Roskam Baking Co.

National Labor Relations Board - Board Decisions

Jun 18, 1963

142 N.L.R.B. 1173 (N.L.R.B. 1963)

ROSKAM BAKING COMPANY 1173
Roskam Baking Company and American Bakery and Confec-
tionery Workers' International Union , AFL-CIO, Charging
Party. Cases Nos. 7-CA-3899 and 7-CA-3899(2). June 18, 1963
DECISION AND ORDER
On March 15, 1963, Trial Examiner George L. Powell issued his In-
termediate 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 attached Intermedi-
ate Report. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices, and recommended
that the complaint be dismissed as to such allegations. Thereafter, the
General Counsel filed exceptions to the Intermediate Report and a sup-
porting brief, and Respondent filed a brief in support of the Inter-
mediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with these cases to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
proceeding, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith.
1. The Trial Examiner found that Respondent violated Section
8(a) (1) of the Act by interrogating employees Fluegel, Fitz, Storey,
and Markle as to employee union activity ; by a general threat of
reprisal against union adherents made to employee Storey; by request-
ing employee Fitz to engage in surveillance of the union activities of
other employees; and by promising economic betterment to employee
Williamson if he would refrain from union activities and assist man-
agement by influencing other employees to refrain from union activi-
ties. The Respondent has not excepted to these findings. We agree,
for the reasons set forth by the Trial Examiner, that the Respondent
violated Section 8(a) (1) in the particulars indicated. However, we
find, contrary to the Trial Examiner, and in agreement with the con-
tention of the General Counsel, that by indicating to employees Fitz
and Markle that it had a list containing the names of those who at-
tended a union meeting on September 8, and by advising Fitz that the
Company was aware of just about all the employees who were there,
the Respondent created an impression that it was engaging in surveil-
142 NLRB No. 121.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lance of employee union activity, and that such conduct was also in
violation of Section 8 (a) (1) of the Act.'
2. We also find, contrary to the Trial Examiner, that the Respondent
violated Section 8(a) (3) and (1) of the Act by both the discrimina-
tory demotion of employee Storey and the termination of employee
Markle.
The record shows that the attempt to organize Respondent's plant
began when employees Storey and Williamson, on September 5, 1962,
solicited other employees to execute authorization cards designating
the Union as their bargaining representative. The Respondent em-
ployed some 28 employees. By September 7, Williamson and Storey
had obtained signed cards from about 22 employees. On the same day,
the Union informed Respondent that it represented a majority of the
employees. It also advised the employees of a meeting to be held on
Saturday, September 8. On the morning of September 8, Donald
Roskam, Respondent's president, questioned employees Fitz and
Fluegel concerning their plans to attend the meeting that afternoon,
and Roskam directed Fitz to attend and find out what went on there.
On September 10, Foreman McClaskey interrogated employee Storey
as to his reason for signing a card, telling him that "everybody con-
nected with or having anything to do with the Union wouldn't be
around to see it go through." On September 11, Fitz was told to report
to Donald Roskam who questioned Fitz both as to what went on at
the meeting and who did the talking. Roskam showed Fitz a list of
the employees who had attended the meeting on September 8, and ex-
pressed his dissatisfaction with employees whom he had helped, and
commented that these employees had shown their gratitude for such
help by "trying to pull the Union on me." On the morning of Septem-
ber 18, Markle was asked by Foreman McClaskey whether he had
signed a card, and Markle denied having done so. Shortly thereafter,
M. C. Roskam, Respondent's secretary and Donald Roskam's father,
asked Markle his name. That same day, M. C. Roskam had a conversa-
tion with employee Williamson, after Williamson had punched out at
the end of his shift, in the course of which Roskam told Williamson
that he had a foreman position for him if he proved he was for the
Company by helping to convince other employees that the Union was
not in their best interest. That afternoon Markle was again ap-
proached by M. C. Roskam who asked why Markle had lied as his
name was on a list of those attending the union meeting.
It is undisputed that the Respondent had knowledge of Storey's
union activities. Storey was active in soliciting cards and, as the
Trial Examiner found, had been the object of unlawful interrogation
by Foreman McClaskey as well as the recipient of McC'laskey's threat
that "everybody connected with or having anything to do with the
' Brown Transport Corp ., 140 NLRB 954.
ROSKAM BAKING COMPANY 1175
Union wouldn't be around to see it go through." On September 24,
1962, or approximately 2 weeks after the interrogation by McClaskey,
Storey was demoted from his maintenance job to a production job
carrying a lower rate of pay.
The Trial Examiner was of the opinion that there was evidence
that "would have great weight and would tend to establish an infer-
ence that the true motivation for the transfer of Storey was his union
activities . . . ," but he found that in demoting Storey the Respondent
was not motivated by antiunion considerations but by reasonable
doubts as to Storey's fitness to continue as a maintenance worker. We
do not agree.
Storey had been hired as a production worker in April 1962. As
far as the record discloses, the Respondent voiced no complaint about
Storey's ability as a worker generally or his ability to perform the
particular work he was doing. In June 1962, Storey asked the Re-
spondent for the job of maintenance man which had been vacant for
some time. Apparently Storey possessed little, if any, experience in
bakery maintenance work but that fact was known by Respondent.
Nevertheless, after some deliberation, Foreman McClaskey, who was
in charge of maintenance, agreed to let Storey have the maintenance
job on a trial basis. Storey worked uninterruptedly in his mainte-
nance job until demoted by Donald Roskam on September 24.
In concluding that Storey's demotion was due to the fact that he was
unsuitable for maintenance work, the Trial Examiner relied upon
Donald Roskam's testimony that he was so informed by his production
supervisors, Wright, Warfield, and Sieracki. Neither Wright nor
Warfield testified at the hearing. Sieracki, who was not the supervisor
immediately responsible for Storey's work, testified that he had no
recollection of ever discussing Storey's abilities as a maintenance
man with other supervisory people, and could recall only one instance
in which Storey was unable to perform an assigned task 2 Mc-
Claskey, on the other hand, admitted that, after a very brief period,
Storey was permitted to work alone with full and sole responsibility
for maintenance during the greater portion of the workdays and Sun-
days, when McClaskey was not present. Furthermore, the record is
devoid of any evidence that Storey had ever been criticized for in-
competence generally or for failure to perform any phase of his main-
tenance work satisfactorily, nor was he ever informed, that he would
be relieved of his maintenance work as soon as an adequate replacement
could be found. Indeed, McClaskey admitted that, based on Storey's
performance at the outset, he believed Storey was going to make a
2 The incident related to the unplugging of a flour line on which occasion Foreman
McClaskey had to be called in to help Storey . However, the record shows that this job was
described as usually the work of two men.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good maintenance man, and offered no particular reason for changing
his mind after consulting with Donald Roskam 3
Wire are convinced, on the basis of the foregoing, that the reason
assigned for Storey's demotion was a mere pretext and that Storey
was unlawfully demoted because of his union activities in violation
of Section 8 (a) (3) and (1) of the Act.
Roger Markle was separated from his employment on October 2,
1962.' He was hired in May 1962 as a production worker and subse-
quently transferred to janitorial duties. He worked continuously in
that capacity until discharged. He was one of three janitors on the
day shift, and his duties consisted of cleaning the lunchroom, the
locker rooms, the general office area, the bakery superintendent's office,
the conference rooms, the wrapping machine area, the clock area, and
the bread rack area. Markle had signed a union card and was on
the Respondent's list of those attending the union meeting. Thus,
there is no question that Respondent had knowledge of Markle's union
interests. While there was no evidence to show that Markle was other-
wise active in union affairs, it appears that in the course of Respond-
ent's unlawful interrogation of employees Markle was first asked by
McClaskey and Ihen by M. C. Roskam whether he had signed a union
card. Markle denied having done so. The Trial Examiner credited
Mai tile's account of these incidents which took place on the morning
of September 18. In a second encounter that day M. C. Roskam ac-
cused Markle of having lied to him, stating that he had a list in his
office and that Markle's name was on it.
As the Trial Examiner observed, it could be said in Markle's case.
as in Storey's, that an inference might lie that Markle was laid off
because of his union activities if the reason given by the Remonc'ent
was not to be credited. The testimony which the Trial Examiner
credited was Donald Roskam's statement that he laid off three janitors
out of a total of five, because it costs less money this way."
We accept the Trial Examiner's finding that the facts justify an
inference that Markle was laid off because of union activity. How-
ever, we are unable to conclude, as did the Trial Examiner, that
Markle's discharge was actually for reasons of economy.
The record shows that on September 8, only a short period before
Markle's discharge, and contemporaneously with the advent of the
Union, Respondent hired an additional janitor. Moreover, the Trial
Examiner failed to advert to testimony of employee Fitz, who the
'Unlike the Trial Examiner , we can give little weight to the results of an aptitude test
administered by a commercial testing firm, not only because of a lack of evidence in the
record as to the complete validity of its results , but also because of its "ex post facto"
nature and the circumstances under which it was given.
* The Respondent refers to Maikle's separation as a layoff. However , since it appears
that Markle's duties were taken over by a janitorial service and production workers at their
stations , and since Markle received no notice and apparently had no reasonable expectation
of recall , it is apparent that Markle ' s alleged layoff was in fact a discharge.
ROSKAM BAKING COMPANY 1177
Trial Examiner had generally credited, that about September 29, or
only 3 days prior to Markle's discharge, Respondent offered to rein-
state him in his former job as a janitor on the day shift.'
Apart from the naked assertion "that it costs less money this way,"
Respondent offered no evidence to substantiate its claim that a reason-
able savings in labor costs had resulted from Markle's termination
and, replacement.6 On the contrary, the only evidence offered on this
point was adduced by the General Counsel, and it tended to negate the
claim that substantial, if any, savings had resulted from Markle's
discharge.'
Furthermore, Respondent discharged Markle without prior notice
or consultation with its supervisory staff, and apparently the selec-
tion of Markle for termination over other employees was not made
on the basis of his relative experience, length of service, and ability to
perform the work.' In such circumstances, we cannot agree with the
Trial Examiner's -conclusion that the lack of notice and consultation
with supervisory personnel necessarily establishes that Respondent's
action was economically motivated. On the other hand, when con-
sideration is given to Foreman McClaskey's threat that "everybody
connected with or having anything to do with the Union wouldn't be
around to see it go through," McClaskey's interrogation of Markle,
and M. C. Roskam's unhappy encounter with Markle, as described
move, there is ample evidence establishing that Markle's discharge,
like Storey's demotion, 'was discriminatorily motivated.
In view 'of the foregoing, and, the record as a'whole, we find, con-
trary to the Trial Examiner, that Respondent discharged Markle be-
5 Contrary to Donald Roskam's testimony that Fitz was also laid off for economic reasons,
Fitz testified that his employment was terminated on September 25, when he spent the
weekend in- jail, but that a few days later Respondent offered him reinstatement in his old
job as a day-shift janitor , Fitz did not return to work, because his parole officer would
not permit his further employment with Respondent It is significant that Fitz was the
employee who was directed by Donald Roskam to attend the union meeting on September
8, and was later questioned by Roskam as to what had happened there In finding this
incident unlawful, the Trial Examiner noted that Respondent was of the view that Fitz,
as a prison parolee who had been given employment by the Respondent, was under a duty
to support the Company against the Union.
8 See N.L.R.B. v. Sam Wallsck, et at ., d/b/a Wallick & Schwalm Company, at al., 198 F. 2d
477 (C.A. 3) (1952), where, at 483, the court noted that the failure to produce economic
data, which an employer had the power to produce, and which was vital to substantiate the
affirmative defense of economic justification, warranted an inference "that such evidence,
if adduced , would not have been favorable to respondents."
7 Whereas Markle was paid $68 for a 40-hour week, the General Counsel established that
the janitorial service engaged by the Respondent was paid a flat weekly rate of $50 for
performing only one of Markle's jobs, that of cleaning the general office area. Respondent
sustained additional labor costs by assigning Markle's remaining duties to production
workers, so as to require extension of their normal work hours. However, Respondent
failed to present evidence indicating that such costs, together with the fees paid the jani-
torial service, did not equal or exceed Markle's weekly earnings.
8 ,Steele, the janitor hired-by Respondent on September 8, like Fitz, was a prison parolee.
Though -his employment with Respondent was of shorter duration than Markle' s, he was
retained on Markle' s separation .' While there is no , direct evidence-that Steele assisted,the
Respondent in its antiunion campaign , or that Respondent made, demands of. Steele. similar
to those made of Fitz, his retention becomes suspect when viewed against the Trial Ex-
aminer's observations of the use that Respondent intended to make of ' prison parolees.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause of his union activities and thereby violated Section 8(a) (3) and
(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices in violation of Section 8 (a) (1), we shall order Respondent
to cease and desist therefrom and take affirmative action necessary to
effectuate the policies of the Act.
It having been found that Respondent discriminatorily demoted
David Storey and discriminatorily discharged Roger Markle in viola-
tion of Section 8 (a) (3) and (1) of the Act, we shall order Respondent
to offer these employees immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and in conformance
with the Board's newly adopted policy of not tolling backpay when it
has reversed the Trial Examiner," we shall order that Respondent
make the above-named employees whole for any loss of pay they may
have suffered by reason of the discrimination against them, by paying
each of them a sum of money equal to the amount that each would
normally have earned as wages from the date of the discrimination
against them to the date of offer of reinstatement, less net earnings.lo
With regard to Storey, certain additional comments are in order.
The record shows that, following his discriminatory demotion, his
employment ceased because of a physical disability described as an
"extra vertebra in his back." Although we cannot determine whether
this disability would have made him unfit to perform his maintenance
work at the time his active employment ceased, in directing the normal
reinstatement remedy and backpay we have not overlooked such possi-
bility. Thus, we shall direct reinstatement subject to Respondent's
right to discharge Storey should it be established that Storey's physical
condition rendered him unfit for work as a maintenance man.ll In
determining Respondent's liability for backpay, consideration should
be given to the possibility that Storey's disability would have rendered
him unemployable as a maintenance man at the time his active employ-
ment ceased.
In accordance with the Board's recently adopted policy of granting
interest on backpay and other monetary awards, the backpay obliga-
tions of the Respondent to the above-named employees shall include
the payment of interest at the rate of 6 percent per annum to be com-
puted in the manner set forth in Isis Plumbing d Heating C0.12
The scope of Respondent's unfair labor practices in the present case
is sufficiently extensive to justify a broad form of cease-and-desist
° A P W. Products Co, Inc , 137 NLRB 25, enfd. 53 LRAM 2055 (C.A. 2) (April 1963).
io F. W. Woolworth Company, 90 NLRB 289
n Industrial Cotton Mills, 102 NLRB 1265, 1281.
' 138 NLRB 716.
ROSKAM BAKING COMPANY 1179
order, and we shall therefore order Respondent not only to cease and
desist from repetition of the unfair labor practices in which it has al-
ready engaged, but also to cease and, desist from any other incursions
upon the rights guaranteed to employees by Section 7 of the Act.
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 Respondent, Roskam Baking
Company, Grand Rapids, Michigan, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Interrogating employees in connection with their union ac-
tivities in a manner constituting interference, restraint, or coercion
within the meaning of Section 8 (a) (1) of the Act ; threatening em-
ployees with discharge and other reprisals if they become or remain
members of a union or give any assistance or support thereto; re-
questing employees to engage in surveillance of union activities of
other employees; informing employees that it has a list of names of
those who attended a union meeting, thereby creating the impression
that it was engaging in surveillance of union activities of its employ-
ees; or promising benefits to employees if they would refrain from,
and would influence others to refrain from, union or concerted
activities.
(b) Discouraging membership in, or activities on behalf of, Ameri-
can Bakery and Confectionery Workers' International Union, AFL-
CIO, or in any other labor organization of its employees, by dis-
criminatorily discharging or demoting any of its employees because
of their union membership or activities, or by discriminating in any
other manner in regard to their hire or tenure of employment or any
term or condition of employment, except to the extent permitted by
Section 8(a) (3) of the Act as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
(c) In any other manner interfering with, restraining, or coercing
any employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist American Bakery and Con-
fectionery Workers' International Union, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in any other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which it is found will
effectuate the policies of the Act :
(a) Offer Roger Markle and David Storey full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them whole
for any loss of pay they may have suffered as a result of the discrimi-
nation against them, in the manner set forth in the section of this
Decision and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay
due and the rights of employment under the terms of this Order.
(c) Post at its plant in Grand Rapids, Michigan, copies of the
attached notice marked "Appendix." 13 Copies of this notice, to be
furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by a representative of the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that such notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent engaged in conduct other than that found to be in viola-
tion of the Act herein, be, and it hereby, is, dismissed.
"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 to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate employees concerning their union
membership, threaten employees with discharge and other re-
prisals if they become or remain members of a union or give any
assistance to it, request employees to engage in surveillance of
union activities of other employees, create the impression of
surveillance of employee union activity, or promise benefits to
ROSKAM BAKING COMPANY 1181
employees if they would refrain from or influence other employees,
to refrain from union or concerted activities.
WE WILL NOT discourage membership in American Bakery and
Confectionery Workers' International Union, AFL-CIO, or any
other labor organization, by discharge or demotion of employees,
or in any other manner discriminate in regard to their hire or
tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
American Bakery and Confectionery Workers' International
Union, AFI^-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from en-
gaging in any or all such activities, except to the extent that such
rights may be affected by an agreement requiring membership in a
labor organization as authorized in Section 8(a) (3) of the Act.
WE WILL offer employees Roger Markle and David Storey im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make each of them whole for any loss
of pay he may have suffered as a result of our discrimination
against him.
ROSKAM BAKING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employees if presently
serving in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 500 Book Building, 1249 Washington Boulevard, Detroit,
Michigan, 48226, Telephone No. 963-9330, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , under Section 10(b) of the National Labor Relations Act (29
U.S.C. 151 et seq .; herein called the Act ), began with the filing of a charge in Case
No. 7-CA-3899 on September 13, 1962, amended September 20, 1962 , September
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
26, 1962, and November 6, 1962, and with the filing of a charge in Case No. 7-CA-
3899(2) on November 6, 1962, by the Charging Party, and with all parties repre-
sented was held before Trial Examiner George L. Powell, in Grand Rapids, Michigan,
on January 14 and 15, 1963, on complaint of the General Counsel and answer of
the Respondent.'
The issues in the case are whether Respondent, by its officers and agents, inter-
fered with, restrained, and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act: by interrogating them concerning their union
membership; by threatening them with discharge and other reprisals if they became
or remained members of the Union or gave any assistance or support to it; by re-
questing employees to engage in surveillance of union activities of other employees;
by creating the impression that it had engaged in surveillance of the union activi-
ties of its employees; and by promising benefits to employees if they would refrain
from union or concerted activities and conditioning these promises upon such em-
ployee's influencing other employees to refrain from union or concerted activities.
The further issues are: whether Respondent violated Section 8(a)(3) and (1) of the
Act by reducing the scheduled hours of David Storey and Pat Williamson; by de-
moting David Storey from maintenance work to a less remunerative position; by
separating Roger Markle from its payroll; and by discharging Patrick Williamson.
All parties were represented, participated in the hearing, and were permitted to
develop testimony concerning the issues. Briefs were filed by the General Counsel
and Respondent on February 12, 1963
For the reasons hereafter stated in detail in the Findings of Fact, I find that Re-
spondent violated Section 8(a)(1) of the Act, but did not violate Section 8(a) (3) of
the Act.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Roskam Baking Company, hereafter called Respondent, is and has been at all
times material herein a Michigan corporation engaged in the manufacture, sale, and
distribution of bread, baked goods, and related products at its plant in Grand Rapids,
Michigan (the only facility involved in this proceeding), and at its plant in Lansing,
Michigan. During the fiscal year ending July 30, 1962, which period is representative
of its operations during all times material hereto, Respondent, in the course and con-
duct of its business, purchased, and caused to be transported and delivered to its
Grand Rapids plant, flour and other goods and materials, valued in excess of $50,000,
directly from points located outside the State of Michigan. I find the Respondent is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
American Bakery and Confectionery Workers' International Union , AFL-CIO,
herein called Charging Party or Union , is now and at all times material herein has
been a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Background
The Respondent offered no testimony in defense of the charge of a violation of
Section 8(a)(1) of the Act. The General Counsel adduced the following evidence:
In the early part of September 1962,2 employees became interested in a union and
several joined the Charging Party. This organizational effort resulted in an election
wherein the Union received a majority of the votes cast.
Two of Respondent's employees, David Storey and Patrick Williamson, were the
leaders in organizing the Respondent's employees. On or about September 5, they
went to the offices of the Union in Grand Rapids, Michigan, and obtained authoriza-
tion cards from the union representative. They circulated these cards among the
1 The General Counsel for the National Labor Relations Board , herein called the Board,
by the Regional Director for the Seventh Region, issued his order consolidating cases,
amended complaint, and notice of hearing on December 19, 1962, base upon the above
charges alleging that Respondent violated Section 8(a)(1) and (3) and Section 2(6) and
(7) of the Act Respondent filed its answer on December 31, 1962, denying the alleged
violations of the Act. Respondent further made certain affirmative pleadings as will be
dealt with more fully herein.
2 All dates will be in the year 1962 unless otherwise indicated.
ROSKAM BAKING COMPANY 1183
employees and Williamson obtained about 15 signed cards from the total work force
of 28, whereas Storey obtained cards "from 4 to 7" employees. Employee contacts
were for the most part made in and around the bakery.
Upon receiving the aforementioned authorization cards, the union representative
wrote a letter to Respondent claiming to represent a majority of its employees. This
letter was received by Respondent on September 7. On that same day, the Union
mailed letters to employees notifying them that a meeting of Respondent's employees
would be held on Saturday, September 8, at the union offices in the Houseman Build-
ing in Grand Rapids.
The 8(a)( I) Allegations of the Complaint
Respondent's president, Donald Roskam, learned of this meeting and had conversa-
tions with employees Carl Fluegel and Edward Fitz about the meeting, on the morn-
ing of September 8, before it took place. He asked Fluegel what this was about the
union meeting, and when Fitz went to his office to request the day off, Roskam asked
Fitz if he was going to the meeting and then directed him to attend and to find out
what went on there.
Fluegel credibly testified, as to his conversation with Don Roskam, that on the
morning of September 8, Don Roskam "asked me what I knew about a union; and I
said `nothing.' I didn't know anything. And he mentioned that they were going to
have a meeting that afternoon . . . . And he wanted to know if I was going• and I
said, `no, nobody said anything to me about it,' and I didn't know anything." Fluegel
said that another time about a week later, Don Roskam asked him, "Well, he asked if
I'd gone to the meeting and I said no . . . and that was about it." Fluegel also
"believed" that Roskam asked him if he had signed a card for the Union, and that he
told him that he had. He places this a week or 2 weeks after the last conversation.
Fitz credibly testified he went to see Don Roskam on Saturday morning, September
8, to get an advance on his salary as he expected to have to pay a fine in a case in
which he had to appear in Detroit on Monday, the 10th. He said that Roskam told
him not to worry "about paying no fines, just go down and tell them the truth and
don't worry about paying no fine." Roskam then said, "Well, . . . you going to that
meeting?" Fitz replied that if he had time he would go, whereupon Roskam said,
"Well, you go ahead . When you come back . . . . You let me know what it's
all about." Fitz went to the meeting and on his return to the plant on Tuesday was
told to see Don Roskam. There was a conversation concerning the Detroit visit and
then Don Roskam asked him what went on at the meeting, saying that he had a
list and "I know just about who all was down there." Fitz was not told who was on
the list but said he could see that the names of Pat Williamson and Jerry Alexander
and another Jerry were on the list. Fitz testified that Don Roskam-
turned around and he started telling me about how he was trying to help
them out; and he said the one Jerry didn't have nothing, that his wife was in the
hospital and he didn't have no money and he borrowed them some money to
pay for their bills and that so his wife could come home; and he said the other
fellow had been at the shop there for the last 6 months or better trying to get a
job there; and so he said he gave him a job there. "And that's what they do to
me," he says. "They try to pull the Union in on me."
Fitz testified that Roskam did not come right out and identify who the ringleader
was but that the ones that he had helped out "practically were the leaders." 3 All of
the above is based on credited or admitted evidence.
Employee Storey testified that on Monday, September 10, Foreman McClaskey
"asked me why I signed the cards and one thing and another like that." He was
asked to relate the exact words spoken and his testimony is as follows:
The WITNESS: Well, he asked me why I signed the cards; and he says every-
body on hourly pay will pay for this now or regret it or something like that;
and he told me, he says, "the picnic's over with now."
Q. Anything else?
A. No, that's about all.
,'At a subsequent time there was "supposed" to be a meeting at an employee 's house.
Don Roskam asked Fitz to "find out" just whose house it was "and give me a call on the
phone." This is too vague to support a finding of fact and is not used . Also Foreman
l1eClaskey told Fitz , "Don't let anyone else do your thinking for you.,, "You let your own
mind do your thinking." In context in which made these are only words of wisdom and
do not interfere with, restrain , or coerce an employee within the meaning of the Act.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel then pressed him,
Q. What we want is what Mr. McClaskey said to you, his words or the best
that you can recall.
A. Well, he said that everybody connected with or having anything to do
with the Union wouldn't be around to see it go through.
Storey impressed me as being a candid witness. I credit the above. Employee
Williamson testified that on September 18 Foreman Sieracki asked him how many
people signed the cards and who they were and said, "You know, Gerry and Dave,
you know what we're going to do with them, don't you?" Williamson said,
"Probably try to fire them." And Sieracki replied, "Yes." Also on the same date
of September 18, Williamson had a conversation with Secretary M. C. Roskam.
Williamson testified:
Well, we sat down and he said he had something he wanted to discuss with
me but he didn't know how to quite go about it. Then he said that he had
a position in mind for me but he didn't know how to put it. He said the
position he had in mind was foreman but he didn't know whether I'd be right
for the job or not; and he went on to say that the problems of management
were greater than that of a regular employer-employee, and that I'd have to
be for the Company if I was to hold the position such as that; and he said
whatever I done in the next couple days would decide whether I would be
right for the position or not. He said he'd be able to tell, that I'd have to
try to help convince the other men that the Union wouldn't be a good thing
for them and he didn't want to be regimented; and we just talked a little bit
more and he said, "You know, if the pressure wouldn't be on Roger Markle
like it is now if he would have been where he should have been on Saturday."
[sic]
Q. Who's Roger Markle?
A. He was one of the sanitation men.
Q. An employee?
A. Yes, sir.
Williamson further testified that prior to the above and on Sunday, the day
following the union meeting of September 8, Don Roskam and he had the follow-
ing conversation-
Q. What did he say and what did you say?
A. Well, he came up and said he wanted to talk to me; and he asked why I
was trying to stick a burr in his butt; and I asked him what he meant.
And he said, "You know what I mean. You know." He says, "I know
where you were Saturday."
Q. What did you say to that?
A. Well, I told him-well, I didn't make any comment on it. I just said,
"Oh."
Q. Is that the end of the conversation?
A. Well, he asked me again why I was trying to stick a burr in his butt; and
I was forgetting that he made me a small loan at one time and this was the
gratitude I showed .4
Finally, employee Roger Markle testified that about 11/2 weeks after the union
meeting, which would place the time at about September 18, the date when M. C.
Roskam was talking about him to Williamson, he was asked by Foreman McClaskey
if he had signed a card and if he had gone to the meeting. He told McClaskey that
he had not and in turn was told that McClaskey did not think he had but one of
the Roskams had "brought it up to him." Shortly after this conversation he was
pursuing his duties in cleaning the offices when M. C. Roskam came in and started
a casual conversation with him and finally asked his last name. Markle testified
that "we were talking about the Union and if I'd signed a card; and later when
we were talking in the lunch room area he asked me why I lied to him; and he
said he had a list in his office that had my name on it, that I had attended the
meeting." At the first conversation, Roskam asked Markle if he had signed a union
card'and Markle had said he had not. I credit Markle.
Respondent states in its brief to the Trial- Examiner that it "does not deny that
on some occasions , supervisory, employees talked with various employees about
* "A month or so previous to that," Don Roskam had 'loaned Williamson $75 to help him
in buying a house: ' I
I 1 11 :,
ROSKAM BAKING COMPANY 1185
the union organizing campaign then going on and that some things were said which
should not have been said." However, Respondent does point out that the record
does not show the violations were as extensive or broad as the complaint alleges
nor that every statement which was attributed to management should be credited.
As noted above, Respondent put on no evidence tending to refute any of the
above testimony. But it does not follow that because there is no contradictory
evidence I must credit all of the preceding testimony, for as the Ninth Circuit said
in the Howell Chevrolet case, " `It is well settled law that where a witness' testimony
is not contradicted, a trier has no right to refuse to accept it' . is an ancient
fallacy which somehow persists despite the courts' numerous rulings to the con-
trary. It overlooks the significance of the carriage, behavior, bearing, manner
and appearance of a witness-his demeanor-when his testimony is given orally
in the presence of the trier of facts." s
Discussion of the 8(a) (1) Allegations
As to the Sieracki conversation relating to Gerry and Dave related by William-
son, it is noted there is no evidence of any union activity on the part of Gerry.
Williamson was much more active in the Union than Dave and neither Gerry nor
Dave had been fired as Williamson admitted on cross-examination. Williamson
was the most active employee and Respondent had knowledge of his activities. But
he repeatedly testified that when he did something he should not have done Roskam
and Sieracki never complained and never even warned him not to do it again.
Thus, as will be developed later under the 8(a)(3) portion, when Williamson was
an hour and 23 minutes late for work on September 26 and added yeast to his
doughs without the necessary permission, he testified that Roskam merely asked
him to "try to be on time" in the future, and said, "From now on don't spike it
[add extra yeast] without calling me or the foreman first." If Respondent was
inclined to put any pressure on any employee in retaliation against him for his
union activities it would logically follow that pressure of some sort would be
applied to Williamson rather than this rather gentle treatment. Finally Sieracki's
actions at the time of Williamson's discharge belie the statement attributed to
him. In this respect, employee Fluegel, who impressed me with his candor and
lack of bias (and who also was a witness for the General Counsel), testified (as
will later be brought out in the 8(a)(3) portion of the case) that in the morning
of October 30 he telephoned and told Sieracki that Williamson was late, after wait-
ing over 45 minutes for Williamson. Sieracki told Fluegel, according to Fluegel,
that "he would make his lunch and start to get ready to come in, and that if Pat
[Williamson] happened to come in to call him." Sieracki seemingly bore no ill
will toward this known active union adherent and did not even resent being awakened
at about 2:50 a.m.6
Williamson's testimony even conflicts with Fluegel's testimony as to the morning
of October 30. He said he overslept, got dressed, and hurried down to the plant
as fast as he could which he figured would take him 15 or 20 minutes. Also he
did not hear the telephone ring nor did his wife and they would have heard it had
it rung. But Sieracki also testified that he too telephoned Williamson that morning
and received no answer. I do not credit Williamson on uncorroborated testimony
of material fact. Accordingly, I do not credit him when he said that Foreman
Sieracki agreed he would "probably try to fire" Gerry and Dave.
Nor do I credit him when he testified that M C. Roskam told him that Markle
had some kind of pressure on him because he was not "where he should have been
on Saturday." This latter statement seems so out of place with a discussion of a
future job for Williamson. It involves a janitor; there is no record evidence that
Markle did any more for the Union than sign a card, which a majority had signed
(Fluegel admitted telling Roskam that he had signed a card and there is nothing
in the case as to Fluegel); there is no evidence of any pressure on Markle ( unless
it is ,"pressure" when he and =two other janitors were laid off as will appear later);
and the reference to Saturday is too vague to be applied only to the Saturday that
was two Saturdays before. Further, there is no evidence that it was his - presence at
6 N L It B. v Howell Chevrolet Company, 204 F 2d 79 (C A. 9)
6 Fluegel credibly testified that he' telephoned Williamson, "'Quarter after, twenty after
[2 a.m.]" and then "again fifteen or twenty minutes after that," before he telephoned'
Sieracki. Fluegel also credibly testified that he "never had to call" Hall nor Clirzanowski,
Williamson's predecessors. Also that=when Chrzanowski did not show up and did not call
in he.did not'continue working thereafter.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union meeting on that Saturday that caused the unknown pressure and not
something else that took place on that Saturday.?
However , because other witnesses credibly testified to interrogations of employees
by Respondent 's agents, I credit that part of Williamson 's testimony having to do
with the conversation with M . C. Roskam in which Roskam promised to reward
him by making him a foreman if he would "try to help convince the other men that
the Union wouldn't be a good thing for them."
The realities of litigation point to the fact that witnesses on occasion are "fouled
by the air of bias, partisanship , overzealousness and other emotions that flesh is heir
to." 8 Williamson was just such a witness . In addition to the above analysis of
his testimony , the record shows his marked inaccuracy about facts he should be
familiar with, such as the time of day he was due to report to work on two most im-
portant days of his hire, namely September 26 and October 30. He had to be corrected
on both dates and he had to be corrected more than once. Williamson impressed
me as a witness who could not testify to a fact if he thought it would harm his case.
Accordingly , I will make specific reference to that part of his testimony that I do
credit, and will not credit any other testimony.
I find the following instances to be violative of Section 8(a)( I) of the Act:
(1) Donald Roskam interrogated employees Fluegel and Fitz on the morning of
September 8 asking Fluegel what the union meeting was all about and directing Fitz
to attend and find out what went on . A week later Roskam again asked Fluegel if
he had gone to the meeting and he replied "No." A week or two later Roskam asked
Fluegel if he had signed a card and he replied that he had. Roskam told Fitz he
knew "just about who all was down there" at the meeting and told Fitz how the
two Jerrys had tried "to pull the Union in on" him and after all that he had done
for the two. Roskam apparently felt that employees whom he had helped, other
than by giving them jobs, owed him some kind of loyalty other than doing an
honest day's work . This reference made to Fitz must have been calculated to enlist
Fitz' support against the Union because he had done Fitz a "favor "; Fitz had been
hired as a parolee . His record of four previous felony convictions was known to
Roskam before he was hired . Roskam had hired other parolees and there is no
question but that Roskam was doing a great service to his community and to man-
kind in general in helping to rehabilitate these men . But Roskam , in this particular,
owes his actions to the duty of being a good citizen , and repays this obligation by
hiring the parolee . To insist upon more from the hire not only violates the law
in this case but makes meaningless his social gesture.
(2) Foreman McClaskey interrogated employee Storey and told him that "every-
body connected with or having anything to do with the Union wouldn 't be around
to see it go through ." Whether or not the threat was ever going to be acted on is
immaterial here as it remains a threat of loss of job for those "having anything to
do with the Union" and hence is calculated to interfere with , restrain , and coerce
the employee in the exercise of his right to join or not join a union-rights secured
to him by the Congress in the Act.
(3) M. C. Roskam promised Williamson a benefit of being a foreman if William-
son could "convince the other men that the Union wouldn 't be a good thing for
them ." This likewise interfered with an employee 's rights set out above. It is
noted that neither Donald Roskam nor M . C. Roskam nor Superintendent Wright
ever threatened an employee with loss of his job if he continued his union activity.
The only "threat" is that set out above attributable to McClaskey.
(4) McClaskey also asked Markle if he had signed a union card. In the cir-
cumstances of this question , Markle was "interfered" with within the meaning of the
Act.
(5) M. C. Roskam asked Markle if he had signed a card and later asked him why
he had previously lied by telling Roskam he had not done so when Roskam had a list
of union sympathizers with Markle 's name on it . This interferes with Markle's
rights under the Act.
Accordingly , the following allegations in the complaint are supported by a
preponderance of the credible evidence and I find that Respondent interfered with,
restrained , and coerced its employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act: by interrogating them concerning their union membership; by
threatening them with' scharge or other reprisal if they became or remained members
of the Union or gave any assistance or support to it; by requesting employees to
7 Markle himself testified that on the same date that M C. Roskam was supposedly
telling Williamson about pressure on him, M. C. Roskam did not even know Markle 's name.
8 Henry S . Salim , Trial Examiner, Demeanor Evidence : Elusive and Intangible Imponder-
ables, vol. 47, American Bar Association Journal , 580, 581 (June 1961).
ROSKAM BAKING COMPANY 1187
engage in surveillance of union activities of other employees; and by promising
benefits to employees if they would refrain from union or concerted activities and
conditioning these promises upon such employees influencing other employees to
refrain from union or concerted activities.
The Mirror
The General Counsel contended that the Respondent had created the impression
that it had engaged in surveillance of the union activities of the employees. In its
proof of this aspect of the complaint, evidence was adduced that on Sunday,
September 9, Donald Roskam had installed a large convex mirror, approximately
3 feet in diameter, outside the superintendent's office and on that day he sat in the
superintendent's office a greater proportion of the time than previously and that
while sitting there he could observe a large portion of the work area in the mirror.
I find no violation of the Act in this mirror installation. I toured Respondent's plant
in the company of Donald Roskam and counsel for both Respondent and the General
Cousel. The court reporter also came. This plant, covering thousands of square
feet of floor space, was contained on one level of highly polished floor. The equip-
ment, which took up most of the center of the floor space, was comprised of huge
kettles, ovens, and many beltlines. The 28 production and maintenance employees
work in areas apart from each other. The superintendent's office has a glass wall
looking toward the center of the plant. It gave no view of the end of the wrapping
machinery where the bread would be collected, put on racks, and then shipped out of
the door into trucks. Respondent explained that the mirror was installed so that
one sitting at the desk looking through the window wall could observe the wrapped
bread from the end of the conveyor from the wrapping machines, and could obtain
a partial view of the shipping dock and of the operation of the wrapping machines.
This is credited. The parties agreed to this explanation. The Respondent's witness
testified that it had purchased four of these mirrors some 21/2 years before. Two
of them had previously been installed for employees to be able to watch various
phases of the operating procedures, and the fourth mirror is still not installed. In
point of time, it might look suspicious to the General Counsel that the installation
of the mirror was to observe employee activities or to create the impression that it
was to observe employee activities. This, however, is entirely without foundation
when it is noted that neither Williamson nor Storey, the two most active members
of the Union, worked in the area visible through the mirror when it was installed, and
no connection has been made out that this area was such that when viewed by
management the employees would suspect surveillance of their activities for and on
behalf of the Union.
The General Counsel sought to establish that the Respondent "deliberately created
the impression that it had engaged in surveillance of the union activities of its em-
ployees" by the conduct of Donald Roskam and Marinus Roskam in interrogating
employees Fitz and Markle on certain dates. Interrogation, as set out above, has
already been found, and, as interrogation of an employee as to his union activity has
been found by the Board and the courts to interfere with his rights to join or not join
a union I see no useful purpose in creating classes of interrogation. Accordingly I
make no finding on this allegation of the complaint and recommend that it be
struck from the pleadings
The 8(a)(3) Allegations of the Complaint-Reduction of Working Hours
The complaint alleged that on or about September 11, and continuing for a period
of about 2 weeks, Respondent reduced the daily scheduled hours of David Storey and
Pat Williamson essentially because of their union activity. Employees Storey and
Steinert testified for the General Counsel that after September 8 the hours of work
were reduced. However, in the case of Storey he admitted that he was doing all of
the maintenance work that was available at that time. Steinert was asked:
Q. Well, the whole bakery is working less hours. Is that right?
A. I think so.
Thus, there is insufficient evidence to establish this allegation of the complaint and I
will recommend that it be dismissed.
Storey
The complaint alleged that on or about September 22 Respondent demoted David
Storey from maintenance work to a less remunerative position of employment , namely
712-548-64-vol. 142-76
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
catching bread off the wrapping machine. There is no question of fact involved with
respect to this transfer of assignment. Respondent 's defense is that Storey had been
put on maintenance work at his own request for a trial period and he did not
prove capable of doing the maintenance work. He was originally hired in April for a
job in the production department of pushing bread on pallets and loading them on
racks after it came off the wrapping machine. He worked on this job for about
2 months and then, as noted above , was assigned to the maintenance department on
the tryout basis. McClaskey and Roskam credibly testified that Respondent had lost
the predecessor maintenance man through retirement and had looked for an experi-
enced replacement for several months without success. During this period of
time, Storey asked Wright for an opportunity to try the job. He had previously
worked for an electrical manufacturer , a tile company, and for his father as well as
doing "just anything I could pick up before that." He had never worked in a bakery
before except as a child of eight or nine when he worked for his father . Wright told
him to talk to McClaskey and they had several talks before he was assigned to
maintenance . He said that McClaskey told him he would "take me on and try me
out for a month or two " He imagined that this conversation took place sometime
in June. McClaskey testified credibly that he had told Storey that "if he could
work out with us to prove to us he'd make us a good maintenance man, he could have
the job."
For the first week or two Storey worked along with McClaskey . Thereafter their
shift hours overlapped and McClaskey would work with Storey for 2 or 3 hours and
then assign other work for him to handle after McClaskey left the plant . McClaskey
credibly testified that Roskam periodically checked with him as to Storey's progress.
He said that at first he reported to Roskam he thought Storey was going to make a
good maintenance man but as time progressed he began to have his doubts but that
he wanted to try to work with him a little more . Roskam, on this point , credibly
testified that about a month after the transfer he inquired of his supervisors as to
how Storey was coming along. He said that the production supervisors ( Wright,
Sieracki , and Warfield ) were of the opinion that he was not learning the job but that
McClaskey "wanted to try him longer."
On Sunday, September 23, Roskam sent Storey home early because be had taken
an excessive amount of breaktime . Storey admitted that around the first part of
September , and before the union organizational effort began , "quite a long notice"
was posted on the bulletin board to the effect that no more than 10-minute breaks
would be allowed Respondent 's practice was and had been (according to Roskam's
credited testimony ) that there were two breaks per day and that employees were
paid for such breaktime but were required to punch their timecards in and out in
order to maintain a control over breaks. Storey admitted to having taken two breaks
of 18 to 25 minutes each on September 23. Roskam credibly testified that on that
day he had not seen Storey-
... performing anything constructive as I could see ; and on several occasions he
went into the lunchroom and just sat around . I decided that this was not what
we could afford in the face of our losing money in our operation.
Sieracki credibly testified that Roskam mentioned to him that Storey was on a break
and that Sieracki replied he had seen Storey just walk out from one. Roskam then
sent for Storey Storey commented that he had taken "two 18- or 20 -minute breaks
or something like that." Roskam pointed out to him that he had taken too much
breaktime , stating that this was "stealing time" and then sent him home.
The following day (Monday ) Roskam talked with McClaskey about Storey, and
the decision was made to put him back on his former production job. No replace-
ment was made in the maintenance department for approximately 2 months until Ed
Lociewicz (a man with about 20 years of experience in bakery maintenance work),
was hired.
Storey stayed out Monday and called Roskam on Tuesday . He was told that if
he wanted his old job back on the wrapping machine he could have it but the
Company could not continue to try to train him as a maintenance man. He accepted
the offer and worked on his former job until prevented by back trouble caused by an
extra vertebra . He has been unable to work since , Storey testified that he did not
know what his rate of pay was after the transfer , but through other testmiony it is
known to be the same as he had received before being assigned to maintenance
work. 11 I
Respondent established through credible evidence that Storey really was not turn-
itlgront to be-a'good , maintenance titan : It was'also brought out at the hearing that
during the investigation of the unfair labor practice charges filed against the Respond-
ent in this matter , the field investigator questioned , Respondent 's judgment that
ROSKAM BAKING COMPANY 1189
Storey had not worked out satisfactorily on the maintenance job. Because of this,
about a week later all shop employees took an aptitude test administered by Mr. Douse
of the Personnel Research Company. Since 1950 that organization had been testing
Respondent's employees, although production employees have not been tested as
consistently as those hired for the sales department. The aptitude tests developed
for Respondent measures reasoning ability of several types, vocabulary, social skill
development, personality behavior patterns, mental reaction speeds, and strength and
energy. A report of Mr. Douse's evaluation of Storey's ability was written at Ros-
kam's request. That report was not available to Respondent at the time the original
decision to transfer Storey was made and obviously played no part in that decision.
However, it is clear from the report that Respondent's opinion of Storey as a future
maintenance man was correct and there was in fact grounds for the decision to trans-
fer him.
The important decision at this point is whether or not Storey's transfer was made
for cause or was made because of Storey's union activities. The General Counsel
argues in his brief that the reason for Storey's transfer was his union activities and
not the reasons given by the Respondent. Tying together McClaskey's statement
that those having anything to do with the Union would not be around to see it go
through, with Donald Roskam's statements that he knew who the ringleaders were and
had a list of names of those who attended the September 8 meeting, and with the
attempt to have Fitz spy on his fellow employees to find out who and what was going
on at union meetings, the General Counsel argues that the true motivation for
the transfer was Storey's union activities, inasmuch as he and Williamson were the
known instigators of the Union in the plant This evidence would have great weight
and would tend to establish an inference that the true motivation for the transfer
of Storey was his union activities if the reasons given by Respondent for the transfer
were vague or shifting or had no basis in fact or the treatment was disparate. How-
ever, in the instant case, the reason given by Respondent stands up against all argu-
ments and the evidence of illegal motivation fails to preponderate. It is clear from
credited evidence that Storey had violated a rule posted prior to the beginning of the
Union. He was not discharged on September 23 for violating this. He admitted
that he took more time than the rules permitted. He impressed me with tremendous
physical strength but without great powers of imagination or inquiry as was borne out
by his testimony that he did not know what his rate of pay was when he was trans-
ferred to the wrapping machine because the rate was not shown on his pay stub al-
though simple division could have figured out the rate. There was no evidence of
disparate treatment of Storey. I will recommend that the complaint as to Storey be
dismissed.
Markle
The complaint alleged that on or about October 2 Respondent separated Roger
Markle from its payroll because of his union activities. Donald Roskam credibly
testified that the Respondent laid off three janitors out of a total of five in an eco-
nomic move because "it costs less money this way." It has hired no replacements
since. The work formerly done by Markle is being done by a janitor service, and by
the production people at their stations. That done by the janitor service costs a flat
fee of $50 per week. The General Counsel points out that the Company is paying
far more for this service now than it did with Markle but this conclusion was based
only on the time it took Markle to do that single phase of the work. Markle's total
salary is saved. The General Counsel did not compare the total salary of Markle
with the cost of the janitorial service. No janitors were hired to replace him. There
is no evidence to establish that Markle was more active in the Union than any other
who signed a union authorization card and attended the meeting on September 8.
There is evidence that he as well as others such as Fluegel, above, was known to be a
union adherent. He was interrogated about his union sympathies, and he lied about
them and was caught in his lie. Again, as in the case of Storey, an inference might lie
that Markel was laid off because of his union activities had the reasons given by the
Respondent not been credited. However, this layoff was made by Respondent as an
economic measure. The General Counsel has not successfully contradicted that.9
There is no evidence of disparate treatment. The General Counsel, in his brief, seems
to argue that inasmuch as Roskam had not consulted with Markle's supervisor before
the layoff, there was something wrong with it. On the contrary, I feel this tends to
The record shows many layoffs It also shows many charges having been filed against
the Respondent for them but the ones mentioned in the complaint are the only ones pre-
sumably sufficiently meritorious to litigate.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prove that it was an economic layoff because it was done by top management without
consultation of the supervisors. Accordingly I will recommend that this allegation in
the complaint be dismissed.
Williamson
Finally the complaint alleged that on or about October 30 Respondent discharged
Patrick Williamson because of his activities on behalf of the Union.
As an employee, Williamson's job was to set sponges, mix doughs, and also work
in the continuous mixing room. He was the first man to report in to work in the
morning as his work had to be done before production could start. His time for
reporting depended upon the amount of bread that was scheduled to be produced
during the day and accordingly he would report in from hours varying from 2 to 4
a.m. Or in some instances he would commence work before midnight. The opera-
tions of making bread are carefully controlled by a timetable known as a dough sheet
which also gave him his starting time. This "schedules out" the time of the sponges
and the doughs and all of the employees' various jobs are set up according to that
dough sheet. The starting times for the making of bread are determined by the
time set on the dough sheet. The dough sheet establishes the time when a sponge
has to be out and the time other steps in the process have to be taken. The sponge
time is determined according to the flour that is being used. A certain amount of
time is required together with a certain amount of yeast and other ingredients of
the proper combination to ferment and mellow the flour to the proper stage in order
to get the quality of bread desired. In addition, the dough sheet carries an ingredient
scale prepared by the superintendent or the foreman, the sponge setter having no
authority on his own responsibility to vary the formula in any way. However, on
occasion, the formula has been varied but in each instance it would be up to the
foreman or the superintendent to do the varying or to authorize such variance.
This is based upon the credited testimony of Donald Roskam and by the admissions
of Williamson.
Williamson was fired on the morning of October 30 for being 59 minutes late to
work. As noted earlier, he was the most active employee for the Charging Party
and there is evidence of company knowledge of his activities. Based upon this
company knowledge and upon the violations of Section 8(a)(1) of the Act set out
above, the General Counsel urges that the reason given by Respondent for William-
son's discharge was in fact a pretext with the real reason being his union activities.
The General Counsel points out that Williamson was an employee being considered
for a "position" with management as late as September 18, conditioned of course
upon the use of his influence to induce employees to repudiate the Union. General
Counsel also points out that the action taken against Williamson for tardiness does
not accord with past practice of tardiness in his predecessor, Jerry Chrzanowski.io
The General Counsel argues that Respondent exhibited a great deal of animosity
toward its employees wishing representation by a labor organization. These argu-
ments should be kept in mind in evaluating the following evidence.
Williamson admitted on direct examination that prior to September 8, when known
union activities began, be had never been late "over 35 minutes at the longest' and
that he had been "approximately 20 minutes late" the week immediately preceding
September 8. His testimony was that he was never warned about being late for
work, but he did admit that the foreman once said "try to be on time." He admitted
having employee Fluegel call him as early as 1V2 hours before his starting time
when he first began as a sponge setter.
But after the advent of the Union his tardiness periods increased. Williamson
was late 1 hour and 23 minutes on September 26. He was scheduled to report to
work that morning at 3 o'clock and according to the dough sheet was scheduled
to put his first sponge out at 4 o'clock and the second one at 4:20. However, it
was not until 4:23 that he reported to work. When Roskam arrived at work that
morning, he noticed that the sponges did not look right. He looked at the dough
sheet and asked Williamson if he had gotten them out on time and was told that he
had done so. According to Roskam's credited testimony, he then went to the time-
cards and found that Williamson had not punched in until 4:23, so he knew that
he could not possibly have gotten either one of the first two sponges out on time.
According to Roskam, Williamson then admitted that he had got them out late, but
he had fixed them up by putting in more yeast and sugar in the dough . He also
PThere is no merit to this contention . Employee Fluegel credibly testified that when
Chrzanowski absented himself and did not call in he ceased working for Respondent..
Accordingly there is no credible evidence of disparate treatment.
ROSKAM BAKING COMPANY 1191
admitted that he had not gotten permission to do this. Roskam then "told him that
this lying and being late for work had to stop or he would have to be replaced.""
This is based on Roskam's credited testimony.
A month later, Williamson did not work on Friday, October 26, although sched-
uled to do so with a starting time of 11 p.m. on Thursday, October 25. He admitted
telephoning his foreman, Sieracki, at 7 or 8 p.m. on Thursday, asking permission to
take off part of the next day on an emergency trip to another town. He admitte ,
"I went on to say that I should be back by about 6 o'clock in the morning and I'd
come in if possible unless I got held up some way." Williamson did not report to
work on Friday at 6 o'clock nor did he call in to say that he could not be there yet
he had not been held up. He was sleepy. His foreman did his work for him. The
next working day was Sunday and that morning when Williamson reported he told
his foreman that he could not make it back on time the preceding Friday. He said
his foreman only said, "All right." And he said the foreman said absolutely nothing
about what would happen to him if he was not there in the future.
The following facts are based upon the credited testimony of Fluegel and Sieracki.
Foreman Sieracki testified that Williamson telephoned him on Thursday night about
8 o'clock for permission to go to Sturgis, Michigan, as he had got an "emergency
call from his wife . that one of his kids was sick." Williamson told Sieracki he
would try to make it back by 4 o'clock in the morning but Sieracki said he knew
Williamson could not do that, so he told Williamson to be in by 6. Then on Sunday,
Sieracki asked Williamson where he had been on Friday and why he did not show up
or call in and "I told him that if he couldn't call in or if he was late, that he would
be dismissed the next time." I credit Sieracki's testimony and find that Williamson
was warned.
Two days later on October 30, Williamson was discharged. Employee Fluegel,
witness for the General Counsel, testified that on the morning of October 30, when
Williamson did not come to work on time, he telephoned him. (He had called
Williamson before at Williamson's request.) He said he called Williamson twice,
once at about "Quarter after, twenty after [2 a.m.]" and the other "fifteen or twenty
minutes after that." Then he called Foreman Sieracki. Sieracki asked him if he
had tried to call Williamson and when he replied in the affirmative, Sieracki said that
he would try and call him again , and that if Williamson "happened to come in to
call him [Sieracki] and he'd go back to bed." About "five minutes or ten minutes
later" Fluegel called Superintendent Wright.la Further, according to Fluegel,
u Williamson corroborated Roskam's testimony except that he did not admit that he had
lied to Roskam in the first instance, and he testified that Roskam only told him "try to be
on time." On cross-examination, Williamson first testified that this tardiness took place
about a week before his discharge on October 30. He admitted that "I was late on the
sponge about 15 or 20 minutes I guess" so he added about one-half pound of yeast on his
own initiative He then admitted that this could have been the morning of September 26,
over a month earlier Even after noting that his timecard showed that he had been 1 hour
and 23 minutes late the testimony at this point is as follows :
Q. And this as the morning of September 26?
A. I believe it, yes.
Q And you changed the formula that morning, did you, by adding an extra half
pound of yeast?
A. Yes. I didn't change the formula, I just added one-half pound of yeast to it.
Q Why did you do that'
A. Well, I was late on the sponge about 15 or 20 minutes I guess, and I wanted to
pick up the extra time I had lost.
It doesn't seem to concern him that he was due at the plant an hour and 23 minutes before
lie arrived Had he gotten out the sponge on the moment of arrival it would have been 23
minutes late but in addition it takes time to get out the sponge. His "15 or 20 minutes
I guess" after admitting that his timecard was correct is a clear indication of his inability
to testify to a fact he feels is detrimental to him. In addition, he also maintained that he
did not change the formula for the bread yet he admitted adding an extra half pound of
yeast to the bread, which did change the formula Accordingly, I do not credit Williamson
when his testimony is in conflict with Roskam. Instead I credit the testimony of Roskam.
12 Fluegel's itestimony was that if anything "happened at night affecting production" it
was his responsibility to call Superintendent Wright or Foreman Sieracki. In reply to a
question of whether or not he had been told to call Wright, if Williamson did not come in,
he replied, "Oh, there were one or two others, other times that things had happened and
I hadn't told him ; and Ike [Wright] got quite upset about it so I told him any time
anything else ever happened, why, I would let him know"
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williamson came in "about an hour late" at about 3 o'clock. Fluegel let Williamson
in to work,13 and told him to call Wright before he went to work. Before Sieracki
left home for work that morning, he was called by Wright who told him that he,
Wright, had told Fluegel to hold Williamson until Sieracki got there. Wright told
Sieracki to dismiss him. Upon his arrival at the plant shortly after 3 o'clock,
Sieracki told Williamson he was dismissed. According to Sieracki's credited testi-
mony, Williamson replied, "I can't blame anyone but myself for this." 14
Summary of the Evidence as to Williamson
In summary then, Williamson was an employee who prior to his union activities
was never more than 15 or 20 minutes late. He knew of his responsibilities in having
to come to work ahead of everyone else in the production schedule in order to carry
out the timing of the dough sheet and the scheduling of the doughs He admitted
to an earlier practice of having employee Fluegel call him as early as 11/2 hours
before he was to report to work. Apparently he had discontinued this practice after
his union activities. Some 18 days after the union meeting of September 8, William-
son was an hour and 23 minutes late And in order to catch up with production, he
varied the formula by adding some extra yeast without first getting permission. This
came to the attention of the president who personally warned him not to vary the
formula without instructions from the supervisor, and, in the words of Williamson,
to "try to be on time " Then a month later, Williamson was given a part of the day
off in an emergency, but was due to report back to work at 6 a.m., or call in. He
neither reported nor called in and was criticized by his foreman, who had had to do
his work At that time he was warned by the foreman to be on time or he would be
discharged Two working days later, he was 59 minutes late and he was discharged.
To ignore the fact that employers require their employees to be on time and to obey
their reasonable working rules is to ignore the tacts of industrial life and how
businesses operate.15 Employee Williamson was not obeying Respondent's rules
even after having been warned that he would be fired for not doing so. In fact it
seemed that after he had participated in union activities he disobeyed the rules to a
greater extent than formerly.
This is not a case where there is disparate treatment of employees so as to belie
the reason for discharge given by the employer. There is no evidence here that other
employees abused the rules as did Williamson in either the period after September 8
or before. The General Counsel attempted to show that the treatment of William-
son's -predecessors was not the same. But the evidence showed that they called in
when either going to be late or absent (so their foreman could temporarily fill in for
them). The one employee who was absent without first calling in never continued
working thereafter and a discharge of him was made unnecessary. Accordingly
there is no evidence of disparate treatment Williamson even admitted that the dis-
charge was his own fault Membership in or activities on behalf of labor organiza-
tions was never intended to insulate an employee from regular duties owed his em-
ployer. Among these regular duties are diligence, and observance of rules and in-
structions
Hence as there is clear evidence of cause for the discharge and as that is the reason
given for the discharge in the case of Williamson, the General Counsel has not met
his burden of establishing a violation of Section 8(a)(3) of the Act by the pre-
ponderance of the evidence
One word should be said about the violations of Section 8(a)(1) of the Act, as I
have previously found, and their effect on the allegations of violations of Section
8(a)(3). It is noted that the 8(a)(1) violations relate to the reactions of an em-
ployer who up to the t_me of the union activities was running his business as he saw
fit. After hiring parolees to rehabilitate them and loaning employees money from
time to time on important purchases such as homes, and giving time off for emer-
f3 Fluegel's shift overlapped Williamson's and would end shortly after Wiliamson's began.
He would open the locked plant door for 11 illiamson when the latter would arrive.
11 Williamson testified that neither he nor his wife heard any telephone calls I credit
Fluegel who said he called as early as 2 •15 a in and Sieracki who said be telephoned
Williamson Williamson testified, "Well, I oierslept; and I guess I woke up about three
thirty ; and I dressed just as quick as I could and left immediately for the bakery I got
down there about quarter to four " [Williamson was confused as to time at this part of
his testimony. The times were actually an hour earlier as testified to by Flueget and
Sieracki ] He lived approximately 6 miles from the bakery Except for the error in time,
he corroborated Sieracki as to bow he was fired. He said he waited for Wright who told
him he could see Roskam if he wanted to.
15 New French Benzol Cleaners and Laundry, Inc, 139 NLRB 1176.
ROSKAM BAKING COMPANY 1193
gencies to employees, and advising them on many little matters such as fines, and hav-
ing but 28 employees with whom he came into daily contact, an employer could
easily fall into the frame of mind that the relationships between him and his em-
ployees transcended that of employer-employee.
Experience in this field shows such employers to be prone to interrogation of
employees when first advised of their union activities. In some instances there has
been evidence that employers have gone beyond "interfering with, restraining or
coercing" his employees and actually discriminated against them and caused them to
lose their jobs in an effort to discourage union activities of other employees. In
those cases there was direct evidence either of an unlawful motive in the discrimina-
tory treatment or such an unlawful motive could be drawn by inference. I have no
direct evidence in the instant case sufficient to establish this unlawful motive nor, as
set out above, is there the type of evidence in this case upon which an inference can
be made that discriminatory treatment within the meaning of the Act took place.
As to direct evidence, the only credible evidence was given by employee Storey
who said his foreman, McClaskey, "asked me why I signed the cards [sic]; and
he says everybody on hourly pay will pay for this now or regret it or something like
that." Upon being pressed by the General Counsel, he testified that McClaskey
"said that everybody connected with or having anything to do with the Union
wouldn't be around to see it go through." This took place on September 10, 2
days after the advent of the Union McClaskey also asked another employee, Markle,
if he had signed a card but made no reference to him about employees being around
who favored the Union. Donald Roskam, who personally managed the bakery, never
indicated any such action. In the absence of direct evidence, and after seeing Donald
Roskam and hearing him testify, I am satisfied he did not discriminate in the hire or
tenure of employment of any employee. There is a great difference between actions
of a person reflecting pain and anger at a personal hurt and actions depriving an
employee of his just livelihood. No foreman other than McClaskey, nor officer,
threatened anyone with the loss of a job. And McClaskey was the only one who kept
trying to make a maintenance man out of Storey who was known to be active in
the Union. Thus the direct evidence is insufficient here to impute an illegal motive
to actions otherwise established to be for cause.
IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in-con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the°free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be'recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
The Respondent will be ordered to cease and desist from interfering with, restrain-
ing, and coercing its employees in the exercise of their rights guaranteed in Section 7
of- the Act by interrogating them concerning their union membership; by threatening
them with discharge and other reprisals if they became or remained members of the
Union or gave any assistance or support to it, by requesting employees to engage in
surveillance of union activities of other employees; and by promising benefits to
employees if they would refrain from union or concerted activities and conditioning
these promises upon such employees influencing other employees to refrain from
union or concerted activities.
Having found that Respondent has not engaged in certain other unfair labor
practices, it will be recommended that the allegations in the complaint having to do
with the following be dismissed:
A. That Respondent created an impression of surveillance.
B. That Respondent discriminately reduced the hours for Storey and Williamson.
C. That Respondent discriminately demoted Storey. -
D. That Respondent discriminately separated Markle.
E. That Respondent discriminately discharged Williamson.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Roskam Baking Company, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. American Bakery and Confectionery Workers' Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their union membership; by threatening
them with discharge and other reprisals if they became or remained members of the
Union or gave any assistance or support to it; by requesting employees to engage in
surveillance of union activities of other employees; and by promising benefits to em-
ployees if they would refrain from union or concerted activities and conditioning
these promises upon such employees influencing other employees to refrain from
union or concerted activities, Respondent has interfered with, restrained, and coerced
them in the exercise of rights guaranteed employees in Section 7 of the Act and has
thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Barker's East Main Corporation and Barker's Supermarket,
Inc. and Local 919, Retail Clerks International Association,
AFL-CIO. Case No. 1-CA-36928. June 18, 1963
DECISION AND ORDER
On June 14, 1962, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in certain unfair labor practices alleged in the
complaint and recommending that they cease and desist therefrom and
take certain affirmative action as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respondents
had not engaged in certain other unfair labor practices alleged in the
complaint. Thereafter, the General Counsel, the Charging Party,
and the Respondents filed exceptions to the Intermediate Report and
supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs,'and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, to the extent consistent herewith.
In affirming the Trial Examiner's conclusion that the Respondent
has not violated Section 8 (a) (5) of the Act, Chairman McCulloch
and Members Fanning and Brown do not rest their decision upon the
principle laid down in Louis Aiello, et al., d/b/a Aiello Dairy Farms,
110 NLRB 1365.1
1 In addition to those factors relied upon by Chairman McCulloch and Members Fanning
and Brown in affirming the Trial Examiner, Members and Rodgers and Leedom would adopt
in toto the Trial Examiner's explication of and reliance upon the principle expressed in the
Aiello Dairy Farms case.
142 NLRB No. 132.