Burry Biscuit Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1940

24 N.L.R.B. 1053 (N.L.R.B. 1940)

In the Matter of BURRY Biscurr CORPORATION and CRACKER & BISCUIT
WORKERS UNION LOCAL 411 OF THE BAKERY & CONFECTIONERY
WORKERS INTERNATIONAL UNION OF AMERICA, AFFILIATED WITH THE
A. F. OF L. and INDEPENDENT UNION OF COOKIE & CRACKER MAKERS
OF ILLINOIS , PARTY TO THE CONTRACT
Case No. C-1537.-Decided June 07, 1940
Bakery , Industry-Interference , Restraint , and Coercion-Company-Dominated
Union: domination of and interference with formation and administration;
support, activity of supervisory employees ; ordered disestablished as agency for
collective bargaining-Discrimination: discharge , charges of , not sustained.
Mr. Robert R. Rissman, for the Board.
Defrees, Buckingham, Jones cf Hoffman, by Mr. D. K. Jones and
Mr. T. R. Mulroy, of Chicago, Ill., for the respondent. _
Mr. Jack Zamford and Mr. Salvatore Cesario, of Chicago, Ill., for
Local 411.
Mr. Alex A. McConnell, of Chicago, Ill.,'for the Independent.
Mr. John K. Odisho, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Cracker & Biscuit
Workers Union Local 411 of the Bakery & Confectionery Workers
International Union of America, affiliated with the. A. F. of L., herein
called Local 411, the National Labor Relations Board, herein called
the Board, by. the, Regional Director for the Thirteenth Region (Chi-
cago, Illinois), issued its complaint dated November 30, 1939, against'
Burry Biscuit Corporation, Chicago, Illinois, herein called the re-
spondent, alleging that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce , within. the
meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
. The complaint and accompanying notice of hearing were duly
served upon the respondent, Local 411, and Independent Union of
24 N. L . R. B., No . 117: 1053
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cookie & Cracker Makers of Illinois, herein called the Independent.
With respect to the unfair labor practices, the complaint alleges in
substance that the respondent (1) formed, dominated, interfered with
the formation and administration of, and contributed financial and
other support to the Independent; (2) discouraged membership in
Local 411 by discharging and thereafter refusing to reinstate Ernest
Matthews because. he joined and assisted Local 411;, and (3),. by the
foregoing acts, by advising, urging; and warning-its employees against
joining. or assisting Local 411, by threatening its employees with the
loss. of seniority rights and the closing of its plant if they joined or
assisted Local 411, by interrogating its employees regarding their
union affiliations, by instructing its employees to advise it as to the
identity, of those employees.who attended meetings of Local' 411, by
stating to its employees that organizers and officers of Local 411 were
interested only in the collection. of dues from the employees, and in
other ways, interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act. The
respondent duly filed an answer to the complaint admitting that it
was engaged in interstate commerce within the meaning of the Act
but denying the alleged unfair labor practices.
Pursuant to the notice, a hearing was held from December 21,,1939,
to January.6, 1940, at Chicago,•Illinois, before Guy Van Schaick, the
Trial Examiner duly designated by the Board. The Board and the
respondent were represented by counsel, and Local 411 and the In-
dependent by their representatives; 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 close of the hearing, counsel for the Board moved to
conform the.pleadings to the proof. The motion was granted. At
that time counsel for the respondent moved to dismiss the complaint
and the several allegations thereof. After oral argument on said
motion by counsel for the Board and for the respondent, the Trial
Examiner granted the motion to dismiss the complaint with respect to
the allegation of discriminatory discharge of Ernest Matthews, sub-
ject to review by the Board, but reserved ruling on the motion with
respect to the other allegations of the complaint. During the course
of the hearing the Trial Examiner made a number of rulings on other
motions and on objections to the admission of evidence. , The Board
has reviewed all the rulings of the Trial' Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On April 2, 1940, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon all parties. In his
Intermediate Report the Trial- Examiner denied the respondent's
motion to dismiss the complaint and the several allegations thereof;
BURRY BISCUIT CORPORATION 1055
found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (2) and 'Section 2 (6) and (7), but not within
the meaning of Section 8 (3) of the Act; and recommended that
the respondent cease and desist from its unfair labor practices and
take certain affirmative action remedial of their effect. Thereafter,
the respondent filed exceptions to the Intermediate Report.' The
Board has considered the respondent's exceptions, to the Interme-
diate Report and, save to the extent that they are, consistent with
the findings, conclusions, and order set forth below, finds them to
be without merit.
:Upon the entire record in the case, the Board makes the following:
FINDINGS OF .FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent;, a Delaware corporation, with its principal office
in Elizabeth, New Jersey, is engaged in the manufacture, sale, and
,distribution of biscuits, cookies, crackers, and cracker products. It
maintains and operates manufacturing plants at Elizabeth, New
Jersey, and. Chicago, Illinois. This proceeding concerns the Chicago
plant only.
In the operation of its business the respondent uses flour, sugar,
salt, yeast, sirup, soda, shortenings, spices, chocolate,' containers,
packing cases, and miscellaneous materials and supplies. For the
fiscal year ending October 29, 1939, the total value of such materials
and supplies purchased by the respondent for use at the Chicago
plant, approximately 65 per cent of which came from points outside
Illinois, amounted to $715,700.52. During the same period, the gross
sales of finished products from the Chicago plant amounted. to
$1,665,739.17, approximately 70 per cent of which were shipped to
points outside Illinois. The respondent employs 350 persons at its
Chicago plant.
The respondent's Chicago plant is located in the Clearing Indus-
trial District, a private tract of - land outside of but abutting
on the city of Chicago, herein called the District. The District is
owned by a Delaware corporation.
IT. THE LABOR ORGANIZATIONS INVOLVED
Cracker & Biscuit Workers Union Local 411 of the Bakery &
Confectionery Workers International Union of.America is a labor
1 By letter to the Board dated May 10.1940: Local 411 excepted to certain findings of the
Trial Examiner . On May 14, 1940 , however, Local 411 notified the Board that it had
decided to accept the findings contained in the Intermediate Report and requested the
Board to ignore its previous communication to the contrary.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization affiliated with the American Federation of Labor. It
admits to membership employees in cracker and biscuit factories.
Independent Union of Cookie & Cracker Makers of Illinois is an
unaffiliated labor organization , admitting to membership employees
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Domination Of the Independent
1. Formation of the Independent
Early in 1938 Local 411 began to organize the respondent 's plant.
In April of that year several of the respondent 's employees who
had been solicited by union organizers talked the matter over among
12 or 15 of the older employees and decided to form an independent
union.
In the early part of the week of April 22, 1938, William Dax and
Sam Robertson , two non-supervisory employees , met with H. F.
White, the respondent 's plant manager . At this time Dax and Rob-
ertson informed White that A. F. of L. organizers had been ap-
proaching employees at their homes and on their way to and from
work the past several months, that it was the opinion of some of the
older employees that . an independent union would be preferable to
the A. F. of L., and that they desired to hold a meeting at the
plant in the latter part of that week , at a time when most of the
plant operations would be idle , for the purposes of ascertaining
l.ow, 'strong the sentiment for an independent. union was. White
told Dax and Robertson that they might have such a meeting pro-
vided all the employees' time cards were punched . out at the time;
that it would have to be a meeting on the employees ' own time.
Dax and Robertson then asked White if he could suggest an.attorney
who was familiar with the formation of labor organizations. White
said that he knew of one, Hardy Maclay, an attorney, who he
had heard discuss details of the C. I . 0. contracts in Detroit and
who seemed to be familiar with the formation of unions. 'White
gave •Dax and Robertson the address and telephone number of
Maclay. . White, later in the same day, telephoned Maclay, stating
that two of his employees had requested a reference to an attorney
familiar with the formation of ' labor unions and that he had sug-
gested his name. The day following the meeting with White, Dax
and Robertson went to see Maclay, told him that they were inter-
ested in the formation of an independent union, and asked him to
attend a meeting of the employees on April 22.
BURRY BISCUIT CORPORATION . .1057
The meeting was held at the plant on April 22 at 3 o'clock in the
afternoon at the time when the day and night shifts changed. Dag
and Robertson had previously asked the supervisors of, the produc-
.tion lines of each shift to tell the employees 'about the meeting. The
production lines were shut down by the supervisors at the beginning
of the meeting at 3 o'clock and did not resume operations until the
meeting adjourned. The meeting lasted about 30 minutes. Approxi-
mately 250, employees attended the meeting. The employees' time
cards: were punched ottt for the course of the meeting. Robertson
introduced Maclay as an attorney and stated that he was there to
answer any questions that the employees might have with respect to,
an independent union. There ensued a general discussion regarding
various aspects of an independent union. An unidentified employee
asked Maclay to compare an independent union with the A. F. of L.
At that point Robertson stood up and stated,that Maclay was there
merely to discuss 'an independent union. At. the suggestion of; either
Maclay or Robertson, the employees were requested, to vote on the
proposition whether or not they were in favor of an. independent
union. The employees proceeded to vote on that. issue by secret
ballot. 'Dax had asked Braasch, head ' of . the District police, as lie
was making his rounds, to come in and act as judge of the election.
Braasch counted the .ballots. The vote was 8 to' 1 -in. favor of an
independent union. '
Following -the above meeting, Maclay, at the: request, of Dax and
Robertson, prepared membership application cards, a proposed consti-
tution, bylaws, and a contract. Dag posted the proposed constitution
and bylaws on the bulletin boards in the plant for the employees?
inspection. The application, cards were signed by 'a majority of the
employees during working hours at the request of Dax and Robertson.
During the week following the meeting, departmental representatives
were elected' by secret ballot. The representatives, known as the
Council, met, with White's permission, in the office of'R. E Robertson;
the respondent's western sales representative. At its first meeting
the Council elected the officers,of the Independent Viand discussed a
proposed collective bargaining contract which had been drafted by
Maclay: The Council met each week in Robertson's office during the
course of the next 2 months. ' Notices of Council meetings, minutes
of meetings, and notices of dues payments were _posted'on bulletin
boards in the plant. Monthly'dues were collected in the plant during
working hours by, the departmental representatives.
On May 20, 1938, Maclay wrote to White, demanding' recognition
of .the.Independent as the bargaining. representative., of ,the respond-
ents employees, :ad offering:to' furnish ^'evidene ,of: the right of the'
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.Independent to such recognition. Thereafter, upon White's request,
Dax submitted the Independent's membership cards as proof of
majority representation. White compared the signatures on the
application cards with the respondent's pay roll and on May 24, 1938,
recognized the Independent as the sole bargaining agent for the
respondent's employees.
- In the. latter part of May 1938, the Independent submitted a pro-
posed collective bargaining contract to White. After reading the
contract. and noting objections 'thereto, White sent the contract to
Burry, the respondent's president in Elizabeth, New Jersey. Burry
rejected the contract. The Independent submitted a revised contract
to White on about May 15. 'White informed .the Independent that
he still was not satisfied'with the contract but that he would send it
on to Burry. ' -Burry again rejected the contract. The Independent
submitted a second. revised contract to White in July. White for-
warded this contract to' Burry who accepted it on July 28, 1938. By
the terms of the contract it was to remain in effect until June 1, 1939.
The contract, among other things, provided for a union shop.2
On January 26, 1939, Jack Zamford, general organizer of the
Bakery. & Confectionery Workers International Union of America,
wrote White, requesting that White post on the respondent's bulletin
boards an enclosed notice of a proposed meeting of Local 411 to be
held on February 4, 1939. White complied with. Zamford's request.
The notice remained posted for about 2 weeks. This is the only
request Local 411 made of the respondent. At no time did Local 411
demand recognition as sole collective bargaining agent of the respond-
ent's employees nor did it ever request permission to hold meetings
at, the respondent's plant. 'There is no evidence that the respondent
expressed` any hostility toward Local 411.
The respondent entered.into a second contract with the Independent
on October 10, 1939, extending to September 30, 1940. This contract
also ,provided for a union'shop. '
2.. Conclusions regarding the Independent
The respondent, knowing that the A. F. of L. was attempting to
or'gan'ize the plant, designated to its employees an attorney whom
they might consult for the'.purpose of forming an independent. union,
and thereafter permitted the employees, over an extended period, to
make full use of company property and, on various occasions, of com-
pany time, for activity incidental 'to the organization and. entrench-
2 The union -shop clause in the contract is as follows : "The Company agrees that it will
not employ . any worker unless such worker will agree at the time of such employment to
apply for membership in the union [ the Independent ] immediately upon the expiration of 6
weeks after date of employment."
BURRY BISCUIT CORPORATION 1059
ment,of the Independent. In connection with the meeting of April 22,
1938, particularly, the respondent went further in its assistance of the
Independent than merely to acquiesce in the holding of a meeting in
the plant. By the action of the respondent's supervisors in shutting
down the production lines and thereby delaying the start of the
night shift. the respondent not only encouraged attendance.-at. the
meeting, but lent its prestige to the success of the projected inside
organization.. The employees,must necessarily have- concluded, from
the respondent's willingness to disturb its routine of production so
that the meeting might be held, that the respondent .desired them
to join the Independent.
. Although the record indicates that the respondent did not expressly
direct its employees to form the Independent and did not contribute
money to it, and although there is no showing of employer hostility
toward Local 411, we agree with the Trial Examiner's conclusion that
the respondent's acts in relation to they Independent amounted to more
than mere acquiescence in independent employee self-organization,
and that. they constituted active encouragement. We find that the
respondent. dominated and interfered with the formation and admin-
istration of the Independent and contributed support to it, thereby
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
B. Other alleged unfair labor practices
The Trial Examiner found that, except in so far as it - dominated
and interfered with the formation and administration of the Inde-
pendent, and contributed support to it, the respondent did not inter-
fere with, restrain, or coerce its employees in the exercise of the rights
guaranteed in Section-7 of the Act, 'and that the' respondent did- not
discriminatorily discharge Ernest"Matthews because of his affiliation
with. Local 411. • He recommended the dismissal of the' pertinent
allegations of the complaint. .Local 411 filed no exceptions to the
Trial- Examiner's findings and recommendations.' Upon the entire
-record we agree with the conclusions of the Trial Examiner: His
recommendatons.^will accordingly be adopted.*,
IV."THE EFFECT. OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent,, set forth in Section
III A above, occurring in connection with. the operations of the
respondent described in Section' I above, have a close; intimate, and
substantial, relation to trade, traffic, and commerce among the several
,e See footnote 1, supra. .
1060 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of. commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices we. will order it to cease and desist. therefrom and to take
certain affirmative action designed to effectuate the policies' of the Act.
We have found that the respondent has dominated and interfered
with the. formation and -administration of the Independent and has
contributed support to it. In order to effectuate. the policies of -the-
Act and free the employees of the respondent from such domination,
and interference, and the effects thereof, which constitute a continuing
obstacle to the exercise by the employees of the rights guaranteed
them by the Act, we shall order the respondent to withdraw all recog-
nition from, the Independent as the representative of any of the
respondent's employees for the purpose of dealing with the respondent
concerning grievances, labor disputes; wages, rates of pay, hours of
employment, and conditions of work, and completely to disestablish
it as such representative. We shall further, order the respondent to
cease and desist from giving effect to its, contract of October 10;'1939;
with the:Independent, as well as to any extension, renewal, modifica
tion, or supplement thereof, and any superseding contract with the
Independent which may now be in force.
On the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLusIONS OF LAW
1. Cracker & .Biscuit Workers Union, Local 411 of the Bakery &
Confectionery Workers International Union of America,' affiliated
with the American Federation of Labor,. and Independent Union of
Cookie. & Cracker Makers of Illinois, are. labor organizations , Withinr.-
the meaning of Section 2 (5) of the-Act.
2: By dominating and, interfering with the formation and. admin-
istration of Independent Union, of Cookie &, Cracker., Makers of
Illinois, and contributing support. to it, the' respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section" 8` (2) of'the Act:
3. By., interfering-,.with, restraining, and coercing its employees in
the exercise of the rights, guaranteed .in Section 7 ..of the Act, the:
respondent has engaged, in and is engaging in unfair labor practices,
within the meaning of Section 8 (1),.of the Act.
4. The above unfair labor practices are unfair 'labor practices affect-
ing commerce, within the meaning of Section 2 (6) and •(7) of the Act.
BURRY BISCUIT CORPORATION 1061
5. The respondent has not discriminated in regard to the hire and
tenure of employment of Ernest Matthews, within the meaning of
Section 8 (3) of the Act.
ORDER
Upon the basis of the above. findings of fact and conclusions of
law. and pursuant to Section 10 (c) of "the National Labor '.Relations
Act, the National Labor Relations' Board hereby orders that the
respondent, Burry Biscuit Corporation, Chicago, Illinois, and its
officers, agents, successors and assigns shall:
1.. Cease, and desist-from: .
(a) Domin'ating' or interfering with the administration of Inde-
pendent Union of Cookie & Cracker Makers of Illinois,'or the forma-
tion or administration of any other labor organization of its
employees, or contributing support to Independent Union' of Cookie.
& Cracker Makers of Illinois, or any other labor organization of its
employees ;
(b) Giving effect to its contract of October 10, 1939, with Inde-
pendent Union of Cookie & Cracker Makers of Illinois, or to "any
extension, renewal, modification, or supplement thereof, or to any
superseding contract with Independent Union' of Cookie & Cracker
Makers of Illinois which may now be in force;
(c) 'In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes 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) Withdraw all recognition from Independent Union of Cookie
& Cracker Makers of Illinois as representative of any of its employees
for the purpose of dealing with the respondent concerning grievances,
labor disputes, wages; rates of pay, hours of work, or other conditions,
of employment, and completely disestablish Independent Union of
Cookie & Cracker Makers of Illinois as such representative;
(b) Post immediately in conspicuous places throughout its plant,,
and maintain for a period of at least sixty (60) consecutive days
from the date of the 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,,
and (2) that the respondent will take affirmative action set forth in
paragraph 2 (a) of this Order;
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1062 DECISIONS :-OF NATIONAL LABOR: rRELATIONS BOARD
(c) Notify the Regional Director for the Thirteenth Region. in
writing 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 in so far as the complaint alleges
that the respondent has engaged in unfair labor practices within the
meaning. of Section i8 (3) of the Act, and in so far as it alleges that
by acts other than unfair labor practices within the meaning of section
8 (2) of the Act the respondent has engaged in unfair labor practices
within the meaning of Section 8 (1) of the Act, the same be, and it
hereby is, dismissed.
MR. EDWIN S. SMITH took no part in.;the consideration of the above
Decision and Order.