Banner Biscuit Co.

BANNER BISCUIT CO. 1133 wages, hours of employment , or other terms and conditions of employment, and, if an understanding is reached, embody it in a signed agreement. The bargaining unit is: All of our regularly employed drivers excluding all office clerical employees, casual employees, guards, and supervisors as defined in the Act. WE WILL NOT interrogate employees as to their union interests and activities in a manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. WE WILL NOT threaten employees with economic reprisals or promise them economic benefits for the purpose of influencing their union activities or sympathies. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization , to form, join, or assist Drivers, Salesmen , Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union , Local No. 695, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen, and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such right may be affected by the provisions of Section 8 (a) (3) of the Act, as amended. HEICK MOVING & STORAGE, INC., Employer. Dated-------------------' By------------------------------------------- (Representative ) (Tit1e1 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, Second Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin, 53203, Telephone No. 272-8600 , Extension 3860, if they have any questions concerning this notice or compliance with its provisions. Banner Biscuit Co. and American Bakery and Confectionery Workers International Union , AFL-CIO. Case No. 17-CA- 2313. January 19,' 1965 DECISION AND ORDER On October 23, 1964, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, Respondent filed exceptions with a sup- porting brief to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. _ The Board has considered the entire record in this case, including the Trial Examiner's Decision and the exceptions and brief of the Respondent, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 150 NLRB No. 111. 1.134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER r1'ursualit to ' Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner and orders that the Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION ,The complaint, herein (issued April 24, 1964; charge filed October 10, 1963), as amended, alleges that the Company has violated Section 8(a)(3) of the National Labor Relations Act, as amended, 73 Stat. 519, by discharging Helen Allwood on or about September 30_1963, and failing and refusing to reinstate her, because of her union membership and concerted activities; and Section 8(a)(1) of the Act by said alleged acts and by, interrogating and threatening employees in connection with union activities. The answer denies the allegations of violation and alleges that Allwood was discharged because she engaged in physical violence and arguments with other employees, uttered abusive and derogatory remarks, sought to exercise authority over others, causing employees to become upset and to quit, created dis- sension and affected morale, improperly labeled merchandise in violation of work rules, and spread false rumors about the Company's profit-sharing plan. A hearing was held before Trial Examiner Lloyd Buchanan at Carrollton, Mis- souri, on July 28 and 29, 1964. Pursuant to leave granted to all parties, briefs have been filed by the General Counsel and the Company. Upon the entire record in the case and from my observation of the witnesses, I make the following:, FINDINGS OF FACT (WITH REASONS THEREFOR) 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED On behalf of the Company it was declared at the hearing, and I find, that it is a Delaware corporation authorized to do business in the State of Missouri. It was admitted and I find that the Company is engaged at its plant in Carrollton, Missouri, in the manufacture of bakery goods; that it annually receives at said plant, from points outside the State of Missouri, goods and material valued at more than $50,000, and ships from the plant, to points outside the State of Missouri, goods and materials valued at more than $50,000; and that it is engaged in commerce within the meaning of the Act. It was admitted and I find that the Union is a labor organization within the meaning of the Act. H. THE UNFAIR LABOR PRACTICES A. The alleged independent violation of Section 8(aXl) Most of the acts alleged to have constituted interference come within the proscrip- tion of Section 10(b). The uncertainty of various dates as testified by the General Counsel's witnesses itself introduces that proscription. With respect to interference described by Allwood- as having occurred sometime in April,' it not being clear whether given instances were beyond or within the statutory period, it cannot be said that the General Counsel has in those instances sustained the burden of showing denials of'the facts alleged. Thus no finding of violation will be based on Allwood's testimony concerning interrogation and various remarks in February or an alleged threat which she placed between the middle of February and the end of April, saying that she thought it was in April. Since the cutoff date is April 10, and the election was held, on May 1, exactly 3 weeks later, it would uncertainly 2 appear that a con- versation", between herself and Anderson, at that time vice president and general manager and now . president of the Company, about 2 or 3 weeks before the election falls within the statutory period. As much may be said of remarks by Ander- son to employee D. J. Winfrey, which the latter placed about 2 weeks before May 1. 1 All of these events occurred in 1963. 2 Referring to various meetings In an attempt to fix dates, the General Counsel declares that "it is clear they were held after April 10th." It Is not at all clear . While I am quite willing to recognize his acumen in general , he does not Indicate the basis for his perspicacity In this connection. BANNER BISCUIT CO. 1135 It is.not altogether clear that these remarks constituted a threat. But in view of the other findings herein and to minimize the area of dispute, no finding of violation will be based on this alleged threat or on Anderson's question as to the number who attended the union meeting the night before and his indicated knowledge of the meeting. Anderson denied that he asked the question and that Allwood replied that the meet- ing was at her home. But on the question of company knowledge of her union activi- ties, we can consider the fact that she was the union observer at the election and that, as she was sobbing the next morning, Anderson told her not to take the loss so hard. If Allwood felt disappointed, even humiliated, there is no question but that the Com- pany knew of her leading role in support of the Union. I do find violation in Anderson's asking Allwood, after he had called her into his office about 2 days before the election, what she wanted. Such a question under the circumstances tends to limit employees' freedom of choice and suggests an offer of benefit as a substitute for selecting the Union. The threat by McNiece, plant superin- tendent and now vice president, to Mrs. Winfrey in August (alleged as in the first part of May) that the best thing for her and her husband would be to leave the Union alone, and his questions whether she or her husband had seen the union man in town, tend to interfere with employees' protected concerted activities and constitute unlaw- ful threat and interrogation as alleged. As Mrs. Winfrey sought to avoid the discus- sion, McNiece's statement was no mere expression of opinion without threat. B. The alleged violation of Section 8(a)(3) Witnesses testified in suspiciously general terms, or without such details as would indicate transgression, to a constant bickering after the election on May 1, and up to the time of Allwood's discharge on September 30. But when they undertook to describe such 5-month bickering, they quite as often described a converse situation: so far from arguments and bickering, they were allegedly upset because Allwood said nothing to them; she allegedly talked and whispered to some of the others, giggled, and then would look up so that these complaining witnesses felt uncomfortable and thought that she was talking,about them. Had the evidence shown that Allwood was in fact talking about various employees and causing trouble other than annoyance over her union activities which many did not favor, there might be warrant for sustaining the Company's discharge. But to base the discharge on the "feeling" that she was talking about others is to claim an all too convenient but inadequate defense. Thus we were regaled with such trivialities as employee Bitzenberg's testimony that on one occasion Allwood and her brother changed places on the line, "which they weren't supposed to do"; Floorlady Evans noticed this after she had come up to ask Bitzenberg about the cookies, and asked, "What is going on over there?" to which Bitzenberg replied, "I don't know. I think they just changed for a few minutes"; 3 after Allwood and her brother had been told to get back, Allwood giggled and whispered to others; and when another girl asked Bitzenberg what this had gained her, the latter, not denying that she had in fact done it, replied that she thought that All- wood said that she had told the supervisor; she now told us that she had not. Bitzenberg referred to "several small instances that occurred, just little minor things that ordinarily wouldn't seem to amount to too much, but it was just to get under [her] skin and cause trouble." One such instance involved a stool which had been standing behind Allwood, who had not been using it; Bitzenberg asked another girl to get her the stool and she used it awhile; when Bitzenberg got up from the stool, Allwood asked the other girl to return it, and Bitzenberg said that she was not through with it, suggest- ing that Allwood use a chair which was available. We were spared the denouement of this momentous situation: whether the stool was returned or whether Allwood used the chair, we shall never know. We were not spared Bitzenberg's conclusion: "She wanted that particular stool I had just to start trouble." Bitzenberg also told us that there are arguments all the time, before and since Allwood's discharge, over stools. If since October 1, as we were repeatedly told, the girls sing, laugh, and have fun while working (there are some arguments but, according to employee Hill, also called by the Company, not as many as before), their earlier state of being mad at one another appears to have been a reciprocal one. (General Counsel's witnesses testified that the atmosphere did not suddenly change after Allwood was discharged.) If Allwood's "friends" did not like something, she allegedly would "cause some disturb- 8 The suggestion in these words that Bitzenberg was trying to minimize the situation as she spoke to Evans is contrary to her patently biased and partisan manner as she testified and to her volunteered statement that they "weren't supposed to" do that. 775-692-65-vol. 150-73 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance over it and say it wasn't fair and she would get something done about it." This latter suggests at least the possibility that on occasion there was merit to Allwood's position. If some of the Company's employee witnesses objected to Allwood's going over the floorlady's head, they were assuming a concern which the Company itself has not declared. Citing a series of incidents, which, we shall consider, McNiece depicted a contrast between timorous silence as the employees feared Allwood's wrath, and a virtual jubilee atmosphere on Saturdays, when she did not work, and after her discharge. On the other hand a great deal of,the testimony by employees called by the Company is quite to the contrary: They emphasized their discomfort as they thought that Allwood was whispering about them, a far cry (no pun intended) from arguments or other fear-producing activity. Whatever the Company's attitude toward Allwood as leader of the union adherents 5 months after the election (we recall McNiece's threat in August, and employee Hedrick testified to Anderson's reference in July to the "union trouble"), the difference between the pro- and anti-union employees was reflected in a running feud Whatever the relationship among the employees before, it was clearly exacerbated after the election. On the one hand, as we have seen, Allwood took the loss very hard; on the other, the antiunion employees maintained their attitude. The result was that they spoke to one another "just when [they] were fussing." If Anderson had hoped that they would now be "a happy family," infra, he was to be disillusioned. Allwood was not ready to "forget" the Union. As the Board has recently reiterated, "an employer who knowingly acquiesces in the exclusion of employees from its plant by an antiunion or rival group will be regarded as having constructively discharged such employees in violation of Section 8(a)(3)."4 How much clearer the violation where the employer affects the dis- charge, citing "dissension" among the employees! The Company's efforts to show that there was less "tension or fussing" after Allwood was discharged underscores its reliance on an improper defense. We are told that employees were no longer "afraid" to • discuss various conditions. We must distinguish between lawful, if annoying, assertiveness in connection with protected concerted activities, which Allwood clearly exhibited, and an attitude which manifests itself in poor work performance and with which she is not charged. Anderson admitted that he had indicated opposition to this Union, but placed his various statements and meetings, which he called, prior to the statutory period except for a meeting with the employees on April 30, which he called to tell them why they did not need a union. Thereafter, apparently on May 2, after he attempted to console Allwood, he made a speech to all of the production employees in which he told them that he would not permit supervisors or rank-and-file employees to try to find out how anyone had voted; he urged them to forget the election, get back to being a happy family, and make cookies. It appears from Anderson's remarks that even before the election all had not been sweetness and light although he did not at this time place the blame on Allwood. This is in marked contrast to the efforts noted to indicate a lack of harmony (we recall, in fact, that there was no singing at all) and a constant bicker-' ing which began after the election and continued until Allwood's discharge. • After thus describing his speeches and remarks to Allwood, Anderson testified that on September 30, after the decision had been made to discharge this 8-year employee who ranked sixth in seniority among all of the employees, he asked her to resign; when she refused, he said that he would have to let her go, giving as his reasons the turmoil she was creating, loss of production, and the bickering that was going on. Asked at the hearing to state the reasons for the discharge, he added that, when All- wood attempted to adjust certain bars on September 25 (according to a posted rule, this was to be done by the maintenance man), he "figured this was it." Despite her alleged shortcomings, serious enough to warrant her discharge, Anderson testified that, although he spoke with Allwood frequently and casually throughout this period, only once did he complain to her about anything. This was on August 1, in connection with her criticism of the profit-sharing plan as applied to employee Hill, to which we shall refer infra. Yet Allwood was discharged without further criticism or reprimand. This contrasts with the 1-day suspension given Bitzenberg for stealing cookies and the reprimand given Winfrey for the same offense. Before further detailing the pros and cons, we should note at least a few items which unfavorably reflect on Anderson's credibility and thus on his attempt to justify the discharge. In explanation of his charge of bickering, he testified that girls would not talk to each other for weeks on end. Challenged to explain his awareness of this, he first referred to a "sixth sense" and then testified that he could not say who was not Brewton Fashions, Inc., 145 NLRB 99. BANNER BISCUIT CO. 1137 talking to whom but that reports had been made to him by several supervisors; as he proceeded to name these, he concluded that all of the supervisors had complained to him about Allwood causing trouble in the plant, although as we have just seen he never spoke to her about this or any of these many complaints. Again, Anderson appeared at first to be quite uncertain as to who first told him about Allwood spreading rumors concerning the profit-sharing plan. But having named McNiece, he continued with full assurance to relate what McNiece told him in this connection. Further, having testified that one of the reasons for discharging Allwood was that employees had left and were going to leave because of her harassment, he later told us that there were no more than the average number of quits between the election and the date of Allwood's discharge. Hardly persuasive was Anderson's subsequent attempt to recover as he testified that some oldtimers were_ among those who had quit; his conclusion or deduction was that these left "to collect profit sharing" and to avoid "the wrangling that was going on." Thereafter, as he named several of these who had quit, he testified variously that, while he would not say that each of them had mentioned Allwood, he knew whom they were talking about; then that each had mentioned Allwood, and finally that all but one had. Although he cited these quittings as instances of employees who could not stand the bickering which he charged to Allwood, he testified also that some of them quit after her discharge! With respect to one of these McNiece, also describing the happy situation which prevailed after Allwood's discharge, testified that Calvert three or four times in June or July threatened to quit. She apparently did quit in October. Interestingly, McNiece injected a new note, not sounded by Anderson, with the statement that after Anderson told Allwood that she was discharged, she declared that she was going to quit anyway. To counsel's credit, this was not thereafter pursued by the Company, and I do not credit it. McNiece also, and faithfully, cited an incident on September 25. But while he repeated reference to an adjustment by Allwood, his version was that Evans, the head floorlady, reported to him that Allwood had spent 5 minutes talking to another employee while pretending to adjust a jig; McNiece "studied for a few minutes" and then spoke to Anderson about it, recommending that Allwood be dis- charged, and action was taken on September 30.. While Anderson did not include it when asked to list the reasons for discharging Allwood, another alleged reason was that Allwood and another employee (these being the two who discussed it with Anderson; other employees were as aware of it) "would let" some 2,500 pounds of cookies go through without the necessary flavoring. Allwood mentioned this incident during her talk with Anderson on August 1. Accord- ing to Allwood, she told Anderson on August 1 that she and another employee had noted the absence of flavoring and had reported it to Stanley, a forelady who was temporarily on that line; that Stanley had told the machine operator and the cream mixer, and that the latter had replied that the flavoring was in it. - McNiece also charged Allwood with dereliction in this connection. In marked contrast to the alleged seriousness of Allwood's role in permitting these cookies to go through (she was here presumably expected to be officious indeed and to go over the head of a leadman or supervisor), is the fact that not until he was cross-examined did McNiece state that he later told the mixer to be more careful-and this after customers complained about the 2,500-pound batch. Anderson testified that after the complaints were received, he went over this and other production problems with all of the super- visors and foreladies. Despite this and testimony by Mrs. Winfrey and Sprinkle, another employee, that this occurred in June and that Stanley was informed at the time, the latter testified that she did not recall the incident and that no one had ever told her about it; she first heard of it at this hearing. The contradictions mount as McNiece testified that he himself mentioned this to Stanley. During this same discussion of August 1, Allwood mentioned to Anderson that she had heard that she was charged with cussing out DeMint, another employee on the line. (Whatever may be said concerning Allwood's mentioning these matters, it is clear that Anderson did not consider it necessary to do so.) She explained that DeMint was putting cookies on the wrong side of the conveyor; Allwood asked her to put them on the correct side and, when DeMint gave-her a blank look and kept on as she had before, returned to her machine, exclaiming, "Well, I'll be damned. I will never say anything again, if they come down here upside down." Thus informed, Anderson allegedly told Allwood, "No, I wouldn't say you cussed her out." While McNiece testified that DeMint came into his office crying and very upset, and told him that after Allwood spoke to her, she "turned around and said, `God damn it, she wouldn't even do it,"' Anderson did not dispute Allwood's version or testify at all about the incident according to his information. • - - If this incident and Qllwood's alleged changing of the bars are the basis for the defenses that Allwood sought to exercise authority over others, causing them to become upset and leave the Company's employ (McNiece testified that he called 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DeMint back 3 or 4 days later), not only did Anderson not criticize Allwood concern- ing this or suggest that she be less officious, but he did not even include it as a subject which he discussed with her during that sole occasion of criticism, on August 1. However Allwood's shortcomings are depicted, we have noted that only on August I did Anderson undertake to criticize her. As he put it, he called Allwood and another employee into his office, charged them with spreading a false rumor concern- ing Hill's profit-sharing setup, and "explained" that the Company was not applying a new rule. With respect to this single instance of criticism, the explanation was one to which the employees were entitled since, as Anderson found it necessary to point out, Hill had been called in for a few nights only, and the rules had therefore not been breached. By the further admonition that these employees not talk against the profit- sharing plan, Anderson could be found to have interfered further with employees' concerted activities. Their interest in this term of employment protects discussion of it and of what appeared to be an encroachment. Whatever Anderson's annoyance with Allwood for such activity, he could not lawfully discharge her for it. Distinguishing between the reasons for the discharge which Anderson gave to Allwood and at the hearing, and the defenses set up in the answer, it was clear at the hearing that the action taken against Allwood was prompted by the Company's animus or objections to the Union which were indicated in the interference found, supra, in interference outside the statutory period, and in various documents which the Com- pany issued or sponsored but which are not claimed to be violative. In contrast to the mild admonition given the mixer, and the reprimand or suspension given to employees who stole, Allwood was not even warned that she was considered responsible for the allegedly serious bickering and would be discharged for it. If Anderson listened to another employee, who charged Allwood with bickering, he never spoke to Allwood about it. Only review of McNiece's testimony can reveal how exceptionally general and imprecise he was in his characterization of untoward conditions. Anderson's testi- mony was similarly indefinite and reflected his own attitude toward the Union and Allwood more than it did hers toward the work. When he went beyond generalities, his statements lacked support, as we have seen. We have already considered Anderson's stated reason to the effect that Allwood had and was causing employees to quit. As for the claim that the Company was "not getting efficient production because of her continued tactics," if a drop in production over a period of several months were in fact connected with an employee's "tactics," the Company would not have delayed action against her until a relatively minor inci- dent which, as we have seen, was variously described by the two company officials. Anderson having declared that the Company was "not getting efficient production,'; the company treasurer produced a summary of the production records for the third and fourth quarters of the year. But this left several questions. We were told that the busy season runs from May 30 to Labor Day, thus covering two-thirds of the third quarter, and that the unit is run more frequently during the busy season; also that the rate of production is higher when employees are not tired. While the rate when the unit was run was slightly less than 4 percent higher during the later quarter, the unit was run 16 percent longer dur- ing the earlier for large cookies and almost 50 percent longer for medium sized cookies. (On the latter, the production rate difference was negligible.) We were also told that while the employees' attitude on another line was good and they did their work well, they did hear gossip from Allwood's No. 1 line. The evidence is less than convincing that there was a lower production rate which could be ascribed to the employees' attitude and that such attitude was properly chargeable to Allwood. Nor should we overlook the fact that it takes longer to cool cookies before they are packed, and that the process is therefore slower, in the summer. In short, it appears that Allwood was not guilty of the derelictions with which she has been charged, and further that the Company did not itself consider these to be reasons for discharge. The reasons were in fact pretexts. If Allwood, a good employee, was unduly affected by her partisanship, the Company did not find serious shortcomings in her work as distinguished from such partisanship. The latter does not protect an employee against discharge for poor work or conduct or other nondiscrimi- natory reason. But such reason has not here been indicated. As for the attitude of other employees, which was contrary to Allwood's marked partisanship in the face of an opposing majority and which was here generally mani- fested in a light-hearted manner and singing, or the absence of these, the election result indicates that union supporters were in the minority. Where pro- and anti- union factions exist, it is not sufficient to cite bickering; an employer may not attempt thereby to justify discharge of the leader of one faction. So far from being able to charge Allwood with improperly causing bickering and bad feeling, one of the Com- BANNER BISCUIT CO. 1139 pany's witnesses testified that another employee taunted Allwood shortly after the election: "I thought I would see you go out the_ door." Allwood replied, "Don't underestimate Allwood." No more than by direct insistence that a union supporter be discharged may other employees by attitude and subtle means compel a discharge. Placed in such a situa- tion, an employer, if it does not itself object to a union, can only hope that bygones will be bygones, as Anderson urged. Action can be taken against an employee whether she be pro- or anti-union, but only for nondiscriminatory reasons. This truism can be regarded as admonition and warning to both employer and employee. The most effective, if insufficiently so, testimony of other witnesses called by the Company, which we shall also analyze, cannot provide support for the discharge beyond the alleged facts and reasons claimed by Anderson, who decided upon and made the discharge. We have already considered what was contributed by Anderson and McNiece, top company officials, and by Bitzenberg who, although a rank-and- file employee, was by the Company assigned a relatively important role at the hearing. It should now suffice to cite the testimony of Hughes, who supervised Allwood's line for 2 weeks but attempted to detail her shortcomings, and of Evans, the head floorlady, who was in charge of Allwood's No. 1 line. Hughes testified that Allwood always wanted to act like a boss. She cited an occa- sion when she asked a girl on another machine to hold up one of her sacks because the cookies were smeary, and Allwood asked why she had done that. This was none of Allwood's business. Again, when it was necessary to relieve other employees and Hughes took Allwood's stapler and told her to go to the line without telling her just where, Allwood would go where she wanted to go, mostly to relieve her own friends. It is not quite clear what fault is chargeable to Allwood in this connection. Hughes also testified concerning an argument in which Allwood was involved con- cerning moving of the bars. Since Hughes spoke to McNiece about it, this appears to be the incident noted in Anderson's and McNiece's testimony, supra. As for All- wood's use of profanity, this seemed neither strange nor unusual as Hughes repeated it without apparent reluctance. In fact, she testified, other employees have used pro- fanity on the line, and she has herself. To the extent that Allwood assumed prerogatives which were not properly hers, which appears to be the substance of Hughes' objections, Anderson indicated no objec- tion. If this be the basis for the defense that Allwood sought to exercise authority over others, we recall the flavorless cookie incident and the defense that Allwood permitted the cookies to go through: she did not sufficiently assert herself; having informed a supervisor, she presumably should have prevented the mixer from continuing! How- ever convenient the attempt, the Company cannot have it both ways; and the assertion of these contrary positions indicates that they are pretextual and did not prompt Allwood's discharge. Further, such assertions reflect on the Company's motive and defenses generally. This abatis of fallen defenses, once overcome, leaves exposed the discriminatory motive in discharging the principal union advocate. Evans described an occasion in June when another employee told her that Allwood had knocked cookies out of her hand. If the hearsay aspect of such a report was recognized, Evans had no more valid basis for believing that the employee's agitation was chargeable to Allwood. While Evans told the other employee to speak to McNiece, it does not appear that McNiece or Anderson knew of this; and Evans did not herself report it or even talk to Allwood about it. If, as Evans complained at the hearing, Allwood upset the employees by her claim that overtime had been incorrectly assigned one day early in June, when some girls and boxboys were kept later, such a claim is a protected concerted activity. To the extent that it led to bickering, the claim although lawful was a contributory factor to the action taken against Allwood, and a discharge based thereon would be violative. We have already noted that Allwood and a few others were in the minority. If they acted like a clique, the Company was not warranted in taking action against the ringleader because some of the other girls "were made to feel very bad" over it. All- wood was discriminatorily discharged, in violation of the Act. We can resist the temptation to refer to other incidents which were brought to counsel's attention at or before the hearing but which were not shown to have played a part in Anderson's deci- sion to discharge Allwood. If "the atmosphere" has improved since Allwood's dis- charge, such a change may not be unusual after a lawfully dissenting element has been discriminatorily removed; but the removal is not thereby justified. . M. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company, set forth in section II, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, commerce, and traffic among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE REMEDY Having found that the Company has engaged in and is engaging in certain unfair labor practices affecting commerce , I shall recommend that it cease and desist there- from, and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Company, by discharging Allwood, discriminated against her in respect to her hire and tenure of employment in violation of Section 8(a)(3) of the Act. I shall therefore recommend that the Company cease and desist therefrom and from infringing in any other manner upon the rights guaranteed in Section 7 of the Act. I shall further recommend that the Company offer to Allwood immediate reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay, sustained by reason of the discrimination against her, with interest at 6 percent, computation to be made in the customary manner.5 I shall further recommend that the Board order the Company to preserve and make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back- pay due. It has been further found that the Company, by unlawful interrogation and threats, interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act.' I shall therefore recommend that the Company cease and desist therefrom. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. American Bakery and Confectionery Workers International Union , AFL=CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Helen Allwood, thereby discouraging membership in a labor organization, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By such discrimination and by unlawfully interrogating its employees and threatening them in connection with union activities , thereby interfering with, restrain- ing, and coercing employees in the rights guaranteed in Section 7 of the Act, the Com- pany has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid labor practices are unfair labor practices within the-meaning of Section 2 (6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, upon the entire record in the case, and pursuant to Section 10(c) of the Act,-I recommend that the Company, Banner Biscuit Co., Carrollton, Missouri, its officers, agents,'successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in American Bakery and Confectionery Workers International Union, AFL-CIO, or in any other labor organization by discriminatorily discharging any of its employees or discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment. (b) Unlawfully interrogating or threatening employees in connection with their union activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist American.Bakery and Confectionery Workers International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Offer to Helen Aliwood immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and c The Chase National Bank-of the City of New York, San Juana, Puerto Rico, Branch, 65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7; F.W. Woolworth Company, 90 NLRB 289, 291-294; Isis Plumbing & Heating Co ., 138 NLRB 716. BANNER BISCUIT CO. 1141 privileges, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her , in the manner set forth in the section entitled "The Remedy" of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying , all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to determine the amount of backpay due under the terms of this Order. (c) Post at its place of business in Carrollton , Missouri, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for Region 17, shall, after being duly signed by the Company 's representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.? 6In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice . In the further event that the Board' s order be enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order". 71f this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for Region 17, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith" APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in American Bakery and Confectionery Workers International Union, AFL-CIO, or any other labor organization by discriminatorily discharging any of our employees or discriminating in any other manner in respect to their hire or tenure of employment , or any term or condition of employment. WE WILL NOT unlawfully interrogate or threaten our employees in connection with their union activities. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the right to self-organization , to form labor organi- zations, to join or assist American Bakery and Confectionery Workers Interna- tional Union, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment , as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Helen Allwood immediate and full reinstatement to her former or substantially equivalent position , without prejudice to her seniority or other rights and privileges , and make her whole for any loss of pay suffered as a result of the discrimination against her. All of our employees are free to become , remain, or to refrain from becoming or remaining members of American Bakery and Confectionery Workers International Union, AFL-CIO, or any other labor organization , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of.employment, as authorized in Section 8(a)(3) of the Act. BANNER BISCUIT CO., Employer. 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. 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore 1-7000, Extension 731, if they have any question concerning this notice or com- pliance with its provisions. Dove Coal Company and Lark Coal Company and United Mine Workers of America, District .No. 28. Cases Nos. 5-CA-2721 and 5-CA-2722. January 19, 1965 DECISION AND ORDER On October 8, 1964, Trial Examiner Lee J. Best issued his Deci- sion in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices alleged in the complaint and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Respondents filed joint exceptions to the Trial Examiner's Decision and a joint brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Fan- ning, Brown, and Jenkins]. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in this proceeding, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations with the following modification. The Trial Examiner has concluded that the Respondents violated Section 8(a) (1) of the Act by engaging in surveillance of a union meeting during the course of the Union's organizational campaign at both mines. We do not agree. The record clearly demonstrates that the Union had called a meeting to be held at an outdoor, open site which was located 4 feet off a main highway; that, as employees of the Respondents were gathering for this meeting and before it began, Jess Nelson, president of Respondent Dove Coal Company and manager of Respondent Lark Coal Company, drove past this area at a moderate speed without stopping or slowing his automobile; that this main highway served as a connecting link between the mines and the mine supply house, the meeting site being located somewhere between these two points; and that this highway was a link in a route which led to Nelson's home, and Nelson was seen pass- ing the meeting site at 4:30 p.m., which was shortly after the com- pletion of the daytime shift at the mines. The evidence establishes, 150 NLRB No. 108.