Pepperidge Farm, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1961

134 N.L.R.B. 1245 (N.L.R.B. 1961)

PEPPERIDGE FARM, INC. 1245
Pepperidge Farm , Inc. and Local 1, American Bakery and Con-
fectionery Workers' International Union , AFL-CIO. Case No.
13-CA.-4159. December 14, 1961
DECISION AND ORDER
On September 19,1961, Trial Examiner Eugene E. Dixon 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 Intermediate Report
attached hereto. The Trial Examiner also.found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended dismissal of those allegations. There-
after, the General Counsel and the Respondent filed exceptions to the
Intermediate Report together with supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown]..
The Board has reviewed the rulings made by the Trial Examiner 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.
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 the Respondent, Pepperidge
Farm, Inc., Downers Grove, Illinois , its officers , agents, successors,
and assigns , shall :
' The Trial Examiner found that Respondent discharged Neiman because of union and
concerted activities . While we agree that Nejman 's discharge was violative of the Act,
we do not agree that Nejman 's union activity played a part in her discharge . Thus, the
record does not affirmatively establish that Respondent was aware of Nejman 's union
activity prior to her discharge . However , we do agree with the Trial Examiner's finding
that Nejman 's attempts to get her fellow employees to take concerted action regarding,
their working conditions played a controlling part in her discharge and that the Respond-
ent had knowledge of such concerted activities before it discharged Neiman In these
circumstances , Nejman's discharge was clearly violative of Section 8(a)(1) of, the Act.
Salt River Valley Water Users Association , an Arizona Corporation , 99 NLRB 849, 853.
See, also, Gordon-Ladley Plywood Products Company , 118 NLRB 1 , 13-14, and cases
cited therein As we have found that Nejman's discharge was violative of Section
we find that it will effectuate the policies of the Act to order that Neiman be offered
immediate and full reinstatement to her former or substantially equivalent position and
be made whole for any loss of pay suffered by reason , of her unlawful discharge . , Later
Industries, Incorporated , 132 NLRB 1.
134 NLRB No. 129.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discharging its employees for engaging in concerted activi-
ties for the purposes of their mutual aid or protection.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the'right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purposes of collective bargaining or mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent
that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as au-
thorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Mary Neiman immediate and full reinstatement to
her former or substantially equivalent position, without prejudice
to her seniority or other rights and privileges previously enjoyed, and
make her whole for any loss of pay she may have suffered because
of the discrimination against her, in the manner set forth in that sec-
tion of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment' records, timecards, personnel records and reports,
and all other-records necessary to determine the amount of backpay
and other benefits due, and the rights of employment under the terms
of this Order.
(c) Post at its plant in Downers Grove, Illinois, copies of the
notice attached hereto marked "Appendix." 2 Copies of said notice,
to be furnished by the Regional Director for the Thirteenth Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon' receipt
thereof, and be maintained by it for 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 cov-
ered by any other material.
(d) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2In 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."
PEPPERIDGE FARM, INC.
APPENDIX
NOTICE TO ALL EMPLOYEES
1247
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 NOT discharge or otherwise discriminate against any
of our employees for engaging in protected concerted activity.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or. assist labor organizations, to
bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purposes of collective
bargaining or -mutual aid or protection, or to refrain from any
or 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, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL offer to Mary Nejman immediate and full reinstate-
ment to her former or substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and
make her whole for any loss of pay she may have suffered by
reason of the discrimination against her.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except to
the extent that this 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.
PEPPERIDGE FARM, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
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
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act, was heard at Chicago, Illi-
nois, on July 6 and 7, 1961, pursuant to due notice with all parties being presented
by counsel. The complaint, issued by the General Counsel for the National Labor
Relations Board (herein called the General Counsel' and the Board) on May 19,
1248 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
1961, and based upon charges duly filed and served, alleged that Respondent had
engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the
Act by discriminating against its employee, Mary Nejman, because she joined or
assisted the Union or engaged in other union or concerted activities for the purposes
of collective bargaining or mutual aid or protection, and by further engaging in
various specified acts of interference, restraint, and coercion against its employees
in connection with their union activities.
In its duly filed answer Respondent denied the commission of any unfair labor
practices.
After consideration of briefs received from both the General Counsel and the
Respondent, upon the entire record in, the case, and from, my observation of the
witnesses, I make the following:
'FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is, and has been at all times material, herein,. a corporation duly
organized under,, and, existing by virtue of the laws of'the State of Connecticut. At
all times material herein, Respondent has maintained its principal place of business
at Downers Grove, Illinois, where it maintains a plant where it 'is and, has been
engaged,in.the manufacture, sale, and distribution of bakery, pastry,-and related
products. Respondent, during the 12 months preceding the issuance of the com-
plaint, which is a representative period, purchased raw materials, goods, and supplies
valued in excess of $100,000, of whichin,excess of;$50,000 were transported to said
plant directly from States of the United States other than `the State of Illinois.
During the'same- period, in the course and conduct of its business operations, Re-
spondent manufactured, sold, and distributed, from said plant, products valued in
excess of $50,000 directly to States of the United States other than the State of
Illinois. Respondent admits and I find' that Respondent is, and at all times material
herein has been, engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 4, American Bakery and Confectionery Workers' International Union,
AFL,-CIO; is a labor organization withimthe meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR , PRACTICES
A. The 8('a)(3) allegation
Mary Nejman began working for Respondent sometime in .1953 as a part-time
worker. About December 20, 1954, she as promoted to the classification of in-
gredient scaler I and, worked full time. In 1957, at her own request, she began work-
ing on an "on call"' basis 2 which was her status when she was discharged on
March 17, 1961. She was considered a good worker by Respondent and there is no
contention that the caliber of her work played any part in her discharge.
In February 1961 the Union. began a campaign to organize Respondent's em-
ployees starting with a visit by two or three union officials to Respondent's parking
lot where license plate numbers were noted and some employees "stopped and
talked to." From one of the employees he talked to, Frank Hoffman, business
representative- of-the Union, learned that Nejman was, "a person-,that' might be quite
interested" in getting a union into'Pepperidge Farm. Accordingly, during the first
1 "Ingredient scalers," as the term implies, measure and apportion the proper' ingredi-
ents for the various products. They receive 10 cents per hour more than other employees
and perform a function that not every production employee is capable of performing.
Conversely, they are also capable of performing any of the other production functions
2 "On call" employees have no definite work schedule but fill In vacancies of regular
employees as they occur. They are guaranteed no amount of work other than a minimum
of 4 hours when they are called in As hourly paid employees, they receive no compensa-
tion unless they work While they do not get paid vacations or participate In the. group
health Insurance plan, they do get Christmas and anniversary gift checks and Thanksgiving
turkeys and attend company picnics and social events It is clear that the "on call" lists
provide Respondent with a "reserve of experienced workers available as. needed for what-
ever vacancy might arise" and it was admitted that the maintenance) of these lists and
the carrying of such employees on the payroll while not actually working involves little
or no cost to Respondent.
PEPPERIDGE FARM, INC. 1249
week in March Hoffman called on Nejman at her home and found that she was "very
receptive" to the idea of union representation for the employees. She proceeded
to give Hoffman names and addresses or telephone numbers of employees she felt
would be interested in a union and offered either then or somewhat later to make
her home available as a meeting place. Hoffman instructed her to "keep quiet now"
and he would contact the people whose names she had given him. This she did, not
mentioning anything in the plant about the Union or her contact with it.
About a week later, Hoffman called Nejman and told her that the people she
had suggested had been contacted and had indicated that "they were willing to at
least sit down and listen to what (the Union) had to say." Hoffman asked Nejman
if she would be willing to call these people and invite them to her home for a
meeting on March 17. Nejman agreed to do so and called about 10 from her
home receiving various excuses from all why they could not attend.
On another occasion about this same time (specifically on March 13 according to
the testimony of the two women called), she took it upon herself to call "a few of
the on call girls," who were not working at the time, to "get together" to see if they
could get management to give them more work.3 To this, end she called Sara Miller
and Ann Celusta and suggested they get together with some of the other "on call"
employees and make a request of management for "at least two days work" a week.
Miller was not interested and Celusta said she "was going to do something" on her
own.4 There was no mention by Nejman of a union in these latter calls.
According to Miller's undenied and credited testimony, when Nejman called her
about getting, more work she also admonished Miller not to tell Patrick about her
call .5 But either that same day 6 or the next (according to Miller) Miller called
Patrick and told her "that some of the on call girls were unhappy because they
weren't getting more work." Patrick said, "Yes, I know." When Miller said she
had a call from one of them but would not "mention any names," Patrick said she
could tell who it was and asked if it was Mary Nejman. Miller indicated that it
was.
On March 16 Hoffman again called Nejman to see what progress she had made
for the meeting on the morrow. Nejman informed Hoffman that she had called the
people "but for various reasons they had declined to come to her home for this
meeting." During the conversation Nejman mentioned that she had been scheduled
to work the following Friday but had been called by her supervisor, Mildred
Patrick, and told not to report.
The following day Hoffman and another union official called on Nejman at her
home shortly after noon . When they arrived Nejman was upset, just having re-
ceived the following letter from Respondent:
MARCH 16, 1961.
Mrs. MARY NEJMAN,
125 West End Street,
Westmont, Illinois.
DEAR MARY: I understand that you wish suitable work at least two days per
week at the bakery. At the present time our schedule does not make this feasi-
ble. To enable you to seek employment which may provide this work for you,
we are terminating your employment at Pepperidge Farm effective March 17,
1961.
Thank you for your past services.
Sincerely yours, [S] David Stukey,
DAVID STUKEY,
DS/meh
Plant Manager.
Enclosed please find your check for week ending 3/11/61.
BAs will appear, at this time and from about the first of the year, business had fallen
off and there had not been as much demand for the extra help as there had been.
* Celusta thereafter applied for, unemployment compensation When she learned that to
perfect her application she "had to have a low earning slip" she asked Respondent's
personnel office for it and was told it would be mailed to her. The following morning
her supervisor, Mildred Patrick, asked her to come to, the office. There Patrick "advised
her either to take a leave of absence or get a job somewhere else until things (got) better
at Pepperidge." But apparently upon Celusta's Insistence Patrick gave her the data
necessary for making an application for unemployment compensation The significance
of this interview will be made clear later.
5 Miller and Patrick were friends and neighbors of some 13 years'. standing
6I find it to have been the same day.
630849--62-vol 131-80 2'
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the Union's suggestion Nejman wrote the following letter which was sent to
Respondent by registered mail:
MARCH 22, 1961.
Mr. DAVID STUKEY, Plant Manager,
Pepperidge Farm, Inc.,
Downers Grove, Illinois.
DEAR MR. -STUKEY: I i eceived your letter of the 16th terminating ,my em-
ployment at Pepperidge Farm, effective March 17, 1961.
The reasons given were that I requested at least two days per week at the
bakery. I have never made this request and this letter is to inform you that I
wish to be reinstated on my former job under the conditions that existed
previously.
Would you please give me a reply within five days.
Very truly yours,
[Si Mary Neiman,
MARY NEJMAN.
A few days later according to Nejman's undenied and credited testimony, she
received a telephone call from Plant Manager David Stukey. He referred to her
letter and said that he could see that she was not "quite satisfied with the reason"
given for her discharge in the Company's letter. He pointed out to her that he
wanted.to-let her "of P easy" so she cbuld'collect unemployment compensation. 'She
rejected this explanation and he said, "Well, there's another reason; it is your gen-
eral attitude" which he claimed had "been going on for a year and maybe more."
When she refused to be placated he said, "Now don't feel so bad. There were a
few other people we had to let go," and went on to say that he "was in sympathy"
with her and that within a year or so it would all be forgotten and they would all be
friends again?
It is clear that Neiman knew that the a.m. bread shift had been discontinued in
December 8 and that she never made an inquiry of management as to why the "on
call" people were not getting more work or made a request to management for more
work. She also admitted that her call to Miller and Celusta was motivated by her
dissatisfaction with the amount of work she was getting and her desire to see if they
"were also dissatisfied." It also appears from Nejman's undenied and credited testi-
n}orly that any "on call" employee who at any time applied for unemployment com-
pensation "would be'automatically discharged." ' -
Respondent's defense concerning Nejman's discharge (based essentially on the
testimony of Plant Manager David Stukey and Production Supervisor Mildred
Patrick) in substance is that a discontinuance of the a.m. breadline required a cur-
tailment of the a.m. "on call" list and that because of Nejman's "general attitude"
and her "unavailability" she was the first to be chosen for elimination notwithstand-
ing that she had the most seniority. Furthermore, Respondent denies any knowl-
edge of Neiman's union activity prior to her discharge.
In these connections Stukey testified-as follows: When the breadline was dis-
continued on the a.m. shift in December 1960 there were 10 "on call" and 53 regular
employees on the shift but only "43 jobs open." This gave rise to concern on the
part of management because it was not able to furnish work to the "on call" em-
ployees "even 1 day a week." 9 In weekly production meetings 10 they discussed
"the problems" created by this lack of work for the "on call" list but took no action
because they were hoping that a formula for a new loaf that would become available
would enable them to absorb the "on call" people.
Finally, about March 6 or 7, instructions were received from Earl Johnson, division
manager, to "cut the list" of the a.m."on call", girls. Thereupon the supervisory
group "had daily meetings . . . trying to decide who shouldbe cut." Final decision
was reached either on Friday the 10th or Monday the 13th. That decision involved
Nejman and two others-Ann Celusta and Edith Brendeck. As indicated, Respond-
7 In addition to the foregoing it appears from Stukey's testimony that Neiman "would
not acknowledge the fact that she had ever requested 2 days' work from the Company "
And that his "answer to that was, 'I have it on good authority and I think you had better
tefresh your memory.' " She also told him at ' same point in the conversation " that she had
been a faithful Pepperldge employee except for the last two weeks. . '
8 Nejman worked on the a.m. shift, which was one of the three shifts being worked by
Respondent. Each shift had its own "on call" list, Nejman 's being composed of about
10 employees.
8 The excess regular employees were absorbed elsewhere in Respondent 's operations.
10 These meetings generally Involved ( besides Stukey ) Fred Stella, production manager ;
Mildred Patrick, production supervisor ; and Mary Haun , personnel supervisor.
PEPPERIDGE FARM, INC. 1251
ent was aware of Celusta's purpose of applying for unemployment compensation and
tried unsuccessfully to talk her out of it. It also appears from Production Supervisor
Patrick's testimony that at the time decision was made to let the three employees go
she knew that Brendeck had also applied for unemployment compensation or was
going to do so.
As shown, Nejman was number one to be cut by reason of (a) her "unavailability"
and (b) her,"general attitude." As to_ (a) it appears that from sometime in Decem-
ber 1960 she had been granted and had taken about an 8-week leave of absence.
Shortly after she returned to work in early February she took an additional 2 weeks
due to the hospitalization of her husband.
As to (b) above, Stukey testified that Nejman's "general attitude" 11 from the time
she had gone "on call" in 1957 "and even prior to '57" was discussed and considered
by the supervisors in reaching the decision to eliminate her from the "on call" list.
In this connection Stukey testified on direct examination that there was reason to
believe that when Nejman did not want to work she would not answer her telephone
but that the Company "found out later from other employees that she was home."
The following day, on cross-examination, Stukey volunteered this statement:
I would like to change this. We talked about it on the way down this morning,
and it was an example that was given to me (as) one of the problems that you
had with on call girls. And. one of the on call girls did use this trick, and I am
sorry, Mary, I withdraw it.
As to Nejman's discharge, Patrick testified as follows: To her "one of the primary
qualifications for a suitable on-call girl is that the on-call status as it is, is satisfac-
tory to her needs." With respect to Nejman, Patrick had "reason to believe that the
on-call status as it was, was not satisfactory to her." The fact that Patrick did not
get this information from Nejman herself but from other employees tended to make
Patrick's "feeling toward her a little stronger," because, as she explained, "our nor-
mal procedure is when people have a problem concerning ... their working conditions
or anything effecting their job, that they come directly to their supervisor and do
not seek a solution to their problem until at least they have reminded their supervisor
they have a problem." 12
It is clear that the information Patrick was referring to in the above connection
was the information (noted above) that she got from- Miller about' Nejman,s
call to Miller and also -to the information which she got during the "first.week'of.
March" 1961 from Violet Sutkus, a `supervisor trainee at that time. Sutkus' had'
told Patrick the previous "September after the vacation season ended and work got
slack, that Mary had called her and asked her if she would be willing to go along
with her on the idea of all the on-call girls making themselves not available for
work for a period of one week" for the purpose of showing Respondent how
much the on-call girls were needed. According to Patrick, it was on the strength
of this information that she could name Miller's telephone caller on "the old .. .
three guesses and the first two don't count" basis. To her it clearly was Nejman
"showing her discontentment again the same as she did last September in calling
the girls. . This had a familiar ring."
Like Stukey, Patrick was not sure of the exact date that the decision was made
to discharge the three employees; at one point she testified that the decision was
made the last part of February or the first part of March and at another she testified
that it was either March 11 or 13.13 She was sure , however (with the aid of a
leading question), that the decision had been made,before she received Miller' s call.
That call, she testified, just made her "more sure" that the "decision had been
right." Like Stukey and the others who attended the weekly production meeting'
and the "daily meetings" from March 6 to 13 to decide the momentous question of
who among the a.m. "on call" employees were to be eliminated, Patrick denied
any knowledge of any union activity on Nejman's part prior to her discharge and
denied that any question of any possible connection between Nejman and the Union
was raised in the discussions about her.
Nonetheless, Patrick admitted that as early as March 1 she knew there was union
activity involving the plant. She also admitted that she received communications
11 Stukey made it clear that he was not personally acquainted with Neiman's record
and that his testimony was based on information supplied and discussed in these meetings,
chiefly by Nejman's immediate supervisor, Mildred Patrick.
12 Patrick's explanation of her use of the word "solution" here shows that she meant
Nejman's enlisting the aid of her fellow employees
1a That it was the 13th was confirmed by Production Manager Fred Stella-and I
so find.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about this activity from "many" of the employees. On his part Stukey testified that
management knew that there was union activity directed at Respondent as far
back as the last week in February. He first learned of it from his local barber
while getting a haircut. He immediately called the general manager and the pro-
duction manager about it. At that time "the grapevine just took it" and within
48 hours "it was common knowledge of supervision." Stukey admitted that man-
agement had many discussions and meetings about the union campaign realistically
explaining that "if a union attempts to organize your plant you want to know all
about it." Elsewhere in his testimony Stukey indicated (in connection with the
telephone call Patrick had received from Miller) that there were "feed backs from
other on call girls also on the same subject."
Conclusions
I am convinced that the foregoing evidence and the record as a whole clearly
shows that. Nejman's discharge was motivated by her union or concerted activity
and thus was discriminatory within the meaning of the Act. I so find.
Considering the unique part played by Nejman in the union campaign, Respond-
ent's admission of its many meetings about the Union and its purpose "to know all
about it," and its "common knowledge" of the campaign as quickly gained from
"the grapevine and from many employees and individual `.`feed backs" 14 (not to
mention Stukey's barber), all strongly support the inference that Respondent was
aware of. Nejman's union activity when she was discharged. I so find. Wiese Plow
Welding Co., Inc., 123 NLRB 616, 618.
Nejman's admitted competence as an employee and Respondent's admitted oppo-
sition to any concerted efforts on the part of its employees to correct problems
"concerning . . . their working conditions or anything affecting their job" cer-
tainly do not preclude Nejman's union activity as a cause of her discharge. That
it was the cause is amply demonstrated by an analysis of Respondent's evidence.
In this connection I am swayed in part by the inconsistency and exaggeration
in Respondent's case. The attempt to lend the impression that the "problem" of
what to do with the idle "on call" employees was a major policy matter meriting
months of weekly meetings and, in its latter stages, daily meetings does not make
sense . Actually, if there was a "problem" for Respondent in the matter, it would
have been (and undoubtedly was) how to keep its reserve of all-purpose, com-
petent, "on call" employees rather than to eliminate them. This was obviously
Patrick's purpose when she tried to dissuade Celusta from applying for unemploy-
ment compensation which act would automatically subject her to discharge and
eliminate her, from Respondent's costless ready reserve list.
The charge of "unavailability" levelled against Nejman savors of both exaggera-
tion and inconsistency. To censure Nejman for "unavailability" under the cir-
cumstances here is certainly stretching the term substantially. Moreover, on these
facts it also is highly inconsistent with reality. Since Respondent had no need of
her services, rather than penalize and criticize her for her "unavailability" at the
time, it would seem that Respondent should have welcomed it since by Respondent's
theory it would in some sense have alleviated Respondent's "problem." Further-
more, if "unavailability" was so anathema to Respondent the question arises as to
why Patrick at this very time was suggesting that Celusta adopt exactly the course
of action that Respondent was, criticizing in Nejman. And in this connection, Re-
spondent's attempt to justify Nejman's discharge as part of a planned group action
by combining it with the mandatory discharges of Celusta and Brendeck,15 under
the circumstances herein, shows the speciousness of Respondent's position. More-
over, since- the summer months provide more work for the "on call" people because
of vacations among other things as testified to by Stukey, it seems strange that Re-
spondent should have carried its "problem" all through the winter and then on the
very threshold of summer decide to gratuitously cut down its "on call" reserve.
For these reasons, and considering the record as a whole, I conclude and find that
14 Stukey testified as to "feed backs" in connection with Nejman's attempt to interest
the on-call girls in making a concerted request for more work. If her fellow employees
were so ready to report to management Nejman's relatively innocuous "Let's you and I
ask the boss for more work" approach, I believe they would have been and were decidedly
more ready to report the much less innocuous approach of "Let's you and I join a union
and get it to demand more work for us."
15 According to Patrick's testimony she knew that Brendeck had "been put in a very
embarrassing situation by her husband" by his insisting that she apply for unemployment
compensation . Thus, her discharge was also mandatory.
PEPPERIDGE FARM, INC. 1253
at the time the discussion was made to discharge Nejman, Respondent was aware
of her union activity and was motivated by such knowledge in the action it took
against her.
In any event, even if Respondent had no knowledge of Nejman's union activity,
the record is clear that it did have knowledge of her attempts to get her fellow
employees to take concerted action regarding their working conditions and that
these attempts, notwithstanding Patricks denials,16 also played a controlling part
in her discharge which was discriminatory for that reason.17
B. The 8(a) (1) allegations
The evidence shows that on or about March 11, 1961, Respondent announced
and put into effect a 5-percent wage increase. Also at the the same time Respondent
announced the effectuation of a savings and stock bonus plan and some changes
in the existing pension plan. The General Counsel alleges these actions to have
been motivated by Respondent's desire to interfere with the exercise of rights guar-
anteed its employees under the Act.
As for the savings and stock bonus plan and the pension plan changes, the
evidence shows that they were the outgrowth- and result of the acquisition of Re-
spondent'by the Campbell Soup Company late in 1960 and that they had been under
study and consideration approximately from that time. The evidence also shows
that in order to make the employee benefits of the two companies comparable,
the board of directors of both corporations, by resolution on March 1, -1961, ap-
proved the pension plan changes and the application of the Campbell Soup savings
and stock bonus plan to the newly acquired Pepperidge Farm entity. Although its
timing is suspicious, since this action had its inception long before the Union
made its appearance at Respondent's plant, I find that it had no connection with
the union campaign to organize Respondent's employees and recommend dismissal
of these allegations of the complaint. '
As for the wage increase put into effect about the climax of the Union's organiza-
tional attempt, while its timing (together with the discrimination and other,cir-
cumstances herein) also raises a strong suspicion that it was inaugurated for the
purpose of influencing the employees' judgement as to their desires and need for
a collective-bargaining agent, I find that the General Counsel has failed to prove
this allegation by the necessary preponderance of the evidence.
It appears that every year Respondent has voluntarily surveyed its competitive
position wagewise in its area of operation and granted wage increases in accordance
with its findings. In the increase in question, because of its acquisition by Campbell
Soup a wage increase by Respondent was deferred pending a complete review of
Respondent's employee benefits by the new owner so as to inaugurate any changes
regarding them as part of "a complete package." There is enough plausibility in
Respondent's uncontroverted explanation here to compel a dismissal of this allega-
tion of the complaint also. I so find and recommend
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section, III, above,,-occurring in
connection with the operations of the 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.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the
14 In a sworn statement taken from Patrick before the hearing she said that Neiman's
discharge "took its inception" from reports to her by other employees (including Miller)
that Neiman "was trying to organize these 'on call ' employees" for the purpose of demand-
ing at least 2 days' work a week from Respondent. On the stand Patrick testified to the
contrary and repudiated this statement with the explanation that upon reflection she
had come to the conclusion that she had been in error on the above statement Because of
this and many other inconsistencies in her own testimony and between hers and Stukey's
I am convinced that she Is not worthy of credence.
17 Respondent's contention that Neiman's actions in this respect were not concerted
activity within the meaning of the Act is in error. See The Office Towel Supply Company,
Incorporated, 97 NLRB 449, 451 ; Salt River Valley Water User8 Aaeociatson, an Arizona
Corporation, 99 NLIIB 849, 853.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
As it has been found that the Respondent discriminated with regard to the hire
and tenure of employment of Mary Nejman in violation of Section 8(a)(3) and (1)
of the Act, the Trial Examiner will recommend that the Respondent offer her im-
mediate and full reinstatement to her former or substantially equivalent position,
without prejudice to her seniority or other rights and privileges . See The Chase
National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB
827. It will be further recommended that the Respondent make the aforesaid em-
ployee whole for any loss of pay suffered by reason of the discrimination against
her. Loss of pay shall be based upon earnings which Nejman normally would
have earned from the date of the discrimination against her, to the date of her re-
instatement , less net earnings , computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289; N.L.R.B. v.
Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. It will also be recom-
mended that the Respondent preserve and, upon request, make available to the
Board payroll and other records to facilitate the computation of the backpay due.
As the unfair labor practices committed by Respondent involved discrimination
and are therefore of a character striking at the root of employee rights safeguarded
by the Act, it will be recommended that the Respondent cease and desist from
infringing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 1, American Bakery and Confectionery Workers' International Union,
AFL-CIO, is a labor organization within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of the em-
ployee named above in the section entitled "The Remedy," thereby discouraging
membership in the Union , the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent did not engage in the independent 8(a)( I) conduct as alleged
in the complaint.
[Recommendations omitted from publication.]
Cactus Petroleum , Inc. and International Union of Operating
Engineers , AFL-CIO , Local No. 351 . C we No. 16-CA-1393.
December 14, 1961
DECISION AND ORDER
On November 18, 1960, Trial Examiner John F. Funke issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, and .the Respondent filed a brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
134 NLRB No. 126.