Kern's Bakery, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1965

150 N.L.R.B. 998 (N.L.R.B. 1965)

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Omaha Carpenters District Council and its agent Don Baste-
myer are not entitled, by means proscribed by Section 8(b) (4) (D)
of the Act, to force or require the Employer to assign the above work
to piledrivers represented by the Carpenters.
4. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Omaha Carpenters District Council and its agent
Don Bastemyer, shall notify the Regional Director-for Region 17, in
writing, whether or not they will refrain from forcing or requiring
Bel-Toe Foundation Co., by means proscribed by Section 8(b) (4)
(D), to assign the work in dispute to its members rather than to
laborers and operating engineers employed by the Employer, and
represented by the Laborers Union and Operating Engineers
respectively.
Kern's Bakery, Inc . and Milk, Ice Cream Drivers and Dairy Em-
ployees Local Union #783, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of Amer-
ica. Cases Nos. 9-CA-3015 and 9-CA-3115. January 14, 1965
DECISION AND ORDER
On September 11, 1964, Trial Examiner A. Bruce Hunt issued his
Decision in the above-entitled proceeding, involving two unconsoli-
dated cases with the same parties, finding that the Respondent had
engaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with these cases to' a
three-member panel [Chairman McCulloch and Members Fanning
and Jenkins].
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 Trial
Examiner's Decision, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified herein.
In Case No. 9-CA-3015 the Trial Examiner found, and we agree,
that General Manager Hart's interrogation of applicant Bill Sams
as to whether employees at Sams' previous place of employment were
represented by a union constituted interrogation of Sams as to his
own union membership and therefore violated Section 8(a) (1) of the
150 NLRB No. 87.
KERN'S BAKERY, INC. 999
Act. Although the question as phrased above is not literally an
inquiry into Sams' own membership, nevertheless we believe that such
was its purpose. This is evident in part from Hart's response "that
makes a difference" which followed Sams' explanation that he had
been required to join the Union. Hart's response, with its obvious
coercive implications, warrants the inference that he intended by his
questioning both to ascertain, if possible, Sams' own attitude toward
union membership and to impress upon Sams his own opposition to
union activity. Accordingly, in the absence of any legitimate reason
for the inquiry, we find that Hart's questioning of Sams interfered
with, restrained, and coerced Sams in the exercise of rights guaran-
teed in Section 7 of the Act, and hence violated Section 8(a) (1) of
the Act.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts, as its
order, the Order recommended, by the Trial Examiner and orders
that the Respondent, Kern's Bakery, Inc., its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial Exam-
iner's Recommended Order.
1 Accord Eastman Cotton Mills, 90 NLRB 31, 33. In the absence of exceptions, we
adopt pro forma the Trial Examiner 's conclusion that Hart's response to Sams' volun-
teered information as to the nature of his past union membership could not be construed
as a warning that voluntary union membership would make a difference in Sams' employ-
ment while in Hart's employ.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASES -
We have here two unconsolidated cases involving the same parties. Case No.
9-CA-3015 involves allegations that the Respondent , Kern 's Bakery, Inc., violated
Section 8(a)(1) of the National Labor Relations Act, as amended , 29 U.S.C., Sec.
151, at seq ., and Case No . 9-CA-3115 involves allegations that the Respondent vio-
lated Section 8 (a) (1) and ( 3).1 On February 4, 1964, I conducted a hearing in the
former case, and on May 26 and 27 I conducted one in the latter case , both at Lon-
don, Kentucky . All parties were represented at each hearing. By agreement of the
parties, expressed at the second hearing, my decisions in the two cases are combined
in a single document . The Respondent 's motions to dismiss are disposed of in
accordance with the determinations below.2 Upon the records in both cases and my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE RESPONDENT
Kern's Bakery, Inc., a Kentucky corporation, has its principal office and place of
business in Knoxville, Tennessee, and operates bakeries in several States. We are
'Charges were filed in the former case on November 1 and 12, 1963, and the complaint
was issued on December 18, 1963. A charge was filed in the latter case on February 25,
1964, and the complaint was issued on April 14, 1964.
2 The Respondent's brief in the second case contains various "Suggested Findings"
which are grouped under the numerals 1, 2, and 3. I grant proposed finding No. 1 ; I
grant No 2 to the extent that I find that the evidence does not establish that the Re-
spondent violated Section 8(a) (3) ; and I deny No. 3 to the extent that I find violations
of Section 8(a) (1) in the second case. There are no proposed findings in the first case.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerned only with the operation at London, Kentucky, where the Respondent bakes
bread and rolls and sells them at wholesale and retail. The Respondent annually
purchases products valued in excess of $50,000 which are shipped to the bakery in
London directly from points outside Kentucky. There is no dispute, and I find, that
the Respondent is engaged in commerce within the meaning of the Act.
II. THE UNION
Milk, Ice Cream Drivers and Dairy Employees Local Union #783, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a
labor organization which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES IN CASE NO. 9-CA-3015
A. The issues
The issues are whether, during 1963, the Respondent violated Section 8(a) (1) by:
(1) maintaining and enforcing a rule which, by its breadth, forbade solicitation of
union membership "on company property without the permission of the Respondent";
(2) interrogating and warning an applicant for employment concerning union mem-
bership; (3) distributing among employees a letter in which the Respondent expressed
its opposition to the Union; and (4) telling Ronald McNutt that he was known as
a "ringleader" in the Union and that his union conduct would "mark" him in the
community. London, Kentucky, has a'population of 4,035 according to a 1963-64
"Tour Book" published by 'the American Automobile Association.
B. The rule against solicitation
At times material to this case, Case No. 9-CA-3015, the Respondent maintained
certain rules which were contained in an "Employees' Handbook" under the heading
"Rules To Protect You." One rule read:
Some causes for termination of employment are:
21. Soliciting on company property without permission.
The Respondent asserts that rule 21 was not aimed at union activity, but at other
solicitations, particularly the fact that at one time employees brought punchboards
into the bakery, and there is evidence on behalf of the Respondent that the existence
of the rule brought an end to the sale of chances on such boards. The parties are
agreed that during the life of rule 21 no supervisor ever told an employee orally what
the employee would be permitted to do, or prohibited from doing, in the plant during
nonworking hours.3 On the other hand, the General Counsel argues that rule 21 was
broad enough to embrace solicitation of union membership in the bakery during non-
working hours and that the rule was reasonably calculated to cause employees to
refrain from exercising their statutory rights. If the General Counsel's argument
stretches a point, in that the rule did permit solicitation after management's permis-
sion had been obtained, it nevertheless is true that the rule was calculated to require
a union adherent to disclose his union sympathies to management in order to request
the latter's permission to solicit memberships. The infringement upon employees'
rights is clear. Cf. Solo Cup Company, 144 NLRB 1481; Southwire Company, 145
NLRB 1329. The Respondent argues in its brief, however, that "reasonable men
will differ in the interpretations of the wording of a broad no-solicitation rule and
the inferences drawn from the same," and that, although "the Board has said that
a broad no-solicitation rule standing alone may be presumed to be invalid on its face,
the Board overlooked that well-established principle of law that a party is presumed
to know the law; expressed in another vein, ignorance of the law is no excuse." Upon
the maxim concerning ignorance of the law, the Respondent asserts that employees
are presumed to know their rights under the Act; that their ignorance of any such
right is no excuse; that it can "be presumed" that employees will not interpret "any
no-solicitation rule, however broad on its face," as infringing upon their rights to
solicit union memberships during nonworking hours; and, therefore, "that the pre-
sumption of [employees') knowledge of the law overcomes the presumption of the
invalidity of a general no-solicitation rule ...." The Respondent gives a nice twist
3 During January 1964, the Respondent Issued a revised Employees' Handbook In which
there were several changes and in which rule 21 lost its clarity The rule now reads:
"Solicitation without permission on company property of employees or by employees on
company work time." The complaint does not allege that the revised rule 21 is invalid.
KERN'S BAKERY, INC. 1001
to the maxim Ignorantia juris non excusat. The defect in the twist is that it is not
the employees who seek here to be excused from responsibility for their conduct;
it is the Respondent which seeks to be excused. It may be added that, however
knowledgeable in labor law the employees may be, there is no maxim which charged
them with a certitude that the Respondent would not trespass upon their rights under
the Act. I find that rule 21 as it existed prior to 1964 violated Section 8(a)(1).
C. The interrogation of an applicant for employment
The complaint alleges that during May 1963, the general manager of the plant,
Homer O. Hart, interrogated an applicant for employment concerning the latter's
union membership and warned the applicant "that if he voluntarily joined a union
it would make a difference in the" applicant's job opportunities. The applicant is
Bill Sams, who was hired during May, about 5 months before the commencement of
organizational activities. According to Sams, during an interview preceding his
employment, Hart asked him about a job which he had had in Cincinnati, one of
Hart's questions being whether the employees there were represented by a labor
organization. Sams answered the question affirmatively. Sams contradicted him-
self, however, with respect to whether he volunteered that he had been required to
belong to the labor organization or whether Hart asked if there had been such require-
ment. Sams testified further that upon his statement to Hart that he had been required
to belong, Hart said that "that makes a difference." On the other hand, Hart denied
that there had been any mention of a labor organization in his conversations with
Sams. Nelson Mason, assistant manager at the plant, who had been present at the
conversations, testified in corroboration of Hart. As will appear, I am unable to
credit various portions of the testimony of witnesses for both the General Counsel
and the Respondent, but I do find hereinafter, as the Respondent freely admits, that
Hart has strong feelings against labor organizations. In this instance, I believe that
Sams told the truth when he testified that Hart inquired about a labor organization
at the plant in Cincinnati, and I find that such inquiry violated Section 8(a) (1). On
the other hand, Hart's remark that "that makes a difference," made in response to
Sams' statement that Sams had been required to belong to the labor organization,
cannot reasonably be construed to support the allegation of the complaint that Hart
warned Sams that "if he voluntarily joined a union it would make a difference in"
Sams' job opportunities while an employee of the Respondent .4
D. The Respondent's letter to employees
On or about October 20, 1963, organizational activity among the employees began,
as recited hereinafter in the discussion of the issues in Case No. 9-CA-3115. On
October 28, the Respondent mailed or handed to each employee a two-page letter.
The complaint alleges that the circulation of the letter violated Section 8(a)(1)
because of statements in it that "(A) representation of the employees for purposes
of collective bargaining by the [Union] would cause the employees serious harm;
[and] (B) employees should report to Hart any organizational efforts among them by
the [Union] and [that] Hart would stop such efforts immediately." The pertinent
paragraphs of the letter read:
Since many of you have asked me to state your company's position on this
matter, we wish to make the following points clear to everyone:
1. This matter is of serious concern to your company and to you and your
family. It is our sincere opinion that if a union took over your rights it would
not work to your benefit but to your serious harm.
5. If anybody causes you any trouble at your work or puts you or your family
under any sort of pressure to sign a card, please let me [Hart] know and I will
see that it is stopped immediately.
As recited, the letter spoke of "serious harm" which might flow from self-organi-
zation, but the reference to harm need not necessarily be construed as a threat that
the Respondent would cause it. This is so whether paragraph No. 1 is read in or
out of context. The letter spoke also of Hart's stopping certain possible organiza-
tional efforts, but the reference was to trouble to an employee "at [his] work" and
to "pressure" designed to force an employee to sign a union card. The letter does
4In evaluating Sams' credibility, I am not unmindful that he was laid off before the
first hearing and that, on November 12, 1963, the Union filed a charge alleging that he
and six other employees had been laid off in violation of the Act. Those layoffs are not
in issue.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not support the broad allegation that Hart solicited employees to tell him of "any
organizational efforts" and that Hart said that he would stop such efforts. I believe
that the circulation of the letter was protected by Section 8(c), and I shall recom-
mend that allegations concerning this subject be dismissed.
E. The incident involving McNutt
The complaint alleges that on November 11, 1963, Hart told an employee (Ronald
McNutt) that Hart "knew the employee was a `ringleader' in the [Union's] organiza-
tional efforts among the employees and [that] such conduct would mark the employee
in the ... community..' Before discussing the events of November 11, certain earlier
events must be recited.
During September 1963, before organizational activities began, McNutt, an "extra"
truckdriver, was discharged because of errors in the delivery of bakery products.
Within a few days, he was given employment as a dockman, but it appears that he
did not understand clearly that his employment had been terminated, perhaps because,
as an extra driver, it was not unusual for him to miss a few days' work .5 During late
October, when the Respondent's slow season began, McNutt was among a number
of employees who were laid off, his seniority having been broken at the time of his
discharge and his accumulation of seniority as a dockman having been confined to
about I month. His name is one of those listed in the charge mentioned in foot-
note 4, but the validity of the layoff is not in issue.
On November 11, McNutt went to the plant seeking reemployment. He was then
an employee in layoff status or, at least, an applicant for employment. He talked
to Hart, who explained to him that he had been discharged during September. Dur-
ing the conversation, McNutt said that he thought that he had been laid off because
Hart believed that he had been "mixed up in the Union," and Hart responded that
after the layoff Hart had heard that McNutt was a "ringleader of it." Hart also
spoke of "the Teamster's Union" and sought to discredit it, saying inter alia that it
was "nothing but a bunch of crooks." Hart advised McNutt to keep his "nose clean,"
saying that otherwise he would be "marked." McNutt replied that he was "already
marked." 6 I do not believe that Hart's use of the word "ringleader" in response to
the statement by McNutt constitutes a threat to McNutt as alleged in the complaint.
Nor do I believe that Hart's reference to the Teamsters Union as "a bunch of crooks"
violated the Act. This latter point is discussed in more detail in the discussion below
of the issues in Case No. 9-CA-3115. On the other hand, Hart's advice to McNutt
that the latter would become "marked" if he should not keep his "nose clean" was
clearly a threat that McNutt should cease his union activities.?
5 Although, as stated, McNutt appears not to have understood that he had been dis-
charged, certain facts establish that when be talked with Hart during September, follow-
ing his errors in delivering products, he knew at least that his tenure was in jeopardy.
McNutt testified that Hart told him that his errors had cost the Respondent $50 and
that he had "played hell." McNutt testified further that he responded that he guessed
that he had, and that there may have been tears in his eyes as he told Hart that he
"would appreciate anything, any job." Hart testified in Case No. 9-CA-3115, without
contradiction by McNutt, that the latter already had had two reprimands and that a
third one was prepared as a consequence of the errors in delivery. Three reprimands
within a year constitute grounds for discharge.
6 The findings concerning the conversation between McNutt and Hart are based upon
the former's testimony. On the other hand, Hart testified that he was unaware of
McNutt's union activities until McNutt disclosed them during the conversation, that he
did not use the word "ringleader," and that McNutt referred to himself as a "union hard
worker and instigator." Although I credit a portion of Hart's testimony concerning the
conversation, as set forth in the next footnote, Hart impressed me as being evasive at
times and as not being candid in telling of the conversation. Hart testified that he once
was a member of the Teamsters, but he denied having said so to McNutt. As will appear
in the discussion of Case No. 9-CA-3115, about a month after the conversation with
McNutt, Hart told many employees of his former membership in the Teamsters and of
experiences which he said substantiate his belief that that labor organization is "a bunch
of crooks." I believe that McNutt's version of Hart's remarks has the ring of truth.
7 At one point in the conversation, according to Hart, McNutt expressed a desire to call
upon employees and urge them to revoke their designations of the Union to represent
them, to which Hart responded that the matter was one for McNutt to determine for him-
KERN'S BAKERY, INC.
N. THE UNFAIR LABOR PRACTICES IN CASE NO. 9-CA-3115
1003
A. The issues
The issues in this case are (1) whether, on December 17, 1963, Hart interrogated
an employee, George Cox, concerning the latter's interest in the Union and whether
Hart told Cox that labor organizations are "crooks" and "liars," and (2) whether,
on February 17, 1964, the Respondent invalidly discharged Cox.
B. Hart's conversation with Cox on December 17
Organizational activities began about October 20 when Cox obtained from an
employee, Charlie Brandenberger, the telephone number of a union representative,
J. W. Edrington, who lives in Louisville, and gave the number to Lowell Feltman,
another employee. Feltman called Edrington, who went to London and met with
some employees on October 21. At that meeting, Cox signed a union card.
On November 8, the Union mailed to, or distributed among, the employees a
mimeographed letter saying, inter alia, that "most of" them were aware that an
organizational campaign had begun during October, that the Union had filed a peti-
tion for an election, that there would be an issue concerning the appropriate unit,
and asking the employees to vote for representation by the Union.8
On or about December 17 Hart and one or more other representatives of manage-
ment began to interview employees. According to Hart, he interviewed 120 employ-
ees. According to Paul Eversole, production superintendent at the plant, who was
present at an undisclosed number of the interviews, Hart spoke to one employee at
a time. The only interview which is alleged in the complaint to have violated the
Act is the interview of Cox on December 17 by Hart and Eversole, but Hart testified
that, in substance, he expressed to other employees the same opinion of unions which
he expressed to Cox.
Hart testified that his purpose in interviewing the employees "was two-fold";
namely, (1) to explain that Al Jarvis, a superintendent, had been discharged for
incompetency and had been succeeded by Eversole, who would have broader author-
ity than Jarvis had possessed, and (2) "to make sure that each employee understood
the talk" which Attorney Perrine had given to them, as mentioned in footnote 8,
supra, particularly wherein Perrine had said that each employee had a right to join,
or not to join, the Union, that the Respondent would be unaware who had joined
unless authorization cards should be shown to the Respondent, and that the Respond-
ent believed that the appropriate unit should be broader than that sought by the
Union and should include the truckdrivers and some other employees whom the
Union did not seek to represent. On cross-examination, Hart added that a purpose
was to correct an erroneous statement in the Union's letter of November 8 to employ-
ees. I regard Hart's explanation of his purpose as incomplete and less than candid.
Surely he could have held one meeting of employees on each shift to explain Jarvis'
departure and Eversole's promotion. Surely Hart did not need more than 100 indi-
vidual interviews to discuss statements made by Perrine at a meeting of employees
or to correct a misstatement in the Union's letter to employees. As will appear,
Hart wished to interrogate Cox, and perhaps other employees, and to express to
employees individually his hostility toward the Union, but first I shall set forth por-
tions of the interview of Cox which are not in dispute. With respect to the allegation
that Hart spoke of labor organizations as "crooks" and "liars," he testified with
emphasis that he "called them a bunch of crooks and liars" and said that "that's what
they are." In defense, Hart testified that he explained his assertion by telling of his
self but that McNutt could not go into the bakery and call upon employees. McNutt did
not testify to the contrary, and this portion of Hart's testimony impressed me as truthful.
McNutt's feelings of job insecurity are apparent. On November 11, the day of the con-
versation, McNutt came to the plant seeking reemployment and he volunteered the belief
that his union activities had caused the loss of his job as a dockman. Less than 2 months
earlier, when McNutt lost his job as a truckdriver, he was in tears, or on the verge of
tears, as he asked Hart for any kind of job. See footnote 5, supra. I believe that
McNutt's desire for employment in November was such that he offered to ask employees to
withdraw from the Union.
8 The letter says that on the preceding day, November 7, the employees were addressed
by the Respondent 's attorney , and other portions of the record establish that upon an un-
disclosed date Attorney Perrine did address them . There is no issue concerning the address.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experiences as a member of certain labor organizations , one of which is the Teamsters
International, and by saying that the Union had made untruthful statements in its
letter to employees. As an additional defense, the Respondent relies upon the crimi-
nal convictions of the president of the Teamsters International Union and the fact
that an officer of the Respondent has been indicted for a felony. Additional aspects
of the conversation which are not in dispute are reflected by Cox's testimony. Accord-
ing to Cox, Hart said that he did not know whether Cox had signed a union card,
Hart did not ask whether Cox had signed one, and Cox did not volunteer that he
had done so. Hart said also that the employees had a right to sign union cards if
they so desired and that Cox did not "have to be afraid" about' retaining his job if
he had signed one. In addition, Hart said that the Union's letters to employees
contained untruthful statements and that the appropriate unit being sought by the
Union was too limited in scope because it would exclude the Respondent's truck-
drivers and route drivers .9
Turning to other details of the conversation between Hart and Cox, they both
agree that the former, in telling of the discharge of Superintendent Jarvis for incom-
petency, said that any employee who failed to perform his job properly would be
discharged. I do not regard this remark by Hart as reflecting any intent on the
Respondent's part to discharge Cox because, insofar as appears, Cox was performing
his job capably and, as will appear, it was later that the Respondent posted a notice
of a vacancy, that Cox applied for the job, that he received it, that it was a promotion,
and that he proved to be unable to perform it.
We come now to the disputes concerning Hart's remarks to Cox. Hart asked
whether Cox had received a letter from the Union, and Cox replied that he had
received two letters. Hart asked what the Union had promised Cox and whether
there had been a promise of "more money," but Cox did not answer. Hart said that
the Respondent was operated by "hard hearted business men" who could move the
plant to another locality, thereby lowering costs in transporting finished products and
enabling the Respondent to pay higher wages, but that the plant would not be moved.
At the end of the conversation, Hart asked whether Cox had "any problems," and
Cox answered that there should be a definite hour for starting work each day. About
that time an employee, Bill Gray, entered the room, and Hart asked him the hour
at which he began work each morning. Gray answered that he did not know, and
Hart said that a schedule would be posted the first of the next week.'° I find that
the only violations of Section 8 (a) (1) in Hart's interview of Cox are the former's
remarks and inquiries as recited in this paragraph. Specifically, Hart's inquiries as
to what the Union had promised Cox, and whether it had promised him more money,
were coercive. The question whether Cox had received a letter from the Union was
also coercive, having been calculated to determine at least whether Cox's name was
on the Union's mailing list, and it was not necessary that Hart have such information
if his purpose was to correct an alleged erroneous statement in a mimeographed letter
which he knew that the Union had distributed among employees. Likewise, Hart's
question whether Cox had "any problems" was, in substance, whether Cox had any
grievances, Cox's answer reflects that he answered accordingly, and Hart pursued
the matter and said that a schedule of starting times would be posted. Finally, Hart's
statement that the Respondent was operated by "hard hearted business men" and
that the plant could be moved was a threat, and the threat was not erased by the
additional remark that the plant would not be moved. The statement was reason-
ably calculated to impress upon Cox that the Respondent could, if its "hard hearted
business men" should so decide, transfer the plant's operations to another locality
because of the employees' union activity. - I find that the Respondent, by Hart's
inquiries and statements recited in this paragraph, violated Section 8(a)(1). I find
further that Hart's references to labor organizations as "crooks" and "liars" are pro-
tected by Section 8(c).
9In the Regional Director's unpublished Decision and Direction of Election in Case
No 9-RC-5671, he recited that the Union sought a "unit of production, maintenance,
and dock employees." The quoted words do not include truckdrivers, driver-salesmen,
and certain other employees.
10 The findings • in this paragraph are based upon Cox's testimony. Gray was not a
witness. Eversole's testimony about the entire conversation is brief and does not con-
tradict the findings in this paragraph. Hart's testimony does not deal specifically with
the subjects in this paragraph and, insofar as his overall testimony may be construed as
a contradiction of Cox's testimony concerning such subjects , I reject it. It is apparent
that Hart's purpose in interviewing employees individually was broader than he acknowl-
edged, and I believe that one purpose was to interrogate employees.
KERN 'S BAKERY, INC.
C. Cox's discharge
1005
Cox was hired during June 1961 . For a while he performed various tasks, and
during the latter part of that year he was assigned to packing bread. About Janu-
ary 1 , 1964 , Cox received a promotion . On February 17, he was discharged. The
issue is whether he was discharged because he proved to be unable to perform the
job to which he had been promoted , as the Respondent asserts, or because of his
union activities , as the General Counsel alleges. Before consideration is given to
the work to which Cox was promoted , certain preliminary matters will be discussed.
• With respect to Cox's union activities , we have seen that about October 20, 1963,
Cox gave Union Representative Edrington 's telephone number to Feltman who
called Edrington and thereby initiated the organizational activities . We have seen
too that on October 21 Edrington met with some employees , including Cox, and that
upon that occasion Cox signed a union card . It does not appear that Cox attended
any other union meetings , nor does it appear that he engaged extensively in the
organizational activities . Cox testified that he solicited one employee to join the
Union by handing that employee a card for signature , that he and an unidentified
person or persons put cards in the glove compartment of an employee's automobile,
and that thereafter he told various employees that if they wished to sign cards they
could obtain same from the glove compartment . Following this activity by Cox on
behalf of the Union , on December 17 Hart talked to him as described above, but the
record will not support a finding that the Respondent was aware of Cox's union
activity . According to Cox, upon an occasion when he was discussing the Union
with an employee , Foreman Alvin McDonald stepped from behind a pile of boxes
about 10 feet away, and upon another occasion when he was discussing the Union
with another employee , he turned around and saw that Roy Elmore , superintendent
of maintenance , was standing nearby. On the other hand , various representatives of
management denied knowledge of Cox's interest in the Union , and both McDonald
and Elmore denied having overheard Cox discussing the Union with employees.
During December 1963 , an employee , Ted Ridings , received a promotion. On
December 23, the Respondent posted a notice to employees that the job which
Ridings was leaving was open for bids by interested employees . Cox and two other
employees signed the notice, signifying their interest in succeeding Ridings. Cox,
having seniority over the other two applicants , was offered the promotion , as dis-
cussed in more detail hereinafter . The General Counsel contends that the Respond-
ent promoted Cox with the intent to utilize Cox 's anticipated poor performance on
the new job as a ground for discharging him. There is no evidence that the Respond-
ent solicited Cox to apply for the promotion , but there is evidence which, if believed,
would support a finding that when Cox was given the promotion the Respondent
hoped that he would perform poorly and planned to discharge him. The evidence
is the testimony of Earl Vaughn , an employee , and it involves Fred Wyatt who, the
General Counsel asserts, was a supervisor . We consider first the question whether
Wyatt was a supervisor and, next, Vaughn 's testimony concerning remarks allegedly
made to him by Wyatt. There is considerable evidence on the issue of supervisory
status. I need not recite it all. It suffices to say that a few facts establish Wyatt's
supervisory status and that witnesses for the Respondent who testified that Wyatt
was not a supervisor impressed me as being untruthful on that point . Wyatt testified
that during the forepart of December 1963 he became a leadman with the duty of
"see[ing] that the men was on the job and ... to keep things rolling," but that he did
not become a supervisor until he was placed on salary during the forepart of Febru-
ary 1964. Next, Cox testified without contradiction that, on December 17, when
Hart spoke to him about Superintendent Jarvis' discharge and Eversole 's promotion,
Hart told him also that Wyatt was being promoted from production to managerial
work. Finally, Cox was promoted to the panamat machine about January 1, and
Cox received three reprimands by the middle of that month , all of which occurred
before Wyatt acknowledged that he had become a supervisor . Nevertheless , Wyatt,
in telling of the days when Cox was given a trial period on the machine , used the
pronoun "we" in relating who "brought " Cox to the machine for his daily trial periods.
Too, Wyatt testified that he reported to Eversole that Cox's work on the machine was
poor , that he agreed with Eversole that Cox should be given the reprimands , that he
and Foreman McDonald were present when the reprimands were given , and that he
and McDonald signed the reprimands as witnesses . I conclude that Wyatt was a
supervisor at times material . We turn to his alleged conversation with Vaughn.
Vaughn is one of three employees who worked on the panamat machine. The job
which - Ridings held on the machine, and to which Cox succeeded , paid more than the
job which Vaughn performed , and Vaughn , having had more seniority than Cox, could
have succeeded Ridings if Vaughn had applied for the job . But Vaughn did not apply.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Vaughn, while the notice of vacancy was on a bulletin board and after
Cox had signed it, but before it was too late for other applicants to sign, Wyatt asked
Vaughn not to apply for the vacancy, saying that Cox should have the job "for a while"
and that the Respondent would "get rid of" Cox, following which Vaughn could have
the job. Vaughn testified further that, when Cox began to work on the machine,
Wyatt asked Vaughn to perform his own job improperly so as to "make it hard" for
Cox to do the work and to cause Cox to quit. Vaughn testified also, however, that
Wyatt did not say why he wanted to get rid of Cox or why he wanted Cox to quit, but
that Vaughn did perform his work improperly for 2 days or so. On the other hand,
Wyatt denied that he had the conversations with Vaughn. Although I have discred-
ited Wyatt's denial that he was a supervisor, I cannot credit Vaughn's testimony con-
cerning the conversations. First, when Cox began work on the panamat machine,
he had a trial period of at least a week during which he worked at the machine 2
hours or so a day. Ridings worked with him, teaching him to perform the tasks.
According to Vaughn, at Wyatt's request he made "it hard" for Cox during the first
days of the trial period. During the hearing, I visited the plant in company with all
counsel and I observed the machine and three employees at work on it. It may be
that Vaughn could have performed his work in such a way as to cause Cox difficulties
and that Cox, being new on the job, would not have noticed Vaughn's actions. But
Ridings, an experienced and capable man on the machine, was working with Cox.
I do not believe that Vaughn's misperformance of his tasks would have escaped
Ridings' notice. Second, an effort to "make it hard" for Cox during the trial period
may have been calculated to cause Cox to conclude that he could not perform the
work on the machine properly, but it does not follow that the effort also was cal-
culated to cause Cox to quit his employment. During the trial period, Cox was free
to return to his job packaging bread if the job on the machine had not suited him
Consequently, I doubt seriously that Wyatt spoke to Vaughn of trying to cause Cox
to quit. Moreover, while Vaughn allegedly was making "it hard" for Cox, certain
persons (Ridings, Wyatt, and Eversole) "practically stayed with" Cox in efforts to
help him learn the new tasks, as Vaughn testified. Such efforts by management are
inconsistent with an attempt to "get rid" of Cox or to cause him to quit. Third,
Vaughn's testimony that he wanted to succeed Ridings, and that he refrained from
applying at Wyatt's request, is not very plausible. Cox was discharged during Feb-
ruary. Vaughn did not apply to succeed Cox although, if Vaughn had applied,
Vaughn's seniority would have enabled him to get the job. Vaughn did not testify
concerning why he failed to apply for that vacancy although, according to him, he
had really wanted the job because it paid 25 cents per hour more than he was earn-
ing. Vaughn did testify, however, that he ceased his efforts to "make it hard" for
Cox because he "figured that if [the Respondent] did Cox that way [the Respondent]
would do [him] that way after [he] got the job" as successor to Cox. This reasoning
does not explain why Vaughn thought that the Respondent might have wanted to
create difficulties for him. Unlike Cox, Vaughn never signed a union card or attended
a union meeting 11
li Notwithstanding my conclusions concerning Vaughn's testimony, the record is clear
that Vaughn talked with Cox concerning remarks allegedly made to Vaughn by Wyatt.
According to Vaughn, after Cox had worked on the machine for about 3 weeks, Vaughn
told Cox of his conversations with Wyatt. According to Cox, however, he and Vaughn
were discussing Wyatt and Eversole when Vaughn inquired if Cox knew that he had
been transferred to the machine in order "to be fired," to which Cox responded that he
"kinda figured" so because he had heard that Vaughn wanted the job but had refrained
from applying for it, and that Cox figured that he would be discharged when his "work
wasn't satisfactory." Cox's "figuring" seems to have found quick support in Vaughn's
remarks to him. Cox testified further that Vaughn told of having been asked to "make
it . . . hard on" Cox, and that Cox assumed that Vaughn was describing a conversation
between Vaughn and Eversole instead of one between Vaughn and Wyatt. On February 17,
when Cox was discharged by Eversole, Cox said to him, so Cox testified, that Cox expected
to be discharged because Eversole had talked with "the wrong man" in telling Vaughn
that Cox would be discharged. Cox testified also that Eversole emphatically denied hav-
ing so spoken to Vaughn. Within a day after Cox's discharge, Eversole sent for Vaughn
and, according to Vaughn's testimony, said to Vaughn that Cox, quoting Vaughn, had said
that Eversole "set [Cox] up to be fired," to which Vaughn responded that he had not
told Cox "anything like that at all" and that he did not know why Cox had made such
a statement to Eversole. Vaughn's testimony indicates that he did not tell Eversole of
the alleged conversations with Wyatt, and it is clear that, if Vaughn's conversation with
Cox about a prospective discharge occurred earlier, Vaughn chose to have Eversole be-,
lieve the contrary.
KERN'S BAKERY- INC. 1007
We come now to the details about the panamat machine and to Cox's work on it.
The function of the machine is to sever small balls of dough from a mass, roll and
flatten the balls into shapes and sizes suitable for baking as buns for hamburgers or
frankfurters, and to drop the flattened dough into cooking pans, each of which contains
24 saucerlike receptacles for the pieces of dough. The machine operates automatically
and at a fixed speed. Three men work at it. The first, James Farris, called the divider,
stands at the head of the machine and periodically weighs a ball of dough to be sure
that the balls are of the correct size. The second man, Vaughn, called the pan setter,
inserts empty pans into the machine at a point below the conveyors of the dough so
that there will be pans in place to catch the pieces of dough as they fall from the con-
veyors. The third man, Cox, called the pan racker, stands at the foot of the machine
and removes the pans containing dough, placing them in racks that hold 40 pans,
preparatory to the baking process. The pan racker's additional duties are to see that
each receptacle in each pan has a piece of dough snugly within it, to remove from pans
pieces of dough that are too small or too large for the type of bun to be cooked, and
to make adjustments at his end of the machine to assure that machinery at that end
functions properly. The pan racker must be constantly alert. He has no time to
waste. The pans come from the machine one after another at a set speed. If a piece
of dough has not fallen into a particular receptacle, the pan racker must obtain a piece
from a supply at hand and place it in the receptacle. If pieces have not fallen snugly
into the receptacles, the pan racker must place them therein, preferably by shaking
the pan. If he is slow, another pan will be out of the machine before the preceding
pan has been racked.
When Cox's application to succeed Ridings was approved, Eversole told him that he
would be given a trial period and that, if he should thereafter accept the promotion
and fail to perform his work properly, he would not be permitted to obtain demotion
to his job packaging bread which would have been filled by the promotion of another
employee. During the trial period, Cox was assisted by Ridings, Wyatt, and Eversole,
as he and Vaughn testified for the General Counsel and as other witnesses testified for
the Respondent. At the end of the trial period, according to Cox, Eversole asked what
Cox "thought about" the job, and Cox expressed indecision concerning his ability to
perform it, whereupon Eversole offered to extend the period "a couple of extra days."
Cox testified further that upon more than one occasion he told Eversole that he did not
want the promotion if his work on the machine was unsatisfactory, that he was unsure
that he could do the work, and that he never told a supervisor that he was willing to
accept the job on a full-time basis. On the other hand, Cox testified also that sometime
after the trial period, Wyatt told him that "in the morning [the job] is going to be
yours [to do] by yourself," and that Cox did not reply to•Wyatt's*remark. I conclude
that Cox was not forced by the Respondent to accept the promotion and that Cox
accepted it of his own choice. The date was about January 6, 1964.
After Cox obtained the promotion on a full-time basis, he had difficulties. On each
of 3 days, January 10, 13, and 15, Cox received a written reprimand from Eversole.
The reprimands refer to "cripples," which are pieces of dough that are unsuitable for
baking for various reasons, including that they are not of the correct size, that they are
not snug in the pan's receptacles, or that they contain fingerprints of the pan racker at
places where the prints will show after the baking process. Although Eversole, Wyatt,
and McDonald testified for the Respondent that the three reprimands were given, Cox
testified that he received only one reprimand, that it was oral although Eversole had
a piece of paper in his hand, and that it was received on January 15. I cannot credit
Cox's testimony that he received only one reprimand. The record is clear that Cox's
work on the machine left much to be desired, and I 'am'not persuaded that the
Respondent had undertaken a scheme to discharge Cox for invalid reasons and to
falsify records as a part of the scheme.12 Following the third reprimand, Cox's work
improved and on or about January 27 he was given a wage increase to the rate pro-
vided for a pan racker.13
During February, according to testimony for the Respondent, Cox's work 'again
became poor. On February 17, Eversole discharged him. Although Cox denied that
his work became poor, it is clear from Vaughn's testimony for the General Counsel
121 am not unmindful of certain inconsistencies in the testimony of Eversole , Wyatt,
and McDonald concerning the events when the reprimands were given to Cox, nor am
I unmindful that I discredited the testimony of those representatives of management on
the question whether Wyatt was a supervisor.
13 On January 6, which was about the date that Cox was assigned full time to the
machine, Foreman McDonald gave him a wage increase, but Eversole upon learning of
the matter, rescinded the increase at the end of the workweek because, in his view, it
should not have been granted until Cox had demonstrated ability on the job.
775-692-65-vol. 150-65
1008 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
that Cox had difficulty performing his work during February and that he did not per-
form as well as the man he succeeded, Ridings, or the man who succeeded him after
his discharge, Eugene Beckner. According to Vaughn, he did not know why Cox had
the difficulty but he would " guess" that it was Cox's fault. The evidence reflects that
Cox never mastered the problems of setting up and adjusting the mechanism on his
end of the machine, and a faulty setup or adjustment was one reason that pieces of
dough did not fall snugly into the receptacles in the pans. Cox also did not process
the dexterity to be a competent pan racker. As one pan after another came out of the
machine, Cox had too little time in which to look at the pieces of dough in the 24
receptacles, remove and replace the pieces that were too small or too large, make sure
that all pieces of dough became snug in the receptacles by shaking the pan or
nudging the pieces into the receptacles, and put the pan in the rack. According to
Vaughn, in replacing an undersized or oversized piece of dough, a pan racker will not
leave his fingerprints on the piece of dough that is a replacement if-the racker has
"enough time to handle it right." When Cox was unable to get a pan racked in time to
attend to the next pan, he put the first one aside, later putting others on top of it, creat-
ing a pile. Cox testified that once a day, on an average, he knocked over the pile of
pans, spilling the dough onto the floor. He testified also that he could not fix the maxi=
mum number of pans that he knocked over in a day, but that he would "say ten or
twelve." According, to Vaughn, sometimes the pans "just fell" to the floor because
they were not balanced one upon another. Vaughn estimated that Cox knocked the
pans over, or that they "just fell," twice a day, and that this was two or three times the
number of pans that fell or were knocked over when Cox's predecessor or successor
worked as the pan racker.14
The record will not support the General Counsel's contention that the Respondent
promoted Cox to pan racker with the intent to utilize Cox's anticipated poor per-
formance as a ground for discharge. Vaughn's testimony concerning conversations
with Wyatt in this connection has been rejected, and we have seen also that the
Respondent had various persons, including Wyatt, assist Cox and teach him to per-
form his tasks. Moreover, the Respondent did not suggest to Cox that he apply for
the pan racker's vacancy, nor did the Respondent force him to take the job. Finally,
insofar as appears, Cox attended only one union meeting, during October 1963, and
he engaged in little union activity, all about 2 months before he obtained the promotion
to, pan racker. Assuming that the Respondent was aware of Cox's interest in the
Union, and bearing in mind the Respondent's hostility toward the organization as
reflected by the violations of Section 8(a)(1), I conclude that the record does not
warrant a finding that Cox's discharge violated Section 8(a) (3).
Upon the basis of the above findings of fact, and upon the entire records in the two
cases, I make the following: -
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the, Act.
2. By interfering with, restraining, and coercing employees in the exercise of their
rights under the Act, the Respondent has engaged, in. and is engaging in unfair labor
practices affecting commerce within the meaning of Section 8(a) (1) and Section 2(6)
and (7) of the Act.
3. The Respondent has not engaged in unfair labor practices by the 'discharge of
Cox. -
RECOMMENDED ORDER
Upon the entire record in both cases and pursuant to Section 10(c)• of the Act, and
in order to effectuate the Act's policies, I hereby recommend that the Respondent,
Kern's Bakery, Inc., London, Kentucky, its officers, agents, successors, and assigns,
shall:
14 Cox testified that on the day of his discharge, when the machine was not operating,
Wyatt took him from the machine to show him some "cripples" which had been overlooked
and which had been detected later in the baking process. According to Cox, while he was
with Wyatt, Farris, the employee at the head of the machine, started it, and when Cox
returned "dough was all on the floor" and Vaughn was "catching the dough." Wyatt
and Farris contradicted Cox. Vaughn did not testify about any such incident. ' Surely,
if an incident of this sort occurred, it would have been witnessed by employees who could
have testified for the General Counsel in support of Cox's testimony.
KERN,'S BAKERY, INC. 1009
1. Cease and desist from: ,
(a) Prohibiting solicitation of union memberships on company property during
nonworking hours.
(b) Inquiring of employees whether they received communications from labor
organizations, inquiring of them as to promises made to them by such organizations,
and asking them the nature of their grievances. f1
(c) Threatening to move its operations because of the employees' union activities,
and otherwise threatening employees concerning such activities.
(d) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary 'to effectuate the policies
of the Act:
(a) Post at'its bakery in London, Kentucky, copies of the attached notice marked
"Appendix." 15 ' Copies of said notice, to, be furnished by the Regional Director for
Region 9, shall, after, being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof,` and be maintained by it for at least 60 con-
secutive days thereafter, in conspicuous places, including all places where notices to
employees customarily are posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any material.
(b) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision, what steps the Respondent has taken to comply herewith.16
It is further recommended that the complaint in Case No. 9-CA-3115 be dismissed
insofar as pit alleges that the Respondent invalidly discharged George Cox, and that
the complaints in that case and in Case No. 9-CA-3015 be dismissed insofar as they
allege violations of Section 8(a) (1) not found herein.
15 If this Recommended Order should be adopted by the, Board, the words "as Ordered
by" shall be substituted for "as recommended by a Trial Examiner of" in the notice. In the
further event 'that the Board's Order be enforced by a decree of a United States Court of
Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order
of" shall be inserted immediately following "as Ordered` by."
'1 If this Recommended Order should be 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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner ofthe National Labor Relations Board, we
are posting this notice to inform our employees of rights guaranteed to them by the
National Labor Relations Act:
WE WILL NOT prohibit the solicitation of union memberships on company
property during nonworking hours.
WE WILL NOT inquire of you whether you received communications from
unions, nor inquire as to promises made to you by unions, nor ask you the nature
of your grievances.
WE WILL NOT threaten to move our bakery because of your union activities, nor
will we threaten you in any other way concerning such activities.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to`join'a unioil''of your own choice and to engage in union
activities, -or not to join a union and not to engage in such activities.
KERN'S, BAKERY, INC.,
Employer.
Dated------------------- By---- ---------------------------------------
(Represeatative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any material.
If the employees have any questions concerning this notice or whether the Employer
is complying with its provisions, they may communicate with the Board's Regional
Office, Room'2023, Federal Office Building, 550'Main Street; Cincinnati, Ohio, Tele-
phone No. 381-2200. '
'