Quaker Bakery Machine Co.

National Labor Relations Board - Board Decisions

Aug 21, 1972

198 N.L.R.B. 1007 (N.L.R.B. 1972)

QUAKER BAKERY MACHINE COMPANY
Quaker Bakery Machine Company and United Elec-
trical , Radio & Machine Workers, Local # 155.
Case 4-CA-5694
August 21, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On March 30, 1972, Trial Examiner William F.
Scharnikow issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief, a motion to strike certain
portions of the Respondent's brief, and a cross-
exception to a portion of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order as modified herein.'
We additionally find that Respondent, on August
11, 1971, through its manager, John Vuytecki, by
telling its employees and organizers for the Union
that it would rather go out of business than fight the
Union, and by closing the plant doors, paying off the
employees 2 days in advance of payday, and telling
employees that Respondent would not be open on
payday, thereby interfered with, restrained, and
coerced the employees in the exercise of the right to
engage in self-organization guaranteed in Section 7
of the Act, and engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner, as modified herein,
and hereby orders that Respondent, Quaker Bakery
Machine Company, Philadelphia, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommend-
ed Order, as modified herein:
1. Insert, as paragraph 1(a) in that section of the
Trial Examiner's Decision entitled "Order," the
following, and reletter the subsequent paragraphs
accordingly.
"(a) Threatening to go out of business rather than
198 NLRB No. 141
1007
bargain with United Electrical, Radio & Machine
Workers, Local # 155."
2. Substitute the attached notice for the Trial
Examiner's notice.
i While Chairman Miller agrees that a bargaining order is appropriate
herein, he would, for reasons stated in his separate concurrence in United
Packing Company of Iowa, Inc, 187 NLRB No 132, predicate the remedy
only on the serious independent violations of Section 8(a)(1) and (3).
In view of our Decision herein , we find it unnecessary to pass on General
Counsel's motion to strike certain portions of the Respondent's brief and
the affidavits thereto attached
We deny Respondent 's request for oral argument , as in our opinion the
record and briefs adequately present the issues and positions of the parties
in this proceeding
2 See West Side Plymouth, Inc, 170 NLRB 686, 687-688
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to go out of business
rather than bargain with the United Electrical,
Radio & Machine Workers, Local # 155, or any
other labor organization.
WE WILL NOT discharge any of our employees
or otherwise discriminate against any of them in
their hire, tenure, or other terms or conditions of
employment in order to discourage membership
in United Electrical, Radio & Machine Workers,
Local # 155, or in any other labor organization.
WE WILL offer Harry Wilson, Richard Young,
Sydney Williams, Calvin Via, and Benjamin
Nicholson full reinstatement to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, and we will make each of them whole
for any loss of earnings suffered as a result of his
discharge.
WE WILL, upon request, bargain collectively
with United Electrical, Radio & Machine Work-
ers, Local # 155, as the exclusive representative
of all our employees excluding office clericals,
guards, and supervisors as defined in the National
Labor Relations Act, with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and will embody in
signed agreements any understanding reached.
WE WILL NOT in any manner interfere with,
restrain, or coerce any of our employees in the
exercise of their right to self-organization, to form
labor organizations, to join or assist United
Electrical, Radio & Machine Workers, Local #
155, or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in any other concerted
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities for the purpose of collective bargaining
or other 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 by Section 8(a)(3) of the Act.
QUAKER BAKERY
MACHINE COMPANY
(Employer)
Dated By
(Representative) (Title)
WE WILL notify immediately the above-named
individuals, if presently serving in the Armed Forces
of the United States, of the right to full reinstate-
ment, upon application after discharge from the
Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1700 Bankers Securities Building,
Walnut and Juniper Streets, Philadelphia, Pennsylva-
nia 19107, Telephone 215-597-7601.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: On August
31, 1971, United Electrical, Radio & Machine Workers,
Local # 155, herein called the Union, filed an unfair labor
practice charge with the Regional Director, alleging that
the Respondent, Quaker Bakery Machine Company, had
committed unfair labor practices, and on the same day the
Regional Director served a copy of the charge on the
Respondent by registered mail, enclosing an explanatory
letter. On September 3, 1971, the secretary of Ned Stein, a
Philadelphia attorney, advised the Regional Director by
letter that Mr. Stein represented the Respondent and that
she would bring the Regional Director's letter and its
enclosures addressed to the Respondent, to the attention of
Mr. Stein on his return from a holiday on September 13.
On November 30, 1971, the Regional Director, acting on
behalf of the General Counsel on the basis of the aforesaid
unfair labor practice charge, issued and served upon the
Respondent a notice of hearing and a complaint alleging
that the Respondent, a Pennsylvania corporation, acting
through John Vuytecki, one of two of its named officials
and supervisors-the other being Ed Rosenberg, had
committed unfair labor practices affecting commerce
within the meaning of Section 8(a)(1), (3), and (5) and
Section 2(6) and (7) of the National Labor Relations Act,
as amended, 29 U.S.C. Sec. 151, et seq., herein called the
Act. With respect to the unfair labor practices, the
complaint alleged ( 1) that the Respondent committed
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act, by discharging seven of the Respon-
dent's employees on or about August 11, 1971, because
they designated, and "otherwise affiliated with" the Union
as their bargaining agent , and engaged in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection; and (2) that on and after August
11, 1971, the Respondent also committed unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act, by refusing to bargain with the Union as the
exclusive bargaining representative of an appropriate
bargaining unit of all the Respondent's employees exclu-
sive of office clericals , guards , and supervisors , although a
majority of the employees in said unit had designated or
selected the Union as their representative for the purpose
of collective bargaining with the Respondent . In the notice
incorporated in the complaint , the Regional Director
advised the Respondent that a hearing would be conducted
by a Trial Examiner in the Board's Philadelphia hearing
room on January 5, 1972, at I1 a.m., and that if the
Respondent failed to file an answer to the complaint with
the Regional Director within 10 days after service of the
complaint , all the allegations of the complaint would be
deemed to be admitted as true and the Board might so
find.
On December 10, 1971, George A. Burnstein, another
Philadelphia attorney, filed an answer to the complaint on
the Respondent 's behalf . The answer admitted , inter alia,
the allegations of the complaint with respect to the
Respondent 's corporate status ; the nature and volume of
its business as an employer in interstate commerce; the
appropriateness of the described bargaining unit ; and the
identity of John Vuytecki and Ed Rosenberg as "officials"
and supervisors of the Respondent within the meaning of
Section 2(11) of the Act. The answer of the Respondent
denied, however , the allegations of the complaint with
respect to the unfair labor practices , i.e., the discharges of
the seven employees ; the selection of the Union by a
majority of the unit employees as their bargaining
representative ; the Union's bargaining requests; the
Respondent's refusal to bargain with the Union ; and the
conclusions set forth in the complaint that the Respondent
had committed unfair labor practices.
On December 30, 1971, Attorney Burnstein , in a letter to
the Regional Director, requested at least a 2-week
postponement of the hearing scheduled for January 5,
1972, in order to continue negotiations with the Union for
an adjustment of the dispute on an amicable basis. Mr.
Burnstein indicated in the letter that he was sending copies
not only to the Union but also to Attorney Ned Stein and
Attorney E. L. Pincus, a third attorney with an office in
Philadelphia.
On January 3, 1972, the Regional Director issued an
order upon the foregoing request of Mr. Burnstein as
Respondent's attorney , rescheduling the hearing from
January 5, 1972, to January 17, 1972 , and caused service to
be made of the order by registered mail the same day, upon
QUAKER BAKERY MACHINE COMPANY 1009
the Respondent at its place of business, upon Mr.
Burnstein as its attorney, and upon the Union. On January
7, 1972, on the application of the General Counsel, the
Board issued and the General Counsel caused service to be
made of the following subpoenas returnable and requiring
appearances before a Trial Examiner of the Board at the
Board's hearing room in Philadelphia at I1 a.m. on
January 17, 1972: a subpoena directed to John Vuytecki,
another directed to Edward Rosenberg, a third directed to
Harriet Howard, the Respondent's bookkeeper, and also a
subpoena duces tecum directed to the Respondent.
By letter dated January 12, 1972, Mr. Burnstein notified
the Regional Director that he was withdrawing his
appearance on behalf of the Respondent.
In a letter to the Regional Director dated January 12,
1972, Attorney Ned Stein referred to Mr. Burnstein's
withdrawal from the case; stated that he was "now
representing Quaker Bakery Machinery Corp. by its
majority stockholder, Edward Rosenberg;" that "The
minority stockholder is represented by Erwin L. Pincus,
Esq."; and that Stein was applying to the Regional
Director "to have the hearing scheduled for January 17
continued until any time after February 1" at which time
the subpoena already issued "will be recognized." As the
reason for this request , Mr. Stein's letter stated that,
"Unfortunately, I have made arrangements to be away
from my office from January 15 until February 1 upon my
physician's advice to take a vacation which is necessitated
by my heart condition."
Still another Philadelphia law firm, Modell, Pincus,
Hahn and Reich, briefly entered the picture. On January
13, 1972, Allen B. Dubroff of that firm, wrote the Regional
Director that the firm represented "John Vuytecki, the
minority stockholder of Quaker Bakery Machine Corp.,"
and, stating that "Erwin L. Pincus of this office who is
handling this matter is away on vacation and will not
return until January 24, 1972," asked that the hearing be
rescheduled "for some time after February 1, 1972" at
which time the persons already subpoenaed would appear.
In a letter to the Regional Director dated January 13,
1972, counsel for the Union opposed any further continu-
ance , arguing that "the people who have been discharged
have been caught in the middle of this dispute for some
time now."
The Regional Director denied both requests for further
postponement of hearing on January 14, 1972. He denied
the request of Attorney Ned Stein, as "attorney for Quaker
Baking Machine Company" by an order issued and served
by registered mail on that date. In a letter to Mr. Dubroff,
also dated January 14, he "confirmed" his denial of Mr.
Dubroff's requests, noting that "your client has not been
named or admitted as a party to this proceeding."
Pursuant to the Regional Director's order rescheduling
the hearing for I 1 a.m., on January 17, 1972, a hearing was
held before me, the Trial Examiner duly designated by the
Chief Trial Examiner at Philadelphia, Pennsylvania, on
January 17 and 18, 1972. The General Counsel and the
Union appeared by counsel. No one appeared to represent
the Respondent. Nor did any of the three persons
subpoenaed by the General Counsel. At the beginning of
the hearing, the General Counsel submitted the unfair
labor practice charge , the complaint , the Respondent's
answer, the Regional Director's orders granting one
postponement of hearing and denying the requests for a
further postponement , and the various letters to which
reference has been made . In addition, the General Counsel
also informed me that a Mr. Comanor , Mr. Stein's "law
partner," had appeared in the hearing room at approxi-
mately 10:45 a .m., and thus 15 minutes before the
scheduled time for hearing; that Mr. Comanor had said
"that Mr. Stein would not be here . . . that there would be
no representative here for the Respondent ," and that Mr.
Comanor did not intend to represent the Respondent since
"he knew nothing of the facts of the case"; and that , within
a few minutes after his appearance and before 11 a.m., Mr.
Comanor had left the hearing room. According to the
General Counsel 's further statement to me , he told Mr.
Comanor before he left that I was the General Counsel's
intention to proceed with the hearing.
The foregoing discussion of the situation with the
General Counsel, in which counsel for the Union also took
part , lasted until approximately 11:45 a.m . and is set forth
on the record in the transcript of the hearing. I then
informed counsel I would recess the hearing until 2 p.m.
and asked the General Counsel to telephone the offices of
Mr. Stein and Mr. Burnstein , and leave a message that the
hearing would again be in session at 2 p.m., and that I
would "entertain any application of anybody from either
of the offices that they make to me at 2:00 o'clock; and
... that absent any appearance by either of them or if in
my opinion on appearance by either of them there's not
adequate ground for a further continuance I [would]
permit [the General Counsel ] to go ahead and present [his]
case."
When the hearing was reconvened at 2 p.m., Attorneys
LeRoy Comanor and George Burnstein appeared in the
hearing room in response to the General Counsel's
telephone calls. Mr. Comanor stated upon the record that,
although they shared the same suite of offices and are
associated in a few matters , Mr. Stein and he are not
partners ; that he has never been associated in the
representation of the Respondent ; that he did not
represent the Respondent , was not entering an appearance,
and knew nothing about the matter but had come to the
hearing as a courtesy to the Trial Examiner; that he had
merely come to the hearing room at Mr. Stein's request to
advise the Trial Examiner that Mr. Stein "had left on his
vacation pursuant to his doctor's suggestion that he do so."
Mr. Burnstein , in turn , informed me on the record that he
had withdrawn his appearance for the Respondent; that he
had so advised Mr. Stein, Mr. Vuytecki, and the latter's
attorney, Mr. Pincus ; and that he (Burnstein) was "in no
position to make any motions on their behalf and .. .
really [didn't] wish to associate [himself] further in the
entire matter." Upon receiving the statement , I informed
both attorneys they were free to stay in the hearing and
that I was about to consider whether to permit the General
Counsel to proceed with his evidence. But both attorneys
left the hearing room.
Thereupon, the General Counsel joined by counsel for
the Union requested permission to go forward with the
evidence. The General Counsel pointed out that there had
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been no renewal at the hearing of the postponement
request previously denied by the Regional Director. I
granted the requested permission, admitted the exhibits
proffered in connection with the pretrial portion of the
proceedings, and noted specifically that "insofar as the
exhibits can show me, . . . all counsel and parties who
might have been interested in presenting evidence or in
cross-examining the General Counsel's proof or witnesses
have made no appearance before me this morning, nor this
afternoon." Accordingly, since no one later appeared
during the hearing on behalf of the Respondent, the
hearing proceeded upon the evidence produced by the
General Counsel subject to cross-examination by counsel
for the Union.
Since the close of the hearing, the Chief Trial Examiner
by telegraphic order dated February 11, 1972, extended the
time for filing briefs from February 15 to February 28,
1972, on the application of the General Counsel and again
by telegraphic order dated February 28, 1972, on the
application of Ned Stein, as the Respondent's attorney, to
March 6, 1972. Thereafter, I received a brief from the
General Counsel, and also from the Respondent, both of
which have been duly considered.'
Upon the entire record in the case, my observation of the
witnesses, and a consideration of the briefs submitted, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Quaker Bakery Machine Company, a
Pennsylvania corporation with its place of business in
Philadelphia, Pennsylvania, is engaged in the sale, service,
and installation of commercial bakery machinery. During
the year preceding the issuance of the complaint, the
Respondent, in the course and conduct of its business
operations, purchased and received goods valued in excess
of $50,000 from locations outside of the Commonwealth of
Pennsylvania. I find that the Respondent is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of the Act and that it will
effectuate the policies of the Act to entertain jurisdiction in
the present case.
II. THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers, Local
# 155, herein called the Union, is a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Appropriate Bargaining Unit and the
Union 's Selection as Bargaining Representative by a
Majority of the Employees Therein
The Respondent buys used bakery machinery , repairs it
in its four-story Philadelphia shop, and resells it, in some
instances installing it at the purchasers ' places of business.
1 A motion made by the General Counsel on March 23, 1972, to strike
the Respondent's brief as untimely filed, is denied However, in agreement
with another branch of the General Counsel's motion, I make no findings
The Respondent's business and operations are conducted
by two of its stockholders, John Vuytecki and Ed
Rosenberg, both of whom have desks in a small office at
the Respondent's plant. There is only one office employee,
Harriet Howard, who works at a third desk in the office.
Ed Rosenberg works only in the office and not in the shop.
John Vuytecki, in addition to his work in the office,
supervises the work in the shop. There are no other
supervisors.
In addition to the single office employee, the Respondent
employed only seven full-time employees and two part-
time employees on August 11, 1971, and the period
immediately preceding that date.2 The two part-time
employees, who worked two or three times a week, were
Horace Black, who was a machinist, and another man
known to the witnesses only as "Joe," who did some
machine work, cleaning, and painting. Of the seven full-
time employees, one of them was Bernie Siegel (the shop
electrician), another was Clifford Mims (a truckdriver),
and the remaining five were Harry Wilson, Sydney
Williams, Richard Young, Calvin Via, and Benjamin
Nicholson,' who worked as mechanics , machinists, or
laborers both in the repair work at the shop and on outside
installations.
James Devore, an organizer for the Union, met with five
of the full-time employees at the request of employee
Harry Wilson on the evening of July 30 and gave them the
Union's membership application and bargaining authori-
zation cards. When the men began work on the morning of
August 11, Devore had in his possession cards signed by all
seven of the full-time employees. Four of the full-time
employees (Wilson, Young, Via, and Nicholson) had
signed and delivered their cards to Devore on July 30, the
evening they had met him. The other three full-time
employees (Williams, Siegel , and Mims) had signed their
cards on the morning of August 11 and the cards were
given to Devore when he came to the shop to see Vuytecki
that morning.
Upon these facts and in agreement with the General
Counsel and counsel for the Union as to the propriety of a
broad employee unit I find and conclude that at the time
work started on the morning of August 11, 1971, the Union
had been designated and selected as bargaining representa-
tive by a majority of the Respondent's employees in the
following appropriate unit for the purpose of collective
bargaining as provided by Section 9(a) and (b) of the Act:
All employees of Respondent, exclusive of office
clericals, guards, and supervisors as defined in Section
2(11) of the Act.
B. The Respondent 's Refusal To Bargain and its
Discharge of Five of its Full-time Employees
Union Representative James Devore , accompanied by
Gus Schestok , another union representative, went to the
Respondent's shop to see John Vuytecki at 8:30 a.m. on
August 11. They entered the office and were told by
Harriet Howard, the secretary , that Vuytecki was not there.
Supplied by the employees with a general description of
based upon certain statements in the Respondent 's brief which find no
support at all in the evidence before me.
2 All events in the present case took place in 1971
QUAKER BAKERY MACHINE COMPANY
Vuytecki and what he was likely to be wearing, they waited
on the street but Vuytecki apparently did not come to the
office or shop that morning and they left. At 9 a.m.,
Vuytecki had called the shop and, in answer to his
question, employee Sydney Williams told him there were
no calls for him that morning 3 During the morning,
employee Richard Young saw Vuytecki walk down the
street past Devore and Schestok without entering the
building.
Later in the morning, Vuytecki appeared at an installa-
tion the Respondent was making in Pennsauken, New
Jersey, just across the Delaware River from Philadelphia,
with a crew consisting of employees Wilson, Williams, and
Via. While they were there Vuytecki said to Wilson, "I'm
going to tell you, Wilson, like I told Sid; I'm not going to
fight with the other side; I'm not have anything to do with
it; I'd ratherjust close the shop down and keep a mechanic
and electrician and just do repair work," and that he
"wasn't going to fight with outsiders." Then Wilson saw
Vuytecki make a telephone call, and overheard him
address some one as "Hamet" and tell her she was "to
make out the paychecks for 5 o'clock." Wilson thereupon
called employee Richard Young at the shop, told Young
what he had heard, and asked Young to call him back and
tell him what was happening in the shop.
Young thereupon went into the office and asked Miss
Howard, who was alone, what was going on. Howard said,
"I'm only following orders from John [Vuytecki] to take all
the cards out of the time rack and make everybody's pay
up." By this time, as Young had noticed, there were in fact
no cards in the time rack. Young then called Wilson at the
Pennsauken job and told Wilson what he had just learned.
Vuytecki had just left the Pennsauken job and Wilson and
the rest of the crew started back to the Philadelphia shop
within a short time.
Vuytecki returned from Pennsauken and entered the
office at about 1:15 p.m. In the meantime, Union
Representatives Devore and Schestok, having left during
the morning, had returned to the shop and were told by the
employees that Vuytecki was now in his office. The two
union representatives entered the office and in response to
their question, Miss Howard pointed out Vuytecki who
was sitting at one of the desks. No one else was present in
the office.
Devore introduced himself to Vuytecki, presented the
seven union cards signed by the employees, and began
talking about the cards. Vuytecki looked through the cards
and said to Devore "that he didn't want to fight with
anybody; he wasn't making any money . . . that business
was doing bad; he was doing the employees at Quaker a
favor by keeping them on . . . and if he felt as though he
did something to deserve being punished by a union being
present at Quaker . . . he could understand it; but he had
done no wrong to his workers . . . [and] that he was
getting out . . . he was going to liquidate the business."
Devore urged Vuytecki to take his time in making a
decision on union recognition but Vuytecki kept shaking
3 An apparent error in the transcript at p 139, 1 8, and again at I. 10,
would make it appear that Williams testified that Vuytecki asked him and
he replied in the negative as to whether anybody had "carded in" instead of
"called in " The error is hereby corrected
1011
his head, saying "No, no, no, I'm getting out of the
business; it's not worth it." Devore and Schestok left the
office and spoke to all seven of the full-time men who had
gathered in the back of the shop to await word of the
outcome of Devore's interview with Vuytecki. Devore told
them what Vuytecki had said and, during his conversation
with the men, Vuytecki came out of the office, brought in a
forklift from the street, closed the plant doors, and
returned to the office. The men washed up, dressed in their
street clothes-some of them may already have started
dressing-and went out into the street sometime between 2
and 3 p.m. to wait for picket signs from the Union.
Five of the men were waiting in the cars of employees
Richard Young and Sydney Williams when Vuytecki came
out of the office-still slightly before 3 o'clock-with what
turned out to be their paychecks up to 5 p.m. that day. This
was on August 11, a Wednesday, and was not their payday,
which normally was on Friday. Vuytecki went up to each
of the two cars and either handed each of the five men
their paychecks or threw them into the cars.
To Young, who was sitting behind the wheel of his car,
Vuytecki said merely, "I don't want to fight it; I'm going
out of business." To employee Harry Wilson, who was also
in Young's car, Vuytecki said, "Do you want your pay
now?" and then, when Wilson said he would wait until
Friday, Vuytecki threw Wilson's pay envelope into the car
and said, "We won't be open Friday."
Vuytecki made similar comments in giving their pay-
checks to employees Sydney Williams, Calvin Via, and Ben
Nicholson, who were sitting in Williams' car. To Williams,
he said, "Here's your pay," and when Williams asked why
he was being paid off on Wednesday, Vuytecki replied to
all three men in the car, "It's yours. I don't want to fight
with nobody. I don't want the responsibility."
In view of Vuytecki's statements to Union Representa-
tive Devore in rejecting the Union's request for recognition
and the statements made by him almost immediately
thereafter to the five men in giving them their paychecks
on Wednesday, August 11, rather than wait until their
usual payday on Friday, it is clear-as it was to the
men-that Vuytecki discharged them in the afternoon of
August 11 in order to avoid recognizing the Union as their
representative. Beginning the same afternoon, and inter-
mittently for the next 4-1/2 months preceding the hearing,
the men picketed the Respondent's shop.
In the meantime, Union Representative Devore, encour-
aged by a telephone call from Attorney Ned Stein on
Friday, August 13,4 made several further attempts to
secure the Respondent's recognition of the Union, and a
request for the reinstatement of the discharged employees.
Thus, on August 16, Devore visited Ed Rosenberg in the
Respondent's office but when Devore introduced himself
and asked for recognition, Rosenberg replied, "I don't
have anything at all to say to you; I don't want to talk to
you; I don't want to discuss anything with you." Then, on
August 17, and August 19, Devore mailed letters addressed
to Rosenberg and Vuytecki at the Respondent's plant. In
9 For Mr Stein's role in this case, including his eventual filing of a brief
following the hearing, see the in.tial section of the present Decision entitled,
"Statement of the Case "
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the letters Devore referred to Vuytecki's and Rosenberg's
previous rejections of the Union's requests for recognition,
and again asked that the Respondent recognize the Union
as the collective-bargaining representative of its employees.
In the second of these letters, Devore also asked the
Respondent to reinstate the discharged employees. There
was no response to either of these letters.
Contrary to Vuytecki's statements to Devore and the
men on August 11, it appears from the evidence, and I
find, that the Respondent has not gone out of business. For
the men testified and I credit their testimony, that during
the 4-1/2 months of picketing including the morning of the
present hearing, the shop has been open, machinery has
been brought in, and Vuytecki and Siegel (the electrician)
have come to work and stayed at the shop during the
normal working hours, as have Mark Rosenberg (Ed
Rosenberg's son) and a number of men in work clothes.
C. Conclusions
Upon the foregoing facts shown by the evidence, it
appears (1) that on and since August 11, 1971, the Union
has been designated and selected by a majority of the
Respondent's employees as their exclusive bargaining
representative in an appropriate bargaining unit consisting
of all the Respondent's employees exclusive of office
clericals, guards, and supervisors, as defined in Section
2(11) of the Act; (2) that acting through its agents, John
Vuytecki and Ed Rosenberg, the Respondent has, on and
since August 11, 1971, rejected the Union's request that it
be recognized and that the Respondent bargain with it as
such exclusive bargaining representative, although on its
initial request the Union submitted to Vuytecki and
Vuytecki inspected the bargaining authorization cards
signed by a majority of the employees in the unit; (3) that,
acting through its agent, John Vuytecki, the Respondent
refused to recognize or to bargain with the Union as the
employees' exclusive bargaining representative, giving as
the only reason for the refusal that "business was ... bad"
and that he was going "to liquidate" and get "out of the
business;" (4) that, as events in the next 4 months have
shown, the Respondent had no actual intention of
terminating its business but has in fact continued its
operations; and (5) that, acting through its agent, John
Vuytecki, immediately upon receipt of the Union's
recognition and bargaining request and in obvious re-
sponse thereto, the Respondent on August 11, 1971, paid
off and discharged five of the seven employees who had
signed the Union's bargaining authorizations which had
just been submitted to Vuytecki, i.e., Richard Young,
Harry Wilson, Sydney Williams, Calvin Via, and Benjamin
Nicholson.
Under the circumstances, I conclude that the Respon-
dent discharged these five employees in order to avoid
bargaining with the Union, to which they had applied for
membership and which they had selected and designated
as their bargaining agent; that, in thus discharging the five
men the Respondent discriminated against them in regard
to their hire and tenure of employment in order to
discourage membership in and support of the Union, and
that the Respondent thereby committed unfair labor
practices within the meaning of Section 8 (a)(3) and (1) of
the Act. Moreover, by thus discriminatorily discharging the
five men, the Respondent made it impossible to hold a fair
representation election under Section 9(c) of the Act for
the purpose of determining the Union's majority support.
Accordingly, upon the basis of the proof that a majority of
the Respondent's employees in the appropriate bargaining
unit had signed the Union's bargaining authorizations, I
find and conclude not only that at the times of the Union's
bargaining requests on and since August 11, 1971, the
Union had in fact been selected by a majority of the
Respondent 's employees as their collective-bargaining
representative in the appropriate unit, but that the
Respondent's refusals to recognize and bargain with the
Union as such representative constituted an unfair labor
practice within the meaning of Section 8(a)(5) and (I) of
the Act.5
One further matter must be considered. The complaint
alleges that in addition to the five employees who I have
just found were discriminatorily discharged when they
were paid off by Vuytecki on August 11, the Respondent at
the same time discriminatorily discharged Clifford Mims
(the truckdriver) and Bernard Siegel (the electrician), both
of whom had also signed the Union's bargaining authoriza-
tions. In his brief, the General Counsel concedes that no
finding of discriminatory discharge should be made with
respect to Siegel since "Siegel was employed, or immediate-
ly reemployed after August I L" But, with respect to Mims,
the General Counsel argues in 'his brief that "it may
reasonably be inferred . . . in view of the mass nature of
the discharges, that [Mims] too was discharged" since, like
the five men actually paid off by Vuytecki, he was "a
Union adherent . . . employed by the Respondent prior to
August 11, 1971, but not thereafter."
In my opinion, the evidence in the present record does
not warrant a finding that either Mims or Siegel was
discharged by the Respondent and I shall therefore dismiss
the allegations of the complaint to this effect. Neither
Mims not Siegel testified at the hearing and there is no
evidence that either of them was paid off by Vuytecki when
the other five men were paid off on August 11, 1971.
Although there is testimony that Siegel continued to work
after August 11, there is no evidence either as to whether
Mims also continued to work or, if he did not, whether it
was because he had been paid off by Vuytecki with the
other five employees or had been in some other way
notified of his discharge. Upon the facts shown by the
evidence, I cannot draw the inference sought by the
General Counsel that Mims was discharged as part of a
"mass" discriminatory discharge of all union adherents.
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
5 N L R B v Gissel Packing Co, 395 U.S 575.
QUAKER BAKERY MACHINE COMPANY 1013
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent committed unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act by discharging employees Harry Wilson,
Richard Young, Sydney Williams, Calvin Via, and Benja-
min Nicholson on August 11, 1971, I will recommend that
the Respondent offer each of them immediate and full
reinstatement to his former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings suffered by reason
of his discharge by payment to him of a sum of money
equal to that which he normally would have earned from
the aforesaid date of his discharge to the date of the
Respondent's offer of reinstatement, less his net earnings
during said period. The backpay shall be computed in
accordance with the formula stated in F. W. Woolworth
Company, 90 NLRB 289. Furthermore it will be recom-
mended that the Respondent pay interest on the backpay
due to each of these employees. Such interest will be
computed at the rate of 6 percent per annum and using the
Woolworth formula, will accrue immediately with the last
day of each calendar quarter of the backpay period on the
amount due and owing each quarterly period. Isis
Plumbing & Heating Co., 138 NLRB 716.
It will be recommended that the allegations of the
complaint that the Respondent -also-conmiitted unfair
labor practices by discharging Clifford Mims and Bernard
Siegel be dismissed.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Quaker Bakery Machine Compa-
ny, a Pennsylvania corporation, is an employer engaged in
commerce within the meaning of the Act.
2. United Electrical, Radio & Machine Workers, Local
# 155, herein called the Union, is a labor organization
within the meaning of the Act.
3. At all times material herein, all employees of the
Respondent, exclusive of office clericals, guards, and
supervisors as defined in the Act, constituted, and now
constitute, a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been, and
now is, the exclusive collective-bargaining representative of
all employees of the Respondent in the aforesaid appropn-
ate unit within the meaning of Section 9(a) of the Act.
5. By refusing on and since August 11, 1971, to bargain
6 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
collectively with the Union as the exclusive representative
of all the employees in the aforesaid appropriate unit,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
6. By discharging employees Harry Wilson, Richard
Young, Sydney Williams, Calvin Via, and Benjamin
Nicholson on August 11, 1971, the Respondent discrimi-
nated against them in regard to their hire and tenure of
employment in order to discourage membership in the
Union, a labor organization, and thereby committed unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
8. The Respondent did not commit unfair labor
practices within the meaning of the Act by discharging
Clifford Mims or Bernard Siegel.
Upon the foregoing findings of facts, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following: 6
ORDER
Respondent, Quaker Bakery Machine Company, a
Pennsylvania corporation, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating in the hire,
tenure, or other terms or conditions of employment of any
of its employees in order to discourage membership in
United Electrical, Radio & Machine Workers, Local
# 155, herein called the Union, or in any other labor
organization.
(b) Refusing to bargain collectively in good faith
-concer-ning• the wages, hours, and other terms and
conditions of employment, with the Union as the exclusive
representative of all employees in the following appropriate
unit:
All employees of Respondent, exclusive of office
clericals, guards, and supervisors as defined in the Act.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist the Union or any other
labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in any other
concerted activity for the purpose of collective bargaining
or other 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 by 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) Offer to Harry Wilson, Richard Young, Sydney
Williams, Calvin Via, and Benjamin Nicholson immediate
and full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
Section 102 48 of the 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
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights and privileges, and make them whole for any loss of
earnings suffered by them as a result of the discrimination
against them, in the manner set forth in the section of the
Trial Examiner's Decision entitled, "The Remedy."
(b) Notify each of the foregoing discharged employees, if
any of them is serving in the Armed Forces of the United
States, of his right to full reinstatement upon application
after discharge from the Armed Forces, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act.
(c) 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 analyze the amount of backpay due under the
terms of this Order.
(d) Upon request bargain collectively with the Union, as
the exclusive representative of all employees in the
appropriate unit with respect to rates of pay, wages, hours
r In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
of employment, and other terms and conditions of
employment, and embody in signed agreements any
understanding reached.
(e) Post at its place of business in Philadelphia,
Pennsylvania, copies of the attached notice marked
"Appendix." 7 Copies of said notice on forms provided by
the Regional Director for Region 4, shall, after being
signed by a representative of the Respondent, be posted by
it immediately upon receipt thereof and maintained for a
period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to Respondent's
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 4, in writing
within 20 days from the receipt of the Trial Examiner's
Decision in this case, what steps the Respondent has taken
to comply herewith.8
8 In the event that this recommended Order is adopted by the National
Labor Relations Board after exceptions have been filed, this provision shall
be modified to read- "Notify the Regional Director for Region 4, in writing,
within 20 days from the date of this Order, what steps the Respondent has
taken to comply herewith "