Mrs. Fay's Pies, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1963

145 N.L.R.B. 495 (N.L.R.B. 1963)

MRS. FAY'S PIES, INC. 495
to cease doing business with Island Dock Lumber, Inc., or with
any other person.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREIIOUSEMEN AND HELPERS
OF AMERICA, LOCAL 294,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Drislane Building, seventh floor, 60 Chapel Street, Albany, New
York, Telephone No. HO 3-5581, if they have any question concern-
ing this notice or compliance with its provisions.
Mrs. Fay's Pies, Inc. and Local 37 Bakery & Confectionery
Workers International Union of America . Case No. 21-CA-
4887. December 17, 1963
DECISION AND ORDER
On May 28, 1963, Trial Examiner Eugene K. Kennedy issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the General Counsel and the Respond-
ent filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed.' The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified herein.
1. We find, in agreement with the Trial Examiner, that the Re-
spondent failed to bargain in good faith in violation of Section
8(a) (5) and (1) of the Act. However, we do not limit our holding,
as did the Trial Examiner, to Respondent's: (1) failure to honor
its commitment to make retroactive wage increases; and (2) changes
1 We hereby correct the following inadvertent error of the Trial Examiner: (1) The
Respondent 's business is located in "Bell , California ," instead of "Los Angeles."
145 NLRB No. 48.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in wages and conditions of employment without prior notice to, or
consultation with, the Union. Rather, we find bad faith in the total
context 2 as evidencedby the above and by Respondent's dilatory bar-
gaining tactics and its rejection of the Union as the employees' bar-
gaining representative.
We reject the Trial Examiner's conclusion that a history of delays
in bargaining between the parties in previous years and Respondent's
submission of a contract offer during the current negotiations served
to negate an inference of bad faith arising from the Respondent's
delays. For, the submission of a proposed draft omitting an es-
sential term on which agreement had been reached is the very conduct
upon which the Trial Examiner based his finding of unfair labor prac-
tices. Nor do we find any evidence in the record to indicate that the
Union may have acquiesced in the bargaining delays in reliance upon
the Respondent's repeated assurances that it would make any agreed-
upon wage increases retrocative. Instead, the testimony shows that the
Union persistently sought further negotiations but that its requests
were rejected and fears allayed by the Respondent's promises of
retroactive wage increases. Respondent's subsequent retraction of
its promise, in the circumstances here, revealed that the delays in ar-
ranging negotiating meetings were deliberate and manifested its true
desire to frustrate the process of collective bargaining. It is thus ap-
parent that Respondent failed "to meet at reasonable times and confer
in good faith with respect to . . . the negotiation of an agreement." I
Furthermore, we view the Respondent's abrupt termination of the
contract, simultaneous withdrawal of its contract proposals, and
announcement to the employees that there was no more union contract
and that there was going to be a nonunion shop as a clear rejection of
the Union as the majority representative of its employees.
Accordingly, from all the foregoing, we are persuaded that the
totality of the Respondent's conduct evidences a desire to avoid reach-
ing an agreement and to undermine the Union, leading us to the con-
clusion that Respondent willfully 4 refused to bargain with the major-
ity representative of its employees, thereby violating Section 8(a) (5)
and (1) of the Act.
In addition, as we find hereinafter that the strike on May 9 was an
unfair labor practice strike, we reject the Respondent's contention that
the Union lost its majority and the Respondent was free of any bar-
2 In view of our determination herein, we find It unnecessary to pass upon the Trial
Examiner's 8(a) (5) finding based on the Respondent's termination of the contract with-
out complying with the notice requirements of Section 8(d).
8 Exchange Parts Company, 139 NLRB 710, 712, footnote 5.
* we specifically reject the Trial Examiner's characterization, in footnote 1 in the
Recommended Order of the Intermediate Report, of Redpondent's unlawful conduct as due
to inadvertent error.
MRS. FAY'S PIES, INC. 497
gaining obligation and we affirm the Trial Examiner's finding that Re-
spondent further violated Section 8 (a) (5) and (1) by changing wages
and conditions of employment during the strike without prior notice
to, or consultation with, the Union.
2. Like the Trial Examiner, but for the reasons hereinafter set forth,
we find that there is no merit in the Respondent's contention that (1)
the strike was economic in nature; and (2) the strike was unlawful
because no 8 (d) (3) notice was given by the Union before striking.
The Respondent correctly asserts that the strike vote was taken and
the strike occurred because of the wage dispute. It then argues that
because wages are an economic matter, the strike was economic in
nature. However, it is apparent that the walkout on May 9 was trig-
gered by the Respondent's conduct in connection with the wage dispute,
i.e., its retraction of its commitment to make retroactive wage increases,
its abrupt cancellation of the contract and withdrawal of proposals,
and its rejection of the Union. It is thus obvious that the economic
issues relied on by the Respondent to support its position that the
strike was economic are the very matters upon which the findings of
an unlawful refusal to bargain are based. In these circumstances,
where the subject of the unfair labor practice and of the economic
motivations is one sand the same thing, we find that it is the unfair labor
practice which in fact causes the strike. As this is the case here, the
strike on May 9 wasan unfair labor practice strike.
In Mastro Plastics,5 the Supreme Court stated that "employees have
a right to strike against unfair labor practices designed to oust the
employees' bargaining representative" and that Section 8(d) is in-
applicable in such circumstances, for it "would deprive them of their
most effective weapon at a time when their need for it is obvious." 6
The Court's reasoning is particularly applicable in the instant case
where the Union demonstrated its unwillingness to strike but took
that action only after its further efforts to negotiate were stifled by
the Respondent's rejection of the Union as the majority representative.
We therefore find that this case falls under the rule established in
Mastro Plastics, and, accordingly, we hold that the notice require-
ments and loss-of-status provision of Section 8(d) are inapplicable
to a strike like that herein which protests an unfair labor practice over
an economic matter.?
3. We adopt the Trial Examiner's recommendation that all the
striking employees, including Mary Rullo and Josephine Farinella
5 Mastro Plastics Corp, et al . v. N.L R.B., 350 U.S. 270.
°Id at page 286.
7 This issue was posed but reserved by the Board in Local 156 Unated Packinghouse
Workers of America, AFL-CIO, et al. ( Du Quosn Packing Company ), 117 NLRB 670, 672,
footnote 2.
734-070-64-vol. 145-33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who made common cause with the strikers, are entitled to reinstate-
ment upon application, but we note that he failed to provide the usual
remedy. We shall therefore modify the section of the Intermediate
Report entitled "The Remedy" to provide that the Respondent shall
make the above-specified employees whole for any loss of pay they may
have suffered by reason of Respondent's- refusal, if any, to reinstate
them, by the payment to each of them a sum of money equal to that
which he or she normally would have earned as wages from a date 5
days after the date on which he or she applies for reinstatement to the
date of Respondent's offer of reinstatement, less net earnings, if any,
during said period, with interest thereon at 6 percent per annum in
accordance with the Board's usual practice."
We shall further amend the Recommended Order in agreement with
the General Counsel's request therefor, by providing for the mainte-
nance of substantive features of the Respondent's relations with its
employees now in effect until a new agreement is reached by the parties.
In view of the nature of the Respondent's unfair labor practices,
which manifest a desire to thwart the purposes of the Act, we find
merit in the General Counsel's exception to the narrow scope of the
Recommended Order and we shall issue a broad cease and desist order
in this case.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that -Respondent, Mrs. Fay's Pies,
Inc., Bell, California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively in good faith with Local 37
Bakery & Confectionery Workers International Union of America,
as the exclusive representative of its employees in the appropriate
unit described below : All production workers and janitors, excluding
maintenance employees, office clerical employees, truckdrivers, profes-
sional employees, guards, watchmen, and supervisors as defined in the
Act.
(b) Engaging in dilatory bargaining, failing to honor commit-
ments, or instituting any unilateral changes in working conditions,
provided, however, that nothing herein shall require Respondent to
vary or abandon any wage, hour, or other substantive feature of its
relations with its employees established by Respondent, except as
otherwise specifically provided in this Order.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to join
8 F. W. Woolworth Company, 901NLRB 289; Isis Plumbing & Heating Co., 138 NLRB 716.
MRS. FAY'S PIES, INC. 499
or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing and to engage in other concerted
activities for the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities, except to
the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Upon request, bargain collectively with Local 37 Bakery &
Confectionery Workers International Union of America as the exclu-
sive representative of the employees in the appropriate unit with re-
spect to rates of pay, wages, hours of employment, or other conditions
of employment, and if an understanding is reached, embody such
understanding in a signed agreement.
(b) Upon application, offer immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, to all the employees
who went on strike on or about May 9, 1962, including Mary Rullo
and Josephine Farinella, who have not already been reinstated to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dismissing if necessary
any persons hired by Respondent on or after May 9, 1962.
(c) Make, whole the said employees, in the manner set forth in the
section of the Intermediate Report entitled "The Remedy" as modified
herein.
(d) Post at its plant in Bell, California, copies of the attached no-
tice marked "Appendix."' Copies of said notice, to be furnished by the
Regional Director for the Twenty-first Region, Los Angeles, Cali-
fornia, shall, after being duly signed by a representative of Re-
spondent, be posted by it immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such
notices are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
9In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision,and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with Local 37
Bakery & Confectionery Workers International Union of Amer-
ica as the exclusive representative of the employees in the bar-
gaining unit described below with respect to rates of pay, wages,
hours of employment, or other conditions of employment, and if
an understanding is reached, embody it in a signed contract. The
bargaining unit is:
All production workers and janitors, excluding mainte-
nance employees, office clerical employees, truckdrivers, pro-
fessional employees, guards, watchmen, and supervisors as
defined in the Act.
WE WILL NOT engage in dilatory bargaining, fail to honor our
commitments, or institute any unilateral changes in working con-
ditions, provided, however, we are not required to vary or abandon
any wage, hour, or other substantive feature of our relations with
our employees, except as otherwise specifically provided in this
notice.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to join or assist labor organizations, to bargain
collectively through representatives of their own choosing, to en-
gage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from
any and all such activities.
AVE WILL, upon application, offer immediate and full reinstate-
ment to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, to
all our employees who went on strike on or about May 9, 1962, in-
cluding Mary Rullo and Josephine Farinella, dismissing if neces-
sary any persons hired by us on or after May 9, 1962, and will make
such applicants whole for any loss of pay suffered by reason of our
refusal, if any, to reinstate them within 5 days after application.
Mrs. FAY'S PIES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
NoTE.-We will notify the above-designated employees if presently
serving in the Armed Forces of the United'States of their right to full
MRS. FAY'S PIES, INC. 501
reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 849 South Broadway, Los Angeles 14, California, Telephone
No. Richmond 9-4711, Extension 1031, if they have any questions con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Local 37 Bakery & Confectionery Workers International Union of America
(herein called the Union) filed unfair labor practice charges on July 12, 1962,
against Mrs. Fay's Pies, Inc. (herein called Respondent ). The General Counsel
of the National Labor Relations Board (herein called General Counsel and Board
respectively) thereafter issued a complaint on November 8, 1962, and Respondent
filed its answer on November 19, 1962. The hearing in this matter was held before
Trial Examiner Eugene K. Kennedy in Los Angeles, California, on February 6 and 7,
1963.
The issues presented include questions as to whether Respondent violated Section
8(a)(5) and 8(a)(1) of the Act by its conduct in bargaining; by its failure to
comply with the requirements of Section 8(d) of the Act and also by its conduct
after it terminated the collective bargaining agreement . The complaint alleges that
the Union 's strike herein was an unfair labor practice strike. Respondent relies on
the Union 's failure to comply with notice requirements of Section 8(d) to absolve
it from alleged unfair labor practices after the strike, including unilateral changes in
working conditions and in refusing to recognize the Union as a representative of the
majority of Respondent's employees . Respondent in its answer to the complaint
also denies commission of unfair labor practices before the strike and denies that the
strike by the Union was caused by its unfair labor practices, or that it violated
Section 8(d) by terminating the contract without giving the required notices.
Upon consideration of the entire record, including my observation of the witnesses,
and after consideration of briefs filed by Respondent and the General Counsel, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
The pleadings establish, and it is found, that Respondent is a California cor-
poration with its principal office and place of business in Los Angeles, California,
where it is now, and at all times material has been engaged in the manufacture and
wholesale sale and distribution of pies and bakery goods.
During the calendar year 1961 , Respondent , in the course of its business, pur-
chased and received goods valued in excess of $50,000 directly from firms outside
the State of- California, and sold and shipped products valued in excess of $50,000
directly to points outside the State of California. Respondent is now, and at all
times material has been , an employer engaged in commerce and in a business
affecting commerce within the meaning of the Act.
Local 37 Bakery & Confectionery Workers International Union of America is a
labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The facts
Inasmuch as the Respondent did not present evidence, the facts available for
resolution of the issues presented are undisputed. However, the parties draw differ-
ent inferences and conclusions from some of the facts presented by this record.
Respondent and the Union had a collective-bargaining history antedating the
events in dispute here. Respondent had executed at least three collective-bargaining
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreements with the Union prior to this dispute. The most recent was executed on
April 4, 1961. However, it was effective from May 2, 1960, until December 2, 1961.
This agreement contained the following provision:
Section 23
This contract is effective from May 2, 1960, until December 2, 1961, and
thereafter from year to year, unless at least sixty (60) days prior to such
expiration date, notice is given, in writing, by either party, of an intention to
terminate or modify such agreement.
In the event notice of termination is given, such termination shall be effective
as of such expiration date. In the event notice of modification is given, the
contract shall continue in effect until such modification has been agreed upon;
provided, however, that in the event no agreement in modification has been
reached within the period of the sixty (60) day notice and by December 2,
1961 either party may thereafter terminate such agreement by giving a twenty-
four (24) hour notice.
The Union until the strike on May 9, 1962, was the representative of a majority of
the employees in the following described unit:
All production workers and janitors employed by Mrs. Fay's Pies, Inc., at its
Los Angeles, California, plant, excluding maintenance employees, office clerical
employees, truckdrivers, professional employees, guards, watchmen and super-
visors as defined in the Act, constitute a unit appropriate for collective
bargaining.
The question of the Union majority status after the strike hinges on the question
as to whether the employees lost their employee status as a result of their not comply-
ing with the provisions of Section 8(d). This question will be considered below.
On September 26, 1961, the Union in the following letter advised Respondent that
it was opening the collective-bargaining agreement for the purpose of modification
and that the Union would appreciate an early reply setting a date to meet and
commence negotiations.
Local No 37
BAKERY AND CONFECTIONERY WORKERS
International Union of America
1040 SouTm GRAND AvE., Los ANGELES 15, CALIF.,
September 26, 1961.
Mr. FAY BROWN,
Mrs. Fay's Pies, Inc.
4371-4375 E. Gage Avenue,
Bell, California.
DEAR SIR: In compliance with Section XXIII of the Current Collective Bar-
gaining Agreement, please accept this letter as Bakers Union, Local No. 37 notice
of their desire to open the Collective Bargaining Agreement for the purpose of
modification.
We would appreciate an early reply setting a date to meet and commence
negotiations.
I remain,
Sincerely yours,
ALBERT C. MEYER,
Financial Secretary, Bakers Union, Local No. 37.
ACM: cvr
cc: Mr. E. J. Gund, - '
711 South Vermont Avenue,
Los Angeles, California.
Andrew V. Myrup,
Director of Research.
About 2 or 3 weeks later Union President and Representative Bryan called on
E. J. Gund who was Respondent's representative for the purposes of carrying on
labor negotiations. The purpose of Bryan's telephone call was an attempt to arrange
a negotiating meeting. After some delay and further calls by Bryan, a meeting was
arranged for December 14, 1961. Bryan estimated that he called Gund four to
six times between December 14 and September 26, 1962, and that Gund did not
call him at any time during that period. Bryan made it clear, during the times he
had called Gund, that the Union was available at any date for negotiations.
MRS. FAY'S PIES, INC. 503
At the December 14, 1961 meeting, the Union presented its proposals verbally to
the Company. The Union's proposals included an increase in health and welfare,
increases in salary, Sunday premium, and a sick leave clause. The Union did not
specifically propose retroactive pay.
However, the testimony of Union President Bryan provides a basis for an inference
that the parties were contemplating retroactive pay. Bryan, in relating the content of
a conversation with Gund when he was attempting to set up the first meeting, testified
as follows:
A. More or less repetitious of the first one, with the exception that I did note
to him as it got closer to the December 2nd date, that he had criticized us in a
previous negotiations with another company for letting it-he felt it was our fault
that it had run past the expiration and which made it necessary to pay retroactive
pay, and I pointed out to him that we didn't want to be in that position this
time, and we were available to negotiate, and that all they had to do was to give us
the date, and we would be available.
On January 10, 1963, the Union sent written versions of the proposals that it made
at the December 14 meeting to Gund.
Subsequent to the December 14 meeting, Bryan called Gund attempting to arrange
another meeting. Gund informed him that he had not been able to arrange a time
when Fay Brown, the Respondent's owner and manager, would be available for
further negotiations . In December 1961, in the course of trying to arrange a
second meeting, Bryan told Gund that he would be away attending a convention
from January 18 to February 1, 1962, and would like to get the contract settled prior
to that time. Gund again replied that he had not been able to arrange for Brown's
availability for negotiations, but he would try again. Bryan reminded him that they
were past the December 2 expiration date and there was the question of retroactive
pay. Gund replied to Bryan, "Don't you worry about the retroactive pay. What-
ever is negotiated shall be retroactive to when we do negotiate and settle the contract.
It will be retroactive and to the expiration of the contract on December 2, 1961."
After Bryan returned from the convention on or about January 30, 1962, he called
Gund approximately 6 times Bryan told Gund that the contract had expired and
he was under pressure from the employees and that in May the major contracts were
expiring, and that it was necessary to get the contract with Respondent settled,
because of these factors. Gund, in this conversation, as well as later ones, assured
Bryan that whatever was negotiated would be retroactive to the expiration of the
contract and also that he would continue his attempts to arrange a meeting with
Brown present.
The next meeting was held on April 11, 1962, which Bryan did not attend. Bryan
recalled that retroactive pay was mentioned each time he telephoned Gund for a
meeting, because he was aware of the pressure that he was receiving from the Re-
spondent's employees, when he visited the plant and that they were inquiring from
him about the progress of the contract negotiations, and that he reassured them that
any wage increase would be retroactive. On or about April 16, 1962, the third
negotiating meeting occurred at which Respondent submitted its proposals to the
Union. Subsequently, these proposals were incorporated in a letter which Gund
sent to Bryan on April 30:
DEAR MR. BRYAN: As per our verbal agreement in the recent negotiations
between Bakers Union Local 37 and my client, Mr. Fay Brown of Mrs. Fay's
Pies, Inc., please be advised that our understanding of this agreement is as
follows:
1. It is agreed to increase the premiums for employees' Health and Wel-
fare program from $11.58 to $15.44 for each eligible employee.
2. The contract is to be a two-year agreement, commencing on the first
Sunday in May 1962, and expiring on the first Saturday in May 1964.
3. Language to be developed to provide a sick leave plan, to commence
as of the first Sunday in May, 1963, permitting twelve (12) one-half days
(lh) per year, non-accumulative.
4. Five cents (50) wage increase in all contract classifications, effective
the first Sunday in. May, 1962, and another five cents (5¢) wage increase in
all contract classifications as of the first Sunday in May, 1963.
5. It is agreed to adopt proposed language for the Subscriber's Agreement
to the Bakery and Confectionery Union and Industry International Welfare
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fund and the Bakery and Confectionery Union and Industry National
Pension Fund.
It will be appreciated if you will proceed to draw the new contract based on
the items outlined above. Once again permit me to express my appreciation
to you and the representatives of Local 37 for the fair and above-board manner
of your contract negotiations.
Very truly yours,
EJG: gh
cc: Mr. Fay Brown
E. J. GUND AND ASSOCIATES, INC.,
(S) E J Gund
EDWARD J. GUND,
Labor Management Consultant
Union Representative Bryan submitted Respondent 's proposal to the employees at
a meeting on May 1, 1962, at which meeting he told the employees that he could
not recommend it because it did not contain retroactive pay. The employees un-
animously rejected Respondent 's proposal and a majority voted to go on strike.
There was no date set for the strike and the membership asked Bryan to again contact
Gund to attempt further negotiations . Bryan did so, and Gund said he would contact
Brown and then call him back. Gund did call Bryan back and informed him that
he had contacted Brown-"and Mr. Brown had said, `If the people want to walk, let
them walk'."
On May 4, 1962, on behalf of Respondent , Gund addressed the following letter to
Bryan:
[By Messenger Sen>>ce]
Mr. ALLAN D. BRYAN, President,
Bakery and Confectionery Workers
International Union of America,
Local No. 37,
1040 South Grand Avenue,
Los Angeles 15, California.
MAY 4, 1962.
DEAR MR. BRYAN: At the request of my client, Mr. Fay Brown of Fay's Pies,
Inc., I hereby wish to give the required twenty-four (24) hours notice as
stated in Section 23 of the contract by and between Fay's Pie, Inc., and Local 37
of the Bakery and Confectionery Workers International Union of America,
cancelling the said contract between the parties.
At this time we also wish to advise you that we are withdrawing any and all
counter proposals which were made during the recent negotiations.
Very truly yours,
E. J. GUND & ASSOCIATES, INC.,
(S) E I Gund,
EDWARD J. GUND,
Labor Consultant.
EJG:pvg
cc: Fay Brown
On approximately May 5, 1962 , Fay Brown called a meeting of the employees
and informed them that the contract with the Union was being terminated and that
he would appreciate it if the employees would stay on.
According to witness Singleton, Brown said that there was going to be a non-
union shop . Another employee , a Mrs. Rullo, testified that Brown explained to
the employees that he could not offer any more and that he had no more union
contract , and that if the employees wished to stay on , they were welcome, and that
whether they went on a strike or not, he didn't intend to shut down.
In the context of their entire testimony , the sense of the statements attributed to
Fay Brown , by Singleton and Rullo, seems to be that Brown was announcing to the
employees that the contract had expired , and that he intended to continue to operate
his plant, and that the employees were welcome to continue working.
On May 8, 1962, Bryan called Gund and told him "that Brown had laid off
six people out of seniority ." Bryan also testified that, "Evidently Gund got in touch
with Brown , because the company sent telegrams to the six people telling them to
report on May 9."
MRS. FAY'S PIES, INC. 505
The Union went on strike on May 9 and approximately 24 out of a total of 28
employees participated in this strike and in picketing Respondent's plant The
picket sign legend read: "Fay's Pies Employees [are] on strike for a new contract."
On May 9, 1962, the Union also filed unfair labor practice charges which, in
substance, complained of Respondent's discrimination against six employees, includ-
ing Josephine Rullo and Mary Farinella. These charges were dismissed on June 14,
1962. Thereafter the Union filed unfair labor practice charges, complaining of
violations of Section 8(a)(5) and 8(a)(1). These charges filed on July 14, 1962,
are the basis for the present proceeding.
After the strike commenced, Respondent eliminated benefits previously enjoyed
by the employees, such as being paid for dressing time, night work differential, and
other methods of computing payment for hours worked less advantageous to em-
ployees However, Respondent did take action in increasing the hourly wage rate.
Six employees who crossed the picket line were all granted a wage increase on
May 11, 1962. Four of them received a wage increase amounting to approximately
20 cents an hour; one employee was converted to a salary employee, and one em-
ployee did not receive any raise The replacements hired by Respondent received
either the amounts specified by the contract, or amounts ranging from 2 to 12 cents
per hour over and above that called for by the contract. This action was taken
without consultation with the Union and amounted to granting some wage increases
and withdrawing other previously enjoyed benefits.
The Rullo and Farinella Incident
Employees Rullo and Farinella, along with four others, were given notices ending
their employment on May 7, 1962. They received telegrams on the evening of
May 8 about 11:30 p in., which were sent about 9:30 p.m., requesting they return
to work on the morning of May 9, at 10 a.m. They both did so, arriving early
approximately at 9 a.m. in their white working uniforms. When they arrived, there
was a picket line which they did not pass. The strike and picketing had commenced
before they arrived at work that morning of May 9. Both Rullo and Farinella were
outside of Respondent's premises in the vicinity of the picket line where they could
see Fay Brown. He was also looking in their direction, and it is a reasonable infer-
ence, and so found, that Brown saw employees Rullo and Farinella on the picket line
in their working clothes on the morning of May 9, 1962. The significance of this
will be considered further below, with relation to the question of employee status
of Rullo and Farinella as of May 9, 1962.
On May 24, 1962, Respondent filed an unfair labor practice charge, alleging that
the Union did not give proper notice to the Federal Mediation and Conciliation
Service and the State mediation agency, as required by Section 8(d)(3); and as a
consequence, violated Section 8(b)(3) of the Act. The Regional Director of the
Twenty-first Region dismissed this charge, and an appeal from such dismissal is now
pending before the Office of Appeals of the General Counsel of the National Labor
Relations Board. The charge was dismissed by the Regional Director on the basis
that Respondent had terminated the collective-bargaining agreement, and since this
agreement was not in effect when the Union went on strike, the provisions of
Section 8(d) requiring notice were not applicable to the Union's strike action.
Since June 5, 1962, Alvin Slaight, counsel for the Respondent in the present
proceeding, has represented Respondent with respect to its relations with the Union.
For a period of about 3 weeks after June 5, Slaight representing Respondent, held
some meetings with the union representatives, looking toward a settlement of the
strike. The negotiations ended with an impasse over the Union's insistence that any
settlement must include the reinstatement of employees represented by a Teamsters
local. Union President Bryan, however, did leave a message for Respondent's
counsel, at a later date, to the effect that the Teamsters issue was abandoned, but
no further meetings were held, or, in fact, there was no evidence that either party
initiated an attempt to have any further meetings between June 26, 1962, and the
date of the hearing. It was Respondent's theory that the Union lost its majority
by its failure to comply with the provisions of Section 8(d)(3) before going on
strike. Respondent proposed that the Board hold an election to determine the
question of representation among Respondent's employees. The Union refused to
consent to such an election, and the Respondent filed the petition for an election
on June 28, 1962. It is assumed that the election has not been held due to the
pendency of the questions concerning unfair labor practices.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discussion and concluding findings
1. Respondent's position
in making a resolution as to the legal consequences flowing from the foregoing
recital of facts, circumstances and arguments in support of Respondent's position
will be first considered.
Section 8(d)(3) of the Act plays an important part in Respondent's theory of
the case. Since there is an interrelationship between the provisions of Section
8 (d) it is set forth here in its entirety.
For the purposes of this section, to bargain collectively is the performance
of the mutual obligation of the employer and the representative of the em-
ployees to meet at reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employment, or the negotia-
tion of an agreement, or any question arising thereunder, and the execution of
a written contract incorporating any agreement reached if requested by either
party, but such obligation does not compel either party to agree to a proposal
or require the making of a concession- Provided, That, where there is in effect
a collective-bargaining contract covering employees in an industry affecting
commerce, the duty to bargain collectively shall also mean that no party
to such contract shall terminate or modify such contract, unless the party
desiring such termination or modification-
(1) serves a written notice upon the other party to the contract of the
proposed termination or modification sixty days prior to the expiration
date thereof, or in the event such contract contains no expiration date,
sixty days prior to the time it is proposed to make such termination or
modification;
(2) offers to meet and confer with the other party for the purpose of
negotiating a new contract or a contract containing the proposed
modifications;
(3) notifies the Federal Mediation and Conciliation Service within thirty
days after such notice of the existence of a dispute, and simultaneously
therewith notifies any State or Territorial agency established to mediate and
conciliate disputes within the State or Territory where the dispute occurred,
provided no agreement has been reached by that time; and
(4) continues in full force and effect, without resorting to strike or lock-
out, all the terms and conditions of the existing contract for a period of
sixty days after such notice is given or until the expiration date of such
contract, whichever occurs later:
The duties imposed upon employers, employees, and labor organizations by
paragraphs (2), (3), and (4) shall become inapplicable upon an intervening
certification of the Board, under which the labor organization or individual,
which is a party to the contract, has been superseded as or ceased to be the
representative of the employees subject to the provisions of section 9(a), and
the duties so imposed shall not be construed as requiring either party to discuss
or agree to any modification of the terms and conditions contained in a con-
tract for a fixed period, if such modification is to become effective before such
terms and conditions can be reopened under the provisions of the contract.
Any employee who engages in a strike within the sixty-day period specified in
this subsection shall lose his status as an employee of the employer engaged in
the particular labor dispute, for the purposes of sections 8, 9, and 10 of this
Act, as amended, but such loss of status for such employee shall terminate if
and when he is reemployed by such employer.
After serving notice of its proposal to modify the agreement on September 26,
1961, the Union failed to serve notice at any time on the Federal and State media-
tion agencies that an agreement had not been reached. It is Respondents conten-
tion that the failure to serve this notice followed by the strike resulted in loss of
employee status by those individuals participating in the strike. International Union
of Operating Engineers v. Dahlem Construction Co., 193 F. 2d 470 (C A. 6); Boeing
Airplane Company v. N.L.R.B., 174 F. 2d 968 (C.A.D.C.). If this proposition is
accepted, the Union would have lost its majority on May 9, 1962, when approxi-
matelv 24 of the 28 employees joined the strike. Hence, Respondent's institution
of unilateral changes in working conditions and refusing to bargain with the Union
would be justified if the Union no longer represented a majority of the employees.
MRS. FAY'S PIES, INC. 507
By serving the notice of modification the Union prevented the automatic renewal
of the agreement for another year after December 2 , 1961 . After voting to strike
on May 1, 1962 , the Union 's representative notified Respondent of the strike vote.
Respondent thereupon after refusing to negotiate further with the Union served
notice that it was canceling the agreement on 24 hours ' notice. At this time Re-
spondent also held a meeting with its employees advising them that it was terminat-
ing its contract with the Union and not operating under a union contract and ap-
prised them that they would be welcome to continue working under those conditions.
It must be conceded the failure of the Union to give notice to the mediation serv-
ices operated at least in part to prevent the assistance of the mediation services at
the bargaining table. As a general proposition the failure to bring in the mediation
services would enhance the probability of a strike , and therefore , Respondent con-
tends that the sanctions with respect to the loss of employees ' status as set forth
in Section 8(d) are here properly applied to the employees of Respondent who went
on strike on May 9, 1962.
Accepting the general proposition that if the Union had notified mediation serv-
ices in accordance with the provisions of Section 8(d)(3) a strike might have been
avoided, the facts of this case do not bring into play the sanction of loss of em-
ployee status . The applicability of Section 8(d) is limited to cases "where there
is in effect a collective-bargaining agreement ." Thus, where there is no collective-
bargaining agreement in effect there is no applicability of Section 8(d) to em-
ployees who engage in a strike without giving the required notices
Whether or not the Union committed unfair labor practices is not strictly in
issue here . The question of the effects of the Union's noncompliance with the
notice provisions of Section 8(d)(3) is not reached, inasmuch as Respondent ter-
minated the agreement, thereby permitting the employees to go on strike with-
out loss of employee status.
In construing the notice requirements of Section 8(d) the view has been accepted
that a collective -bargaining agreement must be in effect in order for Section 8(d)
to have application with respect to the sanction imposing loss of employee status.
International Union Operating Engineers Local No 181 v. Dahlem Construction Co.,
supra; Boeing Airplane Co v N L.R.B , supra.
Respondent cites Local 156 United Packinghouse Workers of America, AFL-CIO,
et al. (Duquoin Packing Company), 117 NLRB 670 and Local 3 United Packing-
house Workers of America ( Wilson & Co., Inc.) v. N.L.R . B., 210 F. 2d 325
(C.A. 8) as precedent for its claim that here the strikers lost their status as em-
ployees and the Union lost its majority when the strike occurred on May 9, 1962,
because of the failure of the Union to notify the mediation services . These cases
involve situations where there was a defective notice action by the Union as here,
but when the strike occurred , a collective-bargaining agreement was in effect.
Here the distinguishing and determining factor is that before the strike occurred,
Respondent terminated the agreement thus making the Union 's strike action not
subject to the notice provisions of Section 8(d)(3) and removing from the reach
of Section 8(d) the sanction of loss of employee status by those individuals going
on strike.
2. Respondent 's alleged unfair labor practices
Since it has been found that Section 8(d) does not operate in circumstances such
as here present to cause the loss of employee status as a result of the strike. the
question of Respondent 's alleged unfair labor practices will be considered inde-
pendently of whether the Union complied with the requirements of Section 8(d) (3).
The General Counsel contends Respondent failed to bargain in good faith by its
conduct prior to the strike and also subsequent to the strike by terminating the
agreement without complying with Section 8(d)(3) and by its unilateral changes
in working conditions
Prior to the strike the General Counsel attributes unlawful conduct to Respondent
consisting of dilatory tactics in bargaining and reneging on a commitment made in
the course of telephone conversations concerning the arrangement of negotiating
meetings.
Dilatory conduct of Respondent in connection with attendance of negotiating
meetings is evident in that it required several telephone calls by the union repre-
sentative to arrange a meeting . However , the record reflects the previous collective-
bargaining agreement was retroactive for several months indicating the same parties
had not been expeditious in the past in concluding an agreement . Moreover, al-
though the first negotiating meeting was held on December 14, 1961 , the Union
did not submit any specific written proposals to Respondent until January 10, 1962.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter the Union met with similar delays in attempting to arrange further
negotiations. However, there were two negotiation meetings held in April of 1962
which eventuated in Respondent making a proposal to the Union to settle their
dispute. Except for the lack of a retroactive wage provision Respondent's proposed
settlement was not unacceptable to Union Representative Bryan. In any event,
Respondent's proposed settlement is regarded as negating an inference that Re-
spondent was engaging in dilatory tactics because it did not intend to reach any
agreement with the Union and thus was engaging in bad-faith bargaining. Because
in the past the bargaining practices of the parties were at least equally unexpeditious
and because here the Union took in excess of 3 months to submit definite written
proposals after serving its notice to modify and to some extent was responsible
for the delay in the meetings in 1962, it is found that the evidence falls short of
establishing that Respondent bargained in bad faith because of its delaying tactics.
However, it is found that the record does establish bad-faith bargaining on the part
of Respondent in another respect. Respondent's Representative Gund, commencing
early in February 1962 on the occasion Union Representative Bryan was attempting
to arrange meetings, stated unequivocally to Bryan that any pay increase would
be retroactive to December 2, 1961. Apparently Gund's commitment was over-
ruled and the retroactive pay was not included in Respondent's proposal to the
Union on April 16, 1962. There is no indication that at any time Respondent
honored its commitment to make its proposed wage increase retroactive to Decem-
ber 2, 1961. It is an elementary requisite of good-faith bargaining that a party
keep its commitment on matters of significance. Here a retroactive wage increase
was a significant matter -to which Respondent had made a commitment.
Respondent claims that since it was not obligated to make any wage offer at all,
it should not be penalized because it did make such an offer. This argument al-
though not totally lacking in merit does not fully meet the issue here. Gund's re-
peated assurance to Bryan of Respondent's willingness to make any pay increase
retroactive in the context of their conversations was reasonably to be regarded as
something in the nature of a quid pro quo for Bryan's acquiescence in the delay of
Respondent in arranging negotiating meetings. On the strength of this, Bryan
reassured Respondent's employees that when a contract was negotiated, any wage
increase would be retroactive Consequently, when Respondent did not include in
its settlement offer made in April 1962 retroactivity with respect to wages, it failed
to honor its commitment which was known to the union representative and to its
employees. It is found that such a breach of a commitment is a violation of the
statutory obligation to bargain in good faith Duro Fittings Company, 130 NLRB
653, 659; Standard Generator Service Company of Missouri, Inc., 90 NLRB 790, 800.
After May 9, 1962 Respondent instituted changes in working conditions without
consultation with the Union. Such action where the Union represents a majority of
the employees is a breach of an employer's bargaining obligation and a violation of
Section 8(a) (5). N.L.R.B. v. Katz, 369 U.S. 736.
Respondent terminated the collective bargaining agreement without complying
with the notice provisions of Section 8(d)(3). The fact that the contract was on
a day-to-day basis does not eliminate the statutory notice requirements of Section
8(d). N.L.R.B. v. Boeing Airplane Company, supra. The wording of 8(d) makes
it clear that it is applicable to employers as well as unions. The pertinent portion
of this section reads, ". . . no party to such contract shall terminate or modify
such contract. Consequently, it would follow here that Respondent's failure
to give the notice provisions as required by Section 8(d) before terminating the
contract constituted a violation of its bargaining obligation and hence was in
violation of Section 8(a) (5).
3. Was the strike an unfair labor practice strike9
Respondent contends the strike was not caused or prolonged by any unfair labor
practice even assuming some were committed in the period being considered.
Respondent points out the fact that the strike vote was taken after the employees
had voted to reject Respondent's proposed settlement, and argues this demon-
strates the parties had bargained to an impasse on economic issues and that the
strike was limited to economic causes. It is also pointed out that the record does
not reflect that any mention of unfair labor practices were made at the meeting
when the strike vote was taken and also that the picket sign proclaimed that the
strike was for the purpose of obtaining a new contract. In the same vein Respond-
ent points to the fact that Union Representative Bryan testified that the strike of
May 9 was called pursuant to the strike vote of May 4.
MRS. FAY'S PIES, INC. 509
There must be substantial evidence to establish a causal connection between an
unfair labor practice of an employer and the inception or prolonging of a strike,
in order to properly characterize it as an unfair labor practice strike N.L.R.B. v.
Scott & Scott, 245 F. 2d 926, 929 (C.A. 9); N.L.R.B. v. James Thompson & Co.,
Inc., 208 F. 2d 743, 749 (C.A. 2).
It is true that in this case neither the striking employees nor their representatives
characterized the strike as one protesting the unfair labor practices of Respondent.
It is also true that the evidence establishes economic factors played a part in causing
the strike. While these factors are important and should be weighed in considering
whether or not there is a causal connection between unfair labor practices and
strike, they are not necessarily determinative. In order to have an unfair labor
practice strike, it is not essential that the employees or their representatives articulate
that they are striking in protest of the employer's unfair labor practices, if the
evidence reasonably establishes that the unfair labor practices played a substantial
part in causing the strike.
Here it will be recalled that Union Representative Bryan in explaining to Re-
spondent's employees why there was a delay in obtaining a contract from Respondent,
repeatedly assured them that a wage increase would be retroactive to December 2,
1961. When Respondent failed to honor its commitment to make the wage increase
retroactive, Union Representative Bryan recommended to the employees that they
reject Respondent's proposed settlement. Bryan would have recommended that the
employees accept Respondent's proposed settlement if Respondent had honored its
commitment to make the wage increase retroactive. The employees voted to strike
immediately following their vote rejecting Respondent's proposal. In view of the
concern of the employees in obtaining retroactive pay, the advice to them by their
representative that Respondent had not made such a proposal and that he was not
recommending acceptance must obviously have appeared to the employees as a case
of the Respondent going back on its word. The strike vote taken immediately after
hearing of this development was in all probability largely influenced by Respond-
ent's refusal to honor its commitment with respect to retroactive wage increases.
In this context of events Respondent's reneging on its commitment to pay retroactive
wages (an unfair labor practice) was clearly a substantial operative cause of the
strike and consequently the strike of May 9, 1962, was an unfair labor practice strike.
After the strike vote of May 1, 1962, the employees requested that Bryan make
further efforts to negotiate an agreement. Not only did he not gain Respondent's
assent to any further negotiating meetings, but the Union received notice of the
termination of the contract effective May 5, 1962. This termination as previously
indicated was a failure to bargain in good faith because the notice requirements of
Section 8(d)(3) were not met by Respondent. The timing of the termination of
the agreement by Respondent and the demonstrated intent of the employees and their
representative to attempt further negotiations without resort to a strike constitute
substantial evidence that a termination of the contract without the required notices
(an unfair labor practice) was also a causal factor in precipitating the strike.
Inasmuch as it has been found that the employees were unfair labor practice
strikers, it follows they are entitled to their former positions upon proper application
to Respondent. However, the General Counsel requests a special finding with re-
spect to employees Rullo and Farinella who were given the following notice on the
evening of May 7, 1962:
This is to inform you that as of the end of your regular shift on May 7, 1962,
we will no longer require your services.
Your termination at this time is made necessary because of business con-
ditions at this time.
They were both recalled to work as a result of a receipt of the following telegram
at about 11 p.m. on the evening of May 8:
I AM OFFERING YOU REEMPLOYMENT AND WILL EXPECT YOU TO
RETURN TO WORK AT 10AM WEDNESDAY MAY 9TH 1962.
These telegrams addressed to Rullo and Farinella were offers by Respondent to
have Rullo and Farinella resume an active employee status. This offer was
accepted to the extent of Rullo's and Farinella's response to the telegram by appear-
ing at work prior to the time specified in the telegram dressed in their working
clothes which would demonstrate that they had come to the premises with the in-
tention of working. At this site Respondent's owner, Fay Brown, saw them on the
picket line and they did not report for work. From these facts it is a reasonable
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inference that it was evident to Brown, by Rullo's and Farinella's appearance at the
worksite dressed ready for work, that they had accepted the offer of employment
without knowledge that there was a picket line or a strike and on their discovery
of such a situation they had concluded not to go to work.
In Ekco Products Company, 117 NLRB 137, it was held by the Board that laid-
off employees who were recalled by an employer during a strike and who informed
the employer that they were not returning to work because of the strike were entitled
to be treated for purposes of reinstatement as employees. The circumstances pre-
sented in connection with Rullo and Farinella parallel the circumstances in Ekco
Products, and it is found that Josephine Rullo and Mary Farinella were in the
group of employees who were striking in protest of the Respondent's unfair labor
practices.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
IV. CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and the Union is a labor
organization with in the meaning of the Act.
2. All production workers and janitors employed by Mrs. Fay's Pies, Inc., at its
Los Angeles, California, plant, excluding maintenance employees, office clerical
employees, truckdrivers, professional employees, guards, watchmen and supervisors
as defined in the Act constitute a unit appropriate for collective bargaining.
3. At all times material herein the Union has been the exclusive representative
for the purposes of collective bargaining within the meaning of Section 9(a) of
the Act of all of the employees in the aforesaid appropriate unit.
4. By refusing to bargain in good faith with the Union from April 16, 1962,
through and after May 9, 1962, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
5. The strike which commenced on May 9, 1962, was caused by the unfair labor
practices of Respondent.
6. By said acts Respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
8. The strike on May 9, 1962, which was commenced without the Union giving
the notices required by Section 8(d) (3), did not result in a loss of employee status
inasmuch as Respondent had terminated the collective-bargaining agreement prior
to the inception of the strike.
9. Except as set forth in the findings of fact and conclusions of law, Respondent
has not violated the Act.
V. THE REMEDY
Having found that Respondent has refused to bargain with the Union in violation
of Section 8(a) (5) and (1) of the Act, it will be recommended that the Respondent
be ordered to bargain with the Union upon request as the exclusive representative of
all its employees in the appropriate unit concerning rates of pay, wages, hours, and
other terms and conditions of employment, and if an understanding is reached
embody such understanding in a signed agreement. It has been found that the
strike which commenced on May 9, 1962, was caused by Respondent's unfair labor
practices commencing on April 16, 1962, and hence was an unfair labor practice
strike. Accordingly, it is recommended that upon application Respondent offer
to all of its employees who joined the strike, including Mary Rullo and Josephine
Farinella, reinstatement to their former or substantially equivalent position without
prejudice to any seniority, or employment rights and privileges previously enjoyed
by them.
[Recommended Order omitted from publication.]