Guy's Foods, Inc.

National Labor Relations Board - Board Decisions

May 18, 1966

158 N.L.R.B. 936 (N.L.R.B. 1966)

936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guy's , Foods, Inc. and American Bakery • and Confectionery
Workers International Union , AFL-CIO, Local Union No. 245
Guy's Foods, Inc. and American Bakery and Confectionery
Workers International Union, AFL-CIO
Guy's Foods, Inc. and American Bakery and Confectionery,
Workers International Union, AFL-CIO and Association of
Packers and Drivers Union
Guy's Foods, Inc. and American Bakery and Confectionery
Workers International Union , AFL-CIO, and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Joint Council 56, Jointly, Petitioners and
Association of Packers and Drivers Union . Cases Nos. 17-CA-
26O2, 17-CA-263 ,17-CA- 675, and 17-RC-4711. May 18,1966
DECISION AND ORDER
On January 7, 1966, Trial Examiner Joseph I. Nachman issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in, and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain ' affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices
and recommended that these allegations of the complaint be dis-
missed. In addition, the Trial Examiner found merit in certain
objections to the election filed in Case No. 17-RC-4711 and recom-
mended that the election be set aside. Thereafter, the Charging
Party filed exceptions to the Trial Examiner's Decision together with
a supporting brief, the Respondent filed cross exceptions and an
•answering brief, and the Party of Interest also filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified below.'
1 The Trial Examiner found that Supervisor Caldwell 's statement to employee Seal to
the effect that if Seal were half a man, Seal would have told Caldwell that representatives
of a rival union also attended and spoke at what Caldwell believed to be a meeting of the
158 NLRB No. 89.
GUY'S FOODS, INC. 937
[The Board adopted the Trial Examiner's Recommended Order.] 2
incumbent union only , violates Section 8(a) (1) of the Act. In view of the numerous
other violations of Section 8(a) (1) of the Act in which the Respondent engaged, we deem
it unnecessary to pass on this finding which, in any event, is merely cumulative and does
not affect our Order . In view of the findings made.and the Order entered, Member
Brown finds it unnecessary to pass on Respondent ' s checkoff of dues as part of the
8(a) (2) conduct herein.
In his Conclusions of Law, the Trial Examiner inadvertently failed to find that the
Respondent, by interfering with , assisting , and contributing support to the incumbent
union , had violated Section 8 ( a)(2) of the Act. We hereby correct the Trial Examiner's
Conclusions of Law accordingly.
2 The address and telephone number for Region 17, appearing at the bottom of the
Appendix attached to the Trial Examiner 's Decision , is amended to read: 610 Federal
Building, 601 East Twelfth Street, Kansas City, Missouri, Telephone No. FR4-5282.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act,
herein called the Act, involves three complaints , which have been consolidated for
hearing and decision , and the Board 's order of June 18 , 1965, directing a hearing
on certain issues involved in the representation proceeding , and that such hearing
be consolidated with the unfair labor practice proceeding .' In substance , the three
complaints alleged that Guy's Foods , Inc., herein called Respondent or Company,
at various times threatened employees with loss of employment and other reprisals
if they continued their activity in support of American Bakery and Confectionary
Workers International Union, AFL-CIO , herein called Bakery Workers or
Petitioner, or if they selected Bakery Workers as their representative ; assisted,
contributed support to, and interfered with the administration of Association of
Packers and Drivers Union , herein called Association or Intervenor ; granted a wage
increase during the pendency of the representation proceeding for the purpose of
influencing the choice of a bargaining representative ; and discriminatorily dis-
charged Ina Faye Richardson because of her assistance to and support of Bakery
Workers. In the representation proceeding , the issue is whether by conduct
allegedly similar to and closely connected with the events involved in the unfair
labor practice cases, Respondent engaged in conduct affecting the results of an
election on May 5.2
Pursuant to notice , a hearing was held before Trial Examiner Joseph I. Nachman
at Kansas City, Missouri , on July 20 and 21, and at Wichita , Kansas , on July 22,
1In Case No . 17-CA-2602, the complaint issued March 9 , based on a charge filed Jan-
uary 15. In Case No. 17-CA-2632, the complaint issued April 9, based upon a charge
filed March 10, amended April 8. In Case No . 17-CA-2675 , the complaint issued July 2,
based on a charge filed May 6 . All dates mentioned are 1965 unless otherwise stated.
2 The chronology of events in the representation proceeding are:
February 26 --------------- Petition filed jointly by Bakery Workers and Teamsters'
Joint Council No. 56.
April 1 ___________________ Decision and Direction of Election
April 12 ------------------- Request for Review filed with the Board.
April 14__________________ Supplement to Request for Review filed.
April 23__________________ Board denies Request for Review as raising no substan-
tial issues warranting review.
May 5____________________ Election held . Tally of ballots disclosed that of ap-
proximately 470 eligible voters , 398 valid ballots were
cast. Of these 127 votes were for the Petitioner;
257 for Intervenor ; 5 against any participating labor
organization ; and 9 challenged ballots.
May 7____________________ Objections to conduct affecting the results of the election
filed by Bakery Workers.
June 2-------------------- Regional Director ' s Report on Objections.
June 8-------------------- Respondent 's Exceptions to Regional Director 's Report
on Objections and Recommendations.
June 18 ------------------- Board directs hearing on the issues raised by the
Objections.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all parties being represented by counsel and afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce relevant' and material evi-
dence, and to argue orally on the record. Oral argument was waived. Briefs
submitted on behalf of the General Counsel, Respondent, Bakery Workers, and
Association, respectively, have been received and duly considered.
Upon the entire record in this case,3 including my observation of the de-
meanor of the witnesses, I make the following:
FINDINGS OF FACT 4
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background
Respondent is engaged in the production and wholesale distribution of potato
chips, packaged nuts, and related products. Its principal office and plant is at
Kansas City, Missouri, with branch plants and distribution centers in various
Midwestern cities. Total employment is somewhat under 800, with about 150
excluded from the unit as supervisory, managerial, or for other reasons. In
December 1956, the Board certified Association, the Intervenor in the present
representation, proceeding, as the representative of all Respondent' s employees,
including route salesmen .5 In the years following this certification, Respondent and
Association entered into successive contracts, including one on March 7, 1963,
which was effective from February 15, 1963, to and including February 14, 1965,
and thereafter from year to year unless terminated by prescribed notices On
November 27, 1964, Association gave Respondent appropriate notice terminating
the then current contract, and requested negotiations for a new agreement. Through
counsel, Respondent indicated its willingness to negotiate as requested, but sug-
gested that such negotiations not be commenced prior to December 15, 1964.
On December 10 and 14, 1964, certain affiliates of Bakery Workers filed three
representation petitions seeking certification as the representative of separate units
of Respondent's employees at its Wichita, Kansas City, and Omaha plants. Asso-
ciation intervened. After a hearing, the Regional Director concluded for rea-
sons stated in his decision of February 5, that the only appropriate unit was one
which included substantially all employees of the employer, and dismissed each of
the aforementioned petitions. While these petitions were pending, Bakery Workers
filed a charge in Case No. 17-CA-2602 on January 15, alleging that Respondent
discharged Ina Faye Richardson on December 29, 1964, because of her support
of Bakery Workers. Respondent received a copy of this charge on January 19.
Following dismissal of the aforesaid petitions, Respondent and Association nego-
tiated for a new contract, but the period of such negotiations is not clear from the
.record. - It does appear, however, that on February 14, they executed a new
agreement effective "from February 15, 1965, to and including May 1, 1968," and
thereafter from year to year, unless terminated by prescribed "notice? The agree-
ment of February 14 contained the following provision:
It is understood that this agreement must be submitted to the membership
of the Union for approval. If this agreement is not approved by the member-
ship it shall terminate upon notice to the Company by the Union of such
3 The General Counsel by motion filed with me on September 7, and duly served on all
parties in interest (a copy of which I have marked "Trial Examiner's Exhibit 1," and
filed with the record), moves for the correction of the transcript of evidence in 32 par-
ticulars set forth in said motion. No opposition to this motion has been received. My
examination of the transcript of evidence convinces me that the corrections requested by
General Counsel are proper, and said motion is now granted in its entirety
+ No issue of commerce or labor organization is presented. The complaint alleges and
the answer admits the facts which establish these matters I find the facts as pleaded.
No issue is raised in the instant proceedings with respect to the unit involved
s Excluded from the unit were office-clerical employees, route supervisors, and all statu-
tory exclusions
e This contract covered all employees of Respondent in the aforementioned unit. A
modification of this contract, with respect to rates of pay, was effectuated as of Febru-
ary 15, 1964.
7 The agreement also provided for reopening at stated times with respect to wages and
certain fringe benefits The agreement also incorporated by reference certain provisions
of the old contract, particularly those with respect to recognition and the scope of the
unit. On March 1, the parties executed a supplement to this agreement, the terms of
which are not here material.
GUY'S FOODS, INC. 939
action by the membership. Wage increases shall be effective on February 15,
1965, but shall not be paid until the Union notifies the Company that this
agreement has been approved.
With respect to union security, the 1963 contract provided that employees
who were members of Association when the contract became effective, be required
to remain a member as a condition of continued employment, and that employees
who were not members when the contract became effective, and new hires after
the contract became effective, should become and remain members after 30 days
from the effective date of the contract or after the date of hire in the case of new
employees. The 1963 contract further provided that in those States where the
aforementioned provisions may not lawfully be enforced, employees who do not
acquire or maintain such membership within the 30-day period should pay to
Association a monthly service charge; the service charge for the first month to be
,an amount equal to Association's usual monthly dues and initiation fees, and in
months thereafter, Association's usual dues. The agreement executed February 14,
1965, provided for incorporation of the provisions of the 1963 contract, except to
the extent specifically modified. Among the modifications in the 1965 agree-
ment, was - a provision that the Company would "at the time of hire" notify
each "new employee of his obligation, where such exists, or right to become a
member of [Association]" after 30 days and provide such employee with a check-
off card and application for membership form, to be supplied by Association.
Caldwell admitted that dues to Association were checked off from the wages of all
employees in the unit since 1956, and that no charge was made with the, execution
of the 1965 agreement, or thereafter.
On February 26, Bakery Workers and Teamsters Joint Council No. 56, jointly,
filed the petition which initiated the representation proceeding currently before the
Board . Respondent admits that it received a copy of said petition on March 2.
B. The current facts
1. The processing of the representation case
Respondent and Association , the latter having been permitted to intervene in
the proceeding , urged dismissal of the petition in the pending representation case,
contending ( 1) that the collective -bargaining agreement , executed February 14, con-
stituted a bar to the petition ; ( 2) that as a matter of policy, Respondent and the
Intervenor should be entitled to a 6-month period from the dismissal of the pe-
titions filed in December 1964, before the Board entertains another petition; (3)
that Respondent and the Intervenor should be given "no less than a 60 day insu-
lated period" to negotiate a contract to replace the one expiring on February 14;
and (4 ) that the joint petitioners had no intention of bargaining jointly. On
April 1 , the Regional Director issued his Decision and Direction of Election, which
discussed and rejected each of aforementioned contentions. With respect to the
contract bar question , the decision states:
White it [the contract ] is, by its terms to be effective February 15 , 1965, it
also specifically provided for its ratification by the membership of the
[Association ] and notification of the employer to this effect . . . it appeared
from the record that such ratification has not taken place, either prior to the
filing of the instant petition on February 26, 1965, or even prior to March 18,
the date of the hearing in this matter . The law is clear that where , as here,
the contract itself makes prior ratification by the membership a condition prec-
edent to contractual validity, the failure to secure ratification renders the
document no bar to an election. Appalachian Shale Products Co., 121 NLRB
1160 . Moreover it is noted that the Employer and the [Association] found
it necessary on March 1, 1965, to enter into a Memorandum of Clarification
concerning the February 14, 1965, agreement.
On April 12, Respondent filed with the Board a request for review of the aforesaid
Decision and Direction of Election which , in substance , urged the Board to sustain
the contention advanced before the Regional Director in support of the motion to
dismiss the petition . On April 23 , the Board denied the request for review because
"it raises no substantial issues warranting review." The election directed on April 1,
was held May 5, with the results stated supra, footnote 2.8 It is in the context of
8 As the objections to the results of the election are based in part, on conduct also
alleged to be violative of Section 8(a) (1), the details thereof, to the extent applicable,
will be set forth in the section of this Decision dealing with such alleged violations.
Additional facts, to the extent necessary, will be discussed separately.
940 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
these events that the 8(a)(1), (2), and (3) allegations of the complaint must be
considered
2 Organizational events at the Wichita plant
Interference , restraint, and coercion
As heretofore stated, since 1956 Association has been the certified and recognized
representative of Respondent's employees in a multiplant unit In November 1964,
when the then current contract between Respondent and Association was about
to expire, Bakery Workers began its campaign to organize Respondent's employees
This effort appears to have had its inception with the employees in the Wichita
plant Among the Wichita employees who assisted Bakery Workers in this effort
were Paul Sea19 and Ina Faye Richardson During the latter part of November
1964, Seal asked Kenneth Caldwell, Sr, general manager of the Wichita plant,io
to close down operations early to permit night shift employee,, to attend a union
meeting the following Tuesday Caldwell assumed that Seal meant a meeting of
Association, and after posting a notice on the bulletin board to ascertain the wishes
of the employees, agreed to and did suspend operations earliei than usual on the
particular day to permit attendance at the meeting The union meeting referred
to was called, apparently by Seal, as a meeting of Association, but representatives
of Bakery Workers were invited to, and did attend and speak at said meeting The
following day, Caldwell having admittedly learned that Bakery Workers had a
part in the union meeting the preceding night, sought out Seal and told the latter
that if he (Seal) had been half a man he would have told Caldwell what was
going on 11 A week or so later, Caldwell told employee Golden, referring to Seal,
"I would fire him but I don't have any reason" to do it 12
Following the aforementioned union meeting, Doyle Alexander, an admitted
supervisor, sought out employee John Peques, and asked the latter what the union
meeting the previous night was about Peques replied that he did not think
Alexander should know Several weeks later Alexander asked Peques if he had
signed a card for Bakery Workers When Peques admitted he had, Alexander
stated that because of the Union (Bakery Workers), and the cards, no one was
going to get a Christmas bonus 13
About mid-December, employee Ina Faye Richardson had two conversations
with admitted supervisors, concerning the Union In the course of the first conver-
sation with Supervisor Rolfe, the latter told Richardson, in the presence of other
employees, that she (Rolfe) did not want her Christmas bonus taken away because
of the Union Later that day, Supervisor Alexander asked Richardson if she
thought the CIO could help her A few days later Rolfe appioached Richardson
at her duty station, and told the latter that if she wanted a raise she should have
gone to Plant Manager Caldwell "instead of bringing in anothei Union " 14
3 The discharge of Richardson
On December 30, Richardson was discharged by Kenneth Caldwell, Sr, under
circumstances which are not in serious dispute, and which may be summarized as
follows On December 29, after working about 3 hours, Richardson became ill
and received peimission to go home She ieturned to work on December 30,
and after working 81/4 hours, again became ill, clocked out, and went to the front
lounge to wait for two other employees to finish work, so she could get her ride
home When Richardson clocked out, production had ceased, but there remained
the work of cleaning the machine 15 While Richardson was in the lounge waiting
O Seal was at the time vice president and senior shop steward for Association's
Wichita local
1U Kenneth Caldwell Sr, is a brother of Guy Caldwell president of Respondent
corporation
n Based on the credited testimony of Seal and the admission of Caldwell The latter
testified that while he did not recall making such a statement to Seal, "I probably did '
12 Based on the credited and iuncontradicted testimony of Golden Caldwell testifying
after Golden, did not deny the statement
is Based on the credited and uncontradicted testimony of Peques
14 Based on the credited and uncontradicted testimony of Richardson
15 Employees doing the work Richardson was assigned to work in crews of four to a
machine It is the duty of the entire crew after production is finished to clean their
machine However the cleanup work can be performed by less than the entire crew
GUY'S FOODS, INC. 941
for her ride, Caldwell came in and asked her what she was doing sitting on
"butt." 16 When Richardson stated that she was not feeling well, Caldwell told
her that if she did not feel better the following day, not to come to work. Cald-
well then went into the plant, but admittedly returned in a few minutes and dis-
charged Richardson. According to Richardson, Caldwell told her, "Hell, I am
sick of fooling with, you and don't come back to work no more." According to
Caldwell he told Richardson, "we wouldn't need her any more." 17
Richardson had' worked for Respondent a little over 19 months. She was, from
the start of the movement, among the employees who sought to have Bakery
Workers established as the bargaining representative of the employees, at least in
the Wichita plant, and solicited authorization cards on its behalf. That her pro-
Bakery Workers' sympathies were known to Respondent is clear from her conver-
sations with Supervisors Rolfe and Alexander. Moreover, even Caldwell admitted
that he knew generally of the activity on behalf of Bakery Workers, and had he
been called on to prepare a list of its supporters, his list would have included
Richardson. Except to the extent hereafter mentioned, Richardson's work perform-
ance was not questioned.
Caldwell testified that Richardson's conduct in the plant had necessitated his
warning her that another offense would result in her discharge. In support of
this, Caldwell referred to the details of the following three incidents:
1. In the late spring or early summer 1964, another employee (Jones), reported
to Caldwell that Richardson was throwing potatoes into a bin in such a manner
that Jones "could possibly get hit with them." Caldwell talked with Richardson
about this matter and according to Caldwell, Richardson explained she had not
realized that what Jones feared might in fact occur, and promised Caldwell that
it would not happen again.18 According to Caldwell, sometime in June, Jones quit
saying she could not work under such conditions. At the time Jones quit, Caldwell
said nothing to Richardson, nor does he claim to have made any investigation to
determine whether Richardson's conduct caused Jones to quit.
2. Apparently in mid or late summer, according to Caldwell, he went into the
plant to see about a commotion that he heard, and observed a group of employees
standing around watching Richardson who had a bag of potato chips in each hand,
swinging her arms wildly and laughing; that Richardson, replying to his request for
an explanation, stated that one of the employees had told her a funny story; that
he called Richardson into the office and reprimanded her for disrupting production
and told Richardson that this was her second reprimand, and that if it became
necessary to speak to her again, she would be terminated. Richardson denied that
this incident occurred, or that she was reprimanded on this occasion by Caldwell.
In the view I take of this case, it is unnecessary to resolve this conflict.
3. On December 30, the day of Richardson's discharge, according to Caldwell,
he was informed by Supervisor Rolfe, that when Richardson reported for work that
day she asked to be assigned to a particular crew because she was sick, and that
she (Rolfe) had told Richardson that if she was sick she should clock out, but
that Richardson had insisted she was able to work the full shift; that after being
away from the plant for 3 or 4 hours, he (Caldwell), returned to find Richardson
at the timeclock, checking out; observing that other employees in the crew to
which Richardson has been assigned were still working, he asked Richardson why
she had clocked out, and after Richardson stated she was ill, he told that if she
were sufficiently well to work 8% hours, she should be able to work the additional
30 minutes or so that was required to clean the machines. Caldwell admits that
at this time, he told Richardson that if she did not feel well the next day, not to
come to work. According to Caldwell, he then went out to the plant and thought
about the two occasions that he had reprimanded Richardson, and his warning to
her that if a reprimand ever again became necessary she would be discharged;
that he then concluded that fairness to the other employees required that Richard-
son be terminated, and that he then returned to the lounge where Richardson was
waiting, and discharged her.19
1e Caldwell admitted that he asked Richardson why she had clocked out, but Aid not
deny using the language Richardson attributed to him.
17 If Caldwell meant by his testimony to deny that he used the language attributed to
him by Richardson , I find it unnecessary to resolve such conflict.
18 Richardson admits this conversation with Caldwell.
18 At the hearing , Respondent amended its answer to aver, and the General Counsel
admits, that on July 7, Richardson was offered unconditional reinstatement to her former
position , which she accepted , and that it was agreed that she would return to work on
July 26.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Subsequent 8(a)(1) activity at Wichita
During work on January 14, employee Paul Seal told Plant Manager 'Caldwell
that he (Seal) was being subpenaed by Bakery Workers to attend the hearing on
January 15, in the 'representation cases then pending, and which were thereafter
dismissed, and sought permission to be absent from work and obey the subpena.
Caldwell asked to see -the subpena. At the time Seal had not yet received the
subpena, but promised to bring it to Caldwell's home that evening.
Sometime after 9, p.m. Seal received the subpena and went to Caldwell's home
to show it to him. When Seal exhibited the subpena, Caldwell asked Seal "how
[he] got mixed up in this [union] business." Later in the conversation Caldwell
told Seal that he evidently did not know what the word "no" meant, and added
"You know, if this Union don't go through you are not going to work for me
any more." 20
5. -Events at Kansas City on March 4 and 5
As above stated, Respondent and Association executed a contract on February 14,
to replace the contract expiring on February 15. The new contract contained the
provision quoted supra, p. 4, with respect to ratification and payment of the wage
increases therein provided. On February 26, the joint representation petition by
Bakery Workers and Teamsters, resulting in the election involved, was filed, and
a copy thereof was admittedly received by Respondent on March 2.
On March 4, employee Bernardi, then president of Association, received a tele-
gram signed by Harold Richter, International representative of Bakery Workers,
reading:
ANY ACTION TAKEN ON CONTRACT NEGOTIATIONS AFTER FRI-
DAY, FEBRUARY 26, 1965, IS ILLEGAL AND WILL RESULT IN
UNFAIR LABOR CHARGES.
The following morning, in the presence of a number of employees, Bernardi, who
was then on her way to the coffee shop, asked Guy Caldwell for permission to
put the telegram on the bulletin board where Association material was occasion-
ally posted. Caldwell gave his permission, but then followed Bernardi into the
coffee shop and asked to see the telegram. After reading it, Caldwell told Ber-
nardi she could not post it on the bulletin board "because it wasn't true." Bernardi
explained that her reason for wanting it posted was that she had received a number
of calls about the telegram from fellow employees who insisted it was union busi-
ness and that they should be advised of it. Caldwell adhered to his decision that
the telegram could not be posted, and told Bernardi that if she received any other
material relating to the employees' jobs, she should advise him (Caldwell), or
fellow employee Maggie Sandifer, about it 21
On March 4 or 5, certain employees favorable to Association circulated a peti-
tion among the employees asking Respondent to permit a meeting of employees at
the plant to consider the contract which Respondent and Association reached on
February 14. The petition was circulated principally by Sandifer. The latter's
testimony makes it clear that the petition was circulated on company property,
and to some extent on company time, although in the main during nonwork hours.
In any event, there is no evidence to establish that Respondent instigated the
petition, or was aware of its existence until it was presented to Guy Caldwell on
March 5. As a result of this petition a meeting was held in Caldwell's office on
March 5, attended by employees Inna Adams, Maggie Sandifer, Lucille Bernardi,
Loral Michaels, Lovelle Smith, Bob Murphy, and Charles Thompson , as well as
by Management Representatives Guy Caldwell, his wife Frances Caldwell, and his
brother Newell Caldwell. While the evidence is conflicting as to some of the
events at this meeting, I find it unnecessary to resolve such conflicts because there
are admitted events to furnish a sufficient basis for decision.
Based on the credited and uncontradicted testimony of Seal Caldwell. although
testifying for Respondent , did not deny this statement.
m Based on the credited testimony of Bernardi . Caldwell admitted that he first gave
Bernardi permission to put the telegram on the bulletin board, and later revoked this
permission . Caldwell explained that his reason for revoking the permission he had given
was that Bernardi had represented that the telegram was from the Board, and that he
subsequently learned that statement was not a fact. Caldwell did not deny that he read
the telegram, or that he told Bernardi that in the future matters of such nature should
be reported to him or to Sandifer.
GUY'S FOODS, INC. 943,
According to Lucille Bernardi, the meeting opened with Caldwell stating that'
he wanted to get the contract negotiated with Association, ratified and out of the
way. When Bernardi stated that as president of Association she was unable to do
anything about the contract because of the telegram she received from Bakery
Workers, Caldwell replied that the telegram was untrue and directed his office girl
to place a call to Barker, attorney for Association. Bernardi testified that when
the call came through, Caldwell went into an adjoining room, and after a period
of time returned and said that Barker wished to talk with Bernardi 22 While the
employees were waiting for the call to Barker to go through, both Caldwell and'
his wife talked to the employees. Mrs. Caldwell, speaking to the employees gen-
erally, stated that for their education and qualifications they were "making plenty
of money"; that they should "get this over with and think about getting money
into profit sharing"; that the "people that aren't happy that don't do anything but
cause trouble, why don't [they] quit." Then directing her remarks to Bernardi,
Mrs. Caldwell said, "There are plenty of jobs. Get your husband to get you a
job." When Bernardi replied that she was happy, Guy Caldwell stated, "Don't sit
there and lie to me. If you are so damned innocent, why were you at that hear-
ing." 23 Bernardi explained that she attended the hearing because she was told that
she would be subpenaed.. To employee Bob Murphy, Mrs. Caldwell said, "If you
are dissatisfied you should get yourself another job someplace else. You might as
well start looking someplace else." 24 It was at this point that Guy Caldwell was
informed that his call to Barker had been completed, and after talking to the
latter for some undisclosed period of time, Caldwell told Bernardi that Barker
wished to talk with her. Bernardi informed Barker that she regarded a meeting
of Association that afternoon as improper, because no notice thereof had been
given the employee members. According to Bernardi, Barker told her that such
a meeting would not be improper.25 Returning to the room where the employees
and the Caldwells were, Bernardi was told by employee Sandifer that she (Ber-
nardi) was "outnumbered," that the people wanted a meeting that afternoon.
Caldwell admits that at this point he granted permission for a meeting of the
employees to be held that afternoon.
The events transpiring at the meeting of employees during the afternoon of
March 5, are in dispute , but again I find it unnecessary to a decision that such
conflicts be resolved . There is no dispute about the fact that the meeting convened
about 1 p .m., in what may best be described as a warehouse building owned by
Respondent , located across the street from the main plant where most , if not all
the production employees work . Also undisputed is the fact that Guy Caldwell
directed that plant operations be suspended to enable the employees to attend the
meeting, and that employees were paid for the time they were in attendance at
such meeting . It is also conceded that this was the first occasion that a union
meeting had been held during working hours. At least one witness testified that
when she reported for work about 1:30 p .m., Supervisor Newell Caldwell directed
her to punch in and go across the street to the meeting .26 It is undisputed that
after the meeting convened in the warehouse , some 20 to 25 employees , apparently
dissatisfied with what was going on, left the meeting and returned to their respective
22 Caldwell admitted that the meeting was held in his office . He testified that the
employees asked for permission to hold a meeting of Association on company property,
and that he agreed if his counsel and counsel for Association , approved. He admitted
that he placed a call to Barker , but claimed that he did so at the request of employee
Adams, to find out if a meeting of Association could legally be held . Caldwell testified
that he discussed nothing with Barker , simply telling the latter that Bernardi wished to
speak with him. It is significant that although Caldwell claimed he agreed to the requested
meeting if approved by his attorney , he did not testify that he communicated with his'
counsel about the matter.
23 This reference was to the hearing on January 15, in the prior representation case
dismissed by the Region.
s4 Mrs. Caldwell did not testify. Guy Caldwell admitted that Mrs . Caldwell, first
addressing the employees generally , and then specifically addressing Murphy , stated that
if the employees were unhappy, they could seek employment elsewhere. He also admitted
the conversation with Bernardi, but claimed such conversation related to the latter's
absence from work 2 or 3 days before I do not credit this explanation.
as Barker , who appeared as counsel for Association , did not testify.
26 Although the record shows Newell Caldwell was present in the hearing room, he was
not called as a witness and the foregoing testimony is undented
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duties in the plant. When they began work Guy Caldwell told them, "You better
go back over there and vote or else, and if you don't you will never have a chance
to vote again ." According to at least one witness, Guy Caldwell was "very angry"
at the time, and that his directive to return to work was "shouted." 27 These
employees then returned to the meeting and remained there to its conclusion. The
evidence is also uncontradicted that Plant Superintendent Bacon and Supervisor
Newell Caldwell told these employees to go back to the meeting and vote.
About a week following the aforementioned meeting of March 5, the evidence
shows two instances of employee interrogation and threats by supervisory person-
nel. Thus, Plant Superintendent Bacon told employee Cameron that if he voted
for Bakery Workers, "you might not get any overtime." The same day Bacon told
employee Hamilton that he had "definite information" that Hamilton was passing
out union cards, and added that "if the ABC Union got in that would really mess
the plant up; [there] wouldn't be any more overtime." 28
6. Other events prior to the election
Following the Direction of Election on April 1, and the Board's denial of
Respondent's request of review on April 23, the election among Respondent's
employees was scheduled for May 5. Immediately prior to the election Respondent
engaged in conduct at its Kansas City and Wichita plants allegedly violative of
Section 8(a)( I) and affecting the results of the election.
a. At Kansas City
On May 3, Soloman, an admitted supervisor, asked employee Pardoe, who was
wearing a Bakery Workers badge, whether she was going to vote for Bakery
Workers, adding, "If you had a lick of sense you would take the ABC sticker off
and put a Packers and Drivers Sign on." Later that day, Soloman asked Pardoe
if the latter knew "how the rest of the people were voting." Pardoe replied that
she knew how some employees would vote, but would not give this information
to Soloman. Also, about the same period Soloman asked employee Mealy why
the latter was wearing an ABC button instead of an Association button, and asked
"Why do you hate the Company?" When Mealy replied that she had nothing
against the Company, that it was simply a matter of money, Soloman added, "Oh,
no, its [sic] better to be loyal; loyalty is better than money." 29
b. At Wichita
A week or two prior to the election, Supervisor, Rolfe told employee Thompson
that she thought Caldwell would sell out or close the plant if ABC came in, and
that the employees would probably lose their overtime. Just prior to the election
Rolfe also, after asking employee Thompson if he was trying to put the Company
out of business, took an Association badge which she had been wearing, and
pinned it on Thompson 30
Guy Caldwell admitted that on May 4, he transported from Kansas City to
Wichita, a package of hand-lettered signs reading "Vote for Packers and Drivers
97 Caldwell admitted that when these employees left the meeting and returned to the
plant, he told them ". . . the meeting was to be held and they had an opportunity to
vote; if they wanted to vote they should go across the street." Although Caldwell would
not admit that he was angry when he made this statement, he did admit that he "was
excited," and that he spoke "loudly" because he wanted the employees to know that they
had the opportunity to vote if they wished to do so. As I have stated, I do not regard
the conflict as sufficiently material to require resolution.
28 Based on the credited and uncontradicted testimony of Cameron and Hamilton Bacon
did not testify. Hamilton also gave testimony regarding an alleged conversation with
Supervisor Newell Caldwell. I find his testimony regarding this incident confusing, and
for that reason make no findings with regard thereto.
2D Based on the credited and uncontradicted testimony of Pardoe and Mealy.
3OThe incidents above found involving Thompson and Rolfe, are based on credited and
uncontradicted testimony of Thompson. Thompson also testified that just prior to the
election Supervisor Alexander told him that Caldwell would sell the plant if ABC came
in. This testimony came in only as the result of the General Counsel's leading questions,
and for that reason I make no findings with respect to that incident.
GUY'S FOODS, INC. 945
Union." Although Caldwell testified that he was not aware of what was in the
package when he transported it to Wichita, he 'admitted that he discovered the
nature of the material-when he reached Wichita, and that he then gave the signs
to his brother Kenneth Caldwell, Sr., to distribute among the _ employees. Guy
Caldwell also admitted that on May 4, he permitted Helen Fraley, a supervisory
employee at the Wichita plant, to wear one of said signs for about 2 hours.
Employee Draper asked Fraley, while the latter was wearing the sign, why she
did so when she was not a member of Association. Fraley replied that Caldwell
told her she could wear it. The evidence shows that Kenneth Caldwell, Jr., an
admittedly supervisory employee, also wore one of these signs in the plant on
May 4, that he told employee Tibbits to get some of the signs and distribute them
in the plant, and pinned two of the signs on Tibbits' back 31
7. The election
At the Kansas City plant, certain employees of Respondent acted as election
observers on behalf of Association and Bakery Workers, respectively. Respondent
concedes that on May 14, the next regular payday, it paid the observers on behalf
of Association for their time so spent, but observers on behalf of Bakery Workers
were not paid for such time until May 27. The payroll clerk testified that the
failure to pay the Bakery Workers' observers was not intentional, but arose because
those employees did not punch the timecards,, and for that reason she assumed
they had not worked, but when the facts were brought to her attention they were,
except in one instance, paid the next payday.32 There is no evidence to refute
the testimony of the payroll clerk that the failure to pay the observers for Bakery
Workers on May 8 was other than an inadvertence 33
8. Events subsequent to the election
As heretofore stated, the contract between Respondent and Association executed
February 14, provided for wage increases retroactive to February 15, when the
contract was ratified.34 By letter dated June 14, counsel for Association advised
counsel for Respondent that the contract negotiated and signed February 14, "has
now been wholly ratified by the membership of the Packers & Drivers Union," 35
and in view of that fact demanded that said agreement "be signed and the wage
increases negotiated be paid." By letter dated July 6, Respondent's counsel advised
counsel for Association that as it felt bound by the obligations it assumed in the
aforementioned contract, the increased rates of pay would be made "effective at
once," and that the retroactive wages would be paid as soon as the payroll office
could do so. Such payments were in fact made on July 9, for those employees
paid out of Kansas City, and a week later for those paid out of Wichita.
31 Based on the admissions of Guy Caldwell, and the evidence of Draper and Tibbits.
Neither Fraley nor Kenneth Caldwell, Jr., testified.
33 The one instance was in the case of employee Elva Jones who, when the other em-
ployees were paid, was on sick leave and had not returned to work at the time of the hear-
ing. The testimony of the payroll clerk is that when Jones returns to work she will be
paid for the time spent as an election observer.
33 In addition to the foregoing, Bakery Workers contends that in view of the events
preceding the election, all as set forth above, the election of May 5 should be set aside
because (1) the polling booths were set up in close proximity to the timeclock where em-
ployees received employer election propaganda that morning, and in an open work area
close to the coffee shop, where supervisors went during the voting; and (2) the inside
of the polling booth which was only partially covered by cardboard could be observed
from a catwalk The uncontroverted testimony is that all of these objections were
called to the attention of the Board's agent in charge of the election, and that the Board
agent found it unnecessary to take steps to cure the aforementioned objections. How-
ever, I deem it unnecessary to make findings with respect to these allegations, because
for other reasons hereafter set forth, I conclude that the election of May 5 should be
set aside. -
33 The contract provision is quoted, supra.
36 The testimony, in conclusionary form, is -thatl such ratification was on May 12 The
testimony, however, does not show the circumstances under which such alleged ratification
took place, nor the facts upon which such conclusion is based.
221-731-67-vol. 15R 61
946 DECISIONS 01, NATIONAL LABOR RELATIONS BOARD
H. CONCLUDING FINDINGS
On the foregoing facts, I find and conclude that Respondent violated the Act
in the following particulars:
A. The independent 8(a) (1) violations
(1) Kenneth Caldwell's statement to Seal that if the latter were half a man he
would have told Caldwell that the meeting in late November 1964 was not a
meeting of Association, as well as the statements immediately thereafter by Super-
visors Rolfe and Alexander to employees Peques and Richardson, as set forth in
section 1, B, 2, above.
(2) Kenneth Caldwell's statement to Seal, set forth in section I, B, 4 above,
that Seal would not be working for Respondent if Bakery Workers did not become
the representative of the employees.
(3) The statements by Guy Caldwell and his wife at the meeting in Caldwell's
office on March 5, to the effect that employees who were not happy should quit
or get another job, as well as Caldwell's statement to Bernardi concerning the
latter's assistance to Bakery Workers, all as set forth in section I, B, 5, above.
(4) The statements to employees Pardue and Mealy by Supervisor Soloman, as
set forth in section I, B, 6, above.
(5) The statement of Supervisor Rolfe to employee Thompson that she thought
Caldwell would sell the plant if Bakery Workers got in, and that in that event,
the employees would probably lose their overtime, as set forth in section I, B, 6, b,
above.
(6) The wearing of Association badges in the plant by Supervisors Kenneth
Caldwell, Jr., and Helen Fraley, and the pinning of Association badges on employ-
ees Thompson and Tibbitts, by Supervisors Rolfe and Kenneth Caldwell, Jr., as
set forth in section I, B, 6, b, above.
(7) By placing into effect on July 9 and 16, the wage increases provided for in
the agreement of February 14, retroactive to February 15, as set forth in section
II, B, 8, above. Although these increases were made effective after the election,
and allegedly because of Respondent's contract obligation, the fact remains they
were granted at a time when the objections to the election had been filed. In this
posture the possibility of a new election was real, and a wage increase at such a
time was no more than a reward to the employees for having rejected Bakery
Workers at the May 5 election, and an inducement to do so again should a new elec-
tion be held. See Northwest Engineering Company, 148 NLRB 1136, 1145.
B. The 8(a)(2) violations
Section 8(a)(2) of the Act, to the extent here material, makes it an unfair
labor practice for an employer "to dominate or interfere with the formation or
administration of any labor organization or contribute financial or other support
to it . . In giving effect to this statutory provision, the Board has consist-
ently held that an employer faced with conflicting claims of representation by
rival unions, has the obligation of maintaining absolute neutrality, and while an
employer may express his personal preference for one of the competing unions,
any conduct on his part which accords unwarranted prestige to one of the rival
unions, or which encourages or discourages membership therein, constitutes unlaw-
ful assistance violative of Section 8(a)(2) of the Act. Midwest Piping & Supply
Co., Inc., 63 NLRB 1060, 1069-1071.
The General Counsel urges that the Regional Director's dismissal, on Febru-
ary 5, of the initial representation petitions because the units sought were inappro-
priate, and the subsequent filing of the representation petition for the appropriate
unit in February 26, under the circumstances here present, put Respondent on
notice that a rival valid question concerning representation existed, and that its
conduct on March 5, and immediately preceding the May 5 election, as well as
by the wage increases paid July 9 and 16, retroactive to February 15, all as set
forth abov', Respondent breached its obligation of neutrality, and gave unwar-
ranted prestige to Association, discouraged membership in Bakery Workers, and
thereby violated Section 8 (a) (2) and (1) of the Act.
Respondent, on the other hand, urges that when the contract of February 14
was executed, it had no notice of, nor any reason to anticipate a rival claim of,
representation and was, therefore, legally entitled to contract with Association.
From this premise Respondent argues that assuming the correctness of the Re-
gional Director's decision, affirmed by the Board, that the contract of February 14,
GUY'S FOODS, INC. 947
was not a bar to the representation petition filed on February 26, it was nonethe-
less a valid contract which, under the Board's holding in Shea Chemical Corpora-
tion, 121 NLRB 1027, 1029, Association was entitled to continue administering
in accordance with its terms, and with which Respondent was required to comply,
even assuming that in doing so it violated Section 8(a)(1). The conduct urged
by the General Counsel to constitute unlawful assistance proscribed by Sec-
tion 8(a)(2), Respondent urges, relying on B. M. Reeves Company, Inc., 128
NLRB 320, to be no more than the usual cooperation normally expected to exist
between an employer and the duly designated representative of his employees.
It is quite true that when Respondent negotiated and signed the agreement of
February 14, it had no actual notice, nor were the facts sufficient to put in on
notice that Bakery Workers had any interest in the multiplant unit which the
Regional Director held to be the only one appropriate. For that reason, the
Board's Midwest Piping rule afforded no impediment to Respondent and Associa-
tion agreeing on contract terms. Had their agreement been ratified by Associa-
tion before February 26, when the petition by Bakery Workers was filed, Respond-
ent could have continued to deal with Association as the representative of its
employees. But as the Board held, by declining to review the Regional Director's
decision of April 1, the agreement of February 14 did not result in a binding
contract because the provision for ratification was not complied with prior to the
filing of the representation petition on February 26; indeed such ratification had
not occurred when the election was directed, or even when it was held. The
Board's holding in this regard, irrespective of my own opinion as to its correct-
ness, precludes me from giving any consideration to the question whether that
issue was correctly decided, as Respondent contends I should.36
Bound, as I am, by the Board's decision that the agreement of February 14 did
not result in a binding contract prior to the filing of the instant petition, and
notice thereof to Respondent, it follows that the rule of Midwest Piping, supra,
placed Respondent under the duty to refrain from giving assistance to Association,
or promoting the latter's prestige in the eyes of the employees. That Respondent
failed in this duty is clear on this record. Its efforts on March 5 to bring about
ratification of the contract with Association by permitting the latter to hold its
meeting on company property, during working hours, and paying employees for
the time so spent; urging employees to attend such meeting; checking of dues to
Association from the wages of its employees; distributing badges shortly before
the May 5 election, urging employees to vote for Association; permitting super-
visors to wear such badges in the plant, and the conduct of supervisors pinning
such badges on employees while they were at work; and other conduct heretofore
set forth in more detail, constituted that assistance to Association which is pro-
scribed by Section 8(a) (2) of the Act. I so find and conclude.37
C. The 8(a)(3) violations
It is, of course , settled law that an employer may, without violating Sec-
tion 8 (a)(3) of the Act , discharge an employee for any reason, or for no reason,
so long as the discharge is not for the employee 's concerted activity . The prob-
lem here is simply determining Respondent 's motive for discharging Richardson.
On the entire record , I find and conclude that Richardson was discharged on
December 30, 1964 , because of her assistance to and support of Bakery Workers,
S0 Section 102 67(f) of the Board's Rules and Regulations, Series 8 as amended (29 CF R
102.67(f)), providing for review of decisions made by Regional Directors in representation
cases, provides , in pertinent part*
Denial of a request for review shall constitute an affirmance of the regional direc-
tor's action which shall also preclude relitigating any such issues in any related sub-
sequent unfair labor practice proceeding.
87 The evidence, I find and conclude, does not support the contention by Bakery Work-
ers that Respondent's conduct constitutes domination requiring disestablisfiment of Asso-
elation, within the Board's rule stated in The Cartienter Steel Company, 76 NLRB^670, 673
Notwithstanding the refusal of the General Counsel to take any position on the question,
I have found and concluded, as contended by Bakery Workers that the checking off of
dues to Association, from the wages of employees, after March 2, constituted assistance
to the latter which is proscribed by Section 8(a) (2) of the Act I do not regard this
to be inconsistent with the theory of the case pleaded by the General Counsel; it is merely
an additional ground for reaching the same legal conclusion which the General Counsel urges.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and not, as claimed by Caldwell, because it became necessary to speak to her
for a third time about her improper work performance. I am persuaded to this
conclusion by the following factors.
1. The evidence'shows that Richardson was from the start of the organizational
activity by Bakery Workers, among the latter's active supporters in the Wichita
plant.
2. Respondent was aware of her sympathy for and support of Bakery Workers,
evidence the fact that she was interrogated, as set forth above, by supervisors as to
what benefit she thought Bakery Workers would be to her, and why she did not
go to Plant Manager Caldwell' with any complaint she might have, "instead of
bringing in another Union." Moreover, Plant Manager Caldwell admitted that he
was generally aware of the organizational activity by Bakery Workers, and if he
had to prepare a list of -its supporters, such list would include Richardson.
3. The events at the Wichita and Kansas City plant, both before -and after
Richardson 's discharge, leave no room for doubt that Respondent was opposed
to Bakery Workers as- the representative of its employees.
4. Although Caldwell claimed that the immediate cause of Richardson's dis-
charge on December 30 was her failure to work with her crew until the cleaning
of the machines had been completed, it is significant that he did not so state to
Richardson when he spoke to her in the lounge. On the contrary, his only state-
ment to her at that time was that if she did not feel well the next day, not to
come to work, thus plainly indicating that at that point he did not regard her con-
duct such as to warrant reprimand or discharge. Caldwell admitted that after thus
speaking to Richardson, he went into the plant for a few minutes, thought about
the other two occasions that he had talked to her about her work, concluded that
fairness to his other employees required that she be terminated, and returned to
the employee lounge where he discharged her. In view of the fact that it had
been at least 4 months since he last spoke to Richardson about her work perform-
ance ; that the matter involved 'was not of the same nature as caused him to
speak to her on the prior occasions; that on the day in question production had
ceased when Richardson clocked out, and that Caldwell's only complaint could
have been that Richardson did not participate in cleaning the machines; and that
Caldwell did not so inform Richardson when he first spoke to her in the lounge,
I can only conclude that Richardson's failure to work until the machines were
cleaned was not the motivating cause of her sudden termination, but was a mere
pretext seized upon in an attempt to obscure the fact that Caldwell thought this
was the opportunity to rid himself of a strong supporter of Bakery Workers. I
so find and conclude.
Conclusions with Respect to the Objections to the Election
Having found that Respondent engaged in conduct proscribed by Section 8 (a)( I)
of the Act, most of which occurred during the "critical" period,38 it follows that
the election held on May 5 must be set aside. See Leas & McVitty, Incorporated,
155 NLRB 389, and the cases therein cited. Accordingly, it becomes unneces-
sary to decide whether the other conduct relied on by Bakery Workers, set forth
in section II, B, 8, above, affected the results of the election.
M. THE REMEDY
Having found that Respondent engaged in unfair labor practices as heretofore
set forth, it will be recommended that it cease and desist therefrom and take the
affirmative action set forth below, found necessary and designed to effectuate the
policies of the Act.
It having been found that Respondent interfered with, coerced, and 'restrained
its employees in the exercise of rights guaranteed to them by Section 7 of the
Act-one of the basic purposes the Act was designed to achieve-I conclude from
the totality of the proscribed conduct in which Respondent is found herein to
have engaged, that I shall recommend that Respondent be required to cease and
desist from in any manner interfering with, restraining, or coercing employees in
88 The critical period under Board rules is from February 26, the date the representa-
tion ,petition was filed, to the date of the election. See The Ideal Electric and Manufae-
turinq Company, 134 NLRB 1275. The only conduct found violative of Section 8(a) (1)
which did not occur during the critical period was the events in the fall of 1964, 'and
the wage Increases made effective in July.
GUY'S FOODS, INC 949
the exercise of rights guaranteed them by Section 7 of the Act NLRB v
Entwistle Mfg , Co, 120 F 2d 532 (CA 4), California Lingerie Inc, 129 NLRB
912, 915
Although I have found that Ina Faye Richardson was discriminatorily discharged
by Respondent on December 30, 1964, I do not recommend a reinstatement order
because , as the General Counsel concedes , Respondent has made a valid and un-
conditional offer of reinstatement to her I shall, however recommend that Rich-
ardson be made whole for any loss of earnings she may have suffered by reason
of the discrimination against her, by paying to her a sum of money equal to the
amount she would have earned between December 30, 1964, and the date of her
reinstatement , less net earnings during said period Backpay with interest at the
rate of 6 percent per annum shall be computed in accordance with Board policy
set forth in F W Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co, 138 NLRB 716 It will also be recommended that Respondent be
required to preserve and on request make available to agents of the Board all
records necessary or useful in computing the amount of backpay due, as herein
provided
It has been found that Respondent , as above set forth , intertered with the
administration of and contributed support to Association during the pendency of
a question concerning representation of its employees It is not possible to deter-
mine or evaluate the part Respondent 's assistance to Association played in the
results of the May 5 election , or the ratification of the contract , aftir the election
In order, therefore , to effectively remedy Respondent 's unfair labor practices, I
shall recommend that it be required to withdraw and withhold from Association
all recognition as the collective -bargaining representative of its employees, and
to cease giving any effect to the agreement negotiated with Association on Feb-
ruary 14, unless and until Association shall have been certified by the Board as
exclusive majority representative of Respondent's employees 39
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of Section 2 (2) of the Act,
and is engaged in commerce within the meaning of Section 2 (6) and (7) of the
Act
2 Association and Bakery Workers are labor organizations within the meaning
of Section 2(5) of the Act
3 By the conduct referred to in section II , A, paragraphs ( 1) through (7),
above, Respondent interfered with , restrained , and coerced its employees in the
exercise of rights guaranteed to them by Section 7 of the Act , and thereby engaged
in, and is engaging in, unfair labor practices within the meaning of Section 8 (a)( 1)
of the Act
4 By the conduct referred to in section II , B, above, Respondent interfered with,
assisted , and contributed support to Association, and thereby engaged in, and is
engaging in, unfair labor practices within the meaning of Section 8(a)(1) of
the Act
5 By discharging Ina Faye Richardson , under the circumstances and for the
reasons found in section If, C, above , Respondent discriminated against the tenure
of her employment , and the terms and conditions thereof, to discourage member-
ship in Bakery Workers, and thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) and ( 1) of the Act
6 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
7 Except to the extent that violations of the Act have been specifically found
herein , the preponderence of the evidence fails to establish that Respondent
engaged in other violations of the Act , and it will be recommended that the alle-
gations of the complaint to that extent be dismissed
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case , and pursuant to Section 10(c) of the National Labor
8' Bakery Workers, but not the General Counsel contends that as part of the remedy
Respondent and Association should be required to reimburse the employees for all dues
checked off from their wages I reject this contention because in my view a sufficient
predicate for such relief has not been established See NLRB v Local 60 United
Brotherhood of Carpenters (.Mechanical Handling ,Systems ) 365 U S 651
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, it is recommended that Respondent Guy's Foods, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with plant closure or loss of overtime if they assist
or support American Bakery and Confectionary Workers International Union,
AFL-CIO, Local 245, or any other labor organization.
(b) Discharging or threatening to discharge any employee because of assistance
to or support of the above -mentioned or any other labor organization.
(c) Granting wage increases to employees as an inducement to withhold assist-
ance to or support of the above-mentioned or any other labor organization.
(d) Coercively interrogating employees concerning their membership in, views
,about, or activities on behalf of, any labor organization.
(e) Discouraging membership in or activities on behalf of the above-mentioned
or any other labor organization of its employees , by discriminatorily discharging,
or otherwise discriminating against any employee in regard to the hire, tenure, or
any term or condition of employment.
(f) Assisting, contributing support to , or interfering with the administration of
Association of Packers and Drivers Union, or any other labor organization of its
employees.
(g) Recognizing or contracting with Association of Packers and Drivers Union,
as the collective -bargaining representative of its employees for the purpose of deal-
ing with it concerning grievances , labor disputes , wages, rates of pay, hours of
employment , or other conditions of employment , unless and until said labor organ-
ization has been duly certified by the National Labor Relations Board as the exclu-
sive representative of such employees.
(h) Giving any force or effect to its agreement dated February 14, 1965, with
Association of Packers and Drivers Union, or any extension, renewal, modification,
or supplement thereof, or to any superseding contract , unless and until said labor
organization has been duly certified by the National Labor Relations Board as the
exclusive representative of such employees; provided, however, that nothing herein
shall be construed as requiring it to withdraw, change, or abandon any of the terms
and conditions of employment currently enjoyed by its employees.
(i) In any other manner interfering with , restraining , or coercing employees in
the exercise of the right to self-organization, to form labor organizations, to join
or assist the aforementioned or any other labor organization , to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action found necessary to effectuate the policies
of the Act:
(a) Make whole Ina Faye Richardson for any loss of earnings suffered by her
during the period and in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to agents of the National Labor
Relations Board, for inspection and copying, all payroll records, social security
records, timecards, personnel records, reports, and all other records necessary or
useful in computing the amount of backpay due Ina Faye Richardson, as herein
provided.
(c) Withdraw and withhold all recognition from Association of Packers and
Drivers Union, as the collective-bargaining representative of its employees, unless
and until said labor organization has been certified by the National Labor Relations
Board as the exclusive representative of such employees.
(d) Post at each of its plants copies of the attached notice marked "Appen-
dix." 40 Copies of said notice, to be furnished by the Regional Director for Region
17 of the National Labor Relations Board (Kansas City, Missouri), shall, after
being signed by its authorized agent, be posted immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not altered, defaced, or covered
by any oth.. material.
"If this Recommended Order is adopted by the Board , the words , "a Decision and
C rder" shall be substituted for the words " the Recommended Order of a Trial Examiner"
In such notice . If 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 "a Decision and Order,"
the words "a Decree of the United States Court of Appeals, Enforcing an Order."
GUY'S FOODS, INC 951
(e) Notify the aforesaid Regional Director, in writing, within 21) days from the
date of receipt of this Decision , what steps it has taken to comply herewith 4i
(f) All allegations of the complaint not herein found to constitute violations of
the National Labor Relations Act, as amended, be, and the same are, dismissed
IT IS FURTHER RECOMMENDED, that the election held on May 5, 1965, in Case
No 17-RC-4711, be set aside, and that said case be remanded to the Regional
Director for Region 17 of the Board, with directions to conduct a new election at
such time as he deems circumstances to permit the employees to freely choose a
bargaining representative
a In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read "Notify the aforesaid Regional Director in writing within
10 days from the date of this Order, what steps it has taken to comply herewith
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that
WE WILL NOT threaten our employees with plant closure or loss of overtime
if they assist or support Bakery Workers or any other union
WE WILL NOT discharge any employee for assistance to or support of Bak-
ery Workers, or any other union
WE WILL NOT grant wage increases to our employees to induce them to
cease supporting or assisting Bakery Workers, or any other union
WE WILL NOT coercively interrogate any employee concerning his or her
membership in, views about, or activities on behalf of any union
WE WILL NOT discourage membership in or activities on beh ilf of any union
of our employees by discriminatorily discharging, or otherwise discriminating
against, any employee in regard to his or her hire, tenure, or term, or condition
of employment
WE WILL NOT interfere with the administration of, assist, or contribute sup-
port to Association of Packers and Drivers, or any other labor organization
of our employees
WE WILL NOT recognize or contract with Association of Packers and
Drivers, as the collective-bargaining representative of our employees, or give
effect to the agreement with it dated February 14, 1965, or any renewal, exten-
sion, or modification thereof, unless and until said Association has been cer-
tified as the majority representative of our employees by the National Labor
Relations Board
WE UNDERSTAND that nothing in the Board's Order requires us to withdraw,
change, or abandon any term or condition of employment curie ntly enjoyed by
our employees
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of any right guaranteed to them by Section 7 of the
National Labor Relations Act
WE WILL make whole Ina Faye Richardson for any loss of earnings she may
have suffered by reason of the discrimination against her
All our employees are free to join or assist Bakery Workers, or any other union,
or to refrain from doing so
Guy's FooDs, INC,
Employer
Dated------------------- By---------------------------- -------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No
Baltimore 1-2732