Continental Banking Co.

CONTINENTAL BAKING COMPANY 99 WE WILL offer Robert L. Owens immediate and full reinstatement to his former or substantially similar position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay suffered as a result of discrimination against him. ARMOUR AND COMPANY, Employer. Dated .............. By.............................. ...................................................... (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. CONTINENTAL BAKING COMPANY and ELBERT A. MARTIN and FRANK H. SCHAFLER. Cases Nos . 14-CA-716 and 14-CA-718. April 15, 1953 DECISION AND ORDER On December 15, 1952, Trial Examiner Bertram G. Eadie issued his Intermediate Report in the above-entitled proceed- ing, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respondent filed exceptions to the Inter- mediate Report. The Board' has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and i Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Styles]. ZRespondent excepts to the admission by the Trial Examiner of evidence relating to the joining of Local 535, United Construction Workers, by Martin and Schafler, the alleged dis- criminatory dischargees herein , and of evidence relating to their expulsion from Local No. 6, International Brotherhood of Firemen , Oilers, Maintenance Men and Helpers, AFL, and from Local No. 4, Bakery & Confectionery Workers International Union of America, AFL, respectively. For reasons appearing below, we find no merit in this exception. The Trial Examiner reserved his ruling as to whether to admit in evidence General Counsel's Exhibits Nos. 8 and 9, which were letters from Bakers Local 4 to Schafler noti- fying him, first, of his trial before the Union's executive board, and second, of his expulsion by vote of the membership. No ruling admitting or rejecting this evidence was ever made by the Trial Examiner. We find the letters to be relevant and proper evidence of union ac- tivity, and hereby admit them. 104 NLRB No. 17. 1 00 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommendations of the Trial Examiner with the following modifications, corrections,e and additions: 1. We agree with the Trial Examiner that Respondent violated Section 8 (a) (1) of the Act by Chief Engineer' Daniels' interrogation of employee Monroe Craig. In addition, we find hat Daniels' accompanying threat to Craig that all the em- ployees who joined the United Construction Workers "would be fired if it took two men to replace one" constituted a fur- ther violation by Respondent of that section. 2. We are also in agreement with the Trial Examiner's finding that Respondent disc riminatorily discharged Martin and Schafler in violation of Section 8 (a) (3) and (1) of the Act. Martin had been employed by Respondent as a maintenance mechanic since 1947 and Schafler as a bakeshop hand since 1936. Early in October 1951 both men joined Local 535, United Construction Workers, affiliated with the United Mine Workers of America (herein called the Construction Workers). More- over, Martin signed up 6 or 7 fellow employees for that Union; and Schafler attempted to interest at least 1 other employee in union membership. On December 10, 1951, Martin, who was also a member of Local No. 6, International Brotherhood of Firemen, Oilers, Maintenance Men and Helpers, AFL (herein called the Fire- men), was cited to appear before the executive board of that Union on December 13 to answer charges preferred by its busi- ne s s manager. Martin did not obey this summons. In late Decem- ber 1951 or early January 1952, Martin's supervisor, Chief Engineer Daniels, had a conversation with Monroe Craig, an em- ployee who had recently been transferred into Daniels' mainte- nance department. According to Craig's credited testimony: I told Mr. Daniels that I'd just [been] up to join the Firemen and Oilers Union Local 6. I also told him Mr. O'Shaughnessey4 asked me did I know Elbert Martin that used to work for Continental [the Respondent]. I told him I knew Elbert Martin and [he] still worked there. Mr. Daniels said I know, Weber, business agent of Local 6, has already asked for Martin's discharge. I guess the reason he hasn't been discharged, Vance Halterman' is in the hospital, Claude Hill' is out of town. It was then that Daniels questioned Craig about membership in the Construction Workers and threatened that those who joined that Union would be discharged, as set forth above. On December 21 Schafler, who was a member of Local No. 4, St. Louis, Missouri, Bakery & Confectionery Workers International Union of America, AFL (herein called the Bakers), 3 In addition to a number of more important errors dealt with below , the intermediate Report contains several inadvertences which do not alter our agreement with the Trial Examiner's findings and conclusions, but which we hereby correct as follows: ( 1) The chief engineer did not note his instructions to oncoming mechanics in a logbook. Production superintendents used the logbooks to indicate maintenance needs; the chief engineer wrote his instructions to the mechanics on their individual worksheets. (2) Martin became a member of the United Construction Workers on October 4,1951 . not October 3. (3) Martin's work for company officials was done at the plant, presumably during working hours , not on the outside after hours. 4Otherwise unidentified in the record, but apparently an official of the Firemen. 5 General manager of Respondent 's St. Louis plant. 6 Regional manager of several of Respondent 's plants. CONTINENTAL BAKING COMPANY 101 was cited to appear before the executive board of that Union on January 5, 1952. He did so,' but on January 15, 1952, was notified that he had been expelled by vote of the Baker's membership. Early in January, Bakeshop Superintendent Van Haag, to whom Schafler's supervisor reported, asked Shipping Room Foreman George Most what he knew about "this other union" and, apparently referred to the Bakers, remarked to Most that "any one that wasn't satisfied with the union we now had could get out or they would be eliminated or discharged." On the evening of January 23, 1952, Martin was discharged by Chief Engineer Daniels without warning or explanation. At a conference which he obtained with Daniels the following day, Daniels told Martin that he could "get" him on three different grounds .8 When Martin said, "Local 6 asked you to fire me, isn't that right?" Daniels replied: "I'm not answering no questions and find myself behind the 8-ball." Martin then asked for a letter stating the reason for his termination, but Daniels and Office Manager Vaughn refused to furnish such a letter until January 28, when Martin invoked a Missouri statute which requires that terminated employees be furnished such letters on request. Schafler was suddenly notified of his dismissal by Bakeshop Superintendent Van Haag at the end of his shift on January 25, 1952. When Schafler began to say to Van Haag that he was in trouble with the Union, Van Haag waved his hands and said, "I don't know about it, and I don't want to know nothing about it." However, Schafler persisted in relating the facts of his joining the Construction Workers and his expulsion by the Bakers, whereupon Van Haag conceded: "Well, I know I have heard rumors about it." Though present at the hearing, Van Haag did not deny having made this remark to•Schafler.9 Re- spondent had in fact been aware of these events for several weeks. Schafler testified without contradiction that he had told two supervisors, Bakeshop Night Foremen Balch and Theobald, io of his membership in the Construction Workers. His conversa- tion with Theobald had taken place on January 5, just after he and Theobald had stood trial before the Bakers' executive board." Although it was not contended by either party that the dis- charge of Martin or Schafler was pursuant to any current 7 The Trial Examiner incorrectly stated that Schafler ignored the summons to appear before the Bakers ' executive board. 9 Respondent 's defenses are discussed below. We hereby correct the Trial Examiner 's erroneous finding that Van Haag was a member of the Bakers. 10 Referred to by the Trial Examiner as Theobold. 11 Respondent contends that neither Balch nor Theobald were supervisors within the meaning of the Act. On each shift there were apparently 8 to 18 employees who worked under the direction of each bakeshop foreman. The bakeshop day foreman was Resetarits , whose al- leged complaints about Schafler , according to Respondent , largely motivated its decision to make the discharge . Night Foremen Balch and Theobald had greater responsibility than Resetarits because Bakeshop Superintendent Van Haag was not on duty at night. We find that both Balch and Theobald were supervisors. Our finding that Respondent was aware of the union activities of Martin and Schafler is further supported by the fact that Respondent 's St. Louis plant is of relatively small size In the maintenance department where Martin worked, there were only 6 employees; in the bakeshop where Schafler worked, there were not more than 18 employees on each shift. 283230 0 - 54 - 8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union-shop contracts with the Firemen or the Bakers, and although no such contracts were shown to exist, it is noteworthy that on January 31, 1952, the Bakers wrote a letter to General Manager Halterman informing him that Schafler and others had been expelled from that Union. The question arises as to what possible purpose such a letter could serve, unless the Bakers had some arrangement with Respondent for taking action in the case of employees so expelled.12 Respondent's Defenses Contrary to the inferences raised by the facts set forth above,19 Respondent contends that it discharged both Martin and Schafler for cause. In both cases, however, the reasons advanced were shifting, inconsistent, and not credible: (a) Martin Respondent now defends its discharge of Martin on the follow- ing grounds: (1) He engaged in roofing work in his off hours, so that he was frequently drowsy while on duty; (2) he was a troublemaker; (3) he arranged with another maintenance me- chanic to work his shift on January 22 without first asking the permission of Chief Engineer Daniels; (4) he was insubor- dinate; and (5) he talked excessively during working hours. In his conference with Martin on January 24, 1952, however, Daniels mentioned only the last three grounds. And in the letter which Respondent furnished Martin on January 28, 1952, only the last ground was assigned as the reason for discharge. (1) As pointed out by the Trial Examiner, Martin withdrew from his outside roofing business early in December, more than a month before his discharge. Although Martin himself informed Daniels of this outside roofing work as early as February 1951, Daniels never instructed him to give it up. (2) Regarding the complaint that Martin was a "trouble- maker," the only specific evidence adduced concerned Martin's relations with Wrapping Room Superintendent Bergke.14 In September 1951 Martin had warned Bergke that if he con- tinued to stand too close to Martin while Martin was working, he was "going to get hit on the head one of these days" and that Martin would "lower the boom on him." The following month Martin, encountering Bergke in the lunchroom, had invited him to go outside and fight. Because these isolated events took place manymonths before the discharge and because Respondent made no mention of them to Martin at the time of the discharge, we agree with the Trial Examiner that they were not the real cause of Respondent ' s action.15 12 Respondent points out that this letter was not received by Respondent until after the dis- charge of Schafler and that none of the other persons mentioned in it were ever discharged. However , it is not possible to know what action Respondent would have taken in response to the letter if Martin and Schafler had not already filed unfair labor practice charges. 13Cf. Angwell Curtain Co. v N.L.R.B., 192 F. 2d 899 (C.A. 2), enfg. 94 NLRB 675. 14 The Trial Examiner inadvertently referred to Bergke as "foreman of the bake shop." 15 Cf. N L R.B. v. Pratt, Read and Co , 191 F. 2d 1006 (C.A. 2), enfg. 90 NLRB 1499. CONTINENTAL BAKING COMPANY 103 (3) The facts about Martin's alleged failure to obtain per- mission to have another man work his shift are these. At about 6 p.m. on January 22 Martin, who was sick that evening, tele- phoned to the plant and asked maintenance mechanic Monroe Craig," who was then on duty, to remain and work the night shift in his place. In order to spare Respondent the cost of paying Craig at an overtime rate for this work, Martin sug- gested that Craig punch Martin's timecard and that Martin would then repay him either in money or in future work. Such swapping of shifts was the custom among Respondent's main- tenance men, and up until the time of Martin's discharge it had not been necessary for them to obtain the advance per- mission of any supervisor.'? However, Craig, who had been newly transferred to the maintenance department, consulted Bakeshop Superintendent Van Haag and was advised to tele- phone Chief Engineer Daniels. He did so and was directed by Daniels to do the work but to punch his own card instead of Martin's. Like the Trial Examiner, we find that this incident was only a pretext, not a genuine reason, for Martin's dis- charge. (4) As for the charge of insubordination, Daniels himself admitted that Martin never talked back to him or argued with him. (5) The only accusation against Martin which Respondent advanced in response to Martin's request for a written state- ment of the grounds for his discharge was his alleged ex- cessive talking. The record does not support that accusation. Martin's immediate superior, Assistant Chief Engineer Fitch, testified that Martin did not talk excessively. Although Chief Engineer Daniels complained of several instances in which he said that Martin had talked for 5 minutes with truckdrivers or with Schafler, he admitted that he himself occasionally had talked to Martin for 5 to 10 minutes, during working hours, about fishing. We agree with the Trial Examiner that Respondent did not discharge Martin for excessive talking. (b) Shafler At the time of Schafler's discharge, Bakeshop Superintendent Van Haag simply told him that his services were no longer required. No reasons were given." Three days later, in reply 16 The Trial Examiner inadvertently states that it was Willard whom Martin persuaded to work in his place that evening. 17 Such was the credited testimony not only of Martin and Willard, but also of Assistant Chief Engineer Fitch. It had not been required that the men disturb Chief Engineer Daniels at his home , as Martin would have had to do if he had sought his permission at 6 p .m. After Martin's discharge, Daniels summoned his men to a meeting and altered the rule in this respect. l6Such is Schafler 's testimony, which we credit , as did the Trial Examiner . According to Van Haag's testimony , he told Schaffer that the discharge was because of "all the trouble that we had during the course of the day 's operations , and he had been reprimanded and warned about these things before, that it has come to the point where we just couldn 't tolerate such working conditions." Because of the vagueness of this alleged accusation , because it differs from the grounds given by Van Haag in writing only a few days later , and because we find that Schafler was never seriously reprimanded , we do not credit Van Haag 's version Failure to inform an employee why he is being discharged is a factor to be considered in deter- mining the issue of unlawful discrimination . N.L.R.B. v. El Paso-Ysleta Bus Line, 190 F. 2d 261 (C.A. 5), enfg. 91 NLRB 590. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Schafler's assertion of his statutory right to a letter setting forth the reasons for his dismissal, Van Haag wrote: Our reason for dismissing Mr. Schafler was that he would not give the proper cooperation in performing his duties. He resented correction from the bake shop super- intendent and had been cautioned a number of times about this before the date of his dismissal. At the hearing and in its brief, Respondent advanced a number of new grounds. It there alleged that Schafler (1) talked excessively; (2) caused dissension among employees; (3) was insubordinate; (4) failed to maintain the correct weight ad- justment on his dividing machine; and (5) carelessly allowed double loaves to move up into the "overhead proofer" so that "smear-ups" interrupting production resulted. The fact that none of these grounds were mentioned at the time of the dis- missal is persuasive evidence that they were not the real rea- sons for Respondent's decision." Nevertheless, we will con- sider them briefly. Van Haag and Bakeshop Foreman Resetarits testified to two occasions in early January when they saw Schafler talking with Martin at Schafler's divider machine while it was operating. According to Van Haag, the conversations lasted 4 or 5 minutes each. According to Resetarits, one of them lasted 20 minutes." Van Haag was certain that the first conversation occurred on Friday, January 18. However, when it was shown that Martin did not work that day, Van Haag changed his testimony. Neither supervisor expressed to Schafler any dis- satisfaction with this or any other alleged excessive talking. No instances were cited by Respondent to substantiate its complaint that Schafler caused dissension among the employees. The accusation that he failed to maintain the weight adjustment of the divider machine is based upon a single incident 6 to 10 months before his discharge. The only example given of Schafler's alleged insubordination was his temporary refusal, about January 1951, to add to his other duties the task of pushing racks to and from a steam box 25 feet away from his work station. In a conference with Van Haag, Schafler protested that the new assignment was contrary to custom both in Respondent's plant and elsewhere . However, when Van Haag declared that it "was going to be the practice in this plant from now on out," Schafler agreed to do the extra work and did so from then on. The allegation that Schafler negligently permitted too many "doubles" to move up into the "overhead proofer" is now heavily stressed by Respondent, though no mention was made of it at the time of Schafler 's discharge . Lumps of dough of i9Coca-Cola Bottling Company of St. Louis v . N.L.R.B., 195 F . 2d 955 (C.A. 8), enfg. as modified 95 NLRB 284. "Chief Engineer Daniels testified that the oil pump on the divider had to be repaired 2 to 3 times a week. On some occasions , he said, a maintenance mechanic would stand at the divider and oil it by hand until a particular batch of bread had been finished so that the machine could be shut down for these repairs. CONTINENTAL BAKING COMPANY 105 the proper weight would emerge from the divider machine operated by Schafler and would be conveyed to the rounder machine , 3 or 4 feet away, which was also operated by Schafler. In the latter machine the partly shaped loaves would some- times adhere to each other , forming "doubles." As such doubles traveled by conveyor belt from the rounder to the overhead proofer, it was the duty of the divider operator to separate or remove them . Otherwise , when they emerged from the overhead proofer and went into the molding machine, they would "smear" the machinery and cause a short shutdown. Respondent asserts that during the last 2 or 3 weeks of Schafler ' s employment , it was losing 20 to 30 minutes a day because of smears; '" that it had much less trouble with the other divider operator ; and that Van Haag had warned Schafler about the situation in September and December 1951 and on January 21-23, 1952." On the other hand, Van Haag admitted that it was possible for doubles to slip past a divider operator while he was pushing racks to and from the steam box 25 feet away." The situation with respect to smears and doubles , moreover , was not a new one. Bakeshop Foreman Resetarits testified that he had been cautioning Schafler about doubles once or twice a week ever since Schafler began operating the divider machine, 22 years before his discharge." And Van Haag asserted that he had been receiving complaints from Resetarits regarding Schafler's in- efficiency in eliminating doubles during that entire period. In spite of these long continuing alleged complaints regarding doubles, Respondent paid high tribute to Schafler's work as late as January 25, 1951, tellitig him and his wife that his work and his record were "above reproach" and that it was some- thing that he could be "mighty proud of."" If Respondent had really believed that Schafler let more doubles go by than did other divider operators, it is difficult to see why it waited 2Z years to replace him. Even if his alertness in catching doubles diminished, as Respondent con- tends, we are persuaded that, absent his union activities, Respondent would have rewarded his 16 years' service by transferring him to some other operation instead of discharg- ing him without notice. tt The record shows , and we find, that smears were caused by many other factors than failure on the part of the divider operator to separate or remove doubles. 22 In the Intermediate Report the Trial Examiner credits "the testimony of Schafler to the effect that throughout the years of his employment no complaints were made to him as to his conduct or efficiency." Schafler did testify that he had never been "criticized" or "warned." However, he admitted that Bakeshop Superintendent Van Haag had occasionally* talked with him about carelessness at the divider and that Foreman Resetarits had some- times talked to him about smears and had occasionally implied that some were Schafler's fault. We find that occasional complaints were made to Schafler about his work , but that he was never seriously reprimanded or threatened with discharge. 24 The partially formed loaves move along at the rate of one a second. 2The Trial Examiner erroneously found that Schafler had been operating the divider for 5 years. tfThe Trial Examiner incorrectly found that this event occurred about a year before the hearing herein, namely, about August 1951. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent offered no definite evidence to support the only ground on which it relied at the time of Schafler's discharge, namely that Schafler was uncooperative and resented correction by the bakeshop superintendent. Bakeshop Superintendent Van Haag merely testified that Foreman Resetarits complained to him in January 1952 of Schafler's poor cooperation and resent- ment of orders. Significantly, Resetarits himself said nothing about this when he took the witness stand. It is also significant that on January 25, 1952, when Schafler returned to the locker room after being discharged by Van Haag, he encountered Resetarits who said, "I'll see you Sunday." Schafler replied, "No, you won't. I've just been fired." Resetarits then rejoined, "Well, I'll be damned . . . I didn't know a thing about it." ffi Like the Trial Examiner, we find that Respondent did not discharge either Martin or Schafler for cause. We find further that in discharging them it discriminated against them to dis- courage membership in the Construction Workers and to en- courage membership in the Firemen and the Bakers, respec- tively, in fulfillment of the threats made by Chief Engineer Daniels to employee Craig and by Bakeshop Superintendent Van Haag to Shipping Room Foreman George Most, and in violation of Section 8 (a) (3) and (1) of the Act. Because the unfair labor practices here found are of such a nature as to justify an inference that Respondent may commit other kinds of unfair labor practices, we believe it necessary to order that Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. ORDER Upon the basis of 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 hereby orders that Respondent, Continental Baking Company, St. Louis, Mis- souri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in Local No. 6, International Brotherhood of Firemen, Oilers, Maintenance Men and Helpers, AFL, or Local No. 4, St. Louis, Missouri, Bakery & Confec- tionery Workers International Union of America, AFL, or in any other labor organization, or discouraging membership in any labor organization, by discriminating against its em- ployees in regard to their hire, tenure, or any term or con- dition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent permitted by the proviso to Section 8 (a) (3) thereof. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer Elbert A. Martin and Frank H. Schafler immediate and full reinstatement to their former or substantially equiv- X This conversation was not denied by Resetarits. CONTINENTAL BAKING COMPANY 107 alent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole Elbert A. Martin and Frank H. Schafler, in the manner set forth in the portion of the Intermediate Report entitled "The Remedy," for any loss of pay which they may have suffered by reason of Respondent's discrimination against them. (c) Post at its plant in St. Louis, Missouri, copies of the notice attached hereto as Appendix A.n Copies of this notice, to be furnished by the Regional Director for the Fourteenth Region, shall after being duly signed by Respondent's official representative, be posted by it immediately upon receipt thereof, and maintained by it for a period of sixty (60) con- secutive days thereafter in conspicuous places, including all places' where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that these notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fourteenth Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. 27 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." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our em- ployees that: WE WILL NOT encourage membership in Local No. 6, International Brotherhood of Firemen, Oilers, Maintenance Men and Helpers, AFL, or in Local No. 4, St. Louis, Missouri, Bakery & Confectionery Workers International Union of America, AFL, or in any other labor organiza- tion, or discourage membership in any labor organization, by discharging any of our employees or in any other manner discriminating against them in regard to hire, tenure, terms, or conditions of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations , to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing 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 member- ship in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer Elbert A. Martin and Frank H. Schaffer immediate and full reinstatement to their former or sub- stantially equivalent positions , without prejudice to their seniority or other rights and privileges ; and we will make them whole for any loss of pay which they may have suf- fered by reason for the discrimination against them, CONTINENTAL BAKING COMPANY, Employer. Dated ................ By........................... ........................ (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced , or covered by any other material. Intermediate Report and Recommended Order Upon charges filed by Elbert A. Martin and Frank H . Schafler against Continental Baking Company,' the General Counsel 2 of the National Labor Relations Boards by the Regional Director for the Fourteenth Region , St. Louis, Missouri , Issued an order on June 2, 1952, consolidating the two cases for the purposes of hearing and, coincidental therewith , issued a consolidated complaint against the Continental Baking Company ,4 alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended , 61 Stat. 136 6 With respect to the unfair labor practices the complaint alleges in substance that: The Respondent on or about January 23, 1952, discharged Elbert Martin, and on or about January 25, 1952, discharged Frank Schaffer , and thereafter failed and refused and does now fail and refuse to reinstate them to their former or substantially equivalent positions or em- ployment ; the Respondent discharged , and failed and refused , and does now fail and refuse to reinstate the said Martin and Schafler in order to discourage membership in a labor organization , and because they supported and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection; Respondent and its officers , agents , and supervisors , from on or about December 15, 1951, and thereafter , interrogated its employees at its St . Louis, Missouri, establishment con- cerning their union membership and affiliation, threatened its employees with discharge if they assisted the Union, and warned its employees to refrain from assisting the Union and from engaging in concerted activity on behalf of the Union. Thereafter the Respondent filed its answer to the complaint in which it admits the juris- dictional allegations and the discharges of Elbert A. Martin and Frank H . Schafler and its refusal to reemploy them ; but denies the commission of any unfair labor practices. Purusant to notice a hearing was held at St. Louis, Missouri, on August 25, 26, 27, 28, and 29 , 1952, before Bertram G. Eadie , the Trial Examiner designated by the Chief Trial Examiner . All the parties were represented by counsel. Full opportunity to be heard and to examine and cross-examine witnesses was afforded all parties . Upon the opening of the hearing , counsel for Respondent made a motion to sever the two cases and try them sepa- rately. The motion was denied. At the conclusion of the hearing the General Counsel and counsel for the Respondent moved to conform the pleadings to the proof as to formal matters . The motions were granted. All parties were granted 20 days from August 29, 1952, for the filing of briefs and/or pro- posed findings of fact or conclusions of law or both. General Counsel and counsel for the Respondent respectively have duly filed their briefs with the Trial Examiner , which have been duly considered. i Filed January 25, 1952, and January 28, 1952, respectively. 2 Hereinafter referred to as the General Counsel. $ Hereinafter referred to as the Board. 4Hereinafter referred to as the Respondent. 6 Hereinafter referred to as the Act. CONTINENTAL BAKING COMPANY 109 Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT L THE BUSINESS OF THE COMPANY The Respondent is and has been at all times material herein, a corporation organized and existing by virtue of the laws of the State of Delaware with its principal office and place of business located at 630 Fifth Avenue, New York City. It has other establishments located in St. Louis, Missouri; Akron, Ohio; Berkley, Ohio; Clarksdale, Mississippi; Dallas, Texas; and cities in various other States where It is now and has been continuously engaged in the business of baking , selling, and distributing bakery products consisting principally of bread and cakes. The Respondent in the course and conduct of its business operations in its establishment located at 1620 Biddle Street, St. Louis, Missouri, during the 12-month period ending July 30, 1952, purchased goods and raw materials consisting principally of flour, lard, milk, sugar , and yeast, valued in excess of $1,000,000, of which approximately 50 percent was shipped in interstate commerce to its St. Louis, Missouri, establishment from points located outside the State of Missouri. During the same period the Respondent processed, sold, and distributed bakery products consisting principally of bread, valued in excess of $ 50,000. of which approximately 50 percent was transported, sold, and shipped in interstate commerce from the St. Louis, Missouri, establishment to points outside the State of Missouri. The Respondent concedes that it is engaged in commerce within the meaning of Section 2, subsec- tion 6 of the Act The Trial Examiner finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED United Construction Workers, Local 535, affiliated with United Mine Workers of America; Bakers' Union No. 4, St Louis, Missouri, Bakery & Confectionery Workers, International Union of America; International Brotherhood of Firemen, Oilers, Maintenance Men and Helpers, Local No. 6, affiliated with American Federation of Labor; are labor organizations admitting to membership employees of the Company. III. THE UNFAIR LABOR PRACTICES A. Restraint and coercion charged to the Respondent The testimony of employee Monrow Craig is credited by the Trial Examiner to the effect that during December 1951 or January 1952, Daniels, the chief engineer in charge of the maintenance department, asked him if he had joined the United Construction Workers Union, and that Daniels in the same conversation had stated , " I know the biggest majority of you belong to it," and "... they would allbefired if it took two men to replace one ," and further, "He had seen this happen before on another Union trying to organize the plant ." This testimony was not denied by Daniels. The Trial Examiner credits the testimony of George Most to the effect that in a conversa- tion held with Bakeshop Superintendent Van Haag he was asked by Van Haag ". . . what I knew about this other Union" and "any one that wasn't satisfied with the Union we now had could get out or they would be eliminated or discharged . I don't remember the exact words." Elbert A. Martin was discharged by the Respondent on January 23, 1952, and Frank H. Schafler on January 25, 1952. Both Martin and Schaffer had been employed by the Respondent for a number of years; Martin from April 7, 1947, in the maintenance department and Schafler from June 15, 1936, in the baking department. Martin was and had been a member of Local No. 6 and Schaffer a member of Local No. 4. They both joined the Construction Workers; Martin on October 4, 1951, and Schaffer on October 3, 1951. On December 10, 1951 , Martin was ordered to appear at a subsequent date before the executive board of Local No. 6 to answer charges preferred by Business Manager Weber On December 21, 1951 , Schafler was notified to appear before the executive board of Local No. 4 on January 5, 1952, to show cause why "you should not be charged with the following charges. Page 70, sec. 7a of the Constitution and book of Laws, of the International Union, and of Local Union No. 4 Line 1, 3, 5 and 9." 1 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin and Schaffer ignored the notices and each failed to appear before those respective boards. Martin remitted his dues of $ 10 to Local No. 6 for the months of January , February, and March , 1952, which were returned to him under date of January 25, 1952 . Schaffer was advised " The Executive Board recommended to the general meeting of January 12, 1952 that you Frank Schafler , be expelled on the charges preferred." When Martin appeared for work for the 12 p.m shift on January 23 , 1952, his timecard was not In the rack and his position was filled by another employee. On January 25, 1952, at the conclusion of Schafler' s work, Bakeshop Superintendent Van Haag took his timecard out of the rack and said, "As of today , your services with the Continental Baking Company were no longer required." On January 25, 1952, Martin addressed a letter to James Vaughn, acting manager of Re- spondent , requesting the basis for his dismissal to which Respondent replied stating, "Our reason for dismissing Mr. Martin was that he was not as efficient in performing his duties as he should have been by reason of the fact that he spent a great deal of time visiting with other employees during his regular working hours ." Schaffer made a similar request to Respondent for "the reasons of my dismissal and other facts " to which Respondent replied, "Our reason for dismissing Mr. Schaffer was that he would not give the proper cooperation in performing his duties . He resented correction from the Bakeshop Superintendent and had been cautioned a number of times about this before the date of his dismissal." The distinctive facts relating solely to Martin other than the preceding paragraphs of this report, are the following: The maintenance department in which Martin was employed had jurisdiction over the entire plant of Respondent , insofar as the upkeep and repair of the buildings , equipment, and ma- chinery was concerned . The building , housing the plant, was approximately 250 x 300 feet, occupying an entire block. It was two stories and basement . The entire structure besides the operating machines required daily routine inspections . These inspections covered the fire- fighting, water , drainage, plumbing, heating, boilers , ovens, furnaces , motors , and electrical equipment , which necessitated the mechanic in charge of the shift to inspect the roof, first and second floors , basement , and outside portions of the building. The staff of the maintenance force consisted of a chief engineer , assistant chief engineer, and 4 mechanics , operating in three 8-hour shifts: 8 to 4; 4 to 12; 12 to 8. These shifts rotated around the clock , and provided for changes in operators to comply with the hourly standard workweek . The chief engineer , however , always worked on the 8 to 4 shift with the mechanic or assistant chief engineer rotated to that shift . The mechanics or assistant chief engineer on the 4 to 12 and 12 to 8 shifts had the full responsibility during those hours of the repair and operation of the entire plant insofar as the maintenance department was concerned , especially in case of emergencies and breakdowns , when the mechanic on such shifts would be called upon to act entirely on his own initiative. The chief engineer ran a logbook which noted his orders or directions to the on-coming me- chanics concerning their shifts, outlining their work and the then repairs to be made , or worked upon, other than the routine inspections , repairs, and maintenance of the machines. In the case of a breakdown, the mechanic of the maintenance department on the shift would be signaled by a gong in the office of the maintenance department . It was sounded from a central location in the bakeshop on the first floor where the one sounding the gong was supposed to await the mechanic responding. There was no directional signal as to where the trouble was to be located. The mechanic or the assistant engineer on the shift first had to ascertain the location and cause of the trouble, and in many instances it required his return to the maintenance de- partment in order to gather tools or parts to make the required repairs . This procedure neces- sitated the mechanic to talk to some of the employees of Respondent in all parts of the plant and at all hours of the day. Inmost instances a certain amount of conversation was necessitated with the operator of the machine in order to ascertain the trouble and make the necessary re- pairs or adjustments. Martin during his employment with the Respondent received the ingrade raises of pay of the other employees . On occasions he performed personal work as a mechanic during off hours for officers of the Respondent . During his entire term of employment he never received a reprimand from his supervisors in criticism of his mechanical skill. Daniels , the chief engineer , subscribed to the contention of the General Counsel that Martin was a good me- chanic. In the spring of 1951, during his days off, Martin accepted employment with a roofer and shortly thereafter became a partner with him in the roofing business . This partnership was brought to a close in early December 1951. At the end of his summer vacation in July 1951 he asked Respondent for an extra week's vacation and was granted 4 days additional leave without pay in order to devote the time to the roofing business . The Respondent through its chief engineer and superintendent was well acquainted with Martin ' s outside business ac- CONTINENTAL BAKING COMPANY 1 1 1 tivities. The chief engineer also carried on outside business activities during his off hours from the plant and such activities were also known to the Respondent . No complaints were ever made to Martin or the chief engineer by the Respondent for such outside activities and during alltimesmaterialhereto , the Respondent had no rule or regulation pertaining thereto. Although a member of Local No . 6, Martin became a member of the United Construction Workers on October 3, 1951. On January 22, 1952 , Martin who was regularly due to report at 12 p.m., after 4 days off, caused by the change of shifts, called Willard on the phone who was then on the 4 to 12 shift at the plant to state he had been taken ill and asked him if he would work in his place and stead , and sign his timecard on the following 12 to 8 shift that night ; or if he did not care to do that he would pay him either in time or money . Willard worked the shift for Martin but before doing so, he called Daniels who consented to the substitution . Other members of the maintenance staff had followed a like procedure at various times in the past. The following day Daniels called Fitch and instructed him to work the following night on the 12 to 8 shift, in place of Martin who was due to return for work at that time . Daniels then removed Martin's timecard from the rack . Upon reporting for work Martin found that his timecard had been taken from the rack and that his swing on the shift was to be filled by Fitch. He then called Daniels at his home and was advised by him is substance that he had been discharged. The testimony of the chief engineer , assistant chief engineer , and fellow employees support the observation made by the Trial Examiner that insofar as the mechanical skill of Martin is concerned he was at all material times a well -qualified and competent mechanic. During the years of his service and up to the time of his discharge there had never been any criticism of his mechanical skill or ability in performing his duties for the Respondent. The morning following his discharge Daniels informed him that his reasons for discharging him were ". . . for insubordination, talking too much, which I warned and told you not to or asked you not to, and taking the authority upon yourself to have other men ring your card which I had let other men change shifts but it was a practice that he was to tell me, to let me know so at least I know what men was on duty." The testimony of Martin is credited by the Trial Examiner as to the reasons given by Daniels at the time for his discharge of Martin , to wit: Q. What was said in that conversation? A. Mr. Daniels was in his office in the maintenance department. He asked me to be seated . I sat down. He said "What the --" I said " What's this , I am fired." He said "Yes.- 'What' s the reason I am fired ? Has my work been satisfactory?" He said "Yes." " What' s the reason I am fired. ?" He stuck up his finger said "One, you called Mr. Monroe without calling me." I said "Always been the policy to call the plant. We always work it that way." He said "If I can't get you on that , get you for talking too much." I said, "Well, you have to prove that to me." He said, " I can get you on insubordination . No. 3." 1 said, " That covers a wide field , name one of them." I said, " To tell you the truth, Mr. Daniels , Local 6 asked you to fire me, isn't that right? " He said , " I am not answering no questions and find myself behind the 8-ball We will go upstairs and talk to Mr. Jimmy Vaughn." A. He offered me a letter of recommendation but he wouldn't give me a letter for termination, why I was being let out. The testimony of Craig is credited, in the following related incident: A. I told Mr. Daniels that I'd been up to join the Firemen and Oiler ' s Union Local 6. I also told Mr. O'Shanghnessey asked me did I know Elbert Martin. A I told him Mr. O'Shanghnessey asked me did I know Elbert Martin that used to work for Continental. I told him I knew Elbert Martin and still worked there. Mr. Daniels says I know, Weber , business agent of Local 6, has already asked for Martin's discharge. I guess the reason he hasn't been discharged , Vance Halterman is in the hospital , Claude Hill is out of town. Q. Who is Vance Halterman? A. Manager of the plant. 1 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Who is Claude Hill? A. He is manager of several plants. Q. Was anything else said at this conversation? A. Also said that Mr. Daniels said that he had seen this happen before on another union, trying to organize a plant . If it took two men, they would all be fired if they took two men to replace one. Q. Who would be fired? A. All the maintenance that belong to this Missouri Miner 's Union. Q What Union? A. Missouri, I can't think of it now. Q. You mean United Construction? A. United Construction Workers. Q. Did he ask you if you had signed a card at that time? A. He did. Q. When you replied , what did he say? A. He said ' • I know the biggest majority of you belong to it." Q. To what? A. To the United Construction Workers . They would all be fired if it took two men to replace one. The derelictions in duty charged to Martin by the Respondent (a) that he talked with other employees; (b) that he was insubordinate; (c) that he assumed authority in calling Willard, the maintenance man on the 4 to 12 shift , to work in his place instead of calling Daniels, the chief engineer ; (d) that he had worked outside the plant on off hours during his employ- ment by the Respondent without its consent and detrimental to its interests ; and (e) that he appeared tired during his working hours ; and each resolved by the Trial Examiner contrary to the contention of the Respondent that Martin was anything but employable in the particular position he occupied for the Respondent (a) That he talked with other employees There was no rule in force at the plant forbidding employees from engaging in conversa- tion. He was detected by Chief Engineer Daniels in conversation with a driver of one of Respondent's trucks for a period of 5 minutes . Daniels witnessed the 2 men from a distance of approximately 250 to 300 feet across the plant . He did not know what the conversation was about and took no further immediate action in the matter . He, on another occasion, witnessed Martin and Schafler in conversation in the maintenance department for a space of a few minutes, again he took no immediate action. The Trial Examiner credits the testimony of Martin to the effect that the first conversa- tion set forth above with the driver of a truck at Respondent ' s bridge was solely in relation to Martin's duties . He had been called by the driver who was having some difficulty with the electric switch or fuse on the outside wall of the building through which electricity was furnished to trucks while at Respondent 's bridge when the truck engines were shut off. The conversation took place at thetimehemadea repair or adjustment and was in relation thereto. According to Daniels' testimony , the conversation lasted approximately 5 minutes and was held in September 1951 , approximately 5 months prior to his discharge. The Trial Examiner credits the testimony of Schaffer in regards to the conversation taking place between him and Martin to the effect that it was held after Schaffer had finished his day's work. He had met Martin while he was about to leave the lunchroom and he stood talking with hun for a few minutes in the hallway between the lunchroom and the maintenance department, when Van Haag appeared and objected to them conversing together . Schafler' s and Martin's versions of the incident seem credible , while Daniels' actions in advancing the incident as one of the reasons for the dischargeof these employees is not credited by the Trial Examiner. Schafler's credited testimony follows: A. When I rang my time card to go home, Mr. Martin, at that time was coming out of the lunch room which is right directly besides the time clock . He said, to me, come up to the shop, I would like to talk to you. I said , O.K. I'm on my way to get a coke, anyway. We went up there, and when we -- were not in the maintenance shop direct, we were in a little gangway and I saw Mr. Van Haag , the bake shop superintendent walking through the loading shed, and the conversation that Mr. Mirtin and I had, it was about a letter that he received from the firemen and oilers. The Trial Examiner credits the testimony of Martin regarding the conversation had with Schaffer, to the following effect: CONTINENTAL BAKING COMPANY 113 THE WITNESS: Mr. Schafler punched out . I was coming out of the lunch room with my dinner bucket, I come out of the lunch room where we lunch, with my dinner bucket in my hand. Mr. Schafler had punched out to go home , but he hadn't changed clothes yet, and I said , could I see you a minute, Frank. And the conversation was had while he walked to the maintenance department with me, I was on my way back to the maintenance department with my dinner bucket in my hand. Q. What time was that? A. 7:30, around 7, 7:30. I usually eat around 7:00 to 7:30, to 8 . 00, somewhere in there. I asked him about the letter that I had got from the Union. wanting me to appear before the Executive Board and I knew also that he joined this local, I asked If he received one, the letter to appear before the Executive Board . I said, if you haven't got one, why you'll get one in a few days. Q. Was Ernie Daniels there? A. No Daniels checked out around 4 or 5 or 6 o'clock in the evening. Sometime earlier than the time of this conversation, 7:30 approximately. (b) That he was insubordinate While Martin was making a repair to a machine in the bakeshop, and while in a stooping position, the foreman of the bakeshop bent over his shoulder and when Martin was so engaged he happened to turn his head and saw the foreman looking over his shoulder, "looking right there on you, raise up and your head hit him in the chest, turn around for a wrench, and he would be in your way . I called his attention to it time and time again . I have taken it up with Mr. Daniels , and that time I was driving a shaft looking up, almost his him, and I said, you are going to get hit on the head in here one of these days, getting your nose down like that, why don't you get away from the lift . I'll lower the boom on you." THE WITNESS: I reported it to Mr. Daniels. I told him to, he had to do something about it, or I was going to lower the boom on the man. Bergke's testimony of the incident follows: I seen Mr . Martin working on one of the wrapping machines . I walked over to him there, and I stood there. Mr. Martin looked up, he said 'You here' He said 'I can't work while you are standing around looking, ifyoudon'tget away from here I'll hit you with a hammer. Q. Now what did you say to him? A. I din't answer the man. I just looked at him. The incident occurred about 5 months prior to Martin 's discharge. The Trial Examiner is of the opinion that the incident had no prejudicial effect on his superiors until reasons had to be found for his discharge by Respondent , other than for his concerted union activity in joining the Construction Workers. Bergke was not Martin 's foreman. He had no authority in directing Martin, who was in full charge of maintenance under the chief engineer or the superintendent of the plant . The charge of insubordination leveled against Martin must necessarily fall , as a reason for Martin's discharge. (c) That he assumed authority in calling Willard, the maintenance man on the 4 to 12 shift, to work in his place on the following 12 to 8 shift instead of calling Daniels , the chief engineer Martin, Craig, Willard, and Daniels each testified credibly that a policy had developed that in case of illness or emergency delaying the oncoming maintenance man from arriving in time for his shift to notify the man on watch at the plant and arrange for a substitution. Daniels testified as follows: Q. But it is true that prior to Martin's discharge the employees did call the man on their shift and have them work? A. They did do that and they must call me. In this particular instance Martin called Willard, the mechanic on the shift, and he in turn called Daniels gotifying him of the suggested change. Daniels agreed to the change and Willard worked the shift for Martin. - 1 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin's testimony is credited to the effect that it had been a custom among the employees in the maintenance department during his years of employment at Respondent 's plant to call the plant and report to the maintenance mechanic on watch to see if a substitution could not be arranged in case of illness or other emergency. Each of the mechanics of the maintenance department had in the course of his employment the identical duties and responsibilities of the others during the shifts when he was alone and unaccompanied by either the chief engineer or the assistant chief engineer. When Martin called Willard who was on the 8 to 12 shift during the afternoon and evening of January 21, and requested him to substitute for him that night on the 12 to 8 shift, he accepted the assignment and telephoned to Daniels informing him of the anticipated arrangement. (d) That he had worked outside the plant on his off hours Martin's extra work on his off hours commenced in the early spring of 1951 and lasted until December 1951. He made no secret of it. He informed the chief engineer at the start and discussed it with him, no objection was raised by any one in authority to hits in accepting such employment, in fact during the summer of 1951, he was granted an extra 4 days ' leave without pay by the chief engineer to complete one of his jobs. Martin had retired from any connection with the enterprise in early December 1951, print to his discharge on January 23, 1952 . Martin's testimony is credited by the Trial Examiner to the effect that at no time did he receive any complaint or criticism from his super ors.for engaging in the extra work . He also worked on his off hours for the company officials. The chief engineer also engaged in work on his off hours other than as Respondent's employee and no objection was raised by Respondent although it was conversant with the situation that its employees accepted outside employment during their off hours. (e) That he appeared tired during working hours The believable credited testimony is not in support of any such complaint , while the pre- ponderance of the substantial evidence is to the effect that any such alleged condition was not a motivating cause or reason for the discharge of Martin by the Respondent. The distinctive facts relating solely to Schafler other than the preceding paragraphs of this report, are as follows: He had been employed by the Respondent for upwards of 15 years and for the past 5 years was assigned to a job in the bakeshop where he operated 2 certain machines throughout that period. Schafler's testimony is credited by the Trial Examiner to the following effect: "About a year ago the company inaugurated what they referred to as a refresher course. Each employee was requested or required to take this course spending one day going through the plant. At the completion of my day of this refresher course, I was in Mr . Van Haag's office which is the bake shop superintendent, and I asked him specifically about how my work was and he told me that my work was a hundred percent and he could find no fault with it." Mrs. Schafler 's testimoty is alto credited by the Trial Examiner , relating to the above incidents and conversations , iii follows: We went in the plant superintendent's office, Mr: Van Haag, and Mr . Van Haltermon was there, I think he is the plant superintendent and Mr . Van Haag was the bakery super- intendent, and they had a corsage there fd r itie, and Mr . Haltermon said to me, I suppose that Frank told you what this corsage consisted of? And I said Yes, he has , and he said, well, we invited you down here , he said, because we want to radiate the feel of one happy family of which we are proud to have Frank as a member . Then Mr . Van Haag put his one hand on Frank 's shoulder and he shook his hand with the other and he said , that goes for me, too. And the following is also credited: A. Well, he took us in there and there was Mr. Van Haag and my husband and myself, and he said Mrs. Schafler , I don't know if Frank told you this or not, he said a week or so ago we went over the employees ' records and found Frank to have an outstanding record, I believe, he had missed work about two times in all those years. And he said, its a record, his,work and his record are above reproach. And he said, its something you can be mighty proud of, Frank, and Mr . Van Haag also made that statement to my husband, he said, Frank, ' that is something to be proud of and my husband replied , that he was proud of it. CONTINENTAL BAKING COMPANY 115 The Trial Examiner credits the testimony of Schafler to the effect that throughout the years of his employment no complaints were made to him as to his conduct or efficiency as an employee, while the testimony of VanHaagas to several warnings that he claims to have given Schafler is discredited as uncertain, indefinite, and contradictory and in the opinion of the Trial Examiner is not reliable. Van Haag and Schafler were members of Bakers ' Union No. 4. On October 3, 1951 , Schafler signed an application- for-membership card in the United Construction Workers . He shortly thereafter was expelled from Local No. 4. He had been given the application by Martin, who was thereafter dropped from Local No. 6 and discharged from the maintenance department within several days of the discharge of Schafler, as set forth above. Schafler's testimony is credited that shortly after joining the Construction Workers, he informed Otto Balch, a foreman on one of the night shifts in the bakeshop , that he had joined that Union. The credited conversation follows: A. He said how come? And I told him well I wanted to get out and get a full time job where I was able to work two or three weeks, even a month at the present time. Q. (By Mr. Trent) What did he reply? A. He said, I can't blame you. The conversation he had with Elmer Fitch, the assistant chief engineer in the maintenance department, is credited by the trial Examiner and is as follows: Q. When did this conversation occur? A. About a week or so after I signed this card for the United Construction Workers. 11 A. I told him that I had signed a card for the United Construction Workers which I received from Elbert Martin. Schafler testified credibly to the following: Q. (By Mr. Trent) Mr. Schafler , did you have a conversation with Mr . Ed Theobold, bake shop foreman, on the night shift, about your Union activities? A. I did. Q. Where was this conversation? A. At the Bakers Union Hall. Q. When was this conversation? A. On January 5 the day that we had appeared before the executive board. Q. January 5, 1952. A. Yes. Q. What was said in this conversation? A. He had come out of the executive board, got to talking tome and told me what he said in the executive board and he said, there was a few names mentioned, that my name wasn't mentioned and he asked me, do you belong , I said, Yes. I said I belong, he said, well I didn 't know that and I didn 't say anything to the executive board about it, I know it now. Schafler's testimony is credited to the following incident:- Q. All right, now, when Mr. Joe Van Haag told you that your services with Continental were no longer required , did you reply to that? A. I started to reply and I intended to tell him he was in trouble with the Bakers Union, but before I had a"chance to complete my statement he threw his hands up like that and started waving his hands (indicating). Just like that. I don't want to know nothing about it, I don't know anything about it , I don't want to hear nothing about it. Q. Were you able to interrupt him and interject a remark or two? A. After he had finished his statement then I continued and I said . Now, Joe, you know that I have been expelled from the Bakers Union and he said, Yes, he said , I have heard rumors to that effect. 1 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions Reached as to the Facts The General Counsel's contention that the Respondent had violated the provisions of the Act by its interrogations of employees as to their union activities , and in its discharges of Elbert A. Martin and Frank H . Schaffer for their union activities , is accepted and found by the Trial Examiner based on the preponderance of the believable and substantial evidence . The con- tention of Respondent that Martin and Schafler were discharged for cause other than their union activities is rejected by the Trial Examiner as against the preponderance and weight of the believable and substantial evidence. The Trial Examiner concludes and finds that Respondent violated the provisions of Section 8 (a) (1) of the Act in interrogating its employees and Section 8 (a) (3) thereof in discharging the said Elbert A. Martin and Frank H. Schaffer from its employ on January 23, 1952, and January 25 , 1952, respectively. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above , occurring in connection with operations of the Company described in section I, above , have a close, intimate, and substan- tial 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 the Company engaged in certain unfair labor practices , the Trial Examiner will recommend that it cease and desist therefrom and take the following affirmative action designed to effectuate the policies of theAct :( 1) Offer Elbert A. Martin and Frank H. Schaffer immediate and full reinstatement to their former or substantially equivalent positions , 6 without prejudice to their seniority or other rights and privileges ; ( 2) make each of the above- named employees whole for any loss of pay each may have suffered by reason of the Com- pany's unlawful discharge, by payment to each of them a sum of money equal to the amount each would normally have earned as wages from the date of discharge , January 23, 1952, and January 25 , 1952, respectively, to the date of the Company's offer of reinstatement, less the net earnings of each during said period ; T (3) the Company shall, upon request, make available to the Board, payroll and other records to facilitate the checking of the amount of back pay, which shall be computed in accordance with the Board 's customary formula; 8 (4) the Company be ordered to cease and desist from in any manner interfering with , restraining, or coercing its employees in the exercise of the rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent , Continental Baking Company , is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Elbert A . Martin and Frank H. Schaffer, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with , interrogating, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act , the Respondent Company had 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. [Recommendations omitted from publication.] 6The Chase NationalBank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 627. 7Crossett Lumber Company ,, 8NLR440; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7. 8 F. W. Woolworth Company, 90 NLRB 289.