Cross Baking Co., Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1970

186 N.L.R.B. 199 (N.L.R.B. 1970)

CROSS BAKING COMPANY
Cross Baking Company, Inc. and Bakery& Confection-
ery Workers' International Union of America,
Local 100 . Cases 1-CA-6547
October 31, 1970
DECISION, ORDER, AND CERTIFICA-
TION OF REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On September 18, 1969, Trial Examiner Lloyd S.
Greenidge issued his Decision and Recommendation
on Challenges and Objections in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor
practices. The Trial Examiner also recommended that
the challenge to one ballot be sustained and that
certain objections to conduct affecting the results of
the election be overruled. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision together with a supporting brief; the
Respondent-Employer filed exceptions to portions of
the Trial Examiner's Decision together with support-
ing briefs as well as a brief in support of other portions
of the Trial Examiner's Decision. The General
Counsel and the Petitioner each filed briefs in answer
to certain parts of the briefs filed by the Respondent-
Employer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and Recommendation on Chal-
lenges and Objections, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, with the following modification.
I The General Counsel excepts to some of the Trial Examiner's
credibility resolutions It is the Board's established policy, however, not to
overrule a Trial Examiner's credibility resolutions unless, as is not the case
here , the preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F 2d 362 (C A 3)
2 140 NLRB at 224
199
The Employer contends that the election should be
set aside because the Petitioner, in a letter to unit
employees, misrepresented an increase in wages and
benefits which it had obtained for its members at
another plant. Applying the tests set forth in Holly-
wood Ceramics Company, Inc., 140 NLRB 221, the
Trial Examiner refused to set the election aside. He
reasoned that, even if it contained misrepresentations,
the Petitioner's letter was unobjectionable because the
Employer had adequate opportunity to reply. The
Trial Examiner did not decide whether the letter in
fact contained misrepresentations.
In Hollywood Ceramics, supra, we stated that we
would set an election aside:
where there has been a misrepresentation . . .
which involves a substantial departure from the
truth, at a time which prevents the other party or
parties from making an effective reply, so that the
misrepresentation, whether deliberate or not, may
reasonably be expected to have a significant
impact on the election.2
We find that the Petitioner's letter did not contain
any misrepresentation of the sort prescribed by
Hollywood Ceramics, supra, and we agree with the
Trial Examiner that the election should not be set
aside.3
The election was held in a unit of the Employer's
production and maintenance employees on January
22, 1969. Thirty-four valid votes were cast for, and 32
against, the Petitioner; 4 ballots were challenged.4
Before the election, the Petitioner sent letters to
employees in the unit which stated, inter aha, that
employees at nearby Ward Baking Company had
voted for this Local and that:
They have received 75 cents per hour in wage and
fringe benefits . . . in their first contract with this
Union. . . . They are happy to pay the $4.00 per
month after receiving a $30.00-per-week increase
in wages and fringe benefits.
Analysis of its agreement with Ward, effective
October 1, 1968, through October 21, 1971, indicates
that the Petitioner did in fact secure a substantial
increase over the life of the contract in the package of
wages and fringe benefits. This increase in wages
alone amounted to 49.5 cents per hour, or a total of
$19.80 per week, and the increase in the cost of
employer contributions to health and welfare and
pension programs amounted to 9 or 12.5 cents per
hour, or $3.60 or $5.00 per week.5 In addition, there
3 In the view that we take of this case , it is unnecessary to pass upon the
Trial Examiner's finding that , even if the letter contained substantial
misrepresentations, the Employer had adequate time to reply thereto
4 As the challenges to 3 of these 4 ballots have been sustained, the
remaining unopened ballot cannot affect the results of the election.
5 The disparity in the aforementioned figures is due to the fact that
under the Petitioner 's predecessor's agreement with Ward , with which this
(Continued)
186 NLRB No. 28
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were other changes affecting holidays, vacation
benefits, and the identity of the health and welfare
and pension program carriers which would appear to
have some value to the employees, the precise amount
of which is not readily ascertainable from the instant
record.
Under these circumstances, we are satisfied that
while the Petitioner in its letter may have exaggerated
the size of the increases, in the context of the large
increases which it did in fact secure, there was not that
"substantial departure from the truth . . . [which]
may reasonably be expected to have a significant
impact on the election." We shall, therefore, certify
the Petitioner as the employees' representative.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as 'amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Cross Baking Company,
Inc., Claremont, New Hampshire, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Bakery & Confectionery
Workers' International Union of America, Local 100,
has been designated and selected by a majority of the
employees in the appropriate unit and that pursuant
to Section 9(a) of the National Labor Relations Act,
as amended, the said labor organization is the
exclusive representative of all employees in such unit
for purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
contract must be compared , the Employer made different contributions to
the health and welfare fund for those employees with , and those without,
dependents.
TRIAL EXAMINER'S DECISION AND REC-
OMMENDATION ON CHALLENGES AND
OBJECTIONS
STATEMENT OF THE CASE
LLOYD S. GREENIDGE, Trial Examiner: Case 1-CA-6547,
a proceeding under 10(b) of the National Labor Relations
Act, as amended, herein called the Act, was heard at
Claremont, New Hampshire, on March 5 and 6, 1969,
pursuant to due notice upon a complaint' issued by the
General Counsel on January 24, 1969. The complaint
alleges, in substance, that Cross Baking Company, Inc.,
herein called Respondent or Company, threatened employ-
ees with discharge, economic reprisal, and bodily harm if
they continued their activities on behalf of or affiliation
with the Union in violation of Section 8(a)(1) of the Act;
and suspended Patricia Von Dreden2 on or about
November 22, 1968, and Cheryl Stapleton on or about
November 24, 1968, and discharged Von Dreden on or
about November 25, 1968, because they joined or assisted
the Union or engaged in other concerted activities in
violation of Section 8(a)(3) and (1) of the Act. Respondent
answered on February 13, 1969, denying the unfair labor
practices as alleged.
On March 27, 1969, the General Counsel moved to
consolidate Case 1-RC-10,271 with Case l-CA-6547, to
reopen the record in Case 1-CA-6547 to receive evidence
mutually relating to both, and to extend indefinitely the
date for filing briefs. Respondent opposed the motion
insofar as it sought to reopen the record. By telegram dated
April 4, 1969, and, later by Order dated May 20, 1969, the
Trial Examiner granted the motion to consolidate and to
reopen the record but, as to the latter, only to the extent
that any additional evidence sought to be presented in Case
1-CA-6547 is shown to be newly discovered or previously
unavailable. The consolidated cases were heard by me in
Claremont, New Hampshire, on July 8, 1969.
In Case 1-RC-10,271, pursuant to a Decision and
Direction of Election by the Regional Director for Region I
dated December 17, 1968, an election by secret ballot was
held on January 22, 1969, in a unit of the Company's
production and maintenance employees to determine
whether or not said employees desired to be represented by
the Union for the purposes of collective bargaining. A tally
of the ballots shows that of approximately 69 eligible voters,
66 cast valid ballots, of which 34 ballots were for the Union,
32 ballots were for no union, and 4 were challenged.
On January 27, 1969, the Company filed with the
Regional Director timely objections to conduct affecting
the results of the election. The objections allege as follows:
On January 17, 1969 , at a meeting attended by
approximately thirty employees of the Company,
representatives of the Bakery and Confectionery Union
supplied false and misleading information concerning
the pay received by employees of the Ward Baking
Company which is located in White River Junction,
Vermont. The information in question is set forth in the
attached affidavits.
The Company contends that such conduct as well as
other conduct engaged in by the above mentioned
Union affected the results of the election.
After an investigation, the Regional Director, on March
26, 1969, issued and duly served upon the parties a
Supplemental Decision on Objections and Challenges. In
the Supplemental Decision, the Regional Director sus-
tained challenges to two of the four challenged ballots and
referred to the Trial Examiner challenges to the remaining
ballots of Patricia Von Dreden, alleged in the complaint to
have been discriminatorily discharged prior to the election,
and Valerie Hull, whose status as a supervisor was in issue
in the unfair labor practice proceeding. It was further found
1 Based on a charge filed by Bakery & Confectionery Workers'
International Union of America, Local 100, herein called the Charging
Party or the Union.
2 The name of this alleged discriminatee appears as corrected at the
hearing.
CROSS BAKING COMPANY
by the Regional Director that the "other conduct" alluded
to by the Company in its objections embraced an allegation
that Patricia Von Dreden, acting as agent for the Union,
"threatened, and assaulted other employees thereby
impairing a free choice in the election." Consequently, as a
determination of the validity of the objections is inherent in
the resolution of the relevant issues in the complaint case,
the Regional Director also referred to the Trial Examiner
for hearing in the consolidated proceeding the issues raised
by the Company's objections.
All parties were represented by counsel or union
representatives at the original and consolidated proceeding,
and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce evidence rele-
vant and material to the issues, and to file briefs and
proposed findings. Briefs were filed by the General
Counsel, the Respondent, and the Union on or before
August 28, 1969, the extended date for filing briefs.
Upon the entire record in this proceeding,3 his resolution
of issues of credibility based upon the appearance and
demeanor of the witnesses, and the briefs, which have been
carefully considered, the Trial Examiner makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint declares that the Respondent is a Vermont
corporation engaged in the manufacture, sale, and
distribution of baked goods and related products in
Claremont, New Hampshire.
In the course and conduct of its business, Respondent
annually purchases goods and materials valued in excess of
$50,000 directly from points outside the State of New
Hampshire which are received at its Claremont location.
Upon the complaint's jurisdictional declarations, which
are conceded, I find that Respondent, throughout the
period with which this case is concerned, was an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act and
the Board's jurisdictional standards.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is, and at all times material herein
has been, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
1. The start of the Union's campaign and
Respondent's opposition
The parties stipulated, and it is found, that Jeffrey
Burgess, assistant plant manager, and Claire Underkofler,
production manager, are, and at all times material have
3 A complaint allegation that Respondent, by one N. Cardier,
threatened employees with economic reprisal was withdrawn by the
General Counsel. Another allegation that N. Cardier was, at times
201
been, supervisors of the Respondent within the meaning of
Section 2(11) of the Act.
The Company had approximately 69 employees in the
appropriate unit employed on two shifts, 5 days a week.
The factory is closed on Saturdays, and Tuesdays are down
days meaning that on Tuesdays the Company operates with
a skeleton crew detailed to make crackers.
The Union's organizing campaign began in early October
1968 when employee Stanton Dorion and Leo J. Dell'Olio,
the Union's International representative, visited Patricia
Von Dreden. Von Dreden distributed union cards at the
bakery during her breaks and, from the latter part of
October through early November, held union meetings in
her home. Burgess testified that everyone in the plant knew
who was and was not active on behalf of the Union and
frankly admitted that, several weeks before Von Dreden's
suspension on November 22 and subsequent discharge on
November 25 or 26, and before Stapleton's suspension on
November 24, the Company knew from reports from
leadgirl Valerie Hull and others that Von Dreden and
Stapleton were active supporters of the Union. Admittedly,
too, the Company received no report of union interest on
the part of employees Dorothy Loiselle and Lynn Platt. In
conversations with the employees, the Company made clear
its opposition to the Union's attempts to organize.
The petition for an election in Case 1-RC-10,271 was
filed on October 14, 1968. The conduct attacked by the
General Counsel and the Union took place in a period prior
to the election which was conducted on a date previously
fixed herein as January 22.
2. The Redwater Brook Road incident
Questions concerning the Redwater Brook Road and
Cota incidents, discussed in sequence hereinbelow, were
raised in conversations which preceded the suspensions of
Von Dreden and Stapleton. Further, certain occurrences on
the former occasion are advanced as an objection to the
election . As the evidence with respect to the Redwater
Brook Road incident is in serious conflict, I present below
two divergent views of the events of that evening.
a. The version of Von Dreden, Stapleton, and
Lorraine Bunnell
About 11:30 p.m., on Monday, November 18, 1968, Von
Dreden was driving home after having picked up her 3-
month-old baby who had been staying with her mother
while Von Dreden, Bunnell , their respective husbands,
Stapleton, and Union Agent Dell'Olio were out bowling.
Accompanying Von Dreden in her blue Saab were
Stapleton and Bunnell, the latter holding the baby in the
rear of the automobile. While traveling on a major road in
West Claremont but not Main Street, Von Dreden observed
that the operator of the car directly behind her was driving
at close range- "almost bumper to bumper." First,
Von Dreden testified that the headlights in the other car
were on but not on "bright," later that she could not
remember whether both were on. Stapleton recalled that
material, an agent and supervisor of the Respondent was struck at the
hearing.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Von Dreden said they were being followed but that she
(Stapleton) was too frightened by the lights to look behind.
At this point, Von Dreden made a left turn onto Bowker
Street4 and another turn onto Redwater Brook Road
followed in each turn by the car behind which finally pulled
ahead and stopped causing Von Dreden to stop as well.
Dorothy Loiselle got out of the car that had pulled ahead
and walked towards Von Dreden. Von Dreden left her car
and started towards Loiselle exclaiming, "Dot, what are
you trying to do? I've a 3 months old baby in the car." To
this, Loiselle replied: "Do you want to fight?" and, without
further ado, swung at Von Dreden. Von Dreden retaliated
by pushing Loiselle to the ground with such force as to
cause her to cry in anguish, "Oh my back, my back!" At
this juncture, Lynn Platt jumped out of Loiselle's car and
started to remove her coat and Stapleton left Von Dreden's
car. Bunnell remained behind with the baby. Stapleton then
told Platt it was none of her business and to stay out of it.
Apparently, undaunted by the appeal, Platt asked Staple-
ton if she was looking for a fight and, thereupon, struck
Stapleton about the face and body with her hands. After the
affray, Von Dreden and Stapleton returned to Von
Dreden's car and the former drove her companions to her
home. On November 19, Stapleton obtained a warrant for
the arrest of Platt and, on November 20, filed a criminal
complaint against Platt charging an assault. Von Dreden
filed a like complaint against Loiselle and Platt on
November 19 or 20.
b. The version of Dorothy Loiselle and Officer
Albert R. Bergeron
Lynn Platt was visiting with Loiselle the evening of
November 18. About 11 p.m., Loiselle observed a blue
Saab, which she recognized to be Von Dreden's, pass the
house on High Street where she resided. Shortly after this,
Loiselle and Platt got into Loiselle's 1963 Cutlass
Oldsmobile - black and white - and started towards Platt's
house. Loiselle was driving with the headlights on "dim"
and only one light was working in that position. On high
beam, which she did not use, both lights worked
satisfactorily. While on Main Street, Loiselle noticed she
was being pursued, made a right turn onto Bowker Street
and stopped. She then told Platt to get out of the car and
asked Von Dreden why she was following them. When Platt
returned she reported that Von Dreden and the others had
said that they were following Loiselle because they had
nothing better to do .5 Loiselle decided to resume the
journey and, if Von Dreden continued to follow, to attempt
to lose her. The next thing Loiselle knew she was climbing a
hill that lead to a dead end and, when she attempted to
back down, Von Dreden blocked her path. At this point,
both Loiselle and Platt debarked, walked back to Von
Dreden, and asked why she refused to move her car. Von
Dreden told them it was stuck. Loiselle tried to move the
vehicle, discovered it had a standard shift, and abandoned
4 A reference to the map of Claremont (Resp . Exh. 2) reveals that access
to Bowker Street can be gained by a turn off Main Street. Moreover, Main
Street appears to be the road Von Dreden would have traveled to reach her
home on Winter Street.
5 Platt was not called as a witness.
6 On cross -examination , Loiselle testified that she did not like the Union
the effort. As Loiselle was returning to her car, Von Dreden
asked Loiselle and Platt if they were for the Union and both
answered in the negatives Von Dreden then said it was all
right with her, that she did not have to work the next day
and could stay all night. To this, Loiselle declared, "Well,
yes Pat, I'm for the Union just so I can go home. I'm tired. I
want to go home," and started towards her car. Von
Dreden and Stapleton followed asking whether Loiselle and
Platt were going to help them move Von Dreden's car. Once
again , Loiselle and Platt debarked. At this point, Von
Dreden asked Loiselle, "Are you chicken to fight with
me?"; shoved her; and, grabbing her arm, said, "You are
chicken to fight with me." Loiselle replied, "No, I respect
my elders, I do not fight with them." Whereupon, Von
Dreden knocked Loiselle to the ground. As Loiselle
attempted to get up, something came down on her back.
While not charging Stapleton with assault, Loiselle testified
that, when she looked around, Stapleton was on her back.
In any event, Loiselle screamed: "My back, my back!" To
this, Von Dreden replied, "Yes, it's always something isn't
it." Loiselle then crawled to her car, boosted herself up and,
leaning against the vehicle, saw Von Dreden and Stapleton
attack Platt. After Von Dreden and her companions had
departed, Loiselle drove Platt back to the apartment
Loiselle shared with Valerie Hull, the leadgirl.7 Hull called
the police.
In support, Albert B. Bergeron, an officer in the police
department of the city of Claremont, testified that he left
his home on Bowker Street to report for duty about 11:15
p.m. the night in question; that he made a left turn onto
Main Street, at the intersection of Bowker and Main
Streets; that, while driving on Main Street and going
towards town, he noticed two cars approach; and, as they
got closer, he observed that the operator of the second car
was driving almost bumper to bumper on the first. The
officer also testified that one headlight in the first car was
out and identified the car as a 1964 two-door Oldsmobile
with white bottom, black top . Bergeron recalled the second
car to be a blue Saab, late model. The officer continued to
say that, about one-half hour after reporting for work, he
was dispatched to High Street to investigate an alleged
assault on a young lady, that he found Loiselle lying on a
couch and she appeared to be in great pain, that he and
Officer Hart carried Loiselle to their cruiser, that he drove
Loiselle and Platt to the Claremont General Hospital and,
later that evening, drove Loiselle back to her apartment.
Finally, Bergeron averred that the Oldsmobile parked in
front of the building where Loiselle lived and the blue
Saab 8 in Von Dreden's yard were the same automobiles he
had observed on Main Street earlier that evening.
Loiselle was a cracker girl and normally worked on
Tuesdays. Thus, despite severe back pains, Loiselle went to
the plant Tuesday morning, November 19, to ask Hull if she
had secured a replacement. Since Tuesday is a down day,
Loiselle did not expect to see any management representa-
tive. According to Burgess, however, Hull telephoned him
and had refused to sign a union card.
7 The Union, which had challenged Hull as a supervisor , withdrew its
challenge at the consolidated hearing and agreed to her inclusion in the
unit.
8 Inspected by Bergeron after he had received the registration number
from Loiselle.
CROSS BAKING COMPANY 203
at his home that morning and advised him of the fight the
night before. Apparently, sometime that day or the next,
Loiselle filed criminal complaints against Von Dreden9 and
Stapleton. Loiselle testified that she was also a defendant in
the criminal court action.
Wednesday morning, November 20, Loiselle returned to
the plant and told Burgess that she and Platt "got beat up
because of the union." The next day, Loiselle visited her
doctor and X-rays of her back showed that she had
sustained two chipped ribs and a chipped spine. Loiselle
was laid up from about November 20 until January 22
during which period she received full compensation under
the Company's group insurance policy.10
On December 5, Von Dreden and Platt were each found
guilty of assault and fined $10, and Stapleton was found not
guilty.
3. The Cota incident
Early in the morning of Wednesday, November 20, Von
Dreden, Stapleton, and Bunnell appeared in court in
connection with the criminal charges that had been or were
being filed against Loiselle and Platt. About 11 a.m.,
Bunnell telephoned Burgess and asked whether they should
report for work that day., Burgess replied that it was a
matter of indifference to him. Shortly, thereafter, the girls
appeared and worked until about 10 p.m. that night.
About 7:30 p.m., Eli Cota entered the bakery and walked
over to Valerie Hull. Cota, a mixer, worked days as a relief
man to Garfield Von Dreden.11 When Bunnell saw Cota
she said to Von Dreden, "I'm scared, I think they are up to
something." Suddenly, Cota ran over to Bunnell and asked:
"What are you saying now, Lorraine? Causing more
trouble?" 12 Bunnell told Cota that her conversation with
Von Dreden was none of his business. Cota replied,
according to Bunnell , "Oh, you want to fight, you want to
fight," and put his fists in her face. Von Dreden recalled
that Cota asked Bunnell , "Do you want to fight, you
woman beater?" and then said, "Fight me." Von Dreden
cautioned restraint and Bunnell walked away without
responding to Cota's remarks, taunts, and gestures. The
incident was reported to Hull who told Bunnell to keep
quiet and return to work. At the end of the workday,
Bunnell filed a complaint with the police.
Shortly after the Bunnell encounter, Cota approached
Stapleton and asked her if she wanted to fight. Startled by
the inquiry, Stapleton said, "What!" and Cota replied,
"You want to fight me? Looking for a fight tonight,
Cheryl." Stapleton then told Cota to leave her alone and he
left. Soon thereafter Stapleton requested and received
permission from one Eileen Fowler to use the telephone.
About 8:30 p.m., and in the first of two telephone calls to
her father that evening, Stapleton told him that Cota was
"bothering the girls." Some time later, Police Officer Dan
L. Wright was dispatched to investigate a complaint filed
9 A copy of the complaint filed by Loiselle against Von Dreden shows a
charge of assault. Von Dreden testified that Platt also filed complaints
against Von Dreden and Stapleton.
10 Loiselle filed an application for disability insurance on November 19
or 20. She had sought coverage about I month previous but the Company
deferred action on the request because of the military status of her
husband and attendant doubts that Loiselle needed the protection provided
by a man who had reported that his daughter had been
threatened and had requested transportation for her. About
9 p.m., Stapleton repeated Cota's remarks to Officer
Wright. Wright asked for Cota's address. Unable to
interview Cota at the plant or at his home as he was not
present at either location, Wright left instructions with
Cota's wife for him to report to the police station as soon as
possible. Within 1 or 2 hours after the call, Cota responded
to Wright's instructions. Cota admitted to Wright that he
had had words with the girls and that he had said he would
take action against them if they continued to "mess
around" with the other girls . To this, Wright replied that he
would call Cota in again if he repeated his threats.
As Von Dreden and Stapleton were preparing to leave the
plant that evening, Hull remarked that she (Hull) was
taking Stapleton to the office the next day. Von Dreden
then said, "Valerie, if you should take Cheryl into the office
I'm going too because you're the one that told me to go and
get her when I was through my work." According to Von
Dreden, this exchange took place as the girls were passing
through a doorway that leads to the stairs . Von Dreden
declared emphatically that she had no conversation with
Hull that evening in the vicinity of a telephone.
Thursday, November 21, Von Dreden called in sick.
Sometime that morning, Hull told Burgess , according to
Burgess, that she had attempted to talk to Stapleton the
night before but Von Dreden had interrupted asking Hull if
she wanted to fight. In the lunchroom the same morning,
Cota apologized to Bunnell , and through her to Von
Dreden and Stapleton, for his conduct the night before. He
told Bunnell that the police had upset him, that he did not
realize what he was doing and did not mean to frighten the
girls. About this point, Underkofler entered and ordered
them back to work.13
B. Interference, Restraint, and Coercion
Threats
1. By Jeffrey Burgess
The complaint alleges , and the answer denies, that on or
about November 3, 1968 , Burgess, the assistant production
manager, threatened "to discharge employees-if they
continued their activity on behalf of the Union."
On November 3, Von Dreden entered Burgess ' office,
unannounced and without invitation, while Burgess and
Underkofler were talking to her husband. Von Dreden
explained that she had heard that either Burgess or
Underkofler had thrown a loaf of bread at her husband.
Further, Von Dreden declared that her husband had been
ordered to return to the plant after a night tour of duty and
the meeting between her husband and management
representatives presented an opportunity to ask that he be
compensated for working during his free time. Her effort
by its policy.
11 Patricia's husband.
12 Cota was not called as a witness.
13 The findings of fact regarding the Cota incident are based on a
synthesis of the testimony of Von Dreden , Stapleton , Bunnell , and Officer
Wright.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was to no avail because Underkofler ordered her to leave
the office and her husband pushed her out the door.
Later the same day, Von Dreden was summoned to the
office where she was directed by Burgess and Underkofler
to apologize for disrupting the meeting. Von Dreden
complied and, as she was leaving, according to uncontro-
verted and credited testimony of Von Dreden, 14 Burgess
pointed a finger at her and said, "You keep your nose out of
this union business or 'you and your husband, Lorraine
Bunnell , Cheryl Stapleton, Roger Lawton and Stanton
Dorton will be the first out the door." It is clear and I find
that the quoted statement of Burgess was a threat of
reprisal, uttered to an employee during a period of union
activities, and constituted coercion. Respondent thereby
violated Section 8(a)(1).
2. By Claire Underkofler
The complaint alleges , and the answer denies, that
Underkofler, the production manager , (i) on or about
November 21, 1968, and again on or about November 26,
1968, threatened employees "with economic reprisal for
engaging in activities on behalf of and continuing their
affiliation with the Union"; and (ii) on November 21
threatened employees with bodily harm for engaging in the
aforesaid activities.
About noon, on November 21, Bunnell went to
Underkofler's office to obtain permission to leave the plant
as she was not feeling well. Present at the time was Burgess.
Bunnell testified, credibly and without contradiction, that
Underkofler called her a hoodlum; told her she belonged in
jail; accused her and the Union of sending Von Dreden and
Stapleton - whom he characterized as hoods - to beat up
two girls; and declared that, although he was 56 years old
and had had a lung operation, he would take care of the
union man . Finally, Underkofler told Bunnell, again
according to uncontroverted and credited testimony of
Bunnell , "Little girl, you better start keeping your nose
clean and out of the Union because if you don't you won't
even have a job here."
I find that the above-quoted statement of Underkofler
was a threat of reprisal for union activities and constituted
coercion of an employee in the exercise of rights guaranteed
under Section 7. By such conduct Respondent violated
Section 8(a)(1). In his brief, the General Counsel asserts
that he does not rely on Underkofler's statement to take
care of the union man, uttered in the presence of Bunnell,
as proof of an independent violation. Consequently, no
finding is made with respect to it.
On November 25 or 26, one Ann, an employee, told
Bunnell that she had received a wage increase and asked
whether it was reflected in her paycheck. After making the
necessary computations, Bunnell replied in the affirmative.
14 Respondent argues that Von Dreden is not to be credited because of
an omission in her employment application filed on January 31, 1969, with
Sylvania, her employer at the time of the hearing . It is true that, in the
space calling for the "name and address of former employer ," Von Dreden
wrote "Claremont General Hospital , Elm St ., Claremont ." Von Dreden's
explanation that no one told her to record all previous experiences must be
discounted in view of the clear wording of the form . By way of a further
explanation, Von Dreden averred that she did not show Cross Bakery as
her former employer because she was afraid Sylvania a "nonunion shop"
would not hire her if it knew she had been employed in a "union shop."
Soon thereafter Burgess called Bunnell to his office.
Burgess locked one door, Underkofler the other. According
to the unimpeached and credited testimony of Bunnell,
Underkofler, on this occasion, accused Bunnell of
"snapping" a paycheck out of the hands of an employee;
told her it was none of her business; observed that she was
not interested in her job as she had not followed his
instructions "to keep it [job) out of the union business";
cautioned that if she persisted she would "be in a lot more
trouble . . ."; and, again warned that she (Bunnell) won't
have a job if she doesn't keep her nose out of the Union.
I conclude and find that by threatening discharge in the
event Bunnell continued her union activities, Respondent
violated Section 8(a)(1) of the Act.
C. Alleged Discrimination
1. The suspension and subsequent discharge of
Patricia Von Dreden
As stated above, Von Dreden was out sick on November
21. When she returned to work about 7 a.m., Friday,
November 22, she found that her timecard had been
removed from the rack. She asked her husband what it
meant and he said someone in the office wanted to see her.
Von Dreden went to the office where Burgess asked her
about Monday night. Von Dreden replied, "If you mean
the fight, I can't tell you anything about it." Burgess then
inquired about Wednesday night and Von Dreden said, if
the question concerned Eli Cota coming into the plant and
asking Bunnell to fight and calling her "a woman beater,"
she would respond to it. Burgess replied that he had
witnesses who assert that Cota was not in the plant that
evening. He then called Valerie Hull and Cota, and Hull
called Pat Russell. Von Dreden repeated her story before
them. In reply, Cota said he was not around, Hull agreed,
and Russell disclaimed any knowledge of the Cota incident.
Von Dreden then suggested that Burgess talk to four named
employees all of whom allegedly were present at the time in
question and Burgess said that he would do so.15 Finally,
according to Von Dreden, Burgess declared that he had no
alternative but to suspend her indefinitely because she had
tried to pick a fight with Cota. Burgess testified that he told
Von Dreden she was suspended because of her participa-
tion in a fight with two girls and because she had attempted
to pick a fight with a leadgirl. Von Dreden's suspension
notice, dated November 24, reads, in pertinent part,
"suspended indefinitely for threatening lead girl.
11/22/68." I credit Burgess over Von Dreden and find that
the reasons given Von Dreden for her suspension at the
close of the meeting on November 22 were those set forth
by Burgess in his testimony on the stand.16
Thereafter, and on the same day, Burgess took the
The explanation is speculative, self-serving, and devoid of factual support.
Misrepresentation , whether by commission or omission , is not condoned
but the misrepresentation here is insufficient to discredit the
uncontradicted testimony of Von Dreden . In this regard, it is significant
that Burgess , who was present during the hearing and testified on three
different occasions, did not deny the statement attributed to him by Von
Dreden and that Underkofler was not called as a witness.
15 These findings are based on a composite reading of the credited
testimony of Von Dreden and Burgess.
16 Burgess asked a general question about Wednesday night but Von
CROSS BAKING COMPANY
following steps to investigate the occurrences on Monday
and Wednesday nights:
He contacted Cola who, this time , admitted that he had
been in the plant Wednesday night.
He questioned Russell Magoon 17 as to what he knew
about the incident. Magoon reported that, while in the
shipping room Wednesday evening, he had observed Von
Dreden interrupt a conversation between Hull and
Stapleton near the telephone; that Von Dreden asked Hull,
"Do you want to fight? Do you want to fight?"; and that
Hull backed away in silence. According to Burgess, this was
his second conversation with Magoon and was initiated to
confirm findings he had reached the day before in the
earlier conversation.
He summoned Bunnell to his office during her lunch
period. Initially, Burgess asked about Wednesday night but,
before Bunnell could respond, he interrupted announcing
that he had "expelled" Von Dreden. He went on to say that
he had received information to the effect that Von Dreden
had "beat up or threatened to beat up Valerie." Bunnell
protested but Burgess declared that Hull had a witness in
the person of Pat Russell, that he had to go by what Hull
said and that "Pat [Russell] agreed to it." After this,
Burgess returned to his,question about Wednesday night.
Bunnell explained that Cota had entered the plant during
his nonworking hours and had threatened her. Burgess
asked for proof and Bunnell mentioned "the men on
nights." About 20 minutes later, Burgess again called
Bunnell to his office. This time he asked about Monday
night but Bunnell refused to say anything about the events
that evening asserting that she had been instructed by her
lawyer not to discuss the matter. Burgess then said that he
had heard the other girls' story and now desired to hear
Bunnell 's, adding that he had been told "it was about the
union." Bunnell denied that the Union was involved.
Burgess pressed his inquiry but Bunnell continued to refuse
to tell him anything about Monday night.18
Sometime on November 24, Von Dreden called Burgess
and asked if her suspension was up. Burgess replied, "Not
until my lawyers decide."
On November 25 or 26, Von Dreden called again and this
time asked whether the lawyers had decided. Burgess
answered, "I have just come to the conclusion Pat that you
are discharged." Von Dreden asked what for and Burgess
said, according to Von Dreden, "for threatening Valerie."
Von Dreden denied that she had threatened Valerie. The
separation notice issued to Von Dreden and dated
November 26 states that she was discharged for threatening
leadgirl (Valerie Hull). Burgess denied giving Von Dreden a
reason for the discharge on the telephone but, in response
to a question from the General Counsel, asserted that she
was discharged for threatening the leadgirl on Wednesday
night and because of her involvement in the Monday night
incident.
Dreden focused on Cota. From all that appears , Burgess backed into a
discussion of the Cota affair. Further, it is unreasonable to believe that,
after stating that he had received reports to the effect that Cota was not in
the plant Wednesday night - supported at the suspension meeting by
statements from Hull and Cota himself , Burgess would tell Von Dreden, a
few minutes later, that she was suspended for threatening Cota that night.
For these reasons, as well as demeanor, I do not credit this testimony of
Conclusion
205
The General Counsel contends that the Respondent
suspended and later discharged Von Dreden because of her
union membership and activities. The Respondent, con-
versely, argues that Von Dreden was suspended and
subsequently discharged because she had threatened a
leadgirl and because of her participation in the fight. At the
hearing, Burgess amplified, testifying that he suspended
Von Dreden because he wanted to investigate the
circumstances surrounding the fight and the alleged threat
to the leadgirl.
Von Dreden was an ardent supporter of the Union
almost from the inception of its organizational campaign.
She had distributed union cards at the plant during her
breaks and had held employee gatherings at her home. That
her union activities were known to the Respondent prior to
her suspension and discharge was admitted by Burgess and
such knowledge is clearly evident in his warning to her on
November 3 to keep her nose out of the union business.
At the outset, it is necessary to remember that the Cota
incident and the alleged threat to Hull were two separate
and distinct events and to avoid confusing the two, both
having occurred in the plant the same evening. There is no
dispute, in view of the credited and unchallenged testimony
of Bunnell, Stapleton, and Von Dreden, but that Cota
threatened Bunnell and Stapleton Wednesday night. Cota
finally admitted his presence in the plant on the night in
question to Burgess and admitted the threat to Officer
Wright.
The Hull incident was an entirely different matter. It will
be recalled that Hull reported to Burgess Thursday
morning that she had been threatened by Von Dreden
Wednesday night. Thereafter, Burgess conducted an
investigation but the results were not such as might lead a
reasonable man to conclude that Von Dreden had in fact
threatened Hull and that Burgess had a reasonable basis for
believing that she had done so. This is because (1) I credit
Von Dreden that she did not threaten Hull, (2) Von Dreden
is supported by Bunnell, (3) Hull did not testify, (4) neither
Magoon nor Russell testified at the original hearing,
although both, and presumably Hull, were still employed
by the Respondent and no excuse was offered for its failure
to call them,19 and (5) Stapleton, the only other witness to
the alleged threat, was interrupted by Burgess when she
sought to tell him about Wednesday night.
Although the evidence is insufficient to establish a
defense based on the asserted threat to Hull, such a finding
does not end our inquiry because, as noted, Respondent has
the traditional two strings to its bow. In this instance, the
second string is the Redwater Brook Road incident,
Monday night.
Manifestly, the events of that evening were a matter of
deep concern to Burgess . One employee had been disabled
and would probably be away from work for an extended
Von Dreden.
'7 Neither Hull, Russell, nor Magoon was called as a witness at the
original hearing.
Is The findings with regard to the two conversations with Burgess are
based on the credited and uncontroverted testimony of Bunnell.
19 1 draw an inference adverse to Respondent from this.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period drawing disability compensation under the Compa-
ny's group insurance policy, and five, including the
disabled employee, were parties in criminal proceedings in
the local court. Self-interest and curiosity sufficiently
aroused, Burgess sought, as late as Sunday, November
24--or 1 or 2 days before the discharge-"to get to the
bottom of what happened Monday night," but Stapleton,
Von Dreden, and Bunnell refused to cooperate and, in the
end, Burgess was left with only unimpeached reports from
Loiselle and Platt about a vicious assault upon Loiselle and
with clear and direct evidence of the effects thereof. It,
therefore, becomes fairly inferable that what really
disturbed Burgess, Hull's alleged complaint notwithstand-
ing, was the occurrence Monday night and the reverbera-
tions from that event which reached the plant area
Wednesday night, the first regular workday thereafter. In
this connection, it is not without significance that Burgess
did not discharge Von Dreden at once but, instead,
suspended her and continued his investigation. In view of
the foregoing andthe record as a whole, I conclude that the
General Counsel has failed to adduce convincing evidence
that the Redwater Brook Road incident was used as an
excuse to suspend and later to discharge Von Dreden. On
the contrary, I find that Burgess was in fact convinced that
Von Dreden was guilty of conduct justifying her suspension
and discharge, and that Burgess' union animus and Von
Dreden's union activities did not play a material part in this
decision 2° Surely, Von Dreden's union activities cannot
shield her from a discharge for cause and even employers
hostile to a union do not forfeit their right to discharge for
this reason.21 Finally, it is immaterial that an unresolved
question concerning Von Dreden's participation in the
affray was pending in the local court at the time
disciplinary action was taken against her.22
I, therefore, find and conclude that Respondent did not
violate the Act by suspending and discharging Patricia Von
Dreden.
2. The suspension of Cheryl Stapleton
After an absence of I or 2 days, Stapleton returned to
work Sunday, November 24. About 7:30 a.m. that day,
Burgess called Stapleton to his office. First, Burgess stated
that he wanted to get to the bottom of the Monday night
occurrence and then asked what happened that night. Like
Von Dreden and Bunnell, Stapleton replied that she had
been advised by her lawyer not to discuss the events of that
evening. After this Burgess queried Stapleton about
Wednesday night and she said that she was willing to
discuss the Wednesday night incident because it took place
on company time and property. However, before she could
respond, Burgess interrupted and repeated his inquiry
about Monday night. Again Stapleton refused to furnish
any information about the events of that evening this time
saying it was no concern of the Company. To this, Burgess
20 See Loffland Brothers Company, 166 NLRB No. 3; Refiners Transport
& Terminal Corporation, 164 NLRB No. 99; N.L.R.B. v. I. V., Sutphin Co. -
Atlanta, Inc., 373 F.2d 890 (C.A. 5); Distinguish N.LR.B. v. Whitin
Machine Works, 204 F.2d 883, 885 (C.A. 1).
21 See, e.g., Electra Controls, Inc., 161 NLRB 307, 317; N.L.R.B. v. Park
Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (C.A. 2). and cases cited.
22 See Loffland Brothers Company, supra, fn. 5.
23 These findings are based on the credited testimony of Stapleton
replied , "What do you mean it 's no concern of the
Company's. I have a girl whose [sic ] out on sick [leave] who
has doctor's papers for the right to be out sick ." About this
point , Burgess told Stapleton that Loiselle and Platt had
given their side of the story and he wanted to hear the other
side . Once more he pressed his question about Monday
night but Stapleton steadfastly refused to discuss the
matter . Finally, Burgess told Stapleton she was suspended
for 3 days. Asked for a reason for the suspension , Burgess
replied it was because she had refused to tell him about
Monday night and the inference he drew therefrom that she
was involved in the fight .23 Stapleton did not receive a
separation notice but her timecard was marked to show a 3-
day suspension.
Conclusion
The General Counsel argues that Stapleton was suspend-
ed because she had joined the Union and engaged in other
concerted activities. The Respondent attributes the suspen-
sion to Stapleton's involvement in the fight Monday night.
Stapleton came to Respondent's employ shortly after the
start of the union campaign. She signed a union card,
attended a Board hearing in connection with the \represen-
tation petition, and her union activities were admittedly
known to the Respondent.
In my opinion, Stapleton was not suspended for being
active on behalf of the Union and the reason assigned for
her suspension is not a pretext to mask or disguise a
discriminatory motive. Despite Burgess' urging and expla-
nations as to why he sought information about the
Redwater Brook Road incident, Stapleton stubbornly
refused to discuss the matter. As indicated above, Burgess'
concern about the fight is readily understandable particu-
larly in view of the fact that the Company was financing,
through its premium payments, the cost of Loiselle's
recovery.24 The evidence, therefore, militates against the
conclusion that it was Burgess' union animus, rather than
Stapleton's refusal to cooperate in the investigation and the
inference drawn therefrom that she was involved in the
fight, which was the basis for the decision to suspend her.
Accordingly, I conclude and find that the General Counsel
has not sustained the burden of proof required to establish
that Stapleton's 3-day suspension was a violation of Section
8(a)(3) of the Act.
IV. THE REPRESENTATION CASE
A. The Challenges
As Patricia Von Dreden was lawfully suspended then
discharged in November 1968, she was not an employee of
the Company at the time of the election in January 1969
and, therefore, was ineligible to cast a ballot. The challenge
to her ballot must be sustained.
corroborated, in major parts, by Burgess.
24 The group insurance program is financed by joint contributions from
the employer and employees. At the time of her disability, Loiselle had
contributed nothing to the plan obviously because of the Company's delay
in approving her request for coverage . Since her return to work in January,
Loiselle has made regular contributions to the plan but it is not clear from
the record whether they include retroactive payments to the date of
coverage or are prospective only.
CROSS BAKING COMPANY 207
As the Union withdrew its challenge to the ballot of
Valerie Hull at the resumed hearing and agreed to her
inclusion in the voting unit, her vote may be counted.
B. The Objections
In addition to the foregoing challenges I have before me
Objections to Conduct Affecting the Results of the Election
also referred by the Regional Director for disposition. The
objections are discussed , seriatim, as follows:
1. The dissemination of allegedly false and
misleading wage information
Employees of the Company were invited to attend a
union meeting held on January 17 at the Claremont Library
Building. Present for the Union were President Kralstein,
International Representative Leo J. Dell'Olio, and Gene
Montroni. Also in attendance were about 11 employees of
the Company,25 Sandra Davis, and one or two employees
of Ward Foods, Inc., Bakery Division.
At one point during the meeting, Dell'Olio read from six
pay statements issued to Davis while she was employed by
Ward.26 Dell'Olio credibly testified that he read only gross
earnings and this testimony was corroborated by Stanton
Dorion and Lorraine Bunnell ; the latter having averred
that Davis, who sat beside her while Dell'Olio read from the
pay stubs, confirmed the accuracy of the report. Russell
Magoon, however, challenged the report and, according to
the credited testimony of Dorion, Bunnell, and Patricia
Russell, was invited to inspect the statements and did. His
denial of the credited testimony is, therefore, rejected.
According to Russell, at some point during the reading of
the Davis earnings , an unidentified union official or
member stated that in 1 week Davis worked 36 hours and
earned $90 plus; and, in another, worked in excess of 40
hours and earned $100 plus. Further, Russell and Magoon
testified that there was no mention of overtime by the union
spokesman . On the other hand, Dell'Olio averred that
certain ink and pencil numerical notations in the upper left-
hand comer of each statement, purporting to show the
number of hours worked, were not on the statements while
they were in his possession27 and he denied mentioning
hours worked by Davis. It is noted that the printed form
itself contains no provision for recording the number of
hours worked by an employee.
In evaluating the foregoing testimony, I credit Dell'Olio
over Russell as his testimony was straightforward, certain,
and supported by Bunnell. Conversely, Russell, at one
point, stated that an unidentified union official or member,
not in the hearing room, read the statements; later, that the
official could have been Dell'Olio; and, finally that she
could not recall who read them. In view of her uncertainty,
vacillation , and general confusion , as well as demeanor, I
regard Russell's testimony as unworthy of reliance. I find,
25 Russell Magoon, Valerie Hull , Patricia Russell, Patricia Von Dreden,
Lorraine Bunnell , Cheryl Stapleton, Lawton , Stanton Dorion, Bouther,
LeBlanc, and Platt.
26 Davis worked for Ward for a period of 8 or 9 weeks ending
December 16.
27 Clarence Smith , Ward's controller, speculated that the markings were
probably made by Ward's payroll clerk.
therefore, no credible evidence that Dell'Olio made the
remarks alluded to by Russell.
Moreover, even assuming such statements were made by
Dell'Olio, they were ambiguous in nature and, in the
context in which they were uttered, cannot reasonably be
construed as a material misrepresentation of Davis' wage
earnings. Further, any questions the employees may have
had concerning this matter could easily have been resolved
by the simple expedient of asking Davis who, as stated, was
present at the meeting.28
The Employer also contends that the Union falsely
advised the employees of a wage increase which it claimed
it had obtained for its members. In this regard, the record
shows that, in a letter mailed to the homes of the employees
on January 17 and dated January 18, the Union appealed to
them to vote "Yes" in the coming election and warned that
the Company's only concern was to defeat the employees so
that it can continue paying low wages and avoid "proper"
fringe benefits. The letter asked rhetorically why the
employees must be treated as second class citizens
responding with the suggestion that they follow the lead of
the employees of Ward Baking Company, White River
Junction, Vermont. It Continued, "As you know, they
voted 64 to I to join this union. They have received 75 cents
per hour in wages and fringe benefits-in their first
contract with this Union. Many of you were at the party
given by the Ward Baking employees saw and heard for
yourself how happy they are to be part of this union. They
are happy to pay the $4.00 per month after receiving a
$30.00 per week increase in wages and other benefits."
Finally, it exclaimed,"Joining this Union will better your
standard of living. On January 22, 1969, VOTE IN THE
LEFTHAND CORNER-YES!"
Monday afternoon, January 20, George Edson, the
Company's vice president, was shown a copy of the Union's
letter by either Burgess or Underkofler. Edson testified
that, after examining the letter, he concluded that the
statement therein that Ward's employees had received a 75-
cent-per-hour wage settlement was inaccurate because the
Burlington Free Press reported on October 7, 1968, that the
Union had settled for about 65 cents per hour.m Edson
discussed the matter with his lawyer the next morning but,
according to Edson, as "there was a 24-hour period before
the election at which time we could do nothing," they
decided it was too late to prepare a rebuttal. Edson also
testified that the newspaper report was his only basis for
concluding that the 75-cent-per-hour figure was fictitious.
It is clear enough that a newspaper report is not evidence of
the accuracy of statements made therein.30
The Company, however, offered in evidence copies of
Ward's collective-bargaining agreement with Local Union
28 See Hollywood Ceramics Company, Inc., 140 NLRB 221, 225.
29 The newspaper account reads, in pertinent part, that, " the union
reported a contract settlement with Ward calling for a package of 60 cents
per hour over a 3-year period, including additional health and welfare and
major medical benefits , as well as improved pension benefits and
additional vacations."
30 See 7 Wigmore, Evidence, § 2150 (3d ed.)
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 573 , New England Joint Board , Retail, Wholesale &
Department Store Union , CIO,31 and it current agreement
with the Union and, on the basis of a comparison of the
wage schedules , asserts that the true general increase in
wages and fringe benefits obtained by the Union for its
members at Ward was only 60 cents per hour or $24 per
week and that the 15-cent discrepancy was due to the fact
that the Union deliberately took credit for certain fringe
benefit contributions which had existed under Ward's prior
contract with Local 573. I find no merit in this objection.
The standards which the Board applies in determining
whether an election should be set aside where , as alleged
here , there has been a substantial misrepresentation is set
forth in Hollywood Ceramics Company, Inc., supra, p. 224.
Under these standards , a misrepresentation need not be
shown to be deliberate but it must represent a "substantial
departure from the truth" and must be of such a character
as to have had "a significant impact on the election."
Accepting the accuracy of the Employer 's computations
for the purpose of discussion only, I am of the opinion that
the Union 's letter of January 18 did not contain material
misrepresentations which impaired the employees' freedom
of choice within the intent of Hollywood Ceramics . For one
thing , the Union gave the name and location of the
company with which the comparison was being made thus
providing the employees with a means of evaluating the
information contained therein . For another, the Employer
had an opportunity to make an effective reply.
The letters were mailed to the employees from a motel in
Claremont on Friday , January 17, and , presumably, were
received no later than early Monday morning , January 20,
or 2 days before the election . As stated , Edson himself
received a copy Monday afternoon from either Burgess or
Underkofler , who obviously had obtained the copy
sometime previously. It would not have taken much time
for Edson to have communicated with the Ward officials if,
as he asserts , he had reason to believe that the Union had
materially misrepresented the wage settlement , particularly
as the Employer appears to maintain cordial relations with
Ward and as the two plants are only about 25 miles apart.
In this connection , it is not without significance that
Charles Smith , the bakery controller at Ward and also an
official conversant with its labor relations policy, was not
questioned about the alleged 75 -cent settlement despite the
fact that he testified under subpena as a witness for the
Employer . Finally, the Employer's apparent reliance on the
Peerless Plywood32 rule, as an excuse for its failure to rebut
the alleged misrepresentation , is misplaced as the rule does
not apply to campaign material.
For the reasons hereinabove set forth , I recommend that
this objection be overruled.
2. Patricia Von Dreden's alleged involvement in
threats to an assault of other employees
In this objection the Employer asserts that Von Dreden
acted as an agent for the Union but the evidence shows
only that she was a rank-and-file employee without official
status with the Union.
31 Local 100's predecessor.
32 Peerless Plywood Company, 107 NLRB 427.
In all other respects , the evidence relied on by the
Employer to support the objection is essentially the same as
that considered above in the discussion of the Redwater
Brook Road and Cota incidents . To the extent, therefore,
that I have already dealt with the substance of this
objection , I consider it an undue burden upon the record
and the reader to repeat the discussion in a parallel context.
It will suffice to say , however, that, even assuming Von
Dreden was the aggressor in the affray , the Union is not
responsible for her conduct since there is no evidence that
she was an agent of the Union at the time or that the Union
authorized , condoned, or ratified her actions.33
I also recommend that this objection be overruled.
Accordingly , I conclude and find that the Union did not,
by its conduct , interfere with or affect the results of the
election conducted on January 22, 1969.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the Respondent's
operations described in section I, above , have a close,
intimate , and substantial relationship 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.
VI. THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that the Board issue an order requiring that it cease
and desist therefrom and take certain affirmative action
including the posting of appropriate notices designed to
effectuate the policies of the Act.
Having found that Respondent has engaged in acts of
interference , restraint , and coercion by unlawfully threaten-
ing employees and thereby having violated Section 8(a)(1)
of the Act, I shall recommend that Respondent cease and
desist therefrom.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening to discharge employees, and by
threatening employees with economic reprisal if , in each
instance , they continue their activities on behalf of and
affiliation with the Union, the Respondent has engaged in
interference , restraint, and coercion of employees in the
exercise of rights guaranteed in Section 7 of the Act and, by
this conduct , the Respondent has engaged and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The Respondent did not suspend and discharge
33 See Orleans Manufacturing Company, 120 NLRB 630 ; Pittsfield Shoe
Company, Inc., 119 NLRB 1067.
CROSS BAKING COMPANY 209
employees and thereby discriminate against them in regard
to their hire or tenure or terms or conditions of employment
within the meaning of Section 8(a)(3) and Section 2(6) and
(7) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
35 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclusions
of law, and upon the entire record, it is hereby recommend-
ed that Cross Baking Company, Inc., its agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Threatening to discharge employees and threatening
employees with economic reprisal if they continue their
activities on behalf of and affiliation with the Union.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section 7
of the Act, or to refrain from any and all such activities.
2. Take the following affirmative action found necessar-
y and designed to effectuate the policies of the Act:
(a) Post at its place of business in Claremont, New
Hampshire, copies of the attached notice marked
"Appendix." 34 Copies of said notice, on forms provided by
the Regional Director for Region 1, after being duly signed
by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 1, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.35
IT IS FURTHER RECOMMENDED that the allegations in the
complaint not found to have been sustained in the Decision
herein be dismissed; that the Employer's objections to the
conduct of the election, held on January 22, 1969, be
overruled in their entirety; and that the results of the
election be certified.
34 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees
that:
WE WILL NOT threaten to discharge our employees or
threaten them with economic reprisal if they continue
their activities on behalf of and affiliation with Bakery
& Confectionery Workers' International Union of
America, Local 100.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the right to
self-organization, to form, join, or assist the above-
named Union, or any other labor organization, to
bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of 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, in conformity with Section 8(a)(3) of the
Act.
All our employees are free to become, remain, or refrain
from becoming or remaining members of the above-named
labor organization or any other labor organization.
CROSS BAKING COMPANY,
INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 20th Floor, John
F. Kennedy Federal Building, Cambridge and New
Sudbury Streets, Boston, Massachusetts 02203, Telephone
617-223-3300.