Peerless Yeast Co.

National Labor Relations Board - Board Decisions

Oct 31, 1949

86 N.L.R.B. 1098 (N.L.R.B. 1949)

In the Matter of ACME BREWERIES , A CORPORATION D/B/A PEERLESS
YEAST COMPANY and INTERNATIONAL UNION OP UNITED BREWERY,
FLOUR, CEREAL , SOFT DRINK AND DISTILLERY WORKERS OF AMERICA 1
Case No. 20-C-1676. -Decided October 31, 1949
DECISION
AND
ORDER
On June 22, 1949, Trial Examiner Robert L. Piper issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent 2 had engaged in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief; 3 it also requested oral
argument. Subsequently the Union filed a reply brief. On August
25, 1949, the Respondent moved to strike the Union's brief from the
record on the ground that it was filed without first obtaining special
leave of the Board. As leave to file a reply brief is required by
1 The names of both Respondent and the Union set forth in the pleadings were amended
at the hearing pursuant to motion.
2 The name of the Respondent, as well as that of the Union, appears herein as amended
at the hearing.
3In its exceptions and brief the Respondent renewed the motion made at the hearing to
dismiss the complaint on the grounds that : (a) the Regional Director was without authority
or jurisdiction to issue the complaint, because the General Counsel had not, at the time,
formally acted upon the Union's request for review of the Regional Director's earlier
refusal to issue a complaint; (b) the complaint is barred because of the delay which occurred
.between the filing of the charges and its issuance ; and (c ) no substantial evidence was
adduced to support the allegations of the complaint.
With respect to the first ground urged, there would appear to be no basis, administrative
or otherwise, for insisting upon the processing of an appeal from a ruling which the
Regional Director has in effect admitted to be erroneous. Moreover, the Respondent has
.not shown, nor does it appear, that it was prejudiced by the Regional Director's action.
As to the second ground, we have heretofore held, as we do now, that delay by the Board
in issuing a complaint, after a charge has been filed in a timely manner, cannot be invoked
to defeat the complaint. Matter of Quarles Manufacturing Company, and Southern Whole-
salers, 83 N. L. R. B. 697; Matter of The Electric Auto-Lite Company, 80 N. L. R. B. 1601,;
Matter of Agar Packing & Provision Corporation, 81 N. L. R. B. 1262.
Nor, as appears hereinafter, is there any merit in the Respondent's third ground.
Accor(lingly, the motion to dimiss is denied in its entirety.
86 N. L. R. B., No. 143.
1098
PEERLESS YEAST COMPANY 1099
Section 203.46 of the Board's Rules and Regulations,4 and as such
leave was not obtained, we find merit in the Respondent's position,
and shall strike from the record the Union's reply brief. In addition,
we hereby deny the Respondent's request for oral argument, for the
record and the Respondent's brief; in our opinion, adequately present
the issues and positions of the parties.
The Board 5 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, the exceptions and
brief filed by the Respondent, and the entire record in the case, and
hereby adopts the findings,6 conclusions, and recommendations of
the Trial Examiner, with the exceptions, modifications, and additions
noted below.
The Trial Examiner found that Paul Guenter was unlawfully dis-
charged on March 15, 1947, and that the Respondent thereby violated
Section 8 (a) (3) and (1) of the Act. We agree.
Like the Trial Examiner, we are persuaded that Guenter was not
discharged because of improper work habits, as the Respondent
claims.? Rather do we conclude, as the Trial Examiner did, that the
4 The pertinent portion of this section reads : ". . . Upon special leave of the Board,
any party may file a reply brief upon such terms as the Board may impose . Requests for
such leave . . . in which to file . . . briefs under authority of this section shall be in
writing and copies thereof shall be immediately served on each of the other parties."
5 Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three -member panel
[ Chairman Herzog and Members Houston and Murdock].
5 The Intermediate Report contains certain misstatements of fact and inadvertences,
none of which affects the Trial Examiner ' s ultimate conclusions , or our concurrence in
such conclusions . Accordingly, we note the following corrections : ( 1) in the production
process the yeast is transferred from the mixing machine to the extruder , and not to the
cutter, as the Trial Examiner finds ; ( 2) of the two cutters who testified at the hearing,
only one, Nelson , testified that Guenter " speeded up deliberately ." The Trial Examiner
found that Kelley, the other cutter , testified similarly ; ( 3) Kelley related the personal
incident occurring between her and Guenter in 1943 as an explanation of a past period
of ill will between them , and not to account for their animosity about the time of the
discharge, as the Trial Examiner states ; (4) although the record supports the Trial
Examiner's finding that at the time of the discharge Hamilton "knew nothing about
Guenter 's alleged manner of working," it does not support his further finding that
Hamilton made an admission to that effect ; (5) the Trial Examiner erroneously found
that Guenter testified that he had never been reprimanded by any of his supervisors about
his work ; Guenter testified to a reprimand concerning his work which the record shows
took place in 1943 ; and (6 ) the Trial Examiner has not accurately identified the unions
to which the employees involved belonged during the period covered by the Intermediate
Report. Initially, most, if not all, of the employees, Guenter included, were members of a
Local 7, which was affiliated with an independent union. In July 1946, when Local 7's
parent organization became affiliated with the CIO, Local 7's membership transferred
en masse to Local 893 of the Brewers , 111altsters & Yeast workers , an affiliate of the AFL.
All these employees, except Guenter, as appears hereinafter , continued to hold membership
in Local 893 during the remainder of the period in question.
4 More specifically, according to the Respondent in its exceptions, Guenter was guilty
of ". . . deliberately speeding the machines so that the cutters could not work efficiently,
refusing to cooperate in the normal manner in the production process , quarreling with
the cutters , refusing to acknowledge the protests concerning his manner of working by
refusing to speak to the cutters , failing and refusing to correct his improper working
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent found it expedient to discharge Guenter upon pressure
from Local 893, an AFL affiliate, with the knowledge that employee-
members of Local 893 were opposed to working with Guenter because
of his activity on behalf of the Union, a CIO affiliate, and his con-
sequent expulsion from Local 893.5
In support of its position, the Respondent points (a) to the neutral
stand which it adopted in August or September 1946, following the
transfer by its employees from Local 7 of the Independent to Local
893, and (b) to Plant Superintendent Wisherop's statement to Guenter
about a month before the discharge that he, Guenter, "had a job
... so long as he performed his duties as he had in the past."
However, as indicated herein, these items lost their significance in the
light of subsequent events, which demonstrate clearly that by March
15, 1947, the Respondent changed its position vis-a-vis Guenter.
The Respondent contends further that in making the discharge it
could not have been motivated in the manner found by the Trial
Examiner, because Hamilton,9 who recommended the discharge, "knew
nothing of Guenter's union difficulties or his expulsion from the AFL
until some time after the discharge had been effected." This con-
tention is not borne out by the record. It is clear, and we find, that
the Respondent acted against Guenter with full knowledge of his
prior CIO activity and. his subsequent expulsion from the Local.
Thus, Supervisor Burns 11 was one of those responsible for preferring
methods upon request of the cutters, failing or refusing to correct his improper working
methods after being warned to do so by the, plant superintendent, causing work interrup-
tions, slowing the production process, causing the necessity for reworking yeast, and, by
these means, of injuring the Respondent. . . .
8 The employees felt that only members of Local 893 should work in the plant. This
position was apparently fostered by their belief that the transfer en masse of members
of Local 7 to Local 893 on July 18, 1946, carried with it the closed-shop contract between
Local 7, its parent, and the Respondent. This contract was for the period from January
1, 1946, to August 15, 1947. It is not being urged as a defense.
9 Hamilton was secretary of a trade organization of brewers, to which the Respondent
belonged, and handled labor relations for the member companies . According to the
Respondent, "Complaints or grievances concerning discharge for causes other than drunken-
ness were ordinarily handled by Hamilton."
"The Respondent takes issue with the Trial Examiner's finding that Burns was a
supervisor. The record shows that responsibility for the operation of the yeast plant
rests with a plant superintendent and 2 "leadmen." Burns, 1 of the "leadmen," is in
"direct charge" of 11 employees who cut, package, and store yeast. His counterpart is in
"direct charge" of the remaining 21 employees who prepare molasses, and separate and
press yeast . Both prepare reports regarding production , attendance , morale, and the
general attitude of the employees. Burns also gives orders to the employees concerning
their work. And although he does not have the authority effectively to recommend their
discharge, as the Trial Examiner finds, Burns criticizes the employees' work, and issues
reprimands when necessary for tardiness, as well as for other infractions. His manual
work appears to be limited to such miscellaneous tasks as damping the yeast in the mixer,
"cleaning up in general," etc. ; he works on the machines only when it is necessary that
he do so. Accordingly, we find , as the Trial Examiner did, that Burns had authority
responsibly to direct employees, and that he was a supervisor within the meaning of the
amended Act. And this is so, even though Burns may have voted in consent elections
held at the plant this year. See Matter of The American Fork & Hoe Company, 72 N. L. R. B.
1025 ; Matter of People's Life Insurance Company, 72 N. L. R . B. 1406.
PEERLESS YEAST COMPANY 1101
the disloyalty discharges against Guenter, and Plant Superintendent
Wisherop admitted knowledge of the expulsion. Hamilton's knowl-
edge of the union differences between Guenter and the other employees
is also demonstrated by the following combination of circumstances:
(a) the intervention of Local 893 on March 15, and its warning to
Hamilton that "a situation was existing in the plant which might
result in employees not showing up for work"; (b) Hamilton's gratui-
tous observation to Guenter and Union Representative Bondy on
'March 17 concerning the conduct of union activity in the plant,"at
the time of their inquiry as to the reasons for the discharge on March
15; (c) his further statement on the same occasion, although he was
then unaware of any of the alleged faulty work habits of Guenter, that
Guenter was retarding production in the plant; and (d) the fact that
the friction engendered by Guenter's union activity and expulsion from
Local 893 had manifested itself in the plant in "battleground"
proportions 12
Nor is there any merit to its further argument that Guenter "felt
victimized" by his expulsion from Local 893, and that during the last
2 weeks of his employment he sought to "retaliate" against employees
operating the cutting machine by increasing the speed of his extruding
machine. The Respondent points to a quarrel which took place be-
tween Guenter and cutter Kelley early in the week ending March 15.
In the Respondent's view the quarrel "concerned only the manner
of [Guenter's] working." We find, however, that the credible evidence
in the record fails to support that view 13 It establishes, instead, that
Guenter did not change his manner of operating the extruder during
the 2 weeks preceding his discharge, and that this manner of operation
had, a short time previously, received the approval of the Respond-
ent14 Kelley, herself, testified that Guenter did not change the
manner in which he operated his machine during the approximately
6-month period that they worked together. It is unlikely, therefore,
11 There is no merit to the Respondent ' s contention that we are precluded by Section
8 (c) of the amended Act from relying in this connection on Hamilton ' s remarks.
12 The Respondent concedes in, its brief that there may have been animosity between
Guenter and some employees caused by union differences . It contends , however, that at
least in the case of Nelson , union difference , did not figure in the reason for the animosity
between Guenter and her. We find no merit in the Respondent ' s position as to Nelson.
13 Contrary to the Respondent , we find nothing in the record to warrant our rejecting
the credibility findings of the Trial Examiner . Furthermore , the importance of observa-
tion of witnesses to any finding. of their credibility is such that we will not overrule the
credibility findings of Trial Examiners unless they are clearly erroneous . See Matter of
Minnesota Mining & Manufacturing Company, 81 N. L . R. B. 557.
14 Thus, when Guenter advised Burns, "maybe four weeks or so " prior to his discharge,
that "a couple of women " were complaining that be was "feeding too fast," Burns said :
"It doesn't make any difference . Pay no attention to it. We have got to cut the yeast
and the sooner we get it done the sooner they are finished . And, as previously noted,
about a month before the discharge Wisherop assured Guenter that he was sure of a job
"so long as he performed his duties as he had in the past."
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the quarrel between Guenter and her resulted from any sudden
change in Guenter's work habits. Moreover, as found herein,
Guenter was operating his machine at the time in accordance with
instructions received from the Respondent. We find, therefore, that
Guenter did not engage in the improper activity which the Respond-
ent would attribute to him.
The Respondent contends finally that, even assuming no work dere-
lictions by Guenter, its decision to discharge Guenter was motivated
by a good faith belief that he had been guilty of such conduct and
was the source of production difficulties in the plant. Here again,
however, the evidence fails to support the Respondent. On March
11, for example, when Burns reported to Wisherop that the cutters
were complaining about Guenter's work, Wisherop ordered Burns "to
see if he couldn't get the girls to cooperate." Significantly, he made
no reference to Guenter. And although Wisherop thereafter observed
Guenter and the cutters at work, and arrived at the conclusion that
"things weren't running according to the method that we are accus-
tomed to run," there is nothing in Wisherop's account of his observa-
tions which.warrants a finding that he believed that Guenter was to
blame for that condition. Further, when Wisherop reported to Schus-
ter that production was being "held up," and that the employees in
the cutting room were making a "battleground" of the plant, he failed
to lay the blame therefor on Guenter. In addition, Hamilton, who
recommended that Guenter be terminated, was unaware of any ir-
regularities in Guenter's work up to the very moment that he made
such recommendation to Schuster in a telephone conversation. Fi-
nally, at no time before the hearing did the Respondent specifically
assign Guenter's work as the reason for the discharge.
From all the foregoing, including the facts that (a) Guenter did
not change his manner of operating the extruder during the entire
6- or 8-month period that he was assigned to that machine; (b)
Guenter's work on the extruder was considered satisfactory by Wish-
erop and Burns; (c) Wisherop, when advised by Burns of the cut-
ters' complaints, ordered Burns only "to get the girls to cooperate,"
and made no reference to Guenter; (d) Hamilton and Schuster did
not personally observe, nor were they advised by Wisherop or anybody
else of, any irregularities in Guenter's work; and (e) the Respondent
at no time prior to the hearing specifically assigned Guenter's manner
of work as the reason for the discharge, we are convinced and find
that the disruption of production during the 2-week period preceding
the discharge did not result from Guenter's improper operation of
the extruder, and that the Respondent did not in fact believe that
PEERLESS YEAST COMPANY 1103
Guenter's work habits were the cause of its production difficulties
during that period.
In our opinion, the reasons given to Guenter and those asserted
thereafter were mere pretexts. That this is so is underscored by the
following : (a) the discharge, without warning, of an employee ac-
ceptable to the Respondent for 14 years; (b) the contrasting treatment
accorded Guenter on prior occasions (before his assignment to the
mixer and extruder and his differences with the rest of the employees
over union matters) by the Respondent when he did perform unsatis-
factorily. In these instances Guenter was merely transferred to
another operation; (c) the unconvincing character of the reasons ad-
duced to support the discharge; (d) the manifest reference to Guen-
ter's union activities, and the friction caused thereby, implicit in Ham-
ilton's statement to Schuster, when recommending the discharge, that
"there was no reason for the company to retain any employee whose
activities were interfering with production;" 15 (e) the refusal by the
Respondent to give Guenter detailed reasons for the discharge and
its attempt at the hearing and, to a greater extent, in its brief and
exceptions to expand on the reason: which it gave Guenter at the time
of the discharge; and (f) the whole sequence of events herein, termi-
nating in the prompt discharge of Guenter following Local 893's inter-
vention, although Guenter had done nothing to precipitate such action.
Viewed against this backdrop, we regard Burns' statement to em-
ployee La Burch, about a week before the discharge, that Guenter "is
going to be out before another week or so goes by" as more than a
mere coincidence. It was instead an intimation by at least one man-
agement representative that Guenter's union activity would prove
to be his undoing, and demonstrated an awareness on the part of that
management representative of the imminence of pressure for Guenter's
discharge.
On the basis of all the foregoing, and the entire record, we find that
in discharging Guenter the Respondent surrendered to pressure from
Local 893 and its employee-members, and that it thereby discriminated
against Guenter in regard to his hire and tenure of employment, and
discouraged membership in the Union and encouraged membership in
Local 893.16 We further find that, by the afore-mentioned conduct, the
15 As noted in the Intermediate Report, Guenter 's union activity did not take place during
working hours.
16 It is well established that the discharge of an employee because other employees have
refused to work with him because of his membership in or activities on behalf of a union
is discriminatory , and that it is the duty of an employer to resist domination of its right
and power to employ, whether manifested by or toward a union. See if. L. R. B. v. Fred P.
Weissman Company , 170 F. 2d 952 (C. A. 6), enfg. 69 N. L. R. B. 1002, cert. den. 336
U. S. 972 ; N. L. X. B. v. American Car and Foundry Company, 161 F. 2d 501 (C. A. 7),
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act and thus
violated Section 8 (a) (3) and (1) thereof.
The Remedy
On the basis of the unfair labor practices found, the Trial Examiner
recommended that the Respondent be ordered to "cease and desist from
in any manner infringing upon the rights of employees guaranteed by
the Act.", The Respondent takes exception to the entry of such a
broad order.
Normally in cases in which an employer has unlawfully discrimi-
nated against. an employee by discharging him the Board orders, in
addition to affirmative relief, that the employer cease and desist from
in any manner infringing upon the rights guaranteed in section 7 of
the Act 17 In the instant case, however, the Respondent discharged
Guenter not to satisfy any illegal purpose of its own but, rather, yielded
to pressure from Local 893 and its employee-members. Under the
circumstances, and in view of the absence of any evidence that danger
in regard to the commission of other unfair labor practices is to be
anticipated from the Respondent's conduct in the past, we are of the
opinion, contrary to the Trial Examiner, that a broad cease and desist
order is unwarranted, and that one limited to the violations herein is
sufficient to effectuate the purposes of the Act. We shall therefore
revise the recommended order so as to limit its effect to the restraint
of the unfair labor practices found to have been committed by the
Respondent.18
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Acme Breweries,
enfg. 66 N. L. R. B. 1031; N. L. R. B. v. Goodyear Tire and Rubber Co., 129 F. 2d 661
(C. A. 5), enfg. 21 N. L. R. B. 306; Matter of Wilson & Co., Inc. v. N. L. R. B., 1.23 F. 2d
411 (C. A. 8), enfg. as mod. 26 N. L. R. B. 297, 26 N. L. R. B. 273; Matter of Pillsbury
Mills, Inc., 74 N. L. R. B. 1113; Matter of Detroit Gasket and Manufacturing Company, 78
N. L. R. B. 670.
Matter of Sunland Biscuit Company, Incorporated, 78 N. L. R. B. 714; Matter of R. L.
Polk & Co., 78 N. L. R. B. 82; and Matter of The Times-Picayune Publishing Company,
77 N. L. R. B. 447, cited by the Respondent in its brief, are clearly distinguishable from
the instant case. For in those cases the Board found as a fact that the employees involved
were discharged for cause.
17 Matter of Entwistle Manufacturing Company, 23 N L. R. B. 1058, enfg. as mod., 120
F. 2d 532 (C. A. 4) ; Matter of The Gould Mersereau Company, Inc., 75 N. L. R. B. 784;
Matter of Tygart Sportswear Company, 77 N. L. R. B. 618.
18 Matter of Pillsbury Mills, Inc., supra. Cf. Matter of Geraldine Novelty Corporation,
Inc., 74 N. L. R. B. 1503, enfd. 173 F. 2d 14 (C. A. 2) ; Matter of Capolino Packing Corpo-
ration, 71 N. L. R. B. 1003; Matter of G. W. Hume Company, 71 N. L. R. B. 533.
PEERLESS YEAST COMPANY 11.05
a corporation d/b/a Peerless Yeast Company, San Francisco, Cali-
fornia, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from discouraging membership in International
Union of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, or in any other labor organization of its em-
ployees, or encouraging membership in Local 893, Brewers, Maltsters
& Yeast Workers, AFL, or in any other labor organization of its
employees, by discharging or refusing to reinstate any of its em-
ployees, or in any other manner discriminating in regard to their hire
and tenure of employment, or any term or condition of their employ-
ment, except to the extent that such right 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) Offer Paul Guenter immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges;
(b) Make whole Paul Guenter for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he
normally would have earned as wages during the period from the date
of his discharge to the date of the Respondent's offer of reinstatement,
less his net earnings during said period;
(c) Post at its plant in San Francisco, California, copies of the
notice attached hereto, marked Appendix A.19 Copies of said
notice, to be furnished by the Regional Director for the Twentieth
Region, shall, after being duly signed by the Respondent's representa
tive, be posted by the Respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or
covered by any other material;
(d) Notify the Regional Director for the Twentieth Region in
writing within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
19 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A DECISION AND ORDER," and words, "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in INTERNATIONAL UNION
OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY
WORKERS OF AMERICA, or any other labor organization of our em-
ployees, or encourage membership in LOCAL 893, BREWERS,
MALTSTERS & YEAST WORKERS, AFL, or any other labor organiza-
tion of our employees, by discharging or refusing to reinstate any
of our employees, or in any other manner discriminating in regard
to their hire or tenure of employment, or any term or condition of
employment, except to the extent that such right 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.
WE WILL offer to Paul Guenter immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to any seniority or other rights and privileges pre-
viously enjoyed, and make him whole for any loss of pay suffered
as a result of the discrimination.
All our employees are free to become or remain members of
INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT
DRINK AND DISTILLERY WORKERS OF AMERICA, or any other labor
organization. We will not discriminate in regard to hire or
tenure of employment or any term or condition of employment
against any employee because of membership in or activity on
behalf of any such labor organization.
ACME BREWERIES, D/P>/A PEERLESS YEAST COMPANY,
Employer.
By----------------------------
(Representative ) (Title)
Dated--------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Benjamin B. Law, for the General Counsel.
Brobeck, Phleger & Harrison, by Messrs. Samuel L. Holmes and Emil R.
Hoercher, of San Francisco, Calif., for Respondent.
Gladstein, Andersen, Resner & Sawyer, by Norman Leonard, for the Union.
PEERLESS YEAST COMPANY 1107
STATEMENT OF THE CASE
Upon a charge filed on March 27, 1947, by International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America (here-
inafter called the Union), the General Counsel of the National Labor Relations
Board (hereinafter called the Board), by the Regional Director of the Twentieth
Region (San Francisco, California), issued a complaint dated December 14,
1948, against Acme Breweries, a corporation doing business as Peerless Yeast
Company (hereinafter called Respondent), alleging that Respondent had engaged
and was engaging in unfair labor practices affecting commerce within the
meaning of Sections 8 (a) (1) and (3), and 2 (6) and (7) of the National
Labor Relations Act, as amended (hereinafter called the Act), 61 Stat. 136,
29 U. S. C. Supp. I. Sees. 141, et seq. Copies of the complaint, the charge, and
a notice of hearing were duly served upon Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that Respondent on or about March 15, 1947, discharged Paul Guenter because
of his membership in and activities on behalf of the Union, and by the foregoing
conduct engaged in unfair labor practices within the meaning of Section 8 (a)
(1) and (3) of the Act.
Respondent's answer admitted certain allegations of the complaint with
respect to the nature of its business but denied the alleged unfair labor
practices.
Pursuant to notice a hearing was held at San Francisco, California, on
February 14, 15, and 16, 1949, before the undersigned, Robert L. Piper, the
Trial Examiner duly designated by the Chief Trial Examiner. All parties
were represented by counsel, participated in the hearing, and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues.
At the commencement of the hearing, Respondent moved to dismiss the
complaint on the grounds (a) that the Regional Director had originally notified
all parties that he refused to issue a complaint, the Union had filed a request
for review of this refusal with the General Counsel, thereafter the Regional
Director had withdrawn his refusal and issued a notice of hearing and a
complaint, and the General Counsel had not ruled on the request for review ;
and (b) that the General Counsel was guilty of laches in the prosecution of the
case. This motion was denied. Respondent's motion to file a supplemental
answer was granted. The General Counsel's motion to amend the formal plead-
ings to correct the name of Respondent was granted. Respondent's motion to
dismiss the complaint at the conclusion of General Counsel's case-in-chief was
denied. General Counsel's unopposed motion at the close of the hearing to
conform the pleadings to the proof with respect to minor variances was granted.
All parties waived oral argument. Thereafter, pursuant to leave granted,
all parties filed briefs which have been considered.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a California corporation maintaining its principal office and
plant at San Francisco, California, where it is engaged in the manufacture,
sale, and distribution of malt beverages. Respondent also does business there
as Peerless Yeast Company, manufacturing and selling yeast. Respondent in the
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operation of its brewery annually purchases materials from outside the State
of California of a value in excess of $100,000 and sells finished products outside
the State of California of a value in excess of $100,000. Respondent in the
operation of its yeast plant annually purchases materials of a value in excess of
$25,000 and sells finished products of a value in excess of $25,000, both outside
the State of California. Respondent admitted these facts. I find that Respond-
ent is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
The Union, affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Factual background
Paul Guenter, the employee whose discharge is alleged to have been discrim-
inatory, worked continuously for Respondent from 1933. During his employ-
ment, he worked as a laborer in practically all departments of Respondent's
yeast plant.
From 1933 Guenter was a member of Local 7 of the Union. He was also a
member of the Local's executive board for several years preceding his discharge
in 1947. In August of 1945 the Union and the Respondent entered into a col-
lective bargaining contract of 2 years duration. Before July 18, 1946, the
Union was independent. On July 18, 1946, the Union affiliated with the Congress
of Industrial Organizations. Some time shortly thereafter, the membership of
Local 6 decided to and did leave the CIO and affiliated with the Brewers,
N"altsters & Yeast Workers, AFL. The Local then became Local 893. It re-
tained the same membership, officers, and executive board, so that Guenter
became a member of the executive board of Local 893.
Because the employees had transferred to Local 893, a question arose as to
the status of the contract previously entered into with the Union. In order to
protect itself, Respondent determined upon a policy of not discharging em-
ployees without first clearing with either its own president or the Secretary of
the California State Brewers Institute, an association of which Respondent was
a member. The uncertainty of the contract status resulted in a number of
disputes and some litigation not material to the issues of this ease.
Guenter, although a member of the executive board of Local 893, apparently
was never satisfied with the change in affiliation, and retained his preference
for the Union.
During the last 6 or 8 months of his employment, Guenter worked as a mixer
in Respondent's cutting and shipping department. The operations of this de-
partment and more particularly, of Guenter's job, may be summarized as follows :
The fermented yeast was brought to this department. It was then poured into
a mixing machine. The operator, called a mixer, allowed the proper amount of
water and vegetable on to enter the yeast. This operation required some judg-
ment, as the mix had to be of the proper consistency, neither too wet nor too dry.
The mixer then transferred the yeast manually by the use of a scoop from the
mixing machine to the cutting machine. The cutting machine compressed the
yeast and extruded it in a bar 3 inches square onto a carriage, over which was
suspended a cutting device. Another employee operated this device, and as the
I The record centains • little or no dispute as to these facts.
PEERLESS YEAST COMPANY 1109
bar of yeast came out of the machine, cut off a 3-inch cube with the right hand,
and with the left hand weighed it and placed it on the wrapping table. The cut
was so regulated that the cube normally weighed 1 pound. After reaching the
table, other employees proceeded to wrap the yeast in an automatic wrapping
machine. Because the cutting machine extruded yeast continuously as long as
the mixer kept yeast fed into it, the cutter had to operate quickly and without
pause, being ready to cut another cube immediately after transferring the
preceding cube to the wrapping table. All of the cutters were women, and
because of the demands of the work, were relieved approximately every hour
and a half. The cutting department totaled 11 employees, 7 girls who rotated
at cutting, wrapping, and packaging, and 4 men, the leadman, or supervisor, the
leadman's assistant, and 2 mixers. There were 2 mixing machines, 2 cutting
machines, and 1 wrapping machine. The leadman and his assistant also did
manual work, such as relieving the mixers, assisting in lifting yeast into the
mixing machines, and other normal functions of the department.
It was established that the speed of extrusion of the yeast onto the cutting
carriage varied according to the consistency of the yeast, and also according
to the quantity thereof that the mixer'put into the cutting machine. A greater
load in the machine extruded faster than a small one, and dry yeast extruded
faster than wet yeast. During the course of cutting a certain amount of waste
yeast was inevitable. A large can, known as the waste can, was kept under
the cutting carriage and the cutter placed all waste into it. Occasionally
a cube would break, or be too far off weight, and this went into the can. Actually
it was not waste in the usual sense. Periodically the contents of the can were
clumped back into the mix, thereby again joining the mass and extruding onto
the carriage to be cut into pound cubes. The ability of the cutters also varied
somewhat. Some cutters were able to keep up with a faster extrusion than
other cutters could handle.
Guenter worked as a mixer satisfactorily for some 6 or 8 months before his
discharge. He had also done this work in relief for short periods over the
entire span of his employment.
During the latter part of 1946 and the first month of 1947, Guenter openly
displayed his preference for the Union and campaigned for reaffiliation with
it. He discussed it with other employees. There were only 32 employees in
the plant and Guenter's activities were well known. He passed out and had
signed cards affirming loyalty to the Union and repudiating the transfer of
affiliation.
These activities took place during lunch and rest periods, and after work.
During this period, Guenter was a member of the executive board of'Local
893. As a result, certain employees, including Guenter's supervisor, who fav-
ored affiliation with the AFL, preferred charges of disloyalty to Local 893 against
Guenter. On February 6, 1947, the executive board of Local 893 after a hearing
recommended Guenter's expulsion from Local 893. On February 21, 1947, the
membership of Local 893 confirmed this action and expelled Guenter. Respondent
and its employees knew about all of these actions. The superintendent of the
yeast plant knew of them and they were common talk around the plant. A
number of Respondent's employees were present at the membership meeting
when Guenter's expulsion was confirmed. After the expulsion, Guenter wrote
a letter to the secretary of Local 893 stating his position and protesting the
action. This letter, together with a story of the background, was published
in The Brewery Worker, a weekly publication of the Union. In addition, it
was reprinted in circular form which was distributed outside the plant and
867351-50-vol. 86-71
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found its way into the plant. Guenter continued to work at the plant after
his expulsion from Local 893 and the attendant notoriety.
B. The discriminatory discharge of Guenter
Peter Burns was the leadman in Respondent's cutting department. His duties
as such consisted of general supervision of the work, giving of directions to
employees in that department, reporting conditions and complaints to the super-
intendent, making daily production reports and lending physical assistance
from time to time in the actual work. He did not have the authority to hire or
fire. While I do not consider it essential to the ultimate issue, nevertheless,,
because Burns had the authority responsibly to direct employees and effectively'
to recommend their discharge, I find that Burris was a supervisor within the
meaning of Section 2 (11) of the Act. As previously noted, Guenter's work,
as a mixer was admittedly satisfactory until the last 2 weeks preceding his dis-
charge, which occurred on March 15, 1947. After Guenter's expulsion from
Local 893, many of the employees expected him to be discharged, because he
was no longer paying union dues. All of the major occurrences in dispute in
the record occurred during the last 2 weeks. Respondent contended that Guenter
was discharged for interfering with the work and disrupting production. The
basis for this position was that Guenter had deliberately speeded up the ex-
trusion of yeast so that the cutters could not keep up, thereby causing the
yeast to jam and break and to be shoved aside into the waste can. Respondent
contended that this was repeated to the point where production was very poor
on Guenter's machine and the cutters were complaining and refusing to work.
with Guenter.
In support of this contention, Respondent adduced the following evidence:
Burns, Guenter's supervisor, testified that during the 2 weeks before March 15,
Guenter had been speeding the output of yeast so that the cutters could not-
keep up and they were complaining to Burns. He said that he received com-
plaints from three of the girls, Kelley, Nelson, and Driscoll. On one day of the.
last week, Mrs. Kelley was so upset that her husband, who also worked in the
plant in another department, came into the cutting department and talked to
Guenter. The altercation eventually subsided and everyone returned to work,
Dirs. Kelley being relieved by another cutter. Burns admitted that he never
spoke to Guenter about his work. He explained this by saying that he and
Guenter were not on speaking terms. Burns said that he told Fred Wisherop,
Respondent's superintendent, of the complaints about Guenter's operation of
his machine during his last week. According to Burns, Wisherop said he would
see what he could do and that the women were more important than the men.
Burns further said that twice again he told Wisherop of this condition during
Guenter's last week, and that Wisherop said he would take care of it and
that Burns should forget about it. Burns was the instigator of the charge
against Guenter before Local 893 resulting in Guenter's expulsion. He circu-
lated the formal charges in Respondent's plant, secured the signature of other-
employees thereto, and gathered witnesses at the plant to testify against Guenter.
Burns testified that during Guenter's last week, the waste can at his cutting
machine was filled up about twice as frequently as normal and would have to be-
dumped twice as often. However, on cross-examination, he admitted that it was
harmful to the yeast to permit it to remain in the can for lengthy periods and
that therefore it was returned to the cutting machine after every mix. He also,
admitted that he had received complaints from the cutters about other mixers,.
PEERLESS YEAST COMPANY 1111
and that the cutters could jam up the operation as well as the mixer. All of the
cutters were members of Local 893.
Wisherop, Respondent's superintendent, testified that Guenter had been a
satisfactory employee for 13 years. He stated that he received complaints from
Burns about Guenter's work during the week preceding his discharge. He said
that after the first complaint, he told Burns to get the girls to cooperate. Burns
reported back later in the day that the condition was no better and that Guenter
was continuously causing the yeast to jam by extruding it faster than the cutters
could cut. Wisherop then proceeded to observe the operations himself from a
mezzanine where he was not visible to the employees. He stated that he saw
that the waste can became full in a short period and that the machine was
mechanically all right. He did not testify what caused this condition of the
waste can. He said that a short time later he spoke to Guenter alone, told him
that he was jamming the yeast purposely, that the women were complaining
and that if he did not mend his ways, a charge would be made. According to
Wisherop, Guenter made no response to this. Later the same day Wisherop
reported the incident to Mr. Schuster, Respondent's president, who requested
Wisherop to continue operations and report further on Friday of that week.
Later that week Burns advised Wisherop the condition was worse and Wisherop
again watched the operation. All he noted was that the waste can was full at
the time. He (lid not give any details as to Guenter's operations and admitted
that he did not know how long it had been since the waste can was dumped. On
Friday Wisherop reported to Schuster that the condition was unchanged and
that the employees were still making a battleground of the cutting department.
Schuster said that he guessed he would have to do something about it.
On Saturday March 15, 1947, Schuster called Wisherop and told him to dis-
charge Guenter, for the reason that his general attitude had been creating too
much unrest among the employees and was detrimental to plant production.
Schuster told Wisherop that if Guenter had any inquiries concerning his dis-
charge to refer him to James Hamilton, secretary of the California State Brewers
Institute. The plant being closed Saturdays, Wisherop contacted Guenter at
his home by telephone and advised him of his discharge, and quoted the reason
advanced by Schuster. On Monday, March 17, Guenter came in to see Wisherop.
who gave him a copy of the reason stated by Schuster, which Wisherop had
written down,' and referred him to Hamilton for any further details. It was
admitted that Guenter was never advised that he was fired for operating his
machine too fast and thereby disrupting production. Wisherop, while contend-
ing that Guenter was discharged for decreasing production by causing the yeast
to jam by operating his machine too fast, admitted that during the week In
which lie received the complaints, no record was kept of the number of times
Guenter's waste can was dumped, nor were any production records kept as to
the output of yeast. Wisherop also admitted, as did Burns, that the cutters
could cause the jamming of the machine as well as the mixer.
After his discharge, Guenter contacted Harold Bondy, an international rep-
resentative of the Union, and together they visited Hamilton. Hamilton told
them that he was familiar with the case, had discussed it with Schuster and
had recommended the reasons for discharge given Guenter in writing. Hamilton
admitted that he refused to elaborate on the reasons for discharge given Guenter,
2 General Counsel's Exhibit 8, which reads as follows :
"General attitude on the job has been creating too much unrest among the balance
of the employees and is detrimental to the production in the plant."
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bondy testified, and Hamilton admitted, that there was some discussion about
employees not discussing labor matters on the job. Hamilton further said that
the secretary of Local 893 had advised him that Guenter was annoying other
employees (all members of Local 893), that they were refusing to work with
him, and that lie (Hamilton) had contacted Respondent in the first place.
Hamilton admitted that Wisherop then advised him that there was friction
between Guenter and the other employees which was interfering with production
but that no mention was made of Guenter's operating his machine in such a
manner as to disrupt production.
In addition to the above witnesses, Respondent called two of the cutters who
had worked with Guenter during the period in question. They were Mrs. Marie
Kelley and Mary Nelson. Nelson testified that she had worked for Respondent
since 1945 and that during the last 2 weeks of Guenter's employment, he was
feeding the yeast too fast and she was unable to keep up, thereby causing the
yeast to jam and be shoved aside into the waste can. Nelson admitted that she had
signed the charges requesting Guenter's expulsion from Local 893 and that she
and Guenter were not on speaking terms for some period of time. Nelson said
that she protested the manner of operation to Guenter, but that lie just ignored
her, and that she complained to Burns several times. She further said the only
reason she knew for Guenter's running his machine too fast was because he was
read at her. She explained this by relating an incident which happened at her
home about a month before Guenter's discharge which might haN e resulted in
friction between Guenter and herself. However, she also testified that the
cutting machine which Guenter ran was faster than the other one, and that he
was doing the same thing with the other cutters.
Kelley said she had been a cuter since 1943. She testified that Guenter ran
the yeast too fast for her to keep up, causing it to jam and requiring its return
to the mix. She said his manner of operating the machine had not changed dur-
ing the 6 months or so he worked on it. She also said Guenter and she had not
been on speaking terms for about 2 months preceding his discharge. She related
a personal incident occurring between Guenter and her 4 years previously as
an explanation of animosity between them. She admitted that her husband, who
also worked in the plant, was one of the signers of the formal charges against
Guenter before Local 893, and that she, her husband, Nelson, and all the members
of Local 893 had discussed these charges. She was present at the meeting when
the membership of Local 893 confirmed Guenter's expulsion. She said she had
complained to Burns about Guenter's manner of operation several times and
identified the time as during the last week Guenter worked. She also said that
after the incident on the day when her husband came into the cutting department
everyone returned to work and operations continued, although she moved over
to the other machine and no longer cut yeast on the machine operated by Guenter.
The foregoing testimony sums up the position of Respondent. Guenter testi-
fied that he had worked for Respondent since 1933. He related the details of
his activity in behalf of the Union leading up to his expulsion from Local 893
which have been discussed previously herein. He explained in detail his opera-
tion of the cutting machine. He categorically denied that there had been any
change in his manner of operation during his last 2 weeks of employment. He
said that he had never been reprimanded by any of his supervisors about his
work and denied that Wisherop had discussed with him anything about his
work prior to his discharge. He explained that the yeast extruded faster or
slower depending upon its consistency, and admitted that the operator also
could regulate its speed by the amount fed into the cutting machine . He denied
PEERLESS YEAST COMPANY
ever intentionally feeding yeast too fast. He said that the ability and speed
of different cutters varied, and upon occasion they had requested him to speed
up the extrusion of the yeast. He further said that on two occasions, one about
6 months and the other about 4 weeks before his discharge, a.cutter had com-
plained to him that he was feeding too fast. He told Burns about this, who
advised him both times to pay no attention, that the yeast had to be cut and
the sooner done the sooner the job was completed. Burns denied the conversation
occurring 4 weeks before Guenter's discharge, but made no reference to that
occurring about 6 months before the discharge. Guenter never received any,
other complaints from cutters, and denied the events alleged to have occurred
during the last 2 weeks of his employment. He did not know anything abort
his discharge until called by Wisherop at home, and, as admitted by Wisherop
and Hamilton, was never informed that he was discharged for not operating
his machine properly. He said, and Wisherop admitted, that some time after
his recommended expulsion from Local 893 by the executive board, he had asked
Wisherop if he had heard anything about the outcome of his case, and that
Wisherop had said he had not. Wisherop admitted that he had been a member
of the Union prior to becoming Respondent's superintendent, and that he, had
told Guenter that he did not agree with the principles of the CIO and AFL 90
percent of the time. Guenter's testimony concerning his conversation with
Wisherop and Hamilton after his discharge was in all essential respects the
same as their testimony. Guenter knew that Burns, Kelley, and a number of
the other employees had preferred the charges against him and that all of
then belonged to Local 893.
After Guenter's discharge, Donald La Burch, who had been working as Bui•ns'
assistant, was assigned by Respondent to operate Guenter's machine. La Burcil
testified that he had worked for Respondent since 1943 and had worked as Burns'
assistant during the first 3 months of 1947. La Burch resigned for personal
reasons in 1948. He said that he was given Guenter's job after his discharge
and that shortly thereafter the cutters began to complain that he was feeding
too fast and was a slave driver. He told both Burns and Wisherop about these
complaints, and was advised by each to pay no attention to them. This was
denied by Wisherop, and Burns said he could not remember it. La Burch was
completely familiar with Guenter's activities in behalf of the Union and knew
of his expulsion from Local 893. About 1 week before the discharge, Burns said
to La Burch, "Well, I guess he (Guenter) thinks he.is going to stand tip theme
and shovel the yeast here forever, but he is going to be out before another
week or so goes by." Burns denied making any such statement. La Burch said
that he saw copies of Guenter's letter to Local 893 after his expulsion both
inside and outside the plant, and saw one in Burns' possession. La Burch said
he had run the cutting machine as relief man many times before he succeeded
to Guenter's job. He further said that whenever there was a lot of yeast to
get out and he worked a little faster, he always had some complaints. He said
he probably had a dozen complaints in the time he worked after Guenter's. dis-
charge, but that the cutters did not complain to Burns or Wisherop. La Burch,
frequently had to stop his machine because of the yeast jamming.
C. Conclusions and ultimate findings
The undisputed evidence clearly reveals the existence from August of 1946
of an interunion dispute in Respondent's plant concerning the representation
of the employees. There is no question but that Respondent, its officials,
and supervisors, and all of its employees were keenly aware of the situation.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent admitted the adoption of extraprecautionary measures in connection
with questions of discharge because of the existence of the dispute. Guenter was
one. of a minority actively espousing the cause of the Union. All of the em-
ployees, a majority of whom belonged to Local 893 , were aware of these activi-
ties. That friction between this majority and Guenter existed cannot be doubted.
His own supervisor , together with a number of fellow employees , preferred the
charges against him. All' employees were aware of these charges and many
of. them were present at the membership meeting confirming Guenter's expulsion
from Local 893. Most, if not all of them, thereafter expected his discharge
because he was no longer a dues-paying member of Local 893.
Several direct questions of credibility must be resolved . Guenter testified that
there had been no change in his manner of operation , that he had not been
criticized at any time by his superiors , and that on the contrary he had twice
advised his supervisor of complaints by the cutters as to his speed of operation,
and. had been instructed to ignore such complaints . On the other hand , Burns'
testimony was that Guenter was deliberately causing the yeast to jam , resulting
in complaints from the cutters and lessening production . Burns admitted that
he had never spoken to Guenter about this. Burns stated he reported these
incidents to Wisherop and that Wisherop said that he would see what he could
do, and that the women were more important than the men. Wisherop, on the
other hand , did not corroborate this statement , but instead testified that he
told ' Burns to get the girls to cooperate . This is quite different from Burns'
version of the matter . If trouble was being caused by Guenter, why was Burns
told to get the girls to cooperate ? Burns contradicted himself on the matter of
the waste can and also on the matter of the printed copies of Guenter 's letter
to Local 893 . He testified first that the yeast in the can was normally dumped
back into the machine after each mix, then changed his testimony to every two
or three mixes , and then said it damaged the yeast to leave it in the can and for
this reason it was returned to the machine after every mix. This is significant
because Burns on direct examination testified that Guenter 's jamming the opera-
tions caused the can to be dumped nearly twice as often. With respect to the
printed letter , Burns first denied ever seeing it in the plant , and then later ad-
mitted seeing it in the plant . Considering all of the union activities heretofore
discussed , the animosity between Burns and Guenter is self-evident.
Both mixers who testified that Guenter had speeded up deliberately were di-
rectly connected with Guenter 's expulsion from Local 893. One signed the
charges and the other 's husband signed them . Each of them attempted to explain
the friction between herself and Guenter by relating personal incidents, one
of them occurring years before the discharge . Nelson said that Guenter was
not speaking to her and had deliberately increased his machine ' s speed during
the last 2 weeks. Kelley testified that there was no change in Guenter 's opera-
tion of the machine for the last 6 months and that he always ran it too fast.
She also said they were not on speaking terms.
On the other hand, La Burch's testimony tends to corroborate Guenter's state-
ments. La Burch said he also received complaints about speed , also advised
Burns and Wisherop, and was advised to ignore the complaints, all after Guenter
was discharged . On the whole, I And La Burch's testimony to be credible, and
accordingly find that he did advise Respondent of the complaints and was told
to ignore them. I also find that he was told by Burns that Guenter was going
to be out of the plant before another week or so went by.
Wisherop testified that he warned Guenter once concerning his operation of
the machine , which Guenter denied. While Wisherop testified that he watched
PEERLESS YEAST COMPANY 1115
the operations twice, he did not say that Guenter was operating the machine
too fast but only that he noted both times that the waste can was full.
Under all of the circumstances I believe Guenter's testimony to be credible,
and accordingly find that he did not change his manner of operation, was
not warned or criticized by Respondent concerning it, and had been advised by
Respondent to ignore complaints received from the cutters about running his
machine too fast.
It is apparent from an examination of the entire record that the real reason
for Guenter's discharge was the fact that his union activities and sympathies
were disliked by his fellow employees and supervisor who were members of a
rival union, resulting in friction between them and Guenter and a refusal on
their part to work with Guenter. There is no doubt but that this condition
may have been detrimental to production. A careful analysis of a number
of facts admitted by Respondent also points to the real reason for discharge.
The dismissal notice referred to unrest among the employees and detriment to
production, but made no reference to any misconduct on the part of Guenter in
the fulfillment of his assigned task. The animosity on the part of Guenter's
supervisor and the two cutters who testified was openly admitted. All were
connected with Guenter's expulsion from Local 893 and all were not even speak-
ing to him. When Guenter was discharged, Wisherop refused to give him any
reason other than that on the paper given Guenter, and referred him to Hamilton
for an explanation. Hamilton also refused to elaborate when contacted by
Guenter, but admitted that he had been advised by the secretary of Local 893
that Guenter was annoying employee members of Local 893, who were refusing
to work with him, and that he (Hamilton) had contacted Schuster about Guenter
in the first place, and that he knew nothing about Guenter's alleged speeding
of his machine. If Wisherop, as he testified, had warned Guenter about his work,
there is no explanation why he refused to tell Guenter the reason for his dis-
charge and why he failed to assign such reason after having warned him only
a few days previously. Hamilton also admitted that he told Guenter and
Bondy that he had no objection to employees discussing labor matters if it was
not done during working hours. The record reveals, and Respondent did not
contend to the contrary, that Guenter's activities in behalf of the Union took
place during rest and lunch periods, and not during working hours. Since Hamil-
ton knew nothing about Guenter's alleged manner of working, his statement to
Guenter that he was causing disruption among the employees, taken in con-
junction with the statement about discussion of labor matters, must have re-
ferred to his union activities. Significant also is Wisherop's admission that
when Burns allegedly reported Guenter's misconduct, Wisherop told Burns to
get the girls to cooperate. Burns' statement to La Burch that Guenter would
be out in a week or so also lends credence to the conclusion that his union ac-
tivities and not his work, were the real reason for the friction resulting in
Guenter's ultimate discharge.
It is well established that pressure from a rival union or fellow employees is
no justification for the discharge of an employee for union activities a The
Board and the courts have frequently held that the Act permits no immunity
3 Wilson d Co., Inc. v. N. L. R. B., 123 F. 2d 411, 417 (C. A. 8, 1941), wherein the court
held that friction in the plant and the refusal of other employees to work with the dis-
charged employee did not justify the discharge.
Pillsbury Mills, Inc., 74 N. L. R. B. 1113,1114 (1947) ; Wytheville Knitting Mills, Inc.,
78 N. L. R. B. 640 ( 1948).
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because an employer may think that the exigencies of the moment require
infraction of the law.'
The preponderance of the credible evidence in the whole record convinces me,
and I so find, that Respondent discharged Guenter on March 15, 1947, because
of his union activities, and not because of his method of operation of his machine,
thereby discriminating against him in regard to his hire and tenure of employ-
ment, discouraging membership in the Union, and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section
7 of the Act.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above , occurring in
connection with the operations of Respondent described in Section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States and tend to lead to labor disputes burdening. and
obstructing commerce and the free flow of commerce.
THE REMEDY
Because it has been found that Respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent discriminated in regard to the hire and
tenure of employment of Paul Guenter. It will therefore be recommended
that Respondent offer him immediate and full reinstatement to his former or
substantially equivalent position,' without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay he may have
suffered by reason of such discrimination, by payment to him of a sum of money
equal to that which he normally would have earned as wages from the date
of his discriminatory discharge to the date of the offer of reinstatement, less
his net earning during such period.'
Since Respondent's discriminatory discharge of Guenter goes to the very
heart of the Act and indicates a purpose to defeat self-organization of its em-
ployees, I am persuaded that the unfair labor practice committed is potentially
related to other unfair labor practices proscribed and that the danger of
their commission in the future is to be anticipated from Respondent's con-
duct in the past. Accordingly, in order to make effective the interdependent
guarantees of Section 7. and thus effectuate the policies of the Act, it will be
recommended that Respondent cease and desist from in any manner infringing
upon the rights of employees guaranteed by the Act.'
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By discriminating in regard to the hire and tenure of employment of Paul
Guenter, thereby discouraging membership in the Union, Respondent has engaged
N. L. R. B. v. Star Publishing Co., 97 F. 2d 465 (C. A. 9).
Matter of The Chase National Bank , San Juan, Puerto Rico, Branch, 65 N. L . R. B. 827.
Matter of Crossett Lumber Company , 8 N. L. R . B. 440 , 497-498.
7 May Department Stores v. N . L. R. B., 326 U . S. 376; N. L. R. B. v. Entwistle Manu-
facturing Co., 120 F. 2d 532 (C. A. 4).
PEERLESS YEAST COMPANY 1117
and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section'7 of the Act, Respondent has engaged and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case, it is recommended that Respondent, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership-In the Union, or any other labor organization
of its employees, by discharging or refusing to reinstate any of its employees
or by discriminating in any other manner in regard to their hire or tenure of
employment, or any term or condition of their employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, and to refrain from any or all such activities, except to the extent
that such right 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, it is found, will effectuate the
policies of the Act :
(a) Immediately offer to Paul Guenter full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered
by reason of Respondent's discrimination against him, by payment to him of a
sum of money equal to the amount which he normally would have earned as wages
from the date of his discharge to the date of Respondent's offer of reinstatement,
less his net earnings during said period ;
(b) Post at its plant in San Francisco, California, copies of the notice attached
hereto, marked Appendix A. Copies of said notice, to be furnished by the
Regional Director for the Twentieth Region, shall, after being signed by Respond-
ent's representative, be posted by Respondent and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by
any other material ;
(c) Notify the Regional Director for the Twentieth Region in writing, within
twenty (20) days from the date of the receipt of this Intermediate Report and
Recommended Order, what steps Respondent has taken to comply herewith.
It is further recommended that, unless on or before twenty (20) days from
the receipt of this Intermediate Report and Recommended Order Respondent
notifies said Regional Director in writing that it will comply with the foregoing
recommendations, the National Labor Relations Board issue an order requiring
Respondent to take the action aforesaid.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring
the case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Washington 25, D. C., an original and six copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report and
Recommended Order or to any other part of the record or proceeding (including
rulings upon all motions or objections) as he relies upon, together with the
original and six copies of a brief in support thereof ; and any party may, within
the same period, file an original and six copies of a brief in support of the
Intermediate Report and Recommended Order. Immediately upon the filing
of such statement of exceptions and/or brief, the party filing the same shall serve
a copy thereof upon each of the other parties. Statements of exceptions and
briefs shall designate by precise citation the portions of the record relied upon
and shall be legibly printed or mimeographed, and if mimeographed shall be
double spaced . Proof of service on the other parties of all papers filed with the
Board shall be promptly made as required by Section 203.85. As further pro-
vided in Section 203.46, should any 'party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board within
ten (10) days from the date of service of the order transferring the case to
the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48,of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 22nd day of June 1949.
ROBERT L . PIPER,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA,
or any other labor organization of our employees, by discharging or refusing
to reinstate any of our employees or by discriminating in any other manner
in regard to their hire and tenure of employment, or any term or condition
of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL UNION OF UNITED BREWERY,
FLOUR, CEREAL, SOFT DRINK AND DISTILLERY W ORKERS OF AMERICA, or any
other labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
PEERLESS YEAST COMPANY 1119
WE WILL o»ER to Paul Guenter immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any sen-
iority or other rights and privileges previously enjoyed, and make him whole
for any loss of pay suffered as a result of the discrimination.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or conditibi oof employment against
any employee because of membership in or activity on behalf of any such labor
organization.
AcME BREWERIES , a corporation d/b/a
PEERLESS YEAST COMPANY,
Employer.
By-------------------------------
(Representative ) (Title)
Dated----------------------------
This notice must remain posted for sixty (60) days from the date hereof,
and must not be altered, defaced, or covered by any other material.