Flowers Baking Co., Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1968

169 N.L.R.B. 738 (N.L.R.B. 1968)

738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flowers Baking Company, Inc., and Ideal Baking
Company, Inc. and American Bakery and Confec-
tionery Workers' International Union , AFL-CIO.
Cases 15-CA-2899, 15-CA-2997, and
15-CA-2997-2
February 12, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On August 23, 1967, Trial Examiner Morton D.
Friedman issued his Decision in the above-entitled
proceeding, finding that the Respondents, Flowers
Baking Company, Inc., and Ideal Baking Company,
Inc., had engaged in and were engaging in certain
unfair labor practices and. recommending that they
cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondents
filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision,' the exceptions, the
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modifications
noted below.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below, and hereby orders that the Respondents,
Flowers Baking Company , Inc., and Ideal Baking
Company, Inc., both of Panama City , Florida, their
respective officers , agents, successors , and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified:
1. Delete from the second paragraph and from
the fifth indented paragraph of Appendix A at-
tached to the Trial Examiner's Decision the
references to the Trial Examiner , and substitute
therefor "the National Labor Relations Board."
' The following inadvertences contained in the Trial Examiner 's Deci-
sion are hereby corrected: the name "Pitts" should be "Rivers" in sec. C
(2), A, 6, sentence starting "Pitts;" the name "Hilburn" should be "Mc-
Mullen" in sec . C(2), A, 7; final sentence of paragraph starting "Pitts."
2 In agreeing with the Trial Examiner that the Respondents engaged in
various independent acts violative of Section 8(a)(1) of the Act , we deem
it unnecessary to pass upon his findings relating to Supervisor Wicker's
statement to employees Pitts and Averett in July 1966, and to Supervisor
McMullen's statement to employees Kemp and J. M. Warren after the Oc-
tober 14, 1966, bargaining session between Respondents and the Union.
In agreeing with the Trial Examiner that the Respondents violated Sec-
tion 8 (a)(5) of the Act, we rely only upon the Respondents ' unilateral
reduction of the workweek of four employees on August 15, 1966; their
unilateral grant of a wage increase for all employees immediately after the
unfair labor practice strike began on November 5, 1966; and their bad-
faith bargaining at the November 16 negotiation session with the Union.
With regard to the Respondents' unilateral wage increase, not only was
it granted before a bargaining impasse was reached , but the record shows
that it was designed to disparage and undermine the Union . This is evident
from the Respondents ' other conduct herein, such as their illegal efforts
before the election to thwart the Union's organizational campaign, their
other unlawful unilateral action and bad-faith bargaining subsequent to the
Union's certification, and their attempt to blame the Union in October for
depriving the employees of the wage increase at that time.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: Upon a
charge filed on August 7, 1966, an amended charge filed
on November 3, 1966, and a second amended charge
filed on November 18, 1966, in Case 15-CA-2899 by
American Bakery and Confectionery Workers' Interna-
tional Union, herein called the Union, the Regional
Director for Region 15 of the National Labor Relations
Board, herein the Board, issued a complaint on
November 30, 1966, on behalf of the General Counsel of
the Board, against Ideal Baking Company, Inc., and
Flowers Baking Company, Inc., herein collectively called
the Respondent. Thereafter, on January 5, 1967, the
Union filed a charge in Case 15-CA-2997 and on Janua-
ry 25, 1967, the Union filed a charge in Case
15-CA-2997-2. On February 24, 1967, the said Re-
gional Director for Region 15 issued an order withdraw-
ing the aforesaid complaint in Case 15-CA-2899 and
consolidating Case 15-CA-2899 with Cases
15-CA-2997 and 15-CA-2997-2. On the same day, the
said Regional Director issued a consolidated complaint
in all of the said cases against the Respondent alleging
violations of Section 8(a)(5), (3), and (1) of the National
Labor Relations Act, as amended (29 U.S.C. Sec. 151, et
seq.), herein called the Act. In its duly filed answer to the
aforesaid complaint, the Respondent, while admitting cer-
tain of the allegations thereof, denied the commission of
any unfair labor practices.
Pursuant to notice, a hearing was held before me in
Panama City, Florida. All parties were represented and
afforded full opportunity to be heard, to introduce rele-
vant evidence, to present oral argument, and to file briefs.
Briefs were filed by counsel for the General Counsel, the
Charging Party, and the Respondent.
Upon consideration of the entire record in this case, in-
cluding the briefs of the parties, and upon my observation
of the demeanor of each of the witnesses testifying before
me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
A. Ideal Baking Company, Inc., a Florida corporation
with its principal place of business located at Panama
169 NLRB No. 101
FLOWERS BAKING COMPANY, INC. 739
City, Florida, is engaged in the production of baked sweet
goods. During the 12 months immediately preceding the
issuance of the consolidated complaint herein, a repre-
sentative period, Ideal, in the course of conduct of its
business, shipped goods and products valued in excess of
$50,000 directly to points outside the State of Florida.
It is admitted, and I find, that Ideal is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
B. Flowers Baking Company, a Georgia corporation
with its office and principal place of business at
Thomasville, Georgia, maintains a plant and place of
business in Panama City, Florida, where it is engaged in
the production of various bakery products. During the
12-month period immediately preceding the issuance of
the consolidated complaint herein, a representative
period, Flowers, in the course and conduct of its busi-
ness, shipped goods and products of a value in excess of
$50,000 directly to points outside the State of Georgia.
It is conceded, and I find, that Flowers is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
C. It is admitted, and I find, that from on, or about,
June 25, 1966, Ideal and Flowers have been affiliated
businesses with respect to their Panama City operations,
with common offices, ownership, directors, and opera-
tors, and have constituted a single-integrated business en-
terprise, the said directors and operators of which formu-
late and administer a common labor relations policy for
the aforenamed companies, affecting the employees of
said companies.
It is further admitted, and I find, that on September 30,
1966, the two companies were merged under their respec-
tive names in the State of Florida.
Accordingly, I find, as admitted, that the Respondents
constitute a single employer for the purposes of collective
bargaining within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find , that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
As noted above , Flowers Baking Company purchased
Ideal Baking Company in Panama City , Florida, some-
time early in 1966. The merger of the two was completed
on September 30, 1966.1 Before Flowers took over, and
for some time after Flowers took over, the employees ac-
tively engaged in production and sanitation at the Panama
City plant were unrepresented . Sometime in the spring of
1966, the employees of the combined Respondent made
contact with the Union and thereafter the Union began an
organizational drive among the Respondent 's employees
which culminated in the filing of a petition for representa-
tion election, on June 23 , 1966.2
It is alleged in the complaint that acts of interference,
coercion , and restraint were committed by various super-
visors and officials of the Respondent between the date
of the filing of the petition and the date of the election
which occurred on July 25, 1966 , and thereafter . Despite
alleged interference, coercion , and restraint, the
Union won the election and was certified as the repre-
sentative of the Respondent's employees in a production
and maintenance unit more fully set forth hereafter. The
certification was given on August 2.
After some delays, as explained below, negotiations
between the Union's representatives and representatives
of the Respondent commenced late in September, con-
tinued through the month of October, and a final meeting
was held on November 16. In early November the em-
ployees voted to strike the Respondent, which strike
began on November 5.
The complaint alleges in substance, as noted above,
that the Respondent, during the organizational period,
through its supervisors, committed acts constituting inter-
ference, coercion, and restraint within the meaning of
Section 8(a)(1) of the Act. These allegations will be dealt
with hereunder. The complaint further alleges that after
the certification the Respondent generally refused to bar-
gain in good faith with the Union in violation of Section
8(a)(5) of the Act. It is further alleged therein that the
Respondent took four separate unilateral actions which
in and of themselves each constituted a separate refusal-
to-bargain violation of the Act. In addition to all of the
foregoing, the complaint alleges that the Respondent dis-
criminatorily laid off one employee for 3 days because of
his union activity and in reprisal therefor and that the
Respondent permanently laid off a second employee for
like reason. Finally, the complaint alleges that the strike
which occurred on November 5 was caused by the
Respondent's unfair labor practices as allegea and that,
therefore, the strikers are unfair labor practice strikers
who have unconditionally requested return to their
former or equivalent positions but who have not as yet
been so returned or reemployed by the Respondent. This
failure to reinstate is alleged as a violation of Section
8(a)(3). The complaint further requests such relief as is
normally required in similar cases.
The answer, as noted, specifically denies the commis-
sion of any unfair labor practices. At the hearing, the
Respondent through its supervisors and managers denied
the commission of any interference, coercion, and
restraint and also gave testimony which, Respondent
claims, is sufficient to show that the action taken sub-
sequent to the Union's certification by the Respondent
did not constitute refusals to bargain and that the layoffs
of the two employees named in the complaint were for
good economic or disciplinary reasons. It further claims
that the strike was economic in nature.
Thus, the issues as framed by the pleadings and the
contentions of the parties are as follows:
1. Did the Respondent through its various managerial
employees and supervisors interfere with, coerce, and
restrain the Respondent's employees in violation of the
employees' Section 7 rights?
2. Did the Respondent discriminatorily lay off em-
ployees Billy W. Pitts and Willie Rivers because of their
union activity and in reprisal therefor?
3. Did the Respondent refuse to bargain in good faith
with the Union by unilaterally reducing the hours of work
of certain employees, by unilaterally instituting a wage in-
crease to employees in the unit, by unilaterally instituting
changes in the operation of the sanitation department, by
bargaining directly and individually with certain em-
ployees?
' Unless otherwise specified all dates herein are in 1966.
z Case 15-RC-3148
350-212 0-70-48
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Did the Respondent refuse to generally bargain col-
lectively in good faith with the Union?
5. Was the strike which began on November 5 caused
and/or prolonged by the Respondent's alleged unfair
labor practices?
B. Interference, Coercion, and Restraint
Commencing about the time the Union filed its
representation petition on June 23, 1966, the manage-
ment representatives of the Respondent and some of its
supervisors began a vigorous campaign to oppose the
Union's organizing efforts. The instances below cited,
which are based on the uncontroverted testimony of each
of the Respondent's employees who testified to the
events, constitute interference, coercion, and restraint,
and I so find.3
1. The activities of Supervisor John Grant
(a) At the time of one of the early union organizational
meetings , held in the Daffin Park Clubhouse in the Mill-
ville section of Panama City, employees Billy Pitts, Alvin
Burkett, and Luther Averett, among others, observed
that Supervisor John Grant was driving slowly along the
road through the park in which the clubhouse is located.
They observed Grant making a circle around the club-
house . He was going about 10 miles an hour. It was 3 or
4 o'clock in the afternoon in broad daylight. Although the
road was a public road, nevertheless, it was infrequently
used by passing traffic through that section of town.
Although there was some admission to the effect that
Grant or Grant's relatives lived in the nearby section of
town, the purpose of Grant's visit to the park on the par-
ticular day of the meeting is established by a later event.
Approximately a week or so later, Grant had a conversa-
tion with employee Averett in which he discussed with
Averett the union meetings . Averett told Grant that he
hadn't been to a union meeting at which Grant stated that
he knew that Averett had been to the meeting at the park
clubhouse because he had seen his car there.
I find that Grant's circling of the meeting house in the
park constituted unlawful surveillance and that his con-
versation later with Averett constituted the impression of
surveillance all in violation of Section 8(a)(1) of the Act.
(b) About a week before the election employee Burkett
was standing at the timeclock and reading the sample bal-
lot which the Board representatives had pasted below the
timeclock. Grant came over to him as he was reading the
ballot and asked Burkett what he thought about it and
would Burkett like to talk about it. They discussed a few
things . Burkett finally said that it was a good thing for the
Company. Grant answered that the Union had tried in
Thomasville (where another plant of the Respondent is
located) for about 18 months and it never did get a con-
tract signed there. Grant added that the Union would not
get a contract signed in Panama City because there was
"too important and too big a man behind it."
I find that the foregoing constitutes unlawful inquiry
into Burkett's union sympathies and desires and also con-
stitutes a warning that the Respondent would not sign a
contract with the Union in order to discourage employees
from voting for the Union. These are violations of Section
8(a)(1) of the Act.
(c) About a week before the election, Grant called em-
ployee Charles Holley to his office and engaged him in
conversation with regard to the Union. He asked Holley
which way the latter was going to vote -for the Union or
against . Holley told Grant that he had not made up his
mind.
This questioning of Holley clearly constitutes unlawful
interrogation within the meaning of Section 8(a)(1) of the
Act and I so find.
(d) A few days before the election, Grant was engaged
in a conversation with employee Billy Pitts on the loading
dock. During that conversation, Grant confirmed what
Pitts had heard that Assistant Plant Manager McMullen
had said; namely, that the Company did not have to sign
a contract and probably would not sign a contract
because they did not have to. About the same time Grant
overheard a conversation between employee Jimmy
Kemp and another employee. The two men were talking
about the Union. Grant came over and said that Flowers
did not have to sign a contract and would not sign one.
These statements of Grant clearly constitute threats
that the purposes of unionization would be thwarted by
the Respondent in order to discourage employees from
supporting the Union. Such conduct has been held by the
Board on many occasions to constitute violation of Sec-
tion 8 (a)(1) of the Act.
(e) About a week before it was known that the Board
was to conduct an election, Grant and another super-
visor, Pete Horton, told employee Edward Curti that
Flowers would rather pay the supervisors and let them go
fishing than let the employees go union. They further
stated that Flowers would just close down the plant.
I find the foregoing to be a threat of economic reprisal,
if the Union came into the plant, made for the purpose of
dissuading the employees from supporting the Union.
Such a threat is violative of Section 8(a)(1) of the Act.
(f) About 2 weeks before the election Grant engaged
employee Reuben Lankford in a conversation on the
dock. No one else was present at the time. Grant told
Lankford that if the Union came in the Respondent would
just "take the machinery and move It some place else."
Grant added that this being an open shop the Union did
not have a chance.
I find that this statement by Grant constituted a threat
of economic reprisal to close down the plant if the Union
were to be successful in its campaign.
(g) A couple of weeks before the election Grant spoke
to Billy Pitts at the latter's work station at the
doughmixer. Grant asked Pitts what the latter thought
about the Union and what good the Union would do for
the employees. Pitts explained what he thought would be
the advantages of having a Union. Grant then told Pitts
3 Although some of the testimony in support of these findings was ob-
tained only after prompting by means of leading questions from counsel
for the General Counsel, I conclude that , on the whole , from my observa-
tion of the witnesses , the testimony is reliable , and hesitancy in testifying
was caused by the long period of time which elapsed between the oc-
currences and the date of testifying. The events occurred, almost without
exception, between June 23, 1966, and the date of the election on July 25,
1966, whereas the date of the hearing was late in March 1967. Indeed, the
hesitant and uncertain manner of delivery by the various witnesses con-
vince me that their testimony was truthful and not obtained through pretri-
al instruction and rehearsal.
4 The Respondent conceded at the hearing that all of the alleged super-
visors were management representatives alleged as such in the complaint
and are supervisors within the meaning of Section 2(11) of the Act with
the exception of T. K. Johnson and Haywood Goode.
FLOWERS BAKING COMPANY, INC. 741
that the employees would never vote for the Union and
that the Union would never get in. Grant added that he
had found that 97 percent of the people had signed cards
but that he could not find anyone in the plant who would
admit signing a card: He further stated that he figured that
Pitts would know about this since Pitts was a leader of the
union movement. Pitts denied this saying that Grant
should not accuse him of something he did not know
about.
During the same conversation Grant also stated that
people could be fired and that actually the Company
would not be firing the people. The Respondent would
give people conduct slips and after an employee received
three slips he would automatically be discharged, so that
in reality people would be firing themselves. Grant added
that all he would have to do to discharge Pitts would be to
follow him around and after the latter made three
mistakes and received three conduct slips therefor he
would automatically be discharged and would actually be
discharging himself. When Pitts expressed surprise at
Grant's statement, Grant said the Union would never
work at the Respondent's plant in Panama City. He ex-
plained that the Union would not be any good there
because everything "will be right down the line and they
would just make it harder for the Union to come in
because they are not going to have it."
The foregoing conversation and the statements made
by Grant constitute several violations of the Act. In the
first place, it constitutes interrogation of an employee
about his union desires, feelings, and activities.
Moreover, by informing Pitts of the percentage of em-
ployees that had signed union cards, Grant created, un-
lawfully, the impression of surveillance. Finally, stating
that the Union could not keep employees from being fired
because employees would be followed closely and when
an employee had made three mistakes he would automati-
cally be firing himself; this constituted a further threat to
the employees' livelihood in reprisal for voting the Union
into the plant. This threat was directed personally to Pitts
and also referred to other employees. Also at the same
time this conversation constituted a further impression of
surveillance by accusing Pitts of being one of the union
leaders.
(h) A few days after the foregoing conversation and
several days before the election, Pitts had another con-
versation with Supervisor Grant. This occurred on the
loading dock. Grant told Pitts that Flowers could take
three or four pieces of machinery and move it back to
Thomasville and that the Company would probably be
better off without this operation. Since this discussion oc-
curred in the context of talk about the Union and in which
Grant said that the Company did not have to sign a con-
tract, I find that this constituted a threat to move the
machinery and close down the plant in reprisal for
unionization and to discourage Pitts' and other em-
ployees' union activity. This is clearly violative of Section
8(a)(1) of the Act.
2. The activities of Supervisor Bill Wicker
(a) About 2 weeks before the election, Supervisor Bill
Wicker had a conversation with employee Luther
Averett. Wicker told Averett that it would do no good if
the employees went union. He said that the Company had
a union at the Thomasville plant and had never signed a
contract with it and they were not going to sign one at
Panama City.
I have already found that a similar statement on the
part of Grant was a threat of futility of unionization of the
plant and as such constituted a violation of Section 8(a)(1)
of the Act. I so find in this instance.
(b) During the latter part of June 1966, Wicker engaged
employee James Warren in a conversation during which
Wicker asked Warren what the latter thought about the
Union. Wicker then told Warren that the Union would
not do any good. About July 17 or 18 Wicker had a con-
versation with employee Billy Pitts in which Wicker
asked Pitts to explain the Union to him, what Pitts
thought the Union could do for the people, and if Pitts
thought it would help the employees.
I find and conclude that the interrogation of the em-
ployees above set forth constituted unlawful interrogation
regarding their union feelings, desires, and sympathies in
violation of Section 8(a)(1) of the Act.
(c) Later in the same day that Wicker questioned Pitts,
he overheard a conversation between Pitts and employee
Averett. Wicker came up to them and said, "You fellows
have got no business talking about the Union on the job.
If you do not stop it, you will be fired."
Had Wicker merely stated that the employees would be
discharged for talking on the job while they were sup-
posed to be at work, I would have found nothing unlawful
with regard thereto. However his mention of the fact that
they were conversing about the Union on the job made
the threat an unlawful threat of discharge for engaging in
union activity.
3. The activities of Plant Superintendent Mayo Hilburn
(a) Approximately 3 or 4 weeks before the election,
probably during the latter part of June 1966, employee
Luther Averett went to Plant Superintendent Hilburn's
office to obtain some equipment. There Hilburn engaged
Averett in a conversation and stated that it would do no
good for the Union to come into the plant because all of
the equipment belonged to Flowers and he could do what
he wanted with it. He further stated that if the Union
came in the Respondent could carry the equipment out
into the Gulf of Mexico and make fishbeds out of it.
I find this statement of Hilburn's to be a threat of
reprisal if the Union came into the plant and also a threat
that unionization of the plant would be fruitless. This is
certainly an indirect threat that if the Union came in that
the plant would close down and the employees would lose
their jobs. This type of threat is clearly violative of the
Act and I so find.
(b) Sometime before the election, probably during the
middle of June, Hilburn spoke to employee Robert Dyer
shortly after the latter had been to a union meeting. Hil-
burn said to Dyer "I hear you have been in the Union
meeting."
This statement by Hilburn created the impression of
surveillance and as such is violative.
(c) Before the election, Hilburn engaged employee
Bobby Joe Gibbs in a conversation. Hilburn told Gibbs
what he thought about the Union and then said that be-
fore the Union would come into the plant he would close
the plant down. This incident occurred in Hilburn's office
in the bakery.
The foregoing constitutes a clear threat of economic
reprisal for union activity and as such constitutes a viola-
tion of Section 8(a)(1) of the Act.
(d) Approximately a week before the election Hilburn
called employee Edward Louis Curti into his office. Hil-
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
burn displayed to Curti a pamphlet concerning the airline
strike which was then in progress. He pointed out to Curti
the disadvantages and advantages of the Union. He
stated that it would be better if the Union did not come in.
Hilburn then said that if the employees went union the
Respondent would take the equipment in the plant back
to Thomasville, Georgia. During the same conversation,
Hilburn told Curti that at Thomasville the Union had
been trying to get a contract for about 12 to 15 months,
but Mr. Flowers refused to sign a contract and he would
do the same thing at Panama City.
I find and conclude that the statement by Hilburn to
Curti to the effect that the Respondent would take some
of the equipment back to Thomasville was a threat to
close the plant and , as such , a threat of economic reprisal
for union activity and support. I further find and conclude
that Hilburn 's statement to Curti to the effect that
Flowers would not sign a contract in Panama City was a
threat that unionization of the Respondent 's plant would
be futile. Accordingly, I find that both of these statements
are violative of Section 8(a)(1) of the Act.
(e) About a week before the election, Hilburn called
employee Eugene Warren to his office. No one else was
present. Hilburn told Warren that the employees could
not have a union until the election was over and that if the
Union came in the employees would not get a raise until
a union contract was signed . However , Hilburn then told
Warren that if the Union did not come in the employees
would get their backpay from the time the raise was sup-
posed to have been effectuated. I find that the foregoing
statement by Hilburn constituted a promise of benefit to
induce the employees to withhold and withdraw their sup-
port of the Union. As such it constitutes a violation of
Section 8 (a)(1) of the Act.
(I) During that conversation Hilburn also told Warren
that if the Respondent wanted it could ship all of the
equipment out and all of the employees would be out of a
job. This, of course, is a threat of economic reprisal and
therefore violative.
(g) Before the election Assistant Plant Manager Amos
McMullen told the employees that there was going to be
a 12-cent raise an hour but that if the Union came in it
would be out of the Respondent's hands and that there-
fore he didn't know whether they would receive the raise
or not. However, about 2 or 3 weeks after the election
Hilburn spoke to employee Willie Rivers. Hilburn told
Rivers that the men had been doing a good;ob and that he
appreciated it, but the Union had knocked Rivers out of
a 12-cent raise that he could not give the employees at
that time. I find that this constitutes a coercive statement
to induce the employees to withdraw their support of the
Union.
4. The activities of Assistant Plant Manager Amos
McMullen
Unlike the testimony regarding the activities of Grant,
Wicker, and Hilburn, the employees' testimony regarding
alleged interference, coercion, and restraint by McMullen
was either controverted by McMullen or he sought to ex-
plain his statement away, contending that the employees
had misunderstood what were otherwise lawful preelec-
tion talks by McMullen. In his explanation, McMullen
testified that he spoke to some 42 or 43 of the employees
individually in his office and that the talk he gave was first
outlined and the outline discussed with R. E. Fleetwood,
an official of the Respondent, and also with the Respond-
ent's counsel, and that it was only after the approval by
these individuals that McMullen interviewed the em-
ployees. However, McMullen stated that this was merely
an outline of what he was going to say and the speech that
he gave each employee was not followed word for word
inasmuch as it was never fully written out. Without
setting forth the details of the manner in which McMullen
claimed the employees misinterpreted what he said, I
conclude that although McMullen might have presented
to his superior and to company counsel what otherwise
would constitute the outline of lawful statements,
nevertheless, McMullen changed these statements when
he interviewed the employees to the extent that what was
otherwise lawful became unlawful. Moreover, upon my
observation of each of the witnesses who testified as to
McMullen's unlawful activity, I find and conclude that in-
asmuch as most of these employees were the same em-
ployees whom I credit otherwise, and inasmuch as Mc-
Mullen, himself, at times was somewhat confused in his
own testimony, the testimony of the employees is more
readily acceptable than the testimony of McMullen and
I therefore credit the employees' versions of what oc-
curred during the interviews. Accordingly, I find the fol-
lowing incidents occurred as related by the various em-
ployees.
(a) Approximately 3 or 4 weeks before the election em-
ployee Luther Averett was called to McMullen's office
,for an interview. McMullen stated that it would not do
any good if the Union came in and that, if the Union did
get in, the Respondent could move all the equipment out
except one machine and remove all the employees but 12
people. It could then buy its sweet goods from another
plant and bring it in there and keep everything going.
Other employees were present during this interview.
Among them was employee Robert Dyer. Dyer con-
firmed Averett's testimony as to this interview and stated
that McMullen threatened that, if the Union came into
the plant another plant could absorb the sweet roll busi-
ness, and that if the Respondent wanted it could shut
down the plant.
As in other instances of this type, I find and conclude
that the foregoing constitutes a threat to close down the
plant in reprisal for support of the Union.
(b) Approximately a week before the election, McMul-
len called employee Charles Holley to his office. McMul-
len discussed the Union with Holley and then asked him
whether he would rather vote for the Respondent or for
Billy Pitts. During the same conversation McMullen also
said that the Respondent could move the honey bun
machines back to Tampa.
In the context in which these two statements by Mc-
Mullen to Holley were made, I find that they were viola-
tive and coercive, constituting unlawful interrogation and
threat of economic reprisal.
(c) On October 14, at a bargaining session between the
representatives of the Union and the Respondent, the
Respondent's representatives offered a 12-cent across-
the-board wage increase to all of the employees. For
reasons explained in detail hereinafter, the Union refused
this offer. Shortly thereafter, McMullen separately
questioned employees J. M. Warren and Jimmy Kemp as
to the reasons why the Union turned down the offer.
Aside from the possible finding that this constituted
separate bargaining with employees at a time when the
Respondent was negotiating with the Union , this inter-
FLOWERS BAKING COMPANY, INC. 743
rogation of Kemp and Warren constituted unlawful inter-
rogation as to union activity. Accordingly, I find it to be
violative.
(d) During the middle of July, approximately a week or
so before the election, in separate conversations, McMul-
len asked employees Willie Rivers and J. M. Warren
whether they would rather work for Billy Pitts or for the
Company.
I find and conclude that this constituted a threat of
reprisal against the employees if they supported the
Union. It should be pointed out that Pitts, as set forth
above, was a leading union adherent and a member of the
union negotiating committee who also acted at the polls
during the election on behalf of the Union.
(e) During the same conversation in which McMullen
told Willie Rivers that the latter could either work with
Billy Pitts or the Company, McMullen also told Rivers
that if the Union went on strike and the employees did not
strike with the Union, they could transfer to the
Thomasville plant and work for the Respondent there.
This constituted an unlawful promise of benefit.
(f) During that same conversation McMullen men-
tioned that the employees, if they were all for the Com-
pany, would have their jobs for a long time and if they
retained their positions during that period they would
become shareholders in the Company. Later in the same
conversation McMullen said that if the Union came in he
did not know whether Mr. Flowers would let the share-
holding plan go into effect.
This promise constituted a promise of benefit if Rivers
should abandon his support of the Union and a threat of
the withholding of a benefit should the employees select
the Union as 'their bargaining representative. Such
promises and threats of reprisal constitute a violation of
Section 8(a)(1) of the Act.
(g) A like violation is found in another part of the same
conversation when McMullen told Rivers that later on in
the year the employees would be given a 12-cent raise but
that if the Union took it over it would be out of their
hands and they did not know whether the employees
would receive the raise. This, in effect, is a threat to
withhold a promised benefit in reprisal for the employees
voting for the Union. Such a threat is, of course, a viola-
tion of Section 8(a)(1) of the Act.
C. The Layoffs
1. Billy Pitts
As recounted above, Pitts, who had been employed by
the Respondent for about 15 or 16 years, was the
foremost union adherent in the Respondent's plant. Pitts
was also an observer at the election for the Union and
was instrumental in getting most of the union designation
cards signed. In fact , he personally solicited most of the
employees who signed cards. Moreover , he had induced
employees to sign cards in the Respondent 's bakery. As
an example , the card of Willie Rivers had been signed on
the Respondent ' s premises . As heretofore found, em-
ployees Holley, Rivers, and Warren had all been asked
during the organizational drive just prior to the election
whether each would rather work for the Respondent or
for Billy Pitts . Thus I conclude and find that the Re-
spondent not only knew Billy Pitts was active on behalf
of the Union but was the leading union adherent.
At the time of the events herein , Pitts was employed by
the Respondent as a doughmixer . His work was the initial
introduction of the ingredients for the baking of dough.
Therefore, Pitts was the person who was responsible for
the initial step in the manufacturing of the Respondent's
product. All other steps in the baking of Respondent's
bakery products followed and depended upon the work
performed by Pitts.
The first event which occurred in relation to Pitts' even-
tual allegedly disciplinary layoff occurred on August 8.
On that date, Pitts went to lunch between 1 and 2 p.m. It
should be noted that there is no prescribed time for em-
ployees to go to lunch. The lunchtime is determined by
the production schedule which can vary from day to day.
Employees are normally allowed 30 minutes for lunch. In
leaving for lunch, or in returning therefrom, the em-
ployees are obliged to punch out and, in turn, to punch
back in. On that particular day, Pitts stayed out to lunch
about 20 to 25 minutes. When he left he punched out,
went to a nearby carryout shop, purchased a sandwich,
returned to the plant, ate his lunch, and within 20 or 25
minutes returned to his mixer to prepare the next batch of
dough. The process in which he engaged in at that time
was the drawing of the brew in the holding tank, the first
operation in the mixing of dough.
After he completed this initial operation, Pitts went
outside to the dock inasmuch as he did not have anything
else to do to the mixer until some time thereafter. At the
dock he talked to his foreman, Bill Wicker, and other em-
ployees who were standing about. While he was thus en-
gaged, Pitts noticed another employee punch his timecard
and it then occurred to Pitts that he had not punched in
after returning from lunch. He then stated to Wicker that
although he had been back on the job for sometime he had
forgotten to clock in. Wicker made no reply and did not
protest or reprimand this oversight on the part of Pitts.
Pitts immediately thereafter punched in his timecard.
On the day following, August 9, Pitts was instructed to
talk to Foreman John Grant. When he arrived in Grant's
office, the latter told Pitts that he was going to have to lay
Pitts off for 3 days. When Pitts asked the reason for this
action, Grant told him "for being late at lunch, 10 minutes
late." Pitts explained to Grant that he had been on the job
but had merely forgotten to punch in. He reminded Grant
that he had been talking with Wicker during the period
that he had forgotten to punch his card. Grant replied that
it was a company rule. When Pitts stated to Grant that he
had been working for the Company for 15 years and had
never heard of such a rule, Grant replied that there had
been a meeting in the company office and Pitts had been
discussed and it was decided to lay him off for 3 days.
Pitts thereupon stated that he was being laid off because
of his union activity. Grant then handed Pitts a conduct
slip and told Pitts to sign the same. Pitts, at first, refused
to sign this conduct slip but was told by Grant that if he
did not sign he would be discharged. Thereupon Pitts
signed the slip and was laid off for the 3 following days,
August 9, 10, and 11.
It should be noted in connection with the foregoing in-
cident, and the giving and signing of a conduct slip, that at
least during the time prior to the advent of Flowers Bak-
ing Company, Ideal had never given conduct slips. Ac-
cording to uncontroverted testimony of Assistant Plant
Manager McMullen, soon after Flowers took over Ideal
in the spring of 1966, approximately in March of that
year, there had been meetings of management with the
employees to inform them of the changeover and new
methods to be introduced by Flowers Baking Company.
Among the matters that were mentioned at those early
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings, according to McMullen, was the use of conduct
slips.
Pitts testified that the first he heard of conduct slips
was at the time about the middle of July that he was told
by Grant that employees could be fired after making three
mistakes and receiving three conduct slips. Whether the
employees were told by Grant for the first time in July or
whether they were informed of the system of conduct
slips in March, however, makes little difference. In any
event, starting around July 1966 a number of employees
received slips for various alleged offenses.
With regard to other employees who returned late from
,lunch or failed to clock in properly, employee Alvin Bur-
kett testified, without contradiction, and in a credible
fashion, that although there was an occasion when he
came back late from lunch he never received any written
statement therefor nor was he laid off. He admitted that
all he was given was an oral reprimand.
Burkett was admittedly a union leader. In fact, it was
Burkett who went to Jacksonville to make contact with
the union representative in the spring of 1966 which ac-
tion brought about the union organization of the Respond-
ent's plant. Moreover, Burkett also solicited the signing
of the union cards and, moreover, Burkett was called in
along with Billy Pitts by Mayo Hilburn upon several oc-
casions to discuss possible layoffs and other Respondent
action. Thus, it is apparent, that the Respondent must
have recognized Burkett as being somewhat of a union
leader although possibly not with the status of Billy Pitts.
Employee Bobby Joe Gibbs testified, without con-
tradiction, that he was given a reprimand slip for not
wearing a proper uniform. However, he was not laid off.
Employee Luther Averett credibly testified that before
the election he received three warning slips, one for being
30 minutes late for reporting to work one day, one for for-
getting to clock out on his lunch break, and another for
forgetting to punch back in. Bill Wicker was his foreman
at the time. However, despite all these offenses, Averett
was never disciplined and was not laid off.
Other employees who received reprimand slips were
Reuben Lankford, who did not remember why the slip
was given to him; James M. Warren, who received a
reprimand slip for being out of uniform; employee Robert
Dyer, who received a reprimand slip just after the elec-
tion for being out of uniform, but was not given a slip or
any reprimand for being 15 minutes over his lunch hour
on one occasion although this was called to his super-
visor's attention; Shelton Ray Hall, for being 7 minutes
late, received a reprimand slip but was not laid off; and
Jimmy Kemp, received two reprimand slips for being out
of uniform but was not laid off. Thus, there were a
number of employees, among them another union leader,
who received reprimand slips or committed offenses for
which they were not punished in any fashion and cer-
tainly were not laid off.
On the other hand, McMullen testified that although
these other employees were not laid off, there were three
employees who were laid off as a result of being late.
They were Pitts, Eddie Curti, and Joe Rushing. In each
case, according to McMullen, there was some circum-
stance in addition to merely being late that entered into
the picture. Pitts was laid off because, as a mixer, he had
a schedule to maintain and if the schedule was not main-
tained the entire plant all the way down the line which fol-
lowed Pitts would have been delayed in their operation
and a resultant loss would take place. However, McMul-
len did admit that on the occasion that Pitts was laid off
the lateness of punching in on return from lunch had not
affected the product in any way. Moreover, it will be re-
called that Pitts was not given as the reason for his layoff
that there was any danger to the product, or that he had
failed to follow his foreman's instructions, as alleged by
McMullen, but merely that he had punched in late. In ad-
dition, it should be noted, that at the time that Pitts
punched in late, his foreman, Bill Wicker, was present
and knew that Pitts had returned on time but had merely
overlooked punching his timecard upon his return.
It should be additionally noted that Luther Averett,
who was not laid off for being late, had a job which could
have been considered just as critical as the position held
by Pitts. Averett operated the icing mixer which was a job
at the beginning of a line and all the operations down the
line which followed the job depended upon the work
which Averett performed. Nevertheless, despite this
critical job and despite the fact that Averett was 30
minutes late reporting to work, he was not laid off.
Although the matter is not without some doubt, I con-
clude that on the record as a whole, the General Counsel
has shown by a preponderance of the credible evidence
that Pitts was laid off for a discriminatory reason; the
reasons given by the Respondent at the time of his layoff
were mere pretext; and the real motivation for Respond-
ent's discharge of Pitts was the fact that the Respondent
regarded Pitts as the union leader in the plant. Certainly,
when a union adherent is discharged it is appropriate to
consider when testing the discharge, whether other em-
ployees have been similarly treated.5
Thus I conclude that by reason of the fact that the
Respondent knew Pitts to be the most active union ad-
herent in the shop and in fact had made statements to this
effect to other employees, and in view of the disparate
treatment given Pitts in comparison with other employees
similarly situated who had committed similar offenses, I
conclude that Pitts' layoff was discriminatory and in
violation of Section 8(a)(3) and (1) of the Act.
2. Willie Rivers
Rivers worked for the Respondent from June 1965
until he was laid off on October 10, 1966. Although
Rivers' regular work was in the sanitation department,
upon occasion he substituted for employees in produc-
tion. Thus, at times he worked on the pan-o-mat which
was a baking step and he also helped on the wrapping
crew. According to Rivers, this happened quite fre-
quently and at times almost every day. He would work
in production for perhaps 2 or sometimes as many as 4
hours on these other jobs replacing employees who were
absent or late.
In the sanitation department, Rivers' job was normal
janitorial work consisting of cleaning up, sweeping, and
generally keeping the premises clean. Although Rivers'
length of service with the Respondent, first with Ideal,
and then with Flowers, extended for approximately 1 year
and 4 months, he was, nevertheless, the junior man in the
sanitation department, having the least seniority.
About a month before the election, Rivers signed a
union card at the plant at the request of Billy Pitts. His
' See, e .g., Southwire Company, 159 NLRB 394. See also Shattuck
Denn Mining Corporation (Iron King Branch ) v. N.L.R.B., 362 F.2d 466
(C. A. 9).
FLOWERS BAKING COMPANY, INC. 745
acquaintance or friendship with Pitts went beyond the
mere signing of a card at the plant. Whenever convenient,
Pitts gave Rivers rides in his automobile to and from the
Respondent's bakery inasmuch as Rivers resided near
Pitts' home. This riding to and from work together was
open and common knowledge among the employees in
the plant.
Rivers' work was always satisfactory as far as he knew
and he was never reprimanded for any of his work except
that approximately 2 weeks before his layoff, Rivers was
called into the office of Mayo Hilburn and told that if he
did not want to cooperate Hilburn could find several
ways to lay him off. Hilburn commented that Goode, the
leadman in the sanitation department, had to work day
and night. However, before that time and just after the
election, Hilburn had told Rivers that the latter had a job
there as long as his work was satisfactory. Upon being
laid off by T. K. Johnson, whom Rivers described as the
foreman of the sanitation department, Rivers was told by
Johnson that he had done a good job and as soon as the
Respondent saw fit they would get him back because
there was so much work for the sanitation department to
handle. At the time Rivers was laid off, several em-
ployees, female, were working as part-time employees in
the production department and Goode, the leadman of
the sanitation department, was working far in excess of a
40-hour week. Also, approximately 1 month after the
layoff of Rivers, the Respondent hired three female em-
ployees for the sanitation department who each worked
2 days a week. At that time, Rivers was not called back.
From the foregoing, it would seem that there was a
very great possibility that by reason of the fact that there
were production employees hired at a time when Rivers
was laid off and in view of the fact that Rivers had had
production experience, that the Respondent was, indeed,
discriminating against Rivers by reason of his friendship
with Pitts. This would seem to be brought out by the fact
that, as mentioned heretofore, members of the sanitation
department, along with Rivers, were told that they could
choose to work for either the Company or Billy Pitts.
On the other hand, although Rivers had signed a union
card and had ridden back and forth from work upon many
occasions with Pitts, he was never a very active union ad-
herent. All he had done in preference for the Union was
sign a union card. Moreover, when the temporary em-
ployees were hired to work in the sanitation department
approximately 1 month after Rivers was laid off, they
each worked during the same 2 days. Therefore, it would
seem that Rivers' work if it were performed at all by these
three employees, was all performed within 2 days by
'three individuals. Pitts could not very well have per-
formed all of that work in the time scheduled by the
Respondent.
Moreover, approximately a week before Rivers'
'discharge, Billy Pitts, together with employee Alvin E.
Burkett,' was ordered to report to Hilburn's office. Hil-
burn told them that he wanted to lay off certain em-
ployees and get their ideas on that subject and also on
how to improve the hours and working conditions. Dur-
ing this conversation, Hilburn discussed the planned
layoff of three employees in the sanitation department,
one of whom was Rivers. Pitts and Burkett protested the
layoff of two employees, both of whom had been ill and
whose absences from the department were caused
thereby and not by neglect of work or inefficiency. Pitts
asked Hilburn if he could speak to these employees and
straighten the matter out with them. Neither of these em-
ployees were discharged. Both of them possessed greater
seniority than Rivers. Pitts also asked Hilburn not to lay
Rivers off. According to Pitts, Hilburn said there was
nothing wrong with Rivers' work but that the Company
planned to cut down the work force in sanitation. Pitts
then asked if Rivers could be assigned to some other job
in the plant until he was needed in sanitation again, but
Hilburn declined.6
Thus it would seem, as claimed by the Respondent,
that Rivers was laid off for purely economic reasons.
There was testimony, hereinafter set forth in more
detail, that Respondent's production during approximate-
ly the month of August hit a very low point and it was
necessary to curtail the Respondent's employees' work-
time and to therefore lay off some of the Respondent's
employees. That this was contemplated is exemplified by
the discussion of Hilburn with Pitts and Burkett.
Moreover, it is apparent that if there were going to be any
layoff in the sanitation department at all that Rivers
would be the logical employee to be laid off, inasmuch as
he was the junior man in the department.
Thus, there is testimony and sufficient evidence to at
least counterbalance the evidence produced by the
General Counsel to the effect that Rivers could have
been laid off for discriminatory reasons. Although, there
is reason for suspicion as to the Respondent's actions re-
garding the layoff of Rivers, nevertheless, in balance, I
conclude that the General Counsel has not proved by a
preponderance of the credible evidence, that the layoff of
Rivers was discriminatory. I shall therefore recommend
dismissal of the paragraph of the complaint which alleges
such discriminatory layoff. '
D. The Respondent's Unilateral Actions Following the
Union's Certification
1. The Union's majority status and the appropriate unit
The Respondent does not contest the bargaining rights
of the Union. It is admitted, and I find, that the Union is
the exclusive and certified representative' of the em-
ployees of the Respondent in the following unit:
All production and maintenance employees, sanitation
and shipping employees employed at the Respondent's
Panama City operation, excluding office clerical em-
ployees, temporary construction employees, guards and
supervisors as defined in the Act.
2. The reduction in hours of certain employees
Almost immediately after the election , at least before
August 4, 1966 , Union Representative Mashburn called
McMullen on the phone at Panama City in an attempt to
set up a bargaining session for an early date. This fol-
lowed by a very short time the certification of the Union.
McMullen evidently referred Mashburn ' s call to the
Respondent 's counsel in Jacksonville and Respondent's
counsel, Bowden, wrote a letter dated August 4 to Mash-
burn at Mashburn 's last given address which was a motel
in Panama City. In that letter Bowden expressed the
desire to meet with Mashburn, informed the latter who
the Respondent 's negotiating team would be composed
6 From the uncontroverted testimony of Pitts and Burkett. 9 The Union was certified on August 2, 1966.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of, and asked the Union to prepare its proposal to be sub-
mitted prior to the first meeting.
On the same day, August 4, Mashburn wrote a letter to
McMullen directed to the Respondent 's plant in Panama
City in which he warned McMullen that he had heard that
the workers ' hours in the Panama City plant were being
deliberately cut because of union affiliation . This letter
was evidently also forwarded to Bowden in Jacksonville
who on August 13, 1966 , wrote Mashburn to the effect
that the hours being worked at the Panama City plant
reflect the hours which the employees were needed and
that there was no other influence in the matter . Bowden
promised they would be happy to make hour adjustments
when production plans of the plant dictated . In that letter
of August 13, addressed to Mashburn at the motel in
Panama City , Bowden also acknowledged receipt of the
Union 's written proposals for negotiation . This proposal
took the form of a proposed contract complete in almost
every particular.
Thereafter , on August 15, 1966 , the Respondent uni-
laterally reduced the workweek of employees Hall,
Kemp , Cooper , and Mascronati from 5 days a week to 3
days . 8 Three of these four employees resigned on the day
that their hours were reduced because they could not
manage at the reduced earnings . The reduction in hours
lasted approximately a week or 2 weeks before the one
remaining employee was reinstated to a full week's work.
There is no contention that the necessity for the reduc-
tion of hours was not dictated by an economic situation.
Moreover , the Respondent contends that the reason the
reduction of hours was put into effect without contacting
the Union first was because Respondent was unable to
contact Mashburn , the union representative . McMullen
testified at some length with regard to the efforts made by
the Respondent to make contact with Mashburn, the
union representative , whose address was given to the
Respondent as the Ramada Inn, a motel in Panama City.
Thus, the issue with regard to whether the Respond-
ent's unilateral reduction in the hours of these em-
ployees was deliberate flouting of the Union's status as
bargaining representative can only be resolved from the
testimony presented . According to the best version of this
testimony given by McMullen , when the need for the
reduction in hours became apparent in the early part of
August he personally made no attempt to call Mashburn.
Instead , he called Bowden in Jacksonville who acted as
the Respondent's spokesman during all the negotiations
and asked him to make these contacts . However , when he
spoke to Bowden , Bowden told him, according to Mc-
Mullen, that his attempts to reach Mashburn were in vain
and that he, Bowden , had actually called Mashburn at the
Ramada Inn after one of these letters had been written
and was told by the people at the Ramada Inn that the let-
ters addressed to Mashburn by Bowden had not been
called for.
McMullen testified as follows after being asked why he
had not contacted the union representative:
Because there was no union representative to
discuss it with . I had called Mr. Bowden twice
because I was anxious to schedule my vacation. I left
on vacation the latter part of August and I asked Mr.
Bowden to call him twice to see if the session had
8 The complaint does not allege that this reduction in work hours was
discriminatory, merely that the reduction in work hours was a unilateral
act which should have been negotiated or been discussed with the Union
prior to its effectuation.
been set up. He said no, that he had written a letter
to Mr. Mashburn and then had called Mr. Mashburn
at Ramada Inn and they told him that his letter to Mr.
Mashburn was still there and was undelivered. So
Mr. Bowden advised me to go ahead and take the va-
cation because he didn't have any idea that he would
get in touch with Mr. Mashburn.
When asked if he'd ever attempted to contact Mash-
burn himself, McMullen admitted that he had not. On
cross-examination, McMullen actually admitted that
Mashburn had called in the early part of August to set up
a negotiation meeting as noted above.
However, I note from the correspondence between
Bowden and Mashburn that at no time did Bowden men-
tion the fact that the Respondent desired to discuss with
Mashburn the problem of the reduction in hours.
Moreover, if the need were really pressing it would seem
that McMullen could have contacted Mashburn in this
respect. Therefore, from all of the foregoing, it is apparent
that no great effort was made, if indeed any effort at all
were made, to contact Mashburn with regard to the
reduction in hours of the four employees as noted above.
Moreover, I have heretofore referred to the discussion
by Hilburn with employees Pitts and Burkett with regard
to the contemplated layoff of certain other employees.
Certainly, it would seem that if the Respondent con-
sidered Burkett and Pitts as spokesmen for the Union,
then had the Respondent not been able to contact Mash-
burn as contended, McMullen or Hilburn could certainly
have at least made an attempt, in this instance, to discuss
the matter with Pitts and Burkett. This they did not do.
From all of the foregoing, therefore, I find and con-
clude that the Respondent did, indeed, make this uni-
lateral change in the working hours of the four employees
involved without any real effort on their part to discuss
the same with the Union before doing so. The Board and
the courts have amply set forth that an employer violates
his duty to bargain when there is a bargaining representa-
tive in the picture and the employer unilaterally institutes
changes in existing terms and conditions of employment.9
Consequently, Respondent violated Section 8(a)(5) of
the Act when it failed to notify and bargain with the
Union's representatives prior to the reduction of the
working hours of the four employees as set forth above.
3. The direct bargaining with individual employees
It has heretofore been detailed how, after the certifica-
tion of the Union, Mayo Hilburn, Respondent's plant su-
perintendent, discussed the matter of the layoff of the em-
ployees in the sanitation department, including Willie
Rivers, with employees Pitts and Burkett. It is unneces-
sary at this time to set forth again, in detail, that conversa-
tion.
I have also heretofore particularized on the questioning
of several employees by Hilburn as to why the Union did
not accept the 12-cent across-the-board increase offered
by the Respondent at the negotiation meeting of October
14.
Under all the circumstances I consider that the
Respondent thereby ignored the bargaining representa-
tive and dealt directly with the employees in violation of
8 See, e.g ., N.L.R.B. v. Benne Katz, etc., dibla Williamsburg Steel
Products Company, 369 U.S. 736.
FLOWERS BAKING COMPANY, INC 747
the Union's representative status and of Section 8(a)(5)
and (1) of the Act.
4. The unilateral changes in working conditions in the
sanitation department
Hereinabove I have related how on or about October 10
the Respondent laid off Willie Rivers and thereafter hired
some part-time female employees in the operation of the
sanitation department. It would unduly burden this deci-
sion to go into the details of that situation once again.
Needless to say, however, the Respondent did make con-
tact with employees Pitts and Burkett before making
these changes. However, the Respondent in -no sense
contacted the Union, or any union representative, to
discuss the impending changes which the Respondent had
in mind.
Although I have heretofore found that the layoff of Wil-
lie Rivers was economic and not discriminatory,
nevertheless, I find that the Respondent was under a duty
to discuss such changes in the operations of one of its de-
partments with the Respondent's employees' bargaining
representative. Having neglected to do so, the Respond-
ent thereby violated Section 8(a)(5) and (1) of the Act.
I so find. It goes without saying that the conduct of the
Respondent in this instance and the conduct with regard
to the reduction in hours of other employees, in dealing
directly with employees and bypassing the Union, un-
dermines the Union's bargaining status and tends to lead
employees to the conclusion that they do not need a bar-
gaining representative. This is the vice of which I find the
Respondent guilty.
5. The unilateral 12-cent increase
As referred to above, before the first bargaining ses-
sion, the Union submitted to the Respondent's counsel its
proposal in the form of a complete collective-bargaining
agreement which included proposed wage scales for the
various classifications of employees. At the first bargain-
ing meeting, which took place on September 20, the
Respondent also submitted its proposal which was a
complete bargaining agreement but which instead of
setting forth proposed job classifications and wage rates
merely noted, under that article, "to be negotiated." There
is little in the record to show what occurred at the meeting
of September 20 and a second meeting held on October
4. However, some progress was made. Presumably the
parties went over, their respective proposals and some
agreement was reached on relatively minor matters.
A third meeting was held on October 14. Present for
the Respondent was Bowden, company counsel, McMul-
len, Respondent's assistant plant manager, and others.
McMullen arid-Bowden, as a matter of fact, attended all
of the bargaining sessions on behalf of the Respondent.
The meeting of October 14 was attended on behalf of the
Union by Pitts, Grant, the union representative, and
others. Pitts and Grant were also present at all of the
negotiating sessions. Evidently, until this meeting, the
wage proposal of the Union had not been discussed.
Toward the end of the meeting, just before it was ad-
journed, Bovfrden,l on behalf of the Respondent, stated
that it was the Respondent's desire to institute an overall
12-cent wage increase for all the employees in all of
Respondent's plants.
Hollis Grant, speaking for the Union, stated in reply to
Bowden's proposal that the Union's position was that
wages were part of the Union's proposal and that, as
such, wages should be negotiated at the bargaining table.
Bowden, thereupon, declared that the wage increase
would not be instituted. According to McMullen, how-
ever, Bowden also explained to the union representatives
at the meeting that this was part of the Company's annual
policy and that a 12-cent across-the-board wage increase
had been implemented in all the other plants of the Com-
pany and that the Company would like to put it into effect
in Panama City immediately. According to McMullen,
also, Bowden explained that this did not preclude any
further negotiations for wage rates in the contract.
In any event, within a day or so after the October 14
meeting, there appeared on a bulletin board of the Com-
pany the following notice:
To all Panama City employees.
It is the policy of the Company to make periodic sur-
veys in regard to the wages paid to our employees.
As a result of the most recent survey it was deter-
mined that the wage rates of our employees should
be increased by 12-cents per hour across-the-board.
This 12-cents an hour increase has been put into ef-
fect for all company employees except those
represented by the Union at Panama City, Florida.
On October 14, 1966 we met with the Union com-
mittee representing our Panama City employees and
offered to put the 12-cent per hour increase into ef-
fect immediately at Panama City. The Union com-
mittee refused to agree to put in the 12-cent per hour
increase for our employees here.
We are sorry that you employees will not enjoy the
sizeable increase in your hourly rate. We will con-
tinue to urge the Union to accept this increase so that
you may receive it at the earliest possible moment, as
it is our desire to treat all of our employees the same.
Heretofore I have found that McMullen went directly
to employees to find out why the Union would not accept
the 12-cent increase.
Thereafter, on October 25, the next bargaining meeting
took place. At that meeting, a Federal mediator was
present, called at the request of the Respondent. At the
outset of that meeting Bowden again mentioned the 12-
cent across-the-board increase. Hollis Grant, the union
agent, said that the Union was thinking about it. That was
all that was mentioned at that meeting regarding any wage
increase or any discussion of wages generally. However,
at that meeting were discussed such issues as the work
break, maternity leave clause, and the entire proposal
presented by the Company. Also, the Union's representa-
tives discussed the Union's proposal for the mediator's
benefit. An issue arose with regard to a management
rights clause and the inclusion of work rules which were
part of the Respondent's proposals. Another item
discussed was a possible arbitration clause. The Union
made a counterproposal with regard to the work break.
However, no agreement was reached on, this particular is-
sue.
The Union thereafter changed its position on the lunch
period to accept such period to be charged to employees'
time rather than Company's time. The Union also agreed
to change its request for the breaks or rest periods to be
10 minutes rather than the proposed 15 minutes. There
was some agreement on the jury clause in the Company's
proposal and the Company also agreed to the maternity
leave clause before the meeting was over. Moreover the
parties agreed on the preamble and some phases of the
sanitation clause. Further agreement was reached on the
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
military leave clause. Thus, some items in the proposals
and counterproposals were agreed upon at that meeting.
When the meeting was over Hollis Grant made a sug-
gestion that the parties meet again on November 3 or 4.
Bowden could not commit himself to a specific date at
that time and the mediator stated that he would contact
Bowden and Grant on this matter before the next meet-
ing.
The mediator later called Hollis Grant and asked if the
Union could meet on November 3. Grant answered in
the affirmative. The mediator then said that he would
make contact with Bowden on this date . Later that day,
the mediator again called and informed Grant that Bow-
den had stated that something had come up and that he
would be unable to attend a meeting on either November
3 or 4. Thereafter, Grant called employee Pitts in Panama
City and asked the latter to set up a meeting with the em-
ployees for November 3. Pitts did this and Grant came to
Panama City and a meeting was held at the Carpenters
hall with the employees in the unit. Grant acted as
spokesman during the rather lengthy meeting and
discussed were all of the items that had preceded the
meeting , such as unilateral changes which had been made
by the Respondent, the reduction in work hours, and
other items of importance to the employees. Also,
probably discussed at the meeting were the results of the
preceding negotiating meetings held with the Respondent.
Also discussed was the layoff of Willie Rivers,
hereinabove set forth at length . The employees felt that
Rivers had been laid off for discriminatory reasons. As a
result, a motion was made for a strike vote, the vote was
taken and it was unanimously agreed that a strike was to
be instituted.
The strike began shortly after midnight on the morning
of November 5. McMullen admitted in his testimony that
immediately upon his discovering the employees were on
strike, he decided to implement the 12-cent increase. He
implemented this decision by immediately notifying the
strikers that the increase was in effect. He told employee
Billy Pitts and others who were on the picket line of his
decision. He testified that he thought that this was tan-
tamount to notifying the Union, although he admitted to
seeing Hollis Grant, the union representative, on the
picket line that night. However, he also admitted that he
did not in any manner discuss the wage increase with
Grant on that evening or thereafter.
Thereafter, the parties met at a bargaining meeting on
November 16. This meeting was very short-lived
because the Respondent's spokesman stated that the
Union had shot its "big gun" when it went on strike and
that the Employer therefore would not change its position
on any of the matters formerly discussed.
The General Counsel and the Charging Party contend
that the putting into effect of the 12-cent overall increase
immediately after the strike began was a unilateral act in-
stituted by the Respondent in derogation of the bargain-
ing rights of the Union and was therefore violative of Sec-
tion 8(a)(5) of the Act. However, the Respondent con-
tends that the increase was lawfully instituted, in that the
parties had reached an impasse and the strike gave the
Respondent the right to institute the across-the-board
wage raise.
The issue in this instance, then, is whether or not an im-
10 Dallas General Drivers , Warehouse and Helpers, Local 745, Team-
sters [Empire Terminal Whse . Co.] v. N.L.R.B., 355 F.2d 842, 845
(C.Z.D.C., 1966).
passe in bargaining was reached so as to enable Respond-
ent to lawfully and unilaterally grant the increase.
The determination of whether an impasse in bargaining
has been reached in any situation is, at best, a difficult one
to make. The court of appeals has stated: "There is no
fixed definition of an impasse or deadlock which can be
applied mechanically to all factual situations which arise
in the area of industrial bargaining."10 However, the
Board has recently suggested" that there are certain stan-
dards which can be used to make a determination of the
existence of an impasse. These are (1) the bargaining his-
tory; (2) the good faith of the parties in negotiations; (3)
the length of the negotiations; (4) the importance of the
issue or issues as to which there is a disagreement; and (5)
the contemporaneous understanding of the parties as to
the state of negotiations.
Not all of the foregoing factors are applicable to the
facts of the instant case. Thus, there is no bargaining his-
tory, the Union being newly certified and the first
representative of Respondent's employees. Also, there is
too little detail in the record as to the bargaining during
the four meetings preceding the strike to constitute a fair
basis upon which the good faith of the parties can be as-
sessed.
However, the length of negotiations is significant. Here
there were only four meetings of less than a day's dura-
tion each, whereas in the Taft case, where the Board
found an impasse, there were 23 bargaining sessions
preceding the claimed impasse . Additionally, the parties
in the instant case had not reached the subject of wage
rates in their bargaining beyond the mere offer by the
Respondent of the 12-cent overall increase which the
Respondent's spokesman claimed was not meant to be a
part of the wage rate proposal at all but merely for the
purpose of giving the Panama City employees the same
raise given all the Respondent's employees at its other
plants. Union Representative Grant, on behalf of the
Union, refused, maintaining , in effect, that all wage mat-
ters should be negotiated at one time. To this the Re-
spondent's spokesman assented to the extent that it was
promised that nothing would be done to effectuate the
proposed increase.
This brings us to the next applicable factor- the con-
temporaneous understanding of the parties as to the state
of negotiations. Although at the October 25 meeting, the
Respondent had brought in a Federal mediator, the
negotiations went ahead with some small progress.
Moreover, no discussion was had as to wages and classifi-
cations generally or specifically so that on this subject,
aside from the 12-cent increase proposal, no discussion,
fruitful or otherwise, occurred.
Additionally, at the end of the meeting, the parties un-
derstood that other meetings were to take place as
evidenced by the fact that they delegated to the Federal
mediator the task of ascertaining the next suitable date for
a meeting . Accordingly, I conclude and find that at the
end of the meeting of October 25, the last meeting before
the strike and the ensuing unilateral raise, the parties
were of a mind that the avenue of negotiations were not
exhausted and knew as a positive matter that the subject
of wages generally had not yet even been reached.
Under all of the foregoing circumstances, and in view
of the very few bargaining sessions , the fact that no real
11 Taft Broadcasting Co., WDAFAM-FM TV, 163 NLRB 475,482.
FLOWERS BAKING COMPANY, INC.
disagreement as to the subject of wages existed inasmuch
as the subject matter had not been reached generally, and
in view of the knowledge of the parties to this fact and
their promise to meet again to continue with their bargain-
ing, I cannot find that an impasse had been reached.
Thus, I find, that under the circumstances, the imple-
mentation of the 12-cent wage increase on the day the
strike began was a unilateral act which circumvented the
Respondent's duty to negotiate with the Union and frus-
trated the object of collective bargaining thereby violating
Section 8(a)(5) of the Act. 12
E. The General Refusal To Bargain
The complaint alleges, in addition to the unilateral acts,
discussed above, that the Respondent generally refused
to bargain in good faith with the Union. The Respondent,
of course, denies this.
There is no probative evidence in the record that the
Respondent failed to meet with the Union upon request
nor is any such failure alleged in the complaint.
Moreover, the testimony, mainly that of the union
representative, Hollis Grant, of what occurred at the four
bargaining sessions preceding the strike, is so sketchy
that it cannot serve as a proper foundation upon which a
determination of the refusal-to-bargain issue can be
based. Were this the only evidence presented I would
recommend a dismissal of the portion of the complaint al-
leging general refusal to bargain.
However, the record shows that when the parties met
subsequent to the strike on November 16, the attitude of
the Respondent either changed, or for the first time
became patently clear. At that meeting, the Respondent's
spokesman, at the outset, said that the Union had fired its
"big gun," referring to the strike, and that the Respondent
did not intend to change its position or have anything to
say with regard thereto at that time. The meeting lasted
only 5 minutes as a result of this attitude.
This attitude of the Respondent can be described, at
best, as uncompromising and inflexible so as to render
further attempts at bargaining futile. Under ordinary cir-
cumstances, an employer may engage in hard bargaining
and maintain its position on matters placed on the bar-
gaining table. However, the attitude here displayed by the
Respondent constituted no less than a refusal to sit down
and attempt to work' toward some agreement. What
solidifies this conclusion is the Respondent's other con-
duct which preceded the strike and at the outset of the
strike. Certainly, the Respondent's conduct in bypassing
the Union in several instances demonstrated its attitude
toward the Union and its final intransigent refusal to con-
sider moving from its position, and, indeed, even to talk
about bargaining when the parties had not yet even
discussed the general topic of wages, one of the most im-
portant of all items for negotiation, constitutes no less
than a refusal to bargain in good faith in violation of Sec-
tion 8(a)(5) of the Act. I so find.
F. The Nature of the Strike
I have heretofore related how, on November 3, the em-
ployees of the Respondent who were members of the
Union held a meeting at the City Marina, conducted by
employee Billy Pitts and Union Representative Hollis
12 N.L R.B v Benue Katz , etc, dlbla Williamsburg Steel Products
Company, 369 U.S. 736.
749
Grant. Both Pitts and Grant testified, credibly and
without contradiction, that during the meeting many
items were discussed and the meeting was quite lengthy.
Among the items discussed with the employees were the
unilateral cutback in working hours; abuse of employees
by supervisors; the Willie Rivers layoff; taking on part-
time employees and laying off regular employees; the
problems of the type of dress that employees were made
to wear; and the bargaining and all that had gone before.
Someone thereupon made a motion to take a vote for a
strike. A strike vote was taken, and it was unanimously
decided that the employees would strike. The strike
began on November 5, shortly after midnight.
Although I have found that there was no discrimination
involved in the discharge of Willie Rivers, I have found
that the unilateral determination to reduce the working
hours of some of the employees, the unilateral changes in
the sanitation department, and the direct bargaining with
employees constituted unilateral acts in violation of Sec-
tion 8(a)(5) of the Act, all of which preceded the strike-
vote meeting. Therefore, even though I find that the inter-
ference, coercion, and restraint committed by the
Respondent was too remote in time to have caused the
strike, I do find that there is sufficient evidence that the
strike was at least, in part, caused by the Respondent's
unfair labor practices found by me heretofore in this
Decision. Accordingly, I find and conclude that the strike
which began on November 5 was an unfair labor practice
strike. And this is true even though some or part of the
cause for the strike was economic in nature.13
Moreover, even were it to be found that the strike
which began on November 5 was not an unfair labor
practice in its inception, I find that the unilateral granting
of the 12-cent wage increase and the refusal to bargain at
the meeting, which occurred on November 16, con-
tributed to and lengthened the strike. Accordingly, I
would find for those reasons alone that the strike was
converted to an unfair labor practice strike and remained
such until the employees unconditionally petitioned to
return to work on February 9, 1967.
I further find, that the employees, hereinafter named,
unconditionally offered to return to work in their former
or substantially equivalent positions and from that date,
with the exception of only a few employees, the Respond-
ent has failed and refused to reinstate them. Accordingly,
I find that under such circumstances the employees who
applied for reinstatement became discriminatees, and
that Respondent, by failing and refusing to reinstate
them, violated Section 8(a)(3) 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 connection with the operations of
the Respondent described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
13 See Sunbeam Plastics Corporation, 144 NLRB 1010, 1038.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taro unfair labor practices , I shall recommend that the
Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent has engaged in acts
of interference , coercion , and restraint and thereby hav-
ing violated Section 8 (a)(1) of the Act, I shall recommend
that the Respondent cease and desist therefrom. Also,
having found that the Respondent has unlawfully refused
to bargain by unilaterally reducing the hours of work of
employees, unilaterally instituting wage increase , dealing
directly with employees, and unilaterally making changes
in the hours and working conditions in the sanitation de-
partment, and thereby having violated Section 8(a)(5) of
the Act, I shall recommend that the Respondent cease
and desist therefrom.
Also, having found that the Respondent has generally
unlawfully refused to bargain with the Union and has
therefore violated Section 8 (a)(5) of the Act. I shall
recommend that the Respondent cease and desist from
refusing to bargain and shall further recommend that the
Respondent bargain upon the request of the Union and,
if an understanding is reached , embody such understand-
ing in a signed agreement.
Since the Respondent unlawfully refused to reinstate
its striking employees upon their unconditional applica-
tion for reinstatement , I shall recommend that the
Respondent offer them immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges , discharging , if necessary , any replacements in
order to provide work for such strikers. I shall also
recommend that the Respondent make them whole for
any loss of pay they may have suffered by reason of the
Respondent's discrimination against them , by paying to
each of them a sum of money equal to the amount he nor-
mally would have earned as wages from February 9,
1967, the date of the unconditional application for rein-
statement, to the date of the Respondent's offer of rein-
statement , less his net earnings during said period. The
amount of backpay due shall be computed in accordance
with the Board's policy set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest on backpay com-
puted in the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716. Payroll and other records in posses-
sion of the Respondent are to be made available to the
Board , or its agents , to assist in such computation and in
determining the right to reinstatement.
Having found that Respondent discriminated against
employee Billy Pitts by laying him off for 3 days, I shall
recommend that Respondent be ordered to make him
whole in the manner set forth in the preceding paragraph.
In view of the nature of the unfair labor practices which
I have found to have been committed, I shall recommend
that the Respondent cease and desist from , and in any
manner, interfering with its employees ' rights guaranteed
under Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Flowers Baking Company, Inc., and Ideal Baking
Company, Inc., herein collectively referred to as the
Respondent, are employers engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material the Union has been, and now is,
the exclusive representative of the employees in the unit
heretofore found appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
4. By threatening employees that the Respondent
would move its machinery and lay off employees, by
coercively interrogating its employees, by unlawfully
promising employees benefits if they would abandon their
support of the Union, by threatening employees that they
would lose their right to share in the Company's profits,
by committing acts of surveillance and creating the im-
pression of surveillance, and by other acts of interference,
coercion, and restraint, the Respondent has violated Sec-
tion 8 (a)(1) of the Act.
5. By refusing immediate reinstatement to the unfair
labor practice strikers, upon their unconditional offer to
return to work on February 9, 1967, Respondent dis-
criminated in regard to their hire and tenure of employ-
ment, thereby discouraging membership in the Union in
violation of Section 8(a)(3) and (1) of the Act.
6. By discriminatorily laying off employee Billy Pitts,
the Respondent has violated Section 8(a)(3) and (1) of the
Act.
7. By unilaterally reducing the hours of employment of
certain employees, dealing directly with certain em-
ployees and thus bypassing the Union, by reducing the
hours and changing the working conditions in the sanita-
tion department, and by unilaterally increasing the em-
ployees' wage rates by 12 cents, the Respondent has
refused to bargain in violation of Section 8(a)(5) and (1)
of the Act.
8. By refusing to bargain collectively generally with the
Union, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law and upon the entire record in this case, it is
recommended that Flowers Baking Company, Inc., and
Ideal Baking Company , Inc., their respective officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union ac-
tivities and their attitude toward the Union , committing
acts of surveillance and creating the impression of sur-
veillance of union activity , threatening employees with
economic reprisals including threats to close the plant if
the Union is selected by the employees to become their
bargaining representative , and making promises of
benefits to the employees to induce the latter to abandon
their support of the Union.
(b) Discouraging membership in American Bakery and
Confectionery Workers' International Union,
AFL-CIO, by discriminatorily laying off employees and
by discriminOtorily failing or refusing upon the uncondi-
tional request to reinstate any of their employees who
have engaged in a strike and are lawfully entitled to rein-
statement , or by discriminating against such employees
FLOWERS BAKING COMPANY, INC.
in any manner in regard to hire or tenure of employment
or any term or condition of employment.
(c) Refusing to bargain with the above-named Union as
the exclusive representative of the employees in the fol-
lowing unit heretofore found to be appropriate:
All production and maintenance employees, sanitation
and shipping employees employed at the Respondent's
Panama City, Florida, operation, excluding office clerical
employees , temporary construction employees, guards
and supervisors as defined in the Act.
(d) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their right to
form, join, assist, or be represented by American Bakery
and Confectionery Workers' International Union,
AFL-CIO, or any other labor organization, to bargain
collectively through a representative of their own choos-
ing, or to engage in other concerted activities for the pur-
pose of collective bargaining , or other mutual aid or pro-
tection, or to refrain from any or all such activity.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to the employees, whose names appear on Ap-
pendix B attached hereto, who on or about February 9,
1967, made unconditional request for reinstatement, im-
mediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them
whole in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Make Billy Pitts whole for the discrimination prac-
ticed against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Notify the said employees if presently serving in the
Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(d) Upon request, bargain collectively in good faith
with American Bakery and Confectionery Workers' In-
ternational Union, AFL-CIO, as the exclusive represent-
ative of the employees in the unit heretofore found ap-
propriate, concerning rates of pay, wages, hours of em-
ployment, and other conditions of employment , and, if an
understanding is reached , embody such understanding in
a signed agreement.
(e) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records, reports, and all other
records necessary to determine the amount of backpay
due and to analyze reinstatement rights under the terms
of this Recommended Order.
(I) Post at their Panama City installation and bakery co-
pies of attached notice marked "Appendix A." 14 Copies
of said notice, on forms provided by the Regional
Director for Region 15, after being duly signed by a
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notice to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 15, in writ-
ing, within 20 days from the date of receipt of this Deci-
751
Sion, what steps the Respondent has taken to comply
herewith. 15
14 In the event that 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 In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
is In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify the Regional Director for
Region 15, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
After a trial in which both sides had an opportunity to
present their evidence, a Trial Examiner of the National
Labor Relations Board has found that we violated the law
and has ordered us to post this notice and to keep our
word about what we say in this notice.
WE WILL NOT question you about your activities
or your attitudes toward the Union.
WE WILL NOT make threats , including threats to
close the plant in the event that the Union is success-
ful in organizing our employees.
WE WILL NOT indicate in any way to you that we
are keeping ourselves informed concerning your
union activities.
WE WILL NOT discourage union activity by refus-
ing to reinstate those striking employees who uncon-
ditionally made application to return to their jobs on
February 9, 1967.
WE WILL NOT discriminate against you for engag-
ing in union activity. Since the Trial Examiner of the
Board found that we did so when we refused to rein-
state the employees who applied for reinstatement on
February 9, 1967, WE WILL offer to them full rein-
statement to their old jobs, and WE WILL pay them
for any loss that they may have suffered because we
refused to reinstate them. In order to reinstate them
WE WILL discharge any employees who have been
hired to take their place. Since the Trial Examiner
has also found that we discriminated against em-
ployee Billy Pitts when we laid him off for 3 days,
WE WILL pay for any loss that he may have suffered
because of this discriminatory layoff.
WE WILL respect the rights of our employees to
self-organization , to form , join , or assist any labor or-
ganizations , or to bargain collectively in respect to
terms or conditions of employment through said
Union, or any representative of their own choosing,
and WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of these rights.
WE WILL, upon request, bargain collectively in
good faith with the American Bakery and Confec-
tionery Workers' International Union, AFL-CIO,
as the exclusive bargaining representative of our em-
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the unit named below. This bargaining will
be with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment, and,
if an understanding is reached, embody it in a signed
agreement. The unit found to be appropriate is the
same unit which was certified by the Board in the
election held prior hereto. The unit is:
All production and maintenance employees,
sanitation and shipping employees employed at
our Panama City, Florida, operation and
Bakery, excluding office clerical employees,
temporary construction employees, guards and
supervisors as defined in the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the said
American Bakery and Confectionery Workers' Interna-
tional Union, AFL-CIO, or any other labor organization.
FLOWERS BAKING
COMPANY, INC.
(Employer)
Dated By
Dated By
(Representative) (Title)
IDEAL BAKING COMPANY,
INC.
(Employer)
(Representative ) (Title)
Note: We will notify the employees to be reinstated if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6361.
APPENDIX B
The following are the employees who on February 9,
1967, unconditionally applied for reinstatement to their
former or equivalent positions with the Respondent:
B.W. Pitts Genese Tatum
Reuben Elton Lankford J. J. Wise
Charles Holley Luther Averett, Jr.
Robert Moore Alvin Eugene Burkett
Edward Pittman H. M. (Mack) Jones
Eugene Warren Jimmy Lee Kemp
Robert Dyer Betty Wahl
James M. Warren Eloise Boone
Edward Curti