Fehr Baking Co.

National Labor Relations Board - Board Decisions

Apr 21, 1953

104 N.L.R.B. 240 (N.L.R.B. 1953)

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 The Union was on March 31, 1952, and at all times since has been the exclusive repre-
sentative of the employees in the appropriate unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act
5 By refusing on and after April 3, 1952, to bargain in good faith with the Union, Respond-
ents have engaged in unfair labor practices within the meaning of Section 8 (a) (5) of the Act
6 By discriminating in regard to the tenure of employment of Loyall C Henderson, to dis-
courage membership in the Union, Respondents thereby have engaged in unfair labor practices
within the meaning of Section 8(a) (3) of the Act.
7 By the conduct adverted to in subparagraphs 5 and 6 above, by threatening to operate with-
out employees, by interrogating employees, and by misrepresenting the impact of a union
shop upon employees, the Respondents have interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed in Section 7 of the Act and have thereby engaged
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act
8 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.]
FEHR BAKING COMPANY and BAKERY & CONFECTIONERY
WORKERS' INTERNATIONAL UNION OF AMERICA, AFL,
and its LOCAL NO. 478. Cases Nos. 39-CA-89 and 39-CA-
167. April 21, 1953
DECISION AND ORDER
On January 22, 1953, Trial Examiner C. W. Whittemore
issued his Intermediate Report in this proceeding, finding that
the Respondent had not engaged in the unfair labor practices
alleged in the complaint, and recommending that the complaint
be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a sup-
porting brief. The Respondent requested permission to file a
reply brief. This request is hereby denied.
The Board i 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 Intermediate Report, the exceptions and the
briefs, and the entire record in the case, and hereby adopts,
with a minor correction, 2 the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the com-
plaint herein be, and it hereby is, dismissed in its entirety.
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board
has delegated its powers in connection with this case to a three-member panel [Chairman
Herzog and Members Murdock and Peterson].
ZThe Trial Examiner inadvertently stated in the Intermediate Report that it was not
specifically alleged in the amended complaint that one of the reasons for the strike was the
Respondent 's refusal to bargain . We note that the complaint does in fact contain such allega-
tion. The error, however, does not affect the ultimate findings.
104 NLRB No. 43.
FEHR BAKING COMPANY
Intermediate Report
STATEMENT OF THE CASE
241
Charges having been duly filed and served, a complaint, an amended complaint, and notice of
hearing thereon having been issued and served by the General Counsel of the National Labor
Relations Board, and an answer haying been filed by the above=named Respondent Company, a
hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1),(3), and
(5) of the National Labor Relations Act, as amended, 61 Stat 136, herein called the Act, was
held in San Antonio, Texas, on December 1, 2, and 3, 1952, before the undersigned Trial
Examiner.
In substance the amended complaint, as it relates to Case No 39-CA-167, i alleges that the
Respondent: (1) In June and October, respectively, 1950, discrumnatorily discharged employees
Jerome J Segel2 and Murry Kopplinbecause oftheir union activities, (2) from June to October
1950 in various ways discriminated against other employees to discourage union membership,
(3) in September 1950 and at all times thereafter refused to bargain collectively with the Union
although it was the exclusive representativeofallemployees in appropriate units for that pur-
pose, (4) and by the foregoing and other specified conduct interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by Section 7 of the Act The answer
denies the commission of any unfair labor practices
At the hearing all parties were represented, were afforded full opportunity to be heard, to
examine and cross-examine witnesses , to introduce evidence pertinent to the issues, to argue
orally upon the record, and to file briefs and proposed findings and conclusions. Argument was
waived. A brief has been received from the Respondent and from General Counsel.
Upon the entire record in the case and from his observation of the witnesses, the Trial
Examiner makes the following.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Fehr Baking Company is a Delaware corporation , having its principal office and place of
business in San Antonio, Texas , where it is engaged in the manufacture , sale, and distribution
of bread , cake , and related bakery products. It annually purchases bakery materials consist-
ing principally of flour, sugar , yeast , and milk products valued at more than $1 ,000,000, of
which more than 25 percent is shipped in interstate commerce to the San Antonio plant from
points outside the State of Texas The majority of the remaining 75 percent of purchases is
made through the Campbell Taggart Service Corporation . The Respondent also buys adver-
tising , sales , production , engineering , research , and accounting services from Campbell
Taggart , a corporation which controls , owns stock in, or has an interest in more than 40
bakeries in several different States, owns more than 50 percent of the Respondent ' s voting
common stock and nearly 50 percent of its preferred stock Moreover the Respondent ' s presi-
dent , secretary and treasurer , and assistant secretary and treasurer , all are connected with
Campbell Taggart through stock ownership or as employees
Upon substantially the same facts the Board found in Case No. 39-RC-156 (89 NLRB 1401)
that the Respondent is engaged in commerce within the meaning of the Act. It is so found here.
II. THE LABOR ORGANIZATION INVOLVED
Bakery & Confectionery Workers' International Union of America , AFL, and its Local No.
478, referred to herein as the Union , are labor organizations admitting to membership em-
ployees of the Respondent
'At the opening of the hearing the Trial Examiner granted a motion by the Respondent to
sever and dismiss Case No. 39-CA-89, which byorder of the Regional Director dated October
20, 1952, had been consolidated with Case No. 39-CA-167. The reasons for the ruling are set
out in the record.
(During the hearing the Trial Examiner granted, on the ground that General Counsel had
failed to make out a prima facie case, a motion by the Respondent to dismiss the complaint as
to Segel. Segel admitted that he quit because of his health and upon advice of the doctor whom
he had been consulting for several weeks.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and issues
On May 17, 1950, theBoard issued its Decision and Direction of Election in Case No 39-RC-
156, ordering an election among the Respondent ' s some three hundred employees in an ap-
propriate unit The election was conducted on June 8. 1950 The Respondent filed objections to
the conduct of the election. On Auust 28, 1950, the Board issued a Supplemental Decision and
Certification of Representatives in which, among other things, it certified the Union as the
exclusive bargaining representative of all employees , for the purposes of collective bargaining,
in an appropriate unit consisting of all employees of the Respondent in San Antonio, Texas, ex-
cluding office and clerical employees, mechanical maintenance employees, truckdrivers,
salesmen , professional employees , guards, watchmen , and supervisors as defined in the Act
In consonance with this Board certification, the Trial Examiner concludes and finds that on
August 28 , 1950 , and at all times material thereafter , the Union was and now is the exclusive
bargaining representative of all employees in the unit above described.
Collective-bargaining conferences began on September 13 On October 2 and 3 a second and
third meeting of the parties was held, and on October 5 the Union called a strike of the em-
ployees. Thereafter a total of 12 meetings have been held , the last before the hearing occur-
ring on November 13, 1952 . No collective - bargaining agreement has been signed . The strike
was still continuing at the time of the hearing Although it is not specifically alleged in the
amended complaint , General Counsel contended during the hearing that one of the reasons for
strike was the Respondent's refusal to bargain before October 5 It is also his position that
throughout the bargaining conferences the Respondent negotiated in bad faith and thus refused
to bargain.
Also occurring between May and October 1950, General Counsel contends, were many in-
cidents of coercive nature and many acts on the part of management discriminating against
union adherents , particularly as to working conditions . As to employee Murry Kopplin, it is
claimed that on October 7, 1950, he was constructively discharged when ordered to perform
other than his usual work , and to take the place of a striking employee
B. The alleged discrimination against and coercion of
employees
Striking employee Erline Henson testified that in April 1950, on the day she first wore a union
button, Superintendent A. J. Raska came by her place of work, with a pad and pencil, saw the
button, wrote something on the pad, and (on direct examination) that later she saw on the same
pad her name listed with several others. On cross-examination, however, Henson said that she
actually saw him , while looking over his shoulder , writing the " last part" of her name She also
said that she saw a total of about 20 names on the list Raska, admitting that he customarily
carried a notebook and pencil with him in going about the plant, denied having recorded the
names of those he saw wearing buttons Not only because of the inconsistency in Henson's
testimony, noted above, but also because oftheabsence of proof that any other of the 20 names
she saw listed was of an employee wearing a button, The Trial Examiner considers the evi-
dence insufficient to, establish that Raska, to intimidate employees., openly made note of the
button wearers, or that he made note of Henson ' s name because she was wearing a button.4
Several striking employees testified , and both Raska and M . K Ghrist , president acid general
manager , admitted that a week or two before the Board election a majority of the employees
were called to the office, apparently individually. There is substantial agreement that at the
office each employee was told, either by Raska or the office manager, J K Zeeman; that an
election was to be held, that Texas had an open-shop law, and that they could either belong or
not belong to the Union. Henson, above identified, said that when she was called in Zeeman told
her that they did not "want a union in here and we will not have a union in here." Employee
Annie Schulz said that when she was called in "they only said there wouldn't be no union and I
shouldn't vote for a union, and that was all " Employee Albert Watson said that Raska asked
him, on the occasion of his being called to the office, what he thought about the Union, and wrote
his name on a piece of paper after he had said he thought it was all right "for the little man."
Such remarks and conduct, just before a Board election , if actually made would serve to sup-
port a finding of interference and coercion . Although Zeeman was not a witness, both Raska
and Ghrist denied that such remarks were made Doubt upon Henson's account is cast by the
finding as to her credibility in the paragraph above And as noted hereinafter the Trial
3 90 NLRB 2193.
4The testimony on this matter was received only as background. Even if it occurred, the
6 months' bar would prevent a finding of unfair labor practice. The original charge in this case
was not filed until November 16, 1950.
FEHR BAKING COMPANY 243
Examiner is unable , because of inconsistencies and contradictions by records of their version
of other matters, to accept as credible the testimony of Schulz and Watson. Furthermore, the
inherent probabilities serve as unlikely foundation for such isolated remarks. Ghrist admitted
that "most" of the three hundred employees were called in. There is no evidence that more
than the three described above were in any way restrained or coerced. In short, the Trial
Examiner concludes and finds that the credible evidence is insufficient to find that by such
interviews the Respondent interfered with , restrained , and coerced its employees.
Watson, identified above, testified on direct examination that he was told by his supervisor,
John Langholtz, that if he joined the Union he could, in effect, find some untrue excuse to hire
him and that he could be fired if he went on strike. Watson also said that shortly after he began
wearing a union button, early in May, he and other employees were deprived of rest periods,
were brought drinking water in a bucket instead of being permitted to go to the drinking
fountain, and had his hours of work curtailed. Langholtz denied making the alleged coercive
threat, and explained that the only time Watson and others had drinking water brought to them
in a bucket was when the fountain was out of order As to the threat of being fired if he went
on strike, Watson admitted on cross-examination that Langholtz had actually said that if his
job was filled while he was on strike he would lose his job He also admitted that the "bucket"
incident lasted but a few days. Watson's testimony that he averaged from 55 to 60 hours a
week before wearing a union button and thereafter only 38 or 39 hours lacks support of
company records Such records, in evidence, show that Watson averaged somewhat more than
55 hours a week except during weeks of vacation or in which a holiday fell, from early May
until the first of October, when he went on strike. The Trial Examiner, under these circum-
stances, cannot accept Watson's testimony as trustworthy Credible evidence is insufficient to
sustain a finding that Watson was either coerced or discriminated against as to his working
conditions
Another striking employee, Alfred E Oldham, whowas a shipping clerk, on direct examina-
tion said that his hours of work were reduced "a week or a week and a half after the election."
The election was held June 8. Company records show that the week of June 3 he worked 41 54
hours; of June 10, 41 08 hours; of June 17, 40.34 hours, of June 24, 40.33 hours; of July 1,
40 62 hours; and of July 8, 46.60 hours Not only do these records show no appreciable reduc-
tion in working hours, but on cross-examination Oldham admitted that changes in working
schedules were not uncommon, that one change had been made in March 1950, and that Ghrist
had taken steps to speed up the bakery operations shortly after he took over management,
which was early in 1949 The Trial Examiner considers the evidence insufficient to support a
finding that Oldham was discriminatorily deprived of regular employment hours.
Another striking employee, Manuel Robison, on direct examination said that he wore a union
button before the election, and that immediately after the election he was told by his super-
visor, Langholtz. "you are not allowed to smoke any more," and "you stabbed me in the back
and I am going to stab back hard." On cross-examination, however, Robison admitted in effect
that he and others continued to and were permitted to smoke at all times thereafter as soon as
they finished unloading a car of flour It thus appears that Langholtz' instructions as to smoking
related only to the time when the employees were actually engaged in unloading flour--a not
unreasonable order Langholtz denied making the remark about "stabbing." Although Robison
was apparently a member of an unloading crew and the order about smoking covered all, no
other employee corroborated Robison's testimony about the implied threat or reprisal. Under
the circumstances, the Trial Examiner considers the evidence insufficient to find that the rule
was discriminatory or that Langholtz threatened reprisal.
On direct examination striking employee Annie Schulz, a bread machine feeder, said that
after she began wearing a union button the machinery was speeded, she was forbidden to talk,
was given shorter hours, and was required to carry heavy rolls of paper On cross-examina-
tion, however, she admitted that the speeding up of machinery and shorter hours began as soon
as Ghrist came there, which was more than a year before she began to wear a union button,
and admitted that she was instructed not to roll the paper across the floor because of sanitary
reasons Under these circumstances the Trial Examiner is unable to find the credible evidence
sufficient to establish any discrimination against this employee.
In summary, the Trial Examiner concludes and finds that the preponderance of credible
evidence fails to sustain the allegations of discrimination as to working conditions and of
interference , restraint , and coercion.5
5 There is uncontroverted evidence that after the strike began the Respondent circulated
among the employees remaining at work an antiunion petition, the text of which was intended
to be used as an advertisement answering an antiemployer advertisement published by the
Union. It was not published, it was an expression of opinion, and there is no evidence that
signatures were coercively solicited or required
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The alleged discriminatory discharge of Murry Kopplin
Murry Kopplin was a painter at the Respondent's bakery until October 7, 1950, 2 days after
the strike began The day the strike began, on October 5, Ghrist asked him to work in the bread
department, he declined and proceeded to do his regular odd jobs of painting. On October 6,
after he had told Superintendent Raska that he "was interested in no other type of job but
painting ," Raska said, "Well, go ahead and paint." On the morning of October 7 he was told by
Ghrist that they had discontinued painting , was offered but refused work in the bread depart-
ment , and voluntarily quit.
It is General Counsel's contention, in effect, that Kopplin was constructively discharged for
refusing to take the job of a striking employee. Nothing in Kopplin's testimony, in the opinion
of the Trial Examiner, permits this finding. There is no showing that Kopplin was in the
Union or the unit, or that he declined production work because he would, in effect , be a strike-
breaker. His testimony warrants a finding only that he preferred to work at his trade, and
voluntarily quit when told painting was to be discontinued. There is no credible evidence to
refute Ghrist's testimony that on and after October 7 painting was, at least temporarily, dis-
continued, as well as other maintenance work, because of the strike.
The Trial Examiner concludes and finds that the evidence is insufficient to support the alle-
gations of the complaint to the effect that Kopplin was discriminatorily discharged.
D. The alleged refusal to bargain
In general , there is no credible evidence showing that at any time during the long period of
negotiations did the Respondent actually refuse tomeet with union representatives or to discuss
and bargain concerning any issue raised by them.
It is General Counsel's contention that an accumulation of factors support a conclusion that
throughout the course of negotiations the Respondent failed to bargain in good faith. During the
hearing he claimed such factors to include- (1) Statements by Respondent's representatives at
two meetings that only limited recognition would be given to the Union; (2) "an indication of
the willingness to do something" about rest and lunch breaks "but a refusal to put it into the
contract" on September 13; (3) a company proposal that all employees in the unit, as well as
the Respondent and the Union, be included as parties to the contract, (4) inconsistency of the
Respondent's proposals that certain statements of law be included in a contract and others ex-
cluded, (5) the Respondent's agreement that it would "try to select employees for vacation in
accordance with seniority" but refusal to put such a clause into the contract, (6) a claim made
by a company representative to the effect that a representative of Local 478 was without
authority to negotiate a contract in the absence of a representative of the international; (7) the
Respondent's refusal to consider contract provisions of other bakery establishments in other
cities; (8) the Respondent's submission of a proposed seniority provision at one meeting less
liberal than a proposal on the same subject at an earlier meeting , (9) a proposal by the
Company referring to shop rules without providing the Union with written shop rules, (10) the
Company's refusal to include a contract clause permitting employees to present grievances
to a foreman during working hours, and (11) the Company's inconsistency in proposing that
wages could be reduced tothe level existing at any other local bakery where a union agreement
existed but declining to agree to the reverse of such proposal - increasing wages to meet a
higher level
As to point (1) above, it appears from credible evidence that the Respondent, while agreeing
to negotiate, made it clear that it was not waiving whatever rights it had stemming from certain
exceptions it had filed with the Board and which were pending before the Board at the time of
the first meeting on September 13 The Trial Examiner is unable to find that by thus stating
its position the Respondent refused to bargain or failed to bargain in good faith.
As to point (2) above, the testimony of the union representative regarding the meeting of
September 13 fails to support a finding that the Respondent "indicated" a willingness to agree
to "do something" about rest periods but refused to put such agreement into the contract The
representative's own testimony is quoted: "I specifically asked if he (Respondent's counsel)
would put some of that (referring to lunch and rest breaks) in writing, and Mr. Weiss said,
'Well, we would have to look over the contract and see what you have in it and we will get to-
gether . . at some later date."' It was at this meeting that the Union submitted its first pro-
posed written agreement, and it is clear that at the time Weiss made the above-quoted remark
opportunity had not been given to look over the whole proposal The evidence is insufficient to
find that on September 13 the Respondent refused to put into writing any agreement concerning
"breaks "
As to point (3) above, it is undisputed that on October 2 the Respondent proposed that "the
employees of Fehr Baking Company in the unit hereinafter defined, acting by and through the
FEHR BAKING COMPANY 245
Union , hereinafter usually referred to as the Employees " should be included among the
parties to the contract It was a mere proposal , and Weiss ' version of the effect of it upon the
union representative is unchallenged : " Simmons (the International representative) said that
while he wanted to think about this a little , he thought that some such heading . would
probably be satisfactory ." The Trial Examiner finds no element of bad - faith bargaining in
this proposal.
As to point (4) above , that of inconsistency in company proposals as to inclusion of certain
statements of law , the Trial Examiner considers it unnecessary to labor this point The Trial
Examiner knows of no Board or court decision , in interpretation of the Act , which requires
that bargaining proposals must be consistent.
As to point (5) a e, the evidence is contradictory . Concerning the selection of vacation
periods , the union representative testified : " They said they would verbally agree to give the
people with the most seniority a choice , and if it was convenient or if it could be arranged,
that they would do it , but they would not put anything specific in the contract ." Weiss ' account,
in memorandum form made shortly after the meeting , states. "The Company was willing to
include a provision in the contract giving employees the right to express their preference as
to the time of their vacation . The Company would attempt to comply with the employees wishes
but felt that it should have the right to determine when the vacation should be taken ." Credible
support for Weiss' version is in documentary form for, on January 5. 1951 , the Company sub-
mitted to the Union a proposed contract containing , in substance , a clause covering the point.
The Trial Examiner finds that the evidence does not support a finding that on the matter of
vacations the Respondent agreed to matters but refused to put such agreement into writing.
Point (6) above was a subject ofsomedebate at a negotiating meeting . Accepting the account
of the discussion as given by the Local ' s representative , it appears to have occurred on
November 1, when the International ' s representative was absent , and arose as a comment by
Weiss when the Local ' s representative said any contract would have to be ratified by the mem-
bership before it would be valid . The evidence is clear that negotiations continued thereafter
as requested by the Union . The item is not indicative of bad - faith bargaining
As to point ( 7) above , the Trial Examiner finds no credible evidence in the record to support
the claim that the Respondent refused to consider bakery contracts in other cities. Weiss did
decline, on one occasion , to negotiate a contract for the entire Campbell Taggart system. And
he also declined to accept the contract of the National Biscuit Company . But as to the latter
matter , the union representative himself said : "There was quite a discussion on it." The
Union was certified by the Board to represent the Respondent concern , not the entire system
of Campbell Taggart.
As to point (8), the Trial Examiner is unable to find that the shifting of the Company ' s posi-
tion as to Its seniority proposals was an act of bad faith . There is no credible showing that the
Union had accepted the first proposal , or that an agreement reached was withdrawn or broken
during negotiations.
As to point (9), it is true that in the contract proposal by Weiss there is a provision that
"the shop rules and regulations now in existence . . will be respected and complied with."
It also appears that at the conference when the parties discussed this provision , on April 11,
1951 , and the Union asked for the rules , Weiss himself turned to Ghrist and requested them
Ghrist replied that they had no written rules. So far as the union representative ' s testimony
shows, the discussion ended there . There is no credible evidence that the Respondent actually
refused to provide the Union with material then in existence
Nor as to point ( 11) above , " inconsistency" of wage proposals by the Company , is the Trial
Examiner able to find a refusal to bargain . At negotiating meetings consistency is not seldom
an absent , if virtuous , party.
In summary , the Trial Examiner concludes and finds that the evidence is insufficient to sup-
port the allegations of the complaint that since September 13, 1950 , the Respondent has refused
to bargain with the Union
It will be recommended that the complaint be dismissed in its entirety.
Upon the foregoing findings of fact and upon the entire record in the case , the Trial Examiner
makes the following.
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of Section 2 (6)
of the Act.
2. Bakery & Confectionery Workers' International Union of America , AFL, and its Local No.
478, are labor organizations within the meaning of Section 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the complaint
within the meaning of Section 8 (a) (1), (3), and (5) of the Act.
[ Recommendations omitted from publication. ]
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