Bakery and Confectionery Wkrs. Locals 24 & 119

National Labor Relations Board - Board Decisions

Mar 6, 1975

216 N.L.R.B. 917 (N.L.R.B. 1975)

BAKERY & CONFECTIONERY WKRS ., LOCALS 24 & 119 917
Bakery and Confectionery Workers International
Union of America , Local Unions 24 and 119 and
Food Employers Council , Inc. Case 20-CB-3084
March 6, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, KENNEDY,
AND PENELLO
On May 24, 1974, Administrative Law Judge Allen
Sinsheimer , Jr., issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and a supporting brief, the Charging Party filed
cross-exceptions and a supporting brief, and the
General Counsel filed limited cross-exceptions. The
General Counsel and the Charging Party also filed
supplemental briefs.
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
only to the extent consistent herewith.
The Administrative Law Judge decided in the
instant case , at a time prior to the Supreme Court's
decision in Florida Power & Light Company v.
L B. E. W., Local 641, 417 U.S. 790 (1974), that the
following facts established that the Respondents
herein had violated Section 8(b)(l)(B) of the Act by
threatening to discipline five bakery managers of
Albertson's, Inc.,' for working behind a picket line
set up in support of another union's strike.2 These
bakery managers were all members of the Respon-
dents. The bakery managers normally spent, prior to
the strike, about 45-50 percent of their time
performing rank-and-file production work. The
remaining portion of their time was spent performing
supervisory work. During the strike these bakery
managers continued to perform both supervisory and
rank-and-file functions. It appears from the record,
however, that the proportion of rank-and-file work
performed by at least some of these bakery managers
i Albertson's, Inc ., is a member of the Food Employers Council, the
Charging Party herein.
2 That the picket line was established in sympathy for another union's
dispute does not, in our view ,' alter the application of Florida Power & Light
Co., supra For a somewhat analogous holding , see Local 12419, Internation-
al Union of District Sg United Mine Workers ofAmerica ( National Grinding
Wheel Company, Inc.), 176 NLRB 628,630 (1%9), a can arising under Sec.
8(bXIXA), where the Board did not draw a distinction between a direct
strike and a sympathy strike in evaluating a union's obligation under a no-
strike clause.
3 The Administrative Law Judge concluded that, while some of these
bakery managers asserted that they did not do any more production or
nonsupervisory work during the strike than before because they were not
turning out as much merchandise , "it may be that they did in fact perform
somewhat more nonsupervisory work."
4 The nature of the threats indicated generally that "working" behind the
picket line violated the respective constitutions of the Respondents . In this
regard we note that the Administrative Law Judge concluded that the
216 NLRB No. 150
increased during the strike.3 The bakery managers
were all notified, either by telegram or personally by
union representatives, that their continued work
behind the picket line would give rise to internal
union sanctions.4
The facts of this case clearly fall within the purview
of the Board's recent decision in Chicago Typographi-
cal Union No. 16 (Hammond Publishers, Inc.), 216
NLRB No. 149 (1975).
In Hammond the Board decided, in view of the
Supreme Court's decision in Florida Power & Light,
that a union violates Section 8(b)(1)(B) of the Act
where it disciplines supervisor-members who per-
formed substantially only supervisory functions and
only a minimal amount of rank-and-file work during
a strike. In so deciding, the Board looked to the
reasonably foreseeable effect of the union's discipline
on the supervisor-member's performance of his
8(b)(1)(B) duties rather than to an evaluation of the
union's purpose in imposing the discipline. The
Board concluded, under this analysis, that the
determinative factors were the nature and amounts
of the work performed by the supervisor-members
during the period for which the discipline was
imposed. Therefore, because the supervisor-members
had performed substantially only supervisory func-
tions and only a minimal amount of rank-and-file
work, the Board concluded that the union's disci-
pline in Hammond violated Section 8(b)(1)(B) of the
'Act.
The facts of the instant case, while governed by the
same rationale employed in Hammond, require that
the complaint herein be dismissed. This follows since
the supervisor-members in the instant case, unlike
those in Hammond performed much more than a
minimal amount of rank-and-file work during the
strike.5
In sum , due to the extent of the rank-and-file work
performed by the supervisor-members herein and
consistent with our decision in Hammond the
complaint in the instant case should be dismissed.6
bakery managers were threatened "for continuing to cross a picket line and
work for their Employer."
S As previously discussed , the supervisor-members spent at least 50
percent of their time performing rank-and-file work during the strike.
6 We find no merit in the contention that the Union's threat to fine these
supervisors constitutes a violation of Sec. 8(bx1)(B) because of the presence
of a no-strike clause in the applicable collective-bargaining agreement
between Respondents and Albertson 's, Inc. The rule of National Grinding
Wheel Co., supra, an 8(bXIXA) case, is inapposite. We are not here
concerned , as we were in National Grinding Wheel, with the proper
application of the Allis-Chalmers Mfg. Co. 8(bXIXA) test (388 U.S. 173
(1962)) of balancing legitimate union interest in maintaining strike solidarity
against the freedom of employees to refrain from engaging in concerted
activity. The Act excludes supervisors from its definition of "employees,"
and the issue here is thus not one of whether the supervisors, as individuals,
are protected or unprotected vis-a -vis union restraint of Sec. 7 rights. The
existence or nonexistence of a no-strike clause is, in our view , not relevant to
the only issue here present ; i.e., whether the employer, under a different
(Continued)
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER FANNING, concurring:
I concur only in the result. I do not, however, agree
with my colleagues ' rationale in reaching that result
to the extent that it implies a different result would
be reached had the supervisors performed "sub-
stantially only supervisory functions." As I indicated
in my dissenting opinion in Chicago Typographical
Union No. 16 (Hammond Publishers, Inc.), 216 NLRB
No. 149 (1975), and for the reasons set forth therein,
the performance of any rank-and-file function will
place subsequent union discipline of the supervisor-
member outside the ambit of Section 8(b)(1)(B).
Furthermore , in the instant case , as in Hammond, I
need not reach the question whether union discipline
of a supervisor-member who performs only supervi-
sory functions behind a legal picket line constitutes a
violation of Section 8(b)(1)(B ). I again note that the
operative test , as I read the Supreme Court's decision
in Florida Power,7 is whether it is reasonable to
conclude that the future manner in which the
disciplined supervisor performs his or her grievance
adjustment or collective-bargaining functions on
behalf of the employer will be impaired by the
union's discipline.
section of the Act-Sec. 8(bXIXB)-is coerced in the selection of its
bargaining representatives . Those threatened with union discipline here are
supervisors and, therefore , not accorded the protection of Sec. 7 of the Act,
as were the rank -and-file employees involved in National Grinding Wheel
Company. No sensitive balancing of employee rights with union rights is
required in an 8(bXI)(B) case but rather , as indicated, an inquiry as to
whether the particular strictures of the provisions of Sec . 8(b)(IXB) have
been transgressed.
r 417 U.S. 790 ( 1974).
DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER , JR., Administrative Law Judge: The
hearing in this proceeding was held at San Francisco,
California, on March 12 and 13, 1974. On February 8,
1974, a complaint' and notice of hearing issued , alleging
that Respondent Locals 24 and 1192 violated Section
8(b)(IXB) of the Act by threatening to fine, expel,
blackball , or otherwise discipline five alleged supervisors of
the Employer , Albertson's, Inc.
The issues appear to be (1) whether certain persons
alleged to have been threatened with fine, expulsion,
blackball, or other disciplinary action are supervisors
i An initial charge was filed on December 17, 1973, and a first amended
charge on December 27, 1973.
2 The complaint was withdrawn as to Local 85 at the opening of the
hearing pursuant to stipulation.
3 Certain amendments to the complaint and answers were granted at the
within the meaning of the Act ; (2) whether the Respondent
Unions were aware of their supervisory status , if they were
supervisors , and whether such awareness would be materi-
al; (3) whether said persons were threatened with the
aforesaid action as supervisors ; (4) whether the alleged
threats, if any, were merely statements of normal conse-
quences from resultant nonmembership because of super-
visory status; (5) whether the persons involved dealt with
grievances as representatives of management and, if so, the
extent thereof; (6) whether during the strike they per-
formed both supervisory and nonsupervisory functions and
the extent of either ; and (7) whether, under all the
circumstances , the notices and statements directed to these
persons were violative of Section 8(b)(1XB) of the Act.
Upon the entire record , including my observation of the
witnesses, and after due consideration of the briefs of the
General Counsel , the Charging Party, and Respondent
Local 24 and the stated position of Respondent Local 119,
I make the following: 3
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE CHARGING PARTY AND THE
EMPLOYERS
The Food Employers Council, Inc., a nonprofit corpora-
tion , is a voluntary association of employers engaged in
retail sales of groceries and related merchandise. The
Council has existed for the purpose of representing its
employer-members, including but not limited to Albert-
son's, Inc., herein called Albertson 's, in collective bargain-
ing and the negotiating and administering of collective-
bargaining agreements with various labor organizations,
including Respondent Locals 24 and 119 . Albertson's, an
Idaho corporation with headquarters in Boise , Idaho, at all
times material herein has been and is engaged in the retail
sale of groceries and related merchandise throughout the
western United States, including California , Washington,
and Oregon. During its past fiscal year , within the State of
California, Albertson's sold goods valued in excess of
$500,000, and during the same period, purchased and
received goods valued in excess of $50 ,000 directly from
points outside the State of California. I find that Albert-
son's is and has been at all times material herein an
employer engaged in commerce and in operations affecting
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Bakery and Confectionery Workers International Uni an
of America, Local Unions 24 and 119, herein called
Respondent Union 24 and Respondent Union 119, are
labor organizations within the meaning of the Act.
commencement of the hearing . One alleges that Respondent Local 119 on
February 12, 1974, cited Daniel Ingwerson to appeal before its executive
board to answer charges relating to his refusal to honor the Butchers picket
line.
BAKERY & CONFECTIONERY WKRS ., LOCALS 24 & 119 919
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Both Respondent Union 24 and Respondent Union 119
are parties to separate contracts negotiated on behalf of
Albertson's by the Food Council. One deals with employ-
ees of Albertson's in the East Bay Area of San Francisco,
and the other in the Peninsula Area. The affected persons
are currently employed by Albertson's at five of Albert-
son's stores , three covered by the contract with Local 24
and two by the contract with Local 119.4
These contracts refer to the term "foreman" with a
specified wage , and it is admitted that there are persons
receiving such wage under the contracts.5 However, the
Unions contended that certain such persons, called
"Bakery Managers" by Albertson' s, were and are working
foremen and not supervisors within the meaning of the
Act.
Respondent Union 119 asserts the issue is whether or not
these persons are supervisors .6 However, Respondent
Union 24 in its brief "concedes that its three involved
members, namely, Carlo Galli, Dane S . Cutting and Leroy
Cordova, were most probably performing functions in
connection with the direction of work immediately prior to
the strike which would include them within the definition
of 'supervisors' as defined in the Act." Respondent Union
24 then contends that the record does not support a finding
that any of the three were participating in collective
bargaining or the adjustment of grievances and that the
record supports a finding that all three were required to or
did rank-and-file work ordinarily done by nonsupervisory
employees during the strike.
For a period of years, the particular persons involved
were classified by the Employer, Albertson's, as "Bakery
Managers ." 7 While Business Agent Rose of Local 24
denied ever hearing such term prior to the strike, it appears
that the "Bakery Managers" bore said title or insignia on
their uniforms . Each of the "Bakery Managers" described
himself as such . Dave Cutting credibly testified as to a
conversation with Rose on December 6.
4 Albertson 's has 22 stores throughout the entire area. Each has a "store
director" (store manager) in charge.
5 The contract with Respondent Union 24 provides in sec. 1:
(a) Membership in the Union on or after thirty (30) days following
the beginning of employment of employees covered by this Agreement,
or the effective date of this Agreement , whichever is later, shall be a
condition of employment to the extent consistent with law.
Sec. 3(a) specifies an hourly rate for all steadily employed workers and
lists, under classification "Foreman ," a top rate of $5.62 as of 7/1/73 and
$5.925 on 7/ 1/74. It also provides:
(The wage differential for foremen shall be 32 cents per hour above
the wage scale for ovenmen and doughnuxers (wage differential shown
in wage rate above).) This differential shall apply only to men who
actually perform the duties of a foreman . It is not intended to apply to
men currently receiving the wage scale of foremen but not performing
the duties of a foreman . In shops where an employer is working on the
premises and is performing the duties of a foreman , there shall be no
other foreman required.
The contract with Respondent Union 119 provides for membership in the
Perry says, "I see you're still working," and I said,
"Well, sure." He says, "Do you know that the only
bakery managers working for Albertson's is yourself
and Carlo Galli and that you're a damned fool," and I
told him, "I don't think that the only bakery managers
that are working is myself and Carlo Galli." [Emphasis
supplied.]
Russell Kortlaver , bakery merchandiser in charge of all the
store bakery departments , credibly testified concerning a
phone conversation with Rose on December 6:
He returned the call approximately 10:30 in the
morning, and he stated that no way would those bakery
managers be allowed to work in any of our shops; and,
if they did cross the picket line, they would be
blackballed from the Union, lose all their exemptions
and all their benefits that they would have coming to
them. [Emphasis supplied.]s
It is also difficult to believe that Rose did not see the name
"bakery manager" at any time. I accordingly conclude and
find that Rose was aware of the term "bakery manager."
Commencing about midnight December 2 and continu-
ing until about December 19 or 20, 1973, Local Unions of
the Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, referred to herein as the
Butchers, engaged in an economic strike against Albert-
son's and some other members of the Food Employers
Council. About December 5, the Butchers began picketing
Albertson's San Francisco Bay Area stores, including those
here involved.
About December 3, Albertson's Bakery Merchandiser
Russell Kortlaver contacted each of the persons whom he
described as bakery managers, including all those involved
in the charge herein, namely, Ingwerson, Maldonado,
Galli, Cutting, and Cordova, and informed each that, as
supervisory personnel, he was expected to work during the
course of the dispute with the Butchers Union .9
Membership in the Union is required by the contracts
between Albertson's and the Respondent Locals as to all
job classifications referred to therein. This membership
Union of all employees covered by the agreement. It also provides in sec.
2(e):
There shall be a foreman covering all working shifts where there is
not a working owner operator.
In sec . 4 under "Steady Employees ," it lists "Head Foreman-Instore and
Restaurant Bakery" at a rate of 60 cents an hour higher than ovenmen, the
next category. Sec. 4 also provides:
On days when the Head Foreman is not scheduled to work, and on
which days more than two other production employees work, the
Employer will designate one employee so working as ,journeyman-m-
charge, that employee to receive an additional twenty-five (25) cents
per hour over the rate of Ovenman.
6 Referring in particular to its involved members Daniel Ingwerson and
Eugene Maldonado.
r According to Ingwerson and Maldonado, since they started 7-1/2 years
ago and 4 years ago, respectively . Ingwerson during that time worked as a
bakery manager in stores underjunsdiction of both Locals 119 and 24.
8 On cross-examination , Kortlaver testified Rose did use the words
"bakery manager."
9 Kortlaver had received a letter from Gerald Rudd , an Albertson's
executive, that the bakery managers were to work in the event of a Butchers
strike.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may also entail certain benefits with respect to health and
welfare , pensions, etc.
B. Supervisory Status
Galli, Cutting, and Cordova at all times relevant and
material have been members of Respondent Local 24 and
classified as "foremen" under the current contract, and as
"Bakery Managers" by Albertson's. The bakery depart-
ment employee complements consist of between 10 and 16
persons divided in almost equal proportions between sales
and production personnel . The, sales personnel are not
members of either Respondent herein but appear to be
members of Retail Clerk local unions . According to the
credited testimony of Russell Kortlaver and each of the
foregoing "bakery managers," they have the authority to
hire and fire employees , assign work, ' prepare work
schedules , train new hires, assign overtime , issue written
warnings , order raw materials , and handle work-connected
problems either with the employees directly or with the
Respondent's business representatives. All in fact assign
work, prepare schedules, train new hires, assign overtime,
order raw materials, and handle work-connected problems.
Written warnings have been issued by Cutting and Galli.10
Each has hired employees . Galli fired an employee.
Kortlaver estimated that normally "bakery managers"
devoted 45 percent of their time as bakers and 55 percent
of their time as supervisors . Varying estimates were made
by the "bakery managers" as to how they spent their time.
It appears that Kortlaver's estimate is reasonably accurate
and I am accepting it. It is clear from the uncontradicted
testimony in the record, which I credit, of the foregoing
witnesses, that Galli, Cutting, an4 Cordova are supervisors
within the meaning of the Act.
The same is also true of Ingwerson and Maldonado (who
were members of Local 119) as to their functions.
Ingwerson also issued warning notices and hired and laid
off employees . Maldonado has hired employees and
terminated one. I accordingly find that Ingwerson and
Maldonado were and are supervisors within the meaning
of the Act.
C. The Work Status of Ingwerson and Maldonado
and Respondent Local 119's Relationship with them
during the Strike
Ingwerson was not scheduled for work on December 4
but worked on December 5, 6, and 7 , during which time he
hired and trained two employees. On December 6, he
received a telegram from Respondent Local 119 which
advised that , if he continued to work , Ingwerson would be
"subject to union discipline." 11 Thereafter, Ingwerson did
not work during the week of December 9 but returned to
the store on December 17. Also, by letter dated February
10 Cordova had only been a bakery manager for about 6 months at the
time of the hearing.
11 The wire read : "IT HAS Comm TO OUR ATTENTION THAT NOT
WITHSTANDING THE ExUSTANT [sic] OF A SANCTION PICKET LINE AT
ALBERTSONS NOT WITHSTANDING THE PROVISIONS OF THE UNION BYLAWS YOU
ARE CONTINUING TO WORK IF YOU CONTINUE TO CROSS THE PICKET LINES YOU
WILL BE SUBJECT TO UNION DISCIPLINE PURSUANT TO THE APPLICABLE
PROVISIONS OF THE UNION CONSTITUTION AND BYLAWS."
12, 1974, Respondent Local 119 cited Ingwerson to appear
before its executive board for alleged violations of the
International Union 's constitution.12
Maldonado worked on December 4, 5, and 6. On
December 6, Respondent Local 119's business representa-
tive, Rudy Marcelles, saw Maldonado and two employees
at the Fremont store bakery and told them they should
honor the picket line and they "better clean up and get
out." According to Maldonado, Marcelles then said: ".. .
You're not supposed to be crossing the picket line and if
you do continue to cross the picket line, you'll be fined, so
you'd better leave . . . ." Marcelles concluded: "There's
no sense in arguing with people here. All I know is I'm
telling you that you'd better get out or you're going to be
fined ....'' Maldonado also received the same December
6 telegram that had been sent to Ingwerson . Marcelles did
not testify and I am crediting Ingwerson 's testimony with
respect to the above statement by Marcelles threatening a
fine.
D. The Work during the Strike and Union Conduct
and Actions toward Galli, Cutting, and Cordova
On December 6, Kortlaver , who was concerned about
certain goods at the Salinas store , contacted Perry Rose,
the business agent of Local 24. According to Kortlaver,
Rose told him:
He returned the call approximately 10:30 in the
morning, and he stated that no way would those bakery
managers be allowed to work in any of our shops; and,
if they did cross the picket line, they would be
blackballed from the Union, lose all their exemptions
and'all their benefits that they would have coming to
them.
Rose testified at length but did not directly contradict
Kortlaver's testimony.
Rose, post, testified that he told Galli and Cutting they
would lose their contract fringe benefits as they would no
longer be covered by the contract if they were supervisors.
In the light of Kortlaver's essentially uncontradicted
testimony and my appraisal of the testimony of all the
other witnesses hereafter, I am crediting Kortlaver's
testimony as to Rose 's statements.
Galli worked throughout the strike along with one other
production and two sales employees. According to him, he
spent no more time on a proportionate basis doing
production work than he did before the strike. On
December 5, according to Galli, he received a phone call
from Rose and testified as follows:
Mr. Rose asked me what the hell I was doing and I
says, "We're working." He says, "Don't you know
17 The letter read:
We are charging you with violation of Article 12, Section 1, sub-
paragraphs one, two, three, six and eight of the Bakery & Confection-
ery Workers International Union of America , AFL-CIO Constitution,
adopted by the convention September 12, 1969.
You are hereby cited to appear before the Executive Board of Local
119 at 7 :00 p.m. on March 15, 1974 to answer the above charges. The
meeting will be h!ld in the offices of Local 119, 8055 Collins Drive,
Oakland, California.
BAKERY & CONFECTIONERY WKRS., LOCALS 24 & 119 921
there's a strike on?" I says, "Yes, but I also called the
office early this morning ." He says, "Well, get the
people to hell out of there . What have you got going
there?" I said , "Well, we have a full production going
now." He says, "Finish up and get your people out "
Galli continued to work on December 6 . Rose came to the
store, entered the bakery department and, according to
Galll, said:
I was doing the decorating . He walked in and he
said , "Carlo , what the hell you doing?" I said, "I'm
working." He says, "You have no business here." I
says, "Yes, I am supposed to be here working. I was
informed that I was supposed to report for work." He
says, "Well, you're a damned fool." He says, "You're
going to be thrown out of the Union ; you'll lose your
nefits, your health, your welfare, your pension." He
says, "You're a fool for working." He says, "Clean up
and get the hell out."
According to Galh , Rose further said:
"Well, what makes you think you should work?" I said,
"The company told me I was supposed to." He says,
"Well, why?" I says, "Well, because they gave me a
letter informing me that I was supposed to work." He
says, "Well, nowhere in our contract does it state that
you're a supervisor," and I said, "As far as I know, I'm
in management and I'm supposed to be here working,
doing my job."
Galli further testified:
Q. (By Mr. Oliver) Was there anything else said, if
you recall?
A. Yes, sir, he did say that I was going to be fined
and I told him, "Well, so what? The Company'll pay
for it." and he says, "Well, you're a fool." [Emphasis
supplied.]
Rose testified as to the December 6 conversation:
He [Galli] says, "Well," he says, "I have to work," and
he says, "I was told that I am a supervisor and, as a
supervisor, I am to work or lose my job." I said, "This
is not so ." One word led into another, and he wanted to
know what would happen if he continued as a
supervisor. I said, "You can not be a supervisor and
work under our agreement. " He said, "Why not?" I
said , "If you're a supervisor, you can not do any
physical work . If you become a supervisor, you will lose
your rights as to your pension, your health and welfare,
and your dental and your drug coverage ." He said,
"What will happen if I continue working? Will you fine
me?" I said, "I will not fine you. I can not fine you.
When I leave here, I will make out an entire report and
present it to our executive board." What will the fine
be, he wanted to know. I said, "I have nothing to tell
you as far as what action will be taken by the executive
board," and this, I did ....
Galli's testimony as to his December 5 conversation was
nbt contradicted since Rose testified only to a conversation
he had with Galli on the 6th.
As set forth, Rose did not deny a like conversation with
Kortlaver the same day. Further, Respondent Union 24's
secretary, Kerhmitt, admitted the Local's position was to
support the strike and that he had instructed the people to
honor the picket line. Rose also admitted that Kemmitt
had instructed him to tell the people "what the story was"
and also "what they were supposed to do." In view of the
foregoing, my appraisal of the witnesses and further
analysis, post, I am crediting the testimony of Galli as to
what Rose said to him.
Cutting also worked during the course of the strike and
received a phone call from Rose on December 5.
According to Cutting, Rose said "What the hell you doing
there," and, after inquiring if there was bread in the oven,
told Cutting "Well, finish baking off the bread and then get
out of there."
On December 6, Rose went to Cutting's store and told
him that he and Galli were the only bakery managers
working and that Cutting was "a damn fool." Rose asked
Cutting what he thought he could do by himself. Cutting
told Rose he had already begun hiring temporary replace-
ments. Cutting then testified as follows:
He says, "So the company's going to take care of you?"
I said, "yes." He said, "Well, would they be behind a
fine?" And I told him, "Yeah, they'd pay a $300 fine if
I was to receive one." He says, "Would they pay a $300
fine?" I said, "They'd pay even a $500 fine if I Was to
get one." He says, "Well, when the whole strike is over,
you'll have to go before the Board and they'll most
likely kick you. You will be fined. They'll most likely
kick you out. You will be fined, and there'll be no way
in the Bay Area that you'll be able to find work," and I
said, "Well, we'll just have to see."
Rose testified as to his discussion with Cutting on
December 6:
The first thing Mr. Cutting hit me with was his rights to
work, what do I want him to do. The company wants
him to continde working because he's a supervisor. I
says, "If you want to work as a supervisor, that's your
choice, but you are off of our contract." Well, he said,
"I can get work elsewhere ." I said, "You will not get
work elsewhere if you are not a member of Local 24
and you will not have the coverage that you're entitled
to under our contract." I said, "You may leave our
contract and get off of it and become a supervisor, but
as far as I'm concerned, without a valid Union card,
you will not work in any of my stores under my
jurisdiction, unless you are a member."
Cutting's testimony as to the December 5 conversation is
uncontradicted. As to the December 6 conversation, Rose,
although he testified he referred to elimination of coverage
(of fringe benefits) as a consequence of supervisory status,
admits he also threatened no work for Cutting elsewhere
without a union card. Rose also admitted his purpose in
seeing Cutting was to tell him to "get out of the store."
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the foregoing, although Rose sought to estabhsh that
he did not make certain threats, I am crediting Galli's
testimony and find that Rose did threaten him, particularly
by fine, expulsion, loss of benefits, and loss of future
employment. I also note the extent of the threat as to
future employment would exceed what could legally be
done.
Cordova worked on December 4 and 5, when he received
a call from Local 24 Business Representative Wake.
According to Cordova, Wake said the Butchers had gone
on strike and that Cordova could not cross the picket line
and, if he continued working, he would lose all his fringe
benefits. Wake denied threatening Cordova with a loss of
benefits but said he only advised Cordova that as a
supervisor he would not be covered under the contract.
Pursuant to Kemmitt's instructions, Wake's purpose was to
compel Cordova not to work. I am crediting Cordova's
testimony as in accord with that of other bakery managers,
as well as Kortlaver, and consistent with the pattern of
Respondent Union 24's conduct.i3
E. The Work of the Bakery Managers during the
Strike
The bakery managers, as set forth, regularly performed
both supervisory and nonsupervisory work. It appears that
Bakery Managers Galli and Cutting continued to work
throughout the strike, Galli supervising 3 employees and
Cutting supervising from 9 to 16 employees, and that each
also hired and trained from 3 to about 12 replacements.
Ingwerson hired two persons between December 5 and 7,
and both Ingwerson and Maldonado also continued to
supervise two or more persons until they ceased working
on December 7 and 6, respectively. Accordingly, those
bakery managers who remained performed supervisory
13 1 have noted Secretary-Treasurer of Local 24 Edward Kemmitt's
testimony
Q. All right What did you tell them, business agents?
A. I told them that we apparently had a problem here and told
them the position of the Union, that if Albertson's insisted on calling
these people or suggesting that they were supervisory people, that I
would then instruct them , meaning Mr. Wake and Mr. Rose, to tell
everyone that contacted them that if these people were supervisors,
they would not be covered under the collective bargaining agreement
and they would lose health and welfare and pension coverage.
While this may have been followed in part, I have concluded that more was
said by the union representatives.
u See fn. 15.
15 Galh worked throughout the strike with one other production and two
sales employees , when normally there were eight production employees. He
performed about twice as much production work because he was working
16 to 18 hours daily during the strike . Galli testified that proportionately he
performed about the same amount of production work during as before the
strike since he normally approximated about half a day in production. Galh
testified he was training and supervising the new nonunion help.
Cutting worked during the strike and in the beginning hued nine
temporary replacements (two bakery people and seven salesgirls). Normally,
16 persons work in the bakery . Cutting trained them all (as he also did
before the strike) and then oversaw their work . According to Cutting, prior
to the strike he spent 20 percent of his time in actual production and the
other 80 percent in checking merchandise, transferring people from one
project to another, etc. His production time increased to about 50 percent
the first couple of days of the, strike . Thereafter, his complement increased
to almost a full crew toward the end of the strike so that he had nine
salesgirls , plus three original bakers and four or five nonunion help. Then
functions during the strike.14 While some asserted that they
did not do any more production or nonsupervisory work
during the strike than before because they were not turning
out as much merchandise, it may be that they did in fact
perform somewhat more nonsupervisory work. However, I
do not consider that this alters my conclusion and finding
that the bakery managers who continued to work were
performing a substantial amount of supervision during the
strike.15
F. The Grievances Handled by the Bakery
Managers
As previously set forth and from record testimony, it is
evident that the bakery managers discussed certain matters
with employees, including assignments , tardiness, absence,
etc.; issued reprimands to them; and laid off or terminated
employees. To that extent, they participated in or were a
factor in grievance or incipient gnevances.16 They also
talked to union representatives, but with specified excep-
tions,17 such apparently involved hiring a person or general
conversation.
From the above, it appears that the bakery managers
could take certain supervisory action with regard to the
employees under them but, except for the reprimands and
matters mentioned, they did not participate in formal
grievances and arbitration proceedings. It appears that
Union Representatives Rose, Kemmitt, and Denk indicat-
ed that terminations, etc., would be taken up with
Kortlaver or the store directors. Rose testified he would
speak with a "pot washer" or any other employee or
bakery manager about a matter. Rose said money matters,
such as health and welfare, vacations, and sick leave, he
would take up with the store manager or Boise and not the
foreman since he was not equipped to handle it. Rose
Cutting watched new employees, supervised sales, etc. Cutting said his
production work was still a little more than before the strike but nothing like
the first days of the strike The first week , his daily total working time was
about 16 hours
Ingwerson , as stated, hired and trained two employees as bakers on
December 5-to 7, when he left apparently after receiving the union wire
threatening disciplinary action . He did not work from December 7 to 17
Maldonado worked on December 4, 5, and 6 . Following his conversation
with Marcelles, he left work until December 20. At the time on December 6,
as set forth, two other bakers were present
Cordova said he didn 't work after December 6 because there was a picket
line, he didn't want to work by himself, and he didn 't want to lose his
benefits
is The issuance of reprimands is referred to, supra Cordova testified as
to resolving employee complaints as to work schedules and temperature,
etc., which he endeavored to correct; so also does Ingwerson Cutting
testified, post, fn. 17, as to conversations with Union Representative Rose
17 Maldonado testified about a conversation with Union Representative
Marcelles concerning termination of Steve Allen as follows
Q. I see, and what was the context or what was the nature of the
conversation with Mr. Marcelles?
A. I told him that Steve Allen wasn 't doing his job and he didn't
seem to want to learn and that I was going to have to let him go.
Q. Did Mr. Marcelles say anything in response to your remarks?
A. He said, "Well, he's not doing his job ; let him go ." He said,
"Send him to me and I'll see if I can place him somewhere else."
Cutting testified he spoke to Union Representative Rose about Frank
Alcala, who either refused or didn 't show up for work to ask Rose to see
what he could find out . Cutting also said he called Rose to find out about
Wayne Gilbertson , who was late for work.
BAKERY & CONFECTIONERY WKRS., LOCALS 24 & 119 923
admitted contacting Cutting, Galli, and other "foremen"
(and not store directors) as to information concerning new
hires.
Bakery Merchandiser Kortlaver testified that minor
grievances , such as scheduling, tardiness , etc., would be
handled , written up , and reviewed with an employee by the
bakery manager ; Kortlaver also testified that, when an
employee is disciplined , the store director or manager
normally gets involved. Kortlaver also testified as to an
incident where he and Union Representative Rose agreed
to return a man to work who was discharged for tardiness.
Kortlaver did not consult the bakery manager prior thereto
but notified him of the man's reinstatement.18
Union Representative Wake of Local 24 testified he
would discuss minor problems if there were any with a
bakery manager or working foreman , but would go to the
store director about a serious problem.
From the foregoing, it appears that bakery managers
deal with some grievance matters but not all.
G. Conclusions
I have found above that the bakery managers were
supervisors within the meaning of the Act. I have also
concluded that such title was known to Union Business
Agent Rose . The contracts also indicate that these persons
were foremen . The Unions contend that they dealt solely
with the store director (manager ) (or Kortlaver) with
regard to the actual handling of grievances relating to
employees . Generally, this appears to have been the case as
to more serious matters . As set forth, certain matters are
first handled by bakery managers directly with employees.
Also, the union representatives may speak with bakery
managers from time to time.
The remaining issues are whether the union representa-
tives could legally make the threats as found (supra and
post) to the bakery managers for continuing to work during
the strike . There is no question and I find that the bakery
managers did not deal in collective bargaining . I further
find that the bakery managers did deal with individual
complaints of employees and did issue warning reprimands
to them . A question is whether their work during the strike
was such as could subject them to legal union discipline. I
have found that they continued to function as supervisors
during the strike.
I have found and am finding that Respondent Local 119
sent a telegram to Ingwerson and Maldonado threatening
is Kortlaver further testified concerning handling the matter of an
employee who was disciplined:
Q. And is it in your understanding is it the practice that the
Union will discuss on a primary level the matter with the store manager
before coming to you as the bakery manager?
A. No, I don't believe we do.
Q. What is the order, the policy of proceeding, the Union agent?
A. I believe the Union agent usually gives me a call on this type of
a grievance.
Q. First?
A. Yes.
Q. I see, and then what is the procedure?
A. Then well go in and talk to that individual.
Q. Do you ever consult with the store manager?
A. Normally, no. I feel that I can consult with the business agent
and well solve the problem.
Q. Do you ever send the business agent in to a store manager to
discuss a problem with him?
them with union discipline if they continued to cross picket
lines to work; that Ingwerson also was cited to appear
before the Union's executive board to answer charges
arising out of his crossing the picket line and continuing to
work; and that Union Representative Marcelles told
Maldonado he would be fined and lose benefits in the
Union if he continued to work. For reasons set forth, post,
I find that Respondent Union 119 by said conduct violated
Section 8(b)(1)(B) of the Act.
I have previously found that Union Representative Rose
threatened Galli and Cutting with fine, expulsion, black-
ball from employment at any shop represented by the
Union, and loss of benefits, and that Union Representative
Wake threatened Cordova with loss of all benefits,
including health, welfare, retirement, etc., if he continued
to work. For reasons set forth hereafter, I am finding that
Respondent Union 24 thereby violated Section 8(b)(l)(B)
of the Act.
Threats of fine or of subsequent illegal prevention of any
employment in a shop represented by the Union are clearly
improper if directed to an illegal object. The threat of loss
of benefits would be equally improper if so directed unless
it were clearly a separate and proper consequence of
supervisory status per se. While such might (possibly) be a
consequence of subsequent negotiation vis-a-vis bakery
managers, the contracts as they now exist do not
specifically refer to supervisors. Nor is their coverage by
agreement between Union and Employer prohibited per se.
I therefore conclude and find that all of the foregoing
threats, as found, were improper since directed to an illegal
object, namely, restraint and coercion of an employer in
the selection of representatives and supervisors who
perform duties which include the handling and adjustment
of grievances. I further find that such conduct for reasons
set forth, post, was violative of Section 8(bx1)(B) of the
Act.
The issue of the application of Section 8(b)(1)(B) to
supervisors who performed production work during the
course of a strike has been the subject of litigation. The
Board has found that such supervisors are protected under
Section 8(bx1XB) even though they perform production
work during the strike.19
In International Brotherhood of Electrical Workers, AFL-
CIO, & Local 134 v. N.LRB., 487 F.2d 1143 (1973), the
District of Columbia Court of Appeals (en bane 5 to 4)
reversed a Board decision so holding. So also did the Court
A. Not to a store manager. To a bakery manager, I will, yes.
Q. Do you have as you sit here today any knowledge of any
practice whereby business agents regularly resolve grievances or
consult on grievances with store directors or store managers?
A. Not that I know of.
19 See International Union United Automobile, Aerospace and Agricultural
Implement Workers of America (Pitt Processing Co.), 208 NLRB 107 (1974),
citing cases; Operating Engineers Local No. 501 (Anheuser Busch, Inc.), 199
NLRB 551 (1972); San Francisco Typographical Union No. 21, International
Typographical Union, AFL-CIO (California Newspapers, Inc. San Rafael
Independent Journal), 193 NLRB 319 (1971), and San Francisco Typographi-
cal Union No. 21, International Typographical Union, AFL-CIO (California
Newspapers, Inc. d/b/a San Rafael Independent Journal), 192 NLRB 523
(1971); International Brotherhood of Electrical Workers, AFL-CIO, and
Local 134, International Brotherhood of Electrical Workers, AFL-CIO
(Illinois Bell Telephone Company), 192 NLRB 85 (1971); and see also Toledo
Blade, 437 F.2d 55 (C.A. 6, 1971 ), enfg. 175 NLRB 1072 (1969).
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Appeals for the Ninth Circuit in N.L.R.B. v. Typographi-
cal Union, Local 21 [California Newspapers, Inc.], 486 F.2d
1347 (1973).
First, I note herein that (1) the bakery department
supervisors either were or would be substantially supervis-
ing employees during the strike as they did before the
strike; (2) they performed both supervisory and production
work prior to the strike; and (3) they did deal with matters
amounting to minor grievances.
In these respects , the pertinent facts may be distinguish-
able from those considered in the foregoing courts of
appeals decisions. In any case , I am bound to adhere to the
decisions of the Board until the Board has either
acquiesced in any adverse courts of appeals decisions or
been overruled by the Supreme Court or by subsequent
legislation.
Accordingly, I fmd that by its conduct, as set forth and
found above , Respondent Union 119 has violated Section
8(bx1)(B) of the Act. I also find that by its conduct, as set
forth and found above , Respondent Union 24 has violated
Section 8(bx1)(B) of the Act. I shall recommend remedies
accordingly.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents, set forth in section III,
above, occurring in connection with the operations of the
Employer described in section I, above , have a close,
intimate, and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in and
are engaging in certain unfair labor practices, I shall
recommend that each cease and desist therefrom and that
each take certain affirmative action which I find necessary
to remedy and remove the effects of the unfair labor
practices and to effectuate the policies of the Act.
Upon the basis of the foregoing findings and conclu-
sions, and upon the entire record in this case, I make the
following:
CONCLUSIONS OF LAW
1. Albertson's is an employer engaged in activities
affecting commerce within the meaning of the Act.
2. The Unions are labor organizations within the
meaning of the Act.
3. Carlo Gall, Dane S . Cutting , Leroy Cordova, Daniel
Ingwerson, and Eugene M. Maldonado at all times
material were bakery managers of Employer Albertson's
and as such were supervisors within the meaning of the
Act.
4. All of said bakery managers normally performed
both supervisory and production functions.
5. Those bakery managers who worked during the
strike continued to perform both supervisory and pro-
duction functions.
6. All of said bakery managers in the normal course of
their employment deal with matters in the nature of
grievances.
7. Respondent Union 24 has-violated Section 8(b)(1XB)
of the Act by threatening to fine, expel, blackball, and take
away benefits from Bakery Managers Carlo Galli, Dane S.
Cutting, and Leroy Cordova for continuing to cross a
picket line and work for their Employer , Albertson's,
during the course of a strike conducted by another union
against their Employer , Albertson's.
8. Respondent Union 119 has violated Section
8(b) (1)(B) of the Act by threatening fine, loss of benefits,
and union disciplinary action against Bakery Managers
Daniel Ingwerson and Eugene Maldonado , and by citing
Daniel Ingwerson to answer charges for crossing a picket
line and continuing to work during the course of a strike
conducted by another union against their Employer,
Albertson's.
[Recommended Order omitted from publication].