Langendorf United Bakeries, Inc.

National Labor Relations Board - Board Decisions

May 12, 1950

89 N.L.R.B. 1307 (N.L.R.B. 1950)

In the Matter of LANGENDORF UNITED BAKERIES, INC. (BARBARA ANN
BAKING COMPANY DIvIsION) and OFFICE EMPLOYEES INTERNATIONAL
UNION, LOCAL No. 30, A. F. OF L.
Case No. 21-CA-220.-Decided May 12, 1950
DECISION
AND
ORDER
On January 31, 1950, Trial Examiner Earl S. Belllnan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices as alleged in the complaint, and recommended that such
allegations in the complaint be dismissed.,
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a supporting brief. The requests for oral argument are
hereby denied because the record, including arguments of counsel, the
exceptions and brief, in our opinion, adequately present the issues
and positions of the parties.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committeed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions and
recommendations of the Trial Examiner with the following additions
and modifications :
We agree with the Trial Examiner that the Respondent unlawfully
discharged Louise J. Tudor and Ellen V. Johns on September 21, 1948.
1 No exceptions were filed to so much of the Intermediate Report as recommends that
certain allegations in the complaint be dismissed. Accordingly, we shall adopt such recom-
mendations without passing upon the issues involved.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three- member panel
[Members Reynolds, Murdock, and Styles].
89 NLRB No. 161.
1307
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But we do not accept all the reasoning of the Trial Examiner, and
specifically reject his suggestion that regardless of motive, the Re-
spondent may, upon the record in this case, be found guilty of violating
Section 8 (a) (3) of the Act because of the impact which the dis-
charges had upon the unionization of the office employees. However,
we are persuaded, as was the Trial Examiner, that the said discharges
were made by the Respondent to discourage membership by its office
employees in the complainant Union or any other labor organizations.
Such conclusion is amply supported by the record, which, among other
things, shows that the discharges were made: (a.) Eight days after
the office employees began their organizational activities; (b) five
days after a majority of the office employees signed applications for
membership in the complainant Union; '(c) five days after representa-
tives of management attempted to discover which employees were the
leaders in the organizational activities among the-office employees by
unlawfully interrogating three office employees; (d) one day after
Tudor and Johns had revealed their leadership of the faction of office
employees who had joined the Union; and (e) the same day that
Anne K. Sweet, the business representative of the complainant Union,
advised the Respondent at least 30 percent, and probably a majority
of, the office employees had joined the Union. These facts coupled
with the further fact that the two so-called cliques among the office
employees had existed for a relatively long period of time and the
situation had not called for any drastic action upon the Respondent's
part prior to its obtaining knowledge that the office employees were
organizing, and seeking union assistance, convince us that the Re-
spondent's contention that Tudor and Johns were discharged solely
to eliminate the dissension among the office employees is a mere pretext
to disguise the Respondent's true purpose, namely, to discourage or-
ganizational activities among the office employees. Accordingly, we.
find that the Respondent by discharging Louise J. Tudor and Ellen V.
Johns on September 21, 1948, and thereafter by refusing to reinstate
them has violated Section 8 (a) (3) of the Act and that by such con-
duct it has a.1so violated Section 8 (a) (1) of the Act.3
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Langendorf
8 The Trial Examiner omitted to find, as the Board usually does in such cases , that the
Respondent by unlawfully discharging and thereafter refusing to reinstate Tudor and
Johns violated Section 8 ( a) (1) as well as Section 8 (a) (3) of the Act.
LANGENDORF UNITED BAKERIES., INC. 1309
United Bakeries, Inc. (Barbara Ann Baking Company Division), its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Office Employees International
Union, Local No. 30, affiliated with the American Federation of Labor,
or in any other labor organization of its employees, by discharging or
refusing to reinstate any of its employees, or by discriminating in any
other manner with respect to the hire and tenure of employment of
its employees, or any term or condition of their employment;
(b) Interrogating their employees concerning their union activities,
or sympathies;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist Office Employees Interna-
tional Union, Local No. 30, affiliated with the American Federation
of Labor, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any and all such activities,
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer Louise J. Tudor and Ellen V. Johns immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges;
(b) Make whole Louise J. Tudor and Ellen V. Johns for any loss
of pay they may have suffered by reason of the Respondent's discrim-
ination against them, by payment to each of a sum of money equal to
the amount she normally would have earned as wages from the date
of her discharge to the date of the Respondent's offer to reinstate her,
less her net earnings during said period;
(c) Post at its Barbara Ann plant office in Los Angeles, Califor-
nia, copies of the notice attached hereto and marked Appendix A 4
Copies of said notice, to be furnished by the Regional Director for
the Twenty-first Region, shall, after being duly signed by a repre-
sentative of the Respondent, be posted by the Respondent immediately
upon receipt thereof and maintained by it for a period of sixty (60)
consecutive days thereafter in conspicuous places, including all places
" In the event this order is enforced by a decree of a United States Court of Appeals, there
shall be inserted before the words. "A DECISION AND ORDER," the words, "A DECREE
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where notices to office employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by other material; and
(d) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section 8 (a)
(1) of the Act by "attempting to influence its employees against the
Union" and insofar as it alleges that the Respondent violated Section
8 (a) (1) and (3) of the Act by discharging and refusing to rein-
state Helene Scherber.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
1VE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization,
to form labor organizations, to join or assist OFFICE EMPLOYEES
INTERNATIONAL UNION, LOCAL No.. 30, affiliated with the Ameri-
can Federation of Labor, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual. aid or protection, and to refrain from
a.ny and all such activities, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized by
Section 8 (a) (3) of the Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any
loss of pay suffered as a result of the discrimination against them.
Louise J. Tudor
Ellen V. Johns
All of our employees are free to remain or become members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
LANGENDORF UNITED BAKERIES, INC. 1311
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
LANGENDORF UNITED BAKERIES, INC.,
(Barbara Ann Baking Company Division)
Employer.
Dated --------- By ---------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. James W. Cherry, Jr., for the General Counsel.
Mr. J. Wesley Cupp, of Los Angeles, Calif ., for the Respondent.
Messrs. Arthur Garrett and James M. Nicoson, of Los Angeles , Calif., for
the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on June 21, 1949, by Office Employees Inter-
national Union, Local No. 30, A. F. of L., herein called the Union, the General
Counsel of the National Labor Relations Board, by the Regional Director for
the Twenty-first Region (Los Angeles, California), issued an amended complaint
dated June 28, 1949, against Langendorf United Bakeries, Inc., (Barbara Ann
Baking Company Division), herein called the Respondent, alleging that the
Respondent had engaged and was engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the amended complaint and the amended charge were duly served
upon the Respondent and the Union. On June 29, the hearing, which had been
duly noticed for July 5 at the time of the service of the original complaint dated
June 2, 1949, was duly ordered postponed by the Regional Director to July 19,
1949.'
With respect to the unfair labor practices, the amended complaint, hereafter
referred to as the complaint, alleged in substance that the Respondent: (1)
from on or about September 21, 1948, (a) interrogated its employees with respect
to their union affiliation and activities and (b) attempted to influence its em-
ployees against the union; (2) on or about September 21, 1948, discriminatorily
discharged Louise J. Tudor and Ellen V. Johns and on or about January 18,
1949, discriminatorily discharged Helene Scherber, and has since refused to rein-
state said three employees; and (3) by such conduct has interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act.
' The General Counsel and his representative at the hearing are herein called the General
Counsel ; the National Labor Relations Board is called the Board.
The various formal papers in this case prior to the amended complaint are not here
detailed because no issues requiring resolution are posed by those documents. ' It is noted
only that the amended charge alleged the discriminatory discharge of three employees,
while the original charge, filed on September 24, 1948, alleged only two such discharges.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 7, 1949, the Respondent filed its answer.' The answer "specifically"
denied that the Respondent was engaged in commerce within the meaning of
the Act ; admitted the discharges of the three employees, on or about the dates
alleged, and the subsequent refusals to reinstate said three employees, but
denied that the Respondent had thereby, or in any other manner, engaged in
any unfair labor practices ; and alleged that the discharges complained of "were
made purely on a basis of inefficiency and lack of cooperation."
On July 19 to 27, a hearing was held at Los Angeles, California, before Earl S.
Bellman, the undersigned Trial Examiner, duly designated by the Chief Trial
Examiner. The General Counsel, the Respondent, and the Union were repre-
sented by counsel and participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties. At the close of the hearing, a motion was
granted, without objection, conforming the pleadings to the proof in respect to
minor matters, and the parties were afforded opportunity to argue orally before
the undersigned and to file briefs and proposed findings of fact and conclusions
of law. All parties argued orally on the record. On August 30, 1949, pursuant
to an extension of time duly granted by the Acting Chief Trial Examiner, a
brief was filed by the Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Langendorf United Bakeries, Inc., is a Delaware corporation, having its prin-
cipal place of business at San Francisco, California. About April 1947, Langen-
dorf purchased a majority of the stock of the Barbara Ann Baking Company,
a California corporation with its principal place of business in Los Angeles
County, California. Both Langendorf and Barbara Ann are engaged in the
manufacture of bread and bakery products, their principal sales being made on
a wholesale basis. The principal purchases of materials of both consist of
flour, sugar, shortening, yeast, milk, and salt. Their principal purchases of
equipment consist of bakery machinery, equipment, and trucks, while their
principal supplies consist of cellophane and waxed paper wrappers, bands, car-
tons, bakery machinery parts, and truck repair parts.
Barbara Ann has 2 plants in California, 1 in San Bernardino, and 1 in Los
Angeles. Langendorf has 14 plants located in 3 States, California, Oregon, and
Washington. Each of the foregoing 16 plants, the 2 of Barbara Ann and the
14 of Langendorf, is under the control of Langendorf's main office in San Fran-
cisco, and the Respondent conceded at the hearing that Barbara Ann is "not a
separate corporation in the ordinary sense of the word" but is "solely owned
and controlled as a subsidiary" of Langendorf. However, while control of all
16 plants clearly lies with Langendorf which operates them all, including the 2
Barbara Ann plants, as parts of an integrated system, it is evident that discre-
tionary power is given to management at each of the plants. Although the
major portion of the bakery machinery and automotive equipment for each of
3 Document here described is entitled "Answer to the Amended Complaint." It is the
only one of the three answers filed herein which is material and Is the only answer to
which reference is hereafter made.
LANGENDORF UNITED BAKERIES, INC. 1313
the plants is purchased through Langendorf' s San Francisco office, such items
as repair parts may be purchased locally. The principal purchases of flour and
shortening for the Barbara Ann plants are- made through Langendorf's San
Francisco office. In the undersigned's opinion, the operations of Barbara Ann
are so controlled by Langendorf and so integrated into its operations that the
question of commerce and of the assertion of jurisdiction must be viewed in the
light of the total operations of both companies. The following resume is based
on approximate figures covering the operations of both companies for the
12-month period ending June 26, 1948, the most recent period for which such
data were readily available.
As to each of the 14 Langendorf plants, the sale of products for the above
year's period was not less than $300,000 and not more than $7,000,000. Of such
sales, less than 1 percent was made to customers in States other than the State
in which each of the respective 14'plants is located. During this same year's
period, the materials, equipment, and supplies purchased as to each of the 14
Langendorf plants totaled not less than $200,000 or more than $5,000,000 in
'value. Not less than 35 percent and not more than 72 percent of such purchases
'as to each plant was shipped directly to that plant from outside of the State
wherein the plant is located. Of the ,total value of materials, equipment, and
supplies purchased from local sources for any one of the 14 Langendorf plants,
approximately 10 percent originated outside of the State in which the plant is
located.
As to the Barbara Ann plants,' the purchases of materials, equipment and sup-
plies for the same year's period were approximately $4,550,000, about 30 percent
of which was shipped directly to the plants from outside the State of California.
Of the value of materials, equipment, and supplies purchased from local sources,
approximately 10 percent originated outside the State of California. The sales
of the Barbara Ann plants during the year ending June 26, 1948, amounted to
$5,740,000 and were all made within the State of California.
Everything considered, the undersigned is satisfied and finds that the Re-
spondent is engaged in commerce within the meaning of the Act and that the
Board should assert jurisdiction in the instant matter.
II. THE ORGANIZATION INVOLVED
Office Employees International Union, Local No. 30, is a labor organization
affiliated with the American Federation of Labor ; it admits to membership office
employees of the Respondent.
4 While the stipulated figures are not broken down as between the San Bernardino and
the Los Angeles plants, it is clear from testimony that the Los Angeles plant, the office
employees of which are involved in the instant matter, is substantially the larger of the two.
1314 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES 6
A. Chronology of events; interference, restraint, and coercion
1. The situation in Respondent 's, office prior to organization
The approximately 15 office employees of the Respondent 's Barbara . Ann plant
in Los Angeles , the only employees involved in this matter , are under the su-
pervision of Office Manager Walter H. Daw. . Almost all of these office employees
are women . Until the advent of the Union under circumstances discussed below,
the office employees had not been organized , although other employees at the
plant had been covered for some years by contracts between the Respondent and
several unions. However , for some time prior to September 1948 when the
Union entered the picture, a number of the women employed in the office had
resented the attitude and activities of a fellow employee , Ada Collins , who, while
iiot actually having supervisory status, was considered a straw boss , and was
used by Daw as his key girl and trouble shooter. Collins was a capable worker
and was able to perform the various jobs in the office. Daw testified that other
girls resented the fact that "as long as I had•. Ada there they knew I could fire
any girl in there and not have any worry about getting their job done."
It is apparent also that many employees resented the fact that Collins boasted
to them of her influence with Daw and made statements that she could get girls
fired, some of whom were later discharged after . Collins bad made such state-
ments .` In addition , many of the women employed in the office strongly resented
Collins' use of language which they considered vulgar . The undersigned is
'satisfied and finds , after careful consideration of the voluminous evidence per-
taining thereto , that the chief source of dissatisfaction in the Respondent ' s office
for sometime prior to the advent of the Union . was the unofficial role of Ada
'Collins therein, which role most of the other women employees had come to fear
and resent?
2. The advent of the Union
The event which precipitated organizational activity among the Respondent's
office employees was the discharge of Louvella'Burnham, who was one of the
senior employees in point of service and who had not been one of the employees
4 While some consideration is given below to such-matter-as credibility of witnesses and
conflicts in the evidence, for the most part, the findings in this section are made upon
evidence which is undisputed or is at variance only as to minor details, or are made with-
out explanation upon the preponderance of.the reliable, probative, and substantial evidence
in-the record considered as a whole. It should be noted that there is considerable evidence,
some of it highly.contradictory in nature, concerning which the undersigned deems it either
unnecessary to make findings in more detail than appear below, or to make any findings
at all.
6 It is unnecessary to determine what role, if any, Collins actually may have played in
such discharges.
7 In reaching the above conclusion, due consideration has been given to such friction as
appears to have developed when Daw, a Langendorf employee for many years, began in
May 1947 to install Langendorf's new office system after it had purchased Barbara Ann, and
also the extensive evidence on the question of office cliques. In the undersigned's con-
sidered judgment, such resentment as resulted in May 1947 from changing office systems
played no material part in the matter, and the so-called office cliques at times material
herein consisted, on the one hand, of a minority of the girls who played up to Ada Collins,
and, on the other hand, of the majority who resented her and the feeling' of insecurity
which she gave them.
LANGENDORF UNITED BAKERIES, INC. 1315
"with Ada."' It was shortly after Ada Collins returned from an' extended
vacation ° that Daw discharged .Burnham at' noon on Saturday, September 11,
without any previous notice, and just as Burnham was scheduled to begin her
vacation. Whatever may have been Daw's justification for discharging Burnham,
a matter upon which the undersigned does not pass, it is apparent that the
circumstances surrounding her discharge stimulated discussion among the women
in the office as to what they could do to get some degree of job security and
some protection from Collins 1°
The reaction to Burnham's discharge was immediate. On Monday, September
13, complainant Ellen Johns, the private secretary of Manager Ole Jordheim,
who was then in Europe on a 4i/ -month vacation, told William Meyer, who was
taking Jordheim's place during his absence," that Burnham was "a good girl"
and that it was "a dirty trick" that she had been discharged. On September
13 and 14, Meyer observed Johns and complainant Louise' Tudor, whose work
apparently does not normally require them to discuss platters, conferring to-
getherduring office hours on each day on at least two or three occasions.12
During that same period, Daw also saw Johns and Tudor conferring together."
On September 13, Tudor, Johns, and employee Joseph Fernon had lunch together
and discussed the situation. Tudor, whose husband was a union representative'14
suggested that they needed a union and agreed to find out just what steps to
take in organizing office employees. That same evening, Tudor and her daughter,
complainant Helene Scherber, went to the Labor Temple and initiated arrange-
ments which Tudor reported to some of the girls at lunch the following noon,
and which led to the first meeting with a representative of the Union. That
meeting, discussed below after a description of some intervening events, was
held on the evening of September 16 at Roy's Cafe.
After lunch on Thursday, September 16, Daw came to Tudor's desk and
asked her to come into Meyer's private office, where the three of them had a
I It is noteworthy that the only employee witness called by the Respondent, Ida Stoup,
testified as to office cliques; "Well, I would say that one clique was all against Ada and the
other clique was-you couldn't say they were for Ada, but they were with her." Stoup also
testified that the girls considered Collins "Mr. Daw's^ pet."
Collins left on is 7-week vacation during July and returned the. day after Labor Day.
1° For instance, employee Mary Fuller testified credibly that "Most of the girls in the
office were very upset" over Burnham's discharge and felt "insecure" ; that Rurnham's
discharge "was the main reason we decided to organize" ; and that Collins had bragged to
her that she had got the girl.fired whose position Fuller had been hired to fill. Similarly, -
employee Agnes Norrish testified credibly that she had heard Collins "say that she didn't
like certain girls and that she was going to get them fired" and that some of those girls
eventually were fired.
1 Jordheim, who was manager of both of the Barbara Ann plants, left for Europe on
June 2 and did not return until the middle of October. Meyer, who was in charge during
most of the events material herein, normally is plant manager of only the San Bernardino
plant and reports directly to Jordheim who normally manages the Los Angeles plant.
However, Meyer was in charge of both Barbara Ann plants during Jordheim's absence in
Europe, and divided his time between them.
12 Meyer so testified. He also testified that "Dissension broke out outwardly" the morning
Johns returned from her vacation.
13 Daw testified that on the Monday after Burnham's discharge, Johns and Tudor were
"having quite a hit to do with each of and that toward the end of that week "two or
three girls" told him that Tudor was organizing a group to force him "to fire Ada."
11 Tudor's husband was business representative of A. F. L.'s "Operating Engineers, Local
No. 68,'. a fact which Tudor had informed Daw several months earlier during a casual
conversation.
880227-51-vol. S9-84
1316 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
somewhat extended discussion 16 At the outset, Daw stated that he understood
that the girls in the office were talking about joining a union ; that he wanted
to know who had started it ; and that the office employees at Langendorf's 62nd
.Street plant who were unionized did not have as many privileges 1' Tudor
replied that such privileges depended entirely on the type of contract that a
union secured and that the organizational activities had been spontaneous,
without any one person actually starting it. Tudor added that she had expected
to be blamed, as Daw knew that her husband was,a union organizer and hence
knew where her sympathies would lie. When Daw persisted in trying to find
out who had done the actual "contacting" Tudor replied that he seemed more
interested in finding out who had started the Union than in why it had been
started. Meyer then asked why the Union had been started. In the discussion
which followed,. whatever else may have been touched upon, the undersigned is
satisfied that. Tudor made it clear, during what both Daw and Meyer charac-
terized in their testimony as a "tirade" against Collins, that the impetus for
the formation of the Union was the insecurity and resentment felt by the girls
because of the role of Collins in the office.17
Oil the afternoon of September 16, shortly after the above discussion, Tudor
overheard Daw ask Joan Fernon and Lulu Anderson, each in turn at her place
of work, if she knew who had started the Union.18 While there is no evidence
as to Anderson's answer, the undersigned credits Fernon's testimony that she
.told Daw that the Union started in a group because of the unrest in the office,
and that something had to be done about ,Collins because of the kind of language
she used.
On the evening of September 16, the meeting arranged for Roy's Cafe was
attended by nine women office employees of the Respondent, including the three
complainants, Johns, Scherber, and Tudor, whose husband accompanied her.
Anne K. Sweet, a business representative of the Union, was also present. Fol-
15 The findings as to this discussion are based to a considerable extent on Tudor's testi-
mony, which is only partially contradicted by that of Daw and Meyer, whose testimony is
not consistent in all respects. The undersigned has, of course, carefully considered the
testimony of all three of those witnesses. While it does not appear that any useful pur-
pose would be served by a detailed discussion of credibility, either here or on certain other
matters in this report, it should be noted that this ease involves some intense feeling, and
that not all of the vindictiveness and exaggeration fall on one side of the fence. Generally
speaking, while Tudor's testimony is not free from exaggeration and evasion, the under-
signed believes, on the whole, that it is more reliable than that of either Daw or Meyer.
The undersigned is also satisfied that Meyer's. testimony is less tinged with evasion,
resentment, and exaggeration than that of Daw. It should be noted that no attempt is
made here, as is also true elsewhere, herein, to set out the conflicting testimony or to detail
the undersigned's reasons for resolving conflicts or not making findings on testimony.
1 The office employees at that Langendorf plant in Los Angeles were organized by an
A. F. L. local affiliated with Teamsters. From Tudor's testimony, Daw apparently pointed
out that that Langendorf plant gave office employees no sick leave and only 1 week's vaca-
tion. The undersigned does not believe, however, that it can be fairly inferred from all
of the evidence that any such comparison by Daw constituted a threat of withdrawal of
superior privileges if the Barbara Ann office employees organized.
17 The undersigned is not convinced that Tudor, as she testified, actually told Daw and
Meyer in so many words that they could "still stop this union business" by taking adequate
steps to stop Collins' undersirable behavior and provide the girls with "proper office condi-
tions and job security." In any event, it is clear that Daw and Meyer did not seek to enlist
Tudor's aid in getting the Union stopped on the basis of any such arrangement.
3s Tudor's testimony to that effect is credited and is corroborated as to Fernon by
Fernon's own credited testimony. Daw admitted that he had asked "a girl or two in the
office who started this trouble trying to get rid of Ada-or something to that effect." He
also admitted that he thought one of those girls was Fernon.
LANGENDORF UNITED BAKERIES, INC . 1317
lowing a discussion at that meeting during which the employees explained to
her that they "felt they had no security in their jobs," Sweet secured appli-
cations for membership in the Union from each of the nine girls present.14
On noon of the following day, September 17, several employees, including
Tudor, Johns, Norrish, and Fuller, were having lunch together at the U-shaped
counter in the DiMaggio Malt Shop, over a mile from the plant, when Daw
entered the room and sat down at the counter just a seat or two away from the
girls. The undersigned is satisfied from the several versions of this incident
that Tudor was discussing the Union when Daw entered the malt shop ; that
she did not see him enter; and that her attention was not distracted from her
discussion of the Union until after Daw had seated himself for lunch.' While
the undersigned believes, contrary to the Union's contention, that the evidence
does not warrant the inference that Daw followed the girls to the malt shop
for the purpose of surveillance, the undersigned finds from all of the testimony
that Daw overheard Tudor talking about the Union before she became aware
of his presence.21
3. The meeting of September 20 and developments thereafter
- On the afternoon of Monday, September 20, Daw called a meeting in the
office of all office employees. This meeting, which lasted about an hour, began
at four and concluded about quitting time. Daw and Meyer both addressed
the meeting and several employees took part in the discussion which followed
their talks. There is a great deal of testimony about this meeting, much of
it contradictory or inconsistent, and the undersigned is satisfied that the tes-
timony of some of the witnesses involves exaggeration, evasion, and distortion.
For example, the undersigned is not convinced that Daw went so far as to say
that employees would be discharged if they went out to lunch in groups, although
he evidently did admonish employees not to congregate together in groups in the
office and asked employees to come to him to discuss their dissatisfaction. On
the other hand, the undersigned is satisfied that Daw, who estimated that his
talk was 30 minutes long, did not confine himself to reading verbatim the rela-
tively brief material contained on the cards which were introduced in evidence
and which, in part, constituted no more than an outline.
The summary findings which follow are made upon the undersigned's study
of all of the evidence pertaining to the September 20 meeting. In general, it is
apparent that Daw's speech, which was the major one at the meeting, consisted
of an exhortation to the employees to be loyal and devoted to their employer ;
to work together happily, cheerfully, and harmoniously ; to play fair and to re-
member the golden rule and not to "gang up" on Ada Collins or. hold grudges
against her; to discuss complaints and dissatisfaction pertaining to their work
with their employer ; to have faith that their employer would retain them in their
jobs as long as they were willing, efficient, loyal, and cooperative ; and to avoid
being led like sheep by any individuals who might want to use them for their own
11 Sweet, whose testimony was not colored by personal animus, so testified.
20 In fact, according to Tudor's testimony, Johns had to interrupt her twice by asking her
if she had not said that she had to go to the bank. It should be noted that the Respondent
contends that Daw ate at the malt shop frequently because he had to go daily to a nearby
bank.
21 In any event, Daw admitted that he probably learned of the meeting at Roy's Cafe
about the Friday after he had discharged Burnham.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes . During his speech Daw stressed that employees who were not loyal
to the company would be discharged.
Meyer ' s remarks opened with an explanation to the employees of how "dis-
agreeable and embarrassing " it was to him "to think they would allow a
thing such as the reason for the meeting . . . to occur" during Jordheim's ab-
sence in Europe , since Jordbeim had "worked hard all his life to save money to
make this trip , and had always treated everyone well who had worked for him." 22
Meyer then touched upon the resentment which Barbara Ann employees had felt
when the Langendorf system had been installed ; deplored the dissention which
currently existed in the office ; and urged the girls to cooperate and work together
as a team. Meyer said that "if they had problems , Mr..Daw was the man to take
them to ," and if they did not get satisfaction from Daw they could come to him.
In concluding his remarks ! and before opening the meeting for discussion,
Meyer made some reference to Communism . He testified that he told the em-
ployees that "the factions and cliques and the dissension that apparently existed
in our office was a breeder of distrust and disloyalty and lack of friendliness and
disharmony, conditions brought about that were the very basis and foundation
of Communism ." Tudor testified that Meyer stated, "Don't let any one person
lead you into something that you know you shouldn 't go into , because that is the
way Communism operates ." Other testimony falls between the foregoing ver-
sions. Without presuming to decide precisely what Meyer did say, the under-
signed does not believe that the evidence is sufficient to establish that the re-
marks of either Daw or Meyer at the September 20 meeting exceeded the pro-
tection of Section 8 (c) of the Act.
In the fairly extensive discussion which followed the talks of Daw and Meyer,
there was emphatic and somewhat detailed criticism of Collins , led by Tudor and
Johns, who sat together during the meeting, and who, upon at least one occasion,
had exchanged whispered remarks. While there were other employees who took
part in the discussion , and apparently some remarks were made in defense of
Collins , it is abundantly clear from all of the evidence that the outspoken criti-
cism of Collins , under the leadership of Tudor and Johns , precluded realization of
harmony on the basis being sought by Daw and Meyer . Before the close of the
meeting, Tudor asked Daw to explain what he meant by loyalty and Daw asked
Tudor if she would have done what she had done if she had been loyal to the
company. Tudor asked Daw what it was that she had done , but Meyer cut off
an answer on the part of Daw by precipitately adjourning the meeting.
On Tuesday , September 21, several of the Respondent 's employees had lunch
with Sweet and reported to her what had transpired at the office meeting the
previous afternoon . After lunch, Sweet telephoned Meyer and told him that
she knew that she had 30 percent of his office employees signed up and that she
believed that she represented the majority . Sweet asked for an appointment
with Meyer to discuss the matter and Meyer stated that he would be in San
Bernardino for 2 days but would see her on Friday , September 24. After his
conversation with Sweet , Meyer discussed by telephone the question of discharg-
ing certain employees , first with the home office in San Francisco and there-
after with an individual in Los Angeles who represents the baking industry in
southern California in labor relations matters.' That same afternoon, Meyer
22 The quotations are from Meyer ' s testimony, upon which this summary of his remarks
is largely based.
2 According to Meyer, in both conversations he was told to use his own judgment in
taking any action which he deemed necessary.
LANGENDORF UNITED BAKERIES, INC. 1319
and Daw discharged Tudor, Johns, and Collins. All three were discharged about
quitting time on September 21 under circumstances discussed below.
At the meeting previously scheduled which took place on September 24 between
the Respondent and the Union, the Union attempted to get the Respondent to
reinstate Tudor and Johns. The Respondent refused such reinstatement, Meyer
taking the position that the employees had not been discharged for union activity.
On September 28, at a meeting in the Board's Regional Office, the Respondent
again refused the Union's request to reinstate Tudor and Johns. At that meeting,
the Respondent was willing to consent to an election upon certain contingencies,
which included that the Board itself determine whether or not the Respondent
was engaged in commerce.''
On October 8, 1948, the Regional Director approved two withdrawal requests
filed by the Union. One withdrew the Petition for Certification of Representa-
tives which had been filed on September 17, 1948, in Case No. 21-RC-538. The
other withdrew the petition for an election to determine rights to bargain for
union security on behalf of office employees, said petition having been filed on
September 17 in Case No. 21-UA-2266.
It was about 4 months after the discharge of her mother in September that
Helene Scherber was discharged on January 18, 1949. The record is barren of
evidence of activity on the part of the Union among the Respondent's employees
during the period prior to Scherber's discharge. The amended charge which
first alleged that Scherber's discharge was discriminatory was not filed until
June 21, 1949, after the issuance of the original complaint in the instant matter
on June 2, 1949.
4. Conclusions as to interference, restraint, and coercion
From the foregoing findings and upon the record as a whole, the undersigned
is of the opinion that the evidence does not sustain the allegation of the com-
plaint that the Respondent violated Section 8 (a) (1) of the Act by "attempting
to influence its employees against the Union," especially in view of the provisions
of Section 8 (c) of the Act. On the other hand, the above-narrated activities
of Daw on September 16 in questioning Tudor, Fernon, and Anderson as to who
had been responsible for starting the Union, clearly establish that the Respondent
violated the Act by interrogating its employees with respect to their union
activities.
B. The discharges of Tudor and Johns
Louise Tudor started working at the Los Angeles Barbara Ann office about
June 1, 1948. She was hired by Daw, for whom she had worked some years
previously when both had been employed elsewhere by Langendorf. From the
inception of her work for Barbara Ann, Tudor sensed tension in the office. In
a discussion after work her first day, when Daw said that he wished that he
had a group in the office there like the "swell bunch" they had had previously
at Langendorf, Tudor told Daw that he had "somewhat of a mess" on his
hands."
It is apparent from the testimony of both Tudor and Daw, that Daw, because
of his former pleasant association with her, was counting on Tudor to con-
24 Another contingency may have been that the charges filed on September 24 as to Tudor
and Johns he withdrawn . However, Sweet did not seen certain on that point, and no such
finding is outde.
25 Tudor so testified . It was in this conversation that Tudor also told Daw of her hus-
band ' s work as a union organizer.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tribute to clearing up the friction which existed in the office: It is also evident,
particularly from the testimony of Tudor and Meyer, that friction in the office
subsided substantially during an extended period prior to Burnham's discharge,
and the undersigned is convinced, from the record as a whole, that this. was
true largely because of the 7-week vacation of Collins which extended until
after Labor Day. In any event, while it is clear that Tudor was an efficient
employee, it is understandable that Daw should have been indignant when he
had reason to believe, as he obviously did from the above-narrated,events, that
Tudor was one of the leaders in organizing the employees to bring pressure
on him to take action with respect to Collins.
Ellen Johns, the other employee whom the events above described must have
highlighted in the eyes of Daw and Meyer as a leader along with Tudor in
organizing the office employees, entered the Respondent's employ in July 1947.
Most of Johns' time was devoted to her duties as Manager Jordheim's private
secretary, but she did stenographic work for Daw whenever Jordheim did not
require her services. Johns occupied a private office next to the main office.
Her office adjoined Jordheim's private office. Meyer, while substituting for
Jordheim, used Jordheim's office and Johns' secretarial services, although he
apparently did not consider her his private secretary and Johns may have felt
some loss of status during Jordheim's absence. In any event, the undersigned
is satisfied that Johns' efficiency was unquestioned, at least until after Jordheim
had left on his vacation, and that any minor faults which were attributed to
her by Daw and Meyer during their testimony, such as knitting on a few
occasions during office hours and certain slight delays in getting work out, were
magnified out of all proportion. In fact, Meyer admitted that, prior to Johns'
going on her vacation," he had had no difficulty with her in the performance
of her duties and that she had been "a good, average girl." Meyer also testified
that he determined that Johns should be discharged solely because he knew
that she hated and detested Daw. He further testified that, the first week
he had taken Jordheim's place, Johns had said that she did not like Daw
because he was "a hard man to get along with." Assuming that Johns had,
upon one or more occasions by words or actions, conveyed to Meyer a personal
dislike for Daw, the undersigned has no doubt that both Meyer and Daw in
their testimony exaggerated incidents which tended to lend support to the con-
tention that Johns detested Daw. In any event, whatever Johns' attitude to-
wards Daw may have been, patently Meyer did not consider it a serious matter
until after the office employees began to organize, and the undersigned believes,
after due reflection upon all of the aspects of this case, that it was not the
motivating factor in Johns' discharge.
We now turn briefly to what transpired when the discharges were made on
September 21. About 4: 30 that afternoon, Helene Scherber was asked by Daw
to come into Meyer's office where she saw Daw and Meyer. After explaining
that when he had hired Scherber, he had not known that she was related to
Tudor,27 Daw told Scherber that when her mother had started work, he was
delighted because he then thought that she would be able to help him straighten
out the office, but because of the dissension, he was going to have to let her
20 It will be remembered that Johns returned from her vacation on September 13, the
Monday after Burnham's discharge , and protested that discharge to Meyer on that same
day.
24 Scherber was hired about the last of July 1948 , some 2 months after her mother had
been hired.
LANGENDORF UNITED BAKERIES, INC . 1321
mother and Collins both go. After some discussion, during which Scherber
evidently took the position that letting her mother go "would not. solve anything
in the office" and Meyer stated that he had no prejudice of any kind against
anyone, Daw asked Scherber if she would continue working, stating that, everyone
liked her and that her work was satisfactory. Scherber said that she would
think it over.28 Upon leaving Meyer's office, Scherber told her mother and Collins
that they were going to be discharged that afternoon.
After seeing Scherber, Daw and Meyer called Collins, Johns, and Tudor
separately into Meyer's office and discharged each of them. Collins said that
she was quitting before Daw had even finished telling her that it would be neces-
sary to let her go in the interest of harmony in the office. Johns was informed
that she was being discharged because of the dissention in the office. In elaborat-
ing on the necessity for discharging her, Daw said that he felt that Johns was,
the head of a clique and that for a long time he also had felt that she disliked
him. Johns questioned Daw's right to discharge her, stating that J.ordheim had
told her specifically that while he was gone she was under Meyer's direct super-
vision rather than Daw's. When Johns asked Meyer if he felt that Daw's action.
was fair; Meyer said that sometimes the innocent had to suffer with the guilty.29
At the outset of Tudor's intervew, Daw told her that he had been glad to have
her in the office because he had believed that she could help him straighten out
the trouble, but that he was very much disappointed and was asking her to
resign. Tudor replied that she had never been given authority to straighten out
the office and that she was not resigning. Tudor asked Daw's reason, stating
that it certainly could not be inefficiency. Daw said that it was not, but that they
were "going to have to fire Ada" and Ada's friends would "be sore" if they kept
Tudor, "so the best thing to do is to fire both of you." Tudor insisted that that
was a weak reason ; that she knew that the real reason was "because of the
union activity" ; and that she had expected the union activity would be laid at'
her "doorstep" because they knew her husband's work and her natural sym-
pathies3° During the discussion, Daw said that there were 4 or 5 girls in the
office who had said that they would quit if the Union came in,31 and Tudor said
that there were about 9 or 10 who would quit if it did not. Daw also pointed
out, before informing Tudor that her discharge was effective immediately, that
Tudor understood "what an awful mess" discharging "two key girls" was going
to leave him in in the office 32
Viewing the evidence in its totality, the undersigned is convinced that however
sincerely Meyer, who claimed the responsibility for initiating the decision to
discharge Tudor, Johns, and Collins, may have desired to clear up the office
situation which had come to a head during Jordheim 's absence and which was
obviously embarrassing to Meyer, as he had stated in his speech to the employeer,
on September 20, the action of the Respondent cannot be disentangled from its
18 Scherber ' s decision to stay , discussed below, was reported to Daw the following day.
29 The findings as to Johns ' interview are made on her credited testimony.
ao The quotations are from Tudor's testimony which is credited in major part as to this
interview . However, the undersigned does not accept Tudor's denied testimony that Meyer
nodded his head in indication of-concurrence when Tudor said that the real reason for her
discharge was union activity.
11 In this connection , it should be noted that when Tudor had asked an office employee,
before lunch on September 16, about joining the Union, that Employee, Garrett, had replied
that she would quit before joining the Union.
as The evidence shows that, effective within a few days of the above discharges , Daw gave
increases of $2.50 a week to each of several of the office employees.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
illegal impact upon the unionization of the office employees by viewing it as
merely action calculated to restore harmony in the office by ridding the Respond-
ent of the leaders of two opposing office cliques. These two so-called cliques
were not new and had not called for any drastic action upon the Respondent's
part prior to its obtaining knowledge that the employees were organizing. Daw
and Meyer had certainly learned, at least by the time of their discussion with
Tudor on September 16, that the chief grievance of.the employees in organizing
was the role of Collins in the office. Having this knowledge, they both addressed
the office employees on September 20 with the obvious purpose of getting the
employees to submerge their organizational activity in a wave of loyalty to
their employer and compassion for Collins. However, because of the intensity
of feelings as to Collins, highlighted by the outspoken leadership of Tudor and
Johns in denouncing Collins at that meeting, it became clear that no such simple
procedure would suffice. Ointment. having failed on September 20, the Respond-
ent operated promptly on September 21, discharging the known source of griev-
ance, Collins, along with the two obvious leaders in organizing, Tudor and
Johns.33 -
It is thus manifest that the Respondent, in belatedly seeking. to rid itself of
embarrassment and irritation, resorted to the ancient formula of liquidating
the leaders and simultaneously appeasing their followers' No formula could
have been better calculated to dissipate the impetus to unionization among the
office employees, and the undersigned is satisfied and finds that Meyer and Daw
expected and welcomed that result along with whatever effect on office morale
they otherwise may have anticipated.35 Accordingly, the undersigned finds that
by discharging Louise Tudor and Ellen Johns 38 on September 21, 1948, and by
thereafter refusing to reinstate them, the Respondent has discriminated in
regard to their hire and tenure of employment, in violation of Section 8 (a) (3)
of the Act.32
33 It is significant that while Meyer testified that his sole reason for discharging Johns
was her dislike for Daw, he also testified, concerning his having seen Tudor and Johns
talking together several times :
Well, when there is trouble and you see heads together, why, in my opinion that
is where the trouble exists, and I thought possibly, following the ultimate end of
the thing, that some way the two of them together were trying to force the thing
to be head, or do something.
34 Evidently for good measure, several wage increases were also granted.
35 In fairness, it should be noted that the record is barren of evidence indicating any
history of antiunion bias on the part of Daw or :Meyer, personally; or on the part of
the Respondent, which has had numerous contracts at various of its plants with several
labor organizations for many years.
36 The discharge of Ada Collins and the wage increases granted almost simultaneously
are not specifically before the undersigned for decision.
37 In reaching this determination, the various arguments advanced by the Respondent,
the General Counsel, and the Union, have all been duly considered, although not de-
tailed herein. For instance, the undersigned is satisfied that Johns' work as private
secretary to Manager Jordheim did not require that she deal with labor relations matters
of a confidential nature, and that no question of that type entered into the Respondent's
considerations in discharging her or can serve as a bar to her reinstatement. In addition,
the fact that the employment claim filed with the State of California Department of
Employment by Tudor on September 23, 1948, gave as the reason for discharge "per-
sonality clash," and the further fact that the claim filed by Johns on September 30,
1948, specified "clash of personalities," do not operate to bar the above conclusion, where
the circumstances revealed by the record establish that an additional and substantial
reason repulsive to the Act was also operative.
LANGENDORF UNITED BAKERIES, INC. 1323
C. The discharge of Helene Scherber
As appears above, Scherber, who was hired about the last of July 1948, was
asked just before her mother was discharged on September 21 if she would
remain in the Respondent's employ. On September 22, Scherber told Daw that
she would try it and see how it worked out, if Daw would give her a week's
-termination pay in the event he ever discharged her. This Daw agreed to do 3s
Scherber continued working on the order desk, an exacting and important assign-
ment in that the Respondent's production schedules, both for its Los Angeles
and its San Bernardino plants, are set in large part on the basis of figures
assembled, totaled, and transmited by the individual on the order desk.
About November 22, 1948, Scherber went to the hospital for about 2 weeks.
During her hospitalization, Scherber's place on the order desk was taken by
Ida Stoup, who previously had been on the order desk and whose place thereon
Scherber had earlier taken with only 2 days breaking-in training by Stoup when
Stoup herself had had to go to the hospital. Such previous order desk experience
as Scherber had had at another bakery 4 years before had been under "an
entirely different system."
When Scherber returned from the hospital, Stoup, an experienced order desk
girl, was continued on the order desk. Scherber was assigned to sales work
for the major portion of her time. Scherber also acted as Stoup's relief girl
on the order desk about one afternoon a week, as Stoup had previously done for
Scherber. Scherber continued working on the foregoing basis, at the same
rate of pay she had received on the order desk prior to her hospitalization,
until she was discharged on January 18, 1949.
The Respondent contends that Scherber was discharged for inefficiency. Scher-
ber was told when she was discharged that she was being discharged for that
reason,39 and "discharged for inefficiency" is the reason which appears on
Scherber's unemployment insurance claim filed on January 19, 1949. The
amended charge which included Scherber for the first time was not filed until
June 21, 1949.
While the maze of conflicting evidence as to Scherber's work on the order
desk leaves room for some doubt as to whether Scherber was substantially
inefficient, on careful consideration of all of the testimony and with due con-
sideration for the fact that several persons may contribute to errors which
may be blamed on the order desk, the undersigned believes that the weight of
the credible evidence indicates that the Respondent's experience with Scherber
on the order desk warranted concluding that she was not working out satis-
factorily on that desk.
Several factors may well, have contributed to .Scherber's. admitted., mistakes
on the order desk for which she had been admonished on a number of occasions.
Her lack of sufficient training before taking over the order desk, and the fact
that the duties thereon became substantially complicated by the daily flood of
about 100 school cafeteria orders which began coming in when school opened
in the fall, were undoubtedly among them. However, although Scherber prob-
ably should have had a breaking-in period of a week or more, her 2-day period
was necessitated by Stoup's hospitalization, and took place well before the
Union entered the picture. It may also be that there was tension between
33 Scherber did receive such pay later when discharged.
39 Scherber testified that Daw told her that he was not satisfied because there were
"too many errors" and that she told him that she knew that it was because of the Union.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stoup and Scherber which made it difficult for them to cooperate fully and effec-
tively, but the undersigned is of the opinion that the evidence does not w;ar-
'rant the inference that Stoup "was acting at the Respondent's behest in creat-
ing complications in Scherber 's work which would afford a basis for discharging
Scherber90
. Everything considered , the undersigned believes that Scherber was under con-
siderable tension following her mother 's discharge and that this tension con-
tributed to her admitted mistakes on the order desk. Scherber testified that
about 2 days after Stoup had refused to join the union when she had asked
her to do so within a week following her mother's discharge, she "began to
have the distinct impression" that "she was being definitely ridden" by Daw ;
that she complained to Meyer that she felt that Daw was riding her because
'of her mother's union activities and her own union membership ; that Meyer
suggested that Scherber talk about the situation with Daw; and that she told
Meyer that Daw was the type of person that it was impossible for her to talk
to. Meyer, whose duties at the Los .Angeles plant ended in October and who
made no recommendation as to Scherber , placed this conversation on September
28. He testified that Scherber told him that she felt."funny around here," as
though she were "on the spot" with a "finger" on her, that the girls were "un-
friendly," and that she did not "feel right any more working here." Thus it
appears that, the Respondent's unfair labor practice in, discharging, her mother
was a factor contributing to Scherber's tension, which, in turn tended to under-
mine Scherber's efficiency. However, the record as a whole does not, in the
-undersigned's considered judgment, justify holding that the Respondent was
responsible for what would be tantamount to a.,modified version of a con-
structive discharge.
While the matter is not free from doubt, especially since the evidence as to
`Scherber's inefficiency on sales work is scant and not very persuasive, the un-
dersigned cannot say onthe record as a whole, particularly in view of the rela-
tively large number of discharges among the Respondent's office employees within
recent years, that the General Counsel has sustained the burden.of proof with
respect to Scherber's discharge.41 Accordingly, it will be recommended below
that the allegation of the complaint as to Scherber be dismissed.
40 The General Counsel , whose theory on Scherber 's discharge is not too convincing,
contends that Scherber ' s efficiency on the order desk was _ undermined to build up a
record to support discharging her. There is some evidence , such as the testimony of
a former telephone operator who had worked along with them , Eleanor Cipolla , to- the
effect that there was a "peculiar feeling" between Stoup and Scherber that she could
not put her finger on, and the fact that Stoup refused to join the Union when Scherber
asked her - about it , suggesting such a possibility . However, the undersigned is con-
'vinced that the order desk is too vital it link in the Respondent ' s operations to warrant
an inference , in the absence of compelling proof, that it was being used for such a purpose.
. 41 Certain questions as to the timing of Scherber 's discharge were raised by the under-
signed during oral argument . It is particularly noteworthy that the last evidence of
any union activity is the brief discussion before the end of September when Scherber
asked Stoup , in the presence of two other employees , when she was going to join the
Union . It should also be noted that the Respondent's discharging Scherber the same
day upon which it announced at the close of work a general increase of $4 per week to
all office employees is not inconsistent with the Respondent's contention that Scherber
was discharged for inefficiency . The Respondent contends that the general wage increase
in the office was granted to equalize Barbara Ann office wages with what Jordheim
found as a result of a survey to be prevailing wages. There is no evidence to warrant
drawing the inference that the 'increase in wages was given in order to combat the
Union, although Daw did say in announcing the increase that the girls could come to
him to discuss any dissatisfaction . Further , it would be reasonable business practice to
discharge any inefficient employee before announcing a general wage increase.
. LANGENDORF UNITED BAKERIES, INC. 1325
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with the operations of the Respondent set forth in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
.obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices, it will be recommended that it cease and desist therefrom
and take certain affirmative action which the undersigned finds necessary to
effectuate the policies of the Act.
It has been found that the Respondent has discriminated in regard to the
employment of Louise J. Tudor and Ellen V. Johns. It will therefore be recom-
mended that the Respondent offer Tudor and Johns immediate and full reinstate-
ment to their former or substantially equivalent positions,42 without prejudice to
their seniority and other rights and privileges, and make each of them whole for
any loss of pay which she may have suffered by reason of the Respondent's dis-
crimination against her, by payment to each of a sum of money equal to that
which she. normally would have earned as wages from the date of her discharge
to the date of the Respondent's offer to reinstate her, less her net earnings during
said period 4a
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Office Employees International Union, Local No. 30, affiliated with the
American Federation of Labor, is a labor organization, within the meaning of
'Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Louise
J. Tudor and Ellen V. Johns, thereby discouraging membership i n Office Employees
International Union, Local No. 30, affiliated with the American Federation of
Labor, the Respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and
is engaging in unfair labor practices, within the meaning of Section 8 (a) (1)
of the Act.
.4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act by "attempting to influence its employees
against the Union" or in violation of Section 8 (a) (1) and (3) of the Act by
discharging and refusing to reinstate Helen Scherber.
41 See Chase National Bank of The City of New York, an Juan, Puerto Rico Branch,
65 NLRB 827.
11 Crossett Lumber Co., 8 NLRB 440.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, the undersigned hereby recommends that the Respond-
ent, Langendorf United Bakeries, Inc., (Barbara Ann Baking Company Division),
its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Office Employees International Union, Local
No. 30, affiliated with the American Federation of Labor, or in any other labor
organization of its employees, by discharging or refusing to reinstate any of its:
employees, or by discriminating in any other manner with respect to the hire and
tenure of employment of its employees, or any term or condition of their employ-
ment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their rights to self-organization, to form labor organiza-
tions, to join or assist Office Employees International Union, Local No. 30,
affiliated with the American Federation of Labor, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any and all such activities, except
to the extent that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act, as guaranteed by Section 7 thereof.
2. Take the following affirmative action, which the undersigned finds neces-
sary to effectuate the policies of the Act:
(a) Offer to Louise J. Tudor and Ellen V. Johns immediate and full rein-
statement to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges ;
(b) Make whole Tudor and Johns in the manner set forth in the above section
entitled "The remedy";
(c) Post at its Barbara Ann plant office in Los Angeles, California, copies of
the notice attached hereto, marked Appendix A. Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region, shall, after being
duly signed by a representative of the Respondent, be posted by the Respondent
immediately upon receipt thereof and maintained by it for a period of sixty (60)
consecutive days thereafter, in conspicuous places, including all places where
notices to office employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or
covered by other material; and
(d) Notify the Regional Director for the Twenty-first Region in writing,
within twenty (20) clays from the date of the receipt of this Intermediate Report,
what steps the Respondent has taken to comply herewith.
It is also recommended that the complaint be dismissed insofar as it alleges
that Respondent violated Section S (a) (1) of the Act by "attempting to influ-
ence its employees against the Union" and insofar as it alleges that the Respond-
ent violated Section 8 (a) (1) and (3) of the Act by discharging and refusing
to reinstate Helene Scherber.
It is further recommended that the National Labor Relations Board issue an
Order requiring the Respondent to take the action aforesaid, unless the Re-
spondent notifies said Regional Director in writing, on or before twenty (20)
days from the date of the receipt of this Intermediate Report, that it will comply
with the foregoing recommendations.
LANGENDORF UNITED BAKERIES, INC. 1327
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
`03.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and six copies of a brief in support thereof ;
and any party may, within the same period, file an original and six copies of a
brief in support of the Intermediate Report and Recommended Order. Immedi-
ately upon the filing of such 'statement of exceptions and/or briefs, the party
filing the same shall serve a copy thereof upon each of the other parties. State-
ments of exceptions and briefs shall designate by precise citation the portions of
the record relied upon and shall be legibly printed or. mimeographed, and if mime-
ographed shall be double-spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
As further provided in said Section 203.46 should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of service of the order transferring
the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 31st day of January 1950.
EARL S. BELLMAN,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist OFFICE EMPLOYEES INTERNATIONAL UNION,
LOCAL No. 30, affiliated with the American Federation of Labor, or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and to refrain from any
and all such activities, except to the extent that such rights may be affected
by an agreement requiring membership in it labor organization as a condition
of employment as authorized by Section S (a) (3) of the Act.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions, without
prejudice to any seniority or other rights and privileges previously enjoyed,
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and make them whole for any loss of pay suffered as a result of the
discrimination.
Louise J. Tudor
Ellen V. Johns
All of our employees are free to remain or become members of the above-named
union or any other labor organization. We will hot discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because. of membership in or activity on behalf of any such labor
organization.
LANGENDORF UNITED BAKERIES, INC.,
(Barbara Ann Baking Company Division)
Employer.
By ----------------------------------------------
(Representative) (Title)
Dated ----------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.