Delight Bakery, Inc.

National Labor Relations Board - Board Decisions

Jan 10, 1964

145 N.L.R.B. 893 (N.L.R.B. 1964)

DELIGHT BAKERY, INC. 893
In a recent letter to you the ALA said that "you are entitled to as much as any
lithographer in Local 17 shops" Well, that might be worth saying if Local 17
lithographers had done so well. Let me remind you of some of the things that the
ALA has gotten for Local 17 members in the past several years-like a 10 week
strike-like a three year contract that contained no wage adjustment in the first
year and only $1.00 increased welfare benefits-like substantial unemployment in
the local-like special dues assessments to finance a legal battle (which was part
of the reason for the 10 week strike) over contract language drafted by their East-
ern lawyers, part of which has been ruled illegal.
Contrast this with the substantially improved position we have enjoyed in San
Leandro and what it has meant in the way of steady work for the employees of
this plant. The good teamwork here has enabled us to have a level of work which
has made it possible to minimize layoffs, short work weeks and reclassifications.
Your steadily improving productivity and quality have given the sales force a good
product to sell. This is the way real job security is built-by a cooperative effort
of a team of skilled people-skilled craftsmen-skilled salesmen and skilled man-
agers. I sincerely believe that we have the basis for a good long term growth and
development at San Leandro. Certainly the tremendous growth and expansion of
the entire West Coast will benefit our industry. And I'm convinced we can get our
fair share of this potential by continuing to work closely and well. In my opinion
there is no reason to interrupt this excellent relationship by permitting the ALA
to enter our affairs with what I consider to be an unrealistic approach to the carton
industry and our special problems.
Let me conclude my remarks by asking you to give us-and yourself-and Fred
Commerford the opportunity to really show what this plant can accomplish.
When you go to the polls on next Tuesday, think about your vote very carefully.
It is important to your future and that of your family. And if you agree that there
is not need here for the ALA-then I know you will vote against the ALA.
I want to thank you for your patience. I will be at home on Tuesday evening
awaiting a telephone call to tell me the results with complete faith and confidence be-
cause of your good judgment.
Delight Bakery , Inc. and General Teamsters Union, Local No.
406, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Ind. Case No. 7-CA-
4101. January 10, 1964
DECISION AND ORDER
On August 13, 1963, Trial Examiner James T. Barker issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in ail was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. He also found that the Respondent had not engaged in
certain other alleged unfair labor practices and recommended dis-
missal of these allegations of the complaint. Thereafter, the Respond-
ent and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Jenkins].
145 NLRB No. 93.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in this proceeding, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
1 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case, and pursuant to section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that the Respondent, Delight Bakery, Inc., its officers, agents, successors, and assigns,
shall:
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on February 6, 1963, by General Teamsters Union, Local No.
406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Ind., hereinafter called the Union, the Regional Director of the National
Labor Relations Board for the Seventh Region, on March 29, 1963, issued a com-
plaint against Delight Bakery, Inc., hereinafter called the Respondent, alleging viola-
tions of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended, hereinafter called the Act. In its duly filed answer, Respondent admitted
certain allegations of the complaint but denied the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held before Trial Examiner James T. Barker
at Grand Rapids, Michigan, on May 21 and 22, 1963. All parties were represented
at the hearing and were afforded full opportunity to be heard, to introduce relevant
evidence, to present oral argument, and to file briefs with me. On June 26, 1963,
counsel for the General Counsel and counsel for Respondent filed briefs with me.
Upon consideration of the entire record and the briefs of the parties, and upon
my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein, a Michigan corporation
maintaining its office and place of business in Grand Rapids, Michigan, where it is
engaged in a wholesale and retail baking operation which encompasses the manufac-
ture, sale, and distribution of doughnuts and related bakery products. Retail sales
constitute approximately 15 percent of Respondent's total gross volume of business.
During the calendar year 1962, in the course and conduct of its business opera-
tions, Respondent purchased and had shipped directly to it from outside the State of
Michigan supplies valued in the amount of $39,446. In addition, during the same
period Respondent purchased from a source in the State of Ohio cartons having a
value of $6,552.70, which cartons were shipped directly to Respondent from the State
of Ohio. At the time of the hearing, cartons were no longer being purchased in the
State of Ohio but were being purchased in the State of Michigan.
In addition, during the calendar year 1962, Respondent purchased from DCA,
Incorporated, a New York corporation, doughnut formula shipped from Melrose
Park, Illinois, to DCA's subsidiary, F. W. Stock and Sons, in Hillsdale, Michigan.
Respondent, in turn, purchased or received delivery of this doughnut formula from
the warehouse of F. W. Stock in Hillsdale, Michigan. The doughnut formula so
purchased or received had a value of approximately $3,000
Further, during the calendar year 1962, Respondent purchased from Luiden's
Brothers Company sugar and dates in the amount of $2,755, which materials were
transported directly to Luiden's warehouse in Holland, Michigan, from outside the
DELIGHT BAKERY, INC. 895
State of Michigan , and, after storage in Luiden 's warehouse located in the State of
Michigan , were purchased by Respondent and shipped to Respondent 's place of busi-
ness in Grand Rapids, Michigan. In addition , during the same period Respondent
purchased from Ernest Mingerink in Comstock Park , Michigan , sugar in the amount
of $13,662, which sugar Mingerink had purchased from American Sugar Refining
Company of New York, New York. This sugar was transported by American Sugar
Refining Company from the State of New York and other points outside the State of
Michigan, to a warehouse in Grand Rapids, Michigan, where, in turn, Mingerink
obtained the sugar and delivered it to Respondent's Grand Rapids, Michigan,
warehouse.
Mingerink , in the course of his business operations , orders sugar from American
Sugar Refining Company through a Michigan food broker. Mingerink is billed
directly from New York for the sugar and payment is made to the American Sugar
Refining Company.
Upon these admitted and/or stipulated facts, I find that at all times pertinent herein,
Respondent has been engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION
General Teamsters Union, Local No. 406, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Ind., is admitted by Respondent
to be a labor organization within .the meaning of Section 2(5) of the Act, and I so
find.
M. THE UNFAIR LABOR PRACTICES
The complaint alleges that on or about December 16, 1962, a majority of Respond-
ent's employees in an allegedly appropriate production and maintenance unit des-
ignated the Union as their representative for the purposes of collective bargaining
with Respondent, and that, commencing on or about December 19, 1962, the Union
requested Respondent to bargain collectively with it with respect to the rates of pay,
wages, hours of employment, and other terms and conditions of employment of the
employees in the aforesaid appropriate unit. The complaint further alleges that,
commencing on or about December 20, 1962, Respondent refused to recognize and/or
bargain collectively with the Union; and that on or about January 8, 1963, and on
specific dates thereafter Respondent, in violation of Section 8(a)(5) of the Act
undertook to bargain collectively and individually with employees and groups of
employees in the aforesaid appropriate unit, and unilaterally and without notification
to the Union changed existing conditions of employment by adopting a seniority
rights program and a paid vacation schedule, by providing and paying for work
uniforms, and by establishing a method of communication between management and
the employees. Moreover, the complaint further alleges that Respondent unilaterally
changed existing working conditions as aforesaid in order to dissuade its employees
from joining or assisting or remaining members of the Union, or from otherwise
engaging in concerted activities, and that such activities violated Section 8(a)( I)
and (3) of the Act. Additionally, the complaint alleges that since on or about
January 5, 1963, and on specific dates thereafter, Respondent by the latter referred-to
action and by certain promises of benefit interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
Denying the above allegations, the Respondent contends, inter alia, that the unit
in which the Respondent seeks recognition and bargaining is not an appropriate
unit; that at no time did the Union seek to bargain concerning said employees but
sought only recognition; that such changes in working conditions as did occur, were
made in the normal course of business pursuant to a management survey ante-
dating and totally unrelated to the advent of the Union, and were not for the purpose
of undermining the Union, as alleged; and that it made no promises of benefits nor
engaged in conduct violative of the Act.
1. The Respondent
Respondent is a family-owned bakery whose president is Neal Veenendall. Presi-
dent Veenendall's wife, his brothers Lawrence and Carl, and his father and mother
are active in the operation of the bakery. The employee complement is a relatively
small one and consisted on December 19, 1962, when the Union made its demand
for recognition, of 10 full-time production employees, 4 full-time drivers, and 12
employees designated "temporary part-time employees "
In the summer of 1962, Respondent incurred a deficit, after operating profitably
for 35 to 40 years. For some time President Veenendall had been aware of low
productivity, and in October or November 1962 had sought advice of counsel.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel advised that the low morale was attributable to a breakdown in communi-
cations between management and the employees and suggested a professional survey
be undertaken, and that procedures clarifying labor practices in the shop be adopted.
Thereafter, Veenendall discussed the problem with a management consultant firm.
Subsequently, on December 4, the consultant firm received authorization from Re-
spondent to undertake an analysis of its business. The project commenced on
December 5, and was completed on December 11. Each day as the analysis pro-
ceeded, Veenendall was given an oral report of the findings. The analysis immedi-
ately revealed poor employee morale affecting productivity, and the survey team, in
the early stages of the analysis, suggested a management conference with employees
to discuss complaints. Following the completion of this survey a summary of the
findings was conveyed orally to management. A written report followed which
was transmitted to Respondent on December 22. The report dealt with deficiencies
in the five following areas: (1) return on investment and modernization of facilities;
(2) poor employee relations and morale; (3) high production costs; (4) lack of
flexibility for changing market trends; and (5) lack of effective utilization of man-
agement's time. The report suggested adoption of a system for equitable distribution
of work among personnel and one for controlling assignment of work; the establish-
ment of a chain of command to facilitate better communication, up and down, be-
tween employees and management; and, as a long-range measure, the establishment
of an incentive system.'
2. The union organizational efforts
During the first 2 weeks of December five or six employees of Respondent met for
the purpose of deciding upon a course of conduct to follow in contacting the Union.
This was an outgrowth of earlier discussions among the employees at the bakery
concerning union representation. A meeting was arranged with the Union and sub-
sequently, a week later, approximately 16 employees met at the home of "Pete"
Harwood who was then an employee of Respondent. Two officials of the Union
were present at the meeting and discussion was had of the employees' problems, the
role of the Union with respect thereto, and the possible advantages to be derived by
the employees from the Union's representation of them. Thereafter union authoriza-
tion cards were executed.2 The union representatives told the employees that cards
signed by a majority of employees would "permit [the Union] to bargain for [them]"
but that "the cards didn't make [them] union members . it more or less pro-
tected [them]," and that the Union "would make out a registered letter . . . which
would be mailed to the bakery." The employees were further told that the cards and
the sending of the letter would make the Union the bargaining agent of the em-
ployees.3 McKenney and Eding testified that the employees were told by the union
representatives that no obligation attached to signing the cards.
After the cards were executed, McKenney took custody of them. The following
day, December 14, McKenney personally witnessed employees Boersma and Molen-
kamp execute authorization cards. Three other cards left at McKenney's home in
the custody of his mother were purportedly executed by employees during the en-
suing 3-day period. Thereafter, on December 17, McKenney delivered 19 authoriza-
tion cards to employee Matice who in turn delivered them to the Union .4
3. The Union demands recognition
On December 19, 1962, Union Representative Anderson accompanied by Union
Representative Welch (since deceased) went to Respondent's office and there hand-
delivered to President Veenendall a letter over the signature of the secretary-treasurer
of Local No. 406 dated December 19, 1962. The text of the letter was as follows:
'The foregoing is predicated upon the credited testimony of President Veenendall,
Markham, and Doyle McKenney.
2 On the face of the cards above the signature line, the following text appears:
I HEREBY ACCEPT MEMBERSHIP IN GENPRAL TEAMSTERS UNION, LOCAL
No. 406, affiliated with the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , and of my own free will hereby authorize the
above union to act for me as a collective bargaining agency in all matters pertaining
to rates of pay, wages, hours of employment , or other conditions of employment
8 The foregoing is predicated upon the credited testimony of McKenney as supported, in
part, by testimony of Thomas Matice, Betty Chehowski , Gene Eding , and Harwood
* The credited testimony of McKenney , as supported by that of Matice.
DELIGHT BAKERY, INC. 897
This is to notify you that a majority of your employees in the collective
bargaining unit described below have designated GENERAL TEAMSTERS
UNION, LOCAL NO. 406, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America as their exclu-
sive collective bargaining representative. In view of such designation, we de-
mand recognition, for purposes of collective bargaining, as the exclusive repre-
sentative of such employees. The collective bargaining unit in which we demand
recognition consists of all production employees, truck drivers and clerical em-
ployees ( excluding supervision and watchmen, as defined in the Act).
One of our representatives will call on you at your office on Friday, Decem-
ber 21, 1962 at 10:00 A.M. for the purpose of negotiating a collective bargain-
ing agreement . If such date is inconvenient for you, please notify us so that
another more convenient date can be agreed upon. We are willing to permit a
neutral person to check our authorization cards at the time of such meeting for
the purpose of verifying our majority status.
In the event of any discrimination against any of your employees because of
their union activities, or in the event of your refusal to bargain with us, we will
take prompt action to remedy such discrimination or refusal to bargain.
The December 19 meeting was brief. Veenendall read the letter that had been
handed him and inquired "(h)ow do we go about recognition." Welch asserted, in
effect, that recognition could follow as a result of a card check, an election, or a
strike. Welch further informed Veenendall that it was necessary to maintain the
status quo with respect to terminations , wages, and working conditions. Veenendall
stated that in view of the pre-Christmas rush he would not be available for a meet-
ing on Friday, December 21, as the letter requested, but a meeting was tentatively
arranged for December 24. Welch inquired if Respondent were represented by
counsel and Veenendall stated that he was and would consult counsel.5
Veenendall testified, and Anderson denied that, Veenendall questioned the in-
clusion of part-time employees and truckdrivers during the conference. While I
am convinced that these matters were not discussed in detail, I am convinced and
find that Veenendall questioned the inclusion of "all employees" in the unit, and
specifically questioned the inclusion of part-time employees. As I observed him as
he testified at the hearing, Veenendall impressed me as having bona fide certitude
with respect to this phase of the conversation, and I credit him.
4. Respondent and Union meet
After receiving the Union's letter of December 19, Veenendall contacted his at-
torney, Jack R. Clary. After conferring with his client, Clary telephoned Union
Representative Welch and a conference was scheduled which was, in due course,
held in Attorney Clary's office on December 26. Welch and Clary discussed the
problem of recognition and the possibility of a consent election. Clary contended
that the truckdrivers and part-time employees should not be included in the unit, a
contention with which Welch did not agree. Several other conferences were held
between Clary and Welch. Clary also discussed the unit issue by telephone on
several occasions with Welch's superior, Union Secretary-Treasurer Mackey. The
unit issue could not be resolved. On January 4 the Union sought the services of the
Michigan State Labor Mediation Board, asserting a question concerning representa-
tion existed. At this stage Welch indicated to Clary that he did not wish then to
invoke the representation processes of the National Labor Relations Board. A
joint mediation conference was held on January 11 with a representative of the State
agency, but the conference failed to resolve the issues between the parties. There-
after, on January 14, the Union requested the Michigan State Labor Mediation Board
to conduct a strike vote. A hearing was set for February 5, but on this date the
Union withdrew its January 14 request and the conference was not held.6
5. Postdemand events
a. January 8 meeting
At approximately 1 p.m. on the afternoon of January 8, the Respondent convened
a meeting of its bakery employees and truckdrivers. The employees were informed
5 The credited testimony of Veenendall and Anderson.
9
The credited testimony of Jack R. Clary, as supported by credited testimony of Presi-
dent Veenendall.
734-070-64-vol. 145-58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the meeting by word-of-mouth communication, or over the intercommunication
system. President Veenendall, Lawrence Veenendall, and Attorney Clary attended.
All employees who were present at work on that date (14 or 15 in number) at-
tended the meeting. At the outset of the meeting the employees were told by At-
torney Clary, in effect, that their attendance was not mandatory, but purely voluntary.
Attorney Clary then informed the employees that Respondent had received notice
that the employees desired to be represented by the Union. Clary stated that the
Respondent and the Union had been unable to agree on an election and that there
would be a proceeding before the Michigan State Labor Mediation Board. Clary
explained to the employees their rights under the Federal statute, stating that the
employees need not fear reprisals from Respondent, and further stating that while
Respondent preferred not to have a union because it felt it was unnecessary in
view of the small size and nature of its operation, Respondent had no antiunion
sentiment but, rather, that the decision of whether they wanted to be represented by
a union was one for the employees to make.
Concerning the further progress of the meeting at this juncture, Attorney Clary
credibly testified as follows:
I told them there would be no promises of the benefits or discrimination
threats of any kind. I told them that the company had been aware for some
time of some unrest in the plant. I told them if they wanted to discuss their
problems it was perfectly up to them; they could do that in any manner they
saw fit.
The company always had an open-door policy, but that perhaps they weren't
aware of it. They could come in and talk to Mr. Veenendall personally or in
committee or en masse if they wanted to. It was strictly up to them.
I recommend they do talk with each other because I felt at this point there
had been a breakdown in communications.
Someone from the group suggested that they thought a committee would be
the best way to handle it because they felt they could talk more freely through
a committee, and I said, "This is fine. Do exactly whatever you want to do."
At this point Mr. Veenendall spoke up and said, "Do you want to talk about
some of these now, and if you do would you feel better if I leave9" and some-
one said "Yes," whereupon Mr. Veenendall-both Neal and Lawrence-left,
and I was left in the general office with all of the employees.
After the Veenendalls had left the room the employees in a voluntary, informal,
spontaneous manner told Clary of their complaints, which included the matter of
employee uniforms, seniority rights, paid holidays, and other miscellaneous matters
relating to working conditions. As employees would raise these subjects and discuss
them, Attorney Clary would assure them that he could not guarantee them anything
and could make no promises. He assured them that he would discuss the matters
with the Veenendalls. As the discussions progressed, Attorney Clary told the em-
ployees that the Respondent had considered establishing uniform employee prac-
tices and procedures and welcomed employee suggestions. He further asked the
employees if they felt that further meetings would be valuable and they indicated
that they felt they would be. As the meeting adjourned Attorney Clary informed
the emnloyees that Respondent would endeavor to have further meetings with them,
if possible.7
b. Employee union hall meeting
Soon after the January 8 meeting employee McKenney and approximately 18 other
employees of Respondent met at the union hall and discussed the question of union-
ization. From the discussions it was McKenney's impression that a majority of the
employees still favored the Union, and he so notified Union Representative Welch
whom he had kept apprised of organizational developments, including a report on
what had occurred at the January 8 meeting at the plant.8
I The foregoing is predicated upon the credited testimony of Attorney Clary as sup-
ported in essential aspects by McKenney, Matice, and Chehowski. An evaluation of their
testimony convinces me that Clary enumerated a committee as one possible form of em-
ployee contact with President Veenendall Moreover, I conclude, upon my evaluation of
the testimony of McKenney and Matice on cross-examination, as well as direct, that, as
testified by Clary, the actual suggestion in hacc verbs that a committee be formed came
from an employee
8 The credited testimony of Doyle McKenney and Betty Chehowski
DELIGHT BAKERY, INC. 899
c. Selection of an employee committee
A few days prior to January 15, a notice on Respondent 's letterhead was place on
the bulletin board. The notice read as follows:
NOTICE TO ALL EMPLOYEES:
WE WOULD LIKE YOU TO HAVE A COMMITTEE APPOINTED TO
MEET WITH MR JACK CLARY, TUESDAY JAN 15, 1963 AT 8:00 P.M.
BAKERY OFFICE.
THIS MEETING IS TO DISCUSS & ESTABLISH COMPANY POLICIES
& ETC.
After the notice had been posted , employee McKenney passed to each employee,
working at the time, a sheet of paper whereon each employee wrote three names
representing his choices for committee representatives . Selected were employees
Doyle McKenney , Thomas Matice, and Gene Eding. McKenney did not com-
municate or receive instructions from any representative of management prior to the
balloting concerning the formation of the committee , or the method of its selection,
nor did any representative of management participate in the actual balloting. How-
ever, President Veenendall observed McKenney distributing the paper ballots and
was aware of the nature of the activity being pursued . After the selection had been
made McKenney communicated the results to President Veenendall 9
d. January 15 meeting
On January 15, after working hours, employees McKenney , Eding, Matice, and
the three other truckdrivers met at the plant with Attorney Clary, President
Veenendall , and Lawrence Veenendall . As the meeting commenced Attorney Clary
inquired why the particular individuals present "happened to be there " and was told
that the employees had selected a committee to represent them . The truckdrivers
explained that they wanted to be present separate from the committee . Clary in-
formed the employees that the Respondent did not desire to be placed in the position
of undermining the Union 's organizational efforts, but asserted that the meeting was
for the purpose of keeping the employees fully advised of meetings with the Union
and with the State labor mediation board; and for the further purpose of receiving
the employees ' suggestions relating to the uniform practice and procedure then under
consideration . Clary informed the employees that they would discuss matters with
them but could not make any promises or change any benefits . As the meeting
progressed discussion turned to seniority , holiday pay , break periods, lunch periods,
abuse of reporting and departure deadlines , and, in connection therewith , the need for
establishing rules of discipline . During the meeting President Veenendall indicated
that he had had several discussions with the health inspectors relating to the employee
practice of wearing blue jeans and boots in the bakery , and that this practice had
caused him some concern . In connection therewith , one of the employees complained
that while the truckdrivers are furnished their uniforms the bakery employees were
not.
At some juncture during the meeting Attorney Clary inquired how the employees
felt about the Union, stating that their representatives need not answer unless they
desire to do so. McKenney volunteered that he "thought it was still more for the
union than against."
As the meeting progressed both Clary and President Veenendall assured the em-
ployees that they would take into consideration the matters that had been discussed
but could promise nothing . As the meeting closed Attorney Clary asked the em-
ployees if they would like to have another meeting and the employees answered in
the affirmative . Clary informed the employees that he would be on vacation for a
period of time but a meeting was scheduled for January 28 or 29.10
e. Employees receive bakery uniforms
A day or two after the January 15 meeting , President Veenendall conversed with
several bakery employees concerning white bakery uniforms. Doyle McKenney testi-
fied credibly concerning this conversation as follows:
He said that they felt they could afford to buy us these uniforms because of the
fact the Health Board had been bringing this up, and he expressed a desire before
e The foregoing is predicated upon the credited testimony of McKenney, Matice, and
President Veenendall
"The credited testimony of Clary, McKenney, President Veenendall , and Matice.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to have us have the uniforms, and he said they would advise three uniforms
a year which we could maintain ourselves, and all of the full-time help who had
been there for 2 years would get these uniforms.
Within a few days thereafter President Veenendall purchased and gave uniforms
to each full-time bakery employee."
f. The Harwood replacement
On January 19, 1963, employee Irving (Pete) Harwood voluntarily left Respond-
ent's employ to accept employment with the U.S. Post Office Department. Harwood
had informed President Veenendall of his application tor employment with the Post
Office Department and had, as early as November 1962, made known his intention
to accept the employment when it was proffered. Harwood received his letter of
appointment from the Post Office on or about January 14, but its receipt appears
to have been anticipated for a period of time before that.
Harwood had been in Respondent's employ since 1949, and had occupied a high-
rated position. In early January, President Veenendall informed Harwood that he
intended to rehire one Art Schmidt whom Respondent had previously employed and
who had sought reemployment. Veenendall instructed Harwood to train Schmidt on
his job. Schmidt worked with Harwood for 4 days during which time Veenendall
observed his work and decided that he was not suited for the position.12
At approximately this juncture, Veenendall informed employees Eding and Mc-
Kenney, both of whom had a familiarity with Harwood's duties, that he intended
to designate one of them for Harwood's job, and instructed them to decide between
them which one of them desired the position. McKenney and Eding subsequently
discussed the matter, and McKenney indicated his desire to retain the position he
then held. When Harwood resigned Eding was given Harwood's job.13
g. The January 29 meeting
On January 26 or 27 the following notice on the Respondent 's letterhead was placed
on the employee bulletin board:
NOTICE
THIS IS TO REMIND ALL EMPLOYEES THAT THERE WILL BE A
COMMITTEE MEETING HELD HERE IN THE BAKERY OFFICE
TUESDAY JAN. 28, 1963, AT 8:00 P.M.
THIS MEETING WILL BE HELD WITH MR. CLARY TO DISCUSS
FURTHER COMPANY POLICY.
EVERYONE IS WELCOME.
In due course, on the evening of January 29, President Veenendall, Lawrence
Veenendall, and Attorney Clary met with employees Eding, Betty Chehowski, Betty
Kooi, Doris Satterla, and two truckdrivers.14 Employees McKenney and Matice were
not present. Betty Chehowski attended in McKenney's stead. In principal part, be-
cause different employees were present, the January 29 meeting was repetitious of the
January 15 meeting, insofar as subject matter considered and discussed. As in the
meeting of January 15, as the various topics were discussed employees were told by
Respondent that it could give no promises or assurances to them.15 The subject of
holiday pay, seniority, vacation, break time, and lunch periods were discussed. Also
11 The credited testimony of McKenney.
' The foregoing is based on a composite of the credited testimony of Harwood and
President Veenendall.
The credited testimony of McKenney and Eding , as supported by that of Veenendall.
14 The evidence indicates the meeting was actually held on January 29, despite the notice
scheduling it for January 28.
15 Betty Chehowski testified that Attorney Clary stated that Respondent "couldn't do
anything until after the Union was out of the picture because if they did anything or made
any concessions while the Union was into the picture well then it would be a complete viola-
tion but that we could talk over what we wanted." This testimony has no other record
support. Viewing Chehowski 's entire testimony both on direct and cross -examination, I
conclude her testimony is an interpolation of Clary's comments relating to the law's pro-
scription against promises of benefit during the pendency of a representation request rather
than a literal accounting of his statement in this respect.
DELIGHT BAKERY, INC. 901
considered was an alternate break period-lunch period arrangement which was
put to a vote, but the employees voted against the proposal.
In addition, at the meeting the employees were informed of the pendency of the
matter before the Michigan State Labor Mediation Board and Attorney Clary stated
that President Veenendall would like to know whether the employees wanted union
representation. The employees were invited to talk things over and it was pointed
out that representatives of Respondent did not need to be present.
h. Veenendall and McKenney converse
Commencing in mid-January, President Veenendall and Doyle McKenney con-
versed two or three times weekly on subjects relating to a variety of occupational and
personnel matters pertaining principally but not exclusively to the packing department
in which a few days prior to January 8, McKenney had been assigned nonsupervisory
overseeing duties.
One such conversation occurred 2 or 3 days after the January 28 meeting when
Veenendall discussed with McKenney the question of paid holidays for employees.
Observing that he could not promise anything with respect thereto, he stated that
any paid holiday plan that might be worked out would be graduated on the basis
of length of service and would necessitate the abolition of the summer baseball
excursion to offset the costs of the vacation plan.16
i. Veenendall-Matice conversation
During approximately the same period President Veenendall discussed the matter
of paid holidays with employee Matice. Matice credibly described the conversation
as follows:
At the time he said he was worried about the strike vote and he mentioned
that he was thinking over a scale on how to work paid holidays-just thinking
about it, just thinking about a way of working it out. He said after so many
years you get three paid holidays and after so many more years you get four, and
so forth, until you get the six paid holidays.
Matice, was not contradicted on cross-examination and reiterated that the discussion
occurred in the context of Veenendall's expressed concern over the pending strike
vote. I credit Matice's testimony and reject Veenendall's testimony to the extent that
it is contrary.
j. Employee meeting at Satterla residence
As the time approached for the strike vote to be conducted by the State labor
mediation board, McKenney and Veenendall discussed having a meeting to determine
the employees' sentiment toward the strike vote.17 An employee meeting followed
on February 3 or 4 which was held at the home of employee Doris Satterla. Em-
ployee McKenney presided at the meeting. During the discussions that took place
McKenney told the employees about President Veenendall's concern over the impend-
ing strike vote to be conducted under the auspices of the Michigan State Labor Media-
tion Board. It was decided to conduct a vote to determine employee sentiment
concerning possible strike action. Nine employees present voted against a strike
while seven voted in favor thereof.18
k. Employee plant meeting
After the meeting at the Satterla residence, McKenney informed President
Veenendall of the results of the voting. Veenendall stated that he felt better over
the "outcome of the vote, but he was still quite worried because of the closeness of it."
McKenney told President Veenendall that he felt that a number of part-time em-
ployees who were at the meeting "were going on the assumption that we still wanted
the Union," and that the closeness of the vote could be attributed to that fact.
10 The credited testimony of McKenney as supported by that of Veenendall
17 McKenney testified on direct examination he "thought" Veenendall made the sugges-
tion, that he was uncertain. On cross-examination he testified that as they discussed
"things quite freely" and because he had previously volunteered information regarding the
Union, he could have first raised the subject Veenendall denies having asked him to hold
the meeting In the circumstance, I credit Veenendall.
is The credited testimony of McKenney, as supported by that of Matice and Chehowski.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McKenney suggested that he (McKenney) "hold a meeting at the Bakery to decide•
whether or not [the employees] still wanted to go for the Union or not." President
Veenendall agreed to the meeting.19
Subsequently, either that afternoon or the following afternoon, the employees
convened in the main office of the Bakery. All of the full and part-time employees
working on the afternoon of the meeting attended. There were approximately 14
employees in attendance. McKenney credibly testified concerning the meeting as
follows:
Well, I told the people Neal [Veenendall] was still concerned over the closeness
of the vote, and I told them I thought there would be no reprisal against the
people for these union activities, and I would like to have a vote on whether
or not we still wanted the union, and I passed out slips of paper, and the vote came
out twelve to two in favor of not having the Union.
Veenendall was not present during the meeting but McKenney informed him of the
results of the voting. Likewise, he informed Union Representative Welch of the out-
come.20
On February 5, the day on which the scheduled State labor mediation board
proceeding was to be conducted, President Veenendall and Attorney Clary gathered
the employees in the office and informed them that the Board had granted the Union's
motion to withdraw its strike vote petition 21
Conclusions
1. As to alleged interference, restraint, and coercion
I conclude from the foregoing evidence that Respondent indulged in a very subtle,
somewhat muted, but nonetheless coercive pattern of conduct to dissuade employees
from their union allegiance. The evidence is persuasive, and there is no reason to
doubt, that by early December, Respondent had come on troubled times and had
bona fide concern for the lagging status of profits, productivity, and employee morale.
It is doubtless true that many of the concerns that moved Respondent to acts of
operative introspection lead employees, for their part, to look to collective action
for a solution.
There is no evidence to suggest that when it engaged outside advice and resorted
to a broad-gauged management survey of its operations, Respondent had knowledge
of the employees' union activity, by then little more than germinal. Thus, I do not
find that the survey was initiated intentionally as a foundation or springboard for
subsequent actions designed to defeat employee organizational efforts.
Rather, I am of the opinion that Respondent seized the opportunity thus afforded
it as a cloak; and that Respondent's transgressions spring from actions taken after it
received the Union's recognition and bargaining demand.
Respondent's proof is directed toward establishing, as indeed it does, that manage-
ment meetings with the employees were suggested by the professional consultants
whose services Respondent was utilizing, and that specific recommendations had
been advanced by them for attacking and resolving the deficiencies which were found
to be the root causes of Respondent's personnel and operational difficulties.
While the Act does not, of course, proscribe meetings between an employer and
its employees following a demand for recognition by a labor organization having
majority status, it does prohibit employers from using such gathering as a platform
for advancing promises and perfecting schemes designed to interfere with employee
rights to organize and engage in union activities At the three January meetings
with employees, Respondent was careful to maintain the appearance of noninterven-
tion, and, for the most part, the discussions of employee grievances and desired bene-
fits invoke no promises, but merely serve to communicate to the employees manage-
ment's recognition of their desires, and to infer its willingness to correct deficiencies.
19 The credited testimony of MoKenney. Veenendall admits granting permission to
MoKenney to use the office "because of the nature of McKenney's job" and his role as
spokesman for the employees. He further admits that McKenney told him he wanted "to
talk to the people for a moment." Veenendall denies being aware of "what was going to
happen " Considering contemporaneous events and attendant circumstance, I am unable
to credit Veenendall's testimony that he did not know the purpose of the meeting I reject
It and credit McKenney.
m The credited testimony of McKenney.
21 The credited testimony of McKenney.
DELIGHT BAKERY, INC. 903
The concept of committee representation for employees was skillfully and subtly
introduced by Respondent 's agent, Attorney Clary. When the employees showed
themselves receptive to the idea, the Respondent by its mid -January notice directed
them to form a committee to "discuss and establish company policies & etc."; and
thereafter knowingly and willingly permitted use of company time and premises for
its selection . From a consideration of the text of the notice, including references to
matters solely within the knowledge and control of Respondent, and considering the
stationery on which the notice appeared , I am convinced and find that the notice
was Respondent 's and its content attributable to Respondent . With the committee,
as with the employees at the first meeting, Respondent abstained from direct promises
while inferentially holding out the prospects for an ultimate solution of some if not
all of the most pressing employee grievances and desires . Through conversations
concerning paid holidays for all employees with McKenney and Matice , employees
who, judging from their designation by fellow employees as committee members,
possessed influence among the employee rank-and -file, Veenendall fostered the im-
pression of benefits possibly soon to be realized . To Matice he revealed that his
attitude of magnanimity was not unrelated to his apprehension over the outcome of
the pending strike vote.
Then, in the climate of understanding carefully fostered , Respondent granted the
long-held wish of the bakery employees for company -provided uniforms and placed
to a vote of the committee, which was vested with authority to act in a representative
capacity for the employees and with which Respondent had discussed other employee
grievances and matters of concern on interest to management and employees alike,
a proposition pertaining to a break and lunch period arrangement . These two
actions had symbolic implications beyond their seeming practical importance, in
that they demonstrated that representation through the Union was not needed to
secure benefits and obtain a voice in the solution of employee demands and
grievances.
Regarding the committee , I find in the circumstances here pertaining , including
the pendency of the representation question , the management directive to employees
to form a committee for meetings and discussions with management , Respondent's
acquiescence in the use of worktime and company property for the selection of the
committee , and Respondent's relationship to the committee which included putting
to a vote of the committee representatives a proposal affecting the working conditions
of all employees , that Respondent violated Section 8 (a)(1) of the Act .22
With respect to the decision to provide uniforms to bakery employees , the follow-
ing observation of the Court of Appeals for the District of Columbia in the Joy Silk
Mills case, 185 F . 2d 732, is pertinent , "The Act does not preclude an employer
from introducing benefits during an organizational period . But when the employer
uses proposed benefits as an inducement not to join the union , his activity bears no
shield of privilege . For `interference is no less interference because it is accom-
plished through allurements rather than coercion '. . Such action `minimizes the
influence of organized bargaining . It interferes with the right of self-organization by
emphasizing to the employees that there is no necessity for a collective bargaining
agent."' [Citations deleted.]
I am not convinced , as Respondent asserts, that the decision to provide uniforms
was made solely to satisfy the suggestion of and in order to remain in good terms
with the city health inspector , or that it was in fulfillment of a determination un-
related to the advent of the Union . The matter of uniforms had been discussed on
three occasions with the inspector over a period of time and there is no indication
that he had become insistent . No warnings or citations had been issued, and in the
circumstance Respondent had reason to expect that upon his anticipated visit, the
inspector would again stay his hand if the law's proscription concerning the intro-
duction of employee benefits during the organizational period were explained to
him. It is true that Respondent was concerned with the morale of its employees
and President Veenendall knew that the matter of company-provided uniforms was
a sensitive issue with them, for they had raised the issue at the January 8 meeting.
But Respondent had known the employees ' desires in this regard , for the issue had
been raised before, but Respondent had not acted . The only new factor that had
been introduced was the Union 's organizational effort. Considering the circum-
stances in which Respondent acted, I am convinced that Respondent was motivated,
at least in part, by a realization that the granting of this benefit would serve as an
inducement to abandon the Union.
13 See Alberto Culver Company, 136 NLRB 1432; Walton Manufacturing Company, 126
NLRB 697 , 700-701.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent coupled the uniform and committee vote actions with inquiries at the
January 15 and 29 meetings into employee sentiment toward the Union; and, at the
January 29 meeting, as well as through Vennendall's conversations thereafter with
McKenney, employee representatives were apprised of Veenendall's interest in learn-
ing of employee sentiment toward the Union. To this end, after consultation with
McKenney, Respondent granted use of its premises for an employee meeting at which
Veenendall's sentiments were made known to them and a poll of employees con-
ducted. While McKenney appears to have himself suggested holding the meeting,
considering the relationship of McKenney to Veenendall during this period, Veenen-
dall's approval of the plan and his cooperation in making available Respondent's
premises for the meeting, I find that McKenney was Veenendall's agent for the pur-
pose of this meeting, and, as the meeting was held in order to gauge employee senti-
ment toward the Union, McKenney's conduct was attributable to Respondent.
I conclude and find that Respondent's conduct in (a) directing and promoting the
formation of an employee committee, and in dealing with it in the face of the em-
ployees' organizational activity; (b) providing for the first time uniforms to bakery
employees; and (c) interrogating employees concerning their union sentiment and
polling them concerning their union preference, Respondent interfered with rights
guaranteed in Section 7 of the Act and violated Section 8(a)(1) of the Act.
I need not and do not decide whether by providing and paying for uniforms
Respondent violated Section 8(a) (3) of the Act, for, in any event, the remedy herein-
after recommended would not thereby be different.
2. The refusal to bargain
a. The Union's bargaining demand
The Respondent contends that the Union's demand was deficient in that the Union
sought only recognition and never requested bargaining. Respondent's contention
is without merit. The Union's letter of December 19 was unambiguous and ex-
plicit. It demanded recognition, defined the unit, and requested a meeting for the
purpose of negotiating a collective-bargaining agreement. That the Union may
have thereafter spoken in terms of "recognition" does not detract from the sufficiency
of the explicit bargaining request previously made in the letter, for as matters
evolved, it is apparent that recognition was sought merely as a prelude to negotia-
tions. The Union did not condition its demand upon a subsequent establishment
of its majority status, but unequivocally asserted it.23
b. The Union's majority status
As proof of the Union's majority status on December 19, the General Counsel
offered in evidence 19 cards, signed and dated. The General Counsel proved ex-
ecution of five cards by credible evidence of the signators.24 Credited testimony
of Matice also establishes that he observed two employees executing cards at the
December 13 organizational meeting.25 As found above, McKenney also per-
sonally observed the execution of cards by employees Boersma and Molenkamp.
The General Counsel relied on this evidence, and a presumption arising from the
circumstances of the cards' execution and the immediate custody taken of them by
McKenney at the meeting, or on the day of their execution, as the case may be, to
establish a prima facie case. It was the General Counsel's contention that the bur-
den that passed to the Respondent to establish irregularity in the execution of the
cards. The 19 cards were received in evidence. No irregularities in signature or
date appear on any of the 19 cards in evidence and Respondent developed no evi-
dence with respect thereto at the hearing after the receipt of the cards. The signa-
tures on the cards correspond to names on Respondent's payroll as of the time in
question. In the circumstances and considering credited evidence concerning card
signing activity at the March 13 meeting, McKenney's immediate assumption of
custody over the cards and his identification of them at the hearing as being those
that he entrusted to Matice for transmission to the Union, I find that 16 of the cards
23 See Rural Electric Company, Inc, 130 NLRB 799. It outlined the conventional
methods for establishing majority status only in response to President Veenendall's in-
quiry as to said means, but this is distinguishable from those cases wherein the union
itself suggests resort to alternate methods for expediting actual determination of a ques-
tioned majority status Cf, e.g., Graff Motor Supply Company, 107 NLRB 175, 182-183
24 McKenney, Matice, Chehowski, Eding, and Harwood.
23 Matice observed employees Kooi and Satterla executing cards.
DELIGHT BAKERY, INC. 905
constitute valid designations,26 and that, accordingly, on December 19, the Union
represented a majority of the 26 employees in the unit hereinafter found to be an
appropriate bargaining unit.
In so finding I reject Respondent's contention that any presumption attaching to
the cards is destroyed by statements made to the employees at the meeting before
they executed the cards that "there was no obligation" and the execution of the cards
would not "make them union members." The evidence establishes that, rather
than being told that the cards were merely for the purpose of securing a Board elec-
tion, the employees were informed in unmistakeable language that the cards would
have the effect of designating the Union as the bargaining agent of the employees
and that that was the purpose of the cards. Indeed the card signing occurred in
context of a discussion of the Union's role as bargaining agent of the employees.
Accordingly, I deem precedent cited by Respondent 27 quite distinguishable, and con-
clude, rather, that this csae is more nearly in line with other decided cases which
support the above-made finding.26
c. The appropriate unit
The unit in which, except for inconsequential details of wording, the Union re-
quested bargaining, and that alleged appropriate in the complaint, is as follows:
All full-time and regular part-time production and maintenance employees
employed by Respondent at its Grand Rapids, Michigan, plant, including truck-
drivers and plant clerical employees, but excluding office clerical employees,
professional employees, guards, and supervisors as defined in the Act.
Employees in the truckdriving category numbered 4 when the Union made its bar-
gaining demand, and there were 12 regular part-time production and maintenance
employees. The Respondent contends neither the truckdrivers nor the regular part-
time employees are properly includible in the unit, and that, accordingly, the unit
sought by the Union and alleged appropriate in the complaint is not, in fact, an
appropriate unit.
(1) Regular part-time employees
Eleven of the twelve part-time employees employed by Respondent on December
19 were students who worked during the school year and summer.29 Six of the
students were females and five were males.
Four of the girls, Dolfin Mockerman, Ripley, and Snoeyink, work in a separate
stockroom adjacent to the bakery making boxes in which baked products for res-
taurant and factory customers are packed. The girls are employed exclusively
in this capacity and work every night, and also on Saturdays, if the need for boxes
requires. By agreement with the high school coordinator, their workweek never
exceeds 18 hours. No full-time employee works in the stockroom and none are
generally used in making boxes unless, as rarely occurs, the demand requires
Slaughter, who usually worked 1 or 2 days a week before she resigned in Feb-
ruary, made boxes during the day and helped in the bakery in the evening. Wil-
lensem, a nonstudent, works I or 2 days weekly assisting in the bakery; while Doran,
similarly not a student, works in the bakery each weekday morning and from one-
half to an hour on Sundays, packing and making holes in doughnuts.
Three of the boys, Jeffers, LaBarre, and Workman, work each weekday afternoon
and on Sunday afternoons in the bakery assisting the full-time baking personnel.
They are employed approximately 28 hours per week.
O'Conner is employed approximately 20 hours each week in the bakery working
on Saturdays and Sundays and on 1 night each week. Winfield, who was discharged
on January 22, 1963, worked after school every night and on Sundays.
Perham works every night after school and on Saturdays cleaning pans, taking
bread out of the oven, and packing cookies. In addition, be makes one nighttime
delivery of goods by truck to a customer. In making the delivery, he places the
28 See Hunter Engineering Company, 104 NLRB 1016, 1020, enfd 215 F 2d 916 (C.A. 6).
I make no similar finding with respect to the three cards left by McKenney at his resi-
dence for signature. There execution was not proved and the other circumstances tending
to prove their validity do not attach to them
27 Englewood Lumber Company, 130 NLRB 394.
28 Gorbea, Perez & Morell, S en C., 133 NLRB 362, enfd 300 F. 2d 886 (C A. 1) ,
N.L R B v. Geigy Company, Inc., 211 F 2d 553 (CA 9) ; see also Dan River Mills,
Incorporated, Alabama Division, 121 NLRB 645; Joy Silk Mills, Inc v. N L.R.B,, 185
F. 2d 732, 743 (CAD C ).
"All attended high school except Perham, who was a part-time junior college student
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doughnuts which he is to deliver on racks which he puts in the truck, and then
checks the order. He is assisted by Schumaker, a full-time bakery employee, or by
driver Matice, or by other inside employees. When the delivery is completed he
removes the empty rack screens from the truck and returns them to the plant. In
addition, he works 7 or 8 hours on Sundays in the shop.
The part-time employees who assist in the bakery do not perform the same tasks
as the full-time employees but do related tasks. Full-time bakery employees work
from approximately 8 a.m. to 4 or 5 p.m. Some of the part-time students commence
work at 1 p.m.; others after school in the afternoon. Like the full-time bakery em-
ployees, the part-time employees are hourly paid, but at a lower scale. During
summertime months they continue to work part time unless they fill in for full-time
female employees on leave of absence to care for dependent children. The students
usually work 1 or 2 years and leave upon graduation from high school; however, this
is not invariably so.30 Four part-time employees were expected to graduate from high
school in June 1963 and were expected to terminate their employment accordingly.
However, it is Respondent's practice to employ part-time students each year as
needed 31
On the basis of the foregoing, I conclude and find that all of the employees em-
ployed by the Respondent on a part-time basis are regular part-time employees, and I
shall include them in the unit hereinafter found appropriate. The four girls who make
boxes perform work functionally related to that performed by full-time employees, as
do the part-time bakery employees. In addition the latter category of employees per-
form work similar in nature to that performed by the full-time bakery employees.
Both categories of part-time employees are employed for a sufficient number of hours
each week to have a community of interest with the full-time bakery employees in the
unit 32
(2) Truckdrivers
At times pertinent herein, Respondent has employed four truckdrivers. All are
full-time employees. Three of the drivers, Berkenpas, Dykstra, and Smith, have duties
substantially identical to each other. Each has an established route of 40 to 50
restaurants, factories, and stores to which they deliver baked goods. The baked goods
to be delivered have been "set-up" in advance by driver Matice, or one of the
Veenendalls. "Setting-up," as used in this context, consists of selecting by reference
to customer "bills" or orders the proper varieties and amounts of baked goods, packag-
ing it, and placing it in the appropriate rack for later delivery. Thereafter, the truck
used by Berkenpas is loaded by a bakery employee, usually the one performing the
glazing work. The goods for delivery by Dykstra and Smith is left by bakery em-
ployees on racks on the loading platform. Dykstra and Smith each load their own
trucks.
Smith commences work at 1:30 a.m. while Berkenpas and Dykstra begin their duties
at 2 a.m. Smith and Dykstra commence their duties by loading their own trucks.
Each driver has keys by which they gain admittance to restaurants and there they
deposit and "set up" their deliveries. Thereafter, they make deliveries to stores and
factories where they set up their orders. The drivers make collections from some
customers while other customers make remittances directly to Respondent's place of
business. The drivers are expected to maintain a good relationship with customers
and retain their confidence, but they appear to perform no sales function. They
complete their work between 11 a m. and 12:30 p.m. They perform no work in
the bakery. Each is paid a straight salary and receives paid holidays and 1 day off
each month. For a substantial period of time Respondent has furnished them uni-
forms. There is no interchange between these drivers and bakery personnel. Before
becoming a driver some 8 or 9 years ago, Smith served as a part-time and then a
full-time bakery employee.
Matice has his own route and substitutes for the other drivers on their respective
Saturday off, delivering their routes. Matice's own route consists of 15 or 20 stops.
In addition, during the course of his route, he makes special deliveries which vary
in number each day. His starting time each day ranges from 6.30 a.m to 7:45 a m.
depending on the number of special deliveries scheduled. It takes Matice 11/2 to 2
hours to complete his route. He then returns to the shop and sets up and delivers
30 Four full-time employees on the payroll at the time of the hearing were employed in
part-time capacities while in high school.
ffi The foregoing is predicated upon the credited testimony of McKenney and Veenendall,
as supported by the testimony of Matice.
3° Crown Drug Company, 108 NLRB 1126; George Groh and Sons, 141 NLRB 931
DELIGHT BAKERY, INC. 907
any other special orders that have accumulated. Thereafter, following lunch, he sets
up and makes other deliveries as required. After completing his afternoon deliveries,
he sets up orders that are subsequently to be loaded on the trucks driven by drivers
Berkenpas, Dykstra, and Smith, as described above. As time permits Matice performs
a variety of miscellaneous production tasks in the bakery. Matice spends from 10
to 20 hours per week working inside, and this includes his setup tasks. Matice is paid
on an hourly rate, plus a flat daily rate for the three Saturdays each month spent
in substituting for the other three drivers. However, like the other three drivers, he
receives paid holidays, a day off each month, and free uniforms. Matice, who has
been employed by Respondent for 4 years, worked in the bakery for approximately
2 years on a part-time basis before becoming a driver. He served in this capacity
for approximately 6 months until the former driver returned from army service.
He then worked in the bakery until assuming his present duties some 6 months prior
to the hearing.33
The decision as to the inclusion or exclusion of the truckdrivers must be governed
by an application of the criteria enunciated by the Board in E. H. Koester Bakery Co.,
Inc., 136 NLRB 1006:
We have therefore decided to abandon the blanket policy of including truck-
drivers in more comprehensive units [in cases of disagreement by the parties
when no union is seeking to represent truckdrivers separately and there is no
history of bargaining] and to return to the approach of predicating their unit
placement in each case upon a determination of their community of interest. In
so doing, we shall continue to accord to the history of collective bargaining
and to the agreement or stipulation of the parties the substantial weight which
has been given to these factors and which we find justified. Similarly, where
their representation in a separate unit is requested we shall determine whether
they may appropriately constitute a separate unit. However, in the absence of
such a request, we shall no longer hold that inclusion is automatically required.
In our evaluation we shall consider, among others, the following factors:
(1) Whether they have related or diverse duties, mode of compensation, hours,
supervision, and other conditions of employment; and (2) whether they are
engaged in the same or related production process or operation, or spend a sub-
stantial portion of their time in such production or adjunct activities. If the
interests shared with other employees is sufficient to warrant their inclusion,
we shall include the truckdrivers in the more comprehensive unit. If, on the
other hand, truckdrivers are shown to have such a diversity of interest from those
of other employees as to negate any mutuality of interest between the two
groups, we shall exclude them.
There is no history of bargaining between the Union and Respondent and, as
herein discussed, the Respondent contests the inclusion of truckdrivers. No other
labor organization is seeking to represent the truckdrivers. The three drivers,
Berkenpas, Dykstra, and Smith above referred to, are functionally engaged in the
transportation and delivery of Respondent's products and in incidental collection and
customer-relations incidental thereto, and they do not engage in the production
process; their mode of compensation, hours, benefits, and working conditions are
different from those of the production employees; they spend virtually all of their
working time away from the plant and have little, if any, contact with the bakery
employees; and there is no interchange between the bakery and the truckdrivers. I
conclude and find that drivers Berkenpas, Dykstra, and Smith are not properly
includible in the unit hereinafter found appropriate 34
On the other hand, in view of the substantial number of hours Matice spends in the
bakery, an unspecified portion of which is spent in performing production duties; and
as he works in close association with and proximity to production employees while
engaged in duties in the bakery, and, like them, receives some hourly wage compensa-
tion, I conclude and find that the evidence is not such as to negate any mutuality of
interest between him and the bakery employees and that he has a community of
interest substantial enough to require his inclusion in a unit of production and
maintenance employees.35
s3 The credited testimony of Matice and MeKenney, as supported by that of President
Veenendall.
fl4See E. H. Koester Bakery Co, Inc., supra; Gunzenhauser Bakery, Inc, 137 NLRB
1613, 1616.
m E. H Koester Bakery Co, Inc, supra.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing I conclude and find that the appropriate unit for
collective bargaining herein is:
All full-time and regular part-time production and maintenance employees em-
ployed by Respondent at its Grand Rapids, Michigan, plant, including the
special delivery driver-setup man and plant clerical employees, but excluding
truckdrivers, office clerical employees, professional employees, guards, and super-
visors as defined in the Act.36
In view of the foregoing determination, the question arises whether the exclusion
of the three truckdrivers gives rise to a substantial variance between the unit found
appropriate and that in which the Union requested bargaining, as would in and of
itself excuse Respondent from its statutory obligation to bargain with the Union.
The exclusion of the truckdrivers does not alter the essential nature of the unit 37
nor affect the Union's majority status. Accordingly, I find no substantial variance
resulted from the unit determination herein made 38
However, as the Respondent upon being faced with a demand for recognition
immediately raised the issue of the inclusion of the truckdrivers, and as the Union
remained adamant in its insistence that they be included, the question remains
whether Respondent's refusal to bargain was based on a good-faith doubt concerning
their inclusion. Respondent's simultaneous insistence upon the exclusion of regular
part-time production and maintenance employees was not, I find, devoid of good
faith, but some doubt arises from its subsequent course of conduct during the
pendency of the representation matter before the Michigan State Labor Board;
conduct designed to undermine the Union and which I have found interfered with
the employee rights under the Act. However, as I view the evidence, I am con-
vinced that Respondent in good faith questioned the inclusion of truckdrivers and
did not initially invoke the issue as a stalling tactic nor thereafter employ it as a
tactical gambit. Rather, I am convinced that Respondent raised the issue having
reasonable basis for challenging the propriety of their inclusion and adhered to its
position in the face of the Union's adamant insistence. While the unit which the
Union sought was not an inherently inappropriate unit,39 neither was it a traditionally
appropriate one 40 including, as it did, truckdrivers whose unit placement, under then
newly enunciated Board policy, was to be decided on the basis of community of
interest factors present in each case.41 As Respondent, under advice of counsel not
without experience in labor relations, immediately upon being asked by the Union to
grant recognition, questioned the inclusion of truckdrivers; and as Respondent showed
no disposition to avoid meeting and conferring with the Union on the issue and ex-
plored possibilities for a consent election; and as the parties had available to them
and were utilizing a process for the early resolution of the representation question,
I conclude that Respondent's refusal to recognize and bargain with the Union was
based on a good-faith doubt as to the inclusion of truckdrivers and was not raised
merely to gain time with which to undermine the Union's representative status.
Accordingly, I shall recommend dismissal of the complaint insofar as it alleges viola-
tions of Section 8(a)(5) of the Act 4'
Notwithstanding this conclusion, however, I am nevertheless convinced that even
though it entertained a good-faith doubt as to the appropriateness of the unit, Re-
spondent utilized the time afforded it by the Union's resort to the Michigan State
Labor Mediation Board processes to endeavor to undermine the Union, and, in so
doing engaged in conduct, as found above, violative of Section 8(a)(1) of the Act.
In view of the purpose and intention manifested by Respondent's course of conduct,
and as there is a causative relationship between this conduct and the Union's appar-
ent subsequent loss of its majority status, I am of the opinion, and accordingly shall
36 The employee (at the time of the hearing), Perham, who makes one nighttime de-
livery by truck as a mere incident to his production duties, is not a truckdriver within the
meaning of this unit description See J. L. Brandeis & Sons , Inc, 142 NLRB 825.
37 See, e.g., United Butchers Abattoir, Inc., 123 NLRB 946, 956, wherein the union
sought a production and maintenance unit ; the Board excluded all maintenance em-
ployees and found no substantial variance
sa United Butchers Abattoir, Inc., supra; American Rubber Products Corp., 106 NLRB
73, 76
3° Cf Page Aircraft Maintenance, Inc, 123 NLRB 159. 164.
40 Cf Tom Thumb Stores, Inc, 123 NLRB 833
41 E H Koester Baking Co., Inc., supra.
42 Cf Tom. Thumb Stores, Inc., supra; United Butchers Abattoir, Inc, supra, at 957.
DELIGHT BAKERY, INC. 909
recommend that, in order to remedy the violations here found and to effectuate the
purposes of the Act, an order requiring Respondent, upon demand, to bargain with
the Union in the unit herein found appropriate is essential 43
I shall recommend dismissal of the complaint to the extent that it alleges violations
of Section 8(a)( I) of the Act based on Respondent's alleged request that employees
engage in surveillance on its behalf, and promises of changed conditions of employ-
ment, including adoption of a seniority rights program and paid holiday schedule,
and the establishment of a method of communications between the employees and
management. The evidence does not reveal any request of surveillance, and the
discussions that entailed changed working conditions, other than as hereinbefore
found, were prospective in nature but were not accompanied by any promise.
Moreover, the changes discussed were not instituted. Further, I find nothing in
Respondent's conduct relating to the Harwood replacement matter violative of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a) (1) of the Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. General Teamsters Union, Local No. 406, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Ind., is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time production and maintenance employees em-
ployed by Respondent at its Grand Rapids, Michigan, plant, including the special
delivery driver-setup man and plant clerical employees, but excluding truckdrivers,
office clerical employees, professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. General Teamsters Union, Local No. 406, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Ind., has been at all times
since December 19, 1962, and now is, the exclusive representative of all employees
in the aforesaid appropriate unit for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
5. By directing and promoting the formation of an employee committee and there-
after dealing with it in the face of the organizational activities of its employees;
granting benefits to bakery employees in the form of company provided uniforms;
and by interrogating employees concerning their union sentiments and polling them
concerning their union preference , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
6. Respondent has not engaged in any unfair labor practices not specifically found
herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that the Respondent, Delight Bakery, Inc., Grand Rapids, Michigan, its officers,
agents, successors , and assigns , shall:
sa See International Broadcasting Corporation (KWKH ), 99 NLRB 130 , enforcement
denied 209 F. 2d 912 (C.A. 5), on other grounds; see also Piasecki Aircraft Corporation,
123 NLRB 348 , 350; Joy Silk Mills, Inc. v . N.L.R.B, 185 F. 2d 732 (C.A.D.C.) ; Frank
Bros. Company v. NL.R.B., 321 U.S. 702, 704-705. As Respondent ' s campaign involved
interference with protected rights of employees of a type patently designed to undermine
the Union 's majority status , this remedy Is deemed warranted, even though the inter-
ference was not accompanied by discriminatory discharges.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Directing and promoting the formation of an employee committee , and deal-
ing with it in the face of its employees ' organizational activities.
(b) Granting benefits for the purpose of inducing them to refrain from union or
concerted activities.
(c) Interrogating employees concerning their union activities and polling them
concerning their union preference.
(d) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise of their right to self-organization , to form, join, or assist
General Teamsters Union, Local No. 406, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor organ-
ization, to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment , as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Upon request, bargain collectively in good faith with General Teamsters
Union, Local No. 406, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , Ind., as the exclusive representative of all em-
ployees in the aforesaid appropriate unit, and, if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Post at its Grand Rapids, Michigan , bakery, copies of the attached notice
marked "Appendix." 44 Copies of said notice, to be furnished by the Regional Di-
rector for the Seventh Region, shall, after being duly signed by a representative of
the Respondent, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted,
Reasonable steps will be taken to insure that such notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for the Seventh Region, in writing, within 20
days from the date of the receipt of this Intermediate Report, what steps the Re-
spondent has taken to comply herewith.45
It is recommended that unless on or before 20 days from the date of the receipt
of this Intermediate Report , the Respondent notifies said Regional Director in writ-
ing that it will comply with the foregoing Recommended Order, the National Labor
Relations Board issue an Order requiring the Respondent to take the action
aforesaid.
" If this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "A Decree of
the United States Court of Appeals, Enforcing an Order" for the words "A Decision and
Order."
45 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for the Seventh Region, in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with General Teamsters Union,
Local No. 406, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , Ind., as the exclusive representative of all
our employees in the bargaining unit described below with respect to rates
of pay, hours of employment, and other conditions of employment , and, if
HODCARRIERS ' & CONSTRUCTION LABORERS ' LOCAL 300 911
an understanding is reached , we will embody such understanding in a signed
contract . The bargaining unit is:
All full-time and regular part-time production and maintenance em-
ployees employed at the Grand Rapids, Michigan, plant, of Delight Bakery,
Inc., including the special delivery driver-setup man and plant clerical em-
ployees, but excluding truckdrivers, office clerical employees , professional
employees , guards, and supervisors as defined in the Act.
WE WILL NOT unlawfully direct our employees to form an employee com-
mittee and thereafter promote among them the formation of an employee
committee , or deal with any such committee concerning grievances or con-
ditions of work of our employees , grant benefits to them, interrogate them
concerning their union activities , or poll them concerning their union preference.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the rights to self-organization , to form
labor organizations , to join or assist General Teamsters Union, Local No. 406,
International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Help-
ers of America, Ind., or any other labor organization , to bargain collectively
through representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities , except to the
extent that such right may be affected by any agreement requiring member-
ship in a labor organization as a condition of employment , as authorized in
Section 8 ( a)(3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
All of our employees are free to become or remain or to refrain from becoming
or remaining members of General Teamsters Union, Local No. 406, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Ind.
DELIGHT BAKERY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 500
Book Building , 1249 Washington Boulevard , Detroit, Michigan , Telephone No.
226-3200, if they have any question concerning this notice or compliance with its
provisions.
Hodcarriers ' and Construction Laborers ' Union Local 300, Inter-
national Hodcarriers ', Building and Common Laborers' Union
of America, AFL-CIO [Fiesta Pools, Inc., and Universal Con-
tractors, Inc.] and Jones & Jones, Inc. Case No. 21-CC-565.
January 10, 1964
DECISION AND ORDER
On September 30, 1963, Trial Examiner Louis S. Penfield issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent and the General Counsel filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs.
145 NLRB No. 94.