American Bakeries Co.

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Bakeries Company Langendorf Bakeries Division and General Teamsters, Sales Drivers, Food Processors, Warehousemen & Helpers Local 871, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America Case 21-CA-10426 November 29, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY AND PENELLO On July 20, 1972, Administrative Law Judge' James T Rasbury issued the attached Decision in this proceeding Thereafter, General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief to the General Counsel's exceptions Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint issued herein against the Respondent, American Bakeries Compa- ny, Langedorf Bakeries Division, be, and it hereby is, dismissed i The title of Trial Examiner was changed to Administrative Law Judge effective August 19 1972 2 Even if contrary to the Administrative Law Judge we were to find the existence of animus against Local 871 we would still agree with his conclusion that the personnel changes in issue were not shown to have been unlawfully motivated TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T RASBURY, Trial Examiner This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was heard at Los Angeles, California on April 25, 26, and 27, 1972, pursuant to due notice The complaint was issued on January 26, 1972, alleging in substance that 1 Resp Exh 18 was received at the hearing over General Counsels objections The Trial Examiner is of the opinion the ruling was in error and it is herewith reversed and the exhibit is rejected In reaching my findings and conclusions herein I have not relied on the information reflected in Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act by (1) discriminatonly laying off Ray Godfrey, (2) discriminatorily transferring three employees from Respondent's Pomona depot to its San Bernardino, California depot, (3) discriminatorily transferring three employees from its Pomona, California depot to its Bell Gardens, California depot, and (4) interfering, restraining, and coercing employees by telling them that the layoff and transfers were effected as reprisals because of the Union and because the employees had engaged in protected concerted activities Respondent's answer denied the commission of any unfair labor practices Upon the entire record,' including my observations of the witnesses and their demeanor on the witness stand, and after due consideration to all the evidence and the briefs submitted by General Counsel and the Respondent, I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent is a corporation engaged in the manufacture and distribution of bakery products with its principal place of business located at 7222 East Gage Avenue, Los Angeles, California, and with a bakery located in Bell Gardens, California, a delivery depot and warehouse located in Pomona, California, and a terminal located in San Bernardino, California Respondent in the normal course and conduct of its business operations annually purchases and receives goods, materials, and supplies valued in excess of $50,000 directly from points and places located outside the State of California The General Counsel alleges, the Respondent admits, and I herewith find that the Respondent is and at all times material herein has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED General Teamsters, Sales Drivers, Food Processors, Warehousemen and Helpers, Local 871, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, the Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A Introduction and Issues Respondent is engaged in a bakery business in Southern California Its Southern California operation includes 17 depots, or point of distribution, all under the management and supervision of Elmer McCallister, whose title is plant manager The Charging Party herein, Local 871 of the Teamsters, is one of nine different Teamster Locals all of Resp Exh 18 The reporter mistakenly marked Resp Exh 17 as received and it appears among Respondent s exhibits This exhibit was rejected when offered at the hearing (see transcript at 454) 200 NLRB No 87 AMERICAN BAKERIES COMPANY whom are signatories to a common contract covering the driver-salesmen of the Respondent in Southern California This controversy arose because Respondent laid off Ray Godfrey from his position as a driver-salesman at the Pomona depot, transferred employees Lacy, Kramer, and Schwacofer from the Pomona depot to the San Bernardino depot, and transferred Cox, Christie, and Nuckolls from the Pomona depot to its Bell Gardens depot The General Counsel's theory is that these employee changes occurred because the employees belong to Local 871, whose president was a vigorous enforcer of the union contract, and Respondent wanted to teach this president and these employees a lesson by transferring them to a Local that would be more considerate toward Respondent In making these moves-according to the General Counsel's theory of the case-it would not only move complaining employees to a local that would be less sympathetic to their gripes, but it would also aid the president of Local 871 to learn that unless he was more considerate and tolerant toward Respondent, he might find himself with a further shrinkage in membership It is alleged that two supervisors actually indicated that the aforementioned moves by Respondent had been made because of the proscribed reasons above indicated and that these statements further tended to interfere with, restrain, and coerce the employees of Local 871 in the exercise of their protected concerted rights The Respondent defends against these allegations on the grounds that the layoff of Godfrey and the transfer of the six employees from Pomona depot to other depots within the southern district of California stemmed from sound business decisions necessitated by a serious economic crisis The Respondent's employees have been represented by unions for a number of years In addition to the aforementioned driver-salesmen contract that is relevant herein, the bakers are represented by Bakers Local No 37, the garage employees are unionized, as are the office employees McCallister testified that every aspect of the operations except top management is unionized It was stipulated that two supervisors, one of whom is alleged to have made the statement to the employees that "the transfers and layoff were reprisals against Local 871," are bargaining unit employees fully regulated by the union contract requiring membership in the Local in whose jurisdiction he works, but who do have the indicia of supervisors in that they have the authority to effectively recommend the hiring and firing of employees It was also stipulated that management has the right under the collective-bargaining agreement to transfer driver-salesmen with their routes between various depots, whether or not the depots are within the jurisdiction of different local unions, and that the Respondent has regularly exercised this right 2 All dates hereinafter are 1971 unless otherwise indicated 3 The phrase working off the clock refers to time devoted to working at assigned tasks without having clocked in or to work performed after having clocked out This rather anomalous situation is created by the terms of the labor contract relating to the pay of driver salesmen Dnver-salesmen are not covered by the Fair Labor Standards Act but the union contract requires payment of a premium pay of time and one half for all hours B The Evidence '>89 1 Relative to the layoff of Ray Godfrey Godfrey testified that he was interviewed and hired by Lloyd Carter the latter part of September2 and worked as a cake driver-salesman out of the Pomona depot for the month of October and up until November 6 at which time he was laid off Godfrey testified that during the hiring interview he was asked if he was "going to be a clock watcher or union man" and that Carter indicated the Union was giving him a hard time about a man that had been let go Godfrey further testified that Bennen had told him in the course of a discussion about his wages that he (Godfrey) would not be paid overtime until after he had worked for the Company for 13 weeks Newton Bennen was one of the two individuals stipulated to be a supervisor-member of the bargaining unit In another conversation Bennen told Godfrey that the Company was opposed to overtime Godfrey further related that after his termination he contacted Bob Musser (president of Local 871) and Musser was successful in obtaining some overtime pay money for him 2 Relative to the transfers James Lacy testified that he was hired as a driver- salesman in May 1963, and since that time he has basically worked on the same route He first worked out of the Pomona depot, then in the fall of 1963 ht was transferred to the San Bernardino depot In 1965 he was transferred back to the Pomona depot and currently is working the same basic route from the San Bernardino depot Lacy testified that when he was transferred to San Bernardino on November 6 he was told by McCormick (a supervis,or- member of the bargaining unit) that "they had no enforcers, no stool pigeons, no Bob Mussers, no problems They expected high volume, low stale and 45 hours a week from each of their salesmen Lacy testified that at the San Bernardino depot he saw men "working off the clod, "3 Lacy further testified that on one occasion when he turned in hours in excess of 45 at San Bernardino he was told by his sales supervisor that the route could be run in 45 hours Lacy indicated that he had been criticized in Pomona for exceeding 45 hours Lacy testified that while a member of Local 871 that he had been fined "for working off the clock " Lacy indicated that he only drove about 135 miles per week prior to his transfer from Pomona to San Bernardino and that after his transfer he drove nearly 500 miles per week, but that two additional stops had been added to his route Mr Eli Kramer's testimony was in much the same vein as that given by Mr Lacy Kramer was transferred from Pomona to San Bernardino on November 6, he was told by Bennen that the move was to affect savings to the Company and that there were no union problems or Bob worked in excess of 45 a week In addition to their base pay of $175 a week for the 45 hours of work diver salesmen also receive a 10-percent commission on their gross volume over $620 per week Thus the driver salesmen are willing to put in extra hours in an effort to increase their gross volume but in the event excessive overtime is claimed the Company reduces the gross volume by taking certain stops off the route 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Musser problem in San Bernardino, he only drove about 30 miles per day on his route while working out of Pomona and drove nearly 90 miles per day on his route after assignment to the San Bernardino depot, he was told by Sales Supervisor McCormick that there were no problems in their depot and that he was expected to produce approximately $1,500 volume with no more than 45 hours of work When he complained that this was impossible, he was told to observe the others and he would learn how it was done While working in Pomona he was fined by the Union for "working off the clock" and he has received overtime paychecks from the Respondent due to the persistence of Mr Musser in checking the timecards of the employees Herbert S Schwacofer testified that he first worked for Respondent in 1947 and stayed until 1959 at which time he quit and then came back again in 1964 and has worked until the present time When he came back in 1964 he started in the San Bernardino depot and was transferred to Pomona depot and on November 5 he was transferred back to the San Bernardino depot Schwacofer testified that he had been fined and put on probation by Local 871 because he had worked overtime and had not been paid and had not reported the failure to be paid, that the local supervision at Pomona was constantly complaining if anyone worked overtime and that on one occasion he had been asked to explain in a letter to Mr Carter why he had worked overtime Schwacofer also testified that he was greeted by Sales Supervisor McCormick with much the same statement as was testified to by Lacy and Kramer namely, "up here we don't have any union problems and we don't have no overtime problems and we won't have nobody rocking the boat up here as far as overtime and all that is concerned and he said that we were not in Local 871 anymore and that we don't have a Bob Musser up here " Schwacofer further testified that he advised McCormick that he had had approximately seven hours of additional driving time added to his route by his transfer to San Bernardino and he wanted to know how he could possibly get the route covered without working some overtime McCormick answered by indicating that he should watch the other fellows and find out what they were doing about this Schwacofer explained that he observed a number of men "working off the clock" while at San Bernardino, but that he had been fined when under the jurisdiction of Local 871 for "working off the clock " He said it was Bob Musser, the president of Local 871, that had preferred the charges against him Schwacofer testified that prior to his transfer to San Bernardino he drove approximately 40 miles a day and after his transfer he drove around 100 miles a day Cox, Christie, and Nuckolls were not called by General Counsel to testify to which I attach no particular significance because presumably their testimony would have been similar to that presented by Lacy, Kramer, and Schwacofer and would only have been cumulative 3 Relative to the differences in contract administration by the three locals involved Much time and many pages of the record were devoted to the testimony of George Hall, secretary-treasurer of Local 166 (San Bernardino), Edward Knaiger, secretary- treasurer of Local 276 (Bell Gardens) and Bob Musser, business agent and president of Local 871 and Walter Melody, secretary-treasurer of Local 871 (Pomona) General Counsel sought to prove through the production, pursuant to subpena, of the written records of grievances filed on behalf of various members against the Respondent and the written records of charges and fines against members, by each of the three Locals herein involved, that Local 871 was more vigorous in its enforcement of the contract and more insistent that its members not "work off the clock " Such an inference from the evidence is not possible While the evidence presented did indicate that there were more written grievances filed by Local 871 than there were by the other two locals and that there were more charges and fines levied against the members of Local 871 than the other two locals, this proof by omission is not sufficient to warrant the inference desired by General Counsel There are too many other factors besides written grievances and charges filed against members involved in contract enforcement to warrant such an inference For example, different supervisors from one location to another can make a substantial difference in the form and the degree of contract compliance, the extent to which the personalities involved prefer to handle matters orally (informally), and the quality and temperament of the employees involved Undoubtedly there are many other factors involved but these few examples are sufficient to prevent the inference-merely because Local 871 filed more written complaints and fined more members-of an improper or illegal motive for Respondent's action in transferring employees from a depot in one Local's jurisdiction to a depot in another Local's jurisdiction That Musser was an intelligent, hardworking, "eager beaver" type enforcer of the contract, I have no doubt from the evidence and my observations at the hearing That his method of operation might have been a "pain in the ass" to management can also be believed 4 But when confronted with positive and credible testimony from the leaders of Local 166 and Local 276 that they too enforced their contracts-albeit a different style-it is not possible to attribute the illegal motive to Respondent that General Counsel seeks In view of Respondent's (1) completely unionized operation over a substantial period of time, (2) the frequent practice of transferring men and routes from one depot to another, (3) the lack of union animus, and (4) the testimony of the union leaders from Local 166 and 276 adverse to General Counsel's theory, I would have great difficulty in inferring an illegal motive for Respondent's conduct even if Respondent had not shown a business justification for the transfers and layoff C The Respondent's Defense The Respondent contends the layoff of Ray Godfrey and 4 The expression was attributed to McCalhster as a phrase he frequently used to characterize the union-particularly Local 871 AMERICAN BAKERIES COMPANY 591 the transfer of employees Cox, Christie, Nuckolls, Lacy, Kramer, and Schwacofer from the Pomona depot were made for business reasons stemming from an economic necessity to curtail expenses McCallister's testimony, which I credit, indicated that Respondent had an operating loss of approximately $140,000 for the year 1970 The loss increased to $1,600,000 for the year 1971 One cause for this drastic operating loss was the opening of a bakery by one of their largest customers, Alpha Beta, in 1971 5 The opening of their own bakery by Alpha Beta took away approximately $70,000 a week in sales volume from the Respondent The Langendorf Division is the largest volume operator of American Bakeries Company and these losses were of serious concern to the parent corporation The plant managers of American Bakeries were talked to via telephone on October 21 by the executive vice president, Mr Mitchell, and the president and chairman of the Board, Mr Cushman, concerning the necessity for a drastic cost reduction program The telephone conversa- tion was confirmed by a written memorandum of the same date restating the required program 6 The instructions directed that immediate cost reduction action be taken McCallister testified that he immediately devoted all his time working at ways and means to effectuate the required cost reductions During this critical period Joe McKinley, a divisional vice president, and Dave Mitchell, the executive vice president, spent time with him assisting in the decisions to be made McCallister testified, however, that the final decisions were his responsibility Numerous changes were made by way of discontinuing routes, combining routes, reducing the number of bakery items carried, elimination of unprofitable items, transfer- ring routes from one depot to another, and reducing the number of supervisors by increasing the number of routes 5 Alpha Beta is a large grocery chain operation 6 The written memorandum from Mitchell and Cushman appears in the record as Resp Exh 3 The instructions and time limitations are so precise and so determinative of Respondent s action as to warrant being set out in full TO Plant Managers FROM D L Mitchell and L Arthur Cushman, Jr DATE October 21 1971 We thought it would be well to confirm the telephone conversation we had with each of you this afternoon There is no particular need in restating the reasons for the drastic cost reduction program which we are asking be developed and implemented prior to Friday October 29 We did think we would briefly restate the required program (1) Each plant manager will intensively analyze every part of his operation and will make plans to reduce the payroll by 10% effective immediately We are not expecting to make bucks out of straw but we are expecting this project to reduce payroll drastically and we expect the task to be approached creatively First-no overtime t Then look hard and do something about cutting people and hours and dollars by the elimination of unprofitable short run varieties increasing the number of routes per supervisor eliminating unnecessary statistics in the office enforcing proper work habits on all plant people so that the sanitation group can be reduced and impressing upon the engineering people the need for vastly increased productivity in this area or whatever is necessary We must have no fat' (2) We want a 10% reduction in all controllable expenses This begins with the slop accounts General Manufacturing Expense supervised Ray Godfrey's route had been running less than $900 a week and it was determined that this was one route that should be eliminated in keeping with the instructions of the chief executive officer By transferring three driver-salesmen to San Bernardino and three to Bell Gardens it eliminated a supervisor at Pomona and reduced the number of transport truck trips to Pomona The personnel changes affecting the members of Local 871 were only a small part of the total action taken in an effort to comply with the instruction from the president of the Company On the basis of all of the evidence, I find that Respondent's only motivation for the numerous employee changes made in November 1971 was sound business reasons made necessary by serious economic reversals The comment allegedly made by Bennen that the route transfers had been effected as a reprisal against Local 871 and the employees' protected concerted rights, was not proven by a preponderance of the evident a Mr Kramer testified that in a conversation with Bennen on October 30-when he (Kramer) first learned of the transfer-that Bennen said, " the move was to effect savings to the Company, and that there was no union problem or `Bob Musser' problem in San Bernardino " This evidence falls far short of proving the allegations A broad jump would be necessary to infer from the words attributed to Bennen the allegation contained in the complaint Kramer further testified that Bennen told him that he (Bennen) had threatened Musser with a move of the cake and cookie routes if the harassment didn't stop This testimony I do not credit Bennen was a member of Musser's Local and covered by the union contract It strains credulity that Bennen would have made such a provocalive statement to Musser and Musser made no mention of it in his testimony Furthermore, even had such a rash statement been made by Bennen, he did not have the authority to Sanitation Supplies Garage Supplies Stationed out Expense, Other Selling Expense, all the repair accounts as well as Office Telephone etc etc Look at every cost and find a way to cut it by at least 10% (3) We ask that you have a pencil note on Arthur Cushman s desk by Monday October 25 outlining your plans for implementing this program (4) We ask that you have a pencil note in Arthur Cushman s hands by Friday October 29 indicating that all parts of the program have been implemented and the goals have been achieve d In addition to this program we are requiring that all routes with weekly average sales of $900 or under be immediately studied and proper steps toward elimination or consolidation be taken promptly with the requirement that as of November 15 1971 we shall have no route in any plant with average sales of less than $900 If a route is nearly at $900 and growing fast in a new area we would of course expect you to approach this intelligently There is no need to restate the reasons for these programs They are self evident There is no reason to rest ate what s being clone with the General Office staff or executive salaries You are acquainted with that and you may be assured that these steps have been taken The whole company is bearing this pressure We ri alize that it may be unfair to those few plants who have turned in an outstanding performance during this time and know that thi y will do their part While such a program is most unpleasant be assured that we expect this to make this company leaner, stronger and better in a very short period of time We sincerely appreciate the fine iesponse this program has had with everybody /s/ cc Divisional Vice Presidents R E Grant G P Turci 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD carry out such a threat and it could not possibly have been coercive to either Kramer or Musser In the absence of evidence that Bennen had some authority or influence in the divisions involved, his comments were his own appraisal of the situation and not a statement of company policy or intent Cf Mississippi Tank Company, Inc, 194 NLRB No 156 There is no proof in the record that McCallister ever told any employee that the transfers or layoff had been (or would be) effected because of the Union or because the employees had engaged in protected concerted activities At the time of McCallister's conversa- tion with Stassi, Stassi was a supervisor Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership Under the words of the statute there must be both discrimination and a resulting discourage- ment of union membership In this situation there was neither It has long been established that a finding of a violation under this section turns on the employer's motivation Under the evidence in this case I find that the Respondent's motivation for the layoff of one employee and the transfer of six other employees from the Pomona depot was solely economic 7 Upon the basis of the foregoing finding of fact and upon the entire record in the case, I make the following CONCLUSIONS 1 The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Respondent is a labor organization within the meaning of Section 2(5) of the Act 3 The Respondent has not engaged in the unfair labor practices as alleged in the complaint RECOMMENDED ORDER8 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended It is ordered that the complaint issued herein against the Respondent, American Bakeries Company, Langendorf Bakeries Division , be, and it hereby is, dismissed 7 Burns Ford Inc 182 NLRB 753 Bassett Furniture Industries of conclusions and recommended Order herein shall as provided in Sec Georgia Inc 188 NLRB No 133 Eastman Kodak Co 194 NLRB No 27 102 48 of the Rules and Regulations be adopted by the Board and become 8 In the event no exceptions are filed as provided by Sec 102 46 of the its findings conclusions and order and all objections thereto shall be Rules and Regulations of the National Labor Relations Board the findings deemed waived for all purposes