Laub Baking Co.

National Labor Relations Board - Board Decisions

May 31, 1961

131 N.L.R.B. 869 (N.L.R.B. 1961)

LAUB BAKING COMPANY 869
Contrary to the Petitioner's and Intervenor's contentions, the reten-
tion by a laid-off employee of seniority for purposes of recall is not
determinative of his eligibility to- vote in a Board-directed election.
Rather the test is whether there exists a reasonable expectancy of
employment in the near future.5 As the uncontroverted testimony
in the record establishes the absence of such reasonable expectancy,
we find that the laid-off workers are not eligible to vote in the election
herein directed.
[Text of Direction of Election omitted from publication.]
5 Sylvania Electric Products, Inc., 119 NLRB 824, 831-832.
Laub Baking Company and American Bakery and Confectionery
Workers' International Union , AFL-CIO. Case No. 8-CA-1982.'
May 81, 1961
DECISION AND ORDER
On June 24, 1960, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and adopts the findings and conclusions of the Trial Examiner,
only to the extent consistent with our decision herein.
The Trial Examiner found that the Respondent committed certain
unfair labor practices during a representation conflict at its bakery
between the Petitioner in Case No. 8-RC-3491, American Bakery
and Confectionery Workers' International Union, AFL-CIO, re-
' This case was consolidated for purposes of hearing with Laub Baking Company, Case
No. 8-RC-3491, because similar issues of election interference were involved. After
issuance of the Intermediate Report, all parties concerned filed motions with the Board
to set aside the election held on August 24, 1959, and to direct a second election . There-
after, on November 29, 1900, the Board granted the motions and severed Case No.
8-RC-3491 from the instant case . In view of this disposition, we do not pass upon the
Trial Examiner 's findings and recommendations as to the alleged interference with the
election held on August 24, 1959
131 NLRB No. 106.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferred.to as ABC, and the incumbent representative, Bakery and Con-
fectionery Workers' International Union of America, Local 19, Inde-
pendent, referred to as Local 19. The Trial Examiner found that
the Respondent had violated Section 8(a) (1) of the Act during the
election campaign by promulgating an invalid no-solicitation rule,
and by discriminatorily restricting ABC's campaign activities at the
bakery.
The no-solicitation rule: Shortly after ABC filed its petition, the
Respondent's vice president instructed the plant manager to inform all
supervisory personnel not to take part in the campaigning because the
Respondent did not want tobecome involved in the, rival campaib
activities. The plant manager relayed these instructions to superin-
tendents and to 11 "work leaders" whom he considered to be foremen.
The Trial Examiner found, however, that the work leaders, except
for two who were in charge of their own departments, were not super-
visors within the meaning of the Act and that the no-solicitation rule
was invalid because it was applied only to a small number of the
total nonsupervisory force. He also held, based on his premise that
the rule was invalid, that its enforcement against a work leader, Assel-
man, who was demoted because he had violated the rule by campaign-
ing during working hours, was a violation of Section 8(a) (3). We
-do not agree.
An employer's rule banning solicitations on behalf of a union on
'company property during working time is presumptively valid in the
absence of evidence that the rule was adopted for a discriminatory
purpose or that it is being unfairly applied.2 The promulgation of
such a rule when the union begins its campaign is not in itself evidence
of a discriminatory purpose.' Respondent's purpose in announcing
its no-solicitation rule was obviously to maintain its position of neu-
trality between the rivals in the coming election. The fact that it
was limited to less than all employees was not, in the circumstances,
an unfair application or an unreasonable restriction of employee ac-
tivity, as it was intended to be applied only to employees whose ex-
pression of opinion at the plant favoring one or the other union could,
justifiably, be attributable to the Respondent and might thus consti-
tute unlawful conduct on its part. We believe that the no-solicitation
rule, though limited to work leaders, was not discriminatory, nor un-
fairly applied, nor an unreasonable impediment to employee activity,
and, therefore not a violation of Section 8(a) (1). It follows that
enforcement of the rule was also not unlawful, and that the demotion
of Asselman for his continued violations of the rule was not discrim-
inatory.
2 Walton Manufacturing Company, 126 NLRB 697.
8 Star-Brite Indu8tries , Inc, 127 NLRB 1008.
LAUB BAKING COMPANY 871
Campaign activities: Local 19's contract with the Respondent gave
it the right to visit the plant to administer the contract. Its represent-
atives availed themselves of this opportunity to visit the plant oftener
after ABC began its campaign than before and, on many occasions, to.
campaign, primarily by oral solicitation, while there. The record is
not clear than the Respondent knew'of the extent of the campaigning,
and it does not show any ratification by the Respondent of this unau-
thorized activity. In August, however, ABC protested to the Respond-
ent about these activities and demanded the right of equal access to the
plant. This was denied on the ground that Local 19 had a right, by
virtue of its contract, to visit the plant and that the Respondent did
not have to extend a similar privilege to ABC. The plant manager
did, however, issue instructions that any visits by Local 19 representa-
tives were to be reported to him, and on at least two occasions he told
them not to campaign while at the plant. He had earlier told employee
adherents of both unions not to campaign during working hours and
had issued instructions to the superintendents that no campaign prop-
aganda was to be posted at the plant. However, the posting of lists of
BCW welfare fund beneficiaries, which Local 19 had done before the
campaign began, were allowed to be continued. The Trial Examiner
concluded from the foregoing that the Respondent violated Section
8 (a) (1) by permitting Local 19 to campaign on its premises while
denying ABC equal access, and by allowing the posting of the names
of BCW's welfare fund beneficiaries while prohibiting literature fav-
orable to ABC.
An employer who is not impartial as between competing unions
in a representation campaign may thereby violate Section 8(a) (2).
However, when one of the competing unions is the incumbent em-
ployee representative, the employer must continue to honor its right
to service its contract and to grant it access to the plant if the con-
tract so provides. Undoubtedly, this confers an advantage upon the
incumbent union since it is presented with increased opportunities to
contact the employees. If Local 19 abused its rights under the con-
tract by stepping up the frequency of visits to the plant, it was not
done with the connivance of the Respondent but, rather, despite Re-
spondent's reasonable effort to limit Local 19's campaigning at the
plant. Confronted with the overlapping requirements that it remain
impartial without at the same time disparaging the status or the con-
tractual rights of Local 19, we note that Respondent sought to curtail
Local 19's electioneering at the plant when it was brought to its atten-
tion by ABC. We believe that Respondent fulfilled its obligations to
apply and enforce its rules against campaigning on its premises fairly
and reasonably. We find, therefore, contrary to the Trial Examiner
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent did not violate Section 8(a) (1) by denying ABC ac-
cess to its plant or by enforcing its rule governing union campaigning.'
[The Board dismissed the complaint.]
MEMBER FANNING, dissenting:
I would affirm the Trial Examiner's conclusions and recommenda-
tions.
' Cf. Seaboard Terminal and Refrigeration Company, 114 NLRB 754.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , consolidated for hearing , with all parties represented was heard
before Alba B. Martin , the duly designated Trial Examiner , in Cleveland, Ohio, on
February 8 through 17, 1960. This proceeding involves a complaint case and objec-
tions to an election in one appropriate unit in a representation case, ' with somewhat
-overlapping issues. The Intervenor in the representation case was Bakery and
Confectionery Workers' International Union of America, Local 19, Independent,
referred to herein as Intervenor , Local 19, or BCW.
The issues litigated were whether the Company violated the Act or interfered with
the election by threats to employees , by removing ABC campaign literature while
permitting BCW campaign literature to remain posted , by prohibiting ABC campaign
literature to be posted while permitting BCW campaign literature to be posted, by
prohibiting work leaders from engaging in union activities on the company premises,
by prohibiting access to the plant of ABC representatives while permitting BCW
representatives access for purposes of campaigning ; whether the Company discrimi-
nated against John Asselman in violation of the Act by demoting him shortly after
the election ; and whether the Intervenor interfered with the election such that it
should be set aside, by threatening employees , by campaigning in the plant when
ABC was not permitted to, and by posting campaign literature in the plant while
ABC's campaign literature was not permitted to remain posted. Deferred rulings
,on motions to dismiss the complaint and certain paragraphs thereof and to dismiss
all the objections to the election made after the receipt of all evidence are hereby
made in accordance with the findings and conclusions herein . ABC, BCW, and
the Company filed briefs, which have been carefully considered?
Upon the entire record , and from my observation of the witnesses , I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT COMPANY
Laub Baking Company, an Ohio corporation with its principal office and plant s
in Cleveland , Ohio, is engaged in the wholesale baking business. It annually
purchases materials originating at points outside the State of Ohio of a value in
excess of $50,000. The Company admitted , and I find, that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Both unions , ABC and Local 19, are labor organizations within the meaning of
the Act.
IUnder the same representation case number an election was held in another unit,
objections were filed , a hearing has been held, and a hearing officer 's report on objections
has been rendered.
2As Local 19 was not a Respondent in a complaint case under Section 10(c) of the Act
,but an intervenor in a representation case, and as the proviso to Section 102 118 of the
Board's Rules and Regulations , Series 8, permits and requires the production of affidavits
only in complaint cases, I did not grant the Intervenor 's motions for the production of
affidavits of the General Counsel's witnesses.
$ All of the events herein occurred in the main plant, referred to as the plant . A second
plant , principally a shipping and office building , is connected with the main plant by an
overpass.
LAUB BAKING COMPANY
III. UNFAIR LABOR PRACTICES AND INTERFERENCE WITH ELECTION
873
A. Prior to the Board's Direction of Election
At the time of the events herein, all of which occurred in 1959, Local 19 had been
the recognized bargaining representative for the employees of the Company or its
predecessor companies for some 25 years . During that period not until the election
of August 24, 1959 , with which we are here concerned , had a competing union been
on a ballot with Local 19 for these employees. In the summer of 1959 about 231
eligible voters in the appropriate unit worked in the Laub plant . Summer being
the busiest season of the year, the plant operated regularly 24 hours per day for 6
days per week but sometimes also on Sunday. There were employees at work at all
times during the day and night, the slackest period evidently being during the early
morning hours after midnight.
In late May or early June ABC began its efforts to organize the Laub employees
by sending to them through the mail a letter and a card (sometimes referred to as a
white slip) for them to sign and return. A few nights later Local 19's business
representative , John Rusnak , approached employee James Belles as he was working
in the plant and told him that he should turn his white slip over to Local 19's shop
steward. When Belles resisted, heated words ensued, during which Rusnak told
Belles that Local 19 was his union and he had to do what Local 19 said, and during
which Rusnak threatened his job if he did not. This having taken place within the
hearing of Plant Manager Zaccardi , later that evening Zaccardi cautioned Belles
against arguing with Rusnak and told him to speak to Zaccardi if he had any
problems.
About 5 days after the employees' receipt of the ABC literature, with the permis-
sion of Zaccardi who knew his purpose, Local 19's shop steward, Frank Smigel, took
the day off spent it-from about 4:30 a.m. until about 6 p.m.-conducting a
"loyalty card" check in the lunchroom. During that day and evening Smigel and
another Local 19 steward, Thomas, who was soliciting in the dressing room, obtained
the signatures of some 190 employees on "loyalty" documents. At this time all em-
ployees, except new ones, were members of Local 19 under the union-shop clause of
an existing contract . During the solicitation of many of the employees in the lunch-
room, one of the Company's superintendents, Mielke, was present. Smigel threatened
two employees, Bertie Sidwell and Theresa Markovics, according to Markovics' cred-
ible and credited testimony, in substance that if they refused to sign the loyalty card
they "wouldn't have no job at Laub."
Shortly after the beginning of the ABC campaign Plant Manager Zaccardi, Gen-
eral Manager M. B. Beyer, and President Herbert Laub of the Company met and
decided to instruct all supervisors to remain neutral in the union campaigning.
Zaccardi then gave these instructions to all or most of the supervisors, including the
approximately 12 work leaders, whom he considered to be foremen. Under the
union-shop clause of the then -existing contract with Local 19, all work leaders were
members of Local 19. As far as the record goes it shows only one work leader, John
Asselman, to have campaigned on behalf of either union. Respondent Company did
not announce or publish word of its neutral position to the employees as distinguished
from the supervisors "for fear of being misconstrued." As time went on and the date
of the election, August 24, approached, however, Zaccardi cautioned at least two
employees, Steward Frank Smigel and Metro Ezinski, a former BCW steward who-
was then an active exponent of ABC, not to talk to employees on company time.
Zaccardi gave this word of caution in August some 2 or 3 weeks before the election.
Three employees, John Leskin, Anna Degyansky, and Josephine Sacha, testified'
concerning what the substance thereof indicates was a single conversation . Degyan-
sky placed it in late July or early August, Leskin and Sacha placed it shortly after the
beginning of the ABC campaign . As Leskin was the most credible witness of the
three I credit his testimony and find that the conversation occurred in late May or
early June. Degyansky complained that she was being bothered by Smigel's cam-
paigning for Local 19 in the plant. Sacha asked Zaccardi if they would lose their
job by voting for one union or the other. Zaccardi replied that "he didn't care which
union was here. As long as you were a good worker that you had your job."
Degyansky and Sacha testified that Zaccardi then added in substance that "the Union
has a way of doing things around here. Zaccardi denied making this statement and
Leskin's testimony did not attribute it to Zaccardi. Under all the circumstances. in-
cluding the fact that this conversation occurred about when the Company decided
upon its policy of neutrality, I find that Zaccardi did not make this statement.
According to the uncontradicted and credited testimony of John Asselman. some-
time in July in the men's lockerroom as he was dressing to go to work in the after-
noon , John Rusnak , business representative of Local 19 , and Howard Farr , a special
,874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the International Union with which Local 19 was affiliated (Bakery
and Confectionery Workers' International Union of America) threatened that they
were going to "spit right in my face" and threatened further that "if you tell the
people to vote for ABC something else is going to happen to you." This was a
threat of reprisal by an agent of Local 19.
According to the credited testimony of employee Bertie Sidwell, one time in the
lunchroom at the Company in July, she overheard Local 19's shop steward, Frank
Smigel , say in the presence of a number of employees that "when he gets the shop
,organized that Asselman will be the first one to get kicked out. When the election
is over with and the shop organized." This was another threat of reprisal by an
agent of Local 19. Smigel denied this testimony. As by their demeanor on the
witness stand , Sidwell impressed me as the more credible witness, I credit her
,testimony.
The complaint alleged that Respondent Company violated Section 8(a)(1) of the
Act by prohibiting work leaders from engaging in union activities on the company
premises. The Company had no rule, or at least no rule announced to the employees,
against solicitation in the plant by employees . In substance the General Counsel
contended that work leaders were employees and not supervisors within the meaning
of the Act and that prohibiting them from engaging in union activities interfered
with their rights under Section 7 of the Act. As there was campaigning in the plant,
and as there was no rule prohibiting campaigning during working hours, if in fact
work leaders were employees rather than supervisors Zaccardi's instructions barring
work leaders from campaigning was an interference with the rights of employees.
The Company contended that all work leaders were supervisors within the meaning
of the Act. In substance Zaccardi testified that he considered all work leaders to be
foremen and that the term "work leader"' was just the label given them in the
contract.
Since at least July 1957, the contract between Local 19 and the Company has
covered work leaders. The contract gave as a partial job description of the work
leader's job, the following: "A Work Leader is an employee who, pursuant to in-
structions, places the men, assigns their tasks and carries out the work as planned."
The contract provided also that "Work Leaders shall receive ten (10) cents per
hour more than the higher classification under their jurisdiction."' Under the union-
shop clause of the contract work leaders were required to be members of Local 19
and all work leaders were members.
The petition in the representation case, of which I take official notice, requested
the inclusion of work leaders in the appropriate unit. At the preelection hearing in
that case, held June 15, 1959, I take official notice of the fact that the parties, in-
cluding the Company, Local 19, and ABC, stipulated that the appropriate unit should
include work leaders. At the August 6 meeting to set up the election the Company
did not object to work leaders voting at the election. As work leaders voted at
the election, and as there were no challenged ballots, I conclude that work leaders
were permitted to vote without challenge. Work leaders were paid by the hour, were
paid only for the time they worked, and they punched the timeclock.
Although at the hearing Plant Manager Zaccardi testified that he considered
work leaders to be foremen, he admitted that the Company had never informed all
of the employees that it considered work leaders to be foremen. Zaccardi added
that whenever a grievance arose involving a work leader the employees involved in
the grievance would be informed that the work leader is a foreman.
Article XII of the existing contract between the Company and Local 19 is en-
titled, "Status of Supervisory Employees," and states as follows: "No Shop Super-
indendent or Assistant shall be permitted to do any work regularly performed by
members of the Union." Zaccardi testified that he had had quite a bit of discussion
with the Union concerning this clause in the contract and that the only ones he
considered to be under this article were himself, Superintendent Leonard Sellnau,
and Superintendent Herbert Mielke. Another superintendent, John Ciha, and the
Company's only assistant superintendent, Roy Grossenbaugh, are both members of
Local 19. Of interest in this connection is employee Smigel's understanding of a
"boss," as distinguished from a work leader, as "a fellow that doesn't do no work at
all . he is supervision." Then asked to name the bosses who are members of
Local 19, Smigel replied, "There is John Ciha; Roy Grossenbaugh. Then you
have-well, actually those are the two bosses there. They are supposed to be
bosses. Actually bosses."
The record discloses the names of some 11 work leaders within the appropriate
unit and it sets forth the duties and responsibilities of some, but not all. of them.
A later section in this report considers the situation of John Asselman. Two work
leaders reported directly to Plant Manager Zaccardi-Kurt Steinbecker , who was in
LAUB BAKING COMPANY 875
charge of the sanitation department with some 16 employees under him, and Larry
Heinrich, who was in charge of the receiving operation with about 3 men under
him. As these two men were in charge of their departments and reported directly
to the plant manager, I conclude that they were supervisors within the meaning of
the Act.
In the principal production departments, sweet goods, bread and buns, were some
eight named work leaders-Paul Bachman, John Sykora, Sr., John Sykora, Jr., Bert
Jilek, Jim Hayes, Richard Holcker, Ernie Basinski, and Roland Ciha. Roland works
under his father, John Ciha, superintendent in charge of buns. From Anna Deg-
yansky's testimony that "Roland Ciha does more harder work than John Ciha," I
conclude that Roland does production work as well as transmitting orders. Kermit
Durst testified that Roland Ciha tells him when to start work, when to stop, and what
kind of goods they are running . Also how many ovens they are using . Roland tells
him when to sweep the floor and when to clean his machinery. Also when to go
upstairs and when to go home. When Durst wanted to transfer from one machine
to another and when he had a mechanical failure on his machine, he spoke to Roland,
who in each case said that he had to see his father or Zaccardi on the question
raised. Sellnau , superintendent in charge of bread, testified that the work leaders
under him (Hayes, Holcker, Sykora, Sr., and Basinski) do no production work ex-
cept in case of emergencies such as when somebody is absent . Sykora, Jr., who re-
placed Asselman as work leader, was said to do no production work. The precise
duties and responsibilities of Paul Bachman were not given. Bert Jilek was in charge
of a special shift, and for historical reasons related to the job he had held with a
predecessor company which became a part of Laub, he was on a salary. Joe Caputo
took care of the shipping department in the daytime, since its superintendent, Emil
'Cichra, worked nights.
All of the evidence in the record showed that in general work leaders carried
out the functions prescribed for them in the contract. Pursuant to instructions they
placed employees on the job and saw that they were present, transferred them from
time to time within their area, and looked after the flow of production. If there
was no overtime work to be done, they would send the employees home after their
regular 8-hour shift. If there was overtime work to be done, they would tell them
to stay and do it. If there was a change in orders for the day's production, they
would relay this information to the employees.
For reasons unknown to the record the Company has no classification of fore-
man. Work leaders were included in the contract as "employees" and article XII,
dealing with the status of "supervisory" employees, did not include work leaders
as supervisors. As has been seen above, work leaders were included in the appro-
priate unit for the election by stipulation of all parties. The employees have never
been told that work leaders are foremen. Work leaders voted at the election without
challenge. Work leaders were members,of Local 19 under the union-shop clause of
the contract. As to the duties of those whose functions were particularly described
in the record, it was shown that the exercise of such authority as they had was of
a merely routine nature and did not require the use of independent judgment. Work
leaders directed employees pursuant to instructions. They had no authority to hire,
transfer, suspend, layoff, promote, discharge, or discipline employees, or, insofar as
the record shows, effectively to recommend such action. For the reasons given above
in this paragraph I conclude, although not without some doubt concerning some of
them, that all work leaders were employees rather than supervisors within the
meaning of the Act. It follows that by Zaccardi's prohibiting work leaders from en-
gaging in union activities during the campaign , Respondent Company interfered
in the rights of employees under Section 7 of the Act, thereby. violating Section
8 (a)( I) of the Act.
B. Events between the Board's Direction of Election and the election
Following a hearing on June 15, 1959, the Board handed down its Decision and
Direction of Election in .the representation case on July 30, 1959. The election was
held August 24, Local 19 winning 149 votes and ABC winning 61 votes.
On August 6, a conference of all parties was held at the Board's Regional Office
to make arrangements for the election, such as setting the time, place, and date, etc.
At this meeting ABC's International representative, Peter Pointak, requested that
ground rules be set so that there would be no interference by either, union, then
requested the Company to grant ABC whatever rights that it granted Local 19 to
campaign in the plant. The Company refused this request. A question arose con-
cerning Local 19's servicing the employees on grievances under its contract. Poin-
tak suggested, in order to keep the situation as neutral as possible, that a neutral
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area be set aside where grievances could be handled by Local 19, the employees,
and the Company . The Company refused this suggestion.
On August 13, 1959 , Pointak sent the following letter to the Company:
It has come to our attention that you are permitting access to your plant in
production areas during working hours for individuals who represent themselves
to be agents of the old Bakery and Confectionery Workers International Union
and/or its Local Union No. 19.
Obviously you are aware of the pending election wherein , through the proc-
esses of the National Labor Relations Board , the United States Government will
determine the question of representation for your employees as between the
above Union and the Union represented by the undersigned.
As a result of such visitations as are being permitted by you , your employees
are being exposed to information which is false , misleading and confusing. It
is painfully obvious that through your actions you are contributing to a situa-
tion wherein the atmosphere in which the election will be conducted cannot be
considered such as to provide the workers with the proper basis for making their
determination.
In an effort to bring the full story into light it is necessary for both sides to
have equal opportunity . We are, therefore , demanding that you extend the
same privilege of plant visitation to the representatives of the AFL-CIO Union
that you are extending to the "Independent " Union , the B & C.
I shall expect an immediate reply from you on this matter.
On August 17 the Company 's attorney replied as follows:'
Your letter of August 13, 1959, to Mr. Maury Beyer, c/o Laub Baking Com-
pany, has been referred to this office for answer.
I can only reiterate in part that which was pointed out on the day of the most
recent hearing at the N.L.R.B . by Mr. Bruce Eaken.
You are aware of course, that we have a contract with Local Union No. 19,
under the terms of which they have the right and we have the obligation to
allow them to enter the Laub Baking Company plant to service their contract.
We are not aware of any violations of the contract , and would invite any
specific allegations you care to make. In the event there is any truth attached
to the allegations we will , of course, put a stop to those violations.
To allow the representatives of the AFL-CIO Union to enter the plant under
the conditions which you suggest would constitute an outright violation of our
present contract with Local Union # 19, and therefore cannot be done.
Pointak did not reply to this letter.
Article VIII , entitled "Cooperation," of the existing contract between the Com-
pany and Local 19 provided as follows:
The accredited Business Representative of the Union shall be permitted to
enter the Employer's premises during all working hours, to transact Union busi-
ness and check working conditions , without unduly interfering with the work.
On Saturday , August 22, 2 days before the election , ABC sent the following wire
to the Company:
In order to assure the most proper atmosphere in which to have the NLRB
Election conducted on Monday , August 24th and to eliminate an important
basis for protest , we are demanding that no agent for any participating union
in this election be permitted any access to the plant or any visitation privileges
except under the rules of the NLRB and the immediate surveillance of the
NLRB agent in charge.
The Company did not reply to this telegram.
1. Increased visitations as election approached
Through its evidence , the General Counsel contended in substance that as the
election approached the number of visits to the plant by Local 19 agents increased
in number and that during these visitations the Local 19 agents engaged in election
campaigning . In substance Local 19 and the Company contended that the number
of visits did not increase but that if they did increase the reason for it was not to
campaign but to service the increasing number of grievances which arose under the
contract during the summer months.
The record established that most of the employees who testified were confined by
their work to their work area except when they were off for a break period or lunch,
which they frequently spent in the lunchroom or going to and from . Necessarily
LAUB BAKING COMPANY 877
the testimony of each employee related to what went on during the hours that he or
she worked in the plant.
John Asselman testified that prior to the beginning of the ABC campaign in late
May or early June, he would see representatives of BCW in the plant not very often,
sometimes every 2 months or 3 months or 6 months, but that they never came in
regularly as they did during the few weeks prior to the election.
Employee Berrie Sidwell testified in substance that prior to the ABC campaign,
she would see BCW representatives in the plant only about twice a month, but that
during the 2 weeks prior to the election, she would see them in the plant every
night, the representatives being John Rusnak, Fred Krofta, and a man who was
introduced to her as being from the BCW International Union. Sidwell testified
further that on the Friday and Sunday before the election on Monday she saw
Rusnak and Krofta in the plant with strangers. She had seen these strangers before
during August.
John Leskin, a member of Local 19 for some 7 years and a credible witness,
testified that prior to the ABC campaign he would see Local 19 representatives in
the plant only two or three times a year, that the visits increased greatly after he
received the ABC literature, and that at times prior to the election he would say
they were in the plant every day. Leskin testified further that Local 19 averaged
only one or two membership meetings per year and that during 1959 it held only
one membership meeting.
Anna Degyansky testified that prior to the ABC campaign she saw representatives
of Local 19-Rusnak and Krofta-in the plant about once a month or 2 months.
Metro Ezinski, who impressed me as a very credible witness, testified that before
the ABC campaign Local 19 representatives were in the plant about once or twice
a month and that during the campaign they were there practically every day.
James Belles, a very credible witness who had worked for the Company since July
1957, testified that prior to the ABC campaign he would see representatives of Local
19, Krofta and Rusnak, in the plant only about once a month "when they came to
check for the dues, check the members right by the timeclock, checked all the names.
Maybe once after that." After he received the letter and white slip from the ABC,
representatives of Local 19 "were in there on Friday after the slip came through the
mail and then they were in there again on Sunday, and almost continuously after
that." It was on this Sunday night that Rusnak and Belles had the altercation men-
tioned about concerning Belles' turning his white slip over to Local 19's shop steward.
Krofta testified that once a month Local 19 checks the timecards in the rack against
the checkoff list to see if there are any new employees who have not joined the
Union.
The evidence of Local 19 and the Company showed that for a number of years
before the election campaign of August 1959, with the silent approval of the Com-
pany, Local 19 had interpreted the words "accredited business representative" in
article VIII of their contract, as permitting it to take into the Company's plant anyone
assigned by Local 19 to do so, principally members of Local 19's executive board,
which consisted of its officers, trustees, and stewards in the various plants and bakeries
with which Local 19 had contracts. Under a "visitation policy," a shop steward of
one plant would accompany a business representative to another plant in order,
according to Steward Smigel , to educate the visiting steward about conditions in the
visited plant so that as a member of the executive board he would be better pre-
pared to pass upon any grievance which came before the executive board from the
visited shop.,4 Through their evidence Local 19 and the Company contended that
Laub's plant was visited before as well as during the election campaign at least once
a month by two representatives of Local 19 traveling together. The record was shown
Local 19's bookkeeping system for assigning visits to the various plants but no actual
records as to when any plant, including Laub's, was actually visited either before
or during the election campaign. Local 19 stated that the assignment sheets and
recap sheets were kept only while they were of use, not more than a month, and
were then thrown away. Even after the filing of the objections to, the election on
August 31, 1959, raising questions as to the plant visitations, Local 19 apparently
did not choose to preserve its written evidence as to the frequency or infrequency of
plant visits at Laub's during the month of August, which was the critical period.
* Under the contract grievances did not come before the executive board of the Local,
but before a grievance committee composed of three members appointed by the Union and
three by the Company In substance Brofta stated as the basis of the visitation policy
that it enabled business agents to have someone with them when they visited plants, so
that they could discuss matters with management . The Union had a rule that no union
agent discussed matters alone with management.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 19 and the Company showed that there were more sources of grievances
during the summer months than at other times in the year and claimed that there
were more grievances during the summer months of 1959 than earlier in the year.
They did not prove that grievances required more visitations in August than in July
or June. The sources of more grievances in the summer months generally were the
facts that during the baseball season the Company produced buns for the stadium
for the Cleveland Indians baseball games, which, together with vacations during
those months, required the hiring of some 25 additional employees, and required more
overtime work when people preferred to go home and recreate after their regular
8-hour day. A complicated system of calculating vacations under the contract was.
a source of grievances. In addition, in June the Company's acquisition of a new
machine to put seeds on buns and bread required more than one visit of Local 19
representatives to the plant to discuss whether one or two men were necessary to
operate it. In addition there were complaints that a new oven was baking faster
than the old one. Despite the alleged large number of grievances, Local 19 and
company witnesses mentioned only two specific grievances, one involving an operator
of a Pannmat machine in the bun department and one involving an employee named
Grdish. Despite the alleged large number of grievances in the summer of 1959,
only one grievance at the Laub plant was filed in writing.
Four International officers of BCW, including an assistant to its president, were
in the plant at various times during at least the last 2 weeks prior to the election,
usually one or two at a time and apparently always accompanied by at least one
business agent of Local 19. As has been seen above, Pointak's letter of August 13
protested their presence. The alleged reason for their visits to the Laub plant was
to acquaint them with Laub processes, which were said to be in some ways superior
to those of other plants. The record established that at least one of these Inter-
national representatives, Howard Farr, was in the plant on several occasions during
the 3 or 4 days just preceding the election. It was not established that these several
visits were necessary for Farr to learn about Laub processes. Krofta admitted that
these International officers were in Cleveland in connection with the elections 5 and
that "I believe they were sent here to assist and to help us in our campaign." 6
Upon the above evidence, and upon the entire record considered as a whole, I
believe and find that during August after the Board's Direction of Election the num-
ber of visits of Local 19 and International BCW representatives was greatly increased
and that the reasons for the increase were not fully accounted for by the defense
of Local 19 or the defense of the Company.
2. Campaigning in the plant
The General Counsel contended and Local 19 denied that during August, and par-
ticularly during the last 2 weeks prior to the election, Local 19 representatives cam-
paigned in the plant during working hours. Respondent Company denied that it
knew of any in-plant campaigning by Local 19.
According to the uncontradicted and credited testimony of Bertie Sidwell, about a
week before the election Local 19's business representative, Rusnak, told her in
substance that there was an election coming up and that she knew how to vote, that
if ABC got in the employees could lose their welfare and pension rights.
According to the credited testimony of Theresa Markovics, on Sunday, the day
before the election, Business Representative Krofta said to her and the employees
with whom she was working at the time, "Well, girls, don't forget tomorrow is elec-
tion day. You know who to vote for."
According to the credited testimony of Anna Degyansky, denied by Krofta, one
dime in August Krofta said to her, "Ann, vote for Local 19 because we built up this
Union and we don't want to tear it down."
On Sunday, August 23, and on election day, Monday, August 24, according to the
credited testimony of Anna Degyansky and Josephine Sacha, Krofta, Rusnak, and
Howard Farr were in the plant campaigning. On Sunday Howard Farr asked em-
ployee Ethel Sharp if she knew how to vote, adding that "You better know how to
.vote or else its going to be just too bad for you around here." On election day before
at least some of the employees of the bun department had voted, these three visitors
circulated among those employees asking the employees if they knew how to vote
and saying that if they did not they, should ask and they would tell them how to
51 take official notice that between June 10 and December 10, 1959, the Board con-
ducted 13 elections in the Cleveland area involving Local 19.
One of the reasons Smigel was an incredible witness was that he refused to acknowledge
any connection between the elections and the presence of the four International repre-
sentatives in Cleveland and-one or more at a time-in the Laub plant.
LAUB BAKING COMPANY 879
vote. To at least one employee Rusnak exhibited a piece of paper and pointed at it
and said to put his mark over here and not over here. On one of these days Farr
offered to bet Sacha $50 that Local 19 would win the election. On one of these days
Krofta told Sacha to vote for Local 19, that if there were conditions with which
the employees were not satisfied Local 19 would try to help them and satisfy them.
According to the credited testimony of Metro Ezmski, who by his demeanor on the
witness stand impressed me as a credible witness, on the Friday before the election,
Friday, August 21, in the plant a stranger accompanying Krofta and Rusnak exhibited
a pink paper with three boxes near the bottom, two blank and the third marked
"Local 19" and with an X in it. The stranger, otherwise identified in the record
as an International representative, pointed to the Local 19 box and said that Ezmski
should not forget to put the cross in there. Then he showed this pink paper to some
10 or 12 employees on a bench near the timeclock, to the women in the biscuit
department, to 2 men operating the wrapping machines, and to the 4 girls in the
doughnut room. Rusnak and Krofta accompanied him from group to group. Dur-
ing this time Assistant Superintendent Grossenbaugh was sitting at his desk some 10.
or 15 feet from the timeclock. This was on the second floor of the plant.
According to the credited testimony of Metro Ezinski, at 4 a m. on Sunday,
August 23, the day before the election, Harold Friedman, vice president of Local
19, Krofta, and Rusnak were sitting in the lunchroom at the plant talking among
themselves. No employees were present but at that time the plant was working.
Krofta defiled being in the plant the day before the election. Harold Friedman,,
who sat at the counsel table throughout the hearing, was not called to testify.
On cross-examination Metro Ezinski credibly testified that on the occasions
when he saw the representatives of Local 19 and the strangers in the plant they
would be in the shop walking around. If a supervisor happened to walk by them they
would chat awhile; then the supervisor would walk away. The supervisors were
Leonard Sellnau, superintendent in charge of bread, Herbert Mielke, superintendent
in charge of sweet goods, and Roy Grossenbaugh, assistant superintendent of sweet
goods.
In the lunchroom in early August at a discussion of employees concerning whether
employees would lose their health and welfare benefits if ABC won the election,
Krofta was called over by one of the employees and joined in the conversation, saying
that they would lose their rights because under their contract and under Local 19's,
trust agreement, to be covered employees must be members of Local 19. A few
minutes later after one of the employees, Durst, had returned to his machine, Rusnak,.
Krofta, and Farr came to his machine and the conversation was continued for a-
few more minutes on the same subject. In the lunchroom Durst had contended that,
if ABC won there would be no loss of rights to the employees.
In June or July Howard Farr tore some ABC literature off of the wall in the-
lunchroom, when notices were frequently posted, and wanted to know "Who in the
hell put this up?" Employees were present in the lunchroom at the time. As any
ABC literature posted on the wall at this time must have related to the organiza-
tional campaign of ABC, I find on the entire record that Farr's action and question
was a form of campaigning in the plant.
According to the credited testimony of James Belles, on the Friday night before-
the election, as Belles was busy operating his machine, a man who had been pre-
viously introduced to him as a BCW International man interrupted him, displayed'
one of the pink slips with an X in the Local 19 box, pointed at that box, and said
that that was where Belles was supposed to vote.
The Company's plant manager, Zaccardi, testified that after the Company received-
Pointak's letter of August 13; word got around the plant that Zaccardi wanted to
know when representatives of Local 19 were in the plant. Employees would stop,
Zaccardi and tell him that business agents were in the plant. After Pointak's letter
Zaccardi stayed around the plant extra hours, sometimes until midnight, and under-
took to see all business agents and International representatives when they were
in the plant. In substance Zaccardi testified that he did not remember ever asking-
the International representatives why they were in the plant. Asked if he ever
questioned Krofta and Rusnak as to their purpose in being in the plant before the
election, Zaccardi, avoiding the question, replied, "I don't recall if they explained to
me the reason, the purposes of being there." Zaccardi testified further that on at
least two occasions after receiving Pointak's letter he cautioned the business agents
and/or one of the International representatives against campaigning in the plant and
once threatened Local 19's vice president,, Harold Friedman, that if he found out
they were campaigning in the plant, "They would be restricted from the plant.
Friedman replied, "You got a working agreement right in your desk. I've got a
right to be here.", Zaccardi testified that he had to agree with Friedman on that..
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Friedman did not deny that they were campaigning . Zaccardi testified further that
when the Local 19 representatives were in the plant and did not have something to
talk to him about their "form" answer was that "They were checking working
conditions ." Under all these circumstances only the most gullible could have
doubted that they were campaigning for Local 19. Nothing about Zaccardi's de-
meanor or testimony suggested that he is a gullible person.
Upon the evidence and considerations set forth above in this section of this report,
and upon the entire record considered as a whole, I find that during August, after
the Board 's Direction of Election , Local 19 representatives and BCW International
representatives were in the plant campaigning during working hours, and that knowing
this and despite ABC's several requests and warnings the Company took no adequate
steps to prevent it or to give ABC equal rights and thereby keep the atmosphere
neutral for the election . Local 19's right to be in the plant to administer its contract
did not permit it to misuse the right by campaigning while in the plant . Under all
the circumstances , Local 19's activities interfered with the election , and the Com-
pany's discriminatory treatment of the two unions interfered with the rights of
employees in violation of Section 8 (a) (1) of the Act and interfered with the election
such that it should be set aside.
3. Threats by Local 19
According to the credited testimony of John Asselman , one evening about 2 weeks
before the election Business Representatives John Rusnak and Fred Krofta came up
to a number of the girls in the department where Asselman and they were working and
said to them , in substance , "If you go ABC something is going to happen with you."
In substance Krofta denied this conversation . Rusnak did not testify because at
the time the Intervenor wished to call him as a witness he was ill. Asselman's
comprehension and use of the English language was somewhat limited and he was
somewhat confused on dates ( as were most of the witnesses ) but as a witness he
appeared to me to be trying to tell the truth to the best of his recollection and
ability. Accordingly, and upon the entire record considered as a whole, I credit
Asselman 's testimony and find that on this occasion Rusnak and Krofta threatened
employees with reprisal if they voted for ABC.
Asselman testified further that on another occasion during the last 2 weeks before
the election Vice President Harold Friedman, Krofta, and Rusnak talked to the
employees in his department ( numbering some 9 or 10 ), one of these visitors saying
to them , "If you girls don't vote Local 19 you know what is going to happen to you
girls." This was denied by Krofta. Harold Friedman sat through the entire hearing
but was not called as a witness Under all the circumstances , and on the entire
record , I credit Asselman 's testimony and find here another threat of reprisal by
Local 19 against employees if the employees did not vote for Local 19.
According to the credited testimony of Theresa Markovics , on one occasion about
2 weeks prior to the election Local 19's shop steward , Frank Smigel , asked her how
Asselman was, and when she replied that she guessed he was "alright ," Smigel said,
"Well, when this is all over with . .. I'll knock the so forth and so forth out of
him." The witness said that Smigel did not use the words so forth and so forth but
that "that is just my way of saying it ." Shortly thereafter in the presence of Mar-
kovics, Asselman asked Smigel if he had made this threat and Smigel denied it and
said that Markovics was lying. Although in substance Smigel denied this threat
from the witness stand, I do not credit his denial.
On another occasion , which the sequence of the testimony indicates was in
August , Asselman put up two ABC posters in the lunchroom and a "big guy" (else-
where identified in the record as the International representative , Howard Farr)
"took them down and he stuck his fist right to me. He said, `I punch you right in
the nose."' At the time of this occurrence there were a number of employees in the
lunchroom.
On another occasion in August Smigel told Asselman in substance that he was
going to get rid of Asselman, and that he was going to expel him from the Union
and get him fired from the job. Asselman reported this threat by Smigel to Plant
Manager Zaccardi.
According to the credited testimony of Kermit Durst , who by his demeanor on
the witness stand impressed me as a credible witness, in about the middle of August,
Frank Smigel, while working at his bench said to the other employees working at
the bench , about 10 employees in number , "That when 19 got in that . . . the
people who voted ABC would be gotten rid of."
Asselman testified further that on an unstated date M. B. Beyer, vice president and
general manager of the Company, said to him that "You better lay off of ABC
because that is what is best for you." Asselman testified Beyer did not intend these
LAUB BAKING COMPANY 881
words as a threat and Asselman did not understand them as a threat . Beyer testi-
fied that after it had been brought to his attention that Asselman had been vigorously
campaigning for one of the unions , Beyer said to Asselman, "That he had better
follow our instructions and not campaign for any union ." As Beyer was a credible
witness I credit his version of this conversation and find that it contained no threat
of reprisal.
ABC's International representative, Peter Pointak, had two telephone conversa-
tions with M. B. Beyer on August 24, the day of the election, the first at 9 a.m., the
second at 1 p.m. (The hours of the election, given on the notice of election, were
6:30 a.m. to 8 :30 a.m., 2 p.m. to 4 p.m., and 10 p.m. to midnight.) Pointak initi-
ated both conversations. In the first conversation Pointak told Beyer that Rusnak,
Krofta, and Harold Friedman, representing Local 19, were in the plant together
with others whom Pointak claimed had no business in the plant because they were
not credited business representatives of Local 19, that they were circulating among
the employees, were roaming around the plant freely, and that some of the workers
were being threatened and intimidated-by them. Pointak asked Beyer to look into-
the matter and to stop it immediately. Beyer said he would give it his immediate
attention and would talk to Zaccardi. Pointak testified and Beyer denied that the
latter said that he would call Pointak back. In any case, at 1 o'clock Pointak called
Beyer a second time. Pointak asked if Beyer had looked into the matter and Beyer
replied that he had. Beyer admitted that the persons were in the plant and said that
he could not do anything about it. Pointak protested that the Company should take
action and get those people out of the plant, because it was not proper that they
should be there. Beyer said that he could not do a thing about it, adding that
Pointak knew what the score was and that Beyer could not do anything about it.
Beyer did not deny but said that he did not recollect making the statement to the
effect that Pointak knew what the score was and that Beyer could not do anything
about it. As; given an opportunity, Beyer did not deny this conversation, I credit
Pointak's version of it.
On the entire record I find that the -threats by Local 19 set forth in-this, section
of this report, condoned by management, interfered with' the exercise'by the em-
ployees of their free choice of bargaining representatives and that the election should
therefore be set aside.
4. Concerning campaign literature
The record showed that during August campaign literature for both competing
unions was posted on the walls of the lunchroom (the Company permitted notices to
be posted here) on the small bulletin board near the timeclock, and, for ABC, at
least, in the men's lockerroom. The record showed that some of this literature was
taken down shortly after it was posted, but by whom we do not know.
Orange or pink-orange cards of Local 19 whose substance indicates they related
to the election campaign , or at least to the contest between the two unions, bear the
dates of May 15, June 15, and July 1. There was testimony, which I credit, that each
of these cards were posted somewhere in the plant on or about the dates they bear.
Although Kermit Durst testified that the one dated July 1 remained posted for all of
July and August, James Belles testified that it remained posted for more than 1 day
but not as long as a month or two. On the entire record, I believe and hold that the
July 1 poster remained posted for only a few days.
Shortly before departing for his vacation on July 4, Plant Manager Zaccardi gave
instructions to his supervisors to remove from the walls and bulletin board all cam-
paign literature of Local 19 other than "normal" Local 19 notices. Although the
General Counsel vigorously disputed whether in giving these instructions and in
carrying out the policy the instructions enunciated, Zaccardi undertook to distinguish
between campaign literature and "normal" B and C notices, on the entire record I
find that Zaccardi did make this distinction.
Zaccardi interpreted as normal and permitted to remain on the lunchroom wall
large sheets of paper on which were printed sick and death benefits paid to members
or their dependents from the Local's health and welfare fund through the Travelers
Insurance Company, and on which were printed names of pensioners who were re-
ceiving monthly pension checks "in Local 19." One of these large sheets carried
this information for the period January through June 1959, and remained posted
through at least July and August. Another large sheet bore this information for
the period January through September 1959 and was posted in October and possibly
the following months.
Although Zaccardi interpreted the posting of the beneficiaries of the health and
welfare and pension funds as noncampaign literature, and permitted it to remain
599198-62-vol. 131-57
882 DECISIONS OF NATIONAL LABOR RELATIONS,BOARD
posted, the issue of the continuance of these benefits if ABC should win the election
came into the campaign and was furthered by B and C agents and literature. Thus
the pink slip which was shown to some of the employees and was handed to at least
one employee or sent to him through the mail, stated the benefits Local 19' members
were receiving under these programs and stated "ABC cannot provide these benefits."
Further down the page,, underneath the box for Local 19 with the X, which was
shown employees, appeared the words, "Yes the ABC promises that they will give
you all these benefits. These promises are falsehoods-and you will learn a sad
lesson if you fall for their promises." Further, the day before the election at a dis-
cussion among employees in the lunchroom as to whether the employees,would
lose these benefits if ABC came in, Local 19's shop steward, Eddie Thomas, and
also Business Representative Krofta, who was called into the conversation by
Thomas, argued that the employees would lose them. On this testimony, and on
the entire record, I conclude that under all the circumstances permitting these lists
of beneficiaries and pensioners to remain posted amounted to permitting campaign
literature for Local 19 to remain posted.
On Sunday, August 23, someone posted on the lunchroom wall a clipping from
the Cleveland Plain Dealer about campaign meetings with employees held by both
competing unions the day before. The clipping included a picture of "three bakers
of some 150 who cut a cake for the ABC yesterday as a union battle shaped up."
One of these three bakers was John Asselman. Some time that Sunday someone
told Zaccardi that there was posted in the lunchroom a newspaper article with a
picture on it and Zaccardi went to the lunchroom and in the presence of a number
of employees, including John Asselman, removed it-saying to Asselman, accord-
ing to the latter's credited testimony, words to the effect that he had told Asselman
100 times not to post any literature for the ABC. Remaining posted in the lunch-
room at this time was the list of beneficiaries and pensioners for the first 6 months
in the year.
Upon the entire record I believe and find that Zaccardi tried to follow a con-
sistent policy with both unions in trying to prevent the posting of campaign literature
for either side in the plant. However, as he permitted the lists of beneficiaries and
pensioners to remain posted when the continuance of those benefits became a cam-
paign issue-and at the same time in the presence of employees removed a news-
paper picture having campaign value for ABC and blamed an ABC exponent for
posting it-I find that Zaccardi removed ABC campaign literature while permitting
BCW campaign literature to remain posted, thereby failing to keep the atmosphere
neutral the day before the election and thereby interfering with the election; and
thereby interfering with the rights of employees guaranteed in Section 7 of the Act
in violation of Section 8 (a)( I) of the Act.
C. The demotion of John Asselman
1. Whether Asselman was a supervisor
John Asselman worked for Respondent Company or its predecessor companies
for some 34 years, had been a member of Local 19 for about 24 years, and was,
until his demotion on August 26, 1959, a work leader for some 10 or 12 years. A
much-litigated point in the record was whether, prior to this demotion, Asselman
was a supervisor within the meaning of the Act. It has been concluded above that
work leaders were not supervisors within the Act. Irrespective of that finding I
now consider the question as to whether the precise authority and responsibility
carried by Asselman as a work leader brought him within the definition of supervisor
in the Act.
Asselman worked in the biscuit department on a night shift from about 5 p.m.
until about midnight. He worked with some 9 to 11 other persons, over whom he
had some authority. He did physical work along with them-too much in the
summer of 1959 in the view of Zaccardi.
When Asselman went to work at 5 p.m. the biscuits for the day would already
be in the oven and his job was to see that they got iced and wrapped. The day's
worksheet before him indicated which variety had to getout first for long-distance
trips from the plant, and in addition he was told what to do by Emil Cichra, who
was described as a work leader, by John Sykora, Sr., described as a work leader,
and by Roy Grossenbaugh, assistant superintendent of sweet goods. Asselman
would check to see that everybody who was supposed to be on the job was on the
job and would undertake to get the work out on time. When someone from whom
he took directions told him to speed up he would pass that word along to the em-
ployees, and if they did not speed up-which was very seldom-he would report
LAUB BAKING'COMPANY 883
that fact . He would tell one employee - to relieve somebody else so that the second
person could take a- break . Sometimes , if- he had not already gone home himself,
late in the shift he would tell employees, or some of them , to go- downstairs and
assist in the bun department , which was the custom . If there was a change in the
orders of what to ice and wrap first he would relay 'those orders to the employees.
if there was no overtime work to bdone , at the conclusion of 8 hours he would
tell the employees to go home.
In addition to his duties as outlined above Asselman made the icing or frosting
for the products being turned out that day in his department . In addition he had to
go and get , and keep the employees supplied with , the necessary boxes to put the
products on, and also the necessary trays, racks, pans, and pallets used.
Upon the above evidence and the entire record I believe and find that Asselman
was simply a leadman or working foreman and was not a supervisor within the
meaning of Section 2 (11) of the Act. He was, as a work leader was defined in the
existing contract, "an employee who , pursuant to instructions, places the men,
assigns their tasks , and carries out the work as planned ." Pursuant to instructions,
he directed employees and upon occasion assigned them temporarily on other related
work , but the exercise of such authority as he had was of a merely routine nature
and did not require the use of independent judgment. He had no authority to hire,
transfer, suspend, layoff, promote, discharge , or discipline employees or, msofar as
the record shows, effectively to recommend such action.
2. Whether Asselman 's demotion was in violation of the Act
The record established that , to the knowledge of management , from the beginning
of the ABC campaign, Asselman was an active exponent of ABC within the plant.
He urged employees to vote for ABC, mostly in the lunchroom and men 's locker-
room , but also sometimes in the plant during working hours . Also he posted ABC
literature in the plant . As has been seen above management's only rule concerning
the interunion campaigning was that management should be neutral. The record
shows that Zaccardi made some effort to minimize the campaigning of employees
within the plant, despite the absence of any announced rule, by cautioning Local 19
Shop Steward Smigel , against it, and also cautioning employees Metro Ezinski and
Asselman against it. According to Asselman 's credited testimony Smigel continued
campaigning for Local 19 after Zaccardi cautioned him; and so did Asselman con-
tinue campaigning for ABC.
During June, July, and August , 1959 , Zaccardi talked with Asselman some six
times about Asselman's campaigning in the plant, sometimes at Zaccardi 's request
and sometimes at Asselman 's request . In these conversations Zaccardi always took
the position that Asselman was a foreman, a company man, that the Company
wished to remain neutral and that Asselman was not to campaign in the plant. No
distinction was drawn between campaigning in the plant and campaigning on com-
pany time . In answer to Zaccardi 's position Asselman always asserted in substance
that he was not a supervisor , and that he had paid his dues in Local 19 and had a
right to join and assist any labor organization . In early August Asselman asserted
that he had a right to campaign for ABC.
Although at the hearing Zaccardi asserted otherwise , there can be no question
but that from the beginning Zaccardi knew that Asselman was urging employees in
the plant to vote for ABC. I credit the testimony of Leonard Sellnau, superintendent
in charge of bread , that when , during the summer of 1959, he heard Asselman
urging employees in the lunchroom to vote for ABC, he reported that fact to Zac-
cardi. On several occasions employees reported to Zaccardi that Asselman had
urged them to vote for ABC. To the same effect were complaints to Zaccardi from
representatives of Local 19, including Vice President Harold Friedman . On several
occasions Asselman complained to Zaccardi that representatives of Local 19 had
threatened him-which, as has been seen above, was a fact.
About a week before the election Asselman asked Zaccardi if he could take off
on election day to be an observer for ABC, which request Zaccardi discouraged,
although he did not completely deny, on the ground that Asselman was a supervisor
and a company man. Asselman did not press the matter and another person served
as observer for ABC.
On August 26, 2 days after the election, Zaccardi told Asselman that he was re-
moving him as work leader because he had lied to Zaccardi all along in denying,
until the previous Thursday when he had admitted it, that Asselman was campaign-
ing for ABC.
As an employee Asselman had the right under Section 7 of the Act to join,- form
or assist any labor organization , which right Zaccardi consistently interfered with
884 ` DECISIONS OF NATIONAL, LABOR_ RELATIONS BOARD
during the summer months by trying to stop Asselman from campaigning in the
plant in the absence of any company rule which prohibited it. Had there been a no-
solicitation rule barring solicitation on company time and had such a rule been
nondiscriminatorily applied to all employees, .the facts in the case and the conclusion
would be different. But such was not the situation. Under the facts of this case,
which establish that management interfered with Asselman's right to organize,
Asselman had no obligation to admit to Zaccardi that he was campaigning in the
plant. In any case the record established beyond any doubt that Zaccardi knew
long before the previous Thursday that Asselman had been campaigning in the
plant on behalf of ABC, for as between the alleged denials of Asselman and the
assurances of Superintendent Sellnau, undoubtedly Zaccardi would have believed
Sellnau.
In substance, Respondent contended that Asselman was demoted because of will-
ful insubordination. Upon the above considerations and upon the entire record in
the case I . conclude, to the contrary, that Asselman was demoted because of his
activities on behalf of ABC, Respondent thereby violating Section 8 (a) (3) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent Company's activities set forth in section III, above, occurring in con-
nection with the Company's operations described 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 Respondent Company has engaged in and is engaging in unfair
labor practices, I recommend that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
Local 19 having interfered with the exercise by employees of their free choice of
bargaining representative by campaigning in the plant during working hours just
before and during the election when such privilege was denied ABC by the Com-
pany, and by threatening employees with reprisals if they did not vote for Local 19;
and the Company having failed to follow a policy of scrupulous neutrality between
the two competing unions by knowingly permitting Local 19 to campaign in the plant
right up to the day of and during the election while prohibiting ABC equal cam-
paigning rights, and having removed ABC campaign literature while permitting
Local 19 campaign literature to remain posted the night before the election; I recom-
mend that the election be set aside and that a new election be held in the appropriate
unit at such time as the Regional Director decides that one may appropriately be
held among the employees in the Laub unit.
Respondent Company having demoted John Asselman from his position as work
leader because of his union activities, and not having offered him reinstatement to
that position, I recommend that Respondent Company offer to Asselman immediate
and full reinstatement to his former or substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and make him whole for
any loss of pay he may have suffered by reason of Respondent's discrimination
against him, by payment to him of a sum of money equal to that which he would
have earned as a work leader from August 26, 1959, the date of the discrimination
against him, to the date when, pursuant to the recommendations herein contained,
Respondent shall offer him reinstatement, less his net earnings during said period.
Said backpay shall be computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289.
The violations of the Act committed by Respondent Company are persuasively
related to other unfair labor practices prescribed by the Act, and the danger of their
commission in the future is to be anticipated from the Respondent's conduct in the
past. The preventive purposes of the Act will be thwarted unless the order is co-
extensive with the threat. In order, therefor, to make more effective the interde-
pendent guarantees of Section 7, to prevent a recurrence of unfair labor practices,
and thereby minimize industrial strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act, I shall recommend that the Respondent Com-
pany be ordered to cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
HARBISON-FISCHER MANUFACTURING CO. 885
CONCLUSIONS OF LAW
1. Respondent Company is engaged in commerce within the meaning of the Act.
2. ABC and Local 19 are each labor organizations within the meaning of the Act
admitting to membership employees of the Company.
3. By not prohibiting Local 19 from campaigning and making threats to em-
ployees in the plant , while prohibiting ABC from campaigning in the plant , Respond-
ent Company interfered with the exercise of employee rights under Section 7 of the
Act, the Company thereby violating Section 8 (a)(1) of the Act.
4. By removing ABC campaign literature while permitting Local 19 campaign
literature to remain posted in the plant where notices to employees are customarily
posted , Respondent Company interfered with the rights of employees guaranteed in
Section 7 of the Act in violation of Section 8 (a) (1) of the Act.
5. By prohibiting work leaders from campaigning in the plant on their own non-
working time Respondent Company interfered with the rights of employees guaran-
teed in Section 7 of the Act, thereby violating Section 8 (a)(1) of the Act.
6. By engaging in the activities set forth in paragraphs numbered 3 and 4, above,
Local 19 and Respondent Company interfered with the exercise by the employees
of their free choice of bargaining representatives such that that election of August 24,
1959, should be set aside.
7. By discriminating in regard to the hire and tenure of employment of John
Asselman , thereby discouraging membership in American Bakery and Confectionery
Workers' International Union , AFL-CIO, Respondent Company has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
8. By the acts set forth in paragraph numbered 7, above, Respondent has inter-
fered with , restrained , and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
9. The aforesaid unfair labor practices set forth in paragraphs numbered 3, 4, 7,
and 8, above , are unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Harbison- Fischer Manufacturing Co. and Lodge 1591, Inter-
national Association of Machinists , AFL-CIO. Case No. 16-
CA-1418-2. May 31, 1961
DECISION AND ORDER
On March 6,1961, Trial Examiner Lloyd Buchanan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in other unfair labor practices al-
leged in the complaint and recommended that such allegations be
dismissed.' Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
1 In the absence of any exceptions thereto, we adopt pro forma the Trial Examiner's
findings that Nelson's remarks to Murdock did not constitute illegal interference or
restraint , and that Maddux was laid off for nondiscriminatory reasons.
131 NLRB No. 110.