Hart's Bakery, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1950

90 N.L.R.B. 463 (N.L.R.B. 1950)

In the Matter Of HART'S BAKERY, INC. and BAKERY & CONFECTIONERY
WORKERS INTERNATIONAL UNION OF AMERICA, LOCAL 199, AFL
Case No. 14-CA-149.-Decided June 20, 1950
DECISION AND ORDER
On March 2, 1950, Trial Examiner Myers D. Campbell, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that-
the Respondent-Employer had engaged in and was engaging in certain.
unfair labor practices affecting commerce, and recommending that it.
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. There
after, the Respondent and the General Counsel filed exceptions to
the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with.
this case to a three-member panel [Chairman Herzog and Members.
Murdock and Styles].
As the Trial Examiner found, the Respondent operates a bakery-
at Sikeston, Missouri. During 1948, it purchased raw materials and_
supplies valued in excess of $100,000, of which approximately 90
percent was received from outside the State of Missouri. During:
the same period, the Respondent sold bakery products valued in excess.
of $313,000, of which approximately 3 percent, or only $9,390, was
shipped to points outside the State.
Upon these facts, the Trial Examiner found that the Respondent
was engaged in commerce within the meaning of the Act; that its:
activities had a. close, intimate, and substantial relation to commerce;
and that its unfair labor practices tended to lead to. labor disputes
burdening and obstructing commerce.
We have generally held that bakeries are essentially local opera-
tions,' and that it will not effectuate the policies of the Act to assert.
jurisdiction over them. We have further held that volume of busi-
ness is only one of the criteria to be considered in establishing an
exception.2 In this case, the Respondent's business is a relatively
' Sta-Kleen Bakery, Inc., 78 NLRB 798.
2 Lewis Brothers Bakeries, Inc., 86 NLRB 1326.
90 NLRB No. 77.
463
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
small local enterprise whose character .is not changed by the small
amount of out-of-State sales. We believe that the interruption of
its operations by a labor dispute could have only a remote and insub-
stantial effect on commerce. We find, therefore, that the assertion of
jurisdiction in this case would not effectuate the policies of the Act.3
Accordingly, we shall dismiss the complaint in its entirety.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against Hart's
Bakery, Inc., Sikeston, Missouri, be, and it hereby is, dismissed.
MEMBER STYLES, dissenting :
The Respondent is engaged in a manufacturing operation. The
total value of the Respondent's raw materials and finished products
which are transported in interstate commerce. is clearly substantial.
Under these circumstances I am of the opinion that the policies of
the Act would best be effectuated by asserting jurisdiction. I would
therefore proceed to a consideration of the merits of this case.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Glen L. Koller, Esq., of St. Louis, Mo., for the General Counsel.
David E. Blanton, Esq., and Harry C. Blanton, Esq., of Sikeston, Mo., and
Harold F. Hecker, Esq., of St. Louis, Mo., for the Respondent.
STATEMENT OF TIME CASE
Upon an amended charge filed on March 31, 1949 , by Bakery & Confectionery
Workers International Union , Local 199 , AFL.; herein called the Union, the
General Counsel for the National Labor Relations Board , herein respectively
called General Counsel and the Board , by the Regional Director for the Four-
teenth Region ( St. Louis, Missouri ), issued his complaint dated July 8, 1949,
against Hart 's Bakery, Inc., of Sikeston , Missouri , herein called the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3),
and Section 2 (6) and ( 7) of the Labor Management Relations Act, 1947, 61
Stat. 136, herein called the Act. Copies of the complaint , the amended charge,
and notice of hearing thereon were duly served upon the Respondent and the
Union.
With respect to the unfair labor practices , the complaint alleged in substance
that from about November 1 to December 18, 1948, the Respondent , by its officers
and agents , interfered with , restrained , and coerced its employees in the exercise
of their rights guaranteed in Section 7 of the Act, by questioning employees about
their own and others ' union memberships , activities , and sentiments ; promising
benefit for refusal to support the Union, and threatening reprisals for joining.
3 See Haleston Drug Stores , Inc., 86 NLRB 1166, and cases cited theiein.
HART'S BAKERY, INC.
and supporting the Union; offering a bribe to one employee and promotion to
another to reveal names of union adherents ; engaging in surveillance of em-
ployees' union activity ; committing assault and battery upon one employee ;
discharging Norman Eifert and Elmer Gilliland, Jr., on November 14, 1948, dis-
charging Dewey Price and Weldon Cunningham on November 17, 1948, and there-
after refused to reinstate them because of their activity on behalf of the Union.
The Respondent in its answer, duly filed on July 18, 1948, admitted its corporate
existence and the jurisdiction of the Board, and the discharge of Eifert and Gilli-
land and alleged the discharges were for cause, but denied the discharge of
Price and Cunningham and alleged the fact to be that they voluntarily resigned
and had not requested reinstatement, and that the Union did not desire to press
the charges and had requested dismissal of the complaint, and that Respondent
had not engaged in any unfair labor practices.
Pursuant to notice, hearing was held in Sikeston, Missouri, August 30, 31,
and September 1, 1949, before the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. The General Counsel and the Respondent partici-
pated in the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence pertaining to
the issues . The Union did not appear.
At the opening of the hearing the Respondent objected to the introduction of.
the charge in evidence upon the ground that the charging party, the Union, had
requested the Regional Director to withdraw the charge. The Regional Director
had rejected the request and the undersigned overruled the objection.
At the close of the General Counsel's case the undersigned granted Respondent's
motion to strike the statements of conversation as to Poyner and L. S. Hartzog,
and reserved ruling on Respondent's motions to strike certain testimony regard-
ing discrimination, and dismiss. part of the complaint regarding discharge of
Price and Cunningham. The motions were renewed at the close of all of the
evidence and the undersigned made the same rulings.
The motions on which ruling was reserved are now disposed of in accordance
with the considerations, findings, and conclusions herein.
The parties were granted time for filing briefs and proposed findings of fact
and conclusions of law. A brief was filed by counsel for the General Counsel
and brief and proposed findings of fact and conclusions of law by counsel for
the Respondent!
Upon the entire record in the case and from his observation of the witnesses,
and consideration of the contentions of the parties, the undersigned makes
the following :
FINDINGS OF FACT2
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Hart's Bakery, Inc., a Missouri corporation, with its principal
office and place of business at Sikeston, Missouri, is and has been engaged in the
operation of a bakery. During the year 1948 the Respondent purchased and
I Time for filing briefs was extended and the briefs were received October 17, 1949.
2 In making the findings herein, the undersigned has considered and weighed the entire
evidence and the briefs presented. It would needlessly burden this Report to evaluate all
the testimony on-disputed points. Such testimony or other evidence as is in conflict with
the findings herein is not credited.
903847-51-vol. 90-31
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received at its Sikeston operations raw materials and supplies valued in excess
of $100,000, approximately 90 percent of which, was received at its Sikeston
operations from points outside the State of Missouri. During the same period
the Respondent produced and sold at its Sikeston operations products valued in
excess of $313,000, approximately 3 percent of which was shipped from its Sikes-
ton operations to points outside the State of Missouri.
The foregoing findings of fact, based upon a stipulation of the General Counsel
and the Respondent establishes and it is found that the Respondent is and was
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Bakery & Confectionery Workers International Union of America , Local 199,
AFL, is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The Union began a campaign to organize Respondent's employees in October
and the first part of November 1948. Organizers began calling on the employees
individually at their respective homes, and it was not disputed that the Re-
spondent soon knew of the campaign. Respondent's officers and supervisors
conferred with numerous employees about union sympathies, membership and
its prospects, and entered into a consent election agreement, and thereafter
and before the election was held on December 17, 194S, prepared and issued to
each employee, a letter stating the Respondent's position and opinion on the
matter of voting for or against the Union.' A Board representative and
Respondent's officers agreed upon a list of employees eligible to vote and one
of the dischargees herein was not permitted to cast his ballot in the election.
The Union won the election and became the authorized bargaining representa-
tive of Respondent's employees. Bargaining negotiations were instituted and
resulted in the execution of a contract between the Union and the Respondent.
The Union had filed a charge against the Respondent on November 25, 1948,
and amended the charge on March 31, 1949, by the addition of two other
employees, Price and Cunningham, as having been discriminatorily discharged.
On April 16, 1949, the Union requested the Regional Office of the Board to
dismiss the charges and take no further action. The Regional Director denied
the request'
B. Interference, restraint, and coercion
It was undisputed that during the organizational campaign between November
1 and December 18, 1948, the Respondent's officers and supervisors interrogated
most of the employees about the Union. The Respondent contended that it did
confer and discuss with its employees the matter of their joining a union and
advised the employees that in its opinion it would not be to their benefit, but
that the discussions were merely expressions of Respondent's views and were
not accompanied by any threats or other acts of coercion.
Respondent's Exhibit 5.
Board Rules and Regulations Section 203.9 provides inter alla, "Any such charge may be
withdrawn, prior to the hearing, only with the consent of the Regional Director with whom
such charge was filed."
HART' S BAKERY, INC.- 467
Weldon E. Cunningham' was employed by the Respondent as a sponge mixer
in March 1948 and became a dough mixer in about 3 months and later a
utility employee until the latter part of November 1948.
He testified that he signed a union card in October 1945 and conversed with
fellow employees in and outside the bakery about the Union. He also discussed
unionization with Dowdie Hartzog, production manager and John McCrory, sales
manager . The first such conversation occurred in October 1948 when a new mail
was hired and Dowdie Hartzog told Cunningham that as he worked with the new
employee "to be very careful of any statement he might make regarding the
Union, or his views on the Union because he [Hartzog] had heard the man
worked once before in a union bakery in St. Louis and that they [Respondent]
definitely didn't want anything started that would end up in a union in their
plant-Hart's Bakery plant."
Then between November 10 and 14, during the campaign, Dowdie and Cunning-
ham again talked about the Union and Cunningham expressed himself as favor-
ing the Union and gave his reasons. Dowdie told him he would eventually see his
mistake, "that the Union was not out for our own good, the only thing they
were after was to pull what dues they could out of us for their own benefit."
That conversation took place the same afternoon that all the employees were
called out in small groups as they could be relieved by other workers to an
automobile outside the plant where McCrory talked to them.
Dowdie directed Cunningham to go out of the plant to the automobile as
McCrory had something he wanted to talk about. Cunningham testified that
when he got to the car there were four other employees in the car with McCrory
and that McCrory told them his purpose was to have a free-lance discussion of the
Union and to get the employees' ideas on the matter and suggested, "instead of
signing on with this bakery union, to form one of our own inside the bakery,
and at that time Norman Elfert and myself both made the statement that we
did not think that would work, that it would be more or less a one-sided affair,
controlled by the company. He then made the suggestion that we could get
someone that was not concerned with the bakery-a mediator-to handle the
affairs of the union that we would form ourselves, and asked our opinion on
that, and Norman Eifert and myself both told him that we didn't think that
would work, that it would not be a large enough affair, that we needed some-
thing with a National backing to actually benefit by it in any way."
Cunningham further testified that Eifert told McCrory of the tremendous dif-
ference in a union wage scale and their own scale and McCrory said he should
be able to take the union scale and work out the difference, to a certain extent, to
make the wages more satisfactory to the employees.
Cunningham also testified that on November 10, 1948, Dowdie gave him a ride
home and stopped for a drink on the way, where Dowdie "brought the conversa-
tion up about the union. He asked me to tell him anything I knew concerning
the union, as to the employees, who was in favor of it or who was not, or if I
knew who was, more or less, the ring leaders who were attempting to organize,
and he specifically asked me if Norman Eifert was one of those people that were
5 The deposition of Cunningham was duly taken at Norfolk , Va., on August 11, 1949, and
is of record herein. Although he did not appear in person at the hearing , his testimony is
credited because it appears reasonable in the light of all the record and is fully corroborated
by the credited testimony of other witnesses for the General Counsel, and in part by the
testimony of McCrory and Dowdie Hartzog , witnesses for the Respondent.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trying to organize the Union, and I told him that I didn't know anything about
anyone else's views on the subject," and he asked me "did I like Eifert's job or
would I like to have it. He said that he didn't think Eifert was going to be there
very much longer, he thought that he was going to let him go."
Norman Eifert 6 testified that he was present in the McCrory automobile when
the foregoing statements were made and fully corroborated Cunningham as to
the interrogation of the employees by McCrory and his attempt to persuade them
to form their own union instead of joining the Union and promised that an
effort would be made to increase wages and better the working conditions.
John C. McCrory,' sales manager and assistant manager testified that he was
instructed by L. S. Hartzog, president of the Company, to talk to all the em-
ployees with reference to the Union coming into the bakery and he complied by
having the day employees sent outside the plant to Dowdie Hartzog's automobile
in small groups where "I asked them all if they knew anything about the Union.
I told them I never worked for a Union and didn't know a thing about it. I
asked them if they were familiar with the Union that was trying to organize. I
asked if they knew these men would tell them the truth, if they knew they were
carrying out the instructions-they were making them believe there were things
they could do . . " He denied that he made any statements to any of the
employees that if the Union came in the plant would close or that any of them
would be fired, or that he made any promises of benefits or increases in wages.
He was asked : "Did you ask them or talk to them about organizing a company
union," and answered "I did not. I talked to them. I didn't ask them. I asked
them if they considered or even thought about a company union."
McCrory then testified that wages were discussed. "I told them I hoped they
knew what they were doing, and I wondered how much difference there was in
the scale of pay, or I wondered if the scale of pay they were telling them they
would pay would be what they actually get. I told them I wondered if the
bakery was paying within 10 cents an hour of what the union was paying, if
they would still be interested in the union. I told them I was wondering, what
I was trying to find out was, if they were interested in the union just for the
difference in pay, or there was other things going on around the bakery that they
still wanted protection from the union, or words to that effect." He mentioned
the possibility of strikes if the Union came in and his own economic position
in such event.
It was not disputed that McCrory also talked to the night shift employees that
same evening inside the plant. They were called together for that purpose and
substantially the same statements were made to them as those made to the
smaller groups outside the plant.
Cunningham testified that in October 1948 he and Eifert went to Cape Girard-
eau, Missouri, primarily to see about a job, but learned of the wage scales at
the bakery they visited, and discussed wage scale with McCrory during the
conversation in the automobile on November 11, 1948.
The undersigned has considered all of the testimony in regard to Respondent's
interrogation of and statements to, the employees and is convinced and finds
that Cunningham's version of the conversations, questions, and statements is
more accurate.
e The discharge of Eifert will be discussed later.
McCrory's testimony was conflicting and contradictory on the important points. His
testimony is not credited.
HART'S BAKERY, INNC.
It was not disputed that there was an intercommunication system between the
front office and the shop, and that the shop microphone was moved from the
ceiling to the door close to the mixers during the union organizational campaign.
The Respondent contended that the move was effected solely for improvement of
use so the front office could locate and advise the supervisors of calls and issue
instructions. The General Counsel contended that the microphone was moved
for the purpose of engaging in surveillance of the employees' union activities.
The undersigned is convinced and finds that the evidence is not sufficient to
sustain the allegation of surveillance.
Dewey Price, employed by Respondent in March or April 1948, testified that
during the organizational activities Dowdie asked him if 50 or 100 dollars would
get the names of employees who had signed the union petition for an election, and
he told Dowdie he didn't want the money. Dowdie denied making the offer.
Upon consideration of all the evidence on this point and the lack of any evidence
of signing a union petition for an election by any of the employees, the under-
signed is convinced and finds that Respondent did not attempt to bribe an em-
ployee to disclose the names of employees engaged in. union activities.
The General Counsel also contended that the assault on Eifert, which occurred
at a bar at the edge of town the evening after the Board election on December 17,
1948, was an act of interference, restraint, and coercion by the Respondent. It
was undisputed that McCrory and J. W. Hartzog, with two or three of Respond-
ent's employees came into the bar that evening and engaged in a fight with Eifert.
Later on L. S. Hartzog came in and said something about the cause of the fight
having occurred that afternoon. There was no evidence that connected the
assault at the bar with any union activity on the part of Eifert. It might be in-
ferred that his attempt to vote at the Board election was the direct cause of the
fight, but the undersigned is convinced that such inference is not warranted upon
consideration of all the evidence on that point and resolves that issue against
•the General Counsel.
Generally denying the commission of -unfair labor practices the Respondent,
though not desiring a union, asserted that during the course of conferences held
with its employees, it inquired only to inform its employees of their rights and
responsibilities and the statements and inquiries made were free of threat and
coercion or promise of benefit, did not, in fact, interfere or influence, and were
within the right and protection of free speech.
The Respondent's contention that proof of actual coercion is essential, is
resolved against it .8
Section 8 (c) of the Act provides :
The expressing of any views, argument, or opinion, or the dissemination
thereof, whether in written, printed, graphic, or visual form, shall not con-
stitute or be evidence of any unfair labor practice under any of the provisions
of this Act, if such expression contains no threat of reprisal or force or
promise of benefit.
The undersigned finds that the circumstances of the questioning of the em-
ployees about their union views and sympathies by ordering them to leave their
work and go outside the plant in small groups to an automobile where the ques-
tioning occurred and the investigation was made by the management, clearly
8 Tennessee Coach Company, 84 NLRB 703 ; Dalton Telephone Company, 82 NLRB 1001;
Standard - Coosa-Thatcher Co., 85 NLRB 1358; Gulfport Transport Company, 84 NLRB 613.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tended to have coercive effect and constituted interference, restraint, and coercion,
and the Respondent thereby violated Section 8 (a) (1) of the Act°
C. The alleged discriminations
1. The discharge of Eifert
Norman Eifert was employed by the Respondent in April 1946 and began work
mixing sponges , then became a dough mixer and was transferred to the bun shop
when it was opened in August 1948 . He received several raises in pay, the last
was 6 or 8 months before his discharge on November 14, 1948. His wages were
not changed at the time of his transfer to the bun shop although he was given
a choice of going on salary or remaining on hourly rate with overtime."
The Respondent contended that Eifert was foreman of the bun shop at the
time of his discharge and was a supervisor and not within the purview of the
Act.
It was not disputed that Dowdie Hartzog , production superintendent , did most
of the hiring of employees at the plant , but during his absence other supervisors
performed that function . It is clear that the Hartzog brothers retained principal
control over all employees including departmental foremen.
Dowdie placed Eifert in charge of the bun shop after consultation with L. S.
Hartzog, and thereafter Eifert attended all of the monthly meetings of manage-
ment and supervisors where personnel and production problems were dis-
cussed and instructions given to the foremen . Eifert denied in this hearing, that
he was a foreman and said it was never discussed with him and he never exercised
any of the duties of that office , but admitted that he attended the monthly meet-
ings with management.
Eifert was a party to a civil suit in State court and his deposition was taken
therein and referred to in this case, to wit :
Q. At the time you were present to testify at that deposition , I believe you
were under oath , were you not?
A. Yes, sir.
Q. I will ask you if this question was asked: "Where were you employed?"
A. "In the bun shop."
Q. "What were your duties?"
A. "Mixing bun dough, run the oven and done a little bit of everything."
Q. "Are you the fellow who directed the work of the bun shop?"
A. "Well, I suppose , you know-I kept it the best I could."
Eifert testified he did not say he didn ' t give those answers but did not remem-
ber it.
° In N. L. R. B . v. (late City Cotton Mills , 1948 (C. A. 5), 167 F. 2d 647, the court held
that the employer's conduct was not protected by Section 8 (c) of the Act. The court
there said , p. 649
Employers still may not, under the guise of merely exercising their right of free speech,
pursue a course of conduct designed to restrain and coerce their employees in the
exercise of rights guaranteed them by the Act.
In N. L. R. B. v. Ford, 1948 ( C. A. 6), 170 F. 2d 735, decided November 15, 1948, the court
in citing one of the earlier opinions , N. L. R. B. v. Peterson (C. A. 6), 157 F. 2d 514, said:
If they are couched in such phrases , or attended by such circumstances that they tend
to exercise undue influence and coercion upon the employees the expressions of opinion
are not protected."
10 This resolution is based upon consideration of all the testimony in regard to Respondent's
allowing the foreman to select straight salary or hourly basis . It was not disputed that
the hourly basis was better pay during the fall months of the year.
HART'S BAKERY, INC. 471
Cunningham testified that Eifert was foreman of the bun shop and on that
point was corroborated by the testimony of other production employees. Price
worked in the bun shop and testified that his orders and instructions were given
by Eifert among others. John Glueck, a sponge mixer, testified credibly that
E.ifert was the foreman in the bun shop. It is clear that L. S. Hartzog in-
structed Eifert and the other foreman that they had authority to hire, fire, and
make recommendations affecting the employees in their respective depart-
ments.11
Upon consideration of all of the evidence the undersigned is convinced that.
Eifert was commonly regarded both by Respondent and the other employees as
a supervisor, and finds that he was a foreman invested with duties which re-
quired the exercise of his independent judgment, and was therefore, a supervisor
within the. meaning of Section 2 (11) of the Act12
In September 1948 the Respondent's plant was inspected by a Federal in-
spector under the provisions of the Food, Drug and Cosmetic Act. The Re-
spondent then instituted a sanitation program by making arrangements for
physical improvement of the plant and the issuance of instructions to all
personnel and particularly to supervisors. On November 2, 1948, Respondent's
officers were called to St. Louis, Missouri, by the Federal authorities for a
conference, and on return to the plant L. S. Hartzog instituted a more serious
sanitation program and took definite action toward improvement of the plant
sanitary conditions. At the monthly meeting held on November 6, 1948, defi-
nite instructions were issued to the supervisors to clean up the plant and equip-
ment and so maintain them, and to keep after the employees to carry out the
instructions or get rid of them.
An action was filed against the Respondent in Federal court which charged
September 1948 violations of the Food, Drug and Cosmetic Act, and resulted
in a substantial fine which was paid in April 1949.
Eifert was discharged on November 14, 1948, and according to the Respond-
ent, for using a yeast bucket that had paint in it, without first cleaning out the
paint. The General Counsel contended that Eifert was discharged because of
his union activity. Eifert was one of the ringleaders in the organizational
campaign and in the meeting with McCrory in the automobile expressed himself
as favoring unionization and thus bettering wages and working conditions. '
The undersigned is convinced that Eifert' s union sympathies were a part of
the motivation for his discharge, but makes no resolution of that issue, as it
has been found that he was a supervisor.
2. The discharge of Gilliland
Ebner Gilliland, Jr., was employed by Respondent in December 1947 as a
helper on the dough mixer and then mixed sponges. He received 50 cents an hour
when he started, had received raises to 75 cents per hour at the time of his
discharge on November 14, 1948, and had been told by a foreman that he was
in line for promotion.
Gilliland testified credibly that as a part of his work he put on the dough
trough extensions and removed them, and it was customary to place them on the
floor when they were removed so they would be close for reuse. When the
11 All of the Respondent ' s officers and supervisors corroborated L. S. Hartzog 's testimony
on this point.
1' Morowebb Cotton Mills Company, 75 NLRB 987; Fitzgerald Mills Corporation, 77
NLRB 1156.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's sanitation program was intensified in November 1948 he was
instructed to discontinue the practice and.not set the dough trough extensions
on the floor, but the habit was hard to break and in his rush to keep on
schedule the early morning of November 14, he set the extensions on the floor
for a few minutes. That morning he was the first one in the shop at 4 a. in., and
found it had been painted with white- paint the day before. It was his duty
to mix yeast preparatory to mixing dough and he found his yeast bucket, which
fitted a mixing machine, had some white paint in it He felt of the paint after
he tried to wipe it out, and it was hard. As he had nothing to clean the
bucket except some strong solution used to clean the black from the outside of
pans, he proceeded to use the yeast bucket with the paint in it. There was no
evidence that any products were destroyed or lost as a result. Dowdie sent
Gilliland to the front office where he was told by L. S. Hartzog that he was
discharged because he used the yeast bucket with paint in it, and because he
set the dough trough extensions on the floor in violation of his instructions.
After his discharge Gilliland was changing his clothes and Dowdie said to him,
"It's not because of your work that you're being fired," but did not elaborate
on the statement.
On November 11, 1948, Dowdie instructed Gilliland to ride around in his auto-
mobile with McCrory. He went out of the bakery, got in the car, and McCrory
drove it around by some boxcars and stopped. Gilliland testified "John [Mc-
Crory] asked me what I thought about the union and I told him I didn't know
much about it but I thought it would be a good thing because it would cut our
hours and raise our wage rate." He said that "he never had belonged to a union
but he was against it because it would cost Mr. Hartzog more money." He said
that "he thought we should organize a shop union if we wanted a union and
keep the money in our own town rather than send it off to some other city,
and Raymond Sturgeon [the other employee in the car] said he was satisfied
with his wages, and then I told John [McCrory] not to say anything to any of
the bosses about me kicking about my hours and wages because if they cut my
hours down I couldn't make any money," and he said that "we might as well
just go ahead and work the long hours because if we got a union up there they
would speed up production and do twelve hours work in eight hours." McCrory
asked Gilliland if he knew what the union scale was for a dough mixer, and
Gilliland testified "I told him one-twenty-seven an hour for day work and one-
thirty-seven for night work." McCrory also told Gilliland he knew of the
presence in town of union representatives and knew what kind of car they had
and their license number.
Gilliland further testified that after his discharge McCrory told him that he
had not told Dowdie what Gilliland had said in the automobile.
Kenneth Darrell Coots, night foreman in charge of production for Respondent
testified credibly that when he was made foreman he was paid 80 cents per hour
and given a choice of going on straight salary ; that he was informed of his
authority to hire, fire, and recommend transfers and raises of employees ; that
he attended the meeting of Respondent's management and supervisors on No-
vember 6, 1948, and Eifert. attended as foreman of the bun shop; that specific
instructions were given that the dough troughs were not to be placed on the
floor ; that "They had said not to put them down on the floor, but it wasn't carried
out to too great an extent" ; and that it was a failing or habit into which
employees had fallen unless somebody was standing there to tell them not to.
J. D. Kirkland, a foreman of the bread shop, testified credibly as to the
Respondent 's custom and practice in regard to discharge of employees and that
HART'S BAKERY, INC. 473
he had discussed that question with the Hartzogs and "they advised me to give
a guy a second chance, to warn them before I fired them," and that he had always
done that.
Thus it is clear that the Respondent knew that Gilliland was definitely in favor
of unionization and its advantages by his statements to McCrory, and obviously
did not know what effect those views would have on other employees or on the
outcome of the union campaign. The Respondent conceded that it did not at
that time desire unionization of its plant, although it has since entered into
contractual and harmonious relations with the Union.
The undersigned is convinced, as found above, that the Respondent made
determined efforts to discourage unionization, and as a part of its efforts seized
upon the two incidents of neglect of duty by Gilliland to rid itself of an employee
thought to be a strong union advocate. The undersigned finds, after due con-
sideration of all of the evidence, that Gilliland was discharged on November
14, 1948, because of his union membership and activity and not because of
insubordination 13 Thus as a matter of law, discriminating against him because
of his purported union activities and thereby discouraging membership in a
labor organization and participation in concerted activities, within the meaning
of Section 8 (a) (1) and (3) of the Act.
3. Dewey Price
Dewey Price was employed by Respondent in March or April 1948. He first
loaded bread into the ovens and later operated a bun machine and engaged in
odd jobs in the bunshop. It was not disputed that he engaged in union activities,
but the nature of his activities were strenuously disputed. Price's version was
that Respondent made overtures to him to discover identities of ringleaders and
others active in and members of the Union. The Respondent's version was that
Price kept running to its officials and calling them trying to advise them of
those matters.
The General Counsel contended, and adduced evidence to show, that Price was
in fact discharged for his union activity. Consideration of all of the evidence
relating to that contention raises an inference of such motive in Respondent's
action of changing Price's job on the day of his separation the latter part of
November 1948. However, the undersigned is convinced that such contentions
and all inferences flowing therefrom, are dispelled by Price's own testimony.
After testifying that he had not applied for reemployment or reinstatement with
Respondent, and was not asking the Board to award back pay, he testified that of
his own free accord and volition he filed with the Board, on July 26, 1949, a formal
document "Withdrawal of Charge" in which he stated "The undersigned Dewey
Price states that he was not discharged for any activity on behalf of the union
but that he voluntarily resigned his job at Hart's Bakery ; that he has not applied
for reinstatement ; that he does not desire reinstatement, and that he does not
desire any back pay ; and that he desires that the said complaint as far as it
pertains to him be dismissed." The document was verified before a notary
public. Under date of December 3, 1948, he received a letter of recommendation
from the Respondent and part of it stated, "Mr. Price voluntarily resigned his
employment and at the time of submitting his resignation stated no reason for
"Where antiunion considerations precipitate discharge , such discharge is discriminatory
and prohibited by the Act, even though valid reasons exist which night warrant this action.
Spencer Auto Electric, Inc ., 73 NLRB 1416.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his leaving the employment of the company ." He accepted that recommendation
without question.
The undersigned is convinced and finds that Price voluntarily terminated his
employment and that he was not discharged by the Respondent.
4. Weldon E. Cunningham
Weldon E. Cunningham was employed by the Respondent from March until
the latter part of November 1948. His activity in the union organizational
campaign has been set forth above. It will be recalled that Cunningham in his
meeting with McCrory in the automobile on November 11, 1948, was outspoken in
his views favoring a union with national backing, and advocated better wages,
hours, and working conditions through the assistance of such a union.
Cunningham had sustained a hernia prior to his employment with this Respond-
ent and accordingly requested an assignment which would not require heavy lift-
ing. He was put on utility and remained there until some time after Eifert and
Gilliland were discharged on November 14, 1948. The Respondent requested Cun-
ningham to take the mixing job again, to do the work which Gilliland had been do-
ing which required some heavy lifting. Cunningham took over the mixing job and
after about 2 weeks his hernia began to bother him again so he requested a trans-
fer. On being advised that Respondent did not have anything else for him in the
bakery, Cunningham resigned. He was asked if he considered himself discharged
and replied "No, I could not say it was a discharge, because I had told him that
I was going to quit. The only thing, he did seem to be in a hurry to get rid of me
by making that statement." He requested and received a recommendation from
Respondent which he testified he was satisfied with, and considered a just and
true recommendation. It stated, after a recitation of his employment, "Mr. Cun-
ningham submitted his resignation as an employee of the company and stated
at the time of his resignation that his health was such that he did not desire
to continue his employment. His leaving the company was voluntary on his
part."
Cunningham further testified that he joined the Navy January 4, 1949, was
found physically qualified, and has not been operated upon for reduction of the
hernia. He further testified that he has not applied for reinstatement ; is not
asking any back pay ; did not make a charge or complaint to the Board ; and did
not know until a few days before his deposition was taken that he had been named
in a complaint as having been discharged.
As in the case of Price the General Counsel contended that Cunningham was
in fact discharged because of his union membership and activity. There is
undoubtedly an inference that the Respondent was motivated in its refusal to
transfer Cunningham to a lighter job as he requested by its knowledge of. his
union views and sympathies. Such inference, however, in the opinion of the
undersigned, is more than offset by a combination of factors supporting Respond-
ent's and Cunningham's contention that he resigned voluntarily, among them
the undisputed evidence that he was retained as an employee for several weeks to
replace one discharged for union activity ; that he contended that he was not a
member of the Union, having agreed only to join in determining whether or not
the majority of the employees wanted the Union to represent them ; and his own
credited testimony that he told the Respondent he was going to quit and would
stay on the job 2 weeks to assist in training a successor.
HART' S BAKERY, INC.- 475
Upon consideration of all of the evidence the undersigned is convinced and
finds that Cunningham voluntarily resigned his employment with the Respondent
the latter part of November 194S and that he was not discharged.
As stated above, the evidence is insufficient to support a finding that Eifert
was an employee within the meaning of the Act and that Respondent discharged
Price and Cunningham for union membership or activity . The allegations of
the complaint in regard to them should be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as have been found to constitute
unfair labor practices tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair
labor practices affecting commerce, it will be recommended that it cease and
desist therefrom and take certain affirmative action which the undersigned finds
is necessary to effectuate the policies of the Act.
The findings which have been made above are based upon the Respondent's
conduct in interrogating its employees as to their union views and sympathies,
and upon its discriminatory discharge of employee Gilliland. The record does
not disclose that the Respondent engaged in any other unfair labor practices;
nor is the undersigned persuaded from the record in this case, that a danger
exists that the Respondent in the future may commit any other unfair labor
practices proscribed by the Act which are not directly related in kind to the
unfair labor practices which it has.been found to have committed in the past.
Under the circumstances, it will not be recommended that the Board issue the
usual broad cease and desist order used where the commission of other unfair
labor practices is reasonably apprehended.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Bakery & Confectionery Workers International Union of America, Local
199, AFL,. 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 Elmer
Gilliland, Jr., thereby discouraging the formation of, and membership in, a labor
organization, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
476 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
5. The Respondent has not discriminated against Norman Eifert, Dewey Price,
and Weldon Cunningham, as alleged in the complaint.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, the undersigned recommends that the Re-
spondent, Hart's Bakery, Inc., Sikeston, Missouri, and its officers, agents, suc-
cessors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Bakery & Confectionery Workers Interna-
tional Union of America, Local 199, AFL, or any other labor organization of
its employees, by discriminating in regard to their hire and tenure of employment
or terms or conditions of employment ;
(b) Interrogating employees in any manner as to their union activities, views,
sympathies, or membership.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Offer to Elmer Gilliland, Jr., immediate and full reinstatement to his
former or substantially equivalent position," without prejudice to his seniority
or other rights and privileges ;
(b) Make whole Elmer Gilliland, Jr., for any loss of pay he may have suf-
fered by reason of the discrimination against him by payment to him of a sum
of money equal to the amount lie would normally have earned as wages from
the date of the discrimination against him to the date of the Respondent's offer
of reinstatement to his former or substantially equivalent position, less his net
earnings during such period ;
(c) Post at its plant in Sikeston, Missouri , copies of the notice attached to
the Intermediate Report herein, marked Appendix A. Copies of said notice, to
be furnished by the Regional Director for the Fourteenth Region, shall, after
being duly signed by the Respondent's representative, be posted by the Re-
spondent immediately upon receipt thereof and maintained by it for sixty (60)
consecutive days thereafter in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to be sure that such notices are not altered, defaced, or covered
by any other material ;
(d) File with the Regional Director for the Fourteenth Region on or before
twenty (20) days from the receipt of this Intermediate Report a report in
writing setting forth in detail the manner and form in which the Respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before twenty ( 20) days from
the receipt of this Intermediate Report, Respondent notify said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring Respondent to take
the action aforesaid.
" In accordance with the Board's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible , but if such position is no longer in existence , then to a substantially equivalent
position ." - See The Chase National Bank of the City of New York, ,San Juan, Puerto Rico,
Branch, 65 NLRB 827.
HART'S BAKERY, INC. 477.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as he relies upon, together with an
original and six copies of a brief in support thereof ; and any party may, within
the same period, file one original and six copies of a brief in support of the
Intermediate Report. Immediately upon the filing of such statement of excep-
tions and/or briefs, the party filing the same shall serve a copy thereof upon
each of the other parties. Proof of service on the other parties of all papers
filed with the Board, shall be promptly made as required by Section 203.85.
Statements of exceptions and briefs shall designate by precise citation the
portions of the record relied upon and shall be legibly printed or mimeographed,
and if mimeographed shall be double spaced. As further provided in said
Section 203.46, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections and exceptions thereto shall be deemed
waived for all purposes.
Dated at Washington, D. C., this 2nd day of March 1950.
MYERS D. CAMPBELL, Jr.,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in BAKERY & CONFECTIONERY WORK-
ERS INTERNATIONAL UNION OF AMERICA, LOCAL .199, AFL, or any other labor
organization of our employees, by discriminating in any manner with regard
to their hire and tenure of employment, or any term or condition of employ-
ment.
WE WILL NOT interrogate. our employees in any manner as to their union
activities, views, sympathies, or memberships.
WE WILL OFFER Elmer Gilliland, Jr., immediate and full reinstatement to
his former or substantially equivalent position without prejudice to any
seniority or other rights and privileges previously enjoyed, and make him
whole for any loss of pay suffered as the result of the discrimination.
WE WILL NOT discriminate in regard to hire or tenure of employment or
any term or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or refrain from becoming mem-
bers of the above-named union or any other labor organization except to the
extent that this right may be affected by an agreement in conformity with Section
8 (a) (3) of the Act.
HART's BAKERY, INC.,
Employer.
Dated -------------------------- By ----------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.