Elm Tree Baking Co.

4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elm Tree Baking Company and General Drivers and Dairy Em- ployees Union Local No. 563, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Case No. 13-CA-49252. October 10, 1962 DECISION AND ORDER On February 28, 1962, Trial Examiner Eugene F. Frey issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take affirmative action as set forth in the attached Intermediate Report. Thereafter, the Respondent, the General Counsel, and the Charging Party filed ex- ceptions to the Intermediate Report and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings,' conclu- sions, and recommendations with the modifications noted hereafter. The Respondent is engaged in the manufacture, sale, and distribu- tion of bakery products, and during the time material here employed approximately 29 truckdrivers, of whom 17 were classed as self-service drivers and the remainder were commonly known as vanette drivers. On May 16, 1961, the Respondent discharged 15 of its 17 self-service drivers, and refused on that date and thereafter to bargain with any representatives of these self-service drivers. The Trial Examiner found, as alleged in the complaint, that the Respondent's discharge of the 15 self-service drivers was because of their participation in protected concerted activities and the Respond- ent thereby violated Section 8 (a) (3) and (1) of the Act. The Trial Examiner further found that the Respondent unlawfully refused to bargain with their representatives in violation of Section 8(a) (5) and (1) of the Act. The crucial issue for determination here is whether the self-service drivers, as the Trial Examiner found, constitute an appropriate bargaining unit. The Respondent contends that a unit of self-service drivers is inappropriate and that the appropriate unit 1 The General Counsel excepts to the Trial Examiner 's finding that an announcement of a 4-day suspension of seven drivers for their refusal to attend a sales meeting was not discriminatory but legitimate management action We find it unnecessary to pass upon the Trial Examiner's finding in this regard , since the announced suspension was never implemented and shortly thereafter the 15 drivers were discharged 139 NLRB No. 1. ELM TREE BAKING COMPANY 5 should include both self-service and vanette drivers, relief drivers, checkers, dockmen, and garagemen. As set forth in more detail in the Intermediate Report, drivers in both the self-service and vanette divisions perform the basic function of truck delivery of bakery products to Respondent's customers. The products come from the same production department, are packed in containers by the same checkers and dockmen, and are loaded on trucks at the same loading dock. The servicing of all trucks is han- dled by one garageman. All drivers deliver such items as frozen products and pizza to chainstore warehouses convenient to their routes and also pick up and deliver stale or damaged bakery goods to Re- spondent's own resale stores and to independent locker plants. In addition, both self-service and vanette drivers receive commissions on their amount of sales,' both promote sales of their products, both use the same salesroom in the plant, and both receive the same vacation and holiday benefits. While there were some distinctions between the two types of drivers, such distinctions are minor and have been slowly disappearing. The vanette drivers generally handle local routes and deliver to the smaller retail outlets where they are responsi- ble for the display of the bakery products. The self-service drivers have longer routes, make deliveries to larger accounts, and usually make a drop-delivery of their products in cabinets. They are not usu- ally responsible for the display of the bakery products and do not normally take orders directly from their customers. Although the vanette drivers engage in more day-to-day sales con- tact, a number of self-service drivers occasionally take a day off from their normal route to contact their customers or set up promotional programs in an attempt to stimulate sales or get additional customers. This is especially true of those self-service drivers who are on com- mission or who are attempting to build up their routes to the point it would be profitable for them to go on a commission basis. In addition, the self-service drivers attend sales meetings, and since 1959 the Re- spondent has given them training in selling methods and procedures. Like vanette drivers, self-service drivers are expected to get help on sales problems, and learn new methods and techniques of sales promo- tion, including the promotion of new products. They are also eligible for special incentive compensation for securing new accounts and for getting customers to use special displays. In determining appropriate unit issues the Board takes into con- sideration and evaluates those factors which tend to establish a com- munity of interest among a group of employees, including their com- mon experience, duties, wages, hours, and other working conditions. ' Self-service drivers have an option to work at an hourly rate or to work on a com- mission basis . At the time of the discriminatory discharges herein, seven self -service drivers had been on commission for varying lengths of time C DECISIONS OF NATIONAL LABOR RELATIONS BOARD We think that the facts set out above establish that all drivers have a community of interest. Essentially, all drivers perform the same kind of work using the same basic skills. Working conditions and fringe benefits are the same. Moreover, there has been frequent inter- change of both drivers and equipment between the self-service and vanette divisions. The record shows that Respondent has increasingly emphasized the sales duties of the self-service men. The incentives given to procure new accounts and set up new displays to stimulate sales plus the fact that a number of self-service drivers worked on a commission basis clearly show that sales promotion is just as much a part of the work of the self-service drivers as it is of the work of the vanette drivers. Under all the circumstances, we find that a unit limited to the self-service drivers and excluding the vanette drivers inappropriate for purposes of collective bargaining. Since the re- quests for recognition and bargaining were made for the unit limited to the self-service drivers, we find that the Respondent did not violate Section 8 (a) (5) of the Act in refusing such requests. THE REMEDY As noted above, the Trial Examiner found, and we agree, that the Respondent discriminatorily discharged the 15 self-service drivers in violation of Section 8(a) (3) and (1) of the Act.' These discharges resulted from the boycotting by the northern section self-service drivers of their regular sales meeting on May 15, the refusal of the self-service drivers to attend the May 16 meeting, and the refusal of these drivers to return to work unless the Respondent met certain con- ditions including recognition of their committee as their bargaining representative. By withholding their services from the Respondent and advising the Respondent that they would not return to work unless their conditions were met, these self-service drivers occupied the status of striking employees. While we have found, because the self-service drivers did not constitute a unit appropriate for collective bargaining, that the Respondent did not violate the Act in refusing to recognize the self-service drivers' committee, these drivers nonethe- less were engaging in protected concerted activity for which they could not be lawfully discharged. The Respondent's discharge of them made these employees discriminatees, and thus protected in their right to reinstatement upon request. To remedy the unlawful dis- charges, the Trial Examiner recommended that each discriminatee be given backpay from the date of his discharge-May 16-to the date of the receipt of an offer of reinstatement from the Respondent. With respect to the latter date, the record shows that in July 1961, the Respondent mailed offers of reinstatement to each of the discharged "Because no exceptions were taken here , Member Rodgers would adopt this finding pro forma. ELM TREE BAKING COMPANY 7 employees (except Paul Melanson who had been reinstated on June 6, 1961). These offers, however, were not made simultaneously, but were made at various times between July 11 and July 27. On July 11 and 12, reinstatement offers were mailed to three employees to fill three vacancies. When no response to these offers was received, Re- spondent mailed similar offers to a second group of three employees. Again, when no response was received, the offers were made to a third group of three employees. Again, when no response was received, the Respondent, on July 27, mailed offers to the remaining five discrim- inatees. The Trial Examiner found that these various offers (1) ter- minated Respondent's liability for backpay and (2) relieved the Respondent of any obligation to make a further offer of reinstatement. We disagree. First, as to the Respondent's backpay liability, it is apparent that the self-service drivers at the time of their discharge were on strike, having previously notified the Respondent that they would not return to work unless certain conditions were met. Although, on the morn- ing of the day following their discharge, the drivers gathered at a parking lot across the street from the Respondent's plant, the appear- ance of these drivers on the parking lot in these circumstances cannot be construed as an unconditional application on their part to return to work. There is no evidence in this record that the drivers ever unconditionally applied for reinstatement or that the strike, the principal objective of which was recognition, has ever been aban- doned. The Board has held that employees who have been dis- criminatorily discharged while on strike are not entitled to backpay until they have given up the strike and made themselves available for work.' In view of the above, there is no basis for holding, as did the Trial Examiner, that these drivers are entitled to backpay from the date of their discharge. Secondly, and also contrary to the Triad Examiner, we do not be- lieve that the various July 1961 offers ended the rights of these em- ployees to reinstatement. As discriminatees, these employees are en- titled to reinstatement upon their unconditional application, and we do not consider the offers made by the Respondent in the circumstances present here such as would deprive them of their reinstatement rights e Accordingly, we shall direct that the Respondent, upon application, offer these employees reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights 4 Central Oklahoma Milk Producers Association. 125 NLRB 419, 422 ; Morris Fishman it Sons, Inc., 122 NLRB 1430. 5 Member Fanning concurs in this result. In his opinion, these unlawfully discharged employees were entitled to remain on strike with full reinstatement rights, despite the Respondent's piecemeal offers of reinstatement. While such offers may relieve an em- ployer of backpay liability (see Northern Virginia Sun Publishing Company, 134 NLRB 1007), the employees on the other hand have a right not to return to work so long as any of their number is in an unlawful discharge status. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and privileges, dismissing, if necessary, any employees hired to replace them. We shall also order that in the event of Respondent's refusal, if any, to reinstate them upon request, that the Respondent make whole those discriminatees, by payment to each of them a sum of money equal to that which he would normally have earned as wages during the period from 5 days after the date on which he applies for reinstate- ment to the date of the Respondent's offer of reinstatement, such loss to be computed in the manner set forth in F. W. Woolworth Com- pany, 90 NLRB 289, with interest at the rate of 6 percent per annum to be added to the backpay and to be computed in the manner set forth in Isis Plumbing eC Heating Co., 138 NLRB 716. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Elm Tree Baking Company, its officers, agents, successsors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in General Drivers and Dairy Em- ployees Union Local No. 563, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging employees or discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon application, offer to David Haefs, John Vanden Heuvel, Robert L. Smith, Kenneth Christensen, Eugene Deeg, Charles L. Derby, William J. Godin, James Haferbecker, Mayford Kosmerchock, Richard Molenda, Eugene Vercautern, Clem Wallace, Ronald Weig- man, and Glen Wentzel, reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner set forth in the section of this decision entitled "The Remedy," dismissing, if necessary, any em- ELM TREE BAKING COMPANY 9 ployees hired to replace them, and make each of them whole for any loss of pay suffered by them as a result of its failure to reinstate them within 5 days after their unconditional application, with interest thereon at 6 percent. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary and appropriate to facilitate the checking of the amount of backpay due and the reinstatement rights of the above-named employees. (c) Post at its plant and place of business in Appleton, Wisconsin, copies of the notice attached hereto marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint insofar as it alleges that the Respondent violated Section 8 (a) (5) of the Act, be, and hereby is, dismissed. IIn 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, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in or activities on behalf of General Drivers and Dairy Employees Union Local No. 563, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization, by discharging or by discriminating in any other manner in regard to the hire or tenure of employment, or any other term or condi- tion of employment, if any, of our employees. IVE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collectively through representatives of their own choosing, to en- gage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as amended. WE WILL offer to the employees listed below, upon their applica- tion, reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any employees hired to replace these employees, and we will make each employee whole for any loss of pay suffered by him as a result of our failure to reinstate him within 5 days after his application. David Haefs John Vanden Heuvel Robert L. Smith Kenneth Christensen Eugene Deeg Charles L. Derby William J. Godin James Haferbecker Mayford Kosmerchock Richard Molenda Eugene Vercautern Clem Wallace Ronald Weigman Glen Wentzel All our employees are free to become, remain, or refrain from be- coming or remaining members of any labor organization, except to the extent that such right may be affected by an agreement in conformity with Section 8(a) (3) of the Act, as amended. ELM TREE BAKING COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Midland Building, 176 West Adams Street, Chicago, Illinois, Telephone Number, Central 6-9660, if they have any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE The issues in this case are whether Respondent, Elm Tree Baking Company, terminated and thereafter refused to reinstate certain employees for cause, or be- cause they engaged in concerted activities or joined General Drivers and Dairy Employees Union Local No. 563, International Brotherhood of Teamsters, Chauf- ELM TREE BAKING COMPANY 11 feurs, Warehousemen and Helpers of America (herein called the Union), in violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519 (herein called the Act), and whether Respondent refused to bargain with the Union as the collective-bargaining representative of a majority of its employees in an appropriate unit, in violation of Section 8(a)(5) of the Act. These issues arise on a complaint issued by the General Counsel of the Board on July 7, 1961,1 and an answer duly filed by Respondent which denied the commission of any unfair labor practices. A hearing on these issues was held before Trial Examiner Eugene F. Frey in Appleton, Wisconsin, on various dates between August 30 and September 20, 1961, at which all parties were represented and participated fully through counsel or other representative and were afforded full opportunity to examine and cross-examine witnesses, present pertinent evidence, make oral argument, and file written briefs. Respondent's motions at the close of the General Counsel' s case-in-chief to dismiss the complaint on the merits were denied; similar motions at the close of the entire case were taken under consideration and are now disposed of by the findings and conclusions in this report. All parties waived oral argument, but written briefs filed by General Counsel and Respondent have been carefully considered by the Trial Examiner. Upon the entire record in the case, and from my observation of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Wisconsin corporation having its principal office and place of business in Appleton, Wisconsin, where it is engaged in the manufacture, sale, and distribution of bakery goods. During the calendar year 1960, in the course of said business, Respondent bought and caused to be delivered to its plant in Appleton from points outside the State of Wisconsin, materials and supplies valued in excess of $100,000. Respondent admits, and I find on the above facts, that Respondent has been and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act, which admits to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The discharges 1. The facts During the times in 1961, mentioned hereafter, and for some years before 1961, Respondent's bakery products have been delivered to its customers by driver-salesmen who have been classified by Respondent in two divisions, i.e., the self-service division and the vanette division. The self-service division was further subdivided into a "northern section" and a "southern section," which included, respectively, drivers having routes in the northern and southern areas of Wisconsin. The duties, working conditions, and methods of operation of employees in each division will be analyzed in my consideration of the appropriate unit. The events discussed herein deal with concerted activities of the self-service drivers and Respondent's reaction to those activities. In 1961, up to and including May 16, there were 17 self-service drivers, including 15 listed in Appendix B attached to this report, and Mike Verhagen and Eugene van de Hey. In January 1961, Respondent called a meeting of self-service drivers, at which its president, Bernard A. (Ben) Pfefferle, told them of changing competitive conditions in the baking industry, particularly the increased selling of prepackaged bakery products in large self-service supermarkets, which pointed up an increasing need for selling those products against competition. He said the day of the mere truckdriver delivering products to a customer was almost over, and that drivers had to become salesmen of their products, to meet the competition. He indicated a training program to increase sales at all Respondent's accounts would be started and, as part of it and to lower selling costs, the drivers would have to service their accounts daily, push sales of Respondent's products in order to increase their sales volume, and make 1 The complaint was Issued after a Board investigation based on a charge filed by the Union on May 19, 1961 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD efforts to reduce the amount of "returns." Marketing Manager Sumner Farison then announced a new wage plan for self-service drivers which, in effect, halved their commissions on sales above $3,000, reduced their incentive bonus for reduction of "returns," and raised the weekly mileage figure above which drivers would get mileage pay. At the same time management assured the drivers these changes would not reduce their earnings below those of 1960 because Respondent intended to guarantee an increase in sales volume on their routes to $4,000 a week . It also offered them several new incentive pay plans for promoting sales displays and bring- ing in "leads" for new accounts . While these changes did not affect the take-home pay of hourly paid drivers, some drivers on a commission and mileage pay basis felt it would be more difficult for them to maintain or increase their total compensation as they would have to deliver more goods to make the same amount of commission. The drivers discussed these problems among themselves and with their supervisors, and also with Farison at a meeting in March. Farison discussed the grievances with Pfefferle and 2 days later convened the drivers in Pfefferle's office where the major grievances were reviewed in detail. Pfefferle explained the reasons for the pay changes, and indicated that as to some grievances no further changes could then be made, but as to others adjustments would be worked out 2 The drivers left the meeting still dissatisfied with their method of compensation. In the week of May 8, 1961, the self-service drivers learned from management sources that there might shortly be another change in compensation which could further reduce their commissions . They discussed it among themselves , and at the suggestion of driver Robert L. Smith , 11 of the drivers met at 7 p.m. on Saturday, May 13, in a city park, where they discussed their grievances, and elected a grievance committee of Smith, David Haefs, and John Vanden Heuvel , who were authorized to write up the grievances and present them to management . The group also agreed to "boycott" the regular sales meetings scheduled for Monday , May 15, for the north- ern section, and Wednesday, May 17, for the southern, because they feared the rumored paycut would be announced at those meetings , and they also wanted to show Respondent in this way that they were unified and wanted their committee to handle grievances for them .3 On Sunday, May 1, Smith and Vanden Heuvel typed up the list of grievances on nonworking time at the plant. The document was addressed to Ben Pfefferle and, after mentioning that "many of the lift-truck drivers" met to discuss grievances Saturday night , listed the grievances and demands for consideration by management. The committee members signed it Monday morning, May 15, at the plant , and about 3:30 p .m. took it to Ben ,Pfefferle's office, but when they learned he was not in, they gave it to Marion Silliman, his assistant and secretary of Respondent , and asked her to give it to Pfefferle. She read it, and, as the committee left, asked them how many men the list represented , and they told her the entire self-service division. Vanden Heuvel suggested the committee could discuss the list with Pfefferle at 4 p in. the next afternoon, if he was available. Silliman said she would arrange it. She gave the document to Pfefferle about 5:45 p.m. that day when he returned from out of town, and told him of the committee 's request. He looked over the document, and approved her arrangement for the 4 p.m. meeting on the 16th. Seven northern section self-service drivers 4 did not attend the Monday night sales meeting. Instead, 14 drivers 5 met at 7 p.m. in the city park, where they heard the committee report on the presentation of grievances to Respondent. Marketing Manager Farison, who attended the meeting prepared to discuss pro- motion of a new line of products, was shocked by the mass absence , his first ex- perience with it in many years of sales supervision work, at once determined that warning slips should be issued, and began preparations to that end. At that time he knew nothing of the drivers' concerted activity. Early on the morning of the 16th, he told Pfefferle about the boycott, said that he thought it was insubordination be- cause he knew of no reason why the men should avoid the meeting , and that they should be disciplined , otherwise he would lose control over the sales organization. He said he was preparing to issue warning slips to the northern section men, and 2 One grievance , concerning assistance for the drivers while they engaged in extra bookkeeping chores daily due to mechanization of the order system, was settled satis- factorily to the men 3 Five other self-service drivers, who did not attend the meeting , signed the informal "boycott" agreement Monday morning. 4 Vanden Heuvel, Charles L Derby, Mayford Kosmerchock, Eugene Vercautern, Pau] L. Melanson , Eugene van de Hey , and Mike Verhagen 6 Melanson , Van De Hey, and Verhagen did not attend ELM TREE BAKING COMPANY 13 asked Pfefferle if there should be further discipline. Pfefferle agreed that some discipline must be imposed, and called a meeting of all self-service sales department heads for 9:30 a.m. At that meeting, after Farison repeated the facts and his opinion about the insubordination and need for discipline, all present agreed that the sales organization could not function properly or maintain its "self-respect" if the drivers defied orders to attend sales meetings set up to help them increase their earnings, that a morale problem was involved because of this defiance, and that there should be definite discipline. It was decided that the drivers who missed the meeting should receive warning slips and be suspended for 4 days. Northern section sales super- visor, Robert Masterson, was instructed to issue warning slips to them as they came off their routes that day and advise them of their suspensions. When he asked how he could handle their routes if all were suspended at once, it was agreed that the supervisors should arrange the time for the suspension so as not to interfere with deliveries. At the same time, Pfefferle ordered that all self-service drivers be sum- moned to a meeting at the plant at 4 p.m., where he could outline to them their responsibilities and duties toward management, including their duty to obey orders, explain the reason for the discipline, and "straighten things out." A notice was posted directing all "lift drivers" to report to their supervisors and to attend the 4 p.m. meeting. The self-service drivers saw the notice, and were also reminded about it by their supervisors on returning from their routes about 3 p.m. When committeeman Haefs saw the notice about 3:30 p.m., he at once conducted a written poll of the self-service men as they came into the salesroom of the plant, to find out whether they wanted to attend the meeting en masse, with or without the committee acting as spokesman, to send the committee in alone, or boycott the meeting com- pletely. Thirteen out of fifteen drivers who signed the poll voted to send the com- mittee in alone. Haefs showed the poll results to the other committeemen and the three went to the meeting. The committee arrived at the meeting room first. When Farison walked in, he asked where the rest of the drivers were, saying the meeting had been called for all the drivers. A committeeman answered that none of the others would attend. President Pfefferle then walked in, asked the same question, and made the same comment. A committeeman answered, "The others won't be here, we represent the entire group," and that the committee wanted to discuss the grievances on the list given to Respondent. Ben Pfefferle answered that "we have no evidence" that they represented the division. He then said, "You men are the highest-paid route men in the State, and I won't permit you to bargain away the company profit-sharing for all employees," without the entire sales organization being included, and insisted that all the drivers must be present. A committeeman replied that they were not trying to do that. Ben Pfefferle then said the seven drivers who missed the Monday night meeting would receive warning slips and would be suspended for 4 days, as it was an act of insubordination and there had to be some discipline for it. A com- mitteeman replied that if the discipline was given, "There will be no meeting with the rest of the group." Edward Pfefferle 6 then said, "If it were up to me, Ben, I'd fire these three men right away, they are the ringleaders." Smith then asked if they could not "talk this over." Ben Pfefferle replied, "No," that he had no way of knowing if the three represented the group, that "we don't have to recognize this committee, you are not legally represented here; it is an aftermath of the old social club." Haefs said the club had been disbanded 2 months before. Ben Pfefferle then said, "I thought I forbid you ever to hold a meeting without a management repre- sentative present," and "as far as I am concerned you three men are out of a job right now." As the committee prepared to leave, he told them, "If you represent the group, you tell the other men to be back here within a half-hour, or they are fired, too." The whole meeting lasted about 5 minutes. There was no discussion of the drivers' grievances.7 The committee then drove to Bleier's tavern in Appleton and reported to 12 self- service drivers who -awaited them there, that the northern division drivers were suspended for missing the Monday meeting, that the committee had been fired, and 9 Edward Pfefferle, brother of Ben and also treasurer and assistant general manager of Respondent, as well as the supervisors and assistant supervisors of the self-service drivers, came into the room immediately after Ben Pfefferle 7 The facts in this paragraph are based on credited and mutually corroborative testi- mony of Haefs, Smith. Vanden Heuvel, and Supervisor Masterson, which are corroborated in many aspects by admissions of both Pfefferle and Farison Testimony of any of these witnesses at variance with these findings is not credited 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the other drivers would also be discharged unless they reported to the bakery within a half-hour. After discussion, the group decided that they would not return to the plant unless all, including the committee, went back to work. Just before 4:30 p.m., Supervisor Masterson called Bleier's at the request of Respondent and spoke to Melanson, asking him to advise all the drivers that they had another half-hour (to 5 p.m.) to return to the plant for the meeting, and if they did not they were fired. Melanson gave this message to the group, but they decided not to return. About 5 p.m. Assistant Supervisor Roy Thiel called Derby at the tavern, asking him what the drivers intended to do. Derby told him if Respondent wanted to bargain with the drivers, he should speak to the committee. Thiel said Respondent wanted them all to return to the plant. Derby repeated the men had elected a committee, and he should deal with them through the committee. Thiel then put Masterson on the telephone, while Derby turned the telephone over to Christensen, who repeated Derby's remarks about the committee to Masterson. The latter then put Ben Pfefferle on the telephone, and Christensen told him the same thing. Pfefferle replied that the committee was not the bargaining agent and Respondent would not accept it as such. Christensen turned the telephone over to Smith. Pfefferle told Smith he wanted all the drivers back at the bakery in a half-hour for a meeting, and that there would be no discharges if they returned in that time. Smith replied that the drivers wanted the committee to represent them. Pfefferle said the committee was not legal, and he wanted to talk to all his men as in the past. Smith again said the drivers wanted the committee to represent them. Pfefferle indicated that he preferred to talk to a driver who was not a committee member so Smith turned the telephone over to Christensen, who began to discuss the drivers' wage grievances, but Pfefferle insisted that those matters could not be settled over the telephone. Christensen asked if any driver would be punished if he came back, and Pfefferle said he would discuss that with all the men at the meeting, not on the telephone, but there would have to be some discipline. The drivers then decided that they would return to work only on condition that (1) no driver be discharged, (2) no driver who missed the Monday night meeting should receive a suspension , (3) Respondent must recognize and deal with the committee as the self-service drivers' bargaining agent, and (4) these conditions to be put in writing, with copies for Respondent, the drivers, and the State Industrial Commission. Haefs called the bakery and stated this decision to Ben Pfefferle. On the first two conditions, Pfefferle insisted there must be some discipline for those who cut the Monday meeting, because they had committed an act of insubordination, and they would have to be suspended if Respondent was to have any control over its sales force. Haefs and Pfefferle disagreed on this. On the third point, Pfefferle again refused to deal with the committee. Pfefferle then indicated he wanted to talk to some other drivers, and Haefs turned the telephone over to Christensen who repeated the drivers' desire that Respondent deal with their committee. Pfefferle took the same stand on this as he had stated to Smith. Christensen then asked about the suspensions, and if the drivers had done their work properly in the past. Ben ad- mitted they had done a good job, and that he did not like to see them suspended, that "maybe it could be worked out," but he was not the one who had to deal with the drivers, and he would have to talk to their supervisors. Asking Christensen to wait a moment, he turned from the telephone and asked the supervisors if they had made arrangements to have the self-service routes "pulled" in the morning, and what they wanted to do about the drivers. Farison replied that they had made arrangements to have the routes pulled the next day and, as far as he was con- cerned, the drivers should be discharged. Pfefferle then told Christensen the super- visors felt there must be some disciplinary action, and that Respondent would not take the drivers back on the basis they had outlined. Christensen tried to discuss the pay grievances but Pfefferle said he could not settle anything or "make any deals" over the telephone, but would discuss anything the drivers desired if they would return to the plant for a meeting, and that if they did not return, they were discharged and telegrams confirming that action would be sent to their homes. Christensen told him the drivers were not trying to cause trouble or hurt the Com- pany or its business, and they would be available at 3:30 a.m. the next morning at the American Legion parking lot across the street from the plant, ready to work on the conditions previously stated, and were ready to "continue any problems we had without any interruption of business whatsoever," and that if he wanted to contact the men further, they would be at the Labor Hall in Appleton. Pfefferle replied, "That is your prerogative." This ended the conversation, and Christensen then reported it to the drivers. ELM TREE BAKING COMPANY 15 When the drivers did not return to the plant by 5 p.m., they were considered by Respondent as discharged .8 About 6 p.m., the 15 drivers left the tavern and went .to the Union's headquarters, where they conferred with several union organizers, and all signed union authoriza- tion cards sometime after 6 p.m. Late that night, drivers Christensen and Godin told Supervisor Masterson that the drivers would be at the Legion parking lot the next morning, ready for work. Master- son replied that he was making arrangements for supervisors and other personnel to pull the self-service routes if need be. The drivers who signed up with the Union (except Melanson) gathered at the Legion lot at 3:30 a.m. on the 17th, dressed in their work uniforms, but they did not enter the plant. Although Respondent knew they were there, it made no attempt to request them to work, but sent out their trucks with supervisors and other em- ployees as drivers. 2. Contentions of parties, and concluding findings, on the discharges Respondent concedes that the self-service drivers were engaged in concerted activi- ties for the lawful objective of presentation of grievances, but argues that their con- certed activities to that end were not lawful or protected by the Act because (1) they secretly decided to boycott, and actually boycotted, the Monday sales meeting, and (2) in presenting the list of grievances the committee did not claim or show that it represented a majority of the drivers, and in these circumstances the boycott of the sales meeting, and refusal of 15 drivers to attend the meeting of the 16th to discuss recognition of the committee and the discipline imposed on some of them, were acts of insubordination which justified their discharge. Respondent also contends that both concerted actions were in effect "wildcat" strikes, for which they could be discharged. It finally argues that if both acts were legitimate concerted activity, they amounted to an economic strike, and the drivers were at most economic strikers whom Respondent was not obliged to reinstate. I agree with Respondent that the concerted refusal of seven drivers to attend the Monday sales meeting, without giving any excuse before or after the event, amounted to an act of insubordination. The record shows that sales meetings of self-service driver-salesmen were held at intervals to give them ways of improving service to customers, and increasing sales through special product promotions, advertising dis- plays, and other sales improvement devices. Drivers attended these meetings regu- larly, and when absent usually gave excuses which were normally accepted by man- agement. They knew the meetings were designed to help them increase their sales volume and income,9 and most of them and management considered attendance at them a part of their jobs. In effect the practice was tantamount to an unwritten rule or policy which all drivers normally complied with.10 Hence, when Respondent was confronted with a mass absence from one of these meetings, the first in its history so far as the record shows, and without prior or later explanation or excuse from the absentees (except two), it was justified in considering the absence a serious matter calling for disciplinary action. The fact that the boycott was part of the self-service drivers' initial concerted action looking toward discussion of grievances with manage- ment, does not make it any ,the less a violation of an established company practice or custom, or immunize the participants from discipline therefor.11 The boycotters knew they were doing something for which they could be disciplined, for the record shows 8 On May 17, Respondent sent identical letters to all, except Mike Verhagen and Eugene van de Hey, confirming the termination of employment of each effective May 16, 1961, for "gross insubordination " 9 This was specifically admitted by committeemen Smith and Vanden Heuvel who testi- fied they attended sales meetings for their own benefit and because they could learn only at such meetings how to promote product sales and enhance their income. 10 The record also shows that attendance at separate sales meetings was also part of the vanette drivers' jobs, and absence therefrom was excused only if the absentee presented an acceptable reason therefor. The fact that there may have been some infrequent individual violations of the policy in the past which were not the subject of discipline does not prove that the policy did not exist, or make management's prompt imposition of discipline for its first substantial violation discriminatory or even suspect. Cf. Russell-Newman Manufacturing Company, Inc., 135 NLRB 1. "Republic Cotton Mills (Division of J. P. Stevens Company, Inc ), 101 NLRB 1475, 1-179; National Shirt Shope of Delaware, Inc, at al, 123 NLRB 1213, 1223 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that (1) they agreed on the action and completed it secretly, giving management no inkling of it in their presentation of grievances earlier the same day, and (2) com- mitteeman Vanden Heuvel, one of the boycotters, sought out Marion Silliman, secre- tary and personnel director of Respondent, for a private conference the next afternoon, shortly before the scheduled 4 p.m. meeting, and asked her, "What kind of a mess did we get into?"; he admitted that he approached her to find out what advice she could give the men before the meeting, and that he "knew what was coming" at the 4 o'clock meeting.12 From these facts, I find that Respondent's announcement of the 4-day suspension at that meeting was a legitimate management action and not indicative of any discriminatory motive. However, Respondent's ensuing discharge of all self-service drivers, including those it had already given suspensions, for failure to return to .the plant for the special meet- ing (as twice adjourned for that purpose) stands on a different footing. The drivers' concerted choice of a committee to present grievances to management, and its actual presentation of grievances and request for discussion thereof, made the committee a labor organization within the meaning of the Act.13 The committee in fact represented 15 out of 17 self-service drivers, and Respondent had no good reason to doubt this, in view of the fact that none of the 17, but only the committee, ap- peared at the special meeting of the 16th, and the committee's statement to Silliman the day before that it represented the "entire division." 14 Its majority status in that division became clear to management when Verhagen and Van De Hey showed up late at the special meeting,15 gave acceptable excuses for their absences on Monday, and Van De Hey told management the other drivers were at Bleier's tavern,15 which was confirmed by the ensuing telephone discussions between management and two committeemen and at least three other drivers. Further, Respondent partially ac- cepted the committee's representative status when Ben Pfefferle directed its members to get the others to return for a meeting in a half-hour. On these facts, I discredit testimony of Ben Pfefferle ,that he had a bona fide doubt of the committee's majority status when he talked to them on the 16th. Furthermore, he had not indicated this doubt that morning when he approved Silliman's arrangement of the 15th accept- ing the committee's suggestion of the meeting on the 16th. In these circumstances, I find that his refusal to recognize or talk with the committee about grievances on the 16th, contrary to Respondent's agreement, was not motivated by a bona fide doubt of the committee's representative status. The only other motive is suggested by his description of the appearance of the committee, instead of all the drivers, as an "aftermath of the social club," and his reminder to the committee that the drivers had been told not to meet without management present. The latter remark is a clear indication of Respondent's hostility to independent concerted activity of self-service drivers. That it was ,not a chance remark, but a manifestation of a long-standing aversion to such activity, is shown by the facts that: The club Pfefferle referred to was formed by the self-service drivers early in 1959, in part for social purposes and in part for presentation of grievances to management. Shortly after it was formed, management called a meeting of these drivers for discussion of their grievances, at which the Pfefferle brothers clearly indicated dissatisfaction with the drivers' forma- tion of an organization for discussion of grievances, and made it clear that they would permit its continuance only if management representatives were admitted to member- ship, so that Respondent would know what was going on, and the club would "not get out of control." Respondent also insisted that vanette drivers be admitted to membership. After that, the club operated mainly as a social organization. When the members considered grievances, their discussion was only with Fritz Churm, a club member who was also marketing manager of Respondent; his decision on grievances were usually accepted by the drivers. Vanette drivers were invited to join, but only 2 out of 14 then in the vanette division actually joined and paid dues; they remained in it no longer than 6 months. The club was disbanded by its officers in March 1961, due to lack of interest and failure of members to pay dues, which 11I find these facts on credible testimony of Silliman and admissions of Vanden Heuvel 13 General Finishers Corporation, 133 NLRB 999, 1010, and cases there cited, Thompson Ramo Wooldridge, Inc (Dage Television Division), 132 NLRB 993 14 The committee's statement was not entirely true, as it in fact represented only 15 drivers, which was nevertheless a majority of the division, but Silliman had no reason to disbelieve what the committee said. 15 Verhagen and Van De Hey took no part in the self-service drivers' concerted activities, nor joined the Union. Van De Hey did sign the "boycott" agreement on the morning of the 15th but he apparently missed the meeting that night for personal reasons 19 These findings are based on credited testimony of Ben Pfefferle, Farison, and Master- son ; the two drivers did not testify. ELM TREE BAKING COMPANY 17 developed after management officials became members.17 I am convinced by these facts, and find that Respondent's refusal to recognize and discuss grievances with the committee on the 16th was motivated by its long-standing hositility to concerted activity and self-organization of its drivers. It is also clear from the course of the May 16th meeting that the same animus motivated Ben Pfefferle when he summarily discharged the committeemen after his brother Edward had suggested their termination for being the "ringleaders." This conclusion is all the more compelling because in the same discussion he had already announced the legitimate suspension of the seven northern section drivers, including Vanden Heuvel. The immediate imposition of a far more drastic penalty on the committee, less than 5 minutes after the suspension of Vanden Heuvel, can only be attributed to the Pfefferles' open resentment of the drivers' temerity in once more engaging in concerted activities, contrary to Respondent's wishes and their desire to punish the men severely therefor, which was clearly a discriminatory motive. Ben Pfefferle aparently regretted his hasty action, for he retracted that discharge when he tried at least three times to persuade all the absent drivers to return in a group for the scheduled meeting, which he adjourned twice for that purpose.18 How- ever, when he ordered the men to return under pain of instant discharge, and then considered them discharged about 5 p.m., when they failed to do so, I must conclude that he violated Section 8(a)(4) and (3) of the Act.19 Whether their refusal to return be considered an economic strike in the usual sense, or only a temporary work stoppage, it is well settled that Respondent, while it could replace them, could not legally discharge them for such activity. Cowles Publishing Company, 106 NLRB 801, enfd. as modified on remedy 214 F. 2d 708 (C.A. 9), cert. denied 348 U.S. 876; Southern Silk Mills, Inc., 101 NLRB 1, enfd. 209 F. 2d 155 (C.A. 6), cert. denied 347 U.S. 976; N.L.R.B. v. Solo Cup Company, 237 F. 2d 521, 526 (C.A. 8). I must therefore reject the claim that their concerted refusal to return to the plant, in part because Respondent refused to deal with their chosen representaive, was an un- protected and punishable act of insubordination. Nor was this action a precipitate wildcat strike, for their refusal to work occurred only after prior deliberation and decision to deal with Respondent through the committee, due notice to Respondent of that decision by presentation of grievances through the committee, and repeated attempts to persuade Respondent to recognize it; and the refusal to return to the plant for a special meeting after work hours, without disruption of plant operation,20 was far from the type of drastic activity which the Board has in some cases con- sidered unprotected activity 2' Respondent also argues that the concerted activity was unprotected because the employees failed to give Respondent at least .10 days' notice of their intention to strike, as required by Section 111 11 of the Wisconsin Employment Peace Act 22 17 The findings as to the club are based on credited testimony of Haefs, 1lfelanson, Lester Winius, and Harold Hanneman, as corroborated in part by admissions of Ben and Edward Pfefferle Testimony of the Pfefferles in conflict with the findings is not credited, because they were vague about what occurred at the first grievance meeting, and the conduct of the club thereafter. is It is clear from credible testimony of Haefs, Melanson, and Christensen that after Respondent's call to Melanson, all the drivers knew they were still considered employees by Respondent, and that the discharge of the committee had been rescinded 19 This conclusion is also supported by the fact that Verhagen and Van De Hey, the only drivers who had not engaged in the prior mass meetings and boycott and who com- plied with the notice of the 16th, were not discharged 20 In this aspect , the case is not like Montgomery Ward & Company , 108 NLRB 1175, or Doyle W Terry, d/b/a Terry Poultry Company, The Wood-Hill Food Products Com- pany, 109 NLRB 1097, cited by Respondent, where the sudden concerted activities of employees occurred during working hours and actually disrupted production or otherwise injured the employer 's business Here, the refusal of employees to attend en masse a special meeting convened on short notice after hours for a general discussion of discipline can hardly be equated with violation of a specific plant rule or considered destructive of plant operations, especially where the employees sent their chosen representative to the meeting. 21 Since this case does not involve any contract , cases cited by Respondent which in- volved strikes in violation of contract clauses have no application 22 Wis Stat 1939, ch 111, etc, sec 111 11(21) provides Where the exercise of the right to strike by employees of any employer engaged in the State of Wisconsin in the production, harvesting or initial processing of any farm or dairy product produced in this State would tend to cause the destruction or 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This claim is without merit, because (1) there is no proof that the failure to attend the after-hours meeting in any way tended to, or actually, affected plant operations or destruction of its products, and (2) it is well settled that State laws are not deter- minative of rights and obligations under the Act, except where the Act itself ex- pressly provides otherwise,23 and Respondent cites no provision of the Act which would directly or indirectly make the Wisconsin law paramount. B. The refusal to bargain As the 15 self-service drivers were unlawfully discharged by Respondent on May 1,6, .they continued as employees within the meaning of the Act for purposes of reinstatement and backpay, and inclusion in the appropriate bargaining unit at the time -they chose the Union as their bargaining agent, and thereafter.24 On May 17, 1961, the Union advised Respondent that it represented a majority of employees in a unit consisting of "all truck drivers engaged in the delivery of your bakery products to your company operated retail sales stands located in various super- markets throughout the State of Wisconsin and also engaged in `drop delivery' of your bakery products to supermarkets throughout the State of Wisconsin." At the same time it showed Respondent the signed authorization cards of the 15 drivers, to enable Respondent to verify the majority status claim, and requested immediate bargaining for a contract. On May 18 Respondent replied that it could not recognize .the Union as bargaining agent for employees in said unit because the men who signed the cards were no longer employees "as of May 16, 1961." 25 The Union began to picket Respondent's plant on May 18, 1961. Early in June, to comply with .the 30-day provisions of Section 8(b) (7) (C) of the Act, it filed with the Board a petition in Case No 13-RC-7871, seeking certification as bargaining agent for a unit of "all drivers employed in the employer's self-service unit (delivery of bakery goods to company-owned and operated departments in retail stores and route deliveries to such stores), excluding supervisors as defined in the Act, guards and office clerical employees." Respondent contests the sufficiency of the Union's demand for bargaining only on the ground that the stated unit of self-service drivers is improper, arguing that the only appropriate unit includes both self-service and vanette drivers with their relief drivers, checkers, dockmen, and garagemen who service both units. This is the crucial issue, for if self-service drivers alone comprise an appropriate unit, the Union had a clear majority in that unit (15 out of 17) on May 17, 1961, but if the unit sought by Respondent is the only proper one, it should include 14 vanette drivers, 1 dock and garage man (Kenneth Yarnall), I utilityman (Clarence Stingle), and at least 1 checker (Gene Selig) a group, who with 2 nonunion self-service drivers, would total a majority of 19.26 All drivers in both divisions perform the basic function of truck delivery of bakery products to Respondent's customers. The products come from the same production department, are packed in containers for all drivers by the same checkers and dockmen, and are loaded on trucks by all drivers at the same loading dock. All drivers have substantially the same starting and return times, and total daily hours of work, varied only by the length of their respective routes and number of customers served. The servicing and maintenance of all trucks is handled by one garageman, Kenneth Yarnall. All drivers deliver certain jobber items, such as frozen products and pizza, to warehouses of certain chainstores at points convenient to their routes, and also deliver "returns," such as day-old and damaged products, to Respondent's own resale stores and independent locker plants in the same fashion. serious deterioration of such product, the employees shall give to the Board at least ten days notice of their intention to strike and the Board shall immediately notify the employer of the receipt of such notice Upon receipt of such notice, the Board shall take immediate steps to effect mediation, if possible In the event of the failure of the efforts to mediate, the Board shall endeavor to induce the parties to arbitrate the controversy. 13 The Public Utility Construction and Gas Appliance Workers of the State of New Jersey, Local 274, etc. (Public Service Electric and Gas Company), 120 NLRB 355, 357 24Smith Transfer Company, Inc, 100 NLRB 834, 835, enfd 204 F 2d 738 (C.A 5) ; Section 2(3) of the Act defines the term "employee" as including "any individual whose work has ceased-'because of any unfair labor practice' " s Shortly after this, the Union was advised informally by Respondent's counsel that the proper unit should include all its drivers, not just the self-service drivers 2i The duties and status of Yarnall, Stingle, and Selig and reasons for their inclusion in the unit will be discussed below. ELM TREE BAKING COMPANY 19 To show differences in job functions , General Counsel stresses the facts, shown by the record, that self-service drivers were originally hired in 1953 as "pure" truck- drivers, were quickly and easily trained to make "drop-deliveries" of "preordered" goods 27 packed in large cabinets, in large 5-ton trucks equipped with power hoists to large supermarkets, where market personnel determine the size and type of order, unload and display products on delivery, and pack "returns" for pickup later by the driver, who has nothing to do with the product after he drops off the cabinet. General Counsel claims that these drivers are presently engaged in the same mechanical function with the same equipment. In contrast, as the record shows, the vanette drivers have always been salesmen requiring extensive training . They always made up their own composite orders daily , based on their own estimate of customers' needs, packed their own small pickup trucks (many without power hoists) with pans and trays of products, have filled each customer order from the pans or trays, dis- played the products, billed the customer on the spot, changed the order as needed to match demand and sales, and talked to each customer daily about ways and means of increasing sales and promoting new products . He also relies on evidence that: vanette drivers can vary their itinerary at will, while self-service drivers must make deliveries according to a set schedule made up by their sales supervisor ; vanette drivers' routes are on the average much shorter than self-service routes, being con- centrated within a radius of about 75 miles from Appleton , while most self-service drivers have much longer hauls (200 to 250 miles a day) to customers as far south as the Illinois border and as far north as Rhinelander, 150 miles from Appleton; vanette drivers are paid a straight 10-percent commission on sales, while self-service men received an hourly rate, if working on that basis, and if on a commission basis, received 4-percent commission on sales, plus mileage pay, plus a bonus payable when they kept "returns" below a fixed amount. While vanette drivers have always been true salesmen, and self-service men began only as truckdrivers, the claimed distinctions are presently not as great or significant as claimed by General Counsel. The record shows that about the time the self- service division was created, Respondent began to equip vanette trucks with power lifts so that vanette salesmen could also handle cabinets of "preordered" products for certain customers. This was necessary because changing competitive conditions in the retail food industry has resulted in an increasing loss of small independent retailers on vanette routes, as well as shrinking sales volume in some supermarket outlets where the chainstore operator began to bake and sell its own bakery products. When supermarket sales volume dropped to $200 or less a week in areas served by a shrinking vanette route, Respondent began to transfer such accounts to the vanette driver in order to maintain the total volume on his route at an economical level. In addition, some small retailers converted their stores into small supermarkets, or "superettes," with increased use of Respondent's products to a volume exceeding $200 a week, but vanette drivers still keep and service such outlets. This trend has continued until on the termination date 10 out of 12 vanette drivers were delivering some "preordered" products in cabinets to supermarket and other accounts, in the same manner as self-service drivers.28 To cope with the change, Respondent has continually replaced older vanette trucks with newer models with hoists, until at the time of the hearing it operated 6 large vanette-type trucks with lifts, with 1 more on order; the newest trucks can handle as many as 13 large product cabinets, as well as the usual products on trays and shelves 29 While only about 10 percent of the total number of vanette accounts are presently serviced in this way, the significant fact is that this percentage has been increasing. In line with the trend, Respondent has 27 "Drop-delivery" is the physical unloading from the truck of a cabinet packed with products at the customer's store. The products are "preordered" because the supermarket manager makes out a standard order In advance , from which the daily delivery is made up, unless varied according to change of demand , product, or promotion of special products. 28 In servicing such accounts , some vanette drivers still unload the cabinet and display the contents themselves , but in other cases, the customer does it, as self-service customers do. The vanette driver still makes up the order , but it is usually a standard order, like those of self-service accounts , which is processed through an IBM machine procedure and filled in the same way as self-service "preorders " In addition, vanette drivers often de- liver special "preordered" cabinets of products to their customers for special occasions, such as picnics, church fairs, etc. ; such deliveries involve no more work than that of a self-service driver . The fact that vanette drivers usually use smaller cabinets for this purpose than self-service drivers is an insignificant detail which is controlled only by the size of the account, which may change with the needs of the customer. 29 Self-service trucks can hold 28 to 30 large cabinets. 672010-63-vol. 139-3 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made other significant changes in the functions and supervision of self-service drivers, in order to make them driver-salesmen like vanette drivers. In 1958, Respondent began a program to train self-service drivers as salesmen and to consolidate the two divisions into a single sales organization. Meetings of self-service drivers and their sales supervisors were held in 1959 and 1960 to teach them selling methods and procedures 30 Since early 1960, Respondent has been giving special biographical, interview, and aptitude tests to driver applicants in both divi- sions, which are designed to ascertain sales ability. Like vanette drivers, self-service drivers know that selling company products is part of their job, and that they are expected to attend sales meetings called by management, to get help on sales prob- lems, learn new methods and techniques of sales promotion, display of products, and learn about promotion of new products being offered. As part of the program, self- service drivers were given the option of staying on their original hourly rate-pay basis, or changing to a commission basis. Many of them have taken advantage of this, and some have at times exercised the option in reverse, returning to an hourly basis if their commission route was split or otherwise lost volume in order to avoid loss of pay. At the termination date at least seven of them 31 had been on a commission basis for varying lengths of time up to 2 years. Melanson, while on an hourly rate basis, actively promoted business on his route from his first employment in May 1960, by periodic sales promotion visits to customers alone and with his supervisor, arrang- ing special product promotions at specific stores. Although he received no extra compensation for those promotions at the time, Melanson used these selling methods to build up sales to the point where he could profitably go on commission. He exer- cised the option about 2 weeks after he was reinstated on June 6, 1961. In like manner, other self-service men on commission (Vanden Heuvel, Godin, Smith, and Vercautern) in 1960 and 1961 used similar sales promotion schemes to increase their sales volume. Commission self-service drivers also took time off from regular delivery on their route about once a month to traverse the route to adjust complaints, discuss selling plans and promotions with customers, and otherwise promote sales; some did this alone, others in company with their sales supervisors. Commission drivers are also required to make sure that customers display products as soon as possible after "drop-delivery," to watch "returns" and induce customers to try to cut down the amount thereof, by changing their orders to remove seasonal or slow- moving items, and increasing amounts of products selling well. To do this, they are given and must follow, like vanette drivers, code books issued by Respondent which have up-to-date lists of products, prices, items to be eliminated, promotional or seasonal displays, etc., as well as periodic sales notices, giving similar information and advising them how to cope with sales problems, such as excessive returns, etc. All self-service drivers are eligible for special incentive compensation for persuading cus- tomers to use special displays and for securing new accounts.32 As part of their selling duties, all self-service drivers are directed to report any lack of customer cooperation on displays, advertising, promotions, adding, or cutting items from an order as suggested by the driver, so that the sales supervisor can interview the cus- tomer to secure proper cooperation.33 All self-service drivers have standing orders to seek out and use food locker plants as outlets for their day-old or damaged "returns," and to try to dispose of such merchandise there themselves, or tell their supervisors about such outlets; when the drivers sell returns to such plants directly, they collect cash for the product and turn it in the plant at the end of their runs. They have an incentive to dispose of "returns" in this way because part of their compensation depends on keeping the volume of "returns" below a predetermined level.34 80 In the spring of 19'60, drivers from both divisions were required to attend a sales meeting to hear a lecture from the promotion manager of another concern ai Christensen, Derby, Vanden Heuvel, Godin. Smith, Vercautern and Verhagen 31 Self-service drivers usually advise their sales supervisor when they hear of a possible new account, and he follows up by interviewing the prospect and arranging the details of the first order, displays, shelf space, etc , sometimes with the help of the driver. 13 On vanette routes, lack of customer cooperation is handled by the driver himself, but this difference from self-service operation does not appear significant, in view of the much longer service and experience of vanette men in selling and general customer relations The salient fact is that, as salesmen whose compensation depends in whole or in part on volume of their sales, both have the incentive as well as the duty to procure customer cooperation. u The fact that the training program for self-service drivers, with all the attendant meetings, notices, incentive award contests, etc , did not encompass vanette drivers is of no moment, because the training program was obviously designed to bring self-service ELM TREE BAKING COMPANY 21 At the termination date, drivers of both divisions used the same salesroom in the plant to receive orders, notices, make out reports, and perform other duties inci- dental to their main job. While they prepare in the main, somewhat different sales records due to the type of delivery each division makes,35 the records are processed by the same clerical help through the same IMB machines. Both divisions are governed by the same company rules, regulations, and procedures regarding driving procedures and maintenance of safety on the highway, and are required to pass the same physical examination and safety tests. They both receive the same vacation and holiday benefits (though the computation may be different depending on whether the driver is on a hourly rate or commission basis), cafeteria and other plant priv- ileges as well as social facilities, and are subject to the same hiring practices, pro- ,bationary period with the same guaranteed base pay, and disciplinary procedures, as all other employees. They wear identical uniforms which are procured and maintained for them in the same way. There has been frequent interchange of drivers and equipment between the two divisions. Since 1958, drivers Christensen and Winius transferred from the vanette to the self-service division, and one Waring transferred in 1960 the other way. Christensen was transferred to avoid his layoff in the vanette division at the time when Respondent was releasing relief drivers therein; however, after the transfer he was used to pull vanette routes as relief driver in emergencies during 1960. In addition, dockman Yarnall, utilityman Stingle,36 and checker Gene Selig are fre- quently used to make emergency, overload, and relief deliveries to both vanette and self-service customers weekdays and Sundays; the three have had previous experience in pulling routes in both divisions. For years, self-service driver Vanden Heuvel earned extra money by working on the dock Sundays to coordinate and combine orders for customers in both divisions, and when he gave it up in 1960, vanette driver John Meyer took over that job. In making these deliveries on self- service routes, the larger vanette trucks with hoists and self-service trucks, as well as both large and small cabinets, are used interchangeably. Since about 1957, self-service drivers have been under the technical supervision of separate field sales supervisors whose duties have been to train the drivers, ride their routes alone or with them to adjust complaints, assist the drivers and customers in special promotions, make initial purchase arrangements with new accounts brought to their attention by the drivers, and generally to assist the drivers in proper handling of routes and service to customers. Sales supervisors report to Sumner Farison, the marketing manager, who has general sales supervision of the whole sales department which includes drivers in both divisions, clerks in Respondent's resale stores, and leased bakery counters in supermarkets and other retail outlets, as well as the dock employees who service both driver divisions. Vanette drivers have no similar direct sales supervisor, except Vice President and General Manager Edward Pfefferle, who, in addition to his general duties with respect to efficient operation of all departments at the plant, has been supervising the vanette drivers as a special assignment. He took on this added function 3 or 4 years ago, after having directly supervised the self-service division for several years. After a mar- keting manager was hired to handle the sales operations of both divisions, Pfefferle paid more attention to the vanette operation in an effort to keep its sales from slipping, but up to date he has continued to exercise immediate supervision in many respects over the operations of the self-service division as well. He is the only officer who maintains his desk in the general salesroom used by both divisions; the self-service sales supervisors use another separate room. He directly supervises the checkers, dockmen , and garagemen, and as need arises gives orders to self-service drivers and relief drivers to handle overloads and special or emergency runs. He solves operational problems which drivers in both divisions bring to him (at times drivers up to the some status and proficiency as salesmen as existed among vanette drivers, hence the implementation of that program has tended to eradicate rather than emphasize any former differences in training and function between the two divisions as Vanette drivers prepare detailed accounting on sales records for all products taken out and distributed, returns, etc, while the self-service drivers prepare a daily log sheet showing the time and number of supermarket stops made. However, the vanette driver logs the same type of information as to customers where he makes "preorder drop deliveries." sa Stingle has had long service, handling full and partial routes in both divisions, pro- moting sales as needed on any account, and handling duties on the dock and in the pro- duction department. Because of his odd hours in shifting from one type of work to an- other as needed, he is on weekly salary, but his work and interests are still closely tied' in with the distribution and sales end of the business. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD handling the problem on the loading dock at 2 a.m. when the drivers report for work), discusses customer complaints with them directly, and almost daily gives them orders about some phase of their work . During 1959 and 1960, he personally rode the route with most self-service drivers to observe their method of operation and efficiency in checking their customers' handling of Respondent 's products, and reported his ob- servations and comments to the marketing manager and sales supervisors for use in their training program. Many of the memorandums and notices issued to both divisions in 1960 and 1961 regarding handling of orders , products, special promo- tions, and truckdriving procedures , are signed by him, and some specifically direct drivers to contact him regarding questions and problems arising from the notices, Pfefferle issues similar notices to the vanette drivers, though far less frequently, He also has transferred drivers from one division to the other , as found above, There is no proof in the record that any of these supervisory functions have been handled directly by the marketing manager or the self -service sales supervisor who work largely in the field. The circumstances of the same effective supervision, same basic functions and responsibilities which require exercise of the same basic selling skills and techniques, frequent interchange of drivers and equipment between the two divisions , enjoyment of the same working conditions and company benefits, and remuneration on the same commission basis (available to all self-service drivers ) are important factors showing a homogeneity and common interest of the two divisions , and indicate that the broad unit sought by Respondent is the only proper one. As against these factors, which are usually decisive , evidence of other variance in mechanical opera- tions between the two divisions lose any impelling , much less controlling, significance. Thus, the vanette drivers' control of the size and composition of orders, personal handling of products , item by item, from the loading dock to the final display shelf in the store, his use of advertising and promotional material , and constant contact with the customer, contrast with the self-service drivers' far more limited handling of products, advertising material, and customer contact, but this disparity has diminished with the increasing transfer of supermarket accounts to vanette drivers, the increasing duty of self-service drivers to constantly check movement of bakery on the supermarket display shelves to make sure that only fresh and otherwise saleable items are displayed, to persuade the store manager to change items on his order to delete slow moving products and increase volume of good sellers , and to use up-to-date advertising and display material and promotion schemes, and to report any lack of cooperation by customers in this regard so that the supervisors can help him correct the situation . All these duties, while not involving detailed handling of products, still promote the end objective of increasing sales volume and controlling "returns," which is also the objective of vanette drivers. The variance in average mileage between self-service and vanette routes is of little significance with the increasing transfer of supermarket accounts to vanette drivers so that the sales volume of some of them exceed that of some self-service routes; and there is also an overlap between the two divisions in that eight or nine vanette routes exceed some self-service routes in total daily mileage. On the other hand, three factors which would make the smaller unit requested by the Union appear appropriate are, separate seniority plans in the two divisions, the employees' desires about representation, and the history of collective bargaining in the plant. The record shows that there always have been, and still are, separate seniority plans for each division which govern choice of vacations and allotment of route openings . They operate alike within division, but operation of seniority in the self-service division does not affect the rights of vanette drivers, and vice versa. This fact is readily explained by the comparative youth of the self-service division (7 to 8 years ) and its drivers' length of service, which contrasts greatly with the service of vanette drivers, many of whom have worked for Respondent far longer than 8 years, some up to 25 years. Whether this disparity will change sooner or later, so as to permit a single equitable seniority plan for both divisions , is pure speculation . When self-service drivers organized their social club in )1959 to bargain with Respondent, they did not include vanette drivers because they felt the functions and problems of the two divisions were different . There was also some jealousy between the two groups, and they did not congregate or discuss problems jointly. Respondent recognized and bargained with the club over self-service division grievances , but only on condition that it take in the vanette drivels. While this insistence is some indication that Respondent at that early date considered that all drivers should be in one unit, the attempt to bring in the vanette drivers fell flat, for most of them refused the invitation to join the club, and the few who joined stayed in it only a short while , which indicates that the vanette drivers were reluctant to join forces with self-service drivers. Notwithstanding, Respondent thereafter ELM TREE BAKING COMPANY 23 bargained with the club over self-service problems alone until it disbanded, and in early 1961 continued to negotiate with the self-service drivers as a separate group, without insisting that vanette drivers be included in the discussions. In addition, during the sales training program of self-service drivers, vanette drivers were not included (except for one sales lecture), and Respondent has since continued to hold separate sales meetings for both divisions 37 These factors assume equal importance with those supporting the larger unit, because the record shows that Respondent's drive to make self-service drivers true salesmen was still going strong early in 1961, when it changed their method of compensation and offered them new incentive proposals, as well as assurances of sustained income, to induce them to put forth more effort in sales promotion. The consolidation of both divisions is still far from complete, but in a state of flux, for Ben Pfefferle admitted that he still had no definitive written plan, that at the January 1961 meeting with the self-service drivers it was still a "new concept" which he was explaining to them, and that the progress and final form of the consolidation depended largely on the rate at which small ac- counts of vanette drivers closed up or changed their operating characteristics, so as to require transfer or interchange of customers between the divisions to compensate therefor. Edward Pfefferle admitted that the consolidation program is still confined to an area about 75 miles in radius around Appleton, as Respondent has not yet found it practical to run vanette routes outside that area. Further, Edward Pfefferle, who is general manager, admits he has never formally announced or dis- cussed the plan with drivers in both divisions at a joint meeting, but has merely dis- cussed the possibility with vanette men at their sales meetings. Hence, it appears that operations of both divisions are not integrated to the extent that continued bargaining with self-service drivers as a separate unit would do violence to Respond- ent's present mode of operations. The record also shows that, while there is no definite pattern of unit representation among other employers in the bakery industry which would favor either of the precise units involved herein, some bakery concerns have had contemporaneous union contracts for separate units of commission driver-salesmen and hourly paid transport or long-haul truckdrivers, others have separate contracts for wholesale or transport drivers on a commission basis, and local commission retail driver-salesmen. Some of these same employers have separate contracts for shipping room employees only. On the other hand, the Union here had a 1960-61 contract with another bakery con- cern operating in Appleton which covered a unit of commission driver-salesman and truckdrivers, checkers, loaders, mechanics, and truck servicemen, substantially like that sought by Respondent, except that the drivers in the unit were all com- mission men. It has not been the Board's policy to compel labor organizations to represent the most comprehensive grouping of employees who may have similar functions, skills, and working conditions, nor is its function to compel all employees in such a group to be represented or unrepresented at the same time, or to require that a labor organi- zation represent employees it does not wish to represent unless an appropriate unit does not otherwise exist. Under the Act ^a unit of less than all employees may be appropriate, and while a larger unit such as that sought by Respondent may also be appropriate, a union is not required to seek representation in the largest possible unit. The crucial question in each case is whether the unit sought is an appropriate one. The Act requires the Board to make unit determinations which will "assure to employees the fullest freedom in exercising the rights guaranteed by this Act." 38 Under these considerations, it appears that the history of Respondent's collective bargaining with the self-service drivers as a separate group, their own desires to bargain with Respondent as a group separate and apart from the vanette drivers, the similar attitude of the latter group in the past, and the fact that no other labor organization seeks representation rights in the larger group sought by Respondent, are cogent factors which at least balance those supporting the larger unit. I must therefore conclude on all of the pertinent facts and circumstances in the record as a whole that the unit sought by the Union and set forth in the complaint is an ap- propriate unit, as well as that sought by Respondent. vr In assessing employee desires as of the crucial May dates, I give no weight to a peti- tion circulated in August 1961 (a month after Respondent filed its answer herein), by a vanette driver of long service, and former supervisor, which was signed by 10 vanette drivers, 3 self-service drivers, and 1 dockman, asking Respondent to recognize the larger unit for bargaining purposes "as of May 1961." While desires of all employees are nor- mally relevant, this petition was patently a belated attempt to show a reversal of desire by vanette drivers, and relate that change back to the crucial May dates, in an obvious effort to support Respondent's present claim em post facto. BsBallentine Packing Company, Inc., 132 NLRB 923. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I conclude and find that all drivers employed by Respondent in its self-service division at its Appleton, Wisconsin, plant, excluding office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within,the meaning of Section 9(b) of the Act 39 It follows that when Respondent based its refusal to bargain with the Union on the contention that the larger unit was the only appropriate one, which contention I have found without merit, it acted at its peril and in violation of Section 8(a) (5) of the Act 40 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action of the type conventionally ordered in such cases as provided in the recom- mended order below, which action I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. I have found that Respondent discriminatorily discharged the employees named in Appendix B. The record shows that on various dates between July 11 and 27, 1961, Respondent sent formal written offers of reinstatement to all of them (except Paul Melanson who had been reinstated on June 6), which terminates its liability for backpay.41 Therefore, Respondent is not required to repeat that offer, and I shall recommend only that Respondent reimburse the employees named in Appendix B for any loss of pay they may have suffered by reason of Respondent's discrimina- tion against them by paying to each a sum of money equal to the amount that he normally would have earned as wages from May 16, 1961, to the date of receipt of the offer of reinstatement to him, less his net earnings during said period 42 The amount of backpay due should be computed according to Board policy set forth in F. W. Woolworth Company, 90 NLRB 289. Payroll and other records in possession of Respondent should be made available to the Board or its agents, upon request, to assist in such computation. Having found that Respondent has failed and refused to bargain in good faith with the Union, I shall also recommend that it be ordered to bargain with the Union as the exclusive representative of the employees in the appropriate unit found above, and, if an understanding is reached, embody such understanding in a signed agreement. In view of the variety of unfair labor practices committed, including discriminatory discharges, I shall also recommend a broad cease and desist provision in the Order. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All drivers employed in Respondent' s self-service division at its Appleton, Wisconsin, plant, excluding office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining. so Dockman Yarnall, checker Selig, and utilityman Stingle are excluded from this unit, because although their overall duties and work would make their inclusion In either unit proper, they have not identified themselves with the self-service drivers in recent collective bargaining, have not designated the Union as their bargaining representative, and the Union does not include them in its requested unit. 40 United Butchers Abattoir, Inc, 123 NLRB 946, 953-957. 41 The exact dates of receipt of the offers by the discharged employees appear opposite their respective names on Appendix B, except for Glen Wentzel whose letter followed him to a new address ; the date of his receipt thereof can be determined in the compliance stage of the proceeding I make no finding that Respondent made proper offers of reinstatement In the form of Silliman's Informal requests to Individuals or groups in May to return to their jobs, be- cause she then had no authority from Respondent to take such action ; she received such authority from Ben Pfefferle only when she caused the July letters to be sent. 12 Melanson's cutoff date is June 6, 1961. SALMIRS OIL COMPANY 25 3. On May 17, 1961, the Union was, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining. 4. By refusing to bargain collectively with said Union, by discouraging member- ship in a labor organization through discriminatory discharge of employees , thereby interfering with, restraining, and coercing employees in the exercise of rights guar- anteed under the Act, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a)(5), (3), and (1) and Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX B Date of receipt of Employee: reinstatement offer David Haefs___________________________________________ July 22, 1961 John Vanden Heuvel______ ______________________________ July 12, 1961 Robert L. Smith ___________________________ _ July 29, 1961 Kenneth Christensen__________________________ ___________ July 26, 1961 Eugene Deeg------------------------------------------- July 29, 1961 Charles L. Derby_______________________________________ July 29, 1961 William J . Godin________________________________________ July 18, 1961 James Haferbecker______________________________________ July 29, 1961 Mayford Kosmerchock___________________________________ July 25, 1961 Paul L. Melanson--------------------------------------- ------------ Richard Molenda----------------------------------------- July 29, 1961 Eugene Vercautern -------------------------- ------------ July 13, 1961 Clem Wallace------------------------------------------ July 12, 1961 Ronald Weigman_______________________________________ July 18, 1961 Glen Wentzel-------------------------------------------- ------------ Salmirs Oil Company and United Industrial Workers of North America of the Seafarers International Union of North Amer- ica, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO Amalgamated Local Union 355 (Salmirs Oil Company) and United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO. Cases Nos. 2-CA-8119 and 2-CB-3237. October 10, 1962 DECISION AND ORDER On March 22, 1962, Trial Examiner William J. Brown issued his Intermediate Report herein, finding that the Respondents engaged in unfair labor practices and recommending that they cease and desist therefrom and take affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondents and General Coun- sel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its power in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. 139 NLRB No. 7.