American Bakeries Co.

National Labor Relations Board - Board Decisions

Jul 31, 1943

51 N.L.R.B. 937 (N.L.R.B. 1943)

In the Matter of AMERICAN BAKERIES COMPANY and BAKERY AND CON-
FECTIONARY WORKERS INTERNATIONAL UNION, LOCAL No. 42, AFFILI-
ATED WITH THE AMERICAN FEDERATION OF LABOR
Case No. C-2651.Decided July 31, 191,3
DECISION
AND
ORDER
On June 22, 1943, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had en-
gaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action as set out in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent and the Union filed ex-
ceptions to the Intermediate Report and briefs in support of the
exceptions.' None of the parties requested oral argument before the
Board. The Board has considered the rulings of the Trial Examiner
at the hearing and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs of the parties, and the
entire record in the case, and hereby adopts the findings,'conclusions,
and recommendations of the Trial Examiner, with the exceptions and
qualifications noted below :
1. The Trial Examiner found that the settlement agreement entered
into between the parties on January 30, 1943, did not bar the Board
from considering the respondent's prior unfair labor practices, for the
reason as he further found, that the respondent continued to violate
the Act following the settlement. But we are not satisfied that the
respondent ' did, thereafter, engage in further violations. We have
considered the testimony with regard to the respondent's acts follow-
ing the settlement and find that, under all the circumstances, such acts
do not constitute' interference, restraint, or coercion, within the mean-
ing of Section 8 (1) of the Act.' Accordingly, in accordance with
1 The respondent contends that the Union 's withdrawal "with prejudice" of charges filed
with the Board prior to the settlement agreement, should ' serve as an estoppel to the
Board's consideration of the respondent 's acts occurring prior to the settlement agreement
In view of our finding , however, with regard to the respondent ' s acts following the settle-
ment agreement , we deem it unnecessary to resolve the issue thus raised by the respondent
51 N. L It B , No. 147.
937
938 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
our established practice, we will not go behind the settlement to con-
sider the alleged unfair labor practices which preceded it.2
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board orders that the complaint issued herein against the respondent,
American Bakeries Company, Atlanta, Georgia, be, and it hereby is,
dismissed.
CHAIRMAN MiLras took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Mortimer H. Freeman, for the Board.
Mr. Alexander E. Wilson, Jr., of Atlanta, Ga., for the respondent.
Mr. L. M. Hatcher and Mr. R. A. Elliott , of Atlanta , Ga., for the Union.
STATEMENT OF' THE CA1E
Upon an amended charge duly filed on May 14 , 1943, by Bakery and Confection-
ery Workers International Union, Local No. 42, affiliated with the American Fed-
eration of Labor, herein called the Union, the National Labor Relations Board,
herein called the Board , by its Regional Director for the Tenth Region ( Atlanta,
Georgia ), issued its complaint dated May 15, 1943, against American Bakeries
Company, Atlanta, Georgia , herein called the respondent, alleging that the respon-
dent had engaged in and was engaging in unfair labor practices , within the mean-
ing of Section 8 ( 1) and ( 3) and Section 2 (6) and ( 7) of the National Labor
Relations Act,.49 Stat . 449, herein called the Act. Copies of the complaint and
notice of hearing thereon , were duly served on the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that the respondent did, on or about March 8, 1943 , discriminatorily transfer
and thereafter discharge employee Gus Kirk , and has since that date refused to
reinstate Kirk for the reason that he joined or assisted the Union or engaged
In other concerted activities for the purposes of collective bargaining ; ( 2) that
the respondent from on or about January 1 , 1941, urged and warned its employees
to refrain from assisting or becoming or remaining members of the Union , vilified
and threatened employees because of their concerted activities , offered rewards
to employees for information concerning concerted activities of employees, and
questioned employees concerning concerted activities ; and (3 ) that by these acts
the respondent interfered with, restrained, and coerced its employees in the
exercise of their rights as guaranteed in Section 7 of the Act.
The respondent filed its answer dated May 21, 1943, wherein it admitted the
jurisdictional allegations of the complaint , denied the commission of the unfair
labor practices alleged and pleaded affirmatively : ( 1) that Kirk had resigned from
the respondent 's employ on or about March 8, 1943; and (2) that on or about
January 15, 1943, the Union had filed a charge alleging violation of Section 8 (1)
of the Act ; that on January 30 , 1943, said charge was withdrawn "with prejudice
Matter of Wickwire Brothers , 16 N. L. R. B. 316; Matter of Hope Webbing Company,
14 N. L. R. B. 55.
0
AMERICAN BAKERIES COMPANY 939
to the refiling of any of the allegations contained therein," said withdrawal being
approved by the Regional Director for the Tenth Region, and that no charge of
alleged violations of the Act occurring on or prior to January 30, 1943, could be
put in issue in connection with the instant proceeding.
Pursuant to notice , a hearing was held on June 3, 4, and 5, 1943, at Atlanta,
Georgia, before Mortimer Riemer, the undersigned Trial Examiner , duly desig-
nated by the Chief Trial Examiner . The Board and the respondent were repre-
sented by counsel , the Union by its representatives , -and all 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 the parties.
At the commencement of the hearing , counsel for the Board offered in evidence
the charges filed by the Union in Cases Nos X-C-880 , X-C-1140, and X-C-1293,
dated respectively , April 12. 1941 , May 19 , 1942 , and January 15, 1943, together
with certain other documents from the files of the Board 's Regional Office per-
taining to said cases , including the Union 's request of January 30, 1943, to with-
draw with 6prejudice the charges filed in Case No. X-C-1293 These documents
were offered on the theory that subsequent to the withdrawal of charges on Janu-
ary 30. 1943 , in Case No . X-C-1293 , the respondent had engaged in further viola-
tions of the Act ; that the withdrawal of charges was not operative as a bar to
the introduction of oral testimony and other evidence concerning alleged viola-
tions occurring prior thereto and on the further ground that if the Trial Examiner
found that violations had occurred subsequent to the withdrawal of charges,
findings could be made of violations occurring prior to the withdrawal of charges
Thereupon counsel for the respondent moved to dismiss the instant proceeding on
the ground that counsel for the Board had "biased and prejudiced " the respon-
dent's case and that the respondent could not receive a fair and impartial hearing
by reason of the introduction of the Board 's exhibits previously mentioned. The
motion to dismiss was denied . The respondent 's further objection to the intro-
duction in evidence of the above mentioned documents was overruled and the
documents admitted 1 ,
At the close of the hearing both the Board and the respondent moved to amend
the complaint to conform to the proof inosfar as it related to matters of form.
This motion was granted All parties were granted opportunity to argue orally
before the Trial Examiner and oral argument was had upon the record. The
parties were also given the opportunity but waived the privilege of filing briefs
with the Trial Examiner
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE RESPONDENT
American Bakeries Company , the respondent herein. is a Florida corporation
with its principal office and place of business in Atlanta , Georgia . It is engaged
in the manufacture . sale, and distribution of bread, cake , and related products
at plants in Alabama. Florida , Georgia , Louisiana , North Carolina, South
Carolina , Tennessee and Virginia . The instant proceeding is concerned only
with the respondent 's plant located in Atlanta , Georgia.
I The respondent's objection to the introduction of these documents is in support of its
defense that a settlement agreement barred any consideration of testimony concerning
events occurring prior to January 30, 1943. This defense is discussed below in Section
D of the Intermediate Report.
"- The findings below respecting the business of the respondent are based upon a stipula-
tion entered into by all parties
940 DECISIONS OF NATIONAL LABOR RELATIOINS BOARD
At the Atlanta plant the respondent purchases annually raw materials includ-
ing flour and other ingredients valued in excess of $100,000, of which approxi-
mately 80 percent is purchased and transported to the respondent's Atlanta
plant from States of the United States other than the State of Georgia. The
respondent produces annually at its Atlanta plant finished products including
bread, cake, and related products, valued in excess of $200,000, 10 percent of
which approximately is sold and distributed in interstate commerce to and
through States of the United States other than the State of Georgia. The
respondent admits that it is engaged in interstate commerce within the meaning
of the Act.
At the time of the commission of the alleged unfair labor practices in the
instant proceeding the respondent employed approximately 225 employees.
II THE ORGANIZATION INVOLVED '
Bakery and Confectionery Workers International Union, Local No 42, is a
labor organization affiliated with the American Federation of Labo1, admitting
to membership employees of the respondent.
III THE UNFAIR LABOR PRACTICES
A. Events prior to January 30, 1943
The Union began organizing the respondent's-employees in the spring of 1941
On or about May 27, 1941, Clement A. Cheatham, then employed by the respond-
ent as a henchman, was told by his immediate superior, Lynn Warr, the head
henchman, that the respondent was having difficulty with the Union, and was
going to transfer employees to different jobs, and that Cheatham and H. P
Watkins, another benchman, would be put on an "oven job" if they "didn't get
right." Warr instructed Cheatham to report to D. L. Perkins, then the respond-
ent's traveling supervisor of bread production. That afternoon Perkins told
Cheatham, "that a good union, . . like the railroads, something like that,"
was all right but that a union was not needed in the Atlanta plant and if Perkins
were in Cheatham's place he would not join the Union The undersigned credits
the testimony of Cheatham and finds that Perkins and Warr made substan-
tially the statements testified to, and their statements are attributable to the
respondent'
Watkins joined the Union on May 24, 1941. On May 28, Warr told him that
if he wanted to hold his job as a henchman he had "better see Mr. Perkins and
get straight." Warr also told Watkins that Perkins wanted to know whether
Watkins would resign from the Union or remain a member, and if he did not
"come out of the union," he would be transferred to the ovens on the night shift.
The next day Perkins told Watkins that he was a good worker and if he "would
leave the union alone" he "had a good chance to go places with the company."
Perkins also stated that other members had resigned from the Union, leaving
Watkins "holding the bag." On May 30, Watkins told Perkins, that he "would
come out of the union." 4 Thereafter Watkins remained in the respondent's em-
ploy as a henchman until November 1942. The undersigned credits Watkins' tes-
8 Perkins and Warr did not testify, Perkins being on leave and Warr no longer in the
respondent's employ Perkins clearly holds a supervisory position. Warr's position is not
as clearly defined as supervisory but because of his association with Perkins in these events,
his conduct, irrespective of his supervisory functions, is attributable to management and
the undersigned so finds.
4 Watkins testified that at this time, "All the men had been so intimidated they were
afraid to talk and you couldn't find out nothing "
AMERICAN BAKERIES COMPANY 941
timony and finds that Perkins and Warr made the statements attributed to them
by Watkins.
Otis E Hayes, joined the Union on May 28, 1941. He testified that on the same
day, Ralph Latham, the bread superintendent, told him that "most of the boys
had pulled out of the union" and that if Hayes wanted to keep his job he had
"better come on out too." He testified further that he informed Latham there-
after that he would quit the Union and that Latham replied, "That is the thing
to do You stick with me, and you will get along all right." Latham remembered
the incident but testified that he could not recall the subject matter of the con-
versation. The undersigned credits Hayes' testimony and finds Latham to have
made the remarks substantially as testified to by Hayes.
Sometime in June 1941 Barney Martin, then employed in the respondent's cake
department, was told to report to the office of R. C. Hicks, the plant manager.
According to Martin's testimony, Hicks asked him if he had attended a union
meeting and whether he had joined the Union. Martin replied that he had.
He testified further as follows:
. . . he [Hicks] talked to me, and he said that the union tried to come
in there before and didn't make it, and if they came in there again the
the company would shut down and move out like they had in other cities.
Hicks denied Martin's testimony, testifying that he had never talked to Martin
in his office, "other than to pass the time of day with him." The undersigned
credits Martin's testimony and finds Hicks to have made the statements at-
tributed to him.'
The Union's efforts to organize the respondent's employees at Atlanta were
renewed again in September 1941. Sometime during that month Herman Wilkins,
then employed as a henchman, was told to report to Perkins. According to Wil-
kins' undenied testimony, Perkins asked, "Wilkins, what kind of a disturbance
are you trying to raise?" and if Wilkins did not know that it was against the
respondent's rules to try to organize a union. Wilkins replied that he did not
know of such a rule. Perkins complimented Wilkins as a worker and told him
that the respondent had kept its "eye" on him but that it wanted to know what
Wilkins was going to do "about coming out of the union" Wilkins told Perkins
that he was not a slacker and that he would support the Union. Perkins there-
upon asked if Wilkins would "forget the whole union matter." The undersigned
credits Wilkins' testimony and finds these statements were made by Perkins
substantially as testified to by Wilkins.'
Gus F Kirk commenced his employment with the respondent in 1924 or 1925.
He testified that on a Friday afternoon in September 1941, Hicks, the plant
manager, accompanied by Charles R Roberts, the respondent's vice president,
and Lynn Warr, called at Kirk's home and invited him to join the group in an
automobile ride. Thereafter the men engaged in conversation during the course
of which, Kirk was asked if he would drop his union affiliation because of his
influence among the other employees and that if he did so the employees would
follow his lead Previously Kirk had interested himself in the attempt to or-
ganize the Union and some meetings had been held at his home. According to
Kirk's further testimony, Roberts said, "Gus, if you come out of it, the rest
5
Martin testified that after he joined the Union, Russell H. Hamilton, superintendent of
the cake department, transferred him to the ovens, an arduous and unpleasant task. In
the absence of more specific testimony concerning the nature of the transfer , and more
particularly because , of Martin 's admission that he was "an all around man," no finding
of discrimination is based thereon
e
Discussed hereafter is the applicability of the respondent's rule against organizing on
company time and property and its particular enforcement as disclosed in this record.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of them will do likewise. I know the time that you have been with the com-
pany, and the influence that you have got over there ; if you will come out, you
can stop this thing right where it is at." Kirk replied that he was uncertain,
as to what he should do and he expressed the fear that if he served the re-
spondent's purpose that they would later discharge him. He testified, however,
that he was promised that his future welfare would be protected.
That evening Kirk telephoned Roberts and stated that he was not satisfied
with the outcome of the afternoon's conversation. He.told+.Roberts that he,was.
not sure whether he would drop out of-the•Union. Thereupon, Roberts said that
he would ask Hicks to call for Kirk and bring him to Roberts' home where
the conversation would be continued. There, Roberts, Hicks, Kirk, and Warr,
who had joined the group, engaged in further conversation wherein Kirk again
expressed uncertainty as to whether he should disaffiliate from the Union. He
testified that Roberts reassured him that there was nothing to worry about and
that he would be given a raise in the near future. Kirk testified also that 3 or
4 weeks later he received a 5-cent an hour wage increase and that he did drop his
union affiliation.
Roberts' testimony about this incident may be summarized as follows : He
was at the Atlanta plant on one of his periodic visits and was invited by Hicks
to accompany him in his automobile on some business calls. Hicks asked Rob-
erts if he would object if Kirk'was "picked up" on the way,,inasmuch as Kirk
had previously expressed a desire to speak to Hicks. Warr was also present and
he was invited to come along. They then called for Kirk at his home, and pro-
ceeded to their business appointments. The men stopped for a coca-cola and
during the course of the conversation that followed, the subject of the Union
arose. According to Roberts, this was "just a general conversation on the Union
and its activities and the part that they should play in it, but the predominant
thing on Gus Kirk's mind was that he was not being treated right at the plant."
Roberts told Kirk and Warr that their union membership made no difference to
the respondent nor would it affect its attitude or relationship to the men.
, Roberts admitted that Kirk called him at home that evening and expressed
a desire to speak to him Roberts could not remember whether he or Kirk
suggested that Hicks should drive-Kirk and Warr to big home. Regardless
of who first made this suggestion, Roberts confirmed Kirk's testimony that
Hicks did drive Kirk and Warr to Roberts' home where, as Roberts testified,
"the discussion continued as along the lines of the afternoon." Roberts was
unable to state the nature of Kirk's complaint about the treatment accorded
him in the plant. Both Roberts and Hicks, denied- that they- asked Kirk to drop
out of the Union or to lend his efforts to discourage organization of the re-
spondent's employees.
The undersigned was not impressed with Roberts' testimony concerning the
matter in which Kirk was allegedly picked up while Roberts and Hicks made
a business call. Nor is the undersigned satisfied that Warr's presence was
merely fortuitous. It is significant that both Warr and Kirk occupied stra-
tegic positions in the plant on a lower supervisory level and thus were in a
position to wield an influence over employees with whom they were associated.
Roberts' testimony reveals that the Union was the subject of both the after-
noon and evening conversations on this day. His testimony moreover concerning
the details of the conversations is general and vague and fails to indicate why
the Union was the subject of discussion between important supervisory officials
and two employees.' For these reasons, therefore, the undersigned is of the
° The participants in these conversations were Hicks, Roberts, Warr, and Kirk. As in-
dicated in footnote 3, supra, Warr did not testify. Hicks, though not denying Roberts'
AMERICAN BAKERIES COMPANY 943
opinion that Kirk 's testimony is accurate and substantially in accord with what
actually transpired . The undersigned finds that this event was part of a course
of action undertaken - by, the respondent through its, Atlanta plant manager and
its vice president to forestall , disrupt, and stop at its inception , the Union's
renewed organizing drive in September 1941.
That the respondent was successful in getting Kirk to serve its anti-union
purpose is shown by an incident that occurred in May 1942 . Sometime during
the month, union members employed at another bakery threw a picket line
around the respondent 's plant. As a result, several of the respondent's em-
ployees left their work and gathered outside the plant. Kirk, who witnessed
this event, discussed-the matter with - the-respondent 's employees and urged them
to go back to work. Kirk - succeeded in gebting ' the,employees to do so. He tes-
tified , without contradiction , that the next day Hicks told him that he was
appreciative of what he had done and promised him another 5-cent an hour
increase . Sometime later Kirk received this increase and was thereafter called
by some of the employees the "sell -out king."
In December 1942 the Union commenced its third organizing drive. Margaret
McAlpin, a leader in the Union's efforts, asked Kirk to help her organize the
plant. Blanche N. Speight , a wrapper in the respondent 's cake department,
joined the Union on January 8, 1943. Icing and wrapping in the cake depart-
ment are supervised by Inez Byers , forelady , and Martha Robinson, assistant
forelady. On January 12, 1943, while Speight was at work, Byers asked her
if she had heard anything _ about- the, Union . Speight , denied any knowledge of
the Union . Byers accused Speight of lying and asked her ' if she had signed
a union application card. Speight replied that she had forgotten whether she
had done this . Byers denied engaging in any conversation with Speight on
January 12 and denied asking Speight any questions about the Union or about
an application card . The undersigned cannot credit Byers' denial in view of
her admitted participation in other events similar in nature and related here-
after . Therefore , the undersigned finds that Byers engaged in the conduct
as testified to by Speight.
On January 13, 1943, during working hours Byers asked Emily L . Mauk, why
the employees wanted a union . Mauk told her that the employees believed that
a union was desirable . Mauk testified further that Byers then said , "You know
that union is just trying to sell you girls something . They won't do anything for
you. You will be worse off than it is now. We won't get no raise nohow, and
we will have four days off a month and we will go to union meetings on them
days." Byers admitted that she engaged Mauk in conversation on this day
and that she asked Mauk what the Union was "offering ." Byers first denied
and then testified that she could not remember using any language similar to
the other remarks attributed to her by Mauk . The undersigned credits Mauk's
testimony and finds Byers to have made the inquiries and statements sub-
stantially as testified to by Byers and that her conduct is attributable to the
respondent.
There is further testimony of similar anti -union activity on Byers' part. Sara
F. Haley is a cake wrapper employed by the respondent . Haley testified that
on January 14, while at work , Byers asked her if she had signed a union appli-
cation card and that she acknowledged that she had done so. She testified
that thereupon Byers warned her that she had "better pull out of" the Union or
else she would be discharged ; that only McAlpin, Speight , and Mauk believed
version of the conversations , did, however , contrary to Roberts ' testimony , state, "There
was no particular union talk mentioned, no sir , it was more or less about mistreatment
[ of Kirk]." The undersigned does not credit Hicks' testimony.
I
944 D'ECISIO'NS OF NATIONAL LABOR RELATIONS BOARD
in the Union and they were going to be discharged also. Byers admitted asking
Haley if she signed an application card and if she understood what she had
done. Byers denied the further statements attributed to her by Haley. The
undersigned credits Haley's testimony and finds Byers engaged in the conduct
and made the statements as testified to by Haley. ,
On or about January 15, 1943, McAlpin was called to Hicks' office. Hicks
told McAlpin that he had heard that she was distributing union application
cards and organizing on company property. He asked her not to talk about
the Union "on the job." It is not clear from McAlpin's testimony whether she
acknowledged that she had engaged in union activity on company time or
whether she stated to Hicks that, she had.confined.,,her organizing efforts to
her own time on company property. Previously in the summer of 1942 Hamilton,
the superintendent of the cake department, had warned Barney Martin not to
talk about the Union on company property and if he did so Hamilton would
discharge him e Hicks testified that it is the respondent's policy not to permit
employees to stand idle, engage in excessive talk, and waste their time. Em-
ployees are permitted to talk while at work and company policy does not limit
the nature of the discussion as. long as it is not carried on to excess. According
to Hicks, McAlpin had taken employees away from their appointed tasks into
the dressing room and into corners in order to engage in her'union activities,
Hamilton had reported this to him.. Hicks testified also that McAlpin had
violated the respondent's rule which forbids solicitation on company time or
property for anything or for any purpose. McAlpin was the only one that Hicks
had ever cautioned'about violation of this rule.
' The rules are not printed or posted and were orally publicized in a rather
indifferent and vague manner Many employees testified that they had no
knowledge that such rules existed. As disclosed by this record, the only time
the rule against talking was enforced was when an employee talked in favor
of the Union. Apparently the rule did not apply to supervisors such as Perkins,
Byers, and Hamilton, who engaged in anti-union conversations. The Board has
recently considered an analogous problem in its decision in the Peyton Packing -
Company cases where it had occasion to say :
"The Act, of course, does not prevent an employer from making and en-
forcing reasonable rules covering the conduct of employees on company time.
Working time is for work. It is therefore within the province of an em-
ployer to promulgate and enforce a rule prohibiting union solicitation during
working hours Such a rule must be presumed to be valid in the absence of
evidence that it was adopted for a discriminatory purpose. It is no less true
that time outside working hours, whether before or after work, or during
luncheon or rest periods, is an employee's time to use as he wishes without
unreasonable restraint, although the employee is on company property."
The undersigned believes that Hicks' warning to McAlpin to cease solicitation
"on the job" was a reasonable enforcement of its rule insofar as it applied to her
solicitation on company time and hence no finding of a discriminatory applica-
tion is made in that regard. However, Hicks' warning was an unreasonable
restraint insofar as it prevented discussion of union matters on the employees'
own time even though on company property. Moreover, Hamilton's warning to
Martin in the summer of 1042, as well as numerous other circumstances disclosed
in this record warrant the inference, which the undersigned draws, that the
9 Hamilton denied this testimony. His denial is not credited.
9 Matter of Peyton Paclang Company , Inc. and Amalgamated Meat Cutters and Butcher
Workmen of N A., A. F. of L., Local #606, 49 N L . R B. 828, decided May 18, 1943.
AMERICAN BAKERIES COMPANY 945
respondent 's purpose in enforcing the rule prohibiting talking about the Union
was not for reasons of plant discipline or efficiency. but rather to prevent the
self-organization of its employees. The undersigned so finds.
B. The withdrawal of the January 15, 1943, charge
On January 15, 1943, the Union filed charges alleging violation of Section 8
(1) and (3) of the Act. On January 25, 1943, a conference was held in the office
of Alexander E. Wilson, Jr., the respondent's attorney, attended by Roberts and
Hicks, representing the iespondent and Curtis Sims, L. M. Hatcher and R. A
Elliott, representing the Union Sims complained of anti-union activities on the
respondent's part and stated to Roberts that, "You certainly have the heat on
out there." Roberts replied that if this was trite, the respondent would remedy
the situation the next day, by cautioning its supervisors to stop discriminatory
practices and avoid all discussion of union matters with the employees. There
was also some discussion of the possibility of holding a consent election if the
Union would withdraw the pending charges but no agreement respecting this
was reached at the time.
On January 26, 1943, Roberts called each of the top supervisors at the Atlanta
,plant into Hick's office and advised them of the charges which had been made
by Sims The supervisors denied engaging in any such activities. Each one
was warned and cautioned, however, to refrain from any acts of discrimination
and to avoid all discussion of union matters with the employees. They were
further instructed to relay these directions to subordinate supervisors under them.
Pursuant to request of the Union a further conference was held at Wilson's
office on January 28, 1943, which was attended by the same persons representing
the respective parties. At this conference Sims was asked if the discriminatory
acts of the supervisors had been discontinued and he replied, "Positively, the
heat is off, to our satisfaction " The possibility of a consent election conditioned
can the withdrawal of charges was again discussed but no agreement was reached.
On Saturday morning, January 30, 1943, the parties met again and at this con-
ference, it was agreed that a consent election would be held on February 2, 1943,
and that the Union would request permission to withdraw charges with prejudice.
Thereafter Sims, the Union's representative, wrote the Board 's Regional Direc-
tor a letter dated January 30, 1943, reading as follows :
We hereby request permission to withdraw charges filed on January 15,
1943, in the above mentioned case with prejudice to the refiling of any of the
allegations contained therein.
Th6 request was approved the same day by the Board' s Regional Director. That
afternoon election notices were posted on three bulletin boards in the respondent's
plant.
C. Events subsequent to the settlement agreement 10
Claude Jeffares, a deaf mute, was employed by the respondent as a pan greaser.
He testified through an official interpreter in the sign language that on an occa-
sion, the exact date of which he could not recall, but prior to the election, Super-
intendent Hamilton told him, "Don't join the union, the union is no good," and
that if the Union won the election the deaf mutes would be laid off." Although
11 Although no formal settlement agreement appears to have been executed, the Union's
letter of January 30, was a condition precedent to the consent election which was held on'
February 2, 1943 At the hearing the parties referred to the January 30 understanding
and the events which followed as part of the settlement agreement.
11 Hamilton had studied the sign language and was able to converse in that fashion with
the deaf mutes employed by the respondent.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jeffares was unable to fix precisely the date of these remarks the subject matter
of the remarks clearly indicates that it was concerned with the scheduled election.
Talk about the election must have followed the posting of the election notices
on the afternoon of January 30, 1943. The undersigned finds that this conversa-
tion was held sometime after January 30, 1943, but prior to February 2, 1943.
Jeffares also testified that Hamilton told him that if the Union won the election
Hamilton would lose his job. Likewise, with respect to this statement, Jeffares
was unable to fix its time but did testify that the statement was made at a time
when the election notice was posted on the bulletin board. Hence, it must have
been subsequent to January 30, 1943. Hamilton admitted that he may have
"possibly" talked about the Union with Jeffares but if so it was prior to January
26, 1943, the date when Roberts issued his neutrality instructions. The under-
signed credits Jeffares' testimony in the above respects and finds that subsequent
to January 30, 1943, and before the election of February 2, 1943, Hamilton made
the statements attributed to him by Jeffares in his testimony.
Sometime prior to the events here discussed the Union had entered into a con-
tract with the Lee Baking Company, of Atlanta, herein called Lee, under the
terms of which employee wage classifications were established. Late in the
afternoon of February 1, 1943, employee Sara Mitchell handed a copy of a Lee
contract to employee Hazel Stanfield and asked her to read it. Whether this was
a current contract then in effect or one previously executed and which had since
expired is not clear from this record." Mitchell told Stanfield to pay particular
attention to that portion of the contract containing the wage schedule, stating at
the'same time that the schedule indicated that if the Union succeeded in organ-
izing the respondent's plant they would earn less than they were presently re-
ceiving. Martha Robinson, the assistant forelady in the icing and wrapping de-
partment, was present during this conversation and made no effort to stop the
conversation.18 On the afternoon of February 2, 1943, after Speight had cast
her ballot at the polls and returned to work, she talked to her co-worker, Ruth
Hamerick, about the Union. Their conversation was overheard by Robinson who
approached the girls and told them that if anything further was said about the
Union on company time she would report them to Hamilton.14 Speight admitted
that she was conversant with the company rule prohibiting discussions about
the Union while on company time. Nevertheless, it is apparent from her complete
and uncontradicted testimony above, that whereas Robinson made no attempt to
stop discussion concerning the Lee contract, the tenor of which was opposition to
the Union, she did prevent discussion about the Union.
Byers also knew about the Lee contract for on the morning of February 2, 1943,
but preceding the election, Byers asked Kirk why, in his opinion, an employee
would want to join the Union. She stated the employees were presently being
paid higher wages , than workers were receiving at Lee, under the terms of its
contract with the Union."
v None of the parties to this proceeding was able to produce the contract
l8 The above findings are based upon the uncontradicted testimony of Speight who was
present and heard the conversation
14 Speight testified without contradiction that on a date not fixed as to time she heard
Robinson remark to some of the girls in her department that she was personally opposed
to the Union because she had "as good a thing there as she could ever have in any union
plant."
15 The above findings are based on Kirk's testimony. Byers testified as follows con-
cerning the conversation on this day :
I don't recall exactly what we were talking about, but we were discussing the
union,. and I didn't know Gus was the leader, I didn't'know that much about it, and
we discussed it a little, not very much, although I didn't know it, Gus seemed to want
to pick an argument with me every time I went up there, so I didn't talk to him much
about it.
AMERICAN BAKERIES COMPANY 947
James Brooks, a deaf mute, was employed by the respondent in its cake
department up to April of 1943 . He testified through an interpreter in the
sign language, on behalf of the Board, that Hamilton told him, in the presence
of other deaf mutes, that the respondent would not let the deaf mutes join
the Union and if the Union succeeded the deaf mutes would be laid off and
Hamilton would have to retire . Opinion among the deaf mutes was divided
as to whether they should or should not join the Union, Brooks and others
being in favor of membership . Brooks testified , further that Hamilton told
him that the deaf mutes had "better not join the union " Brooks testified
that this conversation with Hamilton took place on February 29, 1943, an
obvious error on his part . In his further testimony , however, Brooks stated
that the election was held on February 2, 1943, and that Hamilton made these
remarks on the morning of either Monday, February 1 or Tuesday , February
2, 1943. Although Brooks was confused as to the exact date of the conver-
sation he insisted that Hamilton 's remarks were made 2 days before the elec-
tion which would place the remarks at the outset on either January 31 or
February 1, 1943: Making due allowance for the difficulty that Brooks had
in testifying through an interpreter in the sign language and the strain that
he and other deaf mutes were under in trying to understand questions and
formulate answers, the undersigned is nevertheless convinced , that Brooks'
testimony is substantially accurate and represents a true reflection of the com-
ments that were made to him and other deaf mutes by Hamilton on either
February 1 or 2, 1943, and immediately preceding the election.
James H. Overall is another deaf mute, employed at the time of the hear-'
ing, by the respondent. Overall testified that on the morning of February 2,
he observed employee Morris Stephens, also a deaf mute, talking to Hamilton, and
that immediately thereafter Stephens told Overall and other deaf mutes who were
present, that Hamilton had instructed Stephens to tell the deaf mutes not to
join the Uni^in ; that Overall was not eligible to join the Union because he
was a deaf mute ; and that if the Union won the election the employees would
have to work for less money. Overall testified further that Hamilton was
present during this conversation."'
In weighing the probative value of Overall 's testimony , consideration must
be given to the above testimony , of Jeffares and Brooks and the testimony of
Stephens and Hamilton . Stephens testified through an official interpreter in
the sign language, that on an occasion which he fixed as occurring one or 2
weeks before the election he discussed the Union with Hamilton . He testified
as follows concerning this conversation : "He told me to tell the deaf boys
they better wait, learn to handle the different kinds of machines and then
when they were adept at that then they might join the union ." Stephens
acknowledged that he relayed Hamilton 's message to the deaf mutes. He
testified also that this was the last conversation that he had engaged in with
Hamilton prior to the election.,,, Stephens denied talking to Overall on the day
before the election but admitted talking to others in the basement on company
' tme on the day before the election and that Jeffares and Brooks were present.
'" According to Overall ' s uncontradicted testimony the deaf mutes would gather in the
basement in the respondent's plant and discuss the Union On occasions Hamilton would
appear on the scene and join the group in its discussions during the course of which
Hamilton would be asked questions about the Union Overall testified that on one occa-
sion Hamilton was asked what would happen to the deaf mutes if the Union "won" and
that he replied that the outcome of th' "lection would not affect their jobs It is not
clear from this testimony just when these discussions were had. No finding is based upon
this testimony though it does indicate another instance where a responsible supervisor
permitted discussion about the Union without making any attempt to stop that discussion.
540612-44-vol. 51-61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamilton admitted that he had talked about the Union with Stephens prior
to January 26, 1943, but never thereafter. He likewise admitted that he
talked about the Union with Overall prior to January 26, 1943, 'but not there-
after . He denied talking to Brooks at any time about the Union and he denied
that he told Brooks that the respondent would not let the deaf mutes join
the Union because if the Union succeeded he [Hamilton] would have to
retire. Hamilton likewise denied that he told the mutes that they "had better
not join the Union."
Overall testified with difficulty. He did not fully comprehend nor understand
all the questions that were asked of and communicated to him in the sign
language by the interpreter. Although he made every effort to understand the
questions, he was at times confused and his testimony discloses conflicts and
uncertainties. None the less, there is in Overall's testimony a revelation of
attempted persuasion on the part of Hamilton to have the deaf mutes vote
against the Union. Despite conflicts, Overall's testimony is consistent in its
context with the testimony of Brooks and Jeffares, all of which testimony
reveals that anti-union comments similar in tenor were made to the deaf mutes
on or about February 1, 1943. Regardless of the exact day that these conversa-
tions took place, the undersigned is of the opinion and finds that all were part
of a pattern of conversation that was precipitated by the posting of the election
notices on the afternoon of January 30, 1943 Indeed, Stephens and Hamilton
.admitted that they engaged in discussions about the Union but both witnesses
placed the time of their conversations prior to January 26, 1943. The signifi-
cance of this particular date lies in the fact, that on that day Roberts had
instructed the supervisors to refrain from any discussions about the Union. '
In reaching a conclusion respecting the testimony pertaining to the conduct
of Stephens and Hamilton as testified to by Jeffares, Brooks and Overall, it, is
significant to repeat that Hamilton had some facility with the use of the sign
language, that he was 'able to converse with the deaf mutes and that he was
on friendly and social relations with them. Because of this they looked to
him for advice and guidance on many things affecting their personal and private
lives. Hence it is understadable why they would seek his advice with respect
to the Union and why he in turn, despite the limitations' placed upon him by
Roberts' neutrality warning, would engage in conversations about the Union. On
the basis of this record, and the testimony of Jeffares, Brooks, and Overall in
particular, the inference is justified and the 'undersigned finds that Hamilton
did engage in 'anti-union activities on or about February 1 and that he did
attempt to dissuade the deaf mutes from joining or voting for the Union.
One other event occurred on the day of the election which indicates in the
undersigned's opinion that Roberts' warning of January 26, 1943, did not act as
an absolute restriction on the supervisors' conduct. Barney Martin acted as an
observer for the Union at the election on February 2, 1943 On' this day he ate
lunch in Lindsey's, a lunch room nearby the plant, frequented by the respon-
dent's employees and supervisors. He testified that as he finished his lunch
on that day and was leaving the lunch room he stopped to talk to Inez'Byers.
'In the presence of other employees who were seated nearby, Byers asked
Martin what the outcome of the election would be. Martin replied that the
Union would win. He testified that after this answer, the conversation con-
tinued and that Byers asked what the Union could do for the employees, and
why it did not leave the respondent's employees alone and stated that the
respondent's employees were, making more than employees of the Union under
contract at Lee. He testified further that Byers said the Union was no good ;
that it had tried to organize the respondent's employees before and, had failed ;
AMERICAN, BAKERIES COMPANY 949
and that the Lee contract was being circulated at the respondent's plant Byers
admitted her conversation with Martin and that the subject of the Unio'i was
discussed. Her testimony concerning the entire conversation is contained in
the following excerpt from the'record:
Q. Do you recall what he said and what you said?
A. Well, he felt sure that they were going to win the election, and, of
course, I didn't know whether they were or not, and I asked him what-I
said, "Explain to me what the union is offering ." I said , "I don't under-
stand, nobody has ever explained it to me and I don 't know." But he
couldn't do it, he couldn't tell me. and then we just discussed it, first one thing
and another.
At the hearing, Byers testified that she had seen a copy of the Lee contract, that
under the terms of that contract a position similar to the one she held with the
respondent was covered at less wages than her salary at that time with the
respondent and that she was fearful that if the Union won the election her
wages would be reduced. For that reason, she sought to obtain from Martin
information concerning the Union and a possible contract.
The undersigned credits Martin's version of the conversation with Byers. It is
clear therefrom, that Byers' initial inquiry about the outcome of the election
was answered when Martin said he believed the Union would win. That was a
permissible inquiry and carried no threat of intimidation or coercion regardless
of the presence of other employees. When, however, Byers enlarged upon the
conversation and used it as a means to convey her thoughts and opinions about
the Union and asked Martin to explain what it was that the Union had to offer,
the discussion continuing thereafter as Byers admits, about "one thing and
another," the conversation served to impress upon Martin and employees who
were present the respondent's and Byers particular opposition to the Union.
Byers had been warned on January 26 to avoid any discussion of the Union. She
neglected to heed the warning and her remarks on this occasion to Martin are
consistent with anti-union remarks of a similar nature made by her on other
occasions. The undersigned concludes and finds that these remarks made by
Byers, as testified to by Martin, were coercive and intended as a warning to
employees who were present, that the respondent, regardless of any understand-
ing entered into with the Union on or about January 30, 1943, was still opposed
to the Union and was seekingdts defeat in the pending election.
D. Conclusions
The foregoing facts make evident that, at the very outset of, each of the
Union's attempts to organize the respondent's employees, the respondent declared
and demonstrated to those employees its opposition to the Union. Documents
introduced into evidence, indicate that the Union filed charges alleging viola-
tions of the Act shortly after the commencement of each of its organizing cam-
paigns. In 1941 charges which had been filed in case X-C-880, were disposed
of after the respondent agreed to post a notice conforming to, the language of
the Act and guaranteeing to the employees that their rights thereunder would
be protected. Despite the posting of this notice, the facts above disclose that
violations still continued. Again in the spring of 1942, the Union filed charges
in case X-C-1140. These charges were likewise withdrawn when the Union
and the respondent entered into a settlement agreement dated July 22, 1942,
which provided for the posting of an appropriate notice, compliance therewith
and the withdrawal of charges. ' This settlement was approved on July 23,
1942, by the then Acting Regional Director. Again on January 15, 1943, the
Union filed charges in case X-C-1293 , which charges were withdrawn with
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prejudice on January 30, when the Union and the respondent agreed upon the
consent election with the understanding, implicit therein, that the respondent
would not engage in any further unfair labor practices.
The respondent now contends that the settlement agreement and the consent
election disposing of the charges filed in case X-C-1293 on January 15, 1943,
preclude a consideration of the events occurring prior to the making of the
settlement. This contention is similar to that advanced by the respondents
in Matter of Wickwire Brothers 1T and Matter of Hope Webbing Company.'6 The
theory of the Board in those cases is based on the fact, however, that in neither
case was there a continuation of the unfair labor practices which preceded the,,
settlements, or the election agreements therein. Those cases are not apposite
here, since after the making of the settlement agreement herein, and contrary
to its undertaking, respondent in the instant case engaged in further unfair labor
practices "
As the undersigned has found, unfair labor practices were committed by the
respondent after, as well as before, the various settlement agreements involved
herein. It is clear, therefore, that, the undersigned's consideration of the events
preceding the last settlement agreement of January 30, 1943, is consistent with
the principles enunciated by the Board in the cases cited above. The under-
signed has found that subsequent to the posting of the election notice on the
afternoon of January 30, 1943, and preceding the casting of ballots by the
employees on February 2, 1943, the respondent engaged in further unfair labor
practices. Hamilton, as heretofore found, utilized his personal relationship
with the deaf mutes in the plant to advise them not to join the Union and to
vote against it in the election. Robinson sanctioned discussion concerning the
Lee contract at the same time forbidding any discussion about the Union. Byers
in various ways deprecated the Union and its efforts in attempting to organize
the employees. While it may be agreed that only a small portion of the re-
spondent's total personnel were affected by the anti-union conduct of Byers
and Hamilton, none the less it was a substantial group of employees who were
thus confronted with the continuing opposition of the respondent to the Union,
which indicated the respondent's lack of good faith in carrying out its under-
taking implicit in the settlement agreement. It cannot be said that the em-
ployees were given a free and uncoerced opportunity to cast their ballots in
the election."
The complaint alleges that the respondent on or about March 8, 1943, trans-
with, restrained and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
E. The alleged diseiiminatory discharge of Gus F. Kirk
The complaint alleged that the respondent on or about March 8, 1943, trans-
ferred Kirk to the night shift, thereafter discharged him and has since said
11 Matter of Wickwire Brothers and Amalgamated Ass'n of Iron, Steel & Tin Workers of
North America, Lodge #1985, 'through S. W. 0. C., affiliated with the C. I. 0., 16 N. L. R B.
310.
is Matter of Hope Webbing Company and Textile Workers Organizing Committee of the
0. 1. 0., Local No. 14, 14 N. L R. B. 55
10 See, for example, N L. R B v Haiok•& Buck Co, Inc, 120 F. (2d) 903 (C. C. A. 5),
enf'g 25 N L. R. B 837.
20 The Union lost the election On February 5, 1943, it filed charges with the Regional
Director protesting the election, "on the grounds of intimidation, coercion and threats,
such as an anti-union petition circulated through the shops threatening their jobs and
salaries if the employees joined up with the Bakers and Confectionery Workers Union."
On April 5, 1943, the Regional Director set the election aside and granted a request for
withdrawal of the petition filed by the Union.
AMERICAN BAKERIES COMPANY 951
date refused to reinstate him. The respondent 's answer pleads that Kirk
Voluntarily resigned on or about that date.
Kirk was one of the oldest employees in tenure of service , having been em-
ployed by the respondent prior to his discharge , for some 18 or 19 years . During
the 5 years previous to his discharge , Kirk was the head dough mixer on the day
shift and in this capacity was a trusted and responsible employee whose work
and conduct had been praised by the respondent 's officials.
As found above , Kirk 's influence with other employees was such that in Sep-
tember 1941 , the respondent sought his aid in stemming the organizational efforts
of the Union and succeeded in getting Kirk to withdraw from the Union. In May
1942, Kirk 's efforts in persuading employees not to join a strike were praised by
the respondent . In December 1942, Margaret McAlpin, then active in the Union's
third attempt to organize the respondent ' s employees asked Kirk if he was still in
favor of organized labor and if he would help her in her organizing efforts. Kirk
said that he would do so and shortly thereafter signed an application card in
the Union . Kirk testified that he talked to several employees about joining the,
Union. His testimony concerning his organizing efforts, however , is very vague.
McAlpin testified that Kirk did not help her in her organizing efforts. Kirk's
other activity in behalf of the Union prior to his discharge was participation as
an official observer for the Union at the election on February 2, 1943 . In that
capacity he raised some question about the right of Byers to vote when she
presented herself at the polls . Byers' vote, however, was officially challenged
by the Board ' s field representative who was present.
Kirk testified that in December 1942, and in January 1943, his relations with
Latham, the superintendent of the bread department , were cordial and friendly
and that both men engaged in conversations from three to six times a day con-
cerning the work of the dough' mixing department . Kirk testified further and
without specific contradiction that late in January 1943 , Latham gave him a,
5-cent raise stating at the same time that if he could do anything for Kirk he
would do so, and if there was anything that Kirk could do for Latham or the
respondent, Latham would appreciate it. According to Kirk's- testimony Latham
added that if it had not been for Latham , Kirk "would have been gone :om the
plant "
Kirk testified that the day after the election Latham's attitude toward him
changed His testimony with respect to this is as follows:
Well, his attitude seemed like it had changed altogether toward me; he
seemed like he was mad and didn 't want to have nothing to say and didn't
say nothing , except what he had to, and when he came up there around my
work, he would find fault with everything , little things that he didn't
never pay any attention to before he would go to raising Cain about them that
he had never done before.
The Board suggests the inference that this alleged change in attitude was
caused by Kirk's participation as an,observer for the Union at the election, and
particularly by the objections that he raised to Byers' casting a ballot. The
undersigned is not persuaded that Kirk 's limited participation in the election was
the cause of any change in attitude on Latham 's part, if such a change did take
place. Nor is the undersigned persuaded that any increase in wages that Kirk
received in late January 1943 was given to him by Latham as a special reward
or offer to induce Kirk to side with the respondent and against the Union in the
election There is evidence that in December 1942, the respondent sought from
the War Labor Board permission to grant wage increases to its employees and
that on January 15, 1943, the War Labor Board approved certain increases which
became effective immediately thereafter Kirk was the recipient of an increase
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to the Directive of the War Labor Board. Hence, the undersigned
draws no inference from the uncontradicted testimony of Kirk, that he received
to wage increase coupled with the suggestion that the respondent would appreciate
anything Kirk could do for it.
On January 18, 1943, the respondent was forced to make certain changes in
the production of its bread products because of the government rationing pro-
gram . It was first required to eliminate the -twisting and slicing of bread and
shortly thereafter the respondent was restricted in its use of milk, shortening.
and sugar. These restrictions affected the respondent's mixing department and
for some time it was unable to produce a satisfactory loaf of white bread. The
respondent's loaf of white bread had large holes in it, lacked proper volume, and
'did not possess the right color. The root of the trouble in adjusting the finished
product to the new restrictions was in the mixing room, particularly on the night
shift, where the bulk of the white bread was mixed.
The respondent called in its experts in an attempt to adjust its problems and
about March 5, 1943, Latham and Hicks discussed the feasibility of transferring
Kirk to the night shift. The reason given by the respondent at the hearing for
this projected transfer was to place an able and experienced dough mixer on
the shift where the bulk of the dough was, mixed. During the day Latham
and Hicks were present in the plant and could supervise, in the absence of
Kirk, the mixing that took place on the day shift. On March 8, it was decided
to make this transfer and Latham was instructed to acquaint Kirk with the
change. '
Herein is set forth Kirk's testimony concerning the conversation with Latham
wherein Latham told him of the respondent's decision:
I came through the oven room, and Mr. Latham said, "Kirk, we have de-
cided to make some changes in the mixing 'room, and I want to put you to
work at night, and, tomorrow, you come on at 4:30 and mix dough at
night." And I says, "What is that for?" and he said, "I just decided to
make some changes in the mixing room," and I said, "Is it for tomorrow
night only or from now on?" and he said, "From now bn." And I said, "I
couldn't work at night because it affects my health," and he said, "I don't
give a damn, then don't come in."
Thereupon Kirk went to Hick's office and asked Hicks why he was being trans-
ferred to, the night shift. He testified that Hicks told him that the transfer
was necessary because of "conditions beyond our control." Kirk attributed his
transfer to his union activities and told Hicks that he would not work on the
night shift but would work on the day shift. 'He testified further that when
he attributed the transfer to his union activities Hicks 'replied, "We forgot all
about the union as quick as the election was over."' Kirk repeated again that
he would not work at night but that he would work on the day shift and that
he would "leave the decision" up to Hicks, repeating again that he would'work
the day shift but not the night, and that if he could not be left on the day shift
the respondent could pay him off. Hicks' testimony concerning this conver-
sation is in substantial agreement with that of Kirk except that he testified that
he explained to Kirk what the conditions were that made the transfer neces-
sary. Kirk denied that Hicks gave any explanation of the conditions which
required this shift. Following the conversation Hicks was paid off and he
signed a pay-roll receipt for his earnings tip to March 8, 1943 '
n Latham's testimony concerning this conversation , although less extensive , is in sub-
stantial accord.
z' The respondent introduced in evidence its original pay-roll receipt bearing Kirk's Sig-
nature. On the face thereof appears the word "Resigned ," which the respondent urges ap-
AMERICAN BAKERIES COMPANY 953
The sole issue for determination in considering the discharge of Kirk is whether
the respondent's proposed transfer of Kirk was a reasonable proposal made neces-
sary for business reasons, or whether it was due to Kirk's union activities and
because the respondent following the defeat of the Union, wanted to stamp out
all remaining interest in the Union and its activities. In reaching a conclusion
respecting this issue, the undersigned is mindful of threats that had been made
by the respondent to its employees in 1941, to transfer them to less desirable jobs
because of their membership or interest in the Union. The circumstances sur-
rounding Kirk's case suggest the possibility that the same motive was present.
In Kirk's case, however, the respondent advances a justifiable and plausible
reason for the transfer and one which, in the undersigned's opinion, is persuasive
as to its motive for the transfer. The undersigned concludes and finds, therefore,
that the respondent's proposed transfer of Kirk to the night shift was not dis-
criminatory in motive, that it was justified by business reasons, that Kirk refused
to accept the transfer for personal reasons, and voluntarily quit the respondent's
employ. The undersigned finds that thereby the respondent did not engage
in any violation of the Act and it will be recommended hereafter that this allega-
tion of the complaint be dismissed.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce
i V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act and to restore as
nearly as possible the status quo existing prior to the commission of the unfair
labor practices.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case the undersigned makes the following :
CONCLUSIONS OF LAW
1. Bakery and Confectionery Workers International Union, Local No. 42,
affiliated with the American Federation of Labor, is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. 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
peared thereon when presented to Kirk. When asked if the word appeared thereon at the
time of signing, Kirk testified, "It was not ; if it was, I didn't see it; if I had seen it, I
wouldn ' t have signed it." He also testified that when he signed the receipt he "didn't look
at it." Kirk acknowledged that he was given a, copy of the receipt but be did not produce
it at the hearing The undersigned finds that the disputed word "Resigned" was written
on the receipt at the time Kirk signed it on March 8, 1943.
xs Following March 8, 1943 , Kirk did not make any application for reinstatement al-
though the respondent's witnesses testified that they hoped that Kirk would re-apply for
his position and if he had done so that he would have been reinstated on the night shift.
Bray, the dough mixer on the night shift was made head dough mixer on March 13, 1943,
and continued to work on the night shift. About the middle of the month he was given
an assistant , a man who had previous experience as a dough mixer in one of the respond-
ent's other plants. Kirk 's place as a dough mixer on the day shift was taken over by an
employee whom he had trained.
954 DECISIONS ' OF NATIONAL LABOR RELATIO-TNIS BOARD
in and is engaging in unfair labor practices, within the meaning of Section 8
(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
4. The respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (3) of the Act with respect to Gus F. Kirk.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that the respondent, American Bakeries Company, Atlanta,
Georgia, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing its employees
in the exercise of the rights to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose 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 undersigned finds will
effectuate the policies of the A'ct :
(a) Post immediately in conspicuous places throughout its plant at Atlanta,
Georgia, and maintain for a period of not less than sixty (60) consecutive days
from the date of posting, notices to its employees, stating that the respondent
will not engage in the conduct from which it is ordered to cease and desist in
paragraph 1 (a) of these recommendations;
(b) Notify the Regional Director for the Tenth Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respond-
ent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondent has engaged in unfair labor practices either by
the transfer or discharge of Gus F. Kirk.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October
28, 1942-any party may within fifteen (15) days from the date of the entry
of the order transferring the case to the Board, pursuant to Section 32 of Article
II of said Rules and Regulations, file with the National Labor Relations Board,
Washington, D. C, an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of it brief in support
thereof. As further provided in said Section 33, should any party desire per-
mission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days after the date of the order trans-
ferring the case to the Board.
MORTIMER RIEMER,
Trial Examiner.
Dated June 22, 1943.