Banner Biscuit Co.

National Labor Relations Board - Board Decisions

Jan 19, 1965

150 N.L.R.B. 1133 (N.L.R.B. 1965)

BANNER BISCUIT CO. 1133
wages, hours of employment , or other terms and conditions of employment, and,
if an understanding is reached , embody it in a signed agreement . The bargaining
unit is:
All of our regularly employed drivers excluding all office clerical
employees , casual employees, guards , and supervisors as defined in the Act.
WE WILL NOT interrogate employees as to their union interests and activities in
a manner constituting interference , restraint, or coercion within the meaning of
Section 8 (a) (1) of the Act.
WE WILL NOT threaten employees with economic reprisals or promise them
economic benefits for the purpose of influencing their union activities or
sympathies.
WE WILL NOT in any like or related manner interfere with , restrain, or coerce
our employees in the exercise of their right to self-organization , to form, join, or
assist Drivers, Salesmen , Warehousemen, Milk Processors , Cannery, Dairy
Employees and Helpers Union , Local No . 695, affiliated with the International
Brotherhood of Teamsters , Chauffeurs , Warehousemen , and Helpers of America,
or any other labor organization, to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection , or to refrain
from any or all such activities , except to the extent that such right may be affected
by the provisions of Section 8 (a) (3) of the Act, as amended.
HEICK MOVING & STORAGE, INC.,
Employer.
Dated-------------------' By-------------------------------------------
(Representative ) ( Tit1e1
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Second
Floor, Commerce Building, 744 North Fourth Street , Milwaukee , Wisconsin , 53203,
Telephone No. 272-8600 , Extension 3860 , if they have any questions concerning
this notice or compliance with its provisions.
Banner Biscuit Co. and American Bakery and Confectionery
Workers International Union , AFL-CIO. Case No. 17-CA-
2313. January 19,' 1965
DECISION AND ORDER
On October 23, 1964, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, Respondent filed exceptions with a sup-
porting brief to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins]. _
The Board has considered the entire record in this case, including
the Trial Examiner's Decision and the exceptions and brief of the
Respondent, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
150 NLRB No. 111.
1.134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
r1'ursualit to ' Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders
that the Respondent, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
,The complaint, herein (issued April 24, 1964; charge filed October 10, 1963), as
amended, alleges that the Company has violated Section 8(a)(3) of the National
Labor Relations Act, as amended, 73 Stat. 519, by discharging Helen Allwood on
or about September 30_1963, and failing and refusing to reinstate her, because of
her union membership and concerted activities; and Section 8(a)(1) of the Act by
said alleged acts and by, interrogating and threatening employees in connection with
union activities. The answer denies the allegations of violation and alleges that
Allwood was discharged because she engaged in physical violence and arguments
with other employees, uttered abusive and derogatory remarks, sought to exercise
authority over others, causing employees to become upset and to quit, created dis-
sension and affected morale, improperly labeled merchandise in violation of work
rules, and spread false rumors about the Company's profit-sharing plan.
A hearing was held before Trial Examiner Lloyd Buchanan at Carrollton, Mis-
souri, on July 28 and 29, 1964. Pursuant to leave granted to all parties, briefs have
been filed by the General Counsel and the Company.
Upon the entire record in the case and from my observation of the witnesses, I make
the following:,
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
On behalf of the Company it was declared at the hearing, and I find, that it is a
Delaware corporation authorized to do business in the State of Missouri. It was
admitted and I find that the Company is engaged at its plant in Carrollton, Missouri,
in the manufacture of bakery goods; that it annually receives at said plant, from points
outside the State of Missouri, goods and material valued at more than $50,000, and
ships from the plant, to points outside the State of Missouri, goods and materials
valued at more than $50,000; and that it is engaged in commerce within the meaning
of the Act.
It was admitted and I find that the Union is a labor organization within the meaning
of the Act.
H. THE UNFAIR LABOR PRACTICES
A. The alleged independent violation of Section 8(aXl)
Most of the acts alleged to have constituted interference come within the proscrip-
tion of Section 10(b). The uncertainty of various dates as testified by the General
Counsel's witnesses itself introduces that proscription. With respect to interference
described by Allwood- as having occurred sometime in April,' it not being clear
whether given instances were beyond or within the statutory period, it cannot be said
that the General Counsel has in those instances sustained the burden of showing
denials of'the facts alleged. Thus no finding of violation will be based on Allwood's
testimony concerning interrogation and various remarks in February or an alleged
threat which she placed between the middle of February and the end of April, saying
that she thought it was in April. Since the cutoff date is April 10, and the election
was held, on May 1, exactly 3 weeks later, it would uncertainly 2 appear that a con-
versation", between herself and Anderson, at that time vice president and general
manager and now . president of the Company, about 2 or 3 weeks before the
election falls within the statutory period. As much may be said of remarks by Ander-
son to employee D. J. Winfrey, which the latter placed about 2 weeks before May 1.
1 All of these events occurred in 1963.
2 Referring to various meetings In an attempt to fix dates, the General Counsel declares
that "it is clear they were held after April 10th." It Is not at all clear . While I am
quite willing to recognize his acumen in general , he does not Indicate the basis for his
perspicacity In this connection.
BANNER BISCUIT CO. 1135
It is.not altogether clear that these remarks constituted a threat. But in view of the
other findings herein and to minimize the area of dispute, no finding of violation will
be based on this alleged threat or on Anderson's question as to the number who
attended the union meeting the night before and his indicated knowledge of the
meeting.
Anderson denied that he asked the question and that Allwood replied that the meet-
ing was at her home. But on the question of company knowledge of her union activi-
ties, we can consider the fact that she was the union observer at the election and that,
as she was sobbing the next morning, Anderson told her not to take the loss so hard.
If Allwood felt disappointed, even humiliated, there is no question but that the Com-
pany knew of her leading role in support of the Union.
I do find violation in Anderson's asking Allwood, after he had called her into his
office about 2 days before the election, what she wanted. Such a question under the
circumstances tends to limit employees' freedom of choice and suggests an offer of
benefit as a substitute for selecting the Union. The threat by McNiece, plant superin-
tendent and now vice president, to Mrs. Winfrey in August (alleged as in the first
part of May) that the best thing for her and her husband would be to leave the Union
alone, and his questions whether she or her husband had seen the union man in town,
tend to interfere with employees' protected concerted activities and constitute unlaw-
ful threat and interrogation as alleged. As Mrs. Winfrey sought to avoid the discus-
sion, McNiece's statement was no mere expression of opinion without threat.
B. The alleged violation of Section 8(a)(3)
Witnesses testified in suspiciously general terms, or without such details as would
indicate transgression, to a constant bickering after the election on May 1, and up to
the time of Allwood's discharge on September 30. But when they undertook to
describe such 5-month bickering, they quite as often described a converse situation:
so far from arguments and bickering, they were allegedly upset because Allwood said
nothing to them; she allegedly talked and whispered to some of the others, giggled,
and then would look up so that these complaining witnesses felt uncomfortable and
thought that she was talking,about them.
Had the evidence shown that Allwood was in fact talking about various employees
and causing trouble other than annoyance over her union activities which many did
not favor, there might be warrant for sustaining the Company's discharge. But to
base the discharge on the "feeling" that she was talking about others is to claim an
all too convenient but inadequate defense.
Thus we were regaled with such trivialities as employee Bitzenberg's testimony that
on one occasion Allwood and her brother changed places on the line, "which they
weren't supposed to do"; Floorlady Evans noticed this after she had come up to ask
Bitzenberg about the cookies, and asked, "What is going on over there?" to which
Bitzenberg replied, "I don't know. I think they just changed for a few minutes"; 3
after Allwood and her brother had been told to get back, Allwood giggled and
whispered to others; and when another girl asked Bitzenberg what this had gained her,
the latter, not denying that she had in fact done it, replied that she thought that All-
wood said that she had told the supervisor; she now told us that she had not.
Bitzenberg referred to "several small instances that occurred, just little minor things
that ordinarily wouldn't seem to amount to too much, but it was just to get under [her]
skin and cause trouble." One such instance involved a stool which had been standing
behind Allwood, who had not been using it; Bitzenberg asked another girl to get her
the stool and she used it awhile; when Bitzenberg got up from the stool, Allwood asked
the other girl to return it, and Bitzenberg said that she was not through with it, suggest-
ing that Allwood use a chair which was available. We were spared the denouement of
this momentous situation: whether the stool was returned or whether Allwood used
the chair, we shall never know. We were not spared Bitzenberg's conclusion: "She
wanted that particular stool I had just to start trouble." Bitzenberg also told us that
there are arguments all the time, before and since Allwood's discharge, over stools.
If since October 1, as we were repeatedly told, the girls sing, laugh, and have fun
while working (there are some arguments but, according to employee Hill, also called
by the Company, not as many as before), their earlier state of being mad at one
another appears to have been a reciprocal one. (General Counsel's witnesses testified
that the atmosphere did not suddenly change after Allwood was discharged.) If
Allwood's "friends" did not like something, she allegedly would "cause some disturb-
8 The suggestion in these words that Bitzenberg was trying to minimize the situation
as she spoke to Evans is contrary to her patently biased and partisan manner as she
testified and to her volunteered statement that they "weren't supposed to" do that.
775-692-65-vol. 150-73
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance over it and say it wasn't fair and she would get something done about it." This
latter suggests at least the possibility that on occasion there was merit to Allwood's
position. If some of the Company's employee witnesses objected to Allwood's going
over the floorlady's head, they were assuming a concern which the Company itself
has not declared.
Citing a series of incidents, which, we shall consider, McNiece depicted a contrast
between timorous silence as the employees feared Allwood's wrath, and a virtual
jubilee atmosphere on Saturdays, when she did not work, and after her discharge. On
the other hand a great deal of,the testimony by employees called by the Company is
quite to the contrary: They emphasized their discomfort as they thought that Allwood
was whispering about them, a far cry (no pun intended) from arguments or other
fear-producing activity.
Whatever the Company's attitude toward Allwood as leader of the union adherents
5 months after the election (we recall McNiece's threat in August, and employee
Hedrick testified to Anderson's reference in July to the "union trouble"), the difference
between the pro- and anti-union employees was reflected in a running feud Whatever
the relationship among the employees before, it was clearly exacerbated after the
election. On the one hand, as we have seen, Allwood took the loss very hard; on the
other, the antiunion employees maintained their attitude. The result was that they
spoke to one another "just when [they] were fussing." If Anderson had hoped that
they would now be "a happy family," infra, he was to be disillusioned. Allwood was
not ready to "forget" the Union.
As the Board has recently reiterated, "an employer who knowingly acquiesces in
the exclusion of employees from its plant by an antiunion or rival group will be
regarded as having constructively discharged such employees in violation of Section
8(a)(3)."4 How much clearer the violation where the employer affects the dis-
charge, citing "dissension" among the employees! The Company's efforts to show that
there was less "tension or fussing" after Allwood was discharged underscores its
reliance on an improper defense. We are told that employees were no longer "afraid"
to • discuss various conditions. We must distinguish between lawful, if annoying,
assertiveness in connection with protected concerted activities, which Allwood clearly
exhibited, and an attitude which manifests itself in poor work performance and with
which she is not charged.
Anderson admitted that he had indicated opposition to this Union, but placed his
various statements and meetings, which he called, prior to the statutory period except
for a meeting with the employees on April 30, which he called to tell them why they
did not need a union. Thereafter, apparently on May 2, after he attempted to console
Allwood, he made a speech to all of the production employees in which he told them
that he would not permit supervisors or rank-and-file employees to try to find out how
anyone had voted; he urged them to forget the election, get back to being a happy
family, and make cookies. It appears from Anderson's remarks that even before the
election all had not been sweetness and light although he did not at this time place the
blame on Allwood. This is in marked contrast to the efforts noted to indicate a lack
of harmony (we recall, in fact, that there was no singing at all) and a constant bicker-'
ing which began after the election and continued until Allwood's discharge. •
After thus describing his speeches and remarks to Allwood, Anderson testified that
on September 30, after the decision had been made to discharge this 8-year employee
who ranked sixth in seniority among all of the employees, he asked her to resign;
when she refused, he said that he would have to let her go, giving as his reasons the
turmoil she was creating, loss of production, and the bickering that was going on.
Asked at the hearing to state the reasons for the discharge, he added that, when All-
wood attempted to adjust certain bars on September 25 (according to a posted rule, this
was to be done by the maintenance man), he "figured this was it." Despite her
alleged shortcomings, serious enough to warrant her discharge, Anderson testified that,
although he spoke with Allwood frequently and casually throughout this period, only
once did he complain to her about anything. This was on August 1, in connection
with her criticism of the profit-sharing plan as applied to employee Hill, to which we
shall refer infra. Yet Allwood was discharged without further criticism or reprimand.
This contrasts with the 1-day suspension given Bitzenberg for stealing cookies and
the reprimand given Winfrey for the same offense.
Before further detailing the pros and cons, we should note at least a few items
which unfavorably reflect on Anderson's credibility and thus on his attempt to justify
the discharge. In explanation of his charge of bickering, he testified that girls would
not talk to each other for weeks on end. Challenged to explain his awareness of this,
he first referred to a "sixth sense" and then testified that he could not say who was not
Brewton Fashions, Inc., 145 NLRB 99.
BANNER BISCUIT CO. 1137
talking to whom but that reports had been made to him by several supervisors; as he
proceeded to name these, he concluded that all of the supervisors had complained to
him about Allwood causing trouble in the plant, although as we have just seen he never
spoke to her about this or any of these many complaints.
Again, Anderson appeared at first to be quite uncertain as to who first told him about
Allwood spreading rumors concerning the profit-sharing plan. But having named
McNiece, he continued with full assurance to relate what McNiece told him in this
connection. Further, having testified that one of the reasons for discharging Allwood
was that employees had left and were going to leave because of her harassment, he
later told us that there were no more than the average number of quits between the
election and the date of Allwood's discharge. Hardly persuasive was Anderson's
subsequent attempt to recover as he testified that some oldtimers were_ among those
who had quit; his conclusion or deduction was that these left "to collect profit sharing"
and to avoid "the wrangling that was going on." Thereafter, as he named several
of these who had quit, he testified variously that, while he would not say that each of
them had mentioned Allwood, he knew whom they were talking about; then that each
had mentioned Allwood, and finally that all but one had. Although he cited these
quittings as instances of employees who could not stand the bickering which he
charged to Allwood, he testified also that some of them quit after her discharge!
With respect to one of these McNiece, also describing the happy situation which
prevailed after Allwood's discharge, testified that Calvert three or four times in June
or July threatened to quit. She apparently did quit in October. Interestingly, McNiece
injected a new note, not sounded by Anderson, with the statement that after Anderson
told Allwood that she was discharged, she declared that she was going to quit anyway.
To counsel's credit, this was not thereafter pursued by the Company, and I do not
credit it. McNiece also, and faithfully, cited an incident on September 25. But
while he repeated reference to an adjustment by Allwood, his version was that Evans,
the head floorlady, reported to him that Allwood had spent 5 minutes talking to
another employee while pretending to adjust a jig; McNiece "studied for a few
minutes" and then spoke to Anderson about it, recommending that Allwood be dis-
charged, and action was taken on September 30..
While Anderson did not include it when asked to list the reasons for discharging
Allwood, another alleged reason was that Allwood and another employee (these
being the two who discussed it with Anderson; other employees were as aware of it)
"would let" some 2,500 pounds of cookies go through without the necessary flavoring.
Allwood mentioned this incident during her talk with Anderson on August 1. Accord-
ing to Allwood, she told Anderson on August 1 that she and another employee had
noted the absence of flavoring and had reported it to Stanley, a forelady who was
temporarily on that line; that Stanley had told the machine operator and the cream
mixer, and that the latter had replied that the flavoring was in it. -
McNiece also charged Allwood with dereliction in this connection. In marked
contrast to the alleged seriousness of Allwood's role in permitting these cookies to go
through (she was here presumably expected to be officious indeed and to go over the
head of a leadman or supervisor), is the fact that not until he was cross-examined did
McNiece state that he later told the mixer to be more careful-and this after customers
complained about the 2,500-pound batch. Anderson testified that after the complaints
were received, he went over this and other production problems with all of the super-
visors and foreladies. Despite this and testimony by Mrs. Winfrey and Sprinkle,
another employee, that this occurred in June and that Stanley was informed at the
time, the latter testified that she did not recall the incident and that no one had ever
told her about it; she first heard of it at this hearing. The contradictions mount as
McNiece testified that he himself mentioned this to Stanley.
During this same discussion of August 1, Allwood mentioned to Anderson that she
had heard that she was charged with cussing out DeMint, another employee on the line.
(Whatever may be said concerning Allwood's mentioning these matters, it is clear that
Anderson did not consider it necessary to do so.) She explained that DeMint was
putting cookies on the wrong side of the conveyor; Allwood asked her to put them on
the correct side and, when DeMint gave-her a blank look and kept on as she had
before, returned to her machine, exclaiming, "Well, I'll be damned. I will never say
anything again, if they come down here upside down." Thus informed, Anderson
allegedly told Allwood, "No, I wouldn't say you cussed her out." While McNiece
testified that DeMint came into his office crying and very upset, and told him that
after Allwood spoke to her, she "turned around and said, `God damn it, she wouldn't
even do it,"' Anderson did not dispute Allwood's version or testify at all about the
incident according to his information. • - -
If this incident and Qllwood's alleged changing of the bars are the basis for the
defenses that Allwood sought to exercise authority over others, causing them to
become upset and leave the Company's employ (McNiece testified that he called
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DeMint back 3 or 4 days later), not only did Anderson not criticize Allwood concern-
ing this or suggest that she be less officious, but he did not even include it as a subject
which he discussed with her during that sole occasion of criticism, on August 1.
However Allwood's shortcomings are depicted, we have noted that only on August
I did Anderson undertake to criticize her. As he put it, he called Allwood and
another employee into his office, charged them with spreading a false rumor concern-
ing Hill's profit-sharing setup, and "explained" that the Company was not applying a
new rule. With respect to this single instance of criticism, the explanation was one to
which the employees were entitled since, as Anderson found it necessary to point out,
Hill had been called in for a few nights only, and the rules had therefore not been
breached. By the further admonition that these employees not talk against the profit-
sharing plan, Anderson could be found to have interfered further with employees'
concerted activities. Their interest in this term of employment protects discussion of
it and of what appeared to be an encroachment. Whatever Anderson's annoyance with
Allwood for such activity, he could not lawfully discharge her for it.
Distinguishing between the reasons for the discharge which Anderson gave to
Allwood and at the hearing, and the defenses set up in the answer, it was clear at the
hearing that the action taken against Allwood was prompted by the Company's animus
or objections to the Union which were indicated in the interference found, supra, in
interference outside the statutory period, and in various documents which the Com-
pany issued or sponsored but which are not claimed to be violative.
In contrast to the mild admonition given the mixer, and the reprimand or suspension
given to employees who stole, Allwood was not even warned that she was considered
responsible for the allegedly serious bickering and would be discharged for it. If
Anderson listened to another employee, who charged Allwood with bickering, he never
spoke to Allwood about it.
Only review of McNiece's testimony can reveal how exceptionally general and
imprecise he was in his characterization of untoward conditions. Anderson's testi-
mony was similarly indefinite and reflected his own attitude toward the Union and
Allwood more than it did hers toward the work. When he went beyond generalities,
his statements lacked support, as we have seen.
We have already considered Anderson's stated reason to the effect that Allwood had
and was causing employees to quit. As for the claim that the Company was "not
getting efficient production because of her continued tactics," if a drop in production
over a period of several months were in fact connected with an employee's "tactics,"
the Company would not have delayed action against her until a relatively minor inci-
dent which, as we have seen, was variously described by the two company officials.
Anderson having declared that the Company was "not getting efficient production,';
the company treasurer produced a summary of the production records for the third
and fourth quarters of the year.
But this left several questions. We were told that the busy season runs from May 30
to Labor Day, thus covering two-thirds of the third quarter, and that the unit is run
more frequently during the busy season; also that the rate of production is higher
when employees are not tired. While the rate when the unit was run was slightly less
than 4 percent higher during the later quarter, the unit was run 16 percent longer dur-
ing the earlier for large cookies and almost 50 percent longer for medium sized
cookies. (On the latter, the production rate difference was negligible.) We were also
told that while the employees' attitude on another line was good and they did their
work well, they did hear gossip from Allwood's No. 1 line. The evidence is less
than convincing that there was a lower production rate which could be ascribed to the
employees' attitude and that such attitude was properly chargeable to Allwood. Nor
should we overlook the fact that it takes longer to cool cookies before they are
packed, and that the process is therefore slower, in the summer.
In short, it appears that Allwood was not guilty of the derelictions with which she
has been charged, and further that the Company did not itself consider these to be
reasons for discharge. The reasons were in fact pretexts. If Allwood, a good
employee, was unduly affected by her partisanship, the Company did not find serious
shortcomings in her work as distinguished from such partisanship. The latter does not
protect an employee against discharge for poor work or conduct or other nondiscrimi-
natory reason. But such reason has not here been indicated.
As for the attitude of other employees, which was contrary to Allwood's marked
partisanship in the face of an opposing majority and which was here generally mani-
fested in a light-hearted manner and singing, or the absence of these, the election
result indicates that union supporters were in the minority. Where pro- and anti-
union factions exist, it is not sufficient to cite bickering; an employer may not attempt
thereby to justify discharge of the leader of one faction. So far from being able to
charge Allwood with improperly causing bickering and bad feeling, one of the Com-
BANNER BISCUIT CO. 1139
pany's witnesses testified that another employee taunted Allwood shortly after the
election: "I thought I would see you go out the_ door." Allwood replied, "Don't
underestimate Allwood."
No more than by direct insistence that a union supporter be discharged may other
employees by attitude and subtle means compel a discharge. Placed in such a situa-
tion, an employer, if it does not itself object to a union, can only hope that bygones
will be bygones, as Anderson urged. Action can be taken against an employee
whether she be pro- or anti-union, but only for nondiscriminatory reasons. This
truism can be regarded as admonition and warning to both employer and employee.
The most effective, if insufficiently so, testimony of other witnesses called by the
Company, which we shall also analyze, cannot provide support for the discharge
beyond the alleged facts and reasons claimed by Anderson, who decided upon and
made the discharge. We have already considered what was contributed by Anderson
and McNiece, top company officials, and by Bitzenberg who, although a rank-and-
file employee, was by the Company assigned a relatively important role at the hearing.
It should now suffice to cite the testimony of Hughes, who supervised Allwood's line
for 2 weeks but attempted to detail her shortcomings, and of Evans, the head floorlady,
who was in charge of Allwood's No. 1 line.
Hughes testified that Allwood always wanted to act like a boss. She cited an occa-
sion when she asked a girl on another machine to hold up one of her sacks because the
cookies were smeary, and Allwood asked why she had done that. This was none of
Allwood's business. Again, when it was necessary to relieve other employees and
Hughes took Allwood's stapler and told her to go to the line without telling her just
where, Allwood would go where she wanted to go, mostly to relieve her own friends.
It is not quite clear what fault is chargeable to Allwood in this connection.
Hughes also testified concerning an argument in which Allwood was involved con-
cerning moving of the bars. Since Hughes spoke to McNiece about it, this appears
to be the incident noted in Anderson's and McNiece's testimony, supra. As for All-
wood's use of profanity, this seemed neither strange nor unusual as Hughes repeated
it without apparent reluctance. In fact, she testified, other employees have used pro-
fanity on the line, and she has herself.
To the extent that Allwood assumed prerogatives which were not properly hers,
which appears to be the substance of Hughes' objections, Anderson indicated no objec-
tion. If this be the basis for the defense that Allwood sought to exercise authority over
others, we recall the flavorless cookie incident and the defense that Allwood permitted
the cookies to go through: she did not sufficiently assert herself; having informed a
supervisor, she presumably should have prevented the mixer from continuing! How-
ever convenient the attempt, the Company cannot have it both ways; and the assertion
of these contrary positions indicates that they are pretextual and did not prompt
Allwood's discharge. Further, such assertions reflect on the Company's motive and
defenses generally. This abatis of fallen defenses, once overcome, leaves exposed the
discriminatory motive in discharging the principal union advocate.
Evans described an occasion in June when another employee told her that Allwood
had knocked cookies out of her hand. If the hearsay aspect of such a report was
recognized, Evans had no more valid basis for believing that the employee's agitation
was chargeable to Allwood. While Evans told the other employee to speak to
McNiece, it does not appear that McNiece or Anderson knew of this; and Evans did
not herself report it or even talk to Allwood about it.
If, as Evans complained at the hearing, Allwood upset the employees by her claim
that overtime had been incorrectly assigned one day early in June, when some girls
and boxboys were kept later, such a claim is a protected concerted activity. To the
extent that it led to bickering, the claim although lawful was a contributory factor
to the action taken against Allwood, and a discharge based thereon would be violative.
We have already noted that Allwood and a few others were in the minority. If
they acted like a clique, the Company was not warranted in taking action against the
ringleader because some of the other girls "were made to feel very bad" over it. All-
wood was discriminatorily discharged, in violation of the Act. We can resist the
temptation to refer to other incidents which were brought to counsel's attention at or
before the hearing but which were not shown to have played a part in Anderson's deci-
sion to discharge Allwood. If "the atmosphere" has improved since Allwood's dis-
charge, such a change may not be unusual after a lawfully dissenting element has been
discriminatorily removed; but the removal is not thereby justified. .
M. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section II, above, occurring in connection
with the operations described in section I, above, have a close, intimate, and substantial
relation to trade, commerce, and traffic among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce , I shall recommend that it cease and desist there-
from, and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company, by discharging Allwood, discriminated against
her in respect to her hire and tenure of employment in violation of Section 8(a)(3)
of the Act. I shall therefore recommend that the Company cease and desist therefrom
and from infringing in any other manner upon the rights guaranteed in Section 7 of
the Act. I shall further recommend that the Company offer to Allwood immediate
reinstatement to her former or substantially equivalent position without prejudice to
her seniority and other rights and privileges, and make her whole for any loss of pay,
sustained by reason of the discrimination against her, with interest at 6 percent,
computation to be made in the customary manner.5 I shall further recommend that
the Board order the Company to preserve and make available to the Board, upon
request, payroll and other records to facilitate the checking of the amount of back-
pay due.
It has been further found that the Company, by unlawful interrogation and threats,
interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1)
of the Act.' I shall therefore recommend that the Company cease and desist therefrom.
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. American Bakery and Confectionery Workers International Union , AFL=CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Helen
Allwood , thereby discouraging membership in a labor organization , the Company has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By such discrimination and by unlawfully interrogating its employees and
threatening them in connection with union activities , thereby interfering with, restrain-
ing, and coercing employees in the rights guaranteed in Section 7 of the Act, the Com-
pany has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices within the-meaning of
Section 2 ( 6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, upon the
entire record in the case, and pursuant to Section 10(c) of the Act,-I recommend that
the Company, Banner Biscuit Co., Carrollton, Missouri, its officers, agents,'successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in American Bakery and Confectionery Workers
International Union, AFL-CIO, or in any other labor organization by discriminatorily
discharging any of its employees or discriminating in any other manner in respect to
their hire or tenure of employment, or any term or condition of employment.
(b) Unlawfully interrogating or threatening employees in connection with their
union activities.
(c) In any other manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization, to form labor organizations, to join or
assist American.Bakery and Confectionery Workers International Union, AFL-CIO,
or any other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which is necessary to effectuate the policies
of the Act:
(a) Offer to Helen Aliwood immediate and full reinstatement to her former or
substantially equivalent position, without prejudice to her seniority or other rights and
c The Chase National Bank-of the City of New York, San Juana, Puerto Rico, Branch,
65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v.
N.L.R.B., 311 U.S. 7; F.W. Woolworth Company, 90 NLRB 289, 291-294; Isis Plumbing
& Heating Co ., 138 NLRB 716.
BANNER BISCUIT CO. 1141
privileges , and make her whole for any loss of pay she may have suffered by reason of
the discrimination against her , in the manner set forth in the section entitled "The
Remedy" of this Decision.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine the
amount of backpay due under the terms of this Order.
(c) Post at its place of business in Carrollton , Missouri , copies of the attached
notice marked "Appendix ." 6 Copies of said notice, to be furnished by the Regional
Director for Region 17, shall, after being duly signed by the Company 's representative,
be posted by the Company immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places, including all places where
notices to its employees are customarily posted. Reasonable steps shall be taken by
the Company to insure that said notices are not altered , defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 17, in writing, within 20 days from
the receipt of this Decision , what steps have been taken to comply herewith.?
6In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner " in the notice . In the further event that the Board ' s order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order".
71f this Recommended Order is adopted by the Board , this provision shall be modified
to read: " Notify the Regional Director for Region 17, in writing , within 10 days from the
date of this Order , what steps the Respondent has taken to comply herewith"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in American Bakery and Confectionery
Workers International Union , AFL-CIO, or any other labor organization by
discriminatorily discharging any of our employees or discriminating in any other
manner in respect to their hire or tenure of employment , or any term or condition
of employment.
WE WILL NOT unlawfully interrogate or threaten our employees in connection
with their union activities.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right to self-organization , to form labor organi-
zations, to join or assist American Bakery and Confectionery Workers Interna-
tional Union , AFL-CIO, or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion , or to refrain from any or all of such activities , except to the extent that such
right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment , as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Helen Allwood immediate and full reinstatement to her
former or substantially equivalent position , without prejudice to her seniority or
other rights and privileges , and make her whole for any loss of pay suffered
as a result of the discrimination against her.
All of our employees are free to become , remain , or to refrain from becoming or
remaining members of American Bakery and Confectionery Workers International
Union , AFL-CIO, or any other 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.
BANNER BISCUIT CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) .(Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional Office, 1200 Rialto
Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore
1-7000, Extension 731, if they have any question concerning this notice or com-
pliance with its provisions.
Dove Coal Company and Lark Coal Company and United Mine
Workers of America, District .No. 28. Cases Nos. 5-CA-2721
and 5-CA-2722. January 19, 1965
DECISION AND ORDER
On October 8, 1964, Trial Examiner Lee J. Best issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices
alleged in the complaint and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Respondents filed joint
exceptions to the Trial Examiner's Decision and a joint brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Fan-
ning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this proceeding, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations with the following modification.
The Trial Examiner has concluded that the Respondents violated
Section 8(a) (1) of the Act by engaging in surveillance of a union
meeting during the course of the Union's organizational campaign
at both mines. We do not agree. The record clearly demonstrates
that the Union had called a meeting to be held at an outdoor, open
site which was located 4 feet off a main highway; that, as employees
of the Respondents were gathering for this meeting and before it
began, Jess Nelson, president of Respondent Dove Coal Company
and manager of Respondent Lark Coal Company, drove past this
area at a moderate speed without stopping or slowing his automobile;
that this main highway served as a connecting link between the
mines and the mine supply house, the meeting site being located
somewhere between these two points; and that this highway was a
link in a route which led to Nelson's home, and Nelson was seen pass-
ing the meeting site at 4:30 p.m., which was shortly after the com-
pletion of the daytime shift at the mines. The evidence establishes,
150 NLRB No. 108.