Loose-Wiles Biscuit Co.

National Labor Relations Board - Board Decisions

Feb 21, 1945

60 N.L.R.B. 814 (N.L.R.B. 1945)

In the Matter of LOOSE-WILES BISCUIT COMPANY and UNITED CRACKER
WORKERS OF GREATER NEW YORK, LOCAL 25, U. R. W. D. S. E. OF
A., C. I. O.
Case No. 2-R-4b 1
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
February 21, 1940
Upon Objections filed by Biscuit and Cracker Workers Local Union
No. 405, Greater New York and Vicinity, Biscuit and Cracker Workers,
International Union of America, A. F. L., herein called the A. F. L.,
to conduct affecting the results of the election and conduct of the
election held on May 9,_1944, pursuant to the Decision and Direction
of Election issued on April 12, 1944,1 by the National Labor Relations
Board, herein called the Board, a hearing was held before a Trial
Examiner at New York City, on various dates between September
21 and October 28, 1944, inclusive, in which the Board, the A. F. L.,
United Cracker Workers of Greater New York, Local 25, U. R. W.
D. S. E. of A., C. I. 0., herein called the C. I. 0., and Loose-Wiles
Biscuit Company, herein called the Company, participated by their
representatives.
On December 15, 1944, pursuant to the Board's Order dated No-
vember 30, 1944, the Trial, Examiner issued his Report and Recom-
mendations, a copy of which is attached hereto, in which he found no
merit in the A. F. L.'s Objections, and recommended that the Objec-
tions be overruled and- the C. I. O. be certified as the exclusive bar-
gaining representative of the employees within the unit found
appropriate for the purposes of collective bargaining by the Board.
Thereafter, the A. F. L. filed Exceptions to the Report and Recom-
mendations, and supporting briefs, and the C. 1. 0. submitted a letter
in lieu of a brief. Oral argument, in which all parties participated,
was held before the Board at Washington, D. C., on February 1,
1945.
1 55 N. L. R. B. 1238.
_ 60 N. L . R. B., No. 138.
814
LOOSE-WILES BISCUIT COMPANY 815;
The Board has reviewed the Trial Examiner's rulings on motions,
and on objections to the admission of evidence and finds that no.
prejudicial error was committed. The rulings-are hereby affirmed.
At the hearing, the C. I. 0. and the Company moved that the-Ob-
jections be overruled, and the A. F. L. moved that its Objections be
sustained and the election be set aside. The Trial Examiner referred
the motions to the Board for determination.
The Board has considered the Report and Recommendations, the
Exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.2 Accordingly, the motions of the C. I. 0. and the Com-
pany are granted and the motion of the A. F. L. is denied.
In sum, the Trial Examiner found, contrary to the A. F. L.'s con-
tentions, that between December 22, 1943, the date of the stipulation in-
Case No. 2-0-4103 wherein the Company agreed to withdraw recogni-
tion from the C. I. 0.,3 and May 9, 1944, the date of the election, the
Company did not engage in any conduct warranting the invalidation,
of the election. He further found that no improprieties occurred at
the election. In its Exceptions to the Trial Examiner's Report and
Recommendations and at the oral argument before the Board, the
A. F. L. requested, in effect, that the Board reject the Trial Examiner's
findings and conclusions and sustain its charges on the basis of testi-
mony which the Trial Examiner refused to credit, and inferences which
he declined to draw. After carefully reviewing the record herein, we
are not persuaded that the Trial Examiner, who had the benefit of per-
sonal observation of the witnesses, did not fairly and judiciously-
resolve the conflicting testimony, nor are we convinced that he incor-
rectly interpreted the evidence adduced at the hearing.
Inasmuch as the A. F. L. has failed to establish its charges, and since
the election fairly reflected the untrammeled choice of the Company's,
employees, and constituted a fair test of their desires concerning repre-
sentation, we shall certify the C. I. 0.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National Labor-
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Sections 9 and 10, of National Labor
Relations Board Rules and Regulations-Series 3, as amended,
2 On page 18, lines 7 and 9 of the Trial Examiner's Report and Recommendations, Hansen.
Is inadvertently mentioned instead of Parker.
8 On December 31, 1943, the Board issued its Order in Case No. 2-C-4103 in accordance
with the stipulation signed by all parties, except the A. F. L. on December 22, 1943.
The Trial Examiner's Report and Recommendations inadvertently shows on page 3, lines_
6 and 22, the date of said Order as December 28, 1943.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS HEREBY CERTIFIED that United Cracker Workers of Greater New
York, Local 25, U. R. W. D. S.' E. of A., C. I. 0., has been designated
and selected by a majority of all full-time employees and all part-time
employees working 20 hours or more weekly at the Company's Long
Island City plant and garage, and including employees in the sample
room and retail store, but excluding office and clerical employees, night
loaders, shipping checkers, drivers, truck loaders, truck unloaders,
executives , superintendents, foremen and foreladies , assistant foremen
and assistant foreladies, instructresses , and all other supervisory em-
ployees with authority to hire, promote , discharge, discipline , or other-
wise effect changes in the status of employees , or effectively recommend
such action , as their representative for the purposes of collective bar-
gaining, and that, pursuant to Section 9 (a) of the Act , the said organ-
ization is the exclusive bargaining representative of all such employees
for the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment , and other conditions of employment.
MR. GERARD D. REILLY, concurring :
This case is here on objections to an election , filed by the A. F. L.,
in which it received 305 votes and the C. I. O. 1,039. The Regional
Director found that the objections did not raise substantial or material
issues. In view of the fact that his conclusions were based, in part,
upon certain findings of fact which were in dispute , the Board ordered
a hearing to resolve these factual issues. A protracted hearing was
then conducted by a Trial Examiner, who issued a report , recommend-
ing that the objections be overruled.
Since there are no questions of law involved in the case , the Trial
Examiner 's conclusions rest almost entirely on the resolution of con-
flicting testimony . I have analyzed his findings with considerable care
in view of the bitterness between the two labor organizations which
was apparent at the oral argument , and the seeming desire of the win-
ning union to press for an immediate certification even at the expense
of a thorough review of all the points in issue.
Prior to the commencement of the case before us , the Company and
the employees involved here had twice been - involved in litigation
under the Act. The first case resulted in an order of disestablishment
of a labor organization named the Sunshine Association on the ground
that it was dominated by the Company in violation of Section 8 (2).
The Order was made pursuant to a stipulation , to which the A. F. L.
and the Company were parties , on December 5, 1941. After the stipu-
lation was signed, the Company ceased to deal with the Association as
such and recognized the C. I. O. union, which is it party to the instant
case, as the bargaining agent . The A. F. L. then took the position
in formal charges that since some of the leading spirits in the - C. I. O.
local were conspicuous in the disestablished Association , relations be-
tween this union and the Company were also collusive . In 1943, the
LOOSE-WILES BISCUIT COMPANY 817
Board ordered the Company to cease to recognize the C. I. 0., pur-
suant to charges that this union had been illegally assisted. Under
a stipulation embodying the Order the Company was compelled to
withhold recognition from the C. I. O. unless and until it was certified
as the bargaining representative by the Board. The Company posted
a notice of this Order for 30 days in compliance with the stipulation.
Consequently, when the C. I. O'. filed a petition for an election in the
instant case, there was already considerable suspicion on the part of
A. F. L. adherents as to whether or not the petitioning union and the
Company had really made a clean break. The principal claim of the
A. F. L. in the instant proceeding in opposition to deeming the elec-
tion a valid one, is that the Company, in violation of the stipulation,
continued to deal with the C. I. O. prior to the balloting, thereby hold-
ing out that union as its favorite to the consequent discouragement of
the A. F. L.
This was the principal issue upon which the Trial Examiner had to
pass, although there was also evidence of other incidents presented for
the purpose of showing that Company officials encouraged electioneer-
ing by the C. I. O. and frowned upon similar activities by the A. F. L.
With respect to these incidents, it is difficult to disagree with the
findings of the Trial Examiner. While he found numerous cases in
which C. I. O. supporters were allowed during working time in the
plant to circulate pamphlets, post campaign literature and to adorn
their persons with C. I. O. insignia, there was ample evidence to indi-
cate that the A. F. L. employees availed themselves of similar
privileges.
On the major issue, however, there was direct testimony by one
Jastrzembski, a former acting assistant foreman, to the effect that
during the period in which the stipulation of neutrality was in effect,
the Company did, in fact, continue to deal with C. I. O. stewards on
grievance matters, pursuant to a broad hint which one of Company's
counsel had given at a meeting of supervisors. He also testified that
he had permitted certain employees, who were officers of the C. I. O.
union, to take time off to handle grievances, and that, under instruc-
tions of his superiors, he kept a record of these instances. There is
some corroboration of this testimony in two respects : (1) It appeared
that one of the foreladies kept a similar book which was not produced
at the hearing. (2) One Rousso, an assistant foreman, had -permitted
a C. I. O. steward who was under him to attend a C. I. O. meeting
without seeing to it that he punched out his time card. Virtually
all of this testimony, however, was contradicted by other witnesses.
In resolving the -conflict, the Trial Examiner took into account Ja-
strzembski's admitted dislike of the Company because of a grievance
of his' own and some variances between his direct testimony-and his
628563-45-vol 60-53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements on cross-examination, and concluded that he was it biased
and unreliable witness.
In my judgment, the A. F. L. case stands or falls upon the credence
to be placed on the testimony of Jastrzembski. The Trial Examiner
had an opportunity to observe his demeanor and the demeanor of
the impeaching witnesses, and therefore was in a better, position than
the Board to declare which testimony was true and which was false.
There is nothing in the record to indicate a bias toward one contestant
or another. Indeed, the transcript indicates that he was at pains to
see that all sides had a chance to be heard fully and fairly. While
in a matter as closely contested as this it is possible that another Trial
Examiner might have reached a different conclusion, it does not seem
that any reviewing tribunal could hold that the findings made by the
Trial Examiner are contrary to the weight of the evidence.
REPORT
AND
RECOMMENDATIONS
Mr Jei ome I. Macht, for the Board.
Mr. William A Ferguson, of Long Island City, N. Y, and ProRk,auer, Rose,
Goetz &-Mendelsohn, by Mr. Arthur E. Regman and Mr John E. Lynch, 6f New
York City, for the Company.
Markewich, Rosenhaus & Markewich, by Mr. Arthur K. Garfinkel, of New York
City, for the C. I O.
Messrs. Kalman Sklar and William A. Galvin, of New York City, for the
A. F. L.
On May. 9, 1944, pursuant to the Decision and Direction of Election issued
herein by the National Labor Relations Board, herein called the Board, on
April 12, 1944,' an election by secret ballot was conducted under the direction and
supervision of the Regional Director for the Second Region (New York, New
York). Upon the conclusion of the election, a Tally of Ballots was furnished the
parties in. accordance with the Rules and Regulations of the Board.
The Tally shows that of the approximately 1,738 eligible voters, 1362 cast
valid votes, of which 1,039 were for United Cracker Workers of Greater New
York, U. R. W. D. S. E. of A., Local 25, C. I. 0., herein called the C. I 0, 305 were
for Biscuit & Cracker Workers Local Union No. 465, Greater New York and
Vicinity, B. & C W. I. U. of A., A F. L, herein called the A. F. L. and 18 were
against the participating unions. Nine void ballots were cast; 12 ballots were
challenged.
Thereafter, the A. F. L filed Objections to conduct affecting the results of the
election and the conduct of the election. The A. F L. alleged, in substance, (L)
that for a.period of several weeks prior to the election, the Company interfered
with the rights of the employees_ freely to choose a bargaining representative by
-certain specified acts of assistance to the C. I. O.; and (2) that members or
agents of the C. I. 0 engaged in electioneering and other improper activity
during the election' On June 12, 1944, the Regional Director issued his Report
155 N L R B 1238
2 The specific alleged conduct to which the A. F. L objects is set forth below.
LOOSE-WILES BISCUIT COMPANY 819
on Objections in which he concluded that the Objections do not raise substantial
or material issues respecting the results of the election and recommended that
the Objections be dismissed . Thereafter , the A. F. L. filed Exceptions to the
Regional Director 's report.
On July 6, 1944 , it appearing to the Board that the Objections filed by the
A. F. L raised substantial and material issues with respect to the conduct of the
election, a hearing was ordered on the Objections.
Pursuant to notice , a hearing was held at New York City , on various dates
between September 21 and October 28, 1944, inclusive , before Robert F. Koretz,
the undersign,od Trial ; Examiner duly designated by the Chief Trial Examiner,
The Board , the Company , the C. I. 0., and the A. F. L. were represented by
counsel and participated in the hearing . Fulf opportunity to be heard , to exam-
ine and cross-examine witnesses , and to introduce evidence bearing on the issues
was afforded all parties 3 At the close of the A. F. L's case, and at the close
of the hearing , the Company and the C. I . O. moved that the Objections be over-
ruled. The A. F. L. moved that its objections be sustained and that the election
be set aside . These motions were referred to the Board for appropriate action-
At the conclusion of the hearing , counsel for the A. F. L., the Company , and the-
C. I. O. argued orally before the undersigned . Subsequent to the hearing, the
A. F. L filed a brief with the Board , and the C. I . O. and the Company submitted'
letters in reply to the A F. L's brief . The brief and the letters have been
considered by the undersigned.
On November 30, 1944, the Board issued an Order directing the undersigned
to issue and serve upon the parties a Report and Recommendations , setting forth
his findings of fact and recommendations as to the disposition of the case.
Upon the entire record in the case and from his observation of,the witnesses, the
undersigned makes the following:
FINDINGS OF FACT
I OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF'THE ELECTION
A. Background
On November 14, 1941, the Company and the C I. O. executed a union shop
contract which remained in effect until November 14, 1943. Since 1)41, the
A. F. L. has been the charging union in three separate cases before the Board, in
the first of which it was alleged , among other things, that the Company had
dominated a labor organization named the Sunshine Association , and in the
second and third of which it was alleged that the Company had illegally assisted
the C. I. O. In the first case , Case No. C-2009, in accordance with the stipulation
of all parties, the Board on December 5, 1941, ordered the disestablishment of the
Sunshine Association .4 In the second , Case No. 2-C-4103, in accordance with a
stipulation signed on December 22. 1943, by all parties except the A. F. L, the
Board on December 28, 1943, ordered the Company to cease and desist from bar-
gaining with , and to withhold recognition from, the C . I. O. unless and until the
At,several points during the hearing, counsel for the Company and ,for the C I. O
requested the production by counsel for the Board of affidavits which had been made by
witnesses for'the A. F. L in connection with the Regional Director ' s investigation of the
A F. L 's Objections In the alternative , counsel for the C . I 0. requested that the Trial
Examiner inspect such affidavits The undersigned rejected the requests See Matter of
Columbia Products Corporation, 4S N L . R B 1452 , and cases therein cited in footnote 1 ;
N L N B v T . TV. Phillips Gas & Oil Company, 141 F . ( 2d) 304 ( C C A. 3 ) ; NationaF
Labor Relations Board Rules and Regulations-Series 3, as amended , Article VII.4 Matter of Loose-Wiles Biscuit Company, a corporation , 37 N L R B 291.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board certified it as statutory representative, and to post appropriate notices
thereof for 30 days. On January 31, 1944, the A F. L filed a charge in the third
case, Case No ' . 2-C-5413, alleging lack of compliance with the order in Case No.
2-C--1103 and continued assistance to the C. I. O. On March 8, 1944, the Regional
Director notified the parties of his refusal to issue a complaint. Upon appeal by
the A F. L., the Board, on April 12, 1944, sustained the Regional Director.
In the latter part of November 1943, following termination of the above-
mentioned contract between the C I. 0 and the Company, negotiations for a new
contract were commenced. After 3 or 4 conferences, the negotiations were
terminated about the first week in December because of the proximity of a hear-
ing in Case No. 2-C-4103.5 No further - negotiations were had between the
C. I. O. and the Company prior to the election of May 9.
Following issuance on December 28, 1943, of the Board's Order in Case No
2=C-4103, mentioned above, the Company posted notices to its employees in com-
pliance therewith.
On December 28, the Company held two meetings of its supervisory and
managerial staff for the purpose of instructing them concerning the Board's
Order in Case No. 2-C-4103. About half the staff attended the first meeting,
which was held in the morning; the remainder attended the second. meeting,
which was held in the afternoon. The morning meeting was addressed by
Burton Zorn, special counsel to the Company; the afternoon meeting was ad-
dressed by William Ferguson, the Company's general attorney. Both Zorn and
Ferguson read the following mimeographed statement to those assembled :
INSTRUCTIONS TO ALL FOREi1IEN AND SUPERVISORY PERSONNEL
The Company has entered into a stipulation with the Nritional Labor
RelatiOns Board under which it has agreed, in substance, upon the fol-
lowing :
1. That it will not recognize or deal with United Cracker Workers of
Greater New Yoik, Local 25, CIO, as a representative of our employees for
the purpose of collective bargaining or an adjustment of grievances pending
settlement by the Board of the dispute as to whether this organization or
some other organization represents the majority of our employees
2 That the Company will not in any way interfere with, restrain or
coerce its employees in the exercise of their right to self-organization, to
bargain collectively through representatives of their own choosing or to
6 Frederick Fisher, at that time a C. I. 0 steward and more recently an A F L ad-
herent, testified that at one point during the negotiations William Ferguson, general
attorney of the Company, became angry; picked tip his hat and coat; said to the C 1 0
representatives, "If I knew you people were going to put in such demands I would let
you go ahead and fight for youiselves" : and then, stating that he had to catch a train,
left the meeting Fisher's testimony concerning the quoted remarks was uncorroborated
and was denied by Ferguson and several other persons who were present. Ferguson's
version of the incident was as follows : During an evening conference, a C. I 0. repre-
sentative stated that, although there had been several meetings, the Company had yielded
to none of the C. I. O. 's demands Ferguson replied that if this was the attitude of the
C I 0 representatives, he was "through for the evening." Ferguson then stated that
he was going to catch a train, but that the other conferees could continue to discuss the
C I 0 's demands if they desired.
Fisher's testimony was unreliable ; it reveals lack of recollection, vagueness of thought
and expression, and a decided proclivity to exaggerate. His testimony not only respecting
the foregoing incident, but many other incidents, was overwhelmingly contradicted in
material respects Ferguson's version is plausible and consistent with the circumstances.
The undersigned credits him.
LOOSE-WILES BISCUIT COMPANY 821
engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
3. Notices to this effect will be posted on the bulletin boards of the
Company
During the period while the question of representation remains unde-
cided by the Board and until some organization is certified by the Board
as the collective bargaining representative of the employees, you are rigidly
to adhere to the following instructions:
1. You are not in any way to discuss any question of unions or unioniza-
tion with any employees with respect to the merits of one union or another
or as to whether they should join one union or another or no union. You
are to tell them that you are absolutely prohibited, both by the Company
and by law, from discussing these subjects with them.
2. In connection with grievances, you are noti"to recognize anyone in the
discussion of any grievances, except the individual employee involved and
you are not to make any adjustment of grievances without prior clearance
and approval from DIr. Weidersum. You are not to take up or discuss
grievances with any of the former shop stewards or other officials of Local
25 or with any officers or officials of any other labor organization GRIEV-
ANCES ARE TO BE TAKEN UP AND DISCUSSED ONLY WITH THE
EMPLOYEE DIRECTLY INVOLVED.
3. You are not to permit collection of dues or any other forms of union
activity or solicitation on Company premises during working hours by any
labor organization.
The above instructions must be rigidly adhered to without exception.
LOOSE-WILES BISCUIT COMPANY
By [s] H A. CLEMMER
Manager.
LONG ISLAND CITY, N. Y
December 28th, 1943.
In addition to reading the above instructions, Zorn and Ferguson interpolated
and added explanation of the matter contained therein. At the respective meet-
ings, the persons assembled were given copies of the instructions. - Copies of the
statement were posted upon the plant bulletin boards.
B Contentions of the A. F. L.
In its brief, the A. F. L contends, in substance, that the Company, between De-
cember 22, 1943, and May 9, 1944, the day of the election, engaged in conduct
violative of the Act (1) by certain anti-A. F. L and pro-C. I. 0. statements of
William A. Ferguson, the Company' s geiVral attorney, at the meeting of the
Company's supervisors on December 2S, 1943; (2) by continuing to deal with
and recognize C. I. 0. stewards following the Board's Order of December 28,
1943; (3) by permitting the circulation of C. I. 0. notices, pamphlets, and litera-
ture on company time and property and the posting of C. I. 0. notices and litera-
ture on the bulletin boards of its time clocks; (4) by cutting short overtime work
in various departments on April 20, 1944, to permit employees to attend a C. I. 0.
meeting; (5) by permitting C. I. 0. stewards to leave work to attend meetings
of C. I. 0 stewards and, on at least one occasion, by paying a steward for at-
tending such a meeting; (6) by permitting and encouraging the wearing of
C I O• buttons in the plant and subjecting A. F. L. partisans to derogation for
wearing A. F. L. buttons; (7) by permitting and encouraging the singing of
C. I. 0. songs on company time and property while subjecting A. F. L adherents
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- to criticism for singing A. F. L. songs; and (8) by permitting employees to
mark with the letters "C. I. 0." company-owned clothes which were worn during
working hours.
The evidence concerning these contentions will be considered- seriatim.
C. Evidence concerning the A. F. L.'s eontentions-
1. The alleged statements of Ferguson at the December 28, 1943, meeting
As set forth above, at the afternoon meeting of December 28, General Attorney
Ferguson read the written instructions to supervisory personnel, and interpo-
lated and added explanation of the matter contained therein. Adam Jastrzemb-
ski, an acting assistant foreman,' testified that Ferguson, in the course of his
remarks subsequent to reading the written instruction, said, "You know,
we have labor trouble now°Mrd we try riot to show partiality to anybody, but we
have had no trouble with the C I. 0. and we have had with the A. F. of L."
Jastrzembski also testified, in effect, that Ferguson also stated that if any com-
plaints were made to the supervisors, they could discuss them with one or two
persons, but not with any more.'
Ferguson denied that he made the statement quoted above or any similar
statement, or that he in any manner stated that the supervisors could continue
to deal with C. I. O. shop stewards. He testified that, after reading the written
instructions, he emphasized that the supervisors were not to deal with' C. I. 0
stewards in any manner and that grievances could only be handled with the
individual employees concerned. Ferguson's testimony is corroborated by that
of Alan Wiedersum, the Company's general superintendent, who was present.
a. Jastrzembski's credibility -
Since the A. F. L. apparently relies strongly upon the foregoing and certain
other alleged conduct concerning which Jastrzembski testified, the undersigned
will evaluate Jastrzembski's credibility in some detail.
Concerning Ferguson' s statements . While Jastrzembski's testimony to the
effect that Ferguson stated that the Company had had no trouble with the
C. I. 0., but had had trouble with the A F. L was consistent on direct and cross
examination, there was considerable variance in his testimony concerning what
Ferguson stated in regard to the handling of grievances On direct examination
by the A. F. L his testimony in the latter respect was as follows :
A. He [Ferguson] read a prepared speech about ten minutes long, which
meant that there was a dispute between the two unions, that the company
should try not to butt in any too much, but if there was a complaint, why, they
could take it up with one or two eople, employees.
Q. Now I ask you, Mr. Witness, when Dir. Ferguson made that remark,
when there was a complaint you may take it up with one or two people, did
he say that before he put the paper aside or after he put it aside?
A. After he put the paper aside. -
6
Jastrzembski was appointed an acting assistant foreman in the icing department
about September 1942 and continued in this capacity until the termination of his employ-
ment in January 1944. It is plain that at all times material herein Jastrzembski was
a supervisory employee within the meaning of the Board's customary definition.
7The A. F. L 's version of Jastrzembski's testimony, in this regard is set forth in its
brief as follows : "He [Ferguson ] further said that if complaints came up the foremen
could take it up with not more than one or two people around ." It apparently is the
A. F. L.'s contention, based upon Jastrzembski's testimony, that Ferguson thus impliedly
told the supervisors that they could continue to deal with C. I. 0 stewards . Jastrzembski's
variant testimony in this regard is discussed below.
LOOSE-WILES BISCUIT COMPANY 823
On cross examination by the Company, Jastrzembski testified as follows :
Q. Now, after reading this, can you tell us with a little more' clarity what
Mr. Ferguson said?
A. Just like I said before, we can discuss complaints with one or two of the
people, but not with any more.
Q. In other words, Mr. Ferguson in effect told you and the rest of the
assistant foremen,, didn't he, that the company was withdrawing recognition
from the CIO in accordance with the agreement made with the National
Labor Relations Board?
A. That is right.
Q. And, therefore, you were not to continue to deal with the CIO stewards
in the handling of grievances. Isn't that what he said?
A. That is what he read.
Q. Yes. Didn't he say, now, something to the effect that the National
Labor Relations Act gives individuals the right to present grievances and you
cannot refuse to talk to do individual?
A. An-individual, yes, sir.
- Q. In other words, he told you that you were free to discuss personal griev-
ances, that is, grievances of individuals?
A. That is right. -
Q. With the individuals themselves?
A. That is right.
Q But not with the C. I. O. stewards?
A. That is right.
On cross-examination by the C. I. O. Jastrzembski,testified:
Q. Didn't Mr. Ferguson state at that meeting that if there were grievances
involving any of the employees, they were to be taken up by the individual
employee involved?
A. With a group, you could.
* * * * * * *
Q. He said, however, you were not to take it up with the C. I. O. stewards ;
right?
A. (No response )
Q. Did he say that?
A. No, sir; he didn't.
Q Didn't you testify earlier in this proceeding that he stated you were not
to take it up with the C. I. 0 stewards?
A. I do not think so.
On direct examination by the A. F. L., he testified :
Q. Now, after he [Ferguson] read the paper, he put it aside and made some
other remarks, didn't he?
A. Yes.
Q. Will you tell the court what those remarks were?
A. He said that we can use our own judgment. If there are two or three,
we can take the complaint and try to adjust it.
Q. Did he say from whom you could take the complaint?
A. From the delegate or the party making the complaint. He included
everybody.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On recross-examination by the C. I O , he testified :
Q. What did he [Ferguson] say about settling complaints?
to us as exactly as you remember.
A. "Try to settle the complaints to the best of your ability."
Q. . . . Is that all he said about the complaints, to try to
the best of your ability?
A. That is right.
* * *
Try to give it
settle them to
*
Q. Give me now exactly what Mr. Ferguson stated at that meeting about
the handling of complaints.
A. To keep right on handling them to the best of our ability.
Q. Is that all he-said?
A. That is right. -
Jastrzembski's alleged conversation with Forelady Porter. Wheti asked
whether he had spoken to any foremen and foreladies who had attended the
meeting with him concerning Ferguson's speech, Jastrzembski testified that
Marian Porter, a forelady in his department, had said to him, "I don't know why
they cautioned us down there when we know darned well that they want the
CIO in." After this, testified Jastrzembski, he returned to work. Porter did
not recall having seen Jastrzembski at the meeting which she attended, and
denied that she had made the remark attributed to her. Records of attendance
which the Company made at the meetings of December 28 establish that Porter
attended the morning meeting while, as stated above, Jastrzembski attended the
afternoon meeting.
Jastrzembslci's hostility to the Company Jastrzembski was discharged by the
Company on January 7, 1944 8 Thereafter, he submitted an affidavit to a Field
Examiner of the Board, concerning' the instant case. Peter •Valkavich, acting
president of the C. I 0 , testified that in June he approached Jastrzembski at the
latter's new place of employment and asked why Jastrzembski had submitted this
affidavit. According to Valkavich, Jastrzembski stated that he was angry because
he had not received certain bonus and other payments which, he felt, the company
owed him; that although he "had nothing against" Valkavich, Fletcher,' or the
C I. 0, he was "going to get even with the company" and would "do or say any-
thing" against it; and that he would "hurt" General Superintendent Wiedersum
if he could. Jastrzembski also stated, continued Valkavich, that if the "A. F. of L.
won out through his testimony", he would be made a business agent of the
A. F L and in this way could "get back at" Wiedersum; and that, if the Company
did not give him the payments to which he was entitled, Williaim Galvin, presi-
dent of the A. F. L, would see that he would receive such payments.
Jastrzembski recalled having had a conversation with Valkavich in June.
When asked whether Valkavich had asked him why he had submitted an affidavit,
Jastrzembski first testified that he did not remember and, later, that Valkavich
might have asked this. Jastrzembski further stated that he might have told
Valkavich that he did not wish to hurt him. He conceded that he had told Valka-
vich that he was angry at the Company and Wiedersum because lie had not
received the payments to which he believed he was entitled, but did "not think"
that he stated that he hoped to get back at the Company He admitted that he
was angry at the Company at the time of his conversation with Valkavich in
June, then testified that he ceased being angry in April, and next denied that
he was angry in June. Jastrzembski denied that he had told Valkavich that
8 He was told that he could not continue as a supervisor , but that he could have a non-
supervisory job. He refused the offer.
9 John Fletcher is treasurer-business agent of the C. I. O.
LOOSE-WILES BISCUIT COMPANY - 825
Galvin had promised him a job when the A. F. L "won out" or that the A. F. L had
promised him any money, apart from reimbursement for time lost in testifying.
b. Conclusion
Based upon the foregoing, and upon the entire record, the undersigned is con-
vinced and finds that Jastrzembski was a biased and unreliable witness. The
undersigned does not accept his uncorroborated and controverted testimony con-
cerning the statements of Ferguson at the meeting of December 28,,1943.
2. Alleged continuity of dealing with and recognizing C I 0. stewards
In accordance with the contract between the 0 I. 0. and the Company which was
in effect between November 14, 1941, and November 14, 1943, certain grievance
procedures had been established and department stewards had been selected bs
the C I. 0. The A. F. L. contends that following the Board's Order of December
28, 1943,, the Company continued to deal with and recognize the C. I. 0 stewards.
There is no direct evidence that, between December 28, 1943, and May 9, 1944, the
date of the election, any representative of the Company dealt with a C. I 0.
steward concerning any employee grievance. The A. F. L.'s contention appears
to be based upon certain evidence from which, it asserts, the inference should
be drawn that the Company continued to recognize the C. I. 0
As set forth above, Jastrzembski ceased working for the Company on January
7, 1944. He testified generally that, between December 28, 1943, and January
7, 1944, he permitted John Foos and Pauline Barcellona, C. I. 0 stewards, to take
time -off from work to handle grievances. He further testified that he kept a
record of such time off in a small notebook, which he had used for this purpose
since about February 1943, when Owen Price, foreman of the department, 'had
instructed him to keep such a record. According to Jastrzembski, he gave th's
book to Assistant Foreman Charles Swoboday upon the termination of his employ-
ment. Jastrzembski further testified tliat during this period he gave John Koos
permission to call the C. I. 0 's office on a telephone of the Company."' The
only specific testimony as to such occurrences which Jastrzembski gave on direct
examination was as follows : On -about January 5 employees Nebesar and Greco
approached Koos, who was standing next to Jastrzembski, and asked Koos "about
being taken off the marshmallow machine." Koos asked Jastrzembski if he could
,use the telephone to call the C. I. 0 's office. Jastrzembski said that- he could.
Jastrzembski heard Koos ask the operator for the union office, but heard nothing
more. According to Jastrzembski's testimony on redirect examination, about 20
minutes after Koos completed the telephone call, Foreman Price took'Greco off
the marshmallow machine.
On cross-examination by the Company, Jastrzembski. mentioned the same inci-
dent and further testified that on another occasion during the same day Koos
had told him that he had a grievance and had to see Foreman Pi ice, whereupon
lie permitted Koos to leave work" Jastrzembski testified that he did not know
whose grievance was involved or what the grievance was. Further testifying,
Jastrzembski stated that there was but one more "grievance" in addition to the
two mentioned above, and that he could not recall this. _
Both Koos and Barcellona denied that they had discussed any grievances with
representatives of the Company during the period in question Koos further
denied that the two specific incidents to which Jastrzembski testified had
10 Employees must have the permission of foremen to use company telephones for outside
calls.
11 Jastrzembski testified that Boos was away from work about 35 minutes on this
occasion.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred, or that he had used company telephones to call the C. I O. office at any
time between December 28, 1943, and May 9, 1944.12
Foreman Price was not called as a witness. General Superintendent Wieder-
sum testified that he had inquired of Jastrzembski's immediate superiors con-
cerning the notebook which, Jastrzembski testified, he had turned over to Swobo-
day, but that he was informed by Swoboday that the only book which the latter
had,received from Jastrzembski was the departmental time book which is used
for recording the amount of time worked each day by the employees Swoboday
was not called as a witness. Marian Porter, a forelady in the department in
which Jastrzembski worked, testified she kept a record of time consumed by
C I. O. stewards in a notebook, different from the departmental time book, and
that she believed that Jastrzembski kept a similar notebook Her notebook, testi-
fied Porter, had been lost.
The A. F. L, relying upon Jastrzembski's testimony, the failure to call Foreman
Price as a witness the failure to produce the notebook referred to by Jastrzemb-
ski or to call Assistant Foreman Swoboday as a witness in this regard, and the
"unusual coincidence that a similar book kept by Marian Porter was reported
lost," contends that the "inescapable conclusion must be that after C. I. O.
steward Koos telephoned the office of C. I 0 Local 25, the latter communicated
with Jastrzembski's superior." This, asserts the A. F. L., "was improper recogni-
tion and bargaining between the Company and C I 0 Local 25."
The undersigned does not agree with the A. F L.'s contention. As found above, -
Jastrzembski was not a reliable witness. The undersigned does not accept his
testimony.
The only other specific incident to which the A. F. L adverts in support of its
claim that the Company continued to deal with the C. I O. is based upon the
testimony of Louis Borloff, who was a C I. O. steward until the latter part of
April 1944, and who then became a member of the A F. L Borloff testified that
about the second week of February 1944, he telephoned 18 Valkavich, acting presi-
dent of the C. I. 0., and that the latter informed him, in substance, that in the
future employees who were inducted into the armed forces of the United States
would receive vacation pay pro-rated according to the employee's length of serv-
ice The A F. L. apparently contends that, upon the basis of this testimony, it
12 Employee Leo Kmatch testified that during the first week in January 1944, he and
Koos had a discussion in the men's room concerning the effect of the notice which the
Company had posted in pursuance of the Board's Order in Case No 2-C-4103; and that
in the course of the conversation Koos stated that the Order merely meant that Valkavich
and Fletcher, acting president and treasurer-business agent, respectively, of the C. I. 0.,
could not come into the plant, and that he, Koos, could use the telephone to handle
grievances Koos denied that he made the remarks attributed to him by Kmatch. Koos
testified that Kmatch stated that the Board's Order meant that "the C. I. O. had to be dis-
solved" ; that Koos replied that the Order merely meant that the C I 0 could not function
until an election was held ; and that Koos then expressed the hope that there would be an
early election The undersigned considers it unnecessary to resolve this conflicting
testimony, since he is of the opinion that, assuming that Kmatch's testimony is true,
it cannot be inferred fiom the statement of a C I. 0 steward to a fellow employee to the
effect that the Board's Order permitted the C I. 0 stewards to telephone the C. I. O.
office, that the C. I. 0 steward called the office, that C. I. 0 officials in turn communi-
cated with the Company, and.that the Company in turn dealt with the C. I. 0 officials.
In this connection, both Valkavich and Fletcher denied that they had made or received tele-
phone calls to or from C I 0 stewards, or that they had met, negotiated or communi-
cated with representatives of the Company. And, as stated above, there is no direct
evidence that they in any way communicated with the Company.
12 Borloff testified that he used a company telephone to make the call According to
Borloff's testimony, however, be did not ask or receive permission to use the telephone
and no representative of management was present when he called.
LOOSE-WILES BISCUIT COMPANY 827
should be inferred that at some time after December 28, 1943, the Company and
the C I 0 negotiated and reached an agreement concerning pro-rated vacation
pay for inductees The evidence, however, is overwhelming, and the undersigned
finds, that during the negotiations between the Company and the C. I. 0. which
-termina ed, early in December 1943, the Company stated that it would grant
pro-rated vacation pay to inductees beginning January 1, 1944, and that it there-
after did so" Valkavich denied that Borloff telephoned him in February, but
testified that on one occasion during this month he met Borloff outside the Com-
pany's plant; that lie-told Borloff that an employee who had been inducted into
the armed forces had received pro-rated vacation pay ; and that Borloff replied
that he was glad that the Company "did not renege" on its agreement made
during the negotiations. The undersigned credits Valkavich.
Finally, the A F. L. contends, in substance, that the Company "gave recogni-
tion" to Foos and other C I 0 stewards, by permitting them during working
hours to "electioneer and propagandize" on behalf of the C I. 0 and to use com-
pany telephones for the purpose of calling the C I. 0. office. Insofar as elec-
tioneering and similar activity is concerned, there is voluminous testimony, much
of which is contradicted, that adherents both of the C. I. 0. and the A F. L en-
gaged in such conduct on behalf of the respective unions during working hours in
proximity of supervisory employees"" The undersigned considers it unneces-
sary to discuss such evidence in detail. He is convinced, upon the entire record,
that adherents of both unions engaged in a great deal of such conduct ; that the
activity of A. F. L. adherents was at least as extensive and intensive as that of
C. I. 0. adherents ; that representatives of the Company were equally aware of
such activity on behalf of both unions ; that the Company allowed considerable
latitude to supporters of both unions in engaging in such activity; and that the
evidence does not establish that the Company was more lenient in permitting
C. I O. activity than it was in permitting A. F. L. activity 10
There is also voliminous testimony by witnesses for the A. F. L. that C. I. O.
stewards used company telephones for the purpose of calling the C. I. O.'s office.
All C. I. 0. stewards who were alleged to have engaged in such conduct denied
11 General Attorney Ferguson testified that the Company "tentatively agreed" upon
this matter : explained that in his negotiations with labor unions "I state that while we
may agree on various clauses tentatively as we go along , that they all stand or fall to-
gether ; unless we agree on everything , we agree on nothing ;" and further testified that,
accordingly , there was, no final agreement on any matters which were discussed during
the negotiations . The A. F L asserts that, upon the basis of Ferguson ' s testimony, no
agreement was reached concerning pro-rated vacation pay. The evidence establishes,
however, that for a long period preceding the negotiations which terminated early in
December there had been controversy between the Company and the C I. 0 as to whether
the Company would grant pro-rated vacation pay to employees who were inducted ; that
during the negotiations General Superintendent Wiedersum , who was desirous of settling
the issue , discussed the matter with his superior , Assistant General Manager Larrimore ;
that it then was decided by them that beginning January 1, 1944, the Company would put
into effect the policy of granting pro-rated vacation pay to inductees ; that Wiedersum
so informed the conferees at the negotiations ; and that this policy, as stated, was put into
effect.
15 One of the C. I. O. stewards who, it is alleged , engaged in such conduct is Julia
Wojtas . The A. F. L contended at the Bearing that Wojtas was a supervisory employee.
During the period under consideration Wojtas was classified as a packer and devoted the
great majority of her time to packing and weighing products About once each month
during this period Wojtas temporarily was assigned for approximately one day to the
work of an instructress See footnote 27, infra . She voted at the election of May 9 without
challenge. Thè undersigned finds that Wojtas' position was not such as to fix responsi-
bility upon the'=Company for her conduct.
16 Certain testimony upon which the A F. L relies to establish disparity of treatment
by the Company is discussed below.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they had done so. The undersigned considers it unnecessary to resolve the
conflicting testimony, since, assuming that C. I. O. stewards engaged in such
conduct, the evidence- does not establish that representatives of management
were aware of this. The testimony of the A. F. L's witnesses in some instances
was merely that they had seen a C. I. O. steward use the telephone, in other in-
stances, that the C. I. O. steward had stated that he was going to call the C. I. 0
office ; and in other instances, that they had heard- the C. I. 0 steward ask for
the first names of persons whom they recognized as C. I. 0 agents. Excepting
Jastrzembski's testimony, which has been considered above, there is no testimony
that any representative of management granted permission to make such a call
or was present when such a call was made. Employees frequently use the
Company's telephones for intra-plant calls in connection with their duties To
make outside calls, they must have permission of the foreman or forelady. Be-
tween 7: 45 a. m. and 5: 30 p. m, the switchboard is in operation. According
to the testimony of the Company's chief telephone operator, which was uncon-
tradicted and is credited by the undersigned, when a request for an outside call
Xs made from the production floors, she and the other two operators ask the
name of the person making the call in order to determine whether it is a super-
visory employee or other person authorized to make such calls. If not, the
operator asks for the foreman or forelady. The chief operator knew of no calls
made by employees to the C. I. O.-office (luring the pre-election period in question.
After 5: 30 p. in., when the switchboard is closed, there are 16 night extensions
throughout the plant over which outside calls can be made directly. The
undersigned is satisfied that telephone calls, if any, by employees to the C. I. 0
office were made without the permission or knowledge of the Company.
From the foregoing, and upon the entire record, the undersigned concludes
and finds that at no time between December 28, 1943, the date of the Board's
Order requiring withdrawal of recognition from the C. I 0, and May 9, 1944, the
date of the election, did the Company recognize, handle grievances, or otherwise
bargain with, the C. I. O. or any representative thereof.14
3 Circulation and posting of C. I: O. notices and literature
The A. F. L. contends that the Company permitted the circulation of C. I. O.
notices, pamphlets and literature on company time and property, and the posting
of C I. O. notices and literature on the bulletin boards of its time clocks.
With respect to the circulation of C. I. O. notices, pamphlets and literature,
there is much testimony that C. I. O. adherents engaged in this conduct on
company time and property. On the other hand, there is as much, if not more,
testimony concerning similar conduct by A. F. L supporters. In particular,
there was uncontradicted and credible testimony that, during the period pre-
ceding the election, A. F. L. literature of various types was found by numerous
employees in their lockers, in the supplies which were given them in connection
with their work, on their machines, and at various other places in the plant.
The undersigned is satisfied and finds that both unions engaged in considerable
'a In its brief, the A F. L. adverts to the testimony of Edward Green that Thomas
Clawson, a C. I. 0. steward , had collected dues from him within the plant during working
hours on January 15, 1944. This testimony of Green, a witness called in rebuttal, was
offered and received only as evidence affecting the credibility,of Clawson, who previously
had testified that he had not collected dues in the plant. Assuming, however, that this
testimony was admissible for all purposes, it does not constitute evidence of illegal
conduct by the Company. Green did not recall the place in the plant where he had
paid-his dues, and there is no evidence that any representative of management observed
or otherwise learned of the occurrence.
LOOSE-WILES BISCUIT COMPANY 829
distribution of literature within the plant. The undersigned further 'finds that
the Company allowed equal latitude to both unions in this regard. Indeed,
there is uncontradicted testimony, which'the undersigned credits, that on certain
occasions employees reported to supervisors that they had found A F. L. literature
in their lockers or supplies. There is no showing that the Company took any
action to suppress the circulation.
As regards the posting of notices, the A. F. L relies on two alleged incidents.
The A. F. L points first to the testimony of Anne Pakulaski, a witness called by
the C. I. 0., that a notice of a C I. O. meeting to be held on April 20, 1914, was
posted upon a company bulletin board for about 3 or 4 days preceding the meeting.
Secondly, the A. F. L. adverts to testimony of witnesses for the A. F. L. that at
various times on the clay of May 1, 1944, eight days before the election, they saw
a C. I. O. bulletin posted on two time clocks and on a pillar in the sugar wafer
department. One of the time clocks is approximately 6 feet from the desk of
Foreman Price, but is separated therefrom by a pillar approximately the same
width as the clock. As stated above, Price was not called as a witness. The
undersigned credits the testimony that the C. I. O. bulletin remained posted on
May 1. The undersigned further infers and finds that the bulletin was seen by
supervisory employees. However, there is uncontradicted and credible evidence,
which the undersigned believes, that various A. F. L. leaflets, cards and stickers
were posted on time clocks, pillars and other places within the plant during the
period before the election, and that such literature in certain instances remained
posted for at least a full day. In particular, during a period of several days pre-
ceding the election, a great number of stickers, on which was printed in large
letters the words, "VOTE FOR A. F. of L Local 405," were pasted on time clocks,
machines, supplies, and at various other places in the plant. It is plain that
supervisory employees were aware of the foregoing.
In addition to the foregoing, for a period of several weeks prior to the election,
various writings in crayon advocating either the C. I. O. or the A F. L. and
attacking either of the unions and certain of its supporters, appeared upon walls
within the plant-largely upon the walls of the stairways, vestibules, and toilets.
Until about two weeks before the election, the plant porters sought each day to
remove the writings. At this time their superior reported to General Superin-
tendent Wiedersum that there was so much writing on the walls that the porters
were unable both to wash the walls and perform their normal sanitation work.
Wiedersum, in turn, reported the matter to Assistant General Manager Larri-
more and General Attorney Ferguson" The latter advised that the writings be
permitted to remain until after the election, at which time they could be removed.
Feiguson's advice was followed.
Upon the basis of'the foregoing and the entire record, the undersigned concludes
that supporters of both the C I. O. and the A F L. were extremely. active on
behalf of each union in distributing and posting literature and in writing propa-
ganda at various places within the plant; that the Company made reasonable
efforts to control this conduct; and that, in doing so, the Company favored neither
union. It is plain that, notwithstanding the Company's efforts, there was con-
tinually within the plant in view of the employees a mass of writing in favor of,
and in opposition to, the respective unions. There is no evidence of any action
by a representative of the Company which indicated to the employees that the
Company was more lenient in respect of such propaganda- on behalf of either
union.
18 It is against the rules of the Company to mark or deface company property. Wieder-
sum attempted , to discover who had made the writings, but was unable to do so
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Alleged cutting short of overtime on April 20, 1944, to permit employees to
- attend a C I. 0 meeting
On April 20, 1944, the C. I. 0 held meetings for its membership at 12:30 p in,
3: 00 p. m. and 5:15 p. m. On this day, a Thursday, employees in the sugar wafer
department and the icing department had been scheduled to work 9 hours, one
hour of which was overtime.10 During lunch hour on the preceding day, April
19, -a group of approximately 12 employees approached Marian Porter, forelady
in the icing department on the fourth floor. Certain of them stated that they
had to attend a union meeting the following day and could not work overtime.
Porter asked whether any of the employees would work overtime and was in-
formed-that they probably would not In the course of the conversation, Porter
stated that a few employees desired to ,work overtime, but that there' were not
enough to operate'the machines. Following the conversation, Assistant Foreman
Swoboday circulated among the employees in the department and asked whether
they wished to work overtime the next day. The employees in this department
and in the sugar wafer department subsequently were notified that they would
work but 8 hours on April 20.
On April 20, Anna Morgan, forelady in the sandwich department on the fifth
floor," told employees in this department that they would work 8 hours on this
day and 9 hours on the next day. Certain employees, including Helene Parker,
an A. F. L. adherent, said to Morgan, "If we work eight hours today and nine
hours tomorrow, we know that the union is company controlled." Morgan stated
that she would speak to General Manager W'iedersum Later that day Morgan
stated that the employees could work 9 hours that day' find 8 the next. The
employees in this department worked 9 hours on April 20
The evidence is plain that the Company does not require its employees to work
overtime, that they are free to refuse overtime work if they choose, and that
employees frequently have refused to work overtime According to the uncon-
tradicted testimony of General Superintendent Wiedersum, which the under-
signed credits, it is the practice of the Company's supervisors to canvass the
employees in advance to determine whether there are sufficient employees who
are willing to work overtime to enable the department to operate. The record
further establishes that on several occasions the Company has been forced to
shut down departments in which overtime work had been scheduled because of
lack of personnel.
The undersigned is convinced and finds that the Company did riot operate the
sugar wafer department and the icing department for the one hour of overtime
which had been scheduled for April 20 because of lack of personnel and not because
of any intent to assist the C. I. O 21
r-
'B Employees in these departments ordinarily worked 9 hours Monday through Thurs-
day. During the week in question, the employees had worked 9 hours on Monday, Tuesday,
and Wednesday.
20 This department is also referred to as the No 1 icing department
21 In its Objections the A. F L. contended that "The Company gave the C. I. 0. stewards
eztia overtime work, taking such overtime work away from other workers in other
departments who were known to be supporters of A. F L Local No 405, . .No such
contention is made by the A. F. L. in its brief filed with the Board The evidence adduced
by the A. F. L in this respect is mainly testimony of Frederick Fisher to the effect that
during a period of two or three weeks prior to the election certain named C I 0. stewards
who worked in production departments were given overtime work in the mechanical
department "such as ripping down partitions . . and moving machines," which overtime
work was refused the employees in the mechanical department. On cross-examination
Fisher was unable to name any persons in the mechanical department," who should have
received such overtime worfk, excepting Ericsson, a welder, and admitted that the source
LOOSE-WILES BISCUIT COMPANY 831
5. Alleged permission to C. I . O. stewards to leave work to attend stewards'
meetings
The evidence adduced in this regard concerns the attendance at stewards'
meetings of three C. I. O. stewards, Louis Borloff, George Reger, and G. T. Rongo.
Borloff, an elevator operator who, as stated above, was a C. I. O. steward until
the latter'part of April 1944, and thereafter a member of the A. F. L, testified
on direct examination that between January 1 and April 24, 1944, he had attended
at least 10 stewards meetings ; that he had attended these meetings during his
regular working hours; that he had been paid by the Company for the time
which he spent at the approximately 3 meetings which he had attended in Janu-
ary ; that he had received permission to leave work from Lenihan, who, testified
Borloff, was in charge of the elevators ; and that Lenihan had replaced him with
elevator operators who received overtime payment for the period during which
he, Borloff, was absent. On cross-examination Borloff testified that he in fact
had not been paid for the time spent at these meetings, notwithstanding that he
previously testified that he had not punched out. Borloff, who works from 4: 30
p m. to 1 a. in., further admitted that there is no one in charge of the elevators
during his working hours. He testified , "There is no boss when I am working.
We know our job and we do it." He added, however, that Lenihan "more or
less" supervises the elevators, and that Lenihan was "more or less" an assistant
to Miller, Borloff's foreman, who is in charge of the receiving, warehousing and
service department. Lemhan, a member of the C. I. O , has the title of chief
elevator operator. He has no authority to hire, discharge, or discipline em-
ployees or recommend such action He has authority to permit employees to
leave work, but not with payment for the time lost. His duties consist largely
of acting as a relief operator and assisting in keeping materials moving to and
from the elevators. The Company's "House Regulations," which are posted
throughout the plant, provide, inter alia, that "Employees will not leave their
work place or designated duties during working hours without permission of the
Department Head," and that "No employees shall punch or mark a time-card,
clock-card, or time-ticket other than his own." 22 Borloff admittedly never had
asked Miller for permission to leave work on the occasions mentioned above,
nor had he told him that he had done,so. And, according to Miller's uncontra-
dicted testimony, which the undersigned credits, Miller was unaware that Borloff
had engaged in such conduct.
At the hearing, counsel for the A F. L stated, in substance, that he did not
claim that the Company had paid Borloff for the time spent at the meetings in
question or that the Company had acted illegally. by permitting Borloff to leave
work, but that the Company bad engaged in interference by permitting him to
leave and putting another operator, who was paid, in his place. This contention
has no merit . The undersigned is satisfied that Borloff left work in contraven-
of his information concerning the alleged discrimination in granting overtime work was
what had been " discussed in groups . . . of fellows sitting out for lunch ." Further, it
was established that none of the C. I 0 . stewards named by Fisher had performed at
least some of the types of overtime work mentioned by Fisher since long prior to the time
fixed by Fisher. Witnesses for the Company testified without contradiction that em-
ployees in the mechanical department were given preference in performing overtime work
in this department ; that such woi k was offered to employees in other departments only
when there was insufficient mechanical department personnel , that the only employee
in the mechanical department who was not offered overtime work was Ericsson ; and that
the refusal to offer this work to Ericsson was occasioned by his previous consistent
refusals to accept such work. There is no merit to this contention of the A. F. L.
It In addition , on each of the time clocks there is a sign stating that each employee must
ring his or her clock number.
832 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
tion of the Company's rules , and that his conduct was not authorized by, or
known to, any representative of management.
Reger, whose regular working hours are from 2: 25 to 10: 55 p. m., attended
a C. ,I. O. steward's meeting which started at about 5 • 30 p. m. on April 19, 1944.
According to his uncontradicted testimony, which the undersigned credits, on
this occasion he told his foreman that he had to leave the plant because his wife
was ill, and that the foreman then granted him permission to leave Reger
denied that he had been paid for the time spent at the meeting The Company's
records show that on this day Reger punched in at 1: 51 p m and out at 2: 58 a. m.
the next day-a total of over 13 hours, and that he received pay for 83,!i hours of
work. The undersigned finds that Reger was not paid for the time spent at the
C. I. 0 meeting and that the Company was not aware that he had attended the
meeting.
Bongo, who was not available as a witness because he was serving in the armed
forces, also attended the steward's meeting on April 19. The Company's records
show that on this day Bongo punched in at 2: 05 p in. and punched out at 11: 04
p. m.-a total of about 9 hours, and that lie received pay for 8 hours of working
time. Since it is shown that the steward' s meeting ordinarily lasted for about
2 hours, it appears, and the undersigned finds, that Rongo was paid for at least a
part of the time which he spent at the meeting Frank Acosta, an oven man in the
department in which Rongo worked, testified in substance that at about 4:45
p. m. on April 19, Jack Rousso, assistant foreman, told him to relieve Rongo at
5 o'clock, that he asked Rousso whether Rongo was going to a union meeting
and Rousso answered in the affirmative ; and that he relieved Rongo from 5 p. m.
until 10: 55 p. in. Acosta's testimony was uncontradicted 23 and is credited by
the undersigned." John Caroluk, foreman of the department, testifi ,^d without
contradiction that Rongo had not asked him for permission to leave work to
attend the C I. O. meeting and that Rousso had no authority to grant such per-
mission. The undersigned credits his testiniony.2u Caroluk conceded, however,
that Rousso had authority to assign employees to, or remove them from, various
tasks, and that his subordinates could not question his orders.
There is no evidence that any supervisory employee other than Rousso knew
that Rongo had left work to attend the C I. O. meeting, nor is there any evidence
that Rousso or any other supervisory employee knew that Rongo was paid for,
such time. The Company pays its employees upon the basis of time-clock records ;
foremen are consulted regarding attendance only when the time-clock records
are distorted It is a clear inference from the Company's rules that employees
knew that they were not to be paid for time spent outside the plant on personal
business. The undersigned accordingly does not infer that Rousso knew or in-
tended that Rongo would be paid for the time during which lie was absent.
While it is true that Assistant Foreman Rousso permitted Rongo to attend
the C. I. O. stewards' meeting and that Rongo in fact was paid for at least part
of the time spent at the meeting, the undersigned is of the opinion that, under
,the circumstances herein, the evidence in this respect is not sufficient to sustain
23 Rousso was not called to testify
2" Acosta also testified that he had relieved Rongo on two or three other occasions, and
that, from talk in the plant that there was a stewards' meeting at that time and from the
fact that he did not see the stewards in the locker room in the evening-, he inferred that
Rongo had gone.to a stewards' meeting on such occasions . The undersigned considers this
testimony plainly insufficient to warrant a finding that Rongo attended stewards' meetings
on such occasions or that he was permitted to leave work for this reason
25 As found above, it is against the Company's rules for employees to leave work "without
permission of the Department Head "
i
LOOSE-WILES BISCUIT COMPANY 833
a finding that .this conduct was such as to affect the results of the election. As
stated above, in the light of the Company's rules -concerning attendance, the
undersigned does not infer that Rousso knew or intended that Rongo would be
paid for the time spent at the meeting. Further, because of the Company's
practice in keeping time records on which wage payments are based, it is plain
that those who were responsible for making such payments were unaware that
Rongo was paid for time during which lie did not work. Finally, in view of the
violation of the published rule prohibiting the leaving of work without permis-
sion of the department head, in view of the published instructions to supervisors
manifesting the Company's neutrality to the employees at large, and in the
absence of any other conduct reflecting employer preference, the undersigned
concludes that Foreman Rousso's grant of permission to Rongo to attend the
steward's meeting was-insufficient, standing alone, to vitiate the results of the
election. -
6. Alleged permission and encouragement to wear C I O. buttons; alleged
derogation of those wearing A. F. L. buttons. _
During the period preceding the election, supporters of both the C. I. O.; and
A. F. L, respectively, wore buttons on which appeared the name of the union
of their choice. The Company instructed no one to remove such buttons 26 The
A. F. L. does "not claim 'that the wearing of buttons was wrong," but urges
"that the encouragement given by supervisors to those wearing buttons of C. I O.
Local 25 and the derogation and humiliation of those wearing A. F of L buttons
was interference and coercion on the part of the Company " In support of its
contention, the A. F. L. relies upon certain alleged incidents concerning which
employees Muriel Guy, Helene Parker, Edith Franceschini and Rose Hansen,
respectively, testified.
Guy testified that she started wearing an A F L button about three days before
the election and that Sophie Bodin, a permanent instructress,27 looked at the
button and, said "sneeringly," according to Guy's characterization, "Is that
what you are for?" Notwithstanding her direct testimony that she started
to wear an A F L button about three days before the election, Guy testified
on cross-examination that Bodin made the quoted remark about a week before
the election Bodin denied that she had spoken to Guy. The undersigned does
not credit Guy's uncorroborated and contradicted testimony.
Hansen and Franceschini were employed in the sandwich department, where
they worked under the supervision of Forelady Anna Morgan. Hansen and
Franceschini testified, in substance, that shortly before the election they ap-
proached Morgan, who previously had complained to them about their work, and
asked Morgan not to make any more complaints to them until after the election ;
that Morgan acquiesced ; that Morgan then looked at their A. F. L. buttons and
2° Because of the nature of its products, the Company ordinarily requires employees not
to wear pins, buttons, and similar ornaments Shortly before the election, General Super-
intendent Wiedersum told Gencial Attorney Feiguson that employees were wearing C. I. O.
and A F L buttons and asked whether he should instruct the foiemen to notify the
employees to remove the buttons Ferguson advised Wyiedersuni that, in view of the
interest manifested in the election by the employees, it would interfere with production
to attempt to police the matter, and that "so long as they permitted both unions to wear
buttons„ it would be all right "
27 Instructresses perform supervisory functions They were excluded from the appro-
priate bargaining unit in the Decision and Direction of Election heiein and from the
terms of the cons ract between the C I 0 and the Company which expired on November
14, 1943 Instructresses, including Bodin, attended the staff meetings held by the Company
on December 28, 1943 _
625563-43-vol 60 54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked, "What is this9" ; that they answered, "Our A. F of L button. . . You
know we are A. F. of L"; and that Morgan then dismissed them Morgan de-
nied having had such a conversation with Parker and Franceschini. Morgan
testified, however, that prior to the election, following Parker's failure to report
to work on the preceding day or to notify the Company of her absence,2B she
asked Parker where she had been ; that Parker replied that she had been work-
ing for the A. F. L.; that she observed Parker's button and remarked, "I see" ;
and that she admonished Parker for failure to give notification of her absence.
Neither Parker nor Franceschmi was a reliable witness; their testimony contains
much exaggeration and contradiction.'9 Although Morgan's testimony often re-
flects lack of recollection, a consideration of all the evidence, including the fact
that Parker on several occasions had been absent from work without notification
to the Company, convinces the undersigned that Morgan's version of the incident
is more plausible than that of Parker and Franceschini.30
The A. F. L. also relies upon the following incident : About one month before
the election an employee named Alice had arranged several C. I 0 buttons on
her apron in the shape of a V. From a distance of about 50 teet, Parker and
Franceschini observed that Alice demonstrated her ornamentation to Forelady
Morgan at the latter's desk, that Morgan patted Alice on the back, tliat they
both laughed, and that Alice then returned to her machine. Morgan and
Theresa Schlereth, who was present, explained what had occurred substan-
tially as follows : Alice, a humorous individual, was wearing buttons all over her
clothes. She was amusing herself and other employees by taking the Tatters' but-
tons and adding them to her decorations As a means of quieting tlig gathering,
Morgan "took a couple of buttons and helped decorate" Alice ; stated, "Now, we
had our fun" ; and admonished the employees to make less noise and return to
work. The undersigned credits this explanation, which is uncontradicted and
consistent with what Parker and Franceschini had observed.
Rose Hansen was employed as a packer in the sugar wafer department. She
worked under the supervision of Forelady Rose Mahar. Hansen became a mem-
ber of the A F L. on or about April 1, and thereafter wore an A F. L. button
and otherwise was active in its behalf"' On the morning of April 27, an obscene
remark about Hansen was written in lipstick on a wall in the ladies' lavatory'
Catherine Pendergast, a C. I. O. steward, informed Forelady Mahar that there
was something written on the wall of the lavatory which she felt should be called
to Mahar's attention. Mahar then looked at the writing and immediately had
a cleaning woman wash it off When Hansen was informed by one of the em-
ployees of the writing, she approached Mahar The latter told Hansen of the
writing, stated that "a very common girl must have written it", informed Hansen
that she had had it removed, and told her not to pay any more attention to it.
The next day Hansen spoke to Price, the department head, about the matter. She
asked Price if it was possible for her to speak to General Superintendent Wieder-
rs One of the Company's "House Regulations " is as follows • "When an employee is ab-
sent or unavoidably prevented from reporting for work, he shall notify the company at
the earliest possible time, giving reason for such absence "
2n Among other things, their testimony concerning the number of complaints about their
work and other conduct, and the time of such complaints, was often contradictory and
at times contrary to_ facts clearly established by the record.
3° Were the undersigned to credit this testimony of Parker and Franceschini, he never-
theless would not find that this evidence was sufficient to warrant a finding of illegal
activity by the Company.
31 She distributed A F L circulars in the employees' locker room, at the time clock,
and at her machine before working hours
32 There is no evidence as to who wrote the remark on the wall
LOOSE-WILES BISCUIT COMPANY 835
sum in this regard.' Price told Hansen that if she did see Wiedersum, "it
probably wouldn't do any good " On the same day, Hansen asked Mahar if the
latter could place some one in her job so that she could see Wiedersumn Mahar
replied that she was sorry, but that there was no one to take her place. The
undersigned is satisfied, and finds, that the Company in no manner was responsi-
ble for the writing concerning Hansen'34 and that the Company acted reasonably
and properly when the writing came to its attention.
The undersigned concludes that there is no merit to the A F. L.'s contention.
7 Alleged permission and encouragement to sing C I. 0 songs ; alleged criticism
for singing A. F. L. songs
The female eniptoyees of the Company frequently sing while at work During
the period preceding the election, C I 0. adherents in the sandwich department
often sang a certain union song. A F. L. supporters, who were predominant
in the crew in which Helene Parker and Edith Franceschini worked, soon adapted
their own lyrics to the same tune and also sang while at work In addition to the
singing, there was much talk throughout the department about the approaching,
election and the merits of the respective unions.
One day, approximately 2 weeks before the election, Forelady Morgan ap-
proached the crew in which Parker and Franceschini worked, told the employees
that they were too noisy, and stated that they would have to stop this. At the
close of work that day, Morgan summoned this crew to her desk and told the
employees that if they persisted in their conduct, they would be transferred to
different machines or, if necessary, to different shifts. Morgan then dismissed
all the members of the crew except Parker and Franceschini. She told them
that she was having much trouble with their crew ; that she had traced the
trouble to these two "culprits"; that they were "too noisy" ; that other employees
had.,complained that this conduct interfered with their work ; and that if they did
not stop, she would separate them. Morgan stated that when they came to work
in the morning, they should leave other matters "behind" ; and that "the only
thing on your mind should be your work." Parker and Franceschini asked
why Morgan was telling them all this. when "there were other girls carrying on
the same way we were " Morgan replied that their crew was noisier than the
others and that their voices "carried more" than those of the others
At the hearing, Morgan explained that over a long period of time preceding
the election she had spoken on various occasions to Paiker and Franceschini
about their work and conduct ; and that Parker and ranceschini-particularly
the former-were very noisy and frequently engaged in conversation disrupting
employees' work. Morgan testified that she frequently had cautioned other
employees throughout the department concerning talking and singing when they
became noisy, but conceded that on no occasion other than that mentioned above
had she called an entire crew to her desk to reprimand them. However, she
explained this occurrence on the ground that the crew in question was "extremely
noisy." The undersigned credits Morgan's testimony. Although Parker and
"Hansen testified that she wanted to speak to Wiedersum "to see if something could
he done to find out who put the writing on the wall "
94 In its brief, the A F L. states that a witness for the C I. 0 testified that Forelady
Mahar "had told her after Rose Hansen's activity for A. F L. Local 405 had become
known and before the (lay that the filthy writing about her appeared in the ladies' room
that someone -had better get after Rose Hansen." This witness' testimony in this regard
is, in substance, that during- April and May 1944, Hansen was absent from work on
several occasions ; and that Mahar bid the employees in Hansen's crew • "Rose is being
absent so much lately you better get after her because she holds up the crew "
7
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Franceschini testified that Morgan had not spoken to ocher employees about their
conduct, the record otherwise establishes that on many occasions Morgan had
cautioned various employees, including C I. O. adherents, concerning the making-
of excessive noise in singing or talking. It was further established that, for a
long period of time preceding, including, and following -the pre-election campaign,
Morgan had cautioned Parker and Franceschini-especially Parker-concerning
their work and conduct, and that other employees had complained to Morgan
about this.-
Upon the basis of the foregoing, the entire record, and his consideration of the-
testimony and-demeanor of Parker and Franceschini, the undersigned is convinced
and finds that Morgan's conduct mentioned above concerning Parker, Frances-
chini, and other supporters of the A F. L. was not motivated by pro-C. I. O. or
anti-A F. L. considerations, but rather by a desire to maintain discipline and
production.
8. Alleged permission to employees to mark company-owned clothes with the
letters "C. I. 0."
The Company supplies many of its employees with uniforms which they wear
at work. The A. F L contends that the fact that during the period preceding
the election several employees wore uniforms on which they had marked the
letters "C. I. 0." constitutes conduct by the Company affecting the results of
the election There is, however, uncontradicted testimony which the under-
signed credits, that several employees wore uniforms on which they had marked
the letters "A. F. L.", and that the Company made no effort to curtail such
conduct by adherents of either union. In this connection, the A. F. L points
to the testimony of Rose Hansen that foremen, whom she did not name, smiled at
employees in her department who wore uniforms with the letters "C. I. 0."
thereon. Assuming the truth of FIansen's testimony, the undersigned finds no,
merit in the A. F. L's contention.
II. Objections to the conduct of the election
A. Alleged electioneering by Leonard Geiger
The election was held on May 9, 1944, in the Company's garage, which is
located across the street from the plant. Prior to the election, the A. F. L and
the C. I. O. were notified by an agent of the Board that no electioneering would
be permitted within the polling place or within a defined area between and
adjacent to the plant and garage. Official observers for the Company, the A. F. L.
and'the C. I. O. were stationed within the polling place during the election;
certain representatives both of the A. F. L. and C. I. 0., with the permission of
Board agents, remained as "watchers" outside the polling place in the area
restricted against electioneering.
On the day prior to the election, photographs were taken outside the plant of
various supporters of the C. I. O. and the A. F. L. holding signs or banners of
their respective unions.
At about 11: 00 a. in. on the day of the election, Leonard Geiger, an official of
the C. I. 0,'5 entered the polling place, carrying in an envelope some 6 or 7
of the photographs which had been taken on the preceding day. One of these
photographs depicted both a group of A. F. L supporters and a group of C. I. O.
85 Geiger is manager of Local 1, United Retail, Wholesale & Department Store Employees
of America.
LOOSE-WILES BISCUIT COMPANY 837
.supporters . The remaining photographs depicted only C. I 0. supporters
Geiger showed the photographs to a C I. 0-observer stationed at the entrance
to the polling place. He then proceeded directly some 150 feet to the table at
which another C. I. 0. observer was seated and started to show the pictures to
the latter person. Geiger 's presence was noted by an observer for the A. F. L.,
who called this to the attention of Daniel House , a Field Examiner for the Board,
who was in charge of conducting the election House immediately , escorted
,Geiger out of the polling place ." When House approached Geiger, the latter had
shown only about half the pictures to the C. I. 0. observer.
The evidence is conflicting as to whether any voters were in the polling place
at the time of this occurrence . Geiger and C. I. 0 observers Grace Tietjen and
Alfred Ruhlman testified that none was present Borloff, chief observer for the
A. F. L., testified that he thought that about three voters were in the polling place
Murray, an A. F. L. observer , testified that at least 5 or 6 voters were in the
polling place . The undersigned considers it unnecessary to resolve this conflict.
It is plain that the pictures were seen by no persons other than the observers.
Geiger acted as one of the "watchers" for the C. I. 0 in the restricted area
outside the polling place . According to the testimony of William Kuhn, an
A. F. L. steward at National Biscuit Company , who acted as a "watcher" for the
'A. F. L, Geiger showed the pictures to 5 or 6 "small groups of people" in which
there were "four, five, ten" persons. Kuhn "judged" that Geiger showed the
pictures to about 100 persons. When asked to name persons to whom Geiger
showed the pictures , Kuhn named two C. I. 0. "watchers ." Kuhn admitted that,
when Board agents at various times during the clay asked him if everything was
all right, he answered in the affirmative , and that he made no complaint con-
cerning Geiger and the photographs . He testified , "It slipped my mind ." Geiger
denied that he showed the pictures to anyone within the restricted area other
than the "watchers ." He testified without contradiction that when he showed
Kuhn the photographs, the latter showed them to a group of A F. of L. people"
,outside the restricted area and that one of the group requested copies of the
pictures for their use. The undersigned credits Geiger.
The undersigned concludes that there is no merit to the A. F. L's contention
that Geiger engaged in electioneering proscribed by the election rules. Clearly,
his mere presence in the restricted area , in which A . F. L. "watchers" also were
present, did not constitute electioneering . Nor is the undersigned of the opinion
that Geiger engaged in electioneering by demonstrating photographs , in which
both A. F . L. and C. I 0 propaganda appears , to observers or "watchers"' at the
election.37
B. Wearing of O. 1. 0. buttons in the polling places
Numerous employees wore C. I 0. buttons and other insignia when they came
to the polls to vote.' No A. F. L. buttoins were worn. No voter, 'however, was in
any way prevented from wearing A. F. L. buttons or other insignia. The A F. L.
contends that it was "vitally wrong for the Board' agents to permit employees
"The A. F. L . made no further protest concerning this incident on the day of the
election.
"Assuming that Geiger showed the photographs to voters in the restricted area out-
side the polling place, the undersigned would not find such conduct violative of the
election rules As set forth above the photographs show both A F L. and C I. 0. prop-
aganda. Moreover,-on the day of the election, adherents of both the C. I. 0. and A. F L
demonstrated banners and signs just outside the restricted area. Thus , the photographs
showed no more than what was visible in full life to persons standing within the restricted
area.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to enter the polling place" wearing C. I. 0 buttons. The undersigned finds no
merit in this contention.38
III. OONCLUSION
Upon the basis of the entire record, the undersigned concludes and finds that
the election fairly reflected the untrammeled choice of the -Company's employees,
and constituted a fair test of the employees' desires concerning representation.
Because of this, and in view of the election results, the undersigned will recom-
mend that the Objections of the A. F. L. be overruled and that the C. I. O. be
certified as the exclusive bargaining representative of the employees within the
unit found appropriate for the purposes of collective bargaining by the Board.
RECOMMENDATIONS
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned recommends that the National Labor Relations Board
overrule the Objections of Biscuit & Cracker Workers Local Union No. 405,
Greater New York and Vicinity, B. & C. W. I. U. of A, A. F L., and certify United
Cracker Workers of Greater New York, U. R W. D. S E. of A, Local 25, C. I 0.,
as the exclusive representative for the purposes of collective bargaining of all
employees within the unit-found appropriate in the Board's Decision and Direc-
tion=of Election herein.
Any party may, within 15 days from the date of this Report and Recommenda-
tions, file with the Board, Rochambeau Building, Washington,-D. C., an original
and four copies of a statement in writing setting forth such exceptions to the
Report and Recommendations 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 four copies of a brief in support thereof. -Immediately upon the
filing of the statement of exceptions and brief, the party filing the same shall
serve a copy thereof upon each of the other parties and shall file-a copy with the
Regional Director. -
ROBIIRT F. KORETZ
Trial Eiraniiner
Dated December 15, 1944.
331n its Objections , the A F. L. alleged , as objections to the conduct of the election,
certain other specified matters. At the close of the hearing, counsel fort the,A. F. L.
stated that such other -matters "were immaterial and trivial ", and that'. he had "no
criticism to make of the i#oard's agents" in this regard. -