Hilltop Baking Co.

National Labor Relations Board - Board Decisions

Mar 6, 1951

93 N.L.R.B. 694 (N.L.R.B. 1951)

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fifth, the Employer, upon request, make available to the Board and its agents
all pertinent records.21
Sixth, the Employer withdraw recognition from the Union and cease giving
effect to his contract of January 25, 1950, with that organization, and to any
modification, extension, supplement, or renewal thereof, unless and until the
Union shall have been certified by the Board. Nothing in these Recommenda-
tions, however, shall be deemed to require the Employer to vary or abandon
those wage, hour, seniority, or other substantive features of his relations with
his employees, established in performance of said contract, or to prejudice the
assertion by the employees of any rights they may have under such agreement.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5)
of the Act.
2. By discriminating in regard to the hire and tenure of employment of
employees, thereby encouraging membership in a labor organization, the Em-
ployer has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
3. By contributing support and assistance to the Union, the Employer has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (2) of the Act.
4. By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Employer has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
5. By causing, and attempting to cause, the Employer to discriminate against
employees in violation of Section 8 (a) (3) of the Act, the Union has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (b)
(2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
21 See F. W. 'Woolworth Company , footnote 19.
[Recommended Order omitted from publication in this volume.]
HILLTOP BAKING COMPANY and GENERAL DRIVERS, WAREHOUSEMEN,
HELPERS AND DAIRY EMPLOYEES , LOCAL UNION 565. Case No.
16-CA-173. March 6, 1951
Decision and Order
On November 28, 1950, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
93 NLRB No. 99.
HILLTOP BAKING COMPANY 695
the Respondent engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in other alleged unfair labor prac-
tices and recommended that the complaint be dismissed in this respect.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port, and a request for oral argument. The oral argument request is
denied as the record and exceptions in our opinion, adequately present
the issues and the position of the parties. No exceptions were filed to
the Examiner's recommendations that certain allegations of the com-
plaint be dismissed.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions, and the entire record in the
case, and hereby adopts the findings,z conclusions, and recommenda-
tions of the Trial Examiner.3
Order
Upon the entire record in the case and pursuant to' Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
1. The Respondent, Hilltop Baking Company, its officers, agents,
successors, and assigns, shall :
(a) Cease and desist from:
(1) Discouraging membership in General Drivers, Warehousemen,
Helpers and Dairy Employees, Local Union 565, or any other labor
organization of its employees, by discharging or refusing to reinstate
1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
ponners in connection with this case to a three -member panel [ Members Houston , Reynolds,
and Styles]
Y In the absence of exceptions , we adopt the Examiner 's finding that William Ellis was
discharged for cause and we shall dismiss the complaint as to him
3 The Trial Examiner stated that the Respondent conceded it was engaged in commerce.
This is not accurate ; indeed the Respondent moved to dismiss the complaint on that
ground On the record , however, we find that the Respondent , a Delaware corporation,
Is licensed and conducts its principal place of business in Waco, Texas , where it is
engaged in the manufacture and sale at wholesale of bread and other bakery products.
During the last fiscal year the Respondent ' s purchases exceeded $ 700,000 in value of which
more than 50 percent was shipped to it from outside the State of Texas Campbell-
'Taggart Associated Bakeries , Inc., which also owns and diiects the operations of over
40 baking companies in a number of States , owns over 52 percent of the common stock
of the Respondent, which is their only voting stock Campbell-Taggart owns the copy-
right on the nationally advertised trade name of "Rainbo ," under which name the Re-
spondent 's products are marketed . In these circumstances , we conclude that the Re-
spondent is engaged in commerece within the meaning of the Act. We also find that, as
it operates as an integral part of a multistate enterprise it will effectuate the policies of
the Act to assert jurisdiction in this case . Schulze Baking Co., 92 NLRB 73 ; The
Borden Company , Southern Division , 91 NLRB 628.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of them because they have become members of or have been active
on behalf of any labor organization, or by discriminating in any other
manner in regard to hire and tenure of employment or any term or
condition of employment.
(2) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist General Drivers, Warehousemen,
Helpers and Dairy Employees, Local Union 565, or any other labor
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Offer to Hugh Carol Parks immediate and full reinstatement
to his former or a substantially equivalent position without prejudice
to seniority or other rights and privileges and make him whole in the
manner set forth in the Intermediate Report, attached hereto, in the
section entitled "The Remedy".
(2) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amount of back pay due and the right
of reinstatement under the terms of this Order.
(3) Post at its offices at Waco, Texas, copies of the notice attached
to the Intermediate Report marked Appendix A thereof 4 Copies of
said notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being duly signed by the Respondent, be posted
immediately upon receipt thereof and be maintained by it for sixty
(60) consecutive days thereafter in conspicuous places including all
places where notices to employees are customarily posted. Respond-
ent shall take reasonable steps to insure that such notices are not
altered, defaced, or covered by any other material.
(4) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
* This notice, however, shall be, and it hereby is, amended by striking from line 3
thereof the words "The recommendations of a Trial Examiner" and substituting in lieu
thereof the words "A Decision and Order " In the event that this Order is enforced by a
decree of a United States Court of Appeals, there shall be inserted before the words "A
Decision and Order" the words "A Decree of the United States Court of Appeals Enforcing "
HILLTOP BAKING COMPANY 697
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges that the Respondent discriminatorily discharged William
G. Ellis.
Intermediate Report
James P. Wolf, Esq., for the General Counsel
Karl H. Mueller, Esq., and Harold E. Mueller, Esq., of Fort Worth, Tex., for
the Respondent.
Mr. William F. Layne, of Waco, Tex., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed September 26, 1949, by General Drivers, Ware-
housemen, Helpers and Dairy Employees, Local Union 565, hereinafter referred
to as the Union, the General Counsel of the National Labor Relations Board,'
by the Regional Director of the Sixteenth Region (Fort Worth, Texas), issued
a complaint, dated May 31, 1950, against the Hilltop Baking Company, Waco,
Texas, hereinafter referred to as the Respondent. The complaint alleged that
the Respondent had engaged in, and was engaging in, unfair labor practices af-
fecting commerce within the meaning of Section S (a) (1) and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, as amended, Public Law
101-80th Congress, 1st Session, herein called the Act. Copies of the com-*
plaint, the amended charge, and notice of hearing were duly served upon the
parties.
With respect to the unfair labor practices, the complaint as amended at the
hearing alleged, in substance: (1) That the Respondent on or about June 25
1949, discharged H. C. Parks, and on or about August 2, 1949, discharged W. G.
Ellis, employees at its Waco plant and since the dates of said discharges had
failed, refused, and continues to refuse, to reinstate said employees to their
former or substantially equivalent positions of employment, for the reason that
they engaged in union and other concerted activities with other employees for
their mutual aid and protection ; (2) that Respondent by its officers, agents, and
employees, from on or about April 1, 1949, to date, has interrogated its em-
ployees concerning their union affiliations, has threatened and warned its em-
ployees to refrain from assisting, becoming members of, or remaining mem-
bers of the Union, has kept under surveillance the meeting places, meetings, and
activities of the Union or the concerted activities of its employees for the pur-
pose of self-organization or improvement of working conditions. The complaint
further alleges that by the conduct described above the Respondent interfered
with, restrained, and coerced its employees in the rights guaranteed them by
Section 7 of the Act, and thereby engaged in violation of Section 8 (a) (1) and
(3) of the Act. By its answer duly filed the Respondent admitted certain juris-
dictional facts, but denied generally that it had engaged in any unfair labor
practices, and affirmatively alleged that the employment of H C. Parks and
W G Ellis was terminated for good cause.
Pursuant to notice, a hearing was held at Waco, Texas, on various dates from
June 27 to July 6, 1950, before the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. The General Counsel and the Respondent were
represented by counsel and the Union by a lay representative. 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 outset of the hearing the
1 The General Counsel and his representative at the hearing are herein referred to as
the General Counsel , and the National Labor Relations Board as the Board.
Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel moved to amend the complaint to add additional independent
acts of interference, restraint, and coercion by certain individually named super-
visors of the Respondent. The motion was granted by the undersigned. The
Respondent's motion to amend its answer to generally deny the amendments to
the complaint was likewise granted by the undersigned. The General Counsel
also moved, in effect, at the outset of the hearing that the Respondent be com-
pelled to plead with more definiteness and certainty in its answer as regards
its reasons for the discharges of Parks and Ellis. The motion was denied by
the undersigned. At the conclusion of the General Counsel's case-in-chief, the
Respondent moved to dismiss the complaint for lack of proof. The undersigned
denied the motion without prejudice to renew it at the close of the hearing The
Respondent at the close of the hearing again renewed its motion to dismiss the
complaint in its entirety for failure of proof. Ruling thereon was reserved by
the undersigned. It is hereby denied in part and granted in part as will be
shown in detail hereinafter. At the conclusion of the hearing the General
Counsel moved to have the pleadings conform to the proof as to minor matters
such as names, dates, and the like. The motion was granted by the under-
signed. Upon the conclusion of the hearing the undersigned advised the parties
that they might argue orally before, and file briefs and proposed findings of
fact and conclusions of law or both, with, the Trial Examiner. All parties waived
oral argument and the filing of briefs with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Hilltop Baking Company is a corporation duly organized under the laws of
the State of Delaware since October 5, 1927, and is duly licensed to do business
in the State of Texas, and its principal office and place of business is located in
the city of Waco, Texas. It is engaged in the manufacture and sale at whole-
sale of bread and other bakery products. It markets its products and other
merchandise under the name of "Rainbo," a nationally advertised trade name
which is copyrighted, and said copyright is owned by the Campbell-Taggart
Associated Bakeries, Inc.
Campbell-Taggart Associated Bakeries, Inc., owns over 52 percent of the com-
mon stock of the Hilltop Baking Company, and said common stock is the
only voting stock of the Respondent.
The Hilltop Baking Company receives the following services from the Camp-
bell-Taggart Associated Bakeries, Inc.: Merchandising, purchasing, and pro-
duction which includes research, advice, direction as to formulas, accounting,
engineering, and advertising, for all of which the Respondent pays a fee to
the Campbell-Taggart Associated Bakeries, Inc.
The Campbell-Taggart Associated Bakeries, Inc., also owns a controlling
interest in, or is interested in, more than 40 baking companies in a number of
States, such as Virginia, Ohio, Michigan, Georgia, Texas, and Missouri.
During the last fiscal year Respondent's total gross purchases were in excess
of $700,000, of which more than 50 percent was shipped to it from points lo-
cated outside the State of Texas, and during the same period of time, Respond-
ent's sales were in excess of $1,000,000, of which all such sales were made with-
in the State of Texas, and within an area of approximately a 70-mile radius
of Waco, Texas.
The Respondent concedes and the undersigned finds that the Respondent is
engaged in commerce within the meaning of the Act.
HILLTOP BAKING COMPANY
If. THE ORGANIZATION INVOLVED
699
General Drivers, Warehousemen, Helpers and Dairy Employees, Local Union
565, is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
At the time the events described hereinbelow occurred the officers of the
Respondent corporation were as follows, president, J. C. York, and secretary
and treasurer, Leland Thompson, both of whom also own stock in the Camp-
bell-Taggart Associated Bakeries, Inc. The Respondent's operations are, for
managerial purposes, divided into two main divisions-the production and main-
tenance department and the sales department. We are concerned herein pri-
marily with the sales department. The parties stipulated at the hearing that
the following were supervisors within the meaning of the Act in the sales
department at all times material herein : Porter Mayer, sales manager, and
Jimmie Todd, Marshall Green, Charles Weber, and Tommy Little, route super-
visors.
The parties also stipulated at the hearing that at the time the events de-
scribed below occurred the Respondent had approximately 100 employees. The
record shows that there were approximately 25 route salesmen. These are
divided into groups of approximately 5, each group being under the supervision
of a route supervisor.
At the time of the hearing, and for the past several years, the production
and maintenance employees of the Respondent were and had been represented
by the Bakers and Confectionery Union, AFL.
According to the credible and undenied testimony of H. C. Parks, sometime
in April 1949 the driver-salesmen employees became discontented over their
working conditions and discussed among themselves the possibility of organiz-
ing a union. As a result of these conversations, Parks and two fellow em-
ployees went to W. F. Parks, a shop steward for the Bakers and Confectionery
Union, and discussed the proposition with him. He told them how to proceed
in their organizational efforts, and gave each of them an AFL application-for-
membership card, a supply of which he kept on his person. Shortly after this
incident occurred the employees in the sales department received a letter from
a representative of the Union advising them that an organizational meeting
would be held at the Labor Temple on the night of April 23, 1949.
As indicated above the complaint alleges that certain supervisors of the
Respondent engaged in conduct that constituted interference with, restraint,
and coercion, and hence a violation of Section 8 (a) (1) of the Act.
In support of this allegation in his complaint the General Counsel offered
the testimony of numerous witnesses. Their testimony in this regard is set
forth below.
According to the credible testimony of Wallace Chamblee, a driver-salesman
for the Respondent at the time, he attended the first union meeting at the Labor
Temple on the night of April 23, 1949. Before the meeting started he left the
meeting hall to get a package of cigarettes at a drug store across the street
from the hall. As he started across the street he saw Porter Mayer, sales man-
ager for the Respondent, in his car awaiting a traffic light to change. This was
at about 7:30 p. m. A few days later Mayer asked Chamblee if he had at-
tended the union meeting on the night of April 23, 1949. Chamblee told him
that he had and that he went to the meeting to "find out what it was all about."
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gerald G. Bass, a driver-salesman for the Respondent, testified credibly that
he also saw Mayer at the corner of Seventh and Franklin across the street
from the Labor Temple on the night of April 23, 1949, both before the union
meeting and after it was over. On the following Monday morning Mayer, in a
conversation with Bass, said, "I didn't see you at the Union meeting Saturday
night" to which Bass replied, "No, I wasn't there." Mayer then said, "Well, I
know you weren't ; I know who was there."
Bass further testified that on the afternoon of April 23, 1949, Mayer said to
him, "When you get home this afternoon you will probably have a notice from
the Union. They are going to have a Union meeting tonight and the best thing
to do is just ignore it. . . Somebody is trying to stir up trouble. The best thing
to do is just ignore it."
Bass also testified that sometime before the election among the driver-sales-
men, conducted by the Board on June 16, 1949, that he had a conversation with
Todd, his route supervisor, while they were on his route. and Todd said to him
in substance, that ". . . he remembered well when the bake shop had organized
and that all the men who had led that organization in the bake shop had weeded
them out. . . .
Bass further testified as regards the above conversation with Todd, that he
remembered the conversation very well when he cast his vote in the Board
election.
In a second conversation with Bass, Todd told him that he and Tommie Little,
also a route supervisor, were parked across the street from the union hall during
the first union meeting. Bass testified however that he did not see either Todd
or Little, and knew nothing of the incident until Todd told him about it.
According to the credible testimony of Charlie W. Johnson, a driver-salesman
for the Respondent from June 1939 until April 1950, lie had a conversation with
Porter Mayer a few days before the Board. election, June 16, 1949. The con-
versation took place in Johnson's truck while they were serving the customers
on his route.'
The undersigned considers Johnson's testimony as regards his conversation
with Mayer of such importance that in his considered opinion it should be set
forth in detail herein. His testimony in this regard is set forth below :
Q. All right. If you will, Mr. Johnson, will you relate all of the con-
versation that you can?
A. Well, he rode with me that morning from about seven o'clock until,
oh, it was approximately somewhere around eleven o'clock. We finished the
route and he had parked his car down just off of Webster and I carried him
by to get his car, and there had been nothing said about the union until he
,,of there, and I thought that he was going to get out of the truck, and I
didn't even know that he was going to talk anything about the Union, and he
opened the door and set there with the door open and he asked me what
did I think about the union deal. I-And I told him that truthfully I didn't
know, that all I knew about it was what I had heard on the docks there
and around, that I wasn't familiar with any Union deals, that I had never
been union and that I didn't know whether it would or would not work in
the bakery business , and he asked me if I would or would not vote for it.
I said, "I don't know," and then he told me about his dealings with the
union up North, that they had caused him to miss meals, and he says, "After
all," he says, "you have a wife and children, Charlie, that you should thank
2 It was the custom for Mayer, on occasion, to ride with the drivel-salesmen while they
were servicing their routes.
HILLTOP BAKING COMPANY 701
God." He said, "You also have your job," and he says, "after all, Mr.
York hasn't been down here too long," and he says, "Well, you know if this
thing should go union, that would be a big reflection on Mr. York." I said,
"I understand that," and he says, "Well," he says, "Charlie, just don't do
anything wrong," he says, I hope you will see things our way because as you
know, we have been good to you and we hope that you will be the same
by us," and as well as I remember that's about all there was to the con-
versation. He got in his car, I believe then, and went on his way,
Q. You recall anything else was said in that conversation?
A. No. I believe that-As well as I remember, I believe that was just
about all there was to it. He stated that he had, that the Union had caused
him to miss some meals and that he just didn't think that it would ever be
any good down here.
Q. Anything said about any help coming from the Company?
A. Well, he did say that he felt like that the boys would string along
with he and the supervisors, that he had, that they had been posted ; that
they could get more help if needed, but that Mr. York had left the whole
matter in their hands and he felt like that everything was going to be all
right, that we wouldn't need any help from the Company.
James Rabe, a driver-saleman for the Respondent at the time of the hearing
herein, testified credibly that a few days after the first union meeting on April
23, 1949, Tommy Little, route supervisor, came to him while he was unloading
his truck in the parking lot and asked him what he thought about the Union.
Rabe in substance told Little that he knew very little about unions. Little then
proceeded to tell him of the disadvantages and hardships that follow as a result
of unionization, especially as they affect the individual worker.
Rabe further testified that shortly after the first union meeting in the course
of conversation with Porter Mayer, he asked him about vacations, and that
Mayer advised him that there would be no vacations "until this mess is cleared
up " On another occasion the subject of vacations again came up, and Porter
Mayer again told him that the driver-salesmen would not get a vacation until
"all this had been cleared up" This conversation took place just before the
Board election on June 16, 1949 Rabe'S testimony in this regard was as follows :
Q What was said in that conversation as best as you can recall?
A. Well, I think I brought up vacations again. It was about the same.
Porter said that we weren't going to get any vacations until all this had
been cleared up and that he was going to put a stop to all that secrecy and
whispering that had been going on among the men, and that as long as he
was sales manager of that bakery he wasn't going to have anybody tell
him how to run his business, and that if it was the last thing he did, if it
took every penny lie had, that he would fire every man out there until be
got all of that cleared up, and that he had hired three men and there were
some more coming, and he also said to me, be says, "Jimmie," he said, "a boy
with your personality and ability would go a long ways with this company
if you keep your nose clean," he said, "now, that is just off the record. You
can take or leave it." That is about all I can recall of that at the present.
Q. All right, sir. Was anything said about associations?
A. Yes, it was during that conversation right there, he told me that,
that I be careful who I associate with That was part of that conversation
Robert U. Smith. a former driver-salesman for the Respondent, testified
credibly that about 2 weeks after he was employed by the Respondent on April
5, 1949, he had a conversation with Jimmie Todd, his route supervisor, while
702 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
they were riding and servicing the route. In the course of the conversation,
Todd asked Smith how he felt about the Union ; Smith told Todd in substance
that he had always worked at places where the employees were organized, and
that he was sympathetic towards unions. Todd then told him that if Porter
Mayer or Little asked him about his position as regards the Union to "tell
them you don't like it because they are very much against it."
Smith further testified that about a week before the election he had the
following conversation with Porter Mayer at the back dock of the stale house :
Q. All right, sir. Will you state for the record as best as you can what
was said in that conversation?
A. Well, the way the conversation started, Porter walked up and asked
me how I come out, and I told him pretty fair, and the conversation just
went on, and he said, "Smitty, there is something I been wanting to talk
to you about," he said, "it's this Union." He said, "Smitty," he said, "I
want to know which way you are going to vote." He said, "How are you
going to go about that?" I told him, I said , "Well, Porter, I am going to go
the way the boys do."
He said, "What if it comes down right to you?"
I said, "I will go the way I feel I should go," and he said , "Well, Smitty,
I want to ask you this," he says, "which do you think the most of, the wife
and the job or the Union," and I told him, I said, "Porter, I think a helluva
lot of my wife and I said I like the Union and I like my job."
Q. Was anything else said in that conversation?
A. Well, I believe that was just about all that I can remember as of now.
Q. Anything said about protection?
A. Oh, oh ya, he said that he hired me without any truck; he didn't
see why I couldn't stay with him without some protection.
Juett Lillard, a former driver-salesman for the Respondent, testified credibly
that he attended the first union meeting on April 23, 1949, missed the second
meeting on May 1, and went to the Labor Temple to attend a third meeting.
While awaiting the arrival of his fellow employees at the Labor Temple, he
saw Porter Mayer in his car at Sixth and Franklin Streets ; Lillard called to
him and turned his motorcycle around and drove up alongside of Mayer's car
and asked him about the union meeting. Mayer told him there would not be a
meeting. Lillard then drove off and went home.
According to the credible testimony of Clinton Flanagin, a driver-salesman for
the Respondent since 1942, he had a conversation with Porter Mayer the day
after the first union meeting. The conversation took place in Flanagin's truck.
In the course of their conversation which for the most part dealt with problems
that arise daily in the work of a driver-salesman, Flanagin told Mayer that he
had had some trouble with a customer over the display of bread. Mayer sympa-
thized with him and said, "Ya, Clint . . . that is the way it is. People you
think are your friends sometimes turn against you, . . . You never know. When
I saw some of the boys at the meeting the other night . . . it hurt me pretty
bad . . . I just as soon somebody slapped me in the face." Later on Mayer
said to Flanagin, "Well, Clint . . . take care of your route. You have done a
good job out here, . . . you just keep on being a good salesman . . . Some of the
boys are skating on thin ice."
Jim William Davis, a driver-salesman for the Respondent at the time of the
hearing herein, testified credibly that on the Monday following the first union
meeting on Saturday, April 23, 1949, he had the following conversation with
Porter Mayer while euroute to a nearby cafe for coffee. Mayer said to Davis,
HILLTOP BAKING COMPANY 703
"Did my eyes deceive me or did I see you at that meeting?" Davis admitted that
be was at the meeting. Mayer then said, "Well, I can't understand you being
down there . . . the good money you are making and everything . . . he said
he just couldn't understand ... with my wife in the condition she was that I
needed all the money I could get ahold to." Later "he said that I was walking
on very thin ice and asked me did I realize that. ..." -
Shortly after the second meeting of the Union on or about April 30, 1949,
Davis' route supervisor, Tommy Little, rode with him over the route. Little
asked Davis about the Union and in the course of the conversation that ensued
said in substance that he wanted to find out who was behind the disturbance
at the bakery and that if he did he would fire them.
Porter Mayer, the Respondent' s sales manager , categorically and specifically
denied that he had ever engaged in any of the conduct described above by the
witnesses, Wallace Chamblee, Gerald G. Bass, Charlie W. Johnson, James A.
Rabe, Robert E. Smith, Juett Lillard, Clinton Flanagin, and Jim William Davis,
all of whom were called to testify on behalf of the General Counsel. An ex-
amination of Mayer's testimony shows that his denials as regards the testimony
of the General Counsel's witnesses are couched in almost identical language.
On direct examination he appeared confident and was precise in his denials of
each and every incident and conversation attributed to him by the witnesses
called by the General Counsel. But on cross-examination he was hesitant,
vague, and evasive in answering the questions propounded by the General
Counsel. He did not impress the undersigned as an honest and forthright
witness, and the undersigned is convinced that he did not give a true account
of his activities during the Union's organizational drive as attributed to him
by the witnesses called by the General Counsel. On the other hand the witnesses
called by the General Counsel in this regard impressed the undersigned as honest,
forthright, and credible witnesses. Hence he credits their testimony as regards
Mayer's activities, and discredits that of Mayer.
In such a state of the record the undersigned finds that Porter Mayer engaged
in the activities described above.
As indicated above, Tommy Little interrogated several employees who worked
under his supervision about their union affiliations and activities, particularly
Gerald Bass, James A Rabe, and Jim William Davis. His activities in this
regard have been set forth herein above. Little, like Mayer, did not impress the
undersigned as an honest and forthright witness. By his demeanor he left
the impression with the undersigned that he was not giving a truthful account
of his activities. He denied in toto the testimony of Rabe, Bass, and Smith.
His testimony, as regards union activities among the driver-salesmen, doesn't
ring true. According to Little he knew nothing about the Union and its or-
ganizational drive among those employees until the first week of May. Yet
Charles Weber, a fellow supervisor, testified credibly that he learned about the
Union's organizational drive in April 1949, at which time Porter Mayer told
him to remain neutral insofar as the employees' activities in this regard were
concerned Again, there were only about 25 driver-salesmen employed at this
time. Moreover, they share the same office facilities and as a result form a
compact unit. Under such circumstances knowledge of employees union
activity may be presumed, particularly in view of the smallness of the group,
and the intimateness of the relationship between the driver-salesmen and their
supervisors.
On the other hand, Bass, Rabe, and Davis impressed the undersigned as honest
and forthright witnesses. Consequently the undersigned credits their testi-
See Joy Silk Mills, Inc , 85 NLRB 1263.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony and discredits that of Little, and the undersigned finds that Little made
the remarks and engaged in the activities attributed to him by them
The undersigned has set forth above the testimony of Gerald Bass and Robert
E. Smith, both driver-salesmen and under the direct supervision of Jimmie Todd.
Both Smith and Bass impressed the undersigned as reliable and forthright wit-
nesses . Todd, on the other hand, did not so impress him. He impressed the
undersigned as an evasive and forgetful witness; particularly as regards his
testimony on cross-examination as to the circumstances surrounding the alleged
discharge of H Carol Parks, which will be set forth in detail hereinafter. Con-
sequently the undersigned credits the testimony of Bass and Smith as regards
Todd's activities and statements during the Union's organizational drive and
discredits that of Todd, and finds lie made the remarks and engaged in the
activities attributed to him by Bass and Smith
W. F. Parks, shop steward for the Bakers and Confectionery Workers Union,
AFL, who at the time the events herein occurred was the exclusive collective
bargaining representative for the production and maintenance employees in
the bakery, testified credibly as regards a conversation he had with Charles
Heath, superintendent of the shipping department. According to Parks, Heath
Caine to him about a week after the N L R. B election and asked him if he had
been active in organizing the salesmen for the Union Parks told him that he
had Heath then told him in substance that he had no jurisdiction over the
driver-salesmen and had no business trying to organize for the Teamsters.
Parks disputed Heath's statement in this regard and told him he could organize
any group for the AFL Heath then told him that if he persisted in his organi-
zational efforts for the Teamsters Union lie would be discharged At the time
Heath threatened to discharge Parks if he continued to assist the Union, he also
addressed his remarks to one Joe McGhee, u ho likewise had been active for
the Union. Shortly after this incident occurred Parks and McGhee lodged a
grievance with Meacl, the Union's business agent. Meacl got in touch with
J C York, the Respondent's president, and arranged for a meeting with him
to discuss the grievance. About a week later Parks, McGhee, and Mead met
with York According to Parks, York told them at the meeting that he and
McGhee were out of their jurisdiction and that he did not want the driver-
salesinen organized, and that if they continued their efforts in this regard they
would be discharged
York admitted that he met with Parks, McGhee, and Mead. His testimony
in this regard is substantially the same as that of Parks York also testified
that it had come to his attention that the employees under Heath' s supervision
had been negligent in loading the bread trucks, and as a result the driver-
salesmen were delayed in getting out on their routes He attributed the
negligence of the employees in the shipping department to the fact that they
were standing around talking, and that Parks and McGhee were responsible
for this due to their union activities on company time In the main his testi-
mony in this regard and his main objection to the activities of Parks and
McGhee was that it was done on company time, and thus interfered with the
business of the Company.
Parks did not deny that he engaged in union activities during working hours ;
McGhee was not called as a witness by the General Counsel.
Another persuasive factor that influenced the undersigned in making this
finding as regards Mayer's credibility as a witness was his testimony as regards
his knowledge of "union activity among the driver- salesmen He testified that
he first heard about the Union's organizational drive in the early part of May
1949, when the Union' s business agent, W. F. Layne requested recognition of
HILLTOP BAKING COMPANY 705.
the Union as the collective bargaining representative for the driver-salesmen.
Yet, Charles Weber, a route supervisor and under Mayer's direct supervision,
and who testified at the hearing on behalf of the Respondent, testified on cross-
examination that sometime in April 1949, Mayer instructed him to be neutral
and to not interfere with the organizational efforts of the driver-salesmen.
Again, Mayer testified that lie discussed the Union's organizational drive with
only one of his supervisors, Tommy Little, and never at any time discussed it
with the others Weber's testimony, in the considered opinion of the under-
signed, buttresses his finding as regards Mayer credibility as a witness.
Conclusion
The undersigned has found above that Mayer was in the vicinity of the Labor
Temple on the nights that the Union met, both before and after the meetings,
and that he was also in that vicinity on the afternoon that the third meeting was
scheduled but not held. The undersigned is aware that standing alone the mere
fact that Mayer was seen near the Labor Temple on the nights the Union held
its meetings is insufficient to establish surveillance, but where, as here,' there is
reliable, probative, and substantial evidence showing that Mayer questioned em-
ployees concerning their attendance at the union meetings, and his admissions
to them that he had observed them either leaving or entering the Labor Temple,
then the rule is otherwise. The Board and the courts in a long line of decisions
have consistently held that "secret surveillance interferes, restrains, and coerces
employees in the exercise of their rights under Section 7 of the Act " 5 More-
over, the mere threat of surveillance, or statements to employees by supervisory
employees that they were under surveillance, such as Todd's statement to Bass
that he and Little had observed who entered the union hall on the night of one
of the union meetings are likewise violative of the Act 6
The undersigned has found above that Porter Mayer, Tommy Little, and Jim-
mie Todd, on several occasions, interrogated employees concerning their union
affiliations and activities. Such conduct is per se violative of the Act. In the
Standard- Coosa-Thatcher Company case, 85 NLRB 1358:
Interrogation by an employer not only invades the employee's privacy
and thus constitutes interference with his enjoyment of the rights guaranteed
to him by the Act Its effect on the questioned employee, like that of open
surveillance of union activity. is to "restrain" or to "coerce" the employee in
the exercise of those rights The employee who is interrogated . . . is
reasonably led to believe that his employer not only wants information on
the nature and extent of his union interests and activities but also contem-
plates some form of reprisal once the information is obtained.
Likewise violative of the Act was Ma} er's interrogation of employee Robert
E Smith as to how he was going to vote in the forthcoming N. L. R B election?
Here again the Respondent interfered with the fundamental rights of its em-
ployees "to self organization and to select representatii es of their own choosing
for collective bargaining or other protection without restraint or coercion by •
their employer " s
The undersigned has also found above that Mayer, Todd, and Little engaged in
conduct which clearly constituted threats of reprisal against the employees it
* See Macon Textiles, Inc, 80 NLRB 1525
5 See Premier Worsted Mills, 85 NLRB 985
E See Chicopee Manufacturing Corporation of Georgia , 85 NLRB 1439
Q See Standard -Coosa-Thatcher Company, supra
9 See N L. R. B. V. Jones & Laughlin Steel Corporation , 301 U. S 1, 33.
943732-51-46
7 06 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they continued their union and concerted activities, such as Mayer's statement
to employee James Rabe that there would be no vacations until this "mess" is
cleaned up ; Todd's statements to Gerald G. Bass, just before the election, that
after the Bakers and Confectionary Workers Union was certified by the Board
as the exclusive representative for the production and maintenance employees
that the "company weeded out" those responsible for that union's success ; and
Little's statement to Robert E. Smith that he would fire whoever was behind the
"disturbance," which the undersigned infers and finds to have been a reference to
-the employees engaged in union activities.
The acts described above are so clearly violative of the Act that in the con-
sidered opinion of the undersigned little or no rationale is either necessary or
desirable. Suffice is to say however that the undersigned finds that the Re-
spondent's conduct as found above interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them by Section 7 of the Act,
and violative of Section 8 (a) (1) of the Act.
B. The alleged discriminatory discharges
1. Hugh Carol Parks
Parks was hired by the Respondent as a driver-salesman in September 1944
and his employment was terminated on June 25, 1949.
According to Parks' credible testimony the driver-salesmen became discon-
tented in the spring of 1949. The cause of the discontent and resentment was
primarily due to the promotion of some of the driver-salesmen to supervisory
positions, and the taking away from one of the employees his weekly salary guar-
antee. As a result of this unrest the employees after discussing the situation
decided to approach a labor organization. A committee consisting of employees
Parks, Easter, and ]tosser went to W. F. Parks, a shop steward for the Bakery
and Confectionary Workers Union, AFL, and discussed with him the possibility
of unionizing the driver-salesmen. W. F. Parks gave the three driver-salesmen
application-for-membership cards 9 Shortly thereafter H. C. Parks saw Porter
Mayer in front of the salesroom. In the course of the conversation that ensued
Mayer told Parks that there probably would be a letter from the Union awaiting
him when he got home from work about a meeting that was to be held that same
evening, April 23, 1949. He told Parks "not to pay it no attention, there is
somebody trying to stir up trouble. Forget all about it." Parks ignored Mayer's
instructions and attended the meeting, which was held at the Labor Temple
located at Seventh and Franklin Streets in Waco. When the meeting was over
Parks, along with some other driver-salesmen who had also attended the meet-
ing, got into J. C. Easter's car. At this time Parks saw Porter Mayer drive by
in his car and stop for a red light at the street intersection. At about the same
time Easter turned his car around and drove down Seventh Street. As he got to
Seventh and Mary, Parks again saw Mayer's car. Easter made a left turn and
went down Mary Street. Mayer followed close behind until Easter got to Sixth
and Mary Streets, where he turned down Webster Street. Mayer did not follow
him.
On the Monday following the meeting at the Labor Temple on April 23, Mayer
came up to Parks who at the time was on the "stale lot" and asked him if he
was at the union meeting on Saturday night. Parks admitted that he was.
Mayer then asked who else was there, and Parks told him that he "didn't
know." Mayer then asked him if he was satisfied with his job and Parks said
fl
9 The recordis not clear as to whether he gave Parks, Easter, and Rosser application-
for-membership cards for the Teamsters Union or for the AFL
HILLTOP BAKING COMPANY 707
that he was. Mayer then told him that he was standing on "some pretty thin
ice," and had "better forget about the Union." Parks said that he would.
Mayer denied in toto the entire testimony of Parks as regards the above con-
versation. Parks impressed the undersigned as a sincere and honest witness.
Mayer, as the undersigned has found above, impressed him as an unreliable
witness. Consequently the undersigned credits Parks' testimony in this regard
and discredits that of Mayer, and finds that Mayer made the statements
attributed to him by Parks.
Parks further testified credibly that a few days after the second union meeting
which was held on May 1, 1949, that he had a conversation with Jimmie Todd,
one of the route supervisors. In the course of the conversation Todd said to
Parks that President J. C. York of the Respondent had said that if the driver-
salesmen would forget about the Union, "everybody could have a job there as
long as they wanted."
A third union meeting was scheduled for May 7, 1949. Parks and one other
employee showed up and as a result of the failure of the others to attend the
meeting, it was called off. After this debacle Parks became discouraged and
decided to resign from the Union, and he wrote the following letter to the Union
on May 7, 1949:
To WHO-& IT MAY CONCERN :
This is to certify that I hereby withdraw my membership from the
Teamsters Local Union No. 565, 7021/2 Franklin Ave., Waco, Texas.
HUGH CAROL PARKS.
On May 11, 1949 , W. F. Layne , business agent for Local 565, wrote the follow-
ing letter to J. C. York , the Respondent ' s president :
MR. J. C. YORK,
Mgr., Hilltop Baking Company,
2300 Mary St., Waco, Texas
DEAR MR. YORK : Enclosed you will find , letter from Mr. Hugh Carol Parks
requesting to withdraw his membership from Teamsters Local No. 565.
Please be advised that this Local Union has granted Mr . Parks his request.
Yours very truly,
W. F. LAYNE.
Parks further testified credibly that on May 9, 1949, Tommie Little, his
supervisor , went with him on his route. During the course of the trip they
stopped at a cafe for coffee. While they were there Little brought up the subject
of the Union . Parks' testimony in this regard was as follows:
Q. All right , sir. Now, will you state as best as you can what was said
in that conversation?
A. He said, "It looks like the Union deal fell through , doesn't it?"
I said, "Yes , it does," and he said, "Well , what are you going to do now?"
I said, "Well , I guess I am going to keep on working," and he said, "Well,
you know how the company feels about this Union popping up all the time,"
and he said , "Look what happened in San Antonio . They tried to get a
Union down there and it fell through and the general manager went out
and fired the sales manager , two supervisors and about five or six men,"
and I said, "Well, I told Mr. York . I wrote him a letter that I resigned from
the Union."
He said , "Well, I will advise you to get in some other kind of business,"
and so I said, "Well , if that is the way they feel about it, I guess I will."
He said, "Well , do you have anything in mind?"
O
708 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
I said, "Nothing but a cafe," and he said, "Well, do you have one, do you
think you might buy or something'?"
I said, "No, I didn't."
As well as I remember that is about all there was to that.
Little admitted having the above conversation with Parks. His testimony
of what transpired and was said in the course of their conversation is at variance
with that of Parks. According to Little, Parks, while they were in the cafe
engaged in a conversation with a pinball machine operator; and later told Little
that the operator had told him about a cafe that was for sale Little then asked
Parks if he planned to go into the cafe business and that he said yes if he could
find something he liked. Little then asked him if he planned to get out of the
bread business, and that he said that he did because he was dissatisfied with
the way things were going at the bakery. Little further testified that Parks
attributed his troubles to friction among the driver-salesmen and that many who
he thought were his friends had turned out to be enemies, and had "left him
holding the bag." Little then told him in substance that if he wanted to get out
of the bread business and go into the restaurant business that the Respondent
would assist him all it could, and would give him all the time he needed to locate
something he really wanted, as long "as he kept within the bounds of reason "
Upon their return to the bakery Little reiterated the Respondent's position
towards Parks and what it would do for him and that Parks replied, "that will
be swell." Little then told him that he would tell Porter Mayer, sales manager,
of his decision to get out of the bread business and purchase a cafe.
Little denied generally and specifically all of Parks' testimony as regards the
Union ; in fact about all that he did admit was that they discussed the purchase
of a cafe by Parks. He also denied that he knew that Parks was a member of
the Union lentil Parks told him in the course of their conversation on May 9, 1949.
As indicated above Little testified that he knew nothing about the organizational
efforts of the Union among the driver-salesmen until the Union requested that
the Respondent recognize it as the exclusive collective bargaining agent for
said employees. On cross-examination however he admitted that he had heard
that the employees were trying to organize, because he had heard them talking
among themselves about the Union. In the considered opinion of the under-
signed the "talk among the boys" must have been in April because the record
is clear that it was at this time that the Union's organizational drive reached
its "peak." The record is also clear that following the second meeting on May 1,
1949, the employees lost interest and the organizational drive collapsed. This
is evidenced by the fact that only two employees showed up for the third meeting
on May 7, 1949. Hence the undersigned finds that Little not only knew that the
Union was attempting to organize the employees, but also that Parks was a
member of the Union before their conversation on May 9, 1949. Moreover, the
undersigned has found above that Mayer had the union meetings under sur-
veillance, and that he had instructed one of the supervisors, Charles Weber,
in April 1949 to be neutral during the organizational drive
Little also testified that it was the policy of the Respondent to require their
driver-salesmen to devote full time to the bread business, and that they could
not engage in other business ventures on their own time, especially the cafe
business, and that this was the reason he told Parks he would have to devote
all his energies to the bread business or get out of it and go into the cafe business
because the Respondent would not tolerate an employee with dual interests.
On cross-examination he admitted that Ed Lawson, a former driver-salesman,
operated a cafe while working for the Respondent for at least 3 years during
his tenure of employment.
HILLTOP BAKING COMPANY 709
In the main Little impressed the undersigned as an honest witness, but lie
cannot credit his testimony as to what transpired at the time he and Parks had
their first conversation about the cafe. Nor can he accept his testimony con-
cerning, his knowledge of Parks' union activities, and that of the other driver-
salesmen. Parks on the other hand impressed the undersigned as an honest
witness. He testified in a straightforward manner on direct examination and
his testimony was not shaken on cross-examination. Consequently the under-
signed credits Parks' testimony as regards his conversation with Little, finds
that he gave a true account of what actually transpired therein.
Shortly after Little and Parks had their conversation on May 9, 1949, Little
was assigned to another division. Little's former division was assigned to
Jimmie Todd, and Parks worked under his supervision until he was discharged
on June 25, 1949.
A short time after Parks resigned from the Union it was "rumored" among
the driver-salesmen that Mayer intended to discharge all of those who were or
had been members of the Union. Parks took this "rumor" seriously and rejoined
the Union for self-protection. There is no evidence in the record that the
Respondent was aware of his action in this regard. In fact the record clearly
shows that Parks was not questioned about union affairs or activities from May 9,
1949, to the date of his discharge.
As indicated above the Board conducted an election among the driver-salesmen
on June 16, 1949, pursuant to a consent election agreement. Just before the polls
opened the Board agent in charge of the election asked the parties to select
their observers; the Respondent appointed one of the girls in the office, and
when Layne, business agent for Local 565, was asked to name his choice, he said
"Hugh Carol Parks," who thereafter served as an observer for the Union. In
view of the foregoing undenied and uncontradicted evidence adduced at the
hearing herein, the undersigned finds that the first knowledge the Respondent
had concerning Parks' renewed union activities was on June 16, 1949.
On or about June 1, 1949, Porter Mayer told Parks about a restaurant that
was in a good location, and was either for sale or lease. Parks went to see the
owner and purchased the cafe the same day. At the time be made the purchase
he lacked sufficient funds to complete the purchase, and was forced to borrow
money from his brother. At the time he made arrangements to repay the loan
by installments
According to Parks it was his plan to let his wife operate the cafe and he
would continue to work for the Respondent at least until he had repaid the loan
to his brother. If the cafe was a success he would then decide whether he would
continue to work for the Respondent or resign and devote all of his time to the
operation of the cafe After he purchased the cafe he told President York
about it and his plans for its operations. He also told York that even if the
cafe business turned out bad he would not lose anything because he would still
have his position with the Respondent. An examination of Parks' testimony
concerning this conversation with York is silent as regards York's comments,
if any, to Parks' statement as regards his future plans.
As indicated above Jimmie Todd became Parks' supervisor sometime in May
1949. The record is clear however that this occurred after Parks had resigned
from the Union.
According to Parks' credible testimony, Todd made two trips over the route
with him after he (Todd) assumed Little's position as Parks' supervisor. The
record is clear that nothing of importance occurred on Todd's first trip with
Parks The second trip was made on June 25, 1949. It was on this date that
Parks' employment with the Respondent was terminated under the following
circumstances.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the credible testimony of Parks he went to the bakery on the
morning of June 25, and loaded his truck as usual He then went over to his
cafe to eat some breakfast. While so engaged Charlie Johnson, one of the
driver-salesmen, came in and said to Parks, "I heard you was quitting today."
Parks told him he was not, and queried Johnson as to the source of his informa-
tion. Johnson replied that Jimmie Todd had told him that Parks was quitting
and then drove off in the truck. Parks immediately returned to the bakery.
Upon his arrival there Todd drove up in the truck Parks asked Todd if he was
going with him on the route, and he said that he was Parks then got into the
truck and they started out on the route. About 10 a in. Parks asked Todd if
he was taking the route over and he replied that he was He assured Parks
that personally he had nothing to do with it, and that as far as he was concerned
Parks was one of the best men the Respondent had had in its employment for
the past 10 years. Parks then asked Todd to take him back to the bakery so
that he could discuss the situation with Porter Mayer. Parks protested his dis-
charge to Mayer who informed him he was not being fired, but that the Re-
spondent was merely taking over his route because it could not keep a driver-
salesman in its employ who had "a divided interest," referring of course to
Parks' ownership of the cafe. Parks then went to President York and protested
to him the Respondent's action in this regard York said lie would have to
back Mayer up in his decision to take the route away from Parks. During his
interview v ith Porter Mayer and President York, Parks tried to explain to them
that he never had had any intention to quit the bread business, and that the
only time he was around the cafe was at nights when he worked on the books.
Parks further testified that he had never informed any of his supervisors that
he intended to get out of the bread business and into the cite business. His
intention was to let his wife run the cafe, and lie continue to work for the
Respondent.
As indicated above the Respondent contends that Parks was not discharged
but that his route was taken away from him because it was its policy to not
keep in its employ driver-salesmen who had "dual interests" that were inimical
to its interests, and that it considered the cafe, restaurant, and grocery business
as being in that category.
In support of its contention as regards Parks, it oftered the testimony of
Mayer and Little which has been set forth above Also in support of its position
in this regard it offered the testimony of Jimmie Todd, Parks' immediate super-
visor at the time his route was taken away from him.
Todd testified that Parks told him either in the latter part of May or the
first part of June 1949 that he desired to work 4 weeks more ajs a driver-salesman
and then take over the operation of his cafe. He further testified that at
the time he and Parks had this conversation he knew that Parks had been
operating the cafe for at least 1 month because lie had seen Parks' name on the
window of the cafe. He also testified that sometime in March 1949 Parks told
him that he intended to purchase a cafe.
Todd's version of what transpired on the morning that he terminated Parks'
employment was as follows. He testified that he did not discuss the termination
of Parks' employment with any of his supervisors fi om the date Parks told him
that he wanted to be relieved of the route in 4 weeks, which, the undersigned
finds from Todd's testimony, was about June 1 until June 25, 1949 When he
told Parks that he was taking the route over as of that date because the 4
weeks were up and that the Respondent had hired a man to take his place,
Parks protested and told him that he did not desire to quit, and requested that
they go to see Mayer in this regard, which they did. The interview between
Parks and Mayer has heretofore been set forth above and will not be reiterated.
HILLTOP BAKING COMPANY 711
From the above it is obvious that Todd's testimony is at variance with that
of Little, Mayer, and Parks concerning the purchase of the cafe by the latter
and the circumstances surrounding the transaction. The undersigned has found
above that both Little and Parks are in agreement that Parks became interested
in the purchasing of a cafe on or about May 9, 1949. He has also found above
that Mayer told Parks about the cafe which he later purchased either in the
latter part of May or the first of June. He has also found above that Parks,
purchased the cafe on June 1, 1949.
Todd did not impress the undersigned as a forthright witness. His finding in.
this regard is based on his observation of Todd while he was testifying and an
examination of the official transcript of his testimony, which has convinced him
that Todd was an evasive, forgetful, and unreliable witness. Parks, as found
above, convinced him otherwise. Consequently the undersigned credits Parks'
testimony as regards what transpired between him and Todd, the circumstances
surrounding his purchase of the cafe, and the termination of his employment
with the Respondent, and discredits that of Todd.
Parks not only protested to Todd, Mayer, and York on the day his 'route was
taken away from him, but followed his protest by writing President York
in this regard on June 27 and July 25, 1949. York did not reply to either letter.
That a trier of the facts may credit certain portions of a witness' testimony
and discredit the remainder is well settled. In a recent decision in the Second
Circuit, Judge Learned Hand speaking for the court had the comment to make
in this regard in N. L. R. B. v. Universal Camera Corporation, 179 F. 2d
749 (C. A. 2) :
The foregoing discussion is relevant in the case at bar for the following
reason. One ground why the evidence failed to convince the examiner of
any agreement between Kende and Weintraub to discharge Chairman, was-
that he thought it quite as likely that the quarrel between Weintraub and
Chairman at the end of December still rankled in Weintraub's mind, and
induced him to insist upon Chairman's discharge on January 24, 1944. It
became important in this view to explain why Weintraub waited for over
three weeks ; and this the examiner did explain because he believed that
Politzer had told Weintraub that Chairman was going to resign. When the
majority of the Board refused to accept this finding, they concluded that,
since this left Weintraub's delay unexplained, his motive was to be related
back to the quarrel of Kende and Chairman on November 30. We should,
feel obliged in our turn to reverse the reversal of this finding, if we were
dealing with the finding of a judge who had reversed the finding of a master,
because the reasons given do not seem to us enough to overbear the evidence
which the record did not preserve and which may have convinced the-
examiner. These were (1) that the examiner did not believe all that
Politzer had said; and (2) that the finding was "irreconcilable with the other
related facts and all the other evidence bearing on Politzer's behavior and
attitude." It is no reason for refusing to accept everything that a witness
says, because you do not believe all of it; nothing is more common in all
kinds of judicial decisions than to believe some and not all. Nor can we
find "other related facts" which were "irreconcilable" with believing that
Politzer told Weintraub that Chairman was going to resign. Indeed, Chair-
man himself swore that on January 11, Politzer suggested to him that he
resign, which affirmatively serves to confirm the examiner's finding that
Politzer told Weintraub that Chairman would resign in order to placate
him. However, as we have said, we think that we are altogether to disre-
J
'712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
gard this as a factor in our review, which we should confine to the bare
record, and on that we cannot say that Politzer's testimony had to be be-
lieved, in the face of Chairman's denial that he ever told him that he would
resign.
Concluding Findings
It has been well said that hard cases make bad law. It is equally true that it is
most difficult for a trier of the facts to make a finding on conflicting testimony.
This is especially true where the testimony of the complainant is denied in toto
by the opposing side. There is no set rule to assist the trier of facts in arriving
at a fair and honest finding. Hence, he must of necessity rely upon his observa-
tion of the witnesses that appear before him, particularly their conduct and the
manner in which they testify on direct and cross-examination. Here the under-
signed has been faced with this perplexing problem in making the above findings,
a resume of which is set forth below.
The undersigned has found above that the Respondent by its supervisory em-
ployees, Mayer, Little, Heath, Todd, and Green, engaged in the following conduct
which is so clearly violative of the Act that further comment thereon is neither
necessary nor desirable in this section of the Intermediate Report. Suffice it to
say, however, that his findings that the Respondent by the above-named super-
visors interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed them by Section 7 of the Act, by interrogating them con-
cerning their union affiliations and activities, keeping their meeting place under
surveillance, threatening them with reprisals if they did not abandon the
Union, and promising them benefits if they did, have been detdrmining factors
in his ultimate findings as to the Respondent's true motive in terminating the
employment of Hugh Carol Parks.
The record clearly shows that Parks was an old and trusted employee at the
time the Respondent "terminated" his employment by taking his route away
from him on June 25, 1949. The record is equally clear that he was well liked
by his fellow employees and enjoyed great popularity among them. Moreover,
the Respondent admits that he was a better than average driver-salesman, and
had an excellent employment record. The only reason advanced by the Re-
spondent at the hearing herein for terminating his employment was because he
purchased a cafe, and that by so doing he engaged in activity contrary to the
Respondent's fixed policy that its driver-salesmen must devote all their energies
to the bread business and not engage in any outside business activities
Hence, the sole question before the undersigned is this: Was Parks' employ-
ment "terminated" because of his union and concerted activities or because of
the reasons advanced by the Respondent which have been stated immediately
above? The determination of this question must be considered in the light of
the above findings of the undersigned, the record as a whole, and all the
surrounding circumstances.
There is no necessity of again going'into detail as regards Parks' union and
concerted activities. They have been amply discussed above, and a brief resume
thereof will suffice in this section of the Report.
Parks was one of three employees who originally contacted the.Union in the
,early part of April 1949 Shortly thereafter, he was questioned by Mayer not
only as regards his own activities, but also those of his fellow employees. Mayer
was aware of the fact that Parks had attended the three scheduled union meet-
ings and interrogated him not only as regards what occurred at the meetings but
also as to the names of the employees who were present. On another occasion,
Mayer, in the course of a conversation with Parks about the Union, in effect
HILLTOP BAKING COMPANY 713--
threatened him with reprisals for engaging in such activities by telling him he
,,was skating on very thin ice."
As indicated above Parks attended the three scheduled union meetings. The
third meeting was scheduled for May 7, 1949 Parks was the only employee of
the Respondent who went to the meeting place As a result of the failure of
other employees to attend, the meeting was called off. The undersigned has
found that Mayer was aware of the tact that Parks went to this meeting
On the following Tuesday, May 10, 1949, Little in a subtle and veiled manner
suggested to Parks that it would be a good idea for turn to get out of the bread
business and try something else The undersigned is convinced and finds that
as a result of Little's veiled suggestion (which also carried with it a threat of
reprisal) that it was to Parks' advantage to find some other line of endeavor,
Parks first mentioned the cafe business to any of the Respondent's supervisors.
It is significant that Parks resigned from the Union in disgust on May 7, 1949,
because his fellow employees failed to attend the third union meeting. Since
the Respondent was not notified of Parks' action in this regard until May 11,
it is reasonable to infer that Little was not aware that he (Parks) had re-
signed from the Union until Parks told him on May 9 It is also significant that
following Parks' conversation with Little, and the receipt of Layne's letter to
York advising the Respondent that Parks had resigned from the Union, that
there is no substantive evidence that any supervisory employee interrogated
him about the Union. In such a state of the record the undersigned is con-
vinced and finds that the Respondent was not aware that Parks had rejoined
the Union until he acted as an observer for it at the Board's election on June
16, 1949. It is also significant that exactly seven working days later the Re-
spondent terminated his employment by taking his route away from him.
All of the foregoing when coupled with the animus of the Respondent towards-
the Union, which the undersigned has found above, convince him and he so
finds that the contention of the Respondent that Parks' employment was "termi-
nated" because he was engaged in an outside interest which was inilnicable to its
own is mere pretext, and that the true motive for its action in this regard was
because Parks had engaged in union and other concerted activities and that
the incident that precipitated his discharge was the fact that he acted as am
observer at the election conducted by the Board on June 16, 1949 In the
considered opinion of the undersigned this finding is supported by reliable,
probative, and substantial evidence. The findings of the undersigned as set
forth above coupled with the sequence of events from the date that the Union,
started its organizational drive further compels the undersigned to so find.
Another compelling factor that convinces the undersigned that the Respond-
ent's contention that Parks was relieved of his route because of its policy
towards driver-salesmen having dual interests is the fact that it permitted
one of its employees, Ed Lawson, to operate a cafe for a period of at least 3
years without objection. In fact he was operating his cafe up until the time,
he voluntarily left the employment of the Respondent There is not a scintilla
of evidence in the record showing that Lawson was ever criticized, reprimanded,
or advised that he was violating the Respondent's fixed policy as regards driver-
salesmen engaging in outside interests inimicable to its own Moreover, there
is evidence in the record showing that other employees engaged in outside in-
terests while employed by the Respondent and that no disciplinary action was
taken against him. Incidentally, two of the employees who engaged in outside
activities were supervisors, Marshall Green and Charles E. Heath 10
10 See English Freight Company, 61 NLIIB 375; N L. R B. v. Continental Pepe Line
Company, 161 F 2d 302 (C. A 5) April 30, 1947, 67 NLRB 389.
'714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned also finds that Mayer's questioning of Parks relative to his
-union activities, and those of his fellow workers, was also an independent vio-
lation of Section 8 (a) (1). Mayer's statement to Parks "that he was skating
on thin ice" and that he had "better forget about the Union" were threats of
reprisal and the undersigned finds that they constituted interference, re-
straint, and coercion, and are violative of Section S (a) (1) of the Act.
The undersigned also finds that Little's suggestion to Parks that he get into
some other business in 'view of the Respondent's attitude towards unions in
general, and Parks' association with the Union and its abortive attempt to
organize the Respondent's driver-salesmen, constituted interference, re-
straint, and coercion, and was likewise an independent violation of Section 8
(a) (1) of the Act.
The undersigned further finds that by the conduct described above the Re-
spondent by discharging Hugh Carol Parks because he engaged in union and
other concerted activities with other employees of the Respondent for the pur-
pose of collective bargaining or other mutual aid or protection thereby dis-
criminated against him in regard to his hire and tenure of employment, dis-
.couraged membership in the Union, and interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and by such conduct likewise violated Section 8 (a) (3) and (1) of the Act.
2. William Gifford Ellis
William Gifford Ellis was employed by the Respondent on April 12, 1949,
under the following circumstances.
Sometime in the early part of April 1941, Ellis visited Waco while on his
vacation. At that time he was employed by the Fehr Baking Company in
Beaumont, Texas. This company, like the Respondent herein, is controlled by
the Campbell-Taggart Associated Bakeries, Inc. The business and activities of
Campbell-Taggart have been described above and will not be reiterated in this
section of the Intermediate Report. While Ellis was in Waco he learned that
the Respondent was connected with Campbell-Taggart and drove out to the
bakery where he talked to Mayer, Little, and Todd about getting a transfer from
Fehr's bakery in Beaumont to the Respondent's. Mayer advised him that
neither Campbell-Taggart nor the Respondent granted transfers but that if he
was in good standing with Fehr, then if the Respondent had an opening it would
consider employing him as a driver-salesman. The reason Ellis desired to
transfer to Waco was because of his wife's health. At the time she was suffering
with sinus trouble, and since Beaumont is on the Gulf of Mexico, the climate
was rigorous and aggravated her condition. Waco on the other hand is located
in the heart of Texas and climatic conditions there are much better for those
afflicted with sinus trouble. Ellis went back to Beaumont and discussed with
General Manager Roberts of Fehr the possibility of getting a transfer to Waco.
He told Roberts about his wife's health and the reason he desired to go to Waco.
Roberts told him the same thing about transfers as Mayer had when he was in
Waco. Roberts told him, however, that he was in good standing with Fehr and
suggested that if the Respondent had an opening in Waco that he quit Fehr
and go on up to Waco and go to work Ellis followed Roberts' suggestion and
went back to Waco and went to work for the Respondent on April 12, 1949. In
the interim Roberts had highly recommended him to the Respondent.
Shortly before Ellis assumed his duties with the Respondent, he had separate
conversations with Mayer, Little, and Green. He was interrogated about his
attitude towards unions, and he told them that when he was at Fehr he belonged
to the union, and that driver-salesmen there were organized and had a contract
HILLTOP BAKING COMPANY 715
with the company. He was advised by each of the supervisors named above
that the Respondent's employees were unorganized but at that time they were
having "union trouble." Green told him in substance in their conversation that
he wanted him to learn his route as'quickly as possible because they were going
to run the trucks "regardless of the Union" and that there was going to be a
"house-cleaning" among the drive-salesmen.
According to the credible testimony of Ellis, he did not attend the first union
meeting but he did the second, which was held on or about May 1, 1949. At
this meeting he was asked to tell those present about the union, presumably
because he had been a member of the union at Fehr in Beaumont, which he did.
As indicated above, this meeting was held on Sunday afternoon, May 1, 1949.
On the following Monday or Tuesday, Porter Mayer called him into his office
for an interview; also present were Little and Green. Mayer interrogated
Ellis about the meeting. What transpired in Mayer's office on this occasion is
best told by Ellis. He testified in this regard as follows :
Q. Now, I will ask you to state whether or not you had any conversation
with any management official concerning that second Union meeting?
A. Yes sir, I did.
Q. And who was that?
A. Mr. Mayer, Tommie Little and Jimmie Todd.
Q Now, trying to place a date, when did that conversation take place,
counting from that Sunday that the Union meeting was on?
A. Early in the following week, possibly Monday or Tuesday.
Q. All right, sir. Where did the conversation take place?
A. In the salesroom office.
Q. And about what time of day?
A. Well, it was late, in the afternoon after we had finished the routes,
possibly five, four, five o'clock.
Q. All right, now, what sort of a conversation did you have? Will you
state everything that was said to you around that time?
A. Yes. I remember there was several of us checking up, preparing to
turn our money in, and I finished started out the door to go home, and Mr.
Mayer called me, or he came to the door and he says, "I want to see you in
a few minutes." So I stepped outside the door and waited, and after the
other boys had finished and left the office he called me in and these three
gentlemen I mentioned were in there. Mr. Mayer asked me, he said, "Did
you attend the Union meeting the other day," referring to the last one.
I said, "Yes , I did."
He asked me what did I think about it?
I don't remember exactly what I said. Well, I do remember I told him
that I wasn't especially for it nor against it, I remember saying that, and
Mr. Little says, "I understand that isn't the way you felt about it from the
little talk you made at the Union meeting."
I said, "Who told you that?"
He says, "Some of the boys," and I remember Mr. Mayer said, "Well,
you know you don't have to join in a Union if you don't want to."
I told him it didn't make much difference, whatever the majority wanted.
and he told me that there would probably be another Union meeting and I
could go down there and tell those boys that "you don't want any part of
it." Then I laughed, told them that I would tell them, but they wouldn't
listen to me.
Ellis admitted that he had made the "talk" referred to by Little at the second
union meeting, but the record is silent as to what he said.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated above, a third union meeting was scheduled for May 7, 1949:
Ellis did not attend it. As far as the record is concerned, the only union or
concerted activities that Ellis engaged in was 'his attendance at the second
union meeting, which has been described above.
Ellis admitted that he attended the second union meeting and that he talked
to those present.
Mayer, Little, and Green denied Ellis' testimony as regards the meeting in,
Mayer's office on or about May 9, 1949. The undersigned has found above that
Mayer and Little were unreliable witnesses. He also finds that Green likewise
was an unreliable witness The undersigned's findings as regards Green's
credibility are based on his observation of him while he was testifying and
his contradictory testimony as regards important issues. Moreover he also
impressed the undersigned as an evasive and reluctant witness especially as
regards his activities as a driver-salesman before he was promoted to a super-
visory position. This will be discussed in detail hereinafter. Ellis on the
other hand impressed the undersigned as an honest and forthright witness.
His demeanor on the stand was excellent, and his testimony both on direct and
cross-examination was impressive - Having found as above, the undersigned is
convinced and finds that Mayer, Little, and Green had the meeting in Mayer's
office as described by Ellis in his testimony, and that they made the remarks
attributed to them by Ellis, and that his testimony as to what transpired at
this meeting was a true account thereof.
As indicated above, Ellis was discharged by the Respondent on August 2, 1949.
At the time of his discharge by his supervisor, Marshall Green, he was servicing
Green's old route which included such towns as Temple and Cameron, Texas.
At Cameron, one of the stores serviced by Ellis was a Safeway store. The
record shows that this was one of the best accounts on the route The policy
of the Safeway stores as to the sale and display of the products of various
competing bakeries is left up to the individual store managers. In the main,
however, the general practice in this regard is as follows. Driver-salesmen for
the rival bakeries are not permitted to display their bread because of the
friction that this practice generates. This was the rule at the Safeway store
in Cameron. Both Ellis and Green agree that the practice at this store was
to deliver the fresh bread at the rear of the store. An employee of Safeway
would then take it to the bread rack and arrange its display According to
Ellis, he was instructed by Green when he took the route over to deliver the
fresh bread at the rear of the store and pick up the stale bread which had
previously been placed on a table by an employee of Safeway. The Respond-
ent's bread, which has the trade name of "Rainbo," has a coded number on the
wrapper which shows the date it was first placed on display. The Respondent
prides itself on selling nothing but fresh bread, and its advertising is keyed
to this policy. In the vernacular of the bread business, bread 1 day old is
called "old bread," and 2 days old is called "stale bread." It is and has been
at all times the policy of the Respondent to keep "stale bread" off the display
racks. Unquestionably this rule is of the utmost importance to the Respondent,
and its driver-salesmen are held strictly accountable for the carrying out of
its policy in this regard. Ellis further testified that he had been instructed
by Green to pick up the stale bread at the rear of the store, and that he was
not to go to the display rack and check the bread for "stales " Green on the
other hand testified that he instructed Ellis to leave the fresh bread at the rear
of the store and then go to the display rack and remove the stale bread. The
testimony of both Green and Ellis in this regard is at serious variance. While
it is true that the undersigned has found above that Green was an unreliable
HILLTOP BAKING COMPANY 717
-witness, and to the contrary as to Ellis, nevertheless he accepts Green's ver-
sion as regards the delivery and pickup of bread at the Safeway store in
Cameron, because it appears to him as being the most logical, and he so finds.
That a trier of facts may credit part of a witness' testimony and discredit part
is well settled and has been discussed supra in the undersigned's credibility
findings as regards the testimony of Tommie Little. The primary factor that
has influenced the undersigned in arriving at the above finding is the fact that
the Respondent laid great stress on the sale of fresh bread, and to permit stale
bread to remain on display racks would injure its business. The only way it
could accomplish this was to have its driver-salesmen check the display racks
of its customers at regular intervals Certainly its own personnel were the
most logical persons to carry out its policy in this regard. The undersigned is
convinced that Ellis was not properly instructed by Green as regards the
policy of the Safeway stores and that he was confused as to the manner he
should pursue in servicing these stores.
On or about July 26, 1949, Green accompanied Ellis on his route. It was
0
at this time that Green first became aware of the fact that Ellis was not properly
servicing the Safeway store at Cameron He cautioned Ellis about picking
up the stale bread there, and told him that he would go over the route with
him in about a week for the purpose of checking up on the various accounts and
in particular the stale bread situations at the Safeway store in Cameron.
On August 2, 1949, Gieen again rode the route with Ellis. They stopped at
the Safeway store and Green once again found stale bread on the display rack.
After leaving the Safeway store, Green asked Ellis about an account that was
about 11/2 miles off the regular route. Ellis told him that the store was closed
and that recent inquiry had convinced him that the store was still closed.
Green suggested that they go over to the store and check the situation. They
did so and found that the store had reopened Shortly thereafter, while they
were on the route, Green told Ellis that lie was through. In other words he dis-
charged him. Ellis protested Green's action then and later when they got back
to the bakery, but to no avail. He also protested to Mayer who likewise re-
fused to do anything. Ellis asked him why lie was being discharged. Mayer,
inter alga , said, "Well, a few little things that happened in the past," but did
not elaborate on his statement. Ellis then asked Mayer if it was because of the
Union, and lie replied, "What makes you think that!" Ellis then pointed out to
Mayer that only a few clays before be had praised his work. Green testified
concerning several minor natters as bearing on Ellis' discharge but they are so
triNial that the undersigned deems them unworthy of any consideration Espe-
cially in view of President York's statement that Ellis was discharged for two
things: (1) Failure to keep stale bread off the display racks, and (2) failure
to call on one of the Respondent's accounts
Concluding Findings
The undersigned is well aware of the rule that the burden rests on the General
Counsel to prove that Ellis was discharged because he had engaged in union and
other concerted activities with other employees for their mutual aid and pro-
tection. To sustain that burden the General Counsel must prove: (a) That
Ellis had engaged in concerted activities; (b) that the Respondent had knowl-
edge thereof; and (c) that Ellis was discharged because he engaged in such
activities. In order to sustain the burden of proof and establish the above
essential factors the General Counsel must do so by a preponderance of the
reliable , probative , and substantial evidence . This leads us to that perplexing
question-has the General Counsel met the above test? First , let us look at
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the above findings and ascertain from them just what the General Counsel
has proved in accordance with the above rule.
Upon the above findings and the record as a whole the undersigned finds
that the General Counsel has sustained the burden of proof as to the following
necessary factors in determining the motivation for Ellis' discharge: (1) That
Ellis was formerly employed by the Fehr Baking Company in Beaumont, Texas ;
(2) that he was a member of the Teamsters Union in that plant; (3) that he
was interviewed by the Respondent regarding a position as driver-salesman
at its Waco plant and at that time advised the Respondent that he was a member
of the union at Fehr's ; (4) that he was employed by Respondent on April 12, 1949;
(5) that he attended the second union meeting on May 1, 1949, and made a
"little talk" to those present; (6) that he did not attend the third and last
scheduled union meeting on May 7, 1949; and (7) that he was discharged on
August 2, 1949, by Marshall Green, his supervisor, allegedly because he failed
to pick up stale bread at the Safeway store in Cameron, Texas, and for failure
to service a customer. The record is silent as far as Ellis' alleged concerted
activities are concerned for the period from May 1, 1949, to August 2, 1949, a
period of more than 3 months. Moreover, the record does not show that he
either transferred his union membership from Beaumont to Waco, or Joined
the local there. Hence as far as the record is concerned Ellis engaged in one
act that can be classified as union or concerted activities between April 12 and
August 2, 1949.
There is no question that Ellis failed to pick up stale bread at the Safeway
store. He admits it, but places the blame on Green for not properly instructing
him in this regard. While there is considerable merit to Ellis' argument,
nevertheless the fact remains that his actions in this regard create a legal
ground for discharge. As far as his failure to service a customer who had
closed up his store, the undersigned finds that this incident was so trivial in
the face of a justifiable excuse for Ellis' dereliction in this regard, that he
considers it of no moment, and will not consider it in his ultimate findings
herein.
While it is true that Ellis admitted violating the stale bread rule, yet the
record shows that there were extenuating circumstances. For example, both
Green and the manager of the Safeway store instructed him as to how to service
the account. It is significant that Ellis was summarily discharged without any
warning whatsoever. But to find that it was for union activity gets us into
the realm of speculation. The gravamen of the General Counsel' s position
is that he has not shown by a preponderance of the evidence that Ellis was
discharged for union and concerted activities. This finding is buttressed by
the fact that the only evidence of concerted activities on the part of Ellis is
the fact that he discussed his experiences with the union at the Fehr Bakery
in Beaumont. This was on May 1, 1949. He was discharged August 2, 1949,
more than 3 months later. In the interim the Board had conducted an election
among the Respondent's driver-salesmen on June 16, 1949, which the Union
lost. In the considered opinion of the undersigned, and he so finds, the con-
nection between Ellis' activities at the meeting on May 1 and his discharge
on August 2, 1949, are too remote to raise an inference that his discharge was
for union and concerted activities.
In order for the undersigned to make a finding that Ellis was discharged
for union and concerted activities it would be necessary for him to resort to
speculation. It is not enough to show merely that the Employer may have
discharged Ellis on account of his union activities-the evidence must point to
that fact. When the testimony shows, as it does here, that the cause of the
HILLTOP BAKING COMPANY 714,
discharge may have been one of two things, one of which was illegal and the
other legal, the trier of the facts cannot guess between the two causes and find
that union activities was the real cause when there is no reliable, probative,
and substantial evidence to support such a conclusion.
Upon all of the foregoing, and upon the record as a whole, the undersigned
concludes and finds that William G. Ellis was discharged for cause. Conse-
quently he will recommend that this allegation in the complaint be dismissed.
The undersigned has found above that Ellis was interviewed by Mayer, Little„
and Green on or about Tuesday, May 3, 1949, concerning the union meeting held
on Sunday afternoon, May 1, 1949. Such conduct on the part of the Respondent's
supervisors is clearly violative of the rights guaranteed employees by Section 7 of
the Act, and constitutes interference, restraint, and coercion, which is
violative of Section 8 (a) (1) of the Act, and the undersigned so finds.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, described in Section III, above, occurring-
in connection with its operations as described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the sev-
eral States, and such of them as have been found to constitute unfair labor
practices tend to lead to labor disputes hindering and obstructing commerce and,
the free flow of commerce. -
9
V. THE REMEDY
Having found that the Respondent discriminatorily discharged Hugh Carol
Parks, the undersigned shall recommend that the Respondent offer him imme-
diate and full reinstatement to his former or substantially equivalent position
without prejudice to his seniority or other rights and privileges and make him
whole for any loss of pay suffered by him as a result of the discrimination by
payment to him of a sum of money equal to the amount he would have earned,
from the date of his discharge to the date of offer of reinstatement, less his
net earnings;' to be computed on a quarterly basis in the manner established
by the Board in F. TV. Woolworth Company, 90 NLRB 289. Earnings in one-
particular quarter shall have no effect upon the back-pay liability for any other
such periods. It will also be recommended that Respondent make available to
the Board upon request payroll and other records to facilitate the checking of
the amount of back pay due'2
In view of the nature of the unfair labor practices committed, the undersigned
shall also recommend that Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
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. General Drivers , Warehousemen , Helpers and Dairy Employees, Locai
Union 565 , is a labor organization within the meaning of Section 2 (5) of the-
Act.
2. By discriminating in regard to the hire and tenure of employment of Hugh
Carol Parks, thereby discouraging membership in General Drivers , Warehouse-
men, Helpers and Dairy Employees , Local Union 565, the Respondent has engaged
11 The Chase National Bank of the City of New York, an Juan , Puerto Rico , Branch,
65 NLRB 827.
12 F. W. Woolworth Company, supra.
'720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) and (3) 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 General Counsel did not establish by reliable, probative, and sub-
stantial evidence that the Respondent discriminatorily discharged William G.
Ellis.
[Recommended Order omitted from publication in this volume.]
M. W. BREMAN, AN INDIVIDUAL D/B/A BREMAN STEEL COMPANY AND
BREMAN IRON AND METAL COMPANY and INTERNATIONAL ASSOCIA-
TION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS
LOCAL No. 616, AFL, PETITIONER. Case No.10-RC-1059. March 6,
1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held before John C. Carey, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent employees
.of the Employer.
3. No question affecting commerce exists concerning the represent-
ation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
-reasons:
The Petitioner seeks a unit of all the Employer's fabricating shop
,employees, including skilled and semiskilled employees and common
laborers. The Employer contends that because of the constant inter-
change among the common laborers of the fabricating shop, the ware-
house and the yards, only an over-all production and maintenance
unit is appropriate. There is no history of collective bargaining
among any employees of the Employer.
The Employer is engaged in the buying and selling of steel and
scrap iron and in the fabricating and selling of structural steel. Its
main operations are located at 329 Decatur Street, Atlanta, Georgia.
At that location are its fabricating shop, warehouse, and a receiving
and storing yard. In addition, the Employer also operates a receiv-
93 NLRB No. 101.
Q