activity. The Court of Appeals for the Second Circuit," in sustaining this finding of the Board, stated : The second instance was a wage advance about October 15th of five dollars a week to all those who had remained at work. The respondent explains this by saying that there was more work to do at the plant because of the strike, and that it was a disagreeable thing to pass the picket lines, which we can well believe. On the other hand, the raise was made general on January first, and con, tinned after the strike was over. . . . Regardless of the respond- ent's motive that was conduct that the recipients of the advance would naturally, if indeed not inevitably, think was made to en- courage them for not joining the union. In accordance with these Board and court determinations, and on the basis of Reed's admissions and of the entire record, we find that the Respondent, in increasing the wage rates during the strike to reward the employees who continued to work, sought by granting such bene- fits to discourage their participating in the strike, and thereby engaged in interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act. 2. Remarks by Foreman Popplewell The complaint alleges that the Respondent, by Foreman Popple'- well, whose supervisory status was conceded by the Respondent, "did threaten its employees to the effect that if the Union was successful in organizing the employees in the plant, both hours of work and pro- duction would be decreased." Employee Charlotte Robinson testified that Popplewell "said if the union got there, our hours would be cut, and our production put on a certain scale, and after we got that out, we would go home." Employee Norma Criswell'15 who was present, testified as to this conversation 100 NLRB 456 at 465. 1 N. L. R. B. v. James Thompson & Co., Inc., 208 F. 2d 743 at 748 (C. A. 2). 15 Both Robinson and Criswell had walked out but have been reinstated. SEYFERT FOODS CO. 815 that Popplewell said "that if we got the union in that our hours would be cut, and that the work would be cut down. . . ." Popplewell did not testify. We credit Robinson and Criswell, and find that by these, threats to reduce the hours of work if the union organizing campaign was 'successful, the Respondent violated Section 8 (a) (1) of the Act. 3. Remarks by Cawvey The complaint attributes several coercive remarks to Cawvey. The Respondent did not expressly concede nor deny Cawvey 's supervisory status. Cawvey described himself as the sales manager and as "in complete charge of our sales division, and also have the responsibility of the buying of approximately 90 percent of all items we offer for re- sale." He has working under him 8 route salesmen , 1 route super- visor, a boy in the office to do the reordering, and a part -time mer- chandise checker. We find that Cawvey is a supervisor within the meaning of the Act. The complaint alleges that Cawvey "did threaten its striking em-' ployee Rema Brown, that she could never return to work for the Re- spondent because of her membership in and activities on behalf of the Union, and particularly because of her participation in the said concerted activity and unfair labor practice strike." Several employees, including Brown and Johnson, testified about remarks by Cawvey to the effect that Brown and other strikers would never be permitted to return to work. Cawvey expressly denied mak- ing some of these remarks but failed to deny others . When asked by counsel for the Respondent if he had ever threatened that Brown could never return to work because of her union membership, he re- plied only that "I do not recall ever stating that she could never return to work." Cawvey admitted that he had been so angered by some of Brown's activity on the picket line that he had told Barbour, the union representative, that if Brown did not stop such activity he was ``going to personally mash her in the mouth ." He denied that he made the same threat directly to Brown, but Brown , Johnson, and employee Alice Rayfield testified that he did. As found above, Cawvey had admitted the plan to prove that John- son was discharged for stealing to cover up the real reason for her discharge, and he played a principal role in this plan. In view of this fact, of his admitted animosity toward Brown because of her ac- tivity on the picket line, and of the remarks attributed to him show- ing animus toward Brown which he failed to deny, we credit the testi- mony of Brown and the other employees who testified on this matter, and find that Cawvey did threaten that Brown would never be rein-, stated because of her strike activity , in violation of Section 8 (a) (1) of the Act. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint attributes various other coercive remarks to Cawvey and to Reed, and witnesses for the General Counsel testified that they did make these remarks. Cawvey and Reed denied them. As such violations of Section 8 (a) (1), if they occurred, would be merely cumulative, we shall not resolve these conflicts in testimony. In ad- dition, some of the witnesses for the General Counsel attributed coer- cive remarks to Cawvey which Cawvey failed to deny. As these remarks were not specifically alleged in the complaint, however, to constitute violations of the Act, we shall make no findings thereon. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Re- spondent described in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening or obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order him to cease and desist therefrom and to take affirmative action which will effectuate the policies of the Act. Having found that the Respondent has discriminated in regard to the hire and tenure of employment of Martha Christine Johnson, we shall order him to: (1) Offer her immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges; and (2) make her whole for any loss of pay she may have suffered by reason of the discrimina- tion against her by payment to her of a sum of money equal- to that which she would have earned during the period from June 15, 1953, the date of the Respondent's discriminatory discharge, to the offer of reinstatement, less her net earnings during said period.'6 Back pay shall be computed in accordance with the Board policy set out in F. W. Woolworth Oo?npany, 90 NLRB 289. Having found further that the Respondent has discriminated in regard to the hire and tenure of employment of certain unfair labor practice strikers, we shall order him to : (1) Offer to the striking em- ployees, named on the list attached hereto and marked "Appendix B," who have not already been reinstated or offered reinstatement, im- mediate and full reinstatement to their former or substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any replacements hired since the strike began on June 15 1953; and (2) make these striking em- ployees whole for any loss of pay they may have suffered by reason of 16 Crossett Lumber Company, 8 NLRB 440. SEYFERT FOODS CO. 817 the' discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned during the period from July 9, 1953, the date of the Respondent's discrimina- tory refusal to reinstate, to the offer of reinstatement, less his net earn- ings during said period .17 Back pay shall be computed in accordance with the Board policy set out in F. W. Woolworth Company, supra. Having also found that Richard Tipton, an unfair labor practice striker, did not participate with the other strikers in the uncondi- tional request for reinstatement on July 3, 1953, and in the absence of evidence that he made such an application thereafter, we shall order the Respondent, if Tipton makes an unconditional application within 5 days from the issuance of this Order: (1) To offer him im- mediate and full reinstatement to his former or a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, any replacement hired since the strike began on June 15, 1953; and (2) make him whole for any loss of pay he may suffer if the Respondent discriminatorily refuses to re- instate him, by payment to him of a sum of money equal to that which he would have earned during the period from 5 days after his appli- cation to the Respondent's offer of reinstatement. In view of the nature of the unfair labor practices which we have found that the Respondent committed, the commission by the Re- spondent of similar and other unfair labor practices may reasonably be anticipated. The remedy should be coextensive with the threat. We shall therefore order that the Respondent cease and desist from infringing in any manner 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 this case, the Board makes the following : CONCLUSIONS OF LAW 1. Local No. 40, Bakery & Confectionery Workers of America, AFL, 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 Martha Johnson and the employees listed in Appendix B, and thereby discouraging concerted activity and membership in the above- named labor organization, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. By interfering with, restraining, and coercing his employees in the exercise of rights guaranteed in Section 7 of the Act, the Respond- '* Crossett Lumber Company, supra. 1° See May Department Stores v. N. L. R. B., 326 U. S. 376, affg. as mod. 146 F. 2d 66 (C. A. 8). 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) 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. Order Upon the basis of the-above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Charles H. Seyfert, an individual d/b/a Seyfert Foods Co., Fort Wayne, Indiana, his agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging concerted activity or membership in Local No. 40, Bakery & Confectionery Workers of America, AFL, or in any other labor organization of his employees, by discriminatorily dis- charging or refusing to reinstate any of his employees or in any other manner discriminating in regard to their hire or tenure of employ- ment. (b) Threatening his employees with reprisals to discourage con- certed activity or union membership or activities. (c) Offering wage increases during a strike to reward the employees who continue to work and to discourage their participation in the strike. (d) In any other manner interfering with, restraining, or coerc- ing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local No. 40, Bakery & Confectionery Workers of America, AFL, or any other labor organ- ization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor orgainization 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 Martha Christine Johnson and to the employees listed in Appendix B immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or' other rights and privileges, and make them whole, in the manner set forth above in the section entitled "The Remedy," for any loss of pay they may have suffered by reason of the discrimination against them. SEYFERT FOODS CO. 819 (b) Offer to Richard Tipton, upon his unconditional application within 5 days of the issuance of this Order, immediate and full re- instatement to his former.or substantially equivalent position, with- out prejudice to his seniority or other rights and privileges, and make him whole, in the manner set forth above in the section entitled "The Remedy," for any loss of pay he may suffer by reason of the discrimi- nation, if any, against him. (c) Upon request, make available to the National Labor Relations Board, or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and re- ports, and all other records necessary for a determination of the amounts of back pay due under the terms of this Order. (d) Post at his plant at Fort Wayne, Indiana, copies of the notice attached hereto and marked "Appendix A." 19 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and main- tained by him for sixty (60) consecutive days thereafter in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Thirteenth Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. MEMBERS MURDOCK and RODGERS took no part in the consideration of the above Decision and Order. 11 In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 334811-55-vol. 109---53 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, as amended, I hereby notify my employees that : I WILL NOT discourage concerted activity or membership in Local No. 40, Bakery & Confectionery Workers of America, AFL, or in any other labor organization of lny employees, by discrimi- natorily discharging or refusing to reinstate any of my employees, or in any other manner discriminating in regard to their hire or tenure of employment. 334811-55-vol 109-53 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I WILL NOT threaten my employees with reprisals to discourage concerted activity or union membership or activities. I WILL NOT offer wage increases during a strike to reward the employees who continue to work and to discourage their participa- tion in the strike. I WILL NOT in any other manner interfere with, restrain, or co- erce my employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activi- ties, except to the extent that such rights 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. I WILL offer to the following named employees who have not already been reinstated immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of the employees listed whole for any loss of pay he may have suf- fered by reason of the discrimination against him. Martha Christine Johnson Carole Priest Berlew (also referred to as Carol Priest) Evans Brooks (also referred to as Evin Brooks) Norma Criswell Dolores Maxine Decker (also referred to as Maxine Dukes) Regina Frohning Ignatia Gomez (also referred to as Mary Gomez) David Green Richard Harrold Rema Brown Hartley (also referred to as Rema Brown) Jimmie Hoppas Henry Hudson James Kapp (also referred to as James Caupp) Rex Maggert Barbara Belle Nelson Alice May Rayfield Mary Allene Rayfield Charlotte Robinson Virgil K. Smith Elizabeth Timmons Joan Waltenburg I WILL offer to Richard Tipton, upon his prompt and uncondi- tional application, immediate and full reinstatement to his former LOCAL 257, BROTHERHOOD OF PAINTERS, ETC. 821 or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. All my employees are free to become, remain, or to refrain from becoming or remaining 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 Act. CHARLES H. SEYFERT, AN INDIVIDUAL D/B/A SEYFERT FOODS CO., 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. Appendix B Carole Priest Berlew (also referred to as Carol Priest) Evans Brooks (also referred to as Evin Brooks) Norma Criswell Dolores Maxine Decker (also referred to as Maxine Dukes) Regina Frohning Ignatia Gomez (also referred to as Mary Gomez) David Green Richard Harrold Rema Brown Hartley (also referred to as Rema Brown) Jimmie Hoppas Henry Hudson James Kapp (also referred to as James Caupp) Rex Maggert Barbara Belle Nelson Alice May Rayfield Mary Allene Rayfield Charlotte Robinson Virgil K. Smith Elizabeth Timmons Joan Waltenburg LOCAL 257, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL, AND Roy J. SUPRENANT, ITS BUSINESS AGENT, and THOMAS E. HUGHES. Case No. 1-CB-263. August 13, 1954 Decision and Order On April 30, 1954, Trial Examiner C . W. Whittemore issued his Intermediate Report in the above-entitled proceeding finding that the 109 NLRB No. 117.