Intermedico Corp.

National Labor Relations Board - Board Decisions

Oct 28, 1958

121 N.L.R.B. 1596 (N.L.R.B. 1958)

1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interinedico Corporation and Oil, Chemical & Atomic Workers
International Union, AFL-CIO , Petitioner. Case No O -RC-
9458 October 28, 1958
DECISION AND DIRECTION OF ,ELECTION
Upon a petition duly filed , a hearing was held before a hearing of-
ficer of the National Labor Relations Board. His rulings made at the
hearing are free from prejudicial error and are affirmed
Pursuant to Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel [Mem-
bers Rodgers , Jenkins, and Fanning]
Upon the entire record, the Board finds
1 The Employer is engaged in commerce within the meaning of
the Act
2 The labor organizations named below claim to represent certain
employees of the Employer I
3 A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer , within Section 9 (c) (1)
and Section 2 (6) and (7) of the Act'
4 The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within Section 9
(b) of the Act'
All production and maintenance employees at the Employer's
Hempstead , New York, plant , including shipping and receiving em-
ployees, but excluding office clerical employees, professional employ-
ees, guards, watchmen, and supervisors as defined in the Act
[Text of Direction of Election 3 omitted from publication ]
'Amalgamated Production Workers Union Local 242 , International Federation of Labor,
herein called the Intervenor , was entered as an intervenor on the basis of a contractual
interest, although it made no appearance See Celanese Corporation of America, 85
NLRB 832
2 The Employer and the Intervenor executed a contract on September 16, 1957, for a
3 year term The contract , however, contains a union-security clause, and the Intervenor
had not been in compliance with the filing requirements of the Act for more than a year
when the contract was executed The contract is therefore not a bar See The Borden
Food Products Company 113,NLRB 459
a We shall place the noncomplying Intervenor on the ballot, but if it should win the
election , we shall only certify the arithmetical results ( Concrete Joists & Products Co,
Inc, 120 NLRB 1542 ) , unless prior to the date when certification would issue it has
achieved compliance in which case the Regional Director is instructed to issue a certifies
tion of representatives to the Intervenor
121 NLRB No. 204
M & M Bakeries, Inc. and Bakery and Confectionery Workers
Local 41, a/w Bakery and Confectionery Workers Inter-
national Union of America . Case No 1-CA-2397 October 29,
1958
DECISION AND ORDER
On May 1, 1958, Trial` Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
121 NLRB No 172
M & M BAKERIES , INC. 1597
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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that M & M Bakeries, Inc., Dover, New
Hampshire, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Bakery and Con-
fectionery Workers Local 41, a/w Bakery and Confectionery Workers
International Union of America, as the exclusive representative of the
employees in the appropriate unit.
(b) Discouraging membership in Local 41, or in any other labor
organization of its employees, by discharging, refusing to reinstate,
or in any other manner discriminating against them in regard to hire
or tenure of employment or any term or condition of employment.
(c) Threatening to discharge employees for engaging in a,strike,
or in any other manner interfering with,' restraining, or coercing its
employees in the exercise of the rights to self-organization, to form
labor organizations, to join or assist Local 41 or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes
of mutual aid or protection as guaranteed in Section 7 of the Act, and
to refrain from any-and all such activities, except to the extent that
such rights may be affected by an agreement requiring membership in
1 In our opinion, Union Business Agent Cudahy's November 21' letter to Respondent
Attorney Burns, when viewed In its entirety and against the entire background of events
herein, clearly indicates that the real purpose of the strike threat contained therein was,
as stated, simply "to cause the Company to carry out its obligation to negotiate with the
certified collective bargaining agency," and was not to force the Union's economic de-
mands upon the Respondent. Accordingly, and upon the entire record, we agree with the
Trial Examiner 's finding that the strike of November 26 was caused In whole or In sub-
stantial part by Respondent's failure to bargain In good faith, and that it was therefore
an unfair labor practice strike.
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 41 as the ex-
clusive representative of all employees in the appropriate unit, and
embody any understanding reached in a signed agreement.
(b) Offer the employees named in Appendix A of the Inter-
mediate Report immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority
or other rights and privileges previously enjoyed, and make them
whole for any loss of pay they may have suffered by reason of the
discrimination against them, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(c) Upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social-security pay-
ment records, timecards, personnel records and reports, and all other
records necessary to analyze the amount of back pay due and the
right of reinstatement under the terms of this Order.
(d) Post at its plant at Dover, New Hampshire, copies of the
notice attached to the Intermediate Report marked "Appendix B." 2
Copies of said notice, to be furnished by the Regional Director for
the First Region, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof and be maintained by it
for sixty (60) consecutive, days thereafter in conspicuous places,
including all places where notices are customarily posted. Reason-
able steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, as to what steps
Respondent has taken to comply herewith.
2 This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner" the words "A Decision and Order ." In the event that this Order is en-
forced by a decree of a United States Court of Appeals , there shall be substituted for the
words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges, the General Counsel of the National Labor
Relations Board issued a complaint dated February 3, 1958 , against M & M Bakeries,
Inc., herein called Respondent , alleging that Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1), (3),
and (5 ) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947,
61 Stat . 136, herein called the Act. Copies of the complaint and charges were duly
served upon Respondent, in response to which Respondent filed an answer denying
the unfair labor practices alleged . Respondent filed a motion to dismiss, which
motion is disposed of in accordance with the findings and conclusions hereinafter
set forth.
M & M BAKERIES, INC. 1599
Pursuant to notice, a hearing was held on February 19, 1958, at Dover, New
Hampshire, before the duly designated Trial Examiner. All parties were repre-
sented; they were also given opportunity for oral argument at the close of hearing
and to file briefs as well.
Upon the entire record in this case, and upon observation of the demeanor of
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New Hampshire corporation maintaining its principal office and
place of business in Dover, New Hampshire, where it is engaged in the manufac-
ture, sale, and distribution of bakery and related products. Respondent annually
makes out-of-State shipments valued in excess of $50,000.
I find that Respondent is engaged in commerce within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Sequence of events
On August 12, 1957, and following a Board-ordered election in Case No.
1-RC-4916, the Board certified Bakery and Confectionery Workers Local 41, affili-
ated with Bakery and Confectionery Workers International Union of America,
AFL-CIO (herein called Local 41) as statutory representative of "all employees,
including garage employees and truckdrivers employed . . . [at Respondent's] Dover,
New Hampshire, plant, but excluding office clerical employees, driver-salesmen
(wholesale and retail), guards and supervisors as defined in the ,Act." The sub-
sequent events related here occurred in 1957.
On August 29, Local 41 Business Agent Emmett E. Cudahy submitted, by letter,
a proposed agreement' to Respondent and asked to be advised "when you are pre-
pared to commence negotiations on this agreement so that a mutually satisfactory
time and place for that purpose may be agreed upon." This letter was directed
to the attention of Fred W. Stock, Respondent's president.
-Respondent did not answer the Union's August 29 letter. On September 11,
Cudahy again wrote to Stock, he advised Stock of the earlier letter and stated
that "we would appreciate your undertaking to commence these negotiations with
as little delay as possible. Will you therefore advise us when we may expect these
negotiations to get under way."
By letter dated September 13, Respondent Attorney Stanley M. Bums advised
Cudahy that Respondent General Manager John Kress was out of town and would
not return "until around the first of October" and that Respondent would then ar-
range a conference with Cudahy. Cudahy acknowledged Burns' letter by his own
letter of September 19. Cudahy stated in his letter that in view of the delay caused
by Kress' absence, "we would understandably take a dim view of any activities on
the part of the Company that might tend to complicate the negotiations when they
get under way."
On September 27, Bums wrote Cudahy that Kress had just returned from vaca-
tion and that Respondent expects to review Local 41's contract proposals "during
the week of September 30th and [Respondent] will contact you for an appointment
in the very near future." Respondent did not contact Cudahy, and on October 15
Cudahy wrote another letter to Burns reviewing the aforementioned correspondence
and mentioning the lapse of 6 weeks since Local 41 had submitted its August 29
proposals and stating that ",we would appreciate therefore your advising us of the
day during the week ending October 26th, that the Company will be prepared to
commence these negotiations."
Burns acknowledged Cudahy's October 15 letter by his own letter of October
16. Burns stated in his letter that the Board had conducted a representation hearing
on October 8, on petition of a Teamsters locale for a unit of Respondent's em-
ployees excluded from Local 41's certification, and he further stated that "if you
have no objection, it might be advisable to await the outcome of this election, and
if the [Teamsters] Union is successful, there might be some relationship between the
1 These proposals were drafted at a meeting of Local 41 on August 28, attended by Local
members in Respondent's employ. Local 41 is an amalgamated local covering employees
of several employers.
I Case No. 1-RC-5075 The Board Issued a Decision and Direction of Election on
October 30; the election was held on November 21, and the Teamsters lost. On December 2,
thb Regional Director issued a certification to such effect.
I
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracts to be negotiated on behalf of both groups. Will you please let us know
if this suggestion meets with your approval."
By letter of October 17, Cudahy acknowledged Burns' October 16 letter. Cudahy
replied that there was no reason to further delay bargaining and he again requested
Burns to fix a date for negotiations during the week of October 26. Burns did not
answer Cudahy's October 17 letter. And by letter to Burns on October 25, Cudahy
protested Respondent's "unpardonable delay." "We therefore feel it necessary to
advise you," Cudahy further stated, "that unless arrangements are made to com-
mence negotiations during the week beginning October 28, 1957, we shall be forced
to adopt a position calculated to cause the Company to undertake its obligation
at the possible risk of an interruption in the continuity of operation. We would
therefore appreciate your undertaking such steps as will make this action
unnecessary."
Burns wrote Cudahy on October 31, acknowledging Cudahy's October 25 letter;
Burns advised Cudahy that Respondent was then preparing its own contract pro-
posals which they hoped to submit to the Union before "the end of this week."
(Saturday of "this week" was November 1.)
On November 14,3 Burns sent Cudahy Respondent's proposed contract and stated
that "after you have had a chance to review it, we shall be pleased to arrange
a conference mutually convenient to discuss it." Respondent's proposed contract
did not contain a schedule of wage classifications and rates, and Cudahy called this
omission to Burns' attention in a letter of November 15. Cudahy's letter also
suggested that negotiations be held either on November 20 or 21 and that Cudahy
would hold both dates open until November 19, and Cudahy asked Burns to
advise him whether either of these dates "will suit your [Burns'] convenience."
Burns did not reply.
On November 20, Local 41 held a special meeting to consider strike action
against Respondent .4 Individual written notice of such meeting had been given
to all members in Respondent's employ, with the purpose of the meeting stated
therein. A strike vote was taken at the meeting on the question set forth in the
aforementioned notice, namely, "whether or not the employees will strike on
Tuesday, November 26, 1957, to force the Company to carry out its obligation
to negotiate a contract if such contract has not already been negotiated by Novem-
ber 26th." The affirmative carried.
Burns still did not reply to Cudahy's November 15 letter, mentioned above, where-
upon Cudahy sent the following letter to Burns on November 21:
Our letter of November 15th in answer to yours of the 14th suggesting the
setting up of a meeting for the purpose of commencing negotiations has gone
unanswered to date.
The proposal enclosed in your letter of the 14th was submitted, in its
entirety, to the employees in the unit affected at a meeting on Wednesday,
November 20th and rejected by them.
They then took the position that unless a contract satisfactory to them has
been negotiated by Tuesday, November 26, 1957, they will strike in an effort
to cause the Company to carry out its obligation to negotiate with the certified
collective bargaining agency of their choosing.
This statement of the position adopted by the employees is transmitted
to you so that you may take such steps as may, in your discretion, be indicated
to avert the necessity of the action which the employees indicate 'they feel
they are forced to take in order to cause the Company to carry out its
obligation.
Burns answered Cudahy as follows on November 22:
We acknowledge your letter of November 21st advising that the proposed
contract submitted in our letter of November 14th was rejected by the union
at a meeting held November 20th and that "They then took the position that
unless a contract satisfactory to them has been negotiated by Tuesday, Novem-
ber 26, 1957, they will strike in an ' effort to cause the Company to carry
out its obligation to negotiate with the certified collective bargaining agency
of their choosing."
A Local meeting was held on November 14, and this was before Cudahy received
Burns' November 14 proposals . The Local discussed the possible need of strike action in
order to force Respondent to commence negotiations.
4 Forty-one of approximately fifty -three employees in the bargaining unit attended this
meeting.
M & M BAKERIES, INC. 1601
In an Associated Press article from Washington under date of November 15,
1957, it is stated that: "The AFL-CIO today suspended the Bakery Workers
Union from the federation" because of its "failure and refusal to comply
with an Oct. 25 order of the AFL-CIO Executive Council." The article states
that "The council had ordered the union to clean house or face ouster, and
listed certain specific actions to be taken by today to eliminate what it termed
corrupt influences.
It would appear that the "corrupt influences" had spread to Local 41.
The purported action taken by members of the union to strike on Novem-
ber 26, 1957 "unless a contract satisfactory to them has been negotiated"
by that date is not our understanding of the method of negotiating a contract
between the employer and the employees. Under no circumstances does the
M. & M. Bakeries intend to negotiate a contract with the union "with a gun
at its head" or a "knife at its back," which is what you are attempting to
do by threatening a strike unless a contract satisfactory to the union is negoti-
ated by November 26th.
You are hereby formally notified that unless and until the Union withdraws
and rescinds its threat to strike, no further negotiations will be carried on
between the union and the M. & M. with reference to negotiating a contract.
The M. & M. Bakeries will be open for business on Tuesday, November 26th,
and any employee desiring employment will be afforded an opportunity to
work. On the other hand, if any employee goes out on strike November 26,
1957, as a result of the vote taken at the meeting held November 20th, he
or she will immediately forfeit any and all rights of future employment with
the Bakery. Your threat to call this strike does not in any way intimidate
the M. & M. Bakeries. If this is your method of doing business, it is a good
thing the company found it out before it entered into any contract with you.
Upon receipt of a letter from you to the effect that the union has rescinded
the vote taken on November 20th to strike, the company is ready and willing
to enter peaceful negotiations in an attempt to work out a contract which is
mutually satisfactory and not one-sided, such as you demand. Any employee
of the M. & M. Bakeries who goes out on strike November 26th as a result of
the vote taken November 20th can look for employment elsewhere, and we
assume that you will communicate this message to your union membership.
Until such time as we receive notification from you that the vote to strike has
been rescinded, all, negotiations for a contract are suspended.
Cudahy did not receive Burns' letter until Monday, November 25. Burns meanwhile
gave a copy of his letter to a local newspaper in Dover and the letter appeared in
full in a story contained in the November 23 issue of that publication. Cudahy's
first knowledge of the letter was from the newspaper account on November 23.
Another special meeting of Local 41 was held on November 25; after reviewing
the bargaining situation, it was determined "that the strike which had been voted on
the 20th should become effective on midnight of that day." The strike accordingly
began on November 26, and the 15 employees named in Appendix A hereof engaged
in the stoppage. Picketing was instituted that same day and continued until
December 2.
On November 27, Respondent sent telegrams to each of the striking employees,
stating as follows: "If you fail to report to work on schedule Thursday, November
28,5 because of strike, your services as an employee with this company are immedi-
ately terminated. Scheduled to report at 12:30 a. m."
Picketing ceased on December 2 and the strikers sought to return to work as dis-
cussed hereinafter. Respondent has not made any attempt to resume negotiations
with Local 41, which Respondent had cut off on November 22.
Respondent adduced testimony to the effect that: General Manager Kress, who
allegedly had been solely responsible for negotiations, became ill early in October
and was thereafter absent from his office and finally left Respondent's employ on
November 1; Robert Barnes, Respondent's treasurer, assumed the duties of general
manager during Kress' disability and later became general manager and President
Stock asked Barnes to take over negotiations; Respondent "intentionally" omitted
classifications and wage scales from its proposed contract because it was considered
advisable "to leave this matter open for discussion"; and Respondent Attorney Burns
was engaged in a jury trial during the week of November 18. As appears above,
none of these purported matters was brought to Local 41's attention, other than the
statement in Burns' September 13 letter that Kress was out of town and would not
a Some of the telegrams contained a report date of November 29.
487926--59-vol. 121-102
1
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return until "around the first of October" and the statement in Burns' September 27
letter that Kress had returned from vacation and would review the contract pro-
posals and would contact Cudahy for an appointment in the very near future.
Conclusions: 8 (a) (5) and (1)
The General Counsel alleges that Respondent violated Section 8 (a) (5) and (1)
by its "continuous dilatory tactics" from August 29 (when the Local first requested
negotiations ) until November 22 (when Respondent suspended negotiations) and,
further, by its November 22 refusal to bargain until the strike threat be withdrawn.
The complete record of negotiations is set forth above, and no point is served by
recapitulation. What does appear during the aforementioned period of approxi-
mately 3 months from August 29 is that, despite continuing requests for meetings
made by the Local, Respondent did not once sit down with Local 41 to negotiate a
contract. The absence and then termination of Kress and the fact that Attorney
Burns was engaged in another proceeding during the week of November 18, is
scarcely excuse for Respondent's conduct over this 3-months period, particularly
when, except to state that Kress was on vacation, Respondent failed to advise the
Local of these circumstances. As the Board stated in the Reed & Prince case,6 "the
negotiation of a collective bargaining agreement is as important as any business trans-
action" and an employer's "good faith in the present instance may be tested by con-
sidering whether it would have acted in a similar manner in the usual conduct of its
business negotiations." The General Counsel's first predicate for an 8 (5) violation
is well established here.
As appears above, Respondent advised the Local on November 22, 1957, that "You
are hereby formally notified that unless and until the Union withdraws and rescinds
its threat-to strike, no further negotiations will be carried on between the Union and
the [Respondent] with reference to negotiating a contract." A union's right to strike
to implement its bargaining demands is guaranteed under the Act and such strikes
or threats of strikes do not suspend an employer's obligation to bargain with the
statutory bargaining representative. Indeed, "the need for carrying out that obliga-
tion when a strike is in progress is all the greater in order that a peaceful settlement
of the dispute may be reached." N. L. R. B. v. Pecheur Lozenge Co., 209 F. 2d
393, 403 (C. A. 2), cert. denied 347 U. S. 953. See, also, N. L. R. B. v. Reed &
Prince Manufacturing Company, 118 F. 2d 874, 882 (C. A. 1), cert. denied 313 U. S.
595; Jeffery-De Witt Insulator Co. v. N. L. R. B., 91 F. 2d 134, 140 (C. A. 4), cert.
denied 302 U. S. 731; N. L. R. B. v. U. S. Cold Storage Corporation, 203 F. 2d 924,
928-929 (C. A. 5), cert. denied 346 U. S. 818. There is thus no merit in Respond-
ent's claim that by calling the strike, Local 41 was itself not bargaining in good faith.
Particularly is this so where, as in the instant case, it appears that the strike action
was really a protest against Respondent's failure to meet with Local 41.
Whether or not Respondent did refuse to bargain in violation of the'Act, Re-
spondent claimed in effect at the hearing that it has been under no obligation to bar-
gain with Local 41 at least since December 10, 1957, because of the expulsion on
that date of Bakery and Confectionery Workers International Union of America
(herein called the International) from the AFL-CIO.7 The certification of Local
41, it is recalled, ran to Local 41, International etc., AFL-CIO; and, as also indi-
cated, the certification resulted from proceedings instituted on petition of Local 41.
Local 41 was chartered by and operates as a subordinate body of the International,
and'the relationship between Local 41 and the International has not been changed
or otherwise affected by reason of the cleavage between the International and the
AFL-CIO. No schism situation or other internal dispute within Local 41 is involved
here,8 and the expulsion of the International did not otherwise create any confusion
here "as to the identity of the organization designated by the employees to represent
them." Louisiana Creamery Inc., 120 NLRB 170. Apart from the fact that Re-
spondent's refusal to bargain in this case occurred before the International's expul-
sion from the AFL-CIO, I find, in any event, that Respondent's disaffiliation con-
tention is without merit .9
9 Reed & Prince Manufacturing Company, 96 NLRB 850, 852 enfd. 205 F. 2d 131
(C. A 1), cert. denied 346 U. S. 887.
7 This followed suspension action on November 15, 1957.
8 See Alto Plastic Manufacturing Corporation, 119 NLRB 1458.
9In addition to the aforecited Louisiana Creamery and Alto Plastic cases, see, for
example, Automotwe Supply Co., Inc., 119 NLRB 1074; Dartmouth Finishing Corporation,
120 NLRB 262 ; Greensboro Coca-Cola Bottling Company, 120 NLRB 84; East Jordan
M & M BAKERIES, INC. 1603
Emmett Cudahy is, as mentioned above, business agent of Local 41 ; he submitted
Local 41 's contract proposals to Respondent in behalf of Local 41 and he otherwise
communicated with Respondent in behalf of Local 41 in such regard , all as recited
above . Local 41 has no bargaining committee in addition to or apart from Cudahy.
Cudahy presided at the Local meeting of August 28, when the Local drafted its con-
tract proposals ; he also presided at Local meetings on November 14, 20, and 25, on
which occasions he reviewed the status of negotiations with the membership and
otherwise advised with them in the premises . It was Cudahy who filed the petition
in behalf of Local 41, which petition resulted in the aforementioned certification of
Local 41, and Cudahy filed a brief and otherwise represented Local 41 in that pro-
ceeding. Cudahy also filed the charges in the present matter in behalf of Local 41
and he represented Local 41 at the instant hearing on such charges . On February
19, 1958 , at the present hearing, Respondent for the first time raised a question con-
cerning Cudahy 's authority to represent Local 41 in negotiations and it stated that
one reason for its refusal to bargain is that no authorized individual made any bar-
gaining requests in behalf of Local 41 . This contention is completely without merit.
I accordingly conclude, as the General Counsel claims, that Respondent violated
Section 8 ( a) (5) and ( 1) of the Act by its dilatoriness in negotiations between
August 29 and November 22, and also by its refusal to bargain on and after No-
vember 22.
Discrimination
Respondent's letter to Cudahy on November 22, 1957 , advised the Local, as set
forth above , that Respondent was discontinuing negotiations until the strike threat
was rescinded and that "if any employee was out on strike . . . he or she will im-
mediately forfeit any and all rights of future employment with the Bakery." Also
as appears above, Respondent notified each of its striking employees on Novem-
ber 27 that "if you fail to report to work on schedule , November 28 [or "Novem-
ber 29"], because of strike , your services as an employee with this company are im-
mediately terminated."
Picketing stopped on December 2 . On December 3, and as spokesman for the
other strikers , employee Octave Aubert called upon Robert Barnes, Respondent's
treasurer and then general manager . Aubert told Barnes that, although he was not
"worried about myself , the boys have got together and they have asked me to come
up and tell you that they would like to return to work." Barnes replied that he
would consult Respondent's attorney , Burns, and would contact Aubert the next day.
Barnes accordingly called Aubert to his office on December 4 at which time he told
Aubert that "we'll place you or any of the boys if we can, anytime we can, but there
will be a loss of seniority." Barnes told Aubert , "you know that when I was talking
about loss of'seniority , you know when a person quits his job and comes back, they
normally lose it." Barnes further advised Aubert that Aubert (who had been in Re-
spondent's employ for 17 years ) and all other strikers would have to file "a new
application," but that if they did receive employment it would be at their former
rate of pay, not at a beginner 's rate.
Later that same day (December 4), the striking employees advised Cudahy of
Aubert's aforementioned conversations with Barnes and they asked what steps they
could take to protect their interests. The employees thereupon agreed that Cudahy
should communicate in writing with Respondent , which he did by the following let-
ter to Bums on December 5, 1957:
As of December 3, 1957, an employee of the M. & M. Bakeries, Inc., Octave
Aubert, acting as spokesman for the following employees of the M. & M.
Bakeries, Inc.:
Octave Aubert Salvatore Fanfera
Martin McManus Armand Ovellette
Rene Gagnon Raymond McDonald
John Harward Maynard Welch
Donald Robitaille Richard Cole
Leo Spencer Joseph Amagnon
Edward Cullen Lloyd Orser
Philip Otis
Iron Works, Inc., 119 NLRB 1657 . The cases cited by Respondent are inapposite and
unnecessary of discussion . For the same reasons appearing above, I also reject a similar
contention respecting ' the charges and the complaint in this case.
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advised Mr. Barnes, the General Manager of the Company, that the economic
strike against the Company , which had been in progress since November 26,
1957, had been terminated and the employees above-listed were ready to return
to work.
Mr. Barnes advised Mr. Aubert that he would have to check the matter
with the Company's, Attorney and would give him a reply as of December
4, 1957.
On Decembei 4, 1957, Mr. Barnes stated to Mr. Aubert that the employees.
in the above-named group had been discharged from the employ of the Com-
pany through the medium of telegrams sent to them on November 27th, 28th
and 29th and that if they desired to return to the employ of the Company,
they would have to file applications as new employees and that when, as and if
openings were available, the Company would then determine whether or not
they cared to re-hire the employees in this group.
In order that there may be no misunderstanding of the Company's position
in this matter, we are formally advising the Company of the willingness of the
employees listed in paragraph one to return. In the event the Company fails
to return these employees to employment within a period of two days, the
Union shall charge the Company with an Unfair Labor Practice in addition to.
the Charge currently before the Board; and the economic strike which has been
concluded will be succeeded by an Unfair Labor Practice strike until the situa-
tion is properly adjusted.
On various dates between December 5 and 9, Respondent reemployed 5 10 of the
striking employees and Barnes testified that all 5 employees "returned in the same
job they had [before the strike], or a better position," including all "rights and
privileges, including seniority." At a hearing on February 3, 1958, before the
Appeals Board of the Unemployment Compensation Commission of the State of
New Hampshire, Barnes testified that the individuals who returned to work after
December 3 "came back as new employees" and with "loss of seniority." When this
prior testimony was called to Barnes' attention at the present hearing , Barnes testi-
fied: ". . . at the time that I was . [testifying before the New Hampshire Com-
mission] a person who came back to work for us would lose all rights and come
back as a complete new employee; but we did not take any of their rights from
them; in other words, they still had the same vacation privileges." Barnes then
testified that he had not advised the five employees "one way or the other," and
then he testified that his aforementioned statement that they returned as "new
employees . . . is the truth in the event that I may want to have. used it."
Conclusions: Discrimination
At the hearing in this matter, Respondent contended that the "crux" of its defense
was that it discharged and then refused to reemploy the strikers because the strike
of November 26 was "illegal because it was not properly called." Respondent
asserted that the strike was "illegal" because it did not conform with provisions
of the International's constitution allegedly requiring that all strike action be
approved by three-fourths of the Local's membership, that application for permission
to strike must be made to the International president, and that a recording secretary
take minutes at all Local meetings. The strike vote was not carried by three-fourth
of, the Local 's membership; no minutes were taken; and there was no showing, and
I shall assume for purpose of this case only, that the International president's per-
mission had not been sought.
I ruled in effect at the hearing that the so -called "illegal strike" contention was
not a proper defense in this proceeding and I affirm that ruling here. Assuming,
but without determining , that the International 's constitution provides as Respondent
states it does, the strike nevertheless is hardly an illegal one so far as Respondent's
obligations under this Act are concerned. The regularity of the strike vis-a-vis
the International 's constitution is one thing ; the propriety of Respondent 's conduct
vis-a-vis the Act in discharging striking employees is something else. The Sixth
Circuit has stated the principle in N. L. R. B. v. Deena Artware, Inc., 198 F. 2d
645, 648, 652, cert. denied 345 U. S. 906. "The failure of the Union, in calling
the strike, to comply with the provisions of its constitution did not make the strike
,an illegal one under the National Labor Relations Act. The Act guarantees to the
employees the right to strike . . . The provisions of the Union 's charter cannot
abridge that right." Cf. International Union of United Automobile etc. Workers v.
O'Brien, 339 U. S. 454.
10 Jack Harward , Joseph Amagnon, Edward 'Cullen , R. Gagnon , and It . McDonald.
AT & M BAKERIES, INC. 1605
Relying on N. L. R. B. v. Marshall Car Wheel and Foundry Co., 218 F. 2d 409
C. A. 5), Respondent advances still another argument for claiming the strike to be
an unprotected activity. The strike, it is recalled, began at midnight, November
25. Respondent, had planned on "double production" on November 26, in view of
the fact that November 28 was Thanksgiving. Respondent thus asserts that the
strike "was called for a time when it would do most damage to the Company."
Reviewing some of the facts, recited above, it appears that after the aforede-
Scribed delays before November 14, Burns finally sent Cudahy a proposed contract
on November 14, but without wage classifications and rates, and stating Respondent's
willingness to meet; on November 15 Cudahy then suggested a meeting on November
21 or 22 and asked Burns to reply; Burns did not reply, and on November 20 the
Local decided on strike action to compel Respondent to negotiate; Burns still did
not reply, and on November 21 Cudahy informed Burns that the Local was planning
to strike on November 26; Burns finally replied on November 22, not with a date
for bargaining but with a complete suspension of negotiations. In Marshall Car
Wheel, on the other hand, foundry employees struck without any prior notice of
any kind and without any prior unfair labor practices by the company, and they
intentionally timed their strike at a certain time of day when molten iron was ready
for pouring; a disruption of that operation at that particular time would have caused
considerable damage to both plant and equipment and would have necessitated a
plant shutdown for consequent repairs. Without further discussion except to point
out that the material element in the Marshall Car Wheel and similar cases is the
threat of aggravated physical injury to plant premises, it would seem that Re-
spondent's reliance on Marshall Car Wheel is somewhat misplaced. See United
States Steel Company v. N. L. R. B., 196 F. 2d 459, 465 (C. A. 7).
The facts, recited above, establish that the strike of November 26 was caused in
whole or in substantial part by Respondent's' failure to bargain in good faith with
Local 41 and that it was, therefore, an unfair labor practices strike." As unfair
labor practices strikers, the strikers were entitled to be restored to their employ-
ment upon application, and Respondent was obliged to discharge, if necessary, any
replacements in order to provide such employment. Respondent failed to do this,
and has thereby violated Section 8 (a) (3) and (1) of the Act. Birmingham
Publishing Company, 118 NLRB 1380; N. L, R. B. v. Clearfield Cheese Co., Inc.,
213 F. 2d 70, 74 (C. A. 3); N. L. R. B. v. Giustina Bros. Lumber Co., 253 F. 2d
371 (C. A. 9).
Even viewing the strike as economic, rather than unfair, in its inception, Re-
spondent discriminated against the strikers by its discharge notices of November
27. Although Respondent admitted at the hearing that it discharged the strikers
and that it did so because of their strike, it also suggests it was only notifying them
that they would be replaced if they did not appear at work at the time stated in the
November 27 telegrams. This latter position is hardly consistent with its afore-
stated position at the hearing, with its letter of November 22 (". .. if any employee
goes out on strike November 26, 1957, . . he or she will immediately forfeit any
and all rights of further employment with the Bakery"), with the wire of November
27, with the requirement that returning employees file new applications, with Barnes'
statement to Aubert that returning strikers would lose seniority, and with Barnes'
testimony before the New Hampshire Unemployment Compensation Commission
that strikers who did return did so as new employees with loss of seniority. I thus
further conclude, even on the hypothesis of an economic strike, that Respondent
violated Section 8 (a) (3) and (1) of the Act by its November 27 wire discharging
the employees for engaging in the strike. N. L. R. B. v. United States Cold Storage
Corporation, 203 F. 2d 924, 927 (C. A. 5); N. L. R. B. v. Giustina Bros. Lumber
Co., supra; Summit Mining Corporation, 119 NLRB 1668.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
u l am mindful of Cudahy's December 5 letter to Barnes stating in part that "the
economic strike which has been undecided will be succeeded by an unfair labor practice
strike" unless Respondent fails to return the strikers to their jobs. Cudahy's opinion on
this matter is hardly decisive.
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily discharged and thereafter dis-
criminatorily refused employment to its striking employees , I shall recommend that
Respondent offer these employees full and immediate reinstatement to their former
or substantially equivalent positions , without prejudice to their seniority or other
rights and privileges , dismissing , if necessary, all employees hired by Respondent
since November 26, 1957. If there is not then sufficient work available for the re-
maining employees including those offered reinstatement, all available positions shall
be distributed among them without discrimination because of union membership or
strike or other activity , in accordance with the system of seniority or other non-
discriminatory practice heretofore applied by the Respondent in the conduct of its
business . Respondent shall place those employees , if any, for whom no employment
is available after such distribution on a preferential list, with priority in accordance
with such system of seniority or other nondiscriminatory practice heretofore applied
by the Respondent in the conduct of its business , and thereafter offer them reinstate-
ment as such employment becomes available and before other persons are hired for
such work. In view of the fact that the 5 striking employees who have since been
reemployed have been rehired as "new" employees with loss of seniority, I do not
consider such employment as reinstatement and I shall therefore include these 5
employees within the recommended order. See Corning Glass Works v. N. L. R. B.,
129 F. 2d 967, 969 (on contempt, C. A. 2); Stewart Die Casting Corporation v.
N. L. R. B., 114 F. 2d 849, 856-857 (C. A. 7), cert. denied 312 U. S. 680. Respond-
ent claims and adduced testimony to the effect that it asked Aubert on December 1,
1957, to return to his former job and that it offered Aubert another job on January
28, 1958. Aubert testified that the former offer was made on November 26, not
December 1, and I credit him and his wife 's corroborating testimony in this regard;
and Aubert denied receiving the latter offer . The purported second offer was not to
Aubert's same job or to a substantially equivalent one although his old job still
existed and was filled by a replacement and, in any event , it was to a job as a "new,
employee" with "loss of seniority ," as discussed above; such purported offer is, there-
fore, of no materiality in this case whether I accept Respondent 's or Aubert 's version;
the former offer is also of no significance as it was made while Aubert was an unfair
labor practice striker, and Respondent in any event later fired Aubert by its Novem-
ber 27 wire.
Respondent shall also be required to make whole all the striking employees by
paying each of them a sum of money equal to the amount he would normally have
earned as wages from December 3, 1957, until the offer of reinstatement less interim
earnings during such period . All payments of back pay are to be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, 291-294.
Several of the striking employees 12 have entered the military services since their
discrimination here. If they are still in the military service, it is recommended that
Respondent immediately notify each of them and any others similarly situated, in
writing, by registered mail addressed to their last known address, that the aforemen-
tioned offer of reinstatement is continued until 90 days after their respective dis-
charges from military service. The back-pay period as to them will run from
December 3, 1957, until induction into the armed services 13 and from a date 5 days
after timely application for reinstatement until the date of Respondent 's offer of
reinstatement.
In view of the nature of the violations here I shall recommend , as necessary to
effectuating the policies of the Act, that Respondent be ordered to cease and desist
from infringing in any manner upon the rights guaranteed in Section 7 of the Act.
There seems to be some confusion in this record , and upon reading the respective
briefs here, as to whether Respondent sent the November 27 wires to employees
Joseph Amagnon and Lloyd Orser . Respondent 's brief states that Respondent sent
the wires to all striking employees , which would include Amagnon and Orser. The
General Counsel 's and Local 41's briefs state that these two men were not sent these
v Donald Robitaille and Richard Cole.
1 The payment of this amount shall be made immediately without awaiting a final
determination of the full amount of the award. See Aerovow Corporation, 102 NLRB
1520, 1540.
M & M BAKERIES, INC. 1607
wires . As I recall the events of the hearing , all employees were sent the wire, but
there was some question as to whether these two men actually received their copies.
There is no question , however, that Respondent concedes sending the wire to all
striking employees, that Amagnon 14 and Orser were striking employees, that Aubert
applied for reinstatement in behalf of all striking employees on December 3, and
that Cudahy again applied for such reinstatement on December 5 and that when he
did so he named them together with all other strikers. I have construed this situ-
ation in this report as Respondent having sent the discharge wires to all strikers,
including Amagnon and Orser. Even if Amagnon and Orser did not receive their
wires, such fact does not affect the remedy as to them; for they were unfair labor
practice strikers, as all the others were, and were accordingly entitled to reinstate-
ment, upon application , and Respondent was required to discharge replacements
hired since November 26, if necessary, to provide employment for them.
CONCLUSIONS OF LAW
1. Bakery and Confectionery Workers Local 41, a/w Bakery and Confectionery
Workers International Union of America, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. All employees, including garage employees and truckdrivers, employed at
Respondent's plant at Dover, New Hampshire, excluding office clerical employees,
driver-salesmen ( wholesale and retail ), guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. At all times since August 12, 1957, Local 41 has been and continues to be the
exclusive bargaining representative of all employees in the above-described unit for
the purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By failing and refusing to bargain with Local 41 since August 29, 1957, Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) and (1) of the Act.
5. By discriminatorily discharging and thereafter failing and refusing to reinstate
its employees set forth in Appendix A hereof, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and
(1) of the Act.
6. By threatening to discharge employees should they engage in a strike, Re-
spondent has violated Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
i* Amagnon, in fact, was 1 of the 5 strikers rehired as a "new employee " with "loss
of seniority."
APPENDIX A
Octave Aubert Leo Spencer Raymond McDonald
Martin McManus Edward Cullen Maynard Welch
Rene Gagnon Philip Otis Richard Cole
John Harward Salvatore Fanfera Joseph Amagnon
Donald Robitaille Armand Ovellette Lloyd Orser
APPENDIX B
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse or fail to bargain in good faith with Bakery and Con-
fectionery Workers Local 41, a/w Bakery and Confectionery Workers Inter-
national Union of America.
WE WILL NOT discharge or refuse to reinstate or otherwise discriminate
against employees for engaging in a strike, and we will not threaten to do so.
WE WILL bargain collectively upon request with Local 41, as the exclusive
representative of all employees in the bargaining unit , with respect to rates
of pay, wages, hours of employment, and other conditions of employment,
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and if an understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is:
All employees including garage employees and truckdrivers, at our
bakery at Dover, New Hampshire, excluding office clerical employees,
driver-salesmen (wholesale and retail), guards, and supervisors as defined
in the Act.
WE WILL reinstate and make whole the following employees for any loss of
pay suffered by them as a result of our discrimination against them:
Octave Aubert Salvatore Fanfera
Martin McManus Armand.Ovellette
Rene Gagnon Raymond McDonald
John Harward Maynard Welch
Donald Robitaille Richard Cole
Leo Spencer Joseph Amagnon
Edward Cullen Lloyd Orser
Philip Otis
All our employees are free to become or remain members of Local 41 or any
other labor organization except to the extent that this right may be affected by
an agreement in conformity with Section 8 (a) (3) of the amended Act.
M & M BAKERIES, INC.,
Employer.
Dated------------------- By-------------------------------- - --------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
General Industries, Inc. and Boilermakers , Iron Ship Builders,
Blacksmiths, Forgers and Helpers Local #40, International
Brotherhood of Boilermakers , Iron Ship Builders , Blacksmiths,
Forgers and Helpers, AFL-CIO. Case No. 9-CA-1216. Octo-
ber 29, 1958
DECISION AND ORDER
On June 2, 1958, Trial Examiner A. Norman Somers issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief. The
Charging Party filed a reply brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
121 NLRB No. 203.