Ideal Baking Co., Inc.

National Labor Relations Board - Board Decisions

Jul 12, 1968

172 N.L.R.B. 1183 (N.L.R.B. 1968)

IDEAL BAKING COMPANY, INC.
Ideal Baking Company , Inc. and Bakers Tri-State
Local 363 of American Bakery and Confectionery
Workers' International Union , AFL-CIO. Case
26-CA-2966
July 12, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On May 15, 1968, Trial Examiner Sidney J. Bar-
ban issued his Decision in the above-entitled case,
finding that the Respondent had engaged in certain
unfair labor practices within the meaning of the Na-
tional Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He further
found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be
dismissed. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief, and the General Counsel filed cross-
exceptions and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and
hereby adopts the findings,' conclusions 2 and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner , as modified
herein , and hereby orders that the Respondent
Ideal Baking Company , Inc., Batesville , Arkansas,
its officers, agents , successors , and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, with the following modifica-
tions:
1. Add the following as paragraph 2(b) and re-
letter paragraphs (b), (c), and (d) accordingly:
"(b) Notify any of the above employees if
presently serving in the Armed Forces of the
1183
United States, of their right to full reinstatement,
upon application, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces."
2. Add the following as the last indented para-
graph in the notice attached to the Trial Examiner's
Decision:
WE WILL notify any of the above em-
ployees if presently serving in the Armed
Forces of the United States, of their right to
full reinstatement, upon application, in ac-
cordance with the Selective Service Act and
the Universal Military Training and Service
Act, as amended, after discharge from the
Armed Forces.
i The Respondent 's brief raises questions as to certain credibility findings
made by the Trial Examiner It is the Board 's established policy, however,
not to overrule a Trial Examiner 's resolutions with respect to credibility un-
less the clear preponderance of all the relevant evidence convinces us that
the resolutions were incorrect Standard Dry Wall Products, Inc , 91 NLRB
544, enfd . 188 F 2d 362 (C.A 3) We find no such basis for disturbing the
Trial Examiner 's credibility findings in this case
Y We have not passed on the General Counsel's exceptions to the Trial
Examiner 's failure to find additional violations of Section 8(a)(1) of the
Act based on the Respondent 's conduct as set forth in the Trial Examiner's
Decision , as such findings would be cumulative
TRIAL EXAMINER'S DECISION
STATEMENT OF CASE
SIDNEY J. BARBAN, Trial Examiner: This matter
was heard before the Trial Examiner at Batesville,
Arkansas, on March 13 and 14, 1968, upon allega-
tions in the complaint, issued on February 12, 1968
(pursuant to charges filed on January 5 and 31,
1968), that the Respondent had engaged in activi-
ties in violation of Section 8(a)(1) of the Act,
which activities are alleged to have caused a strike
by employees of Respondent on December 20,
1967. Respondent's answer, as amended, denies the
commission of any unfair labor practices alleged, or
that such activities caused the employees' strike.
Upon the entire record in this case, from obser-
vation of the witnesses, and after due consideration
of the briefs filed by the General Counsel, the
Respondent and the Charging Party, the Trial Ex-
aminer makes the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Arkansas corporation, in the
course and conduct of operation of a bakery at
Batesville, Arkansas, in a recent 12-month period,
received at its Batesville plant from places outside
the State of Arkansas, products of a value in excess
172 NLRB No. 120
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of $50,000. Respondent is an employer engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, herein called the Union, is a
labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
Aside from issues as to whether Respondent en-
gaged in certain unfair labor practices alleged in
the complaint , the parties are principally in dispute
as to whether a strike, beginning on December 20,
and current at the time of the hearing , was caused
by, or was the result of, such alleged unfair labor
practices . General Counsel and the Union assert
that the strike was an unfair labor practice strike
and that , in accordance with normal Board prac-
tice, Respondent should be ordered to reinstate the
employees upon their unconditional offer to return
to work. See, i .e., Tom Thumb Stores, Inc., 123
NLRB 833, 835-836.
Respondent contends that the strike was
completely economic, designed to force Respon-
dent to sign a collective -bargaining contract with
the Union prior to the 1967 Christmas holiday, and,
assertedly , resulted from an erroneous conviction
that the Respondent was stalling in its bargaining
efforts and was not negotiating in good faith.
Respondent points to the fact that the complaint
does not allege a refusal to bargain in good faith,
nor does the General Counsel in this proceeding
contend that Respondent was engaged in bad-faith
bargaining prior to the strike .' Respondent con-
tends that the strikers have been replaced , and, in
any event , should not be ordered reinstated
because of misconduct during the strike.
B. Alleged Interference, Restraint, and Coercion of
Employees
1. Statements to the effect that Respondent would
not sign a collective -bargaining contract
(a) Cochran , according to employee witnesses,
first broached his opposition to signing a contract
with the Union in his initial speech to the em-
ployees on August 12, opposing the Union's or-
ganizational efforts. It was testified that Cochran
repeated these matters substantially in a second
speech on August 26.
According to employee Johnny Melvin Keller,
Cochran " stated that he wouldn 't sign a contract
' Although the Union's initial charge alleged that Respondent had
refused to bargain in violation of Section 8(a)(5) of the Act, this allegation
was dropped in the amended charge in this matter In the circumstances, no
litigation of this issue was permitted.
' According to Keller, on December 18, just before the strike, Cochran
again stated, in terms similar to the above, that if he signed a contract it
unless it benefited the Bakery, and if he did sign
one it might take six months to five years."2 Em-
ployee Donald Howard stated that during these
speeches, Cochran "said there had to be a contract
... before anything could be done and that he
wasn't going to sign a contract unless the Union
could show him that it was going to benefit the
Bakery." The testimony of other employee wit-
nesses was consistent with that set forth.
(b) On August 14, in the course of an incident
during which Cochran threatened to fire him
because of a report that he was smoking on the job,
Donald Howard asserts Cochran "said, 'You know
there has to be a contract between the company
and the union before anything can be done,' and he
said, 'He wasn't going to sign no God damn con-
tract unless they could show him that it would
benefit the Bakery.' He hesitated and he said, 'My
employees."' Howard states that in this conversa-
tion Cochran also said "that he could stall the
union but he couldn't stall the Federal Govern-
ment."
(c) Employee John W. Johnson testified that,
about the time of the election, Superintendent
Beaverson told him that "we was wasting our time,
that Mr. Cochran would never sign a contract and
he said that he didn't know what we was fooling
with it for." Johnson said that Beaverson spoke to
the employees in this vein both before and after the
election.
(d) Bartley Levitt, who quit Respondent's em-
ployment in October, stated that, in the course of a
conversation prior to the election, Beaverson told
him that "Mr. Cochran would close down the
Bakery before he would sign a union contract."
(e) Employee Raymond Odell Cason testified
that, on an occasion within 2 weeks after the elec-
tion, in a conversation in which Cochran stated he
was disappointed in the outcome of the election,
Cochran also "said, 'They got the union voted in
but' he said, 'They don't have a contract and I
doubt if they'll ever get one."'
(f) In another conversation, occurring in
November, Donald Howard testified that Cochran
said he "was not going to sign a contract until the
union can show me it would benefit this Bakery."
(g) On December 18 and 19, Cochran met with
the employees singly, or in small groups, in an at-
tempt to discourage them from engaging in a strike.
During these conversations, according to the em-
ployee witnesses, Cochran also made statements to
them substantially similar to those stated above.
(h) Union Business Agent Goade testified that
during a conversation with Cochran immediately
after the election, Cochran told Goade that he
"Would never sign a contract unless it benefits his
might take as much as 5 years Employees Donald Howard and Larry 0
Coombs testified that about the same time, Cochran made similar state-
ments to them . Employee Smith testified that during August speeches,
Cochran stated that he would "never sign a contract as long as I live unless
they can show me how it would benefit this business "
IDEAL BAKING COMPANY, INC. 1 185
company." Goade asserted that Cochran repeated
this at every meeting with the Union.
This testimony was largely uncontroverted and is
credited.3 Although Cochran denied, generally, that
he had ever said that he would not sign a contract
he did not specifically deny any of the statements
attributed to him by the employee witnesses. How-
ever, with respect to Howard's testimony set forth
in paragraph "(b)" above, and at some other points
in his testimony, Cochran did indicate a general
answer, or, statement of position, with respect to the
employee testimony. In particular, Cochran as-
serted that, when he spoke of bargaining for a con-
tract, he considered that the interests of Respon-
dent and the interests of the employees were identi-
cal. As Cochran stated, "When I speak of the best
interest of the Bakery now, some of the boys in
here [employee witnesses] said that I just said the
best interest of the Bakery. Maybe at times I did say
that, but most of the time I said the best interest of
the Bakery and the employees. When I speak of the
best interest of the Bakery I mean the best interest
of the employees because for the simple reason
they are the Bakery." Cochran stated that he told
Howard, inter alia , ". . . we've definitely got to have
a contract that we can live with before I sign one.
In other words, it's got to be in the best interest of
the Bakery and the employees."4
It would also appear from Cochran's testimony,
as well as that of some employees, that he advised
them that although they had voted the Union in, in
reality nothing had been accomplished, unless a
contract was agreed to, which Cochran conceived
as a process between himself and the Union, in
which the employees had no part. Cochran states
that he told Howard, ". . . there is a difference in
voting a union in and getting a contract. It's no
good until the contract is signed and there is
nothing you boys can do about it until the Union
and me gets this negotiated. "5
From the record and from my observation,
Cochran emerges as a strong, purposeful, and
determined personality, accustomed to direct,
sometimes strong language , with an intense sense of
pride in his achievement at Respondent's bakery.
There is no question that he saw the Union as a
threat to his personal position, and sought to
discourage adherence to the Union both before and
after the election. As part of this effort, Cochran
sought to convince the employees that union
representation would be of no value to them
without a union contract, and that no contract
would be obtained (except possibly on terms per-
sonally acceptable to him, and after a long period
of time). Such conduct clearly was intended to con-
vince the employees that because of the adamant
resistance of the Respondent the selection of and
reliance upon the Union as a bargaining agent
would be a futile act.
Respondent suggests in its brief that this conduct
should be considered as no more than permissible
"statements of anticipated hard bargaining," and
not violative of the Act. But the evidence here
clearly goes beyond that point, and by its pervasive
persistence, continuing to the very eve of the strike
in December, sought rather to drum into the em-
ployees the fact "that they would have no union un-
less [Cochran] wanted one," see Bon-R Reproduc-
tions, Inc. v. N.L.R.B., 309 F.2d 898, 903 (C.A. 2,
1962), and, therefore, the futility of joining, choos-
ing, or adhering to the Union. This conduct clearly
violated the Act. Arkansas Grain Corporation, 163
NLRB 625, enforced on this point 390 F.2d 824
(C.A. 8, 1968); also Ross Porta-Plant, Inc., 166
NLRB 494.
2. Threatening statements; promises of job security
(a) In addition to matters heretofore noted, it is
found that Superintendent Beaverson threatened
employees in respect to the exercise of their rights
under Section 7 of the Act by the following activi-
ties ; (1) By telling employee Bartley Levitt's wife,
in his office, before the election, that if Levitt did
not vote for the Union, they would do well to buy
the house they were renting, that he would assure
Levitt of a job, but that if he voted against it, there
would be no need to buy the house; (2) by advising
Bartley Levitt and his wife, at their home, and Bart-
ley Levitt on other occasions, before the election
that his job security depended on his being against,
and not for the Union; (3) by telling employee
Howard, before the election, that "if this [the
Union] goes through, [Cochran] will close down
' Beaverson (in reference to Johnson 's testimony ) did assert that he did
not, to his "knowledge ," in "those words ," " tell them that they were wast-
ing time, that Mr Cochran would never sign a contract " Beaverson stated,
"I said a lot of times, I don't think he will, or maybe he will and sometimes
the next week I'd say, 'I know damn well,' I mean, 'I know darn well he
will."' Beaverson is not credited Although Beaverson testified that he did
not care "one way or another " if the Union came in, the evidence is that he
was vitally concerned and sought to prevent the Union winning the elec-
tion The record is convincing that Beaverson acted as he understood
Cochran wanted , and that the testimony of Johnson and Levitt set forth
above accurately reflected Beaverson 's understanding of Cochran 's posi-
tion
' With respect to whether, on most occasions , Cochran said that any con-
tract would have to benefit Respondent , only, as the employee testimony
indicates or, "most of the time," said that the contract must benefit both
the Bakery and the employees , as Cochran asserts, the conflict is, the Trial
Examiner believes, more apparent than real The message conveyed was
that no contract would ensue unless it was personally satisfactory to
Cochran , a decision-making process in which he expected the employees to
play no part On the whole, moreover, the preponderance of the evidence
rather supports the employees' version It is noted that this is supported by
Goade's testimony set forth above, which was not denied , as well as the
statements ascribed to Beaverson, which clearly reflected Cochran's posi-
tion, and by the testimony of Carson, noted above, which was also not
specifically controverted and has been credited
5 In his speeches before the election , Cochran states that he told the em-
ployees, inter alia, that if they voted the Union in, " it would be strictly
up to me and the Union to get this contract , and they had done their part
after they voted " After the election , in speaking to groups of employees in
an effort to secure "harmony," Cochran states he told them, among other
things, that "it was up to me now to get them a contract " During his talks
with the employees, in December , in an effort to discourage them from
striking, Cochran testified that among his remarks, he told them, " there
wasn't a union in there yet, it hadn't been negotiated "
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant"; (4) by telling employee Smith, before
the election, in the context of this record that "the
union is no good and in fact we're not going to have
it"; (5) by telling Howard, at the time Bartley
Levitt was leaving Respondent's employment in Oc-
tober, "Well, there goes one of your union mem-
bers I won't have to worry about .... There is al-
ways a way to get rid of a man without getting in
trouble with the Union"; and (6) by telling em-
ployee Fields, in November (after asking if other
employees had talked to him about the Union), that
he didn't want Fields to join the Union, and if
Fields did so, Fields "would come up without a
job." To the extent that Beaverson 's testimony con-
flicts with the above findings, it is not credited.6
(b) Employees Howard, B. Levitt, Treadway,
and Wilkes testified to threats by Beaverson and
Cochran if they talked to others about the Union,
or working conditions. Respondent contends that to
the extent this may have occurred, it was directed
only at preventing such activities from interfering
with work.
B. Levitt related an occasion in August when he
and another employee, during a 10-minute rest
break, were discussing the union activities of a mu-
tual friend who worked for another employer. On
Levitt's way back to work, Beaverson called him
into the latter's office and told him that he did not
want Levitt "talking to any employees about
anything that related to union activity at the Bakery
and if he should catch me doing so, that he would
fire me without any excuse and watch my family go
hungry."
Beaverson admittedly spoke to Levitt about this
conversation occurring during the rest break, but
states that, "I just told him I didn't want that kind
of talk when people were working .... Other peo-
ple had a job to do and they didn't have time to
listen to him." On cross-examination , Levitt ad-
mitted that Beaverson said that he was not to talk
about the Union "to any more employees while
they were working."
Treadway testified that while he was on his break
period, Beaverson came over to him and told him
that if he talked to any employees in the Bakery, or
to anyone else, about the Union, he would be fired.
Beaverson also asked him, Treadway states, about a
union meeting the night before. On cross- examina-
tion, Treadway also agreed that Beaverson said that
he did not want the employees talking about the
Union "while they were working," but added "and
also he put in there, if he caught me talking union
in church or anywhere outside he would." Tread-
way agreed that he knew he could talk about the
Union in church or elsewhere outside the plant
' With respect to these matters, Beaverson referred only (1) to the meet-
ing with the Levitts at their home , emphasizing in his version that he made
no promises to Levitt, other than that he would have a job as long as he
took care of it, whether he joined the Union or not , and (2 ) to Howard's
testimony of the threat , made before the election, to close the plant down,
which Beaverson denied Beaverson's testimony was often generalized and
imprecise , sometimes vague and on occasion clearly inaccurate The Trial
Examiner does not consider it reliable Respondent 's brief candidly admits
without fear or reprisal. Beaverson did not refer to
Treadway's testimony although he testified
generally that he told the employees that he did not
want any union activities going on while they were
"working there on duty."
Howard testified that about November 22,
Beaverson called him in and told him that he had
heard employees were talking union in Howard's
department; that Beaverson further said if Howard
would send "any people talking union" to Beaver-
son, he would fire them, and "If I catch anybody
talking to Bill Wilkes, I'll fire right then." Beaver-
son, in effect, states that he merely told Howard
and the other employees that he did not want "any
of that stuff going on" while the people were work-
ing, because the Bakery ran on a tight schedule.
Wilkes testified to an occasion in Cochran's of-
fice, about November 28, in which Cochran ad-
vised Wilkes that Beaverson had reported Wilkes
was "raising hell" about holidays with new em-
ployees and causing them to leave. [In fact, Wilkes
had been complaining about holiday pay for
Thanksgiving.] Wilkes states Cochran said Wilkes
just wanted something for nothing, and "wasn't
nothing but a G-d Damn Communist," and that "if
he heard me talking union to anyone anywhere at
any time, in church or anywhere, he'd fire my G-d
Damn A-." Cochran's version of the incident is
that he merely said to Wilkes, in less colorful
language, that this must not happen again, "if he
had any grievance in any way, that wasn't to be dis-
cussed out there during working hours," and that
Wilkes was talking "like some communist" in his
claim for more money in relation to the holiday.
This evidence, and the record as a whole, is con-
vincing that Respondent's conduct was intended to,
and had a reasonable tendency to, restrain and
coerce employees in the exercise of legitimate
Union activities generally, and not merely while
they were at work. Thus it is noted that Beaverson's
forceful admonition to Levitt was occasioned by
Levitt's legitimate activity during a break period
(which Beaverson, and, apparently, Levitt con-
strued as working time ). Treadway, without any ap-
parent cause on his part, was also admonished dur-
ing his break period on the same score by Beaver-
son, who placed a wide ranging blanket prohibition
on Treadway's union activities.' Wilkes, as
Howard's testimony shows, was a particular object
of Respondent's attention. Cochran's testimony, as
a whole, indicates that he was most concerned
about the influence of Wilkes over the new em-
ployees in agitating holiday pay. Mixed with this,
undoubtedly, was some concern over possible
(p 10) that it is possible " Beaverson may have made some of these coer-
cive statements which a few of the employees attribute to him."
' Since the intended and reasonable tendency of Beaverson 's statement
would improperly inhibit the employees ' proper union activities, its illegali-
ty is not lessened because it may not have had the desired effect with
Treadway See N L R B v Ford Brothers, 170 F 2d 735, 738 (C A 6,
1948)
IDEAL BAKING COMPANY, INC. 1187
disruption of production, and in the course of harsh
words for Wilkes about his activities, Cochran very
likely included a warning about disrupting em-
ployees' work, as he testified. However, considering
his forceful nature, and the vehemence of his at-
titude toward Wilkes and the Union, I am also sure
that his admonition to Wilkes to desist from union
activities went beyond actual working time, as
Wilkes testified.
By the acts and conduct set forth above, and in
the light of the record as a whole, it is found that
Respondent violated Section 8(a)(1) of the Act by
threatening employees with discharge for joining or
assisting the Union or engaging in union activities
protected by the Act, and by promising Levitt job
security if he would oppose the Union.8.
3. Statements to job applicants; interrogation;
impression of surveillance
(a) When Larry Coombs applied for employ-
ment in September, he was asked by Cochran what
he thought of unions. When Coombs stated that he
knew nothing about them, Cochran advised that his
employees were pushing a union, that he was trying
to get out of it, and that if Coombs was going to be
"for this Union" he could "go home." Coombs
stated that he needed the job, wasn't for the Union
and knew nothing of it. He was hired. Coombs'
testimony is credited.9
(b) According to Quinton Hamilton's undenied
testimony, when he applied for work in October, he
was asked by Beaverson what he thought about
unions. When Hamilton replied that he didn't think
they were worth much in Arkansas, Beaverson in-
dicated that Hamilton would be and he was hired.
(c) In addition to instances of interrogation
previously noted, employee Johnny Keller related
that, after the election, Cochran asked whether he
had joined the Union or paid dues; when he replied
in the negative, Beaverson stated that "we know
you voted for the Union," "because everyone who
voted against it told me." 10 According to Keller,
Cochran thereupon indicated that he would be ter-
minated, but relented on condition that Keller not
join the Union, and advised that he would make a
place for Keller in the sales department. Cochran
recalled only that Keller and another employee, on
one occasion, had advised him in his office that
they were not involved with the Union, for which
he expressed his appreciation. Keller's testimony, in
these circumstances, is credited.
(d) According to the credited testimony of B.
Levitt, the day before the election, Beaverson told
him that after the election, Respondent would
know who was for and who was against Respon-
dent. Levitt asked how this could be done, since the
election was by secret ballot. Beaverson stated that
Respondent had "ways of finding out."
The matters set forth, as well as those previously
discussed, in the context of this record as a whole,
show that Respondent engaged in coercive inter-
rogation of employees in violation of Section
8(a)(1) of the Act. However, the Trial Examiner is
not convinced that the evidence shows that
Respondent gave the employees an impression that
it was engaged in surveillance of their union activi-
ties. What the cited evidence, and some other even
less persuasive comments in the record, indicates is
that Respondent enjoyed sources of employee in-
formation about these matters, with which it sought
to discomfit Union adherents.
The General Counsel, however, also alleges that
Respondent solicited such reports from employees
on union matters , apparently relying upon two
items in the testimony of employee Howard; (1)
that Cochran, in August, told him to find out about
the Union and keep the employees from talking
about it, and (2) that Beaverson, in November, told
Howard that if he found any persons talking about
the Union, they should be sent to Beaverson and
they would be discharged. These seem both to be
part of the issue, already discussed, of Respondent's
attempted restrictions of employee discussion of
union matters, and not sufficiently weighty to be
considered a separate violation. It will be recom-
mended that those allegations of the complaint that
Respondent created an impression of surveillance
of union activities and solicited reports on union
activities be dismissed.
4. Threats of reprisal against employees for
striking; refusal to grant wage increases
Following a bargaining session between the
Union and the Respondent on December 7, a union
meeting was held at which the employees took a
preliminary strike vote. The following day, Cochran
wrote Union Representative Goade requesting per-
mission to grant specified wage increases effective
the first week in January 1968. Goade shortly
thereafter sent Cochran a full contract proposal
and requested an early meeting on the contract and
on the proposed wage increases , as discussed
hereinafter. The parties met on December 19, but
apparantly no agreement was reached upon wage
increases to be put into effect in January.
" In this section of the decision , as well as in consideration of other al-
legations of the complaint, certain incidents which were litigated at the
hearing have not been discussed since they would unnecessarily lengthen
the decision without in any way affecting the remedial order indicated
" Respondent contends Coombs' testimony , which was not denied,
should be rejected because of an alleged inconsistency in a prior statement
The alleged inconsistency , however, is neither clear or critical . Coombs
specifically asserted the version given at the hearing was correct In the
absence of any denial , I see no reason to reject it
10 Beaverson agreed, on cross-examination, that he had told the em-
ployees that he had ways of finding out how the employees voted in the
election Although Beaverson further stated that he knew of 6 employees
who came to him to say they had voted against the Union (the actual vote
was 10 for and 5 against the Union), he was able, with the assistance of a
list of employees, to name only 5, one of whom was later shown not to have
been employed at the time of the election.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 19, and the preceding day,
Cochran met with the production employees in
Beaverson's office, singly, or in twos and threes, ad-
mittedly to discourage them from striking. Among
other things, Cochran told the employees that he
had proposed wage increases to the Union, which
he read off to some, if not all, employees, told them
that the Union had refused permission, and that he
could not, therefore, give the increases, for his
hands were tied . Cochran also made statements,
which have been previously considered, to the ef-
fect that there was no union in the plant as yet
because a contract had not been negotiated, and
that there would be no contract until he was
satisfied that it was to the benefit of the Bakery,
which might take a considerable period of time.
As to the consequences of their striking, Cochran
testified that he told the men that if they went on
strike he would replace them with other employees.
Eleven employees testified with respect to these
meetings ; of those who were asked , almost without
exception, they agreed that Cochran had told them
that they would be replaced if they went out on
strike. However, it is also clear by the express
threats made by Cochran and the vehemence of the
animosity expressed toward those who might strike,
that Cochran also threatened that any person who
struck would thereafter be disqualified from em-
ployment with Respondent.
Thus, employee Coombs testified that Cochran
said, "Boys .... I'm going to tell you right now ...
If you do go out on strike ... By God, you're just
out on the street for good ... You'll never work for
me again ... I can pick up the phone right now and
call men to come right in and replace you right now
... If you want to go on strike ... You walk out
that door, By God you won't come back in."
Wilkes related that Cochran stated that if the em-
ployees struck, "We wouldn't work for him any
more." Smith heard Cochran tell employee John-
son, "I guess you know your butt has had it if you
walk out."
Cochran denied that he had said that the strikers
"would never set foot in that Bakery again." How-
ever, from observation of the witnesses and analysis
of the entire record, I am satisfied that Cochran
conveyed to the employees in these meetings sub-
stantially the message that they reported. These
statements do not , in my opinion , constitute a
discharge of the strikers, as contended by General
Counsel, but they do constitute threats of reprisal
against employees for striking which violate Section
8(a)(1) of the Act.
The General Counsel and the Union argue that
Respondent also violated the Act by Cochran's
statements to the employees that he had proposed
wage increases to the Union , which he could not
grant since the Union had turned it down. The Trial
Examiner disagrees. Unquestionably, it is not a
violation of the Act for an employer in good faith
" McCormick Longmeadow Stone Co ., 158 NLRB 1237, cited by the
Union, is an instance in which the employer 's actions were not in good
to seek the bargaining representative's consent to a
change in working conditions, and to refuse to
make the changes when the Union refuses to agree.
I would take it that the employer also may, where
acting in good faith, truthfully apprise the em-
ployees of what has occurred."
Respondent 's actions here are suspicious. It
would appear from Cochran's testimony that he
had formulated at least tentative plans for the wage
increases before his meeting with the Union on
December 7, but did not bring the matter to the
Union's attention at that meeting. Further, when
the Union sought a meeting with Respondent at
which the proposed wage increases could be
discussed, Cochran resisted meeting before January
11, although he did consent to meet with the Union
on December 19, when Goade and International
Representative Liesen came to his office without
appointment . Also, notwithstanding Respondent's
claim that the increases were in line with its usual
practice , Respondent had failed to give a raise the
previous year . However, while these circumstances,
in the context of this record , raise real' questions as
to Respondent 's good faith in proposing the wage
increases and in using the Union's refusal as an ar-
gument to discourage the employees from striking,
there is not that preponderance of proof that would
justify a finding of violation of the Act by Respon-
dent 's actions in regard to the wage increases, and
it is recommended that this allegation of the com-
plaint be dismissed.
C. The Strike
1. The circumstances of the strike
The first bargaining session between Respondent
and the Union occurred on October 23. The parties
met again on November 15 and December 7. Dur-
ing the meeting on that date, another bargaining
conference was set for January 11, 1968. At the
union meeting which followed, on the evening of
December 7, a preliminary strike vote was taken.
The attitude of the employees at that meeting was
credibly described by Union Business Agent Goade:
Well, they were disturbed. Of course, they
were a group of employees that seemed
disturbed. I wasn 't too well acquainted with
them but they felt that the company was
stalling us in our bargaining . In fact one of the
boys ... Donald Howard, made the statement
to me that ... he had worked seven years, I be-
lieve, for the company, and he knew them real
well and that they had told him that they would
never sign a contract ....
*
... He said that Mr. Cochran had even made
the statement to him that he could stall that
faith See also The Food Mart , 158 NLRB 1294, enfd 386 F 2d 192 (C.A
1, 1967)
IDEAL BAKING COMPANY, INC. 1189
damn union, but he couldn't stall the Federal
Government.
... They were real disturbed about this Janua-
ry the 1 1 th meeting because they felt like the
company was setting these, or more or less
stalling these meetings off ... some of the em-
ployees [felt] if a strike vote was taken ... that
[would] possibly bring pressure to bear on the
company to meet earlier.12
Following this union meeting, Union Repre-
sentative Goade wrote Cochran, advising that
the employees had voted to strike "unless a
satisfactory agreement was reached between
the parties, prior to the forthcoming holidays,"
and requested "an immediate meeting within
the next 5 days to continue negotiations," and
for discussion of Cochran's proposed wage
increases.
On December 13, Cochran, replied to Goade, re-
minding him of the agreement to meet on January
11, 1968, and stating that because of his "many
obligations this time of the year," it would not be
possible to meet at an earlier date.
Goade and Union International Representative
Liesen, nevertheless went to Batesville to seek a
meeting with Cochran on December 19. Though
Cochran at first stated, when they appeared unan-
nounced at his office that day, that he would not
negotiate with them prior to the meeting set for
January 11, it appears that he did discuss matters
related to the contract with them in a meeting last-
ing a number of hours, during which, Cochran, to
show his good faith, signed a statement prepared by
Liesen, agreeing that if a contract was not reached
before January 20, 1968, all economic terms would
be retroactive to that date.
Liesen, investigating the reasons for the em-
ployees' earlier strike vote, had met informally with
the employees on the preceding evening , December
18, and was informed of various conduct of
Cochran and Beaverson, alleged herein as viola-
tions of Section 8(a)(1) of the Act.
On the following evening , December 19, at a
union meeting , Goade and Liesen sought to dis-
suade the employees from striking, citing the
progress made in the bargaining so far, the im-
minence of the holidays, and Respondent's commit-
ment to make economic gains retroactive to Janua-
ry 20.
The following portions of Goade's credited
testimony fairly set forth the events of the union
meeting that evening:
A. Well, again the employees met at the
Motel and they were anxious to know what our
progress had been in our meetings with the
company. We explained and went through
again some of the areas of the contract. We
discussed some of the things that Mr. Cochran
and Mr. Liesen had talked about that after-
noon.
... I showed them the ... I showed them the
... statement that Mr. Liesen and Mr. Cochran
had initialed making any economic factor of
the contract retroactive to January the 20th. I
told them that I thought we had made progress
in the meeting.
*
... many of the employees was asking different
questions about the different type of progress.
They were wondering about what the company
had done on some areas of the contract; ...
They asked if the company had changed its
position, you know, any on the holidays factor
of the contract. I told them no, they hadn't that
we were hopeful that they would. We ...
[were] requesting the company to offer one
holiday even as a token thing for us to kind of
show the employees that some progress was
being made. Of course the company refused
this.
The employees, they brought up several
things in the meeting. They were worried about
the company stating that they would never sign
a contract. Many employees brought this up.13
*
Q. What else?
A. They were worried about the training of
employees in the plant , the possibility that if
this thing continued . . . the employees might
not all be there to enjoy a contract if there was
one secured. Many employees brought up the
12 There is also some indication that certain employees were interested in
an agreement on pay for the approaching holidays . However , the record as
a whole is convincing that , at the time the strike began a principal concern
of the employees, was with the treatment of workers by supervision in the
plant , which grievances they expected would be alleviated through a col-
lective-bargaining contract , rather than any specific economic gain to be
obtained
" The evidence shows that the employees were quite concerned about
these comments and the fact that Cochran had repeated them that after-
noon and the day before Coombs stated that his reason for going on strike
was that Cochran came "right out and said , ' 1 will not sign a contract "'
Cason stated that it was his opinion and that of the other employees at the
union meeting that Cochran was stalling "because he had told us that same
day and the day before that he would never sign a contract " It appears that
because of these consistent comments by Cochran and Beaverson, the em-
ployees had no confidence in statements of the union representatives that
progress was being made. As Keller testified , "we just came to the conclu-
sion that he [ Cochran] was telling us one thing and them [ the union
representatives ] something else." Several of the employees who went out
on strike testified that they came to the conclusion that the Respondent
was not bargaining in good faith
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
treatment of [employees in the plant by] Mr.
Beaverson . It was mentioned about the train-
ing. Well , almost from the very start... the
company started training route supervisors on
jobs.'"
I know at that particular meeting , Bill Wilkes
said ... he knew Mr . Cochran as well as any-
one and that he felt Mr . Cochran had said he
would never sign a contract and that his at-
titude ... toward this and the position on
holidays and things, he just felt like they would
never be able to obtain a contract . And he said
that was his own personal opinion . And several
employees kicked this around.
* * * * *
Well, I told the employees I felt they should
wait until the January 11 meeting rather than
go on strike, but it was to no avail .... I be-
lieve that it was about three hours that I was
talking to these people . I don't believe there
was too much missed in this three hour meet-
ing, the things that went on in the plant,
negotiations and things.
The following day, December 20, 15 employees
of Respondent went on strike , which strike con-
tinues to be current . That same day, Respondent
sent each of these strikers a telegram advising that
unless he reported for work no later than 10:15
a.m., Thursday, December 21, the Respondent
would begin hiring a replacement for his job. The
record does not show that any of these employees
has returned to work . Cochran testified that they
have been replaced.
During the strike , publicity put out by the strikers
and others in their behalf was to the effect that they
were on strike for improvement in their wages and
working conditions.
2. Conclusions as to the strike
The Respondent argues, vigorously and ably, that
under generally accepted principles , a strike to ob-
tain a contract or better working conditions-such
as that which occurred in this case-is normally an
economic strike, especially in the absence of a find-
ing that the employer was engaged in bad-faith bar-
gaining . But this is not universally the case. See,
i.e., The Rangaire Corporation, 157 NLRB 682. In-
deed , if any unfair labor practice on the Respon-
dent's part is shown to be a causative factor in the
work stoppage, the strike must be found to be an
unfair labor practice strike, notwithstanding the ex-
istence of other , additional motives . West Side
" According to Goade's uncontradicted testimony, during a conversa-
tion with Cochran immediately after the election , the latter said he was
going to train route supervisors to do the work During this conversation
Plymouth , Inc., 170 NLRB 686; Stafford Trucking,
Inc., 166 NLRB 894.
In the present case, while it would be difficult to
exclude any of Respondent's actions from the total
motivation for the work stoppage- for men nor-
mally act in serious matters on the basis of their
whole experience-the record leaves no doubt that
Respondent 's persistent and pervasive statements of
resistence to a collective -bargaining contract was
the causative factor which unleashed the strike in
this case . Respondent sought to convince the em-
ployees of the futility of representation under the
Act in the face of Respondent 's resolute opposition
to a collective-bargaining contract . In this, it vio-
lated the Act, as has been found . Respondent,
further , misjudging the temper of its employees, by
such conduct impelled them to engage in the very
strike which Respondent sought to avoid, which
work stoppage was, and it is found to be , an unfair
labor strike.
CONCLUSION OF LAW
1. The Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has engaged in and is engag-
ing in unfair labor practices in violation of Section
8(a)(1) of the Act, which unfair labor practices af-
fect commerce within the meaning of Section 2(6)
and (7) of the Act.
4. The strike of Respondent's employees which
began on December 20, 1967, was caused by unfair
labor practices of Respondent and is an unfair labor
practice strike.
THE REMEDY
It having been found that the Respondent en-
gaged in unfair labor practices in violation of Sec-
tion 8(a)(1) of the Act, which conduct caused or
contributed to the unfair labor practice strike
which began on December 20, 1967, it will be
recommended that the Respondent cease and desist
from such unfair labor practices, or otherwise in-
fringing upon the exercise of employee rights under
Section 7 of the Act.
In accordance with the normal practice of the
Board, it will be recommended that Respondent,
upon application , offer to all its employees who en-
gaged in the strike beginning December 20, 1967,
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges , dismissing,
if necessary, any employee hired to replace the
striking employees, and that the Respondent make
Cochran also told Goade that he "would never sign a contract unless it
benefits his company ," which Goade asserted that Cochran repeated at
every meeting with the Union
IDEAL BAKING COMPANY, INC. 1 191
whole those strikers who are entitled to reinstate-
ment for any loss of pay they may suffer by reason
of the Respondent's refusal, if any, to reinstate
them, upon request, by payment to each of them of
a sum of money equal to that which he normally
would have earned as wages during the period
beginning 5 days after the date on which he applies
for reinstatement and terminating on the date of
the Respondent's offer of reinstatement, such loss
to be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
As previously noted, Respondent claims that cer-
tain strikers by misconduct during the strike have
disqualified themselves for reinstatement. Because
that issue may become ripe for decision only when
and if strikers request reinstatement and are
refused, the Trial Examiner declined to permit the
issues to be litigated in this proceeding. However,
the order recommended herein shall not preclude
the Respondent, in appropriate circumstances,
from raising the issue of disqualification, which may
properly be resolved in subsequent proceedings, if
not otherwise adjusted.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in
this case, it is recommended that Respondent, Ideal
Baking Company, Inc., Batesville, Arkansas, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening or warning its employees that
Respondent will not sign a contract with a labor or-
ganization which may become or is the duly
designated bargaining representative of the em-
ployees, or otherwise threatening or warning that
Respondent will make the selection of a collective-
bargaining representative by the employees a futile
and vain act.
(b) Threatening employees with discharge or
other reprisals if they become or remain union
members or give assistance or support to a union,
or if they engage in concerted activities protected
by the Act.
(c) Interrogating employees concerning union
membership or activities or concerning protected
concerted activities, in a manner violative of Sec-
tion 8(a)(1) of the Act.
(d) Promising employee benefits in order to
discourage union membership, or union activities,
or other protected concerted activities.
(e) Questioning applicants for employment con-
cerning union membership, union activities, or at-
titudes toward a union.
(f) In any other manner interfering with,
restraining, or coercing employees in the exercise
of their rights guaranteed in Section 7 of the Act.
2. 1 ake the following affirmative action which it
is found will effectuate the purposes of the Act:
(a) Upon application, offer to the Respondent's
striking employees reinstatement to their former or
substantially equivalent positions without prejudice
to their seniority or other rights and privileges, and
make them whole for any loss of pay, in the manner
set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, 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
amount of backpay due under the terms of this
Order.
(c) Post at its plant at Batesville, Arkansas, cop-
ies of the attached notice marked "Appendix." is'
Copies of said notice, on forms provided by the Re-
gional Director for Region 26, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 26,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith. i6
IT IS FURTHER RECOMMENDED that except to the
extent found herein, the allegations of the com-
plaint be dismissed.
15 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
*6 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT threaten to discharge you or to
close the plant or to refuse to employ you in
the future, or threaten that you will suffer any
other kind of harm from the company because
you join or help Bakers Tri-State Local 363 of
American Bakery and Confectionary Worker's
International Union, AFL-CIO. or any other
labor union, or because you lawfully decide to
strike or go on strike.
1192 DECISIONS OF NATIONAL
WE WILL NOT attempt to discourage em-
ployees from joining or helping a labor union,
or from lawfully deciding to strike , or from
striking-by promising employee benefits, or
by threatening not to sign a contract with a
union of the employees ' choice, or by warning
or threatening employees in any way that the
company will see to it that they get no benefit
from union representation.
WE WILL NOT ask you concerning your
feelings about , or activities , for a labor union,
or about the feelings or activities of other em-
ployees for a labor union.
WE WILL NOT in any other way interfere with
your right to:
Organize yourselves , or form , join or help
unions.
Bargain for your working conditions
through a representative freely chosen by
a majority of workers in the plant.
Act together for mutual aid or protection
of your working conditions.
Refuse to do any or all of these things.
It has been found that the company 's employees,
on December 20, 1967 , began a lawful unfair labor
practice strike . Therefore-
WE WILL , upon their application , offer to our
employees who continue lawfully on strike,
LABOR RELATIONS BOARD
reinstatement to their former or substantially
equivalent positions without prejudice to their
seniority or other rights and privileges,
dismissing , if necessary , any employees hired
to replace striking employees , and we will
make each employee whole for any loss of pay
suffered by him as a result of our failure to
reinstate him within 5 days after his application
to return to work.
IDEAL BAKING COMPANY,
INC.
(Employer)
Dated By
(Representative ) (Title)
This Notice must remain posted for 60 consecu-
tive 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, 746 Federal Office Building , 167 North
Main St ., Memphis, Tennessee , Telephone
534-3161.