Interstate Bakeries Corp.

CONTINENTAL BAKING COMPANY 143 CONTINENTAL BAKING COMPANY; DOLLY MADISON CAKE COMPANY, a division of Interstate Bakeries Corporation; P. F. PETERSEN BAKING COMPANY; QUAKER BAKING COMPANY; SCHULZE BAKING COMPANY, a division of Interstate Bakeries Corporation ; OMAHA-COUNCIL BLUFFS BAKERY EMPLOYERS LABOR COUNCIL and INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Bakery Drivers Union, Local No. 204, AFL CONTINENTAL BAKING COMPANY; COTTAGE DONUTS, IN- CORPORATED; P. F. PETERSEN BAKING COMPANY; QUAKER BAKING COMPANY; SCHULZE BAKING COMPANY, a division of Interstate Bakeries Corporation and BAKERY AND CONFECTIONERY WORKERS' INTERNATIONAL UNION OF AMERICA, Local No. 215, AFL. Cases Nos. 17-CA-473, 17-CA-474, 17-CA-476, 17-CA-477, 17-CA-478, 17-CA-482, 17-CA-480, 17-CA-481, 17-CA-483, 17-CA-484, and 17-CA- 485. April 15, 1953 DECISION AND ORDER On August 7, 1952, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth' in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in- certain other unfair labor practices, and recommended that those allegations of the complaint be dis- missed. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and briefs in support of their exceptions.! i, The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner with the following modifications:z We agree with the Trial Examiner's conclusion that the Respondents violated Section 8 (a) (1) and (3) of the Act by locking out their employees. Our conclusion, however, rests on different grounds. We are satisfied from the record that the Respondents seized upon the lockout as an affirmative tactic to force the Bakers to abandon not only the strike, which was limited to Omar, but also the demand for an optional 5-day week. i The General Counsel and the Respondents also requested oral argument. In our opinion the record, exceptions , and briefs fully present the issues and the positions of the parties . Accord- ingly, the requests are denied. 2The Trial Examiner inadvertently omitted finding that the layoffs constituted discrimination within the meaning of the Act. We so find. 104 NLRB No. 9. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The contracts in effect before the dispute permitted each Respondent to establish different operating schedules at their separate plants, and the resulting schedules were not uniform The Bakers, after consulting with its membership at the October 13 meeting, found no objection to this lack of uniformity as such, and so devised an optional 5 -day week plan in order to reconcile the split sentiment on the subject among the membership at the various plants. However, the Respondents, upon learning on October 20 that the crux of the dispute was the demand at Omar and that there was a split among the Bakers' membership, opposed any optional arrangement and insisted on a uniform clause. The Bakers then served notice of termination of the Omar contract alone and the strike was restricted to the Omar plant. 9 There is no justification on this record for any inference that the Respondents feared that strike action would betaken against them for a uniform clause, and we do not adopt the Trial Examiner's apparent inference to this effect.4 Such an inference is in fact belied by the purpose of the Bakers' optional proposal and the varying conditions of work obtaining in the plants, as well as the knowledge by Respondents of the split strike vote. s The purpose of the strike for a 5-day week at Omar was to remedy Omar's unpopular practice of spreading 40 hours of work over 6 days. The practice in s ome other plants oT working 48 hours in 6 days was not under attack, nor were certain operations, such as Continental's and Petersen's cakebaking, which had been on a 5-day week. No additional overtime obliga- tion was imposed by the 5-day week proposal. The Respondents' first response to the Omar strike was to consider using their plants to produce goods for Omar. When this fact is considered together with other record evidence, no basis can be seen for the Respondents' assertion that they feared that a strike would be directed against them, absent retaliatory action on their part. Indeed, Respondent Schulze was explicitly advised that no strike threatened it, as both its superintendent and manager were informed that, although a strike had been voted at Omar, Schulze employees did not want 3 The Respondents ' understanding of the nonuniform nature of the Bakers' demand is revealed by a statement, in an issue of the Omar plant magazine, that the Bakers ' proposal "would force Omar to give something more than its competitors gave." a We do not agree with the Trial Examiner 's finding that Olson told the operators on October 20 that he had strike sanction against all bakeries but was releasing it only as to Omar at that time. As correctly noted in the intermediate Report , Olson did not have such broad strike authority on October 20. And Olson's testimony, which is otherwise credited by the Trial Examiner, is to the effect that the International alone had the power to issue strike sanction, and was doing so only with respect to Omar at the time. Contrary to the Trial Examiner, we find that Olson fairly advised the operators as to the limited strike authority granted the Local and that the operators so understood the limitation. 5Unlike the Trial Examiner , we do not regard the uniform clause finally accepted by the Bakers in the November 25 contract as disproving that the Bakers was seeking an optional clause at the time of the lockout , more than a month earlier . Moreover, the Trial Examiner's conclusion is s on his erroneous reliance on exhibits properly rejected at the hearing. These exhibits , showing the general views of the Bakers ' international president on the 5-day week, do not establish the specific objective of the Local here involved. Indeed, two of the ex- hibits are reprints of speeches of the international's president , made after the strike had com- menced at Omar. CONTINENTAL BAKING COMPANY 145 a strike. Respondent Petersen's vice president and its secretary were also aware that Petersen employees had voted against the strike. Dolly Madison, a Kansas City, Missouri, plant, was not involved in the dispute, had no bakery employees in Omaha, and could not have feared a strike. Any serious strike threat at the small Cottage Donuts and Quaker plants may be dis- counted.6 Respondent Council had, of course, no basis for fearing a strike--having no bakery employees at all. Never- theless, the Bakers' negotiating committee--and later the employees by layoff notices--were repeatedly told by the Respondents that the operators considered a strike against one of their members as a strike against all of them. And, to implement this threat, all distribution as well as production employees were laid off. Even Respondent Dolly Madison laid off its drivers although that employer had no dispute with its bakery employees. It seems clear to us that the Respondents locked out their employees for two reasons: To exhibit their sympathetic sup- port for Omar in its dispute with the Bakers, and to force the Bakers to cease striking Omar and also to cease seeking a clause establishing an optional and nonuniform workweek. Unlike Davis Furniture Co., 100 NLRB 1016, therefore, the lockout cannot be characterized as a measure taken by as - sociated employers in self-defense against a uniform demand directed at them. There was here no reasonable likelihood that the Bakers would strike successively against each one of the Respondents for a uniform workweek, and no basis for an apprehension on the Respondents' part that they would be faced with such action. Rather, the lockout was an affirmative attack to support one of their number, when faced with a strike to remedy a local condition of employment deemed objectionable by that employer's employees. Congress cannot be said to have intended to sanction such sympathy lockouts by employers. The Respondents' principal contention before us, as it was before the Trial Examiner, is that the lockout was motivated by a desire to avoid threatened spoilage losses. In agreement with the Trial Examiner, we are convinced by the record that this asserted desire to avoid spoilage losses, like the alleged desire to defend against a strike which threatened all, was not the motivating reason for the lockout but was an afterthought. When confronted with the strike threat, only one Respondent, Schulze, sought any assurance that a strike would not be begun without sufficient notice to enable it to avoid such losses. And in that instance the assurance was forthcoming, as Plant Manager Zeilenga in effect admitted. None of the other Re- spondents sought any such assurance. As mentioned above, the optional nature of the 5-day week proposal and the knowledge of some individual Respondents of the split strike vote negates any conclusion that strike action against all was threatened or 6John Nelson, vice president of the Bakers and member of the negotiating committee, testi- fied that the optional feature of the proposal was designed because "we didn 't want to force something or have something forced on anybody that didn't want it"; that the purpose was to accommodate such small bakers as Quaker. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD believed to be threatened. On the contrary, as the Respondents freely admit, their first reaction to the Omar strike was to consider producing Omar products in addition to their own, thus inviting further possible spoilage and furnishing further grounds for strike action., Not until this case arose did the Respondents urge spoilage as the reason for the lockout. $ We reject the Respondents' contention, made in its excep- tions and brief, that the decisions in Betts Csdillac Olds, Inc.; 96 NLRB 268, and International Shoe Company, 93 NLRB 907, are applicable to the circumstances here. In International Shoe intermittent work stoppages in one department of an employer's plant resulted in lack of work for other departments, causing a shutdown when the employer could not obtain adequate as- surances against these recurrent work stoppages. And in the Betts case the shutdown was resorted to only after the em- ployers had been refused assurance that no strike would be called until cars accepted for repair could be returned to the customers: The Respondents' action in shutting down to support Omar cannot be justified under the Betts or International Shoe cases. As indicated; we do not believe that the facts here are like those in the Davis and Morand cases.9, If they were, however, we would reach the same decision, for the reasons there set forth.io We note that an employer, although of course not required to grant a collective demand of his employees, may not resort to the pressure of a lockout to force abandonment of that demand or any protected concerted activity by whicfi that demand is pressed. In the present circumstances the Respondents' alternative under the Act was limited to con- tinuing in effect the current terms and conditions of employ- ment, and replacing employees if they did strike. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that each of Respondents herein, its officer§, ageints9 successors, and assigns, shall: '1. Cease and desist from: (a) Discouraging membership in Bakery and Confectionery Workers' International Union of America, Local No. 215, AFL, or any other labor organization of its employees, by locking 7 Article VIII of the then current contracts provided: "It shall not be considered a violation or breach of this agreement for the employees working under this contract to refuse to produce products for any bakery plant which is involved in a bona fide labor dispute, strike or lockout." 8 We do not adopt the Trial Examiner's findings that no spoilage would have occurred if a strike was unexpectedly called, or that in any event the spoilage could have been prevented by supervisors. 9 Davis Furniture Co., et al., 100 NLRB 1016; Morand Bros. Beverage Co., 99 NLRB 1448. io Member Peterson, not having participated in the Davis and Morand cases, deems it un- necessary to express an opinion as to whether he would reach the same decision here, if the facts here were not distinguishable from the facts in those cases. Chairman Herzog, who recorded his dissenting views in the Davis case, signs this Order because he believes the facts to be essentially so indistinguishable that he is bound by the Board's Davis decision. CONTINENTAL BAKING COMPANY 147 them out or otherwise discriminating with regard to their hire or tenure of employment or any term or condition of employ- ment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization , to form labor organizations , to join or assist the above-named or any other labor organization , to bargain col- lectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such right may be 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) Make whole each of its employees for the discrimination against him in the manner set forth in the section of the Intermediate Report entitled " The Remedy." (b) Upon request , make available to the Board or its agents, for examination and copying , all records necessary for a determination of the amount of back pay due under the terms of this Order. (c) Post at its places of business in the Omaha - Council Bluffs area , copies of the notice attached to the Intermediate Report and marked "Appendix ." ii Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being signed by an appropriate representative of each of said Respondents , be posted by said Respondents im- mediately upon receipt and maintained by it for sixty (60) consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that the notices are not altered, defaced , or covered by any other material. (d) Notify the Regional Director for the Seventeenth Region in writing within ten (10 ) days from the date of this Order what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Respondents interrogated any of their employees with respect to the internal affairs of the Bakers. Member Houston took no part in the consideration of the above Decision and Order. "Said notice, however , is amended by striking from line 1 thereof the words "The Recom- mendations of a Trial Examiner ." and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by a decree of a 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." Said notice is also amended by striking the reference to Teamsters. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report and Recommended Order STATEMENT OF THE CASE Charges having been filed in the first group of cases by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Bakery Drivers Union, Local No. 204, AFL, herein called the Teamsters, and in the second group by Bakery and Confectionery Workers' International Union of America, Local No 215, AFL, herein called the Bakers, the General Counsel of the National Labor Relations Board, herein called respec- tively the General Counsel and the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued his complaint dated January 29, 1952, against the various Companies included in the caption, herein called Respondents, alleging that Respondents had engaged in and were engaging in certain unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat 136, herein called the Act Copies of the charges, the complaint, and a notice of hearing were duly served upon Respondents and the Unions On the same day and date the Regional Director consolidated the cases for the purposes of hearing With respect to the unfair labor practices the complaint alleged in substance that Re- spondents. (1) Interrogated certain of their employees with respect to the internal affairs of the Bakers, (2) on or about October 21, 1951, following a strike by the Bakers at the Omaha plant of Omar, Incorporated, herein called Omar, not a respondent, locked out their bakery production employees and their drivers and suspended operationsi and failed and refused to reinstate these employees until November 25, 1951 It is alleged that these acts were for the purpose of discouraging membership in or activities inbehalf of the Bakers and were part of a plan which was designed to and had the effect of interfering with, restraining, and coercing employees of Respondents in the exercise of the rights guaranteed by Section 7 of the Act and constituted a reprisal for or a retaliation against them because of the strike by the Bakers against Omar. The answer of Respondents, while admitting certain allegations of the complaint with respect to the nature of their business, denies the commission of any unfair labor practices Pursuant to notice a hearing was held at Omaha, Nebraska, from March 10 to 17, 1952, before me, the undersigned Trial Examiner duly appointed by the Chief Trial Examiner The General Counsel, Respondents, and the Teamsters were represented by counsel and participated in the hearing Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues, was afforded all parties At the conclusion of the hearing the parties waived oral argument but were granted until April 1 to file briefs Sub- sequently this time was extended by the Chief Trial Examiner Briefs were duly filed by Respondents and the General Counsel on May 5 On June 23, 1952, Respondents filed a motion to reopen the record to receive certain newly discovered evidence consisting of an exhibit The motion is hereby granted and the exhibit is received in evidence, together with a stipula- tion by the parties as to what certain witnesses, if called, would testify to concerning the exhibit Upon the entire record in the case and from my observation of the witnesses, I make the following findings of fact 1. THE BUSINESS OF RESPONDENTS Continental Baking Company, herein called Continental , is a Delaware corporation which operates bakeries in 28 States and the District of Columbia . In the conduct of its business at its Omaha , Nebraska , plant , it annually purchases raw materials and equipment through its New York office valued in excess of $500,000 , of which approximately 75 percent represents shipments received by it from sources outside the State of Nebraska it sells finished bakery products valued in excess of $500,000, of which approximately 50 percent represents shipments from its Omaha plant to points outside the State of Nebraska Schulze Baking Company, herein called Schulze , a division of Interstate Bakeries Corpora- tion, is a Delaware corporation operating bakeries in seven States . In the course and conduct of its business at its Omaha plant it annually purchases raw materials and equipment valued in excess of $ 250,000, of which approximately 75 percent represents shipments received by it from sources outside the State of Nebraska . It annually sells finished bakery products valued in excess of $250,000 , of which approximately 25 percent represents shipments from its Omaha plant to points outside the State of Nebraska. I With the exception that it is not alleged that Respondent Cottage Donuts locked out its drivers . Cottage employed no drivers or teamsters in Omaha. CONTINENTAL BAKING COMPANY 149 Dolly Madison Cake Company is a trade name for a separate division of Interstate Bakeries Corporation. Interstate Bakeries Corporation , a Delaware corporation , operates bakeries in seven States Dolly Madison operates a bakery in Kansas City, Missouri. Bakery products produced there are shipped to Omaha, Nebraska, and there distributed from its distribution terminal. In the conduct of its business at its Kansas City bakery it annually purchases raw materials and equipment in excess of $ 500,000 , of which approximately 75 percent represents shipments received by it from sources outside the State of Missouri Annually it ships bakery products in the amount of $ 500,000 to points outside the State of Missouri, of which $100,000 represents the value of bakery goods shipped to its Omaha terminal. It ships from its Omaha terminal baked goods valued in amount in excess of $ 50 ,000 to points outside the State of Nebraska P. F. Petersen Baking Company, herein called Petersen, is a Nebraska corporation. In the conduct of its business at its Omaha bakery it annually purchases raw materials and equip- ment valued in excess of $ 500,000, of which approximately 50 percent represents shipments received by it from sources outside the State of Nebraska. It annually sells finished bakery products valued at an amount in excess of $ 500,000, of which from 37 to 40 percent represents shipments from its Omaha plant to points outside the State of Nebraska. Quaker Baking Company is a Maine corporation. In the conduct of its business at its Council Bluffs, Iowa , bakery, it annually purchases raw materials and equipment valued at an amount in excess of $50,000, of which approximately 75 percent represents shipments received by it from sources outside the State of Iowa It annually sells finished bakery products at an amount in excess of $250,000, of which from 25 to 30 percent represents shipments from its Council Bluffs, Iowa, plant to points outside the State of Iowa Cottage Donuts, Incorporated, is a wholly owned subsidiary of the Jo-Lo Corporation, a New York corporation, which operates bakeries in several States of the United States In the course and conduct of its business at its Omaha bakery it annually purchases raw materials and equipment valued in excess of $ 50,000, of which approximately 75 percent represents shipments received by it from sources outside the State of Nebraska It annually sells finished bakery products valued in excess of $200,000, of which approximately 50 percent represents shipments from its Omaha plant to points outside the State of Nebraska Omar, Incorporated, herein called Omar, is a Delaware corporation which operates bakery plants in various States of the United States including the plant located at Omaha, Nebraska It is not a respondent herein. Omaha-Council Bluffs Bakery Employers Labor Council, herein called the Council, is an association composed among others of the Respondents and Omar It was organized for the purpose among others of conducting joint bargaining negotiations with the Teamsters and Bakers as well as other unions. II. THE LABOR ORGANIZATIONS INVOLVED The Teamsters represents drivers and other employees employed by the Respondents and Omar. The Bakers represents bakery production employees employed by the bakeries III. THE UNFAIR LABOR PRACTICES A. Background; multiemployer bargaining Respondents and Omar are the major bakeries in the Omaha and Council Bluffs, Iowa, area Since about 19381abor contracts in that community have been negotiated through group bargain- ing in which a committee representing the employer bakeries met with a committee represent- ing various unions having employees at the various plants Each year a uniform, identical contract was evolved. Individual copies of this contract were signed by the employing bakery and the union concerned. Respondents Continental, Petersen, and Schulze have participated in this group bargaining from the beginning, Respondents Quaker and Omar since 1941, and Re- spondent Cottage Donuts since 1946 The bakery employers' committee above referred to was formalized through articles of association in March 1950 and Respondent Council came into existence. Each employer bakery gave the Council its power of attorney . By the articles of association the employer members agreed not to negotiate, discuss, or enter into any written or oral agreement relating to labor relations with employees of the members , or with unions representing the employees, except by and through the Council, unless prior approval had been given by the Council in writing The 1950-51 contract between the Council and the Teamsters and the Bakers, expiring by its terms on April 29, 1951, thus was negotiated between the Council and these two labor organizations 283230 0 - 54 - 11 150 DECISION OF NATIONAL LABOR RELATIONS BOARD B. The negotiations for a new contract In March 1951 the parties began negotiations with the Council for a new contract, the previous one remaining in existence by agreement during the negotiations .2 Negotiations between the Council and the Teamsters proceeded smoothly, and by the latter part of October 1951 there was a substantial meeting of minds on a new contract Not so, however, in the case of the Bakers. At the beginning of negotiations the Bakers submitted a list of 18 contract demands to the Council. Foremost among these was 1 for a 40-hour workweek consisting of 5 days of 8 hours, which represented a national goal. 3 By September , many of the differences existing between the parties were resolved, and on September 5 a "package" agreement was arrived at and submitted to the membership of the Bakers for approval It consisted of the following items. (1) A 2-cent increase in wages retroactive to April 29, 1951, ( 2) a 3-cent increase retroactive to April 26, 1951; (3) a 5-cent increase pursuant to or dependent upon Wage Stabilization Board approval , (4) an increase of 5 cents in the night -shift differential; (5) a 50-cent per week clothing allowance , (6) prorating of vacation allowances , (7) a checkoff of union dues not to exceed $5 per month per individual The last proposal was made with the Bakers' approval by Reis, a Federal mediator called in to assist in the negotiations , and was presented to the Council as an alternative to the 5-day week, the Council to make the selection between the 2 provisions The Council selected the checkoff. C. Rejection of the "package"; the strike votes The membership rejected the " package" at a meeting held on September 8 Accordingly, a meeting was scheduled for October 13 for the taking of a strike vote Notice of the meeting and its purpose was posted in all the Respondent bakeries. At the meeting a shop -by-shop vote was first taken with the result that the employees of Omar, Quaker, Cottage Donuts, Con- tinental , and Safeway4 voted for a strike and those of Schulze and Petersen against it The vote at Omar was overwhelmingly favorable , the minutes showing 94 yes and 4 no The combined total of the vote was 135 yes and 61 no. Following the first ballot a second one was taken con- cerning which there is much controversy as to its meaning and the purpose of which does not clearly appear in the minutes . The result of the second vote was 134 for a strike and 26 opposed The minutes show a notation by the secretary that three -fourths of those present voted for the strike, a percentage seemingly required under the Union's constitution The precise dispute is as to whether those participating in the second vote were voting for a strike of all of the members at all Respondents' bakeries , or whether it was only an expres- sion of solidarity in the event of a strike at Omar only. John Nelson, vice president of the Bakers, and other witnesses called by the General Counsel who were present, testified that it was the latter . Nelson, according to his testimony, explained to the membership that the Omar employees were going on strike if they did not obtain a 5-day week and that he wanted those in the other bakeries to continue to work but not to make any product of any kind for Omar or use an Omar wrapper on any product they might produce. 2 The expiration clause of the contract provided as follows: This agreement shall be in full force and effect from April 30, 1950 until April 29, 1951 Thereafter said agreement shall continue in force and effect unless sixty ( 60) days' notice in writing is given by either party prior to April 29, 1951, or until a new agreement (the terms of which shall become retroactive to the above expiration date ) has been con- summated and signed; or this agreement after the above expiration date has, upon written notice, been cancelled or terminated by the Employer or by the Union with the sanction of the Bakery and Confectionery Workers International Union of America. As is hereinafter found, the Bakers on October 20, 1951, served written notice of the cancellation of the contract as to Omar alone when that plant was struck. SThe importance which the Bakers attached to the 5-day week is seen in the following ex- cerpts from a speech by William Schnitzler , international president , reported in the Bakers' and Confectioners ' Journal for July-August`1951: --We will support each and every local union renewing contracts that will be expiring soon in their demands for the five-day work week .-- In the recent disputes over the five- day work week , the strike weapon was used justifiably and wisely . In winning the five- day week in many East Coast and Midwestern Cities our International passed an historic milestone. The five-day week was wononthePacific Coast last year , so the progress this year represents a great step toward realization of a long-sought goal . We don't intend to rest, of course until the five- day week is a reality throughout the nation-- 4 Safeway Stores is not a respondent. CONTINENTAL BAKING COMPANY 151 A few days after the strike vote of October 13, a business agent of the Bakers contacted the president of the Bakers' International, William Schnitzler, to secure strike sanction for a strike against Omar It was not granted at that time. Instead, Peter Olsen, an international vice president, was sent to Omaha to meet with both sides of the controversy in an attempt to settle their difficulties Olsen testified that upon his arrival in Omaha he did not have strike sanction for the Omar group alone, but that after canvassing the situation he obtained a release of strike sanction against Omar from Schnitzler by telephone. D. The negotiations on October 20 In a further attempt to reach an agreement another meeting was held on October 20 at 3 p.m at a local hotel between representatives of Respondent Counsel, the Bakers, and Reis At this meeting, Olsen, on behalf of the Union, demanded that the "package", agreement arrived at on September 5 and rejected by the union membership should include 3' additional provisions. (1) A 5-day 40-hour guaranteed week on an optional basis (that is, the contract to provide that employees at each bakery could determine whether they wished a 5-day week), (2) a hiechahization clause; and (3) a 3-cent retroactive increase covering the period from Aiigdst 26, 1950, to April 29, 1951, the date of the expiration of the contract. Of these, the demand for the 5-day week in some form continued to be the most important. Nelson gave it as his opinion that the dispute could be settled if these 3 additional demands were granted. Le Mar, the representative of Petersen, asked if this was an ultimatum, to which Olsen replied that it was and that he had in his pocket strike sanction against all the plants but was issuing it oiily as to Omar at that time. The demand for an optional 5-day week was rejected by the Council on the grounds that, as pointed out by Robert Hoffman, chairman of the Council's negotiating committee and president of Omar, previous contracts had all been uniform and identical, and that the 5-day week at 1 or more plants but not at all would introduce a competi- tive element of a nature which the Council had been formed to eliminate. Olsen testified that at one time during the meeting of October 20 he informed Hoffman that the crux of the dispute was the necessity of a 5-day week at Omar and that he said to Hoffman: "Bob, your people[i e , the Omar employees] are hot, and unless we do something about this 5 day week, we are going to have a strike in your plant " At this time Olsen, according to his own testimony, again suggested that Respondents consider an optional 5-day week Hoffman's account of this conversation is that Olsen told him that things were "pretty hot" and that plans were already made for picket lines During this conversation, according to the uncontradicted testimony of Hoffman and others, Hoffman told Olsen that at a meeting of members of the Council several days previously, which the record elsewhere shows was on October 16, the Council had decided that a strike against any of its members would be considered as a strike against all Hoffman put it this way while testifying If a strike was initiated by Local 215, or, let's say, any local against a member of this Council during the course of bargaining , attempting to work out a contract, that we as a group of operators would construe that or consider that a strike against the entire group When Hoffman mentioned this decision to Olsen, the latter, according to the former's iesil- inony, said that he had so been informed but that the employees did not believe it The con- versation broke up with Hoffman urging Olsen to do everything he could to avoid a strike At another point during the meeting of October 20, Conners, the representative of Schulze, in the presence of other representatives of the Council, asked Olsen if he had strike permis- sion for all the bakeries. The record is clear on this but it is in contradiction as to what Olsen replied. John Nelson, vice president of the Bakers and an employee of Omar, and Arne Hanson, a representative of Respondent Quaker's employees, testified that Olsen announced that he was "releasing strike sanction for the Omar employees " The testimony of Re- spondent's witnesses is that Olsen said that hehad strike sanction against all the bakeries but was releasing it as to Omar alone "at this time." On cross-examination Olsen testified similarly as to the substance of his statement. E. Cancellation of the Omar contract; the strike About 8 p.m. on October 20, when the meeting was in recess for dinner, Dickey, business representative of the Bakers, together with Weinberg, its attorney, approached Hoffman and handed him a written notice canceling the Bakers' contract with Omar Hoffman passed this around to the other employer representatives present and Connors asked Dickey what it meant, to which Dickey replied, "You will find out." Within an hour or so a picket line was set up at the Omar plant. No picket line was established at any other plant. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Attempts of Respondent to ascertain the meaning and effect of strike votes During the week from October 13, the date of the strike vote, and October 20, the date of the last meeting between representatives of the parties at which the Bakers' contract with Omar was canceled and a strike announced, Respondents attempted to ascertain the meaning of the vote, that is, whether one or more than one, or possibly all, the bakeries were to be struck. Such information as officers of one or more of Respondents could obtain from their own em- ployees seemed to indicate that the strike might be against Omar alone. Hence, James Zeilenga, manager of Respondent Schulze whose employees had voted against a strike, was told by Henry Hamernick, a member of the Bakers' board of trustees on the evening of the strike vote that, "as far as Omar was concerned it was a strike... Our people [i e , Schulze's em- ployees] don't want a strike." Verne Vance, secretary of Respondent Petersen, testified that on October 14 he overheard a conversation between several of Petersen's employees and from it learned the figures on the strike vote at several of the shops. It will be recalled that the vote of the Petersen employees also was against the strike. This information, and whatever other information it had been possible to glean, was discussed and evaluated at the meeting of the council members on October 18 There, as has been found, it was resolved that a strike against one bakery would be a strike against all but without, I find, contrary to the General Counsel's contention, arriving at any definite decision on a course of action. This resolution, it has been observed, was announced to Olsen at the joint meeting on October 20. The General Counsel's contention that the Respondents' information that the employees of Schulze and Petersen had voted against a strike convinced or should have convinced them that the Omar strike would be confined to that plant and that there was no basis for their asserted belief that the Omar strike was only tactical and would be followed by strikes at other bakeries, is hereinafter discussed G. Respondents shut down the other bakeries Immediately upon the calling of the strike at Omar, Respondents first decided that, if pos- sible, they would produce Omar products in the other bakeries and wrap them in Omar wrappers The feasibility of this obviously depended upon the willingness of the Teamsters to deliver the Omar product. Upon consulting Robbins, business agent of the Teamsters, Respondents were told that the Teamsters would not make such deliveries. Respondents then decided to shut down all the other bakeries in keeping with their position that a strike against one was a strike against all. This was done on the day following the strike, and each Re- spondent so advised its employees by written notice and that they would be notified when production could be resumed. By this action, not only the employee members of the Bakers but the Teamsters became without employment. No employee of any bakery was discharged or threatened with discharge, nor does the General Counsel so contends All were reinstated upon the termination of the strike. On October 23, theCouncil, onbehalfofits Respondent members, wrote the Bakers reiterat- ing its view that the strike against Omar was a strike against all, and declaring that the cancellation by the Bakers of the Omar contract was deemed by the Council to constitute a cancellation of the contracts with the other members of the Council. H. The end of the strike and the new contract The strike was terminated on November 25 and the bakers and drivers of Omar and the Respondents were returned to work. During the period between the beginning of the strike on October 20 and its termination, the Respondents and the Bakers continued to meet and to endeavor to reach a new contract. Eight such meetings were held. They concerned not merely the differences between Omar and the Union but between the Union and all the Respondents. The contract which settled the strike was applicable, as was the previous contract to all the bakeries and included all the Bakers' principal demands, including the 5-day week in all plants. This represented a complete victory for the Bakers SIn this important respect the situation differs from that in Morand Brothers Beverage Co. v. N. L. R. B., 190 F. 2d 576 (C. A. 7), enforcing in part and remanding 91 NLRB 409. herein- after adverted to CONTINENTAL BAKING COMPANY 153 The Issues The principal Issues posed by the record are: (1) Whether the strike at Omar should, as theGeneral Counsel contends, be viewed in isola- tion as a strike against that employer alone over a demand--the 5-day week--which although not confined to Omar alone, is claimed to have been of critical importance only at that bakery, a view which, if adopted , it is asserted renders the shutting down of the other bakeries in- terference, restraint , and coercion in violation of the Act , or whether , as Respondents urge, the strike should be seen as a tacticalmove in furtherance of a general strike strategy having as its purpose the obtaining of a 5-day week at all plants, the strike at Omar to be followed by a strike at other bakeries as the tactical situation should warrant. (2) Whether, if (1) is found as Respondents contend, they were justified in shutting down the other bakeries as a defense tactic in apurely economic contest; or whether the shutdown con- stitutes , per se, interference , restraint , and coercion. (3) Whether the shutdown of the nonstruck bakeries was economically motivated for the pur- pose of preventing loss of products in process of manufacture. Conclusions I shall take up the last contention first. I am not impressed with it It is true that there is evidence in the record that the baking cycle is such that if it is unexpectedly interrupted, material in process may be lost, and if not delivered the finished product will spoil. Re- spondent's witnesses estimated that the loss at Petersen's, for example, might amount to asi much as $10,000, and that at Schulze's to as much as $3,000, for a 24-hour period. But I am not persuaded that such a loss of materials in process would have occurred, or that it could not have been prevented by extra exertion on the part of supervisory employees in salvaging a day's bake. However, assuming that the loss might have been as contended, I do not find this to have been the motivating reason for the shutdown, but rather an afterthought which, if found to have validity, would serve to bring this case under the authority of that line of Board cases (Duluth Bottling Association, 48 NLRB 1335; International Shoe Company, 93 NLRB 907; Betts Cadillac Olds Inc., 96 NLRB 268), which justify a shutdown to avoid spoilage of materials or interruption with production schedules. No such reason was advanced at the time of the strike. The notices sent to the employees of the shutdown bakeries and the policy announced to the Bakers ' representative on October 20 reveal the real reason to have been the determination to preserve the multiemployer bargaining which found expression in the slogan: "A strike against one is a strike against all." Moreover, as has been found, Respondents' immediate attempt upon the calling of the strike at Omar was to arrange for the production of Omar products at the other bakeries and wrap them in Omar wrappers which would have increased the amount of spoilage if these plants were struck. This plan failed only because the Teamsters refused to transport such merchandise. As to (1). while it is true that Omar's employees voted for a strike in the shop-by-shop ballot, and those of Petersen and Schulze did not, it is also true that those of Continental and others voted for a strike. The meaning of the second strike vote is not clear from the record. The General Counsel insists that it is to be construed only as a vote of solidarity with the Omar employees who alone were to strike, and there is evidence in support of this conten- tion. Clearly, the sentiment for a strike to enforce the 5-day week was stronger at Omar than elsewhere, but it does not follow that the other members of the Bakers were not willing to strike if called upon to do soby the Bakers' officials. Certainly the General Counsel's conten- tion in his brief that the employees of Schulze and Petersen were "overwhelmingly opposed" to the 5-day week, and hence would not strike for that demand, can hardly be entertained in view of the final contract terms. Olsen stated to the Council's representatives that he had strike sanction for all the plants but was releasing it as to Omar at this time, clearly indicating, it seems to me, that it might be released as to the other plants if and when it was deemed advantageous. This would clearly be not only within the bounds of the authorization by the International on October 24. 1951, endorsing a strike at all the plants but in furtherance of its avowed nationwide campaign to obtain the 5-day week. Olsen did not state in categorical terms that the other bakeries would not be struck. The negotiations which took place during the strike was conducted, as previously, with the Council, not with Omar alone, and were for the purpose of obtaining a uniform con- tract at all plants and not for the single purpose of settling the strike at Omar or obtaining a 5-day week at that plant alone. These negotiations were completely successful from the Bakers' viewpoint. A uniform 5-day week for all plants was obtained and written into the new contract and the strike at Omar forthwith terminated. What became of the "overwhelming opposition" of the Petersen and Schulze employees to this provision, opposition which the General Counsel 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cites as one of the principal reasons for believing that Omar alone was to be struck , does not appear. I conclude that it was part of the Bakers ' strike tactics to strike Omar first in furtherance of its strike strategy , the object of which was to obtain a uniform 5-day week at all bakeries, and that the strike sanction against the other bakeries was ready to be invoked as the tactical situation developed . I further find that Respondent had reasonable grounds for believing that this was the case. Having so found , the remaining question (2) presents itself: Whether the action of Re- spondents in shutting down the bakeries other than Omar constitutes interference , restraint, and coercion in violation of the Act. The General Counsel cites the Morand case, ibid. in support of his contention that it does , as well as the Davis case.6 In both of these cases the union struck one member of a multiemployer bargaining unit, the others of whom shut down their plants. The cases differ principally in that in the Morand case the employer purported to discharge the employees , whereas in the Davis case he laid them off for the duration of the strike. In each case the employees were reinstated upon the termination of the strike. The distinction between a discharge and a layoff was in the Davis case found to be only difference in the degree of economic hardship to theemployees . In each case the Board found the lockout to be a reprisal for striking and that the employers discriminated with respect to their em- ployees' hire and tenure of employment. The United States Court of Appeals for the Seventh Circuit in the Morand case held that the lockout was lawful if the employees were merely laid off but unlawful if they were discharged, and remanded the case to the Board to ascertain this fact . The Board in its Supplemental Deci- sion and Order found , contrary to the finding of the Trial Examiner in his Supplemental Intermediate Report, that the employees were in fact discriminatorily discharged. By way of dictum the Board went on to say that even if they had only been locked out for the period of the strike, as the Trial Examiner found, such action would still be violative of the Act. In the Davis case, the United States Circuit Court of Appeals for the Ninth Circuit reversed the Board on its finding that the lockout was in reprisal for the strike , and remanded the case for a determination whether the lockout, used only as countereconomic power to that of the strike, would support the Board's Order. In the instant case , as in the Davis case, although it is alleged in the complaint there is no evidence of reprisal apart from the lockout itself, or that the shutdown , whatever may have been its effect , was retailiatory in purpose 7 That is, there was not there and there is not here any evidence that the Employer in locking out his employees was motivated in purpose by hostility to the Union or by a desire to interfere with its organization. There, as here, the lockout was used as a counterweight to the strike in a purely economic contest , and the ques- tion is, was it permissible? The reasoning of the court in the Davis case , citing various sec- tions of the Act, leads it to the conclusion that "strike" and "lockout" may be "correlative powers, to be employed by the adversaries in collective bargaining when an impasse in negotiations is reached ," which is substantially the reasoning of the Seventh Circuit which it cites with approval. By this the court would seem to mean that, in such a situation, the em- ployer may resort to a lockout before the union resorts to a strike. It seems to me that the better view would be that an employer may resort to a lockout as a defensive measure after a strike is called, but if he does it beforehand he discriminates unlawfully against his employees. Preventative warfare would be barred to the employer as vitally affecting the right to strike which is guaranteed by the Act. However, both the Davis and Morand cases now clearly enunciate the position of the Board and I am bound by the Board's decisions. That position is, to state it again, that a lockout of employees of other employers in a multibargaining unit after a strike has been called against one employer, unless to prevent economic loss, automatically constitutes interference, restraint, and coercion in violation of the Act, and this is so whether the lockout constitutes a permanent discharge or only a temporary layoff. I find, in line with the Davis and Morand decisions, that Respondents, and each of them, by closing their plants and locking out their employees on October 21, 1951, have interfered with, restrained , and coerced their employees in the exercise of the rights guaranteed in Section 7 and in violation of Section 8 (a) (3) and (1) of the Act 6Davis Furniture Company, et al. v. N. L. R. B , 197 F. 2d 435 (C. A. 9), remanding 94 NLRB 279. 7 The complaint alleges that the shutdown "constituted a reprisal for, or a retaliation against the respective employees because of the strike ... against Omar." CONTINENTAL BAKING COMPANY 155 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents , and each of them , set forth in section III, above , occurring in connection with the operations of Respondents set forth in section 1, above , have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that Respondents have engaged in certainunfair labor practices , I will recom- mend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act I have found that Respondents discriminated in regard to the hire and tenure of employment of their employees by locking them outfromOctober 21, 1951 , to November 25, 1952. Although each of these employees has been reinstated , he is entitled to reimbursement for working time lost as a result of the discriminatory action . I will therefore recommend that each of Re- spondents make whole each of its employees for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned in such position from the date of the discrimination against him to the date of his reinstatement , less his net earnings during said period,$ each Respondent to make available to the Board , upon request , payroll and other records to facilitate the checking of back pay due.9 Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1 Bakery and Confectionery Workers' International Union of America. Local No . 215, AFL, and International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , Bakery Drivers Union . Local No. 204, AFL , are labor organizations within the meaning of Section 2 (5) of the Act. 2. Respondents , and each of them, by discriminating in regard to the tenure of employment of its employees , thereby discouraging membership in the above -named labor organizations, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining , and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act , Respondents , and each of them , have engaged in and are 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 with- in the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication I 8 Crossett Lumber Company , 8 NLRB 440; Republic Steel Company, 311 U. S. 7. 9 F. W. Woolworth Company, 90 NLRB 289. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist Bakery and Confectionery Workers' International Union of America , Local No. 215, AFL, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , Bakery Drivers Union, Local No. 204 , AFL, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in 1 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted activities for the purpose of collective bargainingor other mutual aid or protec- tion, and to refrain from any or all of such activities. - WE WILL make whole each of our employees for'any loss of pay suffered as a result of the discrimination against him. All our employees are free to become or remain members of the above-named union or any other labor organization. Employers. 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. GREEN BAY DROP FORGE CO. and UNITED AUTOMOBILE WORKERS OF AMERICA, AFL, Petitioner GREEN BAY DROP FORGE CO. and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA (UE), Peti- tioner. Cases Nos. 13-RC-3221 and 13-RC-3225. April 15, 1953 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Allen P. Haas, hearing officer. The hearing offi- cer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Houston, Styles, and Peterson]. Upon the entire record in these cases , the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involvt:d claim to represent certain employees of the Employer.' 3. Questions affecting commerce exist concerning the rep- resentation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. All the parties except the UE agree that separate units of the Employer's forge shop employees, covered by the petition in Case No. 13-RC-3225, and of the remaining pro- duction and maintenance employees, covered by the petition in Case No. 13-RC-3221, are appropriate. The UE, although it filed the petition seeking a forge shop unit, contended at 1 In Case No. 13-RC-3221 , filed by the UAW-AFL, Lodge 1289. International Association of Machinists , AFL, and United Electrical, Radio & Machine Workers of America (UE), herein respectively called the IAM and the UE, intervened . In Case No . 13-RC- 3225, filed by the UE, Local No. 44, International Brotherhood of Blacksmiths , Drop Forgers and Helpers, AFL, herein called the Blacksmiths , intervened. 104 NLRB No. 28.