Mother's Cake and Cookie Co.

National Labor Relations Board - Board Decisions

May 28, 1953

105 N.L.R.B. 75 (N.L.R.B. 1953)

MOTHER'S CAKE AND COOKIE COMPANY 75
each of these considerations is important and in combination
they are sufficient to deny craft severance when that result is
supported by nothing more than the craft status of the em-
ployees proposed to be split off. Accordingly, I would dismiss
the petition.
MOTHER'S CAKE AND COOKIE COMPANY and CHARLES H.
DUTHIE AND LAWRENCE HEALY. Case No. 20-CA-691.
May 28, 1953
DECISION AND ORDER
On March 31, 1953 , Trial Examiner Herman Marx issued
his Intermediate Report in the above -entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices , and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter , the Respondent filed exceptions to the
Intermediate Report.'
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with this case
to a three -member panel [Members Murdock, Styles, and
Peterson] .
The Board has reviewed the rulings made by the Trial Ex-
aminer at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the Respondent's ex-
ceptions, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial
Examiner.
ORDER
Upon the entire record in this case , and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent, Mother's Cake and Cookie Company, of Oakland,
California , its officers , agents, successors , andassigns , shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in
International Association of Machinists, Local Lodge 284, AFL,
or any other labor organization, by discriminating in any
manner in regard to any term or condition of employment of
any of its employees.
I On May 1, 1953, the Respondent filed a motion alleging that complainant Healy voluntarily
resigned from the Respondent's employ after the close of the hearing and, in substance, re-
questing that the findings and order herein be so amended as to reflect the fact of Healy's
resignation. The motion is denied. The fact of such resignation and its effect on the appro-
priateness of the remedy prescribed herein can best be resolved in the compliance stage of
this proceeding.
105 NLRB No 23
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to
self-organization , to form, join , or assist labor organizations,
to join or assist International Association of Machinists, Local
Lodge 284 , AFL, to bargain collectively through representa-
tives of their own choosing , to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection , and to refrain from any or all such activities, ex-
cept to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a con-
dition of employment , as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Immediately reinstate Lawrence Healy to the position
from which he was demoted on December 8, 1951 , without
prejudice to his seniority and other rights and privileges, and
pay him , for his work in such position the wage rates he would
have cotinued to receive but for the demotion, and make him
whole in the manner and to the extent prescribed in section V,
entitled "The Remedy," of the Intermediate Report.
(b) Post at its plant at Oakland , California , copies of the
notice attached to the Intermediate Report and marked
"Appendix A." 2 Copies of such notice , to be furnished by the
Regional Director for the Twentieth Region, shall , after being
duly signed by the Respondent ' s representative , be posted
immediately upon receipt thereof and be maintained by it for
sixty ( 60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered , defaced,
or covered by any other material.
(c) Notify the Regional Director for the Twentieth Region in
writing within ten (10) days from the date of this Order what
steps the Respondent has taken to comply therewith.
2This notice shall be amended by striking from caption thereof the words "Recommenda-
tions of a Trial Examiner" andsubstitutingin lieu thereof the words "A Decision and Order."
In the event that this Order is enforced by a decree of a United States Court of Appeals, there
shall be substituted for the words "Pursuant toa Decision and Order " the words "Pursuant to
a Decree of the United States Court of Appeals, Enforcing an Order "
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
On September 12, 1952, the General Counsel of the National Labor Relations Board i issued
a complaint, based upon charges filed with the Board, Y against the Respondent, Mother's
t The National Labor Relations Board will be referred to herein as the Board; and Mother's
Cake and Cookie Company as the Respondent or the Company.
2 The charges in question are one filed by Charles H. Duthie on March 31, 1952; an amend-
ment thereto filed by him on September 9, 1952, and one filed by Lawrence Healy on June 2,
1952.
MOTHER'S CAKE AND COOKIE COMPANY 77
Cake and Cookie Company. In material substance, the complaint alleges that the Respondent,
on December 8, 1951, demoted one of its employees, Lawrence Healy, to an inferior position
because of his membership in and activities on behalf of a labor organization, and that the
demotion violated Section 8 (a) (1) and 8 (a) (3) of the National Labor Relations Act, as
amended (61 Stat. 136-163), referred to herein as the Act. Copies of the charges and the
complaint have been duly served upon the Respondent.
The Respondent filed an answer which adnuts the demotion of Healy,s but denies that he
was demoted for the reasons alleged in the complaint and that the Company violated the Act.
As a separate defense, the answer alleges that Healy was a supervisor within the meaning of
the Act, and, in implied effect, thus contends that his demotion could not constitute an unfair
labor practice.
Pursuant to notice duly served by the General Counsel upon the Respondent, a hearing was
held before me on November 17, 18, and 19, 1952, at San Francisco, California. The General
Counsel and the Respondent were represented by counsel, participated in the hearing, and
were afforded full opportunity to be heard, to examine and cross-examine witnesses, adduce
evidence, submit oral argument, and file briefs. The Respondent waived oral argument upon
the evidence, but filed a brief which has been read and considered. The General Counsel
submitted oral argument at the hearing. He waived the filing of a brief. Upon the entire
record, and from my observation of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent is a California corporation. It maintains its principal office and place of
business in Oakland, California, where it is engaged in the production and sale of bakery
products. In 1951, it purchased goods with an aggregate value of $500,000 from sources
outside the State of California and caused the products to be shipped to its said place of
business from points located outside the State. During the same period, the Company shipped
goods with an aggregate value in excess of $100,000 from its place of business to points
situated outside the State of California. I find that Respondent was engaged in interstate
commerce, within the meaning of the Act, at all times material to the issues, and that the
Board has jurisdiction of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, Local Lodge 284, AFL (referred to below as Local
284), admits persons employed by the Respondent to membership and is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefactory statement
The Company employs approximately 400 persons at its Oakland plant. The production
processes, as well as other features of the plant's operations, are divided among a number
of departments, each of which is headed by a supervisor. One of the departments is known as
the plant maintenance department.
The plant maintenance department is responsible for the construction, maintenance, and
repair of the machines used in the Company's production. Only journeymen machinists are
employed in such work. The number of journeymen in the department has grown, at least
since 1946 when there were only 2 or 3. In 1951 the department employed as many as 8 ma-
chinists. The head of the department bears the title of plant engineer. In addition to his
supervision of the machinists, he is vested by the Company with authority to supervise a
number of other employees, respectively engaged in such functions as painting, sanitation,
carpentry, and stock maintenance. The record does not establish to what extent the plant
engineer actually exercises supervision and authority over any employees other than the
machinists. The plant engineer possesses and exercises authority to assign duties to the
machinists, transfer them from one assignment to another, recommend their hire and dis-
8 The answer does not deny that Healy was demoted, and therefore admits the demotion.
Section 102.20, Board's Rules and Regulations, Series 6
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge, and responsibly direct their work. It is undisputed that he, as well as the super-
visors of the production departments, is a supervisor within the meaning of Section 2 (11) of
the Act.
Under the routine procedure in effect at the plant, production department supervisors
prepare written work orders for machinist's work they wish to have performed in their re-
spective departments. The orders are sent to the plant engineer and are in turn routed to
machinists for the performance of the necessary work. The orders are, in the main, kept
for some time on the plant engineer's desk, and from time to time a machinist, after the
completion of a given task, thumbs through them, selects one, and performs the work required
by it, without waiting for the formal routing of the order to him. Frequently, at least with
respect to certain types of maintenance, a production department supervisor or a machine
operator will make an oral request of a machinist for a given repair or adjustment, and the
machinist will do the work without the formal preparation of a work order.
Healy began his employment with the Company in 1943 as a journeyman machinist in the
plant maintenance department. He is senior in service to all other employees in the depart-
ment, and is regarded as an "excellent" and "top" machinist, to use terms applied to him
by Ole K. Waage, an officer of the Company who formerly served as its personnel manager.
The Company for some years has had collective-bargaining relations with a labor organi-
zation known as East Bay Automotive Machinists Lodge 1546, International Association of
Machinists (referred to below as Lodge 1546).4The most recent contract (aside from some
supplements not relevant here) between the Company and Lodge 1546 was executed on
February 15, 1951 The agreement establishes minimum wage rates ($ 86 per week) for
"journeymen automotive machinists, mechanics, and body men," and provides that "working
foremen shall receive ten percent (1076) over $ 86.00 per week."
Both Lodge 1546 and Local 284 are affiliates of a common parent, the international Asso-
ciation of Machinists. As its name implies, and the record indicates, Lodge 1546 appears to
specialize in representation of individuals employed in automotive occupations. However, at
the Company's plant, it represented the journeyman machinists employed in the plant main-
tenance department, as well as employees engaged in the repair and maintenance of the
firm's automotive equipment, and there is no question that the agreement of 1951 was in-
tended by the parties thereto to apply to both groups.
The Company's machinists, including Healy, were members of Lodge 1546 prior to Novem-
ber 9, 1951. Healy was shop steward in his department for that organization for about 2 years
prior to August 1951, when he was succeeded by another machinist named Charles H. Duthie.
For reasons which will appear later, Healy and others in his department transferred their
membership in November 1951 from Lodge 1546 to Local 284. Healy was then receiving a
wage scale 10 percent higher than the rates of a journeyman, 5 and was performing certain
functions, to be described later, in addition to his work as a machinist. On December 8, 1951,
the Company demoted Healy, reducing his wages by 10 percent, and relieving him of the addi-
tional functions. Since his demotion, he has been employed as a machinist by the Company
at the reduced scale.
B. The issues
The General Counsel contends that: Healy was a nonsupervisory employee; he was de-
moted because he transferred his union membership to Local 284; and the demotion thus
contravened the Act. The Respondent's contentions, as reflected in its brief, may be summa-
rized as follows: (1) That Healy was a supervisor within the meaning of the Act and thus not
accorded protection from discrimination by the statute; and (2) that he was lawfully demoted
for two reasons: (a) because "he used his influence and authority as a foreman to influence
the employee machinists in the Plant Maintenance Department to change their union affilia-
tion, contrary to law and ... the established rule and policy" of the Company; and (b) because
he "failed to discipline Charles Duthie" for absenteeism and tardiness.
C. Healy's alleged supervisory status
In 1946, the Company increased Healy's wages by 10 percent above his rate as a journey-
man. At the time of the increase, the plant maintenance department consisted of the plant
4 The record suggests that the Company and Lodge 1546 have had collective-bargaining re-
lations for approximately 14 years (see Respondent's Exhibit No. 7).
5 The record suggests (but I make no finding, as it is unnecessary to do so) that Healy was
receiving more than 10 percent above the minimum journeyman' s rate provided by the con-
tract, since he also had received merit increases for the work of a journeyman, as distin-
guished from the 10 percent he received for performing additional dunes as described below.
MOTHER'S CAKE AND COOKIE COMPANY 79
engineer, Healy, and 1 or 2 other machinists. Healy had been doing the major portion of the
machinists' work. He was informed of the increase by the plant engineer, a man named Dick
Gould. On that occasion, Gould told Healy that the latter had done a "good job"; that he
(Gould) "needed some help in the plant"; that he "wanted [Healy] to watch the machinery and
see that everything was going smoothly"; and that Healy was thenceforth to be a "working
foreman" and would be paid the extra 10 percent because he held that status. Gould told
another machinist, Eugene P. Manning, about Healy's increase, describing Healy's new
duties, status, and relationship to the department in the following terms: "I do not want you
or any of the men to be jealous of Lawrence [Healy] because of this, or to change your re-
lationship with Lawrence because of this. I do not want to create any dissension in the
crew .... I do not want you to be afraid of Lawrence. He cannot fire you or anything. The
main thing is that he deserves a raise and that he is going to take a lot of pressure off of me,
in that he can relay my orders on to the men and save me the trouble of doing it individually."
Gould's employment was subsequently terminated, and he was succeeded as plant engineer
in June 1947 by a man named Rodenberger. In the same month, Healy's wages were decreased
by 10 percent, and the sense of the evidence is that he was relieved of whatever additional
duties he had been required to perform as "working foreman." The Company increased
Healy's wages by 10 percent again on October 20, 1947, and he then resumed the performance
of the same additional duties he had performed during Gould's tenure. Rodenberger was
succeeded by Cornelius Kinst in January 1949.6 About a month later Healy was demoted
again, as on the prior occasion sustaining a cut of 10 percent in his wages and ceasing the
performance of his extra duties. The 10 percent above a journeyman's scale was restored to
Healy again on September 3, 1949, and at the same time he resumed whatever status he had
formerly held as a "working foreman." On that occasion, Kinst told Healy that he (Kinst)
was responsible for the promotion because "he thought[Healy] deserved it." Kinst's em-
ployment was terminated in October 1949,7 and a new plant engineer, Allen Carter, was
appointed during the following month. Carter served until January 1951, and was succeeded
in that month by John W. Wickstrom who is still in the Company's employ as plant engineer.
After Kinst's termination, Healy continued to receive 10 percent above his journeyman's scale
during the successive tenures of Carter and Wickstrom, performing duties in addition to
those of a journeyman, until he was demoted on December 8, 1951, under circumstances to be
described below. (The record does not establish the reason for his two prior demotions, and
neither the reasons nor their validity are in issue here.) By reason of his demotion on that
date, his wages were reduced to those of a journeyman and he was relieved of his additional
duties. He worked for about a month in the construction of some equipment, and was then
assigned by Wickstrom to work as a machinist in the fancy cookie department, where he was
still employed at the time of the hearing.
The issue whether Healy was a supervisor hinges on the question whether, by force of his
additional duties, he was vested with requisite authority, within the meaning of Section 2 (11)
of the Act, to "assign" or "responsibly direct other employees" or "effectively to rec-
ommend such action," and, if so. whether the "exercise of such authority" was not "merely
of a routine or clerical nature." 8 Passing the question of Healy's power to assign or direct
6Healy described Kinst as "foreman of the department," stating that Kinst did not have the
title of plant engineer. There is some intimation in the testimony of Robert W. Frey, the
Company's personnel manager, that Kinst held the title, but it may be noted that Kinst's em-
ployment was terminated more than a year before Frey became personnel manager . There is
some indication in the record that Frey was not testifying from personal knowledge. Irre-
spective of the nature of Kinst's title, it is undisputed that he succeeded to Rodenberger's
duties.
7 Findings made herein with respect to the periods when various individuals performed the
dunes of plant engineer, and the dates of Healy's demotions and promotions after 1946, are
based upon a synthesis of the testimony of Personnel Manager Frey and Healy. Where dif-
ferences appear between the two, I have accepted Frey's testimony, since Healy testified
without the aid of records, whereas Frey consulted the Company's personnel records as a
basis for his indicated testimony.
e The term "supervisor" is defined by Section 2 (11) as "any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign , reward, or discipline other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if in connection with the foregoing
the exercise of such authority is not of a merely routine or clerical nature, but requires the
use of independent judgment."
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees, it is clear that he performed no other functions defined by Section 2 (11) as
supervisory in character.9
It is well to note a number of features of the evidence as a preliminary to a determination
of the nature of Healy's extra duties while a "working foreman." First, it may be noted that
at least 95 percent of his time during such periods was devoted to work as a journeyman
machinist. Unlike the other machinists who were regularly assigned , at least during the
respective tenures of Wickstrom and Carter , to maintain machinery and equipment in specific
production departments , or to a specific type of work, Healy worked "all over the plant," as
he described it. Much of his work consisted of major overhaul and construction jobs. This
was particularly true on Saturday when he and another machinist usually worked on a "big
job" in a production department which was not in operation on Saturday . Second, unlike those
in the plant who were admittedly supervisors , Healy did not attend meetings of the super-
visors which were called from time to time. Third, Healy's work schedule, at least during
Wickstrom's tenure, was such that there were regular periods when he was not in the plant
when other machinists were at work. Some of the machinists worked on Monday, whereas
Healy's workweek extended from and including Tuesday through Saturday (only he and two
other machinists normally worked on Saturday). Healy's daily schedule, prior to his demotion
in 1951, was from 7 a. m. to 3:30 p. m., whereas one machinist worked from 6 a. m. to 2:30
p. m.; another from 9 a. m. to 5:30 p. m.; and the rest from 8 a. m, to 4:30 p. m. In that re-
gard it may be noted that like the other machinists, but unlike the plant engineer, Healy
punched a time clock. Fourth, as noted above, during Wickstrom's tenure, and Carter's as
well, each machinist , with the apparent exception of Healy , either had a regular assignment
to a specific production department or to specific types of work.10 Thus during Wickstrom's
administration , one machinist worked on the equipment in the plain cookie department;
another in the fancy cookie department; a third on wrapping machines and in the cake depart-
ment; a fourth was assigned to the maintenance of the boiler , lights , and plumbing ; a fifth to
"machine work in the (plant's maintenance) shop"; and two men "to shop work , fabricating
and building equipment." The system was in effect, at least to a substantial degree, when
Wickstrom became plant engineer.
The evidence is conflicting on the question of who made the assignments of specific indi-
viduals to such regular duties. Healy denied that he made them. Although he did not specifi-
cally state who made them prior to Wickstrom's administration, he described, without con-
tradiction , a conversation with Carter in which the latter told him that he (Carter) had
assigned a machinist to regular duties in the cake department . According to Healy, it was
Wickstrom who made the assignments during the latter's tenure. The sense of Manning's
testimony Is that the plant engineer made the assignments to regular duties, both before and
after Wickstrom assumed the post. The Respondent produced no testimony on the subject of
who actually made such assignments prior to the time Wickstrom became plant engineer.
With respect to his administration, Wickstrom's testimony on the subject of regular assign-
ments contains some self -contradiction , as will appear later, but he testified concerning the
question that "after the middle of the year[ 1951] we changed the program" (of assignments);
that he "suggested" to Healy that the latter "take the best men," who "knew the department
best," and assign them accordingly; that he did not tell Healy "what individuals to put in any
department "; and that Healy assigned "the particular individuals to the particular depart-
ments."
With respect to his extra duties , Healy described himself as a "go-between " between the
production department supervisors and the plant engineer. 11 It was his function in that capa-
9 One machinist , Andrew Chernenkoff, testified that he " felt" Healy gave him certain work
assignments as a disciplinary measure. Whether Healy acted as a supervisor in making the
alleged assignments will be discussed later. It may be noted here, however, that there is no
probative evidence to support Chernenkoff 's conclusion that the relevant assignments , if made,
were designed to discipline him. As will appear later, the work involved constituted a part of
Chernenkoff's duties. The Respondent also in effect makes the claim in Its brief that Healy
was under a duty "to discipline" employees for absenteeism and tardiness . The evidence re-
lating to this contention will be considered in some detail at a later point . It is enough to state
here that the credible evidence does not support the claim.
1OOn occasion , as in the case of emergencies caused by breakdowns of machinery, ma-
chinists would perform work other than in the departments , or different from the types of
work, to which they were regularly assigned.
ti The outline of Healy 's version of his duties as a "go-between" and of his denials of
supervisory functions in assigning and directing work, which is set out below, does not in-
clude a period of 4 or 5 days between Kinst 's termination and Carter 's employment, when
MOTHER'S CAKE AND COOKIE COMPANY 81
city, Healy stated, to make the rounds of the plant to inspect the machinery, ask the super-
visors "if there was any work they wanted done," pick up written work orders from them,
and turn the orders over to the plant engineer. Healy testified that he usually talked to the
plant engineer "the first thing in the morning," and that the latter would then go through the
orders , select those he wanted processed , and give them to him (Healy) with instructions to
transmit them to the machinists whom the plant engineer designated by name. Healy stated
that he would then give the orders to the named machinists in compliance with the plant
engineer 's instructions , executing himself those which the plant engineer assigned to him for
performance. In the absence of the plant engineer, according to Healy, he would thumb through
the work orders , select those to be performed , and assign them to various machinists for
execution. The sense of Healy's testimony is that the designation of a machinist to execute a
given work order was routine because the order described the work to be performed, and it
was the established practice to give it to the man who was customarily assigned to such work,
as for example , a machinist who was regularly assigned to maintain the equipment in a given
production department.
According to Healy, if the plant engineer felt that certain orders were entitled to priority,
he would so inform Healy while making the assignments in the morning. Healy agreed that in
the plant engineer 's absence he would make such decisions , but he asserted that machinists
"who knew the plant" were usually aware of production necessities, as for example, that "a
certain machine had to go the next morning," and if an individual had more than one work
order to execute, he would customarily draw upon his knowledge of the time when given
equipment was needed for production, and determine the priority to be given to his work
orders . There were occasions , Healy stated, when he would tell a machinist to perform cer-
tain work without the formality of a written order. This would occur, he asserted, when the
supervisor of a given department came to him and "said there was something wrong with the
machine, and he had to have it right away." In such circumstances, according to Healy, he
"would see the mechanic in charge in that department " and "tell him he would have to go
over there and fix that machine."
In the event of emergency breakdowns , Healy stated , machinists were under standing in-
structions from the plant engineer and thegeneral manager to "jump in and help," but he also
had occasion in such situations "to tell the men there was a breakdown" and that they would
"have to go and help." In that connection, Healy asserted that he worked along with the others
in such emergencies; and that he assumed the function of telling the other machinists to "go
and help" because the general manager of the plant "had told us [the machinists] on many
occasions ... that if there was ever a breakdown ... we all had to jump in and get it going
again." Healy denied that it was the plant switchboard operator 's "practice" to call him in
the event of breakdowns , but he agreed that there had been occasions when he had received
such calls . He asserted that on such occasions he had repaired the machine involved himself,
or if it was "too big" a task for one man, he had either asked the machinist assigned to the
department to help him "if a man in that department (was) available" or had requested
Wickstrom "to get me a man."
According to Healy, it was the plant engineer , and not he, who authorized machinists to
work overtime. In the event of the plant engineer 's absence, as during some night -shift work,
Healy testified , a machinist who could not meet a deadline for a given job during his sched-
uled hours would customarily work overtime to complete his task even if he had no prior
authorization to do so. Healy asserted that he and others who worked with him on Saturday
followed this practice, and, he stated , in such circumstances , he would tell a companion who
worked with him: "Well, you know this machine has got to go tomorrow morning. Therefore,
you will have to stay and finish It." On these occasions, according to Healy, he and whoever
worked with him would remain and complete the job. When the plant engineer was not avail-
able, a machinist who could not complete a job before the end of his day would "at times"
come to Healy, the latter testified, and tell him, "I have to have a hand," in which event,
Healy asserted , he would help the machinist to complete the work because " it was my place to
help him." Similarly, Healy testified, if he knew that he could not finish a job requiring com-
pletion before the end of the day, and "could not work overtime," he would report his inability
to complete the work to the plant engineer , but if the latter was not available , Healy stated,
he "would ask men to help me so I could get finished, if they were not busy."
Healy apparently performed supervisory functions in connection with a special job of moving
the plant's equipment . For reasons appearing later, his moving work has no significant
bearing on the issues.
8 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Denying that he was "responsible " for the quantity or quality of the work of other ma-
chinists , Healy asserted that he was never requested to check on the work of others , and did
not do so, but that it was the plant engineer who did whatever checking was done and issued
such detailed instructions as were necessary . According to Healy, he and the other ma-
chinists were individually responsible for the work they did, and the sense of his testimony
is that, in the main , there was no supervisory check of maintenance work such as "just ad-
justing the machine." Wickstrom , however, and not he, Healy stated , exercised the function
of checking other types of repair jobs , as well as the construction of equipment. Healy as -
serted that if a department head was dissatisfied with given work , the latter would take the
matter up with the machinist who had done the work or with Wickstrom . Occasionally, Healy
said, if a department head encountered him, the supervisor would "mention the fact" that a
machine which had been repaired "wasn't running right," and on such occasions, according
to Healy , he would inform the machinist of the complaint , and tell him "that he had better go
back and see what was wrong with it ." Wickstrom gave "new installation " or "new construc-
tion" of equipment his "personal attention," Healy agreed , but he stated , in effect , that such
work was of a sporadic nature and that it involved little of Wickstrom 's time on the whole.
Healy testified that he "very often" worked on a job with one or more of the other machinists,
but he denied that he "divided " the work on such occasions , asserting that each man did his
own work pursuant to instructions the men involved received from the plant engineer "on how
to do the work , when to do the work , and everything , before we started the job." Wickstrom
would give him and the other machinist who worked with him such instructions , according to
Healy , each Friday with respect to the "major overhaul" and similar jobs he and his com-
panion did on Saturday , a day when Wickstrom was not customarily in the plant. One other
machinist , Chernenkoff , who worked on wrapping machines , would come in on Saturday, and
according to Healy , Chernenkoff similarly received instructions on the preceding day and did
his own work on Saturday without any supervision from Healy.
It was customary for all the machinists , Healy stated , to make suggestions to one another
concerning the "proper manner" to perform their tasks . Thus , according to Healy , he made
such suggestions to others , and they made them to him, but if there was disagreement, the
machinist working on the job would do it " the way he wanted to." Healy denied that he was
under instructions to tell others "to do better work, " or that he ever told anyone to do so.
On occasion , he stated , a new man would ask his advice about a job,=but he was not required
by his duties , Healy asserted , "to tell the man what to do and how to do it."
Healy testified that he was unauthorized to grant requests for time off, that he did not do
so, and that such requests by the machinists were submitted by them to the plant engineer.
Machinists who were tardy , according to Healy , were not required to report to him , "There
were times ," he stated , "when an employee called up and told me that he could not be to work,
or he would be late; and I would relay the message to John Wickstrom or to the girl on the
switchboard to relay to John Wickstrom ." Healy denied , in effect , that it was his duty "to
check into and initial the time cards of the plant maintenance mechanics " when they failed to
punch the clock. "However, " he said, " If a man ... forgot to punch the clock occasionally,
if John Wickstrom was not there he would come to me and ask me to initial it." Asserting
that this occurred only 2 or 3 times a year , Healy denied that he had the authority to do so,
and said that when he initialed cards in such circumstances , he did so "as a witness to the
fact that they were there and forgot to punch ." On the occasion when he forgot to punch his
card, Healy stated, he would have Wickstrom initial it for him, but in the event of Wickstrom's
absence, according to Healy, he would "generally " initial his card himself without asking
any other machinist to do so.
Manning , who has been in the Respondent 's employ as a machinist since 1946 , except for a
period of some months in 1947 and 1948 , substantially corroborated Healy's claim that he was
a "go-between" in the performance of his additional duties . In essence , these consisted,
according to Manning , of the distribution of the written work orders to the other machinists,
and he asserted , in effect , that the only difference between the nature of Healy's work before
and after the 1951 demotion is that Healy ceased distributing the work orders upon his de-
motion. Addressing himself to the periods when Healy performed additional dunes , Manning
testified , in material substance , that machinists , except in "extreme emergencies," per-
formed the jobs in the departments , or pertaining to the type of work, to which they were
regularly assigned ; that the work orders reflected the nature of the work to be performed; that
they were distributed to the men in accordance with the department or type of work involved;
that Healy received the written work orders from the plant engineer and then distributed them
to the men; that the plant engineer himself gave him his work orders from time to time; that
other machinists would on occasion transmit them to him ; that when he found himself without
MOTHER'S CAKE AND COOKIE COMPANY 83
an assignment, "and there was no one around" to give him another, he would look through the
work orders on Wickstrom's desk, select one "that suited [my] fancy and [go] to work on it";
that machinists were subject to the "orders" of the plant engineer; that he had never been
informed that they were subject to Healy's "orders"; that whatever particular instructions
he received were given to him by the plant engineer, and not by Healy; that Wickstrom did
not devote "his major time and attention to ... new construction, as distinguished from re-
pairs"; that Healy never checked his work, but that Wickstrom "checked" on the quality of
the work of the machinists; that he was assigned by Wickstrom to a night shift for a period of
several months in 1951, and directed by the plant engineer to substitute for another employee
during the latter 's vacation in that year ; that in conformity with a long established custom
prevailing among the machinists as "a common courtesy," he and Healy, as well as the
other men, have made suggestions to each other concerning methods of performing work;
that the plant engineer , and not Healy , "assigned overtime" in the department ; that he sub-
mitted his requests for time off to Wickstrom, and not to Healy; that on the one occasion
when he telephoned the plant to report that he would be absent he asked for Wickstrom, but
spoke to Healy in the absence of the plant engineer and asked Healy to report the absence to
Wickstrom ; that he has had occasion to answer the telephone when employees called to report
their absence and asked for Wickstrom, and, in the latter's absence, he (Manning) took the
message for Wickstrom; that on one occasion, Healy called him from the plant at his home
at night and asked him to come down to the plant and help Healy replace a ventilator which
had been damaged in a storm; that he complied with Healy's request; that the watchman
called him (Manning) to come down to the plant on a number of occasions (about a half dozen
times) to do some work ; and that while he was employed on the night shift, he called other
machinists on several occasions to dome down to the plant and help him. 12
During a period of 4 or 5 days in 1949 between Kinst 's termination and Carter's assumption
of the post of plant engineer , Healy supervised the employees in his department in moving
some machinery from one building to another and installing it in the latter. He did so at the
request of William J. Meder , at that time the general manager of the plant (Meder's employ-
ment terminated in January 1951 ). While engaged in moving and installing the equipment,
Healy exercised discretion in assigning the other machinists to their tasks , instructing them
in the performance of their work and determining the priority of such work.
Carter assumed his duties when the moving work was almost completed. When Carter
began his work, Meder told him that "Healy was in charge until he could take over." The
general manager asked Carter how he wanted "this worked out." Carter expressed the
preference that Healy "continue as Foreman" and said that he would "leave everything as
is, until I can become acquainted with the people." Meder told Carter in effect that he could
run his department as he wished. The general manager testified : "Then. I called in Healy and
talked to him and Carter and told him[ Healy] for the time being ... he could go on just as he
had and take care of the repairs in the plant with the men he had; that Carter would like to
have it that way and that was the way it was left."
Shortly thereafter, Meder caused the preparation of 3 written directives, 1 dealing with the
"relations" between the plant maintenance and cake departments, and the other 2 respectively
purporting to describe the functions of Healy and Carter. The first document requires "the
Plant Maintenance foreman" to "assign a competent mechanic to work in the Cake Depart-
ment," and divide' supervisory responsibility over the work of the mechanic between the
"Plant Maintenance foreman" and the "Cake Department production superintendent." The
directive dealing with Carter's duties bears the title "Authority and Responsibility of Plant
Maintenance Supervisors," refers to Carter as the "Plant Maintenance Engineer," and pro-
vides, among other things, that he "shall directly supervise the activities of the working
foreman," and for "over-all responsibility" by Carter for the "construction, installation,
maintenance and repair of all plant buildings, machinery, equipment, and utilities." The re-
maining document has the same caption as the one relating to Carter, refers to Healy as
12 Healy lives about a mile from the plant, closer to it than any other machinist. Prior to
his demotion in 1951, he was often called by one individual or another who worked at the plant
at night to come down and make some repair. Frequently, he refused to go because the repair
or adjustment involved was "trivial," and he would either advise his caller on the telephone
as to how to perform the necessary operation, or take the position that the matter could wait
until the morning 'when there would be a man available there anyway." When he responded
to the call, he was paid double time for his work. He stated that he could not recall whether
he had ever asked anyone else to respond to such a call. Aside from the instance related by
Manning, there is no evidence that Healy did so.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Working Foreman , Plant Maintenance Department ," states that he "shall be under the
direct supervision of the Plant Maintenance Engineer, " and provides that Healy "shall be
responsible " for the "detailed job assignments of the Plant Maintenance mechanics"; the
"maintenance and repair of all plant buildings , machinery, equipment , and utilities"; the
"carrying out [of] the plant preventive maintenance work "; and the coordination of "the ac-
tivities of the Plant Maintenance Department" under "the direction of Allen Carter." The
instrument also provides that Healy "shall directly supervise the activities " of "general
plant mechanics ," "departmental mechanics ," "plant maintenance painter, " "carpenter,"
and "all other persons engaged in plant maintenance repair work."
Several features of the directives may be noted at this point. First, that pertaining to the
cake department purports to vest certain responsibilities in the "Plant Maintenance foreman."
The other 2 documents refer to a "working foreman ," 1 of them mentioning Healy by name
in that capacity. It may be observed, in that connection , that there is evidence that Kinst,
Carter's predecessor, was known by the title of "foreman" and not by that of "Plant En-
,ineer" (see Healy 's testimony and the Respondent 's letter to Kinst, dated April 25, 1949).
Moreover , whatever evidence there is on the subject establishes that Healy did not assign a
machinist to the cake department and indicates that Carter was the one who did so. Thus it is
far from clear , to say the least, that the term "Plant Maintenance foreman" referred to
Healy rather than Carter . Second, the record is barren of any evidence that Healy ever had
any actual connection with the work of either the plant's painters or its carpenter , and there
is affirmative evidence (by Wickstrom) that during Wickstrom's tenure, Healy had nothing to
do with the painting and carpentry work.
Meder testified that copies of all three directives were posted on the plant's bulletin board,
but he admitted that he did not know whether Healy either received or saw any copies. Healy
asserted that he was unaware of the directives, stating that he neither received nor saw any
copies. Manning stated that he has never seen copies of the documents, whether on the bulletin
board or elsewhere. The fact that there is no evidence that Healy ever had any actual connec-
tion with the work of the painters or the carpenter , but on the contrary had no such connec-
tion during Wickstrom's tenure, contributes weight to the testimony of Healy and Manning
that they were unaware of the existence of the documents . Moreover , Meder's demeanor, in
the light of particular language he used in testifying to his knowledge of the posting, suggested
to me the possibility that he was relying on a conviction that "all directives were posted on
the board as issued ," rather than his present recollection that he actually saw the papers in
question on the board . in any event, even assuming that they were posted for some period of
time, the duration of which Meder's testimony does not establish, I am convinced, and find,
that Healy neither received copies of the directives nor saw them, and that he was unaware of
their contents.i3
The Respondent produced two witnesses on the question of the work Healy actually per-
formed during periods when he was a "working foreman." One was Chernenkoff who
began his work as a machinist in the plant maintenance department in August 1949, shortly
before Kinst's termination, and at a time when Healy was not a "working foreman."
Chernenkoff is still in the Company's employ. The other witness mentioned above was
Wickstrom.
Chernenkoff has been regularly assigned to the maintenance of the wrapping machines
from the inception of his employment, and since early in Carter's tenure to the servicing of
the equipment in the cake department. 14 With respect to Healy's duties as "working foreman,"
Chernenkoff testified, in effect, that he received his written work orders "mostly" from
Healy, and in an "emergency" from the plant engineer; that Healy would "assign some greasy
13 Personnel Manager Frey identified a document, dated August 20, 1951, containing a
description of Wickstrom's duties. The document provides that Wickstrom "shall directly
supervise the activities" of the "working foreman," "plant maintenance stock clerk,"
"painter," "carpenter," "foreman, Sanitation Department," and "janitor." It also contains
a provision that "in theabsenceofJohnWickstrom, Lawrence Healy shall assume his duties."
Frey prepared the document, "personally gave" a copy to Wickstrom, and directed his
(Frey's) secretary to "see" that copies "were distributed to other department heads." The
Respondent offered no evidence that Healy either saw or was aware of the document. Healy
denied that he had ever seen it or been told of its existence. His indicated testimony is un-
disputed, and I credit it.
14 Chernenkoff's testimony reflects a denial that he was regularly assigned to the equipment
in the cake department. Healy and Manning testified to the contrary. For reasons which will
appear, I credit Healy and Manning.
MOTHER'S CAKE AND COOKIE COMPANY 85
job" to him ; that such "greasy job" assignments consisted of directions to clean and other-
wise service the "pan greaser " in the cake department some 25 to 50 times ; that such work
was not part of his regular duties ; that, while others also received such assignments , Healy,
as part of his functions , gave them to him-on substantially more occasions than to others;
that "when I was really busy doing something else that I could not leave, naturally somebody
else would have to go on the pan greaser "; that there were other occasions when Healy called
him off the job he was doing and "asked" him to do other work; that this would occur "some-
times a dozen times a day; sometimes maybe once a day "; that on many such occasions, as
well as when he serviced the pan greaser, he received written work orders; that on various
occasions , such as in thecaseofemergency situations , Healy requested him to work overtime,
and he did so; that on many such occasions the job was covered by a written work order; that
with respect to the last such instance he cannot recall whether there was a written order, but
Healy told him at the completion of his regular workday to "stay and finish up such and such
a job"; that he does not know from "where the [written ] orders came" which Healy handed to
him; and that he was formerly , but is no longer , angry at Healy for what he still regards as
discrimination in the pan greaser assignments . With respect to the pan greaser . Healy testi-
fied that there was "lots of trouble" with it, "sometimes ... every day "; that , as Chernenkoff
was regularly assigned to the cake department , it was part of his regular duty to service the
pan greaser ; that "if the department head [supervisor of the cake department ] said there was
something wrong, I would tell Andy Chernenkoff that he was wanted on the pan greaser";
that it was the customary practice to replace the grease guns in the pan greaser once a month,
cleaning those replaced for future use ; that, although it was Chernenkoff 's function to do such
work, it was more efficient to use two men on the job; and that he frequently assisted
Chernenkoff in the monthly servicing of the pan greaser , while on other occasions one or
another of the other machinists did so.
With respect to Healy's duties as "working foreman" after Wickstrom became plant en-
gineer, Wickstrom testified , in material sum, that when he assumed his post, an officer of the
Company introduced Healy to him as "the maintenance foreman," stating that the latter
"knows how to maintain the shop," that " the only thing" he said to Healy concerning the
latter 's duties was that "it was nice they had a foreman there so the responsibility would not
be put on me in a new plant like that, with new equipment "; that he primarily concerned
himself prior to Healy's demotion with the installation of new, and the remodeling of old,
equipment , spending about half his time in his office drawing plans for such work ; that while
so engaged , he "bad nothing to do" with "the supervision and direction of the repair work";
that he distributed the written work orders to the men each Monday because Healy was not on
duty on that day , but that when Healy was in the plant , he (Wickstrom) turned the orders, ex-
cept for those pertaining to painting and carpentry, over to Healy to dispose of them as he
saw fit; that Healy did not handle the orders for painting and carpentry "because they did not
belong to him"; that he (Wickstrom) did not inspect the work of a machinist after it was
finished; that he never initialed the timecard of a machinist who had failed to punch the clock;
and that Healy, and not he, assigned machinists to overtime work.'5
In setting down a determination of Healy 's status , it may initially be observed that his title,
whether "working foreman " or something else, is not a controlling factor. As the Court of
Appeals for the First Circuit recently observed , "the important thing is the actual duties
and authority of the employee, not his formal title " (N. L. R. B. v. Quincy Steel Casting Co.,
Inc., 200 F. 2d 293 (C. A. 1). }6
Similarly , I am unable to give significant weight to Meder's generalization to Carter that
"Healy was in charge until he [Carter] could take over," or the general manager's statement
to Healy that "for the time being . .. he could go on just as he had and take care of the re-
pairs In the plant with the men he had ." What Healy's duties and authority were "for the time
being" or until Carter could "take over" sheds little light, if any , on the nature of the job
from which Healy was demoted over 2 years after Meder's conversation with Healy and
Carter, and almost a year after the respective employments of Meder and Carter ended. I am
unable to assume that Meder had in mind a continuance of Healy's functions during the short
moving period , for that was a special task, performed at a time when there was no plant en-
gineer and almost completed when Carter assumed his post. Meder exercised supervision
t5 As already stated , Wickstrom also testified that during his tenure , Healy made the as-
signments of various machinists "to the particular departments ." He gave some additional
testimony on the subject, to which later reference will be made.
16 See , also, Red Star Express Lines of Auburn, Inc . v. N. L. R. B., 196 F 2d 78 (C. A. 2);
Cinch Manufacturing Corporation , 98 NLRB 781.
8 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over a plant employing about 400 persons, with many and diverse operations, and there is no
evidence that he had day-to-day contact with the actual work of the small group of machinists
If anything, his testimony suggests that he delegated authority to, and relied upon, the plant
engineer for the operation of the latter's department. Whether Meder was fully aware of the
details of Healy's functions prior to the moving job need not be decided, but it is conceivable
that Healy drew different inferences from what Meder said than those the latter intended.
The fact is that when Meder caused the preparation of a written statement of Healy's pur-
ported duties, he described Healy as having supervision over the painters and carpenter,
although there is no evidence that Healy ever exercised such a function, and affirmative evi-
dence that Wickstrom regarded even transmission of written work orders pertaining to paint-
ing and carpentry as not within the scope of Healy's duties.17 Be that as it may, the Re-
spondent offered no evidence to establish when Carter's familiarity with his department
became sufficient for him to "take over." In the light of the findings made below with respect
to the work Healy actually performed as "working foreman" throughout Wickstrom's admin-
istration, as well as prior thereto, I am unable to give operative weight to what Meder told
Carter and Healy the latter's functions were to be "for the time being."
Meder's written directives stand on no better footing as determinants of Healy's status.
As pointed out earlier, it is quite doubtful, to say the least, that the reference to the "Plant
Maintenance foreman" in the directives pertaining to the cake department was intended to
apply to Healy. The document requires the "plant maintenance foreman" to assign a "me-
chanic" to the cake department. Healy's testimony is undisputed that he did not make the
assignment and that Carter told him that he (Carter) had assigned Chernenkoff to the cake
department. Significant departures, with respect to painting and carpentry employees, from
the terms of the directive purporting to describe Healy's functions have already been noted,
and these tend to support the view that Healy neither was aware of, nor operated under, that
directive. In any event, Healy was unaware of the existence of the directives, and in the light
of the functions he actually performed, as found below, the documents are not operative
factors in. a determination of Healy's status. }a
The decisive factor is the work that Healy actually did during periods when he performed
duties additional to those of a machinist. 19 There is no dispute that during such periods he
devoted at least 95 percent of his time to the work of a journeyman. A decision concerning
his additional duties rests essentially upon a resolution of the conflicts between the testimony
of Healy and Manning on the one hand, and that of Chernenkoff and Wickstrom on the other.
There is nothing in Chernenkoff's testimony to dispute Healy's claim that the latter routed
the written work orders to named individuals according to the plant engineer's instructions.
17 The directive of August 20, 1951, purports to vest direct supervision over the painting
and carpentry employees in Wickstrom. I am unable, in the light of Wickstrom's testimony,
to infer that any effective authority over them was vested in Healy prior to that date.
is The same conclusion holds true of the directive of August 20, 1951, since Healy was un-
aware of its provisions.
19 In connection with its claim concerning Healy's status, the Respondent points out that
Healy was once the shop steward in his department for Lodge 1546, and stresses testimony
by Ole K. Waage, the Company's secretary, thatduring contract negotiations in February 1951
with the labor organization, he complained to its representatives (including Healy) that it was
"an intolerable situation that the foreman should also be a shop steward'; that he (Waage)
delivered "an ultimatum" that Healy be relieved as shop steward or suffer demotion "from
foreman"; and that Healy "said he would like to make the change also, because he was
caught in the middle." Frey testified in similar vein. Healy gave a somewhat different ver-
sion (not reflecting "an ultimatum") of the circumstances and details of a conversation with
Waage concerning the post of shop steward. Healy's account need not be set out because I do
not regard the conversation as controlling, although I have some reservations concerning the
accuracy of the versions given by both Waage and Frey, since Healy continued as shop steward
for some 7 months until he voluntarily relinquished the post because he "felt he had had it
long enough." Even if one assumes the accuracy of Waage's relevant testimony, here, too,
the Respondent reads too much into titles and conclusional assumptions concerning Healy.
The mere fact that the management considered Healy a "foreman" or "supervisor" whose
functions were inconsistent with those of a shop steward does not make Healy a "supervisor"
within the definitional standards set by the Act. As already pointed out, Healy's actual func-
tions are decisive of the issue of his status, and if in fact Healy did not perform any of the
functions characterized by the Act as supervisory in nature, I can accord no operative
weight to Waage's and Frey's testimony concerning the contract negotiations.
MOTHER'S CAKE AND COOKIE COMPANY 87
Admittedly , according to Chernenkoff , "many" of the assignments he states he received from
Healy were conveyed by written work orders The legal effect to be given to Healy's distribu-
tion of the written orders will be determined later , and need not be considered here. It may
also be noted that Chernenkoff ' s testimony does not controvert Healy's claim that he did not
direct the machinists in the manner in which they performed their work and that it was the
plant engineer , and not he , who checked such work The basic question to be decided with
respect to Chernenkoff is whether his testimony credibly establishes that Healy , without
written work orders from Wickstrom , exercised supervisory authority to assign work to
Chernenkoff. The record reflects factors which serve to impair Chernenkoff ' s reliability as
a witness The sense of his testimony is that the servicing of the pan greaser was not his
regular function and that Healy discriminatorily assigned him to such work Initially,
Chernenkoff asserted , in effect , that he was not regularly assigned to the cake department.
At a later point, he intimated , somewhat obscurely , and with reluctant and evasive demeanor,
that he performed work in the cake department when he "had time " Now, Meder ' s directive
relating to the cake department , which is dated November 8, 1949, provides for the assign-
ment of "a competent mechanic to work in the Cake Department ." There is no dispute that
Carter told Healy about that time that he (Carter ) had assigned Chernenkoff to that depart-
ment It is clear that machinists held regular assignments to the various production depart-
ments, and it is only reasonable to assume , particularly in the light of the directive, that
such an assignment to the cake department was made. Now , if Chernenkoff was not so as-
signed, who did hold the assignment? The Respondent offered no identification of the indi-
vidual, whereas Healy and Manning did identify him as Chernenkoff . I do not credit
Chernenkoff's testimony denying, in effect, that he was regularly assigned to the cake depart-
ment, and I find that he was the machinist who was regularly assigned to maintain the equip-
ment in the cake department , including the pan greaser Similarly, I credit Healy ' s testimony
pertaining to the cleaning and servicing of the pan greaser , and the role of himself , Chernenkoff,
and other machinists in such work.
The credited evidence establishes that it was Chernenkoff's routine function to maintain and
repair the pan greaser The mere fact that from time to time the production supervisor told
Healy that "something was wrong with the pan greaser, " and that Healy in turn informed
Chernenkoff that the latter "was wanted on the pan greaser " does not mean that such
occasions involved assignments of work by Healy within the scope of Section 2 ( 11).20 Such
statements were "merely routine" and required no "use of independent judgment ," since it
was Chernenkoff ' s duty to attend to the pan greaser by force of his regular assignment which
did not originate with Healy . Moreover , the Respondent ' s own directive of November 8, 1949,
vests in the cake department supervisor the function of supervising the "Cake Department
mechanic" with respect to the "assignment of work" in that department. Although Healy was
unaware of the existence of the directive , its provision for assignment by the cake depart-
ment production head, taken in conjunction with Healy ' s description of the circumstances
under which he would tell Chernenkoff that he "was wanted on the pan greaser ," suggests
that what Healy was doing was no more than routinely conveying a message from the produc-
tion supervisor to Chernenkoff 2t Be that as it may, it is clear that Healy did not function as
a supervisor , as defined by the Act , with respect to Chernenkoff ' s work on the pan greaser.
Chernenkoff ' s testimony that Healy gave him other assignments, including those for over-
time, consists , in the main , of generalizations . It is impossible to determine from such testi-
mony to what extent these were on the wrapping machines and in the cake department and
were covered by written work orders . Some infirmities in Chernenkoff ' s testimony have
already been noted His claim that the servicing of the pan greaser was not part of his regu-
lar duties imparts an unreliable content to his testimony . I must also take into consideration
his expressed assumption that Healy was treating him discriminatorily , whereas the fact is
that it was Chernenkoff's routine function, and not that of anybody else, to service the pan
greaser . In the absence of credible corroboration of Chernenkoff, I find myself unable to base
a finding on his testimony that any assignments Healy gave him were of such a nature as to
20 At one point, Healy agreed that "when occasion arose, [he] would tell Mr Chernenkoff
to take care of the pan greaser ." My impression is that what Healy had in mind were the
occasions he described in any event , Healy's credited testimony as a whole establishes that
his statements to Chernenkoff concerning the pan greaser were not supervisory assignments
or direction of work within the meaning of the Act.
21 So far as concerned Chernenkoff's work in the cake department, any claim by the Re-
spondent that Healy had the function of supervising the "assignment of work" in that de-
partment is clearly contrary to the terms of its own directive
291555 0 - 54 - 7
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitute Healy a supervisor within the meaning of the Act. As will appear later, such
credible corroboration does not exist
Wickstrom's testimony reduces itself to the claim that he reserved for himself the planning
and supervision of construction and remodeling of equipment, and reposed in Healy's hands
the supervision of repairs The basic elements of Wickstrom's claim are that Healy, and not
he, assigned machinists to work regularly in "particular departments", that it was his prac-
tice (except on Mondays when Healy was absent) to turn over the work orders for repairs to
Healy who "disposed of them the best way he saw fit", that Healy, and not he, authorized and
directed machinists (apparently those engaged in repair work) to work overtime, and that
Healy, and not he, directed the repair work
On the subject of the regular assignments to "particular departments" Wickstrom gave
self-contradictory testimony. In that connection, he initially stated that only one machinist
was assigned to a specific department and that this assignment occurred before he became
plant engineer. Later he testified that "during the middle of the year [1951] we changed the
program," and that Healy was the one who assigned the men to their regular departments.
However, at a subsequent point, he admitted that when the "system" of specific assignments
,.was set up in the middle of the year," substantially "the same people continued in the de-
partments where they had formerly worked." Both the text of Wickstrom's testimony and his
demeanor persuade me that he was less than frank in describing his role in making the
assignments. Moreover, Manning's testimony is undisputed thathewas assigned by Wickstrom
to work on a night shift and as a vacation substitute for the machinist regularly assigned to
the plain cookie department I do not credit Wickstrom's testimony on the subject of the regu-
lar assignments, and find that Healy never made any, that it was the plant engineer who made
them and, more particularly that Wickstrom made assignments of machinists to "particular"
production departments and to regular duties in various types of work.
Wickstrom's claim that Healy was the one who directed repair machinists to work over-
time is, in the main, a generalization which strikes an unconvincing note in the light of some
testimony he gave. Although asserting that 2 employees (Miller and Chernenkoff) "had to stay
late many nights," he described only '. occasion when they did so. This was an instance,
according to Wickstrom, when the pan greaser required servicing. Healy denied, in effect,
that he directed the two machinists to work overtime on the occasion in question. Wickstrom's
description of the incident is somewhat confused and self-contradictory At first he stated
that the time for the two machinists to go home had already passed when Healy told them to
remain and finish the job. Subsequently, Wickstrom testified that Healy instructed the men
"to stay and finish up ... before the time was up for them to go home," and that this
occurred "around two or three o'clock" in the afternoon on an occasion when he (Wickstrom)
paused for "just a minute" near the site of the work. In that connection, it may be noted that
Wickstrom testified at another point that the time for either man to go home had not yet
arrived, that one of them was due to leave at 3 30 p. m., and the other at 5:30 p. m., and that
Healy did not tell the latter employee to remain It is not even clear from Wickstrom's
testimony that either machinist actually worked beyond his usual quitting time, but passing
that, it is noteworthy that in describing the incident, although disclaiming any direction by
him that the men remain until they finished, Wickstrom testified that he stopped near the
machine on the occasion in question because he "was worried they were not going to finish
the machine." In that regard, he admitted that he "used to worry about the equipment and
the repairs quite a good bit" while Healywas "working foreman," but he asserted that "when
they were working overtime there was a black mark against the whole shop. I did not want
them to work overtime That was what I was worried about." One may well question whether
a supervisor who "worried" so much about overtime took so little a hand in its assignment,
at least with respect to repair work, as Wickstrom's testimony would lead one to believe.
Moreover, Wickstrom professed at one point in his testimony not to "bother" with the direc-
tion of the repair work, leaving it all to Healy, and this profession is not quite in harmony
with Wickstrom's "worry" concerning such work in general and overtime in particular. In
that regard, if Wickstrom did not "bother" with the direction of repair work, one may legiti-
mately inquire who did "bother" with it when Healy was not in the plant at all and machinists
were at work who supposedly were under Healy's direction. Aside from Wickstrom's state-
ment that he distributed the work orders on Mondays, his testimony is significantly silent on
the subject, as is indeed the Respondent's whole case, and this serves to cast additional doubt
on Wickstrom's version of Healy's alleged role in the direction of the repair work.
Wickstrom's testimony contained other indicia of unreliability. Some involved his descrip-
tion of the circumstances under which Healy was demoted. Passing this aspect of the case for
the time being, one other facet of Wickstrom's testimony may be noted here for its bearing
on his credibility. He testified that he has "never" initialed the timecard of an employee who
MOTHER'S CAKE AND COOKIE COMPANY 89
had failed to punch in, and that "no employee ever came to" him for that purpose. Yet Per-
sonnel Manager Frey testified credibly that he had examined the timecards for the plant
maintenance department for the year 1951, and that in cases where employees had failed to
punch in, Healy's initials appear on 4 cards and Wickstrom's on approximately 10. One may
reasonably conclude that Wickstrom's relevant denials reflect an effort, by negative impli-
cation, to build up Healy's role in the supervision of the machinists tt
In sum, I am unable to place any reliance on Wickstrom ' s testimony as a credible account
of Healy's functions or of his own. On the other hand, Healy and Manning impressed me as
credible witnesses. In connection with Manning, it may be noted that he gave testimony con-
trary to the Respondent's interest while still in its employ, and the circumstance of his cur-
rent employment status contributes weight to his evidence. On the whole, he corroborates
Healy's version of the latter ' s functions and of those of the several plant engineers . I credit
Healy's account, as outlined above, of the work he actually performed, and of the respective
duties and functions of himself and of the various individuals who held or performed the work
of the plant engineer , during any period when Healy exercised functions in addition to the
work of a journeyman machinist.
The credible evidence as a whole establishes that Healy held a preferred status in the plant
maintenance department. He was a notch above his fellows, both in terms of duties and wages,
but the credited evidence falls short of establishing that he performed any function meeting
the definitional standards prescribed by Section 2 (11). Essentially, in addition to his work as
a journeyman , he was something of an administrative assistant to the plant engineer or, in
other words, a "go-between," as he described himself, between the production supervisors
and the plant engineer. Clearly, that was his function in making the rounds of the plant to in-
spect machinery to determine whether it required attention , asking the supervisors " if there
was any work they wanted done," picking up work orders from them, and turning the orders
over to the plant engineer. Similarly, he was a "go-between" in the distribution of the work
orders. The machinists were all journeymen, and there is no reason to assume that they did
not possess the minimum requisite skill required of workmen in that category in a skilled
occupation. All of them, with the exception of Healy, had regular assignments, either to
"particular departments' or to specific types of work, to which they were designated by the
plant engineer , and they routinely did the work pertaining to their regular assignments. In
that setting, as the written work orders themselves reflected the type of work required, the
transmission of such orders given to machinists by Healy, whether on his own responsibility
in Wickstrom's absence, or at the latter's direction, was no more than a routine function. The
best evidence that such was the case may be found in the fact that machinists would them-
selves from time to time thumb through the work orders on Wickstrom's desk and select
some for execution without waiting for the formal routing of such orders to them I am unable
to conclude that because, in Wickstrom's absence, Healy had occasion to determine the
priority of work orders, he was for that reason a supervisor within the meaning of the
statute The evidence does not establish the frequency of such determinations, but passing that
question, the work orders were still executed by those who were required by their regular
assignments to do so, and the judgment Healy exercised was of a piece with that which the
machinists themselves routinely used in determining priorities among work orders they held.
Similarly, I can draw no conclusion that Healy was a supervisor because the heads of produc-
tion departments, in what were apparently emergency situations, would come to him from time
to time and inform him that a machine needed attention, and he would in turn "see the me-
chanic in charge in that department" and "tell him he would have to go over there and fix that
machine:" It was already the responsibility of the machinist "in charge of the department"
ttI atfach no decisive significance to the fact that on infrequent occasions Healy initialed
the timecard of an employee who had failed to punch in Even if one assumes, as Personnel
Manager Frey testified, that there was a plant rule that employees who failed to punch the
clock were required "to have a supervisor write in the time and so initial it," there is no
evidence that Healy was informed of such a rule, and I am unable to disregard the reason
he gave for placing his initials on timecards. The Respondent presented no evidence with
respect to timecards prior to 1951 and for all that appears, it may be that in previous years
other nonsupervisory employees bore witness to the presence on duty of others by initialing
timecards. Be that as it may, the mere fact that the management viewed the initialing of the
cards as the function of a "supervisor" does not convert Healy into one. There is nothing
inherently supervisory in the initialing of timecards for forgetful employees As already
pointed out, the decisive factor is whether he was vested with requisite authority to "assign"
or "responsibly direct" other employees.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to perform the work $s part of his regular assignment Healy did not "responsibly direct"
the manner of performance of the work in question , and what he did on such occasions (the
frequency of which is not established ) was "of a merely routine nature" and did not re-
quire "the use of independent judgment" within the language of the Act This is similarly true
of the occasions when Healy, while working with another machinist on Saturday , would tell the
latter that he would "have to stay" and work overtime with Healy to complete a job which re-
quired completion before a certain time The plant engineer was off duty on such occasions,
and in those instances both men knew of the time factors involved , both had received prior
instructions from the plant engineer concerning the job , and both remained until they finished
it The setting was not materially different from that in which the plant's machinists, as a
matter of custom , similarly worked overtime , in the absence of the plant engineer , and without
his prior autorization , in order to have a given job completed on time Thus what Healy did in
connection with overtime on Saturday was not to make a supervisory assignment of work, but
rather to take the lead in outlining for himself and any machinist who worked with him a policy
which was traditional among the journeymen In short, what the credited evidence establishes
is that on any occasion when Healy told a machinist to attend to a given task, he (Healy) did so
in exceptional situations within the routine framework of assignments made, and policies
established , by Healy's superior , and the individual who performed the task did no more than
he was required under his regular assignment from the plant engineer or under policies
established by the latter (as in cases of emergency breakdown of plant equipment.)23
In sum, I am convinced that Healy was no more than an administrative assistant to the
plant engineer and a nonsupervisory leadman such as may often be found among machinists;
and that it was the plant engineer , whether Wickstrom or his predecessors , and not Healy,
who was vested with and exercised whatever supervisory assignment and responsible direc-
tion of work the operation of the plant maintenance department entailed . Viewing the whole
record, I find that the position from which Healy was demoted on December 8, 1951 , was not
that of a supervisor , but that of an employee , within the meaning of the applicable definitions
of the Act.
D. Healy's union activities
The evidence relating to Healy's union activities is substantially undisputed . The sum of
the relevant evidence is, and I find, that Healy and other machinists in the plant maintenance
department were formerly members of Lodge 1546 , that in or about October 1951, some of the
men, including Healy, decided that because they were not automotive mechanics it would
better serve their interests , and they would be able to "get a job that much easier" in the
event of unemployment , if they transferred their membership to a so-called "Machinists
Local," to which machinists of their type belonged ; that several of the machinists, including
Healy, applied to an official of the International Association of Machinists for information
concerning the feasibility of the plan to transfer to a "Machinists Local", that the official
agreed with their reasoning and informally approved their plan, telling them that if they
signed "transfer cards," he would effect the transfer for them, that all of the machinists in
the department signed such cards in November 1951 in order to transfer to a "Machinists
Local" (Local 284, according to the senseofthe evidence ), 24 that they thereupon surrendered
the union books, which Lodge 1546 had issued to them, to that organization ' s shop steward
(Charles Duthie), that on one occasion , Healy asked Chernenkoff what he was "going to do"
about "changing the union to [Local] 284", that Chernenkoff replied, "Well , if the boys go
along with it I will go along with it", that Healy then told Chernenkoff that the shop steward
would "collect the books " (of Lodge 1546), that Chernenkoff-signed his transfer card about a
week or two later , and that he could not recall whether Healy was present on that occasion
23 The credible evidence does not establish that Healy performed work of a supervisory
nature even in Wickstrom 's absence (the record does not establish the extent and frequency
of any such absences , except on Saturdays ) but even in that regard , bearing in mind that
Healy devoted at least 95 percent of his time to the work of a journeyman , and substantially
the rest to routine assistance to the plant engineer, it may be noted that a production em-
ployee does not acquire a supervisory status within the meaning of the Act simply because
"during a small percentage of his working time, [he] takes over supervisory duties when (his)
supervisor is occasionally absent" (N. L R B . v Quincy Steel Casting Co., 200 F 2d 293
(C A 1).
24 Healy's card is dated November 9, 1951, and the sense of the evidence is that the other
machinists signed their cards at or about the same time
MOTHER'S CAKE AND COOKIE COMPANY 91
E. The reason for Healy's demotion
In connection with its claim that one of the reasons for Healy's demotion was his tailure
"to discipline Charles Duthie," the Respondent adduced evidence to the effect that Duthie
(who was regularly assigned as a machinist to the fancy cookie department) had a record of
absenteeism and tardiness, that Duthie spent time in the plant cafeteria with a female office
employee when he should have been at work; that Wickstrom began to notice the unauthorized
time Duthie was spending in the cafeteria "the first part of November" (1951); that he dis-
cussed the matter in that month with Ole K. Waage, the Company's secretary and office
manager, that on that occasion Wickstrom told Waage (as the latter put it) "that he was fear-
ful about doing anything about the shop steward (Duthie], because he felt there would be
repercussions" from Lodge 1546, that, in substance, Waage replied that a shop steward was
on no different footing from other employees and, like them, was subject to discipline or
discharge for improper performance, and that Wickstrom discharged Duthie, because of the
latter's delinquencies described above,25 on December 8, 1951, the date on which Healy was
demoted
Wickstrom testified that early in November, and after his conversation with Waage, he
told Healy: "This man Duthie stays off work too much. I think you should talk to him about
that", and that Healy replied that Duthie "had some personal trouble" and that he (Healy) did
"not think that is any of our business." 26 Wickstrom, according to his account, made no
reply to Healy's remarks. Later, under cross-examination, without having referred to the
matter under direct examination, Wickstrom advanced the claim that he spoke to Duthie, in
Healy's presence, during the Thanksgiving period, concerning Duthie's alleged inattention to
his work On this occasion, according to Wickstrom, he told Duthie "that he had to tend to
his work a little more, or a little better, because it seemed like Mr. Healy did not tell him to
do so"
Healy denied that Wickstrom ever discussed "Duthie's performance" with him at any time
prior to December 12, 1951 (when Healy complained of his demotion to various management
officials) or that the plant engineer discussed the matter with Duthie in his (Healy's) presence
A resolution of the credibility issue will be made later.
According to evidence adduced by the Respondent, the decision to demote Healy was made
several days before December 8 at a meeting attended by Frey, Waage, Wickstrom, and
Floyd Wheatley, the general manager of the Company Frey gave the following summary of
the meeting in his testimony:
A. As far as who said what, I cannot recall. I know that it was discussed in that meet-
ing Somebody brought up the problem, as it was, that Lawrence Healy had been dis-
cussing the question of changing the membership of the maintenance department--changing
from one lodge to another lodge
4
A. (Continuing) It was so stated in that meeting, that Mr. Healy, being a foreman and
a representative of management, certainly had no cause to coerce or suggest to any of
the employees that they transfer their affiliation, or have anything at all to do with union
activities. That he, as a supervisory employee, was not entitled to do that.
In addition to that, it was brought up that one of the maintenance employees (Duthie)
had been noticeably lax in his duties, being tardy; and that it had carried on for quite a
time this way and no disciplinary action had been taken The general feeling of those
present was that he (Healy) should be demoted from foreman back to a journeyman's
status.
%Duthie's original (but not amended) charge alleges that his discharge was discrirnina-
tory. There is evidence that he was the shop steward for Lodge 1546 at the time of the mem-
bership transfer and that he engaged in various activities in relation to the transfer. The Re-
spondent adduced evidence of Duthie's attendance record for the period from September 26
to December 8, 1951. The evidence does not establish Duthie's record prior to that period
In the light of findings made below concerning the alleged failure by Healy "to discipline"
Duthie, and the reason for Healy's demotion, I deem it unnecessary to pass on, and do not
decide, the cause of Duthie's absenteeism and tardiness and the reason for his discharge.
SUnder cross-examination, Wickstrom gave a somewhat different version of what he
allegedly told Healy, quoting himself as telling Healy "that he should correct the man and
don't have him keeping that long a time in the cafeteria "
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although stating his uncertainity about the matter , at another point Frey expressed the
belief that it was Waage who brought up the subjects allegedly discussed at the meeting
Much of Waage 's version of the meeting is not significantly different from that given by
Frey, but there are deviations which should be noted . According to Waage's account , in addi-
tion to the discussion of the Duthie matter and the change of union affiliation , he stated at
the meeting that Healy was "discriminatory in his treatment of the people " (machinists) in
"the assignment of jobs," and because "certain people could take longer relief periods; ...
could come in late to work ." Additional reference to this testimony will be made later, but
it is well to note here, in the interest of clarity of issues , that , aside from the claim that
Healy misconducted himself with respect to the change of union affiliation, the Respondent's
only other position , as reflected in its brief , in relation to any alleged dereliction by Healy
is that he "failed to discipline " Duthie.
Wickstrom ' s account of what he heard at the meeting , and of the instructions he received
there, is not quite in harmony with testimony Waage gave . According to Wickstrom, he
arrived at the meeting late. He denied, in effect , that he overheard any discussion of Healy's
union activities , stating , in substance , that he did not know at any time prior to the demotion
that Healy "had anything to do" with the change of union affiliation , and he asserted that what
he "gathered at the meeting" was "only that he [Healy ] did not order his men around prop-
erly" and "tend to Mr Duthie", and that these were the reasons for Healy ' s demotion
assigned at the meeting by Waage Waage agreed that Wickstrom came late, but asserted
that the plant engineer was present " the major part of it "; that prior to Wickstrom 's arrival
there " may have been some ... preliminary discussion" of "Healy's record from the time
he started with the Company "; and that to the best of his (Waage ' s) knowledge , Wickstrom
was present during the portion of the discussion relative to Healy's union activities as a
reason for the demotion . According to Waage, in substance , he instructed Wickstrom "to
convey" to Healy what the plant engineer "had heard [in] the discussion between [Waage] and
Mr Wheatley."
Wickstrom informed Healy of his demotion on December 8. There is conflict between their
versions of what passed between them at that time . According to Healy , Wickstrom told him
that he would " no longer be foreman," agreed that Healy's work was satisfactory, dis-
claimed personal responsibility for the demotion , asserting that the decision " came out of a
meeting ," and, in response to Healy's request for the reason given at the meeting , stated that
the reason assigned was that Healy had not been "enough of a company -man." Wickstrom's
version on direct examination was: "I told him that the office had held a meeting and we felt
that he did not do the duties right as a foreman, and that is why we had to demote him start-
ing Monday; and that he would have to start work Mondays to Friday night , instead of Tuesday
to Saturday as he had been working before " Under cross-examination , Wickstrom stated
that he told Healy in demoting him that the reason "he wasn' t a good foreman" was because
"he did not tend to the Duthie case in the way that we thought he should ." At still a later
point, Wickstrom testified that he told Healy that the latter was being demoted because he
..was not handling the men correctly" in addition to his failure to "tend to this Duthie case"
(emphasis supplied ). In this section of his testimony , Wickstrom also stated that he told
Healy at the time of the demotion " that he was not ordering the men around properly."
Wickstrom 's shifts of position concerning what he told Healy at the time of the demotion
have a bearing on Wickstrom ' s credibility , but passing that matter for the time being, it may
be noted again , in order to keep the issues clear , that the Respondent ' s brief assigns as the
reasons for Healy's demotion the two grounds mentioned before and no such generalization
that Healy "was not ordering the men around properly." Significantly , both on that score
and on the question of Wickstrom ' s reliability as a witness , he admitted at one point that "the
only criticism" he had of Healy "was that he was not handling the Duthie case properly."
Moreover , he gave apparently self-contradictory testimony on the question whether he had
ever "made any complaint . . or report" to Waage that "aside from Duthie , ... Healy was
not ordering the men around properly ." At first, he stated that he had not done so, but later
he testified that he had "discussed with Waage " on "the 1st of October " that Healy "was not
giving his orders right."
I am unable to accept Wickstrom ' s claim that he imposed any duty upon Healy with respect
to Duthie , and that he spoke to Duthie in Healy's presence . It seems implausible to me, in
the light of my appraisal of Wickstrom , that he would make no response to a statement by
Healy that what Duthie was allegedly doing was none "of our business ." On that score, it
may be noted that despite Healy's alleged response , at least implying a refusal to do anything
about Duthie , Wickstrom admittedly said nothing to Duthie for a matter of as much as some
weeks (until "Thanksgiving time" ). Now, the Respondent ' s own records (Respondent's Ex-
MOTHER'S CAKE AND COOKIE COMPANY 93
hibit No. 4) reflect a substantial amount of tardiness and absenteeism by Duthie throughout
November, and in the face of the records, it seems strange that Wickstrom, after receiving
the response from Healy which he describes, should wait a substantial period before talking
to Duthie Another significant point emerges from Waage's testimony. According to Waage,
when Wickstrom spoke to him about Duthie in November, the plant engineer said that he had
spoken to Healy concerning Duthie's alleged inattention to his work F In that connection,
Waage was asked at the hearing whether Wickstrom had quoted Healy as saying what "he
would do about" Duthie, and Waage replied that Wickstrom told him that "Healy did not make
any comment " I do not credit Wickstrom's testimony that he spoke to Healy about Duthie in
November, or to Duthie in Healy's presence during that month, and I find that the plant en-
gineer never discussed "Duthie's performance" with Healy at any time prior to the latter's
demotion.
Turning to the disputed issue of what passed between Healy and Wickstrom at the time of
the demotion, I am similarly unable to accept Wickstrom's version. Waage's testimony sug-
gests, if nothing more, and contrary to Wickstrom's claim, that the plant engineer was present
during the discussion of Healy's participation in the change of union affiliation at the meet-
ing where the decision to demote Healy was allegedly made. Moreover, Waage claims that he
instructed Wickstrom "to convey" to Healy the reasons for Healy's demotion which the plant
engineer had heard in a discussion of the matter between Waage and the general manager.
Significantly, also, Waage was asked at the hearing which of the "objections" to "Healy's
conduct" he regarded "as the most important," and he replied, "I think I would give greater
weight to the fact that he was placing the Company in jeopardy by his union activities."
Taking all the circumstances into account, I am unable to credit Wickstrom's denial that he
had no knowledge at any time prior to the demotion that Healy had any connection with the
change of union affiliation, and in the light of Waage's testimony, to say nothing of the other
infirmities in Wickstrom's testimony, Healy's version of the conversation on the occasion of
his demotion is more plausible than Wickstrom's. As already noted, the plant engineer
claims that he told Healy not only that he was being demoted because he had failed to "tend"
to Duthie, but because he "was not handling the men correctly" and "was not ordering the
men around properly." Aside from the claim with' respect to Healy's alleged inattention to
Duthie, the record is barren of any concrete evidence to support Wickstrom' s generaliza-
tion. xa These are plainly at variance with his admission that "the only criticism" he had of
Healy "was that he was not handling the Duthie case properly." Moreover, as stated earlier,
Wickstrom apparently contradicted himself on the question whether he had ever "made any
complaint . or report to Waage that aside from Duthie, . . Healy was not ordering the
men around properly " I do not believe Wickstrom's version of what he told Healy at the time
of the demotion. I credit Healy's account
As noted earlier, Waage's description of the meeting at which it was allegedly decided to
demote Healy varies substantially at points from Frey's account. Waage quotes himself as
telling the group that "it was brought to my attention that Healy was being discriminatory in
his treatment of the people" in "the assignment of jobs," and because "certain people could
take longer relief periods; . . could come in late to work " In that connection, it may first
be observed that there is no credible, probative evidence to support these generalizations
When asked to identify what individuals had been favored by Healy, Waage mentioned Duthie
and generalized that "we had the feeling that Eugene Manning from time to time would get
preferred treatment." He admitted that he had no "direct knowledge" of any favoritism
shown Manning, that he had never made any investigation to determine whether there was any
basis for the "feeling" concerning Manning , that he made no report to the "superintendent"
(general manager ) concerning the alleged preferred treatment of Manning, and that he never
voiced any criticism of Wickstrom either to that individual or to the general manager for
permitting Healy to engage in the conduct charged against the latter. Second, as will appear
later , at a meeting on December 12, when Healy sought an explanation for his demotion from
management representatives, Waage advanced as reasons for the demotion that Healy had
tolerated Duthie's conduct, and had "pressure[d]" others "to join another tmion." There
Waage said nothing about any other alleged shortcomings of Healy. Third, in the light of
Wickstrom's admission that "the only criticism" he had of Healy was with respect to his
"handling [of] the Duthie case," and of the plant engineer 's statement at one point that he had
rr It may be noted that, contrary to the sense of Waage's testimony, Wickstrom claims that
he discussed Duthie with Waage before he (Wickstrom) allegedly told Healy to talk to Duthie.
u When asked "what information" he had to support the statement that Healy "was not
ordering the men around properly," Wickstrom generalized that "the men were not congenial
in the shop," that "there was lots of tension in the shop," and that Healy's failure to give
"them their orders properly" created "friction in the shop."
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
never complained or reported to Waage that "aside from Duthie, . . Healy was not ordering
the men around properly," it seems peculiar that Waage, who was plainly not as closely as-
sociated with Healy as Wickstrom, should enlarge as he did, and to an extent Wickstrom did
not, upon Healy's alleged shortcomings. Waage's claim of what he allegedly said at the
meeting concerning Healy's alleged "discriminatory . . treatment of the people" is of a
piece, however, with the generalizations of Wickstrom described above. I am persuaded that
the generalizations of both Waage and Wickstrom are no more than efforts to bolster, with
generalized descriptions of other alleged supervisory shortcomings of Healy, an unfounded
claim that he was under some duty "to discipline" Duthie and had failed to do so
Healy was not satisfied with Wickstrom's explanation that he had not been "enough of a
company-man," and he sought a meeting with management representatives. Such a meeting
was held on December 12, and was attended by Healy, Frey, Waage, Wickstrom, and Wheatley.
He asked for the explanation he was seeking, and Wheatley told him that the reason for the
demotion was that Wickstrom was not satisfied with his work The plant engineer agreed that
such was the case, whereupon Healy pointed out that in demoting him, Wickstrom had ex-
pressed satisfaction with his work. Wickstrom denied that he had done so At that point, the
president of the Company passed by the door of the office where the meeting was being held
Healy called him in and complained that "they are trying to railroad me " Pointing to the
claim that he was "not enough of a company-man," Healy said to the president: "You know
how much I have done for this company " The president replied, "Well, they can't tell me
anything about your work, Lawrence I know better than that," and both he and Healy then
engaged in some reminiscence concerning some "good" machinist's work Healy had done.
Then Waage put in: "Well, how about Charlie Duthie? I understand Charlie Duthie is late for
work quite often, and also takes too long for coffee " Healy replied, "Well, if John (Wickstrom)
is not satisfied with his work, why doesn't he do something about it' John Wickstrom is his
boss, not me. John Wickstrom is the only man with authority to fire him around here, isn't
that right'" Waage agreed that such was the case, and then said: "Well, there was a little
matter about a union." Healy asked, "What about the union'" Waage replied, "I understand
that you have been pressuring the men out there to join another union " Healy then denied
that he had "pressure[d] anybody to join anything," and he explained that "it wasn't joining
another union at all; it was just transferring to another local of the same union, which would
have no effect whatsoever upon this company " Healy then entered a denial again that he had
"pressure[d] anybody into transferring," pointing out that he had no more authority to tell
anybody what union to join than the Company had to dictate his union affiliation to him Then
the president of the Company said, "Well, I never had any union trouble and I have been in
business for the last 30 years. I don't want any union trouble now." Healy denied that such
was his purpose, explaining that "all we wanted to do is transfer locals so that in the event a
man is laid off, he could get a job easily." With that, Wheatley ended the meetutg.29
The net result of the Respondent's claim with respect to Healy's responsibility for tolerance
of Duthie's alleged behavior has a curious aspect which is worth noting. Wickstrom, and not
Healy, was head of the plant maintenance department. Wickstrom, and not Healy, had super-
visory power to correct Duthie's alleged conductor to recommend his discharge, if not indeed
to discharge him. The plant engineer was admittedly aware of Duthie's claimed derelictions
from at least the beginning of November and was admittedly given full approval by Waage
early in that month to take corrective measures with respect to Duthie. The Respondent con-
tends, through the submission of its own records, that the instances of Duthie's absenteeism
and tardiness were of frequent occurrence throughout November and the first week of
December until Duthie's discharge. Nevertheless, all that Wickst ram claims he did to correct
Duthie was to talk to Healy early in November, and once to Duthie late that month--a claim
which I do not credit For all that appears in the credible evidence, Wickstrom sat idly by
and tolerated Duthie's alleged inattention to duty. Yet the Respondent did not even once rep-
rimand Wickstrom, ;m but instead placed the full onus of responsibility for tolerance of
29Findings concerning the meeting are based on Healy's credited testimony. His account is
substantially uncontroverted
3D At most, what there is on the subject of any alleged criticism of Wickstrom is a claim
by Waage that when he spoke to Wickstrom about Duthie in November, he asked the plant
engineer "why he hadn't done anything about it [Duthie's alleged behavior] sooner." Wick-
strom's testimony does not support Waage's claim. Even if one credits Waage, and assumes
that his inquiry sounded a critical note, it is undisputed that Wickstrom was never thereafter
criticized, although the Respondent itself contends that Duthie's alleged behavior continued
for a substantial period thereafter.
MOTHER'S CAKE AND COOKIE COMPANY 95
Duthie's alleged behavior, not upon Wickstrom whose duty in the premises was clear, but
upon Healy, who was not a supervisor, who devoted more than 95 percent of his time to work
as a journeyman machinist, and spent the rest of his time, in the main, in some routine
assistance to Wickstrom. That the Respondent is well aware of the peculiar nature of its
claim is perhaps best attested by the discussion between Healy and Waage concerning Duthie
and Wickstrom at the meeting of December 12. The undisputed evidence concerning the meet-
ing reflects a mere casual reference to Duthie by Waage, which the latter did not pursue once
Healy pointed out Wickstrom's responsibility in the premises. Significantly, also, at the meet-
ing neither Waage nor Wickstrom even mentioned the claim, which the Respondent now
asserts, that the plant engineer had instructed Healy to "talk" to Duthie about his alleged
inattention to his work. The contention, now advanced, that Healy had an obligation to correct
Duthie, and failed to discharge it, has a nebulous flavor which contributes to the conclusion
that it is no more than an effort to supply a lawful motivation for the demotion where none in
fact exists.
What emerges from the credible evidence is that not until December 12 did any representa-
tive of the Company inform Healy either that he had any obligation to correct Duthie's
alleged inattention to his work, or that he had been remiss in failing to do so. It is quite
clear to me that the claim that Healy was demoted because he "failed to discipline" Duthie
is no more than a pretext, and I find that Healy was under no duty "to discipline" Duthie or
to correct his alleged behavior, and that any omission by Healy in that regard was not the
reason for his demotion.
The extended discussion of the alleged reasons for the demotion at the meeting of December
12, which began with the generalized statement that Healy was demoted because Wickstrom
was not "satisfied" with Healy, then proceeded to a casual reference to Duthie which appar-
ently soon disappeared from the discussion, and then wound up with an extended discussion
of the claim that Healy had exerted "pressure" upon employees in the change of union affili-
ation, provides ample demonstration of the Respondent's real motivation. It is clear that what
concerned the Respondent was the change of union affiliation, and it is there that the motiva-
tion for the demotion is lodged. I have no doubt that the real reason for Healy's demotion
was his participation in the change of union affiliation, and that that was the real meaning of
Wickstrom's statement on December 8 that Healy was being demoted because he was not
"enough of a company-man "
There remains for disposition the question whether Healy's participation in the transfer
from Lodge 1546 involved any activity for which the Act affords him no protection from dis-
crimination At the hearing, as in Waage's statements to Healy on December 12, the Re-
spondent advanced the claim that Healy "pressured" other machinists into changing their
union affiliation. The claim is without merit, for if the evidence on the subject establishes
anything, it is that the machinists freely and voluntarily transferred their membership in the
exercise of their unquestionable right to do sounder the Act As noted earlier, the Respondent
contends in its brief that Healy was demoted because "he used his influence and authority as
a foreman to influence the employee machinists in the Plant Maintenance Department to
change their union affiliation, contrary to the law and ... to the established rule and policy"
of the Company. ^ The short answer to that contention is that Healy was not a supervisor
within the meaning of the Act, that the evidence indisputably establishes that the employees
voluntarily changed their union affiliation, and that Healy exercised no improper influence
over any other employee to do so. 32
21 As evidence of its "policy" and claimed justification for Healy's demotion, the Re-
spondent introduced two letters, one dated April 19, 1949, and addressed to it by Lodge 1546,
and the other a letter it wrote to Kinst on April 25, 1949. The letter from %he union complains
of alleged "unfair labor practices" by Kinst in allegedly attempting to induce employees to
change their union affiliation. The letter to Kinst in effect admonishes him for his behavior,
prohibits it, and informs him that he would be discharged for any future violation of the pro-
hibition. Apart from the fact that Healy did not engage in the type of behavior ascribed to
Kinst, the important point is that Kinst was a supervisor within the meaning of the Act, and
Healy was not, and the Company's "policy" has no bearing on the legality of Healy's demotion.
I The Respondent apparently rests its claim of "influence" by Healy over other employees
solely on the contention that he was a supervisor and had a conversation with Chernenkoff
during which Healy asked Chernenkoff what he was "goingtodo" about "changing to[Local]
284." I deem it unnecessary to pass on the legal import of such an inquiry had Healy been a'
supervisor. The fact is that Healy was not a supervisor and it is clear that the inquiry was
lawful
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Healy was demoted because he changed his union affiliation and participated with
the other employees in the transfer from one labor organization to another, and that by de-
moting Healy, the Respondent violated Section 8 (a) (1) and (3) of the Act xt
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 descr'bed in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and such ac-
tivities as have been found to constitute unfair labor practices tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed to them by Section 7 of the Act, I shall recommend
that it cease and desist from such conduct.
Having found that the Respondent has discriminated in regard to the terms and conditions
of employment of Lawrence Healy by reducing his wages and demoting him to an inferior
position, I shall recommend that it immediately reinstate him to the position from which it
demoted him on December 8, 1951, without prejudice to his seniority and other rights and
privileges, paying him for his work in such position the wage rates he would have continued
to receive, but for the demotion, and that the Respondent make the said Lawrence Healy whole
for any loss of pay he suffered by reasonof the discrimination against him, by payment to him of
a sum of money equal to the amount he would have earned and would have continued to earn,
but for his demotion, until his reinstatement and restoration of his wage rates, as recom-
mended above, less the wages he has received since his demotion, and will continue to re-
ceive until his reinstatement and restoration of his wage rates , as recommended above. The
Respondent will be required upon reasonable request to make available to the Board and its
agents all records pertinent to an analysis of the amount due as back pay or to the reinstate-
ment and restoration of wage rates, as recommended herein. X
Upon the basis of the foregoing findings of fact, and upon the entire record in this proceed-
ing, I make the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, Local Lodge 284, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act
2. By interfering with, restraining , and coercing its employees in the exercise of rights
guaranteed to them by Section 7 of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By discriminating in the terms and conditions of employment of Lawrence Healy, as
found above , thereby discouraging membership in a labor organization , the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act
4 The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
IRecommendations omitted from publication.]
83 The complaint does not allege, as separate violations of Section 8 (a) (1), Wickstrom's
statement that Healy was being demoted because he was not "enough of a company-man" and
Waage's statements on December 12 concerning Healy's union activities. As the incidents in
question were fully litigated, findings that the relevant statements separately violated Section
8(a)(1) may be made even in the absence of allegations concerning them. Olin Industries, Inc.,
86 NLRB 203, enforced 191 F. 2d 613 (C. A. 5); American Newspaper Publishers v. N. L. R. B.,
193 F . 2d 782 (C. A. 7). However , I make no such findings as I deem the remedial order rec-
ommended below a sufficient effectuation of the policies of the Act with respect to this pro-
ceeding.
'As Healy has continued to work for the Respondent as a journeyman machinist since his
demotion, I deem it unnecessary to recommend thecomputation of his back pay on a quarterly
basis as in F. W. Woolworth Company, 90 NLRB 289.
NEW BIG CREEK MINING COMPANY
APPENDIX A
NOTICE TO ALL EMPLOYEES
97
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT discourage membership by any of our employees in International Asso-
ciation of Machinists, Local Lodge 284, AFL, or any other labor organization , by dis-
criminating in any manner in regard to any term or condition of employment of any of
our employees.
WE WILL NOT in any other like or similar manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form, join , or assist
labor organizations , to join or assist International Association of Machinists, Local
Lodge 284 , AFL, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection , and to refrain from any or all of such activities , except to the
extent that such right may be affected by an agreement requiring membership in a labor
organization as a• condition of employment , as authorized in Section 8 (a) (3) of the Act.
WE WILL reinstate Lawrence Healy to the position from which he was demoted, with-
out prejudice to his rights and privileges, at the wage rates he would have continued to
receive but for his demotion , and make him whole for any loss of pay he suffered as a
result of the discrimination practiced against him.
All our employees are free to become or remain members of any labor organization, ex-
cept to the extent that this right maybe affected by an agreement conforming to the applicable
provisions of Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure
of employment, or any term or condition of employment, against any employee because of
membership in or activity on behalf of any such labor organization.
MOTHER'S CAKE AND COOKIE COMPANY,
Employer.
Dated ................ By........................................................................................... .
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
NEW BIG CREEK MINING COMPANY and EARL RICE AND
PEARL GIBSON. Case No. 9-CA-508. May 29, 1953
DECISION AND ORDER
On April 7, 1953, Trial Examiner Arthur Leff issued his
Intermediate Report in the above - entitled proceeding , finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices in violation of Section 8 (a) (1) of the
Act and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not violated Section 8 ( a) (3) and
(1) of the Act by terminating the employment of Earl Rice
105 NLRB No. 17.