United Biscuit Co. of America

National Labor Relations Board - Board Decisions

Jan 31, 1942

38 N.L.R.B. 778 (N.L.R.B. 1942)

In the Matter of UNITED BISCUIT COMPANY OF AMERICA and BISCUIT &
CRACKER LOCAL #431, BAKERY , TEA, COFFEE , YEAST & PRETZEL
DRIVERS LOCAL # 264, AND AUTO MECHANICS LOCAL 1053 , I. A. OF M.
Case No. C-1892.-Decided January 31, 194
Jurisdiction : biscuit, cracker, and cookie manufacturing industry.
Unfair Labor Practices
Interference. Restraint, and Coercion: surveillance of union meetings; anti-union
statements ; interrogation of employees about union, timing general wage in-
crease to discourage organization of employees ; permitting and assisting
employees to circulate papers in the plant in opposition to union.
Collective Bargaining: majority established by three unions in appropriate units
by designations or application for membership cards-refusal to bargain: as
to one union, refusal upon request to reduce to writing terms agreed upon ;
as to second union, refusal to recognize union for other than members ; as to
third union, indefinite postponement in had faith of recognition and negotiation.
Discrimination: discharge of salesmen because of union activity and refusal to
engage in unfair labor practice strike breaking activity; refusal upon appli-
cation to reinstate unfair labor practice strikers
Remedial Orders : respondent ordered to bargain with unions and upon request
to embody any agreement reached in a signed contract; to reinstate with back
pay employees discriminatorily discharged and unfair labor practice strikers
discriminatorily refused reinstatement
Units Appropriate for Collective Bargaining : employees engaged in repair and
maintenance of automotive equipment; production employees excluding super-
visory and clerical employees, and city salesmen.
Mr. Edward D. Flaherty and Mr. Peter J. Crotty, for the Board.
Mr. Frank 0. Raichle and Mr . Richard H. Templeton , of Buffalo.
N. Y., and IlIr. William H. Armstrong , of Chicago , Ill., for the re-
spondent.
Mr. D. B. Shortal , of Buffalo , N. Y., for Local 431 and Local 264.
Mr. Paul Hutchings , of Washington, D . C., for Local 1053.
Mr. Ben Law , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by Bakery and Confectionery
Workers' International Union of America, Local #431,1 herein called
1In the formal papers Local 431 was mcoriectly designated as Biscuit & Cracker Local
#431
38 N L R B., No. 151.
778
UNITED BIS 'CCUIT COMPAN-Y OF AMERICA 779
Local 431; Bakery, Tea, Coffee, Yeast & Pretzel Drivers Local x$264,
herein called Local 264; and Auto Mechanics Local 1053, I. A. of M.,
herein called Local 1053; herein collectively called the Unions, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Third Region (Buffalo, New York), issued
its complaint dated January 18, 1941, against United Biscuit Com-
pany of America (Ontario Biscuit Division), Buffalo, New York,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1), (3), and (5) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, together with notice
of hearing thereon, were duly served upon the respondent and the
Unions.
The complaint alleged in substance that the respondent: (1) since
on or about March 1; 1938, sought to discourage and discouraged mem-
bership in the Unions and concerted activities by its employees by
(a) making anti-union statements; (b) advising employees to stay
away from union meetings; (c) threatening to have supervisory em-
ployees attend union meetings, to discharge employees for attending
union meetings, to shut down its plant, to impose intolerable working
conditions, to curtail work if the Unions succeeded in organizing its
employees, and to discharge employees if they did not abandon their
strike; (d) promising increased pay and shorter hours if employees
did not join the Unions; (e) suggesting that employees foment dis-
cord among the members of the Unions; (f) interrogating employees
about their union membership; (g) laying off employees at irregular
and unusual times; (h) informing employees that it would never
sign a contract with the Unions; (i) informing employees hired as
salesmen that it would not employ union salesmen ; and (j) circulat-
ing "loyalty" and "company union" petitions in the plant; (2) de-
moted Stephen Sommerfield and Leo Habitzreuther on or about
August 26 and September 9, 1940, respectively, and refused to restore
them to their former positions, to discourage membership in Local
431; (3) discharged and refused to reinstate 15 named employees on
or about October 3, 1940, because they joined and assisted Local 264;
(4) on or about September 16, 1940, and thereafter, ref used to bargain
collectively with Local 431 and with Local 264, each of which rep-
resented a majority of the employees in an appropriate unit; (5) on
or about March 14, 1940, and thereafter, refused to bargain collectively
with Local 1053, which represented a majority of the employees in
an appropriate unit; (6) as a result of such unfair labor practices,
the respondent's employees went on strike on or about September 26,
1940; and (7) by the foregoing conduct interfered with, restrained,
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
On January 29, 1941, the respondent duly filed its answer denying
the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Buffalo, New York, from
January 30 to February 21, 1941, before Josef L. Hektoen, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board
and the respondent were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties.
At the hearing, on January 31, 1941, the Board moved to amend
the complaint to allege that the respondent's employees who went on
strike on or about September 26, 1940, applied for reinstatement on or
about October 1, 1940, and at various times thereafter, and that the
respondent refused them reinstatement because they joined or assisted
the Unions and engaged in concerted activity, thereby discouraging
membership in a labor organization. The Trial Examiner granted
this motion subject to the condition that counsel for the Board file
a bill of particulars with respect to the alleged applications for rein-
statement. On February, 3, 1941, counsel for the Board filed such a
bill of particulars. At the close of the Board's case, the Board moved
to conform the pleadings to the proof in respect to dates and the spell-
ing of names. The Trial Examiner granted this motion without ob-
jection. At the close of the Board's case and near the close of the
hearing the respondent moved to dismiss the amended complaint for
lack of proof. The Trial Examiner denied this motion in his Inter-
mediate Report. The Board has reviewed these and the other rulings
of the Trial Examiner on motions and on objections to the admission
of evidence, and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. Subsequent to the hearing, a brief was
submitted to the Trial Examiner by counsel for the respondent.
The Trial Examiner thereafter filed his Intermediate Report, dated
May 29, 1941, copies of which were duly served upon the parties. He
found that the respondent had engaged in and was engaging in un-
fair labor practices affecting commerce, within the meaning of Section
8 (1), (3), and (5) and Section 2 (6)' and (7) of the Act, and rec-
ommended that the respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the
Act. Exceptions to the Intermediate Report were filed by the re-
spondent on June 6, 1941. On July 23, 1941, the respondent filed a
brief.
Pursuant to notice, a hearing was duly held before the Board in
Washington, D. C., on August 5, 1941, for the purpose of oral argu-
ment. The respondent and the Unions were represented by counsel
UNITED BISCUIT COMPANY OF AMERICA 781
and participated in the argument. The Board has considered the re-
spondent's briefs and its exceptions to the Intermediate Report, and
insofar as the exceptions are inconsistent with the findings, conclu-
sions, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, United Biscuit Company of America, is a Dela-
ware corporation engaged in the manufacture, sale, and distribution
of biscuits, crackers, and cookies. It operates plants in Buffalo, New
York; Pittsburgh and Philadelphia, Pennsylvania; Toledo, Ohio;
Fargo, North Dakota; Sioux Falls, South Dakota; Denver, Colorado;
Salt Lake City, Utah; Milwaukee, Wisconsin; Chicago, Illinois; Nash-
ville, Tennessee; Columbus, Ohio; and Grand Rapids, Michigan. The
plant in Buffalo, New York, which is generally known as the Ontario
Biscuit Division, is the only one involved in this proceeding.
The principal raw materials used by the respondent are flour, sugar,
yeast, baking powder, spices, and other baking materials. During
1940, raw materials valued at approximately $500,000 were used at the
Buffalo plant, approximately 67 percent of which were shipped from
points outside the State of New York. During the same period, fin-
ished products valued at approximately $1,600,000 were produced at
this plant, approximately 18 percent of which were shipped outside
the State of New York.
II. THE ORGANIZATIONS INVOLVED
Bakery and Confectionery Workers' International Union of Amer-
ica, Local 431; Bakery, Tea, Coffee, Yeast & Pretzel Drivers Local
#264; and Auto Mechanics Local 1053, International Association of
Machinists, are labor organizations affiliated with the American Fed-
eration of Labor. They admit to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion prior to the strike commencing
September 26, 1940
Oscar Carlson, business agent of Local 431, began the organizational
drive of that union by passing out leaflets. He originally testified that
he first did so in March 1938. According to the testimony of the
printer of the leaflets, however, and documentary evidence introduced
through him, and according to Carlson's rebuttal testimony, the leaf-
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lets were first passed out on October 26,1937. We find, as did the Trial
Examiner, that this date is the correct one.
The leaflets distributed by Carlson advertised a union meeting for
October 28. Carlson was present at the union meeting place on that
evening.' Cars drove up to the hall but no employees came in. He
testified that he found a woman, subsequently identified by him as
Elizabeth Hogan, general forelady of the respondent's baking de-
partment, in a car parked across the street from the meeting place
and that, when he asked her why she was there, she answered that it
was "none of his business." Carlson further testified that a meeting
was called at his home about a month later, that Hogan was again
present out side the meeting place, and that no employees came in. Mil-
dred Butcher, Esther White, and Sophie Gawinski, employees in Ho-
gan's department, testified that Hogan told them prior to the October
28 meeting that she would watch it and that if she found any employees
there, she would discharge them. Butcher testified further that after
this meeting Hogan told her that she had been watching it. Hogan
denied the activities attributed to her. Hogan did not impress the
Trial Examiner as a credible and reliable witness. The mutually
corroborative character of the testimony of Carlson, Butcher, White,
and Gawinski, and Hogan's continuing activity opposed to Local 431,
considered below, combine to render her denials unconvincing. We
find, as did the Trial Examiner, that she kept the two meetings of
Local 431 under surveillance and made the statements attributed to
her by Butcher, White, and Gawinski.
Shortly after October 26, employee John B. Grieco was called into
the office of Harry Templeton, general manager of the respondent.
Grieco testified, and Templeton denied, that Templeton questioned him
regarding his union sympathies; and that, when he (Grieco) replied,
in substance, that he did not favor unions, Templeton suggested that
he form a shop union so that employees could save their dues and
know where their money was going, adding, "you know, John, I
don't like rats hanging around my back." The Trial Examiner found
Grieco a convincing witness. We note below Templeton's undenied
subsequent use of the word "rats" in describing striking employees in
the fall of 1940. Upon the entire record, we reject, as did the Trial
Examiner, Templeton's denial and we find that he made the remarks
attributed to him by Grieco.
On '.T'uesd'ay, November 2, 1937, without any previous written an-
nouncement,2 the respondent notified its production employees that
a general wage increase of about 5 percent had been granted them,
8 The respondent's cost superintendent testified that foremen had orally notified the
production employees of the wage increase sometime prior to November 2, 1937 He did
not state how, long before November 2, 1937, such notice was given
UNITED BISCUIT COMPANY OF AMERICA 783
effective as of Sunday, October 24, 1937.3 Murty J. McPolin, cost
superintendent of the respondent, testified that, in the ordinary course,
such a wage increase would have been decided upon by the respondent
sometime prior to the date when it became effective, but that he had
no independent recollection as to the date of the respondent's de-
cision to grant the particular increase under consideration. No rec-
ords were introduced in evidence to show such date. Templeton testi-
fied that the increase had been the subject of investigation during
the preceding summer. He did not state when or why the respondent
determined to grant the increase at the time in question. In view
of the fact that Templeton had authority to grant an immediately
effective increase and that this was the first general increase in 4 or
5 years, and in view of the vagueness of the respondent's explanation
of its reasons for granting the increase when it did and the evidence
of an anti-union attitude on the part of the respondent, we find
that the increase was timed by the respondent to offset the effects
of the distribution of union literature. -
Shortly after October 26, 1937, Templeton called a group of about
20 employees to the office 4, They were all either supervisory em-
ployees or employees who had been employed by the respondent for
periods of about 20 years or more. Templeton testified that he called
the meeting as a result of the distribution of union literature in order
to explain his attitude about unions. His own account of his remarks
at the meeting is as follows :
I said, "Boys and girls, I am calling you together to lay before
you the general activity and organization in this country."
Sit down strikes and all that sort of thing was very prevalent.
"And furthermore, if you folks want to become unionized, that
is your privilege; you are free agents. We have nothing to say
one way or another." . . . I told them this agitation for unions
was very active, very rampart, and because of that I brought
them together so they could decide whether or not they wanted
to enter into such activities, that it was all the same to me.
Others present at the meeting testified, without contradiction, that
Templeton stressed the length of employment of those present with
the respondent, characterized them as a "happy family," and de-
clared that his door was always open to any of them who had com-
plaints. Employees David Wolffe, William Mottl, Sophie Kusz,
3 November 2, 1937, was a regular pay day The respondent's production workers were
paid each Tuesday for the previous workweek from Sunday through Saturday.
4 Templeton placed the date of this meeting as March 1938 in accordance with a mis-
taken impression during the fist part of the hearing that union leaflets were first passed
out in that month He admitted that the meeting took place shortly after the first leaflet
distribution. Since the evidence is convincing that the first distribution was on October
26, 1937, we find, as did the Trial Examiner, that the meeting took place shortly after that
date
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James N. Fazio, John B. Grieco, and Frank Bartkowski, all of whom
were present at the meeting, testified, in substance, that Templeton
told the group that a union was unnecessary at the plant. Templeton,
Hogan, Plant Superintendent Frank A. Gerber, and Cost Superin-
tendent McPolin all denied the version of the meeting given by the
above employees. In view of Templeton's account of his remarks;
the events giving rise to the meeting, and all of the testimony, we
find, as did the Trial Examiner, that the respondent's purpose in
holding the meeting was to dissuade its employees from organizing.
Two or three days after this meeting, and repeatedly thereafter,
according to the testimony of Oven Foreman Stephen Sommerfeld,
Gerber told Sommerfeld to tell the employees that "if the union or-
ganizes over here, we will start up the third machine and we will
run that. We will cut out all cheaper products, and you fellows will
be all working short time." Gerber denied the statements attributed
to him. The Trial Examiner found Gerber to bean unreliable and
evasive witness. We find that he made the statements attributed to
him substantially as testified to by Sommerfeld.
Sommerfeld testified also that about 2 months after the meeting he
was called to Gerber's office where Templeton asked him to report
any union talk in the plant, adding that "he would make short work
of it." Sometime later, according to Sommerfeld's further testimony,
Templeton met Sommerfeld in the plant and asked him if he had
heard "anything about anybody organizing"; Sommerfeld answered
in the negative. Templeton denied making any anti-union statements.
The Trial Examiner did not credit his denial. We credit the testimony
of Sommerfeld and find that Templeton made the foregoing
statements.
Following the respondent's activities described above, Local 431
ceased its organizational efforts early in 1938, and did not renew them
until 1940.
Employee Victoria Nowakowski had been laid off by the respondent
for 5 months prior, to March 5; 1940. During that time she had ap-
plied at other bakeries for work and had been told that they hired
through "the local union." Accordingly she called on Carlson, who
gave her some membership cards. She testified that when she re-
turned to work for the respondent on March 5, 1940, Forelady Hogan
asked her, "What do I hear about you and the union?", adding "if
you join the union, you can't work here." Nowakowski testified that
she replied, "I didn't join the union, but I went to different bakers, and
find out how I can get the job," and that Hogan then said, "Well, if
you have nothing to do with the union, you can keep your job." Some-
time in the fall of 1940, according to the testimony of employee Sophie
Gawinski, Hogan asked her in the plant during working hours to
tell her the names of employees who had joined Local 431, and said
UNITED BISCUIT COMPANY OF AMERICA 785
that she-knew that about 40 had done so. Gawinski testified that she
replied that she did not know who had joined and that Hogan then said
that if the employees joined the union "they [the respondent] would
try to find something on us and fire us." On September 16,1940, there
was a strike of about half a day at the plant. Employees Emily Madr,
Mildred Butcher, Sophie Gawinski, and Lucy Pacer testified, in sub-
stance, and Hogan denied, that after the strike Hogan told them that
(a) they would get no benefit from a union; (b) they would be sorry
if they joined one; and (c) her husband was a union member and
received no benefit from his heavy dues payments. Employee Jose-
phine Gruczman testified that on September 17 or 18, 1940, Hogan
told her and several other employees that they should get together
and tell Templeton that they did not want a union. A few days later,
according to employee Eleanor Dawidowicz, Hogan told her that if
the "A. F. of L. ever got in" married women would not be employed
at the respondent's plant. Dawidowicz was shortly to be married.
Hogan generally denied having made any anti-union statements to
the respondent's employees. She specifically denied the testimony
of Nowakowski, Gawinski, Gruczman, and Dawidowicz, set forth
above. The Trial Examiner found Hogan to be an unreliable witness
and did not credit her denials. Upon the entire record, we find that
Hogan made the statements attributed to her by Nowakowski, Gawin-
ski, Gruczman, Dawidowicz, Madr, Butcher, and Pacer, as described
above.
On September 20, 1940, Carlson, business agent of Local 431, con-
ducted a meeting open to all production employees of the respondent,
at which he read a proposed contract between Local 431 and the re-
spondent. Stella Keller, an employee of the respondent for 14 years,
attended the meeting and thereafter, according to her own testimony,
reported to Hogan, her forelady, what had happened there, expressed
herself as being dissatisfied with the wage rates provided in the pro-
posed contract, and asked to see Templeton. Hogan arranged an
appointment, pursuant to which Keller and two other employees,
accompanied by Hogan, met Templeton. According to Hogan, there
ensued a discussion, in which she did not participate, of what would
happen with respect to wage rates "if the union got in." Keller al-
leged that she expressed her dissatisfaction with the wage rates in
the proposed contract, that Templeton said that there was nothing he
could do, and that the group left his office. On one or more days
between September 21 and 26, 1940, Keller, with the assistance of
Mary Wolanski and Frances Boinski, employees, circulated blank
papers among the women in the plant during working hours, obtain-
ing between 50 and 60 signatures thereto. Keller admittedly asked the
employees to sign the papers as a protest against the wages which
Local 431 was proposing to the respondent. In addition, Esther
438861-42-vol. 38-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White and Eleanor Dawidowicz, employees, testified that Keller asked
them to sign for a "shop union." Employees Jeanette Pacer and
Sophie Gawinski testified that Wolanski and Boinski, respectively,
made similar requests of them. Although Keller, Wolanski, and
Boinski denied this testimony, we find, upon the entire record, that
they made the foregoing statements attributed to them.
It is undisputed that the papers were circulated openly and in the
presence of Hogan, and Hogan did not deny that she knew of the cir-
culation. Jeanette Pacer testified that Hogan instructed her to tell
the girls at her machine that they should sign and that if they did
not they "were going to be sorry." Pacer's testimony was corrobo-
rated by that of Lucy Pacer, her sister-in-law, who was employed on
the same machine. Hogan denied the testimony of Jeanette and
Lucy Pacer, but we reject her denial because, as we have already indi-
cated, Hogan was an unreliable witness and was not respecting the
right of the employees to self-organization free from employer inter-
ference. We find that Hogan made the statements testified to by
Jeanette and Lucy Pacer.
On the evening of September 20, 1940, Local 264 held a meeting
for the purpose of organizing the city salesmen in the respondent's
employ. Salesmen Carlton G. Perry and Chauncey Dressel both
testified that during the day of September 20, 1940, John B. Mains,
the respondent's city sales supervisor, asked them if they knew of the
union meeting to be held that evening and that, when they answered
affirmatively, he told them that they knew they did not have to join.
Mains denied having had any such conversation with Perry. He
admitted having, "out of curiosity," asked Dressel about the meeting,
but denied having urged him in any way not to join Local 264.
Under the circumstances, we credit the testimony of Perry and
Dressel.
We find that the respondent, by Hogan's surveillance of the union
meeting places, by Hogan's anti-union statements to Mildred
Butcher, Esther White, Sophie Gawinski, Victoria Nowakowski,
Emily Madr, Lucy Pacer, Josephine Gruczman, Eleanore Dawido-
wicz, and Jeanette Pacer, by granting a general wage increase im-
mediately after the distribution of the first union leaflets, by Temple-
ton's anti-union statements at the meeting called by him and at
other times, by Gerber's threats to Sommerfeld, by questioning em-
ployees as to who were union members, by permitting and assisting
employees to circulate papers in opposition to Local 431 in the plant
during working hours, and by Mains' questioning of Perry and
Dressel concerning the meeting of Local 264, has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
UNITED BISCUIT COMPANY OF AMERICA 787
B. Refusals to bargain prior to the strike commeneing September 26,
1940
1. The appropriate units
The complaint alleged that (a) the employees of the respondent
engaged in the repair and maintenance of automotive equipment;
(b) the employees of the respondent engaged in production, exclud-
ing supervisory and clerical employees; and (c) the employees of
the respondent engaged as salesmen, constitute units appropriate for
the purposes of collective bargaining. With respect to the unit of
salesmen, evidence was introduced at the hearing showing that the
respondent employs both city salesmen and country salesmen, that
the city salesmen work in the metropolitan area of Buffalo, while
the country salesmen work in surrounding country, and that the
working conditions and problems of the city salesmen and country
salesmen are substantially different. Local 264 desires a unit com-
posed only of city salesmen. The respondent raised no objection at
any of the conferences with the Unions, hereinafter described, or
at the hearing to three units, composed respectively, of auto me-
chanics, production employees, and city salesmen.
Upon the entire record, we find that (a) the employees of the
respondent engaged in the repair and maintenance of automotive
equipment, (b) the employees of the respondent engaged in pro-
duction, excluding supervisory and clerical employees, and (c) the
employees of the respondent engaged as city salesmen at all times
material herein constituted and now constitute units appropriate
for the purposes of collective bargaining and that such units insure
to employees of the respondent the full benefit of their right to
collective bargaining and otherwise effectuate the policies of the Act.
2. Representation by the Unions of a majority in the appropriate
units
The respondent's pay roll of March 9, 1940, and succeeding pay
rolls show two employees within the unit of employees engaged in
repair and maintenance of automotive equipment. The undisputed
evidence establishes that both such employees designated Local 1053
as their bargaining agent in the latter part of February 1940.
The respondent's pay-roll records show 189 employees within the
appropriate unit of production employees as of September 14, 1940.5
5 This figure includes two employees not listed on the pay roll for September 14, 1940,
because they were temporarily not working during the week covered by that pay roll
They returned to work thereafter
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 16, 1940, Local 431 presented to the respondent 165
applications for membership cards bearing signatures corresponding
with names on the pay roll in the appropriate unit. These cards are
in evidence. The respondent checked the cards for authenticity of
signatures with cancelled checks in its possession and thereafter en-
tered into negotiations with Local 431, as described hereinafter. At
the hearing the respondent sought to show that it had doubted the
authenticity of certain applications, the signatures of which were
printed. There were five such applications. Since the majority of
Local 431 is clear in any event, itis not necessary to resolve the ques-
tion as to the authenticity of these' 5 applications.
The respondent's pay roll of September 14, 1940, shows 17 em-
ployees within the unit of city salesmen. The undisputed testimony
of Robert Smith, business representative of Local 264, and 7 of the
city salesmen who testified at the hearing establishes, and we find,
that 16 of the city salesmen signed applications for membership in
Local 264 on September 20, 1940.
We find that on and at all times after March 9, September 16, and
September 20, 1940, respectively, Local 1053, Local 431, and Local
264, were, and- that they now are, the exclusive representatives of all
the employees within the appropriate units hereinabove described for
the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
3. The refusals to bargain
Local 1053
On about March 15, 1940, Edward W. Wiesner, representative of
Local 1053, met with A. Norman Graf, divisional treasurer of the
respondent. Wiesner told Graf that he represented the employees
engaged in the repair and maintenance of automotive equipment.
Thereafter, between March 15 and July 21, 1940, Wiesner and Graf
met about six times and discussed the terms of a proposed agreement.
Wiesner testified, and Graf did not deny, that on or about July 25,
1910, they agreed upon terms and Graf promised to prepare and sign
a contract embodying these terms and to submit it to Wiesner for
signature; that Graf thereafter failed to do so; and that, despite
three or four subsequent requests by Wiesner for a signed written
contract, Graf stated that he had not "been able to get around to it."
Wiesner further" testified without contradiction that sometime in
August he told Graf that unless the respondent signed the written
contract by October 1, 1940, Local 1053 would call a strike. The
respondent admitted that terms were agreed upon and that it had not
UNITED BISCUIT COMPANY OF AMERICA "789
embodied such terms in a written contract prior to the strike com-
mencing on September 26, 1940. It offered no explanation of its
failure to do so. We find that the respondent, on about July 25, 1940,
and thereafter, refused to bargain collectively with Local 1053 as
the representative of its employees engaged in the repair and mainte-
nance of automotive equipment and that it thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.6
Local 431
On September 16, 1940, Carlson, business agent of Local 431, met
with Graf, informed him that Local 431 represented a majority of the
production employees, demanded exclusive recognition, and asked
that collective bargaining negotiations be opened. Graf agreed to
recognize Local 431 upon proof of its majority. Carlson then pre-
sented 165 signed applications, as stated above, which Graf, in Carl-
son's presence, compared against cancelled checks in the possession of
the respondent. After the comparison Carlson presented Graf with
a proposed contract and the meeting ended.
The parties met again on September 19. Graf presented to Carlson
a counterproposal in the form of a contract prepared by the respond-
ent. Both the contract proposed by Local 431 and that proposed by
the respondent provided for recognition by the respondent of Local
431 as the exclusive representative of the non-supervisory production
employees and contained closed-shop provisions. A discussion of dif-
ferences in the proposed contracts ensued and the meeting adjourned.
The parties met again on September 20. At that meeting Local
431 and the respondent agreed upon a closed shop and other substan-
tial portions of the contract proposed by Local 431. Graf, however,
requested time to inquire whether certain provisions of the proposed
contract relating to wages and uniforms were similar to those in con-
tract,§ between another local of the union and a competitor of the
respondent. Graf told Carlson that if they were the respondent would
approve them also. The meeting then adjourned.
On September 25, 1940, Carlson and Graf met again. Graf handed
Carlson a second proposed contract substantially different from the
respondent's first counterproposal. Graf stated that the second pro-
posed contract embodied the respondent's final offer and would be en-
tered into by the respondent only if there were no change in it what-
H. J. Heinz Co . v. National Labor Relations Board, 311 U. S. 514 , aff'g H. J. Heinz Co.
v. National Labor Relations Board, 110 F. (2d) 843 (C. C. A. 6), enf'g Matter of H. Jr.
Heinz Company and Canning and Pickle Workers Local Union No. 325, affiliated with
Amalgamated Meat Cutters and Butcher Workmen of North America , American Federation
of Labor, 10 N. L. R. B. 963.
790 D'E'CISITONS OF NATIONAL LABOR RELATIONS BOARD
soever. It provided, inter alia, for the recognition of Local 431 for
its members only and contained no closed-shop provision. Carlson
protested these changes and Graf reiterated the respondent's position
that the second proposed contract was the respondent's final offer
and was not subject to change. Carlson thereupon insisted that the
proposed contract previously under discussion for more than a week,
and upon which virtual agreement between the respondent and Local
431 had been reached, be signed by the respondent, and stated that if
it were not the production workers would strike. Local 431 heard
nothing further from the respondent before September 26, 1940. On
that date Local 431 went on strike, along with Locals 1053 and 264.
The evidence establishes that the respondent conducted an ener-
getic campaign in opposition to Local 431; that when, despite such
campaign, Local 431 obtained majority representation within an ap-
propriate unit, the respondent at first agreed to enter into a contract
providing for recognition by the respondent of Local 431 as the ex-
clusive representative of the employees within the appropriate unit;
that, thereafter and, without explanation, the respondent shifted its
position, insisted that its proposal could not be changed, and flatly
refused to recognize Local 431, as exclusive representative as required
by the Act, but only for its members. Such conduct is clearly in
violation of the Act. WWTe find that the respondent, on and after
September 25, 1940, refused to bargain collectively with Local 431
as the representative of its employees engaged in production, exclud-
ing supervisory and clerical employees, in respect to rates of pay,
wages, hours of employment, and other conditions of employment, and
that, by the above conduct, it interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
Local 264
About September 8, 1940, Robert Smith, business representative of
Local 264, told Graf that the salesmen in the respondent's employ had
expressed a desire to be represented by Local 264 and asked him when
they could discuss the question of recognition.' Graf replied that he
could not give a definite answer because he was busy with other matters.
As stated above, on September 20, 1940, 16 of the 17 city salesmen
in the appropriate unit signed applications for membership in Local
264. On September 23, 1940, Smith telephoned Graf, informed him
that the salesmen wished to be represented by Local 264, and asked
that the respondent recognize Local 264 as their collective bargaining
representative. Graf, according to his own testimony, replied that
T The respondent had previously recognized Local 264 as collective bargaining repre-
sentative of its drivers , pursuant to a contract dated January 15, 1938, and as collective
bargaining representative of its shippers , pursuant to a contract dated July 1, 1940
UNITED BISCUIT COMPANY OF AMERICA 791
the respondent "would be glad to talk with him about it" as soon as
the respondent was "out of the situation concerning the factory work-
ers." Smith's testimony in this connection does not differ in substance
from that of Graf. Graf testified further without contradiction that
Smith agreed to, but did not, mail to the respondent a list of the union's
"requests." There were no further discussions between the respond-
ent and Local 264 prior to the strike starting September 26, 1940.
It is clear that on September 23, Local 264 requested exclusive recog-
nition, and that the respondent purported to defer consideration of
this request. For the following reasons, we are of the opinion and
find that the alleged postponement was in bad faith and was intended
to.cover the respondent's actual refusal to accord exclusive recognition
to Local 264. The respondent did not set any time limit within which
it would consider the request for exclusive recognition. It stated
merely that it would consider the matter when it had settled its affairs
with Local 431.8 As indicated hereinabove, the respondent at this
time was using dilatory tactics against Local 1053 and refusing to give
it exclusive recognition; and 2 days after Graf postponed Smith's
demand for recognition assertedly because of the respondent's dealings
with Local 431, the respondent revealed its bad faith with respect to,
and refused to recognize, that union. It is evident that the respondent
had developed a technique of delay in dealing with labor organizations
and that it had decided not to bargain collectively concerning the em-
ployees here in question. Moreover, the respondent's coercive conduct
prior to the strike, hereinabove set forth, and its discriminatory dis-
charge of the salesmen and refusals to bargain with the Unions-as
well as its other interference, restraint, coercion; and discrimination
during the strike-hereinbelow described, also lead to the conclusion
that the respondent, although purporting only to defer consideration
of the demands by Local 264 for exclusive recognition, was in fact
refusing that demand.
We find that the respondent, on and after September 23, 1940,
refused to bargain collectively with Local 264 as the representative
of its employees in an appropriate unit, consisting of the city sales-
men, in respect to rates of pay, wages, hours of employment, and
other conditions of employment, and that, by the above conduct, it
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
8 The respondent did not predicate its decision to postpone recognition of Local 264 on
the promise of that union to submit Its "requests ," presumably relating to terms of em-
ployment , to the respondent Accordingly , the failure of Local 264 to fulfill its promise
has no bearing on whether or not the respondent in good faith deferred recognition of it
as exclusive representative . It may be noted , however, that the grant of exclusive recog-
nition should precede, rather than follow, discussion of terms of employment See Mc-
Quay -Norris Manufacturing Co v National Labor Relations Board, 116 F. (2d) 748
(Cl. C. A. 7), cert den d , 313 U S 565
792 DECISIONS OF NATIONAL LABOIR RELATIONS BOARD
C. The strike commencing September 06,1940, and its cause
On September 26, 1940, the Unions declared a strike of the pro-
duction workers represented by Local 431, the drivers and shippers
represented by Local 264, and the auto mechanics represented by
Local 1053. The respondent contended that the strike of the drivers
and shippers represented by Local 264 was not caused by unfair labor
practices but was, instead, a sympathetic strike to assist Local 431
in organizing the production workers and to force the respondent
to recognize Local '264 as bargaining representative of the city sales-
men. Smith, business representative of Local 264, testified, in sub-
stance, that the drivers and shippers struck primarily because of
certain alleged violations by the respondent of its contracts with
Local 264 covering the drivers and shippers and because of the re-
spondent's refusal to settle grievances arising out of such violations.e
In addition, Smith claimed that the respondent's refusal, to negotiate
with Local 264 on behalf of the salesmen, various reports of efforts
by the respondent to set up a company union, and the belief that the
respondent was not dealing in good faith with Local 431, were all
factors motivating the decision of Local 264 to strike.
We have found that the respondent unlawfully refused to bargain
collectively with the Unions, and engaged in other unlawful conduct
with respect to them, prior to the strike. These unfair labor practices
led employees to believe,10 and reasonably so,li that the respondent
was organizing a company-dominated union. It is clear that the
respondent's unfair labor practices and the belief concerning a com-
pany union, connected with these unfair labor practices, persuaded
the drivers and shippers that such unfair labor practices were di-
rected against them in common with the other employees and were
a substantial cause of the strike of the shippers and drivers repre-
sented by Local 264.11 That other factors may also have contributed
° See footnote 7, supra
Thus, we have already found , upon the basis of evidence hereinabove discussed, that
shortly before the strike employees Keller, Wolanski, and Boinski circulated papers in the
plant during working hours with the knowledge and support of Forelady Hogan and that
they asked certain employees to sign such papers for a "shop union " Smith testified that
prior to the strike various members of Local 264 as well as Carlson , business agent of
Local 431, brought reports to him that the respondent was endeavoring to organize a
"company union "
11 Cf. Matter of Texas Mining & Smelting Company and International Union of Mine &
Smelter Workers, Local 1112, 13 N L. R B. 1163; enf'd as modified in other respects in Na-
tional Labor Relations Board v Texas Minting and Smelting Co., 117 F ( 2d) 86 (C. C A. 5)
12 Cf. National Labor Relations Board v. American Potash & Chemical Corporation
(Allied Chemical Workers' A8s'n of Trona, Cal, Intervenor) 98 F. (2d) 488 (C. C. A. 9),
enf Matter of American Potash & Chemical Corporation and Borax & Potash Workers'
Union No. 20181 , 3 N. L R B. 140 ; Matter of S H. Kress & Company, a corporation and
United Retail and Wholesale Employees of America, Local No. 235, and United Retail
Workers of Hilo.
UNITED BISCUIT COMPANY OF AMERICA 793
to their decision to strike is immaterial in this connection 13 It is
clear, also, that the respondent's refusals to bargain and other unfair
labor practices caused Locals 431 and 1053 to go on strike.
Upon the basis of the entire record, we find that the strike of the
Unions commencing September 26, 1940, was caused by the unfair
labor practices of the respondent.
D. Interference, restraint, and coercion during the strike
Employee Stephen Sommerfeld worked for a few hours on Sep-
tember 26, 1940, after the start of the strike. He testified that dur-
ing that time Harry Templeton said to him, "There will be no union
in this plant as long as I can help it . . . If I hold out for a while
... which I am going to do, these boys will all come running in the
shop like rats." Templeton did not deny Sommerfeld's testimony.
John B. Grieco, Angeline Sokolik, Frank Bartkowski, Sophie Kusz,
and Emily Madr, employees who joined in the strike, testified, in
substance, that while they were on the picket line Templeton told
them to get rid of their signs and go home, or look for another job.
Templeton admitted speaking with the employees on the picket line,
but denied their testimony concerning his remarks. The Trial Ex-
aminer did not credit Templeton's denial. We find that Templeton
made the remarks attributed to him by the above-named employees.
Early in the strike, both Superintendent Gerber and Foreman
Allan G. Shoemaker called on striking employees at their homes.
Employee William Mottl testified that on one such occasion Gerber
asked him to return to work at a higher salary and stated that "the
union would never get in," but that, if it did, wages would be lower.
Employees Helen Kapturowski, Lora Liskiewicz, Mary Kociszewski,
Florence Lisowski, Frances Sniatecki, and Irene Schultz all testified,
in substance, that Shoemaker visited them and asked them to return
to work, adding either that the respondent would close down rather
than recognize Local 431 or that union members would lose their
jobs. Gerber denied generally having made any such remarks as
those attributed to him by Mottl. Shoemaker alleged that his only
statements to the employees he visited soon after the strike were
that the plant was to reopen and that they could have their jobs back.
He denied saying anything about unions. In view of the admission
'3 Cf. National Labor Relations Board v. Remington Rand, Inc. (Central Executive Coun-
etil of Remington Rand Employees Association , Intervenor) 94 F. (2d ) 862, (C. C. A. 2),
cert . denied 304 U. S. 576 and 585, enf. as modified Matter of Remington Rand Inc. and
Remington Rand Joint Protective Board of the District Council Office Equipment Workers,
2 N. L R B. 626 As previously indicated , the city salesmen for whom Local 264 sought
bargaining rights did not strike on September 26, 1940. Smith testified that the salesmen
did not join in the strike because they believed that it would be to the best interests of
all parties for them to continue to take orders so that the respondent would suffer no
permanent loss of business . Smith's testimony was corroborated by two of the salesmen
The salesmen were paid on a commission basis . We credit Smith's testimony.
794 DEClSIIONS OF NATIONAL LABOR RELATIONS BOARD
by Gerber and Shoemaker that they visited the homes of strikers and
the mutually corroborative testimony of the above-named employees,
we find, as did the Trial Examiner, that Gerber and Shoemaker
made the foregoing remarks attributed to them.
Franklin W. Winnert, a city salesman, testified that immediately
after the strike started J. P. Williams, vice president of the respond-
ent, told him that his work had always been satisfactory and added,
"This organization, or whatever you want to call it, that you are
joining with, doesn't mean a thing." Casimer Przybyl, also a city
salesman, testified that on September 27, 1940, Williams said to him,
"Gosh, isn't it terrible some racketeer trying to make a good living
for himself, trying to get you boys organized?" Williams did not
testify. We find that he made the remarks attributed to him by
Winnert and Przybyl.
City salesman Anthony C. Busch testified that on September 27,
1940, Plant Manager Templeton told him that he had heard that
some of the men were withdrawing from the union; that Busch's
work had always been all,right; that he (Templeton) understood
that Busch's signing a union card was "mere frivolity"; and that
the respondent would never employ union salesmen. Templeton de-
nied Busch's testimony. We do not credit his denial. Winnert tes-
tified that several days after October 3, 1940, when he and other city
salesmen were discharged under the circumstances discussed below,
Arthur Finn, one of the respondent's sales supervisors, called upon
him at his home and told him that he could have his job back, "but
not as a union man." Finn did not testify. City salesman Carlton
G. Perry, who also was discharged on October 3, 1940, testified that
a few days thereafter John B. Mains, the respondent's other sales
supervisor, stopped him on the street and asked him to return to
work; that when Perry answered that he would not return until the
strike was settled, Mains stated that the respondent would never
"accept the salesmen's union." Mains denied Perry's testimony. We
do not credit his denial. We find that Templeton, Finn, and Mains
made the remarks attributed to them by Busch, Winnert, and Perry;
respectively.
On October 10, 1940, Smith, business representative of Local 264,
met Graf, divisional treasurer of the respondent, on the picket line
in front of the plant. Smith testified without contradiction that
he asked Graf if they could not "get together" to discuss a settle-
ment in order that the strikers might return to work and that Graf
replied, "We don't need them (the strikers). We have all the help
we need . . . You keep them. They stuck with you, so keep
them." 14
u Soon after the strike started, the respondent hired- new employees to replace the
strikers.
UNITED BISCUIT COMPANY OF AMERICA 795
We find that by the statements and acts of Templeton, Gerber,
Shoemaker, Williams, Finn, Mains, and Graf, set forth above, the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act. We
further find that these unfair labor practices prolonged the strike
which started on September 26, 1940.
E. Discriminatory discharge of the salesmen during the, strike.
The complaint alleged that on or about October 3, 1940, the re-
spondent discharged 15 city salesmen, and thereafter refused to re-
instate them, because they joined and assisted Local 264. The
respondent's answer denied this allegation of the complaint.
As heretofore stated, the city salesmen did not go on strike with
the other employees on September 26, 1940.15 On September 27,
1940, a regular weekly salesmen's meeting was held in the plant.
It is undisputed that at the meeting J. P. Williams, vice president
of the respondent in charge of sales, instructed the salesmen present
that they should continue their calls on customers, endeavor to
retain the customers' good will, and take orders where possible.
City salesmen Franklin W. Winnert, Carlton G. Perry, Casimer
Przybyl, and Chauncey Dressel testified, in substance, that Williams
.also instructed them to tell customers, who, were apprehensive about
receiving deliveries because of the strike, that their orders could be
taken for delivery after the strike. City salesmen Anthony C. Busch
and Edwin Koeppel testified that Williams told them to suggest to
the customers that their orders be placed for delivery upon settle-
ment of the strike. Busch testified further that Williams, in ex-
planation of the reason for this instruction, stated that as soon as
the strike had started many customers refused to accept delivery of
goods previously ordered. Norton Long McLean, another city sales-
man, did not attend the salesmen's meeting of September 27. He
testified that on September 28 Williams directed him to inform cus-
tomers that delivery on orders might be delayed and also told him
that if there were some who did not want immediate delivery because
of the strike, he should take their orders for future delivery.
Williams did not testify.16
All seven city salesmen who testified at the hearing asserted, that
between September 26, when the strike started, and October 3, 1940,
when they were discharged, they called upon customers as usual and
took orders. Apparently many of the orders they obtained were for
delivery after settlement of the strike. The volume of orders ob-
11 See footnote 13, supra.
1e Winnert, Perry, Koeppel, Dressel, Busch, Przybyl, and McLean were the only ones of
the 17 city salesmen who testified at the hearing.
796 D'EICTiST'ONS OF NATIONAL LABOR RELATIONS BOARD
tained was considerably below that for a corresponding normal
period 17 Koeppel testified without contradiction that some of the
grocery stores, particularly certain chain stores employing union
labor, either refused to place orders at all during the strike or would
give orders only for delivery upon settlement of the strike. Busch
and Przybyl also testified, in substance, and without contradiction,
that many of the respondent's customers were extremely reluctant to
do business with the respondent during the strike.
On October 2 or 3, 1940, a special meeting of the salesmen was called
in the plant` Present were Templeton, Williams, Mains, Arthur
Finn, a sales supervisor, one or two other supervisory employees of
the respondent, and the city salesmen. The undisputed evidence es-
tablishes that the following occurred at the meeting. Templeton
announced to those present : "We all know what the situation is. We
are going to continue just as we have in the past." He then asked the
salesmen what they could do to "help the situation." There was no
reply to this question. Templeton then asked the salesmen if they
would ride on or follow the respondent's delivery trucks. When the
salesmen did not reply to this question either, Templeton asked Dres-
sel, whom the salesmen had informally designated as their spokesman
immediately prior to the meeting, what he would do to "help the
company." Dressel stated that, since he had been employed as a
salesman and was a member of Local 264, he would only perform.
the duties of a salesman, and would not accompany the delivery trucks.
Templeton then left. It seems clear from all the testimony concern-
ing the meeting, and we find, that the supervisory employees present
understood that Dressel spoke for the other city salesmen. After
Templeton left the meeting, Przybyl and two or three of the other
salesmen asked Williams and Mains what they should do. Williams
and Mains told them to "carry on, as before."
On the evening of October 3, 1940, Templeton sent the following
letter to the 15 city salesmen named in the complaint and listed in
Exhibit C, herein: is
Due to your refusal to perform your work, namely selling the
products of this company, we wish to advise you that your con-
nection with this company is at an end, effective as of this date.
Templeton acted so precipitately in mailing the letters of discharge
that Mains, the sales supervisor, according to his own admission, was
not informed of and did not know of the discharges until October 4,
after the salesmen had received the letters.
1' The precise figures were not introduced in evidence.
' The record does not disclose whether or not the respondent discharged Chris Molick
and Davis L. Carr, appearing as city salesmen on the respondent 's pay roll of ,September
14, 1940 Mollck had signed an application for membership in Local 264. Carr had not.
UNITED BISCUIT COMPANY OF AMERICA ' 797
Neither Templeton nor any other of the respondent's supervisory
officials who may have participated in the discharge of the salesmen,
testified concerning the respondent's reasons therefor 13 The respond-
ent, as found above, pursuant to its hostility to self-organization,
warned salesmen against joining Local 264 prior to their discharge,
and attempted to induce them to return to work after their discharge
upon the condition that they give up their membership in and activi-
ties on behalf of Local 264. Under these circumstances, and upon
the entire record, we find, as did the Trial Examiner, that the re-
spondent discharged the 15 city salesmen named in the complaint,
because of their membership in, and in order to disrupt their self-
organization through, Local 264.
"The respondent contends , nevertheless , that the city salesmen , between September 26
and October 3, 1940, actively aided the cause of the strikers by discouraging, rather than
promoting , the sale of the respondent ' s products and that it was for this reason that they
were discharged . City salesman McLean testified that prior to October 3, 1940, all the
city salesmen participated in discussions concerning ways and means of assisting the
strikers and that they decided that the best way to accomplish this purpose was to induce
customers to postpone acceptance of their orders until after the strike Busch denied
McLean's testimony Dressel testified that at no time before they were discharged did the
city salesmen decide to do anything "to harm the company." It is not necessary to re-
solve this conflict in the testimony because there is no showing, even if discussions of the
kind testified to by McLean were held , that the respondent had knowledge of them or that
prior to being discharged the city salesmen as a group took any action adverse to the
respondent ' s interests It is clear that after their discharge the city salesmen held numer-
ous meetings to consider ways of furthering the strike and that they urged customers not
to purchase the respondent 's goods until settlement of the strike All of the city salesmen
who testified, except Przybyl, made general admissions at the hearing that their sympathies
had been at all times with the strikers Such testimony as to their inner feelings is, under
the circumstances , largely irrelevant . Koeppel, Busch, and Dressel admitted that they did
not attempt to persuade reluctant customers to accept immediate delivery of goods during
the strike . As discussed above, the city salesmen advanced two versions of the respondent's
instructions to them at the beginning of the strike The first version was that they should
take orders for future delnery from customers who were apprehensive because of the
strike, about taking immediate delivery The second was that the salesmen were to suggest
to all customers that orders be placed for delivery upon settlement of the strike The
respondent itself advanced no evidence on this matter. Whichever version of the respond-
ent's instructions is accepted , the failure of some of the salesmen to press reluctant cus-
tomers to accept immediate delivery did not violate such instructions McLean admitted
that he had prior to October 3, 1940, told about 20 customers that he thought the drivers
were engaged in a meritorious strike and that he told about 5 customers that if the re-
spondent sold less merchandise the drivers would have a better chance of winning the
strike There is no showing , however, that before discharging the city salesmen the re-
spondent was aware of the foregoing action by McLean or that it believed any of the city
salesmen were not following its instructions as to selling procedure during the strike On
the contrary , it is clear that on October 2 or 3 , 1940, Templeton told them (prior to their
refusal to ride on or accompany delivery trucks) "We are going to continue lust as we
have in the past," and on the same occasion Williams and Mains instructed some of the
city salesmen to "carry on as before." Although it appears that there was a substantial
decline in the volume of orders obtained by the city salesmen during the strike before
they were discharged , the evidence shows that there were reasons for such a decline which
were beyond the control of the city salesmen and of which the respondent was obviously
aware There was no mention at the meeting on October 2 or 3 , 1940, of the reduced
volume of orders . In summary , the evidence establishes , and we find, that until the time
of their discharge , the city salesmen, with the possible exception of McLean, performed
their duties in accordance with the respondent' s instructions . We further find that Mc-
Lean 's. departure from his instructions , if any, was not substantial and that the respond-
ent was not aware of such departure.
'798 DE'CTiSITONS OF NATIONAL LABOR RE,LATIONSI BOARD
We are of the opinion, and find, that the respondent was also moti-
vated, in its discharge of the salesmen, by their refusal, immediately
preceding the discharge, to ride on or accompany the respondent's de-
livery trucks. The record discloses that riding on or accompanying
delivery trucks was not within the scope of the regular duties of the
salesmen. The trucks which the respondent requested the salesmen to
ride on or accompany were being driven by new employees hired to
replace unfair labor practice strikers. The salesmen refused the re-
spondent's request because they felt that compliance would have placed
them in the position of breaking a strike caused and prolonged by
unfair labor practices.20 Their refusal, accordingly, constituted con-
certed activity protected by the Act and their discharges, insofar as
they were motivated by such refusal, were discriminatory.21
We find that by discharging the 15 city salesmen listed in Appendix
B on October 3, 1940, and by thereafter refusing to reinstate them,
the respondent has discriminated against them in regard to hire, tenure,
terms, and conditions of employment, thereby discouraging member-
ship in the Unions and interfering with, restraining, and coercing its
cmployees in the exercise of the rights guaranteed in Section 7 of
the Act.
F. Discrimination against the strikers; refusals to bargain during
the strike
1. Sequence of events
On or about October 23, 1940, Smith and Carlson, representatives
of Locals 264 and 431, respectively, met Graf in front of the plant.
According to Smith's account of the ensuing conversation, he asked
Graf, "Why don't we put these people [the strikers] back to work
and forget everything?" Carlson testified; "I asked Mr. Graf to take
all of my people I had on the picket line, take them back to work and
`Let's forget about the whole affair."' Carlson testified further, and
his testimony was corroborated by Smith, that Graf replied to both
of them "We have got enough employees and they [the strikers] are
your people. You took them out with you ; now you can keep them."
Jeanette Pacer, a striking employee who was present, corroborated the
testimony of Smith and Carlson. Although Graf denied that Smith
and Carlson asked him to reinstate the strikers, he admitted that he
had a conversation with them and did not deny having told them that
the respondent had enough employees, that the strikers were "their
20 Thus, Busch and Dressel testified that they refused to ride on or accompany the
delivery trucks because they believed that to have complied with the respondent 's request
would have been to make "strike breakers" of them
21 See Matter of Rapid Roller Co , a corporation and Local 120, United Rubber Workers
of America, affiliated with the C. 1. 0., 33 N. L. R. B., No. 108 , and Matter of Niles Fire
Brick Company and United Brick Workers L. I. U, No. 198 , affiliated with the Congress of
Industrial Organizations , 30 N. L R . B. 426.
UNITED BISCUIT COMPANY OF AMERICA 799
people" or that they had "taken them out" and could "keep them."
We credit, as did the Trial Examiner, the foregoing testimony of
Smith, Carlson, and Pacer.
On October 31, 1940, Smith and Graf, while surrounded by a num-
ber of the discharged salesmen, engaged in a short conversation. Smith
testified that he asked Graf how soon they could "get together and get
this thing straightened out, get some sort of a settlement," and that
Graf answered, "I don't know. It is out of my hands." According to
Smith, he then asked,"Well, will you put our people to work and forget
the whole thing?" and Graf stated again that the matter was out of
his hands, and moved on. Smith's testimony was corroborated by
seven of the salesmen who were present and testified at the hearing.
Graf testified that on the occasion in question Smith asked him only
if they "couldn't get together on this thing" and that he (Graf) replied
that the matter was out of his hands. Graf denied that Smith said
anything about "putting his people back to work." We credit, as did
the Trial Examiner, the testimony of Smith and the salesmen.
On November 2, 1940, Smith and Carlson conferred with represent-
atives of the respondent and the Regional Director of the Board. It
is undisputed that during the meeting, Graf stated that he "was not
entirely satisfied" that Local 431 represented a majority of the pro-
duction workers, but conceded that he had not previously communi-
cated his alleged doubt to the union. The parties agreed to meet the
following day in an effort to settle the strike.
On Sunday, November 3, 1940, Smith, Carlson, and Raichle, counsel
for the respondent, met as planned. They met again on seven or eight
occasions during November, several times with Edward A. Wiesner,
representative of Local 1053. The discussion at these meetings cen-
tered on the demand by Local 431 for a closed shop and the respondent's
demand for an open shop.22
On November 20, 1940, representatives of the Unions again met
with Raichle. Among the various issues discussed was that of rein-
stating the strikers. The respondent refused to discharge employees
hired during the strike in order that strikers might be reinstated.
Wiesner testified that he asked Raichle, "In the interests of the whole
thing and trying to settle this whole question, how about putting all
our people out in the street back to work?" According to Wiesner,
both Smith and Carlson joined in this request. Smith and Carlson
corroborated Wiesner's testimony. Raichle admitted at the hearing
that Wiesner said that he would like to have the strikers back at work,
but asserted that this remark was made "apropos of the discussion on
the subject of preferential shop." On this point Wiesner testified
'a At the hearing Raichle and Carlson agreed that their discussions of a settlement were
predicated upon a tentative understanding that the production workers would be granted
an increase in pay.
800 DE'CISQONS OF NATIONAL LABOR R'ELATION'S BOARD
that, "When we made the proposition to you to throw everybody back
to work, we didn't talk about any contracts . . . It was complete sur-
render." 23 On the basis of all the evidence, we credit Wiesner's ac-
count of the discussion at the meeting concerning reinstatement of
the strikers. We find, as did the Trial Examiner, that on November
20, 1940, the Unions unconditionally requested the respondent to rein-
state the strikers. The meeting adjourned with the understanding that
Raichle would report the position of the Unions to officials of the
respondent.
On November 22, 1940, representatives of the Unions conferred again
with Raichle and the Regional Director. The discussion centered upon
whether the respondent would discharge its employees hired after the
strike, take striking employees back, and share the work equally be-
tween them and those who had not gone on strike. Raichle agreed
to meet again with the representatives of the Unions on the following
Sunday.
On November 24,1940, the Unions and the respondent, by their repre-
sentatives, met with the Regional Director as planned. The respondent
announced that its position was as follows: (1) the strikes must be
settled together; (2) it would bargain with Local 431, but for its mem-
bers only; (3) it would discharge no employees to make room for
returning strikers; and (4) it would hire strikers only as'it could use
them and retain all its employees then working. The meeting ad-
journed with the understanding that the respondent would reexamine
its position, and that the parties would reconvene.
On December 1, 1940, the Unions, the respondent, and the Regional
Director met again. The respondent adhered to the position it had
taken at the meeting of November 24, 1940. MacClellan, the re-
spondent's president, asserted that "exclusive recognition leads to a
closed shop," and that he would not agree to a closed shop. It is
undisputed that the Unions reiterated their demand for exclusive
recognition and that the respondent categorically refused such demand.
The meeting then adjourned.
2. Concluding findings with respect to discrimination against the
strikers.
As we have found above, the respondent caused and prolonged the
strike by unfair labor practices. The respondent hired new employees
to take the jobs of the strikers. When officials of the Unions asked
the respondent to reinstate the strikers on October 23, 1940, the re-
23 Upon cross -examination by counsel for the respondent , Wiesner testified that it was
his position at all of the meetings he attended with representatives of the respondent that
the striking members of Local 1053 would not return to work until a contract was signed
by the respondent . Later, also upon cross -examination , he explained that such was his
position until the meeting of November 20, 1940, and that at that meeting there was no
talk of contracts.
UNITED BISCUIT COMPANY OF AMERICA 801
spondent, through Graf, refused, and predicated its refusal, not on
the ground that the application was too casual or in some other respect
inadequate, but squarely on the ground that the men had gone on
strike, and that the respondent had enough employees, including those
hired after the strike, without them. Graf, in telling the officials of
the Unions that since they had "taken the men out," they could "keep
them," clearly meant that the strikers were to be penalized for having
gone on strike. If there is any ambiguity in the respondent's expressed
position on 'October 23, such ambiguity is dispelled by the position
which the respondent persisted in throughout the subsequent negoti-
ations with the Unions; the respondent clearly refused immediately
to reinstate the strikers on the ground that it was unwilling to dis-
place persons hired after the strike. At no point during these nego-
tiations did the respondent assert that its refusal to reinstate the
strikers was due to any understanding that they were not ready, able,
and willing to return to work immediately upon being offered rein-
statement.24 Under these circumstances we find, as did the Trial Ex-
aminer, that the respondent refused to reinstate the unfair-labor-prac-
tice strikers, listed hereafter in Exhibit A, on and after October 23,
1940, and that by such refusal the respondent discriminated in regard
to hire, tenure, terms, and conditions of employment of the striking
employees represented by the Unions; and that the respondent thereby
interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.25
u The respondent now contends that any requests for reinstatement which the Unions
may have made in behalf of the strikers were conditional upon the respondent 's compliance
with other demands. We accept the more realistic view , however, that by October 23,
1940, and thereafter , the Unions were quite willing to terminate the strike and negotiate
other demands after the strikers were back at work, but that when the respondent refused
to reinstate the strikers , the Unions adopted the only course open to them , namely , further
attempts to negotiate while continuing the strike Moreover , were we to assume that the
applications of the Unions were made with an intent to secure other demands before re-
suming work , we would nevertheless find the respondent ' s refusal of immediate reinstate-
ment to the strikers to be unlawful because whether or not the applications were thus
qualified had no bearing on the respondent 's decision to retain newly hired employees in
preference to the unfair -labor-practice strikers Cf Eagle-Picher Mining & Smelting Co.
V. National Labor Relations Board, 119 F. (2d) 903 (C. C. A. 8), enf. as modified in other
respects Matter of Eagle -Picker Mining & Smelting Company, a corporation , and Eagle-
Picher Lead Company, a corporation , and International Union of Mine, Mill & Smelter
Workers, Locals Nos. 15, 17, 107 , 108, and 111 , 16 N. L R B. 727 ; Matter of Sunshine
Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N. L. R B
1252 , enf. in National Labor Relations Board v. Sunshine Mining Company , 110 F. (2d)
780 (C C. A. 9), cert, denied 312 U. S. 678 ; Matter of El Paso Electric Company, a Cor-
poration and Local Union 585, International Brotherhood of Electrical Workers; and
N. P. Clay, et al , 13 N L. R . B. 213, enforced as modified in other respects in El Paso
Electric Co . v. National Labor Relations Board, 119 F (2d) 581 (C. C. A. 5).
25 Cf. Stewart Die Casting Corp . v. National Labor Relations Board, 114 F. ( 2d) 849
( C. C. A. 7 ) enforcing as modified in other respects Matter of Stewart Die Casting Corp.
and United Automobile Workers of America, Local 298, 14 N. L. R . B. 872, rehearing de-
nied October 18, 1940, cert denied , 312 U. S . 680; Matter of McKaig -Hatch, Inc. and
Amalgamated Association of Iron, Steel , and Tin Workers of North America , Local No.
1139, 10 N. L. R. B. 33; National Labor Relations Board v. Niles Fire Brick Company,
December 5, 1941 (C. C. A. 6) enforcing Matter of The Niles Fire Brick Company and
United Brick Workers L. I. U. No. 198, 18 N. L. R B. 883.
438861-42-vol. 38-52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Concluding findings with respect to refusals to bargain during the
strike
We have found that the respondent refused to bargain collectively
with the Unions prior to the strike commencing September 26, 1940.
The evidence concerning conversations between the Unions and the
respondent during the strike shows, and we find, as did the Trial
Examiner, that at all times during the strike the respondent persisted
in its refusal to recognize the Unions as collective bargaining repre-
sentatives of the employees in appropriate units, and that by the fore-
going conduct the respondent refused to bargain collectively with the
Unions as the representatives of its employees in the appropriate units
hereinbefore described, and interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
G. The alleged discrimination against Sommer f eld and
Habitzreunther
The complaint alleged that the respondent demoted Stephen Som-
merfeld and Leo Habitzreuther on or about August 26 and September
9, 1940, respectively, in order to discourage membership in the Unions.
The respondent's answer denied this allegation of the complaint. The
Trial Examiner found that the alleged demotions were discriminatory
and the respondent excepted to such finding.
Until after their alleged demotions, neither Sommerfeld nor Hab-
itzreuther was a member or active on behalf of any of the Unions.
The record does not clearly reveal Sommerfeld's duties. He testified
that he had been employed by the respondent for more than 30 years
and that during the 3 or 4 years prior to August 1940 he had worked
as an oven foreman, having 34 employees under his supervision shortly
before his alleged demotion. Sommerfeld testified further that as
oven foreman he did no physical work. Superintendent Gerber, who
testified after Sommerfeld at the hearing, asserted that Sommerfeld's
usual duties included the part-time operation of the number 3 ma-
chine in the baking department, which required manual labor. Som-
merfeld did not thereafter return to the witness stand to deny or
explain Gerber's testimony. Habitzreuther, who had been employed
by the respondent for about 18 years, worked at various jobs including
the operation of machines in the baking department, feeding dough,
shoving pans, and general relief work. At the time of his alleged
demotion he was engaged in operating a machine in the, baking
department.
On August 19, 1940, there was an American Federation of Labor
parade in Niagara Falls near Buffalo. Joe Adams, an employee,
UNITED BISCUIT COMPANY OF AMERICA 803
who marched in the parade, testified that on August 20, Gerber
asked him about the condition of his feet "from parading last night
in Niagara Falls" and then laid him off.26 Habitzreuther, who had
nothing to do with the parade, testified that sometime in the summer
of 1940 Gerber asked him in the plant, "What is the matter; your
feet sore?" Gerber admitted that he sometimes "kidded" Adams
about his feet, but denied that such "kidding" related to union mat-
ters. Gerber denied having said anything to Habitzreuther about
his feet.
At the end of the third week in August 1940, Sommerfeld returned
to work from a vacation of 2 weeks and Habitzreuther started on
his vacation of 1 week. Sommerfeld, upon his return, was assigned
by Gerber to work on the number 3 machine. There is no showing
that at the time Sommerfeld questioned or disputed this assignment.
He testified that after he had worked for a week on the machine
Gerber told him that he would not be a foreman any longer, that
some day he would know the reason why, and that Gerber knew that
Habitzreuther was head of a union. Sommerfeld testified further
that he tried to convince Gerber that Habitzreuther had no connec-
tion with a union, but that Gerber would not believe him. Gerber
denied Sommerfeld's testimony. At the end of the fourth week in
August 1940, Habitzreuther returned from his vacation and Gerber
assigned him to work as a helper on a machine in the baking de-
partment. It does not appear that he protested against this assign-
ment at the time. He remained on this job, and Sommerfeld re-
mained on the number 3 machine, until the strike which began Sep-
tember 26, 1940. Both men then joined in the strike. Neither
suffered any cut in pay prior to the strike. Gerber testified, in
substance, that the alleged demotions were nothing more than routine
shifts made in accordance with the changing labor requirements at
the plant.
We are of the opinion, and hereby find, that the evidence fails
to establish that the respondent unlawfully discriminated against
Sommerfeld and Habitzreuther on or about August 26 and September
9, 1940, respectively.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent set
forth in Section I above, have a close, intimate, and substantial
ielation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
21 Adams was reinstated September 16, 1940. through the intercession of Local 264
804 DECISIONS OF NATIONAL LABOR RELATION S BOARD
V. THE REMEDY
Since we have found that the respondent has engaged in unfair
labor practices, we shall order it to cease and desist therefrom. We
shall also order the respondent to take certain affirmative action
which we find necessary to effectuate the policies of the Act.
Having found that the respondent has refused to bargain collectively
with Local 431, Local 1053, and Local 264, as the representatives of its
employees in appropriate units, we shall order it, upon request, to
bargain with the said unions as the exclusive representatives of the
employees within the respective appropriate units.
We have found that the employees listed in Appendix A ceased
work on September 26, 1940, as a result of the respondent's unfair
labor practices and that the respondent thereafter discriminated
against them in regard to their hire and tenure of employment. In
order to effectuate the policies of the Act, we shall order the respond-
ent to offer reinstatement to their former or substantially equivalent
positions to those employees listed in Exhibit A who have not been
fully reinstated. Such reinstatement shall be without prejudice to
their seniority and other rights and privileges and shall be effected
in the following manner: All employees hired by the respondent after
September 26, 1940, the date of the commencement of the strike, shall,
if necessary to provide employment for those to be offered reinstate-
ment, be dismissed. If, thereafter, despite such reduction in force,
there is not sufficient employment for the employees to be offered rein-
statement, all available positions shall be distributed among the remain-
ing employees, including those to be offered reinstatement, without
discrimination against any employee because of his union affiliation
or activities, following such system of seniority or other non-discrim-
inatory practice to such extent as has heretofore been applied in the
conduct of the respondent's business. Those employees remaining,
if any, after such distribution, for whom no employment is immedi-
ately available, shall be placed upon a preferential list and offered
employment to their former or substantially equivalent positions as
such employment becomes available and before other persons are hired
for such work, in the order determined among them by such system
of seniority or other non-discriminatory practice as has heretofore
been followed by the respondent.
We shall also order the respondent to make whole the employees
listed in Appendix A for any loss of pay they may have suffered by
reason of the respondent's refusal to reinstate them, by payment to
each of them of a sum of money equal to the amount which he normally
would have earned as wages from October 23, 1940, to the date of the
UNITED BISCUIT COMPANY OF AMERICA 805
respondent's offer of reinstatement or placement upon the preferen-
tial list hereinabove described; less his net earnings during said period.27
The remedy above, providing for reinstatement of the strikers with
back pay, is designed to place the striking employees, as nearly as
possible, in the positions they would have occupied but for the re-
spondent's unfair labor practices. The remedy is based not only upon
our finding that the respondent discriminated with regard to the
hire, tenure, terms, and conditions of employment of such employees,
but also, and independently, upon our finding that the strike, which
began on September 26, 1940, and in which they engaged, was caused
and prolonged by the respondent's unfair labor practices.28
The respondent contends that the drivers and shippers represented
by Local 264 are not entitled to reinstatement or back pay for the
alleged reason that they struck on September 26, 1940, in violation of
the contracts between Local 264 and the respondent.zs The Board
does not condone breaches of contract. But under the circumstances
of this case, we cannot agree with the respondent's contention that
the drivers and shippers should not be ordered reinstated with back
pay. The strike was caused by the unfair labor practices of the re-
spondent directed against the self-organization of its employees.
Such unfair labor practices were inconsistent with and inimical to the
purposes of the contracts as well as to the entire procedure of collec-
tive bargaining. As a result of them the members of Local 264
reasonably believed that the respondent's destructive efforts threatened
the existence of their union. Under these conditions, which were of
the respondent's making, the drivers and shippers joined in the strike.
Upon the entire record, we find that the remedy best suited to effec-
tuate the policies of the Act, on the facts of this case, is that set forth
above.30
21 By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N L. R. B. 440. Monies received for
work performed upon Federal, State, county , municipal , or other work -relief projects
shall be considered as earnings . See Republic Steel Corporation v. National Labor Relations
Board, 311 U. S. 7.
28 Matter of MoKaig Hatch, Inc . and Amalgamated Association of Iron, Steel, and Tin
Workers of North America, Local No. 1139, 10 N. L. R. B. 33 ; Matter of Western Felt
Works, a corporation , and Textile Workers Organizing Committee, Western Felt Local,
10 N L. R. B. 407.
21 The contracts covering the drivers and the shippers contain, inter alia , clauses pro-
viding that Local 264, "agrees to protect the Company against all strikes by members of
the Union, providing the provisions of this contract are lived up to."
40 Cf. the respondent 's assertion in its brief , repeated at the oral argument , that on June
10, 1941 , subsequent to the bearing herein, "in its desire to promote labor peace," it
offered reinstatement to each of the striking employees.
We do not determine whether Local 264 , or the respondent , or both , breached their
agreements under the private contract law of the State of New York. Those are technical,
common-law issues; they are not germane to the Instant proceeding [Cf. National Labor
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that by discharging the employees listed in Appendix
B on October 3, 1940, the respondent has discriminated against them
with respect to their hire and tenure of employment, we shall order
that the respondent offer them reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority and
other rights and privileges.
We shall further order that the respondent make whole the em-
ployees listed in Appendix B for any loss of pay they may have suf-
fered as a consequence of their discharges by paying to each of them
a sum of money equal to the amount which he would normally have
earned as wages from October 3, 1940, to the date of the respondent's
offer of reinstatement, less his net earnings during said period.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Bakery and Confectionery Workers' International Union of
America, Local 431; Bakery, Tea, Coffee, Yeast & Pretzel Drivers
Local #264; and Auto Mechanics Local 1053, International Associa-
t ion of Machinists, all affiliated with the American Federation of
Labor, are labor organizations within the meaning of Section 2 (51
of the Act.
2. The employees of the respondent engaged in production, exclud-
ing supervisory and clerical employees, at all times material herein
constituted and now constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of
the Act.'
3. Bakery and Confectionery Workers' International Union of
America, Local 431, was on September 16, 1940, at all times thereafter
has been, and now is, the exclusive representative of all the employees
in such unit for the purposes of collective bargaining, within the
-meaning of Section 9 (a) of the Act.
4. The employees of the respondent known as "city" salesmen at
all times material herein constituted and now constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act.
5. Bakery, Tea, Coffee, Yeast & Pretzel Drivers Local #264,
was on September 20, 1940, at all times thereafter has been, and now
is the exclusive representative of all the employees in such unit
Relations Board v. Newark Morning Ledger Co ., 120 F. (2d) 262 , (C C. A. 3), cert . denied
63 S. Ct 363 , enforcing as modified in other respects Matter o f Newark Morning Ledger
Company and American Newspaper Guild, 21 N. L R. B 987] and are treated most com-
petently by the courts of that State having jurisdiction over actions for breach of con-
tract.
S
UNITED BISCUIT COMPANY OF AMERICA 807
for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act. I '
6. The employees of the respondent engaged in the repair and
maintenance of automotive equipment at all times material herein
constituted and now constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of
the Act.
7. Auto Mechanics Local 1053, International Association of Ma-
chinists, was on March 9, 1940, at all times thereafter has been, and
now is, the exclusive representative of all the employees in such unit
for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act.
8. By refusing to bargain collectively with Auto Mechanics Local
1053, International Association of Machinists; Bakery, Tea, Coffee,
Yeast & Pretzel Drivers Local #264; and Bakery and Confectionery
Workers' International Union of America, Local 431, respectively,
as the exclusive representatives of its employees in the respective ap-
propriate units, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (5) of the Act.
9. By discriminating against the employees named in Appendices
A and B in regard to their hire and tenure of employment and
thereby discouraging membership in Auto Mechanics Local 1053,
International Association of Machinists; Bakery, Tea, Coffee, Yeast
& Pretzel Drivers Local #264; and Bakery and Confectionery
Workers' International Union of America, Local 431, the respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
10. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor ,practices,
within the meaning of Section 8 (1) of the Act.
11. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
12. The respondent has not unlawfully demoted Stephen Sommer-
feld and Leo Habitzreuther on or about August 26 and September
9, 1940, respectively.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent
United Biscuit Company of America (Ontario Biscuit Division),
Buffalo, New York, its officers, agents, successors, and assigns shall:
808 DE 'OISIIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Refusing to bargain collectively with Bakery and Confectionery
Workers' International Uiiion of America, Local 431 , as the exclusive
representative of its employees engaged in production , excluding
supervisory and clerical employees;
(b) Refusing to bargain collectively with Bakery , Tea, Coffee,
Yeast & Pretzel Drivers Local #264, as the exclusive representative
of its employees known as "city " salesmen;
(c) Refusing to bargain collectively with Auto Mechanics Local
1053, International Association of Machinists , as the exclusive repre-
sentative of its employees engaged in the repair and maintenance
of automotive equipment;
(d) Discouraging membership in Bakery and Confectionery Work-
ers' International Union of America , Local 431; Bakery , Tea, Coffee,
Yeast & Pretzel Drivers Local $ 264; Auto Mechanics Local 1053,
International Association of Machinists, or any other labor organiza-
tion of its employees, by discharging or refusing to reinstate any of
its employees , or in any otlier manner discriminating in regard to their
hire or tenure of employment or any terms or conditions of their
Il temp oymen ;
(e) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization , to form,
join, or assist labor organizations , to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activ-
ities for the purposes of collective bargaining or other mutual aid
or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Bakery and Confec-
tionery Workers' International Union of America, Local 431, as the
exclusive representative ofd its employees engaged in production, ex-
cluding supervisory and clerical employees , in respect to rates of pay,
wages, hours of employment, and other conditions of employment, and,
if an understanding is reached on any of such matters, upon request
embody such understanding in a signed agreement;
(b) Upon request, bargain collectively with Bakery, Tea, Coffee,
Yeast & Pretzel Drivers Local #264, as the exclusive representative
of its employees known as "city" salesmen in respect to rates of pay,
wages, hours of employment , and other conditions of employment, and
if an understanding is reached on any of such matters, upon request
embody such understanding in a signed agreement;
(c) Upon request, bargain collectively with Auto Mechanics Local
1053, International Association of Machinists , as the exclusive repre-
sentative of its employees engaged in the repair and maintenance of
i
UNITED BISCUIT COMPANY OF AMERICA 809
automotive equipment, in respect to rates of pay, wages, hours of
employment, and other conditions of employment, and if an under-
standing is reached on any of such matters, upon request embody such
understanding in a signed agreement;
(d) Offer to the employees listed in Appendix A immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and privi-
leges, dismissing if necessary all employees hired since September 26,
1940, in the manner set forth in the Section entitled "The remedy"
above, and place those for whom employment is not immediately avail-
able upon a preferential list and offer them employment as it becomes
available in the manner set forth in said Section;
(e) Make whole the employees listed in Appendix A for any loss
of pay suffered as a result of the respondent's discrimination in the
manner set forth- in the Section entitled "The remedy" above ;
(f) Offer to the employees listed in Appendix B immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges ;
(g) Make whole the employees listed in Appendix B for any loss
of pay suffered as a result of the respondent's discrimination, in the
manner set forth in the Section entitled "The remedy" above ;
(h) Post immediately in conspicuous places in its plant in Buffalo,
New York, and maintain for a period of at least sixty (60) consecutive
days from the date of posting, notices to its employees stating: (1)
that the respondent will not engage in the conduct from which it has
been ordered to cease and desist in paragraphs 1 (a), (b), (c), (d),
and (e) hereof; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), (c), (d), (e), (f), and (g) hereof;
(3) that employees are free to become or remain members of Bakery
and Confectionery Workers' International Union of America, Local
431; Bakery, Tea, Coffee, Yeast & Pretzel Drivers Local #264, Auto
Mechanics Local 1053, International Association of Machinists, and
that the respondent will not discriminate against any employee be-
cause of such membership ;
(i) Notify the Regional Director for the Third Region in writing
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint, as amended, be, and it
hereby is, dismissed insofar as it alleges that the respondent unlaw-
fully demoted Stephen Sommerfeld and Leo Habitzreuther on or
about August 26 or September 9, 1940, respectively.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A 31
PRODUCTION WORKERS
Ambroziak, Bronislaus
Ardolina, John
Augustyn, A
Balon, Sophie
Bartkowski, Frank
Bartkowski, John
Bilinski, Eleanor
Blaszak, Jean
Braciak, Clara
Butcher, Mildred
Chachulska, Hattie
Cipolla, Peter J.
Cosamento, Michael
Dahn, Irene
Dawidowicz, Eleanor
DiPaolo, Michael
Edwards, Thomas C.
Eich, John
Eich, Joseph
Fairbanks, Fred
Fazio, James N.
Feirabend, Raymond E.
Fritz, Virginia
Galuszka, Bertha
Gawinski, Sophie
Gawronski, Helen
Gerevics, Helen
Gesko, Albert
Granditz, John
Grieco, John B.
Grieco, Joseph
Gruczman, Josephine
Habitzreuther, Albert E.
Habitzreuther , Eugene
Habitzreuther, Leo
Hanley, Thomas
Hejza, Lottie
Herod, Tony R.
Hey, John
Hoff, Marian
Hondzinski, Felix
Hondzinski, Sigmund J.
Jakubczak, Alfreda
Jasinski, Jean
Kaleta, Ruth
Kalwicki, Mrs. H. L.
Kalwicki, John A.
Kapturowska, Helen
Kapturowska, Mary D.
Kasprzak, -Sophie M.
Kaznowska, Peggy
Kon, Joseph
Kon, Michael
Kociszewski, Mary
Kociszewska, Regina A.
Kucia, Florence
Kucia, Julia
Kusz, Sophia
Kuznicka, Celia H.
Lepsch, Marie
Lindemann, Otto A.
Lisowska, Florence
Liszkiewicz, Laura
Machelski, Emelia
Maziera, Anna
Majerek, Charles
Majerek, Mary
Mallwitz, Clarence
Michel, Clarence
Miedanowski, I. W., Mrs.
Mottl, William
Musial, Celia T.
Myszkowska, Alice
Myers, Albert, Jr.
Nawrocki, Florence
Nowak, Clara
Nowak, Florence W.
Nowakowski, Victoria
11 The documentary evidence contains numerous discrepancies in the spelling of names
which cannot be reconciled The above lists sufficiently identify the individuals listed.
UNITED BISCUIT
Pacer, Helen
Pacer, Lucy
Pajak, Leo J.
Pajak, Mary
Pajak, Rose
Pidgeon, Rose
Pisa, Angeline
Rock, Louis
Rohe, Edward, Sr.
Rohe, George C.
Rokitka, Viola
Russell, Harriet
Sadroga, Wanda T.
Schmidt, Albert E.
Schultz, Irene
Schultz, Jean
Schwanekamp, Irene
Scuipider, Mary
Sirotski, Gertrude
Skrzypczek, Celia
Skutnik, Frances
Sledge, Stanley
Sniatecki, Frances
Atkins, Herbert
Caross, Al
• Childs, Jay
Collier, Aloysius
Gister, Casimir
Habitzreuther, Andrew
Halicki, Vincent
Hicks, Arthur
Adams, Joseph
Ihlfeld, Fred
Krzyzykowski, Bruno
Kush, Joseph
Potwora, John
Sokolik, Angeline
Sommerfeld, Edward
Sommerfeld, Stephen
Stasinski, Adele
Swiniarski, Kasey
Thomas, Eleanor
Tisdale, Harry
Topolski, John
Toporczyk, Anna
Weissenberger, Frank M.
White, Esther
Wisnieski, Stella
Wojtulska, Alice
Wojtulski, Stella
Wolffe, David
Wolffe, Raymond
Wolinski, Florence
Zgoda, Charlotte M.
Zielinski, Edward
Ziobro, Stella
Zmijewska, Felicia
Zwawa, Stella
Knell, Walter
Kramer, William
Moulton, Earl
Moulton, Glen
O'Connor, James
Schwartz, Anthony
Yantzen, William
Speidel, Al
Steinagle, Louis
Strzycelczyk, M.
Wakenman, Clarence
Wesolek, Joseph
AUTO MECHANICS
COMPANY OF AMEIRPCA sit
DRIVERS
SHIPPERS
Clement, Glenn S. McGee, James P.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
CITY SALESMEN
Bader, Harry R.
Busch, Anthony
Coleman, Walter
Dressel , Chauncey
Ihle, Valentine G.
Johnson, Fred
Koeppel, Edwin
McLean, Norton L.
Messersmith , Albert
Perry, Carlton G.
Pfescht, George
Przybyl, Casimir
Rogers, Edward
Spinner, Salvatore S.
Winnert, Franklin W.