Richter's Bakery

National Labor Relations Board - Board Decisions

Dec 29, 1942

46 N.L.R.B. 447 (N.L.R.B. 1942)

In the Matter of RICHTER'S BAKERY and BAKERY AND CONFECTIONERY
WORKER s' INTERNATIONAL UNION OF AMERICA, LOCAL No. 418
Case No. C-2282.-Decided December 09, 1942
Jurisdiction : baking industry.
Unfair Labor Practices
Interference,' Restraint, and Coercion: questioning employees concerning their
attitude toward unions and union membership ; urging, persuading, and warn-
ing employees to refrain from aiding, becoming, or remaining members of the
union ; threatening employees with 'discharge or other reprisals for aiding'
the union or union members ; keeping under surveillance the activities and a
meeting and meeting place of the union and its employees ; attending ,a union
meeting and advising employees that they did not have to join a , union to
adjust their differences ; referring to representatives of the union as out-
siders ; telling employees that the respondent would never meet with the
union or its representatives-strike found to have-been caused and prolonged
by employer's unfair labor practices although it was immediately provoked
by the respondent's refusal to bargain at a time when the union did not
represent a majority of the employees in the appropriate unit.
Discrimination: refusal to reinstate unfair labor practice strikers; discharge of
non-union supervisory employee for failure to support employer in anti-union.
campaign ; charges of, dismissed as to one employee.
Collective Bargaining: majority established by signing application blanks-re-
fusal to bargain collectively by: refusing to meet with duly designated repre-
sentative of employees.
Remedial Orders : upon request to bargain collectively; reinstatement and back
pay awarded.
Unit Appropriate for Collective Bargaining : all employees in the, production,
maintenance, and wrapping departments, exclusive of clerical' and supervisory
employees.
DECISION
AND
ORDER
On July 30, 1942, the Trial Examiner 'issued his Intermediate Re-
port 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 that it take cer-
tain affirmative action as set forth in the copy of the Intermediate Re-
port annexed hereto. Thereafter, the respondent filed exceptions to
the Intermediate Report.
46 N. L. R. B., No. 58.
447
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the hearing, on motion of counsel for the Board and over
the respondent's objection, the Trial Examiner permitted amendment
of the complaint to allege the discriminatory discharge by the respond-
ent of Adolph Demmer, its shop foreman, on or about March 23, 1942.
The respondent then moved for a mistrial on the ground -that the Trial '
Examiner was biased and prejudiced, requested 10 days in which to
amend its answer , and twice moved for' a. continuance of the hearing.
The motions were denied by the Trial Examiner, although the hearing
was thereafter adjourned from May 1 to May 7, 1942. The Board
has considered the record and finds that there is no evidence of bias
or prejudice on the part of the Trial Examiner and ,that the respond-
ent was given ample time in which to amend its answer and prepare
its defense. The Board has considered all 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, Intermediate Report, the respondent's
exceptions thereto, and the entire record in the case,-and hereby adopts
the findings, conclusions; and recommendations of the Trial Examiner,
with the exceptions and additions noted below.
1. The Trial Examiner has found that the strike which began on
August 2, 1941, was caused by the unfair- labor practices of the re-
spondent. It appears that the strike was immediately provoked by
the respondent's, refusal on August 2 to recognize and bargain with
the Union. This refusal was not an unfair labor practice, since the
Union did not then represent a majority of the respondent's employees
in the appropriate unit. Nevertheless, it is clear from the record as
a whole, and we find, that the Union's request for recognition and a
contract was but a manifestation of the employees' reaction to the
respondent's anti-union activities during and prior to the meeting of
August 2, 1941. These activities, beginning in March 1941, and cul-
minating in the interference with the August 2 union meeting by Su-
perintendent Otto Richter, Manager Perry, Sales Manager Peel, and
William Richter, led the employees to fear that they would be dis-
charged for having joined the Union unless the Union obtained rec-
ognition and a contract from the respondent. Thus, Simmons, the
union representative, testified that the employees told him "that they
were afraid to go back to work without they had some kind of an
arrangement or an agreement with the employer that 'he would-sign
a contract"; Hicks, one of the strikers, testified that "we didn't think
we had a chance to work if we did go back".; and Terrell, another
striker, testified that "they [the employees] got to talking amongst
themselves and said Mr. Otto would fire us if we went'back iii there;
he would fire us one at a time." Other strikers testified to the same
effect. ' Under the circumstances, it is clear that the respondent's un-
RICHTER'S BAKERY 449
fair labor practices were the motivating cause of the strike. As the
Court said in the Republic Steel Corporation case :1."The union con-
tract in such a case as this becomes merely the symbol of the employ-
er's acceptance of the union. If the contract is refused, we cannot
say that the refusal is the cause of the ensuing strike, even though
doubtless its acceptance would have averted it. The -causes of the
strike remain the unfair labor practices which the employer by his re-
fusal of the proffered covenant of peace indicates that he will con-
tinue." We therefore find, as did the Trial Examiner , that the strike
which was called on August 2 was caused by the unfair labor practices
of the respondent. ,
2. The Trial Examiner has found that all employees in the produc-
tion, maintenance , and wrapping departments of the respondent's San
Antonio plant, exclusive of clerical and supervisory employees, con-
stitute a unit appropriate for the purposes of collective bargaining.
Nevertheless, he did not exclude from the unit Foremen Dunlap and
Schuman and Forelady Gabitsch, although their supervisory capacity
was not denied. We find that Dunlap, Schuman, and Gabitsch are-
supervisory employees and therefore are not within the appropriate
unit.2
3. The Trial Examiner has found that, on August 6, 1941, and at all
times thereafter; the respondent refused to bargain collectively with
the Union. On August 2 and 3, 1941, when the Union requested a
meeting -with the respondent for bargaining purposes, it did not repre-
sent a majority of the employees in the appropriate unit. The Union
achieved majority representation on August 5 or 6. , Simmons, the
union representative, testified without contradiction, and we find, that
he attempted to telephone Herman Richter, the respondent's president
and general manager, "practically every day" after their conversation
on August 3, but that on each occasion the person who answered the
telephone for the respondent, after learning his name, said that Richter
was not in. This testimony indicates, as the Trial Examiner has
found, that after August 3 the respondent avoided the Union's at-
IRepublic Steel Corporation , et at. v . N. L. R B ., 107 F. ( 2d) 472 ( C. C A. 3 ), modified
in other respects, 311 U. S. 7, enf'g as mod., Matter of Republic Steel Corporation and
Steel Workers Organizing Committee , 9 N. L R . B. 219 Cf. N. L R. B. v Stackpole Carbon
Co, 105 F. (2d) 167 (C C A 3), eeit den 308 U S 005, enf'g as mod, Matter of Stackpole
Carbon Company and United ' Electrical & Radio Workers of America, Local ' No. 502, 6
N. L. R B. 171; N. L. R. B. v. Remington Rand, Inc, 94 F. (2d) 862 (C. C. A. 2), cert. den.
304 U. S. 576 and 585, enf 'g as mod., Matter of Remington Rand, Ino and Remington Rand
Joint Protective Board of the District Council Office Equipment Wei kers, 2 N. L R. B 626.
2 The names of Dunlap, Schuman , and Gabitsch appear on a list of the respondent's em-
ployees which was introduced in evidence . Although this list was originally offered with
the stipulation that it was a list of employees in the . appropriate unit , the stipulation
was later withdrawn. Solcher, the respondent's general auditor, who had prepared the
list, testified that it represented a transcript of the respondent 's pay roll for the last week
before the strike and that it contained only the names of employees in the appropriate unit;
he was not specifically asked whether any of them were supervisory employees.
504086-43-vol 41--29
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tempts to arrange a meeting. In any event, the record shows that on
or about August- 15, Father Murphy, as the representative of Arch-
bishop Lucey, whose intercession had been requested by, the Union,
tried to arrange a conference between the respondent-and the Union.
At this time Herman Richter for the respondent refused to meet with
the Union. We therefore find that, on or about-August 15, 1941, and
thereafter, the respondent refused to bargain with, the Union.
4. The Trial Examiner has found that the respondent, by discharg-
ing Adolph. Demmer, its shop foreman, .on March 23, 1942, discrim-
inated in regard to his hire and tenure of employment, thereby
discouraging membership in the Union. The respondent excepts to
this finding in part because Demmer, at the time of his discharge,
was neither' a member of nor eligible to membership in the Union
and was not within the appropriate unit. These considerations do
not excuse the respondent's discriminatory conduct. As we have
frequently held, discrimination to discourage union membership is
no less a violation of Section 8 (3) of the Act when it is directed
against a non-union employee or one who is ineligible to membership
in the union involved. The discriminatory discharge of a supervi-
sory employee because he refuses to aid his employer in restraining
employees from joining a union itself discourages union membership
among other employees, and thus falls within the prohibition of the
Act. The respondent did not discharge Demmer for the purpose
of maintaining the neutrality required of it in matters relating to
the self-organization of its employees. On the contrary, the re-
spondent, had consistently interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by the Act,
and we are convinced by the record that its underlying reason for
discharging Demmer was his failure to "stick by" the respondent in
its campaign against the Union.3 Under the circumstances, the dis-
charge of Demmer was discriminatory, within the meaning of the
Act.
- 5. The Trial Examiner has recommended that the respondent offer
to Adolph Demmer and to the employees whose names appear in
Appendix A, attached to the Intermediate Report, immediate and
full reinstatement to their former or substantially equivalent posi-'
tions, without prejudice to their seniority and other rights and priv-
ileges, dismissing if necessary all employees hired since August 2,
1941, in the manner set forth in the section entitled "The remedy" in
the Intermediate Report. It appears, however, that Ray Edward
Cf. N. L. R. B V. Skinner & Kennedy Stationery Company, 113 F. (2d) 667 (C C A. 5),
enf'g Matter of Skinner and Kennedy Stationery Company and St Louis Printing Pressmen's
Union No 6, Inc, St Louis Typographical Union No 8, Bookbinders' Untion'No 18, Franklin
Association No. 43 , and Bindery Women's Union, No 55, all members of the Allied Printing
Trades Council, 13 N. L . R. B. 1186.
, RICHTER ' S BAKERY 451
Terrell, whose name appears in Appendix A to the Intermediate
Report, joined the United States Navy during January 1942. In
accordance with our practice, we shall order the respondent, uporn_
application byrRay Edward Terrell within forty (40) days after his-
discharge from the armed forces of the United States, to offer him
full reinstatement to his former or substantially equivalent position,,
without prejudice to his seniority or other rights and privileges. Ave
shall also order the respondent to make Terrell whole for any loss of
pay he may have suffered or may suffer 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 the respondent's discrimination
against him to the date'of his induction into the United States Navy,
and during the period from a date five (5) days after Terrell's timely
application for reinstatement, as provided above, to the date of the
offer of reinstatement by the respondent, less his net earnings 4 dur-
ing those periods.5
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Richter's Bakery, San An-
tonio, Texas, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Bakery, and Confec-
tionery Workers' International Union of America, Local No. 478, as
the exclusive representative of all the employees in the production,
maintenance, and wrapping departments of the respondent's San
Antonio, Texas, plant, exclusive of clerical and supervisory employees;
(b) Discouraging membership in Bakery and Confectionery
Workers' International Union of America, Local No. 478, or any
other labor organization of its employees, by discharging or refus-
ing to reinstate any of its employees or in any other manner discrim-
4 By "net earnings" is meant earnings less expenses , such as for transportation, room, and
board , incurred by an employee in connection with obtaining work and working elsewhere
than for the respondent , which would not have been incurred but for his unlawful discharge
and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett
Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber
and Sawmill Workers Union , Local 2590, 8 N. L R B. 440 Monies received for work per-
formed upon Federal, State , county, municipal , or other work-relief projects shall be con-
sidered as earnings See Republic Steel Corporation v. N. L R B , 311 U ,S. 7.
G The fact that Terrell may , under our Order, become entitled to additional back pay
following his timely application for reinstatement upon his discharge from the armed forces
of the United States shall not affect the respondent ' s obligation to pay him immediately
whatever amount is due him for the period from the date of his discriminatory discharge to
the date of his induction into the armed forces. Matter of The American Laundry Machinery
Company and United Electi ical, Radio d Machine Workers of America -(CIO), 45 N L.
It B 355 ,
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
inting in regard to their hire and tenure of employment or any term
or condition of employment;
,(c) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Bakery and Confec-
tionery Workers' International Union of America, Local No. 478, as
the exclusive representative of all the employees in. the production,
maintenance, • and wrapping 'departments of the respondent's San
Antonio, Texas, plant, exclusive of clerical and supervisory em-
ployees, in respect to rates of pay, wages, hours of employment, or
other conditions of employment; I '
(b) Offer to Adolph Demmer and to the employees whose names
appear in Appendix A attached hereto immediate and full reinstate-
ment to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, dismissing
if necessary,all employees hired since August 2, 1941, in the manner
set forth in the, section of the Intermediate Report entitled"The
remedy," and place the employees whose names appear in Appendix
A attached hereto for whom employment is not immediately, available
upon a preferential list in the manner set forth in said section of the
Intermediate Report and thereafter, in said manner, offer them
employment as it becomes available;
(c) Make whole Adolph Demmer and the employees whose names
appear in ,Appendix A attached hereto for any loss of pay they may
have suffered by reason of the respondent's discrimination against
them, by payment to each of them of a sum of money equal to the
amount which he normally would have earned as wages during the
period from the date ' of the discrimination against him to the` date
of•the respondent's offer of reinstatement or placement upon a prefer-
ential list, less his net earnings during such period; '
(d) Upon application by Ray Edward Terrell within forty (40)
days after his discharge from the armed forces of the United States,
offer him immediate and full reinstatement to his. former or a sub=
stantially equivalent position, without prejudice to his seniority or
other rights and privileges;
(e) Make whole Ray Edward Terrell for any loss of pay he may'
have suffered or may suffer by reason of the respondent's discrimina-
tion ,against him, by payment to'him of a sum of money equal'to the,
RICHTER'S BAKERY 453
amount which he normally would have earned as wages during the
period from the date of the respondent's discrimination against him
to the, date of his induction into the United States Navy and during
the period from a date five (5) days after Terrell's timely application
for reinstatement, if any, to the date of the offer, of reinstatement by
the respondent, less his net earnings during those periods;
(f) Post immediately in conspicuous places throughout its San
Antonio, Texas, plant, and maintain for a period of at least sixty' (60)
consecutive days from the date of posting, notices to its employees
stating: (1) ;that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b), and
(c) of this Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this
Order; and (3) that the respondent's employees are free to become
or remain members of Bakery and Confectionery Workers' Interna-
tional Union of America, Local No. 478, and that the respondent will
not discriminate against any employee because of,membership in or
activity on behalf of that organization;
(g) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations Of the complaint as
to E. J. Hartfield be, and they hereby are, dismissed.
APPENDIX A
Isabel Sebera
Eugene W. Cummings
Felix A. I(usenberger
Walter Hartfield
Warren Ferrell
Fred D. Rogers
Willie Spencer Ware
Arthur Hartfield
Mabel Burrell
Willard D. Hicks
Paul Tanguma
Gilbert Garza
Clifton Jackson
Agnes Mary Joinetz
Floyd Hartfield
INTERMEDIATE REPORT
Mr Bliss Daffais, for the Board.
Mr. Theo F. 'Weiss, of San Antonio, for the respondent.
Mr. John Simmons , ,of Springfield, Missouri , for the Union.
STATEMENT OF THE CASE
Upon an amended charge , duly filed by Bakery and Confectionery Workers'
International Union of America , Local No. 478 , herein called the Union, the
National Labor Relations Board, herein called the Board , by the Regional
Director for the Sixteenth Region ( Ft. Worth, Texas ), issued its complaint, dated
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 30, 1942, against Richter's Bakery, herein called the respondent; alleging
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1), (3) and (5) and
Section 2 (6) and (7) of the National-Labor Relations Act, 40 Stat. 449, herein
-called the Act. Copies of the complaint and the accompanying notice setting the
,hearing for April 13 were duly served upon the respondent and the Union. -
On April 4, 1942; the respondent filed its answer and also a motion to strike
and dismiss, on the grounds that the respondent's business is intrastate and has
no substantial relation to commerce, within the meaning of the Act, and that
the Board accordingly does not have jurisdiction On'April 6 and 8, the Regional
Director issued aid duly served upon the respondent and the Union orders post-
poning the date of hearing to April 27. On April 14, the Regional Director issued
.and duly served upon the Union and the respondent an amended complaint. On
April 22, the respondent filed its amended answer to the amended complaint.
On April 27. at the opening of the hearing, a second amended complaint was filed.
iOn April 28, the respondent filed its second amended an-wer.
With iespect to the unfair labor practices, the second amended complaint, as
amended at the hearing, alleged in substance: (1) that from about March 7, 1941,
the respondent by its officers and agents urged, persuaded, and warned its
employees to refrain from aiding, becoming, or remaining members of the Union ;
threatened said employees with discharge or,other reprisals if they aided the
,Union or members thereof,, kept under surveillance the activities, meetings, and
meeting places of the Unlbn and its employees ; questioned its employees concern-
ing their attitudes toward labor organizations; attended a labor union meeting
-and advised its employees that they did not have to join a union to adjust their
differences. referring to the union representatives as outsiders; refused to leave
the meeting when requested to do so ; made threatening gestures after having
been ejected from the union hall; and told its employees that the respondent
would never meet with the Union or its representatives; (2) that on or about
August 6, 1941, and at all times thereafter, the respondent refused to bargain
,collectively with the Union, although the Union had been at all times since about
August 5, 1941,'the duly designated representative of a majority of the respond-
ent's employees in an appropriate unit; (3) that about August 3, 1941, the Union
called a strike because of the respondent's acts of interference and that the said
strike was prolonged until about December 16 by such acts and by the respondent's
refusal to bargain; that about December 16, 1941.`the employees of the respondent
terminated the strike and that on or about that date 23 named employees made
application for reinstatement to their former positions; (4) that the respondent
refused to reinstate the 23 named employees because each had joined and assisted
the Union and had gone on strike; (5) and that about March 23, 1942, the
respondent discharged its shop foreman, Adolph Demmer, and thereafter refused
to reemploy him because Demmer encouraged. aided, and assisted the Union
and because he encouraged, aided, and assisted the employees in their concerted
activities The complaint also alleged that the business of the respondent
together with that of three other named baking companies which were alleged to be
related, affiliated, or subsidiary corporations, constitutes one single integrated
enterprise, having in the main common officers, directors, stockholders, and
employees, and that each is dependent upon the other in the successful and normal
operation of its business.
The respondent's second amended answer, -as amended 'at the hearing, denied
the material allegations of the complaint as to the unfair labor practices and set
up certain affirmative defenses which are considered- subsequently herein. The
second amended answer also averred that the respondent's operations are intra-
. RICHTER'S BAKERY 455
state and outside the jurisdiction of the Board and further averred that-while
the four corporations have some officers and stockholders in common and there
is some cooperation among them, such corporations are separate, are independ-
ently operated, and all do their business exclusively in Texas.
Pursuant to notice, a hearing was held from April 27 to May 1, 1942, inclusive,
and on May 7 and 8, at San Antonio, Texas, before the undersigned, Earl 'S Boll-
man, the Trial Examiner duly designated by the Chief Trial Examiner. The
Board and the respondent were represented by counsel and the Union by a rep-
resentative. All participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties. At the commencement of the hearing, ruling
was reserved on the respondent's motion of April 4 to strike and dismiss; the
motion was subsequently denied. Other motions by the respondent to dismiss
because of lack of jurisdiction and for other reasons were denied. A motion by
the respondent to declare a mistrial was denied A motion by the Board was
granted to dismiss the allegations of the complaint as to discriminatory refusal
to reinstate 6 of the 23 individuals named therein' Over objection by the re-
spondent, motions were granted to conform the complaint to the proof with re-
spect to such matters as dates and the spelling of names. The parties were
afforded, but waived, opportunity to argue orally before the undersigned. No
briefs have been received by the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I 1HE BUSINESS OF THE RESPONDENT
The respondent, Richter's Bakery, is a Texas corporation engaged in the maim-
facture, sale and distribution of bread, rolls, and buns, at its plant in San Antonio,
Texas It was incorporated in 1930, taking over a business which had been in
operation approximately 50 years The stock ownership of the respondent is
equally divided among five members of the Richter family, four brothers and
their mother,' all of whom have their offices at the-respondent's plant. Herman
(H. J ) Richter is president and general manager of the respondent, Gus (G V.)
Richter and Henry (II L ) Richter are vice presidents, and Rudolph (R , W.)
Richter is secretary-treasurer. The our Richter brothers are equal owners of
two other Texas corporations engaged in the manufacture, sale and distribution
of bread, rolls, and sweet goods. The first of these is Richter's Baking Company,
herein called the Corpus Bakery, the plant of which is located at Corpus Christi,
Texas. Rudolph Richter is its president; the other three brothers hold the other
offices. The other corporation is the Austin Baking Company, herein called the
Austin Bakery, the plant of which is located at Austin, Texas. Gus Richter is
its president; the other three brothers hold the other offices. The Colonial Cake
Company, herein called Colonial, is a Texas corporation which manufactures,
sells and distributes cakes and sweet goods 2 at its plant in San Antonio. Henry
1 The six individuals as to whom the complaint was dismissed are, Pedro Fuentes, Ene-
nifencio Suarez, Quentin Aycock, Thomas Sarro, Jose Morales, and Gregorio Pineda. There
is no evidence that Morales ever went on strike, although he did sign an application for
membership in the Union. , As to the other five, there is no evidence that they were em-
p:dyed by the respondent at the time of the strike or ever joined the Union.
2 The business operated by the respondent was founded by William Richter, the father of
the "four boys" and was the first of the bakeries to be owned by the Richters.
3 The sweet goods, such as cinnamon rolls , sold by ' the respondent are secured from
Colonial.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richter is president'of Colonial, one of the other brothers is its secretary-treas-
urer, and the four brothers and their mother equally own 80 percent of that cor-
poration's stock. The remaining 20 percent is owned by D. T. Perry, who is
Colonial's vice president and general manager.
From all of the evidence the undersigned is convinced and finds that'the re-
spondent, the Corpus Bakery, the Austin Bakery, and Colonial, herein collec-
tively called the Richter concerns, are so closely affiliated as to constitute one
single integrated enterprise. - There are very few meetings of the corporations
as such, Gus Richter testifying that there had been no meeting of Colonial
"lately" and that he could not "remember" when the last meeting of the Austin
Bakery, of which he is,president, was held. From the stock ownership, the loca-
tion of their respective offices at the respondent's plant, and the record as a
whole, it is clear that corporate control is' largely a matter of informal discussion
among the four Richter brothers.4 According to Rudolph Richter, as a rule the
four brothers consult together in formulating policies for the Richter concerns
Personnel is shifted from plant to plant upon occasions For instance, during
the strike at the respondent's plant, discussed below, the ,For brothers decided
to bring in some-employees from the Corpus Bakery. -Also, the record reveals
several shifts among the various plants of specialized, skilled, and managerial
personnel. -
For the most part, purchasing and, accounting for the Richter concerns are
centralized at offices located at the respondent's plant. 'Almost all major
materials are purchased in carload lots. Milk and sugar are shipped in carload
lots, a given car of milk or sugar making three stops, in Austin, San Antonio,
,and Corpus Christi, respectively, where the consignments to the respective
Richter concerns are delivered. In the case of other products such as flour
and lard, carload consignments are sent directly to the respective plants. All
of the milk used by Colonial is sold to it by the respondents The. respondent
sells small items upon occasions to both the Austin Bakery and the Corpus
Bakery e One individual, Charles R. Solcher, whose office is at the respondent's
plant, serves as general auditor for each of the Richter concerns and supervises
local offices which bill,customers. The general bookkeeping system for all four
plants and the invoices of purchases and supplies are kept in the general
accounting office at the respondent's plant.
For the period beginning March, 1941, and ending with the last of February,
1942, the total value of the raw materials used by the respondent was
$236,96818. During this period, 25 38 percent of raw materials used came from
sources outside of the State of Texas. The value of the flour used, coming from
outside of the State of Texas during this period, was $22,03140; of the milk,
$13,621.24; of the shortening, $4,56699; of the sugar, $8,385.14; of the paper,
$5,124 92; and of the miscellaneous raw materials, $6,420.44; During the above
period, there were 103 different purchases made by the respondent from com-
panies in 11 different states from New York to California.' At the time of the
* At one point Henry Richter testified as follows :
We don't have many stockholders meetings except what the law requires . . . We
all know each other and trust each other. Ordinary stuff is taken care of without
meetings. - I
Mrs Richter is now retired and her son, Henry, who lives with her, looks after her interests.
5 The approximate value of this milk is about $2,500 a year.
6 The sales to the Austin Bakery amount to about $1,000 annually and those to the Corpus
Bakery to about $1,200. The respondent also makes "accommodation sales" to the extent
of about $6,000 a year to bakeries in San Antonio not associated with the Richter concerns.
4 The 11 states from which purchases were received were New York, Pennsylvania, West
Virginia, Kentucky, Tennessee, Ohio, Illinois, Missouri, Kansas, Oklahoma,-and California.
I
RICHTER ' S BAKERY 457
hearing, the, percentage of raw materials` coming from outside of the State of
Texas used'by the respondent had been reduced to approximately 11 or 12,
percent. During the year 1941, the cost of the raw materials used by the
Corpus Bakery was $133,260.24 and by the Austin Bakery, $108,342 65. Approxi-
mately 25 percent of the raw materials used by the Corpus Bakery and, the
Austin Bakery respectively came from outside of the State of, Texas During
the year 1941, the cost of the raw materials used by Colonial 'was, $250,924.12
of, which between 40 and 45 percent came from outside of the State of Texas.
Taken together, the Richter concerns constitute one of the largest baking organi-
zations in the State of Texas. Together, their gross sales for the year 1941
exceeded $1,500,000 s Almost all of the merchandise sold by the Richter con-
cerns is consumed within the State of Texas. However, from December, 1940,
to November, 1941, the respondent sold bread to the Missouri-Kansas & Texas
Railroad in amounts varying from a few dollars a month to $277 44 in November,
1941. Such sales were terminated about the end of November,' 1941, because
the respondent learned at that time that part of the products sold might have
been going across a state line. Also, during the period 'from April 25 to March
28, 1942, the respondent sold approximately $800 worth of day-old bread which
it delivered in its own truck to a railroad station. That bread was purchased
for consumption by Mexican workers who were being 'taken out of the state
to work in beet fields. 'After the respondent instructed' its sales manager that it
was against the respondent's policy to sell bread which would "cross a state
line," the respondent on March 30, 1942, received a letter from the "Beet
Grower's Employment Committee, Inc.," of Saginaw, Michigan, which assured
the respondent that only such quantities of bread would be purchased 'in the
future as would be consumed before trains left the State of Texas o
II. THE ORGANIZATION INVOLVED -
Bakery and Confectionery Workers', International Union of America, Local
No. 478, is a labor organization affiliated with the American Federation of Labor.
It admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronological statement of the facts
.1. Developments preceding the strike
During February,' 1941, John P. Simmons, an international representative of
the Union, came to San Antonio. Through an employee of another bakery in_
the city who was related to a supervisory employee at Colonial, Simmons met'
that supervisor, and talked with him about organizing the employees of Colonial
$ During 1941 , the Austin Bakery's sales were approximately $ 235,000 , the Corpus Bakery's
$355,000, Colonial 's $525,000, and the respondent ' s $530,000.
The body of the above-mentioned , letter read as follows : ,
It has come to my attention that in connection with the day-old bread which we
have been purchasing over a period of years for consumption on labor trains en route
from Texas to northeastern points , it,is required that such bread be consumed while
the train is in the boundaries of the State of Texas.
For your information we purchase bread at this point for only a portion of the trip
and you may have my assurance that in , the future we shall purchase only such quanti-
ties of this bread as-we are, sure will be consumed before the train , leaves the State of
Texas. '
Day-old bread is fit for human consumption for approximately 50 hours.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the respondent. - Simmons also talked with two or three other, employees
of Colonial about the same time. Early in March, Simmons, on two occasions,
telephoned Adolph Demmer, the shop foreman of the respondent, 10 and explained
that he was trying to organize the bakers in San Antonio and had heard that
Demmer was interested. Demmer told Simmons that organizing was, a good
idea but-a tough job. Demmer also pointed out that he had a good job as a
foreman and as such was supposed to be on the side of the company ; hence he
could not take any part in organizing although he was in sympathy with the
Union.
About the middle of March, Otto Richter, the respondent's superintendent
and Demmer's immediate superior, called,Demmer into his office and questioned
him about the organization of the Union because he had learned that organiza-
tional activities were taking place in San Antonio. When Demmer 'admitted
that the organizer had been in touch with him, Richter asked Demmer "why in
the hell" he had not told him about it. Demmer replied that he did not think
it was any of Richter's business. Richter asked Demmer what the organizer
had • said and Demmer related the conversations. Richter told Demmer that
if Simmons called him again "by all means to come and tell him about it."
Richter also instructed Demmer to go out and talk to every one of the men in•the
shop to discourage union organization. Richter said that that would be both
to Demmer's benefit and to the respondent's. Demmer did not carry out those
instructions." - .
About March 15, the Union and National Biscuit Company of San Antonio,
herein called National, entered into a contract. About this time, Superin-
tendent Richter called 'employee Willard Hicks into his office and said, "Here,
Willard, I have a nickel an hour raise for you and I would like to have a little
talk with you." Richter then asked Hicks what he thought of the Union.
Hicks said he thought it was all right but that the Union was not bothering
him and he was satisfied Richter then told Hicks that union representatives
might try to force him to join by waiting outside for him when he got off from
work at night and following him home. Hicks told Richter that he did not
have any fear of anyone forcing him into the Union.
During this same period Richter also talked with other employees. He called
Gilbert Garza into the office and asked him what he thought about the Union.
Garza replied he did not think much about it Richter said he was glad to hear
that as there was someone running around trying to get employees to join the
Union He told Garza that someone would try to stop employees on the way
home from work, and asked if anyone had stopped him. Garza said that no
one had. Richter hold Garza that the Union would promise work and good
wages but in the long run such promises were all false. Richter had a similar
talk with Felix Kusenberger whom he saw by the time clock. He told Kusen-
berger that there was quite a bit of organizing going on in'Saii Antonio and that
10 Demmer formerly belonged to the Union and was still a member when he went to work
at Richter's Bakery in 1927 as a henchman.
n The findings in the above paragraph and other findings herein concerning statements
made by Otto Richter to employees are based upon the testimony of the respective employees
spoken to by Richter. Such testimony was substantially uncontradicted and is credited by
the undersigned. Otto Richter admitted questioning Demmer because be had heard there
were union activities "in town " Richter also admitted questioning other employees because
he wanted to know if the Union had got in touch with any of them ; that he was not
Inerested in having employees join ; that he told one employee that the company had not
written for the Union to come down ; that he did not know if he told employers to ignore the
Union ; but that to the best of his knowledge he told employees that the respondent was not
interested in having them join the Union. ' ,
RICHTER S BAKERY 45.9
sooner or later they would get to him. Richter also said that the• respondent
was not in favor of union labor and he advised Kusenberger "just to ignore
them and not to pay any attention to them."
Also during March, Schuman, foreman of the shipping room, according to the
uncontradicted ; testimony of employee Raul Tanguma , had a discussion with
Tanguma and another employee who worked under him. Schuman said that
organizers were attempting to secure members but that unions would never
win in San Antonio ; that the organizers promised good jobs and steady wages„
but would never fulfill their promises ; that the Union would not do any good
and that the employees should not pay any attention to ' the `organizers.
Early in April, Richter met employee Ray Terrell at the time clock and engaged
him in conversation He asked Terrell what he thought of Hicks ; Terrell replied
that Hicks was all right. Richter then stated that the Union "got those boys"
over at National and that if the Union should "ever get one union man in a
place they will stay there until they get them all.,' Richter stated that all
the Union was after was to "grab your money" and that while they high pay
and low hours would be promised. the employees would pay union dues without
getting any benefits. Richter asked Terrell what he thought about unions and
Terrell said that the best thing to do when a union started to organize was to
leave the week it started and get back the week after it was finished. Richter
laughed and walked away. A few days later Richter walked up to Terrell and
said, "Well, I am going to make' your check '$25 even this week" and handed
Terrell a pay envelope with $25 in it, previously Terrell had received about $22
a v eek. A week later Terrell received another raise of 5 cents an hour Accord-
ing to Terrell's .uncontradieted testimony, every time anything was said about
the Union he received another increase. During the period March to August,
1941, his pay advanced from 25 cents to 50 cents an hour.
In March or April,-according to the undisputed testimony of Isabel Sebera,-
Superintendent Richter called the women employees together in the plant during
working hours, and told them that union organization was taking place in the
city; that an effort, would be made to make the respondent sign up with the
Union; and that if the employees ever quit their jobs they would never be able
to come back again because the respondent "would never go union."
On July 9, 1941, the respondent moved from its old plant which it had occu-
pied for many years into a new modern bakery which contained a substantial
amount of new equipment of a type different from that formerly in use. Diffi-
culties were encountered in getting the new equipment working smoothly and
in breaking in employees on it During the first few weeks, hours worked were
substantially longer than usual.' The respondent paid the same rate for over-
time as for straight time, and the long hours led to discontent among the em-
ployees Furthermore, there were differences of opinion between Shop Foreman
Demmer and Superintendent Riclitei• concerning the number, of. employees re-,
quired in the operation of some of the new equipment, especially an oven. Some-
time before the strike, discussed below, Demmer told Richter that the-hours
12 For instance ,, figures compiled by the respondent of the hours worked by Demmer show
that during the first three weeks after moving to the new plant Demmer ' worked , respec-
tively, 781/2 hours, 73 hours , and 61 hours , while during the five weeks preceding the move
to the new plant Demmer's average number of hours per week had been 49 During the
five weeks following the first three weeks in the new plant , Demmer's average weekly hours
dropped to 52. The respondent's figures in this respect, showing the long hours during
the period after the removal to the new plant , are corroborated by the testimony of Hicks
who testified that after moving to the new plant, they worked such long hours that men
were quitting because they could not stand the work and they did - not "have enough help to.
tun the place right."
460 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were too long and unless 'changed would result in labor trouble and a strike.
Richter laughed at Demmer and told him that if he thought he "could run the
shop better than [Richter] ... to just go ahead and try."
• During July, Terrell went to, Waco, Texas, where the Union was conducting
a; meeting of bakery workers and there saw Simmons Terrell 'told Simmons'
that the employees of the respondent desired to organize. About the middle
of July, Terrell and Hicks went to the Labor Temple in San Antonio and asked
for a representative of the Union - to organize the respondent's employees. The,
respondent continued to discourage organizational activities among its em-
ployees during the period under discussion Thus, after'moving to the new
bakery but'before the strike, Babitsch, forelady in charge of the women workers,
called employee, Sebera "upstairs" and told her that she knew that Sebera's
father was a union man 14 and that Sebera was for the Union ; that if Sebera
ever' left Richter's she would never come hack; and that 'Richter's would
"never'go union "
On July 31, Simmons went to the respondent's plant and asked Terrell, Hicks,
and Ferrell, to see him as soon as they got through work. About 2: 30 a m , 10
or 11 of the respondent's employees met Simmons at a nearby lunch stand and
made arrangements for a meeting to be held the afternoon of Saturday, August 2.
In accordance with arrangements, a meeting of the respondent's employees was
held at the Labor Temple on August 2. The account of the events of that after-
noon which follows is based upon the testimony of nine witnesses called by the
board.i On the sidewalk outside of the hall before going into the meeting, Wil-
liam L. Richter, son of'the respondent's president, engaged in conversation with
some of the employees. He told the employees that they ought to go out and
talk the matter over with his father. According to Terrell, the employees told
Richter they could go up to the Labor Temple to talk it over.16 In the hall before
the meeting got under way, Simmons , who-had not seen Richter before, asked him
who he was. Richter identified himself. Simmons asked him if he was inter-
ested in joining the Union and Richter indicated that he "most certainly" was not.
Simmons asked him why he was up there and Richter stated that he had a right
to be there, and was there "in the interest of these people and the company."
Thereupon, a heated and somewhat confused discussion ensued in which Richter
argued with the employees in an attempt to get them, to leave the meeting to 'go
to see his father Young Richter's position was that if they had any grievances
1, The above finding is made upon testimony of D,^ninier which the undersigned credits
Richter admitted that he and Demmer "had conversations quite a few times about.the long
hours," but denied that "in the new plant" Demmer had told him that the employees were
going to strike if they did not get shorter hours Demmer placed the above conversation
about a week or two before the strike
14 Sebera's father was "a union man," but not an employee of the respondent
is The nine witnesses upon analysis of whose testimony the undersigned has based the
composite picture presented herein are Simmons, Hicks, Cummings, Terrell, Tanguma,1Garza,
Kusenberger, Rogeis, and Connally The respondent called no witnesses'to testify about
what happened at this meeting For, the most part,' this undisputed testimony 'is sub- .
stautially consistent when consideration is given to the fact that witnesses testified about
different phases of the meeting and to the further fact that there was clearly a great deal
of confusion during the meeting: In general, the undersigned in making the above findings
has given weight to such factors as inh3rent probabilities , the number of witnesses in
agreement on certain matters, and the credibility of the witnesses as observed at the
hearing
11 Terrell testified that the employees did not object to young Richter being there as he
had quit his job with the respondent and had asked Terrell to get him a job` somewhere
else. Also , Cummings testified that Richter said a member of the organization had asked
him to come to the meeting . From Terrell 's testimony it appears that Clarence McCord,'
who later left the meeting , was the employee who had invited Richter to attend.
RICHTER'S i BAKERY 461
to straighten out, they could go directly to Herman Richter, whom they had known
for years, and that-they did not have to rely on outside organizers whom they
scarcely knew. Finally Simmons told Richter he would have to leave the hall if
he was not interested in going along with the organization and that he could not
interfere When it was insisted that he leave, Richter left, announcing that he
would return. Another individual, who had been with Richter and did not leave
with him, was. then asked to identify himself. Upon stating that he was a
friend of the Richter family, this individual was also required to leave the
iheeting.11
About 10 minutes after he left, \Villiam Richter returned with Superintendent-
Otto Richter, Perry, manager of Colonial, and B. A -Peel, the respondent' s sales.
manager. Upon entering the room, Superintendent Richter said, "I believe I
know some of these faces that are here." He then went from employee to em-
ployee urging each one individually to walk out of the meeting and go with him.
During the course of these personal, conversations, Superintendent Richter ,told
Cummings, "You haven't been here very long with me . . . I have helped you all
I know the conditions aren't the best . . We are trying to,get together on
the long hours that we are putting in : . . You know the shop is torn up and the
condition it is in and everything . . . You shouldn't have walked out and left us
like this. He then assured Cummings that he should have received a raise
which he had not, and that he had a raise coming. '
While Superintendent Richter was discussing the matter with the employees
individually, William Richter was attempting to address the meeting. During
his statement to the group, young Richter said in part: "Mr. Simmons and Mr.
Connally 18,may be smooth talkers. This is their business to get membership,
but why should you have confidence in what they say, when, you have worked
for,Mr. IIerman 10 for years and you have always got a• fair deal out of Mr.
Herman, and you are doing wrong by not going down, there and straightening
this matter out yourselves instead of having outsiders to come in." Simmons
called William Richter to order and told him he would have to leave as the meet-
ing was no place for any intimidation on the part of "the employer against the
workers in their effort to organize."
About this time Superintendent Otto Richter came to the front of the room
and addressed the meeting. He asked the employees to "wait and talk it over
with the old man." 20 Superintendent Richter said that he was sure that Her-
man Richter would better conditions and he wanted the boys to come away from
the meeting and go out to Herman Richter's where they could work the problem
out themselves without the Union. At this point both William Richter and Otto
Richter were ordered to leave. They were accompanied by Perry, Peel, and
employee McCord During the foregoing events, Peel and Perry acted largely
as observers, making at most only a few whispered remarks to some employees.
Those who left the meeting room, according to Conally, remained outside in
the hall trying to keep men from coming in to the meeting room by telling them
that "they were going to lose their jobs." Conally went out into the hall and
11 It is not clear from the record whether that individual was a relative or a friend of the
Richter family. It is evident, however, that the person referred to was not, Clarence
McCord, the employee who later left with the Richters.
18J. W Connally, secretary - treasuier and assistant business representative of the Bus
Operators' Union, was assisting Simmons at the meeting and had been talking with the
employees before the meeting started.
19 The respondent's president is referred to as Mr. Herman by various witnesses
""The old man" -was Herman Richter, who had been ill . At the time of the meeting he
had been out of the hospital for only a short time. It is evident from the recoid as a
whole that he is the managing genius of the four Richter companies.
-462 DE'CISION'S OF NATIONAL LABOR RELATIONS BOARD
told the group to leave the building They did, but upon leaving they went to
a place about a hundred feet away where they stood for the rest of the after-
noon, looking toward the hall from tinge to time.
After- the group had left the hall, the meeting continued. Thirteen of the
respondent's employees who were present joined the Union and took the obliga-
tion.' After discussing the situation, the respondent's employees at the meeting
decided that since the respondent knew who they were they would not return to
work unless the respondent recognized the Union and entered into negotiations
for a contract. -
Simmons thereupon left the meeting and telephoned Herman Richter." He told
Richter that the production department had organized and that as a representative
of the Union, he wanted to meet with Richter for the purpose of negotiating a
contract. Richter said he did not see any reason for having such a meeting and
that "he had been able to get along with his own employees for years without any
help from outside and that he thought he could continue to do so." Simmons
asked if Richter would meet with him and Richter replied that he did not have
anything to discuss with Simmons and that he did not care to discuss the Union
,at, all . Simmons told Richter under the circumstances "the boys probably
wouldn't be back to work Sunday." Richter indicated that the matter was up to
them and that they would have to make up their own minds, but that be did not
have anything to discuss with Simmons.
Upon returning to the meeting room, Simmons reported his conversation to
the several employees who. were waiting for him. He told them that they had
!been refused the privilege of bargaining with'their employer and that they could
refuse to go to work Sunday and "strike for recognition." The group -decided
that since Superintendent Richter knew those who were interested in the Union
they would not have "a chance to go back to Richter's now -without being fired."
Accordingly they decided to go on strike.
2. The strike and the developments thereafter
'Superintendent Richter and William Richter were both outside the Labor
Temple when the meeting of 'August 2 terminated. Superintendent Richter
talked to at least one employee, Truman Fields, as he left the meeting.
About 8: 30 o'clock on the same evening, William Dunlap, the respondent's oven
foreman, came to employee Tanguma's home and told him that Superintendent
Richter had sent him to get Tanguma to come back to work. Tanguma ,told
Dunlap that he would not go back to work "until they signed a contract." Dunlap
21 A fourteenth employee, James Campbell, remained for the meeting, but did not join
'because he was leaving the respondent ' s bmploy. Documentary evidence was introduced as
to the designations of 11 of the 13 individuals who joined on August 2. The 2 individuals
for whom such documentary evidence was not presented were Terry Cook and William
McBee.
n The findings in the above paragraph concerning the telephone conversation between
Simmons and Herman Richter are based upon testimony of Simmons which the undersigned
credits. Herman Richter, who was in the hospital at the time of the hearing, did not testify.
However, Simmons' testimony was corroborated by two Richter brothers who did testify.
Rudolph Richter testified that Herman Richter told him of such a telephone conversation in
which, in effect, Simmons told Herman Richter that he wanted to come out and discuss a
contract or the men would not return to work, and that Herman Richter told Simmons that
he would be "glad to meet with our employees" but that he did not know Simmons and
would have nothing whatsoever to do with him and would not meet with him. Henry
Richter testified that in a telephone conversation Simmons told 'Herman Richter , accord-
ing to Herman 's version, that if the respondent did not sign a contract , the employees were
going to strike and that Herman Richter told Simmons that he "guessed they would have
.to strike" and that he did not "know who Mr Simmons was or anything about it."
RICHTER'S BAKERY 463
told Tanguma that he was just a fool ; that he did not know what he was doing ;
that "as long as there was a Richter living there wouldn't ever be a union"; and
.that he would bet "his car there would never be a union." Tanguma did not
return to work.
On Sunday morning, August 3, the strikers started picketing the respondent's
plant. On that day and the following two days, a substantial number of ad-
ditional employees signed up with the Union. About mid-afternoon on August
3, while some of the strikers were securing the application of Jose Morales,
one of several strike -breakers brought by the respondent from the Corpus
Bakery, the respondent 's sales manager , Peel, and the general auditor , Solcher,
were standing close by. Peel remarked , "Let him go ahead and sign it. We
can-replace them as soon as they go out." After signing the application blank,
Morales"returned to work in the plant.
On August 3, Simmons again telephoned Herman Richter. Richter stated
that he was still of the opinion expressed the day before and that he did not
care to discuss anything . Richter stated that he could not recognize the Union
because it was one of those things that did not fit in with his line of business
in San Antonio . The foregoing conversation of August 3 was the last con-
versation Simmons had with Herman Richter although he attempted to get in
touch with Richter almost daily thereafter for several days. Herman Richter
did not raise any question as to the Union 's majority or as to the appropriate
unit on"either August 2 or 3.
On Monday , August 4, Solcher saw employee Jackson at the home of one ,of
the other colored employees . Solcher asked why Jackson did not come to work,
and Jackson asked if there was not "something going on over there." Solcher
replied that there was , but that would not prevent Jackson coming to work.
Jackson said , "Well, I don't want to come back to work because I am afraid
to work at a place like that ." Solcher then offered to bring Jackson to work
and take him home. Jackson replied , "Well, I would rather not because I
would rather wait until it is all settled , and then if you need me, why, then I
will come back to work." 23
According to undenied testimony of Kusenberger , which the undersigned
credits, a few days after , the strike began, William Richter engaged Kusen-
berger in conversation onl the picket line. Richter asked Kusenberger why he
was on strike . Kusenberger replied that ' Richter ought to know because he
had quit work two weeks before the strikers did. Richter replied that his
quitting did not have anything to do with the strike . Iusenberger indicated
that there was probably some reason that he did not like working in the plant.
William Richter then said that Herman Richter was willing to treat the strikers
right if they would come back to work. Kusenberger asked why , if he was
willing to do so, he would not put it down on paper. William Richter , replied
that Herman Richter did not believe in doing business that way and that the
respondent "wouldn't go union:"
There is considerable additional evidence that during the first few weeks
of the strike the respondent attempted' to get individual strikers to return to
work. Superintendent Richter testified that he spoke to employees on the picket
line, and while he said he did not remember asking them to come back to work,
•22 The above finding is made upon the testimony of Clifton Jackson. It is evident froni
Solcher's testimony that be had several conversations of like type with colored employees
shortly after the strike started. Several colored employees testified that they said that
they had not come to work because they were afraid. However, they all testified that no,
threats were-made to them by anyone connected with the Union. Furthermore, there is
no evidence that any employee at any time repudiated the union application which he had
signed.
464 DE'C'ISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not deny that he did. About two weeks after the strike started,
Solcher saw Tanguma on the picket line and attempted to persuade him to re-
turn. He told Tanguma that Herman Richter would fix things up and work-
ing conditions would be all right and that he knew Otto Richter had not
handled things very well. Tanguma asked how Solcher knew that Herman
Richter would keep his word and Solcher replied that he was the type of man
who would keep his word. During this period, Peel told Terrell that the
strikers were doing wrong.
Shortly after the strike commenced, wage increases were given in, the plant.
At that time Shop Foreman Demmer received an increase of $2.50 per week.
According to the testimony of Otto Richter, at the time he gave Demmer the
increase, he told Demmer that if he would put forth greater effort, he would
use his influence to secure an additional increase for him. According to Dem-
mer's account, it was Herman Richter who first told him that he would get a
raise of $2.50 a week. Later, when Otto Richter paid him, according to Demmer,
he told him, "Demmer, I am going to try to get you two and a half more if you
stick by me." The evidence shows that during the strike, Demmer continued to
be friendly with leaders of the strike. He had customarily taken Terrell home
from work and during the strike he continued to see Terrell and Hicks frequently,
receiving them socially in his home. He played golf on several occasions with
Kusenberger. At the hearing, Otto Richter testified that he knew that Demmer
was friendly with Terrell and Kusenberger and that he did not know of any
other supervisor who was friendly with either of those two; individuals."
Terrell and Hicks were leaders in organizing the TJnion and in conducting the
strike. Demmer's friendship for Terrell and Hicks continued not only after
Otto Richter's request in March that Demmer talk to every one of the men
in the shop to discourage union organization, but also during the strike when
the respondent was making every effort to break it. In view of the situation at
the respondent's plant and the record as a whole, the undersigned credits
Demmer's version of the incident and is convinced that, the phrase, "if you stick
by me," was intended to inform Demmer that any further wage increase was
conditioned upon his siding with the respondent against the Union. Yet Demmer
continued to be friendly with the strikers, took no part in the respondent's
campaign to break the strike, and told some of the strikers personally that he
wished them well.22 Demmer did not receive any additional increase in wages.
Shortly before the middle of August, after having repeatedly attempted to
get in touch with Herman Richter without success, Simmons went to Archbishop
Lucey in San Antonio about the situation. Through the intercession of the
Archbishop, Herman Richter consented to talk wit'_i Father Leo V. Murphy, whom
the Archbishop designated to handle the situation. About August 15, Father
Murphy had a conference at the respondent's office with the four Richter
brothers. He stated that his mission from the Archbishop was to try to make
arrangements for a conference between the respondent and the Union. At first
Herman Richter would not make any reply. Father Murphy then asked him if
he did not think from the moral viewpoint it was within the province of the
Archbishop to try to bring about such a conference. Herman Richter admitted
that it was. Father Murphy then asked "a categorical question" as to whether
the respondent would meet with the Union and Herman Richter "categorically
24 At one point in his testimony Otto Richter stated concerning the friendship of Demmer
and Terrell, "They were cordial with each other at the plant."
25 As testified by Hicks, Terrell and Hicks saw Demmer once or twice a week during the
strike, usually at Demmer's home or at a "drive-in." On one such occasion, Demmer told
Hicks to "keep pitching" and said, "I hope you all tome out all right."
t
RICHTER'S BAKERY 465
answered 'no.' " Father Murphy testified, that he did not recall any question
being, raised during the conference as to the right of the Union to represent the
employees. Afterwards a report was made by Father Murphy both to the
Archbishop and to the Union concerning the foregoing conferences.
On the basis of the uncontradicted and mutually corroborative testimony of
Terrell and Hicks the undersigned finds that, about the last of August, Herman
Richter told Terrell and Hicks who were then carrying picket signs that he hated
to see them walking in front of the bakery at a time when they should be working ;
that it was not doing any good ; and that he thought they ought to get together.
Richter said he did not know whether their jobs were still open, but if they would
put in applications, they could go back to work. Terrell told Richter that he
would not go back to work until the. respondent recognized the Union. Richter
said that a man in his position could not afford to recognize the Union ; that
nobody was going to tell him how to run his business; that he was running his
own business; and that he would talk with his employees any time but would
not talk with Simmons or any officials of the Union. Richter also said that he
had been sick in the hospital and did not know of the conditions which existed in
the shop prior to the strike.
About a month after the strike started, H. J. Hoppstetter became the respond-
ent's superintendent. Prior to the strike he had been working at Colonial but
the day the strike started he had been transferred to the respondent's plant
to help out.6 During the month of September, Otto Richter assisted Hoppstetter
in taking over his duties as superintendent. About October 1, Otto Richter was
transferred by Herman Richter to the Corpus Bakery as its general manager.
Otto Richter's new position was a promotion both in pay and in responsibility.
Hence, the undersigned does not credit the explanation given by Otto Richter
and Hoppstetter to the effect that the former was relieved, of his responsibility
as the respondent's superintendent because he had failed for a period of time to
discharge Demmer for inefficiency.
A few weeks after Hoppstetter became superintendent, Herman Richter called
Demmer to his office where Gus Richter was also present and said that he was
giving Demmer a two weeks' vacation. He also said that it seemed that Demmer
and Hoppstetter could not get along together. Richter then told Demmer that
he wanted him to get the Union out of his system. Demmer replied that he did
not have the Union really in his system. Herman Richter repeated his statement
and said that Demmer knew how it was when a union got a foothold in a busi-
ness, that they would "practically want to run it in no time." He told Demmer
that when his vacation was over he wanted him to come in to see him before
returning to work.27
Two weeks later Demmer returned to see Herman Richter who laughed and
shook hands with him. Hoppstetter then came in and the three went into
the production office where they talked together. According to Demmer's
version of the conversation, Richter asked him if he thought he could get along
^ That Hoppstetter did not consider his going from Colonial to the respondent a change
in employer is shown by his testimony that he had had only two employers in his life, the
other employer "prior to coming to Richter's" being a Pennsylvania corporation.
27 The foregoing account is based on testimony of Demmer which the undersigned credits.
Gus Richter did not specifically deny Deminer's testimony. He testified rather that the strike
was not mentioned and that Herman Richter told Demmer that he thought the strain of
working in the new plant was getting on his nerves and a rest would do him good Gus
Richter also testified that Herman Richter was in the hospital at the time of the hearing
The respondent did not request any adjournment to enable it to produce Herman Richter
,when he recovered, nor was the respondent able to state when he might be available to
testify.
504086-43-vol 46-30
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Hoppstetter and he replied that he "hardly knew the man to not get along
with him " Richter then indicated again that Demmer was to get the Union out
of his system and Hoppstetter said that he also thought that that was a good
idea. Hoppstetter testified that Demmer said he felt well and the -vacation was
just what he needed; that he wanted to get back to work and do a good job.'
According to Hoppstetter, he then told Demmer that he wanted him to cooperate
and that Herman Richter had also said that he wanted Demmer to cooperate
and get along with Hoppstetter. Hoppstetter denied that anything was said on
that occasion about the strike or the Union or that he knew that Demmer favored
the Union or sympathized with the strikers. Because of the respondent's clear
policy of discouraging union organization, and from the record as a whole, the
undersigned accepts the testimony of 'Demmer and • finds that when, he returned
from his vacation both Richter and Hoppstetter told Demmer to get the Union
out of his system.
About a month after he returned from his vacation , Demmer asked Herman
Richter if he had had any complaints from Hoppstetter about his cooperation. -
'Richter said that he had not and laughed and added, "No news 'is good news."
Hoppstetter testified that for two or three weeks after his vacation, Demmer did
a "very good job," but that later his work became unsatisfactory and that he did
not perform the -duties of a- foreman in a bakery. According to Hoppstetter,
"it was just a gathering up" of a number of things which led.to the decision, dis-
cussed below, to displace Demmer. _
Picketing. continued regularly until about November 1. Thereafter Terrell
and Hicks continued to picket intermittently until about December 1. By
about the middle of December, the Union stopped circulating leaflets, and
almost all of the striking employees had secured employment elsewhere or had
returned to work for the respondent."
Early in December, at a strike meeting, it was decided to send a committee
to talk with the respondent. The committee was composed of Terrell, Hicks,
5ebera, and Matthew Rehm, secretary of Local No. 478.28 On December 6,
the foregoing committee met at the -respondent's office with Herman Richter and
two of the Richter brothers. The meeting concerned itself primarily with the
return of the strikers to work and the respondent's willingness to deal with
the Union. The committee showed Richter a contract and pointed out instances
where the respondent was paying more than the Union was asking. ' Richter
2s Five who had joined the Union had returned to work in the respondent's plant. The
first to return was Truman Fields , to whom Superintendent Richter had spoken as he left
the meeting on August 2; Fields had returned to work on August 7. Neva Lee Miller had
returned to work on August 8 and Howard Johnson' on August 11. Orville Simfnank had
returned to work on September 17. None of the four strikers above set forth. were named
in the complaint as among those discriminated against. However , E. J Haitfield, who
returned on November 9, was so named. According to the uncontradicted testimony of
Hartfield, early in December an employee came to see him and told him that William
Richter wanted him to come back to work and that they were paying lots more at the
plant Hartfield telephoned Richter who asked him to come to the plant. Richter took
Hartfield to see Superintendent Hoppstetter who offered Hartfield $16 a week ; he had been
receiving $14 a week for a 48-hour weck Hartfield said that be was making $65 a month
working for the government and wanted to "sleep over it " When he returned he asked for
more money. ' Hoppstetter finally agreed to pay him $17 a week for 44 hours with straight
time for overtime work After returning to work on November 9, Hartfield continued to
work until shortly before the hearing when he quit because "the men got to hollering" at
him and he did not like it. Hartfield did not have another position at the time he quit
^ The findings concerning the several meetings with the respondent during the month of
December are based upon uncontradicted testimony of Terrell which the undersigned
believes . On the whole Terrell was a highly credible witness. Rehm was not an employee,
of the respondent. -
1
RICHTER ' S BAKERY 467
agreed to take the contract and "look at it." The committee made it clear
that all of the strikers , regardless , of whether they had jobs elsewhere , desired
to be but back to work in a group.$0 The respondent would not agree to so
reinstate them. The committee informed the respondent that all of the strikers
were then working except Terrell and Hicks.
On December 16, Simmons wrote Herman Richter as follows :
This is to inform you that I am given the authority to make application
for reemployment of all your former employees who joined the Bakery Work-
ers Union , Local No. 478, San Antonio, Texas, and who struck and left their
jobs on August 2nd , 1941 , and the following week. ,
It has - been reported by those who are still out on strike at your plant
that they have been contacted privately and individually by representatives
of your Company , who offered individual reemployment . This has not been
accepted on the part of each individual who was made this offer because
they were of the opinion that such offer was made only to break up their
organization ; therefore , by the authority vested in me by all of the strikers.
as a group , I am making application for all such employees to return to
work on their former jobs as a group and later will expect your Company
to bargain with the Union for wages , hours, and working conditions, as we
are privileged to do according to the terms of the National Labor Relations
Act.
Please let me know immediately whether or not you will accept our prop-
osition. Your silence or neglect to answer this request will be deemed by
the Union as a refusal of this offer . You may reply to me directly , c/o The
Blue Bonnet Hotel, San Antonia, Texas, or to Matthew Rehm, Secretary of
the Bakery and Confectionery Workers Union, Local No. 478, 303 Delaware,
San Antonio , Texas.
I
On December 18, the respondent , over the signature of its president, wrote
Rehm at the address given above as follows:, '
When you , along with Mr. Hicks and Mr. Terrell , were in my office on
December 6th, all of you stated that all of the employees who quit work
here in August had either returned to work here or had obtained permanent
employment, elsewhere except Hicks and Terrell. If Hicks and Terrell , wish
to go back -to work, please ask them to come in and see me, and I will be
glad to consider their applications.
On December 20, following'the receipt of the respondent's letter of December
18, the committee , composed of Terrell , Sebera, Hicks , and Rehm, went to see
Herman Richter who was not in when the committee first called.33 Later that
day, after Rehm, who had other business to attend to, had left the group, Terrell,
Hicks,,and Sebera saw,Richter. Herman Richter said he understood that only
Terrell and Hicks were still unemployed and that they could make application
if they wished ; that the plant was fully staffed ; but that if they applied he would
call them as soon as he could use them. Terrell and Hicks stated that they
did not wish to make application for themselves alone. The committee took the
'O Concerning the understanding which the committee gave the respondent , Terrell testified
that nothing was said which would lead the respondent to think that "one or two of us
would go back at a time." Terrell also testified that the position of the strikers had always
been that none would return "unless all of us went back, regardless of whether we had
jobs or not" I .
31 Terrell 's testimony concerning the meeting of December 20 is,corroborated by the testi-
mony of Hicks , which is in substantial agreement with that of Terrell.
468 DECISIONS OF NATION'AL' LABOR RELATIONS BOARD
i
position that they were making application for the "whole group that went on
strike" and that they all wanted to go back 'to work together. Richter main-
tained that their places were already filled and that he could not discharge em-
ployees in order to reemploy the strikers. •\The committee then said that that
was all they had to talk about and left. ,
About December 22, a union meeting was held in which a discussion took place
about what had occurred during the committee's talk with Richter. It was there
decided that the Union wanted all of its members to be working and that Sebera
and Terrell, who were then'the only ones not'working should make application
to the respondent. A 'few days later, Rehni and Terrell called at the plant and
saw Herman Richter. Sebera, who was busy at the time,' did not accompany
them. Richter called in Hoppstetter and told him to take the applications.
Hoppstetter then asked what kind of work the two applicants could do and what
positions they desired. He took Terrell's address and' S'ebera's phone number
and indicated that lie would call them. Neither ever received' a call. After
waiting for about a month and being unable to find work anywhere else, Terrell
joined the Navy i2 '
On Monday, March 23, 1942, according to Hoppstetter, he complained to Hermaii
Richter that something would have to be done about Dem'mer's work and'Richter
replied, "For heaven's sake, let's get rid of that -man. Let's get rid of him
today. I don't want to hear anymore about it." Pursuant•to Richter's instruc-
tions, Hoppstetter called Demmer into his office and informed him that the
respondent would like to have his resignation'as of the end of the week. On
the basis of the testimony of Demmer and Hoppstetter, the undersigned finds that'
the following then took place. Demmei asked Hoppstetter if he was finally
having his way. in getting him out of the plant. Hoppstetter denied that "per-
sonalities" entered into the matter or that he had"had anything to do with it.
Demmer then said, "I would like to know a good excuse, after being with the
company fifteen years, why they want my resignation.',' Hoppstetter replied,
"`Well, 'as,you know, the young man in coming back."" The foregoing was the
only explanation Hoppstetter made. Demmer then indicated that he preferred
not to finish out the week. He thereafter received his pay and left the plant.
The following morning, Demmer returned to the plant to see Herman Richter.
He saw Rudolph Richter instead,` and asked for a letter of recommendation.
Rudolph Richter replied that he would gladly give him one, and thereupon
furnished Demmer with two letters, one of which read as'follows :
To WHOM IT MAY CONCERN :
Mr. Adolph Demmer has been in our employ • for over fifteen years as
Shop Foreman in our Production Department. He is very capable, willing,
and very thorough in this work. Any, courtesy shown him will be greatly
appreciated. ,
Very truly yours,
RICHTER'S BAKERY,
By R. W. RICHTER.
as At the hearing, Sebera who had joined the Union on August 5 testified that she had
stated publicly tbat she' would never go back to work at the respondent's unless "they
wpuld go union" and that that was still her position. It should be noted, as is found above,
that it was Sebera who had been told shortly before the strike by Forelady Gabitsch that
if she ,ever left Richter's 'she could never,come back because Richter's would never' go union
At the hearing Hoppstetter testified that business bad picked up about 25 or 30 percent in
the previous 4 or 5 weeks and that the respondent then was looking for additional help.
3 The young man referred to was William Richter who was returning at the end of the
week after attending a ten -weeks ' course in a baking school.
RICHTER'S BAKERY 469
On April 1, Demmer filed a claim for unemployment insurance benefits stating
that he had been "laid-off," and giving as the explanation that Herman ' Richter's
son had completed a course in a bakers' school and was apparently prepared
to take over his work. Thereafter, on about April 11, Demmer gave Simmons
a signed application for,niembership in the Union. Demmer had filled out that
application the preceding December, the examining physician having attested
the physical examination on December 8, 1941.. -
The amended charge herein was filed by the Union on March 27, 1942."
Prior to filing the charge, Simmons wrote the respondent on March 24 enclosing
a copy of his letter of December 16, 1941, and stating that no answer had been
received. After asserting that 'lie considered the respondent's silence an indica-
tion that the respondent still refused to recognize the Union , and meet. with
its representatives, Simmons wrote as follows in the last two paragraphs of
the March 24 letter :
Since my letter of December 16th to you. offering to call off the strike
and return such'strikers to their former positions. there has been a number
of these strikers that have been dislocated up to present. However, I am
sure that if you would yet consider the reemployment of all such strikers,
I can see that a good majority are returned to 'their former jobs; therefore,
I am again applying for these workers to return to work in your plant
that have not already returned to work through their individual defeat
by your Company.
If you care to consider my proposition please answer my letter c/o The
Bakery Workers Union, Local 478, Labor Temple, San Antonio, Texas, not
later than Saturday, March 28 If I do not hear from you' soon with
reference to this letter, I will take it for granted as I had my former
letter to you as of' December 16, 1941, that you refuse to recognize the
Union and that you refuse to even discuss Union terms with me
On March 30, the day the original complaint in the instant matter was
issued, counsel for the respondent wrote Simmons as follows:
We have been asked by Richter's Bakery to reply to your letter of
March 24, 1942, and to point out to you that your letter is at variance
with the,facts in a number of particulars For one thing, our clients
replied to your letter of December 16, 1941, on December 18, 1941.
They further state that you have at no time offered any evidence that
you represent a majority of their employees. They always have been
willing and are now willing to bargain collectively with any,organization
which demonstrates that it represents a majority of their employees. If you
.,have any evidence to submit, we are,authorized to receive it.
Our clients were informed by your representatives that practically all of
the men who quit work at their plant in August have either returned to work
there or have obtained permanent employment elsewhere. -They further say
that it was made clear to your representatives that they were glad to consider
the application of anyone who had not obtained permanent employment.
You, of course, would readily appreciate how impractical it would be to
put an indeterminate number of employees to work overnight. If you will
have those strikers who wish to return to their former jobs make formal
application at the plant, our clients will be glad to give them every con-
sideratiori. f
ae The original charge was filed on October 28, 1941, and alleged violations of Section 8
(1) and (5). -
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Simmons never replied to the above letter which was the first occasion' upon'
which any question had been raised as to the Union's majority.
B. Conclusions as to the unfair labor practices
1. Interference, restraint , and coercion -
From the facts found above, it is clear that from the inception of organizational'
activities by the Union, the respondent, by various activities on the part of a
number of officials and supervisory employees, flagrantly and persistently sought
to prevent its employees from exercising their right of self-organization ac
In its second amended answer, the respondent in substance alleged that those-
who attended the meeting of August 2 with William Richter did so to protect him'
from physical 'violence. No evidence to that effect was produced. The respond-
ent also alleged that William Richter was an "ordinary production employee"
who had a right to attend that meeting. William Richter did not testify. In
view of Solcher's uncertainty as to the status of young Richter during the period'
just before the strike and the testimony of Terrell and Kusenberger related
above showing that Richter had stopped working about two weeks before the
strike, the undersigned finds that William Richter was not an ordinary production,
employee of the respondent on August 2. However, it appears from Terrell's
testimony that no objection was made to William Richter' s going to :the, meeting
on that date. Accordingly no finding is made herein that his activities prior to.
his first leaving that meeting constituted unfair labor practices by the respondent.
However, from the record as a whole,. it is clear that from the time William,
Richter returned to the meeting of August 2 with Superintendent Richter, Peel
and Perry, that he was acting in'-the interest of the respondent and with its
knowledge and approval. Hence the participation of William Richter in the
meeting of August 2-after his return, the acts of Otto Richter at that meeting,
and the presence of Peel and Perry are found to constitute unfair labor practices
chargeable to the respondent.
The undersigned finds that by questioning its employees concerning their
respective attitudes toward unions, and becoming members of labor organizations;
by urging, persuading, and warning its employees to refrain from aiding, becom-
ing or remaining members of the Union ; by threatening its employees with dis-
charge or other reprisals if they aided the Union or members thereof ; by keeping
tinder surveillance the activities and a meeting and meeting place of the Union
and its employees ; by attending a labor union meeting and advising its employees
that they did not have to join a union to adjust their differences: by referring
to representatives of the Union as outsiders; and by telling its employees that
the respondent 'would never meet with the Union or its representatives, the re-
spondent has interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
"I It would serve no purpose to summarize here those various activities It should be
noted , however, that Foremen Dunlap and Schuman and Forelady Gabitsch, each of whom is
shown by the facts set out above to have participated in,the respondent 's campaign, against
the Union , all appear upon the pay roll which both the Board and the Union agree con-
tained the names of the employees in the unit alleged appropriate in the complaint . 'Since
the unit alleged appropriate excludes supervisory employees and the above three were not
designated as excluded , the undersigned has not excluded them from the unit in determining
the Union 's majority . However, conceding the authority of the above three supervisors
not sufficient to exclude them from the unit, the undersigned is convinced and finds that the
supervisory authority and the activities of each was such that the respondent is chargeable
with his conduct set out above , especially since such conduct was clearly in line with and,
a part of the respondent's anti-union campaign.'
RICHTER'S BAKERY 471
The undersigned also finds that the strike which was called on August 2 was
caused by theLunfair,labor practices of the respondent.
2. The refusal to bargain collectively
a The appropriate unit
The complaint alleged that all employees in the production, maintenance, and,
wrapping departments of the respondent's San Antonio plant exclusive of clerical
and supervisory employees constitute a unit appropriate for the purposes of collec-
tive bargaining . The respondent's position was it did not know what constituted
an appropriate unit, but that if the four Richter concerns were considered "for
one purpose . . . they must be considered for all purposes."
The unit sought is a form of self-organization among bakery employees fre-
quently followed by the Union which has many contracts covering employees in
such units. The record shows that the employees through their own self-organs',
zation have organized in such a unit. No other labor organization seeks a differ-
ent unit. Nor has the Union organized any of the other Richter concerns. Fronr
the standpoint of the work performed, and the Board's policies, the inclusions
and the exclusions sought are appropriate.
The undersigned finds that all of the employees in the production, maintenance,
and wrapping departments of the respondent's San Antonio plant, exclusive of
clerical and supervisory employees, at all times material heroin, constituted
and that they now constitute a unit appropriate for the purposes of collective
bargaining with respect to rats of pay, wages, hours of employment, or other
conditions of employment and that said unit,assures to the employees of the
respondent the full benefit of their right to self-organization and to collective
bargaining and otherwise effectuates the policies of the Act.
b. Representation by the Union of a majority in the appropriate unit
According to the respondent's pay-roll record for, the week ending July 31, 1941,
there were 38 einployees•in the unit found to be appropriate9" An additional
employee n first went to work for the respondent about 2 days before the strike
There were thus, at most, 39 employees in the appropriate unit at the beginning of
the strike.
Upon an analysis of the testimony and the documentary evidence produced at
the hearing,BB the undersigned is convinced and finds that on August 5, 1941, the
88 This total of 38 includes both William Richter found hereinabove to have quit about
2 weeks before the strike and James Campbell who, according to Hick's undisputed testi-
mony, did not join the Union at the August 2 meeting because he was leaving the respond-
ent's employ . It also includes the three supervisors discussed in footnote 35 above
ar Walter Hartfield
38 Twenty-one unduplicated application blanks signed by , persons in the appropriate unit
were presented , for examination , at. the „bearing. Of these , 18 bore dates ranging from
August 1 to August 5 , 1941. Two were undated , but credible testimony establishes that both
were signed before August 5. The twenty-first application , that of Warren Ferrell;, bore
dates in October 1941 . However , Fei cell testified that he joined the Union at the meeting
of August 2 and signed an application on that day . His testimony is corroborated by that
of Hicks who testified that Ferrell was one of those present and that he took the obligation_
at the August 2 meeting . Concerning the 21 signatures on the 21 applications examined
at the hearing , the undersigned is convinced from the testimony of persons who signed
those applications , or from the testimony of persons who shw the applications signed, that
the signatures were genuine . The above total of 21 does not include Terry Cook or William
McBee , the two employees in the appropriate unit who joined and took the obligation on
August 2 The record does not show that anyone was coerced into signing an application
or that anyone thereafter revoked his application It should also be noted that the first
of the five employees who signed applications and thereafter returned to work did not return
to work until August 7. f
472 DECISIONS OF NATION"AL LABOR RELATIONS BOARD
Union had been duly designated as their bargaining agent by at least 21 employees
in the appropriate unit.
The undersigned finds, that on and all times after August 5. 1941 , the Union was
the duly designated representative of the majority of the employees in the afore-
said appropriate unit, and that ,,by virtue of Section 9 (a) of the Act, the Union
was at all times material herein and is the exclusive representative of all of the
employees in such unit for the purpose of collective , bargaining with respect to
rates of pay, wages, hours of employment , or .other conditions of employment.
c The', refusal to bargain
On August 2 and 3, 1941, Herman Richter flatly refused to meet with Siminons.
Richter raised no question as to the Union's. majority or the appropriate unit.
Thereafter Simmons attempted almost daily to get in touch with Herman Richter
but without success Finally, about the middle of August he appealed to the
Archbishop to air ange a conference At a meeting with Father Murphy, the
Archbishop's representative, the respondent again categorically refused to meet
with representatives of the Union. From the foregoing and the record as a
whole, the undersigned concludes and finds that on August' 6,' 1941, and at all
times thereafter, the respondent refused to bargain with the Union
The undersigned further finds that the continuing refusal of the respondent
to bargain prolonged 'the strike Nor does any subsequent development constitute
collective bargaining or excuse the respondent's iefusal The meetings had with
the union committee in December, under the conditions of this case, cannot be
held to constitute collective bargaining. While Y-Terman Richter did consent to
look at the proposed contract at the December 6 meeting,_Iie never recognized the
Union nor did he thereafter discuss the contract Furthermore, the respondent,
daring December and thereafter, refused to reinstate the strikers in a body.
It is clear that by this refusal to reinstate the strikers the respondent refused
to take the initial step in remedying its previous unfair labor practices and
foreclosed the -possibility of subsequent collective bargaining as was requested
in the Union's letter of December 16. '
Nor can it be held that the belated request for a demonstration of majority
contained in the latter of March 30, 1942, remedies the respondent' s refusal to
bargain That this letter cannot cure the refusal is clear because the letter
did not offer reinstatement to the strikers as a group , but offered merely to give
"every consideration" to those who had not obtained other "permanent employ-
ment" and who made "formal application at the plant." Furthermore,- the
respondent did not accept the'evidence presented at the hearing that the Union
represented a majority in the appropriate unit and thereupon indicate its willing-
ness to recognize the Union and bargain with it. In addition, Rudolph Richter
testified at the hearing that he did not know of the respondent's, ever having
raised'the question of the Union's majority and that it was still the respondent's
position that it would not meet with Simmons. 'No representative of the
respondent ever did meet with Simmons.
On the,basis of the whole record and the findings hereinabove set forth, the
undersigned concludes and finds that the 'respondent on August 6, 1941, and at
19 From all of the evidence the undersigned infers and finds that the respondent 's' attitude
toward meeting with the Union ' was the same in the period between August 3 and August
15 as that expressed on those dates and that on or about August 6 the respondent avoided
the Union 's attempt to ask again ' for a meeting . Since the strike which began on August
2'was caused by the respondent ' s unfair labor practices , only those employed at the beginning
of the strike can be considered in determining the majority in the appropriate unit. As
has been found above , a majority of such employees had designated the Union on or before
August 5 ,
RICHTER'S BAKERY 473
all times thereafter , refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate unit, and thereby
interfered with, restrained , and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
3. The refusal to reinstate the strikers
After the dismissal at the hearing of the allegation of discrimination as to the
six individuals whose names are set out in footnote 1 above, the second amended
complaint alleged that the respondent , after they had applied for reinstatement
upon the termination of the strike, discriminatorily refused to reinstate to their
former positions the 16 individuals whose names are set out in Appendix A and E.
J. Hartfield because they joined and assisted the Union and engaged, in the
strike. The respondent in its second amended answer denied that it had refused
reinstatement to the said employees and averred that all the strikers but two
had returned to work or obtained permanent employment elsewhere ; that those
two had been invited to make application to return to work ; that the Union had
never terminated the strike, which was still in progress ; that the Union and the
striking employees were guilty of threatening violence and engaging in illegal
and unlawful conduct ; and that the respondent in no event could be required to
reinstate any employee guilty of such conduct.
The evidence establishes that each of the 16 individuals whose names appear
in Appendix A, and E. J. Hartfield, joined the Union on or before August 5 and
that each ceased reporting to work on or before August 5. As is found herein-
above, on December 6 a committee of the Union asked that the respondent rein-
state all of the strikers to their former positions regardless of whether or not
they had obtained other employment. The respondent refused to do so. On
December 16, the Union wrote to the respondent requesting that the strikers be
reinstated in a group and stating that later the respondent would be expected to
bargain with the Union. Thereafter, on December 18, the respondent indicated
by letter that it was willing to consider applications from two employees who
had not obtained permanent employment elsewhere . By about this time all strike
activities had ceased . On December 20, a committee from the Union asked the
respondent to reinstate the strikers as a group, but the respondent again refused
to discharge employees hired during the strike in order to reemploy the strikers.
On December 20, the Union made no request other than that the strikers be rein-
stated as a group. Hence on that date the Union's action constituted an uncon-
ditional application for reinstatement of the strikers and the undersigned so finds.
Furthermore when the individual applications of Terrell and Sebera were shortly
thereafter filed with Superintendent Hoppstetter, the respondent did not offer
them reemployment, although Hoppstetter testified that at the time of the hear-
ing the respondent was looking for additional help. Terrell was a known leader
in the Union and Sebera had been warned that if she left her employment she
would 'never be reemployed.
Since the strike was caused and prolonged by the respondent's unfair labor
practices, the respondent was under an obligation, in the absence of some valid
cause for discharge, to reinstate the strikers to their former positions upon their
application for such reinstatement , dismissing , if necessary , employees hired after
the beginning of the strike. It is clear -that on December 20, in the meeting with
the committee from the Union , the respondent flatly refused to grant an uncon
ditional request on the part of the strikers for such reinstatement. While it is
immaterial whether the strike had in fact been terminated , the evidence estab-
lishes that at the time the request of December 20 was made and refused , strike
activity had ceased . By its failure and refusal to reinstate the strikers in place
I
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees hired during the strike because of the respondent's unwillingness
to displace such persons, the respondent established a preference of a character
which discourages union membership4° Furthermore, the record as a whole
establishes that the respondent refused to reinstate the strikers because of its
determination to avoid dealing with the Union and to prevent the organization
of its employees.
As is discussed more fully above, E. J Harifield returned to work on November
9, 1941, and worked until he quit shortly before the hearing. The undersigned
finds that the evidence does not establish any discrimination in regard to Harifield.
Accordingly, it will be recommended that the complaint be dismissed as tb him.
At no time did the respondent specify which of the strikers it contended it could
not be required to reinstate because of threats or unlawful conduct. There is no
evidence that any threats of violence were made to get employees to join the,
Union. ` The undersigned offered to receive evidence of the conviction of any
striker for unlawful conduct. The respondent offered no such evidence. From
all of the evidence, the undersigned finds that no belief on the part of the
respondent that ' any striker was unfit for reinstatement because of unlawful
conduct entered into the respondent's refusal to reinstate any striker., Nor can
such a contention act as a bar to reinstatement.
The undersigned finds that by refusing; on December 20, 1941, and thereafter, to
reinstate the strikers as a' group, the respondent discriminated in regard' to the
hire and tenure of employment of said employees, thereby discouraging member-
ship in the Union and interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed_in Section 7 of the Act.
4. The discharge of Adolph Demmer
The respondent's orally stated amendment to its answer with respect,to Demmer
denied that the termination of Demmer's employment had any connection with
the Union or the strike On the contrary, it averred in effect that Demmer was
discharged for a number of reasons, among. them, his inefficiency and failure to
do what was required of him for a number of years; his inability to cooperate
harmhoniously with the plant superintendent; his lack of knowledge of operations
of the new machinery in the new plant; his lack of executive ability in getting
performance out of his subordinates and in measuring up to performancd stand-
ards; and an objective on the part of the respondent of having one capable man
serve as assistant superintendent, thus displacing Demmer and another foreman
by combining their positions, which objective the respondent had achieved.
In the light of the record as a whole, the respondent's contentions as to Demmer
are unconvincing. Its evidence in several respects was inconclusive and incon-
sistent. None of the respondent's alleged reasons was stated to Demmer on March
23 when Hoppstetter, pursuant to Herman Richter's instructions, asked Demmer
to resign. On the contrary, Hopsetter told Demmer that "personalities" were not
involved and led Demmer to believe that he was being displaced to make room for
Herman Richter's son who was returning from baking school. That Demmer at
first accepted that explanation is shown by his giving it shortly thereafter when
he applied for unemployment insurance benefits. However, Hoppstetter testified
that while William Richter was working in the plant at the time of the hearing,
he and Herman Richter had never discussed putting young Richter in-charge of
any part of the plant.
° Matter of Rapid Roller Co . a corporation and Local 120, United Rubber IVor kers of
America, afflicted with the C. I. 0 , 33 N L. R B, No. 108 and cases cited therein ; enf'd
Rapid -Roller Company v. N. L. R B , 126 F. (2d) 452, C C. A (7th).
RICHTER'S BAKERY 475
Otto Richter testified that he first' reached the decision that Demmer should be
displaced as shop foreman sometime in 1940, but could not "recall any particular
date" ; that he had "no one particular reason" for reaching the decision, but that
there were "a number of very small circumstances which would occur from time
to time" and that "it was kind of a continual building up just of very small
-..instances." From an analysis of the several instances given by Otto Richter in
the light of the other evidence, the undersigned is convinced that while some were
more significant than others, those instances were in the main the kind of "very
small circumstances which would occur from time to time" in the normal operation
of mechanical equipment 'and in the management of personnel.
Since about 1934, Demmer, under the general supervision of Superintendent
Richter, had been responsible for the operation of the respondent's bakery,
including both the direction of the production process and of the employees
working thereon. For substantial periods of time when Otto Richter was at one
of the other bakeries acting as expert consultant, Demmer would carry on alone
with apparent success. Especially during Otto Richter's frequent and sometimes
prolonged absences, Demmer's responsibilities required a fully rounded knowledge
of bakery operations and problems, including fermentation. The technical diffi-
culties cited by Otto Richter, including the rapid fermentation of sponges upon
one occasion ,-about, 1939,41 even if accepted upon Richter's own version, do not
convince the undersigned that Demmer lacked essential knowledge and ability
in handling baking processes or that the respondent believed that he did. In
considering Demmer's alleged lack of capacity, it should be noted 'that he first
went to work for the respondent in 1927 as a benchman and within sig months
was made oven foreman. He held that position until 1930 when he became a
shift foreman. In 1934, he was promoted to shop foreman in which position he
was directly responsible to Superintendent Richter. Richter testified that Dem-
mer had worked under him since 1931 and that he had been responsible for
Demmer's promotion to shop foreman.
The testimony as to Demmer's handling of employees under his supervision
was likewise not convincing Otto Richter testified that Demmer was childish
in handling people and gave as an illustration 'an incident when Demmer had
too severely reprimanded an employee Demmer testified that Kusenberger, the
reprimanded employee, later had admitted that ' he had been wrong and had
mended his ways. Demmer thereafter became so friendly with Kusenberger that
he continued to play golf with him during the strike:
There were undoubtedly occasions upon which Demmer and Otto Richter
disagreed as,isoinetrmes occurs when men share responsibility for managing
production and employees Upon moving to the new bakery, Demmer thought
there should have been more men working on one of the ovens than Richter
thought necessary Eventually, after first slowing down the pace of production;
the number of men Richter, thought sufficient acttrilly did handle the oven suc-
cessfully The undersigned is not convinced that Demmer was insubordinate
in the position which lie took, even though it was later shown to have been
41 Richter 's version of the incident was in effect that Demmer consulted hun sometime
about 1P39 upon an occasion when the sponges weie rising so rapidly in their, troughs in
the fermentation room that Demmer had delegated, an employee to degas them with a two
by four ; that the situation was ' highly unusual and very comical ; that he and Demmer
tried to figure it out and that he suspected impurities in the flour ; that when the flour.was
changed, the excessive fermentation stopped ; that Demmer did not know what the trouble
was but had in the past changed flour when confronted with excess fermentation ; that using
a two by four was a "satisfactory" method of keeping the sponges from overflowing their
troughs ; and that Demmer should have stopped setting sponges with the same flour Since
the situation was admittedly highly unusual, the undersigned believes that it was clearly
proper for Demmer to consult with his superior before taking any action. -
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erroneous and may have been motivated in part by his sympathy for the men
under him who were restless because of the long hours which they were working.
Nor does Otto Richter's testimony concerning Demmer's failure to' secure the
duplicate locker keys from employees after moving into the new plant demon-
strate refusal to cooperate. According to Otto Richter, Herinan' Richter repri-
manded both"Demmer and himself when they were in the office together on one
occasion for not having secured the duplicate keys and Demmer replied that he
had been too busy to attend to the matter. Otto Richter, who testified that
he previously had asked Demmer to secure the keys, thereafter attended to
the matter himself.
In addition to instances related by'Otto Richter, only part of which have been
discussed above, Hoppstetter and Solcher testified as to Demmer's behavior at
the new plant. According to Solcher, whose activities during the strike are
set out above, he frequently saw Demmer during the latter's last six months at
the plant in the washroom and, on the loading platform smoking cigarettes.
There was no rule against smoking. Solcher thought Demmer was in the wash-
room too frequently because he saw Demmer there every time he himself visited
it. Solcher testified that he called the matter of Demmer's spending too much
time in the washroom to Hoppstetter's attention on several occasions beginning
around September 1941. There is no evidence that. Demmer was ever repri-
manded for being in the washroom too frequently, and the only explanation
given as to why the general auditor of the Richter concerns should have been
observing and reporting upon the conduct of the respondent's shop foreman was
Solcher'S testimony that it "might" have been his business, "as a help to the
other executives," to see that everybody was on the job.
Hoppstetter's complaints against Demmer • included inaccurately kept time
records, improperly panned bread, a major "stick-up" in the proofer, loafing
on the platform, and lack of cooperation. While some of Hoppstetter's and
Demmer's testimony raises doubts as to the working relationship between them,
the undersigned is not convinced that Demmer was willfully ,uncooperative or
that the respondent believed that he was. According to the respondent's
witnesses, when Hoppstetter first started to work at the plant, he was an ordinary'
employee, presumably under Demmer's, supervision. According to Hoppstetter,
Demmer's attitude toward him from the first was "very reactionary" and "very
much hostile" and he finally did not pay much attention to Demmer. Hoppstetter
testified that on one occasion Demmer asked him what be was doing and where
he worked, and`was "very curious" about where he "came from and all about"
him. Hoppstetter felt that it was none of Demmer's business because it -was
Otto Richter who had asked him to come over from, Colonial Demmer told
Otto Richter shortly after Hoppstetter came into the plant that Hoppstetter
was in the way. If Hoppstetter in fact came tolthe plant as an ordinary em-
ployee, as the respondent contends, there does not appear to have been anything
improper in Demmer's early reactions to him. In any event, the relationship
between Demmer and Hoppstetter was evidently satisfactory after Demmer
returned from his vacation= Furthermore, from the record as a whole, the
undersigned infers and finds that under the respondent's normal procedure, if
Herman Richter had really been convinced that there was a serious clash of
personalities between Demmer and Hoppstetter, in the absence of some strong
motive' for desiring to rid the Richter concerns of Demmer completely, Ricliter
would have consulted with Demmer about the possibility of transferring him
to one of the other bakeries.
*a As is found above , late in November , Herman Richter told Demmer that Hoppstetter
had not complained of any lack of cooperation after Demmer returned from his vacation.
RICHTER'S BAKERY 477
As to Hoppstetter's other complaints about Demmer, his teslunony was un-
convincing. Hoppstetter testified that a time clock was installed after he
checked up andfound some discrepancies between the times Demmer recorded
employees as leaving work and the times Hoppstetter actually observed them
leaving. Hoppstetter did not testify as to how many or how serious the dis-
crepancies were or that he ever called them to Demmer's attention. He did
testify that he never mentioned those discrepancies to Herman Richter and that
as to, their bearing on Demmer's discharge, "possibly . . . that was one of the
-reasons."
Again, Hoppstetter, like Otto Richter, complained that bread was improperly
panned, resulting in wedge-shaped loaves. Such wedge-shaped loaves occur
occasionally in bakeries and any of several factors may be contributing causes.
Among such factors are inexperienced help, improper adjustment of the machine
molding the loaves, and "V-shaped" racks.' According to Demmer's testimony,
which the undersigned credits, he did his best to avoid wedge-shaped bread,
complained of inexperienced help and "V-shaped" racks, and asked in vain that
such racks be repaired or, replaced.
A major stick-up in the proofer 44 involving some 800 pounds of dough for which
Hoppstetter blamed Demmer, occurred during December 1941. Hoppstetter
testified that an employee told him that he had called to Demmer's attention
that a stick-up was developing. Upon cross-examination, Hoppstetter further
testified that it was the divider man, McCord," who had told him about informing
Demmer that a stick-up was developing. Hoppstetter admitted that it was the
duty of the divider man to stop that machine without consulting his supervisor
in the event a stick-up develops. From Hoppstetter's testimony on the incident,
the undersigned is convinced and finds that Hoppstetter did not make an
adequate investigation of the responsibility for the extent of the stick-up and
that it was McCord and not Demmer who was actually to blame for the unusually
large amount of dough involved.
According to Hoppstetter, it was Demmer's• loafing on the platform that
"finally broke the bomb-shell." Demmer testified, in effect, that he had not
taken off more time for such things as "a couple drags off' a cigaret" than he
usually had done during his fifteen years' employment and that no one had ever
complained about his taking too much time off from his work. The undersigned
credits the foregoing testimony of Demmer. The respondent also complained
that Demmer failed to enforce a regular lunch hour and a 44-hour week. From
Demmer's testimony and the record as a whole, the undersigned is convinced and
finds that Demmer did the best he could under the conditions of limited person-
nel and production schedules to give the employees a lunch hour and to keep
hours down as much as possible. In fact, Demmer had warned Otto Richter
shortly before the strike of impending labor trouble on account of the long hours
then being worked Moreover, Ioppstetter admitted that Demmer had co-
operated in getting the hours down to around 44 during the period immediately
43 Such racks slope toward the center and cause the dough to slip to one corner of the
greased pans while the bread is rising prior to its being put in the over.
44 The proofer is a device which enables the individual balls of dough to rise for several
minutes before going to the machine which molds them Several factors can contiibute to
stick-ups in the proofer, such as excessive moisture and humidity or lack of sufficient dusting
flour. The evidence is undisputed that there had been considerable difficulty with the proofer
even before moving to the new plant, and it is clear that at least part of thistdifficulty was
due to mechanical imperfections in the proofer. Most of the dough involved in a stick-up
can be salvaged and run through again.
"McCord was the employee who left the meeting on August 2 with the Richters ; the
divider is the machine from which the dough goes into the proofer.
478 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
before his separation and that after Demmer's discharge there had been a sub-
stantial increase in the number of hours being worked.
From all of the evidence, and particularly Hoppstetter's testimony, the under-
signed does not believe that the respondent dismissed Demmer in order to con-
solidate his position and that of another supervisor into the position of assistant
superintendent to be filled by a man more experienced and Highly trained than
Demmer. Admittedly Demmer was a practical baker who had not taken special
training, but so were men holding similar positions. at the Corpus bakery. On
direct examination, Hoppstetter testified, in substance, that in a report to He-man
Richter he had recommended that the positions of Demmer and Foreman Long
be combined into one position ; that the position be that of an assistant superin-
tendent; that in his opinion Demmer did not have sufficient expert knowledge of
fermentation to hold such a position , that sometime in the fall of 1941, he found
one Judkins. whom he believed capable of filling the position and displacing
Demmer and Long; and that, about the middle of November he discharged Long.""
On cross-examination by counsel for the Board; Hoppstetter gave the -following
testimony concerning Judkins, whom he hired on November 19, 1941:
Q. Had he [Judkins] had any technical training at all?
A. I can't answer that question.
Q. Would you say, on the basis of your investigation before you hired
him, whether or not he had had any technical training?
A. I'didn't look into that because I didn't think it was necessary.
Q. Why didn't you?
A. Because I wanted him in a foreman's capacity and I didn't think it was
necessary to go into that. I didn't ask him. I recall that I didn't ask him
that question whatsoever. _
Whatever, Demmer's faults and shortcomings may have been, i and he evi-
dently had some, the undersigned is convinced, from the record as a whole, that
they were not the real cause of his discharge, and that the respondent's letter,
above-quoted, characterizing Demmer as "very capable, willing, and very thor-
ough" more nearly reflected the respondent's appraisal of his qualifications after
fifteen years of service than the testimony which the respondent produced at the
hearing. The undersigned also believes that Herman Richter's true motive in
instructing Hoppstetter to "get rid of that man" lies outside of the defense pre-
sented by the respondent. From the inception of the respondent' s campaign
to prevent the organizaion of its employees, Demmer failed to render the respond-
ent the assistance in that campaign which it requested of him That Demmer
was the only supervisor on friendly teens with certain of the leaders of the
Union was admittedly known to Superintendent Richter. Demmer. continued to
be openly friendly with such leaders both before and during the strike. Shortly
after the strike started, Superintendent Richter sought to secure Demmer's co-
operation by promising an additional wage increase if Demmer would "stick by"
him. In connection with the two, weeks' vacation given Demmer in the fall,
both Herman Richter and Hoppstetter urged Demmer "to get the Union out of
his system"
It is clear that the respondent feared that the Union would persist in its
organizational activities as long as it had a foothold in the plant. It is also
evident that the respondent with reason believed that Demmer sympathized with
the Union. $ Under the conditions prevailing in, the plant, the undersigned
"The respondent made no explanation of why it waited over four months to ask Demmer
for his resignation. '
RICHTER 'S BAKERY 479,
infers and, finds that because of his key position therein and his friendship
with certain leaders among the employees, Demmer's failure to take part in the
respondent's anti-union campaign constituted encouragement. aid, and assistance
to the Union and to the respondent's employees in their concerted - activities.
Upon all of the evidence, and especially in view of the clearly established anti-
union policy of the respondent, the undersigned is convinced and finds that the
respondent's underlying reason for demanding Demmer's resignation was its
distrust of Demmer because of his failure to "stick by" the, respondent in its cam-
paign against the Union.
The undersigned further finds that the respondent's request, for Demmer's
resignation on March 23, 1942, was tantamount to discharging Demmer on that
day.
In accordance with the foregoing, the undersigned finds that the respondent,
by discharging Adolph Demmer on March 2.3, 1942, discriminated in regard to his
hire and tenure of employment, thereby 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 undersigned finds that the activities , of the respondent described in Section
III above , occurring in connection with the operation 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
Since it has been found that the 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 and to
restore as nearly as possible the conditions existing prior to the commission of
the unfair labor practices.
It has been found that the respondent has refused to baigain collectively with
the Union as the exclusive representative of the majority of the employees in an
appropriate unit. It will therefore be recommended that the respondent upon
request bargain collectively with the Union.
It has been found that the strike which began on August 2, 1941, was caused
and prolonged. by the respondent's unfair labor practices and that the respondent
has discriminated against the strikers whose names are set out in Appendix A
41 Matter of Carpenter Baking Company , a corporation , et al, and Auto Truck Drivers
Joint Council, No. 50 (A. F L.), 29 N . L. R B. 60; N. L. R . B v. Schmidt Baking Co, 122
F. (2d) 162 (C. C A. 4), enf'g Matter of Schmidt Baking Co , Inc and Local 622, Bakery'
Drivers and Salesmen (A. F. L ), 27 N. L. R. B. 864. The respondent contends in the instant
matter that the labor dispute discussed herein has had no effect upon commerce. It is
significant that from about the time of the dispute , the respondent has followed a policy
of curtailing the interstate aspects of its business This is shown clearly in its termination
of sales to a railroad and in its requirement that bread sold to the Beet Growers ' Employ-
ment Committee , Inc. be consumed before trains leave the State of Texas . The respondent
has reduced its out-of-state purchases by appioximately 50 percent and contends that it
can confine its purchases almost entirely to the State of Texas . Presumably this curtailment
of interstate ` commerce has resulted from the respondent ' s desire to avoid the jurisdiction
of the Board . Such a policy as the respondent is following tends to dry up the stream of
commerce'at,its source and would result, if widely practiced by those seeking to circumvent
the Act , in a system of state self-sufficiencies repugnant to the free commercial relations
among the several states provided for in the Constitution.
0
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in regard to their , hire and tenure of employment . In order to effectuate the
policies of the Act, it will be recommended that the respondent offer such em-
ployees reinstatement to their former or _ substantially equivalent positions,
without prejudice to their seniority and other rights and privileges. Such rein-
statement shall be effected in the following manner : all employees hired by the
respondent on and after August 2, 1941, the date of the commencement of the
strike, shall; if necessary to provide employment for those to be offered reinstate-
ment, be dismissed. If,' thereafter, despite such reduction in force, there is not
sufficient employment available for the employees to be offered reinstatement,
all available positions shall be distributed among the remaining employees, includ-
ing those to be offered reinstatement, without discrimination against any em-
ployees because of his 'union affiliation or activities, following such system of
seniority or other practice to such extent as hithertofore has been applied in the
conduct of the respondent's business. Those employees, if any, remaining after
such distribution, for whom no employment is immediately available, shall be
placed upon a preferential list and offered employment to their former or substan-
tially equivalent positions as such employment becomes available and before
other persons are hired for such work, in the order determined among them by
such system of seniority or other practice as has heretofore been followed by
the respondent. -
It will be further recommended that the respondent make whole the striking
employees whose names are set out in Appendix A for any loss of pay they may
have suffered by reason of the respondent's refusal to reinstate them by payment
to each of them of a sum equal to the amount which he normally would have
earned as wages from December 20, 1941, the date of the application for rein-
statement, to the date of the respondent's offer of,reinstatement or placement
upon the preferential list above described , less his net earnings ,48 during said
period. -
During January, 1942, Ray Edward Terrell.-joined the United States Navy.
It will'be recommended that'the respondent, upon application by Terrell within
thirty (30) days after his discharge from the armed forces of the United States,
offer him reinstatement to his former or a substantially equivalent position
without prejudice to his seniority and other rights and privileges. It will
further be recommended that the respondent make Terrell whole for any loss
of earnings 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 he
normally would have earned as wages during the period (1) between the date
of his discharge by the respondent and the date of his enlistment, and (2) between
a date five (5) days after Terrell's timely application for reinstatement as
provided above and the date of the respondent's offer of reinstatement; less his
net earnings "o during those periods.fi1
40 By "net earnings" is meant earnings less expenses , such as for transportation, room
and board incurred by an employee in connection with obtaining work and working else-
where than for the' respondent , which would not have been incurred but fdr his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,.
Lumber and Sawmill Workers Union, Local 2590, 8 N L . R B. 440 Monies received for
work performed upon Federal , State , county , municipal , or other work -relief projects shall
be considered as earnings . See Republic Steel Corporation v. N. L R B, 311 U S 7
49 Should it develop that any other employee whose name appears in Appendix A has
joined the armed forces'of the United States, the provisions contained in this Intermediate
Report applying to Terrell shall apply equally to any such individual.
60 See footnote 48, above.
ci See Matter of Federbush Co., Inc and United Paper Workers, Local 292, affiliated with
The United Paper, Envelope and Toy Workers ' International Union, C I. 0 , 34 N. L.
R. B. 539.
RICHTER'S BAKERY 481
It has been found that the respondent has discriminated in regard to the
hire and tenure of employment of Adolph Demmer. It will therefore be recom-
mended that the respondent offer Demmer immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to his seniority
and other rights and privileges. It will be further recommended that the
respondent make whole Demmer for any loss of earnings 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 he normally would have earned as wages,
from the date of his discharge to the date of the respondent's offer of reinstate-
ment, less his net earnings " during said period.
At the hearing, the undersigned expressly stated that in respect to the rein-
statement of the employees, the fact that they had obtained substantially equiva-
lent employment would be assumed. In the Ford Motor Company case," the
Board held that the mere obtaining of substantially equivalent employment is
irrelevant to considerations decisive of the question whether reinstatement effec-
tuates the policies of the Act. The Board held that the decisive considerations
do not vary from case to case, and accordingly found that it would "effectuate
the- policies of the Act to require the respondent to offer reinstatement to all
individuals .. . . found . . . victims of discrimination, whether or not they, or\
any of them, may have obtained other regular and substantially equivalent
employment." For the reasons set forth by the Board in its decision in the
above matter, the undersigned finds that it is necessary; in order to effectuate
the purposes of the Act, that the respondent offer reinstatement to those discrimi-
nated against as above indicated.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Bakery and Confectionery Workers' International Union of America, Local
No. 478, is a labor organization, within the meaning of Section 2 (5) of the Act.
2. All the employees in the production, maintenance, and wrapping depart-
ments of the respondent's San Antonio, Texas, plant exclusive of clerical and
supervisory employees, at all times material herein constituted and now consti-
tute a unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act. ' -
3. Bakery and Confectionery Workers' International Union of America, Local
No. 478, is and at all times since August 5, 1941, has been the exclusive represen-
tative of all of the employees in the above unit, for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing on August 6, 1941, and at all times thereafter, to bargain'col-
lectively with Bakery and Confectionery Workers' International Union of Amer-
ica, Local No. 478, as the exclusive representative of its employees in such unit,
the respondent has engaged -in and is engaging in unfair labor practices, within
the meaning of Section 8, (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Adolph
Demmer and of the striking employees listed in Appendix A, thereby discourag-
ing membership in Bakery and Confectionery Workers' International Union of
America; Local No. 478, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
12 See, footnote 48,, above.
53 Matter of Ford Motor Company and International Union United Automoboile Workers
of America,'Local Union No. 249, 31 N. L. R. B., No. 170.
504086=43-voi 46-31
482 DECISIONS OF NATIONAL LABOR,' RELATIONS- BOARD
6. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices , within the meaning of Section 8 (1) - of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices • affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
8. The respondent has not engaged in any unfair labor practice in regard to the
hire and tenure of employment of E. J . Hartfield.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondent, Richter's Bakery, its officers,
agents, successors and assigns, shall: =
1. Cease and desist from :
(a) Refusing, to bargain collectively with Bakery and Confectionery Workers'
International Union of America, Local No. 478, as the exclusive representative
of all the employees in the production, maintenance, and wrapping departments
of the respondent's San Antonio, Texas, plant, exclusive of clerical and super-
visory employees ;
(b) Discouraging membership, in Bakery and Confectionery Workers' Inter-
national Union of America, Local No 478, or any other labor organization of
its employees, by discharging or refusing to reinstate any of its employees or
in any other manner discriminating in regard to their hire and tenure of
employment or any terms or conditions of their employment,;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self -organi zation, to form, join, or
assist labor organizations, to -bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection
2 Take the following affirmative -action, which the undersigned finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Bakery and Confectionery Work-
ers' International Union of America, Local No. 478, as the exclusive representative
of all the employees in the production, maintenance, and wrapping departments
of the respondent's San Antonio, Texas, plant, exclusive of clerical and super-
visory employees, in respect to rates of pay, wages, hours of employment, or other
conditions of employment ;
(b) Offer to Adolph Demmer and to the employees whose names appear in
Appendix A immediate and full reinstatement, to their former or•substantially
equivalent positions, without prejudice to their seniority and other rights and
privileges, dismissing if necessary all employees hired since August 2, 1941, in
the manner set forth in the section entitled "The remedy" above, and place the
employees whose names appear in Appendix A for whom employment is ,not
:mmedi4tely available upon a preferential list in the manner set forth in said
section, and thereafter in said manner, offer them employment as it becomes
available ; •
(c) Make whole, in the manner set forth in the section entitled "The remedy"
above, Adolph Demmer and the employees whose names appear in Appendix A
for any loss of pay they may have suffered or may hereafter stiffer by reason of
the respondent's discrimination against them;
(d) Post immediately in conspicuous places throughout its San Antonio, Texas,
plant, and maintain fora period of at least sixty; (60) consecutive days from the
(late of posting, notices to its employees stating (1) that the respondent will
RICHTER'S BAKERY 483
not engage in the conduct from which it is recommended that it cease and desist
in paragraphs 1 (a), (b), and (c) of these recommendations; (2) that the re-
spondent will take the affirmative action set forth in paragraphs 2 (a), (b), and
(c) of these recommendations; and (3) that the respondent's employees are free
to become or, remain members of Bakery and Confectionery Workers' Interna-
tional Union of America, Local No. 478, and that the respondent will not dis-
criminate against any employee because of membership in or activity on behalf
of that organization ;
(e) Notify the Regional Director for the Sixteenth Region in writing within
twenty (20) days from the date of the receipt of this Intermediate Report what.
steps the respondent has taken to comply herewith.
It is further recommended that the allegations of the complaint as to E. J_
Hartfield be dismissed.
It is further recommended that unless on or before twenty (20) days from the
date of the receipt of this Intermediate, Report, the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended-any party may within
thirty (30) days from the date of the entry of the order transferring the case to
the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file
with the Board, Shoreham Building, Washington, D. -C., an original and four
copies of a statement in writing setting forth such exceptions to the Intermediate
Report 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 four
copies of a brief in support thereof. As further provided in said Section 33,
should any, party desire permission to argue orally before the Board, request
therefor must be made in-writing to the Board within twenty (20) days after the
date of the order transferring the case to,the Board.
• EARL S. BNLLMAN,
Dated July 30, 1942.
APPENDIX A
The sixteen employees referred to herein are :
Isabel Sebera
Eugene W. Cummings
Felix A Kusenberger
Walter Hartfield
Warren Ferrell
Fred D. Rogers
Willie Spencer Ware
Arthur Hartfield
Trial Examiner.
Mabel Burrell
Ray Edward Terrell
Williard D. Hicks
Raul Tanguma
Gilbert Garza
Clifton Jackson
Agnes l\tary Jonietz
Floyd Hartfield