Fehr Baking Co.

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 The Union was on March 31, 1952, and at all times since has been the exclusive repre- sentative of the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act 5 By refusing on and after April 3, 1952, to bargain in good faith with the Union, Respond- ents have engaged in unfair labor practices within the meaning of Section 8 (a) (5) of the Act 6 By discriminating in regard to the tenure of employment of Loyall C Henderson, to dis- courage membership in the Union, Respondents thereby have engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 7 By the conduct adverted to in subparagraphs 5 and 6 above, by threatening to operate with- out employees, by interrogating employees, and by misrepresenting the impact of a union shop upon employees, the Respondents have interfered with, restrained, and coerced em- ployees in the exercise of rights guaranteed in Section 7 of the Act and have thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 8 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.] FEHR BAKING COMPANY and BAKERY & CONFECTIONERY WORKERS' INTERNATIONAL UNION OF AMERICA, AFL, and its LOCAL NO. 478. Cases Nos. 39-CA-89 and 39-CA- 167. April 21, 1953 DECISION AND ORDER On January 22, 1953, Trial Examiner C. W. Whittemore issued his Intermediate Report in this proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a sup- porting brief. The Respondent requested permission to file a reply brief. This request is hereby denied. The Board i 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 the briefs, and the entire record in the case, and hereby adopts, with a minor correction, 2 the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the com- plaint herein be, and it hereby is, dismissed in its entirety. i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. ZThe Trial Examiner inadvertently stated in the Intermediate Report that it was not specifically alleged in the amended complaint that one of the reasons for the strike was the Respondent's refusal to bargain. We note that the complaint does in fact contain such allega- tion. The error, however, does not affect the ultimate findings. 104 NLRB No. 43. FEHR BAKING COMPANY Intermediate Report STATEMENT OF THE CASE 241 Charges having been duly filed and served, a complaint, an amended complaint, and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer haying been filed by the above=named Respondent Company, a hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1),(3), and (5) of the National Labor Relations Act, as amended, 61 Stat 136, herein called the Act, was held in San Antonio, Texas, on December 1, 2, and 3, 1952, before the undersigned Trial Examiner. In substance the amended complaint, as it relates to Case No 39-CA-167, i alleges that the Respondent: (1) In June and October, respectively, 1950, discrumnatorily discharged employees Jerome J Segel2 and Murry Kopplinbecause oftheir union activities, (2) from June to October 1950 in various ways discriminated against other employees to discourage union membership, (3) in September 1950 and at all times thereafter refused to bargain collectively with the Union although it was the exclusive representativeofallemployees in appropriate units for that pur- pose, (4) and by the foregoing and other specified conduct interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act The answer denies the commission of any unfair labor practices At the hearing all parties were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings and conclusions. Argument was waived. A brief has been received from the Respondent and from General Counsel. Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Fehr Baking Company is a Delaware corporation , having its principal office and place of business in San Antonio, Texas , where it is engaged in the manufacture , sale, and distribution of bread , cake, and related bakery products. It annually purchases bakery materials consist- ing principally of flour, sugar , yeast , and milk products valued at more than $1 ,000,000, of which more than 25 percent is shipped in interstate commerce to the San Antonio plant from points outside the State of Texas The majority of the remaining 75 percent of purchases is made through the Campbell Taggart Service Corporation . The Respondent also buys adver- tising, sales , production, engineering, research , and accounting services from Campbell Taggart , a corporation which controls , owns stock in, or has an interest in more than 40 bakeries in several different States, owns more than 50 percent of the Respondent ' s voting common stock and nearly 50 percent of its preferred stock Moreover the Respondent ' s presi- dent , secretary and treasurer , and assistant secretary and treasurer , all are connected with Campbell Taggart through stock ownership or as employees Upon substantially the same facts the Board found in Case No. 39-RC-156 (89 NLRB 1401) that the Respondent is engaged in commerce within the meaning of the Act. It is so found here. II. THE LABOR ORGANIZATION INVOLVED Bakery & Confectionery Workers' International Union of America , AFL, and its Local No. 478, referred to herein as the Union , are labor organizations admitting to membership em- ployees of the Respondent 'At the opening of the hearing the Trial Examiner granted a motion by the Respondent to sever and dismiss Case No. 39-CA-89, which byorder of the Regional Director dated October 20, 1952, had been consolidated with Case No. 39-CA-167. The reasons for the ruling are set out in the record. (During the hearing the Trial Examiner granted, on the ground that General Counsel had failed to make out a prima facie case, a motion by the Respondent to dismiss the complaint as to Segel. Segel admitted that he quit because of his health and upon advice of the doctor whom he had been consulting for several weeks. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and issues On May 17, 1950, theBoard issued its Decision and Direction of Election in Case No 39-RC- 156, ordering an election among the Respondent ' s some three hundred employees in an ap- propriate unit The election was conducted on June 8. 1950 The Respondent filed objections to the conduct of the election. On Auust 28, 1950, the Board issued a Supplemental Decision and Certification of Representatives in which, among other things, it certified the Union as the exclusive bargaining representative of all employees , for the purposes of collective bargaining, in an appropriate unit consisting of all employees of the Respondent in San Antonio, Texas, ex- cluding office and clerical employees, mechanical maintenance employees, truckdrivers, salesmen, professional employees , guards, watchmen , and supervisors as defined in the Act In consonance with this Board certification, the Trial Examiner concludes and finds that on August 28, 1950 , and at all times material thereafter , the Union was and now is the exclusive bargaining representative of all employees in the unit above described. Collective-bargaining conferences began on September 13 On October 2 and 3 a second and third meeting of the parties was held, and on October 5 the Union called a strike of the em- ployees. Thereafter a total of 12 meetings have been held , the last before the hearing occur- ring on November 13, 1952 . No collective-bargaining agreement has been signed . The strike was still continuing at the time of the hearing Although it is not specifically alleged in the amended complaint , General Counsel contended during the hearing that one of the reasons for strike was the Respondent's refusal to bargain before October 5 It is also his position that throughout the bargaining conferences the Respondent negotiated in bad faith and thus refused to bargain. Also occurring between May and October 1950, General Counsel contends, were many in- cidents of coercive nature and many acts on the part of management discriminating against union adherents , particularly as to working conditions . As to employee Murry Kopplin, it is claimed that on October 7, 1950, he was constructively discharged when ordered to perform other than his usual work, and to take the place of a striking employee B. The alleged discrimination against and coercion of employees Striking employee Erline Henson testified that in April 1950, on the day she first wore a union button, Superintendent A. J. Raska came by her place of work, with a pad and pencil, saw the button, wrote something on the pad, and (on direct examination) that later she saw on the same pad her name listed with several others. On cross-examination, however, Henson said that she actually saw him , while looking over his shoulder , writing the " last part" of her name She also said that she saw a total of about 20 names on the list Raska, admitting that he customarily carried a notebook and pencil with him in going about the plant, denied having recorded the names of those he saw wearing buttons Not only because of the inconsistency in Henson's testimony, noted above, but also because oftheabsence of proof that any other of the 20 names she saw listed was of an employee wearing a button, The Trial Examiner considers the evi- dence insufficient to, establish that Raska, to intimidate employees., openly made note of the button wearers, or that he made note of Henson 's name because she was wearing a button.4 Several striking employees testified , and both Raska and M . K Ghrist , president acid general manager , admitted that a week or two before the Board election a majority of the employees were called to the office, apparently individually. There is substantial agreement that at the office each employee was told, either by Raska or the office manager, J K Zeeman; that an election was to be held, that Texas had an open-shop law, and that they could either belong or not belong to the Union. Henson, above identified, said that when she was called in Zeeman told her that they did not "want a union in here and we will not have a union in here." Employee Annie Schulz said that when she was called in "they only said there wouldn't be no union and I shouldn't vote for a union, and that was all " Employee Albert Watson said that Raska asked him, on the occasion of his being called to the office, what he thought about the Union, and wrote his name on a piece of paper after he had said he thought it was all right "for the little man." Such remarks and conduct, just before a Board election , if actually made would serve to sup- port a finding of interference and coercion . Although Zeeman was not a witness, both Raska and Ghrist denied that such remarks were made Doubt upon Henson's account is cast by the finding as to her credibility in the paragraph above And as noted hereinafter the Trial 3 90 NLRB 2193. 4The testimony on this matter was received only as background. Even if it occurred, the 6 months' bar would prevent a finding of unfair labor practice. The original charge in this case was not filed until November 16, 1950. FEHR BAKING COMPANY 243 Examiner is unable , because of inconsistencies and contradictions by records of their version of other matters, to accept as credible the testimony of Schulz and Watson. Furthermore, the inherent probabilities serve as unlikely foundation for such isolated remarks. Ghrist admitted that "most" of the three hundred employees were called in. There is no evidence that more than the three described above were in any way restrained or coerced. In short, the Trial Examiner concludes and finds that the credible evidence is insufficient to find that by such interviews the Respondent interfered with , restrained , and coerced its employees. Watson, identified above, testified on direct examination that he was told by his supervisor, John Langholtz, that if he joined the Union he could, in effect, find some untrue excuse to hire him and that he could be fired if he went on strike. Watson also said that shortly after he began wearing a union button, early in May, he and other employees were deprived of rest periods, were brought drinking water in a bucket instead of being permitted to go to the drinking fountain, and had his hours of work curtailed. Langholtz denied making the alleged coercive threat, and explained that the only time Watson and others had drinking water brought to them in a bucket was when the fountain was out of order As to the threat of being fired if he went on strike, Watson admitted on cross-examination that Langholtz had actually said that if his job was filled while he was on strike he would lose his job He also admitted that the "bucket" incident lasted but a few days. Watson's testimony that he averaged from 55 to 60 hours a week before wearing a union button and thereafter only 38 or 39 hours lacks support of company records Such records, in evidence, show that Watson averaged somewhat more than 55 hours a week except during weeks of vacation or in which a holiday fell, from early May until the first of October, when he went on strike. The Trial Examiner, under these circum- stances, cannot accept Watson's testimony as trustworthy Credible evidence is insufficient to sustain a finding that Watson was either coerced or discriminated against as to his working conditions Another striking employee, Alfred E Oldham, whowas a shipping clerk, on direct examina- tion said that his hours of work were reduced "a week or a week and a half after the election." The election was held June 8. Company records show that the week of June 3 he worked 41 54 hours; of June 10, 41 08 hours; of June 17, 40.34 hours, of June 24, 40.33 hours; of July 1, 40 62 hours; and of July 8, 46.60 hours Not only do these records show no appreciable reduc- tion in working hours, but on cross-examination Oldham admitted that changes in working schedules were not uncommon, that one change had been made in March 1950, and that Ghrist had taken steps to speed up the bakery operations shortly after he took over management, which was early in 1949 The Trial Examiner considers the evidence insufficient to support a finding that Oldham was discriminatorily deprived of regular employment hours. Another striking employee, Manuel Robison, on direct examination said that he wore a union button before the election, and that immediately after the election he was told by his super- visor, Langholtz. "you are not allowed to smoke any more," and "you stabbed me in the back and I am going to stab back hard." On cross-examination, however, Robison admitted in effect that he and others continued to and were permitted to smoke at all times thereafter as soon as they finished unloading a car of flour It thus appears that Langholtz' instructions as to smoking related only to the time when the employees were actually engaged in unloading flour--a not unreasonable order Langholtz denied making the remark about "stabbing." Although Robison was apparently a member of an unloading crew and the order about smoking covered all, no other employee corroborated Robison's testimony about the implied threat or reprisal. Under the circumstances, the Trial Examiner considers the evidence insufficient to find that the rule was discriminatory or that Langholtz threatened reprisal. On direct examination striking employee Annie Schulz, a bread machine feeder, said that after she began wearing a union button the machinery was speeded, she was forbidden to talk, was given shorter hours, and was required to carry heavy rolls of paper On cross-examina- tion, however, she admitted that the speeding up of machinery and shorter hours began as soon as Ghrist came there, which was more than a year before she began to wear a union button, and admitted that she was instructed not to roll the paper across the floor because of sanitary reasons Under these circumstances the Trial Examiner is unable to find the credible evidence sufficient to establish any discrimination against this employee. In summary, the Trial Examiner concludes and finds that the preponderance of credible evidence fails to sustain the allegations of discrimination as to working conditions and of interference , restraint , and coercion.5 5 There is uncontroverted evidence that after the strike began the Respondent circulated among the employees remaining at work an antiunion petition, the text of which was intended to be used as an advertisement answering an antiemployer advertisement published by the Union. It was not published, it was an expression of opinion, and there is no evidence that signatures were coercively solicited or required 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The alleged discriminatory discharge of Murry Kopplin Murry Kopplin was a painter at the Respondent's bakery until October 7, 1950, 2 days after the strike began The day the strike began, on October 5, Ghrist asked him to work in the bread department, he declined and proceeded to do his regular odd jobs of painting. On October 6, after he had told Superintendent Raska that he "was interested in no other type of job but painting," Raska said, "Well, go ahead and paint." On the morning of October 7 he was told by Ghrist that they had discontinued painting , was offered but refused work in the bread depart- ment , and voluntarily quit. It is General Counsel's contention, in effect, that Kopplin was constructively discharged for refusing to take the job of a striking employee. Nothing in Kopplin's testimony, in the opinion of the Trial Examiner, permits this finding. There is no showing that Kopplin was in the Union or the unit, or that he declined production work because he would, in effect , be a strike- breaker. His testimony warrants a finding only that he preferred to work at his trade, and voluntarily quit when told painting was to be discontinued. There is no credible evidence to refute Ghrist's testimony that on and after October 7 painting was, at least temporarily, dis- continued, as well as other maintenance work, because of the strike. The Trial Examiner concludes and finds that the evidence is insufficient to support the alle- gations of the complaint to the effect that Kopplin was discriminatorily discharged. D. The alleged refusal to bargain In general , there is no credible evidence showing that at any time during the long period of negotiations did the Respondent actually refuse tomeet with union representatives or to discuss and bargain concerning any issue raised by them. It is General Counsel's contention that an accumulation of factors support a conclusion that throughout the course of negotiations the Respondent failed to bargain in good faith. During the hearing he claimed such factors to include- (1) Statements by Respondent's representatives at two meetings that only limited recognition would be given to the Union; (2) "an indication of the willingness to do something" about rest and lunch breaks "but a refusal to put it into the contract" on September 13; (3) a company proposal that all employees in the unit, as well as the Respondent and the Union, be included as parties to the contract, (4) inconsistency of the Respondent's proposals that certain statements of law be included in a contract and others ex- cluded, (5) the Respondent's agreement that it would "try to select employees for vacation in accordance with seniority" but refusal to put such a clause into the contract, (6) a claim made by a company representative to the effect that a representative of Local 478 was without authority to negotiate a contract in the absence of a representative of the international; (7) the Respondent's refusal to consider contract provisions of other bakery establishments in other cities; (8) the Respondent's submission of a proposed seniority provision at one meeting less liberal than a proposal on the same subject at an earlier meeting, (9) a proposal by the Company referring to shop rules without providing the Union with written shop rules, (10) the Company's refusal to include a contract clause permitting employees to present grievances to a foreman during working hours, and (11) the Company's inconsistency in proposing that wages could be reduced tothe level existing at any other local bakery where a union agreement existed but declining to agree to the reverse of such proposal - increasing wages to meet a higher level As to point (1) above, it appears from credible evidence that the Respondent, while agreeing to negotiate, made it clear that it was not waiving whatever rights it had stemming from certain exceptions it had filed with the Board and which were pending before the Board at the time of the first meeting on September 13 The Trial Examiner is unable to find that by thus stating its position the Respondent refused to bargain or failed to bargain in good faith. As to point (2) above, the testimony of the union representative regarding the meeting of September 13 fails to support a finding that the Respondent "indicated" a willingness to agree to "do something" about rest periods but refused to put such agreement into the contract The representative's own testimony is quoted: "I specifically asked if he (Respondent's counsel) would put some of that (referring to lunch and rest breaks) in writing, and Mr. Weiss said, 'Well, we would have to look over the contract and see what you have in it and we will get to- gether . . at some later date."' It was at this meeting that the Union submitted its first pro- posed written agreement, and it is clear that at the time Weiss made the above-quoted remark opportunity had not been given to look over the whole proposal The evidence is insufficient to find that on September 13 the Respondent refused to put into writing any agreement concerning "breaks " As to point (3) above, it is undisputed that on October 2 the Respondent proposed that "the employees of Fehr Baking Company in the unit hereinafter defined, acting by and through the FEHR BAKING COMPANY 245 Union , hereinafter usually referred to as the Employees " should be included among the parties to the contract It was a mere proposal , and Weiss' version of the effect of it upon the union representative is unchallenged : " Simmons (the International representative) said that while he wanted to think about this a little , he thought that some such heading . would probably be satisfactory." The Trial Examiner finds no element of bad -faith bargaining in this proposal. As to point (4) above, that of inconsistency in company proposals as to inclusion of certain statements of law , the Trial Examiner considers it unnecessary to labor this point The Trial Examiner knows of no Board or court decision , in interpretation of the Act , which requires that bargaining proposals must be consistent. As to point (5) a e, the evidence is contradictory . Concerning the selection of vacation periods , the union representative testified: " They said they would verbally agree to give the people with the most seniority a choice , and if it was convenient or if it could be arranged, that they would do it , but they would not put anything specific in the contract." Weiss' account, in memorandum form made shortly after the meeting , states. "The Company was willing to include a provision in the contract giving employees the right to express their preference as to the time of their vacation. The Company would attempt to comply with the employees wishes but felt that it should have the right to determine when the vacation should be taken ." Credible support for Weiss' version is in documentary form for, on January 5. 1951 , the Company sub- mitted to the Union a proposed contract containing , in substance, a clause covering the point. The Trial Examiner finds that the evidence does not support a finding that on the matter of vacations the Respondent agreed to matters but refused to put such agreement into writing. Point (6) above was a subject ofsomedebate at a negotiating meeting. Accepting the account of the discussion as given by the Local 's representative, it appears to have occurred on November 1, when the International ' s representative was absent , and arose as a comment by Weiss when the Local' s representative said any contract would have to be ratified by the mem- bership before it would be valid . The evidence is clear that negotiations continued thereafter as requested by the Union. The item is not indicative of bad -faith bargaining As to point (7) above, the Trial Examiner finds no credible evidence in the record to support the claim that the Respondent refused to consider bakery contracts in other cities. Weiss did decline, on one occasion , to negotiate a contract for the entire Campbell Taggart system. And he also declined to accept the contract of the National Biscuit Company . But as to the latter matter , the union representative himself said : "There was quite a discussion on it." The Union was certified by the Board to represent the Respondent concern , not the entire system of Campbell Taggart. As to point (8), the Trial Examiner is unable to find that the shifting of the Company ' s posi- tion as to Its seniority proposals was an act of bad faith . There is no credible showing that the Union had accepted the first proposal , or that an agreement reached was withdrawn or broken during negotiations. As to point (9), it is true that in the contract proposal by Weiss there is a provision that "the shop rules and regulations now in existence . . will be respected and complied with." It also appears that at the conference when the parties discussed this provision , on April 11, 1951 , and the Union asked for the rules , Weiss himself turned to Ghrist and requested them Ghrist replied that they had no written rules. So far as the union representative ' s testimony shows, the discussion ended there . There is no credible evidence that the Respondent actually refused to provide the Union with material then in existence Nor as to point ( 11) above, " inconsistency" of wage proposals by the Company , is the Trial Examiner able to find a refusal to bargain . At negotiating meetings consistency is not seldom an absent , if virtuous , party. In summary , the Trial Examiner concludes and finds that the evidence is insufficient to sup- port the allegations of the complaint that since September 13, 1950 , the Respondent has refused to bargain with the Union It will be recommended that the complaint be dismissed in its entirety. Upon the foregoing findings of fact and upon the entire record in the case , the Trial Examiner makes the following. CONCLUSIONS OF LAW 1. The operations of the Respondent occur in commerce within the meaning of Section 2 (6) of the Act. 2. Bakery & Confectionery Workers' International Union of America , AFL, and its Local No. 478, are labor organizations within the meaning of Section 2 (5) of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint within the meaning of Section 8 (a) (1), (3), and (5) of the Act. [ Recommendations omitted from publication. ] 283230 0 - 54 - 17