Continental Banking Co.

National Labor Relations Board - Board Decisions

Apr 15, 1953

104 N.L.R.B. 99 (N.L.R.B. 1953)

CONTINENTAL BAKING COMPANY 99
WE WILL offer Robert L. Owens immediate and full reinstatement to his former or
substantially similar position without prejudice to his seniority or other rights and
privileges and make him whole for any loss of pay suffered as a result of discrimination
against him.
ARMOUR AND 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.
CONTINENTAL BAKING COMPANY and ELBERT A. MARTIN
and FRANK H. SCHAFLER. Cases Nos . 14-CA-716 and
14-CA-718. April 15, 1953
DECISION AND ORDER
On December 15, 1952, Trial Examiner Bertram G. Eadie
issued his Intermediate Report in the above-entitled proceed-
ing, finding that 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 Intermediate Report attached
hereto. Thereafter, Respondent filed exceptions to the Inter-
mediate Report.
The Board' has reviewed the Trial Examiner's rulings made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.2 The Board has considered
the Intermediate Report, the exceptions, and the entire record
in the case, and hereby adopts the findings, conclusions, and
i 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 Herzog and Members
Murdock and Styles].
ZRespondent excepts to the admission by the Trial Examiner of evidence relating to the
joining of Local 535, United Construction Workers, by Martin and Schafler, the alleged dis-
criminatory dischargees herein , and of evidence relating to their expulsion from Local
No. 6, International Brotherhood of Firemen , Oilers, Maintenance Men and Helpers, AFL,
and from Local No. 4, Bakery & Confectionery Workers International Union of America,
AFL, respectively. For reasons appearing below, we find no merit in this exception.
The Trial Examiner reserved his ruling as to whether to admit in evidence General
Counsel's Exhibits Nos. 8 and 9, which were letters from Bakers Local 4 to Schafler noti-
fying him, first, of his trial before the Union's executive board, and second, of his expulsion
by vote of the membership . No ruling admitting or rejecting this evidence was ever made
by the Trial Examiner. We find the letters to be relevant and proper evidence of union ac-
tivity, and hereby admit them.
104 NLRB No. 17.
1 00 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendations of the Trial Examiner with the following
modifications, corrections,e and additions:
1. We agree with the Trial Examiner that Respondent
violated Section 8 (a) (1) of the Act by Chief Engineer' Daniels'
interrogation of employee Monroe Craig. In addition, we find
hat Daniels' accompanying threat to Craig that all the em-
ployees who joined the United Construction Workers "would
be fired if it took two men to replace one" constituted a fur-
ther violation by Respondent of that section.
2. We are also in agreement with the Trial Examiner's
finding that Respondent disc riminatorily discharged Martin
and Schafler in violation of Section 8 (a) (3) and (1) of the Act.
Martin had been employed by Respondent as a maintenance
mechanic since 1947 and Schafler as a bakeshop hand since
1936. Early in October 1951 both men joined Local 535, United
Construction Workers, affiliated with the United Mine Workers
of America (herein called the Construction Workers). More-
over, Martin signed up 6 or 7 fellow employees for that Union;
and Schafler attempted to interest at least 1 other employee
in union membership.
On December 10, 1951, Martin, who was also a member of
Local No. 6, International Brotherhood of Firemen, Oilers,
Maintenance Men and Helpers, AFL (herein called the Fire-
men), was cited to appear before the executive board of that
Union on December 13 to answer charges preferred by its busi-
ne s s manager. Martin did not obey this summons. In late Decem-
ber 1951 or early January 1952, Martin's supervisor, Chief
Engineer Daniels, had a conversation with Monroe Craig, an em-
ployee who had recently been transferred into Daniels' mainte-
nance department. According to Craig's credited testimony:
I told Mr. Daniels that I'd just [been] up to join the
Firemen and Oilers Union Local 6. I also told him Mr.
O'Shaughnessey4 asked me did I know Elbert Martin that
used to work for Continental [the Respondent]. I told him
I knew Elbert Martin and [he] still worked there. Mr.
Daniels said I know, Weber, business agent of Local 6,
has already asked for Martin's discharge. I guess the
reason he hasn't been discharged, Vance Halterman' is in
the hospital, Claude Hill' is out of town.
It was then that Daniels questioned Craig about membership
in the Construction Workers and threatened that those who
joined that Union would be discharged, as set forth above.
On December 21 Schafler, who was a member of Local No.
4, St. Louis, Missouri, Bakery & Confectionery Workers
International Union of America, AFL (herein called the Bakers),
3 In addition to a number of more important errors dealt with below , the intermediate Report
contains several inadvertences which do not alter our agreement with the Trial Examiner's
findings and conclusions, but which we hereby correct as follows: ( 1) The chief engineer
did not note his instructions to oncoming mechanics in a logbook . Production superintendents
used the logbooks to indicate maintenance needs; the chief engineer wrote his instructions
to the mechanics on their individual worksheets. (2) Martin became a member of the United
Construction Workers on October 4,1951 . not October 3. (3) Martin ' s work for company officials
was done at the plant, presumably during working hours , not on the outside after hours.
4Otherwise unidentified in the record , but apparently an official of the Firemen.
5 General manager of Respondent 's St. Louis plant.
6 Regional manager of several of Respondent 's plants.
CONTINENTAL BAKING COMPANY 101
was cited to appear before the executive board of that Union
on January 5, 1952. He did so,' but on January 15, 1952, was
notified that he had been expelled by vote of the Baker's
membership. Early in January, Bakeshop Superintendent Van
Haag, to whom Schafler's supervisor reported, asked Shipping
Room Foreman George Most what he knew about "this other
union" and, apparently referred to the Bakers, remarked to
Most that "any one that wasn't satisfied with the union we now
had could get out or they would be eliminated or discharged."
On the evening of January 23, 1952, Martin was discharged
by Chief Engineer Daniels without warning or explanation. At
a conference which he obtained with Daniels the following day,
Daniels told Martin that he could "get" him on three different
grounds .8 When Martin said, "Local 6 asked you to fire me,
isn't that right?" Daniels replied: "I'm not answering no
questions and find myself behind the 8-ball." Martin then asked
for a letter stating the reason for his termination, but Daniels
and Office Manager Vaughn refused to furnish such a letter
until January 28, when Martin invoked a Missouri statute
which requires that terminated employees be furnished such
letters on request.
Schafler was suddenly notified of his dismissal by Bakeshop
Superintendent Van Haag at the end of his shift on January 25,
1952. When Schafler began to say to Van Haag that he was in
trouble with the Union, Van Haag waved his hands and said,
"I don't know about it, and I don't want to know nothing about
it." However, Schafler persisted in relating the facts of his
joining the Construction Workers and his expulsion by the
Bakers, whereupon Van Haag conceded: "Well, I know I have
heard rumors about it." Though present at the hearing, Van
Haag did not deny having made this remark to•Schafler.9 Re-
spondent had in fact been aware of these events for several
weeks. Schafler testified without contradiction that he had told
two supervisors, Bakeshop Night Foremen Balch and Theobald, io
of his membership in the Construction Workers. His conversa-
tion with Theobald had taken place on January 5, just after he and
Theobald had stood trial before the Bakers' executive board."
Although it was not contended by either party that the dis-
charge of Martin or Schafler was pursuant to any current
7 The Trial Examiner incorrectly stated that Schafler ignored the summons to appear before
the Bakers ' executive board.
9 Respondent 's defenses are discussed below.
We hereby correct the Trial Examiner 's erroneous finding that Van Haag was a member of
the Bakers.
10 Referred to by the Trial Examiner as Theobold.
11 Respondent contends that neither Balch nor Theobald were supervisors within the meaning
of the Act . On each shift there were apparently 8 to 18 employees who worked under the
direction of each bakeshop foreman . The bakeshop day foreman was Resetarits , whose al-
leged complaints about Schafler , according to Respondent , largely motivated its decision to
make the discharge . Night Foremen Balch and Theobald had greater responsibility than
Resetarits because Bakeshop Superintendent Van Haag was not on duty at night . We find
that both Balch and Theobald were supervisors.
Our finding that Respondent was aware of the union activities of Martin and Schafler is
further supported by the fact that Respondent 's St. Louis plant is of relatively small size
In the maintenance department where Martin worked, there were only 6 employees; in the
bakeshop where Schafler worked , there were not more than 18 employees on each shift.
283230 0 - 54 - 8
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union-shop contracts with the Firemen or the Bakers, and
although no such contracts were shown to exist, it is noteworthy
that on January 31, 1952, the Bakers wrote a letter to General
Manager Halterman informing him that Schafler and others
had been expelled from that Union. The question arises as to
what possible purpose such a letter could serve, unless the
Bakers had some arrangement with Respondent for taking
action in the case of employees so expelled.12
Respondent's Defenses
Contrary to the inferences raised by the facts set forth
above,19 Respondent contends that it discharged both Martin
and Schafler for cause. In both cases, however, the reasons
advanced were shifting, inconsistent, and not credible:
(a) Martin
Respondent now defends its discharge of Martin on the follow-
ing grounds: (1) He engaged in roofing work in his off hours,
so that he was frequently drowsy while on duty; (2) he was a
troublemaker; (3) he arranged with another maintenance me-
chanic to work his shift on January 22 without first asking the
permission of Chief Engineer Daniels; (4) he was insubor-
dinate; and (5) he talked excessively during working hours. In
his conference with Martin on January 24, 1952, however,
Daniels mentioned only the last three grounds. And in the
letter which Respondent furnished Martin on January 28, 1952,
only the last ground was assigned as the reason for discharge.
(1) As pointed out by the Trial Examiner, Martin withdrew
from his outside roofing business early in December, more
than a month before his discharge. Although Martin himself
informed Daniels of this outside roofing work as early as
February 1951, Daniels never instructed him to give it up.
(2) Regarding the complaint that Martin was a "trouble-
maker," the only specific evidence adduced concerned Martin's
relations with Wrapping Room Superintendent Bergke.14 In
September 1951 Martin had warned Bergke that if he con-
tinued to stand too close to Martin while Martin was working,
he was "going to get hit on the head one of these days" and
that Martin would "lower the boom on him." The following
month Martin, encountering Bergke in the lunchroom, had
invited him to go outside and fight. Because these isolated
events took place manymonths before the discharge and because
Respondent made no mention of them to Martin at the time of
the discharge, we agree with the Trial Examiner that they
were not the real cause of Respondent ' s action.15
12 Respondent points out that this letter was not received by Respondent until after the dis-
charge of Schafler and that none of the other persons mentioned in it were ever discharged.
However , it is not possible to know what action Respondent would have taken in response to
the letter if Martin and Schafler had not already filed unfair labor practice charges.
13Cf. Angwell Curtain Co. v N.L.R.B., 192 F. 2d 899 (C.A. 2), enfg. 94 NLRB 675.
14 The Trial Examiner inadvertently referred to Bergke as "foreman of the bake shop."
15 Cf. N L R.B. v. Pratt, Read and Co , 191 F. 2d 1006 (C.A. 2), enfg. 90 NLRB 1499.
CONTINENTAL BAKING COMPANY 103
(3) The facts about Martin's alleged failure to obtain per-
mission to have another man work his shift are these. At about
6 p.m. on January 22 Martin, who was sick that evening, tele-
phoned to the plant and asked maintenance mechanic Monroe
Craig," who was then on duty, to remain and work the night
shift in his place. In order to spare Respondent the cost of
paying Craig at an overtime rate for this work, Martin sug-
gested that Craig punch Martin's timecard and that Martin
would then repay him either in money or in future work. Such
swapping of shifts was the custom among Respondent's main-
tenance men, and up until the time of Martin's discharge it
had not been necessary for them to obtain the advance per-
mission of any supervisor.'? However, Craig, who had been
newly transferred to the maintenance department, consulted
Bakeshop Superintendent Van Haag and was advised to tele-
phone Chief Engineer Daniels. He did so and was directed by
Daniels to do the work but to punch his own card instead of
Martin's. Like the Trial Examiner, we find that this incident
was only a pretext, not a genuine reason, for Martin's dis-
charge.
(4) As for the charge of insubordination, Daniels himself
admitted that Martin never talked back to him or argued with
him.
(5) The only accusation against Martin which Respondent
advanced in response to Martin's request for a written state-
ment of the grounds for his discharge was his alleged ex-
cessive talking. The record does not support that accusation.
Martin's immediate superior, Assistant Chief Engineer Fitch,
testified that Martin did not talk excessively. Although Chief
Engineer Daniels complained of several instances in which he
said that Martin had talked for 5 minutes with truckdrivers
or with Schafler, he admitted that he himself occasionally
had talked to Martin for 5 to 10 minutes, during working
hours, about fishing. We agree with the Trial Examiner that
Respondent did not discharge Martin for excessive talking.
(b) Shafler
At the time of Schafler's discharge, Bakeshop Superintendent
Van Haag simply told him that his services were no longer
required. No reasons were given." Three days later, in reply
16 The Trial Examiner inadvertently states that it was Willard whom Martin persuaded to
work in his place that evening.
17 Such was the credited testimony not only of Martin and Willard, but also of Assistant
Chief Engineer Fitch. It had not been required that the men disturb Chief Engineer Daniels
at his home , as Martin would have had to do if he had sought his permission at 6 p . m. After
Martin's discharge, Daniels summoned his men to a meeting and altered the rule in this
respect.
l6Such is Schafler 's testimony , which we credit , as did the Trial Examiner . According to Van
Haag 's testimony , he told Schaffer that the discharge was because of "all the trouble that
we had during the course of the day 's operations , and he had been reprimanded and warned
about these things before, that it has come to the point where we just couldn 't tolerate such
working conditions ." Because of the vagueness of this alleged accusation , because it differs
from the grounds given by Van Haag in writing only a few days later , and because we find
that Schafler was never seriously reprimanded , we do not credit Van Haag 's version Failure
to inform an employee why he is being discharged is a factor to be considered in deter-
mining the issue of unlawful discrimination . N.L.R.B . v. El Paso-Ysleta Bus Line, 190 F.
2d 261 (C.A. 5), enfg. 91 NLRB 590.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Schafler's assertion of his statutory right to a letter setting
forth the reasons for his dismissal, Van Haag wrote:
Our reason for dismissing Mr. Schafler was that he
would not give the proper cooperation in performing his
duties. He resented correction from the bake shop super-
intendent and had been cautioned a number of times
about this before the date of his dismissal.
At the hearing and in its brief, Respondent advanced a
number of new grounds. It there alleged that Schafler (1) talked
excessively; (2) caused dissension among employees; (3) was
insubordinate; (4) failed to maintain the correct weight ad-
justment on his dividing machine; and (5) carelessly allowed
double loaves to move up into the "overhead proofer" so that
"smear-ups" interrupting production resulted. The fact that
none of these grounds were mentioned at the time of the dis-
missal is persuasive evidence that they were not the real rea-
sons for Respondent's decision." Nevertheless, we will con-
sider them briefly.
Van Haag and Bakeshop Foreman Resetarits testified to two
occasions in early January when they saw Schafler talking with
Martin at Schafler's divider machine while it was operating.
According to Van Haag, the conversations lasted 4 or 5
minutes each. According to Resetarits, one of them lasted
20 minutes." Van Haag was certain that the first conversation
occurred on Friday, January 18. However, when it was shown
that Martin did not work that day, Van Haag changed his
testimony. Neither supervisor expressed to Schafler any dis-
satisfaction with this or any other alleged excessive talking.
No instances were cited by Respondent to substantiate its
complaint that Schafler caused dissension among the employees.
The accusation that he failed to maintain the weight adjustment
of the divider machine is based upon a single incident 6 to 10
months before his discharge. The only example given of
Schafler's alleged insubordination was his temporary refusal,
about January 1951, to add to his other duties the task of
pushing racks to and from a steam box 25 feet away from
his work station. In a conference with Van Haag, Schafler
protested that the new assignment was contrary to custom
both in Respondent's plant and elsewhere . However, when
Van Haag declared that it "was going to be the practice in
this plant from now on out," Schafler agreed to do the extra
work and did so from then on.
The allegation that Schafler negligently permitted too many
"doubles" to move up into the "overhead proofer" is now
heavily stressed by Respondent, though no mention was made
of it at the time of Schafler 's discharge . Lumps of dough of
i9Coca-Cola Bottling Company of St. Louis v . N.L.R.B ., 195 F . 2d 955 (C.A. 8), enfg. as
modified 95 NLRB 284.
"Chief Engineer Daniels testified that the oil pump on the divider had to be repaired 2 to
3 times a week . On some occasions , he said , a maintenance mechanic would stand at the
divider and oil it by hand until a particular batch of bread had been finished so that the
machine could be shut down for these repairs.
CONTINENTAL BAKING COMPANY 105
the proper weight would emerge from the divider machine
operated by Schafler and would be conveyed to the rounder
machine , 3 or 4 feet away , which was also operated by Schafler.
In the latter machine the partly shaped loaves would some-
times adhere to each other , forming "doubles." As such
doubles traveled by conveyor belt from the rounder to the
overhead proofer, it was the duty of the divider operator to
separate or remove them . Otherwise , when they emerged
from the overhead proofer and went into the molding machine,
they would "smear" the machinery and cause a short shutdown.
Respondent asserts that during the last 2 or 3 weeks of
Schafler ' s employment , it was losing 20 to 30 minutes a day
because of smears; '" that it had much less trouble with the
other divider operator ; and that Van Haag had warned Schafler
about the situation in September and December 1951 and on
January 21-23, 1952."
On the other hand, Van Haag admitted that it was possible for
doubles to slip past a divider operator while he was pushing
racks to and from the steam box 25 feet away." The situation
with respect to smears and doubles , moreover , was not a new
one. Bakeshop Foreman Resetarits testified that he had been
cautioning Schafler about doubles once or twice a week ever
since Schafler began operating the divider machine, 22 years
before his discharge." And Van Haag asserted that he had been
receiving complaints from Resetarits regarding Schafler's in-
efficiency in eliminating doubles during that entire period.
In spite of these long continuing alleged complaints regarding
doubles, Respondent paid high tribute to Schafler's work as
late as January 25, 1951, tellitig him and his wife that his work
and his record were "above reproach" and that it was some-
thing that he could be "mighty proud of.""
If Respondent had really believed that Schafler let more
doubles go by than did other divider operators, it is difficult
to see why it waited 2Z years to replace him. Even if his
alertness in catching doubles diminished, as Respondent con-
tends, we are persuaded that, absent his union activities,
Respondent would have rewarded his 16 years' service by
transferring him to some other operation instead of discharg-
ing him without notice.
tt The record shows , and we find , that smears were caused by many other factors than
failure on the part of the divider operator to separate or remove doubles.
22 In the Intermediate Report the Trial Examiner credits "the testimony of Schafler to the
effect that throughout the years of his employment no complaints were made to him as to
his conduct or efficiency." Schafler did testify that he had never been "criticized" or
"warned." However , he admitted that Bakeshop Superintendent Van Haag had occasionally*
talked with him about carelessness at the divider and that Foreman Resetarits had some-
times talked to him about smears and had occasionally implied that some were Schafler's
fault . We find that occasional complaints were made to Schafler about his work , but that he
was never seriously reprimanded or threatened with discharge.
24 The partially formed loaves move along at the rate of one a second.
2The Trial Examiner erroneously found that Schafler had been operating the divider for 5
years.
tfThe Trial Examiner incorrectly found that this event occurred about a year before the
hearing herein, namely , about August 1951.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent offered no definite evidence to support the only
ground on which it relied at the time of Schafler's discharge,
namely that Schafler was uncooperative and resented correction
by the bakeshop superintendent. Bakeshop Superintendent Van
Haag merely testified that Foreman Resetarits complained to
him in January 1952 of Schafler's poor cooperation and resent-
ment of orders. Significantly, Resetarits himself said nothing
about this when he took the witness stand. It is also significant
that on January 25, 1952, when Schafler returned to the locker
room after being discharged by Van Haag, he encountered
Resetarits who said, "I'll see you Sunday." Schafler replied,
"No, you won't. I've just been fired." Resetarits then rejoined,
"Well, I'll be damned . . . I didn't know a thing about it." ffi
Like the Trial Examiner, we find that Respondent did not
discharge either Martin or Schafler for cause. We find further
that in discharging them it discriminated against them to dis-
courage membership in the Construction Workers and to en-
courage membership in the Firemen and the Bakers, respec-
tively, in fulfillment of the threats made by Chief Engineer
Daniels to employee Craig and by Bakeshop Superintendent
Van Haag to Shipping Room Foreman George Most, and in
violation of Section 8 (a) (3) and (1) of the Act.
Because the unfair labor practices here found are of such a
nature as to justify an inference that Respondent may commit
other kinds of unfair labor practices, we believe it necessary
to order that Respondent cease and desist from in any manner
infringing upon the rights guaranteed in Section 7 of the Act.
ORDER
Upon the basis of the entire record in this case, and pursuant
to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders
that Respondent, Continental Baking Company, St. Louis, Mis-
souri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in Local No. 6, International
Brotherhood of Firemen, Oilers, Maintenance Men and Helpers,
AFL, or Local No. 4, St. Louis, Missouri, Bakery & Confec-
tionery Workers International Union of America, AFL, or in
any other labor organization, or discouraging membership
in any labor organization, by discriminating against its em-
ployees in regard to their hire, tenure, or any term or con-
dition of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent permitted by the
proviso to Section 8 (a) (3) thereof.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Offer Elbert A. Martin and Frank H. Schafler immediate
and full reinstatement to their former or substantially equiv-
X This conversation was not denied by Resetarits.
CONTINENTAL BAKING COMPANY 107
alent positions, without prejudice to their seniority or other
rights and privileges.
(b) Make whole Elbert A. Martin and Frank H. Schafler, in
the manner set forth in the portion of the Intermediate Report
entitled "The Remedy," for any loss of pay which they may
have suffered by reason of Respondent's discrimination against
them.
(c) Post at its plant in St. Louis, Missouri, copies of the
notice attached hereto as Appendix A.n Copies of this notice,
to be furnished by the Regional Director for the Fourteenth
Region, shall after being duly signed by Respondent's official
representative, be posted by it immediately upon receipt
thereof, and maintained by it for a period of sixty (60) con-
secutive days thereafter in conspicuous places, including all
places' where notices to its employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
these notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Fourteenth Region,
in writing, within ten (10) days from the date of this Order,
what steps it has taken to comply herewith.
27 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
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, we hereby notify our em-
ployees that:
WE WILL NOT encourage membership in Local No. 6,
International Brotherhood of Firemen, Oilers, Maintenance
Men and Helpers, AFL, or in Local No. 4, St. Louis,
Missouri, Bakery & Confectionery Workers International
Union of America, AFL, or in any other labor organiza-
tion, or discourage membership in any labor organization,
by discharging any of our employees or in any other
manner discriminating against them in regard to hire,
tenure, terms, or conditions of employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
labor organizations , to bargain collectively through rep-
resentatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargain-
ing 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 member-
ship in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Elbert A . Martin and Frank H . Schaffer
immediate and full reinstatement to their former or sub-
stantially equivalent positions , without prejudice to their
seniority or other rights and privileges ; and we will make
them whole for any loss of pay which they may have suf-
fered by reason for the discrimination against them,
CONTINENTAL 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 and Recommended Order
Upon charges filed by Elbert A. Martin and Frank H . Schafler against Continental Baking
Company,' the General Counsel 2 of the National Labor Relations Boards by the Regional
Director for the Fourteenth Region , St. Louis, Missouri , Issued an order on June 2, 1952,
consolidating the two cases for the purposes of hearing and, coincidental therewith , issued
a consolidated complaint against the Continental Baking Company ,4 alleging that the Respondent
had engaged in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended , 61 Stat. 136 6
With respect to the unfair labor practices the complaint alleges in substance that: The
Respondent on or about January 23, 1952, discharged Elbert Martin , and on or about January
25, 1952, discharged Frank Schaffer , and thereafter failed and refused and does now fail
and refuse to reinstate them to their former or substantially equivalent positions or em-
ployment ; the Respondent discharged , and failed and refused , and does now fail and refuse
to reinstate the said Martin and Schafler in order to discourage membership in a labor
organization , and because they supported and engaged in concerted activities with other
employees for the purposes of collective bargaining and other mutual aid and protection;
Respondent and its officers , agents , and supervisors , from on or about December 15, 1951,
and thereafter , interrogated its employees at its St . Louis, Missouri , establishment con-
cerning their union membership and affiliation, threatened its employees with discharge if
they assisted the Union, and warned its employees to refrain from assisting the Union and
from engaging in concerted activity on behalf of the Union.
Thereafter the Respondent filed its answer to the complaint in which it admits the juris-
dictional allegations and the discharges of Elbert A. Martin and Frank H . Schafler and its
refusal to reemploy them ; but denies the commission of any unfair labor practices.
Purusant to notice a hearing was held at St. Louis, Missouri , on August 25, 26, 27, 28,
and 29 , 1952, before Bertram G. Eadie , the Trial Examiner designated by the Chief Trial
Examiner . All the parties were represented by counsel. Full opportunity to be heard and to
examine and cross-examine witnesses was afforded all parties . Upon the opening of the
hearing , counsel for Respondent made a motion to sever the two cases and try them sepa-
rately. The motion was denied.
At the conclusion of the hearing the General Counsel and counsel for the Respondent
moved to conform the pleadings to the proof as to formal matters . The motions were granted.
All parties were granted 20 days from August 29, 1952, for the filing of briefs and/or pro-
posed findings of fact or conclusions of law or both. General Counsel and counsel for the
Respondent respectively have duly filed their briefs with the Trial Examiner , which have
been duly considered.
i Filed January 25, 1952 , and January 28, 1952, respectively.
2 Hereinafter referred to as the General Counsel.
$ Hereinafter referred to as the Board.
4Hereinafter referred to as the Respondent.
6 Hereinafter referred to as the Act.
CONTINENTAL BAKING COMPANY 109
Upon the entire record and from his observation of the witnesses, the Trial Examiner
makes the following:
FINDINGS OF FACT
L THE BUSINESS OF THE COMPANY
The Respondent is and has been at all times material herein , a corporation organized and
existing by virtue of the laws of the State of Delaware with its principal office and place of
business located at 630 Fifth Avenue, New York City. It has other establishments located
in St . Louis, Missouri; Akron, Ohio; Berkley, Ohio; Clarksdale, Mississippi; Dallas, Texas;
and cities in various other States where It is now and has been continuously engaged in the
business of baking , selling, and distributing bakery products consisting principally of bread
and cakes.
The Respondent in the course and conduct of its business operations in its establishment
located at 1620 Biddle Street, St. Louis, Missouri, during the 12-month period ending July
30, 1952, purchased goods and raw materials consisting principally of flour, lard, milk,
sugar , and yeast, valued in excess of $1,000,000, of which approximately 50 percent was
shipped in interstate commerce to its St. Louis, Missouri, establishment from points located
outside the State of Missouri. During the same period the Respondent processed, sold, and
distributed bakery products consisting principally of bread, valued in excess of $ 50,000. of
which approximately 50 percent was transported, sold, and shipped in interstate commerce
from the St. Louis, Missouri, establishment to points outside the State of Missouri. The
Respondent concedes that it is engaged in commerce within the meaning of Section 2, subsec-
tion 6 of the Act
The Trial Examiner finds that the Respondent is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
United Construction Workers, Local 535, affiliated with United Mine Workers of America;
Bakers ' Union No. 4, St Louis, Missouri, Bakery & Confectionery Workers, International
Union of America; International Brotherhood of Firemen, Oilers, Maintenance Men and
Helpers, Local No. 6, affiliated with American Federation of Labor; are labor organizations
admitting to membership employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. Restraint and coercion charged to the Respondent
The testimony of employee Monrow Craig is credited by the Trial Examiner to the effect
that during December 1951 or January 1952, Daniels, the chief engineer in charge of the
maintenance department, asked him if he had joined the United Construction Workers Union,
and that Daniels in the same conversation had stated , " I know the biggest majority of you
belong to it," and "... they would allbefired if it took two men to replace one ," and further,
"He had seen this happen before on another Union trying to organize the plant ." This testimony
was not denied by Daniels.
The Trial Examiner credits the testimony of George Most to the effect that in a conversa-
tion held with Bakeshop Superintendent Van Haag he was asked by Van Haag ". . . what I knew
about this other Union" and "any one that wasn't satisfied with the Union we now had could
get out or they would be eliminated or discharged . I don't remember the exact words."
Elbert A. Martin was discharged by the Respondent on January 23, 1952, and Frank H.
Schafler on January 25, 1952 . Both Martin and Schaffer had been employed by the Respondent
for a number of years; Martin from April 7, 1947, in the maintenance department and Schafler
from June 15, 1936, in the baking department. Martin was and had been a member of Local
No. 6 and Schaffer a member of Local No. 4. They both joined the Construction Workers;
Martin on October 4, 1951, and Schaffer on October 3, 1951.
On December 10, 1951 , Martin was ordered to appear at a subsequent date before the
executive board of Local No. 6 to answer charges preferred by Business Manager Weber
On December 21, 1951 , Schafler was notified to appear before the executive board of Local
No. 4 on January 5, 1952, to show cause why "you should not be charged with the following
charges. Page 70, sec. 7a of the Constitution and book of Laws, of the International Union,
and of Local Union No. 4 Line 1, 3, 5 and 9."
1 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin and Schaffer ignored the notices and each failed to appear before those respective
boards . Martin remitted his dues of $ 10 to Local No . 6 for the months of January , February,
and March , 1952, which were returned to him under date of January 25, 1952 . Schaffer was
advised " The Executive Board recommended to the general meeting of January 12, 1952 that
you Frank Schafler , be expelled on the charges preferred."
When Martin appeared for work for the 12 p.m shift on January 23 , 1952 , his timecard was
not In the rack and his position was filled by another employee . On January 25, 1952, at the
conclusion of Schafler ' s work , Bakeshop Superintendent Van Haag took his timecard out of
the rack and said , "As of today , your services with the Continental Baking Company were no
longer required."
On January 25, 1952, Martin addressed a letter to James Vaughn, acting manager of Re-
spondent , requesting the basis for his dismissal to which Respondent replied stating, "Our
reason for dismissing Mr. Martin was that he was not as efficient in performing his duties
as he should have been by reason of the fact that he spent a great deal of time visiting with
other employees during his regular working hours ." Schaffer made a similar request to
Respondent for "the reasons of my dismissal and other facts " to which Respondent replied,
"Our reason for dismissing Mr. Schaffer was that he would not give the proper cooperation
in performing his duties . He resented correction from the Bakeshop Superintendent and had
been cautioned a number of times about this before the date of his dismissal."
The distinctive facts relating solely to Martin other than the preceding paragraphs of this
report , are the following:
The maintenance department in which Martin was employed had jurisdiction over the entire
plant of Respondent , insofar as the upkeep and repair of the buildings , equipment , and ma-
chinery was concerned . The building , housing the plant, was approximately 250 x 300 feet,
occupying an entire block . It was two stories and basement . The entire structure besides the
operating machines required daily routine inspections . These inspections covered the fire-
fighting , water , drainage , plumbing , heating, boilers , ovens, furnaces , motors , and electrical
equipment , which necessitated the mechanic in charge of the shift to inspect the roof, first and
second floors , basement , and outside portions of the building.
The staff of the maintenance force consisted of a chief engineer , assistant chief engineer,
and 4 mechanics , operating in three 8-hour shifts : 8 to 4 ; 4 to 12 ; 12 to 8. These shifts
rotated around the clock , and provided for changes in operators to comply with the hourly
standard workweek . The chief engineer , however , always worked on the 8 to 4 shift with the
mechanic or assistant chief engineer rotated to that shift . The mechanics or assistant chief
engineer on the 4 to 12 and 12 to 8 shifts had the full responsibility during those hours of
the repair and operation of the entire plant insofar as the maintenance department was
concerned , especially in case of emergencies and breakdowns , when the mechanic on such
shifts would be called upon to act entirely on his own initiative.
The chief engineer ran a logbook which noted his orders or directions to the on -coming me-
chanics concerning their shifts, outlining their work and the then repairs to be made , or worked
upon, other than the routine inspections , repairs, and maintenance of the machines. In the
case of a breakdown , the mechanic of the maintenance department on the shift would be signaled
by a gong in the office of the maintenance department . It was sounded from a central location
in the bakeshop on the first floor where the one sounding the gong was supposed to await
the mechanic responding . There was no directional signal as to where the trouble was to be
located . The mechanic or the assistant engineer on the shift first had to ascertain the location
and cause of the trouble, and in many instances it required his return to the maintenance de-
partment in order to gather tools or parts to make the required repairs . This procedure neces-
sitated the mechanic to talk to some of the employees of Respondent in all parts of the plant
and at all hours of the day . Inmost instances a certain amount of conversation was necessitated
with the operator of the machine in order to ascertain the trouble and make the necessary re-
pairs or adjustments.
Martin during his employment with the Respondent received the ingrade raises of pay of
the other employees . On occasions he performed personal work as a mechanic during off
hours for officers of the Respondent . During his entire term of employment he never received
a reprimand from his supervisors in criticism of his mechanical skill . Daniels , the chief
engineer , subscribed to the contention of the General Counsel that Martin was a good me-
chanic.
In the spring of 1951, during his days off, Martin accepted employment with a roofer and
shortly thereafter became a partner with him in the roofing business . This partnership was
brought to a close in early December 1951 . At the end of his summer vacation in July 1951
he asked Respondent for an extra week's vacation and was granted 4 days additional leave
without pay in order to devote the time to the roofing business . The Respondent through its
chief engineer and superintendent was well acquainted with Martin ' s outside business ac-
CONTINENTAL BAKING COMPANY 1 1 1
tivities . The chief engineer also carried on outside business activities during his off hours
from the plant and such activities were also known to the Respondent . No complaints were
ever made to Martin or the chief engineer by the Respondent for such outside activities and
during alltimesmaterialhereto , the Respondent had no rule or regulation pertaining thereto.
Although a member of Local No . 6, Martin became a member of the United Construction
Workers on October 3, 1951.
On January 22, 1952 , Martin who was regularly due to report at 12 p.m ., after 4 days off,
caused by the change of shifts, called Willard on the phone who was then on the 4 to 12 shift
at the plant to state he had been taken ill and asked him if he would work in his place and
stead , and sign his timecard on the following 12 to 8 shift that night ; or if he did not care to
do that he would pay him either in time or money . Willard worked the shift for Martin but
before doing so, he called Daniels who consented to the substitution . Other members of the
maintenance staff had followed a like procedure at various times in the past . The following
day Daniels called Fitch and instructed him to work the following night on the 12 to 8 shift,
in place of Martin who was due to return for work at that time . Daniels then removed Martin's
timecard from the rack . Upon reporting for work Martin found that his timecard had been
taken from the rack and that his swing on the shift was to be filled by Fitch . He then called
Daniels at his home and was advised by him is substance that he had been discharged.
The testimony of the chief engineer , assistant chief engineer , and fellow employees support
the observation made by the Trial Examiner that insofar as the mechanical skill of Martin
is concerned he was at all material times a well -qualified and competent mechanic . During
the years of his service and up to the time of his discharge there had never been any criticism
of his mechanical skill or ability in performing his duties for the Respondent.
The morning following his discharge Daniels informed him that his reasons for discharging
him were ". . . for insubordination , talking too much , which I warned and told you not to
or asked you not to , and taking the authority upon yourself to have other men ring your card
which I had let other men change shifts but it was a practice that he was to tell me, to let me
know so at least I know what men was on duty."
The testimony of Martin is credited by the Trial Examiner as to the reasons given by
Daniels at the time for his discharge of Martin , to wit:
Q. What was said in that conversation?
A. Mr. Daniels was in his office in the maintenance department. He asked me to be
seated . I sat down. He said "What the --" I said " What's this , I am fired." He said "Yes.-
'What ' s the reason I am fired ? Has my work been satisfactory?" He said "Yes."
" What' s the reason I am fired . ?" He stuck up his finger said "One, you called Mr.
Monroe without calling me."
I said "Always been the policy to call the plant . We always work it that way."
He said " If I can't get you on that , get you for talking too much."
I said, "Well , you have to prove that to me."
He said, " I can get you on insubordination . No. 3."
1 said, " That covers a wide field , name one of them."
I said, " To tell you the truth , Mr. Daniels , Local 6 asked you to fire me, isn't that
right? "
He said , " I am not answering no questions and find myself behind the 8-ball We will
go upstairs and talk to Mr. Jimmy Vaughn."
A. He offered me a letter of recommendation but he wouldn't give me a letter for
termination , why I was being let out.
The testimony of Craig is credited, in the following related incident:
A. I told Mr. Daniels that I'd been up to join the Firemen and Oiler ' s Union Local 6.
I also told Mr. O'Shanghnessey asked me did I know Elbert Martin.
A I told him Mr. O'Shanghnessey asked me did I know Elbert Martin that used to work
for Continental. I told him I knew Elbert Martin and still worked there . Mr. Daniels
says I know, Weber , business agent of Local 6, has already asked for Martin 's discharge.
I guess the reason he hasn't been discharged , Vance Halterman is in the hospital , Claude
Hill is out of town.
Q. Who is Vance Halterman?
A. Manager of the plant.
1 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Who is Claude Hill?
A. He is manager of several plants.
Q. Was anything else said at this conversation?
A. Also said that Mr. Daniels said that he had seen this happen before on another
union, trying to organize a plant . If it took two men, they would all be fired if they took
two men to replace one.
Q. Who would be fired?
A. All the maintenance that belong to this Missouri Miner 's Union.
Q What Union?
A. Missouri , I can ' t think of it now.
Q. You mean United Construction?
A. United Construction Workers.
Q. Did he ask you if you had signed a card at that time?
A. He did.
Q. When you replied , what did he say?
A. He said ' • I know the biggest majority of you belong to it."
Q. To what?
A. To the United Construction Workers . They would all be fired if it took two men to
replace one.
The derelictions in duty charged to Martin by the Respondent (a) that he talked with other
employees ; (b) that he was insubordinate ; (c) that he assumed authority in calling Willard,
the maintenance man on the 4 to 12 shift , to work in his place instead of calling Daniels,
the chief engineer ; (d) that he had worked outside the plant on off hours during his employ-
ment by the Respondent without its consent and detrimental to its interests ; and (e) that he
appeared tired during his working hours ; and each resolved by the Trial Examiner contrary
to the contention of the Respondent that Martin was anything but employable in the particular
position he occupied for the Respondent
(a) That he talked with other employees
There was no rule in force at the plant forbidding employees from engaging in conversa-
tion . He was detected by Chief Engineer Daniels in conversation with a driver of one of
Respondent 's trucks for a period of 5 minutes . Daniels witnessed the 2 men from a distance
of approximately 250 to 300 feet across the plant . He did not know what the conversation was
about and took no further immediate action in the matter . He, on another occasion , witnessed
Martin and Schafler in conversation in the maintenance department for a space of a few
minutes, again he took no immediate action.
The Trial Examiner credits the testimony of Martin to the effect that the first conversa-
tion set forth above with the driver of a truck at Respondent ' s bridge was solely in relation
to Martin's duties . He had been called by the driver who was having some difficulty with
the electric switch or fuse on the outside wall of the building through which electricity was
furnished to trucks while at Respondent ' s bridge when the truck engines were shut off. The
conversation took place at thetimehemadea repair or adjustment and was in relation thereto.
According to Daniels ' testimony , the conversation lasted approximately 5 minutes and was
held in September 1951 , approximately 5 months prior to his discharge.
The Trial Examiner credits the testimony of Schaffer in regards to the conversation taking
place between him and Martin to the effect that it was held after Schaffer had finished his day's
work . He had met Martin while he was about to leave the lunchroom and he stood talking with
hun for a few minutes in the hallway between the lunchroom and the maintenance department,
when Van Haag appeared and objected to them conversing together . Schafler ' s and Martin's
versions of the incident seem credible , while Daniels ' actions in advancing the incident as
one of the reasons for the dischargeof these employees is not credited by the Trial Examiner.
Schafler ' s credited testimony follows:
A. When I rang my time card to go home , Mr. Martin , at that time was coming out
of the lunch room which is right directly besides the time clock . He said , to me, come
up to the shop , I would like to talk to you. I said , O.K. I'm on my way to get a coke,
anyway. We went up there , and when we -- were not in the maintenance shop direct, we
were in a little gangway and I saw Mr. Van Haag , the bake shop superintendent walking
through the loading shed, and the conversation that Mr. Mirtin and I had, it was about
a letter that he received from the firemen and oilers.
The Trial Examiner credits the testimony of Martin regarding the conversation had with
Schaffer, to the following effect:
CONTINENTAL BAKING COMPANY 113
THE WITNESS: Mr. Schafler punched out . I was coming out of the lunch room with
my dinner bucket, I come out of the lunch room where we lunch, with my dinner bucket
in my hand . Mr. Schafler had punched out to go home , but he hadn' t changed clothes
yet, and I said , could I see you a minute , Frank. And the conversation was had while he
walked to the maintenance department with me, I was on my way back to the maintenance
department with my dinner bucket in my hand.
Q. What time was that?
A. 7:30, around 7, 7:30. I usually eat around 7:00 to 7: 30, to 8 . 00, somewhere in there.
I asked him about the letter that I had got from the Union. wanting me to appear before
the Executive Board and I knew also that he joined this local, I asked If he received one,
the letter to appear before the Executive Board . I said , if you haven't got one, why
you'll get one in a few days.
Q. Was Ernie Daniels there?
A. No Daniels checked out around 4 or 5 or 6 o'clock in the evening . Sometime earlier
than the time of this conversation, 7:30 approximately.
(b) That he was insubordinate
While Martin was making a repair to a machine in the bakeshop , and while in a stooping
position , the foreman of the bakeshop bent over his shoulder and when Martin was so engaged
he happened to turn his head and saw the foreman looking over his shoulder, " looking right
there on you , raise up and your head hit him in the chest, turn around for a wrench, and he
would be in your way . I called his attention to it time and time again . I have taken it up with
Mr. Daniels , and that time I was driving a shaft looking up, almost his him, and I said, you
are going to get hit on the head in here one of these days, getting your nose down like that,
why don't you get away from the lift . I'll lower the boom on you."
THE WITNESS: I reported it to Mr. Daniels. I told him to, he had to do something
about it, or I was going to lower the boom on the man.
Bergke 's testimony of the incident follows:
I seen Mr . Martin working on one of the wrapping machines . I walked over to him there,
and I stood there . Mr. Martin looked up , he said 'You here ' He said 'I can 't work while
you are standing around looking , ifyoudon 'tget away from here I'll hit you with a hammer.
Q. Now what did you say to him?
A. I din't answer the man. I just looked at him.
The incident occurred about 5 months prior to Martin 's discharge . The Trial Examiner is
of the opinion that the incident had no prejudicial effect on his superiors until reasons had to
be found for his discharge by Respondent , other than for his concerted union activity in joining
the Construction Workers.
Bergke was not Martin 's foreman. He had no authority in directing Martin, who was in full
charge of maintenance under the chief engineer or the superintendent of the plant . The charge
of insubordination leveled against Martin must necessarily fall , as a reason for Martin's
discharge.
(c) That he assumed authority in calling Willard, the maintenance man on the 4 to 12 shift, to
work in his place on the following 12 to 8 shift instead of calling Daniels , the chief engineer
Martin , Craig, Willard , and Daniels each testified credibly that a policy had developed that
in case of illness or emergency delaying the oncoming maintenance man from arriving in
time for his shift to notify the man on watch at the plant and arrange for a substitution.
Daniels testified as follows:
Q. But it is true that prior to Martin's discharge the employees did call the man on
their shift and have them work?
A. They did do that and they must call me.
In this particular instance Martin called Willard, the mechanic on the shift , and he in turn
called Daniels gotifying him of the suggested change. Daniels agreed to the change and Willard
worked the shift for Martin. -
1 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin's testimony is credited to the effect that it had been a custom among the employees
in the maintenance department during his years of employment at Respondent 's plant to call
the plant and report to the maintenance mechanic on watch to see if a substitution could not be
arranged in case of illness or other emergency . Each of the mechanics of the maintenance
department had in the course of his employment the identical duties and responsibilities of the
others during the shifts when he was alone and unaccompanied by either the chief engineer or
the assistant chief engineer.
When Martin called Willard who was on the 8 to 12 shift during the afternoon and evening of
January 21 , and requested him to substitute for him that night on the 12 to 8 shift , he accepted
the assignment and telephoned to Daniels informing him of the anticipated arrangement.
(d) That he had worked outside the plant on his off hours
Martin 's extra work on his off hours commenced in the early spring of 1951 and lasted
until December 1951 . He made no secret of it. He informed the chief engineer at the start and
discussed it with him , no objection was raised by any one in authority to hits in accepting such
employment , in fact during the summer of 1951, he was granted an extra 4 days ' leave without
pay by the chief engineer to complete one of his jobs.
Martin had retired from any connection with the enterprise in early December 1951, print
to his discharge on January 23, 1952 . Martin's testimony is credited by the Trial Examiner
to the effect that at no time did he receive any complaint or criticism from his super ors.for
engaging in the extra work . He also worked on his off hours for the company officials. The
chief engineer also engaged in work on his off hours other than as Respondent's employee and
no objection was raised by Respondent although it was conversant with the situation that its
employees accepted outside employment during their off hours.
(e) That he appeared tired during working hours
The believable credited testimony is not in support of any such complaint , while the pre-
ponderance of the substantial evidence is to the effect that any such alleged condition was not
a motivating cause or reason for the discharge of Martin by the Respondent.
The distinctive facts relating solely to Schafler other than the preceding paragraphs of this
report , are as follows:
He had been employed by the Respondent for upwards of 15 years and for the past 5 years
was assigned to a job in the bakeshop where he operated 2 certain machines throughout that
period . Schafler 's testimony is credited by the Trial Examiner to the following effect : "About
a year ago the company inaugurated what they referred to as a refresher course. Each
employee was requested or required to take this course spending one day going through the
plant . At the completion of my day of this refresher course, I was in Mr . Van Haag 's office
which is the bake shop superintendent , and I asked him specifically about how my work was
and he told me that my work was a hundred percent and he could find no fault with it." Mrs.
Schafler 's testimoty is alto credited by the Trial Examiner , relating to the above incidents
and conversations , iii follows:
We went in the plant superintendent's office, Mr: Van Haag , and Mr . Van Haltermon
was there , I think he is the plant superintendent and Mr . Van Haag was the bakery super-
intendent , and they had a corsage there fd r itie, and Mr . Haltermon said to me, I suppose
that Frank told you what this corsage consisted of? And I said Yes, he has , and he said,
well, we invited you down here , he said , because we want to radiate the feel of one happy
family of which we are proud to have Frank as a member . Then Mr . Van Haag put his one
hand on Frank 's shoulder and he shook his hand with the other and he said , that goes for
me, too.
And the following is also credited:
A. Well, he took us in there and there was Mr. Van Haag and my husband and myself,
and he said Mrs. Schafler , I don 't know if Frank told you this or not, he said a week or so
ago we went over the employees ' records and found Frank to have an outstanding record,
I believe, he had missed work about two times in all those years. And he said, its a
record, his,work and his record are above reproach. And he said , its something you can
be mighty proud of , Frank , and Mr . Van Haag also made that statement to my husband,
he said , Frank , ' that is something to be proud of and my husband replied , that he was
proud of it.
CONTINENTAL BAKING COMPANY 115
The Trial Examiner credits the testimony of Schafler to the effect that throughout the years
of his employment no complaints were made to him as to his conduct or efficiency as an
employee , while the testimony of VanHaagas to several warnings that he claims to have given
Schafler is discredited as uncertain , indefinite , and contradictory and in the opinion of the
Trial Examiner is not reliable.
Van Haag and Schafler were members of Bakers ' Union No . 4. On October 3, 1951 , Schafler
signed an application- for-membership card in the United Construction Workers . He shortly
thereafter was expelled from Local No. 4. He had been given the application by Martin, who
was thereafter dropped from Local No. 6 and discharged from the maintenance department
within several days of the discharge of Schafler, as set forth above.
Schafler's testimony is credited that shortly after joining the Construction Workers, he
informed Otto Balch, a foreman on one of the night shifts in the bakeshop , that he had joined
that Union. The credited conversation follows:
A. He said how come? And I told him well I wanted to get out and get a full time job
where I was able to work two or three weeks, even a month at the present time.
Q. (By Mr. Trent) What did he reply?
A. He said, I can't blame you.
The conversation he had with Elmer Fitch, the assistant chief engineer in the maintenance
department , is credited by the trial Examiner and is as follows:
Q. When did this conversation occur?
A. About a week or so after I signed this card for the United Construction Workers.
11
A. I told him that I had signed a card for the United Construction Workers which I
received from Elbert Martin.
Schafler testified credibly to the following:
Q. (By Mr. Trent ) Mr. Schafler , did you have a conversation with Mr . Ed Theobold,
bake shop foreman, on the night shift, about your Union activities?
A. I did.
Q. Where was this conversation?
A. At the Bakers Union Hall.
Q. When was this conversation?
A. On January 5 the day that we had appeared before the executive board.
Q. January 5, 1952.
A. Yes.
Q. What was said in this conversation?
A. He had come out of the executive board , got to talking tome and told me what he said
in the executive board and he said , there was a few names mentioned , that my name wasn't
mentioned and he asked me, do you belong , I said , Yes. I said I belong, he said, well I
didn ' t know that and I didn 't say anything to the executive board about it, I know it now.
Schafler's testimony is credited to the following incident:-
Q. All right, now, when Mr. Joe Van Haag told you that your services with Continental
were no longer required , did you reply to that?
A. I started to reply and I intended to tell him he was in trouble with the Bakers Union,
but before I had a " chance to complete my statement he threw his hands up like that and
started waving his hands ( indicating). Just like that. I don 't want to know nothing about it,
I don't know anything about it , I don 't want to hear nothing about it.
Q. Were you able to interrupt him and interject a remark or two?
A. After he had finished his statement then I continued and I said . Now, Joe , you know
that I have been expelled from the Bakers Union and he said, Yes, he said , I have heard
rumors to that effect.
1 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions Reached as to the Facts
The General Counsel 's contention that the Respondent had violated the provisions of the Act
by its interrogations of employees as to their union activities , and in its discharges of Elbert
A. Martin and Frank H . Schaffer for their union activities , is accepted and found by the Trial
Examiner based on the preponderance of the believable and substantial evidence . The con-
tention of Respondent that Martin and Schafler were discharged for cause other than their
union activities is rejected by the Trial Examiner as against the preponderance and weight of
the believable and substantial evidence.
The Trial Examiner concludes and finds that Respondent violated the provisions of Section
8 (a) (1) of the Act in interrogating its employees and Section 8 (a) (3) thereof in discharging
the said Elbert A. Martin and Frank H. Schaffer from its employ on January 23, 1952, and
January 25 , 1952, respectively.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above , occurring in connection with
operations of the Company described in section I, above , have a close, intimate , and substan-
tial relation to trade , traffic , and commerce among the several States , and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Company engaged in certain unfair labor practices , the Trial Examiner
will recommend that it cease and desist therefrom and take the following affirmative action
designed to effectuate the policies of theAct :( 1) Offer Elbert A. Martin and Frank H . Schaffer
immediate and full reinstatement to their former or substantially equivalent positions , 6 without
prejudice to their seniority or other rights and privileges ; ( 2) make each of the above-
named employees whole for any loss of pay each may have suffered by reason of the Com-
pany's unlawful discharge , by payment to each of them a sum of money equal to the amount
each would normally have earned as wages from the date of discharge , January 23 , 1952, and
January 25 , 1952, respectively , to the date of the Company 's offer of reinstatement , less the
net earnings of each during said period ; T ( 3) the Company shall , upon request , make available
to the Board, payroll and other records to facilitate the checking of the amount of back pay,
which shall be computed in accordance with the Board 's customary formula; 8 (4) the Company
be ordered to cease and desist from in any manner interfering with , restraining, or coercing
its employees in the exercise of the rights guaranteed by 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. The Respondent , Continental Baking Company , is engaged in commerce within the
meaning of Section 2(6) and ( 7) of the Act.
2. By discharging Elbert A . Martin and Frank H . Schaffer, the Respondent Company has
engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
3. By interfering with , interrogating, restraining , and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act , the Respondent Company had engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
6The Chase NationalBank of the City of New York, San Juan, Puerto Rico, Branch , 65 NLRB
627.
7Crossett Lumber Company ,, 8NLR440; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7.
8 F. W. Woolworth Company, 90 NLRB 289.