Kingston Cake Co., Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1950

91 N.L.R.B. 447 (N.L.R.B. 1950)

In the Matter of KINGSTON CAKE COMPANY, INC. and FRANKLIN
WILLIAMS
In the Matter of KINGSTON MUTUAL ASSOCIATION. and FRANKLIN
WILLIAMS
Cases Nos. 4-CA-267 and 4-CB-46.-Decided September 25, 1959
DECISION AND ORDER
On April 27, 1950, Trial Examiner Robert E. Mullin issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents, Kingston Cake Company, Inc., herein called the Re-
spondent Company, and Kingston Mutual Association, herein called
the Respondent Union, had engaged in and were engaging in certain
unfair labor practices, and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Respond-
ent Company and the Respondent Union each filed exceptions to the
Intermediate Report with a supporting brief. In addition, the Re-
spondent Company requested oral argument. However, because the
record and briefs, in our opinion, adequately present the issues and
positions of the parties, the request for oral argument is hereby denied.
The Board 1 has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby af£rmed.2 The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
cases and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner,,with the exceptions, modifications, and
additions noted below.
We find, as did the Trial Examiner, that by discharging Franklin
Williams on May .9, 1949, the Respondent Company violated Section
'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
Houston and Murdock].
2 For the reasons appearing in the Intermediate Report , we agree with the Trial Ex-
aminer 's finding that there is no merit to the Respondent Company's claim that Section 10
(b) of the Act requires a dismissal of the complaint in Case No . 4-CA-267 on the ground
that there is a fatal variance between the compla nt and the charge in that case.
91 NLRB No. 69.
447
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (a) (3) and 8 (a) (1) of the Act; and that by causing the Respondent
Company to do so the Respondent Union violated. Section 8 (b) (2)
and 8 (b) (1) (A) of the Act.
The following critical facts, upon which we rely in reaching our
ultimate conclusions herein, are undisputed: On February 11, 1949,
as a result of an election conducted by the Board on February 3,
1949, the Respondent Union was certified as the bargaining repre-
sentative of the Respondent Company's production and maintenance
employees. On February 23, the Respondents executed a collective
bargaining agreement which provided in relevant part :
3. Within the limits of authority permitted by Federal and
Commonwealth of Pennsylvania laws, the employer shall require
as a condition of employment for employees, membership in the
association [Kingston Mutual. Association] . . . and will deduct,
collect, or assist in collecting from the wages of employees when
authorized . . . any dues, fees or assessments payable to the
Association within the authority and procedure set forth in Fed-
eral or Commonwealth of Pennsylvania statutes . . .
4. . . . The employer shall discharge an employee when ex-
pelled from the association within the limits permitted by law.
Subsequently, the Respondent Union petitioned for a union-secur-
ity election among the covered employees. On March 24, the Board
conducted such an election, pursuant to the provisions of Section 9
(e) (1) of the Act. The Respondent Union won this election and, on
May 16, was certified as authorized to execute a union-shop agreement.
On April 12, more than a month before the issuance of the certifica-
tion, Williams was expelled from the Respondent Union because, as
an officer therein, he had refused to execute a non-Communist affidavit
at the time of the representation proceedings referred to above. By
letter dated April 19 the Respondent Union notified the Respondent
Company of the expulsion. As of April 20, the Respondent Company
was aware of the. reason for Williams' expulsion but made no reply
to this communication. On April 25, the Respondent Union sent the
Respondent Company another letter in which it again referred to
Williams' expulsion and, after directing attention to paragraph 4
of the contract, requested the Respondent Company to "take appro-
priate steps in line therewith." On April 26, the Respondent Com-
pany replied, stating that it could not take action against Williams
under the contract unless he was expelled from the Union for failure
to tender union dues and initiation fees. This was answered by a
letter from the Respondent Union, dated April 29, stating that Wil-
liams, in addition to having failed to execute a non-Communist
KINGSTON$ CAKE COMPANY, I\eC. 449
affidavit, also failed to pay his union dues for March, that the Re.
spondent Union believed that Williams' union membership was thereby
terminated, and that the Respondent Company was required to dis-
charge Williams pursuant to the contract between them. On May 9,
1 week before the certification pursuant to the union-authorization
election, the Respondent Company discharged Williams, assigning the
termination of Williams' membership in the Respondent Union as one
of the reasons for its action.3
From the foregoing, including the Respondent Company's admission
that Williams' nonmembership in the Respondent Union was one of
the motivating causes for the discharge, it is clear that the Respondent
Company's discharge of Williams was discriminatory within the
meaning of Section 8 (a) (3) of the Act, unless, as the Respondent
Company contends it was protected by a valid union-shop contract.
It is the Respondent Company's position that the union-security
provisions in its contract with the Respondent Union, pursuant to
which Williams vas discharged, became legally operative on March 24,
when the results of the union-authorization election became known.
We do not agree. For the reasons set forth in the Intermediate
Report, we are of the opinion and find, as did the Trial Examiner,
that the Act, by the proviso to Section 8 (a) (3),5 accords validity to a
union-shop agreement only if the labor organization which is the
party to the contract has been cei°ti filed by the Board as authorized to
make such an agreement'' In the instant case the requisite certifica-
tion did not issue until May 16, 1949, 1 week after Williams' discharge.
It is plain, therefore, that the union-security provisions in question
were without legal effect during the critical period herein and conse-
quently are unavailable as a defense to the discharge of Williams.
Accordingly, inasmuch as no valid union-shop agreement was in
existence at the Respondent Company's plant at the time, we find that
the Respondent Company's discharge of Williams on May 9, 1949,
3In its Answer and at the hearing the Respondent Company reasserted the termination
of Wiliams' union membership as a reason for the discharge.
See Cupples Company Manufacturers v. N. L. R. B., 106 F. 2d 100 (C. A. 8) ; Kansas
City Power and. Light Company v. N. L. R. B., 111 F. 2d 340 (C. A. 8) ; Lone Star Gas
Company, 52 NLRB 1058.
Insofar as pertinent, the proviso reads as follows
. . . nothing in this act . . . shall preclude an employer from making an agreement
with a labor organization . . . to require as a condition of employment membership
therein . . . (iii) if, following the most recent election held as provided in Section
9 (e) the Board shall have certified that at least a majority of the employees eligible
to vote in such election have voted to authorize such labor organization to make such
an agreement. . . .. (Emphasis supplied.)
See also in this connection New'Yark Shipbuilding Corporation, 89 NLRB 1446 ; Hughes
Aircraft Company, 81 NLRB 867, and the cases cited therein.
450 DECISIONS OF NATIONAL ILABOR RELATIONS BOARD
because he was not a member of the Respondent Union violated
Section 8 (a) (3) and 8 (a) (1) of the Act.7
Furthermore, it is clear that, in discharging Williams, the Respond-
ent Company was complying with the Respondent Union's request
that he be terminated because of his expulsion from union member-
ship. We therefore find that the Respondent Union caused the Re-
spondent Company to discriminate against an employee in violation
of Section 8 (a) (3) of the Act, thereby violating Section 8 (b) (2)
and 8 (b) (1) (A) of the Act."
The Remedy
Having found that the Respondents have engaged in certain unfair
labor practices, we will order them to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
In view of the circumstances attending the discrimination against
Williams, and the absence of any evidence that danger in regard to
the commission of other unfair labor practices is to be anticipated
from the Respondents' conduct in the past, we are of the opinion that
the issuance of a broad cease and desist order against either of the
Respondents is unwarranted, and that one limited to the violations
in each of the cases is sufficient to effectuate the policies of the Act.
Consequently, we shall order the Respondents to cease and desist
from the unfair labor practices found, and any like or related conduct .9
We shall order the Respondent Company to offer Williams immedi-
ate and full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights and
privileges.
As we have found that both the Respondent Company and the Re-
spondent Union are responsible for the discrimination suffered by
Franklin Williams, we shall,, like the Trial. Examiner, order them
jointly and severally to make Williams whole for any loss of pay he
may have suffered by reason of the discrimination against him.i"
7 Clara. Pal Packing Company, 87 NLRB 703: Union Starch Company, 87 NLRB 779;
Lloyd A. Fry Roofing Company, 89 NLRB 854. Although the Respondent Company asserted
as an additional reason for the discharge that Williams had disrupted the plant by refusing
to sign the non-Communist affidavit and by other conduct, we need not pass on the validity
of that reason . It is sufficient that , as here, one of the reasons actually relied upon for the
discharge runs afoul of the Act, and that but for such illegal motivation the discharge
would not have taken place. See footnote 4, supra.
INew York Shipbuilding Corporation, supra.
Unlike the Trial Examiner, we deem it unnecessary to decide what the results herein
would have been had a valid union-shop contract existed at the time of the discharge of
Williams. We therefore need not pass on the validity of the Trial Examiner 's findings in
that regard.
9 Cf. New York Shipbuilding Corporation, supra.
1011. Al. Newman, 85 NLRB 725.
KINGSTON' CAKE COMPANY, INC. 451
However, since the issuance of the Trial Examiner's Intermediate
Report, the Boilyd has adopted a method of computing back pay dif-
ferent from that prescribed by the Trial Examiner" Consistent with
that new policy we shall order that the loss of pay be computed on
the basis of each separate calendar quarter or portion thereof during
the period from May 9, 1949, the date Williams was discriminatorily
discharged, to the. date of a proper offer of reinstatement by the Re-
spondent Company; provided, however, that if, before such offer of
reinstatement, the Respondent Union notifies the Respondent Con]-
pany in writing that it has no objection to Williams' reinstatement,
the Respondent Union shall not thereafter be liable for any back pay
accruing after 5 days from the giving of such notice." The quarterly
periods, hereinafter called "quarters," shall begin with the first day
of January, April, July, and October. - Loss of pay shall be deter-
mined by deducting from a sum equal to that which Williams would
normally have earned for each quarter, or portion thereof, his net
earnings,73 if any, in other employment during that period. Earnings
in one particular quarter shall have no effect upon the back-pay lia-
bility for any other quarter.
We shall also order the Respondent Company to make available to
the Board upon request payroll and other recoids to facilitate the
checking of the amount of back pay due.14
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that:
1. The Respondent, Kingston Cake Company, Inc., Kingston, Penn-
sylvania, its officers, agents, successors, and assigns, shall:
a. Cease and desist from:
(1) Encouraging membership in Kingston Mutual Association, or
in any other labor organization of its employees, by discriminating
as to its employees in regard to their hire or tenure of employment or
any term or condition of their employment;
11 F. 1V. Woolworth Company. 90 NLRB No. 41.
12 Pinkerton's National Detective Agency, Inc., 90 NLRB 205.
13 By net earnings" is meant earnings less expenses, such as for transportation, room, and
board, incurred by an employee in connection with obtaining work and working elsewhere,
which would not have been incurred but for this unlawful discrimination, and the conse-
quent necessity of his seeking employment elsewhere. Crossett Lumber Company, 8 N1.It1:
440. Monies received for work performed upon Federal, State, county, municipal, or other
work-relief projects shall be. considered earnings. Republic Steel Corporation v. N. L. R. B.,
ill U. S. 7.
14 F. 11'. Woolncorih Company , supra.
917572-51-vol. 91-30
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by 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 Franklin Williams immediate and full. reinstatement
to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges;
(2) Jointly and severally with Kingston Mutual Association, make
Franklin Williams whole, in the manner above set forth in the section
entitled "The Remedy," for any loss of pay he may have suffered by
reason of their discrimination against him;
(3) Upon request, make available to the Board or its agents, for ex-
amination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due under this
Order;
(4) Post at its plant at Kingston, Pennsylvania, or at such places
as notices to its employees are customarily posted, copies of the notice
attached hereto and marked Appendix A.'> Copies of said notice, to
be furnished by the Regional Director for the Fourth Region shall,
after being duly signed by the Respondent Company's representative,
be posted by it immediately upon receipt thereof, and be maintained
by it for a period of at least sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by*the Com-
pany to insure that such notices are not altered, defaced, or covered by
any other material;
(5) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
2. The Respondent, Kingston Mutual Association, its officers, agents,
representatives, successors , and assigns, shall:
a. Cease and desist from :
(1) Causing or attempting to cause Kingston Cake Company, Inc.,
Kingston, Pennsylvania, its officers, agents, successors , and assigns to
15 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 "Decision and Order ," the words "Decree of the
United States Court of Appeals Enforcing."
KINGSTON CAKE COMPANY, INC. 453
discriminate against its employees in violation of Section 8 (a) (3)
,of the Act;
(2) In any like or related manner restraining or coercing employees
,of Kingston Cake Company, Inc., its successors or assigns, in the
exercise of the rights guaranteed in Section 7 of the Act, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
:authorized by Section 8 (a) (3) of the Act.
b. Take the following afrinative action, which the Board finds will
.effectuate the policies of the Act:
(1) Jointly and severally with Kingston Cake Company, Inc., make
I ranklin Williams whole, in the manner above set forth in the section
entitled "The Remedy," for any loss of pay he may have suffered by
reason of their discrimination against him;
(2) Post at its offices, if any, at Kingston, Pennsylvania, copies of
the notice attached hereto and marked Appendix B.16. Copies of said
notice, to be furnished by the Regional Director for the Fourth Region
shall, after being duly signed by the Respondent Union's representa-
tive, be posted by it immediately upon the receipt thereof, and be
maintained by it for a period of at least sixty (60) consecutive days
thereafter, in conspicuous places, including all places were notices to
members are customarily posted. Reasonable steps shall be taken by
the Respondent Union to insure that such notices are-not altered, de-
faced, or covered by any other material;
(3) Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto as Appendix B, for posting,' the
Respondent Company willing, in the offices of Kingston Mutual Com-
pany, Inc., Kingston, Pemisylvania, in places were notices to em-
ployees are customarily posted. Copies of said notice to be furnished
by the Regional Director for the Fourth Region, shall, after being
-signed as provided in paragraph 2 (b) (2) of this Order, be forth-
'with returned to the Regional Director for said posting;
(4) Notify the Regional Director for the Fourth Region in writ-
ing, within ten '(10) days from the date of this Order, what steps it
has taken to .comply herewith.
APPENDIX A
INOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
hoard, and in order to effectuate the policies of the National Labor
Relations Act, _as .amended, we hereby notify our employees that :
10.1b id.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL. NOT encourage membership in KINGSTON MUTUAL
ASSOCIATION, or in any other labor organization of our employees,
by discriminatorily discharging any of our employees or by dis-
criminating in any other manner in regard to their hire and tenure
of employment, or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
any labor organization, to bargain collectively through represent-
atives of their own choosing and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except
to the extent that such right 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.
WE WILL offer to Franklin Williams immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay
suffered as a result of the discrimination against him.
All our employees are free to become, remain; or to refrain from
becoming or remaining, members in good standing of the above-
named union or any other labor organization, except to the extent that
this right may be affected by an agreement in conformity with Section
8 (a) (3) of the Act.
KINGSTON CAKE COMPANY, INC.
Employer.
Dated--------------- By -----------------------------------
(Representative ) ( Title)
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
APPENDIX B
NOTICE TO ALL MEMBERS OF KINGSTON MUTUAL ASSOCIATION AND TO
ALL EMPLOYEES OF KINGSTON CAKE COMPANY] INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Ref tions Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause KINGSTON CAKE COM-
PANY, INC., its officers, agents, successors, and assigns, to discharge
KINGSTON CAKE COMPANY, INC. 455
or otherwise discriminate against employees because they are not
members in good standing in KINGSTON MUTUAL AssoCIATION, or
in any other manner cause or attempt to cause that Company, its
officers, agents, successors, and assigns, otherwise to discriminate
against its employees in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
the Company's employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to
refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL make Franklin Williams whole for any loss of pay
he may have suffered because of the discrimination against him.
KINGSTON MUTUAL ASSOCIATION,
Union.
By ------------------------------------
(Representative ) ( Title)
Dated ---------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE .REPORT
Mr. Julius Topol, for the General Counsel.
Mr. Mag Rosen-n, of Wilkes-Barre, Pa., for the Respondent Company.
Mr. Frank M. Flanagan,, of Pittston, Pa., for the Respondent Union.
Mr. E. C. Marianelli, of Wilkes-Barre, Pa., for Franklin Williams.
STATEMENT OF THE CASE
Upon charges dull filed by Franklin Williams', an individual, the General
Counsel of the National Labor Relations Board 2, by the Regional Director for
the Fourth Region (Philadelphia, Pennsylvania), issued a consolidated com-
plaint, dated January 13, 1950, against Kingston Cake Company, Inc., herein
called the Company, and Kingston Mutual Association, herein called the Union,
and collectively called the Respondents, alleging that the Company and the
Union had engaged in and were engaging in unfair labor practices, within the
' Also known as, Franklin C. Williams.
2 The General Counsel and the attorney representing him at the hearing are referred to
herein as the General Counsel'. The National Labor Relations Board is referred to as the
Board.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section S (a) (1) and 8 (a) (3) and Section 8 (b) (1) (A) , and
S (b) (2), respectively, and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, as amended, 61 Stat. 136, herein called the Act. Copies
of the consolidated complaint; the charges 3 and notice of hearing were duly
served upon the parties!
With respect to the unfair labor practices the consolidated complaint alleged,
in substance, that the Union demanded that the Company discharge an employee,
Franklin Williams, for nonmembership in the Union, and caused the Company
to discriminate against Williams in violation of Section 8 (a) (3) of the Act;
that, pursuant to this demand of the Union, the Company, on or about May 9,
1949, discharged Williams and thereafter refused to reinstate him; and that by
said acts the Union violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act„
and that the Company violated Section 8 (a) (1) and 8 (a) (3) of the Act.
Thereafter, the Respondents filed their separate answers. The Company, in
its answer, admitted the allegations of the complaint with respect to its business
operations and that it had discharged Williams but denied the commission of
any unfair labor practices. The Company further averred that it discharged
Williams as a voluntary act and in compliance with its contract with the Union
after Williams had disrupted the plant by his antagonism toward fellow em-
ployees and the officers of the Kingston Mutual Association and after the Com-
pany was informed that Williams' union membership had been terminated for
(1) failure to tender dues and initiation fees and (2) failure to sign a non-Com-
munist affidavit. The Union, in its answer, admitted that the Company was
engaged in business affecting commerce within the meaning of the Act but
denied that it committed the unfair labor practices alleged in the complaint.
The Union further averred that Williams was expelled for (1) failure to execute a
non-Communist affidavit and (2) failure to tender periodic dues and fees, and
that it so notified the Company. The Union denied that it at any time requested
the Company to discharge Williams.
Pursuant to notice, a hearing was held on February 2, 3, and 6, 1950, at Wilkes-
Barre, Pennsylvania, before Robert E. Mullin; the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel, the Com-
pany, the Union, and Williams were represented by counsel and participated in
the hearing. All parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues..
At the conclusion of the General Counsel's case, the Company moved to dismiss
the complaint as to it on the ground that the complaint was not sustained by
the charge and, further, that there was a failure of proof, that the Company had
in any manner violated the Act. At the same time the Union likewise moved to
dismiss the complaint on the grounds that the General Counsel had failed to
prove that the Union had caused the Company to discharge Williams or that the
Union was guilty of unfair labor practices within the meaning of any section of
the Act, and that the General Counsel had failed to produce evidence that would
support the charge as originally filed. These motions were denied! At the close
3 The original charges were filed June 27, 1949 , and served on the Respondents on June
28, 1949.
4 On January 24, 1950, the Regional Director issued his order granting request for post-
ponement of the hearing from January 31 to February 2, 1950. This , too, was . duly served
upon the parties.
S At the hearing both Respondents , in support of their separate motions to dismiss,
alleged that the complaint varies substantially from the charges originally filed. In its
brief , the Company argues that a fatal variance under Section 10 (b) of the Act arises
KINGSTON' CAKE COMPANY, INC. 457
of all the evidence, motions to dismiss, similar to the above, were renewed by
both Respondents.' Ruling was reserved by the Trial Examiner. They are
disposed of as will hereinafter appear. At the close of the hearing counsel for
all parties argued orally before the undersigned in support of their various
positions and were advised that they might also file briefs. Since that time a
brief has been received from the Company which has been carefully considered
by 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 COMPANY
The Kingston Cake Company, Inc., is a Pennsylvania corporation maintaining
its principal place of business in Kingston, Pennsylvania, where it operates a
large bakery with approximately 550 employees. The Company also maintains
distribution points at Scranton, Hazleton, Sunbury, and Philadelphia, Pennsyl-
vania, and Baltimore, Maryland. Only the Kingston plant is concerned herein.
In the course and conduct of its operations at this plant the Company's annual
purchases of raw materials and equipment approximate $2,000,000: Of this
amount, raw materials consisting primarily of sugar, flour, eggs, and shortening
valued at more than $500,000, are shipped to the Company from points outside the
Commonwealth of Pennsylvania. .The Company's annual sales approximate
$4,000,000, and of this amount finished products totaling more than $300,000 in
value are shipped from its Kingston plant to points outside the Commonwealth
of Pennsylvania.
from the fact that the complaint alleged that Williams was discharged to encourage mem-
bership in Respondent Union whereas the charge , filed more than 6 months prior to
issuance of the complaint , alleged that he was dismissed because of activities on behalf of
the Bakery and Confectionery Workers. A. F. L. Examination of the charges and the
consolidated complaint , however , discloses no substantial variance , for the charge in Case
No. 4-CA-267 alleged that the Company had dismissed Williams for his activities on
behalf of the Bakery Workers despite its claim that it had done so at the request of the
Union and "in accordance with the terms of a collective bargaining agreement in effect
between the Company and the Kingston Mutual Association ," whereas the charge in Case
No. 4-CB-46 alleged that the Union caused the Company to discharge Williams after it had
expelled him on "some ground other than his failure to tender the periodic dues and initiation
fees ." Moreover , the Board recently stated , that a complaint is not limited in scope
"by the averments contained in the charge filed to initiate the proceedings " Globe Wirelesa,
Ltd., 88 NLRB 1262 . Every single element in a complaint need not be covered by a charge
filed by the Board .' National Licorice Co. v. N. L. R. B., 309 U . S. 350 , 369; N . L. R. B. v.
American Creosoting Co., 139 F. 2d 193 , 195 (C. A. 6), certiorari denied, 321 U. S. 797;
Consumers Power Co . v. N. L. R. B ., 113 F . 2d 38, 42-43 ( C. A. 6). As Mr. Justice Jackson
stated in N. L. R. B . v. Indiana & Michigan Electric Co., 318 U. S . 9, 18: "The charge
is not proof ; it merely sets in motion the machinery of an inquiry . When a Board com-
plaint issues , the question it only the truth of its accusations. The charge does not even
serve the purpose of a pleading." Cf: Cathey Lumber Co ., 86 NLRB 157.
A motion to strike certain testimony made by Respondent Union at the close of the
General Counsel 's case -in-chief was denied . This ruling is discussed in footnote 19, infra.
' These findings of fact are based upon evidence which is largely undisputed or' it; at
variance only as to minor details . Certain conflicts and questions of credibility are noted
and resolved . Those which are not have been considered but because they are not directly
involved in the resolution of the principal issues will pass unmentioned so as not to
lengthen unduly this Report.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The answers of the Respondents acknowledge, and the undersigned finds, that
the Company is engaged in commerce within the meaning of the Act.'
II. THE ORGANIZATION INVOLVED
Respondent Union, Kingston Mutual Association, is an unaffiliated labor
organization admitting to membership employees of the Company.
III. TILE UNFAIR LABOR PRACTICES
A. Narrative of evcn,ts
1. Background and undisputed facts
Insofar as the record indicates, the first representation election at the Kingston
.plant of the Company was held under the auspices of the Pennsylvania State
Labor Relations Board in July 1946. The Union, then only recently organized,
and Local 321, Bakery and Confectionery Workers, A. F. L., appeared on the
ballot. The election was won by the Kingston Mutual Association. In January
1947, Respondents entered into their first collective bargaining agreement. This
contract expired on January 17, 1949,9 after the Union, pursuant to a terminal
clause, had notified the Company that it did not care to renew the agreement.
On February 3, 1949, after the filing of a representation petition by Local 423,
Bakery and Confectionery Workers Union, A. F. L. (herein called Bakery
Workers), the Board held an election at the Company's plant, with the Bakery
Workers and the Union on the ballot. The Kingston Mutual Association also
won this election and on February 11 it was certified by the Board. On Feb-
ruary 23, 1949, Respondents entered into a contract, to be effective immediately
.and to run for 2 years which, among its terms, had the following provisions :
ARTICLE II
Recognition of Association
* *
3. Within the limits of authority permitted by Federal and Commonwealth
of Pennsylvania laws, the employer shall require as a condition of employ-
ment for employees, membership in the association [Kingston Mutual Asso-
ciation], except during the probationary period of employment, as hereinafter
defined, and will deduct, collect, or assist in collecting from the wages of
employees when authorized, not more than once a month, any dues, fees, or
assessments payable to the association within the authority and procedure
set forth in Federal or Commonwealth of Pennsylvania statutes or rules or
regulations authorized thereby.
4. Employees shall, upon application, be admitted to membership in the
association unless he or she is an expelled member and not entitled to rein-
8 See, e. g., Ideal Baking Co., 85 NLRB 13; Caskey Baking Co., 80 NLRB 374; Nolde
.Bros . Inc., 79 NLRB 1245 ; Phoenix Pie Co., 79 NLRB 754; Superior Bakery, 78 NLRB
1172 ; N. L. R. B. v. Richter' s Bakery, 140 F. 2d 870 , 871 (C. A. 5) ; N. L. R. B. Y. Van de
Kamp's Holland -Dutch Bakers, 152 F. 2d 818 , 819 (C. A. 9) ; cf. Lewis Brothers Bakeries,
Inc., 86 NLRB 1326; Ste-Kleen Bakery , Inc., 78 NLRB 798.
All events referred to herein occurred during the year 1949 unless otherwise specified.
KINGSTON. CAKE COMPANY, INC. 459a
statement. The employer shall discharge an, employee when expelled from
the association within the limits permitted by law. (Emphasis supplied.)
On March 24, the Union having filed a petition pursuant to Section 9 (e) of the
Act, the Board conducted a union-security election at the Company's plant. A-
large majority of the employees voted in favor of authorizing their majority rep-
resentative to bargain for a union-shop and on the day of the election the field
examiner in charge of the polling supplied to Harriet Ehrhart, personnel director'
for the Company, a tally of the ballots which reflected the arithmetical results.
It was not until May 16, however, that the Regional Director for the Fourth
Region of the Board formally certified the Kingston Mutual Association as,
authorized to enter into a union-shop agreement.
Under the collective bargaining agreement between Respondents which was
in effect until January 17, 1949, the Company had deducted union dues from=
employee wages pursuant to a checkoff provision. According to George Chart-
ton," secretary-treasurer of the Union, upon the expiration of that contract the-
parties agreed that no further union dues would be checked off until after "the
National Labor Board question of election"' was clarified. A few weeks after
the representation election the parties agreed that in April they would resume
the checkoff and that back dues covering the period when no contract was in
effect would be-collected first. In conformity with this agreement, dues for Feb-
ruary were deducted from employee wages on April 2, and those for March on.
April 16. April dues were deducted on April 30, and May dues on May 14.
On May 16, the Union posted a notice in the plant stating that this schedule had
been followed to avoid deducting the entire sum of back dues from one single
pay period.
2. The discharge of Franklin Williams
Franklin Williams entered the employ of the Company in 1941. Except for time-
spent in military service and a short period following his separation from the
service, he remained at work for the Kingston Cake Company until his discharge-
on May 9, 1949. On the latter date and for some years previous thereto he had-
been working in the shipping department at the Company's Kingston plant.
In June 1946, Local 321 of the Bakery Workers sought to organize the plant
and for a few days that month some of the employees engaged in an ineffective
organizational strike, a campaign in which Williams participated. The strike-
was short-lived and after its collapse all employees who participated, including:
Williams, were reemployed immediately by the Company.
Williams then became interested in the Kingston Mutual Association, which-
had been formed only a short while before, and was elected a member of that
organization's Board of Employee Representatives (herein called Employee-
Board), to represent his fellow employees in the shipping department. From the
testimony adduced at the hearing it appears that Williams diligently represeritedi
his department in the councils of the Kingston Mutual Association.12 Late iii
1948, however, at the outset of the Bakery Workers' campaign to win the pending
30 Charlton impressed the undersigned favorably as doing his best to testify truthfully.
His testimony is credited.
11 The question is from Charlton's uncontradicted testimony.
12 This finding is based upon the undenled , credited , testimony of Willard Evans, presently
vice president of Respondent Union.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board election, Williams again sponsored the A. F. L. affiliate. In the weeks
before the election he vigorously espoused the cause of this rival to the Union and,
according to numerous witnesses, was well known as the leader of the A. F. L.
faction in the plant."
Williams' support of the Bakery Workers was carried even further. In Janu-
ary 1949, the Union, which had not previously complied with the filing require-
ments of Section 9 (h) of the Act, put forth strenuous efforts to do so. On Janu-
ary 17, Charlton called a special meeting of the officers and members of the
Employee Board, at which Charlton and Walter Maloney, the latter being presi-
dent of the Union, 14 told those present that unless all officers and all members
of the Employee Board filed non-Communist affidavits with the National Labor
Relations Board the Kingston Mutual Association would not be able to partici-
pate in the election. Those in attendance were given blank affidavits and in-
structed to execute them immediately. Of the members present only Williams
demurred and he did so with the statement that he would consider the request
and return the affidavit the next day. By the following day all had executed their
affidavits and returned them except Williams who by this time had decided
that he would not sign one in the belief that by so doing he would keep the King-
ston Mutual Association off the ballot. On January 18, he told Maloney that this
was his intention and that he hoped his action would break up the Kingston
Mutual Association. On January 19, according to Charlton, the officers of the
Union met and after a discussion of Williams' refusal to sign an affidavit sus-
pended him from the Employee Board. The Employee Board then charged
Williams with a violation of the Union's bylaws on the ground that his refusal
to sign the affidavit constituted an act injurious to its interests and set January
22 as the date for a hearing on the matter.
At some point prior to the date for the scheduled heating Williams decided
to sign the affidavit, a decision he made after consultation with Nick Sawchak,
business agent for the Bakery Workers. Williams testified 15 that when he
decided to follow this course he could not find the form which Charlton had given
him so that he obtained from Sawchak another blank affidavit which he executed
before a notary public and which he then presented to Charltoh on January 22,
at the time and place appointed for the hearing. Charlton, on receiving the
affidavit, remarked to Williams, This is an old form. It isn't any good."" He
took the affidavit," however, and did not ask Williams for another. Shortly there-
after the meeting scheduled to hear Williams' case was adjourned without taking
any action. According to Charlton, this was done because legal counsel for the
Union was not available. The Union then slid nothing further about the matter
until after the election.
On February 3, as noted above, the Union won the Board election. At the polls
that day Williams acted as an observer for the Bakery Workers.
13 This finding is based upon the testimony of Josephine P. Edwards , Doretta Mack,
Frances Randall, and Arthur Tredinnick who were called by the Union.
14 Maloney was an evasive witness and did not impress the undersigned favorably. His
testimony is credited only where it corroborates the findings herein.
11 Williams impressed the undersigned by his demeanor and forthrightness on the stand
as a truthful witness.
le The quotation is from Williams ' uncontradicted testimony.
31 At the hearing this affidavit was marked for identification by the Union and subse-
quently was received in evidence upon being offered by counsel for the charking party.
The affidavit is on NLRB Form 1081 ( 8-22-47). Judicial notice is taken of the fact that
this form was first issued for use in compliance matters on August 22, 1947, and was in
general use until June 1948, when it was revised in certain minor respects.
KINGSTON.' CAKE 'COMPANY, INC. 461
On March S, at another meeting, officers of the Union considered anew the
charge still outstanding against Williams. At this time, Williams, who was
present at the meeting, offered to sign an affidavit on the new form.18 George
-Yasenchak, another member of the Employee Board, then moved that in the
light of Williams' offer the charge against him should be dropped. The motion
'was seconded but failed of passage. Another motion that called for a hearing
on the charge was carried. On March 11, Williams was served with a copy of
the motion and the charge against him, the latter of which read as follows :
That at divers times during the months of December 1948 and January 1949,
notwithstanding many requests, you failed and refused to execute and sign,
as a member of the Board of Employee Representatives of the Kingston
Mutual Association, the affidavit of non-communist membership as required
under Section 9 (h) of the Labor Management Relations Act of 1947; said
refusal being in addition, a violation of Section 6 of the by-laws of the
Kingston Mutual Association.
A hearing on the charge was held on March 21. After taking testimony from
:several witnesses as to Williams' original refusal to sign a non-Communist affi-
davit, the Employee Board reserved decision on the matter until April 12.10 At a
meeting held on this latter date, the Employee Board voted to sustain the charge
.against Williams and expel him from the Union. On April 19, Charlton, on
.'behalf of the Union, wrote Williams as follows :
I have been instructed to officially inform you that on April 12, 1949, at a
meeting of the Board of Employee Representatives of the Kingston Cake Co.,
the charges preferred against you were sustained and you were expelled
from membership in the Kingston Mutual Association.
,On the same date, Frank M. Flanagan, counsel for the Union notified R. H. Levy,
president of the Company, of Williams' expulsion.
As noted above, on April 2, the Company had resumed checking off union dues
from the wages of its employees. On April 20, according to Personnel Director
Ehrhart, at a time when both Charlton and Maloney were in the personnel office,
Williams entered her office and asked a clerk for a refund of the union dues
deducted from his pay on April 16. When the clerk relayed this request to
18 Williams' testimony to this effect was corroborated by that of George Yasenchak whom
the undersigned finds to be a credible witness. Charlton, Maloney, and Thomas Hatten
testified substantially in accordance with Yasenchak's testimony on this matter.
10 At the close of the General Counsel's case-in -chief the Union moved to strike all of
Williams' testimony as to the hearing on March 21, as well as that which he gave ti'ith
reference to any meeting of the Union on the ground that a _ stenographer 's transcript of
that hearing and the union minute book were the best evidence . This motion was denied.
Later, during the presentation of its case, the Union had marked for identification as
Respondent Union's Exhibit No.. 3 a document which was purportedly a stenographic
transcript of the meeting of March 21. When. offered in evidence by the Union, the
General Counsel and counsel for the charging party objected on the ground that it
had not been properly identified and authenticated since the reporter who prepared it was
not present at the hearing before the undersigned. This objection was sustained and the
exhibit was not admitted . It is well settled that "The reports of an ordinary private
stenographer are of course not receivable being merely hearsay reports by a person not
produced ." 5 Wigmore , Evidence , § 1669 ( 3d ed .) ; Sneierson v. United States , 264 Fed.
268, 275 ( C. A. 4). This is also the rule in Pennsylvania . Ingram v . City of Pittsburgh,
346 Pa . 45, 29 A . 2d 32. During the course of the hearing the minute book was received
in evidence , after having been duly authenticated by the union secretary . At the close
of the hearing counsel for the Union moved for permission to. withdraw the minute book
and substitute photostatic copies of certain designated pages . This motion was granted.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ehrhart and Charlton the latter remarked, "Well, he owes it, but let him have
it." 206
Ehrhart credibly testified that prior to Williams' coming into the office that day
she had received the union letter of April 19 and had learned from the union
officials that they had expelled Williams for failure to sign a non-Communist
affidavit. The Company ignored the latter and took no action for several days.
On April 25, Flanagan wrote President Levy, as follows :
Having notified you by letter of April 19, 1949, of the action taken by the
Kingston Mutual Association in the case of Mr. Frank Williams. I now
wish to direct your attention to Article II, Paragraph 4, of the Labor Agree-
ment presently in effect between the Kingston Mutual Association and the
Kingston Cake Company, Inc., and request that you take appropriate steps
in line therewith.21
On April 26, Max Rosenn, counsel for the Company, replied to Flanagan as
follows :
I am of the opinion that Kingston Cake Company cannot take any action
under Article II, paragraph 4, of"the agreement between it and the Union,
unless the membership of Mr. Williams is terminated for failure to tender
periodic dues and initiation fees required by the Association.
On April 29, Flanagan wrote to Rosenn :
I have your letter of April 26, 1949, and with reference thereto, I wish
to advise that in addition to the failure of Mr. Williams to sign and execute
a non-communist affidavit, as required under the Labor Management Rela-
tions Act of 1947, he also failed to tender or pay the nominal dues as
required for membership in the Kingston Mutual Association for the month
of March 1949.
It is the belief of the officers of the Kingston Mutual Association that by
his failure to pay or tender the periodic dues, his membership in the asso-
ciation was terminated, and therefore the employer is required under the
terms of the labor agreement presently in effect, between the Kingston
Mutual Association and the Kingston Cake Company, Inc., to dismiss the
said employee, Franklin Williams, from his employment with the Kingston
Cake Company, Inc.
Ehrhart credibly testified that on the same day this letter was written the
Company's personnel office unsuccessfully sought to secure from Williams a
wage assignment for union dues. It does not appear that the Union, on the
other hand, made any such attempt. Charlton conceded that he did not ask
Williams for an assignment after April 20 and the Union offered no testimony
that Williams had been asked to do so at any time prior to that date.
On May 9, Williams was discharged. Ehrhart called him into her office, told
him that the Company had to terminate his employment,' and gave him the fol-
lowing letter :
We regret to inform you that we are obliged to terminate your employ-
ment effective at the close of work today for the following reasons:
20 The quotation is from Ehrhart's undenied, credited testimony: Charlton's testimony as
to this event is in complete accord with that of Ehrhart.
21 Article II, paragraph 4, of the agreement, as has been noted previously, required the
discharge of an employee "when expelled from the Association within the limits permitted
by law."
KINGSTON CAKE -COMPANY INC. 463
1. We are informed that your membership in the Kingston Mutual Asso-
ciation has been terminated for your failure to sign a non-communist affi-
davit in connection with recent proceedings before the National Labor
Relations Board, and your failure to pay or tender the periodic dues re-
quired by it. Under our agreement with the Kingston Mutual Association,
we are required, therefore, to sever your employment at once.
2. Apart from your membership in the Association, your failure to sign
the non-communist affidavit has caused considerable distress among the
employees of the Company, and has been a source of so much agitation that
the normal harmonious relations existing among them has been affected.
Under such circumstances, we feel that you will find employment elsewhere
happier.
B. Concluding findings
1. Contention of the parties
The General Counsel contends that at no time during the period in question
could the Union legally demand that Williams be discharged for nonpayment
of March dues because, at the earliest, its union-security contract could not have
gone into effect until May 16, 1949, the date of its formal certification under
Section 9 (e) of the Act. Further, that Williams' alleged nonpayment of
dues for March could not have been the real reason for his expulsion from the
Union since this charge was not made at the time Williams was expelled on April
12 and also because dues for the month of March were not payable until April 16.
Thus, the argument continues, the Union, being without the protection of a formal
certification under Section 9 (e) and having expelled Williams for reasons other
than the nonpayment of dues, violated Section 8 (b) (2) and 8 (b) (1) (A) by at-
tempting to cause and causing the Company to discharge Williams, whereas the
Company by acquiescing in the Union's demands, violated Section 8 (a) (3) and
8 (a) (1) of the Act.
Counsel for the Union, while readily conceding that it gave notice to the Com-
pany of Williams' expulsion from the Kingston Mutual Association, argues that
the General Counsel failed to prove that the Union caused the Company to dis-
charge him.
Counsel for the Company contends that the General Counsel completely failed
to prove a discriminatory motive for its discharge of Williams or that the Com-
pany sought to interfere with, restrain, or coerce its employees in the exercise
of any rights guaranteed by the Act. Counsel for the Company argues that, in
fact, the record proves that Williams was discharged for just cause because he
deliberately antagonized his fellow employees to the point that the Company
was compelled to dismiss him on order to restore harmony in its plant and also
because his discharge was required under the terms of its contract with the
Union, since the Union had informed the Company that Williams' membership
had been terminated for failure to tender dues for the month of March and for
failure to sign a non-Communist affidavit.
2. Findings
It seems clear, and it is found, that but for Williams' aggressive support of
the Bakery Workers during the election campaign he would not have run afoul
of the Union. As, the well known leader of the opposition Williams went to
great. lengths to carry out his announced intention to "break up the Kingston
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mutual Association." z: For a time his animus reached the point where he re-
fused to sign a non-Communist affidavit in an effort to keep the Union off the bal-
lot, although he subsequently withdrew from this position and shortly before.
the election executed such an affidavit. But charges filed against Williams for his.
initial attempt to thwart the Union's desire for a place on the ballot were revived
once the Union had won the election and all suggestions that they be dropped if
Williams made amends by filing a new affidavit were rejected. On April 12 he
was expelled from the Union.
Despite the Union's contention that it did not thereafter request the Com-
pany to discharge Williams the admitted facts compel the very contrary con-
clusion. On April 19, the Union notified the Company that Williams had been.
expelled and the following day union officials told Personnel Director Ehrhart.
that this action was taken because Williams had refused to sign a non-Commu-
mist affidavit. On April 25, the Union wrote President Levy to direct his atten-
tion to that clause in the collective bargaining agreement which required the
discharge of an employee expelled from the Union and requested that Levy
"take appropriate steps in line therewith." When counsel for the Company
expressed doubt that any action against Williams could be taken unless his
membership had been terminated for failure to tender dues, the Union, in reply-
ing on April 29, alleged for the first time, that in addition to Williams' refusal
to sign a non-Communist affidavit he had failed to pay or tender dues for the
month of March 1949. In concluding the letter, the Union called upon the Com-
pany, "under the terms of the labor agreement presently in effect .. . to dis-
miss the said employee, Franklin Williams." On May 9, the Company complied
with this request by effecting Williams' discharge.
Under the circumstances present here, the Union's desire to expel Williams
is easily appreciated, for, as Mr. Justice Jackson once observed, "The exclusion
of those whose loyalty is to a rival union ... is one of the most common and
most understandable of practices, designed to defend the union against under-
mining, spying, and discord, and possible capture and delivery over to a rival."
Wallace Corp. v. N. L. R. B., 323 U. S. 248, 268 (dissenting opinion). The Act,
however, severely delimits the cases in which a union, once it has expelled a
member, may impose a further sanction by demanding that the ex-member's
employer discharge him. Only when a valid union-security agreement is in
effect and then only if the employee's union membership has been terminated
for failure to tender dues or initiation fees may the union demand that he be
discharged. But most importantly, there are certain prerequisites to the con-
summation of such an agreement which must be satisfied to make it enforce-
able. Section 8 (a) (3) of the Act sets forth those conditions in the following.
language wherein it provides that an employer may contract with a labor
organization
. . . to require as a condition of employment membership therein on or
after the thirtieth day following the beginning of such employment or the
effective date of such agreement whichever is the later, (i) if such labor
organization is the representative of the employees as provided in section
9 (a), in the appropriate collective bargaining unit covered by such agree-
ment when made, and (ii) if, following the most recent election held as
provided in section 9 (e) the Board shall have certified that at least a ma-
jority of the employees eligible to vote in such election have voted to
authorize such labor organization to make such an agreement. .. .
=2 The quotation is from Williams ' uncontradieted testimony.
KINGSTON' CAKE COMPANY, INC. 465
The conditions prescribed in the above-quoted provision of the Act were not
satisfied in the instant case. Here, the Board, on February 11, 1949, certified
the Union under Section 9 (c) as the majority representative of the employees
in an appropriate collective bargaining unit. On March 24, it conducted an
election under Section 9 (e) of the Act. But not until May 16, did the Board,
pursuant to Section 9 (e), certify the Union as a labor organization authorized
to enter into a union-shop contract.
Both the Union and the Company appear to have assumed that the outcome
of the election on March 24, was in itself enough to authorize putting the union-
security provision of their contract into effect immediately. The undersigned
cannot accept this conclusion.
It seems clear that the Act requires that the same distinction be made be-
tween an election and a certification under Section 9 (e) as has long been
made under Section 9 (c) of the Act. Under the latter section it is well estab-
lished that the election is only one step in the Board's investigative process of
determining the true representative of the employees. The process starts with
the filing of a petition by an employee, a labor organization, or an employer, to
investigate and certify a bargaining agent. After a preliminary investigation
the Board makes the decision as to whether to proceed further. In the event
it decides to go forward, a hearing may be held and all parties given an oppor-
tunity to present evidence on the issues involved. Upon consideration of the
record so gathered, the Board either decides to go no further or to conduct an
election by secret ballot to determine the desires of the employees in the unit
found to be appropriate. If an election is held, it is "only a preliminary deter-
mination of fact" (Inland Empire District Council v. Millis, 325 U. S. 697, 707)
and the parties thereto have an opportunity to file objections to the validity of
its conduct. If the Board considers these objections meritorious the election
may be set aside and a new election ordered. Even if there are no objections to
the conduct of the election a union which has won may still be ineligible for
certification unless it is currently in compliance with the filing requirements of
Section 9 (f), (g), and (h) of the Act. Consequently, not until all such prob-
lems have been resolved will the Board take the final step of certifying the
union shown to have been selected by a majority of those voting at the elec-
tion. "The conclusive act of decision . . . is the certification. Until it is taken,
what precedes is preliminary and tentative." Inland Empire District Council v.
Millis, ibid. ; N. L. R. B. v. Int'l Brotherhood of Electrical Workers, 308 U. S.
413, 414-415.
It seems clear that the distinction between an election and eventual certifica-
tion which prevails with respect to representation proceedings under Section 9
(c) must likewise be applied to those conducted under Section 9 (e). The lan-
guage of subsection (ii) of Section 8 (a) (3) of the Act appears to make this
obvious, when, in prescribing the conditions under which a union-shop agree-
ment is permissible, it provides that a majority representative under Section 9
(a) may make such an agreement only "if, following the most recent election held
as provided in Section 9 (e) the Board shall have, certified" that the majority
representative is authorized to make such agreement. (Emphasis supplied.)
Just as in a representation proceeding under Section 9 (c) where considerable
time may elapse between the election and final certification of the majority
representative, so, too, in a proceeding under Section 9 (e) the same situation
may arise when, for* instance, objections to the election are filed and must be
considered or when the compliance status of the majority representative may
-466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have lapsed. It is only following the election and after these problems, if they
arise, have been resolved, that the Board may certify the majority representative
as authorized to negotiate for a union shop. Consequently, the undersigned is
of the opinion that the election under Section 9 (e) is merely a "preliminary de-
termination of fact" and that only the certification represents the "final and
.effective action." Inland Empire District Council v. Millis, ibid.
Since in this case the Union was not certified under Section 9 (e) until May
16, 1949, it follows that throughout the period from the time the Union first
made its demand that Williams be discharged until May 9, when the Company
complied by dismissing Williams, the union-security provision of the contract
relied upon did not meet the prerequisites to validity set forth in Section 8 (a)
(3) of the Act. As a result, the undersigned concludes and finds that that con-
tract provides no defense to either Union or Company for the action now in
issue.
But there is an additional reason why the Union's conduct in this case is not
protected by the Act. This is true because, even assuming arguendo the en-
forceability of the union-shop clause now in question, the Union could have re-
quested the Company to discharge Williams only if his membership had been
terminated for failure "to tender the periodic dues and the initiation fees uni-
formly required as a condition of acquiring or retaining membership." (Section
8 (a) (3) of the Act.) It is clear that here Williams' membership was not
terminated for failure to tender dues or initiation fees. Even if the testimony
most favorable to the Union be accepted, it is manifest that Williams' member-
:ship was terminated on April 12, 1949, when he was expelled from the Union on
the charge that he had refused to sign a non-Communist affidavit. Prior to this
time he had not been charged with failure to pay union dues for March nor was
he so charged on April 12, It would, of course, have been impossible to do so
for, admittedly, March dues did not become payable until April 16. In fact,
hot until April 29, did the Union allege that Williams was delinquent in his
-dues and this allegation came then only after an exchange of letters between
counsel for the Union and the Company in which the latter had insisted that
Williams could be dismissed only for failure to tender dues.23 Accordingly, the
undersigned concludes and finds that Williams' alleged dues delinquency could
not have been the basis for the Union's demand on the Company that lie be dis-
charged and, further, that the Company was aware of this fact at the time
23 Counsel for the Company urges In his brief that at this time Williams was under an
.obligation at least to tender dues . Since It has already been found that the union-security
provision relied upon was invalid , Williams , of course , was under no obligation to pay or
tender dues.
24 Charlton, secretary-treasurer of the Union, frankly acknowledged that Williams was
not expelled. for failure to pay clues. As to his conversation with Personnel Director
,Ehrhart on April 20 , he testified as follows :
Q. And you told her [Ehrhart] at that time that he [Williams] had been expelled
for failure to sign his non-Communist affidavit?
A. Yes, sir.
Q. Did you make any mention to her of dues payments [ of his ] being expelled for
failure to pay dues?
A. No.
Q. As a matter of fact, he was not expelled for failure to pay dues, is that correct?
A. That is correct.
Q. In any of your conversations with Miss Ehrhart, did you ever tell her that his
failure to pay dues was part of the expulsion?
A. No..
KINGSTON CAKE COMPANY, INC. 467
Counsel for the Company , while conceding that Williams was discharged after
his dismissal was requested by the Union , earnestly contends that not only the
terms of its contract with the Union required the discharge but that the dis-
charge was necessary to restore harmony in its plant.
There appears to be no merit in either contention . The inadequacy of the
contract as a defense for both the Company and the Union has been discussed
above . Nor does the undersigned feel that the record offers any support for the
argunient^that the Company was compelled to discharge Williams because he an-
tagonized his fellow employees and disrupted production . It is true that a number
of witnesses produced by the Company asserted that word of Williams ' initial
refusal to sign a non -Communist affidavit provoked a wave of adverse, comment
and indignation . On the other hand , several who were alarmed over Williams'
original refusal to sign , about which they learned from representatives of the
Union, either never heard, or heard only after Williams' discharge , that he had
actually signed a non -Communist affidavit . Several of these witnesses also
alleged that Williams was extremely profane in his speech and was given to foul
characterizations of President Levy. Other witnesses , produced by the General
Counsel , testified that profanity was not uncommon in the plant. Williams
himself emphatically denied that he had ever made profane references to Presi-
dent Levy. The undersigned credits this denial by Williams. Several of the
Company ' s witnesses described Williams as a "troublemaker ." However, after
hearing these witnesses and examining their testimony , the undersigned is sat-
isfied that Williams' alleged "troublemaking" was confined to his advocacy of the
Bakery Workers during the election campaign ." Although in its brief the Com-
pany contends that Williams ' conduct among the employees was such that his
further retention interfered with plant operations , Personnel Director Ehrhart
testified that she never mentioned any complaints about his work or conduct to
Williams, warned him against any alleged interference with plant operations,
or threatened hind with discharge . And she readily conceded that no reprimand
slips were issued to any employees because of time lost in their alleged debates
over Williams. Moreover , Williams credibly testified that prior to his discharge
no foreman , floor lady, or other supervisory employees ever told him that he was
interfering with harmonious relations in the plant or interrupting production.
Not until he received his discharge letter on May 9, did Williams learn of any
reference to disharmony in the plant attributed to him. Upon the entire record,
the undersigned concludes and finds , that such alleged employee turmoil as arose
at the . Company 's plant developed out of the election campaign and its aftermath,
and could not be attributed solely to Williams ' personal relations with his fellow
employees , as the Company well knew . Moreover , in view of the added fact that
Williams was not informed of any complaints prior to his discharge , the under-
signed concludes that this objection to Williams ' continued presence in the plant
was an afterthought put forward only after the Company had decided to yield
to the Union 's demand for his discharge."
'' Employee Josephine P. Edwards was one of those who described Williams as a "trouble-
maker ." She also testified :
Q. . . . Anybody who tries to bring in an outside union is a troublemaker, is that
right ?
A. Yes.
Q. Do you think he [Williams] was being disloyal to the Company because he was
for the AFL?
A. Certainly he was.
'° Even if the Company had yielded to the Union's demand in order to avert economic
hardship, this fact, of course, would not constitute an adequate defense. It is well settled
317572-51-vol. 91-31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon a preponderance of the evidence in the record, the undersigned concludes
and finds that the Company discharged Williams on May 9, 1948, because Wil-
liams had been expelled from the Union and the Union insisted that he be dis-
missed ; and further, that neither the Company nor the Union was protected
in.such activities by a valid union-shop agreement under the proviso in Section
8 (a) (3) of the Act. The undersigned also finds that by such acts, (1) the
Respondent Company discriminated as to the hire and tenure of Williams in order
to encourage membership in a union, thereby interfering with, restraining; and
coercing its employees in the exercise of the rights guaranteed in Section 7 of the
Act, and in violation of Section 8 (a) (1) and S (a) (3) of the Act, and (2) the
Respondent Union caused the Respondent Company to discriminate against an
employee in violation of Section 8 (a) (3) of the Act thereby restraining,and
coercing the employees of the Company in the exercise of the rights guaranteed
in Section 7, and in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.21
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring in
connection with the operations of the Respondent Company, described in Section
I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents have engaged in and are engaging
in certain unfair labor practices, it will be recommended that they cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Company has discriminated in regard to the hire and
tenure of employment of Franklin Williams, it will be recommended that it offer
him immediate and full reinstatement to his former or substantially equivalent
position," without prejudice to his seniority and other rights and privileges.
It will be recommended that the Respondents, jointly and severally, make
Franklin Williams whole for any loss of pay he may have suffered by reason of
the discrimination against him, by the payment to him of a sum of money equal
to the amount he would normally have earned as wages from the date of the
discrimination against him to the date of the offer of reinstatement, 29 less his
net earnings during such period 8°
that the Act " leaves no room for the appeasement of hostile interests ." McQuay-Norris
Mfg. Co. v. N. L. R. B., 116 F. 2d 748, 752 (C. A. 7), certiorari denied, 313 U. S. 565;
N. L. R. B. v. John Englehorn & Sons, 134 F. 2d 553, 557-558 (C. A. 3) ; N. L. R. B. v.
Hudson Motor Car Co., 128 F. 2d 528, 532-533 (C. A. 6) ; N. L. R. B. v. Gluck Brewing
Co., 144 F. 2d 847, 853 (C. A. 8).
27 H. Milton Newman, an individual, d/b/a H. M. Newman, 85 NLRB '725; Clara-Val
Packing Co., 87 NLRB 703; Union Starch & Refining Company, 87 NLRB 779.
28 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible, but if such position is no longer in existence, then to a substantially equivalent
position." See The Chase National Bank of the City of New York, San Joan, Puerto Rico,
Branch, 65 NLRB 827.
29 H. Milton Newman, an individual d/b/a H. M . Newman, 85 NLRB 725.
10 Crossett Lumber Co ., 8 NLRB 440.
KINGSTON CAKE COMPANY, INC. 469
Upon the basis of the foregoing findings of fact and the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Kingston Cake Company, Inc., is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. Kingston Mutual Association is a labor organization within the meaning.
of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Frank-
lin Williams, thereby encouraging membership in the Kingston Mutual Associa-
tion, the Respondent Company has engaged in and is engaging in. unfair labor
practices, within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent Company has en-
gaged in and is engaging in unfair labor practices, within the meaning of Sec-
tion 8 (a) (1) of the Act.
5. By causing the Respondent Company to discriminate in regard to the hire
and tenure of employment of Franklin Williams in violation of Section 8 (a) (3)
of the Act, the Respondent 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 of the Respondent Company in the
exercise of their rights guaranteed in Section 7 of the Act, the Respondent 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.
[Recommended Order omitted from publication in this volume.]