Purity Biscuit Company, a Corporation

National Labor Relations Board - Board Decisions

Jul 24, 1939

13 N.L.R.B. 917 (N.L.R.B. 1939)

In the Matter of PURITY BISCUIT Co4ANY, A CORPORATION and
BAKERY & CONFECTIONERY WORKERS I INTERNATIONAL UNION OF
AMERICA, LOCAL No. 424
Case No. C-753.-Decided July 04, 1939
Pastry Manfactuuring Industry-Interference, Restraint , and Coercion: Do
findings as to, because of compliance with Trial Examiner 's recommendation ;
complaint not dismissed since recommendations contemplate a continuing course
of conduct-Collective Bargaining : charges of refusal to bargain not sustained-
Discrimination : charges of, not sustained.
Mr. Newell N. Fowler, for the Board.
Mr. L. H. Callister and Mr. Edward F. Richards, of Salt Lake
City, Utah, for the respondent.
Mr. Robert Burstein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Bakery & Con-
fectionery Workers International Union of America , Local No. 424,
herein called the Union, the National Labor Relations Board , herein
called the Board, by the Regional Director for the Twenty-second
Region (Denver, Colorado), issued its complaint dated April 13,
1938, against Purity Biscuit Company, a Corporation, Salt Lake
City, Utah, herein called the respondent, alleging that the respond-
ent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1), (3), and
(5) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint, accom-
panied by notice of hearing, were duly served upon the respondent
and the Union.
tiVith respect to the unfair labor practices, the complaint alleged
in substance that on September 20, 1937, and thereafter, the respond-
ent, by refusing to make a bona fide attempt to reach an agreement,
refused to bargain collectively with the Union as the exclusive
representative of the production and maintenance employees of the
13 N. L. R. B., No. 95.
917
187930-39-vol 13-59
918 DECISIO NS OF NATIONAL LABOR RELATIONS, BOARD
respondent, said employees constituting an appropriate bargaining
unit; that on or about October 21, 1937, by reason of such refusal
to bargain, a majority of the employees of the respondent went on
strike; that on said date and at all times thereafter the respondent
continued to refuse to bargain collectively with the Union and re-
fused to recognize the Union as the exclusive representative of its
employees in the appropriate unit; that on or about December 1,
1937, and on other dates, the respondent refused to reinstate 21
named employees, who had gone on strike, for the reason that they
had encouraged and assisted the Union ; and that by the afore-
mentioned acts and by other acts the respondent interfered with,,
restrained, and coerced its employees in the exercise of the rights,
guaranteed in Section 7 of the Act.
The respondent filed an answer dated April 19, 1938, denying in
substance the alleged unfair labor practices, and requesting that the
complaint be dismissed.
Pursuant to notice, a hearing was held in Salt Lake City, Utah,
on April 22, 23, 25, 26, and 27, 1938, before Jesse E. Jacobson, the
Trial Examiner duly designated by the Board. The Board and the
respondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was
afforded all parties.
At the close of the hearing, counsel for the Board moved that the
complaint and the charge be amended to conform to the proof. The
motion was granted. At the close of the hearing, counsel for the
respondent moved that the complaint be dismissed on the ground
that its allegations were not sustained by the evidence. The Trial
Examiner reserved ruling on this motion and thereafter, in his Inter-
mediate Report, denied it. We have reviewed these rulings and all
the other rulings made by the Trial Examiner on motions and on
objections to the admission of evidence and find that no prejudicial
errors were committed. The rulings are hereby affirmed.
On July 5, 1938, the Trial Examiner filed his Intermediate Report
in which he found that the respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section
8 (1) and (5) of the Act but not within the meaning of Section 8 (3)
of the Act, and recommended that the respondent cease and desist
from the unfair labor practices found, bargain collectively with the
Union, reinstate, upon application, all the striking employees, and
post a notice stating that it will cease and desist from the unfair
labor practices and bargain collectively with the Union. No excep-
tions have been filed to the Intermediate Report. The parties,
PURITY BISCUIT COMPANY 919
although accorded an opportunity for oral argument before the
Board, made no request therefor.
The Regional Director has notified the Board that the respondent
has complied with the recommendations in the Intermediate Report
with respect to the posting of a notice and the reinstatement of
strikers, but has not complied with the recommendation that it
bargain collectively with the Union.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT 1
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Utah corporation having its office and place
of business and operating a manufacturing plant at Salt Lake City,
Utah. It is engaged in the business of manufacturing and selling
cookies, cakes, and crackers.
The materials used by the respondent in the course of manufacture
consist of flour, sugar, shortening, and packing cartons. The ap-
proximate amounts of such materials used by the respondent during
the year 1937 are as follows : 15,000 barrels of flour manufactured
for the respondent within the State of Utah from -heat, 80 per cent
of which originated outside of the State; 420,000 pounds of sugar,
3 per cent of which was purchased outside of the State; 44,000 pounds
of shortening, all of which was purchased within the State; and
packing cartons aggregating $30,000 in cost, 60 per cent of which
were purchased outside of the State. During the same period, ap-
proximately 38 per cent of the respondent's output, valued at $568,706,
was sold outside of the State.
II. THE ORGANIZATION INVOLVED
Bakery & Confectionery Workers International Union of America,
Local No. 424, is a labor organization affiliated with the American
Federation of Labor, admitting to membership employees of the
respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain collectively
The respondent's employees began to organize early in August
1937, and by the latter part of September, a substantial number of
them had joined the Union. On September 20, 1937, negotiations
The facts concerning the business of the respondent are taken from Board Exhibit
No 2, a stipulation entered into between counsel for the respondent and counsel for the
Board.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were begun between the respondent and the Union with regard to
an agreement covering the matter of wages, hours, and working con-
ditions. On that day, Paul Peterson, president of the State Federa-
tion of Labor, submitted on behalf of the Union a proposed contract
as a basis for negotiations. V. A. Tracy, the president of the re-
spondent, agreed to examine the contract and then meet again with
the representatives of the Union. At the next two conferences, which
were held on about September 25 and October 1, Tracy explained
that the respondent had for the past several months been operating
at a loss, and that the Union's request for a raise was premature.
Tracy also indicated that he was opposed to the union-shop provision
contained in the contract. However, the conference of October 1
closed with the understanding that negotiations would be resumed
at a later date.
The contract was discussed in detail at conferences held on about
October 16 and 18. The discussion began with the union-shop pro-
vision which required that "all employees hired must be members in
good standing in the Union or become members in good standing
within twenty days after the date of employment." Callister, the
respondent's attorney, declared that the respondent would not agree
to such a provision. Peterson at first stated that under such circum-
stances it would be impossible for him to discuss the balance of the
contract. Upon reconsideration, however, he agreed to do so. The
respondent agreed to the provisions of the contract with respect to
a 45-hour week, holidays, vacations, and a full hour lunch period;
offered as counterproposals 5- and 10-cent raises for employees in
certain departments in place of the wage scale provided in the con-
tract, time and one-third for all overtime in lieu of time and one-half;
a modified seniority clause pursuant to which qualifications of em-
ployees as well as seniority would be considered, rest periods only
for employees in the bake shop and shipping department, a check-off
not in excess of an amount permitted by the State statute, and an
arbitration clause providing that the representatives of the employees
shall be selected by the employees themselves rather than by the
Union; and refused to agree to a guaranty of 4 hours' pay to em-
ployees required to report at the usual starting time for the day's
work.
On October 20 the members of the Union met. Peterson read to
them the changes in the contract proposed by the respondent and rec-
ommended against their acceptance. He was instructed by the mem-
bers to inform the respondent that the contract would be rejected
unless the respondent agreed to the union-shop provision or to all the
other provisions in the contract. Peterson telephoned Tracy and
Callister the same night, and informed them of the action taken by
PURITY BISCUIT COMPANY 921
the Union. Both Tracy and Callister replied that the respondent was
unable to make further concessions. On the following day the em-
ployees went on strike.
Beginning on about November 8 further conferences were held.
The results were negative. Peterson testified that Tracy, either at
the first or second of these conferences, remarked that there was
nothing to negotiate and that the previous offers made by him were
withdrawn. However, according to the testimony of Larippa, a
member of the executive board of the International who attended
these conferences, Tracy stated that he "would make good" the previ-
ous offers. Whether or not Tracy in fact said that the offers were with-
drawn, he showed a continued willingness to meet and bargain with
representatives of the Union. It is clear on the record that the union-
shop provision was again the real obstacle in the way of reaching an
agreement. During the course of these conferences Callister repeat-
edly asked Larippa to state his position regarding the union-shop
provision on the ground that an understanding had been reached on
practically all the other provisions and that such provision was the
cause of the impasse reached in the negotiations prior to the strike.
Larippa refused to make any commitment on the union-shop ques-
tion, stating that his position with respect thereto would depend on
the balance of the contract. Callister in turn insisted that this provi-
sion be disposed of first.
At a conference on December 7, Larippa finally made a written
offer in which he agreed to "leave the wage question open for nego-
tiation for a period of ninety (90) days" and "waive the union shop"
provision, if the respondent would discharge all the employees hired
since the strike and reinstate the strikers. Larippa clearly indicated
that the discharge of new employees was a condition to a termination
of the strike and resumption of negotiations. Tracy declared that he
would summon the striking employees back to work as rapidly as
production permitted but that he would not discharge any new em-
ployees. He promised, however, to confer with other officers of the
respondent and give a definite answer in 2 or 3 days. Thereafter,
he instructed Callister to notify' the union representatives that
Larippa's offer was rejected. There is a conflict in the testimony
with respect to whether either Larippa or Callister was expressly
notified of such rejection. The record shows, however, that Larippa
had occasion to confer with Callister on other matters during Janu-
ary and February 1938, and never mentioned either his offer of
December 7 or the proposed contract. Early in March Larippa tele-
phoned Tracy and requested a conference to attempt a settlement of
the dispute. Tracy replied that he had been away for a month and
suggested that Larippa discuss the situation with Callister. Larippa
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not do so, although he was in Callister's office on another matter
shortly thereafter.
Under all the circumstances we believe that it has not been estab-
lished that the respondent has refused to bargain collectively with
the Union as the representative of its employees. The record shows
that prior to the strike the respondent bargained in good faith by
meeting some of the union demands and offering counterproposals
as to others. An impasse was reached and the strike was called
largely, because of the Union's insistence on and the respondent's
1 efusal to agree to the union-shop provision. After the strike the
respondent not unreasonably demanded that the union-shop provision
be disposed of first in order to remove the major obstacle in the way
of an understanding. After the respondent's rejection of Larippa's
offer of December 7, conditioned on the discharge of new employees,
no further proposals were submitted by the Union. The termination
of negotiations is not altogether attributable to the respondent.
Although Larippa asked Tracy for a conference early in March, he
failed to communicate with Callister in accordance with Tracy's sug-
gestion which was not unreasonable in view of the latter's prolonged
absence from the plant.
We find that the respondent has not refused to bargain collectively
with the representatives of its employees. In view of our finding a
determination on the questions of majority and appropriate unit are
not necessary.
The allegations of the complaint that the respondent refused to
bargain collectively with the Union as the representative of the
employees in the appropriate unit will be dismissed.
B. The alleged interference, restraint, and coercion
The Trial Examiner, in his Intermediate Report, found that the
respondent by refusing to bargain collectively with the Union and
by interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, had en-
gaged in and was engaging in unfair labor practices within the mean-
ing of Section 8 (1) of the Act. Since we have found that the
respondent has not refused to bargain collectively with the Union,
and since the respondent has posted the notice required by the Trial
Examiner to the effect that it will cease and desist from any of the
unfair labor practices found by the Trial Examiner, we believe it
unnecessary, under the circumstances, to make any findings as to
whether the respondent has interfered with, restrained, or coerced its
employees in the exercise of the rights guaranteed by Section 7 of
the Act. We shall not, however, dismiss the complaint in so far as it
PURITY BISCUIT COMPANY 923
alleges that the respondent has engaged in unfair labor practices
within the meaning of Section 8 (1) by acts other than the alleged
refusal to bargain and the alleged discrimination, since the recom-
mendation of the Trial Examiner in this respect contemplates a
continuing course of conduct on the part of the respondent.
C. The alleged discrimination
The complaint alleges that the respondent refused to reinstate 21
named employees, who had gone out on strike, for the reason that
they had encouraged and assisted the Union. We find that the evi-
dence does not sustain the allegations of the complaint in this re-
spect and we concur in the Trial Examiner's recommendation that
they be dismissed. Since no exceptions have been taken to the Inter-
mediate Report in this respect, we will not discuss the alleged
discrimination in detail.
We find that the respondent has not discriminated in regard to
hire or tenure of employment of the 21 employees named in the com-
plaint, thereby discouraging membership in a labor organization.
The allegations of the complaint with respect to such individuals
will therefore be dismissed.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Bakery & Confectionery Workers International Union of
America, Local No. 424, is a labor organization, within the meaning
of Section 2 (5) of the Act.
2. The operations and business of the respondent occur in com-
merce, within the meaning of Section 2 (6) of the Act.
3. The respondent has not refused to bargain collectively with the
representatives of its employees, thereby engaging in an unfair labor
practice, within the meaning of Section 8 (5) of the Act.
4. The respondent has not discriminated in regard to hire or
tenure of employment, thereby discouraging membership in a labor
organization and engaging in an unfair labor practice, within the
meaning of Section 8 (3) of the Act.
5. The respondent has not, by any refusal to bargain collectively
or discrimination in regard to hire or tenure of employment, inter-
fered with, restrained, or coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, thereby engaging in an
unfair labor practice, within the meaning of Section 8 (1) of the
Act.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board orders that the com-
plaint against Purity Biscuit Company, a Corporation, in so far as
it alleges that the respondent has engaged in unfair labor practices
within the meaning of Section 8 (3) and (5) of the Act and that,
by a refusal to bargain collectively and by discrimination in regard
to hire or tenure of employment, it has engaged in an unfair labor
practice within the meaning of Section 8 (1) of the Act, be, and
it hereby is, dismissed.
MR. WmuAx M. LEISERSON took no part in the consideration of
the above Decision and Order.