Claussen Baking Co.

National Labor Relations Board - Board Decisions

Mar 19, 1956

115 N.L.R.B. 824 (N.L.R.B. 1956)

824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accounting purposes. All three are under the separate immediate su-
pervision of the office manager.
We find, upon the entire record, that the traffic department em-
ployees originally sought are merely a segment of the Employer's office
force, and may not therefore constitute a separate appropriate lit.
However, we find that the alternative unit of all office employees, in-
cluding the traffic department employees, is appropriate for collective
bargaining within the meaning of Section 9 (b) of the Act, and we
shall therefore direct an election among the following :
All office employees of the Employer, including the traffic depart-
ment employees, but excluding all supervisors as defined in the Act."
[Text of Direction of Election omitted from publication.]
3The Employer contends that Mazyck, the assistant manager in the traffic department;
is a supervisor. Mazyck, among other duties, aids in the training of new employees.
Although Mazyck reports to his superiors on the progress of such trainees, the record
shows that they base their decision as to the retention of the new employee on an inde-
pendent investigation, As he has no other indicia of supervisor, we find that Mb rek is
not a supervisor within the meaning of the Act and shall include him.
Claussen Baking Company and Retail, Wholesale and Tobacco
Workers Union , Local 15A, Retail , Wholesale and Department
Store Union, AFL-CIO. Case No. 11-CA-886. March 19, 1956
DECISION AND ORDER
On December 28, 1955, Trial Examiner Henry S. Sahm issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. ' Thereafter the Respondent filed
exceptions to the Intermediate Report with a supporting brief.'
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 Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in this case,- and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that:
I The Respondent has requested oral argument. In our opinion, the record and the
exceptions and brief fully present the issues and the position of the parties. AecofSh ly,.
the request is denied.
116 NLRB No. 129.
CLAUSSEN BAKING COMPANY 825
1. The Respondent, Claussen Baking Company of Charleston, South
Carolina , its officers , agents , successors , and assigns, shall :
1. `Cease and desist from:
(a) Discouraging membership in Retail, Wholesale and Tobacco
Workers Union, Local 15A, Retail, Wholesale and Department Store
Union, AFL-CIO, or any other labor organization of its employees,
by discharging or refusing to 'reinstate any of its employees, or by
discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of their employment.
(b) Interrogating its employees concerning their activities on be-
half of Retail, Wholesale and Tobacco Workers Union, Local 15A,
Retail , Wholesale and Department Store Union, AFL-CIO, or any
other labor organization, in a manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1).
(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 jc n or assist Retail, Wholesale and Tobacco
Workers Union, Local 15A, Retail, Wholesale and Department Store
Union, AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Immediately offer Dudley E. Walters immediate and full re-
instatement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges, and make
him whole, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy," for any loss of pay he may have suf-
fered by reason of the Respondent's discrimination.
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(c) Post at its Charleston, South Carolina, bakery the notice at-
tached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Eleventh Region, shall,
after being duly signed by the Respondent's representative, be posted
2 In the event that this Oider is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words'
"Pursuant to a Decree of the United States Court of Appeals , Enfoicing an Order"
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by it immediately upon receipt thereof and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reason-.
able steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing, within ten (10) days
from the date of this Order, what steps the Respondent has taken to
comply therewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Retail, Wholesale, and
Tobacco Workers Union, Local 15A, Retail, Wholesale and De-
partment Store Union, AFL-CIO, or in any other labor organiza-
tion of our employees, by discharging or refusing to reinstate any
of our employees, or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition
of their employment.
WE WILL offer to Dudley E. Walters immediate and full re-
instatement to his former or substantially equivalent position
without prejudice to any seniority or other rights previously en-
joyed, and make him whole for any loss of pay suffered as a result
of the discrimination against him.
WE WILL NOT interrogate our employees concerning their activi-
ties on behalf of Retail, Wholesale, and Tobacco Workers Union,
Local 15A, Retail, Wholesale and Department Store Union, AFL-
CIO, or any other labor organization, in a manner constituting
interference, restraint, or coercion in violation of Section 8 (a)
(1) of the Act.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join the aforesaid labor organiza-
tion, or any other labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all' such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of
the Act.
CLAUSSEN BAKING COMPANY 827
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except as
that 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.
CLAUSSEN BAKING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and amended charge filed by the Retail , Wholesale and Tobacco
Workers Union , Local 15A , Retail , Wholesale and Department Store Union, CIO,
herein called the Union , against Claussen Baking Company , the Respondent herein,
the General Counsel of the Board issued his complaint on October 6, 1955.1 The
complaint alleges that the Respondent Company had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and ( 3) and Sec-
tion 2 ( 6) and ( 7) of the National Labor Relations Act, as amended,(61 Stat. 136),
herein called the Act. Copies • of the charges, complaint, and notice of hearing were
duly served upon the respondent and the Union.
The complaint alleges, in substance , that the Respondent violated Section 8 (a) (1)
of the Act in that it interrogated its employees concerning their union membership,
activities , and desires . The complaint also alleges that the Respondent engaged in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act by dis-
charging its employee , Dudley E . Walters, because of his union activities.
Respondent's answer admitted the jurisdictional allegations of the complaint, but
denied generally the commission of any unfair labor practices.
Pursuant to notice, a hearing was held in Charleston , South Carolina, on Novem-
ber 15 and 16, 1955, before Henry S . Sahm, the duly designated Trial Examiner. All
parties were represented by counsel and were afforded full opportunity to participate
in the hearing, to introduce relevant evidence , and to argue orally. Briefs filed by the
General Counsel and the Respondent have been carefully considered.
• Upon the entire record in this case , including the briefs filed by the parties and
citations of cases alleged to be dispositive of the issues in this case, and from his ob-
servation of the demeanor of the witnesses , the Trial Examiner makes :ne following:
FINDINGS OF FACT2
1. THE BUSINESS OF THE RESPONDENT
It is conceded that the Respondent Company 's Charleston , South Carolina, plant,
which has approximately 100 employees , is engaged in the manufacture and sale of
bakery products , and that duringlthe year 1954 it purchased bakery products, raw
materials , supplies , and equipment valued in excess of $600 ,000, more than 90 per-
cent of which , in value , originated outside the State of South Carolina and was ship-
ped in interstate commerce to the Charleston plant . It is found, therefore, that the
Respondent is engaged in commerce within the meaning of the Act, and it is subject,
to the jurisdiction of the Board.
I An unopposed motion by the General Counsel at the hearing to amend paragraph num-
bered 4 of the complaint was granted so that it now reads "Respondent , by its Superin-
tendent Smith on or about June 5 and 9, 1955, and by its Foreman Phillips on or about
July 9 , 1955; interrogated its employees concerning their union membership , activities
and desires "
2 General Counsel ' s Exhibit No 2 has not been considered in making findings,
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that the Union is a labor organization within the mean-
ing of Section 2,(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
In order to obtain a better understanding of what transpired in this proceeding,
the physical composition of the bakery, particularly the baking machines and .their
operation , should be described .3 At one end of a large rectangular room , measuring
185 feet' by 250 feet, is a divider-scaling machine and located next to it is a panning
machine. The bakery superintendent's desk is about 20 feet from the panning ma-
chine . Approximately 25 feet from the divider -scaling machine is a wall switch
which turns on and off the electricity used in operating the panning machine. Along-
side this wall switch and about 27 feet from the divider -scaling machine is a door
leading to the outside. At the other end of this large room , approximately 80 feet
from the divider-scaling machine and panning machine , are the ovens.
The bread dough is mixed in a room located on the second floor of the plant.
After the dough is prepared, it slides down an enclosed chute from the second to the
first floor and passes into the divider-scaling machine. This machine automatically
divides the bread dough into loaf size pieces and the machine operator then weighs
them to determine whether each piece of dough is the required weight for a loaf of
bread.4 After the dough is divided and weighed, it is then carried by a conveyor
to a machine called a "proofer" which rolls it for 11 minutes. It next travels along
a conveyor chute to the panning machine. Standing about 5 feet from the divider-
scaling machine is a panning machine operator called the "greaser." He greases
the pans in which the bread is to be baked and feeds these greased pans onto a con-
veyor. The greased pans then proceed on the conveyor a short distance to where
the dough from the proofer enters the panning machine and each piece of loaf size
dough then automatically drops into the pans. The point at which the divided
pieces of dough automatically drop into the greased pans, and about 12 feet from
where the "greaser" stands, is an operator known as the "panner ." His job is to
remove from the conveyor each pan into which the dough has dropped and place
the loaded pans on a movable rack which is pushed then to the ovens at the other
end of the room for baking.
The entire operation described above operates on a time schedule. Each day
there is posted near these machines a written schedule which notifies the divider-
scaler operator and' the two operators of the panning machine ("greaser" and
"panner") the times at which the dough is scheduled to come down the chute from
the second floor mixing room to the first floor in order that the "divider," "greaser,"
and "panner" will be at their assigned stations at the specified times to discharge
their respective duties.5 From the time the dough begins to come down the chute
from the second floor, until the pans of dough are removed from the conveyor- and
placed upon the racks preparatory to baking, it takes approximately 20 to 25
minutes. Normally, there is then an average "break" of about 6 minutes from the
time a batch of dough is run through the divider -scaling and panning machines until
the next batch is prepared upstairs and begins to come down the chute to the first
floor machines . The "greaser" and the "panner" alternate on these jobs, greasing
the pans for a batch of dough and then for the next batch removing the pans from
the conveyor onto the racks.
If the "greaser" should be absent from his assigned duty station so that he does
not feed the greased pans into the panning machine, the dough will pile up on the
conveyor and eventually be shoved by the accumulating dough onto the floor, unless
the machine is cut off in time.
Likewise , if the "panner" should not be at his assigned station to remove the pans
from the conveyor onto the racks, the pans of dough as they come to the end of
the conveyor will pile up and be shoved onto the floor by the pans which are coming
off the conveyor.
'Respondent's counsel, General Counsel, and the Trial Examinet, at the conclusion of
the first day's hewing, jointly viewed the piennses and the operation of the machines
described herein
I The operator, who is called the "dividei." is instructed to weigh 1 of every 5 pieces
of dough
s The bakery normally operates on a 3 shift, 24-hour a day schedule, 6 days a week, and
employs 38 to 40 employees in the baking operation
CLAUSSEN BAKING COMPANY 829
B. Issue
The Respondent contends it discharged the alleged discriminatee because he per-
sisted in being away from his assigned place of work. The General Counsel, on
the other hand, claims that the Respondent discharged the alleged discriminatee
because of his union activities.
C. The testimony
1. Alleged discriminatory discharge
Dudley E. Walters, the alleged discriminatee, was hired by Respondent in 1949.
His starting salary was 70 cents an hour which was successively increased until at
the time of his discharge on June 7, 1955, he was earning 99 cents an hour engaged
in greasing and setting off pans on the panning machine. He worked from 2 p. m. to
approximately 10:30 or 11 p. m., and on some occasions beyond that time, depend-
ing upon the amount of baked goods produced on any given day.
About May 17, 1955, Walters met with a union representative at the Charging
Union's meeting hall to discuss the possibility of organizing a union at Respondent's
bakery. It was decided at that time to schedule a meeting for the purpose of planning
an organizational campaign at Respondent's plant. Walters then invited an employee
by the name of Hembree to meet with him and the union representative on May 21
at the union hall, at which time Walters signed a union membership application
card. This card authorized the Union to act as bargaining agent for Walters. A
second meeting was then arranged which was held on May 28 at the union hall and
attended by Walters, Hembree, Julius Hall, and Herbert Williams, employees of
Respondent. During this period of time and prior to his discharge on June 7,
Walters spoke to 3 or 4 other employees about the desirability of having a union in
the bakery in order to improve the employees' working conditions.6
On June 7, 1955, at approximately 4 p. in., Walters testified that his foreman,
Boughnight, came to where he was working and said to him• "There is a man at the
back door wants to see you." Walters' story continues as follows:
Well, naturally I went out there and opened the gate and there was Mr. Smith
[plant superintendent]. . He said, "Walters, I heard you have been talking
to some of the colored fellows about the union," and I said "No," and he says
"Oh yes you is," he said "Two or three of them have been to me and told me
so." . I first told him that I had not been talking to them and he said "Oh
yes you is, and I talked to two or three of them and they told me so, and that
is all for you."
Smith then told him, Walters testified, he was discharged and that he should return
in a few days to pick up his pay. Walters testified that he then got his timecard and
checked out, whereupon Smith said: "Get on out and don't be talking to any of the
fellows in here about the union." Walters testified that at the time he was dis-
charged, Smith said nothing to him about being dissatisfied with the quality of his
work. Walters did testify, however, that about 6 or 8 months prior to his discharge,
Smith warned him about smoking in the plant and at about the same time cautioned
him about being away from his machine. Walters testified:
Well, six or eight months [before his discharge] when [Smith] said something
about it, the dough piling up, I had to go to the rest room and did not have
enough time and it was piled up. . .
On cross-examination, Walters denied that at the time he was fired Smith said that he
was being discharged for being away too often from his machine. I
Clyde Hickman, who operates the divider-scaling machine, testified that 3 or 4
days after Walters' discharge he had a conversation in the plant boilerroom with
Phillips, one of the plant foremen, while Phillips was eating his lunch. Hickman
testified as follows:
I turned to Mr Phillips and said, "What happened to Mr. Walters," and he said,
. . I notice things have been going on around here kind of funny for the
past week or so," and I asked [Phillips] had he paid any attention to it, and he
said "No," he had not paid any attention to anything, and he said that Mr. Wal-
e When Waltei s was asked on a oss-examnation if lie solicited any employees to sign
union cards, he answered • "I did not ask anybody to sign, I just told them what they
could get, a union, I thought it would help " He also testified that he told Herbert Wil-
hanis, a coloied employee, that "we would see if we could get [a union]."
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ters was trying to stir up trouble among the men going around and turning to
them and talking to them and talking to them about organizing a union... .
Hickman also testified that he had never heard anyone criticize Walters' work ex-
cept on 1 occasion 8 to 10 months prior to Walters' discharge when Foreman Bough-
night said something to Walters "about not setting the moulder." 7 Hickman also
testified that approximately 7 to 9 months before his discharge, Walters "was smok-
ing right inside the door and Mr. Boughnight told him to get oustide to smoke."
George Butler, who had been employed by the Respondent in its bakery since
1946, testified that on June 5, 1955, 2 days before Walters' discharge, he removed
a time sheet from the desk of Superintendent Smith which listed the names of the
baking department employees . His foreman , Phillips, evidently saw him do this
because he asked Butler what he was doing with the time sheet. The record does
not disclose Butler 's reply , if any , but Butler testified on direct examination that
Phillips said to him: "I am a very intelligent man, 1 know what is going on for a long
time." 8 Phillips denied that he said this.
It is against this testimony that Respondent 's reasons for Walters ' discharge are
considered. Frank B. Smith, superintendent of the Claussen Baking Company's
Charleston plant, testified that he decided to fire Walters on June 7 because he neg-
lected his duties. Smith testified as follows:
I said, "Mr. Walters, this thing of you being away from the job when the ma-
chine stops, I said you have been caught before and warned and I told you you
would be fired the next time you did," and I said, "This has gone as far as we
can put up with it and we won't need you any more."
Three or four days prior to Walters' discharge, Smith testified that he had warned
him about being away from his machine. In addition, Smith testified that Walters'
foreman, Boughnight, "had come to me continuously for the last week or ten days
[prior to the discharge] and said, 'Mr. Smith, I can't keep Mr. Walters up there,'
and said, `He is outside or back there rambling around every time the machine
starts and his dough piles up on the floor.' " Smith also testified that 6 or 7 days
prior to Walters' discharge he personally saw dough pile up on the floor due to
Walters being absent from the panning machine .9 Smith went on to testify that in
the 6 months prior to Walters' discharge dough had piled up 10 to 15 times because
of Walter's dereliction of his duties, that 2 or 3 weeks before his discharge he had
warned Walters personally about his repeated absences from his machine, and that,
in addition, he had received 4 or 5 complaints from Walters' foreman.
Smith also testified that a week or 2 before Walters' discharge he had warned him
about smoking in the plant and that, within a period of 6 months, he had warned
Walters about this on 2 occasions. Smith's testimony was corroborated by H. D.
Schweers, manager of Respondent's bakery.
Smith categorically denied Walters was discharged for union activity or that he
knew anything about Walters' union activities prior to his discharge . He also denied
he had ever told Walters that colored employees of the Company had informed him
that Walters had solicited them to join the Union.
Robert L. Phillips, a foreman, testified that he knew nothing of union activities
at Respondent's bakery prior to Walters' discharge. He testified that on 2 or 3
occasions, within a period of a year prior to Walters' discharge, he had to call
Walters back to his machine
W. H. Roberts, an employee, testified that on 1 occasion within a week or 10 days
before Walters was discharged, he heard a foreman reprimand Walters for being away
from his machine. He also testified that 6 months before Walters' discharge he
had heard Superintendent Smith warn Walters about smoking in the bakery.
Frank Grooms, an employee, testified that he had observed foremen calling
Walters to report back to his place of work on about 7 occasions within a period
of 7 to 10 days before Walters' discharge. In addition, Grooms testified he saw
dough pile up on the panning machine 4 times within a period of 2 to 3 weeks,
preceding the 7 to 10 days mentioned above, because Walters was absent from 'the
machine. On one of these occasions, Grooms testified he personally called to
Walters to get back to his machine when he saw the pans start to fall from the
conveyor onto the floor.
Some of the witnesses referred to the panning machine as the "moulder."
On cioss-examination, Butler phrased what Phillips said to him as follows: "I am a
very intelligent man and I have been knowing that was going on all the time "
U In the 7 or 10 days prior to Walters' discharge, Smith testified that dough piled up
5 or 6 tunes because of Walters' inattention to his duties and that he saw this personally
2 or 3 ti:res
CLAUSSEN BAKING COMPANY 831
Isaac Mallard, an employee, testified that on the day Walters was discharged he
heard an unidentified person call to Walters, who was at the ovens which are
approximately 80 feet from his place of work, to return to his machine. He also
testified that he heard Walters being called back to his machine on 2 or 3 other
occasions within 7 to 10 days prior to Walters' discharge. Before that, he testified,
he also "heard them calling [Walters] once or twice before then." On these occa-
sions, Mallard testified, "every time I heard them holler, `Mr. Walters, the dough."'
On rebuttal, Clyde Hickman, who worked on the same shift with Walters and
who, according to his own testimony, worked "approximately within five feet of
Mr. Walters" so that he was in a position to immediately observe Walters' work,
denied that dough ever fell on the floor or "stuck" in the panning machine during
the periods of time mentioned above by the Respondent 's witnesses . He also testi-
fied that he never heard any of the foremen reprimand Walters for being away from
his machine, except that 6 to 10 months before Walters' discharge, he heard Bough-
night, a foreman, warn Walters about "not setting the pan machine or the moulders."
Walters, on rebuttal, denied seriatim the various derelictions described above which
were imputed to him by the Respondent's witnesses. He did admit, however, that
sometime within the year before his discharge, he was told by his foreman "to always
be on the job," and that on another occasion, when he was smoking at the door
which leads from the bakery to the outside, he was told to smoke outside the door.
2. Interference, restraint, and coercion
The complaint also alleges that the Respondent by its supervisors, Smith and
Phillips, interrogated its employees concerning their union membership, activities,
and desires. This allegation is based on the following testimony which was adduced
by the General Counsel at the hearing:
Willie Lee, who worked for Respondent until August 1955, testified that 3 days
after Walters was discharged, Smith came to where he was working in the bakery
and asked him if he had signed a union card When Lee told him he had not,
Smith said, according to Lee: " `You better be particular about what you are signing
because if you do, you see what happened to the others.' . I told him no, I
have not signed and I have not seen no union man at that time." Two to three
months after this Lee testified that Smith again asked him whether he had signed
a union card. Lee also testified that 2 or 3 months after Walters' discharge, his
foreman, Phillips, said to him at the bakery:
"Is you going to the meeting tomorrow," and I said, "What kind of meeting,"
and he says, "They have a meeting up to the union hall tomorrow."
Lee testified that when he told Phillips he might attend the union meeting, Phillips
said, "Well, [I] might be down there. .
Walters testified that at the time Smith fired him, he first asked Walters about him
having solicited the colored employees on behalf of the Union. When Walters
denied this , Smith insisted it was true.
Both Smith and Phillips denied that the conversations related above ever occurred.
D. Analysis of the testimony
This is a case where the General Counsel's witnesses 10 are contradicted by the
witnesses for the Respondent. Nevertheless, after observing the witnesses and
analyzing the record and the inferences to be drawn therefrom, it is concluded that
the witnesses for the General Counsel merit belief, for the reasons hereinafter ex-
plicated.ii Moreover, the events narrated by them follow a logical sequence, which
are consistent with the attendant circumstances in this case
Turning to a consideration of the Company's testimony, the record shows that
the Respondent's witnesses frequently contradicted themselves and one another and
that in some respects, as hereinafter indicated, their testimony was not only im-
probable but in some respects incredible.
Smith at 1 point in his testimony, stated that he had personally warned Walters 4
or 5 times about being absent from his machine, and at another part of his testimony
he states it was 2 or 3 times. He also testified that on these occasions when he per-
sonally admonished Walters that Walters was at his machine and that Hickman and
the other man working the panning machine were close enough to have heard it.
10 In making this finding , the witnesses who were called by the General Counsel under
rule 43 (b) of the Rules of Civil Proceduie for the District Courts of the United States
(48 Stat 1064), aie not considered the General Counsel's witnesses
It N L R It v Unive, sat Camera Cot p , 340 U S. 474, 494-496
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However , Hickman testified that he-never heard Smith criticize Walters' work. The
name of the other man who was working the panning machine with Walters, Smith
testified , was Herbert Williams, who is still employed by Respondent . Yet Williams
was not called as a witness by Respondent to corroborate this basic contention.
Moreover, in this connection, both Hickman and Walters testified that during the
period of time referred to herein John Rock, and not Williams, worked alongside
Walters on the panning machine.
Smith testified that in the event dough began to pile up and fall onto the floor
the operator of the divider-scaling machine would turn off the power. Grooms, a
company witness, however, stated in his testimony that this responsibility rests with
the panning machine operator who removes the dough-filled pans from the con-
veyor and places them on the racks.
Smith usually worked from 7:30 a. m. until 5:30 p. in. and Walters' hours were
normally from 2 p. in. to 10 or 11 p. in. Yet in this comparatively brief space of
time of 4 hours in which their shifts overlapped, Smith testified that he personally
saw dough fall onto the floor 2 or 3 times within the 7 to 10 days before Walters' dis-
charge and that on each of these occasions it was due to Walters' neglect. Hickman,
the divider-scaling machine operator who worked on the same shift with Walters,
testified, however, that during the same period of time, when he was working about
5 feet from Walters, that he neither saw Walters absent himself from his assigned
duties nor did he observe dough fall onto the floor.
Smith testified at one point that Walters had been warned "quite a few times" about
smoking in the plant; at another part of his testimony, he stated he had warned
Walters twice within a period of 6 months; and at still another point in his testimony,
Smith stated he warned Walters once in the 2 weeks before he fired him.12 Walters,
admitted that Smith warned him once about smoking in the plant 6 to 8 months be-
fore his discharge.
Foreman Robert L. Phillips' testimony was confusing in its lack of specificity.
When he was asked on direct examination to detail instances in which he had to
reprimand Walters within a week or 10 days prior to his discharge , his answers were
vague and unspecific . For example , on cross-examination, when he was asked how
many times during the year prior to Walters' discharge he had occasion to tell
Walters to return to his machine, he answered:
Well, I would say three times that I definitely know. . . .
Q. How about in the last six months?
A. Well, f don't know, I could not pin that down. . . . Well I could not
say the times that I called him back was in the last six months , I could not say
that definitely , no sir. But over a year period I would say three times.
Q. You don't remember any particular one occasion , do you?
A. No sir . I can 't put my finger on any one occasion.
When, he was asked whether he had called Walters back to his machine within the 2
or 3 weeks prior to his discharge , he answered , "No sir I am not positive , it could
have very easily have been...."
Furthermore , a striking example of the untrustworthiness of Phillip 's testimony is
his statement that he worked from 4 a. in. to noon or 1 o 'clock ; yet he claimed he
not only had personal knowledge of Walters' unsatisfactory working habits but had
even reprimanded him, even though it is uncontradicted that Walters did not report
for work until 2 p. in. and quit at 10 or 11 p.m.
W. H. Roberts , who has been employed by Respondent for 9 years and who works
about 20 feet from Walters , stated on direct examination that his shift overlapped
Walters ' by about 2 to 4 hours , 3 days a week.13 At one point in his testimony he
stated he could not definitely say that he had ever heard Walters' foreman reprimand
him but that he did see dough pile up once at the panning machine about a week
or 10 days before Walters' discharge when Walters was not at the machine. He then
testified that on this one occasion the dough did not fall onto the floor because the
power for the machine was turned off in time by an unidentified person. He incon-
sistently testified on cross-examination , however, that on this one occasion dough
filled pans "were falling off," whereupon Hickman, who operates the divider -scaling
machine, cut off the power . Then he again contradicted himself by stating that none
of the pans fell on the floor. At another point in his testimony , when he was asked
on how many occasions, other than the one time he had just related, he saw dough
m Smith testified that there may have been another occasion within the week before
Walters was fired that he was warned about smoking in the plant, but if so. it was re-
ported to him by Foreman P,oughnight
m This seems doubtful when it is considered that Roberts testified he cane to work be-
tween 1 a in and 6 a in and Walters started work at 2 p m
CLAUSSEN BAKING COMPANY 833
pile up, he testified : "Well, I definitely could not say whether it happened twice
during that last ten days but I had seen it happen on numerous occasions before that."
On cross-examination, he testified that he had seen dough pile up on at least 4
occasions in the 2 or 3 weeks before Walters' discharge but he only knows of 1 of
those 4 times when it was Walters' fault. On the other three occasions, he testified
that he did not know whether the dough piling up was due to Walters' or Williams'
fault because "some times they would both be out." Also, it strains one's credulity
to believe Roberts' testimony that on some occasions when Walters was away from
his machine and dough piled up because he was standing in the doorway smoking,
even though Walters had a clear view of the panning machine from where he stood
smoking, according to Roberts' own testimony, that Walters did nothing to prevent
it and permitted the dough to pile up on his machine.14
Frank Grooms, who worked about 20 feet from Walters, testified that although
he worked on a different shift than Walters his shift overlapped Walters' by a few
hours.15 At one point in his testimony he stated that he observed the foremen call-
ing Walters back to his machine on 7 occasions within a week or 10 days before
Walters was fired. He testified that he heard 19 Foreman Phillips reprimand Walters
"a couple of times"; Smith once; and Boughnight, another foreman, warned Walters
several times. He also testified that on 1 occasion within this 7- to 10-day period,
he personally called Walters to get back to his machine. In addition to the 7 times
he saw dough pile up in the 7 to 10 days before Walters' discharge, he testified that
he also saw, within a period of 2 to 3 weeks prior to that, dough pile up an additional
3 or 4 times.
On cross-examination he testified that it may not have been 7 times; it might have
been 6 times; later he testified it could have been 8 times. He later changed his
story testifying that of the 7 times he saw "dough piled up," 4 of those times dough
fell on the floor and on 2 occasions "dough stuck in the machine." 17 At still an-
other part of his cross-examination, Grooms again contradicted himself by stating
that all seven times that the dough piled up, none of these times did dough stick in
the machine, but rather it fell onto the floor. He then testified inconsistently that
each of the times the dough "stuck in the machine" it was Walters' fault because,
he said, Walters was "panning" on those three occasions and it was his responsibility
to start the machine.18 Grooms testified that even though Williams was at the
machine when dough "stuck in it" on three occasions 19 because Walters neglected
to turn on the power, that Williams, who was at the panning machine and standing.
close to the switch, nevertheless did not turn on the power. Grooms was also
positive that all these incidents described above happened in the few hours that his
shift overlapped Walters' shift 4 days a week.
Grooms was certain Williams worked with Walters on the panning machine but
when he was asked whether it was not true that Williams went to work on the
panning machine the day after Walters' discharge, he answered: "Well, we don't
have any certain man to work on it . . He could have went on there, I don't
know.... Well, I don't know when Williams was put on that machine perma-
nently.. Then he later testified that Williams worked on the panning machine
with Walters when the incidents he testified to occurred. Both Hickman and
Walters testified that the other operator of the panning machine during this period
of time was John Rock.
Grooms testified also that he "heard" all the foremen reprimand Walters for-
neglecting his duties. Grooms testified he heard the foremen say: "Mr. Walters,
you better come on in here and stay on the job, you have got to do better." Then
when Grooms was asked if he was able to "hear" the foremen reprimand Walters,
he contradictorily replied: "No, I could not hear that."
14 Moreover, the doorway is located a few feet from the wall switch which cuts off the
power for the panning machine
15 He testified that he came to work at 8 a. in. and left anywhere between 3 and 5 p in
He stated he worked after 2 p. in (Walters' starting time) about 4 days a week
19 Roberts testified that the noise in the bakery was such, due to the operation of the
machines, that it was difficult to hear
11 When the power is left on and the machine is unattended, the dough falls onto the
floor If, however, the machine is not turned on, the dough "sticks in the machine "
iB Superintendent Smith, however, stated that the operator of the divider-scaling ma-
chine, Hickman, was responsible for turning on the machine after a "break" between
loughs.
11 Grooms testified dough stuck in the machine on 3 occasions in the 7 to 10 days before.
Walters was discharged, and elsewhere he testified dough stuck on 2 occasions
-5t;-vol 1P15-542!)0609
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. How do you know that they warned him?
A. Well, they was talking to him, they was trying to tell the man to stay
on the job.
Q. How many times have you heard that?
A. -One time 2°
Q. When was that?
A. That was a period of time that you was talking about.
It was during the time before he got discharged.
Q. Was it three years before he got discharged?
A. I mean I could not call it down to the day what time it was.
Q. Was it about six months before he got discharged?
A. Well, I don't know.
Q. You don't have any memory of it?
A. No sir, I just could not recall because I don't watch everything and try
to remember each of them.. . Well, it may be two or three weeks before
the time he got laid off and Mr. Boughnight came to the door and said, "Mr.
Walters, you have got to stay on the job, the dough is falling."
Grooms finally admitted that he only heard Walters reprimanded once by a foreman
(Boughnight) and-that the other times he testified that Phillips and Smith "warned"
Walters, he did not hear it.
Then too, Mallard's testimony is incredible when it is considered that the 3 or 4
times he heard Walters ordered to return to his machine that he did not remember
who called Walters, but he did have an uncanny recollection that the same words
were used "every time," namely: "Mr. Walters, the dough."
Upon a study of the testimony, and the frequently vague, self-contradictory, un-
convincing, and inherently improbable testimony of Smith, Phillips, Roberts, Mal-
lard, Schweers, and Grooms, as well as the Trial Examiner's observation of the
demeanor of these witnesses while they were testifying, their testimony is not cred-
ited . The General Counsel's witnesses appeared to be sincere and truthful witnesses
who told straightforward stories and the events related by them follow a logical
sequence, which are consistent with the attendant circumstances in this case.21 An-
other practical consideration which cannot be overlooked in resolving the credibility
issues in this proceeding, is the fact that Hickman (who completely discredited the
company witnesses) and Butler were still in the employ of the Respondent at the
time they testified. As such, they depended on their jobs for their livelihood and
they understood that after testifying they would continue in the employment of the
Respondent. This practical consideration coupled with the normal workings of hu-
man nature has led the trier of these facts to place considerable credence upon their
testimony with respect to resolving the salient issues in this proceeding.
E. Conclusions
The inconsistent, contradictory, and unconvincing reasons given for Walters' dis-
charge create a suspicion that they were offered to conceal an unlawful 'motive,
which in this situation was an attempt to forestall union activity and to abort the
Union's organizational activities by discharging Walters and it is so found.
Walters, an experienced employee who had worked for Respondent since 1949
and who began to engage in union activities about May 17, 1955, was precipitately
discharged on June 7, 1955 There is no substantial evidence on the record which
discloses that there was any basis for Respondent's alleged dissatisfaction with the
quality of Walters' work prior to the time he began to engage in union activities
Moreover, the record is devoid of any suggestion as to why, with a record of ap-
parently 6 years' satisfactory service, Walters should begin in his last year of service
to become inefficient and neglectful of his duties These insubstantial and multiple
explanations subsequently advanced for his discharge after long service with succes-
sive increases in salary, compels the conclusion that the decision to discharge Wal-
ters was not-made until the Respondent learned of his union activties
The Respondent, contends, however, that the record shows it had no knowledge of
Walters' union activities prior to the date of his discharge. What then does the rec-
ord disclose in this regard?
21Groonis, at another point in his testimony, sepia , stated that lie "lienid" Foreman
Phillips repilmand Walteis "a couple of times," Smith once and Bougluught, another
foreman, several times
11 Hartsell Mills Co v. N L R B , 111 F 2d 291, 293 (C A 4)
0
CLAUSSEN BAKING COMPANY 835
The following incidents show and it is found that the Respondent was not only
aware of the Union but also knew of Walters' participation in union activities. Rob-
erts, Respondent's witness, testified that "about three months" before Walters' dis-
charge, he was contacted by the Charging Union's organizer and that he told Phil-
lips about it. Furthermore, 2 days before Walters' discharge, when Phillips caught
Butler with the list of employees' names which Butler had taken off Superintendent
Smith's desk, Phillips said: "I am a very intelligent man, I know what is going on for
a long time ." This is taken by the Trial Examiner to be an unmistakable reference
to the Union's organizational activities at Respondent's bakery Finally, Smith's
statement to Walters at the time he fired him that he knew Walters had been talking
union to the colored employees dispels any doubts as to his motive in discharging
him and also conclusively shows that Respondent had knowledge of Walters' union
activities prior to his discharge This conclusion is fortified when it is considered
that Smith warned Walters at the time he fired him, to "get on out and don't be talk-
ing to any of the fellows in here about the union." This warning, which shows
Smith's hostility towards Walters particularly, and unions generally, is relevant as
reflecting Smith's,prior knowledge of Walters' union activities as it indicates the
basis for his attitude toward Walters immediately preceding his discharge.22
Equally conclusive of Respondent's knowledge of Walters' union activity prior to
his discharge is Phillips' conversation with Hickman 3 or 4 days after Walters' dis-
charge, when Hickman asked Phillips, "What happened to Mr. Walters," and he re-
plied: "Mr. Walters was trying to stir up trouble among the men going around and
turning to them and talking to them about organizing a union." 23 It is concluded,
therefore, that Respondent knew, prior to Walters' discharge on June 7, of his union
organizational activities in the bakery and that it timed his discharge to dampen any
incipient ardor of the employees for union affiliation
The conclusion that Walters was discharged for his union activities and not his
alleged neglect of duties is based, in part, on the precipitate manner in which the
discharge was effected. It stretches credulity too far to believe that there was only
a coincidental temporal connection between the lapse of 10 days from the time
Walters attended his last union meeting on May 28 and his discharge on June 7.
Additional reasons for concluding Walters was discharged for his union activities
are the absence of any serious complaint with respect to the quality of his work prior
to becoming a union advocate; Respondent's failure to make any reference to its
dissatisfaction with Walters at the time it discharged him; his satisfactory service
record of over 6 years during which time his hourly wage rate increased from 70
cents to 99 cents; and the unconvincing nature of the reasons which the Respondent
offered for Walters' peremptory discharge.
Argumentatively assuming that Respondent may have had some cause for dis-
satisfaction with Walters' work prior to the termination of his employment, yet, as
the Court of Appeals for the Third Circuit observed in a somewhat similar case, "it
apparently became intolerable only after he had joined the Union." 24 Moreover,
the Board has held that the fact that a valid cause for discharge exists does not excuse
a violation of the Act, if the evidence shows that the employer's real reason was
to discourage union activities of the dischargee 25 But even assuming arguendo
that Walters' work left something to be desired, the fact remains that Respondent
retained him in its employ for over 6 years, with no prior expressions of serious
dissatisfaction with his work until he began to engage in union activities.
Furthermore, Respondent's claim that Walters was discharged for repeatedly
neglecting his duties was not corroborated by them producing as witnesses two of
their present employees, Boughnight, Walters' foreman, and Williams, both of whom
allegedly had personal knowledge of the most vital circumstances surrounding
Walters' discharge 26 The unexplained failure to produce these two employees as
witnesses at the hearing renders the purported reasons for Walters' discharge dubious
and also warrants drawing an inference that, if produced, their testimony would not
22 Angwell Curtain Company, Inc v 1 L R B., 192 F 2d 899, 903 (C A 7)
a, For the reasons hereinafter indicated, Smith and Phillips are found to be supervisors
within the meaning of Section 2 (11) of the Act so as to make the Respondent liable for
their conduct, and their knowledge of Walteis' union activities is imputed to Respondent
21 N L R. B v. Electric City Dyeing Co , 178 F 2d 980, 983
2'N L R B v Whitin Machine Works, 204 F 2d 883, 885 (C A 1) ; N L R B v
Jamestown Sterling Coip , 211 F 2d 725, 726 (C A 2) , cf N L R B v Stilley Plywood
Company, Inc . 199 F 2d 319, 320 (C A 4).
21 Boughiiigbt came to work, according to Schweers, the bakei y manager, at 3 p in so
that his woiking hours were piactically the same as Walters
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been favorable to the Respondent 27 Their absence "not only strengthens the
probative force" of Walters' testimony "but of itself is clothed with a certain pro-
bative force." 28
This is a situation where it is believed that the Respondent has characterized the
union activity for which Walters was discharged as inefficiency in an effort to justify-
the discrimination against him. It is, therefore, concluded and found that by dis-
charging Walters, Respondent was guilty of discrimination in violation of Section
8 (a) (3) of the Act.
The complaint alleges that the Respondent, by Superintendent Smith and Foreman
Phillips, interrogated its employees concerning their union activities. Substantial
evidence on the record considered as a whole, including Respondent's discriminatory
discharge of Walters, supports this conclusion. This conclusion is based on the
following findings of fact: (a) Smith's conversation with Walters at the time he
fired him in which he asked Walters whether he had been "talking" union to the
colored employees; (b) Willie Lee, an employee, being asked by Smith on two dif-
fererit occasions 19 whether he had "signed a union card; and (c) Phillips' questioning
Lee as to whether he was going to the union meeting.30
The question of whether the Act has been violated, however, requires not only an
appraisal of the particular conduct which has been described above, but also a
determination of whether the Respondent Company is liable for the statements and
conduct of Phillips and Smith. Smith, superintendent of the bakery, had authority
to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or
discipline employees, as well as the authority to direct their work or to adjust their
grievances. Smith, therefore, is found to be a supervisor within the meaning of
Section 2 (11) of the Act.
Phillips, Respondent's foreman, earned a salary which was based on a fixed weekly
sum with no overtime, as distinguished from the rank-and-file employees whose sal-
aries were based on an hourly rate plus overtime. Phillips exercised independent
judgment and authority over subordinate employees, was referred to by employees
as a "foreman," supervised their work, disciplined them, transferred and assigned
them, recommended hirings and firings, and he was in a strategic position, as he was
the only foreman in charge of the bakery from 4 to 8 a. in. each working day, to
translate policies and desires of management to the employees. Moreover, the Trial
Examiner is convinced that the employees had just cause to believe that Phillips was
acting and speaking for and on behalf of management. It is found, therefore, that
Phillips is a supervisor within the meaning of Section 2 (11) of the Act so as to
impute to Respondent both his conduct and knowledge of union activities.31
It is concluded, therefore, that the questioning of the employees in this case is so
linked with other antiunion activity that it is part of a pattern of hostile conduct di-
rected against union activity. That Walters himself felt the restraint and interfer-
ence flowing from Smith's questioning of him is apparent from the fact that he de-
nied talking union to the employees, although he had in fact done so 32 Such in-
terrogation, carried on, as here, in a context of other unfair labor practices (Wal-
ters' discharge) constitutes unlawful interference with employees' rights under the
Act.33 It is found, therefore, that in considering the conduct described above, not
simply in isolation , but cumulatively and compositely as well, that it was intended
and so timed as reasonably to have the effect of interfering with the rights guaran-
teed to employees by Section 7 of the Act and constituted interference, restraint, and
coercion in violation of Section 8 (a) (1) of the Act.
The excellent brief of the Respondent and the authorities cited therein have been
carefully considered. However, the Trial Examiner finds no occasion for lengthen-
n Interstate Circuit v U S . 306 U S 208, 225, 226 , Al L R 13 v 1Va7lick and Schwalm
Company, et al., 198 F 2d 477, 483 (C A 3) , Concord Supplies & Fgnipment Corp, 110
NLRB 1873, 1879.
Paudler v. Paudler, 185 F. 2d 901, 903 (C A 5), ceit. denied 341 U S 920
29 The first time was "a couple of days" after Walters' discharge, and the second time
was 2 to 3 months after Walters' discharge
20 Smith's implied warning to Lee that the same thing would happen to him that hap-
pened to Walters if he signed a union card cannot be made the basis for an unfair labor
practice finding as the complaint does not allege that Respondent's employees weie threat.
ened with discharge if they engaged in union activities
31 Colonial Fashions, Incorporated, 110 NLRB 1197, 1198; P. B. Law and Son, 92 NLRB
826, Yale Filing Supply Co., 91 NLRB 1490.
23 N. L R B v. Syracuse Color Press, Inc, 209 F 2d 596, 599-600 (C A 2)
31 Joy Silk Mills, Inc v N L R B , 185 F 2d 732, 743 (C A, D C )
CLAUSSEN BAKING COMPANY 837
ing this report by citing, distinguishing, or discussing them, because it is believed
.that the controlling reasons for this decision have been sufficiently discussed.34
Moreover, counsel's arguments are based on an interpretation of the facts which are
not shared by the trier of these facts.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations 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
thereof
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices it will
be recommended that it cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies. of the Act. Having found that Respondent
-discriminatorily discharged Dudley E. Walters, it is recommended that Respondent
offer him immediate and full reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights and privileges, and make
him whole for any loss of earnings that he may have suffered by payment to him
of a sum of money equal to that which he normally would have earned from the
date of the discriminatory discharge or termination of employment to the date of
Respondent's offer of reinstatement, less his net earnings during said period. The
back pay provided for herein shall be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289; earnings in
one particular quarter shall have no effect on the back-pay liability for any other
period.
It is also recommended that Respondent, upon reasonable request, make available
to the Board and its agents, all payroll and other records pertinent to an analysis of
the amounts due as back pay.
Since it has been found that Respondent by various acts interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in the Act and par-
ticularly because the discriminatory discharge of Walters heretofore found strikes
at the roots of employee rights safeguarded by the Act, and the totality of this con-
duct discloses a propensity on Respondent's part to continue, although not necessarily
by the same means, to defeat self-organization, it will also be recommended that Re-
spondent cease and desist from infringing in any manner upon the employee rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
•case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Respondent is, and at all times relevant herein was, engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. Retail, Wholesale and Tobacco Workers Union, Local 15A, Retail, Wholesale
and Department Store Union, CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Dudley
E. Walters, thereby discouraging membership in the Union, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
,of the Act.
'Respondent's contention that the General Counsel failed to prove that Walters' dis-
charge discouraged union membership is answered in Radio Officers' Union of the commer-
cial Telegraphers Union, AFL v N L It. B., 347 U. S. 17, where the Supreme Court held
that the employer intended the natural result of his discriminatory action. This recog-
nition by the Court that specific proof of intent is unnecessary where employer conduct
Inherently discourages union membership is but an application of the common law rule
that a man is held to intend the foreseeable consequences of his conduct Thus, Respond-
ent's protestation that its conduct did not discourage union membership is unavailing
where a natural consequence of Walters' discriminatory discharge was such discouiage-
snent. Concluding that discouragement will result, it is presumed that Respondent in-
tendeii-such consequence In such circumstances intent to discourage union membership is
sufficiently established
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 ( a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication.]
Spencer Kellogg & Sons, Inc. and International Union of Oper-
ating Engineers , Local 68, AFL-CIO, Petitioner . Case No. 2-RU-
7773. March 19,1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Meyer G. Reines,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds,:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.'
3. No question affecting commerce exists concerning the repre-
sentation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
A contract between the Employer and the Intervenor, covering an
overall production and maintenance unit including the employees
sought herein,' was effective from September 30, 1954, to September
30, 1955, with a 60-day automatic renewal clause. Prior to July 30,
1955, the Intervenor gave the requisite 60-day notice of a desire to
modify the contract. The parties thereafter entered into negotiations
for a new contract, which culminated in the execution of a new con-
tract on September 15, 1955, to be effective for 1 year from the
expiration of the existing contract. On September 14, 1955, the Peti-
tioner made a telephonic demand for recognition upon the Employer,
and on September 19, 1955, filed its petition herein.
The Employer contends that the new contract is a bar to the peti-
tion. The Petitioner contends that the new contract is no bar under
the General Electric X-ray rule.'
1 Oil , Chemical & Atomic Workers International Union, AFL-CIO, Local 13-1, herein
called the Intervenor , intervened on the basis of its contract with the Employer covering,
inter alio ,s, the employees involved herein.
2 The Petitioner seeks here to sever "powerhouse " employees from the existing overall
production and maintenance unit.
8 General Electric X-Ray Corporation , 67 NLRB 997.
115 NLRB No. 128.