Galbreath Bakery, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1967

163 N.L.R.B. 408 (N.L.R.B. 1967)

408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractors, but it was more in the form of a speculation
that McKee might be in violation of its contract, rather
than an accusation that it was. The fact, as has been
stated, is that McKee had no corporate or contractural
relationship with Zeni or Kiewit, and it was not contended
at the hearing that it did; Neither company was a
subcontractor of McKee. Both were general contractors in
their own right.
When this was pointed out at the several conferences
preceding and concurrent with the strike, no attempt was
made by Steska or any other representative of
Respondents to controvert it. The argument is now made
that Respondents' representatives believed, albeit
erroneously, that McKee did subcontract to Zeni and
Kiewit, and hence their withdrawal of their labor did not
have the purpose of a secondary boycott, but of rectifying
a contract violation . It has the earmarks of pure
rationalization . The entire record demonstrates that
Respondents were determined not to work, and struck,
because members of District 50 working in the project
were not members of AFL-CIO, but rather were a "fink
outfit," as Steska described them. Even the vote at the
meeting in Washington on March 18, as described by
Bonadio to representatives of the Charging Parties, was to
support the stand of the Missouri unions in "their refusal
to furnish men as long as District 50 was on the site," and
not because of any alleged violation of the national
contract.'
An object of the strike and of the picketing, I find, was
to compel Cominco to stop doing business with. Zeni, in
violation of Section 8(b)(4)(i)(B) of the Act. By threatening,
on February 11, March 10 and 18, 1966, to refuse to
furnish men so long as District 50 members were on the
job, Respondents were in violation of Section 8(b)(4)(ii)(B)
of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with the activities of
McKee, Kiewit-Centennial, Peter Kiewit and Sons
Company, Missouri Lead Operating Company, Missouri
Lead Smelting Company, Cominco, Davidson and Scott,
and Sachs Electric Company, as described in section I,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States,
and tend to lead, and have led, to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they cease
and desist therefrom and they take certain affirmative
action as provided in the Recommended Order, which I
find necessary to remedy and remove the effects of the
unfair labor practices and to effectuate the policies of the
Act. It is evident that if the Order were limited to the
specific persons and employees who are involved herein, it
would not properly remedy the unfair labor practices
herein found, for it is reasonably to be expected that other
01 It may be pointed out that if these facts were to the contrlry,
and McKee did in fact subcontract work to Zeni in violation of this
contract , Respondents' conduct is nevertheless violative of the
Act. See N . L.R.B. v . Operating Engineers , Local 12 (Tri-County
Assn. of Civil Engineers, etc.), 293 F . 2d 319, 322 (C.A.9);
Construction Productions , etc. Local 383 , v. N.L.R.B. (Colson &
Stevens Construction Co.), 323 F.2d 422 (C.A. 9).
similar situations will arise in the future with the danger of
repeated violation of Section 8(b)(4)(i) and (ii)(B). I shall
therefore recommended a broad cease-and-desist order.
CONCLUSIONS OF LAW
1. Loca1513, International Union of Operating
Engineers , and Locals 318 and 562, United Association of
Journeymen and * Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
2. McKee, Kiewit -Centennial , Peter Kiewit and Sons
Company, Missouri Lead Operating Company, Missouri
Lead Smelting Company , Cominco, Davidson and Scott,
and Sachs Electric Company are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. By (a) engaging in a strike , and inducing and
encouraging employees of McKee, Peter Kiewit and Sons
Company, Missouri Lead Operating Company, Missouri
Lead Smelting Company , Cominco, Davidson and Scott,
and Sachs Electric Company to engage in a strike or a
refusal in the course of their employment to perform
services for their respective employers, and
(b) threatening with a strike McKee, Peter Kiewit and
Sons Company , Missouri Lead Operating Company,
Missouri Lead Smelting Company, Cominco, Davidson
and Scott , and Sachs Electric Company in both cases with
an object of forcing or requiring Cominco to cease doing
business with Zeni , Respondents have engaged in unfair
labor practices comprehended by Section 8(b)(4)(i) and
(ii)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Galbreath Bakery, Inc., and United
Packinghouse, Food & Allied Workers,
AFL-CIO. Cases 10-CA-6514 and 10-RC-6559.
March 15,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS
AND ZAGORIA
On September 28, 1966, Trial Examiner Boyd
Leedom issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended dismissal as to them.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting
brief, and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
163 NLRB No. 41
GALBREATH BAKERY, INC. 409
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, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified herein.
1. THE SECTION 8(a)(1) VIOLATIONS
The Trial Examiner found, and we agree, that the
Respondent violated Section 8(a)(1) of the Act by the
following activities:'
(a) Plant Manager Charles E. Smith's coercive
conversation with his brother, employee Bobby Carl
Smith, before the election wherein Charles, after
asking Bobby if he was involved with the Union,
threatened Bobby that if he persisted in his union
activity he would not last long with the Company,
would have difficulty finding another job, and might
be "blackballed" from obtaining employment
elsewhere in the area.
(b) Plant Manager Smith's conversation with
employee Webb prior to the election wherein Smith
promised Webb that, if the Union were rejected,
Respondent would rerate unit jobs in such a way that
employees would make more money on the basis of a
smaller number of hours.
(c) Supervisor Hammontree's statement to
employee Hutchins shortly before the election that
he, Hammontree, understood that if the employees
went out on a strike they could or would be given a
stated number of hours to return to work and if they
did not return they would be automatically fired and
could or would be "blackballed" with little chance of
getting employment anywhere else. The Trial
Examiner concluded, and we agree, that this
statement was in the nature of a threat by
Hammontree and was intended by Hammontree to
dissuade Hutchins from his support of the Union
pursuant to Hammontree's admitted campaign to
defeat the Union.
(d) Supervisor Hammontree's request on the day
before the election to employee Johns, that Johns
vote against the Union, coupled with Hammontree's
suggestion to Johns that if Johns wanted more
money and better working conditions Johns should
talk to Plant Manager Smith and to Hammontree
instead of talking to the union representative. The
Trial Examiner found, and we agree, that
Hammontree's statements to this employee
constituted an unlawful interference with Johns'
right to support the Union in the election in that the
statement contained an implied promise of a benefit
if Johns would give up his allegiance to the Union.
II. THE REFUSAL TO BARGAIN
The Trial Examiner concluded that Respondent
did not refuse to bargain with the Union in violation
of Section 8(a)(5) and (1) of the Act, and he
recommended dismissal of this allegation of the
complaint. The General Counsel has excepted to this
finding and recommendation, and we find merit in
the exceptions.
The only issue in respect to this allegation is
whether or not the General Counsel has sustained
his burden of proving that Respondent did not act in
good faith when it rejected the Union's bargaining
demand and insisted upon a Board election.2
The Board has long held that an employer may
decline to recognize a labor organization and insist
upon a Board election as proof of a Union's majority
if it is motivated by a good-faith doubt as to the
Union's representation status in an appropriate unit.
If, however, the employer's refusal is motivated by a
rejection of the collective-bargaining principle or a
desire to gain time within which to undermine the
Union and dissipate its majority, the employer's
refusal is found violative of 8(a)(5) and (1) of the Act.3
The Trial Examiner concluded that the General
Counsel had not established that Respondent's
refusal to bargain was in bad faith. More
particularly, he concluded that Respondent's other
I No exceptions were filed to these violation findings by the
Trial Examiner
I The Trial Examiner's findings in respect to other issues
surrounding the 8(a)(5) allegation are not excepted to, and we
adopt them Thus, as the Trial Examiner found, the Union
possessed a majority of 25 valid authorization cards in a unit of 43
employees when it demanded recognition in a letter mailed to
Respondent on January 12, 1966 Respondent, in a letter to the
Union dated January 19, 1966, rejected the Union's demand,
stating that Respondent had doubts that the Union possessed a
majority and also stating that it had questions as to the
composition of the appropriate bargaining unit
The appropriate unit , as found by the Regional Director in the
representation case, is as follows
All production and maintenance employees of the
Employer's plant at Morristown, Tennessee, including
receiving and warehousing employees, janitors, loaders and
handlers, truck mechanics, and over-the-road truck drivers,
but excluding office clerical employees, driver-distributors,
thrift store employees, professional employees, guards, plant
superintendent, sales manager, Frank Lowery, working
foremen in the bread and roll shops, garage foreman or
overseer, and all other supervisors as defined in the Act
In the absence of a request for review of this appropriate unit
finding, we affirm it See Section 102 67(f) of the Board 's Rules
and Regulations and Statements of Procedure, Series 8, as
amended
A Board election was conducted on March 23, 1966, and the
tally of ballots showed that of approximately 43 eligible voters 17
cast valid votes for, and 24 cast valid votes against , the Union,
with 2 individuals casting challenged ballots Thereafter, the
Union filed timely objections involving, inter alta, conduct also
alleged herein as violative of Section 8(a)(1) of the Act The
objections were consolidated for hearing before the Trial
Examiner along with the alleged unfair labor practices The Trial
Examiner concluded in his Decision that the objections were
meritorious , and he recommended setting the election aside This
conclusion and recommendation were not excepted to, and we
adopt them
I Joy Silk Mills , Inc , 85 NLRB 1263, enfd as modified on other
grounds 185 F 2d 732 (C A D C ), cert denied 341 U S 914
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contemporaneous unfair labor practices involved
only "isolated incidents" and were too insubstantial
to provide a basis to support the inference that
Respondent's refusal was motivated either by a
rejection of the collective-bargaining principle or a
desire to dissipate the Union's majority. We
disagree.
From the outset-from about the same time
Respondent declined to recognize the Union-it is
clear that its president, Lowery, was disturbed by
his employees' interest in the Union and was
obviously desirous of ridding himself of the threat
which he felt the Union posed to his ability to deal
directly with his employees, as individuals, in
respect to their conditions of employment. Thus, he
informed his employees in a speech which he
delivered to them some 2 months before the election
that he was hurt that his employees had gone behind
his back to form a union and that he could do more
for them than the Union could.4 The theme of this
speech was implemented in the unlawful activities of
his supervisors. Thus, Plant Superintendent Smith
told employee Webb that if the Union lost the
election Respondent would rerate the jobs to enable
employees to earn higher wages-an unlawful
promise that if Respondent were able to continue to
deal directly with its employees without the
intervention of the Union, Respondent would make
that arrangement worthwhile. Supervisor
Hammontree-who admitted at the hearing that he
had engaged in a "campaign" against the
Union-offered employee Johns an opportunity to
obtain a wage increase through a direct approach to
management as inducement to Johns to disavow his
allegiance to the Union. Smith and Hammontree, as
set forth above, also made it clear that Respondent
would punish employees who engaged in union
activities by subjecting them to discharge from their
present jobs and by "blackballing" them from
employment elsewhere. We believe it manifest from
the foregoing that Respondent in refusing to bargain
with the Union was motivated by a rejection of the
collective-bargaining principle as well as a desire to
gain time within which to undermine employee
support of the Union.
We are likewise unable to agree with the Trial
Examiner, in the circumstances of this case, that
Respondent's threats and promises to four
employees were isolated incidents. The import of the
Trial Examiner's holding in this regard is that these
incidents could have had only an insignificant effect
upon the intentions of union adherents-who
constituted a majority as of January 12-to continue
to support the Union. We believe, rather, that
Respondent's conduct, particularly its threats of
reprisal, tended to have a much greater impact.
These threats portended a complete loss of
livelihood for union adherents-discharge by
Respondent and blacklisting from employment
elsewhere.
Moreover, while we do not normally decide legal
issues merely on the basis of mathematical
calculation and threats of reprisal, and promises of
benefit cannot always be assumed to affect only
those to whom they are directly uttered, we are
constrained to observe, in the present case, that if
the Respondent's threats and promises had
succeeded in accomplishing their desired effect-to
dissuade the above-named four employees from
adhering to the Union-the loss of the support to
these employees would in itself have been sufficient
to destroy the Union's majority. That is, the Union's
majority of 25 in a unit of 43 would have thereby
been reduced to 21. Likewise it is evident that the
Union's loss in the election, which is herein set aside
because of the Respondent's conduct affecting the
employees' free choice,5 was by a similar margin.
Thus, a change in from three to five of the votes
which were cast (depending on the outcome of the
challenges to ballots), would have been sufficient to
affect the ultimate result.6
Based on all the foregoing circumstances, and
taking into account particularly the type of conduct
engaged in by Respondent's supervisors, we find
that the General Counsel has proved Respondent's
unlawful motivation, and we conclude that
Respondent has refused to bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act.7
We shall, accordingly, direct Respondent to
bargain, upon request, with the Union and, if an
understanding is reached, to embody it in a signed
agreement.
' Unlike the Trial Examiner, we so find on the basis of the
testimony of Bobby Smith
Although the Trial Examiner did not discredit Smith's
description of Lowery's speech on the basis of Smith's demeanor,
the Trial Examiner concluded that Smith's testimony in this
regard was "sketchy, inexact and filled with uncertainty" and that
such testimony would "not support any significant finding "
We overrule the Trial Examiner's conclusions in this regard to
the extent that they may be construed as discrediting Smith's
description of the statements in the speech which are specified in
the text above Smith, on direct examination, clearly testified that
Lowery made the instant remarks and Smith repeated this
testimony on cross-examination Lowery, who admitted at the
hearing that his speech was in opposition to the Union did not
deny making these specific remarks
' The Trial Examiner so recommended, and no exceptions
thereto have been filed
" As set forth in the Trial Examiner's Decision, 24 ballots were
cast against, and 17 for, the Union Two ballots were challenged
' The cases cited by the Trial Examiner in support of a contrary
result-Harvard Coated Products Co , 156 NLRB 162, Hammond
& Irving, Incorporated, 154 NLRB 1071, Ben Duthler, Inc , 157
NLRB 69, Strydel Incorporated, 156 NLRB 1185, John P Serpa,
Inc, 155 NLRB 99, Clermont's, Inc, 154 NLRB 1397-are
distinguished because, as the Board held in each, the 8(a)(1)
conduct involved was isolated or insufficient to vitiate the
employer's good faith Consideration of the Trial Examiner's
discussion of the unit issue in Clermont's, Inc , copra, is,
therefore, unnecessary to the resolution of this case We note,
nonetheless, that subsequent to its Decision in Clermont's, the
Board, in Southland Paint Company, Inc , 156 NLRB 22. 23.
reiterated its adherence to the well-established principle, at
variance with this aspect of Clermont's relied upon by the Trial
Examiner, that a good-faith but erroneous doubt as to the
appropriate unit is not a defense to an unlawful refusal to bargain
CONCLUSIONS OF LAW
GALBREATH BAKERY, INC. 411
1. Galbreath Bakery, Inc., is an employer within
the meaning of Section 2(2) of the Act and is engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Packinghouse , Food & Allied Workers,
AFL-CIO, is a labor organization within the
meaning of the Act.
3. By unlawfully interrogating its employees,
threatening them with economic reprisals, and
promising them economic benefits in order to
influence their union activities or sympathies,
Respondent has interfered with , restrained, and
coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act, and has thereby
engaged in unfair labor practices within the meaning
of Sections 8(a)(1) and 2(6) and (7) of the Act.
4. All production and maintenance employees of
the Employer ' s plant at Morristown , Tennessee,
including receiving and warehousing employees,
janitors , loaders and handlers, truck mechanics, and
over-the-road truck drivers, but excluding office
clerical employees , driver-distributors, thrift store
employees , professional employees, guards, plant
superintendent , sales manager , Frank Lowery,
working foremen in the bread and roll shops, garage
foreman or overseer , and all other supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
5. At all times since January 12, 1966, United
Packinghouse , Food & Allied Workers, AFL-CIO,
has been the exclusive representative of all the
employees in the aforesaid unit for the purposes of
collective bargaining with respect to rates of pay,
wages, hours of employment , or other terms and
conditions of employment.
6. By refusing on January 19, 1966, and
thereafter , to bargain collectively with the aforesaid
labor organization, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Sections 8(a)(5) and ( 1) and 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent , Galbreath
Bakery, Inc., its officers , agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner ' s Recommended Order , with the following
modifications:
1. Add the following as paragraph 1(c) to the
Recommended Order:
"(c) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with United Packinghouse, Food &
Allied Workers, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees of
the Employer's plant at Morristown, Tennessee,
including receiving and warehousing
employees, janitors, loaders and handlers, truck
mechanics, and over-the-road truck drivers, but
excluding office clerical employees, driver-
distributors, thrift store employees, professional
employees, guards, plant superintendent, sales
manager, Frank Lowery, working foremen in
the bread and roll shops, garage foreman or
overseer, and all other supervisors as defined in
the Act."
2. Recommended Order: Renumber the present
paragraph 2(a) as 2(b), and insert prior thereto the
following paragraph 2(a):
"(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all the employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such
understanding in a signed agreement."
3. Delete original paragraph 2(b) and substitute
the following as 2(c):
"(c) Notify the Regional Director for Region 10, in
writing, within 10 days from the date of this Decision
and Order, what steps the Respondent has taken to
comply herewith."
4. In the appendix to the Recommended Order
insert the following paragraphs after the second
indented paragraph:
WE WILL NOT refuse to bargain collectively
with United Packinghouse, Food & Allied
Workers, AFL-CIO, as the exclusive
representative of the employees in the
appropriate bargaining unit. The appropriate
unit is:
All production and maintenance employees
of our plant at Morristown, Tennessee,
including receiving and warehousing
employees, janitors, loaders and handlers,
truck mechanics, and over-the-road truck
drivers, but excluding office clerical
employees, driver-distributors, thrift store
employees, professional employees,
guards, plant superintendent, sales
manager, Frank Lowery, working foremen
in the bread and roll shops, garage foreman
or overseer, and all other supervisors as
defined in the Act.
WE WILL bargain, upon request, with the
above-named Union as the exclusive bargaining
representative of all employees in the unit
described above, with respect to wages, hours,
and other terms and conditions of employment
and, if an understanding is reached, embody
such understanding in a signed agreement.
IT IS HEREBY FURTHER ORDERED that the
complaint herein be, and it hereby is, dismissed
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insofar as it alleges violations of the Act not found
herein.
IT IS HEREBY FURTHER ORDERED that the election
conducted on March 23, 1966, in Case 10-RC-6559
be, and it hereby is, set aside; and that the petition
for certification of representative in that same case
be, and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BOYD LEEDOM, Trial Examiner: On a charge dated
March 30, 1966, alleging that the Respondent Galbreath
Bakery, Inc , had interfered with, restrained, and coerced
its employees under Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, the General Counsel of
the National Labor Relations Board issued a complaint
against the Respondent dated May 11, 1966. The charge
and the complaint grew out of conduct on the part of
Respondent, alleged to have taken place in connection
with the effort of the Union named above, United
Packinghouse, Food & Allied Workers, AFL-CIO, to
organize a certain unit of Respondent's employees in its
bakery business.
In the Union's organizational effort an election was
conducted by the Board on March 23, 1966, among the
employees, 24 of whom cast valid votes against the Union
and 17 cast valid votes for, with 2 ballots having been
challenged by the Union. On objections to the conduct of
the election, duly filed by the Union. the Regional Director
found material and substantial credibility and factual
issues best resolved by a hearing: and accordingly ordered
that the hearing on the objections be consolidated with the
hearing on the complaint.
The case was tried in Morristown, Tennessee, on July 7
and 8, 1966. It is the theory and the claim of the General
Counsel, throughout the trial and in the brief, that the
alleged unfair labor practices of the Respondent were
deliberately committed in a rejection of the collective-
bargaining principle: at the time the Union requested
recognition as the bargaining representative of the
employees, it represented a majority of such workers,
Respondent had no good-faith doubt about such
representation, but insisted on the election only to gain
time for the purpose of undermining the Union; and the
election was invalid by reason of Respondent's unlawful
activity.
In its answer to the complaint, and throughout the trial,
the Respondent contended that it did not violate the Act in
any respect; at no time did the Union actually represent a
majority of the employees in the unit; Respondent did
doubt in good faith such majority representation by the
Union; and the lack of such majority was fairly established
in the election.
Upon consideration of the entire record in the case,
including the briefs of the parties, and upon my
observation of the demeanor of each of the witnesses
testifying before me. I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Respondent admits the allegations of the complaint
concerning the organization, the nature, the volume of
business, and the location of Respondent's enterprise
involved herein. I find that the allegations of the complaint
respecting the same are true and from such findings
conclude that Respondent is engaged in commerce, in a
business affecting commerce. and is an "Employer"
within the meaning of the Act.
It is also admitted and I find and conclude that the
Union, the Charging Party herein, is now and has been at
all times material to this proceeding a labor organization
within the meaning of the Act.
The objections to the election raised issues involving
conduct, also alleged in the unfair labor practice charge,
on which the complaint was issued. These objections
involve (1) the claim that Respondent through its officers
and supervisors made threats of reprisals and promises of
benefits to its employees for the purpose of discouraging
their support of the Union. (2) the fact that certain of the
campaign literature circulated by the Respondent among
the employees before the election, in the context of other
conduct on the part of Respondent, constituted threats of
reprisals: and (3) conduct on the part of Respondent
discovered in the investigation of the objections filed, and
not specifically alleged in the objections, namely, the
possibility that one of Respondent's supervisors
unlawfully interrogated an employee concerning his union
activity, the fact of such interrogation depends on a
credibility resolution. Included as they are within the
allegations of unfair labor practices by Respondent, the
objections are considered and disposed of in the context of
the unfair labor practice allegations.
A The 8(a)(I) Allegations
1. The Cantwell-Breedlove conversation
The complaint alleges and the General Counsel offered
evidence intended to establish the allegation that
Respondent violated Section 8(a)(1) of the Act in a
conversation held between Respondent's Secretary-
Treasurer Kenneth Cantwell and its employee Louis
Breedlove. Both men testified, and what was said must be
determined from their testimony. The conversation took
place between 3 weeks and 1 week prior to the election,
probably more nearly 1 week than 3. While there appear to
be variations in the two versions, there are no sharp
conflicts, and the differences appear to have little if any
legal significance
I am completely satisfied that both men were seeking to
relate the conversation as accurately as recollections
permitted. While Breedlove was a rank-and-file employee
of 18 years' service with Respondent, he displayed an
admirable quality of independence, without hostility, on
the question of unionism. His testimony was not as exact
or precise as that of Cantwell, and is marked with
considerable uncertainty Cantwell, Respondent's
secretary-treasurer, was equally impressive in his
forthright and conscientious recital of the circumstances
of the conversation in question His whole testimony,
including that relating to other aspects of the case, in and
of itself as recorded in the transcript of testimony, shows
him to be a reasonable, understanding, and cooperative
person, not inclined to exaggeration or argumentation. In
addition to this his whole demeanor on the stand supports
the impression gained from the text of his testimony that
he is a mild mannered, fair and reasonable person, not
given to domination or browbeating.
The testimony of the two men indicates that they met at
the time of the conversation in the warehouse, Breedlove's
work station He is in charge of the warehouse and
Cantwell is his "boss," in charge of buying and storing and
as Breedlove testified they had "much in common to talk
GALBREATH BAKERY, INC. 413
about." His testimony indicates that Cantwell had come to
the warehouse to check on some "bun trees" and that
during the course of the conversation the two walked back
into the warehouse for the purpose of making this check.
Cantwell makes no reference to the purpose of checking
the bun trees, but in his testimony went directly to the
conversation which he said he initiated. His version is that
he said to Breedlove he would like to talk to him about the
coming election; and that he didn't know how Breedlove
felt about the Union and was not going to ask him how he
felt about it; but did ask him in forming his opinion to give
consideration to both sides, taking into account the length
of time he had been at Galbreath Bakery; that Breedlove
then came back with the statement that some big
companies had unions and had been a big success.
Breedlove's recital on his first direct examination
indicated that Cantwell "wanted to know why did I want a
union"; that he told him it was because he thought a union
was the thing needed and because some of the biggest
companies in the world had unions and they made more
money than anybody else and he thought it would be a
good thing. To which Cantwell said "okay . you just
think it over."
In further examination, both direct and cross, both
counsel for the General Counsel and counsel for
Respondent placed considerable emphasis on the question
whether Cantwell had asked Breedlove "Why do you want
a union?" I am not sure I see the significance counsel
seemed to have attached to this precise question, but in
any event I believe, and find from the evidence,
particularly because of the uncertainty of Breedlove on the
point and the precise testimony of Cantwell, that Cantwell
opened the conversation as he testified, by saying he did
not know how Breedlove felt about the Union and was not
going to ask.
Another variation from the theme of the conversation
hereinbefore set forth appears in the testimony of
Breedlove, after his memory was refreshed by his pretrial
statement. After reading the pertinent part of the
statement, pointed out to him by counsel, he testified that
Cantwell also said to him "you know, there's a law against
bribing me. I'm not trying to bribe you, I want you to
understand that." And that he then said "no, sir, I don't
think you'd do that now." While it is not easy for me to
understand how this statement, if made, would add to the
coercive effect or the interference of the conversation, I
cannot find on the evidence adduced on the point that this
precise statement was made. The word "bribe" does not
relate appropriately to the balance of the conversation. It
is possible, or even probable, that at some time in the
conversation Cantwell made some statement to ameliorate
his contact with the employee, which statement Breedlove
most likely mistranslated in terms of "bribe" when called
upon to recollect what was said. Judging the nature and
character of Cantwell as revealed in his testimony and
demeanor on the stand, it is quite likely that he would seek
to soften the contact he made with Breedlove by some
statement but, if so, it would more likely be cast in terms
of "coerce" than of "bribe."
I am unable to find from the evidence anything here
coercive or that would interfere with Breedlove's rights,
guaranteed under the Act, to support and join the Union;
and therefore recommend that the allegations of the
complaint with respect thereto be dismissed. In so doing I
take note of the fact that there is neither other allegation
nor evidence of Cantwell speaking to any other employee
concerning the Union or doing anything else suggestive of
a violation; also that the conversation took place at the
work station of the employee and came about more or less
in a casual manner between men who obviously had good
feeling and fine appreciation for each other in their
relationship of supervisor and employee.
2. The Smith brothers' conversation
Charles E. Smith (Elmer) was Respondent's plant
manager, and had been for several months when the
Union's organizational campaign started. His brother
Bobby Carl Smith (Bobby) was a rank-and-file employee, a
baker who had returned to employment with Respondent a
month or so before the union activity started, and after an
extended absence from previous employment with the
bakery. One of the allegations of 8(a)(1) violation grows out
of a conversation between these two brothers concerning
the Union.
Both brothers testified as to the conversation. No one
else was present. It took place at or near a machine at
which Bobby worked. Again it is difficult to reconstruct
the conversation even in its basic parts; and here the
differences in the two versions are quite significant. I find
from the testimony that Elmer had asked Bobby to go to
Elmer's home on a Saturday, while Elmer was working at
the bakery, to do some work on an automobile engine that
Elmer intended to have overhauled. While there Bobby
told Elmer's wife that he, Bobby, had returned to
Respondent's bakery to help organize the plant for the
Union. This information was relayed to Elmer, who at
some later time which cannot be ascertained from the
evidence, except that it occurred before the election, went
to Bobby, his brother, at or near the latter's place of work
in the bakery and engaged in the critical conversation.
Elmer's testimony is essentially this: Having received
the information concerning his brother's union activity he
went to him and asked him if he was involved. Advised by
Bobby that he was, Elmer said to him that he didn't
believe it was fair to him as a brother; that Bobby told him
he thought he too should get on the wagon and that Elmer
responded that under the circumstances he didn't think
so; said to his brother, you're a good baker, and "it might
make it hard on you if you get into trouble with these
things. .
Bobby's version differs in these respects: He testified
that his brother said to him that "If the Company finds out
that you have anything to do with this [the Union], you
won't last long with the Company, and ... you couldn't get
a job anywhere else and, and ... you might be
blackballed."
Bobby's testimony as to the details of the conversation
remained unchanged throughout his examination and I
credit it and find that Elmer, the plant superintendent, did
tell his brother, the employee, that if the Company found
out about Bobby's union activity he would not last long,
might have difficulty getting a job anyplace else, and might
be blackballed. I do so for two specific reasons. First, as
Elmer was making his recital of the substance of the
conversation he appears to have said as little as possible in
answer to the question that asked him to tell the whole
story from the beginning to the end. Thus, he said in
substance that he asked his brother if he was active in
behalf of the Union, learned that he was, told him he did
not believe it was fair, and then concluded his answer with
this sentence "That's about all that I have to add to it, in
fact about it, it is." But when asked another question on
direct examination, lie added a more significant part to the
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation heretofore mentioned. in which he said, "it
might make it hatd on you if you get into trouble with these
things.. ." Secondly, the sentence just quoted and not at
first related by the plant superintendent is not greatly
different from the more detailed statement Bobby made as
to what his brother said, that is, that lie would not last long
with the Company and might be blackballed
The hiothers were in a difficult situation Both seemed
to testify with some reticence. Certainly neither gave the
impression of brazenly falsifying testimony , so much as
appearing to modify or withhold details The situation in
which Elmer found himself as a newly hired plant manager
for a company that was admittedly opposing the selection
of the Union by its employees as their bargaining
repicsentative was undoubtedly sufficiently embarrassing
to loosen his tongue in talking to a brother: and so if he
failed to use all the words in his testimony that he used in
the of iginal conversation , and avoided saying on the stand,
and in fact denied saying. that his brother would not last
long with the Company and might be blackballed, as I
have found , it is somewhat understandable , but not
excused even though directed to a brother-employee
Having found that the plant superintendent did tell this
employee that if he persisted to his union activity Ire would
not last long with the Company, would have difficulty
finding another toh, and might be blackballed , I conclude
that Respondent coerced the employee and interfered with
his right to support and join the Union , and thus violated
Section 8(a)(1)
3 The Elrner Smith-Charles Webb conversation
Another allegation of violation of Section 8(a)(1) relates
to the conversation held between Plant Manager Smith
and employee Charles Webb. Again the substance of the
conversation must be gleaned from the two men involved,
both of whom testified. There is substantial difference in
the two versions of the conversation with considerable
significance attaching to the vacations. not only as to the
substance of the conversation, but as to the time when it
took place.
I find that the critical conversation was substantially as
employee Webb testified, and that it took place prior to the
election, notwithstanding Webb's initial uncertainty as he
first testified concerning it I credit his testimony not only
because of the favorable impression I had as to his
reliability as a witness and from his demeanor on the
stand, but also because of the detail and positiveness of his
testimony as compared to that of the plant manager There
is uncertainty and vagueness in Smith's testimony that
makes it unpersuasive. First lie denied that he had any
Conversation with Webb about the Union during the
organizational campaign His answer to the question was
"No. Sir. not about the Union " Then as counsel for
Respondent explored further with another question as to
whether or not there had been a conversation in which the
Union was mentioned lie replied "Yes " There is an
element of inconsistency in the two answers, not marked
or of great significance. but to a degree at least, tending to
give the impression, which I had, that the witness was
being less straightforward and direct than lie might have
been. Furthermore the testimony that immediately follows
these two questions and answers sought to establish a
situation, hardly plausible, absent countervailing
circumstances. That is. the witness then testified that the
employee Webb had approached him prior to the election
and asked if witness had any idea how the union election
was going to go: and witness answered lie had no idea, and
that nothing; else was said. It seems unlikely that Smith,
the newly employed plant nnanaget at the time in a position
of opposition to the Union, would have let this opportunity
(opened up by an employee on the subject of the Union),
pass without saying something at least somewhat negative
on unionism In addition, besides the element of
uncertainty in nearly all of Smith's testimony, there is an
element of conflict in some of his answers that detracts
from the credibility of his story At one point lie testified
that these were a lot of subjects talked about after the
election, but lie could not pin it down that anything was
said about more money per hour and therefore the same
pay for less time. He testified quite specifically that lie had
no conversation on such subject directly with Webb, that
such things cane up (in the postelection meetings), and he
told them lie knew nothing about the subject Then when
counsel sought to pinpoint who asked the question about
the same pay for fewer hours, he testified lie believed it
was Webb, and that lie told him this matter was something
that would come up later
It is lot all the foregoing reasons and the demeanor of
Smith as well as that of Webb, on the stand. that I give the
greater credence to Webb's testimony. Thus I fund from
the evidence that Smith did tell Webb prior to the election
that if the Union were rejected, the Company would rerate
the jobs so that the whole shop would be making more
money. and that by reason of more pay per hour the
employees would not have to work so long. These
statements I conclude wete coercive in that they promised
the employee a benefit for rejection of the Union, and were
an interference with his right under the Act to suppoi t and
join the union, and therefore constituted a violation of
Section 8(a)(1).
4 The iMills-Lawless conversation
The allegation of 8(a)(1) violation that is grounded on the
conversation between Sales Supervisor Glenn Mills and
employee Johnny Lawless presents a sharp conflict in the
testimony of the two men that is hard to resolve. Their
testimony is the only evidence bearing directly on the
issue, the crux of which is whether Mills. the supervisor.
offered Lawless five or six fifths of liquor if Lawless would
undertake to change the nnrnds of a few other employees
about the Union. Lawless testified flatly that Mills made
the promise. and Mills testified flatly that he did not.
Neither was shaken in these positive affirmations I cannot
find that the evidence preponderates rn favor of the
employee's assertion, for reasons hereinafter appearing:
and therefore conclude that this conversation did not
violate the Act
Neither of these witnesses created any marked negative
impression through his demeanor on the witness stand.
Neither seemed at all sophisticated in eithei labor
management relationship or legal proceedings. If there
was any difference in this respect between the two, the
employee Lawless possibly seemed less well equipped
naturally to cope with the problems confronting a witness
on the stand; and there was a vague indication from his
whole appearance and action that he was a little less than
completely frank. This indication is verified and increased
through a careful analysis of his testimony.
Supervisor Mills from his demeanor and ready
responses to questions gave the impression of greater
candor. The slight difference however in the demeanor of
the two witnesses is of no great help in resolving the
credibility issue The decision rests much more on the
analysis of Lawless' testimony.
GALBREATH BAKERY, INC. 415
An answer given by Lawless earlier in his examination
serves as the beginning of an indication that the whole of
his testimony is somewhat contrived, not in the sense
necessarily that it is outright fabrication, but rather
planned to be given in a form that best serves a desirable
result. Thus when asked by the General Counsel what was
said to him when he signed the union card, he answered,
referring to the union representative, "He explained that
the card meant that it was to join the Union; not to just get
an election for the Union." This answer in essence may be
an accurate statement of the explanation that Mr. Rines,
the union representative, made in a talk to a group of
employees gathered at a union meeting where the witness
along with other employees signed union cards. But the
answer is too "pat," too closely geared to the fine point of
law it serves in making clear that no representation was
made to him that the only purpose for which he signed the
card was to get an election. More credit could be given to
this witness' story if, as other witnesses did, he had told in
words that could be accepted more easily as his own, that
nothing was said to him to indicate that the only purpose
for which he was being asked to sign was to get the
election. Later, as he testified directly on the critical
conversation he held with Supervisor Mills, what he said
and failed to say constitute a still greater blemish on the
fullness of his story and his intentions on the stand. When
asked concerning this conversation on direct examination
"Would you tell us in your own words just what was said
on this occasion?" he answered that Mills had asked him
what he thought about the election; that he told Mills he
didn't know; that Mills asked him then if he thought he
could change some of the fellows' minds about the Union
and again he told him he didn't know; that Mills then made
the offer of five or six fifths of liquor if he would make the
attempt; he concluded by saying he would think about it.
On cross-examination, however, as he apparently could
foresee the exploration coming into other parts of the
conversation he had not mentioned, he answered to a
question "Yes, but that's the conversation he gave to me;
they didn't ask me for the conversation that I gave to him."
This answer does not harmonize well with the fact that on
direct he had been asked to "tell us in your own words just
what was said on this occasion." Then, having prefaced
what follows with the statement that he had never been
asked for his side of the conversation, he acknowledged
that he had said to Mills that he had recently held a
conversation with his father's uncle that had caused him to
change his mind about the Union. Lawless persisted
however in his denial of the assertion made in cross-
examination that his own change of mind about the Union
led him to suggest of his own volition to Supervisor Mills
that Lawless was going to see if he could not change the
minds of some of the other employees.
Mills' version of the conversation is that when he went
to the lounge frequented by employees and by himself
daily, Lawless was there alone and witness went in to get a
coke. He testified that Lawless asked him what he thought
about the Union. (Lawless admitted on cross-examination
that he did make such inquiry but the implication of his
testimony in this respect is that his inquiry followed a
similar one made by Mills to Lawless.) Mills testified
further that he answered that he didn't know what to think
about the Union; that Lawless went ahead to say that he
had talked "to his father-in-law who had, must have
worked for a union, and he said that he had changed his
mind about the thing. He had talked to his father-in-law
and he was going to talk to some of the boys in the shop
and try to change their minds." He testified also that he
made the comment to Lawless he would be glad when it
was all over and that they would get a drink and forget
about it. He categorically denied that he promised Lawless
any whiskey and stated that he did not ask him to change
the minds of any of the men in the shop, that this was
Lawless' own idea. Notwithstanding Mills' testimony that
he did not know what to think about the Union, he
admitted on cross-examination that he did have an opinion
about the Union but did not express it to this inquiring
employee because "it wasn't any of my business because I
was in the other department; I was in the sales. It didn't
affect us one bit either way it went." And twice in
succession he answered with "No, sir," the question
whether he ever discussed the Union with anybody in
management.
If the conversation took place according to the Lawless
version the violation would be established. My
determination that it did not take place as Lawless
testified is not a decision easy to make and certain
elements of the whole testimony point the other way. The
details supplied by Lawless as to the objectionable form of
the conversation, that is the offer of whiskey as an
inducement to persuade other workers, the statement he
attributes to Mills, that this idea was Mills' and had
nothing to do with the Company, and that it was just
between the two of them, tend to be persuasive. In
addition it is entirely plausible that Mills, in supervisory
status, would take advantage of the opportunity to speak
against the Union with an employee who brings up the
subject. Against these elements however are the
considerations, already mentioned, leading to the
conclusion, as hereinbefore set forth, not that there is
adequate proof that the objectionable conversation did not
take place but rather that there is not a preponderance of
evidence that it did. My ultimate conclusion rests in large
part on the proposition that a witness who would trim an
answer so closely to the Union's pattern as Lawless did in
his answer as to what was told him when he signed the
union card, and who in the first instance did not freely tell
all he knew, would likely mold other statements to serve
the Union's objective. And while it would seem a likely
thing that Mills would have expressed his opposition to the
Union when given the chance by Lawless, there is nothing
about any part of his testimony or his demeanor that would
justify discrediting him as against the somewhat weaker
testimony of Lawless. There is neither allegation,
evidence, nor intimation that Mills committed any other
violation. If a perfect balance of disbelief existed between
these conflicting stories, then the General Counsel's case
fails for lack of proof; and in a sense that is the more
satisfactory view of the evidence in this situation. The
more conventional disposition of the problem however is to
credit one witness and discredit the other. I adopt this
convention and discount the Lawless version and credit
the Mills version of the critical conversation. I therefore
recommend that the complaint as to this aspect of the case
be dismissed.
5. The Hammontree-Hutchins conversation
The record reveals nothing in the testimony of
Supervisor Hammontree, and I observed nothing in his
demeanor on the stand, to cause me to discredit his
testimony. The parts of his testimony relating to the
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegations of the complaint that he as a supervisor
unlawfully coerced and threatened an employee, William
Dale Hutchins, are therefore credited. Unlike other
conversations between other supervisors and employees,
alleged to have been violative of the Act, there is no
substantial dispute in this phase of the case between the
testimony of the supervisor and the employee. Hutchins'
testimony is essentially the same, respecting the
conversation, as that of Hammontree. Thus the only
question is whether Hammontree's statements to
Hutchins were unlawful.
In substance, I find that Hammontree told Hutchins, a
rank-and-file employee, shortly before the election, after a
conversation with Lowery, president of Respondent, and
Smith, plant superintendent, that he understood if the
employees went out on a strike they could or would (and
whether "could" or "would" has no legal significance in
my judgment), be given a stated number of hours to return
to work and if they did not return they would be
automatically fired, and could or would be "blackballed"
with little chance of getting employment anywhere else. I
find that this was coercive, in the nature of a threat,
notwithstanding Hammontree and Hutchins were close
personal friends; and was intended by Hammontree to
dissuade Hutchins from his support of the Union pursuant
to Hammontree's purposeful campaign to defeat the
Union; and in violation of Section 8(a)(1) of the Act.
6. The Hammontree-Johns conversation
Hammontree, the supervisor mentioned in the last
paragraph, also testified, and I credit his testimony,
concerning the statements he made to the employee
Ronald Johns shortly before the election. He testified that
in his "campaigning for the Company" he asked Johns to
vote against the Union ("for the Company") and discussed
Johns' problems. Hammontree said the employee stated
that he wanted more money and better working conditions
and that he, the supervisor, suggested that Johns talk to
Plant Manager Smith and himself instead of talking to the
union representative.
Johns was not available to testify inasmuch as he had
since the conversation become a member of the Armed
Forces.
I find and conclude that Hammontree's statements to
this employee constituted an unlawful interference with
Johns' right to support the Union in the election in that
they constituted an implied promise of a benefit if Johns
would change his allegiance; and therefore that such
statements were in violation of Section 8(a)(1), as alleged in
the complaint.
7. President Lowery's conversation with Hutchins
William Dale Hutchins, prime mover in behalf of the
Union among the unit employees, involved O. Raymond
Lowery, president of Respondent, in allegations of
violation of Section 8(a)(1) growing out of a conversation
between the two in February prior to the election in
March.
Admittedly Hutchins of his own accord called on
Lowery to request the reemployment of Charles Harding
who had been discharged a week or two before because of
a personal assault at the plant on an employee, Shields
McDaniel; and he testified, as did Lowery, that Lowery
made it clear to Hutchins that Harding would not be
reemployed. Beyond this there is little agreement in the
testimony of the two witnesses as to what was said in this
conversation.
Hutchins was quite vocal in his recital. Lowery, on the
other hand, seemed tactiturn to the point that the Trial
Examiner joined counsel in an effort to get him to amplify
with details his terse answers that initially at least were
limited to what he deemed to be the significant parts of the
conversation.
Hutchins testified that after the subject of Harding's
reemployment was disposed of, Lowery started talking
about the Union; he said the Union was not any good and
only wanted the employees' money and wouldn't help the
employees any; if the Union was voted in, Lowery would
take "one man off the oven" and replace "some of the
women with machines"; and they would not pay for
employees' uniforms or insurance. Asked if he responded
to these remarks he answered, "No, sir, I just listened." In
both direct and cross-examination Hutchins revealed a
great uncertainty as to the kind of insurance Lowery had
been talking about, indicating that he assumed that it was
workmen's compensation insurance, inasmuch as witness
thought the employees themselves paid for their health
and hospitalization insurance. Hutchins also testified that
he couldn't remember telling Lowery that he, Hutchins,
was for the Union but guessed Lowery assumed it.
In answers of three words each Lowery testified he did
not tell Hutchins that if the Union came in a man would be
taken off the oven, and that women would be replaced with
machines, and that the Company would cease paying for
uniforms and insurance. He also testified that he made no
such statements to any employee during the course of the
union campaign; and that he made no statements even
closely resembling those attributed to him by Hutchins.
Having affirmed that the conversation consisted of
Hutchins' request for the reemployment of Harding and
his denial of the request Lowery said that there was
nothing more to the conversation. When prodded for a
fuller statement of just what was said he acknowledged
that there was other general conversation. Subsequently
questions brought out some details of no great
significance, with no mention by him of the Union as the
subject of any part of the conversation Then to the
question "You mean to tell me that nothing was said about
the Union?" he gave the somewhat ambiguous answer,
"No, sir." And when essentially the same question was
repeated he answered that the Union could have been
mentioned, but that he denied all the statements that
Hutchins had attributed to him in Hutchins' testimony.
His direct examination closed with his reaffirmation that
to the best of his knowledge he had recalled everything
that was said at that time.
On cross-examination he stated that to the best of his
knowledge the merits of the Union were not discussed.
When pressed by counsel as to whether it was not a fact
the assault for which Harding had been discharged grew
out of an argument over the Union, and that this was
discussed as part of the conversation about Harding,
Lowery answered "possibly"; and later to the suggestion
that there was a mention of the Union in the conversation
he added, "In that sense, maybe, yes." I have concluded
that his marked brevity, tending at first to give the
impression of a withholding of information, was more
likely due to natural reserve in speaking and failure of
recall of statements not directly related to the subject of
Hutchins' visit, the Harding incident. In his cross-
examination, Lowery gave persuasive testimony that he
GALBREATH BAKERY, INC. 417
had never asked any employee how he was going to vote in
the coming election, and had no information how they
stood on unionism in the aggregate, except for the Union's
claim, in its petition for the election, that it "had the 30
percent." There is neither allegation nor proof that
Respondent's president engaged in any unlawful activity
during the campaign, excepting this conversation with
employee Hutchins and the speech Lowery made that is
hereinafter discussed. In addition to the factor of the
demeanor of the two witnesses on the stand , and the
considerations hereinafter set forth, I credit Lowery, in
resolving this credibility conflict in his favor, with the
circumstance that he did not engage in any general,
widespread campaign himself against the Union , and that
this incident involving Hutchins came about not through
Lowery's, but rather Hutchins' initiative.
The proof offered by the General Counsel tending to
establish the unlawful nature of Lowery's speech to the
assembled employees involves only statements that are
relatively mild in their opposition to the Union, if made.
And I attach some significance to the circumstance that
only 2 witnesses out of 43 in the unit, along with possibly
other employees not in the unit, who were summoned to
hear the speech, testified as to what was said.
Furthermore counsel for the General Counsel devotes no
part of his argument to the unlawfulness of the speech and
makes only a passing reference to it by way of introduction
to the issues. In the light of this comparatively mild
position of opposition to the Union, it does not seem
reasonable that the president of the Company, who
judging from the whole record had been advised as to the
legal course he could pursue, would have taken the
occasion of the visit with the employee who was the
Union's chief adherent to make the statements attributed
to him by Hutchins, statements quite obviously in the
nature of threats of denials of benefits, if the employees
should select the Union as their representative. While
Lowery gave no appearance whatever of being hot
tempered, or given to argument, it is conceivable that in a
heated discussion with the Union's principal aide among
the employees, he might have made the indiscreet and
unlawful statements attributed to him, but Hutchins
himself testified in effect that there was no such argument,
that when Lowery told him what he was going to do by way
of removal of existing benefits if the Union came in, he
(Hutchins) merely listened. For these reasons I am unable
to accept the testimony of the witness Hutchins as the
more credible of the two versions concerning the alleged
unlawful conversation, and therefore cannot find that
Lowery made unlawful statements to Hutchins. I therefore
recommend that the complaint in this respect be
dismissed.
8. The Lowery speech
Approximately 2 months before the election the
Respondent's president, Lowery, made the speech against
the Union, hereinbefore mentioned. As previously
indicated only two employees testified as to the substance
of this speech. They are Bobby Smith, whose brother, the
plant manager, testified that Bobby had said he returned
to Respondent's employment to "start the Union." The
other employee who testified about the speech is Johnny
Lawless, who also testified that Sales Supervisor Mills had
promised him five or six fifths of whiskey to get some of
the employees to change their minds about the Union. The
testimony of these two witnesses is so sketchy, inexact,
and filled with uncertainty, that it will not support any
significant findings as to what Lowery said. The testimony
constitutes no proof whatever of any unlawful remark and
in fact relates almost entirely to innocuous statements to
such extent that one of the two witnesses, Lawless,
testified when asked whether Lawless ever said he was for
or against the Union, "Well, to me he never did say."
The composite story of the two witnesses about the
speech is essentially this: That Lowery said his feelings
had been hurt because the employees had gone behind his
back to form a union ; if they had come to him he could do
more for them than the Union could; the meeting had been
called so they could get together and talk the thing over
without bringing the third party in on it; the door of his
office was always open; Lowery started reading a prepared
speech, then said, "let's get down to brass tacks" and tore
the speech up; "two other guys" were up in front with him
and both were introduced and that one said something that
could not be remembered ( Lawless said he thought one of
the two men was Taylor , of counsel for Respondent; he
was wrong about that ); and if the employees would only
give him a chance "We could work things out , and we all
would be one big happy family." On having his memory
refreshed by the pretrial affidavit he had made, Lawless
testified that he also remembered Lowery saying that the
company couldn 't afford a union , that it was pretty well in
debt on new machinery.
While Lowery's denials of the statements attributed to
him in the speech by the two employees are not really
significant because of the lack of probative force of the
whole testimony of the employees relating to the speech,
he did in fact deny essentially all of the statements
attributed to him . He further established that the prepared
statement from which he read one or two paragraphs had
been torn up and that no copy of that statement was
available. If, contrary to my finding , it could be said that
the speech was made substantially as the two employees
testified, and the contents then be sifted with the view of
eliminating the innocuous and ambiguous statements from
such as might be unlawful , the one statement that would
merit consideration would be that Lowery could do more
for the employees than the Union could, and that his door
was always open. In the context of the whole campaign,
however , carried on by Respondent, and the fact that the
speech appears to have been made as long as a couple of
months before the election, I conclude that these
statements, even if made, in context with the rest of the
speech as the employees said it was made, would not
constitute a violation of the Act.
No help has been forthcoming from counsel for the
General Counsel as to which parts of the speech are
claimed to be unlawful. In the brief under the caption
"Theory of the Case" the brief has this to say: "In light of
president O. R. Lowery' s speech to Respondent's
employees and Respondent ' s admitted circulation of
antiunion literature, it is clear that Respondent thereby
demonstrated its deep union animus and engaged in its
campaign of 8(a)( 1) activity in order to defeat the Union."
With that statement , and no further reference to the
speech in the brief , counsel for the General Counsel lets
this issue rest.
For reasons hereinbefore stated I find and conclude that
the president ' s speech did not violate the Act and
therefore recommend that the 8(a)(1) violation alleged in
connection with the speech be dismissed.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. Respondent's campaign literature
In the brief filed in behalf of the General Counsel it is
stated: "By the distribution to its employees of the `Look
Before You Leap' leaflet, it further threatened its
employees with layoffs and other economic reprisals. A
positive message was conveyed by Respondent to its
employees that unionization constituted a threat to their
economic security. This message was a violation of
Section 8(a)(1) of the Act, even if the Trial Examiner were
to find that the threats therein were implied rather than
explicit." Nothing more on the literature appears in the
brief and the cases cited are not deemed to be controlling.
The leaflet mentioned in the quotation depicts a
blindfolded employee about to dive into a small body of
water filled with numerous labeled hazards. The title to
the one page drawing is "Look Before You Leap" and at
the bottom of the picture is the statement "Don't Let
Smooth-Talking Strangers Coax You to `Walk the Plank,"'
the "plank" reference being to the diving board. The diver
is saying "Wonder what I'm jumping into?" A "smooth-
talking-type" figure in the cartoon is inviting a blindfolded
female employee in a bikini bathing suit (intended
apparently to add sex appeal to the drawing), to also make
the dive. The pool itself is labeled "Promises" and among
the rocks and other hazards appearing are labels showing
"Headaches," "Heartaches," "Worries," "Shallow," and
"Danger." On the left of the pool is a high rocky bank
entitled "Life Time Dues-Walkouts-Strikes-Vio-
lence."
Also alleged in the complaint to be a violation, and
offered in evidence, is a letter circulated by Respondent
just prior to the election, addressed to the employees and
their families requesting all to vote against the Union.
While this letter and the "Look Before You Leap" leaflet
were the only two pieces of literature alleged to be
violative, a third piece of literature was introduced in
evidence (though not found objectionable by the Regional
Director, or made subject to the hearing by his order), a
drawing with fitting labels and arguments seeking to show
union leaders' methods of getting dues, typical of which
are two unlovely characters with currency sticking out of
their pockets shaking down a third person, quite certainly
an employee, held upside down with one leg in the hands
of each "collector" and money dropping out of his pockets.
At no time or place has it been pointed out in behalf of
the General Counsel specifically where any of the three
pieces of literature was coercive or threatening or
contained an unlawful promise. I find and conclude that
none of the material within the three contains a threat of
reprisal or force, explicit or implied, or any promise of
benefit; and therefore recommend that the allegations of
the complaint concerning Respondent's campaign
literature be dismissed.
10. The Shields McDaniel problem
While William Dale Hutchins was on the stand, counsel
for General Counsel asked him concerning a conversation
he testified he had with a rank-and-file employee, Shields
McDaniel, hereinbefore mentioned as the subject of a
personal assault by Charles Harding who was discharged
for the attack. By Hutchins it was sought to bind
Respondent with McDaniel's coercive remarks in the
nature of threats to impose unfavorable working
conditions if the Union were selected as the employees'
representative. On objection by counsel for Respondent,
this testimony, later made in the form of an offer of proof,
was rejected for the reason that no other evidence was
offered to establish either that McDaniel was a duly
authorized agent of management, or serving as a conduit
or specially authorized spokesman for management, or
that he was in any other manner whatsoever in a position
to make threats or promises in management's behalf.
Counsel for General Counsel rested on his offer of proof,
did not call McDaniel as a witness on any theory that his
"agency" might be proven by the agent himself, or
question Lowery concerning the matter even though
Lowery, according to the offer of proof based on Hutchins'
proposed testimony, was the man who sent McDaniel on
the mission. The ruling entered rejecting the offer of proof
as it was made is hereby affirmed on the well-established
ground that management is not bound by any statements
made independently by rank-and-file employees.
B. The Refusal-to-Bargaan Issue
1. The majority question
While considerable time was spent either trying to prove
or disprove the supervisory status of certain individuals, as
this determination would bear on their right to be within or
without the unit, I find, as counsel stipulated, that the unit
consists of 43 persons, those named in a list supplied by
Respondent to the Regional Director prior to the election
for the purpose of establishing the eligibility list, a copy of
which is in evidence as Respondent's Exhibit 2. Counsel in
this case virtually stipulated, by colloquy, that this list
accurately reflects the makeup of the unit except that
counsel for General Counsel restated a continuing position
that Robert Trent, listed as within the unit in
Respondent's Exhibit 2, is a supervisor and should be
excluded. I failed to find sufficient evidence in the record
to establish Trent to be a supervisor within the meaning of
the Act and so deal with the unit, as it bears on the issues
involved herein, as having 43 employees in it including
Trent. Thus a majority would consist of at least 22 union
adherents.
The union membership cards involved herein are clear,
unambiguous authorizations to the Union to represent
each signer as his collective-bargaining agent. I find from
the evidence adduced with respect to the cards, and
representations made to signers as the cards were
solicited, that no signer was told that the only purpose for
signing was to obtain an NLRB representation election,
and do not find any misrepresentation or other event in
connection with the signing that invalidates any of the
cards. Twenty-five employees within the unit signed cards,
counting employee I. E. Leonard's card, identified as
General Counsel's Exhibit 2-20, inadvertently not offered
at the trial, but hereby admitted in evidence. All cards had
been signed by January 12, 1966, the date that the Union
demanded recognition as the employees' bargaining agent,
thereby establishing, as I find and conclude, that the
Union on this date had been designated as the duly
authorized bargaining representative of the employees.
Apart from the request for recognition contained in the
Union's petition for an election, it demanded recognition
by a letter addressed to Respondent dated and mailed on
January 12, 1966; the petition for the election was filed in
the Regional Office 2 days later, January 14.
2. The bad-faith issue
Where, as here, there is no evidence of any prior
bargaining relationship between the Employer and the
GALBREATH BAKERY, INC. 419
Union, and the Union represents a majority, the General
Counsel must, to obtain an order requiring bargaining in
the face of the Employer's refusal, come forward with
evidence that affirmatively establishes that the Employer
is motivated by bad faith. Evidence of the commission of
unfair labor practices contemporaneously with the
insistence on an election sometimes affords the basis of an
inference that the Employer's, refusal to bargain, and
insistence on the election, constitutes a rejection of the
collective-bargaining principle or a desire to gain time
within which to undermine the Union, purposes
necessarily involving bad faith and a violation of Section
8(a)(5) of the Act. Aaron Brothers Company of California,
158 NLRB 1077. As pointed out in the case, however, not
all employer conduct found violative of Section 8(a)(1) will
support an inference of bad faith and a bargaining order.
Inasmuch as the evidence in this case establishes that the
Union held valid authorization cards from a majority of the
employees in a unit held to be an appropriate one, and that
the Union made a proper demand for recognition as
bargaining representative which the Employer refused,
and the election held having been found invalid as
hereafter appears, the remaining question is whether the
evidence adduced by the General Counsel to prove bad
faith on the part of the Respondent in such refusal is
sufficient to meet his burden. Proof of such bad faith must
rest in this case on the inference, if it may be drawn, from
the nature of the unfair labor practices proven, for there is
no other evidence on the point.
The unfair labor practices committed by Respondent
consist of four incidents of 8(a)(1) violations. These are
(1) the conversation between Plant Manager Smith and his
brother Bobby provoked by Bobby telling his brother's
wife that Bobby had returned to employment to help the
Union, in which conversation the plant manager advised
his brother that if the Company found out that Bobby had
anything to do with the Union he would not last long and
could not get a job anywhere else and might be
blackballed; (2) the conversation between the same
supervisor, Plant Manager Smith, and employee Charles
Webb, in which Smith told Webb that if the Union were
rejected the Company would rerate the jobs so that the
employees would be making more money and that by
reason of more pay per hour they would not have to work
so long; (3) the conversation in which Supervisor
Hammontree told his close personal friend William Dale
Hutchins he understood that if the employees went out on
strike they would be given a stated number of hours to
return to work and if they did not return they would
automatically be fired, and could or would be blackballed
with little chance of getting employment anywhere else;
and (4) the conversation between the same supervisor,
Hammontree, and employee Ronald Johns, in which the
supervisor asked the employee to vote against the Union
and discussed with him his problems involving his desire
for more money and better working conditions, and
suggesting to him that he talk to either Plant Manager
Smith or witness instead of talking to the union
representative about the problems. The unlawful nature of
Respondent's campaign against the Union thus reached
directly 4 employees in the unit of 43.
I find and conclude, under the authority of the cases
hereinafter cited, that the total conduct of the Respondent
in connection with the Union's organizational effort and
request for representation, is not of the kind that will
support a bargaining order, notwithstanding the Union did
hold valid authorization cards for a majority of the
employees in the unit. Each of the four incidents of
violation of Section 8(a)(1), heretofore found, is minimal in
its coercive, restraining, and interfering effect on the
employees' rights under the Act. The remarks of Plant
Manager Smith to his brother could hardly have been
made in less coercive conditions, and were couched not so
much in terms of threat as "brotherly" advice. The plant
manager's conversation with employee Charles Webb,
found to be a violation, seems equally mild, not because of
the special relationship between the two people involved,
but by reason of the substance of the supervisor's
statements to the employee. Not in the nature of threats
the statements contained no very specific or persuasive
promise either; only that the Company intended to rerate
jobs so that all employees would get more money per hour
and less work for the same pay. The Hammontree-
Hutchins violation could not have been committed in a
more congenial atmosphere, and therefore with mild
coercive, restraining, and interfering effect, inasmuch as
the two were intimate personal friends and went fishing
together on the day the election was held. Hammontree's
statements to employee Johns, as a practical matter, may
have been more effective interference with John's right to
support the Union than the supervisor's remarks to
Hutchins, although this too was a comparatively mild
violation of the Act in that the supervisor only asked the
employee to vote for the Company and indicated that his
problems concerning his working conditions could be
settled as well or better by talking to management than to
the Union.
There is a strong likelihood that any one of these four
violations, in isolation, would not be deemed sufficient to
warrant a remedial order. In any event I cannot infer from
the four in combination that the Respondent by reason of
these violations revealed a determination to reject the
collective-bargaining concept, or deliberately sought time,
by insisting on an election, in which it could undermine the
Union's majority. Certainly in the aggregate these
violations do not represent as serious an interference with
the employees' rights as the interference found by the
Board in the case of Clermont's, Inc., 154 NLRB 1397,
where one of the owners of the employing enterprise in a
speech to the employees indicated the union would not be
recognized, that they would have their families come in to
run the stores in the event the union were selected as
bargaining representative, and in such case they might
also close down the store and burn it; and this speech was
followed by other milder statements of minor supervisors
also found to be in violation. That the total effect of the
violations in the instant case constitutes milder violations
than in Clermont seems to be true even taking into account
the ameliorating circumstances noted by the Board-the
timing, and that the speech was due to an initial emotional
outburst of the owner.
There are also similarities between the instant case and
Harvard Coated Products Co., 156 NLRB 162, where the
Board held that the violations of the Act found would not
support a bargaining order. There as here the Respondent
was prompt and cooperative in bringing about the election
to determine representation; and in Harvard, as here, the
8(a)(1) violations were not extensive, though at least one
promise found to have been made by a supervisor seems
more potent and specific than any promise made in the
instant case, that is the promise to one employee of a
supervisory position conditioned upon the Union's loss of
the election.
There is also similarity between the instant case and
295-269 0-69-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hammond & Irving, Incorporated, 154 NLRB 1071, where
the Board denied a bargaining order to the union,
notwithstanding the employer's violation of the Act,
primarily, it appears, because the violations were not
widespread reaching directly only 6 employees out of a
unit of 110 or 111. Here 4 employees, in a unit of 43, were
contacted. Compare also the cases of Ben Duthler, Inc.,
157 NLRB 69, Strydel Inc., 156 NLRB 1185, and John P.
Serpa, Inc., 155 NLRB 99, in which the Board was unable
to enter bargaining orders because of the General Coun-
sel's failure to adduce either direct evidence of bad faith in,
the Employer's refusal to bargain or such circumstantial
evidence as would support an inference of bad faith.
Another factor in the case militating against a finding of
bad faith has to do with the unit problem. In this baking
industry case, the Union sought a production and
maintenance unit including over-the-road truckdrivers,
but excluding driver-distributors. In Respondent's letter
on January 19, 1966, replying to the Union's letter of
January 12 requesting recognition and bargaining in the
designated unit, Respondent made special reference to the
inclusion of the over-the-road truckdrivers in a production
and maintenance unit, and stated, "We feel that the
question of the appropriate unit and those employees
properly included within the unit are very important
matters and can best be resolved by submission of your
claim to the National Labor Relations Board." It is well-
established that a good-faith but erroneous doubt as to the
appropriateness of the unit is not a defense to an otherwise
meritorious charge of refusal to bargain. Where, however,
the unit sought is not substantially a traditional one, and
there is a very close question as to whether the one sought
is an appropriate one the rule seems to be otherwise, and
the uncertainty as to appropriateness may be considered
as a factor in determining the good faith of an employer.
See Clermont, S, Inc., cited above. The instant case seems
to be one justifying the employer's expression of doubt as
to a majority in an appropriate unit. In Clermont's, Inc.,
the Board failed to find adequate evidence of bad faith in
part because of the uncertainty as to the appropriateness
of the unit sought, that is, the employees of the meat
department in one store only, of four stores, commonly
held and fairly closely located, with similarity in pay rates
and fringe benefits, and other conditions tending to
support a multistore unit. The similarity in the situation
there and the instant case has to do with the baking
industry case of E.H. Koester Bakery Co., Inc., 136 NLRB
1006, 1012, where the Board established new unit
considerations to be utilized on a case-to-case basis, and
applied them to exclude from a production and
maintenance unit over-the-road truckdrivers who were not
sought by the Union but who were claimed by the
Employer to be necessarily a part of the unit sought. The
uncertainty as to the appropriateness of the unit in the
instant case existed not only by reason of the rule in
Koester where in a similar situation over-the-road
truckdrivers were excluded and here were sought to be
included, but here were dealt with differently than
"driver-distributors," sought to be excluded in the unit
requested by the Union. Under the Board determinations
of the appropriateness of units in the baking industry,
many citing Koester, it would appear that this
Respondent 's doubt , expressed on January 19, as to the
appropriateness of the unit , related to more than mild
variance in unit determination.
For all the foregoing reasons it is recommended that the
allegations of the complaint that Respondent violated
Section 8 (a)(5) of the Act be dismissed.
C. The Objections to the Election
I find and conclude that the unlawful conduct of the
Respondent that has been found to constitute violations of
Section 8(a)(1) of the Act, and which conduct was also
made the subject of objections to the election duly filed by
the Union, also spoiled the laboratory conditions required
by the Board for conduct of elections, and therefore
interfered with the election in Case 10-RC-6559. It follows
that Respondent's employees were denied a free choice in
the selection of a bargaining representative and that the
election conducted on March 23, 1966, should be set aside
and a second election be conducted in an appropriate unit.
See Harvard Coated Products Co., cited above. "Conduct
violative of Section 8(a)(1) is, a fortiori, conduct which
interferes with the exercise of a free and untrammeled
choice in an election." Dal-Tex Optical Company, Inc., 137
NLRB 1782-86. This proposition has been reaffirmed
many times, very recently in National Can Corporation,
159 NLRB 647.
THE REMEDY
Having found that Respondent violated Section 8(a)(1) of
the Act, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the entire record in the case and the foregoing
findings of fact and conclusions of law, I recommend that
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees and
threatening them with economic reprisals or promising
them economic benefits for the purpose of influencing
their union activities or sympathies.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their 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, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection.
2. Take the following affirmative steps deemed
necessary to effectuate the policies of the Act:
(a) Post at its plant in Morristown, Tennessee, copies of
the attached notice marked "Appendix."' Copies of said
notice, to be furnished by the Regional Director for
Region 10, after being duly signed by Respondent's
representative, shall be posted by Respondent
immediately upon receipt thereof, and maintained by it for
60 consecutive days thereafter, in conspicuous places,
' In the event that this Recommended Order is adopted by the a decree of a United States Court of Appeals, the words "a Decree
Board, the words "a Decision and Order" shall be substituted for of the United States Court of Appeals Enforcing an Order" shall
the words "the Recommended Order of a Trial Examiner" in the be substituted for the words "a Decision and Order "
notice In the further event that the Board's Order is enforced by
A. C. ROCHAT COMPANY
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that such notices are not altered,
defaced, or covered by other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent has taken to comply
herewith.2
2 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 "
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 unlawfully interrogate our employees
or threaten them with economic reprisals or promise
them economic benefits for the purpose of influencing
their union activities or sympathies.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees in
the exercise of their right to self-organization, to form,
join, or assist United Packinghouse, Food & Allied
Workers, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of
their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities.
All our employees are free to become or remain or to
refrain from becoming or remaining members of United
Packinghouse , Food & Allied Workers, AFL-CIO, or any
other labor organization.
GALBREATH BAKERY, 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, 528 Peachtree-
Seventh Building, 50 Seventh Street, N.E., Atlanta,
Georgia 30323, Telephone 526-5741.
421
A. C. Rochat Company and E . R. Beeler,
Director of Organization , Region III, Sheet
Metal Workers International Association,
AFL-CIO. Case 1O-CA-5676.
March 15, 1967
SUPPLEMENTAL DECISION AND AMENDED
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN,
JENKINS, AND ZAGORIA
On January 29, 1965, the National Labor Relations
Board issued its Decision and Order in this case,' in
which it found that Respondent had violated Section
8(a)(1), (3), and (5) of the National Labor Relations
Act, as amended. The Board found that the
Respondent, who was engaged in the sale,
installation, and maintenance of air conditioning,
heating, and refrigerating equipment, had initially
discharged or laid off 5 employees because of their
union activities; and had subsequently abandoned
part of its business, laying off 17 other employees,
because of its refusal to recognize and bargain
collectively with the Union. The Board ordered
Respondent to make whole the employees who were
discriminatorily discharged or laid off by paying to
each the amount he would have earned from the
time of discharge or layoff until such time as each
secured substantially equivalent employment with
another employer or with Respondent in the event it
resumed its former operations. The Board also
ordered Respondent to reinstate all the employees
who were discharged or laid off in the event it
resumed operations, and to create a preferential
hiring list and notify the employees on that list that
in the event it resumed operations, it would reinstate
all those employees who were discriminatorily
discharged or laid off.
On October 11, 1966, the Board issued a notice to
show cause in this proceeding requesting the parties
to show cause why, in the light of the Supreme
Court's decision in N.L.R.B. v. Darlington
Manufacturing Co.,2 the Board's Order should not
be modified to find that the Respondent did not
violate the Act by discontinuing part of its business
and laying off the 17 employees. The Board noted
that in Darlington the Court pointed out that it was
not an unfair labor practice for an employer to shut-
down part of its business permanently for antiunion
reasons unless the partial closing was motivated by a
purpose to "chill unionism" in any of the remaining
parts of its business.
Thereafter the Respondent and the Charging
Party filed responses to the show cause order. The
150 NLRB 1402
2 380 U S. 263
163 NLRB No. 49