Gottfried Baking Co., Inc.

National Labor Relations Board - Board Decisions

Mar 3, 1953

103 N.L.R.B. 227 (N.L.R.B. 1953)

GOTTFRIED BAKING COMPANY, INC. 227
clerks, but excluding buyer grade I, all supervisors as defined in the
Act, professional, confidential, secretarial, and other confidential em-
ployees, guards, and executives.
[Text of Direction of Election omitted from publication in this
volume.]
GOTTFRIED BAKING COMPANY , INC. and MAX WINZELBERG and BAKERY
& PASTRY DRIVERS AND HELPERS UNION, LOCAL No. 802, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN
AND HELPERS OF AMERICA , AFL, PARTY TO THE CONTRACT
R. K. BAKING CORP . and MAX WINZELBERG and BAKERY & PASTRY
DRIVERS AND HELPERS UNION, LOCAL NO. 802, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL, PARTY TO THE CONTRACT
BAKERY & PASTRY DRIVERS AND HELPERS UNION, LOCAL No. 802, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSE-
MEN AND HELPERS OF AMERICA , AFL and MAX WINZELBERG and
GOTTFRIED BAKING COMPANY , INC., PARTY TO THE CONTRACT and
R. K. BAKING CORP ., PARTY TO THE CONTRACT . Cases Nos. 2-CA-
J741, 2-CA-2- 067, and 2-CB-578. March 3, 1953
Decision and Order
On November 13, 1952, Trial Examiner William F. Scharnikow is-
sued his Intermediate Report in this proceeding, finding that each of
the Respondents had engaged in and was engaging in certain unfair
labor practices, and recommending that each of them cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
also found that each of the Respondents had not engaged in certain
other alleged unfair labor practices and recommended that the com-
plaints be dismissed with respect to such allegations. Thereafter,
the General Counsel, Respondent R. K. Baking Corp., and Respondent
Union filed exceptions to the Intermediate Report, and supporting
briefs
The Board 2 has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and briefs and hereby adopts the
1 The Respondent a'nion 's request for oral argument is hereby denied because the record,
exceptions, and briefs adequately present the positions of the parties.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with these cases to a three-member panel
[ Chairman Herzog and Members Styles and Peterson].
103 NLRB No. 3.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
findings, conclusions, and recommendations of the Trial Examiner
with the following modifications :
We agree with the Trial Examiner that R. K. Baking Corp. is en-
gaged in a business affecting commerce within the meaning of the
Act and that it will effectuate the policies of the Act to assert jurisdic-
tion over it. Like the Trial Examiner, we base this finding upon the
fact that the 1948 and 1950 contracts, which contain illegal union-
security provisions, were negotiated by associations of employers,
including R. K. Baking Corp., and the Respondent Union .3 Under
these circumstances, and consistent with the Board's well-established
policy in representation cases,' we find that, in passing upon the juris-
dictional issue concerning R. K. Baking Corp., the associations and
their participating members must be regarded as single enterprises.
That the totality of the operations, in volume and character, of all
members of the associations has a substantial effect on interstate
commerce is apparent. Accordingly it is immaterial that the Board
might not assert jurisdiction over R. K. Baking Corp. had not it
acted jointly 5 in negotiating the very contracts which, by their terms
and observance, violate the Act.'
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that;
I. The Respondent Gottfried Baking Company, Inc., its officers,
agents, successors, and assigns, shall:
8 Respondent Union contends that a charge may not be amended to include allegations
of events committed more than 6 months before the enlargement . Section 10 ( b) has been
uniformly interpreted, by the Board and by the courts, to authorize inclusion within the
complaint of amended charges based upon offenses occurring within the 6-month period
preceding the filing of the original charge . N L. R B. v Gaynor News Company, Inc.,
147 F. 2d 719 (C. A. 2), enforcing 93 NLRB 299.
4 Air Conditioning Company of Southern California, et al., 81 NLRB 946; Wirts Dis-
tributing Co , et al, 82 NLRB 669 ; Indianapolis Cleaners and Launderers Club, 87 NLRB
472, reversing 85 NLRB 1198. As this policy remained unchanged, we find no merit in
the Respondent Union's reliance upon the court decision in N. L R B. v. Guy F Atkinson
Company and J. A. Jones Construction Company, 195 F. 2d 141 ( C. A. 9), setting aside
90 NLRB 143.
1In view of our holding herein , we do not adopt or pass upon the validity of the Trial
Examiner 's generalizations on the Board's criteria for "inflow," " sales to cafeterias,"
"direct outflow ," and "effect upon national defense."
6 The Respondent Union asserts that the Trial Examiner erroneously ignored the savings
clause in the contracts. The contract provided as follows : "If, with respect to any
Employer who is a party to this agreement , the closed shop is in conflict with the law,
then the union shop shall prgvall in such case together with such additional provisions
for union security as shall be legally permissible , it being the intention of the parties to
grant the maximum union security permitted by law." This clause lacks the required
specificity because it fails to identify which, if any, employer covered by the agreement
may not honor the closed-shop proviso or to identify the scope of "such additional provi-
sions" "as shall be legally permissible ." See Red Star Express Lines of Auburn, Inc. v.
N. L. R B, 196 F. 2d 78 (C. A. 2), enforcing 93 NLRB 299.
GOTTFRIED BAKING COMPANY, INC. 229
1. Cease and desist from :
(a) Entering into, renewing, or enforcing the clauses of any agree-
ment with the Respondent Union, or any other labor organization,
which requires its employees to join, or maintain their membership in,
such labor organization as a condition of employment, unless such
agreement has been authorized as provided in the Act.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the Respondent Union or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at its plant in New York City, copies of the notice attached
to the Intermediate Report as Appendix B.° Copies of said notice, to
be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Company's representative, be posted by
it immediately upon the receipt thereof, and maintained by it for sixty
(60) consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Company to insure that such notices are
not altered, defaced, or covered by other material.
(b) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
H. The Respondent R. K. Baking Corp., its officers, agents, succes-
sors, and assigns shall :
1. Cease and desist from :
(a) Entering into, renewing, or enforcing the clauses of any agree-
ment with the Respondent Union or any other labor organization,
which requires its employees to join, or maintain their membership in,
such organization as a condition of employment, unless such agreement
has been authorized as provided in the Act.
(b) Encouraging membership in the Respondent Union or in any
other labor organization of its employees, by refusing to hire appli-
7 This notice shall be amended by substituting for the words "The Recommendations
of a Trial Examiner," the words "A Decision and Order." In the event that this Order
is enforced by a decree of a United States Court of Appeals, the notice shall be further
amended by substituting for the words "Pursuant to a Decision and Order" In the caption,
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
Order."
257965-54-vol. 103-16
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cants for employment unless they are members of the Respondent
Union in good standing, or by discriminating in any other manner in
respect to the hire and tenure of employment, or any term or condition
of employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the Respondent Union or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized by
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Max Winzelberg immediate employment as a route
salesman.
(b) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, timecards, personnel records and reports, and all other records,
necessary to analyze the amounts of back pay under the terms recom-
mended in this report.
(c) Post at its plant in New York City, copies of the notice attached
to the Intermediate Report as Appendix C.8 Copies of said notice, to
be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Company's representative, be posted by
it immediately upon the receipt thereof, and maintained by it for sixty
(60) consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Company to insure that such notices are not
altered, defaced, or covered by other material.
(d) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
III. The Respondent Bakery & Pastry Drivers and Helpers Union,
Local No. 802, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, and its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Entering into, renewing, or enforcing the clauses of any agree-
ment with the Respondent Gottfried Baking Company, Inc., or with
the Respondent R. K. Baking Corp., or with any other employer,
8 See footnote 1, supra
GOTTFRIED BAKING COMPANY, INC. 231
which require employees to join, or maintain their membership in, the
Respondent Union as a condition of employment, unless such agree-
ment has been authorized as provided in the Act.
(b) In any like or related manner causing or attempting to cause
the Respondent Gottfried Baking Company, Inc., or the Respondent
R. K. Baking Corp., or any other employer, its officers, agents, suc-
cessors, or assigns, to discriminate against any employee or applicant
for employment, in violation of Section 8 (a) (3) of the Act.
(c) In any like or related manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds
will effectuate the policies of the Act :
(a) Notify the Respondent R. K. Baking Corp. in writing that it
does not object to but on the contrary now requests that Company to
employ Max Winzelberg as a route salesman.
(b) Notify Max Winzelberg in writing that it has so advised the
Respondent R. K. Baking Corp.
(c) Post at the office of Local 802 in New York City, copies of the
notice attached to the Intermediate Report as Appendix D.9 Copies
of said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by representatives of the Re-
spondent Union, be posted by it immediately upon receipt thereof and
maintainted by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken by the
Union to insure that such notices are not altered, defaced, or covered
by any other material.
(d) Mail to the Regional Director for the Second Region copies of
this notice for posting, the Respondent Companies being willing, at
the New York City plants of the Gottfried Baking Company, Inc., and
of the R. K. Baking Corp., in places where notices to employees are
posted. Copies of said notice, to be furnished by the Regional Di-
rector for the Second Region, shall, after being signed as provided in
the paragraph above, be forthwith returned to the said Regional
Director for said posting.
(e) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
IV. The Respondent R. K. Baking Corp. and the Respondent
Bakery & Pastry Drivers and Helpers Union, Local No. 802, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, and their respective officers, agents, repre-
sentatives, successors, and assigns, shall jointly and severally make
9 See footnote 7, supra
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Max Winzelberg whole for any loss of pay or earnings he may have
suffered because of the discrimination against him, in the manner and
to the extent set forth in the section of the Intermediate Report en-
titled "The Remedy."
IT IS HEREBY ORDERED that those portions of the complaints in the
present proceedings, which are referred to in paragraph 8 (a), (b),
(c), and (d) of the section of the Intermediate Report entitled "Con-
clusions of Law," be, and they hereby are, dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges and amended charges filed in the above-entitled cases by Max
Winzelberg and duly served on the respective Respondents named therein,' the
General Counsel for the National Labor Relations Board ,' by the Regional
Director for the Second Region (New York City), issued a complaint on Novem-
ber 29, 1951, against the Respondent Gottfried Baking Company , Inc., in Case
No. 2-CA-1741, another complaint on December 12, 1951, against Respondent
R. K. Baking Corp. in Case No. 2-CA-2067, and a third complaint also on
December 21, 1951, against the Respondent Union in Case No. 2-CB-578, alleging
in each complaint that the Respondent named therein had engaged in and was
continuing to engage in unfair labor practices affecting commerce within the
meaning of the National Labor Relations Act, as amended ( 61 Stat. 136),
hereinafter referred to as the Act. On December 12, 1951, the Regional Director
also issued an order consolidating these three cases, and a notice of hearing.
The complaints , the order consolidating the cases, the notice of hearing, and
the basic charges and amended charges, were duly served upon Max Winzelberg
and the Respondents.
With respect to jurisdiction based upon the business operations of the
Gottfried Baking Company, Inc., the complaints in Cases Nos . 2-CA-1741 and
2-CB-578 allege in substance that, of materials of a value in excess of $1,000,000
which were delivered to the Gottfried Baking Company 's New York City plant
during the year ending March 31, 1951, approximately 75 percent was trans-
ported to that plant in interstate commerce from States of the United States
other than the State of New York, and that during the same year the Gottfried
Baking Company manufactured products of a value in excess of $1,000,000, of
which approximately 5 percent was transported from its New York City plant
in interstate commerce to States of the United States other than the State
of New York. In its answer filed in Case No. 2-CA-1741, the Respondent
Gottfried Baking Company neither affirms nor denies these allegations of the
complaint in that case . The Respondent Union, however , in its answer in
Case No. 2-CB-578, denies having knowlege or information sufficient to form
a belief with respect to these allegations.
With respect to jurisdiction based upon the business operations of R. K.
Baking Corp ., the complaints in Cases Nos . 2-C'A-2067 and 2-CB-578 allege
'In Case No. 2-CA-1741, the original charge was filed on December 27, 1950, and
served on December 30, 1950, and an amended charge was filed on July 26, 1951, and
served on July 31, 1951 . In Case No . 2-CA-2067, the charge was filed on July 26, 1951,
served on the same day , and was never amended. In Case No. 2-CB -.575, the original
charge was filed on February 16, 1951 , and served on February 20, 1951 , and an amended
charge was filed on July 26 , 1951 , and served on July 31, 1951.
'The General Counsel and the staff attorney appearing for him at the hearing are
herein referred to as the General Counsel ; the National Labor Relations Board is
referred to as the Board.
GOTTFRIED BAKING COMPANY, INC. 233
in substance that during the preceding year, of materials of a value in excess
of $250,000, which were delivered to the New York City plant of the R. K.
Baking Corp., approximately 50 percent was transported to that plant in inter-
state commerce from States of the United States other than the State of New
York, and that during the same year, the R. K. Baking Corp. manufactured
products of a value in excess of $1,000,000 of which approximately 5 percent was
transported from its New York City plant in interstate commerce to States of
the United States other than New York. The Respondent Union in its answer
in Case No. 2-CB-578 denies having knowledge or information sufficient to
form a belief with respect to these allegations. Respondent R. K. Baking Corp.,
in its answer filed during the hearing, admits the allegation of the complaint
concerning the inflow of materials in interstate commerce, denies the allega-
tions concerning the outflow of products in interstate commerce, and further
denies that it is or has been engaged in interstate commerce, or that the Board
has jurisdiction over it.
With respect to unfair labor practices, the complaint in Case No. 2-CA-1741
against Respondent Gottfried Baking Company alleges in substance, and the
Respondent Gottfried Baking Company in its answer denies, that :
(1) On and since about July 1, 1950, the Respondent Gottfried Baking Com-
pany has executed, maintained, and applied collective-bargaining agreements
with the Union relating to terms and conditions of employment of its employees,
which agreements required membership in the Union as a condition of employ-
ment; and that the Respondent Gottfried Baking Company thereby committed
and continues to commit unfair labor practices within the meaning of Section 8
(a) (1), (2), and (3) of the Act.
(2) On or about December 27, 1950, the Respondent Gottfried Baking Com-
pany refused to hire Max Winzelberg, an applicant for employment , and has
since failed and continued to refuse to hire Winzelberg, because of his suspension
from or lack of membership in the Union, and that the Respondent Gottfried
Baking Company thereby committed and continues to commit unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act.
With respect to unfair labor practices, the complaint in Case No. 2-CA-2067
against Respondent R. K. Baking Corp., as amended at the hearing, alleges in
substance, but the Respondent R. K. Baking Corp. in its answer denies, that:
(1) Since on or about January 27, 1951, Respondent R. K. Baking Corp. has
maintained and applied a collective-bargaining agreement with the Union relating
to terms and conditions of employment of its employees, which agreement re-
quires membership in the Union as a condition of employment ; and that the
Respondent R. K. Baking Corp. thereby committed and continues to commit
unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) of
the Act.
(2) On or about January 27, 1951, the Respondent R. K. Baking Corp. re-
fused to hire Max Winzelberg, an applicant for employment, and has since
failed and continues to refuse to hire Max Winzelberg, because of his suspension
from or lack of membership in the Union, or because he refused to withdraw
charges filed under the Act; and that the Respondent R. K. Baking Corp. thereby
committed and continues to commit unfair labor practices within the meaning
of Section 8 (a) (1), (3), and (4) of the Act.
With respect to unfair labor practices, the complaint in Case No. 2-OB-578
against the Respondent Union alleges in substance, but the Respondent Union
in its answer denies, that the Respondent Union has committed and continues
to commit unfair labor practices within the meaning of Section 8 (b) (1) (A)
and (2 ) of the Act in that :
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) The Respondent Union has, since on or about August 21, 1950, executed,
maintained, and applied collective-bargaining agreements with Gottfried Baking
Company, Inc., relating to terms and conditions of employment of employees,
which agreements required membership in the Union as a condition of employ-
ment.
(2) The Respondent Union has, since on or about December 27, 1950, required
Gottfried Baking Company, Inc., to refuse to hire Max Winzelberg, an applicant
for employment, because of his suspension from or lack of membership in the
Respondent Union.
(3) The Respondent Union has, since on or about August 21, 1950, maintained
and applied collective-bargaining agreements with R. K. Baking Corp. relating
to terms and conditions of employment of employees, which agreements required
membership in the Respondent Union as a condition of employment.
(4) The Respondent Union has, since on or about January 27, 1951, required
R. K. Baking Corp. to refuse to hire Max Winzelberg, an applicant for employ-
ment, because of his suspension from or lack of membership in the Respondent
Union.
Pursuant to notice, a hearing was held in New York City on various dates from
February 4, 1952, to May 7, 1952, inclusive, before the undersigned Trial Ex-
aminer duly designated by the Chief Trial Examiner. The General Counsel and
the Respondents appeared through counsel, and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues. During the course of the hearing, counsel for each
Respondent moved to dismiss the complaint against it. Decision on these motions
having been reserved, the motions are now disposed of in accordance with the
rulings and conclusions hereinafter set forth in this report.
Since the close of the hearing, the undersigned has received briefs from the
General Counsel and counsel for each of the Respondents. He has also received a
motion of the General Counsel to correct the transcript of the proceedings, to-
gether with an affidavit of the staff attorney who represented the General Counsel
at the hearing, dated July 23, 1952, to the effect that copies of the motion had
been duly served upon counsel for each of the Respondents ; that the corrections
requested by the motion, relating solely to the facts concerning the business
of R. K. Baking Corp., did not affect the interest of the Respondent Gottfried
Baking Company, Inc., in these proceedings ; and that, upon the General Counsel's
request, counsel for the Respondent Union had been willing to stipulate his agree-
ment that these corrections be made, but that counsel for Respondent R. K.
Baking Corp. had not given his consent. No objection to this motion having
been received by the undersigned from any of the Respondents, the undersigned
now grants the motion to the extent shown in the footnote, i. e., to the extent
that the corrections requested by the General Counsel are obviously errors in
the record taken by the official reporter at the hearing, or in the transcript made
from his notes as shown by other portions of the record.'
3 The undersigned grants the motion of the General Counsel to correct the transcript
of the proceedings and directs that the corrections be made in the following respects :
Page 791, line 6-substitute the figure "$46,489.38" for "$36,489 38 "
Page 796, line 3-substitute the figure "$46,489 38" for "$46,439 48
Page 809, line 19-substitute the figure "$61,925 49" for "$619,025.49."
Page 855, line 6-substitute the figure "$64,270 33" for "$6,470 33."
Page 1003, line 12-substitute the name "E. F. Drew" for "D. F Drew."
Page 1118, line 13-substitute the date "1950" for "1940."
The undersigned, however, denies the motion of the General Counsel so far as it
requests the following corrections :
Page 918, line 20-substitute the figure "$19,489 48" for "$18,489.48."
Page 941, line 5-substitute the word "import" for the word "export."
GOTTFRIED BAKING COMPANY, INC. 235
Upon the entire record in the case , upon consideration of the arguments and
motions of counsel, including their briefs, and from his observation of the wit-
nesses, the undersigned makes the following :
FINDINGS OF FACT
1. JURISDICTION
A. The Respondent Union
The Respondent , Bakery & Pastry Drivers and Helpers Union, Local No. 802,
International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America, AFL, is, and at all times herein mentioned has been, a labor organi-
zation within the meaning of Section 2 (5) of the Act.
B. The business of Respondent Gottfried Baking Company, Inc.
The Respondent Gottfried Baking Company , Inc., is a New York corporation
with its office and plants in New York City, where it is engaged in the manufac-
ture, sale , and distribution of baked products . Although Maurice Gottfried,
president of the Gottfried Baking Company, and Charles Gottfried, president of
R. K. Baking Corp., are brothers , it is clear from their record that the two
Companies are separately and independently operated.
During the year preceding the hearing , the Respondent Gottfried Baking
Company, Inc., purchased raw materials of a value in excess of $1,000,000, of
which about 75 percent was transported to the Gottfried Baking Company's
plants in New York City from points outside the State of New York. During
the same year , the Gottfried Baking Company sold products of an approximate
value of $3 ,000,000, of which about 5 percent was delivered to purchasers outside
the State of New York.
The undersigned finds that the Respondent Gottfried Baking Company, Inc.,
is engaged in commerce within the meaning of the Act, and that the substantial
effect upon commerce which interruption of its business operations would occa-
sion, warrants the Board 's assertion of jurisdiction.
C. The business of Respondent R. K. Baking Corp.
The Respondent R. K. Baking Corp., a New York corporation with its principal
office and plant in New York City , is engaged in the manufacture , sale, and
distribution of pastries , cakes, and other baked products.
Upon uncontradicted evidence introduced by the General Counsel, the under-
signed finds, as is set forth in greater detail in Appendix A of this report, that :
(a) Of an undisclosed total value of materials purchased by and delivered to
R. K. Baking Corp. at its baking plant in New York City during the calendar
year 1951 , $323,515.34, by value, originated outside the State of New York or
were transported to its New York City plant through States other than the State
of New York.
(b) Of these materials originating outside the State of New York, $86,038.13,
by value, were shipped directly to R. K . Baking Corp . in New York City from
points outside the State of New York or through States other than the State of
New York, in response to specific purchase orders made by R. K. Baking Corp.
either directly to the shipper in the State of shipment or to the shipper 's selling
agent in New York City.
(c) Of the materials procured by R. K . Baking Corp. in 1951 , $237,477.21,
by value, were goods or materials which , though originating outside the State
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of New York, were delivered to R. K. Baking Corp. out of stock held in New
York State, where they had been shipped, either for processing or for storage,
in order to meet the general demands of the local market, including, perhaps,
but not with specific reliance upon, the possible orders of R. K. Baking Corp.
(d) The sales and deliveries to R. K . Baking Corp. thus made out of stock
held in New York State, were made upon the order of R. K. Baking Corp. either
to a New York agent or broker for an out-of-State seller, to a New York mid-
dleman or merchant, or to a New York processor.
During the calendar year 1951, R. K. Baking Corp. made no sales or deliveries
outside of New York State, except a sale and delivery of used barrels or drums
at a price of $1,042 to the Bayonne Barrel Company in the State of New Jersey.
It did sell and deliver, however, baked goods of a value of $441.37 to Danilow
Baking Company, another New York wholesaler, which, itself, sells and de-
livers approximately $300,000 worth of goods outside the State of New York.
In addition, R. K. Baking Corp., during 1951, sold and delivered baked products
of a total value of $26,474.29 to 16 cafeterias operated in New York City for
local employees of employers, each of which annually sells and delivers products
of a value of more than $25,000 to customers at points outside the States in
which their plants and principal places of business are located 4 Finally, in
1951, R. K. Baking Corp. sold baked products of a value of $970.05 to a cafe-
teria operated at the headquarters, and for the personnel, of the United Nations
Organization in New York City, and also baked products of a value of $4,003.67
to a canteen operated by the New York Quartermaster for the United States
Army.
From the evidence of inflow of materials to R. K. Baking Corp. from outside
the State of New York alone, it is clear and the undersigned finds, contrary
to the contentions of R. K . Baking Corp. and the Union, that R. K. Baking
Corp. is engaged in a business affecting commerce within the meaning of the
Act. There remains, however, the question of whether, on the facts shown by
the record, the Board should, as a matter of policy, exercise its jurisdiction.
In urging the Board to do so, the General Counsel argues, but R. K. Baking
Corp. and the Union deny, (1) that the annual values of the direct and indirect
inflow and outflow of goods to and from It. K. Baking Corp. exceed, in the combi-
nation of their percentages, the minima established by the Board for the exercise
4 Thus , the sales by R. K. Baking Corp. for these purposes were made to the following
employers in New York City :
Spring Mills------------------------------------------------- $1,567.97
American Book -Stratford Press_______________________ __________ 789.55
De Coppet & Doremus----------------------------------------- 2,997.09
General Electric Co__________________________________________ 803. 03
Saks and Company ------------------------------------------- 2, 451.95
Arnold Constable____________________________________________ 1, 062 92
American Pharmaceutical Company____________________________ 2,084.20
International Paper Co____ ___________________________________ 2,313.08
New York Butchers ( Division of Armour & Co.)----------- 1______ 1,447.30
Ohrbach's --------------------------------------------------- 2,556.37
Bonwit Teller------------------------------------------------ 2,178.35
Radio Marine Corp------------------------------------------- 945. 68
U S. Steel Export Co----------------------------------------- 540. 75
Sears Roebuck and Co____ _____________________________________ 2,916.24
Eimer and Amend-------------------------------------------- 1,416.91
John Wanamaker Corp---------------------------------------- 402. 90
$26,474.29
GOTTFRIED BAKING COMPANY, INC. 237
of jurisdiction as a matter of policy; a (2) that the sales by R. K. Baking Corp.
to the cafeterias of the United Nations Organization and to the canteen operated
by the New York Quartermaster for the United States Army show that the
operation by R. K. Baking Corp. affects the national defense effort;' and fi-
nally (3) that the Board should, for policy considerations, also assert its
jurisdiction over the operations of R. K. Baking Corp. because in the negotia-
tion of the contracts with the Union, which are alleged to be illegal, it dealt
with the Union as a member of a New York City association of baking company
employers, a number of other members of which association each annually sold
and transported goods to out-of-State purchasers exceeding $25,000 by value.'
We turn now to the consideration of these contentions of the General Counsel
and their application to the facts in the case.
1. Inflow
The General Counsel asserts that the Board's established category for "direct
inflow" with a jurisdiction minimum of $500,000 rather than its category for
"indirect flow" with a minimum of $1,000,000,8 should be held to embrace not
only direct shipments to an employer from out of the State, but also deliveries
made to him from stocks of goods shipped into his State and warehoused or
stored there "for the sole convenience" of an importer or an out-of-State seller
"in distribution and promotion of sales within the area." In essence, the Gen-
eral Counsel's argument' is that such deliveries to an employer of goods from
local stock is part of the complete interstate "journey" contemplated and in-
5 I e , a direct outflow of $25,000 ( Stanislaus Implement and Hardware Co., Ltd , 91
NLRB 643) ; an indirect outflow of $50,000 through the furnishing of services or mate-
rials necessary to the operation of other enterprises engaged in commerce (Hollow Tree
Lumber Company, 91 NLRB 635) ; a direct annual inflow of $500,000 (Federal Danry Co.,
Inc, 91 NLRB 638) ; an indirect annual inflow of $1,000,000 (Dorn's House of Miracles.
Inc., 91 NLRB 632) ; or a combined total of the percentages of the foregoing factors and
other factors not present in the instant case, which equals 100 percent. (Rutledge Paper
Products Co., 91 NLRB 625).
6 See Westport Moving and Storage Company, Crate Making Division, 91 NLRB 902.
7 See Federal Stores Division of Spiegel, Inc., 91 NLRB 647, enforced as Lee Department
Store v N. L. R B , 196 F. 2d 578 (C. A. 9) ; Carpenter & Skaer, et al., 90 NLRB 417;
Vaughn Bowen, 93 NLRB 1147, 1149-1150.
8 See footnote 5, above.
' In his brief, under the heading "Goods manufactured outside the State of New York
and shipped or delivered from within the State," the General Counsel states his full
argument on this point in the following language :
This involves items where, in most instances, the manufacturing company main-
tains a sales office within the State of New York, and a warehouse in that state for
the sole convenience of the manufacturer in distribution, and the promotion of sales
within the area. This includes in the instant case eggs, flour, syrup and other items.
It is submitted that there is no interruption in the journey as to, in any manner,
change the character of the purchased goods from direct inflow to any other type
of inflow or to that of a local sale. In no instance set forth above, save in the few
situations of flour brokers who are also merchants , has the purpose of the shipment
been fulfilled until the product has been sold and delivered to the customer. It is
not a process where the shipping is made through an independent agency-no one
has purchased the manufactured product ; it has remained in the control of the manu-
facturer or importer during its entire journey, a journey made for the express purpose
of reaching a destination not in a warehouse but in the hands of a customer. To
hold otherwise would be to make a farce of the entire concept of the term "commerce"
as applied to the Act. To carry the other view to its logical conclusion, one would
expand the coming to rest theory so that each stop made by the product in moving
from its point of origin to its destination while en route would be start of a new and
different journey. Logically, where the storage or resting of goods in a warehouse
within the state where the customer is located is for the benefit of the manufacturer
or his agent, sales by it to the customer must constitute direct inflow.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tended by the shipper or importer when he made or procured the shipment from
out of the State ; that mere temporary storage in the State of destination, with-
out a change in the form of the goods , in title, or in control , should not be
regarded as interrupting the "journey" ; and, therefore , that the deliveries to
the ultimate purchaser , though immediately from a local stockpile , constitute
"direct inflow."
The undersigned rejects the General Counsel 's instant contention . The only
conclusion which can logically be drawn from his argument is that deliveries
from local stocks of goods originally procured outside the State are part of the
flow of interstate or foreign commerce ( as the case may be ), within the meaning
of both the Act and Article I, Section 8 of the Federal Constitution. Certainly
it does not also follow that such deliveries from local stocks are "direct inflow"
rather than " indirect inflow " within the meaning of the Board 's policy standards
for the assertion of jurisdiction . For, as the Board uses these terms, "indirect
inflow" as well as "direct inflow" constitutes commerce and empowers the Board
to assert jurisdiction to the extent and in the manner which the Board believes
is necessary for the effectuation of the policies of the Act. It is at this point
that the General Counsel 's argument is defective , since he fails to note, and
to give the proper significance to, the substantial differences between direct
interstate shipments to an employer and deliveries to him from local stockpiles
originally procured outside the State, which led the Board, though recognizing
both as constituting commerce , to make the distinction between "direct" and
"indirect" inflow and , upon policy considerations , to require a higher jurisdic-
tional minimum for the latter category.
The Board decided to establish its present scale of jurisdictional minima
because it believed that it would effectuate the policies of the Act for it to
assert jurisdiction only when the flow of commerce to and from a given em-
ployer is substantial enough so that its possible interruption by labor disputes
would have a sufficiently serious impact upon the general flow of commerce
to warrant the exercise by the Board of its powers under the Act. In trans-
lating this principle into the present formula, the Board fixed a higher minimum
for "indirect inflow" than for "direct inflow " obviously because of the difference
in the extent of impact their interruption would have upon the general flow
of commerce . Thus, both in its general decision to apply the principle of de
minimis and in its decision to establish different , specific minima for "direct"
and "indirect" flow to and from a particular employer , the Board 's guide was
its estimate of the relative extent of the respective impacts upon the general
flow of commerce which might reasonably be expected from their interruption.
In urging the Board to treat as "direct inflow " not only direct shipments to
an employer from out of the State but also deliveries from local stocks of
goods originally procured from outside the State . the General Counsel ignores
the very difference between these two types of procurement in their comparative
impact upon the general flow of commerce, which the undersigned believes was
basic to the Board's distinction between direct and indirect flow. For direct
shipments of goods to a particular employer from out of the State are attributable
solely to , and therefore contribute to the general volume of commerce only
because of , the specific orders of the employer in question . Interruption of
the employer 's business by a labor dispute would , therefore, certainly suspend
the interstate flow of goods normally coming to him by direct shipment, and,
to that extent would clearly and definitely reduce the general flow of commerce.
On the other hand, the interruption of the employer 's business would have a less
pronounced and speculative effect upon the general flow of commerce to his
general, local stock sources , since that flow is not initiated by nor in direct
GOTTFRIED BAKING COMPANY, INC. 239
response to his orders but is due, rather, to the importer's or exporter's estimate
of the general demand in the locality.
Because of these differences in the effect upon the general volume of com-
merce by possible interruptions of direct interstate shipments to a particular
employer and by interruptions of deliveries to him from local stocks of goods
procured in other States, the undersigned concludes, contrary to the General
Counsel's contention, (1) that, within the meaning of the Board's policy minima
for jurisdiction, "direct inflow" includes only goods or materials which have
been directly shipped to an employer from out of the State, whether upon an
order placed by him outside the State or within the State, and whether or not
the order was placed directly with an out-of-State seller or importer or through
their local agents, or through a local or out-of-State merchant; and (2) that all
deliveries made to an employer out of local stock brought into the State for
processing and/or sale, and to meet the exporter's or importer's estimation of
the general, local demand, is indirect inflow, whether the orders have been placed
within the purchasing employer's State or outside that State.
2. Sales to cafeterias in New York City
The General Counsel contends that the annual sales, totaling $26,474.29,
made by R. K. Baking Corp. to 16 cafeterias operated in New York City for
the benefit of their employees by other employers, each of whom has annual
sales and deliveries to customers outside the States in which their plants and
principal places of business are located, must be considered as "indirect outflow"
within the meaning of the Board's jurisdictional formula. The undersigned
disagrees. For the Board has held that in order to warrant inclusion within
the jurisdictional factor referred to by the General Counsel, it must appear
that the sales of the particular employer are necessary to the operations of
the interstate enterprises of the purchasers.10 Thus, in cases in which the Board
has found sales to employee-cafeterias to be a factor in determining jurisdic-
tion, it has done so because the cafeterias in question were the only places within
reasonable distance of the employees' work where the employees were able to
secure meals during their lunch periods." This is obviously not the case in
New York City. The undersigned, therefore, rejects the claim of the General
Counsel that the sales of R. K. Baking Corp to the New York City employee-
cafeterias should be regarded as an indirect outflow factor favoring the asser-
tion of jurisdiction in the present case.
3. Direct outflow and effect upon national defense
The General Counsel contends, in substance, that, in addition to the group
of out-of-State sales to the Bayonne Barrel Company, the Board should treat
the sales of R. K. Baking Corp. of $970.05 to the cafeteria of the United Nations
Organization and of $4,003.67 to the New York City Quartermaster for the
United States Army, as "direct outflow" within the meaning of the Board's
jurisdictional formula, because they are essential to the national defense effort.
The undersigned disagrees. Certainly, these sales do not constitute outflow.
Moreover, their amounts and character are not, in the opinion of the undersigned,
sufficient to meet the Board's requirement that, in order to constitute a factor
to be weighed in favor of asserting jurisdiction, sales of services or products
made in connection with the national defense effort must be substantial'
10 Hollow Tree Lumber Company, 91 NLRB 635
" Otha T. Coburn, d/b/a Coburn Catering Co., 100 NLRB 1133; Fairchild Cafeteria,
87 NLRB 667, 92 NLRB 809.
"Toledo Service Parking Co., 96 NLRB 263 , 265; Photoswitch , Inc, 99 NLRB 1366.
Westport Moving and Storage Company , 91 NLRB 902.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Conclusions concerning the inflow and outflow of commerce to and from
R. K. Baking Corp.
In accordance with the foregoing rulings and upon the uncontradicted evidence
summarized in Appendix A of this report, the undersigned finds that, with
respect to the factors the Board has established to determine whether it will
assert jurisdiction as a matter of policy;' the R. K. Baking Corp. during the
year 1951 had only a direct inflow of $86,038.13 (or 17.2 percent of the standard
established by the Board) ; an indirect inflow of $237,477.21 (or 23.7 percent of
the Board's established standard) ; a direct outflow of only $1.042, con-
sisting of sales to the Bayonne Barrel Company (or 4.1 percent of the Board's
standard) ; and an indirect effect upon the general outflow of commerce through
sales to the Danilow Baking Company in the amount of $441.37 (or less than 1 per-
cent of the Board's standard). Since these amounts do not equal, in the combina-
tion of their percentages, the minimum requirements established by the Board as
a matter of policy, and since the undersigned has also found that the operations
of R. K. Baking Corp. do not substantially affect the national defense effort, the
undersigned concludes that, as a matter of policy, the business operations of
It. K. Baking Corp. do not in themselves warrant the Board's assertion of
jurisdiction in Case No. 2-CA-2067 or Case No. 2-CB-578.
5. The "association" theory
We turn now to the evidence relating to the remaining contention of the
General Counsel that the Board should, as a mattter of policy, assert jurisdic-
tion in Cases Nos. 2-CA-2067 and 2-CB-578, because, in the negotiation of
contracts with the Union, which are alleged to be illegal, It. K. Baking Corp.
dealt with the Union as a member of a New York City association of baking
company employers, known as the Cake Bakers Association, a number of other
members of which association each annually sold and transported goods to
out-of-State purchasers exceeding $25,000, by value.
The evidence in connection with this contention relates to the negotiation
and execution of two contracts, the first, executed on July 15, 1948, and by its
terms effective from February 1, 1948, until January 31, 1950 (General Counsel's
Exhibit No. 7) ; and the second, dated May 24, 1950 and effective according to
its terms, from February 1, 1950 until October 15, 1951 (General Counsel's
Exhibit No. 12).
Both the 1948 and the 1950 contracts purport on their face to be agreements
between the Union and the Cake Bakers Association, which was formed in May
1948 during the course of the negotiations on the 1948 contract, and consisted of
R. K. Baking Corp. and 8 other New York City baking companies, 5 of whom
each made annual sales and deliveries to customers outside the State of New
York in excess of $150,000, by value.'
The 1948 contract was executed on behalf of this association by several of its
officers, including Charles Gottfried, president of R. K. Baking Corp., and also
by the companies who were members of the association, including R. K. Baking
Corp., through their respective representatives. The 1950 contract, although
purporting to be a contract between the Union and the association, was executed
by the signature of each employer (including R. K Baking Corp.) on a separate
13 See footnote 5, above.
14 These association members and their annual out-of-State sales were John Reber
Pastry Co., $555,000; Danilow Baking Company, $300,000; Wheatality Baking Company,
$250,000; Berke Baking Company (also known as Quality Baking Co.), $250,000; and
Your Baking Co., Inc., $150,000.
GOTTFRIED BAKING COMPANY, INC. 241
mimeographed form of the contract (which thus contained only one signature),
and by the employer's exchange of this executed copy for an identical form
similarly executed by the Union (General Counsel's Exhibit No. 12).
Negotiations on both the 1948 and 1950 contracts were initiated by requests
made by the Union upon each of the baking companies in this group, for a dis-
cussion of the terms of new contracts with the Union, covering their drivers, to
succeed contracts expiring on January 31, 1948, and January 31, 1950, respectively.
The Union then fixed the dates of the meetings with the employers' representa-
tives At the same time, according to the testimony of President Gottfried of
R. K. Baking Corp. and Milton Tyor, president of one of the other companies
and vice president of the association, the employers used the "good offices" of
Maurice Gertner, a flour merchant, to arrange meetings between the employers, to
advise and consult with them concerning what the new contract with the Union
might be, and to help them generally. The negotiations with all the employers,
both in 1948 and in 1950, then took place in common meetings between the
Union's and the employers' representatives, with the times set by the Union and
with the Union bargaining for the same terms covering all the employers'
drivers Furthermore, it appears, from President Gottfried's testimony, and
the undersigned finds, that in view of the highly competitive nature of the
baking business, it was the intention of R. K. Baking Corp. in these common
meetings in 1948 and 1950, as well as "for all the years previously," that R. K.
Baking Corp. would sign the same contract that was accepted by the other
employers who were parties to the negotiations Presumably, this was also the
intention of the other companies involved for, both in 1948 and 1950, they
signed identical contracts with the Union, including the union-security provisions
which the General Counsel contends were illegal.
Notwithstanding this situation in which the Union, on the one hand, was
apparently attempting to secure the best contract terms from all the employers
in the group by meeting with them at the same times and with the same pro-
posals, and in which the employers, on the other hand, were intent upon giving
only what their competitors would also concede to the Union in the same meetings,
the negotiations on the 1948 contract began, in approximately January or early
February 1948, with no express understanding between the employers that they
would stand together in the negotiations, or that the representatives of any one
or more of them would be their common spokesmen, with authority to bind them
all. However, in May 1948, no agreement on any contract having yet been
reached and the employers having become apprehensive of the possibility of a
strike, the employers formed the association to negotiate with the Union on their
behalf. For this purpose, they retained an attorney by the name of Turner.
Thereafter, during the remaining negotiations resulting in the 1948 contract, they
were represented by Turner in their meetings with the Union and paid Gertner
"assessments" in proportion to the number of routes of each employer, to cover
their general expenses and their attorney's fee. Each of the companies also
posted security in the form of a check for $5,000, which was to be forfeited to the
association in the event that the particular member should conclude a contract
with the Union which did not meet with the approval of at least two-thirds of
the members.
Shortly after the formation of the association (apparently in June or the be-
ginning of July 1948), the Union objected to dealing with the association through
Attorney Turner rather than with the individual employers and called a strike
of the drivers employed by all the employers in the group. After the first day of
the strike, the Danilow Baking Co., one of the members of the association, made
a separate agreement with the Union, as the result of which the strike of the
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers of the Danilow Company was terminated After a week of the strike
against the other members of the association, the association persuaded the Union
to call off the strike and to continue negotiations between Attorney Turner and
the Union's attorney. The negotiations, so resumed, resulted in a compromise
between the conflicting positions of the employers and the Union, the drafting
of the 1948 contract by the two attorneys to cover all the association's members,
including the Danilow Baking Company, and the execution of the 1948 contract
in the form already described. The checks of each of the members of the asso-
ciation, deposited with Gertner as security against the member's negotiation and
execution of a contract unless aproved by two-thirds of the members, were there-
upon returned to them, including the Danilow Baking Company in spite of its
defection.
The negotiations for the 1950 contract began in the same fashion as had those
for the 1948 contract. With the approach of January 31, 1950, the expiration
date of the 1948 contract, the Union again requested that the same employers,
including It. K. Baking Corp., begin negotiations on a new contract. As in the
case of the negotiations on the 1948 contract preceding the formation of the
association, Gertner again consulted with the companies' representatives, ar-
ranging luncheons where they could discuss the pending negotiations, and the com-
panies, through their respective officials, attended the meetings with the Union
concerning the terms which the Union requested of all the employers No attor-
ney was retained to represent the companies during these meetings. Instead.
some of the companies' representatives did most of the talking concerning the
Union's proposals, although without authority to bind anyone except their re-
spective companies. And again, as in the 1948 negotiations before the formation
of the association, there was no express understanding between the companies
(luring the 1950 negotiations that they would not individually agree to terms which
might be unacceptable to the other companies. This time, according to President
Gottfried of It. K. Baking Corp, there was no problem of any extensive revision
of the preceding contract but rather, for the most part, merely the problem of
clarifying some of the terms of the 1948 contract. Finally, in approximately the
tenth meeting with the employers, the Union presented a draft of contract which
it insisted the companies must sign. As a result, all the companies in the group
executed this contract, in the general manner already described.
The Board has held that, although the annual amounts of inflow and outflow
of goods in commerce to and from a particular employer are not sufficient to
meet the requirements of the Board's jurisdictional formula, it is, nevertheless,
necessary in order to effectuate the policies of the Act, to take jurisdiction over
that employer if it has participated, as (lid R. K. Baking Corp, "in an association-
wide bargaining group of employers, whose total volume of operations substan-
tially affect commerce within the meaning of the Act,11° because, in such cases,
"The clear effect of this type of bargaining is the establishment of a relation-
ship whose impact on commerce reaches beyond the confines of any one em-
ployer involved in the joint bargaining and is coextensiN e with the totality of
the operations of all the employers so involved.i1e The Board has also spe-
cifically held in these cases that, contrary to arguments considered by the under-
signed at the hearing, the Board should and will, as a matter of policy, assert
jurisdiction in these situations if, as in the case of the participation of R. K.
Baking Corp. with the other employer-members of the group comprising the
Cake Bakers Association, ". . . all [the] members have virtually consistently
15 Federal Stores Division of Spiegel , Inc., 91 NLRB 647, 647-648, enforced in Lee
Department Store v. N. L. R B., 196 F. 2d 578 (C. A 9).
le Vaughn Bowen, 93 NLRB 1147, 1150 ; Carpenter and Skaer, et at., 90 NLRB 417.
GOTTFRIED BAKING COMPANY, INC. 243
adopted the agreements resulting from such negotiations, manifesting by such
action a desire to be bound in their labor relations by joint rather than in-
dividual action and to constitute themselves a single employer for bargaining
purposes," " and that it is immaterial whether or not the members of the group
have expressly bound themselves to abide by the results of the joint negotiations
(as did R. K. Baking Corp. only during the 1948 negotiations and not during
those in 1950) ; 18 or whether the association itself and all the members of the
employer-group are parties to the particular proceeding.19 App13 ing the Board's
holdings in these decisions to the facts found in the present case, the undersigned
concludes that the Board should exercise its jurisdiction as a matter of policy
in Cases Nos. 2-CA-2067 and 2-CB-578.
II. THE UNFAIR, LABOR PRACTICES
A. The illegal union-security clauses
1. The execution of contracts containing illegal security clauses
Reference has already been made to the 1948 and 1950 contracts executed by
R. K. Baking Corp. and the Union on July 15, 1948, and May 24, 1950, respec-
tively, which, taken together, covered the terms and conditions of employment
of the drivers of R. K. Baking Corp from February 1, 1948, until October 15,
1951. The Union also negotiated and executed contracts with Gottfried Baking
Company on September 30, 1948, and again in July, 1951," which by their terms
covered the Gottfried Baking Company's drivers in the periods from September
30, 1948, to January 31, 1951, (General Counsel's Exhibit No 10) and from
February 1, 1951, to October 31, 1952, (General Counsel's Exhibit No. 11)
respectively.
All four of these contracts with the Union contained the following clauses :
Recognition
(a) The Employer agrees to hire only members of the Union who shall be
in good standing and carry regular paid-up working books of the Union.
Replacements
(a) With respect to replacements or new employees, the Employer will
immediately notity the Union of its needs and the Union will make every
effort to supply the Employer with suitable and competent men.
(b) After a satisfactory interview, the applicant is to be given a thirty
(30) day trial period, and, if, within the said trial period, the applicant
proves unsatisfactory to the Employer, the Employer may then ask for a
replacement.
(c) In the event that the Union shall be unable to furnish any help or
replacements requested by the Employers, the Employers shall then have
the right to make such replacements. In this event, the Employers agree
that such non-union help shall become members of the Union in thirty (30)
17 Vaughn Bowen, sups a , at page 1150
is Vaughn Bowen, supra, at pages 1149, 1150
11 See the Bon en, Federal Stores, and Carpenter cases, sups a
According to the testimony of William Sands, Jr., attorney for Gottfried Baking
Company, the second of these contracts was executed "somewhere around July, 1951,"
although it was dated February 1, 1951, and by its terms was to be effective until
October 31, 1952
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days subject to its rules and regulations . In the event of the failure or
refusal of the employees to become members of the Union within thirty (30)
days, [or rejection of the membership application by the Union,]" such non-
union employees shall be forthwith discharged by the Employer.
* * * * * * *
Union Security
If, with respect to any Employer who is a party to this agreement, the
closed shop is in conflict with the law, then the union shop shall prevail in
such case together with such additional provisions for union security as
shall be legally permissible, it being the intention of the parties to grant
the maximum union security permitted by law.
Following the decisions of the Board dealing with such clauses, the under-
signed agrees with the contentions of the General Counsel that the above-
quoted clauses under the captions "Recognition" and "Replacements" provided
for the preferential hiring of members of the Union ; that they were therefore
illegal in view of the provisions of Section 8 (a) (3) and 8 ( b) (2) of the Act; 22
and that their execution by the parties constituted unfair labor practices on the
part of each of the employers within the meaning of Section 8 (a) (1), (2), and
(3) of the Act, and on the part of the Union, within the meaning of Section 8 (b)
(1) (A) and (2)," in spite of the "savings clause" inserted under the caption
"Union Security." 24 However, the original charge in Case No. 2-CA-1741
against the Gottfried Baking Company was filed on December 27, 1950, and
served on December 30, 1950; the original charge in Case No. 2-CB-578 against
the Union was filed on February 16, 1951, and served on February 20, 1951; and
the charge in Case No. 2-CA-2067 against R. K. Baking Corp. was filed and
served on July 26, 1951. Consequently, the Union's 1948 and 1950 contracts
with R. K. Baking Corp. and its 1948 contract with Gottfried Baking Company
were executed more than 6 months before the filing of any charges in the present
case and, in view of the applicable 6-month limitation of Section 10 (b) of the
Act, the undersigned cannot, and does not, make any finding that the execution
of any of these three contracts amounted to an unfair labor practice justifying the
issuance of a remedial order in these proceedings . He does find , however, that
by executing their 1951 contract, including the illegal clauses, in July 1951, and
thus subsequent to the filing and service of the original charges in Cases Nos.
2-CA-1741 and 2-CB-578 and at about the time that amended charges were filed
in those cases on July 26, 1951, and served on July 31, 1951," Gottfried Baking
Company and the Union committed unfair labor practices within the meaning
of Section 8 (a) (1), (2), and (3) and Section 8 (b) (1) (A) and (2) of the
Act, respectively.
21 The bracketed phrase appears in the R. K. Baking Corp. contracts but not in those
of the Gottfried Baking Company.
=Port Chester Electrical Construction Corporation , 97 NLRB 354; Essex County,
Vicinity Distract Council, Carpenters , et al., 95 NLRB 969, 972 , 993-994; Julius Resnick,
Inc , 86 NLRB 38, 39, 49-54 ; and cases therein cited
22 Red Star Express Lines of Auburn , Inc., 93 NLRB 127, 128; Monolith Portland Cement
Company, 94 NLRB 1358, 1362-1363, Childs Company, 93 NLRB 283, 285-286 , enforced
in this respect , 195 F 2d 617 (C. A. 2) ; and the Port Chester and Resnick cases, supra
24 The Port Chester and Essex County cases , supra ; Reading Hardware Co, 85 NLRB
610; Lykens Hosiery Mills, Inc., 82 NLRB 981, 982-983 ; Hickey Cab Co , 88 NLRB 327,
329-330; Hazel-Atlas Glass Co , 85 NLRB 1305. Evans Milling Co , 85 NLRB 392, 392-
393, Unique Art 'If fg. Co , 83 NLRB 1250; 0. F Shearer if Sons, 93 NLRB 1228
25 The amended charges in both of these cases specifically alleged the execution of
illegal union-security clauses by the Union and Gottfried Baking Company to he unfair
labor practices
GOTTFRIED BAKING COMPANY, INC . 245
2. Maintenance and application of the illegal security clauses
Although , as the undersigned has just found , the execution of only 1 of the 4
contracts constituted an unfair labor practice which may be remedied in the
present proceedings , the General Counsel contends that the maintenance and
application of the illegal security clauses in the Union's 1948 contract with Gott-
fried Baking Company and in its 1950 contract with R . K. Baking Corp. during
the 6 months immediately proceeding the filing of the charges , were also unfair
labor practices on the part of both Employers and the Union, which the Board
may, and should, remedy by the issuance of an appropriate order.
The General Counsel's general argument finds support in the decisions of the
Board that the retention of illegal security provisions interfere with the rights
of employees under Section 7 of the Act ; constitutes discrimination against them,
encouraging membership in the Union ; and is, therefore, an unfair labor prac-
tice on the part of the contracting employer within the meaning of Section 8 (a)
(1), (2), and (3) and on the part of the contracting union, within the meaning of
Section 8 (b) (1) (A) and (2).28 The undersigned therefore finds that the con-
tinued retention of the illegal security clauses in the Union's 1950 contract with
R. K. Baking Corp. constituted unfair labor practices on the part of R. K . Baking
Corp. on and after January 26, 1951, within the meaning of Section 8 (a) (1),
(2), and (3) and on the part of the Union on and after August 20, 1950, within
the meaning of Section 8 (b) (1) (A) and (2) of the Act.
The Gottfried Baking Company, however, introduced uncontradicted evidence,
which it and the Union contend shows that their 1948 contract and its union-
security clauses were terminated on or before April 1, 1950, and that, in any
event, the union-security provisions were not applied or enforced after that date.
On this line of evidence, the undersigned makes the following findings :
(1) During a strike of the drivers of the Gottfried Baking Company which be-
gan on or about December 27, 1949, Gottfried Baking Company brought an in-
junction suit in the New York Supreme Court against the Union and various
officials and employees who were members of the Union , as a result of which the
injunction was granted and issued by the court in February 1950.
(2) The court found in its opinion in this injunction case that the Union had
violated its 1948 contract with the Gottfried Baking Company.
(3) All the drivers of the Gottfried Baking Co.mpany returned to their jobs
on or about April 1, 1950, except Max Winzelberg, a driver in the restaurant
division"
(4) From April 1, 1950, until July 1951, when the next contract covering
these drivers was executed, the Gottfried Baking Company and the Union
orally agreed that the Company, in order to recoup the business it had lost
during the strike, was to conduct its operations without regard to the terms
of the 1948 contract, although on a day-to-day basis with frequent consultations
with the Union, and that the Company was to hire anybody it wanted.
(5) So far as the record shows, however, no announcement of this suspension
of the terms of the 1948 contract was made to the employees or prospective
applicants for employment.
(6) For the period from April 1, 1950, until July 1951, but in accordance with
a practice of 10 years standing, the Gottfried Baking Company hired no new
26 See the Port Chester and Resnick cases , supra; Childs Company, 93 NLRB 283, 285-
286, enforced in this particular respect, 195 F 2d 617 ( C. A. 2) ; Jandel Furs, 100
NLRB 1390.
It Upon consideration of the evidence relating to Winzelberg which is set forth in a
later section of this report , the undersigned finds that Winzelberg , like the other drivers,
was recalled but that he refused to accept reinstatement to his prestrike position.
257965--54-vol. 103-17
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers for its restaurant division in which Winzelberg had been employed,
but filled such vacancies as occurred in that division by transferring to the
vacant routes other drivers in the restaurant division or drivers from the
grocery division, the vacancies being filled by such bidders among these eligibles
who had the most seniority with the Company.
(7) In the period from April 1, 1950, until July 1951, none of the 13 drivers
hired in the grocery division was then a member of the Union.
Upon these facts, it appears clear, and the undersigned concludes, that al-
though the Union and Gottfried Baking Company did not announce the suspen-
sion of the provisions of their 1948 contract, including the illegal preferential
hiring clauses, they did reach and abided by an oral agreement that the provi-
sions of this contract, including the illegal preferential provisions, should not
he enforced while the Company was recuperating from the strike.
Under the applicable decisions of the Board, the undersigned finds that the
retention by the Union and Gottfried Baking Company of the illegal security
provisions of the 1948 contract during the 6 months preceding the filing of the
charges in the present cases, constituted a violation by Gottfried Baking Com-
pany of Section 8 (a) (1), and by the Union of Section 8 (b) (1) (A) of the
Act, even though they had agreed that these provisions would not be enforced,
and in fact did not observe them. Under the same decisions, however, the
undersigned further finds that, in view of the agreed suspension of the security
provisions and their actual nonobservance during the 6 months preceding the
filing of the charges, the Gottfried Baking Company did not violate Section 8
(a) (3) nor did the Union violate Section 8 (b) (2) of the Act.
B. Gottfried Baking Company's alleged refusal to hire Max Winzelberg on and
since December 27, 1950
1. Winzelberg's previous employment by Gottfried Baking Company
After several intermittent periods of employment by Gottfried Baking Com-
pany beginning in 1919, Max Winzelberg worked steadily for that Company as a
driver in its restaurant division from 1940 until the beginning of a strike on
December 27, 1949. For the last 4 years of his employment by the Company,
Winzelberg had the same route which he served without a helper for periods
when he was breaking in a new man.
It is undisputed that, in accordance with its currently applicable agreements
with the Union, the Company's drivers were paid a standard weekly minimum
or guarantee plus commissions at a stated percentage on sales exceeding a cer-
tain figure. Winzelberg testified, however, that on occasion, some drivers were
assigned as "route builders" to new or unprofitable routes ; that such route build-
ers were guaranteed a higher weekly minimum which they were paid until their
weekly compensation, if computed at the standard minimum plus commission,
exceeded the route builder's premium minimum ; and that when this occurred,
the route builder was given the option of continuing on the route at the regular
compensation or of bidding for another new or unprofitable route at route build-
er's terms. In the course of his testimony, Winzelberg claimed that when the
strike began on December 27, 1949, he was route builder entitled to a route
builder's minimum of $75 per week, as compared to the then current standard
guarantee of $55 a week.
Winzelberg's testimony to support this claim was that since 1940 he had been
assigned by the Company to special routes as a route builder; that in 1945 he
28 Port Chester Electrical Construction Corporation, 97 NLRB 354; Monolith Portland
Cement Company, et at, 94 NLRB 1358, 1362-1364.
GOTTFRIED BAKING COMPANY, INC. 247
was assigned to route 57 as a route builder at a guarantee of $75 a week, as
against the standard minimum of $55; and that he retained route 57 until the
beginning of the strike on December 27, 1949. His further testimony, however,
was that he was assigned to route 57 as a route builder in 1945 upon an under-
standing that he was to receive the guarantee of $75 for 22 or 24 weeks, and
that at the end of that period, since his compensation computed at the regular
rates exceeded $75, he reverted to the regular rates and remained there until
the strike began.
But President Maurice Gottfried of the Company testified that it had no route
builders, although there was a provision in a 1943 contract with the Union, still
in effect in 1945, that upon the splitting or division of a route, the routeman
would, for 13 weeks, "be guaranteed wages and commissions equal to the aver-
age for the four weeks previous to the split"; that since this provision was
applied to a driver whose route was discontinued, an arrangement was made
with Winzelberg on June 21, 1945, when his previous route was discontinued,
that in thereafter serving route 57, he was to be paid a weekly minimum of $75
for 13 weeks as compared with a regular guarantee of $45; that a payroll memo-
randum to this effect (which was submitted in evidence) was prepared and the
period was later extended to January 1, 1946; and that after January 1, 1946,
Winzelberg's guarantee was the regular or standard minimum which, on De-
cember 27,1949, was $55 per week.
Upon this state of the evidence, the undersigned credits Maurice Gottfried's
testimony and finds specifically that on December 27, 1949, the date the strike
began, Winzelberg was working for the Company as a regular driver at the
standard minimum guarantee of $55 per week.
2. Threats by union officials against Winzelberg immediately before and during
the 1949-50 strike
According to his uncontradicted testimony, corroborated in several instances
by the testimony of his wife, Max Winzelberg, although a member of the Union,
incurred the displeasure of union officials and was threatened by them in several
incidents which occurred during a strike by members of the Union against
Hanscom Bakeries, a subsidiary of Gottfried Baking Company, and during the
subsequent strike of the Gottfried Baking Company drivers which, as has been
noted, began on or about December 27, 1949. Upon this uncontradicted testi-
mony, the undersigned finds that (1) when Winzelberg refused to serve on the
Hanscom picket line in November 1949, Vice-President Benjamin Hertzberg of
the Union told him in substance that unless he served, he would lose his union
book; (2) upon Winzelberg's returning to the Gottfried plant from his route
at about noon on the day the strike against Gottfried Baking Company began
in December 1949, Hertzberg, at the head of pickets, told him to get off his truck,
not to turn in his collections, but to join the pickets; Winzelberg nevertheless
drove his truck into the plant, urged other drivers to turn in their collections,
and did so himself to Maurice Gottfried; and when he came out, Union Delegate
Strauss told him he had no right to talk to Gottfried; and (3) on the same day
and again in January 1950, when he came to the plant for money due to him,
Hertzberg told him in the presence of Betty Winzelberg, his wife, who was wait-
ing in their car, that if he did not keep away from the plant, his body would be
found floating in the river.
3. Winzelberg's rejection of offer of reinstatement at the end of the strike
As already found, the strike against Gottfried Baking Company ended on or
about April 1, 1950, with all the drivers except Winzelberg returning to work at
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the invitation of the Company. Maurice Gottfried testified that Winzelberg, too,
was called back and offered his old route at his prestrike compensation, with a
weekly guarantee of $55 a week ; that Winzelberg told Gottfried he wanted a
supervisor 's job or a daytime route or a helper-bodyguard ; and that when Gott-
fried refused to grant these requests , Winzelberg refused to come back to work.
Winzelberg, in his testimony , admitted that he was told to report to work, but
he further testified that he refused to do so because Gottfried did not offer him
his old job back . His explanation of this, in his testimony , was that Gottfried
offered him, and he refused to take, his old route , at the standard minimum of
$55 per week, rather than the premium minimum of $75 which he told Gottfried
was due to him as a route builder . In addition , Winzelberg admitted on further
cross-examination , that he also asked Maurice Gottfried for another man to ride
with him and for a daytime route.
Thus, Winzelberg and Gottfried agreed in their testimony that, on or about
April 1 , 1950 , Maurice Gottfried offered to permit Winzelberg to return to his
eld route at the standard weekly guarantee of $55 but that Winzelberg rejected
the offer . Having already considered and rejected Winzelberg 's claim that he
was a route builder, entitled to a weekly premium guarantee of $75, the under-
signed now finds that , on or about April 1, 1950, Maurice Gottfried offered to
reinstate Winzelberg to his prestrike job without modifying its terms or condi-
tions in any respect, but that Winzelberg rejected the offer and did not return
to work.
4. Winzelberg's employment by Pechter Baking Company in April and May 1950
Winzelberg was employed by the Pechter Baking Company , another New York
baker , from sometime in April 1950 until May 19, 1950 . Upon Winzelberg's un-
contradicted testimony , the undersigned finds that upon returning from his route
to the Pechter plant on May 18, 1950 , Winzelberg met Delegate Harry Reiter of
the Union as the latter came out of the office ; that Reiter ' s brother , who was
also present, called Winzelberg "the star scab of the Gottfried Baking Company,"
and said to Delegate Reiter , "I want you to take care of him" ; that Delegate
Reiter turned around and said , "I will take care of you" ; and that, although it
was 2 days before the end of the workweek , Winzelberg was discharged the next
morning with no explanation from the supervisor except that the discharge was
"a dirty job."
5. Winzelberg 's alleged applications to Gottfried Baking Company for
employment before December 27, 1950
According to Winzelberg 's testimony , which was corroborated as to the first
instance by the testimony of Betty Winzelberg, his wife, he saw and asked
Maurice Gottfried for a job when he procured the return of his cash bond a
few weeks after the strike ( and thus before he got his job at the Pechter Baking
Company ), again in May 1950 ( after he had been discharged by the Pechter
Baking Company ), and then sometime in the fall of 1950, but that on each
occasion , Gottfried said in effect that the Union would not permit the Company
to take Winzelberg back . Winzelberg testified only as to the first of these
instances during his examination in the course of the General Counsel 's case-
in-chief , and as to others , in the course of the General Counsel 's rebuttal.
Maurice Gottfried denied that Winzelberg asked him for a job on the occasions
to which Winzelberg testified , or at any other time after the 1949-50 strike.
He testified that he saw Winzelberg only three times following the strike;
that on the first occasion , March 29, 1950, Winzelberg refused to return to his
GOTTFRIED BAKING COMPANY, INC . 249
old route and collected his security ; that, on the second occasion , which was
in the late spring of 1950, Winzelberg showed Gottfried some literature con-
cerning chicken raising and asked Gottfried for his advice since he knew Gott-
fried bought eggs ; and that, on the third occasion in the fall of 1950 , Winzelberg
asked Gottfried for advice as to the possibility of his getting employment else-
where. Gottfried further testified that during the last two of these conversa-
tions with Winzelberg , Winzelberg expressed bitterness against the Union ;
that in response to Winzelberg 's statements in this vein and in counseling
Winzelberg against going into the chicken-raising business , Gottfried told Winzel-
berg, "Forget [your troubles with the Union]. Get yourself straightened out.
Pay up any dues you owe. Don't go around fighting the entire world. I found
that out" ; and finally, that in the conversation with Winzelberg in the fall of
1950, Gottfried voluntarily told Winzelberg that he would hire Winzelberg if
there were then a vacancy with the Gottfried Baking Company, although Winzel-
berg had not asked for a job with the Company, but merely for advice as to how
he might get employment elsewhere.
When cross-examined as to whether he had asked Gottfried's advice concerning
his entering the business of raising chickens, Winzelberg answered that when
his cash security of $100 was returned to him, he jokingly showed Gottfried
some literature on the subject and remarked , "I am going to raise chickens
with the $100."
The undersigned credits Maurice Gottfried's testimony as to the substance
of his conversations with Winzelberg following the strike and prior to December
27, 1950, and specifically finds that Winzelberg did not ask Gottfried to reemploy
him during any of these conversations.
6. Winzelberg's oral application for a job at R. K. Baking Corp. on December 11,
1950; his attempt to pay union dues; and his first visit to the Board's Regional
Office on December 15, 195,0
The undersigned finds, upon the uncontradicted testimony of Winzelberg and
Betty Winzelberg, his wife, that on December 11, 1950, Winzelberg visited
President Charles Gottfried of the R. K. Baking Corp. and applied for a job ;
that Charles Gottfried asked Winzelberg whether he had any trouble with the
Union and whether his dues were paid up ; that, upon Winzelberg's saying
that the Union refused to accept his dues payments, Charles Gottfried suggested
that Winzelberg tender his dues to the Union ; that Winzelberg and his wife
went to the Union's office in New York City and told the cashier there that
he wanted to pay his dues ; and that the cashier told him he had been suspended.
On or about December 15, 1950, Winzelberg visited the Regional Office of the
Board in New York City, where he spoke with Field Examiner Arthur Goldberg.
This was the first time, so far as the record shows, that Winzelberg spoke with
any representative of the General Counsel. Even then he filed no charge. The
undersigned credits the following uncontradicted testimony of Field Examiner
Goldberg as to the substance of his conversation with Winzelberg on this
occasion :
Well, I cannot tell or actually recall word for word what I said to him. At
the time he came to me and he presented his case. He said that he had ap-
plied for a job and that one of the Gottfrieds told him that they are willing to
hire him, but the reason they cannot hire him is because the Union is
opposed to him. And I asked him who else was present at the time he had
this conversation , and whether or not Gottfried would cooperate in this
investigation , if presumably a charge was filed ; and he said Gottfried would.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I asked him whether or not Gottfried would give him such a statement in
writing. He seemed to think that Gottfried would cooperate, that he was
very friendly with him.
I explained to him that if he could get such a statement from Gottfried,
that we would have a much simpler job of proving his charge. If we could
prove his charge, he would have a good case.
7. Gottfried Baking Company's alleged discriminatory refusal to hire Winzelberg
on December 27, 1950, and the filing of the charge against it on the same day
The last alleged refusal of the Gottfried Baking Company to hire Winzelberg,
according to the testimony of the General Counsel's witnesses, occurred on
December 27, 1950, the very same day that Max Winzelberg filed his charge
against Gottfried Baking Company in Case No. 2-CA-1741. For, as the Regional
Office's stamp on the charge shows, and the undersigned finds, this charge was
filed at 5: 15 p. in. on December 27, 1950.
Max Winzelberg, Betty Winzelberg (his wife), Abraham Winzelberg (his
son), and Jonathan Paige (a friend of the son) testified that on December 27,
1950, they left the Winzelberg home in Bronx, New York City, and drove in
Max Winzelberg's car to the Gottfried Baking plant, a trip which, according
to Mrs. Winzelberg, takes from a half to three-quarters of an hour ; that the
other three left Mrs. Winzelberg in the car and entered the plant ; that, upon
being told by the receptionist that Mr. Gottfried had gone to lunch, the three
men went to a nearby restaurant for coffee ; and that they then returned to the
plant where Max Winzelberg had a conversation with Maurice Gottfried in the
presence of young Winzelberg and Paige. Max Winzelberg testified upon direct
examination that he asked Maurice Gottfried for a letter to the Union "so I
would be able to resume work" ; and then, on cross-examination, that he asked
for a letter to the Union "because I need work." According to Abraham Winzel-
berg, his father asked for a letter to the Union "saying I can come back to
work." And according to Paige, Max Winzelberg requested "a letter stating
that he [Gottfried] would give him [Max Winzelberg] a job in the Gottfried
Baking [Company] that he wanted." According to the testimony of Max and
Abraham Winzelberg and of Paige, Maurice Gottfried refused to give Winzel-
berg the letter, but stated in substance that he would give Max Winzelberg a job
if he had a union card.
In his testimony, Maurice Gottfried denied having seen, or having had a con-
versation with, Max Winzelberg or Abraham Winzelberg on or about December
27, 1950, or having ever seen Paige before the hearing, or having received a
request for a job from Max Winzelberg either on December 27, 1950, or at any
time after March 1950.
In addition to the sweeping and positive character of these denials by Maurice
Gottfried, and the facts, already found, that during this period the Union and
the Company had suspended the union-security provisions of their 1948 contract,
and the Company was in fact hiring nonunion men, there are certain observations
which should be made concerning the general substance and nature of the testi-
mony of the General Counsel's witnesses as it bears upon the occurrences of
December 27, 1950, and which also lead the undersigned to credit Maurice Gott-
fried's denials.
According to the testimony of the General Counsel's witnesses, Abraham Win-
zelberg, who is in the Army, returned home on furlough from Texas on Christmas
Day. According to him, he had met Paige only 3 or 4 times at a roller skating
rink, had not seen him for 5 months, and although he had lots of close friends,
Paige was not one of them. He met Paige again on the night of December 26,
GOTTFRIED BAKING COMPANY, INC . 251
1950. It was not until the next morning, however. that Max Winzelberg asked
his son to provide an additional witness, and the son thereupon telephoned Paige
at 11 a. in. and, according to Abraham Winzelberg's testimony, Paige, coming
from his home in Brooklyn, arrived at the Winzelberg home in the Bronx at
about 1 p. in. Paige had not previously met either Max Winzelberg or Mrs.
Winzelberg, nor did he know Maurice Gottfried. Furthermore, he was unable to
identify Maurice Gottfried at the hearing and even confused another spectator
with Max Winzelberg for a few minutes, deficiencies which the General Counsel
explained on the basis of Paige's obviously, extremely poor eyesight. Whether
explainable on the same basis or not, Paige also testified that the only persons
present during the conversation in Gottfried's office were the two Winzelbergs,
himself, and Maurice Gottfried, although both Max and Abraham Winzelberg
testified that Benjamin Gottfried, a brother of Maurice and since deceased, was
also there.
Then, there were also discrepancies and even changes in the testimony of the
General Counsel's witnesses as to the times and courses of their movements on
December 27, 1950, especially when the necessity became apparent for explaining
how it was possible, if all the things described by them in their testimony had
occurred on that date, for Max Winzelberg to have filed the charge at the Regional
Office before closing time the same day. Paige, as the first witness at the hear-
ing, testified that he met the Winzelbergs at their home at about 10 a. in.; and
that they arrived at the Gottfried plant "more in the morning than the after-
noon." But the Winzelbergs testified consistently throughout the hearing that
they left their home only at about 1 p. in.; that they arrived at the Gottfried plant
at about 2:15; that, allowing for the time spent in getting coffee and the con-
versation with the Gottfrieds, they left the Gottfried plant at about 3 o'clock.
After leaving the Gottfried plant, the Winzelbergs, according to their testi-
mony, drove Paige to a subway station, and then drove their son to another
subway station near their home. Abraham Winzelberg estimated that he thus
left his parents "a little before four o'clock or four o'clock." Consistent with
this estimate, Mrs. Winzelberg first testified that she and her husband arrived
home "a little after four" and, in this, her first appearance on the witness stand,
further testified that her husband stayed home with her and she prepared a
dinner consisting of lamb chops and baked potatoes. Later, however, when it
became apparent during the course of the hearing that they would have to explain
how it happened that a charge was apparently filed the same afternoon before
the Regional Office closed at 5:30 p. in., Mrs. Winzelberg again took the witness
stand and Max Winzelberg also gave testimony for the first time as to their trip
back downtown to the Regional Office. Mrs. Winzelberg testified that she then
recalled accompanying her husband, at his request, to the Regional Office after
she, but not he, had something to eat at their home. Max Winzelberg and Mrs.
Winzelberg further testified that they left their home for the Regional Office
about 4 :15 p. w.; arrived at, and parked their car near, the Regional Office at
its downtown location before 5 o'clock ; saw Field Examiner Goldberg who, after
listening to Winzelberg's story, took "maybe five minutes to write [the charge]
out" ; and then left the Regional Office at either a quarter after five or 20 minutes
after five.
In clear conflict with this timetable was Field Examiner Goldberg's testimony
that Winzelberg arrived at the Regional Office sometime between 3 and 4 p. in.,
whereupon, after a brief interview, Goldberg wrote the details of the charge upon
a form generally used for the purpose, had a typed copy prepared, procured
Winzelberg's signature, and had the completed charge stamped and docketed by
the docket clerk at 5: 15 p. in.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon this consideration of the testimony, the undersigned credits Maurice
Gottfried's denial that he saw or spoke with Max Winzelberg on December 27,
1950, that Max Winzelberg then asked him for a job, or that he, Maurice Gott-
fried, refused to hire Max Winzelberg.
8. Conclusions
Upon the foregoing findings based upon the evidence concerning the alleged
discriminatory refusal by the Gottfried Baking Company to hire Max Winzelberg,
the undersigned will recommend a dismissal of those portions of the complaints
in Cases Nos. 2-CA-1741 and 2-CB-578, respectively, which assert in substance
that, (1) by refusing to hire Max Winzelberg on December 27, 1950, and there-
after continuing to fail and refuse to hire him, the Respondent Gottfried Baking
Company committed unfair labor practices within the meaning of Section 8 (a)
(1) and (3) of the Act, and (2), by causing Gottfried Baking Company to refuse
to hire Max Winzelberg, the Respondent Union committed unfair labor practices
within the meaning of Section 8 (b) (1) (A) and (2) of the Act.
C. The refusal of R. K. Baking Corp. to hire Mao Winzelberg on
January 27, 1951
The undersigned has already found that the R. K. Baking Corp. through its
president, Charles Gottfried, refused to hire Max Winzelberg on December 11,
1950, unless he had a union card, and that the union refused to accept his dues
on the ground that he had been suspended.
On January 25, 1951, Max Winzelberg mailed a letter to R. K. Baking Corp., in
which he again applied for a job as a route salesman. On January 27, 1951,
Charles Gottfried mailed to Max Winzelberg the following letter :
I have your most welcome letter of January 25. Frankly I could use a
man of your qualification as a replacement even if only temporary to take
over Artie Greenhoots route. He may be out for two or three months and
by the time he returns I could use you as a vacation relief man. When this is
over we would be glad to establish another route for you as I feel you are
just the right man for us. We have had a lot of difficulty in getting replace-
ments from the union. The last experience cost us a fortune and the union
has no qualified replacements.
I know you are marked lousy at the union because of your situation at
Gottfrieds. I am very anxious to put you to work immediately but I cannot
get involved in a fight with Local 802 on your account.
I would suggest that you go to Local 802 and try to straighten yourself out
with them and get "a Union Book."
If you do this, I will put you right to work.
The undersigned finds that in this letter, the Respondent R. K. Baking Corp.,
in violation of Section 8 (a) (1) and (3) of the Act, refused to hire Max Winzel-
berg unless he presented evidence of union membership in the form of a union
card, thereby discriminating against Max Winzelberg in regard to his hire and
encouraging membership in the Union.
The action of R. K. Baking Corp. in thus refusing to hire Winzelberg consti-
tuted an apparent reluctant compliance by it with the union-security provisions
of its 1950 contract with the Union. The undersigned accordingly finds
that the Union, on and since January 27, 1951, committed unfair labor practices
within the meaning of Section 8 (b) (1) (A) and (2) of the Act, by requiring
R. K. Baking Corp. to refuse to hire Max Winzelberg, an applicant for employ-
ment, because of his suspension from or lack of membership in the Union.
GOTTFRIED BAKING COMPANY, INC. 253
D. The alleged violation of Section (a) (4) by R. K. Baking Corp.
As has been noted, Max Winzelberg filed the original charge in Case No. 2-CB-
578 against the Union on February 16, 1951, and the charge in Case No. 2-CA-2067
against R. K. Baking Corp. on July 26, 1951. The undersigned finds, upon the
uncontradicted testimony of Max Winzelberg and Mrs. Winzelberg, that in
March 1951, they visited Charles Gottfried at the latter's request, and were told
by Charles Gottfried that he could get a union book for Max Winzelberg and
put him to work if Max Winzelberg would withdraw his charge against the
Union. But Winzelberg refused to do so.
Thus, having first refused to hire Max Winzelberg because he had no union
book, the Respondent R. K. Baking Corp. offered him a job if he would withdraw
his charge against the Union. The undersigned disagrees with the General
Counsel's contention that by this last action, the R. K. Baking Corp. discriminated
against Max Winzelberg within the meaning of Section 8 (a) (4) of the Act
"because he [had] filed charges . . . under this Act." What R. K. Baking Corp.
offered to do in March 1951, was to discontinue its illegal discriminatory refusal
to hire Winzelberg if he would withdraw his charge. It was not discriminating
against him because he had filed the charges, for obviously, it was only Winzel-
berg's filing of the charges which brought him even a conditional offer of employ-
ment by the R. K. Baking Corp. Thus, the action of R. K. Baking Corp. wasi
clearly different from a discharge, a threat of discharge, or a refusal to grant a
job application because of the prior filing of a charge by the employee or appli-
cant, all of which are covered and forbidden by Section 8 (a) (4) of the Act.
The undersigned, therefore, will recommend a dismissal of so much of the com-
plaint in Case No. 2-CA-2067 as alleges that the Respondent R. K. Baking Corp.,
by a continued refusal to hire Max Winzelberg because of his filing of the charge
against the Union, committed an unfair labor practice within the meaning of
Section 8 (a) (4) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Gottfried Baking Company, Inc., the Re-
spondent R. K. Baking Corp., and the Union, as set forth in section II, above, oc-
curring in connection with the business operations described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
IV. THE REMEDY
Having found that the Respondents engaged in unfair labor practices, the
undersigned will recommend that they cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act.
It will be recommended that the Respondent R. K. Baking Corp. offer Max
Winzelberg immediate employment as a route salesman and that the Respondent
Union notify the R. K. Baking Corp. and Max Winzelberg in writing that it
will not object to but on the contrary now requests Max Winzelberg's immediate
hire by the Respondent R. K. Baking Corp.
Since it has been found that the Respondent R. K. Baking Corp. and the
Union are both responsible for the discrimination suffered by Max Winzelberg,
it will be recommended that they jointly and severally make Max Winzelberg
whole for any loss of earnings he may have suffered by reason of the discrimina-
tion against him, by payment to him of a sum of money equal to that which he
would have earned in the employ of R. K. Baking Corp. from January 27, 1951,
to the date of the offer by R. K. Baking Corp. to employ Winzelberg pursuant
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to these recommendations, less his net earnings during said period ; 29 provided,
however, that the Union's liability shall be tolled 5 days after it serves the
written notice upon the R. K. Baking Corp. that it no longer objects to but on
the contrary now requests Winzelberg's immediate employment by R. K. Baking
Corp.
Loss of earnings for the foregoing purposes shall be computed on the basis
of each separate calendar quarter or portion thereof during the period of the
Respondents' liability. The quarterly periods, herein called quarters, shall
begin with the first day of January, April, July, and October. Loss of earnings
shall be determined by deducting from a sum equal to that which Max Winzelberg
would normally have earned in the employ of R. K. Baking Corp. for each such
quarter or portion thereof, less his net earnings, if any, in any other employment
during that period. Earnings in one particular quarter shall have no effect
upon the back-pay liability for any other quarter.'°
It will also be recommended that the Respondent R. K. Baking Corp., upon
reasonable request, make available to the Board and its agents all payroll and
other records pertinent to an analysis of the amounts due as back pay.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONcLusIONs OF LAW
1. Bakery & Pastry Drivers and Helpers Union, Local No. 802, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America,
AFL (herein referred to as the Union), is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By executing and including in their contract of July 1951 provisions re-
quiring membership in the Union as a condition of employment by Respondent
Gottfried Baking Company, Inc., said Respondent Gottfried Baking Company,
Inc., committed unfair labor practices within the meaning of Section 8 (a) (1),
(2), and (3) of the Act, and the Union committed unfair labor practices within
the meaning of Section 8 (b) (1) (A) and (2) of the Act.
3. By their retention, during the 6 months preceding the filing and service of
the charges against them in the present cases, provisions of their 1948 contract
requiring membership in the Union as a condition of employment by the Re-
spondent Gottfried Baking Company, Inc., the said Respondent Gottfried Baking
Company, Inc., committed unfair labor practices within the meaning of Section 8
(a) (1) of the Act and the Union committed unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act.
4. By their retention, during the 6 months preceding the filing and service of
the charges against them in the present cases, of provisions of their 1950 con-
tract requiring membership in the Union as a condition of employment by
Respondent R. K. Baking Corp., the said Respondent R. K. Baking Corp. com-
mitted unfair labor practices within the meaning of Section 8 (a) (1) of the
Act and the Respondent Union committed unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act.
5. By refusing to hire Max Winzelberg on January 27, 1951, unless he pre-
sented evidence of his union membership in the form of a union card, thereby
discriminating against Max Winzelberg, an applicant for employment, in regard
to his hire, and encouraging membership in the Union, the Respondent R. K.
Baking Corp. committed unfair labor practices within the meaning of Section 8
(a) (1) and (3) of the Act.
29 Crossett Lumber Company, 8 NLRB 440.
30 F. W. Woolworth Company, 90 NLRB 289.
GOTTFRIED BAKING COMPANY, INC . 255
6. By requiring R. K. Baking Corp. on and since January 27, 1951, to refuse
to hire Max Winzelberg, an applicant for employment because of his suspension
from or lack of membership in the Union, the Respondent Union committed un-
fair labor practices within the meaning of Section 8 (b) (1) (A) and (2)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
comerce within the meaning of Section 2 (6) and (7) of the Act.
8. Contrary to the allegations of the respective complaints against them in
these proceedings:
(a) The Respondent Gottfried Baking Company, Inc., did not refuse to hire
Max Winzelberg because of his suspension from or lack of membership in the
Union, and did not, in this respect, commit an unfair labor practice within the
meaning of Section 8 (a) (1) and (3) of the Act.
(b) The Respondent Union did not cause the Respondent Gottfried Baking
Company, Inc., to refuse to hire Max Winzelberg, and in this respect did not
commit an unfair labor practice within the meaning of Section 8 (b) (1) (A)
and (2) of the Act.
(c) By merely retaining the illegal security provisions of their 1948 contract
during the 6 months preceding the filing of the charges against them in the
present cases, the Respondent Gottfried Baking Company, Inc., did not commit
unfair labor practices within the meaning of Section 8 (a) (2) and (3) of the
Act, nor did the Respondent Union commit unfair labor practices within the
meaning of Section 8 (b) (2) of the Act.
(d) By offering Max Winzelberg employment in March 1951, on condition
that he withdraw charges filed against the Union, the Respondent R. K. Baking
Corp. did not commit an unfair labor practice within the meaning of Section 8
(a) (4) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
The direct and indirect inflow of goods in interstate commerce to R. K. Baking
Corp. for the year 1951
Direct inflow:
(Direct shipments to R. K. Baking Corp. from out-of-State or through States
other than New York State, on the specific order of R. K. Baking Corporation)
(a) On the order of R. K. Baking Corp., sent directly to the shipper at his
out-of-State place of business :
From :
Armour and Company___ ________________________________ $18,489,48
Baltimore Sales Book Co------------------------------- 1,757.12
Rosenberg Brothers____________________________________ 10,266.72
$30, 513.32
(b) On the order of R. K. Baking Corp., placed with a New York selling agent
of out-of-State seller-shipper :
From :
Standard Milling Company ------------- --------------- $46,489.38
Wesson Oil and Snowdrift Sales Company_______________ 5, 354.43
Hubbard Milling Company______________________________ 3,681.00
$55, 524.81
Total direct inflow__________________________________________ $86,038.13
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indirect inflow:
(Goods originating out of the State but delivered to R. K. Baking Corp. out
of stock held in New York State, where they had been shipped either for
processing or for storage in order to meet the general demands of the local
market, including but not with specific reliance upon the possible orders
of R. K. Baking Corp.)
(a) On the order of R. K. Baking Corp. placed with a New York selling agent
of the seller :
From :
Frigid Foods Products,Inc ------------------------------ $16,886.27
Wilson and Co----------------------------------------- 12,340.05
Ocoma Foods Company---------------------------------- 61,925.49
American Maize Products Co---------------------------- 2,920.29
Hubbard Milling Co------------------------------------- 2,887.90
Blanton Company-------------------------------------- 9,163.14
E. F. Drew and Co------------------------------------- 3,256.89
$109, 380.03
(b) On the order of R. K. Baking Corp. placed with a New York broker:
From : Union Sales Company-------------------------------- $1,461.58
(c) On the order of R. K. Baking Corp. placed with a New York merchant:
From :
Maurice Gertner--------------------------------------- $1,834.50
Flagstaff Food Company-------------------------------- 4,210.75
Cuban American Mercantile Corp------------------------ 4, 667.25
Henningsen-Lamesa, Inc-------------------------------- 6,375.00
Durkee Famous Foods---------------------------------- 3,144.33
James Haffenberg-------------------------------------- 1,114.50
Raymond Kilthau-------------------------------------- 2,690.90
Brown's Hungarian Corp------------------------------- 3,406.10
Olivarria Company, Inc-------------------------------- 6,025.75
$33, 469.08
(d) Out of stock finally processed in New York State by importer:
From :
Durkee Famous Foods---------------------------------- $64,270.33
American Molasses Co---------------------------------- 2,485.00
American Sugar Co------------------------------------- 26,411.19
$93, 166.52
Total indirect inflow---------------------------------------- $237,477.21
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
GOTTFRIED BAKING COMPANY, INC . 257
WE WILL NOT enter into, renew, or enforce the clauses of any agreement
with BAKERY & PASTRY DRIVERS AND HELPERS UNION, LOCAL No. 802, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL, or any other labor organization, which require
employees to join or maintain their membership in such labor organization
as a condition of employment, unless such agreement has been authorized as
provided in the National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named labor organization or
any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to refrain from
any or all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the Act.
All our employees are free to become, remain, or to refrain from becoming or
remaining, members in good standing of the above-named labor organization or
any other labor organization except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the Act.
GOTTFRIED BAKING COMPANY, INC.,
Employer.
Dated -------------------- By --------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
Appendix C
NOTICE TO ALL EMPLOYERS
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT enter into, renew, or enforce the clauses of any agreement
with BAKERY & PASTRY DRIVERS AND HELPERS UNION, LocAL No. 802, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL, or any other labor organization, which require
employees to join or maintain their membership in such labor organization
as a condition of employment, unless such agreement has been authorized as
provided in the National Labor Relations Act, as amended.
WE WILL NOT encourage membership in the above-named labor organiza-
tion or in any other labor organization, by refusing to hire applicants for
employment unless they are members of the above-named labor organiza-
tion or of any other labor organization, or by discriminating in any manner
in respect to hire and tenure of employment or any term or condition of
employment.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named labor organization or
any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to refrain from
any or all of such activities except to the extent that such right may be
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affected by an agreement requiring membership in a labor organization as a
condition of employment , as authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER to Max Winzelberg immediate employment as a route sales-
man and will make him whole for any loss of earnings suffered as a result
of discrimination against him.
All our employees are free to become, remain , or to refrain from becoming or
remaining, members in good standing of the above-named labor organization or
any other labor organization except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the Act.
R. K. BAKING CORP.
By ---------------------
(Representative ) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
Appendix D
NOTICE TO ALL MEMBERS
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT enter into, renew, or enforce the clauses of any agreement
with the GOTTFRIED BAKING COMPANY, INC., or with the R. K. BAKING CORP.,
or with any other employer, which require employees to join or maintain
their membership in this labor organization as a condition of employment,
unless such agreement has been authorized as provided in the National
Labor Relations Act, as amended.
WE WILL NOT in any like or related manner cause, or attempt to cause,
GOTTFRIED BAKING COMPANY, INC., or R. K. BAKING CORP., or any other em-
ployer, its officers, agents, successors, or assigns to discriminate against an
employee or an applicant for employment, in violation of Section 8 (a) (3)
of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees
in the exercise of the rights guaranteed in Section 7 of the Act.
WE WILL notify R. K. BATING CORP., in writing, and so advise Max Winzel-
berg, that we do not object to but on the contrary now request that company
to employ Max Winzelberg as a route salesman.
WE WILL make Max Winzelberg whole for any loss of earnings he may have
suffered because of the discrimination against him.
BAKERY & PASTRY DRIVERS AND HELPERS UNION,
LOCAL No. 802, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL,
Labor Organization.
By-----------------------------------------------
(Representative ) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced,,or covered .by any other material.