Keystone Pretzel Bakery, Inc.

National Labor Relations Board - Board Decisions

May 24, 1979

242 N.L.R.B. 492 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Keystone Pretzel Bakery, Inc. and Bakery and Con-
fectionery Workers International Union of America,
Local 6. Case 4-CA-8746
May 24, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On June 13, 1978, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a memorandum in support of its ex-
ceptions, the General Counsel filed exceptions and a
supporting brief, and Respondent filed cross-excep-
tions and a supporting brief. Subsequently, the Gen-
eral Counsel filed an answering brief to Respondent's
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge, as
modified herein.
I Respondent contends that the Board should reject the Administrative
Law Judge's credibility resolutions on the ground that the Administrative
Law Judge used a "boilerplate footnote," failing to either specify reasons for
his credibility resolutions or summarize conflicts in the testimony, and uni-
formly discredited Respondent's witnesses. Respondent further contends that
"the inherent probabilities" militate against the testimony credited by the
Administrative Law Judge and that the Administrative Law Judge evi-
denced a bias or prejudice in favor of the Charging Party in this proceeding.
As we have stated in the past, we agree that it is bad practice for an
Administrative Law Judge to use a boilerplate footnote or other generalized
finding on credibility issues, since that practice increases the Board's burden
of assessing a cold record. However, a boilerplate footnote in itself is insuffi-
cient reason to reject routinely the Administrative Law Judge's findings and
is not a basis for the Board to conclude that the Administrative Law Judge
failed to consider all the evidence. See Don Moe Motors, Inc., 237 NLRB
1525, fn. 1 (1978), and cases cited therein. Accordingly, we have carefully
examined the entire record in light of Respondent's contentions and find no
basis for reversing his findings. We further reject, as unsupported, the
charges of bias alleged by Respondent.
2 The Administrative Law Judge concluded that Respondent violated Sec.
8(aXl) of the Act when Secretary-Treasurer Horace Groff, during a conver-
sation with employee Ken Hall on May 27, 1977, stated that he had heard
from several sources that Hall knew something about the Union and that he
would check his sources to determine whether Hall was lying about having
nothing to do with the Union. The Administrative Law Judge found that
Grofis statements constituted an implicit assertion of surveillance and a
restraint upon employee exercise of rights guaranteed by the Act. Respon-
dent excepts to this finding on the ground that the complaint did not specif-
ically allege these facts as a violation of the Act. It is well established that
where, as here, the facts underlying the violation are fully developed at the
hearing, an unfair labor practice finding can be based on the issues litigated
as well as those specifically alleged in the complaint. C d E Stores, Inc.,
C E Supervalue Division, 221 NLRB 1321, fn. 3 (1976).
The Administrative Law Judge found, and we agree, that Respondent's
entire course of conduct at a May 31 meeting, including Respondent's solic-
iting and satisfying grievances, violated Sec. 8(aXl) of the Act. However, the
Administrative Law Judge failed to include specific language in his recom-
1. The Administrative Law Judge found that Re-
spondent's president, Glen Hyneman, as he was dis-
tributing paychecks on May 27, 1977, 3 stated to em-
ployee Ken Rohrer, "Here is your check, union
steward." The Administrative Law Judge further
found that Hyneman made this remark in a jocular
fashion and that Rohrer took it as a joke.4 He con-
cluded, therefore, that Hyneman's conduct was not
violative of Section 8(a)(l) of the Act, and recom-
mended that the allegation based on this incident be
dismissed. We disagree with the Administrative Law
Judge's conclusion.
As the Board stated in Hanes Hosiery, Inc., 219
NLRB 338 (1975):
We have long recognized that the test of inter-
ference, restraint, and coercion under Section
8(a)(1) of the Act does not turn on Respondent's
motive, courtesy, or gentleness, or on whether
the coercion succeeded or failed. The test is
whether Respondent has engaged in conduct
which reasonably tends to interfere with the free
exercise of employee rights under the Act.
Respondent's conduct herein meets this test. Al-
though Hyneman's remark may be characterized as
jocular, "[i]t is the fact, and not the manner, of inter-
rogation [or, as here, creation of the impression of
surveillance] which interferes with or coerces the em-
ployees in the exercise of their rights."5 Moreover,
this incident was not an isolated one, but occurred in
the midst of Respondent's other unfair labor prac-
tices, inlcuding interrogation of Rohrer and other em-
ployees concerning their union activities. Only a few
days earlier, Hyneman had interrogated Rohrer
about the Union. When Rohrer denied knowing any-
thing about the Union, Hyneman stated that he had
been told Rohrer and employee Ken Hall had been
passing out cards and were ringleaders in the union
activity. Also, Hyneman and Horace Groff, Respon-
dent's secretary-treasurer, had been at the plant on
the evening of May 26, and Hyneman had interro-
gated Hall about the Union. Further, as Hyneman
was passing out paychecks on May 27, he also inter-
rogated employee Charles Swift about the Union.
When Swift replied that he knew nothing, Hyneman
mended Order with respect to his finding that Respondent promised to sat-
isfy the employee's grievances. Accordingly, we shall include an appropriate
provision in our Order.
3 Unless specifically stated otherwise, all dates herein refer to 1977.
The Administrative Law Judge refers to this incident in both sec. Ill,B,5,
and sec. Ill,C,6, of his Decision. In the latter section, the Administrative
Law Judge erroneously states that the incident involved Hyneman and em-
ployee Ken Hall. The record clearly shows that the incident involved Hyne-
man and Rohrer. This apparently inadvertent error is insufficient to affect
the results of our decision.
Hanes Hosiery, Inc., supra at fn. 2. See also Jarva Incorporate4 235
NLRB 1047, 1051 (1978).
242 NLRB No. 77
492
KEYSTONE PRETZEL BAKERY
kicked some boxes nearby and said that if he were not
the boss he would be "kicking some asses."
Hyneman's reference to Rohrer as "union steward"
clearly indicated his knowledge of Rohrer's union ac-
tivities. Yet there is nothing in the record to suggest
that Hyneman's knowledge of those activities could
have been acquired through casual and normal obser-
vation of employees. Rather, the remark, in the cir-
cumstances here, clearly implies that Hyneman's
knowledge had been acquired through surveillance of
union activities. Accordingly, we conclude that Hyne-
man's reference to Rohrer as "union steward" vio-
lated Section 8(a)(l) of the Act.
2. The Administrative Law Judge found that the
Union had not been designated as bargaining repre-
sentative by a majority of Respondent's employees.
He based this finding on his determination that the
authorization cards signed by employees Sandra
Mays, Phyllis Kline, and Doris Geyer did not consti-
tute valid designations of the Union as bargaining
representative. Contrary to the Administrative Law
Judge, we find, for the reasons set forth below, that
the cards signed by Mays, Kline, and Geyer are valid
designations and we shall count these cards in deter-
mining the Union's majority status.
The record shows that all 17 authorization cards
submitted by the General Counsel in support of the
Union's claim of majority status contain clear and
unambiguous language indicating that the signers au-
thorized the Union to represent them for the purpose
of collective bargaining. Union Business Representa-
tive Thomas Murray solicited 12 of the 17 authoriza-
tion cards-7 at a union organizational meeting on
May 21, and 5, including those of Mays, Kline, and
Geyer, by individual solicitations on various dates be-
tween May 23 and 27. The only testimony in the rec-
ord pertaining to the circumstances surrounding the
solicitation of the cards signed by Mays, Kline, and
Geyer is that of Murray. Mays and Geyer did not
testify at the hearing and, although Respondent
called Kline as a witness, she was not questioned as to
the circumstances surrounding the signing of her au-
thorization card.
Murray testified that on May 24 he visited Kline's
home, where Geyer also happened to be visiting, and
spoke with them for half an hour to an hour about the
Union, wages and working conditions in the area,
and contracts which the Union had with various
plants. Murray asked Kline and Geyer to sign cards,
stating that the purpose of the cards was "to bring an
election in, for the purpose of negotiating a contract,
to better the wages, working conditions, etc., the
benefits." Kline and Geyer then filled out and signed
their cards. Murray testified that he went to Mays'
home on May 27, where Mays told him that she had
heard rumors that the Union was "around." Murray
asked Mays to sign a card, telling her what he had
told Kline and Geyer as to the purpose of the card.
In finding these three cards to be invalid designa-
tions, the Administrative Law Judge held in effect
that the General Counsel has a burden of proving
that the employees read their cards and that the Gen-
eral Counsel did not meet this burden. The Adminis-
trative Law Judge reasoned that Murray's statement
of the cards' purpose was inconsistent with the lan-
guage on the face of the cards and, absent proof that
the employees read their cards, Murray's statement
constituted a representation that the only purpose of
the card was to "get an election." We disagree.
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575 (1969), the Supreme Court approved Board law
on determining the validity or invalidity of authoriza-
tion cards, as set forth in Cumberland Shoe Corpora-
tion, 144 NLRB 1268 (1963), enfd. 351 F.2d 917 (6th
Cir. 1975), and reaffirmed in Levi Strauss & Co., 172
NLRB 732 (1968). The Court described Board law in
the following terms (395 U.S. at 584):
Under the Cumberland Shoe doctrine, if the card
itself is unambiguous (i.e., states on its face that
the signer authorizes the Union to represent the
employee for collective bargaining purposes and
not to seek an election), it will be counted unless
it is proved that the employee was told that the
card was to be used solely for the purpose of
obtaining an election.
With respect to employees who sign cards upon al-
leged misrepresentations as to their purpose, the
Court said, "[E]mployees should be bound by the
clear language of what they sign unless that language
is deliberately and clearly canceled by a union adher-
ent with words calculated to direct the signer to disre-
gard and forget the language above his signature."
(395 U.S. at 606.) The Court cautioned the Board not
to apply the Cumberland Shoe rule mechanically, and
quoted with approval the Board's language in Levi
Strauss, supra, that "It is not the use or nonuse of
certain key or 'magic' words that is controlling, but
whether or not the totality of circumstances sur-
rounding the card solicitation is such as to add up to
an assurance to the card signer that his card will be
used for no purpose other than to help get an elec-
tion." (395 U.S. at fn. 27.)
One factor which the Board has considered in the
"totality of circumstances" is whether the employees
read the cards. Thus, where an employee was told
that his card would be used only to get an election,
affirmative evidence that the employee did not read
the card supported the conclusion that the card was
signed in reliance on the misrepresentation as to its
493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only purpose.6 On the other hand, where employees
were merely told the purpose of their cards was to get
an election, affirmative evidence that the employees
read their cards supported the conclusion that the ref-
erence to an election were not misrepresentations of
the cards' purpose.7 In other cases, however, the
Board has held authorization cards valid, without ref-
erence to, and in the apparent absence of, affirmative
evidence that the employees read their cards.8
In the instant case, there is no evidence as to
whether Mays, Kline, and Geyer read their cards. As
mentioned above, Mays and Geyer did not testify
and Kline was not questioned about the circum-
stances surrounding the signing of her card. However,
in our view, the absence of such evidence does not, as
suggested by the Administrative Law Judge, compel a
conclusion that these employees did not intend to
designate the Union as collective-bargaining repre-
sentative.
We conclude that the General Counsel established,
through Murray's testimony and the unambiguous
language on the face of the authorization cards, the
prima facie validity of the cards signed by Mays,
Kline, and Geyer. Murray's statements that the cards
would be used to get an election did not negate, and
were not inconsistent with, the clear and unambigu-
ous statement on the cards that the signers authorized
the Union to represent them for purposes of collective
bargaining. We find nothing in the circumstances sur-
rounding the solicitation of the cards which would
indicate that Murray deliberately and clearly directed
these employees to disregard the language on the
cards, or otherwise assured them that their cards
would be used for no purpose other than to get an
election. Accordingly, in the absence of any misrepre-
sentation as to the purpose of the cards, we find the
cards of Mays, Kline, and Geyer to be valid designa-
tions of the Union as collective-bargaining represent-
ative.
For similar reasons, we will count all seven of the
authorization cards executed at a union organization-
al meeting on May 21. At the union meeting, Murray
distributed cards to the seven employees in attend-
ance and told them that the cards would be used "for
the purpose of bringing a federal election into the
plant, and through this process ... become the bar-
gaining agent for wages, hours and working condi-
6 Brookland, Inc., 221 NLRB 35(1975). Cf Serv-U-Stores, Inc., 234 NLRB
1143 (1978), where the fact that an employee had read his card was deemed
irrelevant, since the solicitors of the card had told the employee that the card
would be used only to obtain an election, thereby canceling the language on
the card and directing the employee to disregard the language above his
signature.
7 Hedsirom Company, a subsidiary of Brown Group, Inc., 223 NLRB 1409
(1976).
' See, e.g., Walgreen Company, 221 NLRB 1096 (1975); Medley Distilling
Company, Inc., 187 NLRB 84, 85, fn. 8 (1970).
tions and benefits," Murray's credited testimony was
that the employees "reviewed the cards," and we
agree with the Administrative Law Judge that this
means the employees read the cards. Murray testified
that he said to the employees at the time they signed
their cards, "You have already formed yourself a
union. You got together. You have already took [sic]
the first step by getting the cards signed." Inasmuch
as these employees were not told that their cards
would be used solely for the purpose of obtaining an
election, and the totality of circumstances does not
indicate that Murray's statements amounted to an as-
surance that the cards would be used for no purpose
other than to get an election, we find these cards are
valid designations of the Union as collective-bargain-
ing representative.
Accordingly, we find that the Union solicited valid
authorization cards from a majority of employees in
the appropriate unit of 29 employees.9
3. We further find that the unfair labor practices
committed by Respondent warrant the issuance of a
bargaining order in this case. The record shows that
Respondent embarked on its course of unlawful con-
duct shortly after the Union's organizational cam-
paign began in April, when it engaged in surveillance
and encouraged and authorized employee Douglas
Shertzer to engage in surveillance. Respondent's
course of unlawful conduct continued through May,
when Respondent unlawfully granted Shertzer's wage
increase, withheld Hall's wage increase, continued its
surveillance of union activities, and interrogated em-
ployees as to their union activities. Respondent's un-
lawful activity culminated in the May 31 employee
meeting, during which Respondent solicited and
promised to satisfy employees' grievances, promised
and subsequently granted retroactively raises to al-
most all employees, and conducted an unlawful poll.
We find that this campaign of serious and extensive
unfair labor practices had the tendency to undermine
the Union's majority strength and impede the elec-
tion process. In this regard, we agree with the Admin-
istrative Law Judge's findings that in I week the
Union's support in the plant had been obliterated and
9 As mentioned above, the General Counsel submitted 17 authorization
cards in support of the Union's claim of majority status. In addition to the
cards of Mays, Kline, and Geyer and the seven cards executed at the May 21
union meeting, found above to be valid, Murray solicited cards from em-
ployees Ken Hall and Jim Helm, and five cards were solicited by employees.
We adopt the Administrative Law Judge's findings that these cards are also
valid designations of the Union as bargaining representative. In finding em-
ployee Helm's card to be valid, however, we find it unnecessary to rely on
the fact that Helm testified as a witness for the General Counsel.
The parties stipulated to the inclusion of 28 employees in the unit and to
the exclusion of office clerical employees. The Administrative Law Judge
found, and we agree, that employee Joanne Herbert should be included in
the unit and that the truckdriver, the three bakers, Leroy Hyneman, and
Michael Boaman should be excluded from the unit. Member Truesdale
would exclude Leroy Hyneman and Michael Boaman on the ground that
they have close familial relationships with Respondent's management. See
the dissent in Tops Club, Inc., 238 NLRB 928 (1978).
494
KEYSTONE PRETZEL BAKERY
that the result of the May 31 poll more reliably re-
flected the success of Respondent's unfair labor prac-
tices than the employees'uncoerced desires. We fur-
ther find that the possibility of erasing the effects of
Respondent's unfair labor practices and of insuring a
fair election by the use of traditional remedies is
slight. Therefore, for all the above reasons, we con-
clude that the employees' sentiment, once expressed
through authorization cards, would, on balance, be
better protected by our issuance of a bargaining order
than by traditional remedies.
The 17 authorization cards were signed between
May 21 and 27, 1977.10 Thus, a least by May 27, the
Union represented a majority of employees in the
bargaining unit. We will therefore order that Respon-
dent bargain with the Union as of May 27, 1977."
4. The Administrative Law Judge found, and we
agree, that Respondent committed numerous viola-
tions of the Act by various kinds of conduct fully
described in the attached Decision. The Administra-
tive Law Judge failed, however, to specify which sec-
tions of the Act were violated and to set forth specific
conclusions of law in his Decision. Accordingly, and
in view of our additional findings herein, we make the
following:
CONCLUSIONS OF LAW
I. The Respondent, Keystone Pretzel Bakery, Inc.,
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Bakery and Confectionery Workers Interna-
tional Union of America, Local 6, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All full-time and part-time production and
maintenance employees employed by Respondent at
its Lancaster, Pennsylvania, plant, excluding the
truckdriver, office clerical employees, 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.
4. By interrogating employees Rohrer, Hall, and
Swift about their union activity, Respondent engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(l) of the Act.
5. By engaging in, and authorizing and encourag-
ing, surveillance of union activities of employees, Re-
spondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
10 In sec. I,A, of his Decision, the Administrative Law Judge stated that
the Union had secured signed authorization cards from 17 employees by
May 24; however, the record clearly shows that Sandra Mays signed her
authorization card on May 27.
n Bandag, Incorporated 228 NLRB 1045 (1977); Beasely Energy. Inc.
d/b/a Peaker Run Coal Company, Ohio Division 1. 288 NLRB 93 (1977):
Trading Port, Inc., 219 NLRB 298 (1975). See also Bighorn Beverage, 236
NLRB 736 (1978).
6. By creating the impression that Respondent was
engaged in surveillance of union activities of employ-
ees, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. By telling employee Hall that Respondent
would check his sources to determine whether Hall
was lying about his union activities, Respondent en-
gaged in an unfair labor practice within the meaning
of Section 8(a)(1) of the Act.
8. By telling employee Rohrer that Respondent
has been told Rohrer and Hall were passing out
union cards and that Respondent considered Rohrer
and Hall ringleaders in the union activity. Respon-
dent engaged in unfair labor practices within the
meaning of Section (8)(a)( ) of the Act.
9. By discriminatorily enforcing plant rules or dis-
cipline against employee Hall because of his union
activity, Respondent engaged in an unfair labor prac-
tice within the meaning of Section 8(a)(1) of the Act.
10. By indicating to employees, including Rohrer,
Hall, and Swift, Respondent's disapproval of the
union activity of employees, Respondent engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
11. By telling employee Hall that Respondent
would not tolerate a union among its employees, Re-
spondent engaged in an unfair labor practice within
the meaning of Section 8(a)(1) of the Act.
12. By granting employee Shertzer a wage increase
because he engaged in surveillance of union activity
of employees and informed Respondent of the Union
activity of employees, Respondent engaged in an un-
fair labor practice within the meaning of Section
8(a)(1) of the Act.
13. By its entire course of conduct at the May 31,
1977, meeting-including paying employees to at-
tend, paying employees for more than the time they
spent attending the meeting, soliciting and promising
to satisfy grievances, promising wage increases and
other benefits, sponsoring an unlawful poll, and giv-
ing the employees free lunches-Respondent engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(l) of the Act.
14. By granting employees retroactive wage in-
creases which Respondent promised at the May 31,
1977, meeting, Respondent engaged in an unfair la-
bor practice within the meaning of Section 8(a)(1) of
the Act.
15. By its discriminatory refusal to grant employee
Hall a wage increase because of his union activities,
Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (I) of the Act.
16. The above-described unfair labor practices are
under labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
17. At least by May 27, 1977, the Union represent-
ed a majority of the employees in the above-described
appropriate bargaining unit, and, since that date, the
Union has been the exclusive bargaining representa-
tive of said employees within the meaning of Section
9(a) of the Act.
18. The aforesaid unfair labor practices were so
substantial and pervasive that they disrupted the elec-
tion processes, precluding a fair election and warrant-
ing an order to bargain.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Key-
stone Pretzel Bakery, Inc., Lancaster, Pennsylvania,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union ac-
tivities.
(b) Engaging in, or authorizing or encouraging,
surveillance of union activities of employees.
(c) Giving employees the impression that the Re-
spondent is engaged in surveillance of union activities
of employees.
(d) Telling employees that Respondent will check
to determine whether employees are engaged in union
activities.
(e) Telling employees that Respondent considers
them, or other employees, to be leaders or ringleaders
of, or active in, union activity.
(f) Discriminatorily enforcing plant rules or disci-
pline because of union activity of employees.
(g) Indicating to employees Respondent's disap-
proval of the union activities of employees.
(h) Telling employees that Respondent will not tol-
erate a union among employees.
(i) Refusing to grant employees wage increases be-
cause of their union activity.
(j) Granting wage increases to employees because
they engage in surveillance of union activity among
employees, or because they inform Respondent as to
the union activities of employees.
(k) Giving or promising employees wage increases
in order to discourage union activity of employees.
(1) Holding meetings of employees for the purpose
of discouraging union activity of employees.
(m) Paying employees for attendance at meetings
held for the purpose of discussing union activity,
where such meetings are held at a time when the
plant is not operating, or during times other than
regular work periods, unless employees who do not
attend are also paid.
(n) Paying employees for more than the time they
spend in attending meetings called for the purpose of
discussing union activity.
(o) Soliciting grievances from employees and
promising to satisfy such grievances at a time when a
labor organization is seeking to organize the employ-
ees.
(p) Permitting balloting by employees on company
property as to whether they desire to be represented
by a union, unless the balloting complies with the
safeguards required by the Board, as described in
Struksnes Construction Co., 165 NLRB 1062 (1967).
(q) In any other manner discouraging membership
in a labor organization, or interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
Nothing herein shall be construed as requiring Re-
spondent to revoke any wage increases or other bene-
fits previously granted.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Bakery
and Confectionery Workers International Union of
America, Local 6, as the exclusive bargaining repre-
sentative since May 27, 1977, of the employees in the
unit described below with respect to wages, hours,
and other terms and conditions of employment and, if
an understanding is reached, embody such under-
standing in a signed contract. The appropriate unit is:
All full-time and part-time production and main-
tenance employees employed by Keystone Pret-
zel Bakery, Inc., at its Lancaster, Pennsylvania,
plant; excluding the truckdriver, office clerical
employees, and supervisors as defined in the Act.
(b) Post at its Lancaster, Pennsylvania, place of
business, copies of the attached notice marked "Ap-
pendix."'2 Copies of said notice, on forms provided
by the Regional Director for Region 4, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director of Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
"1 In the event that this Order is enforced by judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
496
KEYSTONE PRETZEL BAKERY
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing and the taking of evidence, the
Board has found that we engaged in unfair labor
practices in violation of the National Labor Relations
Act. The Board has ordered us to cease and desist
from such conduct and to take certain affirmative ac-
tion. In compliance with the Order of the Board, we
hereby notify our employees that:
WE WILL NOT interrogate employees about
their union activities.
WE WILL NOT engage in, or authorize or en-
courage, surveillance of union activities of em-
ployees.
WE WILL NOT give employees the impression
that we engage in surveillance of union activities
of employees.
WE WILL NOT tell employees that we will make
a check to determine whether employees are en-
gaged in union activities.
WE WILL NOT tell employees that we consider
them, or other employees, to be leaders or ring-
leaders of, or active in, union activity.
WE WILL NOT discriminatorily enforce plant
rules or discipline because of union activity of
employees.
WE WILL NOT indicate to employees our disap-
proval of the union activity of employees.
WE WILL NOT tell employees that we will not
tolerate a union among employees.
WE WILL NOT refuse to grant employees wage
increases because of their union activity.
WE WILL NOT grant wage increases to employ-
ees because they engage in surveillance of union
activity among employees, or because they in-
form us as to the union activity of employees.
WE WILL NOT give or promise employees wage
increases in order to discourage union activity of
employees.
WE WILL NOT hold meetings of employees for
the purpose of discouraging union activity.
WE WILL NOT pay employees for attendance at
meetings held for the purpose of discussing
union activity, where such meetings are held at a
time when the plant is not operating, or during
times other than regular work periods, unless
employees who do not attend are also paid.
WE WILL NOT pay employees for more than
the time they spend in attending meetings called
for the purpose of discussing union activity.
WE WILL NOT solicit grievances from employ-
ees and promise to satisfy such grievances at a
time when a labor organization is seeking to or-
ganize employees.
WE WILL NOT permit balloting by employees
on company property as to whether they desire
to be represented by a union, unless the balloting
complies with the safeguards required by the
Board, as described in the case of Struksnes Con-
struction Co., 165 NLRB 1062 (1967).
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their right to engage in or to refrain
from engaging in any or all the activities speci-
fied in Section 7 of the Act. Those activities in-
clude the right to self-organization, to join, assist,
or support unions, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for
the purpose of collective bargaining or other mu-
tual aid or protection.
Nothing herein shall be construed as requiring us
to revoke any wage increases or other benefits
previously granted.
WE WILL, upon request, bargain collectively
with Bakery and Confectionery Workers Inter-
national Union of America, Local 6, as the ex-
clusive bargaining representative since May 27,
1977, of the employees in the following appropri-
ate unit, with respect to wages, hours, and other
terms and conditions of employment:
All full-time and part-time production and
maintenance employees employed by Key-
stone Pretzel Bakery, Inc., at its Lancaster,
Pennsylvania, plant; excluding the truck-
driver, office clerical employees, and supervi-
sors as defined in the Act.
KEYSTONE PRETZEL BAKERY, INC.
DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge: On
June 16, 1977, Bakery and Confectionery Workers Interna-
tional Union of America, Local 6, the Union, filed the in-
stant unfair labor practice charge against Keystone Pretzel
Bakery, Inc.,' the Respondent, pursuant to the National
Labor Relations Act, as amended, 29 U.S.C. §151, et seq.
On August 31, 1977. the Acting Regional Director for Re-
gion 4 of the Board (Philadelphia, Pennsylvania) issued a
complaint on the charge alleging that the Respondent had
committed various unfair labor practices in violation of
Section 8(a)(1), (3), and (5) of the Act. Service was duly
' As amended at the heanng.
497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made on the Respondent and the Union. The Respondent
duly filed an answer denying the allegations of unfair labor
practices. Thereafter, upon notice, the complaint was
amended, and the Respondent filed a supplemental answer
in denial.
Pursuant to notice a hearing was held before me at Lan-
caster, Pennsylvania, on November 17 and 18 and Decem-
ber 6 and 7, 1977. The General Counsel, the Union, and the
Respondent appeared at the hearing, and all parties were
afforded full opportunity to be heard, to introduce and to
meet material evidence, and to present oral argument and
to file briefs. At the hearing the complaint was further
amended, over objections by the Respondent, to include
additional allegations of unfair labor practices, which the
Respondent denied. At the conclusion of the General
Counsel's case in chief, the Respondent moved to discuss
paragraphs 5(b) and (c), and paragraph 8 of the complaint,
on the ground that no evidence was adduced to sustain
them. The motion was granted as to paragraph 8, and rul-
ing reserved as to 5(b) and (c), pending study of the tran-
script. At this time, the Respondent's motion to dismiss 5(b)
and (c) is granted.
On January 31, 1978, the General Counsel and the Re-
spondent filed briefs. Upon consideration of the entire rec-
ord, and the briefs, and from my observation of the wit-
nesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue
of, the laws of the Commonwealth of Pennsylvania. Re-
spondent is engaged in the production of pretzels at 1116
Marshall Avenue, Lancaster, Pennsylvania. During the past
year, Respondent purchased goods valued in excess of
$50,000 directly from firms outside the Commonwealth of
Pennsylvania. Respondent is, and has been at all times ma-
terial herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Bakery and Confectionery Workers International Union
of America, Local 6, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
2
A. Background
On December 2, 1976, Glen Hyneman and Horace Groff
purchased Respondent's facility from its former owner for
the manufacturing of pretzels. The business employs about
2 The findings herein are based on record evidence and testimony, some-
times disputed. Though the findings may not contain or refer to all the
evidence, all has been considered. Any testimony contrary to the findings has
not been credited. Credibility resolutions have been made on the basis of the
whole record, including the inherent probabilities of the testimony and the
demeanor of the witnesses.
40 people. Hyneman is president and Groff is secretary-
treasurer of Respondent.
During its first several months the new ownership en-
countered a number of problems requiring priority atten-
tion: loss of important accounts, a fire, and the gas crisis of
the winter of 1976-77 which curtailed the use of natural gas
for industrial use in certain areas of the country. These
problems were overcome, but not, apparently, without ne-
glect of Respondent's labor relations.
About April 1977, the Union began an organizational
campaign among Respondent's employees. Rumors of the
activity reached Respondent's management during that
month. The Union solicited authorization cards from em-
ployees, and on May 21, 1977, an organizational meeting
was held in Lancaster. By May 24, the Union had secured
the signatures of 17 employees in a claimed appropriate
unit of 28 employees, and on June I the Union filed a peti-
tion with the Board for certification as bargaining repre-
sentative of those employees.
In the interim, the Respondent is alleged to have engaged
in various unfair labor practices, including interference, re-
straint, and coercion, discouragement of union member-
ship, and refusal to bargain collectively, in order to combat
the union activity.
B. Interference, Restraint, and Coercion
I. Shertzer's conversations with President Hyneman
During April and May 1977, employee Douglas Shertzer,
on his own initiative, came to President Hyneman concern-
ing the union activity, as a consequence of which they held
a number of meetings. These meetings were surreptitious, at
Shertzer's request, for the reason that he did not want the
employees to see him talking to President Hyneman.
The first approach was in April, when Shertzer came to
President Hyneman and told him that a union was trying to
get into Keystone, to which Hyneman replied that a union
had previously sought to get in. On a later occasion, Shert-
zer told Hyneman that there were a lot of complaints and
backstabbing among the employees, that the Union was
really building, and that there should be a meeting of em-
ployees. Hyneman apparently made no response at that
time to Shertzer's suggestion for a meeting. Hyneman told
Shertzer, at which meeting is not clear, that Shertzer could
"go out among the employees and find out information and
report back to him," and, if Shertzer learned information of
any importance, to "let him [Hyneman] know."
Thereafter, Shertzer reported to Hyneman several times
concerning the union activity.
2. Boaman's recommendation of wage increases for
Shertzer and Hall
About early May 1977, Plant Manager Boaman recom-
mended that Ken Hall and Douglas Shertzer be given wage
increases of 25 cents per hour, from $3 to $3.25. When the
recommendations came across his desk, President Hyne-
man took no action on them for some time, then approved
the raise for Shertzer, but not for Hall. This matter is dis-
cussed further infra.
498
KEYSTONE PRETZEL BAKERY
3. May 23; Hyneman's conversation with Ken Rohrer
At the May 21 union organizational meeting, employee
Ken Rohrer signed a union card. He thereafter received
from employee Charles Swift three authorization cards
signed by employees George Heiselman, Dawn Heiselman,
and Robert Fickes, which Rohrer turned over to Union
Business Representative Thomas Murray.
About May 23, 1977, President Hyneman came to
Rohrer at his place of work and asked Rohrer if he knew
anything about the Union. Rohrer replied no. Hyneman
told Rohrer not to insult his intelligence, adding that he had
been told that Rohrer and Ken Hall had been passing out
union cards and were ringleaders in the union activity.
Rohrer reiterated his denial.
4. May 26; President Hyneman's visit to the plant
At approximately 10 p.m., on the night of Thursday,
May 26, 1977, Douglas Shertzer telephoned President
Hyneman at the latter's home, some 30 minutes driving
time from the plant. Shertzer told Hyneman that they were
having union trouble in the plant, that people were signing
union cards, and that Ken Hall, who favored the Union,
had had an argument with employee Bob Mitchell, who did
not. President Hyneman telephoned Secretary-Treasurer
Groff and told him the substance of Shertzer's statements,
and the two then went to the plant, arriving there at about
11 p.m.
When Hyneman and Groff arrived at the plant, they
were in an angry mood. Passing through the mixing room,
they found that employee Jim Helm, a doughmixer, was
not at his station, as he should have been, and that Hall, a
cleanup man, was also not there. Hyneman and Groff then
went outside and found Helm and Hall on the platform
smoking-Helm sitting on a cinderblock, and Hall leaning
against a trash bin, about 12 feet apart. President Hyneman
asked Hall what he was doing there. Hall said that he had
been working in the oven room for some time and that
because of the heat he had come outside to cool off. Hyne-
man said that he could not tolerate that. Hall immediately
put out his cigarette and went back inside. After Hall left,
Helm, who continued to sit on the cinderblock, told Hyne-
man that he had a problem with a medical insurance claim,
and requested Hyneman's help. Hyneman told Helm to
bring the form to him in the morning and he would assist
Helm, at which point Helm went back to work.
Later in the evening, Hyneman came to Hall in the plant
and said that he was sorry for yelling at Hall, but that he
had done so because he wished to make the point that he
was not going to tolerate a union. Hyneman further said
that he realized that it was hot in the oven room, and that it
was all right for Hall to go outside and cool off. Hyneman
then asked Hall what he knew about the union business,
where the Union came from, and why Hall was trying to
bring the Union in. Hall denied that he was attempting to
bring the Union in.
During that conversation, Hall asked Hyneman why he
(Hall) had not been given a raise along with Shertzer.
Hyneman denied that Shertzer had been given a raise. Al-
though he had previously decided that Hall did not deserve
a raise, Hyneman gave Hall a noncommittal answer-[W]e
will see." According to Hall, Hyneman said that if the
Union came in Hall would get a 75-cents-an-hour raise, but
that if it did not Hall would get his 25 cents.
Later in the evening of May 26, Hyneman and Groff met
with Douglas Shertzer, by prearrangement, in the parking
lot of a nearby restaurant. President Hyneman expressed
his anger at Shertzer for telling Hall of Shertzer's wage in-
crease. Hyneman asked Shertzer whose side he was on,
Shertzer replying that he was attempting to help Hyneman.
President Hyneman said that he was "pretty disgusted"
that Shertzer would tell another employee of a confidential
matter like a wage increase. Hyneman then directed Shert-
zer to go back to Hall and tell him that Shertzer had not got
an increase; otherwise, "heads would roll."
5. May 27; President Hyneman's statement to Rohrer
On May 27 President Hyneman, as was his custom, dis-
tributed paychecks to employees. As he gave Ken Rohrer
his paycheck, Hyneman said in jocular fashion, "Here is
your check, union steward." Rohrer took it as a joke.
6. May 27; President Hyneman's interrogation of Swift
Employee Charles Swift signed a union card at the May
21 union meeting. Swift solicited and secured the authoriza-
tion cards of employees Robert Fickes and George Heisel-
man and, through Heiselman, was instrumental in securing
the authorization card of employee Dawn Heiselman.
When President Hyneman gave Swift his paycheck on
May 27, Hyneman asked Swift if he had heard anything
about a union. Swift replied that he had not, and that he
knew nothing. Hyneman kicked some corrugated boxes
lying nearby and said that if he was not the boss he would
be "kicking some asses," and walked away.
7. May 27; Hall's conversation with Groff
On the night of May 27, employee Ken Hall came to
Secretary-Treasurer Groff in the lunchroom in the plant
and told Groff that he wished it to be clear that he had
nothing to do with the Union or with bringing it in. It will
be recalled that on the trip to the plant on the previous
evening, Groff had been advised by President Hyneman of
the substance of Shertzer's statements in his telephone con-
versation with Hyneman. Among those statements was
Shertzer's declaration that Hall was arguing in favor of the
Union.
Groff replied to Hall that he had heard from several
sources that Hall knew something about the Union, and
that he would check other sources to determine whether
Hall was lying.
Hall then told Groff that he had been promised a raise by
Plant Manager Boaman but had not got it, and that Pres-
ident Hyneman had told him the night before that he could
not get it because of the Union. Groff replied that he did
not think it right for Hyneman to say that, and that he
499
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would check it out.' Ultimately, Hall received the raise re-
troactively-for the reason, according to Respondent's tes-
timony, that although Plant Manager Boaman had ex-
ceeded his authority in telling Hall, without prior clearance
from President Hyneman or Secretary-Treasurer Groff, that
he would get the raise, and although Hyneman did not
think that Hall deserved the raise, Respondent should hon-
or the commitment.
8. The May 31 meeting in the plant
Monday, May 30, 1977, was Memorial Day, a paid holi-
day for Respondent's employees, provided that they
worked the last scheduled workday before, and the first
scheduled workday after, the holiday.
Over the weekend, Respondent repaired one of the ovens,
a project which kept the plant closed through the following
Tuesday. On Friday, May 27, 1977, a notice was posted in
the plant notifying employees that there would be a meet-
ing in the plant on Tuesday, May 31 at 9 a.m., and that
employees who attended the meeting would be paid for the
day. The meeting was held, and all Respondent's employees
attended, including officials, supervisors, and office employ-
ees.
President Hyneman opened the meeting and described
the various benefits Respondent had provided the employ-
ees since taking over the business, and others which he
planned to provide.
Plant Manager Boaman then spoke of his experience
with the union in his former employment. In sum, Manager
Boaman said that the union was good at the beginning in
eliminating sweatshop conditions in the industry, but that
after it ran out of real issues, it had to look around for
picayune ones, and ultimately destroyed harmony in the
plant. In addition, Boaman's former employer then mecha-
nized the business and threw a lot of employees out of
work.
Secretary-Treasurer Groff spoke of the problems of the
business and Respondent's efforts to keep the plant in op-
eration despite difficulties, and summed it up by stating that
if those actions did not demonstrate Respondent's efforts to
provide the employees with security, he was disappointed.
Groff then went on to ask what complaints the employees
had. At first employees were reluctant to speak but, after a
time, employee Jim Helm stated that there had been no
wage increase in the plant for nearly a year. That statement
shocked Groff. After some discussion, Groff stated that Re-
spondent would follow the same wage policies as those in
effect at Groff Potato Chips (another business in which
Groff had a proprietary interest); namely, to give wage in-
creases twice a year-mid-year and December. Groff went
on to state that Respondent would "definitely" correct the
problem.
Helm stated that the employees were tired of nickle-and-
dime increases (a reference to the policies of the former
owner). Groff responded that Respondent's policy would at
It will be recalled that Groff was with President Hyneman at the meeting
with employee Douglas Shertzer on the previous evening in the restaurant
parking lot, in which Hyneman had directed Shertzer to tell Hall that Shert-
zer had not got a raise.
least equal cost-of-living increases, "plus." Helm also raised
questions as to the adequacy of Respondent's insurance
program and inquired about a pension system, adding that
the Union had promised a pension. Other problems were
raised by employees, among them the condition of the
women's restroom and a separate table in the lunchroom
for nonsmokers. To these Groff replied that the restroom
and lunchroom problems would be taken care of. As to the
pension, Groff said that Respondent was too young to make
any promises at the present time. Groff assured the employ-
ees that he would look into any problems which he found.
During the meeting Leroy Hyneman, the father of Com-
pany President Glen Hyneman, whose status is more fully
discussed infra, spoke briefly, asking the employees why
they wanted a union and why they were doing this to his
boy and Groff. There was also some discussion concerning
individual complaints (referred to as backstabbing or ru-
mors) involving job security or shirking of duties by em-
ployees. The record discloses no resolution of such com-
plaints.
At the conclusion of the discussion, employee Ray An-
derson said that he thought that the employees should give
Respondent an answer, and suggested that a vote be taken
on whether the employees wanted a union. At this point,
Plant Manager Boaman having already left the meeting,
President Hyneman and Secretary-Treasurer Groff with-
drew and returned to their offices. Written ballots were
passed out by Ellen Britton, an office clerical, and Leroy
Hyneman; they were collected by Pius Yoder, a truck-
driver, in a box, and counted by Britton and Leroy Hyne-
man. All employees, including clericals and supervisors, ap-
parently, voted. One employee, Helm, signed his ballot.
Following compilation of the results, Baker Robert Pipkin,
hereinafter found to be a supervisor, went to the office and
asked President Hyneman and Secretary-Treasurer Groff to
return to the meeting, Pipkin advising Hyneman and Groff
that the employees had voted that they did not want the
Union. When Hyneman and Groff returned to the meeting,
it was announced that all ballots had been cast against the
Union except for two or three which bore question marks.
President Hyneman and Secretary-Treasurer Groff ex-
pressed their gratification. Someone in the audience, appar-
ently Supervisor Pipkin, said that whoever was responsible
for the Union should tell the Union that the employees did
not want it, and it should leave them alone.
After the announcements, employee George Heiselman
arose and stated that it was not he who started the Union-
that Charlie Swift had given him the union card. Employee
Phyllis Kline said that Swift was not at fault-that he was
not the only one who passed out cards. President Hyneman
then told the employees to be sure to punch their timecards
in order to be paid for the day. He invited all the employees
to a nearby restaurant for lunch and the meeting broke up
at about 11 a.m.
Thereafter almost all the employees received a 20-cent-
per-hour wage increase effective May 26.'
4 Ken Hall and Douglas Shertzer, who had recently received a 25-cent-
per-hour increase, did not get the 20-cent increase.
500
KEYSTONE PRETZEL BAKERY
C. Conclusions as to Interference, Restraint, and Coercion
The foregoing facts establish a pattern of conduct consti-
tuting unfair labor practices, in part. That pattern is re-
flected in the following described conduct.
1. President Hyneman's authorization to employee
Douglas Shertzer to seek information from employees as to
the union activity and to report it to Hyneman, and his
thereafter accepting Shertzer's reports. That action consti-
tuted surveillance of employee union activity, and also en-
couragement and authorization of surveillance.
2. President Hyneman's interrogation of employee Ken
Rohrer on May 23 as to what he knew of the Union, his
admonition to Rohrer not to insult Hyneman's intelligence
by denying it, and Hyneman's statement that he had been
told that Rohrer and Ken Hall had been passing out union
cards and were ringleaders in the union activity. In the con-
text of Hyneman's total statements in the conversation and
the other unfair labor practices found, that action consti-
tuted coercive interrogation and an implicit assertion that
the Respondent was engaged in surveillance of union activi-
ties, and in toto tended to restrain employee engagement in
such activities.
3. Against the backdrop of the reasons which brought
President Hyneman and Secretary-Treasurer Groff to the
plant on the night of May 26, 1977, and President Hyne-
man's admission to Ken Hall as to the motives for Hyne-
man's action,President Hyneman's statement to Hall that
he would not tolerate Hall's actions constituted a rebuke for
Hall's union activity, and when combined with Hyneman's
later interrogation of Hall as to what Hall knew about the
Union and why he sought to bring it in, constituted coer-
cive conduct tending to restrain further union activity by
Hall.
In view of President Hyneman's accompanying conduct
in the other unfair labor practices found, Hyneman's inter-
rogation of Charles Swift on May 27 as to whether Swift
had heard anything of the Union also constituted coercive
interrogation. In the light of Respondent's surveillance
through Shertzer, and Swift's actual activity in soliciting
cards, it is inferred that Hyneman was aware of Swift's
interest in and support of the Union, and that his kicking of
the boxes and simultaneous remark as to kicking asses was
designed to convey to Swift Hyneman's exasperation over
Swift's denial of knowledge which Hyneman knew Swift
must have.
4. Secretary-Treasurer Groffs statement to Ken Hall on
the night of May 27 concerning the Union and Hall's in-
volvement with it. It has been seen that in the telephone
conversation between Douglas Shertzer and President
Hyneman on May 26, Shertzer told Hyneman, among other
things, that Hall was arguing in the plant with employee
Bob Mitchell over the Union, with Hall favoring it and
Mitchell opposing. It has been further seen that on the trip
to the plant President Hyneman advised Groff of the sub-
stance of Shertzer's telephonic statements to Hyneman.
We have also seen that later that night Hall came to
Groff and asserted that he had nothing to do with the
Union or with bringing it in, and that Groff replied that he
had heard from several sources that Hall knew something
about the Union, and that he (Groff) would check other
sources to determine whether Hall was lying. Those state-
ments of Groff constituted an implicit assertion of surveil-
lance of Hall's union activity and a restraint upon employee
exercise of rights guaranteed by the Act.
5. Respondent's initial refusal to grant a 25-cent wage
increase to Ken Hall was both a discrimination within the
meaning of Section 8(a)3) of the Act, and a restraint on
Hall's exercise of statutory rights. It has been seen that
Plant Manager Boaman, whose recommendations are nor-
mally followed, recommended both Shertzer, the informer,
and Hall, the union activist, for wage increases. So far as
the record reveals, Hall's work performance was never criti-
cized by his superiors. At the time Plant Manager Boaman
informed Hall of the raise recommendation he told Hall
that he was impressed by Hall's work. Nevertheless, Shert-
zer's raise was approved by President Hyneman and Hall's
rejected. In such circumstances, the most reasonable infer-
ence from the face of the conduct is that the approval of
Shertzer's raise represented appreciation for his services as
an informer, and the denial of Hall's a rebuke because of
his support of the Union. Though Respondent's evidence is
that Shertzer was "not doing a bad job . .. [and was] a
pretty good hustler", and that President Hyneman "didn't
think that [Hall] was doing a very good job ... ", the record
is devoid of any specific bases for those conclusions suffi-
cient to overcome Plant Manager Boaman's evaluation and
recommendation. In addition, it is noted that when Hall
brought up the subject of the raise on the night of May 27,
President Hyneman did not say that Hall's raise had been
denied, but merely that "we will see." That President Hyne-
man was at that moment disposed to persist in the refusal
seems indicated by his later direction to Douglas Shertzer
to inform Hall that Shertzer had not been given a raise.
That Hall was later given his raise reflects no more than a
recognition that further withholding would be untenable in
the face of the evidence now known to be in the possession
of Hall. In any event, it does not dispel the fact of the prior
discrimination.
It is therefore found that the withholding of Hall's in-
crease for a period of time constituted discrimination be-
cause of his union activities in violation of Section 8 (aX3) of
the Act, and interference, restraint, and coercion in viola-
tion of Section 8(aX 1) of the Act.
6. The May 31 meeting. The testimony of Respondent's
officials Hyneman, Groff, and Boaman establishes that the
purpose of the May 31 meeting, though cloaked in terms of
determining the reason for claims of"backstabbing" among
the employees, was in fact to determine the employees'
grievances and to eliminate them, and that its basic aim was
to discourage employees from joining or adhering to the
Union. Thus, Plant Manager Boaman felt that the plant
was too small for a union, which would destroy harmony
among the employees. Secretary-Treasurer Groff did not
like unions. He was of the view that the Union would cause
communication problems with the employees and he
wished to keep it out of the plant. President Hyneman, like-
wise, did not wish to have a union in the plant. While those
opinions or desires are not evidence of unfair labor prac-
tices, they, along with Respondent's prior conduct, are mat-
ters against which Respondent's actions at the May 31
meeting are to be evaluated.
501
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, this was the first meeting Respondent had held to
consider the grievances of employees; indeed, it was the
first occasion on which Respondent considered such mat-
ters. That Respondent had been busy with operational
problems, some unique, is no doubt true. However, the
problems and dissatisfaction appear to have existed for
some time without consideration by Respondent, and it was
not until the employees manifested an interest in the Union
that Respondent deemed it advisable to attend to them.
The result was that, except for the pension question, virtu-
ally every concern expressed by the employees was satisfied
by Respondent at, or as a result of, the May 31 meeting.
In addition, it has been seen that Tuesday, May 31, was
not a regular workday. The plant was closed and, so far as
appears, no production employee worked that day. Em-
ployees merely came to the plant for 2 hours in order to
present their grievances to Respondent and to have them
adjusted in accordance with Respondent's aim to discour-
age adherence to the Union. For that, employees were paid
a full day's pay. Except for paid holidays, this was the only
time the Respondent ever paid employees for not working.
Under the existing circumstances, such a payment, for such
purposes, constituted an unlawful benefit. It is no answer to
say that an employer may use his own regular worktime to
speak to employees in opposition to a union, and continue
wage payments during the time he speaks, for in this case,
Tuesday was not a regularly scheduled workday. Had Re-
spondent not paid them for attending the meeting, the em-
ployees would have received no compensation for the day.
The payments thus cannot be considered as wages in any
sense. Attendance was required as a condition of receiving
the money, and not as a consequence of having reported to
work. Any employee who had chosen to exercise his statu-
tory right to refrain from attending the meeting would not
have been paid. The payments were thus unlawful not only
because they were a reward for participating in an activity
combating a union, but also because other employees who
might have refused to participate in it were denied the pay-
ments.'
The balloting at the meeting was also violative of the
Act. Although the idea of the vote was suggested by em-
ployee Anderson, and it was by written ballot, the vote was
held in Respondent's plant, with Respondent's knowledge
and acquiescence, in the presence of and with participation
of the Respondent's supervisors. Under such circumstances,
the poll can be said to have been conducted substantially
under the Respondent's sponsorship. Under the doctrine of
Struksnes Construction Co. Inc., 165 NLRB 1062 (1967),
such polls comply with the Act only where certain criteria
are met, among them that assurances against reprisal are
given to employees, and that the respondent has not en-
gaged in unfair labor practices or otherwise created a coer-
cive atmosphere. The burden is on the respondent to estab-
lish those elements. Burns International Security Services,
Inc., 225 NLRB 271 (1976). Here the record affirmatively
establishes that no assurances were given employees against
reprisals. In addition, Respondent had in fact engaged in
unfair labor practices and created a coercive atmosphere.
Cf( U-Tell Corporation. 150 NLRB 1534 (1965): The Golub Corporation.
Central Markets Operating Co., Inc., 159 NLRB 355 (1966).
Thus, the polling was violative of Section 8(a)(1) of the Act.
No problem of free speech is involved. The actions of Re-
spondent at the May 31 meeting found to constitute unfair
labor practices are not Respondent's expressions of view,
argument, or opinion, but its conduct.
President Hyneman described himself as "elated" and
"very happy" at the result of the balloting, as well he might
have been, for in I week the Union's entire representation
in the plant had been obliterated. Under the circumstances,
the result of the balloting more reliably reflected the success
of the unfair labor practices than it did the employees' un-
coerced desires.
In the light of these considerations,' it is found that the
Respondent's entire course of conduct at the May 31, 1977
meeting constituted interference, restraint, and coercion of
employees in the exercise of rights guaranteed in Section 7
of the Act. This includes paying employees to attend, on a
non-workday, a meeting designed to combat a union cam-
paign, soliciting and satisfying grievances, granting and
promising benefits, including wage increases, sponsoring a
poll of employees without the safeguards required by the
Act, and giving employees free lunches to celebrate their
rejection of the Union. CBS Records Division of CBS, Inc.,
223 NLRB 709, 515 (1976), and cases there cited.
The General Counsel alleges that President Hyneman's
actions on May 27 in addressing Ken Hall as "union stew-
ard" created the impression of surveillance. I have found
that Hyneman's characterization was jocular in nature and
was so regarded by Hall. On the facts, I find the remark not
susceptible of the General Counsel's interpretation, and will
recommend that the allegation be dismissed.
D. The Alleged Refusal To Bargain
I. Introduction
On June 1, 1977, the Union filed a representation petition
with the Regional Office for Region 4 requesting an election
among Respondent's production and maintenance employ-
ees. No election has been held on that petition because of
the unfair labor practice charge filed by the Union on June
16, 1977.
Though the Union made no request of the Respondent to
bargain, the General Counsel contends that under the prin-
ciple of N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), the Board may issue a bargaining order where the
employer's unfair labor practices undermine a union's ma-
jority or so interfere with employee free choice as to fore-
close the possibility of a fair election being held. See Ludwig
Fish & Produce, Inc., 220 NLRB 1086 (1975); Steel-Fab,
Inc., 212 NLRB 363 (1974).
There is disagreement, referred to hereafter, as to the
scope of the appropriate unit. However, I find that the dis-
positive question is whether the Union ever represented a
majority of the employees. We will therefore first consider
that problem.
6 Other contentions of the General Counsel concerning the May 31 meet-
ing are found not supported by the evidence.
502
KEYSTONE PRETZEL BAKERY
2. The Union's majority
The appropriate unit is found to consist of 29 persons.
The Union presented 17 signed cards in the following form:
Local No. 6
B. & C. W. I. U. of A.-AFL-CIO
5416 Rising Sun Ave.-Phila., Pa. 19120-329-8833
I, (Print Name), (Date Employed) the undersigned,
employee of the (Name of Company), Home Ad-
dress, Phone, City, hereby authorize the Bakery
and Confectionery Workers Local No. 6 to represent
me and, in my behalf, for the purpose of collective
bargaining to negotiate and conclude all agreements in
respect to rates of pay, wages, hours of employment, or
other conditions of employment.
Department Shift, Job Title, Signature of Em-
ployee Date
The Respondent contends that a number of the cards,
enough to destroy the Union's majority, are not valid evi-
dence of designation of the Union as a bargaining repre-
sentative, for the reason that they were procured upon the
representation that their purpose was only to secure a
Board election, and thus may not be used to establish a
designation.
An authorization card secured as a result of substantial
misrepresentation does not constitute evidence of designa-
tion of a union as a bargaining representative, even though
the card may plainly state that it does. Thus, a representa-
tion by a solicitor that a card will be used only to secure an
election normally authorizes its use only for that purpose.
However, the mere representation that cards will be used to
secure an election does not ipsofacto constitute such a mis-
representation as to invalidate a designation. Thus, authori-
zation cards may have a dual purpose. Before the Board
will proceed on a petition for certification in a representa-
tion case, it normally requires a showing of interest on the
part of the petitioning and other interested labor organiza-
tions. That showing may consist of signed and dated autho-
rization cards, designating the union as the bargaining rep-
resentative of the signatory employees. (NLRB
Casehandling Manual (Part Two) Representation Proceed-
ings, 11020-11039). In the instant case the Union's evidence
of representation is of that character. Other evidence may
also be used. The Board's requirement does not, of course,
establish that a purpose of an authorization card is to se-
cure an election, if the card itself does not so provide, since
the union may intend to seek voluntary recognition from
the employer, without resort to the Board. The Board's re-
quirement as to showing of interest thus has no necessary
relation to the Union's purpose in securing the cards.
Where the solicitor makes no representation as to the
purpose of a card containing a clear statement that it con-
stitutes a designation, or makes no statement that the card
will be used for another, and perhaps different, purpose,
and the employee voluntarily signs it, no problem arises,
for, except in perhaps extraordinary circumstances, the ex-
ecution constitutes a designation, even if the employee does
not read it. As the Supreme Court said in General Steel
Products, Inc. v. N.L.R.B., 395 U.S. 575, 606): "... employ-
ees should be bound by the clear language of what they
sign," unless the solicitor directs them to disregard the lan-
guage on the document. A problem arises only when the
representations of the solicitor are different from those on
the card, and the employee signs it.
The controlling rule in such case, as I understand the
decisions, is that a representation by a solicitor that an au-
thorization card will be used to secure an election renders
nugatory a statement on the card declaring it to be a desig-
nation, if the solicitor represents "explicitly or indirectly"
that the card will be used only for the purpose of securing
the election. Among the significant and relevant cases are
the following. Cumberland Shoe Corporation, 144 NLRB
1268 (1963): Levi Strauss & Co., 172 NLRB 732 (1968);
General Steel Products, Inc., 157 NLRB 636. 643 648
(1966), 395 U.S. 575, 584, 592, 604-609 (1969) (sub nom
N.L.R. B. v. Gissel Packing Co., Inc.); Hedstrom Company, a
subsidiary of Brown Group, Inc., 223 NLRB 1409 (1976).
However, the limitations only or sole need not be ex-
pressed, in haec verba or in explicit language. What I con-
sider to be the controlling principles were delineated by the
Board in the Levi Strauss case (172 NLRB at 733) where
the Board said:
Thus the fact that employees are told in the course
of solicitation that an election is contemplated, or that
a purpose of the card is to make an election possible,
provides in our view insufficient basis in itself for vitiat-
ing unambiguously worded authorization cards on the
theory of misrepresentation. A different situation is
presented, of course, where union organizers solicit
cards on the explicit or indirectly expressed representa-
tion that they will use such cards only for an election
and subsequently seek to use them for a different pur-
pose; i.e., to establish the Union's majority indepen-
dently. In such a situation the Board invalidates the
cards for majority computation because the nature of
the representation is such as to induce a conditional
delivery for a restricted purpose and there is apparent
fraud when that restriction is exceeded.7
In the General Steel case, the Supreme Court, after not-
ing with approval the above language of the Board, indi-
cated its concern that the Board go no further in accepting
designations in such circumstances than it had gone in the
General Steel case. The Court said at 607-609:
We agree, however, with the Board's own warnings
in Levi Strauss & Co., 172 NLRB No. 57, 68 LRRM
1338, 1341, and n. 7 (1968), that in hearing testimony
concerning a card challenge, trial examiners should not
neglect their obligation to ensure employee free choice
by a too easy mechanical application of the Cumber-
"The foregoing does not, of course, imply that a finding of misrepresen-
tation is confined to situations where employees are expressly told in haec
verba that the 'sole' or 'only' purpose of the card is to obtain an election. The
Board has never suggested such a mechanistic application of the foregoing
principles, as some have contended. The Board looks to substance rather
than to form. It is not the use or nonuse of certain key or "magic" words that
is controlling, but whether or not the totality of circumstances surrounding
the card solicitation is such as to add up to an assurance to the card signer
that his card will be used for no purpose other than to help get an election."
503
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
land rule. [The court then quoted most of the language
quoted above from the Board's Levi Strauss opinion.]
... We . . . feel that the trial examiner's findings in
General Steel (see n. 5, supra) represent the limits of the
Cumberland rule's application. We emphasize that the
Board should be careful to guard against an approach
any more rigid than that in General Steel. And we re-
iterate that nothing we say here indicates our approval
of the Cumberland Shoe rule when applied to ambigu-
ous, dual-purpose cards.
Subsequent Board Decisions indicate that the Board has
heeded the words of the Court. Federal Stainless Sink Div.
of Unarco Industries, Inc., 197 NLRB 489 (1972); Hedstrom
Company, supra.
I interpret these various decisions to mean that if a solici-
tor expressly states to an employee, without qualifying lan-
guage, that the purpose of the card is to secure an election,
that will be deemed to be the operative purpose, in the
absence of evidence of communication, by some means, of
another purpose. We turn then to the facts in the instant
case.
The representations
The Union secured 17 signed cards from employees in
the appropriate unit, which are the evidence of its majority
status. As to 4 of the cards, those of Sherry Anderson,
George F. Heiselman, Dawn Heiselman, and Robert M.
Fickes, in each case those cards constitute unconditional
designation of the Union as bargaining representative of its
signatory; that is to say, there is no evidence of any accom-
panying representations by the solicitor modifying the dec-
laration on the face of the cards as to their meaning. A fifth
card, signed by employee Nancy Walton at the behest of
employee Pauline Swift, is also found to consititute a valid
designation, despite mistaken testimony by Union Business
Representative Thomas Murray to the effect that Walton
signed the card at his solicitation.
However, as to the other 12 cards, the testimony of Busi-
ness Representative Murray, who secured the cards, raises
some doubts as to whether they constitute unconditional
designations. Murray credibly testified, without contradic-
tion, that he received 7 of the signed cards from their signa-
tories at the May 21, 1977, union organizational meeting.
These were the cards of employees Doris Kelly, Lester
Mumma, Kenneth Rohrer, Margaret Stoy, Charles Swift,
Janet Swift, and Pauline Swift. In his testimony, Murray
thus described the circumstances under which those cards
were secured:
I passed them [the cards] out to the group in attend-
ance at the meeting.... I told them that the card is to
be used for the purpose of bringing a federal election
into the plant, and through this process we would be
able to have a chance to become the bargaining agent
for wages, hours and working conditions and benefits.
[p. 121]
If we would win the election by 50 percent and one
vote . . . people signed the cards in front of me. And
while they were looking at the cards, I said, "Do ex-
actly as the card says."
And to the best of my knowledge, they all reviewed
the cards, looked at them and signed them. [p. 122]
Q. Did you give any instructions when you passed
out the cards?
A. I told them I would like to file for an election as
soon as possible and the sooner we could get the cards
signed and get them back into my possession, I would
get down and file for an election. [p. 127]
Murray's further credited testimony is that he secured the
other 5 cards by individual solicitation on various dates
from May 23 to May 27, 1977. These are the cards of em-
ployees James Helm, Phyllis Kline, Doris Geyer, Kenneth
Hall, and Sandra Mays. In each of these cases he told the
employee that the purpose of the card was to get an election
in order to negotiate a contract. Thus he testified,
Q. [By Mr. Davison] .... At that meeting [May 21]
and at each of the individual meeting[s], except the
dual meeting with Kline and Geyer, you told all the
employees the same thing. The purpose of the cards
was to get a federal election into the plant for the pur-
pose of negotiating a contract?
A. Yes, sir.
Q. Is that correct?
A. Yes.8 [p. 149]
On that state of the record, if there were no other evi-
dence, it would appear that most of the cards secured by
Business Representative Murray would not constitute effec-
tive designations of the Union. For in the majority of those
cases, there is no showing that the card signers read the
card. Thus, the evidence in those instances shows only that
the employees signed a card on the representation that its
purpose was to secure an election. That being so, there is no
evidence in such cases warranting a finding that the signing
of the cards constituted a designation of the Union as the
signatory's bargaining representative. It is no answer to say
that such employees are bound by the representation on the
card to the effect that the signatory designated the Union,
for they were not made aware of it. Nor is it an answer to
say, as is correct, that ordinarily the signing of a card con-
taining a designation constitutes a designation whether the
I Counsel Davison's exception of the dual meeting with Kline and Geyer is
not clear. Kline and Geyer signed their cards at Murray's solicitation at
Kline's home. Murray's testimony is that on that occasion he told Geyer that
"the purpose of the card was to bring a federal election in the plant, con-
ducted by the National Labor Relations Board, for the purpose of negotiat-
ing a contract for wages, better benefits, working conditions and etc." As to
Kline, Murray's testimony is that ". .. I asked her if she could [sic] care to
sign a card to bring an election in, for the purpose of negotiating a contract,
to better the wages, working conditions, etc., the benefits and things of this
nature."
As to Sandra Mays, Murray testified:
JUDoE SCHNEIDER: Mr. Murray, I understand that before Ms. Mays
signed the card, you told her that the purpose was to get a contract
negotiated in the plant for better working conditions?
THE WITNEs: The purpose was to bring an election in the plant for
contract negotiations, of better wages, working conditions and benefits.
Yes, sir.
JUDGE SCHNEIDER: To bring an election into the plant?
THE WITNESS: Yes, sir.
504
KEYSTONE PRETZEL BAKERY
employee reads it or not. For in such case, the only evi-
dence as to the purpose of the signature is that stated on the
card, there is nothing to impeach it, and therefore no basis
for questioning its effectiveness. In such a situation, as the
Court said in General Steel (Gissell), supra at 606: "...
employees should be bound by the clear language of what
they sign .... " In the instant case, however, a different
purpose was attributed to the card by the solicitor, thus
posing a question as to what was or were the operative
purpose or purposes. In such a situation the signatory can-
not be charged with constructive notice of the declaration
on the face of the card, for, if that were law, the mere act of
signing a card containing a statement of designation would
always constitute a designation, and representations to the
contrary by solicitors would be totally ineffectual to modify
the effect of the signature. Thus, there could be no such
doctrine as a misrepresentation capable of avoiding a desig-
nation stated on the card itself. It therefore follows that
where the solicitor's representation as to the purpose of the
card differs from the statement on the card itself, the latter
statement becomes significant only if the employee reads
the card. Only then can a question arise as to whether the
act of signing constitutes a designation. For, absent that,
neither the signature nor the accompanying conduct reflect
a conscious or advertent designation. The burden being on
the General Counsel to establish that the Union represent-
ed a majority, an absence of proof that, in such circum-
stances, the employee read the card precludes a finding that
the card constitutes a designation.
Of course, other and subsequent conduct of the signatory
may indicate his adoption, affirmation, or ratification of the
designation, or his acceptance of the Union as his bargain-
ing representative. Any such probative conduct, whatever
its form, will, of course, establish a valid designation.
In the instant case, there is no evidence that Mays, Kline,
or Geyer read the cards they signed, or were advised that
the cards constituted designations. Nor is there evidence of
subsequent conduct by them construable as adoption or
ratification of the purported designations. There being no
evidence of communication to Mays, Kline, or Geyer of
any other purpose for the cards, it follows that their cards
were secured upon the representation that they would be
used only to secure an election. Consequently, the cards of
Mays, Kline, and Geyer do not constitute designations of
the Union as a bargaining representative.
Kenneth Rohrer and Charles Swift, two of the seven who
signed cards at the May 21 meeting, solicited for the Union
thereafter. Their entire course of conduct thus indicates
that their signing of the cards is to be construed as a desig-
nation of the Union, and I so find. The circumstances of
Kenneth Hall's signing of his card, and his later conduct,
indicate that his card also is to be considered a designation,
and I so find. Murray's credited testimony is that Hall was
"very elated that I was there, to sign the card." Hall testi-
fied as a witness for the General Counsel but was not ques-
tioned as to his card. I deem his testimony and his conduct
to reflect approval and support of the Union throughout,
though he denied it when questioned by Hyneman and
Groff. James Helm also testified as a witness for the Gen-
eral Counsel. I infer, from the totality of the circumstances,
that Helm approved of and supported the Union and that
his card is therefore to be considered a designation.
Thus the Union has effective designations from no more
than 14 of the 29 employees in the appropriate unit, not a
majority.9 It is consequently found that the evidence does
not establish that the Union had been designated as collec-
tive-bargaining representative of Respondent's employees
in the appropriate unit at the time in question.
That finding, if correct, disposes of the refusal to bargain
allegation. No contention is raised that a bargaining order
should issue even if the Union is found not to have a major-
ity. Assuming those facts, the scope of the appropriate unit
need not be determined. However, the Board may disagree
with my conclusion on the majority question. For that rea-
son, I will resolve the issues as to the appropriate unit.
3. The appropriate unit
The parties appear to be in agreement that a production
and maintenance unit is appropriate. However, they are in
disagreement concerning the composition of that unit. They
agree as to the inclusion of 28 employees who comprise the
unit contended for by the General Counsel. Respondent
contends, and the General Counsel and the Union dispute,
that 7 other employees should be included in the unit.
The truckdriver
Pius Yoder is Respondent's regular truckdriver. He deliv-
ers Respondent's product over the road to various places in
Pennsylvania and Ohio, sometimes being away from the
plant more than 2 days at a time. Though he receives the
same fringe benefits as other unit employees, Yoder, unlike
them, has no set reporting time, does not punch a time-
clock, and is paid a salary. Other employees in the General
Counsel's proposed unit are hourly paid. Yoder is the high-
est paid employee in the plant, receiving $25 more per
month than the bakers, who are also salaried, and whom
the General Counsel would also exclude. Yoder is paid
overtime calculated on the basis of the estimated time re-
quired for his work. Occasionally, according to the testi-
mony of Company President Glen Hyneman, "if we really
get jammed up" and Yoder does not have deliveries to
make, he will work in the plant loading trucks or moving
skids. However, this occurs only two or three times a
month. Yoder's community of interest with other employ-
ees in the appropriate unit proposed by the General Coun-
sel and the Union is thus tenuous.
Board decisions appear to indicate that where no other
union is claiming to represent truckdrivers, they may ap-
propriately be either included in or excluded from a pro-
duction and maintenance unit, depending largely upon the
' This assumes that the other five cards secured at the May 21 meeting are
valid. However, no final determination is made in that regard. Business Rep-
resentative Murray's credited testimony is that those who signed cards at
that meeting "reviewed the cards." I construe this to mean that the signato-
ries read the cards. Whether that action makes them designations as dual
purpose cards, is a question now unnecessary to decide. My findings as to the
cards of Mays, Kline, and Geyer dispose of the majority question. It may be
added however, that if my premises for rejecting the cards of Mays, Kline,
and Geyer are incorrect, all the cards secured at the May 21 meeting should
probably be counted.
505
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wishes of the petitioning union. Marks Oxygen Company of
Alabama, 147 NLRB 228 (1964); Fayette Manufacturing
Co. Inc., Division of Dayton Steel Foundry, 193 NLRB 312
(1971); Pacemaker Mobile Homes, a Division of Lonergan
Corporation, 194 NLRB 742 (1971). Cf Donald Carroll Met-
als, Inc., 185 NLRB 409 (1970), and Container Research
Corporation, 188 NLRB 586 (1971). On the basis of those
precedents I conclude that Pius Yoder is to be excluded
from the appropriate unit.
The bakers
Respondent employs three bakers whom the General
Counsel and the Union would exclude from the appropriate
unit, and whom Respondent would include. The General
Counsel and the Union contend that the bakers responsibly
direct and discipline employees and adjust their grievances,
and are supervisors under Section 2(1 1) of the Act. Respon-
dent contends to the contrary.
At the times relevant here (late May and early June
1977), Respondent was working three shifts, with one baker
on each shift. During the day, Company President Hyne-
man and Plant Manager Boaman are usually present at the
plant to supervise operations, generally leaving in late after-
noon or early evening. However, they may be reached at
home by phone in the event of an emergency. According to
Respondent's testimony, Hyneman and Boaman are the
only persons in the plant who exercise supervisory author-
ity. At the relevant time, eight employees were employed on
the second shift, six on the third shift, and the remainder on
the first shift. On the first shift two ovens are operated, and
two doughmixers are required. On the two later shifts, only
one oven is operated and only one doughmixer required.
The baker is responsible for the production of pretzels of
good quality. To that end he inspects and directs the work
of the doughmixer to insure that the dough will produce
pretzels of the required quality. Bakers are salaried, in con-
trast to all other employees, who, except for Pius Yoder, are
hourly paid. Bakers' pay per week is substantially higher
than that of hourly paid employees.
On the two late shifts, the baker has the additional re-
sponsibility of insuring that the finished pretzels are prop-
erly packaged and labeled by employees called packers. To
this end the baker oversees and directs those operations, as
well as the work of the doughmixer. The bakers on the two
late shifts thus responsibly direct the work of employees
and are therefore supervisors under the Act. Taylor Baking
Company, 143 NLRB 566, 567 (1963).
In addition, the record discloses other indicia of supervi-
sory authority in the bakers. Thus, on at least one occasion,
the second shift baker, Robert Pipkin, directed James Swift,
a doughmixer, who refused to load the salter, to punch out
and to go home if he did not want to work. After Swift had
punched out, Pipkin told him that he might remain at work
and help pack pretzels, if he wished. Swift refused. When
Swift reached home he was told by his mother that Man-
ager Boaman had telephoned and had asked her to convey
the message to Swift that he had been discharged. I con-
clude that Pipkin has authority to send employees home if
they do not perform their duties, to assign them to different
tasks, and to effectively recommend their termination.
Bakers appear to have the authority to adjust minor
grievances, are viewed by employees as bosses, and were
referred to by President Hyneman in his testimony as fore-
men or supervisors.
On the above facts, I conclude that the bakers have au-
thority to use independent judgment for the purpose of re-
sponsibly directing employees, assigning them, adjusting
grievances, disciplining them, and effectively recommend-
ing their discharge. Bakers who responsibly direct the work
of employees are supervisors within the meaning of the Act.
The three bakers here, Robert J. Ziegler, Robert L. Pipkin,
and Christ A. Yoder, are found to be supervisors, and are to
be excluded from the appropriate unit. Cf: Dobbs House, A
Division of Squibb-Beechnut, Inc., 182 NLRB 675, 676
(1970).
Leroy Hyneman
Leroy Hyneman is the father of Company President Glen
Hyneman. Leroy is the proprietor of a nursery and land-
scaping business which occupies most of his time in season-
able weather. During interim periods he works for Respon-
dent.
The record discloses that Leroy Hyneman works substan-
tially fewer hours for Respondent during the busy periods
of his nursery-landscaping business. Nevertheless, during
the larger part of the year, he works significant enough pe-
riods of time for Respondent to warrant his inclusion in the
appropriate unit if he is an ordinary employee. While
Leroy's record suggests that during temperate seasons and
weather he works a minimal schedule, he is not singular in
that regard. Respondent has a number of persons who work
only on call from time to time when Respondent requires
extra help. I infer that these latter employees are free to
refuse employment when called without prejudice to their
status. Thus, with respect to availability, Leroy Hyneman's
status seems to be little different from theirs.
However, other facts suggest that Leroy is not an ordi-
nary employee. In order to enable President Glen Hyne-
man to purchase his 40 percent interest in the business,
Leroy borrowed $25,000 from a bank, which sum Leroy
gave to Glen. As collateral for the loan, Leroy gave the
bank a mortgage on his home. Glen Hyneman makes the
payments to the bank on the loan. If the business fails, or
for some other reason Glen fails to make payments on the
loan, the mortgage is subject to foreclosure. Leroy thus has
a direct financial stake in the maintenance of the business,
even though he has no proprietary interest in it. It has been
seen that at the May 31 meeting, Leroy Hyneman spoke
and asked the employees to give Glen an opportunity to
run the business without a union.
In these circumstances, in view of the financial involve-
ment of Leroy Hyneman in the acquisition of the Company
and his continuing economic interest in its well-being and
survival, the filial connection, and the fact that Leroy has
his own independent business, it appears to me that Leroy's
predominant interest lies more substantially with manage-
ment than with the other employees, thus giving him a spe-
cial status in the plant, and minimal community of interest
with employees in the appropriate unit as to conditions of
employment. Since this conclusion deprives Leroy Hyne-
506
KEYSTONE PRETZEL BAKERY
man of a voice in the selection of a bargaining representa-
tive for the appropriate unit, it will be recommended that
he be excluded from the unit. Economy Cash Stores, Inc.,
a/k/a Cardinal Food Town, 202 NLRB 930 (1973); Marvin
Witherow Trucking, 229 NLRB 412 (1977).
Michael Boaman
Michael Boaman is the son of Plant Manager Boaman.
During 1977 Michael was a student attending school in
New Jersey. At times he came home on weekends and
worked in the plant at the discretion of his father, cleaning
up. However, Michael did not come home for that purpose.
Respondent's payroll records disclose payments to Mi-
chael on some 9 weeks during the second quarter of 1977
for some 124 hours at a rate of $3.05 per hour. However,
Michael was sometimes clocked in for periods when he did
not work. In view of this, I find the records and the testi-
mony unreliable as indicators of the extent of Michael Boa-
man's employment during the relevant period-particularly
since the substantial part of his claimed employment was
during weekends, when no other employees were in the
plan. I therefore conclude that the evidence does not satis-
factorily establish that Michael Boaman worked a signifi-
cant enough part of a relevant period of time to warrant his
inclusion in the appropriate unit. It is therefore unnecessary
to consider whether his filial relationship to the plant man-
ager is a probative factor.
Joanne Herbert
Joanne Herbert is a part-time employee. Respondent em-
ploys a number such in the appropriate unit who work
varying hours and at varying times, at the call of Respon-
dent, according to Respondent's need and their availability.
Except for Herbert, the parties agree that the part-time em-
ployees should be included in the unit. After initially stipu-
lating to the inclusion of Herbert in the unit, the General
Counsel withdrew from the stipulation. He now contends
that Herbert is a casual employee who should be excluded
because she worked a minimal amount of time in the quar-
ter preceding the Union's alleged attainment of majority
(about late May 1977).
The General Counsel's contention is rejected. While the
payroll records do not disclose significant employment of
Herbert during the second quarter of 1977, they show sub-
stantial employment in the preceding and succeeding quar-
ters. In these circumstances, I find that Herbert is to be
included in the appropriate unit.
IV. THE REMEDY
Having found that Respondent has committed unfair la-
bor practices, I will recommend that Respondent be or-
dered to cease and desist therefrom, and take certain affir-
mative action required to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
507