The Richard W. Kaase Co.

THE RICHARD W. KAASE COMPANY 245 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint as amended be dismissed in its entirety. I further recommend that the objections to the election be overruled and the re- sults of the election of March 23, 1962, be certified. The Richard W. Kaase Company and American Bakery and Con- fectionery Workers International Union, Local 219, AFL-CIO Bakery and Confectionery Workers International Union, Local 19, Independent and American Bakery and Confectionery Workers International Union, Local 219, AFL-CIO. Cases Nos. 8-CA-2597 and 8-CB-575. March 8, 1963 DECISION AND ORDER On July 25, 1962, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed as to such allegations. Thereafter, the General Counsel and the Charging Party, herein called ABC Local 219, filed exceptions to the Intermediate Report and supporting briefs. Respondents did not file any exceptions, but the Respondent Com- pany, herein Kaase, did file a reply brief in support of the Inter- mediate Report. 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 Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record, including the Intermediate Report, the exceptions, and the briefs, and hereby adopts the findings, conclusions and recommenda- tions of the Trial Examiner to the extent that they are consistent with this Decision and Order. 1. We adopt the Trial Examiner's Section 8(a) (1), (2), and (3) findings, detailed in the Intermediate Report, to which Kaase did not except, based on Kaase's conduct on October 24, 1961, and thereafter, in coercing its employees to join the Respondent Union, herein called BWC Local 19, and to abandon their freely chosen representative, 141 NLRB No. 13. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ABC Local 219; contributing support to and recognizing Respondent BCW Local 19; and signing a contract with BCW Local 19 which contained a union-security clause, implemented by checkoff provi- sions, at a time when BCW Local 19 did not represent an uncoerced majority of its employees, and which limited benefits to BCW Local 19 members. 2. We disagree with the Trial Examiner's conclusion that it was lawful for Kaase to refuse to bargain collectively with ABC Local 219 on or about October 25, 1961, and thereafter. The record reveals and the Trial Examiner found that Board cer- tified ABC Local 219 on April 18, 1960, as the exclusive bargaining representative of the bakery employees of Kaase and three other employers. On June 14, 1960, Kaase and ABC Local 219 executed a separate collective-bargaining agreement effective initially to Sep- tember 30, 1961, containing a valid union-security clause and a check- off provision. In February 1961, Kaase, an established retail bakery chain in Cleveland, was purchased by Sklar, a skilled baker, Chitlik, an attorney, and their associates. The new owners continued to recog- nize Kaase's contract with the ABC Local 219, and accepted that union as the representative of Kaase's employees. Kaase also con- tinued checking off dues for ABC Local 219, pursuant to the contract. In May and June 1961, Kaase's new owners proposed certain contract modifications to ABC Local 219. After July 28, 1961, the parties held a series of negotiating meetings, the last of which occurred on October 24, 1961, in an effort to reach a new agreement to replace the expiring one. However, no agreement was reached, and Ezinski, president of ABC Local 219, announced that a strike would start on the morning of October 26,1961. Following this announcement, as detailed in the Intermediate Re- port, Kaase's officers immediately met with officials of Respondent BCW Local 19 and arranged for them to solicit authorization cards in Kaase's offices the next day. When they appeared for this purpose on October 25, Kaase's employees stopped work en masse to protest their presence. Sklar insisted that Respondent BCW Local 19's rep- resentatives remain, however, and Kaase and BCW Local 19 engaged jointly in threatening employees with discharge and otherwise coerc- ing them for the purpose of securing a majority for BCW Local 19 and undermining the status of ABC Local 219. Twenty-eight em- ployees, a majority of the 48 then employed by Kaase, signed au- thorization cards for BCW Local 19 as a result of this illegal conduct. However, seven, who were later to be discharged, refused to do so.' Later the same day, President Ezinski of ABC Local 219 attempted to negotiate further with Kaase Official Sklar. Sklar refused, said The seven employees are Frank Hamilton , Rudolph Klun, Robert Lohr, Anna Lutch, Hence Moore, Theodore Randles, and Willard Thompson. THE RICHARD W. KAASE COMPANY 247 Kaase would have "no further business" with ABC Local 219, and informed Ezinski that Kaase had a signed contract with BCW Local 19. In these circumstances, we conclude and find, contrary to the Trial Examiner, that Kaase's refusal to bargain with ABC Local 219 was unlawful. The Board has held that a certification of a collective- bargaining representative, such as that accorded ABC Local 219 in April 1960, creates a presumption of the certified union's continued majority status after the expiration of a year,2 unless a doubt as to the representative's majority status is raised in good faith.' Applying these principles to the present case, it is clear that on October 25, 1961, and thereafter, Kaase had a continuing obligation to bargain with ABC Local 219, because the circumstances clearly reveal that Kaase's doubt as to that union's continued majority status was not in good faith.4 Thus, the record in the present case contains no evidence which provides any legitimate ground for Kaase to believe that ABC Local 219 had lost its majority status prior to the time it requested Kaase to resume bargaining on October 25, 1961. The evi- dence shows not only that on October 24, 1961, Kaase recognized and bargained, with ABC Local 219, but also that a few hours later Kaase Officials Sklar and Chitlik declined a request for recognition by Re- spondent BCW Local 19's vice president, Friedman, because of ABC Local 219's status. Nor is there any evidence that ABC Local 219 lost its majority the following day, or later. For as Sklar himself testi- fied, on October 25, 1961 (prior to his refusal to deal further with ABC Local 219), he went to the bakery floor to investigate a work stoppage and found BCW Local 19's agent, Friedman, opposed by so many employees that ". . . the entire operation was at a standstill." When Sklar asked several employees what the reason for the stoppage was, he was told, "As long as Friedman is in the shop we are not work- ing." Nor can Kaase's subsequent coercion of its employees to desig- nate BCW Local 19 provide evidence to rebut the presumption that ABC Local 219 retained its lawfully acquired majority status. We find, therefore, that ABC Local 219 continued to be the majority repre- sentative of Kaase's employees. Accordingly, we conclude, contrary to the Trial Examiner, that Kaase's refusal, on October 25, 1961, an ,'L thereafter, to recognize and bargain with ABC Local 219 as the collective-bargaining representa- 8 Downtown Bakery Corporation , Successor to Smayda's Home Bakery, Inc., 139 NLRB 1352; Southerland's Tennessee Company, Inc., etc., 102 NLRB 1178. That ABC Local 219 was in fact majority representative of Respondent's employees on this critical date, as found by the Trial Examiner, appears from the fact that this union's union-security contract, with checkoff provisions, had been maintained and applied by operators of the bakery since June 1960. 8 Carter Machine and Toot Co , 133 NLRB 247; Celanese Corporation of America, 95 NLRB 664. See Celanese Corporation of America , supra. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of its employees violated Section 8 (a) (5) and (1) of the Act. Additionally, Kaase's action in recognizing BCW Local 19, and in executing and thereafter maintaining a collective-bargaining agree- ment with that Union, violated Section 8 (a) (5) and (1) of the Act. 3. We likewise disagree with the Trial Examiner's conclusion that Kaase's discharge of the seven employees, referred to above, was law- ful. Significantly, the discharges occurred between October 27 and 31, 1961, while Kaase was engaging in the widespread unfair labor practices heretofore set forth; the seven employees had just refused Kaase's demand that they abandon ABC Local 219 and sign authoriza- tion cards for Respondent BCW Local 19; and some had been ex- pressly threatened with discharge unless they signed up with BCW Local 19. Three of these seven employees were officials of ABC Local 219, and two of these three were on that union's negotiating committee and currently serving as shop stewards. All seven employees were discharged by Sklar or at his direction with little or no explanation, without any notice whatsoever, and without any prior warning that their services were considered unsatisfactory. Significantly, Sklar, after having worked through all departments and time shifts to be- come thoroughly familiar with the capabilities of all the employees, had agreed with ABC Local 219, 3 months earlier on August 17, that these employees would be among those who would not be laid off in the contemplated reduction in force. In its reply brief filed in support of the Trial Examiner's conclu- sion, Kaase claimed that the seven employees were discharged for good cause, and not in violation of the Act. Thus, it is urged that the alleged continued ineptitude and inefficiency of Hamilton, Klun, Lohr, and Thompson did not become apparent or serious enough to warrant their discharge until late October 1961, that Moore had been generally unsatisfactory for at least several months because of a weakness for alcohol, and that Lutch and Rand,les had been insubordinate, each on one occasion. There is some evidence in the record to support the existence of these purported grounds for dissatisfaction. However, the grounds existed before Kaase embarked on the unfair labor practice campaign found above, while the discharges were not made until the employees refused to yield to Kaase's unlawful campaign. In such circumstances, we shall consider Kaase's actual motivation in making the discharges. Examining the present record, we find evidence which shows ad- mitted animus toward ABC Local 219 on the part of Kaase, threats to compel Kaase's employees to abandon ABC Local 219 and join Re- spondent BCW Local 19, and unlawful assistance rendered to the latter Union to accomplish such a result. The evidence further shows 5 The Radio Officers' Union of the Commei cial Telegraphers Union, AFL v. X L.R B , 347 U.S. 17, 43, and 51. THE RICHARD IV. KAASE COMPANY 249 that although Sklar had worked through all departments and all shifts of the bakery in early 1961 and again in July 1961, he did not discharge the seven employees here involved at those times, but waited until they had refused to comply with his unlawful efforts to force them to abandon ABC Local 219 and to join BCW Local 19. More- over, the various reasons, which are now advanced to show that the seven employees in question were discharged for good cause, did not prevent Kaase from agreeing with ABC Local 219 in August 1961 to retain them. The Board finds that all the evidence, and particularly the delayed timing of the seven discharges so as to coincide with Kaase's other unfair labor practices, warrants the inference that the discharges were discriminatorily motivated, and were intended to encourage member- ship on behalf of BCW Local 19 and to discourage membership on behalf of ABC Local 219.6 Accordingly, the Board finds that these seven discharges violated Section 8(a) (3) and (1) of the Act. 4. We adopt pro forma the Trial Examiner's Section 8(b) (1) (A) and (2) findings, detailed in the Intermediate Report, and to which BCW Local 19 filed no exceptions. THE REMEDY Having found that Kaase engaged in certain unfair labor practices in addition to those found by the Trial Examiner, we shall also order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Kaase unlawfully refused to recognize and bar- gain with ABC Local 219, we shall order Kaase to bargain collectively with ABC Local 219, upon request. Having found that on and after October 25, 1961, the Respondents threatened and coerced employees to join Respondent BCW Local 19 in order to keep their jobs, and that Kaase discriminatorily dis- charged the seven employees named above for refusing to join BCW Local 19, we shall issue an order for joint and several reimbursement with respect to all union dues, fees, assessments, and other obligations of membership in BCW Local 19, of such employees as joined BCW Local 19 on or after October 25, 1961, and for reinstatement of the discharged employees with backpay. In accordance with the policy recently adopted by the Board, we shall include an allowance of inter- est on all moneys due herein, to be computed at the rate of 6 percent per annum on the basis of separate calendar quarters, with the interest to begin running as of the last day of the calendar quarter for moneys e B. H. Smith et al, d/b/a National Parts Warehouse, 132 NLRB 1493 , 1500; Mike Trama (F/V Sandy Boy), 125 NLRB 151, 158; Benton and Company, Inc , 131 NLRB 965, 976; Jack G Buncher d/b/a The Buncher Company, 131 NLRB 1444, 1457, and 1461 ; Somerville Cream Company, Inc, 95 NLRB 1144, 1155, enfd 199 F 2d 257 (C A 1) (1952). 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exacted or due in that calendar quarter until compliance with our order is achieved? Finally, since the Respondents have committed these extensive viola- tions of the Act, and because Respondent BCW Local 19 has also violated Section 8(b) (1) (A) and 8(b) (2) in dealing with another employer,8 we shall issue a cease-and-desist order, which we here deem appropriate to dissipate the effects of the unfair labor practices which have occurred, and to effectuate the policies of the Act in the future. 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 : A. Respondent Company, The Richard W. Kaase Company, Cleve- land, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in American Bakery and Confec- tionery Workers International Union, Local 219, AFL-CIO, or any other labor organization, or encouraging membership in Bakery and Confectionery Workers International Union, Local 19, Independent, or any other labor organization, by discharging, refusing to reinstate, or in any other manner discriminating against its employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Assisting or supporting Bakery and Confectionery Workers International Union, Local 19, Independent, or any other labor orga- nization, by soliciting or otherwise coercing its employees to become or remain members of such labor organization. (c) Recognizing Bakery and Confectionery Workers International Union, Local 19, Independent, or any successor thereto, as the rep- resentative of any of its employees for the purposes of dealing with it with respect to rates of pay, wages, hours of employment, or other terms or conditions of employment, both until it has complied with the provisions of this Order requiring it to bargain with American Bakery and Confectionery Workers International Union, Local 219, 7 See J. J. Hagerty, Inc, 139 NLRB 633; Quality Coal Corporation, 139 NLRB 492; Seafarers International 'Union of North America , Great Lakes District. AFL-CIO, 138 NLRB 1142; Isis Plumbing & Heating Co, 138 NLRB 716; F W. Woolworth Company, 90 NLRB 289; A.P.W. Products Co, Inc, 137 NLRB 25 For the reasons stated in their dissenting opinion in Isis Plumbing, Members Rodgers and Leedom are convinced that an award of interest in connection with reimbursement of membership obligations paid like the attachment of interest to backpay exceeds the Board's remedial authority. While adhering to such view, for the purpose of this decision they are acceding to the majority Board policy of granting interest on moneys due In addi- tion, Members Rodgers and Leedom. for reasons fully set forth In their dissenting opinion in A P.W. Products Co, Inc, perceive no sound or compelling reason to abandon long- standing "tolling practice." However, for the purpose of this decision they are acceding to the majority Board policy in this regard. 8Downtown Bakery Corporation, Successor to Smayda's Home Bakery, Inc, supra. THE RICHARD W. KAASE COMPANY 251 AFL-CIO, and thereafter, and unless and until such labor organiza- tion shall have been certified by the Board as the exclusive representa- tive of its employees. (d) Maintaining or giving effect to its collective-bargaining agree- ment of November 6, 1961, with Bakery and Confectionery Workers International Union, Local 19, Independent, or entering into or en- forcing any extension, renewal, modification, or supplement thereof, or any superseding collective-bargaining agreement with said labor organization. (e) Refusing to bargain collectively with American Bakery and Confectionery Workers International Union, Local 219, AFL-CIO, as the exclusive representative of its employees in the following unit heretofore found appropriate for the purposes of collective bargaining : All bakery employees including helpers, shipping and receiving department employees, porters, maintenance employees, and work leaders, but excluding sales employees, truckdrivers, office clerical employees, professional employees, guards, and super- visors as defined in the Act. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Bakery and Con- fectionery Workers International Union, Local 19, Independent, as the representative of any of its employees for the purpose of dealing with it with respect to rates of pay, wages, hours of employment, or other terms or conditions of employment, both until it has complied with the provisions of this Order requiring it to bargain with Ameri- can Bakery and Confectionery Workers International Union, Local 219, AFL-CIO, and thereafter, unless and until that labor organiza- tion shall have been certified as such representative by the Board. (b) Jointly and severally with Respondent Union reimburse those employees who became members of Respondent Union on and after October 25, 1961, for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership in Respondent Union, together with interest thereon at the rate of 6 percent per annum, in the manner set forth herein. (c) Offer to employees Frank Hamilton, Rudolph Klun, Robert Lohr, Anna Lutch, Hence Moore, Theodore Randles, and Willard 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thompson immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, together with interest thereon at the rate of 6 percent per annum, in the manner set forth herein. (d) 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 to analyze the amount of backpay due and other benefits due and the rights of employment under the terms of this Order. (e) Upon request, bargain collectively with American Bakery and Confectionery Workers International Union, Local 219, AFL-CIO, as the exclusive representative of the employees in the aforesaid appro- priate unit and, if an understanding is reached, embody such under- standing in a signed agreement. (f) Post at its plant in Cleveland, Ohio, copies of the attached no- tices "Appendix A" and "Appendix B." 9 Copies of said notices, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the respective representative of the Re- spondents, be posted by the Respondent Company immediately after receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by it to insure that such notices are not altered, defaced, or covered by any other material. (g) Mail to the Regional Director for the Eighth Region copies of the notice attached hereto as "Appendix A" for posting by the Re- spondent Union. Copies of said notice, to be furnished by said Re- gional Director, shall, after being duly signed by its representative, be forthwith returned to said Regional Director for such posting. (h) Notify the Regional Director for the Eighth Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. B. Respondent Union, Bakery and Confectionery Workers Inter- national Union, Local 19, Independent, its officers, agents, representa- tives, successors, and assigns, shall : 1. Cease and desist from : (a) Acting as the collective-bargaining representative of any of Respondent Company's employees in the unit heretofore found ap- propriate until Respondent Kaase has complied with the provisions In the event that this Order Is enforced by a decree of a United States Court of Appeals, there 'hall 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." THE RICHARD W. KAASE COMPANY 253 of the Board's Order requiring Kaase to bargain with American Bakery and Confectionery Workers International Union, Local 219, AFL-CIO, and thereafter, unless and until it shall have been certi- fied by the Board as the exclusive representative of such employees. (b) Maintaining or giving effect to its collective-bargaining agree- ment of November 6, 1961, with Respondent Company, or entering into or enforcing any extension, renewal, modification, or supple- ment thereof, or any superseding collective-bargaining agreement. (c) Causing or seeking to cause Respondent Company to discrimi- nate against its employees in violation of Section 8 (a) (3) of the Act. (d) Threatening or coercing Respondent Company's employees with economic reprisals to influence their choice of a collective- bargaining representative, or in any other manner restraining or coercing them in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with the Respondent Company reimburse those employees who became members of the Respondent Union on and after October 25, 1961, for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership in the Respondent Union, together with interest thereon at the rate of 6 percent per annum, in the manner set forth herein. (b) Post at its business offices and meetings halls in Cleveland, Ohio, copies of the attached notices marked "Appendix A" and "Ap- pendix B." 10 Copies of said notices, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the respective representative of the Respondents, be posted by the Respondent Union immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the Eighth Region signed copies of the attached notice marked "Appendix B" for posting by the Respondent Company. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by the Respond- ent Union's representative, be forthwith returned to the Regional Director for such posting. (d) Notify the Regional Director for the Eighth Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 10 See footnote 9, oupra. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES AND TO ALL MEMBERS OF BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION, LOCAL 19, INDEPENDENT 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 you that : WE WILL NOT discourage membership in American Bakery and Confectionery Workers International Union, Local 219, AFL- CIO, or any other labor organization, or encourage membership in Bakery and Confectionery Workers International Union, Local 19, Independent, or any other labor organization, by dis- charging, refusing to reinstate, or in any other manner discrim- inating against employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT assist or support Bakery and Confectionery Workers International Union, Local 19, Independent, or any other labor organization, by soliciting or otherwise coercing em- ployees to become or remain members of such labor organization. WE WILL NOT maintain or give effect to our collective-bargaining agreement of November 6, 1961, with Bakery and Confectionery Workers International Union, Local 19, Independent, or enter into or enforce any extension, renewal, modification, or supple- ment thereof, or any superseding collective-bargaining agreement with said labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL withdraw and withhold all recognition from Bakery and Confectionery Workers International Union, Local 19, Inde- pendent, as the representative of any of our employees for the purpose of dealing with us with respect to rates of pay, wages, hours of employment, or other terms or conditions of employment, both until it has complied with the provisions of this Order re- quiring it to bargain with American Bakery and Confectionery Workers International Union, Local 219, AFL-CIO, and there- after, unless and until that labor organization shall have been certified as such representative by the Board. WE WILL jointly and severally with Bakery and Confectionery Workers International Union, Local 19, Independent, reimburse those employees who became members of that Union on or after October 25, 1961, for moneys paid by them or deducted from their THE RICHARD W. KAASE COMPANY 255 earnings for initiation fees, dues, assessments, or other obligations of membership, together with interest thereon at the rate of 6 percent per annum. WE WILL offer to employees Frank Hamilton, Rudolph Klun, Robert Lohr, Anna Lutch, Hence Moore, Theodore Randles, and Willard Thompson immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, together with interest thereon at the rate of 6 percent per annum. WE WILL, upon request, bargain collectively with American Bakery and Confectionery Workers International Union, Local 219, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below and, if an understanding is reached, embody such understanding in a signed agreement. Said bargaining unit is: All bakery employees, including helpers, shipping and re- ceiving department employees, porters, maintenance em- ployees, and work leaders, but excluding sales employees, truckdrivers, office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. 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 rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. THE RICHARD W. KAASE 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 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if they have any question concerning this notice or compliance with its provisions. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE TO ALL MEMBERS OF BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION, LOCAL 19, INDEPENDENT AND TO ALL EM- PLOYEES OF THE RICHARD W. KAASE COMPANY 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 you that: WE WILL NOT act as the collective-bargaining representative of any of The Richard W. Kaase Company's employees until Re- spondent Kaase has complied with the provisions of the Board's Order requiring Respondent Kaase to bargain with American Bakery and Confectionery Workers International Union, Local 219, AFL-CIO, and thereafter, unless and until we shall have been certified by the Board as such representative. WE WILL NOT maintain or give effect to our collective-bargaining agreement of November 6, 1961, with The Richard W. Kaase Company or enter into or enforce any extension, renewal, modi- fication, or supplement thereto, or any superseding collective- bargaining agreement. WE WILL NOT cause or seek to cause The Richard W. Kaase Company to discriminate against its employees in violation of Section 8 ( a) (3) of the Act. AVE WILL NOT threaten or coerce The Richard W. Kaase Coln pany's employees with economic reprisals to influence their choice of a collective-bargaining representative, or in any other manner restrain or coerce them in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL jointly and severally with The Richard W. Kaase Company reimburse those employees who became members on and after October 25, 1961, for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership, together with interest at the rate of 6 percent per annum. BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION, LOCAL 19, INDEPENDENT, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board' s Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4456, if they have any question concerning this notice or compliance with its provisions. THE RICHARD W. KAASE COMPANY 257 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. Section 151 et seq., herein called the Act. A charge was filed by American Bakery and Confectionery Workers International Union, Local 219, AFL-CIO (hereinafter sometimes called Local 219), against The Richard W. Kaase Company, Respondent Employer herein, on October 26, 1961; thereafter, on October 30, 1961, Local 219 filed an amended charge against the Respondent Employer; filed a second amended charge on October 31, 1961; and filed a third amended charge against the Respondent Employer on November 15, 1961. (Case No. 8-CA-2597.) On October 26, 1961, Local 219 filed a charge against Bakery and Confectionery Workers International Union, Local 19, Independent (hereinafter sometimes called Local 19); an amended charge was filed by Local 219 on October 30, 1961; and a second amended charge was filed against the Respondent Union on November 15, 1961. (Case No. 8-CB-575.) On February 8, 1962, the General Counsel of the National Labor Relations Board, on behalf of the Board by the Acting Regional Director for the Eighth Region, after appropriate order consolidating Cases Nos. 8-CA-2597 and 8-CB-575, issued a consolidated complaint and notice of hearing alleging that the Respondent Employer had engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) , (2), (3) , and (5) of the Act, and that Local 19, the Respondent Union, had engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. Timely answers were filed on behalf of the Respondent Employer and the Respondent Union, Local 19, effectively denying the substantive violations of the Act described in the complaint. Pursuant to notice and upon the issues framed by the consolidated complaint and a written amendment thereto issued March 22, 1962, and the answers of the Respond- ents, this case came on to be heard before Trial Examiner Arthur E. Reyman at Cleveland, Ohio, on May 7, 1962. The hearing was concluded and closed on May 11. At the hearing, the General Counsel, each Respondent, and the Charging Party were represented by counsel. Each party was afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues, was afforded opportunity to argue orally upon the record, to file proposed findings of fact and conclusions of law, or both, and to file briefs. The case has been briefed by counsel for each party. Upon the entire record, and from my observation of the witnesses who appeared before me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RICHARD W. RAASE COMPANY The Respondent, The Richard W. Kaase Company, is now and has been at all times material herein a corporation organized and existing by virtue of the laws of the State of Ohio, with its principal office and place of business located in Cleve- land, Ohio, at which place it is and has been at all times material herein engaged in the baking and retail sale of bakery products. This Respondent, in the course and conduct of its business operations in Cleveland, Ohio, annually has gross retail sales in excess of $1,000,000; in the course and conduct of its business operations it annually purchases and receives goods and materials valued in excess of $50,000 directly from sources outside the State of Ohio; and in the course and conduct of its business operations in Cleveland, Ohio, annually purchases and receives goods and materials valued in excess of $50,000 from brokers and enterprises located within the State of Ohio, which brokers and enterprises receive said goods and materials directly from sources outside the State of Ohio. This Respondent is engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED American Bakery and Confectionery Workers International Union , Local 219, AFL-CIO, and Bakery and Confectionery Workers International Union, Local 19, Independent, are labor organizations within the meaning of Section 2(5) of the Act. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. THE UNFAIR LABOR PRACTICES A. The pleadings and the issues 1. The complaint The consolidated complaint sets forth that on December 1 and 2, 1959, an election was conducted under the supervision of the Regional Director in Case No. 8-RC-3526 (not published in NLRB volumes) and that thereafter, on April 18, 1960, Local 219 was certified as the representative of the employees in the following unit for the purposes of collective bargaining: All bakery employees employed by Hough Bakeries, Inc., The Richard W. Kaase Company, Inc., Lakewood Bakery, Inc., and Smayda's Home Bakery, Inc., at their Cleveland, Ohio, places of business, including helpers, shipping and receiving department employees, porters, maintenance employees, and work leaders, but excluding sales employees, truckdrivers, office clerical em- ployees, professional employees, guards and supervisors as defined in the Act; and that on or about June 14, 1960, Kaase and Local 219 executed a collective- bargaining agreement, to remain in force and effect from September 30, 1959, until September 30, 1961, covering the employees in a described unit comparable to Kaase to the unit established by the Board in Case No. 8-RC-3526. It is alleged that Kaase received a 60-day termination notice from Local 219 on July 28, 1961, and that on October 27, 1961, Kaase gave Local 219 a termination notice which "resulted" in the termination of the June 1960 agreement on November 2, 1961; that at all times Local 219 has been the representative of the majority of the employees in the unit and now is such; that Kaase has refused to bargain collectively with Local 219- Notwithstanding that ABC Local 219 was at all said times the duly designated exclusive collective bargaining representative of the employees of the Respondent Employer in the unit described above ... . Other allegations set forth interference, interrogation, and illegal consummation of a collective-bargaining agreement between Kaase and Local 19, on or about October 25, 1961, to be effective November 2; threats or reprisals and coercion and interference in the signing of authorization cards by employees in favor of Local 19; unilateral bargaining directly and individually with employees in connection with a proposed reduction of hourly rates; a threat to close the plant if the employees did not agree to a wage cut; and an assertion that Local 19 has never been the representative of an uncoerced majority of employees in the unit. It is further alleged that beginning on or about November 1, 1961, and thereafter Kaase deducted and has continued to deduct dues and initiation fees from the pay of employees and remitted same to Local 19; that Kaase has contributed moneys to a health and welfare fund under such agreement, in contravention of the Cleveland bakers' Local No. 19's health and welfare fund; and therefore has interfered with the exercise of the rights of em- ployees guaranteed in Section 7 of the Act. The complaint, in those portions directed to Local 19, charges that Local 19 has been and is violating Section 8(b)(1)(A) of the Act and is attempting to cause or is causing Kaase to discriminate against its employees in violation of Section 8(a)(3) and Section 8(b)(2) of the Act. An amendment to the consolidated complaint sets forth that Kaase terminated the employment of seven employees in October 1961, and has failed to reemploy them, because the Employer believed that they had joined or had assisted Local 219 or engaged in other activities for the purpose of collective bargaining or other mutual aid or protection or because they failed or refused to join or assist Local 19. There- fore, it is said that Local 19 has violated and is violating Section 8(b) (1) (A) and Section 8 (b)(2) of the Act. 2. The answers to the complaint The Respondent Employer in its answer to the consolidated complaint denies generally all the allegations of violations of the Act set forth therein. In its answer to the amendment to the consolidated complaint, this Respondent denies that it has contributed money as to the health and welfare fund as alleged, but states that on January 13 and February 27, 1962, it made payments for the benefits of its em- ployees to a special trust fund providing health and welfare benefits to the employees of the Respondent Employer. This Respondent admits the discharge of the seven persons named in the amendment to the consolidated complaint and says that each of the employees discharged was discharged for good cause because he or she was THE RICHARD W. KAASE COMPANY 259 incompetent and incapable of performing the work which was a part of the jobs or positions held by them. The Respondent Union, Local 19, in its answer denies the substantive allegations of violations of the Act as set forth in the consolidated complaint as amended and says further that: Without meaning to deny that some dues and initiation fees have been checked off from wages of employees of the Respondent Company and delivered to the Respondent Union pursuant to a collective-bargaining agreement between said Company and said Union, Respondent Union denies that such deductions are continuing to date and denies that deductions for any other purpose have ever been made and delivered to Respondent Union. 3. The issues The principal questions to be decided herein are these. 1. Whether the Respondent Employer violated Section 8(a)(1), (3), and (5) of the Act in the month of June 1961 by disregarding Local 219, the Charging Party, as the exclusive collective-bargaining representative of its employees in an appropriate unit by calling a meeting of its employees at which it unilaterally dealt with said em- ployees concerning the terms and conditions of their employment; threatening its employees with loss of employment in the event they or Local 219 refused to accede to its demands for a reduction in wage rates; the posting of notices which threatened the closing of the plant in the event its employees or Local 219 refused to accede to its demands for a reduction in wage rates; and thereafter, after making such threats, ceasing production of Saturday work with a resultant permanent discontinuance of normal Saturday production of goods. 2. Whether the Respondent Employer violated Section 8(a)(1) and (5) of the Act by refusing and continuing to refuse from on or about October 25, 1961, and thereafter to recognize and bargain collectively with Local 219 as the exclusive col- lective-bargaining representative of its employees in an appropriate unit at a time when Local 219 was the duly designated collective-bargaining representative of employees in an appropriate bargaining unit. 3. Whether the Respondent Employer and the Respondent Union (Local 19) violated Section 8(a) (1) and 8(b) (1) (A) of the Act by making statements in the nature of threats and coercion to the employees of the Employer in conjunction with their joint solicitation of said employees to sign union authorization cards in behalf of the Respondent Union. 4. Whether, by reason of the foregoing allegations, the Respondent Employer and the Respondent Union violated Section 8(a)(1), (2), (3), and (5) and 8(b)(1)(A) and (2) of the Act, respectively, by jointly soliciting membership in Local 19 and, thereafter, executing and maintaining a collective-bargaining agree- ment containing a union-security clause implemented by checkoff provisions and lim- iting benefits to members of the Respondent Union, at a time when that Union had no representation interest in the bargaining unit and did not represent a majority of the employees in such unit, and did not represent an uncoerced majority of the em- ployees in that unit. 5. Whether the Respondent Employer violated Section 8(a) (3) of the Act by ter- minating the employment of seven employees in the month of October 1961, and thereafter refusing to reinstate them for the reason that they had or that the Re- spondent Employer believed that they had joined or assisted Local 219 or engaged in other activities for the purpose of collective bargaining, or because they failed or refused to join or assist Local 219 or because the Respondent Employer acted with an intent to destroy the majority status of Local 19.i B. Stipulated testimony Before the opening of the hearing in this case, Philip Fusco, Regional Director for the National Labor Relations Board, filed a petition for a temporary injunc- tion under the provisions of Section 10(j) of the Act. The issues there were tried before the Honorable Ben C. Green, a judge of the District Court of the United 'At the hearing, counsel for the General Counsel made the following statement: The General Counsel will state for the record that there are no allegations in the complaint concerning the termination of the employees named in the amended com- plaint with respect to Section 8(b)(2) concerning Local 19, the Respondent Union. There are no allegations concerning the discharges [ against Local 19]. 708-006-64-vol. 141-18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD States, Northern District of Ohio, Eastern Division (Fusco v. Richard W Kaase Baking Co., et al., Civil No. C62-261 [205 F. Supp. 465]) commenced April 4 and closed April 11, 1962. At the hearing herein, counsel for the General Counsel proposed a stipulation which was accepted by counsel for each Respondent and for the Charging Party, as follows: That the record in Civil Action No. C62-261, Philip Fusco v. Richard W. Kaase Baking Company, et al.. . . [and] the testimony in said Federal Action, the exhibits, stipulations, adduced in said Federal Action, shall stand as evidence, testimony, exhibits, stipulations and agreements in the present proceeding as if all of the proceeding and testimony as reported in the transcript of said Federal Court Action, had been had before the Trial Examiner in the instant proceeding, reserving however, to all parties the right to argue with reference to the ad- missibility and effect of the above evidence with the following understanding: that General Counsel will proceed in the instant proceedings to offer additional and new evidence with respect to the allegations set forth in paragraphs 17 and 18 of the complaint herein, and with respect to the 8(a)(3) allegations, set forth in paragraph 25 of the amendment to the consolidated complaint. Thirty-seven witnesses appeared before Judge Green. Seventeen witnesses ap- peared before me, I1 of them having testified before Judge Green, so that I have not had the benefit of observing the demeanor of or hearing some 26 witnesses whose testimony has been stipulated into the record in this case. On May 23, 1962, Judge Green handed down a memorandum opinion stating has findings of fact and conclusions as required under rule 52(a) of the Rules of Civil Procedure for the District Courts of the United States. C. The Company, and the rivalry between Local 219 and Local 19 1. Kaase and Local 219 Kaase, as a bakery with retail outlets in the Cleveland area, had been in existence for a number of years prior to the purchase of the controlling interest and the assumption of management by Edward Chitlik, Morris Sklar, and others on February 4, 1961. From this date until at least the month of August 1961, the Company lost money through its operations each month . Its sales through its retail stores declined; it was party to unprofitable long-term leases covering its retail outlets; internal management was shown to be unsatisfactory; the new owners claimed to have discovered excess help and featherbedding practices as causes of consistent and continuous money losses. Further than this, Kaase was indebted in substantial amounts for arrears in payments to health and welfare and pension funds under a trustee plan, and had experienced difficulty in making payments to cover hospitaliza- tion premiums (Blue Cross) as required by its June 14, 1960, collective-bargaining agreement with Local 219, the provisions of which are more fully described below. On February 4, 1961, at the time of the acquisition and control of Kaase by new management, there were 38 retail outlets. Fourteen stores with low average income were closed, there being some 24 stores in operation at the end of the year 1961. Subsequently six new or similar retail outlets were opened. Further to reduce oper- ating loss, the new management immediately reduced the number of production and maintenance employees from 101 to 82, and in a series of layoffs, further reduced the working force until, in August 1961 , 48 of an original number of 101 employees were employed. An election had been conducted in the month of April 1960 by the Board among the employees of four Cleveland bakeries: The Hough Bakeries, Inc., Smayda's Home Bakery, Inc., Lakewood Bakery, Inc., and Kaase. (The Richard W. Kaase Company, et al., Case No. 8-RC-3526, not published in NLRB volumes.) As a result of the election, Local 219 on April 18, 1960, was certified as the exclusive bargaining representative of those Kaase employees within the appropriate unit established in that case. Whether or not a majority of the employees of Kaase contained within the four-plant unit voted for Local 219 has never been established, nor was evidence offered to the district court judge or to the Trial Examiner on the point. On June 14, 1960, Kaase and Local 219 entered into a collective-bargaining agreement, this contract providing, inter alia, for a union-security clause and a provision, pursuant to voluntary individual authorizations from the employees, for the deduction of union dues and remittance thereof to Local 219. At the time THE RICHARD W. KAASE COMPANY 261 when Chitlik, Sklar, and their associates took over control and management of Kaase, the contract with Local 219 was recognized and that Union was accepted as the recognized collective-bargaining representative of Kaase employees within the bargaining unit .2 Kaase continued to check off union dues and remit to Local 219, through and including membership dues paid by Kaase to Local 219 by check dated October 11, 1961, in accordance with a list submitted by Local 219 on September 23, 1961, for the month of October The contract provided for an expiration date or for automatic renewal or for termination, under the following provisions: ARTICLE XXV-DURATION, MODIFICATION AND TERMINATION This agreement shall be and remain in full force and effect from Sep- tember 30, 1959, until September 30, 1961, inclusive, and thereafter from year to year; provided that this agreement will terminate at the expiration of the initial term or any renewal term if either party gives written notice to the other of its desire for termination at least sixty (60) days before such expiration date; and provided that if this agreement is not so terminated and either party gives written notice to the other of its desire to change or modify this agreement at least sixty (60) days before any such expiration date, then this agreement shall remain in full force and effect after such expiration date until a new agreement (the terms of which shall be retroactive to such expiration date) has been negotiated and signed or until either party gives the other five (5) days written notice of termination; and provided further that no termination of this agree- ment shall affect the duration of the obligations of the parties concerning pay- ment for employees health and welfare benefits. Local 219, by its president, John Ezinski, under date of July 28, 1961, directed a letter to Morris Sklar, president of Kaase, in which it was stated: Pursuant to the provisions of the Labor Management Relations Act of 1947, as amended, you are hereby notified that the American Bakery and Confectionery Workers Local 219, AFL-CIO, wishes to discuss with you modifications and extensions to our existing contract, which has a termination date of September 30, 1961, and if agreement or extension of the existing contract, with modifications, or a new contract, is not entered into on that date, this will serve as notice that our present contract shall terminate on September 30, 1961. The Union offers to meet with you at the company offices for the purpose of discussing these modifications at your earliest convenience. Please acknowledge this communication, indicating therein a date for the beginning of negotiations. Between August 1 and October 24, 1961, a series of meetings was held between official representatives of Kaase and Local 219, when requests or demands regarding the renewal or modification of the contract, presented by either of the respective parties, were discussed. No agreement was reached. On October 27, 1961, Kaase gave Local 219 the final termination notice, in writing, provided for in article XXV, quoted above, confirming verbal notice of termination given by Local 219 through its president, Ezinski, on October 24, 1961. Before these meetings, matters in connection with wages, the health and welfare and pension fund, Blue Cross insurance premiums, and the production effort of certain employees, in connection with the financial condition of Kaase, had been discussed between representatives of Kaase and Local 219. According to uncontradicted testimony herein, the official representatives of Kaase, principally represented by Mr. Chitlik as its attorney and John Ezinski as president of the Local, first gathered together in Chitlik's office sometime in March 1961 for the purpose of going over the collective-bargaining agreement inherited, so to speak, by Kaase's new management. At that time Chitlik suggested that the Company was in rather bad financial straits and that there should be some adjust- ment to enable management to continue to operate the business, not as a complete loss but with an expectation that losses eventually could turn into a profit for the In this collective-bargaining agreement, the appropriate unit was described as: All bakery employees including helpers, shipping and receiving department em- ployees, porters , maintenance employees, and work leaders, but excluding sales em- ployees, truckdrivers, office clerical employees, professional employees, guards and supervisors as defined in the Act. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company and enable it to meet its wage and salary obligations, to meet payments. required by the trust indenture covering health and welfare, and to meet Blue Cross insurance premiums. This meeting was more or less exploratory concerning what Chitlik thought he should know concerning the financial obligations of the Company. At this time Sklar was serving as president of Kaase and Chitlik was serving as secretary and attorney for the corporation. After the earlier meeting, and in about early May 1961, the Company represented to Local 219 that it was in a real financial difficulty in its operations at the plant and suggested to the Union that it agree to a reduction in the wages of the employees, of about $10 per week per employee, to enable the Responucnt to put measures into effect which would nullify some of its losses. Thereafter, on June 12, 1961, representatives of the Respondent and of Local 219 met and the Employer then presented a request to amend the existing con- tract to effect a suggested 40-cent per hour wage cut per employee, a reduction of employee rest-time periods, a provision for the employment of apprentices, and a provision which would prohibit stewards from engaging in union activity on com- pany time. On this day, the Respondent was in arrears in its health and welfare payments. The Respondent asked that the Union take its proposals to the union membership; Local 219 did consider the company proposals at a meeting on June 17, 1961, and the proposals were rejected. There is some dispute on the record between the parties as to whether adequate notice of this meeting was given, whether it was a regularly conducted meeting, and whether minutes of that meeting were recorded as the official action of the Union. I do not think this question has much bearing on the ultimate resolution of the issues in this case. During the times management was effecting economies through the closing of stores and reduction in working force, the largest part of the bread-baking operation of the plant was eliminated and all rye bread products, including pumpernickel, hard rolls of various types and descriptions, and wiener and hamburger buns, was discontinued. According to the Respondent, Local 219 sought to force the management to retain employees who were unskilled in certain operations in the plant, and its attempts to discharge employees who were unskilled and unqualified were resisted vigorously by Local 219, as were attempts by management to retain or recall experienced employees. The Employer called a meeting of its production employees for July 10, at which it presented its proposals directly to its employees with the suggestion that unless the employees agreed to its proposals for wage decreases, it would be necessary to close the plant. The General Counsel contends that this was a unilateral action on the part of the Employer although it clearly appears from the record that officials of the Union, including its president, John Ezinski, and others, had notice that the meeting would be called and were requested to be, and were, present at that meeting. Chitlik under date of July 6, 1961, had advised John Ezinski, president of Local 219, that the employment of all members of Local 219 "will terminate" because of cessa- tion of baking operations. The General Counsel says that the Employer's economic demands were not in good faith as a matter of urgent economic necessity but merely intended to coerce the employees or Local 219 into renegotiating a less favorable contract. I do not accept this premise. I cannot infer, on the basis of the record, that new management initiated the question of wage reductions with its sole objective being the breaking of Local 219. The financial records of the Company indicate an increasingly favorable economic position after the closing of its stores and the reduction in force so that the losses previously sustained would not be as great, on a projected business operation, as was first contemplated. Between the time of the taking over a control of the Company on February 4 and until August 1961, the losses to the Company totaled something in excess of $300,000. According to company records, the following shows total sales for certain periods from the number of retail outlets shown: Sales ending January 29, 1961 ___________________________' $43 185 80 38 units----- 101 employees Week ending July 23,1961___________ __________________ Week ending August 13,1961___________________________ 37,141 22 29,434 34 38 units----- 24 units----- 50 employees Weekending August 20,1061--------------------------- 30 354 70 24units- 50 employees. Week ending September 3,1961_________________________ 33 413 98 24 units_ 50 employees. Week ending November 5,1961_________________________ 33,391 36 24 units_ 44 employees Week ending November 12,1961------------------------ 34,496 78 24units_ THE RICHARD W. KAASE COMPANY 263 November 5 and November 12 figures resulted immediately after the discharge of seven employees. Fourteen employees were actually discharged , seven being replaced by experienced personnel. Week ending November 19,1961 ------------------------ $36, 575.36 24 units----- 46 employees Weekending December 17 , 1961_-_--------------------- 44, 676 44 24 units----- 46 employees Thus in December 1961 , the Company had attained the same dollar volume of production with 46 people that it had in January of that year with 101 employees. During May, June , and July and thereafter the relations between the Employer, particularly Sklar on the one side and the Union , particularly the Ezinski brothers, on the other, were far from harmonious but on the other hand seem to have been extremely acrimonious . The Union resisted the efforts of Sklar to replace what he considered to be inefficient and useless employees with the proper number of experienced and competent employees . Sklar claims that each time he made a suggestion for improvement he was threatened with a strike; Ezinski , the president of Local 219, on the other hand claims that Sklar was trying to disregard the pro- visions of the contract and discriminated against union employees so that all-in- all it is difficult to determine precisely from the record what occurred during the various instances related by the several witnesses Looking at the record as a whole, and after having observed both Sklar and Ezinski on the witness stand, I am of the opinion that Sklar is more to be believed than Ezmski in regard to unreasonable de- mands made upon the Employer by Local 219 in regard to the employment or non- employment of certain employees and the need for the services of others. Although the General Counsel asserts that the Employer closed its plant on June 17, 1961 , because its employees refused to accept a reduction in hourly rates of pay, the testimony fails to prove that this was the fact. It had been considered by management but actually, according to the uncontradicted testimony herein, the plant was not closed on that day . Twelve employees were employed on that day, comparable to the number of employees employed on previous Saturdays. The Respondent contends , and I believe with justification , that while the con- tract contained a union-security clause, the application of the clause in effect oper- ated as a closed shop because of the insistence by Ezinski , the president of Local 219, that no employees could be employed by Kaase without his prior approval. Sklar's testimony that he was not permitted to employ bakers who were qualified because only workers supplied by Local 219 were allowed to work is uncontradicted. At a meeting between Sklar and representatives of the Union on about August 17, 1961, a form of agreement was reached concerning employees who would be allowed to work in several departments, as evidenced by a memorandum prepared by Willard Thompson, shop steward, and "O.K.'d" by Sklar. Local 219 contends that this agreement was reached by mutual consent as to which employees would be employed and kept at work in several departments of the plant; Sklar claims that in effect the list was imposed upon him in the face of a strike threat and that he accepted it in order to keep the bakery in production. Apparently, and according to Ezinski, the only meetings held by the Union were on June 10, June 17, July 15, and October 7, 1961. With regard to the general membership meeting of June 10, the minutes show only that one employee "reported on the Kaase situation," and that this report was restricted mainly to advising the membership of a new slogan "ABC-always better contracts." Concerning the meeting of about July 10, called by the Employer, when Attorney Chitlik informed the employees of the Company's financial position and its difficulty in continuing operations , it is not denied that the union officials had notice of the meeting, attended the meeting , did not object to the meeting, and that Ezinski as president of Local 219 told the employees that he did not accept the statements of Chitlik as a fact nor would he accept the Company's offer to permit him to examine the Company's books or have an accountant or auditor examine them to determine whether or not Chitlik was correct in outlining the financial position of the Respond- ent and its difficulties in connection therewith at the time he did. It appears to me, and I find, that John Ezinski and other officials of Local 219 acted in a highhanded manner in regard to the employment needs of Kaase. About June 14, Ezinski informed Chitlik that there would be a strike unless the health and welfare and hospitalization indebtedness was paid, the strike to be called on or about June 14 or 15. On June 19 Chitlik handed Ezinski a check in the amount of $2,000 payable to the order of Blue Cross of Northeast Ohio, the check being drawn against Richard W. Kaase Co. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The reason for the taking over of the management of the Company by Chitlik, Sklar, and associates I do not know, but can only assume that they took over the affairs of a company in dire financial straits with a hope of rehabilitating its opera- tions and deriving financial profit therefrom. Disagreement existed between manage- ment, as instanced by the fact that on about June 14 Sklar resigned as president, trans- ferred his stock in the Company to Chitlik, and withdrew from supervision of the Company. Thereafter he did return, on July 15, and assumed the duties of what might be called the production head of the organization. In a situation, however, when it was apparent that the Company was in financial trouble, in arrears in pay- ments of health and welfare and insurance payments, and where it was equally clear that Ezinski was not keeping his membership informed in regard to the requests of the Company made for relief, I find nothing illegal about Attorney Chitlik giving notice to the representatives of the local that he intended to call the employees to- gether to explain directly to them the situation existing with regard to the efforts of the Company to continue in business.3 As noted above, Local 219 on July 28, 1961, gave written notice to Kaase of its desire to modify or terminate the then existing agreement. A final bargaining session between Local 219 and the Respondent occurred on October 24, 1961. On that day, because of the application of the union-security clause and deduction-of-dues clause in the contract, all production employees were members of Local 219. The Respondent again set forth its need for financial relief in the way of reduction in wages and proposed a reduction of approximately $10 per week per employee. Local 219 proposed an extension of the old contract for an additional year provided the employer meet its delinquency for health and welfare payments under the old con- tract. This at that time amounted to between $24,000 and $36,000. Accompany- ing Local 219's demand was a threat of strike should agreement not be reached by the following day. No agreement was reached during the afternoon session on October 24. Ezinski announecd the termination of the contract. Local 219 called a strike against the Company for midnight, October 25, 1961. The strike was abortive. The first shift that would have been affected, had the strike been effective, would have been the one beginning during the early morning hours of October 26. The employees on that shift reported for work. Ezinski testified that Local 219 decided to "call off" the strike because they believed that the bakery would be manned by members of Local 19 if the members of Local 219 went out on strike. He testified further that he instructed either the business agent or another official to advise the employees of the decision not to strike and sent him to the plant to so inform the workers as they reported in. There is no evidence in the record that any such notice ever was given. Accordingly I find that no such notice was given but that on the other hand the employees of Kaase did not observe and adhere to the strike call .4 The Respondent withdrew recognition from Local 219 on October 25, 1961, and refused to bargain with Local 219 although subsequently requested so to do. 2. Kaase and Local 19 Mention has been made above of two meetings on October 24-a meeting be- tween employer representatives and the Union in the afternoon and a later meeting between Chitlik and Sklar for the Employer and Muscaro and Ezinski and others for the Union. In between times Harold Friedman, vice president and business agent of "The General Counsel asserts that because some 3 months after Local 219 had rejected the Employer's request for relief in the way of wage cuts, the Employer's lack of good faith is demonstrated because of the entry into a collective-bargaining agreement with Local 219 But this argument cannot hold There is no indication at this time that the Employer and Local 19 had communicated with each other looking forward to the con- summation of a future collective-bargaining agreement 4 Attilio Muscaro, International representative, assisted Local 219 He was present at the meeting between Sklar and Local 219 on October 24 and he is the one who stated that Local 219 was willing to extend the contract provided Kaase would meet its obligations to the health, welfare, and pension funds and the earned vacations of employees , he also informed Sklar that Local 219 was going to take strike action on October 26, but that he was available to continue discussion in the event there was any basis upon which the parties could adjust their differences. On October 24, following the meeting between rep- resentatives of the Employer and the Union, Attorney Chitlik telephoned Muscaro and arranged a negotiation meeting with him at Muscaro's motel, and they did meet At the meeting, Chitlik sought some basis for settlement Chitlik maintained his position regard- ing a $10 per week wage reduction and Local 219 required the Employer to meet its delinquent debt as a condition precedent to the extension of its old contract. THE RICHARD W. KAASE COMPANY 265 Local 19, who had requested a meeting with the Employer, talked to Chitlik and Sklar at his (Friedman's) office, at which time Friedman asked for recognition of Local 19 as the representative of the employees in the bargaining unit and displayed a number of authorization cards as proof of interest. Chitlik and Sklar declined to recognize Local 19 because Friedman had not presented or did not have current or authentic evidence of a majority of the employees within the unit who had designated Local 19 to represent them. At this time, Sklar invited Friedman to visit the plant on the following day and then prove to the Company if he could that Local 19 was the current and present choice of the majority of the employees in the bargaining unit. Friedman suggested that representatives of Local 19 would obtain newly signed authorization cards the following day at the Kaase plant and to this Chitlik and Sklar made no objection. On the afternoon of October 25, 1961, officials of Local 19 including Friedman, John Rusnak, and Fred Krofta, called at the Employ- er's plant where, during working hours, they circulated among the employees urging membership in and soliciting authorization cards for Local 19. Upon the appearance of these men in the bakery, employees stopped work in protest against their presence and the attempt of Local 19 representatives to interview and obtain authorization cards signed by employees. When employees told Sklar that they would not work as long as Friedman was in the shop, he replied that if they were not working, to check out and go home. Sklar did not accede to a request to order Local 19 repre- sentatives from the plant but started to cancel production orders for that day. The employees resumed work upon instructions from Muscaro through Thompson, the shop steward. After the employees returned to work on that afternoon, Friedman, Krofta, and Rusnak took over a room in the company office on the second floor of the plant in order to interview employees and to urge upon them membership in Local 19 and their signatures to authorization cards. On that day the employees , usually paid by their foreman at their work stations, were instructed by the Employer to report to the office to receive their paychecks; when they entered the office the employees were asked either by a representative of Local 19 or Sklar to talk the matter over with Local 19 officials . The General Counsel says, and the record seems to sustain his state- ment, that no employee received his or her paycheck until after he or she had spoken to an officer of Local 19 or had refused to talk to such officer. It seems clear enough from the record that the Employer took a most unusual and direct interest in the activities of the representatives of Local 19. A number of wit- nesses testified before Judge Green , the whole import of their testimony being that the Company sponsored and was in favor of Local 19 being successful in obtaining authorization cards from the employees . Employee Frank Hamilton testified that he was asked by Sklar if he would sign a card for Local 19; it was said that Foreman Herman Luther remarked to a group of employees that if they wanted to keep their jobs "they had better sign Local 19 cards"; Thompson was told by Sklar and Fried- man to go get his paycheck and the other employees would follow him; employee Ivory Womack said she was told by Sklar that "people who signed the card would have a job and people who don't sign the card would be outside"; Ewodika Kuczergn said she was told by Rusnak that she would have to sign a card, after which she had told him that if 47 of the workers would sign, she would sign the 48th card; Anna Lutch said that Sklar told her that he did not expect her to sign a card for the reason that "he had had enough"; and Klun, Lohr, Krofta, Randles, Moore, and Callan, when approached, were either offered inducements to sign Local 19 cards or received an implied threat that if they did not sign the cards , their jobs might be in jeopardy. The reason employees were required to call at the office for their paychecks on the afternoon of October 25 was that Sklar was detained elsewhere and was not at the plant, and that it was his invariable custom to examine the paychecks before they were handed to the foremen for distribution to employees or, as it has happened be- fore, if he was late he would examine the checks and the employees would call at the office for them. The General Counsel says that paychecks were withheld from employees until such time as the employees agreed to discuss union membership with representatives of Local 19 by adverting to certain uncontradicted evidence on the record. It is true that no employee was refused his or her paycheck whether or not he or she agreed or refused to discuss the matter with representatives of Local 19; Anna Lutch and Willard Thompson did not request their checks until after October 25; Ewodika Kuczergn , who testified that she was unable to obtain her check in the approximate amount of $2, conceded that the check was locked in the safe at the time she called for it and that all checks including those of Anna Lutch and Willard Thompson were distributed the following day. The company bookkeeper testified that under ordi- nary circumstances, when no delay is met in the preparation of the payroll and the accounting department is able to make out the checks and have them inspected before 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD noon, checks ordinarily are distributed by the clerical help to the various foremen who in turn distribute them to the employees working under their supervision; or, on other occasions, because of delays due to clerical difficulties or the absence of man- agement from the plant, checks have been distributed to employees by advising them to call at the Company's second floor office to receive their checks. The Respondent concedes that contemporaneously with the distribution of the pay- roll checks on October 25, Local 19 representatives sought membership and authori- zation cards for Local 19 at the Company's office on the second floor . It is said that all of the employees were acquainted with Friedman and the other Local 19 repre- sentatives because they had formerly been members of that Union . In explanation of why the administration offices of Kaase were used by the Union on that day, it is said that no other facilities were readily available and "while management might be criticized for aquiescing in the use of its offices for this purpose, the mere use of the Company's offices does not and did not clothe Local 19 with company approval." It seems to me that, in the circumstances , company approval might be implied. During the course of the injunction hearing before the district court judge, some 16 Kaase employees testified that at no time did management exert any influence or attempt to influence or coerce them or threaten their tenure of employment on the condition that they either join or refuse to join Local 19 or Local 219. At the trial in the district court, a number of employees testified concerning the happenings of that afternoon when Friedman and other union representatives were interviewing and talking to employees at the time the employees called for their checks. Frank Hamil- ton, an employee, said that Sklar asked him if he wanted to sign a card ; Rusnak asked him (Hamilton ) if he wanted to see him and either Sklar or Rusnak had told Krofta that they had enough signed cards without Hamilton's name; Hamilton said further that a foreman, Herman Luther, told him and two other employees that if they wanted to keep their jobs they had better sign the cards for Local 19 ". . and if we don't sign the cards we wouldn't have any jobs"; Ivory Womack said she was told by Sklar that people who signed the card "will have a job and people who do not sign the card will be outside"; Edwodika Kuczergn said she was told by Rusnak that she had to sign a card to which she replied that if 47 of the workers would sign a card then she would go along and sign the 48th ; Robert Lohr, when he asked for a check, said he was told by Sklar that he would have to go into the office with Krofta and that when Lohr refused to sign the card, Krofta stated that it might hurt his job. Theodore Randles, Anna Lutch, Hence Moore, and Donald Callan all testified to events or conversations occurring on that afternoon indicating either coercion or offers of benefits made by Sklar or implied by Friedman , Rusnak, or Krofta. Under date of October 25, 1961 , after the events discussed immediately above, Morris Sklar for Kaase addressed a letter to Friedman of Local 19 in which he said: You wish to enter into a collective bargaining agreement with our company similar to that attached hereto and marked Exhibit "A." Our agreement with ABC Local No. 219, AFL-CIO expired on September 30, 1961, and we have been unable to reach a new agreement with that union. Con- trary to your claims, Local 219 claims that it represents the majority of our baking employees. As we understand the law, we are bound to negotiate with the union or- ganization which represents the majority of our employees. You are therefore advised, that if you are able to present to us for examination membership cards recently signed by a majority of the baking employees in our plant, we will enter into collective bargaining negotiations with you to enter into an agreement simi- lar to Exhibit "A" attached hereto. On October 27, 1961, according to Sklar, it appeared that Local 19 held approxi- mately 28 signed authorization cards, or at least a majority. On about November 7, a secret ballot was taken among the employees in the unit and all employees, with the exception of one, voted that Local 19 be designated as the collective-bargaining representative for the employees in the unit. Between October 25 or 26 and Novem- ber 6, the Respondent Employer and the Respondent Local 19 engaged in negotiation and finally on November 6, 1961, a contract was entered into containing substantially the same terms contained in Local 19's standard contract form and providing for a 10-cent per hour increase in covered classifications over comparable classifications covered in the Local 219 contract which had expired on September 30 and terminated on October 25, 1961. The contract was signed on November 6, although it was made effective as of November 2. This agreement provides for a deduction of dues upon authorization by employees and contains a union-security clause. The checkoff pro- visions of that contract were put into effect during and were effective after Decem- ber 1961. THE RICHARD W. KAASE COMPANY 257 D. The alleged discriminatory discharges The amendment to the consolidated complaint issued March 22, 1962,5 alleges the discriminatory discharges of seven named employees on stated dates, namely, three on October 27, three on October 30, and one on October 31, 1961. These dis- charges or terminations are alleged to have been because the Respondent Employer believed that these employees had joined or assisted Local 219 or engaged in other activities for the purpose of collective bargaming or for other mutual aid or protec- tion, or because they failed or refused to join or assist Local 19, or because the Re- spondent Employer desired to dissipate the majority status of Local 219. The Employer asserts that each of these employees was discharged for good causes It is emphasized that each one of the seven employees discharged was a member of Local 219 at the time his employment was terminated. As noticed above, all employees within the unit were members of Local 219 and their dues had been paid through payroll deduction for the month of October 1961. According to the testi- mony of each of them, he or she was discharged under the following circumstances: Theodore Randles had been employed for about 13 years when, on October 26, about 3:30 p.m., he was told by Sklar that Kaase was going to close some of its stores and had no further need for him. He had no other advance notice of his termination. Rudolph Klun was discharged on October 27 by Sklar, who told him to clean out his locker; Klun asked Sklar for a week's notice and Sklar refused the notice but gave no reason for the discharge. Randles and Klun each had been working a 40-hour week. Frank Hamilton, who had worked for the Company since 1947, was told by Sklar on October 27 that because Kaase was closing two or three stores he would have to lay him off. Hence Moore was discharged on October 30 about 11 a.m. by Sklar, who gave no reason for the action. On October 30 Sklar telephoned Lohr and told him to come into the plant and pick up his clothes; Lohr asked the reason and was informed by Sklar that he was laying off some employees. Lohr had received no previous warning or notice of discharge. Willard Thompson also was discharged on October 30, without prior notice, Sklar informing him that that was his last day of work and instructed him to take his clothes and go home at the close of the shift; Thompson asked the reason for his discharge and Sklar replied that he had to do it, that he was sorry, but that he had to discharge Thompson. Anna Lutch was dis- charged on October 31 about 3:30 a.m., a few minutes before the end of her shift, by her foreman. She had been given no previous notice of discharge. She was told by Foreman Luther that Sklar had instructed her to pull her card; later that morning Lutch called Sklar at the plant adn asked why she had been discharged and Sklar explained that he was "liquidating" her job, told her that he had no personal feelings against her and that if she wanted to come to the plant "she would be wel- come to talk to him." Lutch had worked for Kaase for over 14 years, was a member of the negotiating committee of Local 219, and had been its stewardess for about 2 years before her discharge. Thompson and Randles, as well as Lutch, were at the time of their discharge either officers or stewards for Local 219. The testimony of Sklar in connection with these discharges is positive and direct and certainly is not based on inference or surmise. With regard to Rudolph Khtn, Sklar testified that Klun, when assigned to the mixing of doughs did not operate the mixing machine properly and disregarded temperature, time, and use control to the point where much of his production had to be thrown out. He said that when Klun was taken off the machine he looked for someone eligible for the job; that neither _ Thompson nor Lohr wanted it so that he on suggestion put Hamilton on the job-"31 put my white pants on again, I went up there, 1 worked with him. When 1 was with him I showed him what to do. The following week I wasn't with him and again we had trouble." The trouble mentioned was the running of bad batches with a re- sultant loss of dough. As to Thompson, Lohr, Hamilton and Klun he said that 5 As above noted the consolidated complaint issued on February 8, 1962 "The General Counsel points out that each of the seven was one of those in the office of the Company when Friedman and other union representatives were present and they each refused to sign an authorization card for Local 19 This in itself does not mean much, since all of the employees were required to call at the office for their checks on that day, and it is not shown that these were the only employees who refused to sign a Local 19 card. It will be noted too that the names of each one of these seven employees ap- pears on the list dated August IT. 1961, which Sklar claims shows the names of em- ployees imposed upon him by Local 219 on that day. Said Sklar: "This list wasn't prepared when they came into the office. We sat down to discuss the people When we Rtarted marking the men, they said , `give us the amounts and we will fill in their names.' This is what they did." 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insofar as the kuchen department was concerned, they could not or were not qualified to make the variety of pastry that was necessary for ordinary plant production; that production was affected and that that in turn affected sales. Sklar said that from the very day he returned to the bakery in July and during August he complained to the Union and asked that some of the people who had been discharged during the "cut down" of about August be rehired in place of incompetent help; he said during these times in August and after that when he demanded or requested the Union for more competent help, he was refused by Ezinski and Local 219: Q. Did you ask that some of the people who had been discharged be returned because they were more competent? A. That was our constant argument. "Bring me back the people you took out and take the bread bakers out." Q. And would he permit you to do this9 A. No. Q. Did they threaten you in any way? A. "If you don't keep these people, you have no people." Francis E. Hall, work leader in the bread and kuchen or sweet goods department, in regard to these four employees, confirmed their own testimony that they pri- marily were bread bakers and none had had any extensive experience in the kuchen department. Hall stated that in his opinion theJloss in production in his department was due to the inexperience of these four individuals and their inability to produce items required. The items eliminated, as shown from lists of products introduced by the Employer into the record, were items generally requiring hand skill. Each of these four men was basically a bread machine operator and not a hand-skilled baker so that, upon the refusal of the Union to permit Sklar to employ skilled men, pro- duction of some items necessarily was eliminated. Further with regard to Randles, Sklar said he constantly refused to perform work assigned to him by his supervisor and was a constant source of trouble in the production line; that his major function was to operate a cake depositor and his way of operating the machine resulted in the slowing down of the entire production line while he gossiped with other employees and did as little work as possible Anna Lutch was the subject of complaint con- cerning her ability as an icer or her performance as an icer. She testified herself that she refused to do the work assigned to her and told her foreman that he ought to do the work that he requested her to do because in her opinion he had the time to do it. According to Sklar: She refused to move from her job when she was through to go into shipping to utilize her time. In other words, it cost me 8 hours a day icing if there was icing to be done or if there wasn't icing to be done. There is no such thing in a bakery that it takes you 8 hours just to do the job every day. There are days when it is lighter, and when it is lighter days, there is also excess time there is is always something else for you to do. He said that when he first attempted to discharge Lutch, Mike Ezinski and John Ezinski told him "this is our bakery, we are not going to let you do what you want. This is our bakery, our people." The Ezinskies told Sklar that he was picking on Mrs. Lutch because she was an official of the Union, and refused to consent to her discharge. Hence Moore, a 69-year-old employee, according to Sklar, was kept on the job by the Union in order to qualify him as a 15-year employee eligible to receive a union pension. Moore was a panwasher and the testimony in effect given by Sklar is that he failed to do a proper job and that when he was employed on the washing machine, he did not do an acceptable job, which resulted in the slowing down of the washing of the pans; that since his discharge. four men, two on each shift, one feeding the machine and the other man at the other end of the machine catching the pans and stacking them, has resulted in four men on two shifts doing the same work as compared to eight when Moore was employed. Further, according to Sklar the foreman, and the work leader, Moore frequently came to work under the influence of alcohol, and when Sklar attempted to have him discharged for inefficiency, the Union refused to permit Sklar so to do. The testimony of Hall in general corroborates the testimony of Sklar with respect to the abilities of Lohr, Klun, and Thompson. He said that there were approxi- mately 13 employees under his supervision in the kuchen or sweet goods department and that Hamilton, Lohr, Klun, and Thompson primarily were engaged in the mixing or production of bread, in the bread department, assisted only part-time in the kuchen or sweet goods department and that no one of these men was fully qualified for the work in the kuchen department. In substance, the testimony of THE RICHARD W. KAASE COMPANY 269 Sklar and Hall shows to me that Sklar had justifiable reason to complain to the Union about the quality of work being done by the men mentioned, the recalcitrance of Mrs. Lutch and her refusal to follow orders and to perform work assigned to her, and the incompetency and inefficiency of Moore as good cause for their discharges. Sklar was most emphatic concerning his difficulties with the Union regarding his efforts to secure competent help in place of those men whom the Union insisted be permitted to work. His testimony in these respects remains uncontradicted upon the record, it seemingly being the position of Local 219 officials, during these times, that the grievances presented by Sklar were not to be acknowledged and that if Sklar insisted on replacing employees, the result would be a strike, General Counsel refers to testimony which "clearly establishes the employer's antipathy toward Local 219 and its adherents." There is no question in my mind but what there was antipathy on the part of Sklar toward the union officials and he made no bones about expressing his feeling regarding union leadership. As an example, an episode is cited which occurred on November 7, 1961, when John and Mike Ezinski, accompanied by Mrs. Lutch, appeared at the plant to "service their members" and Sklar is accused of using vulgar and abusive language and telling them to get out of the bakery or they would be thrown out. Again, Sklar is said to have stated on October 25, 1961, that he would give $5 for a drop of Ezinski's blood; and that Sklar described Ezinski, the Local 219 president, as a "prize idiot." The fact that Chitlik said that he has a general distasteful memory of his association with union officials and because he is said to have said that he does not respect them because of their lack of knowledge and their complete utter stupidity, is dem- onstrated animus or antipathy toward the Union. That is clear enough on the record." My resolutions of questions of credibility herein necessarily must be made from a gallimaufry of conflicting testimony. A great deal of what Sklar testified to con- cerning the reason for the discharges of the seven persons involved herein remains uncontradicted upon the record, and in opposition to his testimony, I am impliedly requested by the General Counsel to draw inferences to overcome positive testimony. It is true that Sklar was a vigorous and aggresively partisan witness for the Company, as reflected by his testimony. The testimony of each of the seven alleged discrimi- natees is not impressive. I am inclined to believe their names were added to the complaint by amendment made some 6 weeks after the issuance of the complaint as afterthought. The General Counsel has failed to carry the burden of proof to an extent sufficient to permit me to find the discrimination alleged against any one of these seven em- ployees as set forth in the complaint. The record clearly demonstrates that manage- ment had been trying to get rid of these people for a long period of time on the grounds of inefficiency and failure to perform their duties properly, and were blocked by representatives of Local 219. CONCLUDING FINDINGS 1. The meeting called by Kaase management on June 10, 1961, at which Chitlik addressed the employees concerning the financial condition of the Company and suggested that the Company needed financial relief in the way of reduction in wages and otherwise outlined the financial condition of the Company, did not constitute in itself a unilateral calling of a meeting of the employees by management without knowledge of the representatives of Local 219. The latter were present at the meet- ing and were afforded full opportunity then to participate in the discussion, after they had received prior notice of the meeting from management. I can find no threats made of loss of employment should the membership or Local 219 representa- 7 The General Counsel In his brief refers to the failure of proof in the proceedings be- fore the district court judge regarding the profit-and-loss situation of the Company during the times mentioned above ; the General Counsel claims a conflict in testimony given by Sklar in the injunction proceeding and the testimony given before me, and says that Sklar testified In the injunction proceeding that the written agreement as to the number and names of employees who would be retained (the August 17 memorandum) was agreed to voluntarily by Sklar. I cannot read all of this into the record as a whole It is true that isolated statements or answers to questions taken by themselves might tend to show what the General Counsel claims; however, taking the cold record of the proceedings be- fore the United States district judge together with the testimony heard by me, I am inclined to think and therefore find that the position of management, Including that of President Sklar, was consistent throughout the whole dispute which began shortly after new management took over In February 1961, and continued down to and after Novem- ber 7, 1961. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives refuse to accede to the suggestion of the Company for a reduction in wage rates. The clearest interpretation shows not a threat, but a statement of what might happen. The notice posted regarding the closing of the plant and the termina- tion of the employees because of the cessation of baking operations did not in itself constitute a threat of closing the plant in the event Kaase's employees or Local 219 refused to consent to reductions in wages; moreover, the proof herein does not show that Kaase ceased production of Saturday work and instituted a permanent discon- tinuance of normal Saturday production of goods. The facts imparted to the em- ployees in the presence of the officials of Local 219 on that day simply constituted the views and opinion of management, and I can find no expression of threat or reprisal or force or promise of benefit directed toward the employees; on the other hand, I find that management adopted a proper course to inform the employees con- cerning matters which Local 219 officials apparently had not conveyed to the member- ship. I think the comment or expression of views made by Chitlik and Sklar were privileged within the meaning of Section 8(c) of the Act. I find that Kaase did not disregard Local 219 as the exclusive collective-bargaining representative of its employees by initiating that meeting. 2. I find that Kaase did not refuse from on or about October 25, 1961, and thereafter to recognize and bargain collectively with Local 219 as the exclusive collective-bargaining representative of its employees in an appropriate unit at a time or times when Local 219 was the duly designated collective-bargaining representative of the employees in an appropriate bargaining unit. Among the cases relied upon by the General Counsel in support of these allegations of the complaint are Servette, Inc., 133 NLRB 132, and Small Tube Products, Inc., 134 NLRB 867, wherein the Board has adhered to the principle that the expiration of a contract containing a valid union -security clause does not terminate an em- ployer's duty to bargain with the contractual representative of the appropriate unit, especially where the union retained its majority beyond the expiration date. As the Board said, in Small Tube Products: . However, were we to direct ourselves to this contention , we note that both the 1958 and 1959 contracts contained valid union -security clauses ; that in view thereof, and in the absence of contrary evidence , it is fair to assume that, with the possible exception of three probationary employees , all of the employees who went on strike on October 16, 1960 , were subject to the union-security requirements and were, therefore, members of the Union; . . . [Emphasis supplied.] In the instant case, the contract was terminated by final notice by Local 219 to Kaase prior to November 2, 1961 , the 60-day notice having been given on July 28, and the final 5-day notice on October 24, 1961. Final dues were deducted under the contract for the month of October and not thereafter, so that after October 31, by the action of Local 219, Kaase was freed from contractual obligations in respect of deduction of dues and union security. The majority status of Local 219 within the unit thus lost the support of these two clauses, and the intrusion of Local 19 into the scene casts further doubt as to the applicability of the Servette, Inc., and Small Tube Products principle here. 3. It is found that Kaase and the Respondent Union, Local 19, violated Section 8(a)(1) and 8(b)(1)(A) of the Act in the manner in which and the place where they engaged in joint solicitation of employees to sign union authorization cards in favor of Local 19. A union has no more right than an employer to attempt to arrogate to itself a responsibility that Congress has delegated to the Board when there is a real question concerning representation of employees existent. Local 404, International Brotherhood of Teamsters, etc. (Brown Equipment and Manufacturing Co., Inc.), 100 NLRB 801. The authorization cards so obtained by the joint solici- tation or the solicitation of Local 19 representatives only, resulted in signed cards which in themselves were meaningless. An employer cannot assume to judge for itself upon a showing of authorization cards which of two contending unions is a statutory representative of the employees. Novak Logging Company, 119 NLRB 1573. 4. The Respondent Kaase and the Respondent Union, Local 19, violated Section 8(a)(1), (2), (3), and (5) and 8(b)(1) (A) and (2) of the Act, respectively, by jointly soliciting membership in Local 19, and thereafter executing and maintaining a collective-bargaining agreement containing a union-security clause implemented by checkoff provisions and limiting benefits to members of Local 19, at a time when Local 19 had no proven representation interest in the bargaining unit and did not represent a majority of the employees in such unit The collective-bargaining agreement entered into between Kaase and Local 19 on November 6, 1961, was, it is said, ratified by the employees by secret ballot on THE RICHARD W. KAASE C0=,1PANY 271 November 18, 1961. According to counsel for Local 19, dues have been checked off and paid to Local 19, health and welfare, hospitalization, and pension payments have been made by Kaase to entities separate from Local 19, which administer the funds in accordance with the agreement, and since December 1, Local 19 representa- tives "have been servicing their employees and administering the contract at the Kaase plant." At the time the November 6, 1961, contract was made, Kaase and Local 19 were well aware of the conflicting claim of Local 219 regarding representation. "The existence of unfair labor practices permits the inference that the employees did not have that freedom of choice which is the essence of collective bargaining." Interna- tional Association of Machinists etc. v. N.L.R.B., 311 U.S. 72, 79. See also Paul M. O'Neill International Detective Agency V. N.L.R.B., 280 F. 2d 936 (C.A. 3), enfg. 124 NLRB 167; Duralite Co., Inc., 132 NLRB 425. Because the collective-bargaining agreement executed by Kaase and Local 19 contains provision requiring Kaase as the employer to make contribution to the health, welfare, and pension plan covering members of Local 19 and restricting benefits to members of Local 19 in good standing and their families, Kaase has encouraged membership in Local 19 and discouraged membership in Local 219 in violation of Section 8(a)(3) of the Act. Local 19 is thereby in violation of Section 8(b) (2) of the Act. Duralite Co., Inc., supra; Northeast Coastal, Inc., 124 NLRB 441; Jandel Furs, 100 NLRB 1390. See also Midwest Piping & Supply Co., Inc., 63 NLRB 1060. In Celanese Corporation of America, 95 NLRB 664, 672, the Board held that a certified bargaining agent has the benefit of a presumption that such status continues but that this presumption is rebuttable in the presence of unusual circumstances at any time and, even in the absence of unusual circumstances, when the certification is more than 1 year old. In the instant case, any presumption that Local 219 had continuing representation rights as collective-bargaining agent after October 25, 1961, is rebutted by an apparent, if not real, showing by Local 19 that it was the collective-bargaining representative of the employees of Kaase in the bargaining unit. 5. I find that the discharge of employees Thompson, Randles, Lutch, Lohr, Moore, Klun, and Hamilton in the month of October 1961 was in each instance for apparent good cause and that the General Counsel has failed to prove by the preponderance of evidence that these employees were discharged for the reason that they had or that Kaase believed they had joined or assisted Local 219 or engaged in other activities for the purpose of collective bargaining, or because they failed or refused to join or assist Local 219 or because the Respondent Employer acted with an intent to destroy the majority status of Local 219. 6. It has been found that the collective bargaining agreement between Kaase and Local 219 terminated and became of no force and effect after October 25, 1961; and it further is found that the collective agreement of November 6, 1961, between Kaase and Local 19 is null and void and of no force and effect because at the time of the execution of that agreement and the entering into thereof by the parties, Local 19 was not the duly designated representative of a majority of the employees within the appropriate unit. 7. All bakery employees including helpers, shipping and receiving department employees, porters, maintenance employees, and work leaders, but excluding sales employees, truckdrivers, office clerical employees, professional employees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining for these employees of Kaase. 8. It is found that to effectuate the purposes of the Act and to afford the employees of Kaase within the above-named appropriate unit the right to self-organization and to bargain collectively through a representative of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, the Board should at the earliest appropriate time order an election to be conducted among the employees in said unit to allow them to determine whether they desire Local 219 or Local 19 or any other bargaining representative to represent them for the purposes of collective bargaining. (Local 219 was certified as the representative of the employees in the appropriate unit on April 18, 1960; the injunction granted by Judge Green on May 23, 1962, requires both Kaase and Local 19 to abandon the collective-bargaining agreement which they entered into on November 6, 1961, requires Kaase to withdraw recognition of Local 19 as the exclusive bargaining agent and to refrain from giving support and assistance to Local 19 or any other union, and denies the request of the General Counsel for an order to compel Kaase to bargain collectively with Local 219 as the exclusive bargaining representative of its employees, pending final disposition by the Board.) 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of the Respondent The Richard W. Kaase Company, and the Respondent Bakery and Confectionery Workers International Union, Local 19, Independent, set forth in section 111, above, which have been found to be violative of the Act, occurring in connection with the operations of the Respondent Employer 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. V. THE REMEDY Having found that the Respondent Employer and the Respondent Union have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent Employer and the Respondent Union entered into a collective-bargaining agreement after recognition by the Respondent Employer of the Respondent Union, and did so during the pendency of a question concerning the represetation of the employees covered thereby, and having found that by such conduct the Respondents have interfered with, restrained, and coerced said employees in the exercise of their right freely to choose their own bargaining representative and Respondent Employer has accorded unlawful assistance and support to the Respondent Union, therefore, in order to dissipate the effect of the Respondents' unfair labor practices, I shall recommend that Respondent Employer be ordered to withdraw and withhold all recognition from Respondent Union and that Respondents cease giving effect to the aforementioned agreement, or to any renewal or extension thereof, until such time as Respondent Union shall have been certified by the Board as the exclusive representative of the employees in question. By maintaining said agreement which contains a union-security clause implemented by a dues checkoff provision, the Respondents have coerced employees who had not become members of Respondent Union prior to the execution of the agreement to join said Union and assume the monetary obligation of members. Therefore, in order to nullify the coercive effect of said agreement, I shall further recommend that the Respondents be ordered, jointly and severally, to reimburse those employees who became members of the Respondent Union after the execution of the aforesaid agreement for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership in the Respondent Union. CONCLUSIONS OF LAW 1. The Richard W. Kaase Company, Respondent, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. American Bakery and Confectionery Workers International Union, Local 219, AFL-CIO, and Bakery and Confectionery Workers International Union, Local 19, Independent, are labor organizations within the meaning of Section 2(5) of the Act. 3. All of the employees of The Richard W. Kaase Company employed in its bakery including helpers, shipping and receiving department employees, porters, maintenance employees, and work leaders, but excluding sales employees, truck- drivers, office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Respondent Employer violated Section 8 (a) (1) and the Respondent Union violated Section 8(b) (1) (A) of the Act by making statements in the nature of threats and coercion to the employees of the Employer in conjunction with their joint solicitation of said employees to sign union authorization cards in behalf of or to become members of the Respondent Union. 5. The Respondent Employer violated Section 8(a)(1), (2), and (3) and the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act, by jointly soliciting membership in the Respondent Union and thereafter executing and main- taining a collective-bargaining agreement containing a union-security clause imple- mented by checkoff provisions and limiting benefits to members of the Respondent Union at a time when that Union had no representation interest in the bargaining unit and did not represent a proven majority of the employees in such unit, and did not represent an uncoerced majority of the employees in that unit. ADAMSON COMPANY, INC. 273 6. The Respondent Employer has not violated Section 8(a)(5) of the Act by refusing to bargain in good faith with American Bakery and Confectionery Workers International Union, Local 219, AFL-CIO, as alleged in the complaint. 7. The Respondent Employer has not violated Section 8 (a) (3) of the Act as alleged in the amendment to the consolidated complaint. [Recommended Order omitted from publication.] Adamson Company, Inc. and United Steelworkers of America, AFL-CIO. Case No. 8-CA-2830. March 8, 1963 DECISION AND ORDER On November 15, 1962, Trial Examiner George L. Powell issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached, Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report together with a supporting brief.' 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, Fanning, and Brown]. 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 Interme- diate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommenda- tions 3 of the Trial Examiner except as noted herein. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.4 ' The Respondent's request for oral argument before the Board is hereby denied as the record, the exceptions, and the brief adequately present the issues and positions of the parties. 2 We agree with the Trial Examiner that the Respondent violated Section 8(a) (1) by unlawfully interrogating its employees concerning their union activity, by threatening to close its plant if the Union came in, and by threatening to discharge employees for engag- ing in union activity. However, we find it unnecessary to pass upon the Trial Examiner's additional finding that Breckenridge's false statement to the assembled employees that he had received orders from Respondent's president to fire Bodey for tearing up trucks also violated Section 8(a) (1) of the Act. Such an additional finding would not affect the scope of our Order herein. 3 Member Rodgers, for the reasons set forth in his dissenting opinion in Isis Plumbing & Heating Co., 138 NLRB 716, would not require the payment of interest on the backpay award provided for herein. 4 The appendix attached to the Intermediate Report is hereby modified by adding the following immediately below the signature line at the bottom of the notice: NoTID.-We will notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. 141 NLRB No. 17.