American Bakeries Co.

National Labor Relations Board - Board Decisions

Nov 29, 1972

200 N.L.R.B. 588 (N.L.R.B. 1972)

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Bakeries Company Langendorf Bakeries
Division and General Teamsters , Sales Drivers,
Food Processors, Warehousemen & Helpers Local
871, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America
Case 21-CA-10426
November 29, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY AND
PENELLO
On July 20, 1972, Administrative Law Judge'
James T Rasbury issued the attached Decision in
this proceeding Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief to the General Counsel's
exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint issued herein
against the Respondent, American Bakeries Compa-
ny, Langedorf Bakeries Division, be, and it hereby is,
dismissed
i The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 Even if contrary to the Administrative Law Judge we were to find the
existence of animus against Local 871 we would still agree with his
conclusion that the personnel changes in issue were not shown to have been
unlawfully motivated
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T RASBURY, Trial Examiner This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, was heard at Los Angeles, California on April
25, 26, and 27, 1972, pursuant to due notice The complaint
was issued on January 26, 1972, alleging in substance that
1 Resp Exh 18 was received at the hearing over General Counsels
objections The Trial Examiner is of the opinion the ruling was in error and
it is herewith reversed and the exhibit is rejected In reaching my findings
and conclusions herein I have not relied on the information reflected in
Respondent engaged in unfair labor practices proscribed
by Section 8(a)(1) and (3) of the Act by (1) discriminatonly
laying off Ray Godfrey, (2) discriminatorily transferring
three employees from Respondent's Pomona depot to its
San Bernardino, California depot, (3) discriminatorily
transferring three employees from its Pomona, California
depot to its Bell Gardens, California depot, and (4)
interfering, restraining, and coercing employees by telling
them that the layoff and transfers were effected as reprisals
because of the Union and because the employees had
engaged in protected concerted activities Respondent's
answer denied the commission of any unfair labor
practices
Upon the entire record,' including my observations of
the witnesses and their demeanor on the witness stand, and
after due consideration to all the evidence and the briefs
submitted by General Counsel and the Respondent, I
make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in the manufacture
and distribution of bakery products with its principal place
of business located at 7222 East Gage Avenue, Los
Angeles, California, and with a bakery located in Bell
Gardens, California, a delivery depot and warehouse
located in Pomona, California, and a terminal located in
San Bernardino, California Respondent in the normal
course and conduct of its business operations annually
purchases and receives goods, materials, and supplies
valued in excess of $50,000 directly from points and places
located outside the State of California The General
Counsel alleges, the Respondent admits, and I herewith
find that the Respondent is and at all times material herein
has been an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
General Teamsters, Sales Drivers, Food Processors,
Warehousemen and Helpers, Local 871, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, the Charging Party herein, is a labor
organization within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Introduction and Issues
Respondent is engaged in a bakery business in Southern
California Its Southern California operation includes 17
depots, or point of distribution, all under the management
and supervision of Elmer McCallister, whose title is plant
manager The Charging Party herein, Local 871 of the
Teamsters, is one of nine different Teamster Locals all of
Resp Exh 18 The reporter mistakenly marked Resp Exh 17 as received
and it appears among Respondent s exhibits This exhibit was rejected when
offered at the hearing (see transcript at 454)
200 NLRB No 87
AMERICAN BAKERIES COMPANY
whom are signatories to a common contract covering the
driver-salesmen of the Respondent in Southern California
This controversy arose because Respondent laid off Ray
Godfrey from his position as a driver-salesman at the
Pomona depot, transferred employees Lacy, Kramer, and
Schwacofer from the Pomona depot to the San Bernardino
depot, and transferred Cox, Christie, and Nuckolls from
the Pomona depot to its Bell Gardens depot The General
Counsel's theory is that these employee changes occurred
because the employees belong to Local 871, whose
president was a vigorous enforcer of the union contract,
and Respondent wanted to teach this president and these
employees a lesson by transferring them to a Local that
would be more considerate toward Respondent In making
these moves-according to the General Counsel's theory of
the case-it would not only move complaining employees
to a local that would be less sympathetic to their gripes, but
it would also aid the president of Local 871 to learn that
unless he was more considerate and tolerant toward
Respondent, he might find himself with a further shrinkage
in membership It is alleged that two supervisors actually
indicated that the aforementioned moves by Respondent
had been made because of the proscribed reasons above
indicated and that these statements further tended to
interfere with, restrain, and coerce the employees of Local
871 in the exercise of their protected concerted rights The
Respondent defends against these allegations on the
grounds that the layoff of Godfrey and the transfer of the
six employees from Pomona depot to other depots within
the southern district of California stemmed from sound
business decisions necessitated by a serious economic
crisis
The Respondent's employees have been represented by
unions for a number of years In addition to the
aforementioned driver-salesmen contract that is relevant
herein, the bakers are represented by Bakers Local No 37,
the garage employees are unionized, as are the office
employees McCallister testified that every aspect of the
operations except top management is unionized It was
stipulated that two supervisors, one of whom is alleged to
have made the statement to the employees that "the
transfers and layoff were reprisals against Local 871," are
bargaining unit employees fully regulated by the union
contract requiring membership in the Local in whose
jurisdiction he works, but who do have the indicia of
supervisors in that they have the authority to effectively
recommend the hiring and firing of employees It was also
stipulated that management has the right under the
collective-bargaining agreement to transfer driver-salesmen
with their routes between various depots, whether or not
the depots are within the jurisdiction of different local
unions, and that the Respondent has regularly exercised
this right
2 All dates hereinafter are 1971 unless otherwise indicated
3 The phrase working off the clock refers to time devoted to working
at assigned tasks without having clocked in or to work performed after
having clocked out This rather anomalous situation is created by the terms
of the labor contract relating to the pay of driver salesmen Dnver-salesmen
are not covered by the Fair Labor Standards Act but the union contract
requires payment of a premium pay of time and one half for all hours
B The Evidence
'>89
1 Relative to the layoff of Ray Godfrey
Godfrey testified that he was interviewed and hired by
Lloyd Carter the latter part of September2 and worked as a
cake driver-salesman out of the Pomona depot for the
month of October and up until November 6 at which time
he was laid off Godfrey testified that during the hiring
interview he was asked if he was "going to be a clock
watcher or union man" and that Carter indicated the
Union was giving him a hard time about a man that had
been let go Godfrey further testified that Bennen had told
him in the course of a discussion about his wages that he
(Godfrey) would not be paid overtime until after he had
worked for the Company for 13 weeks Newton Bennen
was one of the two individuals stipulated to be a
supervisor-member of the bargaining unit In another
conversation Bennen told Godfrey that the Company was
opposed to overtime Godfrey further related that after his
termination he contacted Bob Musser (president of Local
871) and Musser was successful in obtaining some
overtime pay money for him
2 Relative to the transfers
James Lacy testified that he was hired as a driver-
salesman in May 1963, and since that time he has basically
worked on the same route He first worked out of the
Pomona depot, then in the fall of 1963 ht was transferred
to the San Bernardino depot In 1965 he was transferred
back to the Pomona depot and currently is working the
same basic route from the San Bernardino depot Lacy
testified that when he was transferred to San Bernardino
on November 6 he was told by McCormick (a supervis,or-
member of the bargaining unit) that "they had no
enforcers, no stool pigeons, no Bob Mussers, no problems
They expected high volume, low stale and 45 hours a week
from each of their salesmen Lacy testified that at the San
Bernardino depot he saw men "working off the clod, "3
Lacy further testified that on one occasion when he turned
in hours in excess of 45 at San Bernardino he was told by
his sales supervisor that the route could be run in 45 hours
Lacy indicated that he had been criticized in Pomona for
exceeding 45 hours Lacy testified that while a member of
Local 871 that he had been fined "for working off the
clock " Lacy indicated that he only drove about 135 miles
per week prior to his transfer from Pomona to San
Bernardino and that after his transfer he drove nearly 500
miles per week, but that two additional stops had been
added to his route
Mr Eli Kramer's testimony was in much the same vein
as that given by Mr Lacy Kramer was transferred from
Pomona to San Bernardino on November 6, he was told by
Bennen that the move was to affect savings to the
Company and that there were no union problems or Bob
worked in excess of 45 a week In addition to their base pay of $175 a week
for the 45 hours of work diver salesmen also receive a 10-percent
commission on their gross volume over $620 per week Thus the driver
salesmen are willing to put in extra hours in an effort to increase their gross
volume but in the event excessive overtime is claimed the Company reduces
the gross volume by taking certain stops off the route
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Musser problem in San Bernardino, he only drove about
30 miles per day on his route while working out of Pomona
and drove nearly 90 miles per day on his route after
assignment to the San Bernardino depot, he was told by
Sales Supervisor McCormick that there were no problems
in their depot and that he was expected to produce
approximately $1,500 volume with no more than 45 hours
of work When he complained that this was impossible, he
was told to observe the others and he would learn how it
was done While working in Pomona he was fined by the
Union for "working off the clock" and he has received
overtime paychecks from the Respondent due to the
persistence of Mr Musser in checking the timecards of the
employees
Herbert S Schwacofer testified that he first worked for
Respondent in 1947 and stayed until 1959 at which time he
quit and then came back again in 1964 and has worked
until the present time When he came back in 1964 he
started in the San Bernardino depot and was transferred to
Pomona depot and on November 5 he was transferred
back to the San Bernardino depot Schwacofer testified
that he had been fined and put on probation by Local 871
because he had worked overtime and had not been paid
and had not reported the failure to be paid, that the local
supervision at Pomona was constantly complaining if
anyone worked overtime and that on one occasion he had
been asked to explain in a letter to Mr Carter why he had
worked overtime Schwacofer also testified that he was
greeted by Sales Supervisor McCormick with much the
same statement as was testified to by Lacy and Kramer
namely, "up here we don't have any union problems and
we don't have no overtime problems and we won't have
nobody rocking the boat up here as far as overtime and all
that is concerned and he said that we were not in Local 871
anymore and that we don't have a Bob Musser up here "
Schwacofer further testified that he advised McCormick
that he had had approximately seven hours of additional
driving time added to his route by his transfer to San
Bernardino and he wanted to know how he could possibly
get the route covered without working some overtime
McCormick answered by indicating that he should watch
the other fellows and find out what they were doing about
this Schwacofer explained that he observed a number of
men "working off the clock" while at San Bernardino, but
that he had been fined when under the jurisdiction of
Local 871 for "working off the clock " He said it was Bob
Musser, the president of Local 871, that had preferred the
charges against him Schwacofer testified that prior to his
transfer to San Bernardino he drove approximately 40
miles a day and after his transfer he drove around 100
miles a day
Cox, Christie, and Nuckolls were not called by General
Counsel to testify to which I attach no particular
significance because presumably their testimony would
have been similar to that presented by Lacy, Kramer, and
Schwacofer and would only have been cumulative
3 Relative to the differences in contract
administration by the three locals involved
Much time and many pages of the record were devoted
to the testimony of George Hall, secretary-treasurer of
Local 166 (San Bernardino), Edward Knaiger, secretary-
treasurer of Local 276 (Bell Gardens) and Bob Musser,
business agent and president of Local 871 and Walter
Melody, secretary-treasurer of Local 871 (Pomona)
General Counsel sought to prove through the production,
pursuant to subpena, of the written records of grievances
filed on behalf of various members against the Respondent
and the written records of charges and fines against
members, by each of the three Locals herein involved, that
Local 871 was more vigorous in its enforcement of the
contract and more insistent that its members not "work off
the clock " Such an inference from the evidence is not
possible While the evidence presented did indicate that
there were more written grievances filed by Local 871 than
there were by the other two locals and that there were more
charges and fines levied against the members of Local 871
than the other two locals, this proof by omission is not
sufficient to warrant the inference desired by General
Counsel There are too many other factors besides written
grievances and charges filed against members involved in
contract enforcement to warrant such an inference For
example, different supervisors from one location to
another can make a substantial difference in the form and
the degree of contract compliance, the extent to which the
personalities involved prefer to handle matters orally
(informally), and the quality and temperament of the
employees involved Undoubtedly there are many other
factors involved but these few examples are sufficient to
prevent the inference-merely because Local 871 filed
more written complaints and fined more members-of an
improper or illegal motive for Respondent's action in
transferring employees from a depot in one Local's
jurisdiction to a depot in another Local's jurisdiction
That Musser was an intelligent, hardworking, "eager
beaver" type enforcer of the contract, I have no doubt
from the evidence and my observations at the hearing
That his method of operation might have been a "pain in
the ass" to management can also be believed 4 But when
confronted with positive and credible testimony from the
leaders of Local 166 and Local 276 that they too enforced
their contracts-albeit a different style-it is not possible
to attribute the illegal motive to Respondent that General
Counsel seeks In view of Respondent's (1) completely
unionized operation over a substantial period of time, (2)
the frequent practice of transferring men and routes from
one depot to another, (3) the lack of union animus, and (4)
the testimony of the union leaders from Local 166 and 276
adverse to General Counsel's theory, I would have great
difficulty in inferring an illegal motive for Respondent's
conduct even if Respondent had not shown a business
justification for the transfers and layoff
C The Respondent's Defense
The Respondent contends the layoff of Ray Godfrey and
4 The expression was attributed to McCalhster as a phrase he frequently
used to characterize the union-particularly Local 871
AMERICAN BAKERIES COMPANY 591
the transfer of employees Cox, Christie, Nuckolls, Lacy,
Kramer, and Schwacofer from the Pomona depot were
made for business reasons stemming from an economic
necessity to curtail expenses
McCallister's testimony, which I credit, indicated that
Respondent had an operating loss of approximately
$140,000 for the year 1970 The loss increased to
$1,600,000 for the year 1971 One cause for this drastic
operating loss was the opening of a bakery by one of their
largest customers, Alpha Beta, in 1971 5 The opening of
their own bakery by Alpha Beta took away approximately
$70,000 a week in sales volume from the Respondent The
Langendorf Division is the largest volume operator of
American Bakeries Company and these losses were of
serious concern to the parent corporation
The plant managers of American Bakeries were talked to
via telephone on October 21 by the executive vice
president, Mr Mitchell, and the president and chairman of
the Board, Mr Cushman, concerning the necessity for a
drastic cost reduction program The telephone conversa-
tion was confirmed by a written memorandum of the same
date restating the required program 6
The instructions directed that immediate cost reduction
action be taken McCallister testified that he immediately
devoted all his time working at ways and means to
effectuate the required cost reductions During this critical
period Joe McKinley, a divisional vice president, and Dave
Mitchell, the executive vice president, spent time with him
assisting in the decisions to be made McCallister testified,
however, that the final decisions were his responsibility
Numerous changes were made by way of discontinuing
routes, combining routes, reducing the number of bakery
items carried, elimination of unprofitable items, transfer-
ring routes from one depot to another, and reducing the
number of supervisors by increasing the number of routes
5 Alpha Beta is a large grocery chain operation
6 The written memorandum from Mitchell and Cushman appears in the
record as Resp Exh 3 The instructions and time limitations are so precise
and so determinative of Respondent s action as to warrant being set out in
full
TO Plant Managers
FROM D L Mitchell and L Arthur Cushman, Jr
DATE October 21 1971
We thought it would be well to confirm the telephone conversation we
had with each of you this afternoon
There is no particular need in restating the reasons for the drastic cost
reduction program which we are asking be developed and implemented
prior to Friday October 29 We did think we would briefly restate the
required program
(1) Each plant manager will intensively analyze every part of his
operation and will make plans to reduce the payroll by 10% effective
immediately We are not expecting to make bucks out of straw but
we are expecting this project to reduce payroll drastically and we
expect the task to be approached creatively First-no overtime t Then
look hard and do something about cutting people and hours and dollars
by the elimination of unprofitable short run varieties increasing the
number of routes per supervisor eliminating unnecessary statistics in
the office enforcing proper work habits on all plant people so that the
sanitation group can be reduced and impressing upon the engineering
people the need for vastly increased productivity in this area or
whatever is necessary We must have no fat'
(2) We want a 10% reduction in all controllable expenses This
begins with the slop accounts General Manufacturing Expense
supervised Ray Godfrey's route had been running less
than $900 a week and it was determined that this was one
route that should be eliminated in keeping with the
instructions of the chief executive officer By transferring
three driver-salesmen to San Bernardino and three to Bell
Gardens it eliminated a supervisor at Pomona and reduced
the number of transport truck trips to Pomona The
personnel changes affecting the members of Local 871
were only a small part of the total action taken in an effort
to comply with the instruction from the president of the
Company On the basis of all of the evidence, I find that
Respondent's only motivation for the numerous employee
changes made in November 1971 was sound business
reasons made necessary by serious economic reversals
The comment allegedly made by Bennen that the route
transfers had been effected as a reprisal against Local 871
and the employees' protected concerted rights, was not
proven by a preponderance of the evident a Mr Kramer
testified that in a conversation with Bennen on October
30-when he (Kramer) first learned of the transfer-that
Bennen said, " the move was to effect savings to the
Company, and that there was no union problem or `Bob
Musser' problem in San Bernardino " This evidence falls
far short of proving the allegations A broad jump would
be necessary to infer from the words attributed to Bennen
the allegation contained in the complaint Kramer further
testified that Bennen told him that he (Bennen) had
threatened Musser with a move of the cake and cookie
routes if the harassment didn't stop This testimony I do
not credit Bennen was a member of Musser's Local and
covered by the union contract It strains credulity that
Bennen would have made such a provocalive statement to
Musser and Musser made no mention of it in his
testimony Furthermore, even had such a rash statement
been made by Bennen, he did not have the authority to
Sanitation Supplies Garage Supplies Stationed out Expense, Other
Selling Expense, all the repair accounts as well as Office Telephone
etc etc Look at every cost and find a way to cut it by at least 10%
(3) We ask that you have a pencil note on Arthur Cushman s desk
by Monday October 25 outlining your plans for implementing this
program
(4) We ask that you have a pencil note in Arthur Cushman s hands
by Friday October 29 indicating that all parts of the program have
been implemented and the goals have been achieve d In addition to this
program we are requiring that all routes with weekly average sales of
$900 or under be immediately studied and proper steps toward
elimination or consolidation be taken promptly with the requirement
that as of November 15 1971 we shall have no route in any plant with
average sales of less than $900 If a route is nearly at $900 and growing
fast in a new area we would of course expect you to approach this
intelligently There is no need to restate the reasons for these programs
They are self evident There is no reason to rest ate what s being clone
with the General Office staff or executive salaries You are acquainted
with that and you may be assured that these steps have been taken The
whole company is bearing this pressure We ri alize that it may be
unfair to those few plants who have turned in an outstanding
performance during this time and know that thi y will do their part
While such a program is most unpleasant be assured that we expect
this to make this company leaner, stronger and better in a very short
period of time We sincerely appreciate the fine iesponse this program
has had with everybody
/s/
cc Divisional Vice Presidents
R E Grant
G P Turci
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carry out such a threat and it could not possibly have been
coercive to either Kramer or Musser In the absence of
evidence that Bennen had some authority or influence in
the divisions involved, his comments were his own
appraisal of the situation and not a statement of company
policy or intent Cf Mississippi Tank Company, Inc, 194
NLRB No 156 There is no proof in the record that
McCallister ever told any employee that the transfers or
layoff had been (or would be) effected because of the
Union or because the employees had engaged in protected
concerted activities At the time of McCallister's conversa-
tion with Stassi, Stassi was a supervisor
Section 8(a)(3) prohibits discrimination in regard to
tenure or other conditions of employment to discourage
union membership Under the words of the statute there
must be both discrimination and a resulting discourage-
ment of union membership In this situation there was
neither It has long been established that a finding of a
violation under this section turns on the employer's
motivation Under the evidence in this case I find that the
Respondent's motivation for the layoff of one employee
and the transfer of six other employees from the Pomona
depot was solely economic 7
Upon the basis of the foregoing finding of fact and upon
the entire record in the case, I make the following
CONCLUSIONS
1 The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Respondent is a labor organization within the
meaning of Section 2(5) of the Act
3 The Respondent has not engaged in the unfair labor
practices as alleged in the complaint
RECOMMENDED ORDER8
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, as amended
It is ordered that the complaint issued herein against the
Respondent, American Bakeries Company, Langendorf
Bakeries Division , be, and it hereby is, dismissed
7 Burns Ford Inc 182 NLRB 753 Bassett Furniture Industries of conclusions and recommended Order herein shall as provided in Sec
Georgia Inc 188 NLRB No 133 Eastman Kodak Co 194 NLRB No 27 1 02 48 of the Rules and Regulations be adopted by the Board and become
8 In the event no exceptions are filed as provided by Sec 102 46 of the its findings conclusions and order and all objections thereto shall be
Rules and Regulations of the National Labor Relations Board the findings deemed waived for all purposes