Mary Anne Bakeries

National Labor Relations Board - Board Decisions

Apr 28, 1967

164 N.L.R.B. 207 (N.L.R.B. 1967)

MARY ANNE BAKERIES
Wilber J. Allingham , d/b/a Mary Anne
Bakeries and Bakery and Confectionery
Workers International Union of America,
Ind., Local No. 26 . Case 27-CA-1874
April 28, 1967
DECISION AND ORDER
On May 26, 1966, Trial Examiner David F. Doyle
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the conduct of the
hearing and to the Decision together with a
supporting brief. The Respondent filed a brief in
support of the Trial Examiner's Decision.
The National Labor Relations Board has reviewed
the rulings of the Trial Examiner made at the
hearing and finds that no prejudicial error, which
would warrant a remand of the case,' was
committed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
1. The Trial Examiner dismissed the complaint in
its entirety. His findings rest in large part upon his
credibility resolutions, to which the General Counsel
has excepted. It is the Board's well- establi shed
policy not to overrule a Trial Examiner's credibility
determinations unless the clear preponderance of all
relevant evidence convinces us that his resolutions
were incorrect.2 While the evidence adduced by the
General Counsel strongly suggests merit in the
allegations of unlawful interrogation, threats, and
the granting of wage increases to influence votes in
the representation election, we nonetheless find
such evidence insufficient to establish a violation of
Section 8(a)(1) of the National Labor Relations Act,
as amended, in view of the Trial Examiner's
credibility resolutions. However, in adopting the
Trial Examiner's dismissal of the complaint herein,
we do not adopt any part of his Decision dealing with
matters relating to the Union's majority status.
' The General Counsel asserts that the Trial Examiner
improperly interfered with the presentation of the General
Counsel's case, and requests a trial de novo before a different
Trial Examiner should the Board find that the present record does
not support the violations alleged in the complaint . While the
Trial Examiner 's questions and comments prematurely and
excessively interrupted the General Counsel 's presentation, and
the Trial Examiner' s conduct of the hearing is fairly subject to
criticism, we find, nevertheless , that the General Counsel was not
precluded from presenting evidence and conclude that a new trial
is not warranted.
2 Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd.
188 F.2d 362 (C.A. 3).
207
2. The Trial Examiner found that the General
Counsel denied Respondent Allingham a
constitutional right to the assistance of counsel by
directly obtaining Allingham's affidavit during the
investigation of the charges herein. Citing the
Supreme Court's decision in Escobedo v. Illinois3 as
precedent for such holding, the Trial Examiner also
concluded that the right of a Respondent to the
assistance of counsel during investigation of charges
under the National Labor Relations Act is required
by Section 6(a) and Section 12 of the Administrative
Procedure Act.4
In the Escobedo case, law enforcement officials
took a defendant into custody and interrogated him,
in a police station for the purpose of obtaining a
confession in a criminal proceeding. The police did
not effectively advise him of his right to remain
silent or of his right to consult with his attorney.
When the defendant denied the accusation, the
police handcuffed him and took him into an
interrogation room where, while handcuffed and
standing, he was questioned for 4 hours until he
confessed. During this interrogation, the police
denied the defendant's request to speak to his
attorney, and they prevented his retained attorney,
who had come to the police station, from consulting
with him. The Supreme Court held that the
statements thus made by the defendant were
constitutionally inadmissible. In Miranda v.
Arizona,5 the Supreme Court further explored
concepts of "criminal jurisprudence" relating to the
application of the "privilege against self-
incrimination to in-custody interrogation. . . ."S
Needless to say, there is no "custodial
interrogation" under the National Labor Relations
Act such as was involved in Escobedo and Miranda.
Unfair labor practice preceedings before the Board
are not criminal proceedings, and we affirm our
recent holding7 that Escobedo is inapposite to Board
procedures. The Trial Examiner therefore erred in
holding otherwise respecting the precomplaint
investigation of unfair labor practice charges in the
present case, and his reliance on the Administrative
Procedure Act is also without merit in this
connection. Section 6(a)8 of the Administrative
Procedure Act does not apply to voluntary
statements during the investigation of charges,9 and
we thus reject the Trial Examiner's finding that
questioning of Allingham concerning such
3 378 U.S. 478.
"Administrative Procedure Act, 5 U.S.C. 1001, et seq.
5 384 U.S. 436.
6 Miranda v. Arizona, supra, p. 441.
7Crown Imports Co., Inc., 163 NLRB 24.
3 That section provides: "Any person compelled to appear in
person before any agency or representative thereof shall be
accorded the right to be accompanied, represented, and advised
by counsel." [Emphasis supplied.]
Attorney General's Manual on the Administrative Procedure
Act, pp. 61-62 (Dept. of Justice, 1947); Cooper v. U.S., 233 F.2d
821, 825 (C.A. 8,1956), cert. denied 352 U.S. 837: Suess v. Pugh,
245 F.Supp. 661.
164 NLRB No. 30
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements was misuse of rule 43(b) or that
constitutional rights" of Allingham were otherwise
subverted or violated.
The Trial Examiner stated in his Decision that the
Allingham incident is not "an isolated
happenstance" but is representative of "a nation-
wide practice" of the General Counsel to bypass
counsel. He also charged that "for many years" it
has been "a favorite tactic of the young advocates in
the General Counsel's office" to "mis-use Rule
43(b)" as "a formidable legal weapon" by "forc [ing]
an accused to confirm" such statements under oath
purportedly in further violation of constitutional
rights. Although we have rejected the Trial
Examiner's views respecting the applicability of
Escobedo in these proceedings, it is noted that
Allingham's affidavit was not used under rule 43(b)
either as evidence or for impeachment purposes in
this case. We also point out that this record wholly
lacks support for the Trial Examiner's comments
concerning a purported "nation-wide practice" and
a general misuse of rule 43(b) by "the young
advocates" in the General Counsel's office. We are
constrained to mention these matters because of
unwarranted aspersions by the Trial Examiner upon
the General Counsel. A Trial Examiner's Decision is
not an appropriate vehicle for gratuitous personal
diatribes, and there is no justification in this record
for the gratuitous attack directed by the Trial
Examiner at the General Counsel's representative in
this case, young regional attorneys generally, and
the General Counsel personally.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID F. DOYLE, Trial Examiner: This proceeding,
brought under Section 10(b) of the Act, was heard at
Denver, Colorado, on November 16 and 17, 1965, pursuant
to due notice to all parties.' The complaint in substance
alleged that the Company violated Section 8(a)(1) of the
Act by certain conduct which will be more fully described
hereinafter. The Company duly filed its answer denying
the commission of unfair labor practices. At the hearing,
all parties were represented by counsel, who were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce evidence bearing on
' In this report, the Respondent is referred to as the
Respondent, the Company, or by his name, Allingham; Bakery
and Confectionery Workers International Union of America, Ind.,
Local No. 26, as the Union; the General Counsel of the Board and
his representatives at the hearing, as the General Counsel; the
National Labor Relations Board, as the Board; and the Labor
Management Relations Act, as amended, as the Act.
the issues, to argue the issues orally upon the record and
to file briefs and proposed findings.
Upon the entire record of the case and upon my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OPERATIONS OF THE COMPANY
It is undisputed that the Company is the individual
proprietorship of Wilber J. Allingham,2 doing business
under the trade name and style of Mary Anne Bakeries.
The Company, for sometime past, has maintained its
principal office, plant, and place of business at 25
Broadway, Denver, Colorado, and has been engaged in the
business of manufacturing, selling, and distributing its
bakery products. In the course of its business, the
Company annually sells and distributes products valued at
more than $50,000 to Denver Drygoods Company and the
May Department Stores Company, d/b/a May-DMF
Company, each of which enterprises operates retail
department stores having gross annual revenue of more
than $500,000 at each said store, and each of which
enterprises annually receives goods and materials valued
at more than $50,000 directly from points outside the State
of Colorado. In the conduct of its business during the past
year, the Company received goods and materials valued at
approximately $5,000 from points outside the State of
Colorado.
It is found that the Company is now, and at all times
material has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
It is undisputed and I find that the Union is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Undisputed Facts Comprising Background; the Union
Organizational Campaign; the Election; the Filing of
Objections to the Conduct of Election by the Union
It is undisputed that in the latter part of June, the Union,
by one of its officers, John D. Nelson, initiated a campaign
to unionize the employees of the Company's bakery in
Denver, Colorado, exclusive of office clericals, bakery
sales clerks, and supervisors. In the late weeks of June,
Nelson obtained written authorization cards from nine
employees designating the Union as their collective-
bargaining representative.
It is undisputed that the Union did not make a request or
demand upon the employer for collective bargaining;
instead on June 29, the Union filed a petition with the
Regional Office (Denver) requesting certification as the
collective-bargaining representative of the Company's
employees in a unit of production employees.
Thereafter, the Regional Director requested the
employer to furnish the names of all employees in the
The complaint dated September 2, 1965, was based on charges
filed by the Union on July 22, and amended on August 31. All
dates in this Decision are in the year 1965, unless specified
otherwise.
2 The formal papers spell Respondent's name as Wilbur J.
Allingham, but the correct spelling is Wilber J. Allingham. All
documents are amended to show correct spelling.
MARY ANNE BAKERIES
appropriate unit , who were employed during the week
ending June 29. The Company, on July 6, furnished such a
list showing the termination dates of 4 employees who had
left employment during June, but there remained the
names of 19 persons eligible to vote.
On July 6, an agreement for consent election was
entered into by representatives of the Company, the
Union, and an agent of the Board named Hjelle; it was
approved by the Regional Director. The election was set
by agreement for July 14. On that date, the election was
held and 11 voters cast their ballots against the Union,
while 3 votes were cast in favor of the Union. There were
no challenged ballots. The Union filed timely objections to
conduct affecting the election and on August 30, Clyde F.
Waers, Regional Director, Region 27 (Denver, Colorado),
filed his Regional Director's report on objections, which
found that the Company had given certain wage increases
during the period immediately preceding the election, and
for that reason, he set the election aside. Thereafter, the
instant complaint issued. The issues presented for
resolution are:
(1) Whether the Company engaged in interrogation,
threats, and the granting of pay increases to employees, in
order to influence employees in the election, thereby
violating Section 8(a)(1) of the Act.
(2) Whether the Union represented a majority of the
Company's employees in an appropriate unit for collective
bargaining , and a -bargaining order is the appropriate
remedy in view of the facts found in this case.
The General Counsel takes_ the affirmative position on
these issues, and counsel-for the Company the negative.
B. Alleged Interrogation and Threats
To support the allegations of the complaint, the General
Counsel called as witnesses several of the employees. In
general , these witnesses were not satisfactory, because
they seemed to exhibit vagueness and uncertainty as to
vital portions of their testimony.
1. Alleged threat to Employee Harvey
Leonard Vaughn testified that he was employed as a
baker helper. He first heard about the Union " sometime in
June" from another employee. The General Counsel then
asked Vaughn if he had overheard a conversation between
Allingham, the Respondent, and employee Alvin Harvey,
"some time during the last part of June or the early part of
July." As to the conversation, Vaughn testified as follows:
A. Yes, Mr. Allingham was talking , Al and he said,
"I heard you were getting a union up ," and Al said,
"It is nothing to me," and he says we was in the union
propositioned and that's when Al told him. Then he
questioned Alvin and he said Alvin and them says,
"Oh, well, why don't you go-you go borrow money.
Why don't you go down to the union and borrow
money." That's all I heard.
When Vaughn was asked if this conversation occurred
during the union campaign or afterwards he replied, "I
think it was before the union campaign if I'm not
mistaken ." On cross-examination, Vaughn said this
conversation took place before Nelson, the union
representative, started the campaign for the Union.
Finally, Vaughn testified that Allingham said , "If you went
the Union, you go borrow money from them."
Alvin Harvey was called as a witness by the General
Counsel. Harvey testified that he signed a union
authorization card for Nelson at his (Harvey's) home. It is
209
noteworthy that Harvey, in the course of his testimony,
was not asked any questions concerning the conversation
with Allingham, which Vaughn related. Allingham denied
that any such conversation occurred. In the absence of
corroboration by other witnesses, I cannot accept this
jumbled testimony of Vaughn which I deem unreliable.
2. Alleged interrogation of Herbert
Peter L. Herbert testified that he was employed by the
Company as a bakery and oven man and that he helped out
in the training of new employees when they came on the
job. His work shift began at 6:30 in the evening and ended
at 2:30 in the morning. He was under the supervision of
Robert Gendill. Gendill gave him some orders, but on
occasions, Allingham called him during the evening and
gave him additional instructions . Herbert is employed on
Friday, Saturday, and Sunday evenings only. This witness
was questioned on direct examination as to a phone call
from Allingham to the witness on June 27. He said he did
not remember any phone call from Allingham to himself on
that date. The witness then testified that on the next night,
June 28, Allingham phoned him at the bakery and said he
was coming down to see the witness and employees, Smith
and Jackson. Allingham came to the bakery and called the
three employees to the office. There, he told them that he
had heard that they wanted a raise. He said that "things
weren't too good ... the business had been off .... but he
agreed to give us a little raise, if we would accept the
raise." The three employees agreed to accept the raise.
Herbert testified that the employees had not asked for this
raise. The direct examination then went back to the
subject of the alleged phone call from Allingham to the
witness on June 27. The witness was asked if Allingham
had mentioned the Union in this phone conversation. The
witness replied, "I think he asked me something about it,
what did I think about it, what do I think about it, is about
all." The General Counsel then confronted the witness
with an affidavit which he had given to an agent of the
Board for the purpose of refreshing his memory. The
witness again replied , with regard to that conversation,
"I'm not quite sure what went on." "I thought he
mentioned something about the Union, but I am not sure."
This testimony of Herbert's, I cannot accept as the basis
for any finding. Herbert, as a witness , seemed unsure and
vague, and his self-contradictions render his testimony
valueless. In view of Allingham's testimony on this point,
which I credit, I find that Herbert was not interrogated
about the Union by Allingham.
This testimony had an additional purpose. By it, the
General Counsel had hoped to establish knowledge on the
part of Allingham, as of June 27, that the Union had begun
organizing his employees. As the testimony illustrates, this
effort was in vain.
3. Alleged interrogation of Beaty
James Beaty , called as a witness by the General
Counsel , testified that he was employed at the Company
as a mixer . The witness testified that he quit on June 30, at
which time he had a conversation with Allingham, but
when asked to give the conversation , the witness replied,
"Well, I don't remember all of it, the most of it was just
personal - between him and I ." -A`s ced -to give his west
recollection , Beaty said, "Well, he asked me something
about signing a union card, and I told him I did. And he
said something else-`I didn 't think you was that kind of a
person.' I imagine in a flair of anger but I don 't know what
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he meant by it. And then awhile later, he came back and,
oh, he said he wasn't paying me my salary which was
$125.00 a week plus a life insurance policy which he paid
half of, which I imagine he said in anger."
An objection and ruling interrupted at this point, then
the witness continued, "Well, he came back later and I
told him just to give me the days' pay that I had coming
and we would call it quits. And he said, `Okay, you tell Bob
to get somebody else to replace you.' So I did and I worked
the rest of the day and that was all."
On cross-examination, Beaty admitted that a few days
prior to this conversation with Allingham, he had heard
that Gendill, the foreman, was going to change his work
hours from the day shift to the night shift. He had a night
job working at another bakery, so he did not like this
rumored change in working hours. When he engaged in
the conversation with Allingham, he was angry because of
the rumored change in his hours, and voluntarily quit. No
one in management had told him that his hours were to be
changed. A few weeks later, Allingham phoned Beaty and
offered him his old job, and a week or so later, Beaty called
Allingham and accepted the job. He was employed by
Allingham at the time he testified.
Allingham testified in his own behalf. He denied
categorically having a conversation with any employee in
which he talked about the Union. He explained that he did
discuss his life insurance policy with Beaty at the time
Beaty quit. Allingham testified that, in this conversation,
he pointed out to Beaty that if he quit he would then lose
the benefit of the life insurance policy. Allingham denied
that the discussion about Beaty's quitting and the
insurance policy had anything whatever to do with the
Union.
It is undisputed that Beaty's service with the Company
was ended by his voluntary quitting on June 30, and that
he was not an employee eligible to vote in the election
which was held thereafter. The General Counsel made no
claim that Beaty's quitting was a violation of the Act.
Upon a consideration of all the evidence in the case, and
the testimony of Allingham, I find that the evidence is
insufficient to establish that Alhngham interrogated Beaty
as alleged in the complaint.
C. The Increases in Wages Given to Employees
It is undisputed that certain raises in pay were given to
certain employees. The General Counsel contends that
these raises were given to influence the employees' votes
in the election, while the Respondent contends that these
increases were given for valid economic reasons.
1. The raise to Harvey
Alvin Harvey testified that his employment with the
Company was his first job after graduating from high
school. In the course of his employment, Baird, a foreman
for the Company, urged Harvey to enroll at Emily Griffith
Opportunity School, conducted by the Denver public
schools, in a course on bakery sanitation . Baird told
Harvey that if he would take the course and receive his
diploma, that the Company would give him a raise. Harvey
completed the course in late May, and thereafter reminded
Baird of his promise to raise his pay. During the weekly
pay period beginning June 30, Harvey was given an
increase of 10 cents per hour to $2.10 per hour. There was
no testimony contrary to this of Harvey.
2. The raise to Herbert, Jackson, and Smith
It was undisputed that the Company gave a 10-cent-per-
hour raise to employees Peter Herbert, Gerald Jackson,
and Paul E. Smith during the payroll period beginning
June 23. Allingham testified that these men were
employed on the night shift and that the Company also
employed a moonlighting employee by the name of Sam
Weddle. Allingham said that this raise was given to these
men when Baird, the then foreman, reported to him that
there was dissatisfaction among these three night workers
because Sam Weddle, who was helping out part time, wasi
being paid $2.50 an hour, which was the same as Peter
Herbert received and more than Jackson or Paul Smith
received. These three night workers had also complained
to Baird that they should receive more pay than day
workers; that there should be a night -time differential. He
sent for these three men on June 28, and told them that
business had not been going particularly well, but that he
would give each of them a 10-cent-per-hour pay increase.
Herbert's testimony as to the raise has been reviewed
previously. Gerald E. Jackson, as a witness for the General
Counsel, said on direct examination that this raise was
given as related by Herbert, but on cross-examination, he
said that Sam Weddle, a new part-time man on the night
shift, had been bragging that he was making more than the
witness, so three senior employees complained to Baird
about this. Allingham then called the men into the office,
showed the books to them so that they could see what Sam
Weddle was being paid, and then offered them the raise.
Paul E. Smith, the third employee involved in this
incident, did not testify.
3. The raise to LaPoint
Allingham also testified that he gave a raise of 20 cents
an hour to Raymond LaPoint in the pay period beginning
July 6. Allingham testified that on that date LaPoint
threatened to quit unless he received a raise immediately,
and on that date LaPoint was the only deliveryman that
the Company had, the second deliveryman was on
vacation. Since it was necessary to distribute the
Company's products, Allingham had no alternative but to
give LaPoint his demanded raise. There was no testimony
contrary to this of Allingham. LaPoint did not testify.
4. The raise to Jones
Allingham also testified that he gave an increase of
approximately 10 cents per hour to employee Bobby Jones.
This raise was given in the pay period beginning July 27.
Jones did not testify. Allingham said that Jones had asked
for a raise because he was being harassed by a multiplicity
of creditors, and his pay was garnisheed by six creditors.
These attachments of his pay cut down Jones' take-home
pay, so that Allingham was continually helping him out by
paying some obligations and taking it out of his pay. In this
instance, he advanced $50 as a loan to Jones to pay the
garnishees, and gave Jones a raise so that Jones could
repay the loan; otherwise, Jones would have been no
better off. It should be noticed that this raise to Jones
occurred some 2 weeks after the election, which was held
on July 14.
D. Knowledge of the Company as to the Start of the
Union's Organizational Campaign
The testimony in relation to the above-alleged unfair
labor practices must be considered in relation to two
MARY ANNE BAKERIES 211
specific dates. One is the date on which the Company first
learned of the Union's organizational campaign. As noted
previously, the General Counsel labored with witness
Herbert to place this date as June 27, as supposedly
evidenced by the conversation between Allingham and
Herbert on that date. That effort, I deem a complete
failure. However, the petition of the Union was filed on
June 29, and if mailed promptly, would have been received
in the ordinary course of business on June 30. Counsel for
the Company, in a statement in open court, said it was
received by the Company on that date.
The second date is the date of the election, July 14.
E. Alleged Majority Status of the Union
At the hearing, the General Counsel contended that the
Union had a majority status in the unit of production and
maintenance employees as of June 28. In support of that
contention , he put into evidence the signed authorization
cards of nine employees; the first of these were signed on
June 23, and the last on June 28.3
It is undisputed that on July 6, Allingham and his
counsel Maley, for the Company, met with John D. Nelson,
business agent for the Union, and Douglas R. Hjelle, a field
examiner for the Board, at the offices of the Board in
Denver, Colorado, and in the course of a conference,
executed an agreement for consent election. On this date,
pursuant to a request of the Regional Director, the
Company supplied to this conference a list of employees
on the payroll. The representatives of the parties checked
over the payroll and agreed that there were 17 eligible
voters.4
The eligible voters are listed as:
Burr Baird Raymond LaPoint
Eileen Chadwick Ed Morikawa
Ruth Evans Theodore Pate
Robert Gendill Paul Smith
Alvin Harvey Ed Schaefer
Odell Haynes Thomas Tyler
Peter Herbert Leonard Vaughn
Gerald Jackson Henry Wiese
Bobby Jones
It should be noted in connection with this exhibit that
the names of the following employees are written on the
list, but crossed out, and after the name, the date of
termination of service with the Company. The names and
dates are:
Jim Beaty 6/30
Jim Chambers 6/23
Michael Duran 6/26
Daniel A. Jones 6/25
Sam Weddle Terminated
It should also be noted in connection with this eligibility
list that the names of eligible employees to the number of
14 have a check mark in red and a check mark in green
opposite the names of the eligible voters, who actually
voted in the election. The employees who were eligible,
but not voting were:
Ed Morikawa
Ed Schaefer
Thomas Tyler
At the hearing, when the Trial Examiner suggested that
counsel stipulate that at the conference on July 6, Maley,
for the Company, Nelson, for the Union, and Hjelle for the
Board, had agreed on an eligibility list for the election, the
General Counsel refused to join in such a stipulation. He
made no claim that the Board's representative Hjelle, at
the conference, had made a mistake, or been the victim of
a misrepresentation, or fraud, but he insisted that he had
the right to attack the eligibility list as agreed upon in the
preelection conference. He stated that his object was to
establish that one of those considered as eligible voters at
the time of the conference and at the time of the election,
was in truth a supervisor and not eligible. When the
General Counsel refused to enter the stipulation, the Trial
Examiner requested Respondent's counsel to testify to the
pertinent facts, which he had offered to do, when
confronted with this situation. Maley testified, and in the
course of his testimony, Nelson of the Union, confirmed
the accuracy of Maley's testimony, that all parties entered
a binding agreement on the eligibility list. The General
Counsel offered no contrary evidence, although Hjelle, the
representative of the Board at the conference of July 7,
was frequently in and out of the hearing room in the course
of the conference. Upon the undisputed testimony, I find
that the General Counsel agreed to the list of eligible
voters.
Upon the documents in evidence and the testimomy of
Maley and Nelson, I find that at the time of the election
and at the time of the hearing, there were 17 employees in
the appropriate unit.
As previously noted, to support his contention that the
Union had a majority of the employees in the appropriate
unit by June 28, the General Counsel introduced into
evidence authorization cards of nine employees.
It should be noted that Beaty, who signed one of the
cards, voluntarily quit on June 30. At the conference on
July 7, at which the agreement for consent election was
signed, and at which the eligibility list was determined,
Beaty's name was crossed out and the notation evidently
referring to his termination-6/30-was placed after his
name. From the above, it would seem clear that all parties
at the conference of July 7 were aware of the fact that
Beaty had quit employment and was no longer in the
appropriate unit . Under the circumstances, I find that
Beaty's card cannot be counted in the determination of
majority status of the Union.
Further, in his effort to prove majority status for the
Union, the General Counsel seeks to repudiate the
eligibility list agreed upon by representatives of the
Company, the Union, and Hjelle of the Regional Office on
July 7, and seeks to eliminate from the list of eligible
voters the names of Baird and Gendill on the ground that
both of these are supervisors. I cannot agree that the
General Counsel's claim on this point can be seriously
considered. In my judgment, the General Counsel of the
National Labor Relations Board cannot play fast and loose
with his commitments to counsel, after a passage of time,
honoring his commitments , when it suits his prosecution
purposes, and repudiating them when he deems it
advantageous.
These cards were signed by these employees on these dates Ruth Evans 6/28/65
Names Date Card Signed Bobbie Ray Jones 6/28/65
Peter L Herbert 6/23/65 Raymond LaPoint 6/28/65
Paul Edward Smith 6/23/65 Jimmie D Beaty 6/28/65
Gerald E Jackson 6/24/65 " See G C. Exh 4 for identification, redesignated Resp Exh 1,
Alvin D Harvey 6/25/65 and under that designation received in evidence
Odell Haynes 6/25/65
298-668 0-69-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here Hjelle conferred with all parties and agreed upon
an eligibility list. The agreement for a consent election was
premised on this agreement, and the Regional Director
approved the agreement for a consent election, and that in
fairness, equity, legal ethics, and law should end the
matter. It may suit the General Counsel's purpose at the
time of hearing to repudiate what his colleagues or office
mates have done or approved, but ethical and legal
procedures require that agreements between counsel and
the parties be honored by all who enter into them. This is
especially true in the case of representatives of the U.S.
Government, who are held to the highest standard of legal
ethics in dealing with its citizens. If the General Counsel
contends that he is not bound by the ethical and legal
standards imposed on all other lawyers, he should publicly
claim such special privilege or right, so that prospective
respondents and their counsel will know how to deal with
the General Counsel and his agents. For that reason, the
Trial Examiner will not consider the evidence introduced
by the General Counsel on this point. Furthermore, the
complaint herein gave no notice to the Respondent that
the General Counsel would attempt to repudiate the
agreed-upon eligibility list and eliminate Baird and Gendill
from it. Therefore, I find that on July 7 there were 17
eligible employees on the list to which all parties agreed,
and that the list of eligible voters remained the same at the
time of the election, and at the hearing.
The situation being resolved as related above, the proof
of majority offered by the General Counsel is short of a
majority. With the card of Beaty eliminated because of his
quit, the General Counsel has placed in evidence only
eight valid designation cards of employees of a unit of 17
employees.
At the hearing, the General Counsel attempted to make
up this deficiency by offering in evidence the Union's
account cards of dues collected from employees Schaefer
and Morikawa. Both of these men have paid dues to the
Union from a date in the past, up to and including the
present. But, the undisputed facts in the record
concerning these men are: (1) Their employment with the
Company is a "moonlighting" job. Each testified that,
during the day, they were employed at another bakery,
where the bakery and the Union had a contract requiring
the payment of dues to the Union on and after the 31st day
of employment. (2) It is undisputed that neither employee
signed a designation card for the Union at Mary Anne
Bakeries. (3) It is also undisputed that neither employee
voted in the election at Mary Anne Bakeries, although
both knew the date and time of election, and both knew
they were eligible to vote in the election. The General
Counsel, at the hearing, stated that such facts should not
be considered in determining majority status. He claimed
that once an employee paid dues to the Union, he had
designated the Union to represent him at all places, and
with all employers thereafter. I cannot accept the General
Counsel's argument although it finds some ostensible
support in Board cases. To the Trial Examiner, the
General Counsel's argument is as sensible as arguing that
Nixon should be declared the Governor of California
because, in the last election, there were over 100,000
5 Rule 43(b) of FRCP states:
SCOPE OF EXAMINATION AND
CROSS-EXAMINATION
A party may interrogate any unwilling or hostile witness by
leading questions . A party may call an adverse party or an
officer, director, or managing agent of a public or private
registered Republican voters who did not vote.
Furthermore, the payment of dues is compulsory under
the union bakery contract, so, in logic, I cannot agree that
a compulsory payment, a failure or refusal to sign a
designation card, and a failure to vote, after notice, can
add up to a voluntary designation of the Union as the
representative of these men.
For the reasons set forth above, I find that the Union
never possessed a majority in the appropriate unit.
Evidence
The General Counsel is restricted in his cross-
examination by the Trial Examiner. The rule of Escobedo
v. Illinois applied in this proceeding.
As should be remembered, the election herein which the
Union lost was held on July 14. On July 20, the Union filed
objections to conduct affecting the results of the election
and on August 30, the Regional Director, Region 27
(Denver, Colorado), set aside the election.
On August 31, the following day, the Union filed a first
amended charge against the employer which became the
basic charge for the complaint herein. This initiated the
Union's attempt to avail itself of the Board's decision in
Bernel Foam Products Co., Inc., 146 NLRB 1277, to
recapture the bargaining rights which it had lost in the
election of July 14. Upon the filing of this charge, the
Regional Office instituted its investigation, which as a
feature, used the "Skip Counsel Technique." The
Regional Director assigned Field Examiner Douglas R.
Hjelle to investigate the charge. On July 30, his
investigation took him to the shop of the Company, where
Hjelle and Allingham (without the assistance of his
counsel, Maley) had a lengthy conversation as to the
allegations in the Union's charge and the events leading up
to the election. This conversation was reduced to writing
by Hjelle and at his request, Allingham signed and swore
to it. It must be remembered at this point that among the
allegations of the charge, were allegations that Allingham
"threatened" employees and granted "wage increases
deliberately timed to discourage employees from forming
or joining a union." It must also be remembered that
Hjelle was the representative of the Board who had
conducted the conference on July 7, and had met, been
introduced to, and had done business with, Maley, as
counsel for Allingham.
At the hearing, the General Counsel called Allingham as
an adverse witness under rule 43(b) of the Federal Rules of
Civil Procedure for the district courts of the United
States.5
Under rule 43(b), the General Counsel proceeded to take
each wage increase and elicit from Allingham the
circumstances Allingham claimed to justify the giving of
the raise. This went quite smoothly for some time until
Allingham disagreed with the General Counsel as to why a
certain raise was given. At that point, the Trial Examiner,
for the first time, realized that the General Counsel was
conducting his examination from a statement given by
Allingham to Board Agent Hjelle on July 30. At that point,
the hearing was recessed.
corporation or of a partnership or association which is an
adverse party, and interrogate him by leading questions and
contradict and impeach him in all respects as if he had been
called by the adverse party, and the witness thus called may
be contradicted and impeached by or on behalf of the adverse
party also, and may be cross-examined by the adverse party
only upon the subject matter of his examination in chief.
MARY ANNE BAKERIES 213
Later, however, Allingham returned to the stand, and
when his examination returned to his statement, the
procedural curiosity of the Trial Examiner was aroused
and he decided to determine if the General Counsel's
agents "had ignored or bypassed the legal representative
of Allingham" to get the statement from Allingham, or if
Maley's absence at the time the statement was taken was
due to fault or choice of Allingham or his counsel.6
In his endeavor to ascertain the circumstances under
which Hjelle took the statement dated July 30 from
Allingham, the Trial Examiner first asked Allingham, if
prior to Hjelle taking the statement from him, Hjelle had
informed him that he had a right to counsel. The witness
misunderstood the Trial Examiner's question and replied
that on his first contact with Hjelle that he had asked
Hjelle if he "needed a lawyer" and Hjelle replied, "Well, I
think you should." This, obviously, referred to the time of
the Union's petition early in the history of this proceeding,
so the Trial Examiner asked the following question, and
received the following answer:
Q. No, no, I am going back to the date of July 30 on
the day that you talked to Mr. Hjelle, and he wrote out
a statement and you signed it, on that date and prior
to that statement did Mr. Hjelle inform you that you
had a right to be assisted by counsel?
A. No, I didn't even know this was for any record
at all.7
Shortly thereafter, counsel for the Company stated:
Mr. Maley: The ethics [which] the government
attorneys abide by is a different ethical standard than
we have in the State of Colorado. I don't know what
they have in the federal, but it is different than we
have. We don't take statements of clients without the
attorney being present.
The Trial Examiner, at this point, discussed his concern
with the constitutional rights of the Respondent in the light
of the decision of the Supreme Court of the United States
in Escobedo v. Illinois, 378 U.S. 478, and though the ruling
is not explicit in the transcript, counsel for the parties by
that discussion of the Trial Examiner understood that he
had ruled, precluding the General Counsel from further
cross-examination based on Allingham's statement, and
ruled that Allingham's statement was inadmissible in
evidence because it was taken by Board Agent Hjelle in
violation of Allingham's right "to the assistance of
counsel" under the Sixth Amendment of the Constitution
of the United States as defined by the United States
Supreme Court in Escobedo v. Illinois, supra.
At this point, the Trial Examiner deems it expedient to
explain his reasons for this ruling.
The Escobedo case redefined the constitutional rights of
those accused of a violation of Federal law; it redefined
that phrase contained in the Sixth Amendment "to the
assistance of counsel." The facts in the Escobedo case are
relatively brief, but graphically illustrate the principles of
the Court's ruling.
Escobedo was arrested in connection with the fatal
shooting of his brother-in-law. On his first arrest, shortly
after the shooting, he made no statement and was released
after his lawyer had obtained a writ of habeas corpus from
the State court. Some 11 days later, he was arrested again.
He made several requests to see his lawyer who was
present in the police building, but despite the efforts of
both, the accused was refused access to his counsel.
Escobedo was not advised by the police of his right to
remain silent and, after persistent questioning by the
police, made a damaging statement to an assistant State's
attorney, which statement was admitted in evidence in
Escobedo's trial.
Mr. Justice Goldberg delivered the opinion of the Court
in the Escobedo case. Early in his opinion, Justice
Goldberg stated the question presented by the case in the
following language:
The critical question in this case is whether, under
the circumstances, the refusal by the police to honor
petitioner's request to consult with his lawyer during
the course of an interrogation constitutes a denial of
"the Assistance of Counsel" in violation of the Sixth
Amendment to the Constitution as "made obligatory
upon the States by the Fourteenth Amendment,"
Gideon v. Wainwright, 372 U.S. 335, 342, and thereby
renders inadmissible in a state criminal trial any
incriminating statement elicited by the police during
the interrogation.
After discussing the holding of the Court in Massiah v.
United States, 377 U.S. 201, the opinion of Justice
Goldberg states the following, which in my judgment can
also be said of administrative proceedings:
We have also learned the companion lesson of
history that no system of criminal justice can, or
should, survive if it comes to depend for its continued
effectiveness on the citizens' abdication through
unawareness of their constitutional rights. No system
worth preserving should have to fear that if an
accused is permitted to consult with a lawyer, he will
become aware of, and exercise, these rights. If the
exercise of constitutional rights will thwart the
effectiveness of a system of law enforcement, then there
is something very wrong with that system. [Emphasis
supplied.]
We hold, therefore, that where, as here, the
investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular
suspect, the suspect has been taken into police
custody, the police carry out a process of
interrogations that lends itself to eliciting
incriminating statements, the suspect has requested
and been denied an opportunity to consult with his
lawyer, and the police have not effectively warned
him of his absolute constitutional right to remain
silent, the accused has been denied "the Assistance
of Counsel" in violation of the Sixth Amendment to
the Constitution as "made obligatory upon the States
by the Fourteenth Amendment," Gideon v.
Wainwright, 372 U.S., at 342, and that no statement
elicited by the police during the interrogation may be
used against him at a criminal trial.
At the hearing, the implications of the decision in the
Escobedo case, were in the mind of the Trial Examiner
because of the consequences in administrative
proceedings resulting from the United States Supreme
Court decision in Jencks v. United States, 353 U.S. 657,
which concerned the right of the accused to have full
access for the purposes of cross-examination to pretrial
statements given to the Government by Government
witnesses. Prior to the Jencks decision, the regulatory
agencies in administrative proceedings had uniformly
disregarded those rules of evidence and those
6 In recent years, the American Bar Association has 6(a) of the Administrative Procedure Act, hereafter set forth
complained of this conduct in the Regional Offices. See also
Congressman Walter's explanation as to the meaning of section
P 165 of the transcript of testimony
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitutional rights, usually applied to insure a fair
administration of justice in criminal cases. This disregard
by the Board and other agencies of these rules and rights
was based on the shibboleth that an adjudication under
section 7 of the Administrative Procedure Act was not a
criminal proceeding , ergo, the agencies had to give no
respect to those rights and rules. This contention and the
shibboleth were recently eliminated from administrative
law by decisions of the circuit courts.
First , in its decision in Communist Party v. Subversive
Activities Control Board, 254 F.2d 314, the Circuit Court of
Appeals for the District of Columbia applied the Jencks
rule in that administrative proceeding . Shortly thereafter,
the Board received a similar ruling from the Circuit Court
of Appeals for the Second Circuit in N.L.R.B. v. Adhesive
Products Corp., 258 F . 2d 403. These decisions appear to
settle the question as to whether regulatory agencies have
to respect constitutional rights and rules of evidence that
protect those accused of wrongdoing by those agencies.
The rationale of the circuit court cases seems to be that
an administrative adjudication pursuant to section 7 of the
Administrative Procedure Act is akin to a criminal
proceeding in that the proceeding involves an
investigation and prosecution of an accused by a
Federal investigator and prosecutor for an alleged
violation of public Federal law which may result in
an order issued against the accused by a Federal
regulatory agency, which is enforceable by a decree of a
U.S. Circuit Court of Appeals, in contempt , which may
involve both or either , fine or imprisonment . And, that
since the types of cases were so similar , the accused in
either criminal cases or administrative proceedings should
have the same rights to insure fairness of investigation and
prosecution.
Furthermore , in my judgment , the Administrative
Procedure Act and its legislative history require that
Respondents be afforded this protection.
Section 6 of the Administrative Procedure Act reads as
follows:
6(a) Appearance.-Any person compelled to
appear in person before any agency or representative
thereof shall be accorded the right to be
accompanied , represented , and advised by counsel
or, if permitted by the agency , by other qualified
representative . Every party shall be accorded the
right to appear in person or by or with counsel or other
duly qualified representative in any agency
proceeding. So far as the orderly conduct of public
business permits, any interested person may appear
before any agency or its responsible officers or
employees for the presentation , adjustment, or
determination of any issue , request , or controversy in
any proceeding (interlocutory , summary, or
otherwise ) or in connection with any agency function.
Every agency shall proceed with reasonable dispatch
to conclude any matter presented to it except that due
regard shall be had for the convenience and necessity
of the parties or their representatives . Nothing herein
shall be construed either to grant or to deny to any
person who is not a lawyer the right to appear for or
represent others before any agency or in any agency
proceeding.
In the House debate on the Administrative Procedure
Act, Congressman Walter , one of the sponsors of the bill,
8 Cong. Rec., Vol . 92, No . 98, p. 5757 ( Leg. Hist., p. 362).
8 (Leg . Hist ., p. 231).
gave this explanation of the scope of section 6(a):8
Section 6(a) deals with the right of parties to have
the advice or representation of counsel or, to the
extent that agencies lawfully permit it, representation
by nonlawyers . The representation of counsel
contemplated by the bill means full representation as
the term is understood in the courts of law. Counsel
may thus receive notices, decisions , and awards.
Agencies are not authorized in any manner to ignore
or bypass legal representatives that parties have
selected for themselves pursuant to this section. The
section also confers a statutory right for any
interested person to appear before any agency or its
responsible officers at any time for the presentation or
adjustment of any matter , and this is particularly
important as-among other things-authorizing the
settlement of cases in whole or part . It also requires
agencies to proceed with reasonable dispatch.
[Emphasis supplied.]
If there remained any doubt about the right of
Allingham to the assistance of counsel , Maley, at all stages
of this proceeding , it seems to be utterly disspelled by the
final section of the Administrative Procedure Act, section
12. This section reads as follows:
Sec. 12. Nothing in this Act shall be held to
diminish the constitutional rights of any person or to
limit or repeal additional requirements imposed by
statute or otherwise recognized by law. Except as
otherwise required by law , all requirements or
privileges relating to evidence or procedure shall
apply equally to agencies and persons. If any
provision of this Act or the application thereof is held
invalid, the remainder of this Act or other applications
of such provision shall not be affected.
After the quoted passage, section 12 deals with the time
at which various provisions of the Act shall take effect.
The Attorney General' s statement as to section 12 states
the following:"
Section 12 : The first sentence of section 12 is
intended simply to indicate that the act will be
interpreted as supplementing constitutional and legal
requirements imposed by existing law. [Emphasis
supplied.]
Congressman Walter ' s explanation of section 12 is as
follows: t °
The final section of the bill provides that nothing in
it is to diminish constitutional or other legal rights,
that requirements of evidence and procedure are to
apply equally to agencies and private persons ....
Lest the Board or the circuit court think that this
disregard of Allingham ' s constitutional right in this
investigation and prosecution, is an isolated happenstance
of the General Counsel 's staff, let me refer to one
additional fact.
The American Bar Association has a standing
committee named , "On Practice and Procedure under the
National Labor Relations Act." Its purpose is to confer
with the General Counsel and the Board, and by joint
effort to improve the administration of justice in cases
before our agency. In the American Bar Association,
Section of Labor Relations Law, 1965 Proceedings, Miami
Beach , Florida , published by the American Bar Center,
Chicago, Illinois, the report of the above-named committee
contains the following:
10 Cong . Rec. Vol . 92, No . 98, p. 5760 (Leg. Hist., p. 371).
MARY ANNE BAKERIES 215
II. IMPROVEMENT IN BOARD PRACTICES
AND PROCEDURES
A. Investigation Procedures
It was reported to the Committee that in the
investigation of unfair labor practice charges in
certain regions, despite formal notice of appearance
entered by respondent counsel and advice that
officers, representatives, agents or employees of
respondent would be made available for interview by
field examiners provided counsel was present at such
interview, the Region followed the practice of
conducting such interviews at the homes of the
interviewees without notice to counsel or providing
opportunity for his presence. The Committee opposed
the practice and requested the General Counsel of the
Board to desist from the practice. The General
Counsel assured the Committee where the desired
interviewees were produced promptly and there was
no attempted evasion or stalling tactic, respondent
counsel would be accorded the courtesy of notice of the
interviewees desired and the opportunity to be present,
but that no hard and fast policy could be laid down.
The Committee was not satisfied with these answers,
and intends to continue to be watchful with respect to
this problem. [Emphasis supplied.]
The labor bar is concerned with the General Counsel's
nationwide practice of bypassing Respondent's counsel on
the basis of professional ethics, but the concern of the
Trial Examiner is based in constitutional law because in
my judgment, the decision in Escobedo v. Illinois, supra,
requires that in administrative proceedings, a statement
taken from the Respondent, without the Board agent
affording to the Respondent his constitutional right to the
assistance of counsel may not be received in evidence,
or used in cross-examination, or if any part of such a
statement is used as evidence it may not be considered by
the Trial Examiner in making his decision. Pursuant to
that ruling, I have disregarded all testimony elicited from
Allingham based on his statement to Board Agent Hjelle,
dated July 30.
That the conduct of the Board's agent under discussion
may constitute a violation of the Canons of Ethics of the
American Bar Association is an entirely different question.
Mr. Justice Goldberg in the Escobedo decision, supra,
mentions the similar question involved in that case. The
canon of ethics involved in both the Escobedo case, and in
my judgment, this case, is the same. The canon reads as
follows:
Canon 9. A lawyer should not in any way
communicate upon the subject of controversy with a
party represented by counsel; much less should he
undertake to negotiate or compromise the matter with
him, but should only deal with his counsel.
Whether the conduct of the General Counsel under
scrutiny in this case and similar conduct in other "Skip
Counsel" cases constitute violations of the A.B.A. Canons
of Ethics are for that body to decide in appropriate
disciplinary proceedings directed to the General Counsel,
Washington, D.C.
The Trial Examiner wishes to note that his ruling on this
point is in no regard a criticism of the professional conduct
of the young men involved in the investigation or
prosecution of this case; they follow the orders of the
General Counsel. They are his subordinates, and I am sure
that the General Counsel, Mr. Ordman, will not try to
evade responsibility for the conduct here examined.
This question arises because of new decisions of the
Supreme Court, which in the Trial Examiner's opinion,
must bring about changes in the archaic, and now declared
to be unlawful, investigatory procedures of the General
Counsel's office, which antedate the Administrative
Procedure Act, the Taft Hartley Act, and the Supreme
Court cases cited. In the dynamic world of labor relations
there is constant change, and in the Trial Examiner's
judgment, the new Supreme Court cases must result in a
change in administrative investigations and prosecutions,
in which the constitutional rights of Respondents are
respected.
Further, it should be noted that the use of rule 43(b) is a
favorite tactic of the young advocates in the General
Counsel's office who prosecute labor cases. To be able to
force and require a person to testify against his own
interests is a formidable legal weapon. However, in my
judgment, when rule 43(b) is used to force an accused to
confirm or deny, line by line, a previously taken statement,
which has been taken in violation of the accused's right
"to the assistance of counsel," the procedure itself then
becomes a different and distinct violation of the accused's
protection under the Fifth Amendment, against being
forced or required to testify to facts which degrade or
incriminate him. As illustrated here, the hapless accused,
once he has signed the damaging statement, is forced
under 43(b) to confirm it, or have the statement entered in
evidence against him, not only for impeaching purposes,
but as evidence to establish his guilt. In my judgment, the
General Counsel has misused 43(b) for many years. The
numbers of Respondents who have been required under
43(b) to testify to degrading and incriminating facts is
legion. It may be argued that when a business man or
union official has been forced under oath by virtue of 43(b)
to confess a violation of the National Labor Relations Act,
he cannot be said to be "incriminated" or "degraded." But
to those who live in the world of labor relations, the
company or union, who has been "convicted of" or
"found guilty" of unfair labor practices, certainly stands
branded as a wrongdoer or malefactor in the business
community 11 The only authority by which the General
Counsel invokes rule 43(b) is found in Section 10(a) of the
Taft-Hartley Act.
When Congress passed the Taft-Hartley Act, it wished
to set some standards as to procedure and the
admissibility of evidence, a highly criticized deficiency of
the Wagner Act, so it included the following sentence in
Section 10(a) under the title, "Prevention of Unfair Labor
Practices":
Any such proceeding shall, so far as practicable, be
conducted in accordance with the rules of evidence
applicable in the district courts of the United States
under the rules of civil procedure for the district
courts of the United States, adopted by the Supreme
Court of the United States pursuant to the Act of
June 19, 1934. (U.S.C. Title 28, sees. 723-B, 723-C.)
[Emphasis supplied ]
Without more, and without regard to the italicized
phrases above, the General Counsel has used 43(b) in the
manner illustrated in this case.
"The Supreme Court in Massiah v US, 377 US 201, gives
the history and collates the cases pertinent to this question
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUDING FINDINGS Jones to get ahead of six garnishees against his pay. There
is no contrary evidence, so I find that the raise to Jones,
had no purpose which was unlawful.
Allingham testified that he gave a raise to LaPoint
during the pay period beginning July 6. This was a date
prior to the election, which was held July 14. Allingham
testified LaPoint was the only deliveryman on duty that
day, and LaPoint refused to deliver the Company's
products unless he was granted an immediate raise. There
is no other testimony on this incident , so I credit
Allingham. What was he required to do under the
circumstances , permit LaPoint to continue his one-man
strike, or meet LaPoint's demands? Allingham made the
commonsense decision, he capitulated and met LaPoint's
demands. In my judgment, he was not required to refuse
LaPoint's demand, suffer a work stoppage, which would
allow the Company's products to spoil, and the work of
other workers be rendered waste, to preserve the
"laboratory conditions" of the preelection period.
Lastly, we come to the raise given Herbert, Jackson, and
Smith. This raise was granted all three men when
Allingham talked to them on June 28. Allingham testified
that this raise was given as a requested night differential,
and as an equalizer with Sam Weddle , a new part-time
employee.
Allingham, in all of the above-quoted testimony, had the
bearing and the demeanor of an honest man. He testified
in a frank and forthright way. I would estimate that he is a
man in his late 60's, of grammar school education at most,
who has spent his life as a baker and now owns and
operates a neighborhood enterprise, using mostly "moon-
lighting" labor. The Trial Examiner judges him to be a
simple and honest soul, endeavoring to do his best in a
complex world, which, at times is beyond his
comprehension. As a witness, at moments, he appeared
slightly bewildered, e.g., that his help to Jones in the matter
of the six garnishees, could be considered an unfair labor
practice for which he was to be condemned by his
government.
Upon a consideration of all the evidence, I find that the
General Counsel has failed to establish, by a
preponderance of the credible evidence, any of the
allegations of the complaint. Therefore, it is ordered that
the complaint is hereby dismissed in its entirety.
It has been found previously that the General Counsel
has failed to prove by a preponderance of the evidence
that the Company, by Allingham, threatened, coerced, or
interrogated any employee.
The allegations of the complaint as to raises in pay given
for the purposes of influencing the vote of the employees
in the election appears to me to be unproven also.
To begin our analysis of the evidence on this point, it
should be noted that, according to the evidence,
knowledge of the Union's organizational campaign first
came to Allingham with the Union's petition on June 30. At
first glance, the fact that four raises involving six
employees were given, would appear to be highly
suspicious. Not explained, the fact of the raises could give
rise to the inference that the raises were for an unlawful
purpose. But, in each case, Allingham, in his testimony,
has offered an explanation, which in all cases is
corroborated by the employees to a varying extent, so the
ultimate question is-are the explanations credible?
Furthermore, there is no evidence offered by the General
Counsel that Allingham's explanations are untruths.
Therefore, the decision of this issue rests squarely on the
credibility of Allingham as to the explanations.
We will consider first the raise given to Harvey. Both
Allingham and Harvey testified that Harvey had been
promised a raise, if he undertook and completed a bakery-
sanitation course. Harvey fulfilled his part, and was given
a raise. It is true that Harvey was not given the raise
immediately upon completion of the course, but a few
weeks later. This brought the actual payment of the raise
close to the time that Allingham learned of the union
activity . But, does that situation warrant a finding that the
raise to Harvey was for the purpose of influencing his vote
in the election? I think not. Harvey's diploma is in
evidence. His testimony and Allingham's are in agreement
as to when the raise was promised, and for what purpose it
was given. There is no contrary evidence; only suspicion,
speculation, and conjecture. I find that the raise to Harvey
was not a violation of the Act.
The raise to Jones can be quickly resolved. It should be
noted that this raise occurred approximately 2 weeks after
the election. Allingham said the raise was given to enable