Manbeck Baking Co.

National Labor Relations Board - Board Decisions

Mar 3, 1961

130 N.L.R.B. 1186 (N.L.R.B. 1961)

1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manbeck Baking Company acid American Bakery and Confec-
tionery Workers International .Union, Local 492, AFL-CIO.
Cases Nos.. -CA-2051 and 4-CA-1916. March 3, 1961
DECISION AND ORDER
On June 15, 1960, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had 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 certain other alleged unfair
labor practices, and recommended that those allegations of the com-
plaint be dismissed.'
The Board has reviewed the.ruling made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs, the Respondent's motion to reopen t'he
record, the General Counsel's memorandum in opposition,' and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
additions and modifications : 2
1. The Trial Examiner found, and we agree, that the Respondent
violated Section 8(a) (3) of the Act by discriminatorily transferring
Rhea Whitesal to the basement of the bakery and by reclassifying
him a "Janitor" on September 28, 1959.
Whitesal was the most active employee in the union organizational
campaign. He signed his union authorization card in December 1958
when this campaign was in its initial stage. Whitesal himself then
took on the responsibility of distributing prounion literature as well
as handing out more than 25 authorization cards prior to the Union's
filing of its' representation petition. Participation in both the April
9 and September 17 elections 8 as a union observer further highlighted
1'Vhitesal's deep involvement in- union activities. The importance
of his role takes on added significance in light of the relatively small
number of employees at the Respondent's plant. Without question,
the Respondent had.knowledge that Whitesal was an active proponent
i The Trial Examiner found, inter alia, that the evidence was insufficient to sustain
the General Counsel's allegations that the Respondent ' s discharges of Frances Zeiders
and Frederick Jefferson violated Section 8(a) (3) of the Act. As no exceptions were
filed to these findings, we adopt them pro forma.
2 The conclusions and recommendations relating to Richard Kauffman are adopted
without modification.
The Petitioner-Union filed objections to the conduct of the April election. The Board
adapted the Regional Director's recommendation sustaining the objection, set aside the
election, and directed that a second election be conducted.
130 NLRB No. 114.
MANBECK BAKING COMPANY 1187
of the Union. The Respondent expressly admitted. its knowledge
thereof, and the Trial Examiner so found. The question before the
Board is whether the Employer, mindful of Whitesal's union activities,
transferred and reassigned Whitesal because of these union activities.
The record disclosed that Whitesal was employed as a dough mixer
for a 21/2-year period prior to the Union's arrival on the Manbeck
scene. There was no indication that Whitesal was ever transferred,
reassigned, demoted, or disciplined in any manner throughout this
entire, period. This' was true even though Cecil Radford, the plant
superintendent, testified that Whitesal frequently took unauthorized
breaks of excessive durations. Radford's policy. in this matter was
then one of attempting to reform Whitesal through tolerating these
alleged shortcomings.
This policy, however, was radically altered soon after the advent of
the Union. In March, Whitesal was transferred to the bread depart-
ment and he was transferred again in April-this time to a pan-
washing assignment in the basement. Shortly thereafter, he was
reassigned to his original position as a dough mixer but, 11 days after
the .second election, Whitesal was returned to the basement. On this
latter occasion, he was also reclassified a janitor.
. We are satisfied that it was more than purely coincidental that the
Respondent's treatment of Whitesal underwent a drastic revision after
the union organizational campaign commenced and that his job trans-
fers roughly corresponded with several key dates in the plant's labor-
management struggle.'
In this connection we note three specific incidents involving Presi-
dent William Manbeck and Whitesal which occurred between Feb-
ruary and April, inclusive. Manbeck's deportment became progres-
sively reprehensible with each ensuing episode. He. began by calling
Whitesal and a fellow employee "Commies," then cursed and phys-
ically assaulted him, and finally threatened the lives of Whitesal and
his family a few days before the April election after accusing- him of
plotting with another employee to take his life. It should also be noted
that there was absolutely no evidence of Manbeck's hostility toward
Whitesal until the Union initiated its organizational drive with White-
sal as its principal proponent.
. Although these incidents took place within a short span of time,,
they depict the animus which was instrumental in determining Man-
beck's actions from the day the Union appeared. We find that it was
this same motivation which dictated Whitesal's transfer to the base-
.1 On February 12, 1960, the Board held a hearing in regard to the Union 's petition for
representation . - On March 23 the Board Issued a Decision and Direction of Election
(not published in NLRB volumes ). The election was conducted on April 9 . A Supple-
mental -Decision and Order was issued on August 24, 1960 , directing that the April
election be set aside and that a second election be conducted . It was conducted on
September 17.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment and reclassification as a janitor in violation of Section 8 (a) (3)
of the Act .5 -
2. The Trial Examiner also found, and we agree, that the Respond-
ent discriminatorily discharged Robert Alexander in violation of
Section 8(a) (3). In this regard, we concur in the Trial Examiner's
finding that the Respondent had knowledge of Alexander' s union
activities. Alexander signed his union authorization card between
January and February 1959, attended union meetings, regularly
talked up the Union to his fellow employees, and intimated to a super=
visor, Elwood Fickes, that he was going to vote for the Union in the
September election. In so finding, we also regard as significant the
small number of employees at this plant, the extensive efforts of Wil-
liam Manbeck and his assistants to ascertain who, among their em=
ployees, was affiliated with the Union, and Alexander's unconcealed
participation in union activities.6
The Respondent contends that it discharged Alexander, a janitor in
its employ since December 1955, for cause-his alleged refusal either
to pay or attempt to pay a long overdue debt to an outside creditor.
The creditor, ,a hospital which was one of Manbeck's old customers,
had forwarded a form letter to the Respondent explaining Alex-
ander's indebtedness to the hospital ($25.50) and to various doctors
($95) for past services rendered. It merely contained a suggestion
that Alexander be exhorted to see the hospital authorities with refer-
ence to his indebtedness as soon as possible. In refusing to take any
steps to discharge his indebtedness, Alexander allegedly violated an
unwritten company policy encouraging employees to discharge their
outside obligations. The General Counsel argued, and the-Trial Ex-
aminer found, that this alleged violation was a mere pretext con-
cocted by the Respondent to disguise-its real purpose for discharging
Alexander, namely, to rid itself of a union adherent.
After weighing the conflicting evidence presented, we note that :
Alexander, a credited witness, denied making any unconditional
refusal to pay his debt; rather, he explained to the Respondent that
his decreased number of working hours, high cost of living, and in-
creased family obligations precluded payment at that time; that the
independently operated credit union evidently considered Alexander
a good credit risk since it had previously extended many loans to him;
that the Respondent had no policy, either oral or written, which called
for the discharge of an employee who failed or refused to pay an over-
The Respondent contends that it transferred Whitesal for repeatedly violating both
the Company 's no-solicitation rule and its long -standing oral policy of requesting per-
mission from supervisors before taking work breaks . To establish these violations, the
Respondent relied solely on the testimony of Radford and Manbeck, neither of whom
impressed the Trial Examiner as a reliable witness. Whitesal , who impressed the Trial
Examiner as a credible witness, denied these alleged, violations . The Trial Examiner
found, and we agree, that Whitesal did not violate these company rules.
e Bituminous Material c& Supply Co ., 124 NLRB 945.
MANBECK BAKING COMPANY 1189
due debt; that there was no precedent to support the Respondent's
action; and that in spite of these facts and the relatively small amount
of money involved , Alexander was summarily dismissed without an
investigation being made to determine whether his excuses for non-
payment had merit.
Accordingly , the Board finds, in agreement with the Trial Ex-
aminer, that Alexander was not discharged for cause but rather that
his discharge was predicated upon the Respondent 's discriminatory
intent in violation of Section 8 (a) (3) of the Act.
3. The Respondent 's motion to reopen the record and remand the
proceeding to the Trial Examiner for the purpose of receiving "newly
discovered" evidence bearing on the credibility of one of the General
Counsel 's witnesses , Harold Payton , is denied . We do so without
passing on the substantive merits of the Respondent 's contention that
convictions for criminal acts committed after a witness testifies at a
Board hearing fall within the meaning of "newly discovered" evi-
dence? We find that , irrespective of Payton 's testimony, a pre-
ponderance of the evidence establishes that the Respondent discrim-
inatorily discharged Alexander in violation of Section 8(a) (3) of
the Act.
4. The Respondent also contends that it was prejudiced in the pres-
entation of its case by the Trial Examiner's refusal to permit it either
to copy pretrial statements given by witnesses called by the General
Counsel or to permanently retain such copies. '
We find that the Respondent 's case was in no way prejudiced by
these refusals . In Ra-Rick Manufacturing Corporation 8 the Board
ruled that the Jencks doctrines was applicable to its proceedings.
Accordingly , Section 102.118 of the Board 's Rules and Regulations,
Series 8 , was promulgated to permit respondents, after a witness
called by the General Counsel had testified , to move for the pro-
duction of any statement of such witness in possession of the General
Counsel.
In the instant situation , after John Johnson, a witness for the
General Counsel, ha d testified, the Trial Examiner granted the Re-
spondent 's motion for the production of the witness' pretrial state-
ments contained in the Regional Office file. The Respondent was then
given a reasonable amount of time in which to read and analyze these
statements in preparation for their use on cross-examination for the
purpose of impeaching the witness ' credibility . It is therefore ob-
vious that the requirements of both the Board 's Rules and the Jencks
9 Cf. Keco Industries , Inc., 121 NLRB 1213. See also , Preferred Homes Corporation,
127 NLRB 1350; Capitol Fish Company , 126 NLRB 980; Wigmore on Evidence , vol. III,
section 927, and Rule 60(b) of the Federal Rules of Civil Procedure.
8121 NLRB 700. See also Member Jenkins' dissent in Great Atlantic & Pacific Tea
Company, National Bakery Division , 118 NLRB 1280 at 1283-1290.
0 353 13. S. 657.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision were completely satisfied. The Respondent had no, absolute
right at the hearing to copy these statements nor to permanently re-
tain the copies made thereof. Neither the Jencks decision , the so-
called Jencks statute,1° nor any Board decisions applying this doc-
trine contain any language which specifically provide the Respondent
with a basis for claiming that these rights exist." Where, however,
affidavits are introduced into evidence the parties, under established
Board procedure, are entitled to copies of these statements since they
then constitute part of the official record.
Where, as here, these statements are not made a part of the official
record, the Trial Examiner may nevertheless, in the exercise of his
discretion, permit the Respondent to copy the statements where to do
so would not impede the hearing process. The Trial Examiner here
chose not to permit the Respondent to copy these statements. Clearly,
this refusal did not constitute an abuse of discretion and we find that
the Respondent's case was not prejudiced thereby.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Manbeck Baking
Company, Harrisburg, Pennsylvania, its officers, agents, successors,
and assigns, shall:
- 1. Cease and desist from :
. (a) Discouraging, membership in American Bakery and Confec-
tionery Workers International Union, Local 492, AFL-CIO, or any
other labor organiaztion of its employees, by discriminating in regard
to their hire or tenure or any terms or conditions of employment.
(b) Interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, by engaging
in the conduct set forth in the section of the Intermediate Report
entitled "The Conclusions."
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist a labor organization, including the above-named
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
10 Title 18 U.S.C. #3500(a-e).
1'. In its brief, the Respondent urged that Rule 34 of the Federal Rules of Civil Pro-
cedure and Rule 16 of the Federal Rules of Criminal Procedure support its position that
the right to the production of pretrial statements of the General Counsel's witnesses who
testified also encompasses the right to copy these statements. Since these rules involve
essentially pretrial discovery procedures and are therefore much broader in scope than the
Jencks rule, which merely required the production of these statements in order to enable
the Respondent to use them on cross-examination for impeaching a witness' credibility,
we find no merit in the Respondent's contention.
MANBECK BAKING COMPANY 1191
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, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer Rhea Whitesal, Richard Kauffman, and Robert Alex-
ander immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole in a manner set
forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plant at Harrisburg, Pennsylvania, copies of the
notice attached hereto marked "Appendix." 12 Copies of such notice,
to be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by an authorized representative of the
Respondent, be posted immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Fourth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that allegations of the complaint relating to
the termination of employment of employees Frances Zeiders and
Frederick Jefferson be, and they hereby are, dismissed.
MEMBERS RODGERS and FANNING took no part in the consideration
of the above Decision and Order.
12 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that :
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in American Bakery. and
Confectionery Workers International Union, Local 492, AFL-
CIO, or any other labor organization, by discriminating in regard
to the hire or tenure of employment or any term or condition of
employment of any of our employees.
WE WILL NOT (1)' interrogate our employees as to their union
sympathies, (2) advise our employees that future benefits are
contingent upon giving up a union, (3) threaten to close the plant
rather than deal with a union, or (4) threaten our employees with
reprisals because of their union activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ-
ization to form a labor organization, to join the aforesaid labor
organization, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any and
all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organ-
ization as a condition of employment, as authorized in.Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE wrLL offer Richard Kauffman and Robert Alexander im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay
suffered as a result of the discrimination against them. We will
also make whole Rhea Whitesal for any loss of pay, seniority, or
other rights and privileges, if any, suffered as a result of the dis-
crimination against him.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, 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, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
MANBECK BAKING COMPANY,
Employer.
Dated---------------- By---------------------------------=---
(Representative ) ( Title)
This notice must remain posted for 60 days from the 'date hereof,
and must not be altered, defaced, or covered by any other material.
MANBECK BAKING COMPANY 1193
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding against Manbeck Baking Company, herein also called the Respond-
ent or the Company, involves 8(a)(1) and (3) allegations, and was initiated by
American Bakery and Confectionery Workers International Union, Local 492, AFL-
CIO, herein also called the Charging Party or the Union.' The hearing was con-
ducted on January 25, 26, 27, 28, and 29, 1960, at Harrisburg, Pennsylvania. The
General Counsel presented oral argument at the close of the hearing and the Respond-
ent filed a brief.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner,makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Pennsylvania corporation, is engaged at Harrisburg, Pennsyl-
vania, in the manufacture and distribution of bread and baked goods. During the
past 12 months, the Respondent caused to be purchased, transported, and delivered
to its plant goods and supplies valued in excess of $50,000, directly from points out-
side the Commonwealth of Pennsylvania. It is found that the Respondent is engaged
in commerce within the meaning of the Act.
II. THE LABOR' ORGANIZATION INVOLVED
American Bakery and Confectionery Workers International Union, Local 492,
AFL-CIO, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The issues presented are whether the Company engaged in specified acts and con-
duct in violation of Section 8(a) (1); and discriminatorily discharged Richard Kauff-
man on September 30, Frances Zeiders on September 27 Robert Alexander on October
15, and Frederick Jefferson on November 7, 1959; and discriminatorily decreased
the rate of pay and the amount of work of Rhea Whitesal and assigned him to less
agreeable tasks since about September 28, 1959, in violation of Section 8(a) (3) of the
Act.
B. The events
In January 1959, employees John Johnson, Rhea Whitesal, and another individual
first met with Peter Mistichelli, the Union's organizer, at the home of then employee
Paul Kalina. Sometime thereafter the Union filed a representation petition and a
hearing in that proceeding was held on February 12.
Prior to the hearing in that proceeding, William Manbeck, general manager, spoke
to Johnson at the Company's office in the presence of Edwin Manbeck, his son and
assistant manager, Cecil Radford, production manager, Clarion Graybill, office
manager, and another individual. William Manbeck then asked Johnson what was
going on between him and his Russian Communist friend, Kalina, and why the men
wanted a union. Johnson replied that the men would like to have more money.
William Manbeck declared that Johnson had been discharged by a prior employer for
instigating a union. William Manbeck further declared that he would break the
bakery down brick by brick before he would allow the Union to come into the shop.
Before the episode ended Edwin Manbeck stated to Radford that he could not dis-
charge a man for instigating a union .2
1 At the time of the hearing in this proceeding the caption also showed Case No.
4-RC-3796 as consolidated with the cases named above. As a result of a stipulation by
the Union and the Company at the hearing and a motion to sever made thereafter by the
Company, the Trial Examiner on March 1, 1960, issued an order granting the motion to
sever and referred Case No. 4-RC-3796 to the Board.
2 These findings are made upon employee Johnson's credible testimony. William
Manbeck testified that he recalled very little of this conversation with Johnson, but did
not deny that the incident as reported above occurred. William Manbeck did not impress
the Trial Examiner as a reliable witness and his testimony, inconsistent with the findings
hereafter made, will not necessarily be specifically noted.
Edwin Manbeck, Radford, and Graybill were not questioned on this subject. The fact
that findings are based upon undented testimony will not necessarily hereinafter be
set forth.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Manbeck also talked to Whitesal in his office before the representation pro-
ceeding. Manbeck then called Whitesal a Communist and inquired what he was
doing with the other Communist, Kalina. Manbeck inquired of Whitesal when he
planned on taking over Manbeck's office and desk and whether Whitesal had ever
stolen anything from the Company.
Shortly after the February 12 representation hearing at which Whitesal had been
subpenaed as a witness, Radford talked with Whitesal at the office. On this occa-
sion Radford stated to Whitesal that Whitesal was for the Union and that he, Rad-
ford, was against the Union, and that Whitesal was not to talk union on company
property and whatever Whitesal did outside the plant was Whitesal's own business.
Radford stated further that he had several people watching and noting the occasions
when Whitesal was in the hall smoking or talking to anyone about the Union or, any-
thing else, that Manbeck would close the bakery if Kalina ever got back to work, and
that if the Union got in the Company would install a doughmixing machine which
would put some of the doughmixers out of work.3
The Board conducted a representation election among the Company's employees on
April 9. The Union filed objections -to this election which were sustained and a
second election was held on September 17. The following occurred during the period
beginning in March and ending a day after the second election, September 18:
(1) Addressing Richard Kauffman and some of the other younger employees Rad-
ford stated that if the Union' got in Radford would not be able to move them around
as the Company would close down the cake shop and .the older men with more
seniority would displace them, but that if the Union did not get in Radford would
teach the younger men the-different jobs at the bakery.
(2) Radford. informed Kauffman that Whitesal would be discharged whether or
not the Union 'got in and that anyone who the Company knew was active in the
Union would also be' discharged.
(3) William Manbeck,talking:to Johnson in his office stated that he had heard that
Johnson, Kalina, and Mistichelli were out to kill Manbeck, nudged Johnson with his
hand and suggested that Johnson kill him., Johnson declared he had nothing against
Manbeck and Manbeck ordered Johnson out of the office directing that Johnson never
talk to Manbeck again. . .
(4) Supervisor Elwood Fickes inquired of Johnson how he got sucked into the
Union.
.(5) Supervisor NormanFickes inquired how then employee Lester. Zimmerman
was for the Union.
(6) Norman Fickes threatened Zimmerman'with discharge if'Fickes heard Zim=
merman talking about the Union again.
(7) Norman Fickes, after stating to Zimmerman that the vote at the election was
34 to 30, asked Zimmerman if he was in favor of the Union and upon Zimmerman's
denial stated that someone had-'to be in favor of the Union, but that everyone had
told him that he was against the Union.
(8) Supervisor Elwood Fickes inquired of Zimmerman whether he was for or
against the Union.
(9) Elwood Fickes inquired of employee Robert Alexander as to how he felt about
the Union.
(10) William Manbeck declared to employee Frederick Jefferson that if the Union
got in he- would tear the plant down brick by brick and the men would not have any
jobs.
('11) Edwin Manbeck inquired of then employee Frederick Jefferson how some of
the men were going to vote in the election.
(12) Radford inquired of Frances Zeiders as to who influenced her in favor of
the Union.
(13) William Manbeck inquired of Alexander. whether he was for or against
the Company.
The General Counsel also alleges that William Manbeck committed an assault and
battery upon Whitesal and employee Edna Barker separately and that thereby
the Respondent violated Section 8(a)(1) of the Act. The Barker incident occurred
on September 18, the day after the second election. Manbeck explained in his
testimony that he had not slept the night before as on the face of it the Company
had lost the election and that he was admittedly very much chagrined and perturbed
s Whitesal impressed the Trial Examiner as a credible witness and these findings are
based upon his testimony. Radford, who did not impress the Trial Examiner favorably as,
a witness, admitted having a conversation with Whitesal on this occasion but denied the
matters attributed to him by Whitesal. Radford's testimony, inconsistent with the find-
ings hereafter made, will not necessarily be set forth.
MANBECK BAKING COMPANY 1195
at. the : results of the election. That morning Manbeck approached the location
where Barker and two other women, Zeiders and Evelyn Kimmell, were working.
Addressing Kimmell, Manbeck stated that she should quit talking and that he was
not paying her for talking. Kimmell stared at Manbeck as he inquired several
times whether Kimmell understood him. Kimmell replied that she was doing her
job. Manbeck inquired of Barker whether she was "sassing" him and Barker replied
that she had not opened her mouth. Manbeck punched Barker with his fist. The
women thereafter withdrew to the restroom and locked themselves in. A black
and blue mark developed on Barker's body. Thereafter Manbeck apologized for
the incident and stated that he had never done anything like that before .4 As the
reason for Manbeck's battery upon Barker-his reaction to the apparent success
of the Union at the election-was unknown to the employees and there was no
showing that the employees under the circumstances had reasonable cause to be-
lieve that the battery was brought about by antiunion considerations, no findings of
Section 8(a)(1) unfair labor practices will be based upon this incident. The
Whitesal incident will be treated in the presentation of Whitesal' s case.
C. The Conclusions
1. The discrimination
a. Rhea Whitesal
The General Counsel alleges that the Respondent discriminatorily decreased the
rate of pay and amount of work of Rhea Whitesal and assigned him to less agree-
able tasks since about September 28, 1959, in violation of Section 8(a)(3) of the
Act. The Respondent stated at the hearing that Whitesal was removed from his
job as a doughmixer to work in'the basement as a disciplinary measure because
Whitesal frequently and flagrantly violated a rule against employees leaving their
work area during working hours or engaging in union organizing during working
hours. .
Whitesal, who had been in the Company's employ for about 3 years in his most
recent 'employment, was transferred from doughmaking work to oven work in
about the middle of March 1959. -Early in April, Whitesal was transferred from
oven work to the basement washing pans. By the time of the second election, Sep-
tember 17, Whitesal had been returned to the dough room. About September 28,
Whitesal was transferred to-the basement at a reduced rate of pay and at the end
of 1959, Whitesal was again back in the dough room. It is the last transfer from
the dough room to the basement on or about September 28, that is involved in the
discrimination allegation.
A few days after the second election and prior to Whitesal's assignment to work
in the'basement, which is alleged to be discriminatory, Whitesal's hours were reduced
and he was given cleanup work in the dough-room. On September 28, after Whitesal
had been about a week in the dough room on reduced hours, Production Manager
Cecil Radford told Whitesal in the presence of Supervisor Elwood Fickes that his
classification was then janitor, and that Whitesal would never be a doughmixer at
the bakery again.
As already found, shortly after the representation hearing on February 12, Rad-
ford told Whitesal, one of the Union's principal proponents, that Whitesal was not
to talk union on company property, that he had people watching Whitesal and noting
occasions- when Whitesal was in the hallway smoking or talking to anyone about
the Union or anything else. Radford's testimony which is not credited is to the
effect that he had warned Whitesal against campaigning for the Union on working
time, that he did not prohibit Whitesal from campaigning on company property, and
that he did not tell Whitesal that he was being watched.
Radford' gave the following testimony: On some days Whitesal took breaks
from his work which in a 10- or 12-hour day amounted to a total of 200 minutes;
since the union organizing started Whitesal made a dozen errors in his dough-
mixing work to one error of the other doughmixers; Whitesal took more unauthor-
ized breaks than most others from the very beginning of an earlier employment;
taking these breaks continued in Whitesal's current employment of about 3 years;
every time be saw Whitesal away from his work he warned Whitesal about it, and
these warnings occurred about a half dozen times between the representation case
and the first election and about a dozen times between the two elections. Radford
These findings are based upon the testimony of Barker, Zeiders, and a stipulation as
to Kimmell's testimony. Manbeck's testimony that it was. possible that he may have
touched Barker with his hand as he was gesticulating and talking is rejected.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also testified that in the middle of March he transferred Whitesal to oven work
where Whitesal would not make as many errors as he had been ' making as a dough-
mixer and also to exercise control over Whitesal's activities in that Whitesal had
been running off the job to talk to men all over the plant, and that Radford was not
able to control- Whitesal in the oven room and that he transferred Whitesal to the
basement washing pans. Radford continued, that while he, Radford, had been
off work for illness, William Manbeck returned Whitesal to the dough room. Rad-
ford testified further that while Whitesal was in the dough room during the period
which followed, Whitesal's leaving his work and making errors got worse but he left
Whitesal there because he did not want to jeopardize the second election. After
the second election, Radford continued, Whitesal did not improve or got worse
and he returned Whitesal to the basement. Radford explained that on this occasion
when he transferred Whitesal to the basement it was at a reduced rate of pay.
When he had transferred him to the basement earlier Whitesal had been continued
at the dough room rate and the other men in the basement who were receiving a
lower rate of pay complained of discrimination. Radford explained in his testimony
that he transferred Whitesal from the basement back to the dough room at the end
of the year because by reason of certain technological improvements Whitesal was
no longer needed in the basement, that he did not want to terminate Whitesal because
of his knowledge of Whitesal's union activities, and that he did not want unfair
labor practice charges brought against the Company. Radford's testimony given
above is not credited . It is noted that the charge alleging Whitesal as a discriminatee
was filed on November 24, and was served shortly thereafter upon the Company.
The record shows an incident in about mid-January 1960, when Lester Zimmer-
man, who had quit the Company's employment a few days earlier, returned to the
plant and talked with Whitesal while Whitesal was working. Radford entered the-
dough room , observed Zimmerman , whom Radford had told while Zimmerman was
an employee that he would discharge Zimmerman if he saw Zimmerman talk with
Whitesal, talking to Whitesal, and directed Zimmerman to leave. Radford declared
to Whitesal that he could get Whitesal for that too. Whitesal explained to Radford
that he had not asked Zimmerman to come to the plant. Radford told Whitesal
that he had taken three breaks in the lunchroom that day. Whitesal had gone to the
restroom on three occasions for several minutes each that day and had been in the
lunchroom on these occasions as one had to pass through the lunchroom to get to
and from the restroom.
According to Whitesal's credible testimony, he did not leave his work area for
the purpose of smoking in the restroom and he did not leave his work except to go
to the restroom. Whitesal did, as have other doughmixers, make errors in his
work. In obtaining signatures on authorization cards at the plant, Whitesal con-
ducted these activities both before and after working hours.
On March 17, while Whitesal was employed at the oven, William Manbeck, who
as already found had had earlier called Whitesal a Communist and had asked
Whitesal when he planned to take over Manbeck's office, committed a battery against
Whitesal which is alleged as a violation of the Act. Present at this incident in
addition to Whitesal were Richard Kauffman and employee Ray Palmer, upon whose
credible testimony the findings as to this event are made. Whitesal had placed a
paper watercup on the oven and Manbeck ordered him to remove it and throw
it into a barrel. As Whitesal was following these instructions Manbeck pushed
Whitesal and called him a foul name. When Whitesal had thrown the cup in the
barrel, Manbeck called Whitesal a foul name again and urged Whitesal to hit
Manbeck. Whitesal stated that he did not know what Manbeck was talking about
and did not hit Manbeck. Manbeck ordered Whitesal back to work and pushed him
from behind to the extent that Whitesal about lost his balance. Whitesal thereupon
proceeded with his work. During the course of the incident Manbeck asked Kauff-
man whether he was trying to help Whitesal and Kauffman replied that he was just
there doing his job. Foremen Sam Mauery and Harold Talton, also referred to in the
transcript as Taltman, were also present and after the incident Talton stated to
Whitesal that regardless of what Whitesal had done no man should be so treated.
Neither Mauery or Talton appeared as a witness . Manbeck at first testified that
he touched Whitesal but denied pushing or striking him, and after he was con-
fronted with an affidavit he had given Manbeck testified that he pushed Whitesal
slightly. Manbeck apologized to Whitesal for his conduct. As in the Barker
incident, although. Whitesal was a principal union proponent, since the reason for
Manbeck's battery was unknown to the employees and there is no showing that the
employees under the circumstances had reasonable cause to believe that the incident
was brought about by antiunion considerations, no findings of Section 8(a)(1)
unfair labor practices will be based upon this incident.
MANBECK BAKING COMPANY 1197
Around April 2, William Manbeck engaged in another incident with Whitesal.
Whitesal was then working in the basement and Manbeck asked Whitesal what was
-going on with Whitesal and Union Organizer Mistichelli, stated that Whitesal was
on Mistichelli's organizing committee, and that Whitesal, Johnson, Kalina, and
Mistichelli were threatening to kill Manbeck. Manbeck also asked Whitesal to kill
him. Whitesal told Manbeck, as was the fact, that he never threatened to kill Man-
beck. Manbeck stated that he would get Whitesal if it took to his dying day and left.
It was sometime after this incident, according to Radford, that Manbeck returned
Whitesal to the dough room.
As Whitesal did not violate the Company's rules regarding leaving work areas or
organizing during working time, and in view of the hostility directed against Whitesal
for his union activities and Radford's declaration to Kauffman, as already found, that
Whitesal would be discharged whether or not the Union was successful, it is found
that Whitesal's_assignment to janitorial work from September 28, 1959, to the-end of
the year was because of his union activities.
b. Frances Zeiders
The complaint alleges that Frances Zeiders was discriminatorily discharged on or
about September 30, 1959. The Respondent takes the position that Zeiders was hired
as a temporary employee, that she was laid off or discharged when there was no
further work, and that in selecting her for termination certain personal habits were
taken into consideration.
Zeiders was hired as a temporary employee around the end of June 1959. In
August Foreman Talton told her that he would not need her after Labor Day and
that there was a possibility that she might be laid off. Zeiders then indicated to
Talton that she might quit for personal reasons. In August Production Manager
Radford also talked to Zeiders about letting her go after Labor Day. In a conversa-
tion with some of the women employees in which the subject of Zeiders' personal
habits arose, Radford stated that he had made an error in hiring Zeiders.
On the afternoon of the second election, September 17, after the vote had been
completed, employee Viola McClay asked Zeiders in Radford's presence whether she,
McClay, had influenced Zeiders in favor of the Union and Zeiders replied that
McClay had not influenced her. Radford then, as already found, inquired of Zeiders
as to who had influenced her in favor of the Union. Zeiders replied that no one had
inflnenced.her, but stated that the Union had provided blood for her little girl when
no.one else would and that her child would not be alive if it had not been for the
Union.
At the time of Zeiders' termination Radford, declaring to Zeiders that he would
not be needing her anymore, threw her pay at her, and according to Zeiders' credible
testimony, told her to "get the - out." Around the time of the discharge a man
was hired in the department in which Zeiders last worked, and he performed work
which Zeiders could not perform.
As there is no showing of a need for Zeiders' services, and there is record support
regarding her personal habits, it is found that the General Counsel has failed to
establish that Zeiders' termination was caused by her connection with the Union.
c. Richard Kauffman
The General Counsel alleges that Richard Kauffman, who had been employed by
the Company since April 1954, was discriminatorily discharged on or about Sep-
tember 30, 1959. The Respondent urges that Kauffman was discharged for using
foul language toward employees and supervisors. Production Manager Radford who
discharged Kauffman testified that the following three incidents of foul language by
Kauffman in combination was the reason for his,discharge; (1) the Foreman Elwood
Fickes incident, (2) the Radford incident,.and, (3) the employee Robert Leatherley
incident.
According to Foreman Fickes the incident involving him occurred on June 3 in
the lunchroom during the lunch hour. Present at this incident in addition to Fickes
and Kauffman, were employees John Luther, William Sutton, and James Smith. On
this occasion Fickes choked on some food or belched into Kauffman's face. Kauff-
man declared that Fickes had better not do that while he was eating or he would
slap Fickes. Thereafter Fickes and Kauffman exchanged some foul language. Fickes
told Kauffman that he would get into trouble if he continued to use foul language.
Radford was not at the plant then and a few days later after Radford returned
Fickes reported the incident to Radford. Fickes, who was not Kauffman's supervisor,
testified that Radford suggested entering the incident on Kauffman's work record
and stated that he would possibly talk to Kauffman about it. Fickes testified further
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Radford asked Fickes to forget the event as they did not-want to get involved
in charges and that he , Fickes, thereupon dropped the incident.
The Radford incident occurred a few days prior to the September 17 election.
On this occasion , in the course of an exchange about the work , Kauffman called
Radford a liar. According to Radford, Kauffman also called him a certain foul
name. Kauffman denied having used this term. Employee Thomas Cook supported
Radword's version. Employee John Luther, also referred to in the transcript as
Don Luther, testified that Cook was not present on this occasion . - James Smith
who was also present was not called as a witness .. In view of the comments made
earlier concerning Radford as a witness , his version is not accepted . In addition
Radford impressed the Trial Examiner as a man who,-if he had been called such
a foul name, would have discharged Kauffman instantly contrary to his explanation
that he overlooked this incident as he did not want to jeopardize the election.
The remaining incident involved employee Robert Leatherley. According to
Leatherley , the incident occurred on the day before Kauffman 's discharge while be
and Kauffman were alone in the shower room after work . By Leatherley 's version
Kauffman called him certain foul names in connection with a conversation about
the Union , and Kauffman had not acted toward him that way before . The next
morning, according to Leatherley, he reported the incident to Radford stating that
if Radford did not do something about it he , Leatherley , would have to quit.
In an unemployment compensation hearing, Leatherley testified that he had been
abused by foul language so often by other employees that he felt he had to put an
end to this conduct or quit. At the instant hearing Leatherley testified that he had
not been abused by other employees and also reported an incident of abuse by an
unnamed person which had occurred about 10 years earlier.
Kauffman's testimony at this hearing is that he had had a good many arguments
with Leatherley about the Union, that he had not used foul language to Leatherley,
and that one night in the shower room in the course of a conversation about the
Union he called Leatherley "a stupid ass" and no other names. Further , by Kauff-
man's version, he told Leatherley that the only reason Radford kept Leatherley was
because Leatherley was reporting to Radford on the union activities . At the unem-
ployment compensation hearing Kauffman testified that although he used foul lan-
guage in an argument with Leatherley he did not call him any names and that
the argument occurred the night before the discharge . At the instant hearing
Kauffman testified that he event involved occurred on August 16 or September 16,
that he believed it occurred prior to the September 17 election, that it occurred' about
2 weeks prior to his discharge, and that he did not remember whether or not it
occurred the day before the discharge.
Kauffman testified that employees Kenny Brubaker , Ray Palmer, and Luther
were present during this incident . Brubaker was not called as a witness . Luther,
who was not present during the entire conversation, placed the incident involved as
having occurred a few days before the September 17 election. Palmer placed the
incident as having occurred about 2 weeks before this election . According to Luther
and Palmer in the course of a discussion in which Kauffman sought - to convince
Leatherley in favor of the Union and during which Leatherley argued against the
Union , Kauffman referred to Leatherley as "a dumb" or "a stupid ass." It is found
on the basis of Luther's and Palmer 's credible. testimony that the incident occurred
sometime between 2 weeks and a few days prior to September 17, and that it occurred
substantially as related by them .5
Foul language at the plant by employees and supervisors was not uncommon.
There had also been occasions of use of undesirable language by supervisors in
the presence of women employees . Foreman Harold Talton had warned Luther
after Luther while at work had called Leatherley a foul name , and told Luther
that he had better stop it as that conduct would not be permitted if the Union got in.
5 William Manbeck testified on direct examination that Radford reported that Kauffman
had cussed Fickes and Leatherley , and quoting Radford, "Now he [Kauffman ] has cussed
me." Further , that Radford stated that he was going to let Kauffman go and.that
Manbeck gave his approval . On cross-examination , Manbeck testified that he did not
know the exact sequence of the incidents as reported by Radford , that he was not certain
whether Radford talked to him the same day Kauffman was discharged or the following
day, and then quoted Radford as having said, "I'm going to leave you go, I'm going to
fire him."
On May 4 , 1960, the Pennsylvania Unemployment Compensation Board - of Review
denied benefits to Kauffman for having engaged in misconduct by the use of foul
language to his superiors . It does not appear that either Fickes , Luther , or Palmer was
a witness in that proceeding.
MANBECK BAKING COMPANY 1199
.
On the night preceding Kauffman's discharge persons interested in the Union,
including Zeiders, Whitesal, Johnson, Palmer, Frederick Jefferson, Robert Alexander,
and Edna Barker, met at Kauffman's house. The next day, Thursday, October 1,
Radford informed Kauffman that he was discharged for using foul language. Kauff-
man asked that persons to whom this language had been addressed be identified and
Radford declined stating that Kauffman should know the identity.
Prior to the April election Kauffman, who had by then signed a union card, had
told Radford that he did not like the Union. Radford testified that he had believed
Kauffman's statement that he was not in the Union. Radford testified that along
with the foul language aspects Leatherley had also reported that Kauffman had
been trying to get Leatherley to vote for the Union,6 or talked in favor of the Union,
and that Kauffman had always been trying to get Leatherley on the side of the
Union. Radford also testified that he could not depend upon Kauffman's word,
and that Kauffman had been untruthful for a long time. William Manbeck had
heard rumors that Kauffman was supporting the Union. There was an occasion in
the plant when Kauffman had been talking about the Union to employee Jim Turner.
Turner referring to Kauffman by a foul name had complained to Talton about
Kauffman talking union to him, Turner, and asked Talton that Kauffman be removed.
Accordingly, in view of the Respondent's practice regarding the use of foul
language at the plant by both employees and supervisors, as it relies upon instances
of foul language by Kauffman the last of which instances occurred more than 2
weeks prior to Kauffman's discharge, and as the Respondent opposed the Union
by illegal means, it is found that the Respondent discharged Kauffman on October 1,
1959, for his known union activities and not for the reasons urged by the
Respondent.
d. Robert Alexander
The General Counsel alleges that Robert Alexander, who had been employed
by the Company in December 1955, was discharged on or about October 15, 1959,
for discriminatory reasons. The Company defends on the ground that Alexander
was discharged for stating that he would not pay and would not make any attempt
to pay certain bills one of which was from one of the Company's best customers,
the Harrisburg Hospital.
.On October 15, 1959, the Company received a form letter from a credit bureau
which stated that Alexander owed a total of. $120.50, to certain named creditors
including an amount to a certain. physician, and $25.50 to the Harrisburg Hospital.
This letter also stated that the bureau had been unable to reach the employee despite
many efforts and requested the Company to suggest to .the employee that he visit
the bureau as soon as possible. -
According to Alexander on the morning of October 15, Production Manager
Radford told Alexander that the Company had received a letter about a hospital
bill Alexander owed and asked what Alexander was going-to do about it. Alexander
replied that he was stating to-Radford as he had stated to a representative of the
credit bureau that since his hours of work had been reduced he could not afford
to pay the bill at that time. When Alexander thereafter appeared at Office Manager
Clarion Graybill's office he received his.final check and Radford stated that they have
been accustomed to paying their bills.
Radford's version is that when he confronted Alexander with the letter Alexander
responded that be did not have the money, he was not making enough money,
Radford could tell the credit .bureau what Radford pleased, but that he was not
going to pay. Further, at Radford's request, Alexander repeated his response at
the office in Graybill's presence. Radford explained in his testimony that he did
not expect Alexander to pay that day, but, although he did not suggest this, he did
expect Alexander to offer to, make some arrangement' with the bureau and make
an attempt to pay. Radford also testified that he had taken up the bill on prior
occasions with Alexander; further, that'in the past, when other credit letters had
come in Alexander had indicated that he would take care of the bills. This was
the first instance,' according to Radford, of Alexander's refusing. to pay a bill.
Radford further testified that he was unaware of an instance of.Alexander's refusal
to pay a bill which instance is related in a summary of Graybill's testimony below.
Graybill's version is that when Alexander and Radford. appeared in his office,
Radford stated that Alexander refused to pay the bills and that the hospital' was
a good customer. Radford inquired of Alexander whether he wad still" stating that
he refused to pay the bills and Alexander replied that that was right. Thereupon
"Both Leatherley and Radford placed this event as having occurred more than 2 weeks
after the voting.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Radford declared that he would have to let Alexander go. Graybill also related
an incident which had occurred about a year before the discharge when the
physician referred to in the paragraph above describing the credit bureau's letter
had called Graybill about a debt owing by Alexander . Graybill then spoke to
Alexander about it and Alexander stated that he was refusing to pay that bill
as the physician had not done him any good . Graybill also testified that it was
the Company's policy to try to get employees to pay their bills.
Alexander is credited in his version of the transaction with Radford . Graybill,
who impressed the Trial Examiner favorably , is credited with regard to the events
which occurred in his presence and with regard to his testimony that Alexander
then accepted as correct Radford 's summary of their earlier conversation to the effect
that Alexander was refusing to pay the bills.
From November 1958 through May 1959, Alexander had borrowed a total of
$1,225 from the credit union operated at the plant. The application forms show
the purpose of two of these loans, totaling $685 , to be for auto tires and it does not
appear that either the credit union or Alexander " took seriously the declaration in
the application form as to the purpose of the loans. The debt in question to the
hospital was incurred in 1956. In addition to obligations to his immediate family,
Alexander had undertaken certain family responsibilities to his mother and a sister
and her family and-had explained his inability to pay at the time to the representative
of the credit bureau.
Alexander signed up with the Union in January or February 1959 , and attended
some union meetings . As already found Supervisor Elwood Fickes had asked
Alexander how he felt about the Union . Alexander told Fickes that he was not in
the Union . This occurred prior to the first election . From time to time Fickes
pointed out arguments to Alexander against the Union . Prior to the second election
Fickes again talked to Alexander about the Union and Alexander then stated that
he had gone along with Fickes, but that when he voted this time things were
going to be different . The morning following the election and about a month
prior to Alexander 's discharge Radford told Alexander that there was not going
to be any loafing around there anymore , that the employees had wanted 40 hours
a week, and that he was going to see to it that Alexander got 40 hours a week.
Radford then reduced Alexander's hours of employment . Alexander stated that
Radford did not know what Alexander wanted or how he voted and Radford
stated that Alexander had evidently voted for the Union . As already found, William
Manbeck asked Alexander whether he was for or against the Company . Alexander
replied, "I was for you, naturally ." This occurred the same day as the Radford
conversation . A few days after Alexander's discharge , contrary to Radford's and
according to employee Harold Payton 's credible testimony , Radford then stated that
he'knew that Alexander was' for-'the Union. -
It is accordingly concluded in view of the above findings and the Respondent's
union animus that the occasion for Alexander 's discharge was the credit bureau's
letter and his refusal for his then inability to pay the debt , but that the cause for
the discharge on October 15, was to be rid of a union man.
e. Frederick Jefferson
The General Counsel alleges that , Frederick Jefferson , who had been in the
Company's employ for about X15 years, was discharged on November 7; 1959, for
discriminatory reasons. The Company 's position is that Jefferson quit its employ.
On the Wednesday or Thursday preceding Saturady , November 7, Jefferson asked
Radford for time off beginning at noon the following Saturday, stating that it was
very important for him to be off. In the past , Jefferson's requests for time off had
always been granted . Saturdays , when there was little production , was the only
day when Jefferson could do his cleaning work properly and he was scheduled for
101h hours' work that day. On this occasion or on Friday when Jefferson again
asked for time off , Radford denied the request . On Saturday , Jefferson made the
same request and Radford again.denied it , stating that if Jefferson took Saturday
afternoon off, he would be discharged . Jefferson worked until noon on Saturday
and then left the plant . Jefferson considered himself discharged on Monday, when
he received his final check.
Jefferson admittedly informed both William and Edwin Manbeck that he was not
for the Union.
It is found , whether Jefferson quit or was discharged , that the cessation of his
employment was not caused by his association with the Union.
Accordingly it is found that the Respondent did not discriminate against Frances
Zeiders and Frederick Jefferson, as, alleged . It is further found , in view of the inter-
MANBECK BAKING COMPANY 1 201
ference, restraint, and coercion found below, particularly Radford's threat to dis-
charge any known active union adherents, that the Respondent did discriminatorily
.discharge Richard Kauffman on October 1 and Robert Alexander on October 15,
1959, and discriminatorily assign Rhea Whitesal to less desirable work and reduce
Whitesal's rate of pay and amount of work for the period from about September 28,
1959, to about the end of 1959, in violation of Section 8(a) (3) and (1) of the Act.
2. Interference, restraint, and coercion
It is found that the Respondent violated Section 8(a)(1) of the Act by: (1)
Interrogating employees as to their union sympathies through (a) William Man-
beck's inquiry of Johnson as to his union activities and why the men wanted a union,
and inquiry of Alexander as to whether he was for or against the Company; (b)
Elwood Fickes' inquiry of Johnson as to, how he got sucked into the Union, inquiry
of Alexander as to how he felt about the Union, and inquiry of Zimmerman as to
whether he was in favor of the Union; (c) Norman Fickes' inquiry of Zimmerman
as to how he was in favor of the Union; (d) Edwin Manbeck's inquiry of Jefferson
as to how some of the men were going to vote in the election; (e) Radford's in-
quiry of Zeiders as to who had influenced her in favor of the Union; (2) advising
an employee that future benefits were contingent upon giving up the Union through
Radford's declaration to Kauffman that if the Union were not successful Radford
would teach junior employees the different jobs at the Company; (3) threatening
to close the plant before the Company would deal with the Union through William
Manbeck's declaration to Johnson that he would tear the plant down before allow-
ing the Union to come in, and to Jefferson that if the Union got in he would tear
the plant down and the men would lose their jobs; and (4) threatening employees
with reprisals because of their union activities through (a) William Manbeck's
declaration to Johnson that he had been discharged by a prior employer for insti-
gating a union; (b) Radford's declaration to Whitesal that if the Union got in the
Company would displace men by installing certain machinery, informing Kauffman
that if the Union were successful the Company would close down one of its opera-
tions, and threat to Kauffman that those known to be active in the Union would be
discharged; and (c) Norman Fickes' threat to discharge Zimmerman if he talked
about the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Thus, having found that the Respondent interfered with, restrained, and coerced
its employees by the conduct enumerated in the section entitled "The Conclusions,"
the Trial Examiner will recommend that the Respondent cease and desist from this
conduct.
Having also found that the Respondent discriminated with regard to the hire and
tenure of employment of Richard Kauffman on October 1 and Robert Alexander on
October 15, 1959, the Trial Examiner will recommend that the Respondent offer
each of them immediate and full reinstatement to his former or substantially equiva-
lent position, without prejudice to his seniority or other rights, and make each of them
whole for any loss of pay suffered as a result of the discrimination against him, by
payment to each of them of a sum of money equal to the amount he would have
earned from the date of the discrimination to the date of the offer of reinstatement
less net earnings to be computed on a quarterly basis in a manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289. Earnings in any one particu-
lar quarter shall have no effect upon the backpay liability for any other such period.
Having found that the Respondent discriminated with regard to the terms and condi-
tions of employment of Rhea Whitesal for the period of about September 28, 1959,
to about the end of 1959, the Trial Examiner will recommend that the Respondent
make him whole by payment of a sum of money equal to the amount he would have
59T254-G1--vol. 130--77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earned had be not been discriminatorily transferred from employment as a dough-
maker for the period involved , and also reinstate him to his seniority and such other
rights and privileges , if any, as he would have had as a doughmaker but for the dis-
criminatory transfer . Earnings shall be computed in the same manner as provided
for above. It will also be recommended that the Respondent preserve and make
available to the Board, upon request , payroll and other records to facilitate the com-
putation of the backpay due.
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act, it will be recom-
mended that the 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 Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. American Bakery and Confectionery Workers International Union, Local 492,
AFL-CIO, is a labor organization within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of Richard
Kauffman and Robert Alexander and in regard to the terms and conditions of em-
ployment of Rhea Whitesal, thereby discouraging membership in the Union, the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
. 3. By engaging in the conduct set forth in the section entitled "The Conclusions,"
the Respondent has engaged in and is engaging in unfair practices within the mean-
ing of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not discriminated with regard to the employment of
Frances Zeiders and Frederick Jefferson as alleged.
[Recommendations omitted from publication.]
Meadow Stud, Inc. and Local 917, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Ind. Case No. A0-17. March 3, 1961
ADVISORY OPINION
This is a petition, filed by Local 917, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind.,
for an advisory opinion under Section 102.98 (a) of the Board's Rules
and Regulations, Series 8.
In relevant part, the petition discloses the following :
Meadow Stud, Inc., herein called the Employer, a Delaware corpo-
ration engaged in the business of breeding, raising, racing, and selling
thoroughbred racehorses, operates a farm and stables at Doswell,
Virginia, where it keeps stallions for breeding purposes. Mares
owned by other persons are sent to such stables to be bred, and the
mare and their foals are boarded there. About 40 horses are raised
each year. For the fiscal year ending in August 1959, the Employer
received $91,639 in stud fees and $117,500 from the sale of horses in
1960. Included in the latter figure is the sum of $24,000 for a horse
sold in California and $44,000 for horses shipped out of New York.
It also receives an annual income of $17,719 for boarding mares and
130 NLRB No. 121.