Schmidt Baking Co., Inc.

National Labor Relations Board - Board Decisions

Oct 14, 1940

27 N.L.R.B. 864 (N.L.R.B. 1940)

In the Matter of SCH11MIDT BAKING Co., INC. and LOCAL 622, BAKERY
DRIVERS AND SALESMEN, AFFILIATED WITH THE A. F. OF L. _
Case No. C-1627 .-Decided October 14, 1940
Jurisdiction : baking industry.
Unfair Labor Practices
Discrimination: discharge of union president because of his membership and
activity in behalf of the union.
Collective Bargaining: union 's majority indicated by applications for member-
ship therein. I
Action of employer in calling meeting of employees and granting them
concessions which had already been agreed upon with the union and
offering them a wage increase at time when question of wages remained a
subject of negotiations with the union constitutes a refusal to bargain.
Remedial Orders : employer ordered to bargain collectively; reinstatement and
back pay awarded discharged employee.
Unit Appropriate for Collective Bargaining : all driver-salesmen, excluding super-
visory employees.
Mr. Herbert 0. Eby, for the Board.
Mr. Kenneth Souser, of Philadelphia, Pa., for the respondent.
Mr. Joseph J. Eldelman, of Baltimore, Md., for the Union.
Mr. David H. Karasick, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Local 622, Bakery
Drivers and Salesmen, affiliated with the American Federation of
Labor, herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Fifth
Region (Baltimore, Maryland), issued its complaint, dated March
21, 1940, against Schmidt Baking Co., Inc.,' Baltimore, Maryland,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (3), and (5) and
1 Incorrectly designated in the/ complaint as Schmidt Baking Company.
27 N. L. R. B., No. 146.
864
SCBMIDT BAKING Co., INC. 865
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint, accompanied
by notice of hearing, were duly served upon the respondent and the
Union.
The complaint, as amended at the hearing, alleged in substance
that the respondent on September 18, 1939, discharged and -refused
to reinstate John J. Hasenkamp, because he joined and assisted the-
Union; that on or.about July 6, 1939, and at all times thereafter,
the respondent refused to bargain collectively with the Union as the
exclusive representative of all driver-salesmen employed by the
respondent at its Baltimore, Maryland, plant; and that from June
1, 1939, to the date of the issuance of the complaint, the respondent,
by the foregoing and by other acts, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act
On April 24, 1930, the respondent filed an answer to the complaint
in which it denied the commission of the unfair labor practices alleged
in the complaint and denied that its activties affected commerce as
set forth and defined in the Act. -
Pursuant to notice, a hearing was held on April 25, 1940, in Balti-
more, Maryland, before Josef L. Hoktoen, the Trial Examiner duly
designated by the Board. The Board, the respondent, and the Union
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties:
During the course of the hearing, the Board offered evidence relating
to anti-union conduct by the respondent in 1937. The respondent's
motion to strike such evidence was denied at the hearing, but this
ruling was later reversed by the Trial Examiner in his Intermediate
Report.2 The Trial Examiner granted motions by counsel for. the
Board to amend the complaint to "conform to the proof adduced at
the' hearing. During the course of the hearing the Trial Examiner
made several rulings on other motions and on objections to the admis-
sion of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. 'The
rulings are hereby affirmed.
In his Intermediate Report, dated June 29, 1940, copies of which
were duly served upon the parties, the Trial Examiner found that
the respondent 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 Act. He recommended that
`, a while ordinarily admissible , we do not predicate any of our findings upon such evidence
in this case,' and therefore, we find it unnecessary -to. reverse the ruling of the Trial
Examiner. -
323428-42-vol 27 56
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent cease and desist from engaging in such,unfair labor
practices, that it bargain collectively, upon request, with the 'Union,
and that it reinstate, with back pay, John J. Hasenkamp."
Thereafter, the respondent filed a brief and exceptions to the Inter-
mediate Report. Following due notice to all parties, counsel for the
respondent and for the Union presented oral argument before the
Board in Washington, D. C., on September 12, 1940. The Board has
considered the respondent's brief and exceptions to the Intermediate
Report, and, in so far as the exceptions are inconsistent with the find-
ings, conclusions, and order set forth below, finds them to be without
merit.
Upon the entire record in the case, the Board makes the following :
' FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Schmidt Baking Company, Inc. is a Maryland corporation engaged
in the manufacture and sale of bread and rolls at plants located in
Baltimore and Cumberland, Maryland. In addition, it owns all the
stock of a West .Virginia corporation which operates a bakery at
Martinsburg, West Virginia.
All three plants of the respondent are under the general. supervision
of the same executive officers, with a local manager in charge at each
plant. Flour, milk, and wrapping supplies for the three plants are
centrally purchased at Baltimore. All other supplies and materials
are negotiated for by each plant. All bills for the three plants are
paid by the Baltimore office.
The sales of the Cumberland, Maryland, and Martinsburg, West
Virginia, plants each exceed $300,000 per year. About 35 per cent
of the products of the Cumberland plant are delivered to customers
outside of Maryland. About 74 per.cent of the products of the Mar-
tinsburg plant are delivered to customers outside of West Virginia.
The Baltimore plant, with which this proceeding is concerned, is
one of the four largest wholesale bakeries of bread and rolls in the
Baltimore trade area. It serves both commercial restaurants and res-
turants in industrial establishments, grocery stores, drug stores, de-
partment stores, schools, hospitals and other public institutions, and
the commissary. or restaurant maintained by the Baltimore and Ohio
Railroad at one of its Baltimore depots.3
Net sales of the Baltimore plant for 1939 exceeded $1,000,000. With
the exception of sales made on part of a bakery route in Pennsylvania 4
Bread and bakery_products used in the railroad's dining cars are purchased elsewhere.
'This route was discontinued " during the year . During oral argument before the Board,
counsel . for the respondent stated , that,' in, point of time, the route was abandoned after
charges had been filed by the Union , but before the Board had issued its complaint.
r - _ SCHMIDT BAKING CO., INC . 867
amounting to approximately $25 per week or about 1/l0 of 1 per cent
of the total business, all products of the respondent were sold within
the State of Maryland, either for resale in local commerce or for con-
sumption on the premises of the purchasers. During the same period,
approximately 75 per cent in value of all raw materials purchased by
the Baltimore plant were shipped to it from 20 States other than Mary-
land, at a total cost in excess of $390,000.5 The goods and services
used at the Baltimore plant which had their origin in States other than
Maryland, are essential to practically every phase of the manufacture
of bread and rolls. The materials purchased outside the State of
Maryland are transported to the respondent's plant in Baltimore by
parcel post and via carriers which are engaged in interstate and oceanic
commerce. The transportation facilities of 8 motor carriers and 11
railroads were utilized for this purpose during 1939. •
Interplant shipments e of supplies and materials totaling 190,677
pounds were made during 1939 at a transportation cost of $861.68.7
Approximately 120 inside employees and 59 driver-salesmen are
employed at the Baltimore plant.
II. THE ORGANIZATION INVOLVED
Local 622, Bakery Drivers and Salesmen is a labor organization
chartered by the International Brotherhood of Teamsters, Chauf-
feurs, Stablemen and Helpers of America, affiliated with the American
Federation of Labors Local 622 admits to membership driver-salesmen
employed by the respondent.
8 This figures covers only the cost of raw materials , such as flour , malt, yeast , sugar,
prune juice concentrate , milk, flavoring , and sundries . The total cost ' of all goods and
services purchased outside the State during the year 1939 amounted to $458,424.96,
classified as follows :
Raw Materials------------------------------------------ $269,169.98
Containers and Wrapping Materials------------------------ 118, 172. 92
Baking Machinery Parts and Repairs--- -------------------- 13,401.07
Cost of Transportation----------------------------------- 2,258.49
Advertising costs------------ ----------------------------- 51,980.51
- Sundries --------- i-------- ------------------------------ 3,441.99
6 Such shipments included flour, wrapping materials , cartons, sacks , pail handles, bags,
uniform shirts , machine parts , bread pans , advertising material , and hardware.
° The total number of pounds and the transportation charges of these shipments , classified
by plants , is as follows :
Lbs. Dollars
Baltimore , Md., to Martinsburg, W. Va--------------- 74, 280 317. 04
Baltimore , Md., to Cumberland , Md------------------ 72, 345 336 21
Martinsburg , W. Va, to Baltimore , Aid ----------------- 16,277 81.14
Cumberland , Md, to Baltimore , Md-------------------- 26, 575 125,61
Martinsburg , W. Va., to Cumberland , Md-------------- 500 1. 95
Cumberland , Md., to Martinsburg , W. Va--------------
The record does not show the dollar value of these shipments.
700, - 2.73
-
8 Local 622 was chartered by the International Brotherhood of Teamsters , Chauffeurs,
Stablemen and Helpers of America on June 16, 1939 . Its predecessor, Local 355, Truck
Drivers , andflelpers , was also chartered by the International. It was stipulated at the
hearing that Local 622 is in fact the successor of Local 355, and that the status of appli-
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit
The respondent and the Union stipulated at the hearing that all
driver-salesmen, excluding supervisory employees, employed by the
respondent at its Baltimore, Maryland, plant, constitute a unit
appropriate for the purposes of collective bargaining.
We find that all driver-salesmen, excluding supervisory employees,
employed by the respondent at its Baltimore, Maryland,, plant, at
all times material herein constituted, and that they now constitute,
a unit appropriate for the purposes of collective bargaining, and that
said unit will insure to employees of the respondent the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
There were approximately 59 employees in the appropriate unit
from May 1 to October 1, 1939. Prior to July 5, 1939, 56 applications
for membership in the Union, designating the Union as the repre-
sentative of the applicants for purposes of collective bargaining, were
signed by employees within the unit.9
We find that on July 5, 1939, and at all times thereafter, the Union
was the duly designated representative. of the majority of the re-
spondent's employees in the appropriate unit, and pursuant to Section
9 (a) of the Act was the exclusive representative of all the employees
in such,unit for the purpose of collective bargaining in respect to
rates of pay, wages, hours of employment and other conditions of
employment.
A. The refusal to bargain
On May, 25, 1939, Harry Cohen and William Hundertmark, repre-
sentatives of the Union, called on Carl P. Schmidt and Oliver Keene,
president and sales manager, respectively, of the respondent. Cohen
submitted 56 cards signed by the respondent's driver-salesmen au-
thorizing the Union to bargain for them, and requested a conference
to negotiate an agreement covering the driver-salesmen employed by
the respondent. Schmidt - stated that he desired to consult counsel,
and a further meeting was arranged. -
cations for membership in- Local 355, is the same as if they had' been applications ,for
membership in Local 622 from the beginning. Both labor organizations are herein referred
.to as'the Union.'-
9 Fifty-one applications were signed= in -May 1939 ; four in January, 1939 ; one was
undated - ^ - 11 - t 'j,
SCHMIDT BAKING Co., INC. 869
On May 30 the same persons , together with Kenneth Souser, counsel
for the respondent , and a committee of 4 driver -salesmen, including
John J. Hasenkamp, again met . The union authorizations were in-
spected by Keene and Souser and were declared acceptable. Cohen
submitted a proposed contract to the respondent 's representatives to
consider before the next meeting.
Further meetings were held during the month of June. By about
June 20, an agreement was reached on all demands of the Union,
including a closed-shop , with the exception of wages and commissions:
The scale of wages for driver-salesmen then prevailing in the re-
spondent 's plant was $17 per week , plus a graduated commission of
4 per cent on sales up to $300 per week and an additional 1/4 of 1
per cent on each $25 thereafter . The Union demanded $18 per week
and a straight 5 per cent commission . A counter -proposal of the
respondent of $18 per week and the existing graduated commission
was rejected by the Union. The Union then proposed $18.50 per week
and the existing graduated commission . This was rejected by the
respondent.
During the latter part of June, Schmidt left for Chicago and was
away 4 or 5 days. Cohen telephoned him when he returned , relative
to the proposed agreement . Schmidt said that he was about to leave
for Philadelphia and while there would consult with Souser , his attor-
ney. Cohen testified that he then proposed that Souser be instructed
by Schmidt to put an offer of $18 per week and the existing graduated
commission , together with the other points agreed upon, into a written
agreement which Cohen would seek to have the Union accept . 'Accord-
ing to Cohen, Schmidt did not commit himself, but suggested that
'Cohen call him after July 4. Schmidt testified that he recalled the
conversation , but did not remember that Cohen had made such a pro-
posal . The Trial Examiner , who saw and heard the witnesses, found
that the conversation occurred substantially as testified to by Cohen.
We so find.
On July 5 Cohen called Schmidt , but was informed that he was out.
On the afternoon of July 5 a meeting of the driver -salesmen was
called in the plant . Harry K. Seward 10 and John J. Hasenkamp tes-
tified as to what occurred at this meeting . In substance , their testi-
mony is as follows : Schmidt addressed the men, telling them that they
should have come to him before joining the Union , and that if they
did not join he would grant .them the same demands the Union was
making in their behalf and they would not have to pay dues. ' He fur-
ther stated that he would not enter into a closed -shop agreement, and
that the respondent was not engaged in interstate commerce. Schmidt
'^ Seward was employed by the respondent as a driver-salesman from November 1936
until about 3 weeks prior to the hearing.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then told the employees that he would give them free uniforms and
would eliminate a demerit system which reduced the time allotted for
vacations. These were demands which the Union had previously made'
and which the respondent had agreed to grant. He also informed the
employees that their wages would be increased from $17 to $18 per
week, and stated that he did not want "to sell the men up the river to
the Union."
Schmidt testified that he called the meeting of July 5 in order to
inform the employees of the respondent's position, that he told the
men that he would not enter into a closed-shop agreement, that he
believed the matter of uniforms could be arranged, and that he granted
them a wage increase of $1 per week. The Trial Examiner, who ob-
served the witnesses, found that Schmidt also made the statements
as related by Seward and Hasenkamp, to the effect that the employees
should have come to him before joining the Union, that he would grant
the demands the Union was urging in their behalf and thus save them
the payment of dues if they did not join, and that he did not want "to
sell the men up the river to the Union." Schmidt did not deny that he
had made these statements. We find that the statements were made
by Schmidt substantially as testified by Seward and Hasenkamp.
On the following day, July 6, Cohen, accompanied by Hundert-
mark, called on Schmidt. Schmidt told them, "I am not going to
sign anything." Cohen asked if "all bets were off?" Schmidt • an-
swered, "That is right."
The action of the respondent in calling together the driver-sales-'
men on July 5 and granting them concessions which had already been
agreed upon with the Union, and offering them a wage increase at
a time when the question of wages remained a subject of negotiations
with the Union, constituted a refusal to bargain." By such unilat-
eral action the respondent indicated to its employees that the Union
was an ineffective instrument through which they might expect to
secure their demands. This action undercut the authority of the
Union as the chosen representative of the employees and was obvi-
ously designed to discourage, and had the necessary effect of discour-
aging, union membership and activity. On the day following this
action the respondent flatly refused to negotiate further with the
Union.
The respondent, however, contends that it was justified in dealing
directly with the men and refusing to deal with the Union because
"See National Labor Relations Board v. Bites-Coleman Lumber Co., 98 F (2d) 18
(C. C. A. 9), enf'g Matter of Biles -Coleman Lumber Co. and Puget Sound District Council
of Lumber and Sawmill Workers , 4 N. L R. B. 679; of Matter of Whittier Mills Company
and Silver Lake Company , et at. and Textile Workers Organizing Committee,-15 N. L. It. B.
457, enf 'd 111 F (2d) 474 (C. C. A. 5) ; Matter of Dallas Cartage Company, et al. and Int'l
Brotherhood of Teamsters , Chauffeurs, Stablemen and Helpers of America, Local 745, 14
N. L. It. B. 411.
SCHMIDT BAKING CO., INC.
1
871
the Union no longer represented a majority of the driver -salesmen
at the time the meeting of July 5 was called. This contention is based
on the testimony of Schmidt , who stated that he received the im-
pression several days prior to July 4 that the Union no longer com-
manded a majority. He admitted that he had no exact proof, but
stated that he based his opinion on "the actions of the men them-
selves." The "actions of the men ," Schmidt explained , were "freer,','
and their freedom was characterized by the fact that, "While this
thing was going on they dodged me instead of saying, , `Hello, Mr.
Carl ,' or, `Good morning, Mr. Carl ,' or something like that." He
-admitted , also, that at, no time after May 30 did he question the
Union concerning its majority . The reason he failed to do so, he'
testified , was because "I felt I should consider my men, and not
the officials of the Union."
When the respondent declared the Union 's authorizations acceptable
at the meeting on May 30, Schmidt reserved the right to ask that the
Union be certified , if it were later deemed to be necessary. During
a subsequent conference at the Regional Office of the Board, however,
Schmidt repudiated a suggestion that a consent election be held
because he "wanted jurisdiction to be proven first." If"the respondent
entertained a bona fide doubt as to the authority of the Union it
could have dispelled it at that time. Instead , it chose to stand on
the ground that it was not subject to the terms of the Act.
On the basis of the entire record, we are not convinced that the
respondent entertained a reasonable doubt as to the authority of
the Union , or that it was motivated by reason of such doubt in its
refusal to bargain 12 As we have already found, the Union, in fact,
represented a majority of the driver -salesmen at this time.
We find that on July 5 and 6, 1939, and thereafter , the respondent
refused to bargain collectively with the Union as the exclusive
representative of its driver -salesmen in respect to rates of pay,
wages, hours of employment , and other conditions of employment;
and that it thereby interfered, with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
B. The discriminatory discharge
Jonn J. Hasenkamp was employed by the respondent as a driver-
salesman in 1931 and worked steadily until he 'was discharged on
September 18, 1939.
Hasenkamp joined the Union in 1937 and was active in the mem-
bership campaign it then conducted. He again joined the Union
' See National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A.
2), enf 'g Matter of Remington Rand, Inc. and Remington Rand Joint Protective Board of
the District Council Office Equipment Workers, 2 N. L. it. B 626
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in 1939, and during May of that-year personally, secured 42 union
membership applications from driver-salesmen mployed by the
respondent. In May or June 1939 he became president of the Union
and was one of the committee of four employees participating in the
negotiations between the Union and the respondent.
During July and August 1939, Hasenkamp testified, he was twice
called into the office of President Schmidt, and was also called one
evening by Sales Manager Keene. According to Hasenkamp, on
each occasion he ,was asked, in substance, "Why don't you quit if
you don't like it around here? It is no use to join a Union ; if you
are not satisfied with things that goes on around here, why don't
you quit?" In each instance Hasenkamp replied he had done,
nothing wrong and that he would not quit.
Keene, who is no longer in the respondent's employ, did not appear
as - a witness. Schmidt's version was that Hasenkamp was in
Keene's office "complaining about something"; that Keene asked
Hasenkamp, "Well, why don't you quit, Joe?"; and that Schmidt
likewise asked, "If you don't like it around here, why don't you
quit?" Schmidt also recalled another occasion on which he had made
a similar statement to Hasenkamp. He was not, however, certain as
to when the latter conversation occurred. We find, as did the Trial
Examiner who observed the witnesses, that Schmidt and Keene made
the statements attributed to them 'by Hasenkamp substantially as
recited above.
On September 18, 1939, Hasenkamp was discharged by Schmidt.
Three reasons were given to Hasenkamp for his discharge: (1) giv-
ing a discount to one Pappas, a customer of the respondent, in viola-
tion of the respondent's rules; (2) breaking a spring on his truck;
and (3) having a low sales record.
Schmidt testified that neither the granting of a discount by Hasen-
kamp nor that fact that he broke a spring on his truck would alone
or together have been sufficient cause for discharge, but that his low
sales record provided a sufficient basis for dismissing him. In view
of Schmidt's admission, we find it unnecessary to consider the first
two reasons urged by respondent for Hasenkamp's dicharge.13 We
13 In any event , the evidence with respect to the granting of a discount and the broken
spring is not convincing . For a period of at least 4 months prior to his discharge, Neal,
vice president of the respondent , permitted Hasenkamp to pay for the daily purchases made
by Pappas and send the latter a statement at the end of the month . Pappas' checks for
the sums due were remitted to the respondent and turned over to Hasenkamp . The re-
spondent retained the statements , and Hasenkamp kept no record of the amounts because
they were small. Hasenkamp denied that he had ever granted a discount , and disclaimed
all knowledge of any discount taken by Pappas Under the arrangement which existed, a
discount , if taken, would be a loss to Hasenkamp rather than to the respondent . Broken
springs were a common occurrence among all the driver -salesmen of the respondent and
were to be expected in the case of Hasenkamp , whose route carried him over rough country
roads. There is no evidence that any of the respondent 's driver-salesmen bad ever been
discharged for this reason.
SCHMIDT BAKING CO., INC. 873
turn , therefore , to a consideration of the respondent' s assertion that
Hasenkamp was discharged because of his low sales record.
From October 1, 1938, to September 23, 1939, the total earnings of
each of the 59 driver-salesmen employed by the respondent varied
from a high of $2,340 to a low of $1,460; a difference per week of $17
in salary or $425 in sales.14 Hasenkamp's earnings totaled $1,610.57.
No marked trend is shown in his record over this period. For the
6 or 8 weeks prior to the time he was discharged, however, his earnings
showed an improvement. For the same-period, from October 1, 1938;
to September 23, 1939, 10 of the 59 employees earned less, and therefore
had lower sales, than Hasenkamp. There is no evidence that any of
them was discharged. While Schmidt testified that he discharged 2
or 3 other driver-salesmen for low sales during the year preceding
the hearing, it does not appear that they were among the 10 employees
having lower sales records than Hasenkamp, nor does it explain why
Hasenkamp was discharged for that reason while 10 other employees
who had poorer records were retained.
The respondent, as evidence that Hasenkamp's sales record was
low,ls drew attention to the fact that the earnings of Hasenkamp
during the 11 weeks after July 5, 1939, averaged $32.08 per week,
while Hasenkamp's successor earned an average of $33.27 per week
from September 30, 1939, to April 4, 1940, a net difference in salary
of $1.19 per week, or the equivalent of somewhat less than $25 per
week in sales . The argument loses its force, however, when these
figures are compared with the average earnings of each of the 59
driver-salesmen, which, as noted above, show differences as great as
$17 per week in salary or $425 in sal es 16 over a period of about a year.
Approximately 10 of the 59 driver-salesmen have country routes
such as that operated by Hasenkamp. Although Schmidt testified that
country routes were no less desirable than city routes from a sales
standpoint, the earrings of the employees on country routes were not
shown. It is thus impossible to compare Hasenkamp's earnings with
those of employees operating similar territories.
Hasenkamp 's activity as a leader of the Union, the repeated sug-
gestions of Schmidt and Keene that he quit the respondent's employ,
and the respondent's attempt to override the authority of the Union,
lead to the conclusion that his discharge was not motivated by his
sales record nor by the other reasons advanced, but, on the contrary,
This figure is computed on the basis of a straight 4-percent commission on weekly sales
exceeding $300.
15 The respondent also sought to show that Hasenkamp reported late for work and that
as a result his sales were low. The evidence with respect to the time Hasenkamp was
supposed to' report for work is in a state of confusion . We do not find it necessary,
however, to pass upon this question , since we find that the sales record of Hasenkamp did
not furnish a justification for his discharge.
16 See footnote 14, supra.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was induced by the respondent's desire to rid itself of Hasenkamp
because of his leadership of and activity on behalf of the Union.
We find that the respondent discharged John J. Hasenkamp on
September 18, 1939. and thereafter refused to reinstate him because
of his membership and activities in the Union, and that it thereby
discriminated in regard to his hire and tenure of employment, dis-
couraged membership in the Union, and interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade,, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce 17
V. THE REMEDY
Having found that the respondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act, and
to restore as nearly as possible the conditions which existed prior to
the commission of the unfair-labor practices.
- We have found that the respondent has refused to bargain collec-
tively with the Union. We shall order it, upon request, to bargain col-
lectively with the Union as the exclusive representative of its driver-
salesmen. `
We have found that the respondent discriminatorily discharged and
refused to reinstate John J. Hasenkamp. Hasenkamp testified that he
obtained temporary employment at a number of different companies
following his discharge, and received unemployment compensation part
of the time. He stated that he had- secured a job some 6 or 7 weeks
prior -to the hearing as a truck driver for the National Biscuit Com-
pany; that he did not know whether the job was, permanent; that if it
was permanent he did not wish to return to work for the respondent,
17 Cf. Matter of Suburban Lumber Company and International Brotherhood of Teamsters,
Chauffeurs, Stablemen and Helpers of America, Local Union No. 676, 3 N. L. R B. 194;
Matter of Petroleum Iron Works Company and International Brotherhood of Boilermakers,
Iron Ship Builders, Welders and Helpers of America, 4 N L R. B. 959; Matter of Cook
Coffee Company' and Central Tea Company and Home Tea Company and United Tea and
Coffee Workers Union, Local 155, affiliated with United Retail and Wholesale Employees
of America , 22 N. L. R. B. 967; Matter of Dayton & Waldrip Company and Lodge 2018,
Amalgamated Association of Iron, Steel and Tin Workers of North America, through the
Steel Workers Organizing Committee, affiliated with the C. I. 0., 24 N. L. R. B. 780.
SCHMIDT BAKING CO., INC. 875
but that if the job was only temporary he would like to be reinstated.
The respondent contends that Hasenkamp has secured regular and sub-
stantially equivalent employment elsewhere and, therefore, is no longer
an employee, within the meaning of Section 2 (3) of the Act; that,
since he is not an employee, the Board has no power to reinstate him.
While we do not adopt the view that the obtaining of other regular
and substantially equivalent employment deprives the Board of the
power to reinstate an individual who has been discharged for union
activities and desires reinstatement'18 we find, on the basis of the record,
that Hasenkamp has not obtained regular and substantially equivalent
employment elsewhere.
We shall order the respondent to offer John J. Hasenkamp im-
mediate reinstatement to his former or substantially equivalent posi-
tion, without prejudice to his seniority and other rights and priv-
ileges, and to make him whole for any loss of pay he has suffered
by reason of his discharge by payment to him of a sum of money
equal to that which he normally would have earned as wages from
the date of such discharge to the date of the respondent's offer of
reinstatement, less his net earnings 19 during said period.
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Local 622, Bakery Drivers and Salesmen, chartered by the Inter-
national Brotherhood of Teamsters, Chauffeurs, Stablemen, and
Helpers of America, affiliated with the A. F. of L., is a labor organi-
zation, within the meaning of Section 2 (5) of the Act.
2. All driver-salesmen, excluding supervisory employees, employed
by the respondent at its Baltimore, Maryland, plant, at all times ma-
terial herein constituted, and they now constitute, a unit appropriate
8 Matter of Eagle-Picker Mining c6 Smelting Company, a corporation, and Eagle-Picher
Lead Company, a corporation and International Union of Mine , Mill cG Smelter Workers,
Locals Nos . 15, 17, 107, 108 , and 111, 16 N. L It. B 727; Matter of Continental Box Com-
pany, Inc. and Federal Labor Union No. 21328, 19 N. L. R. B. 860, enf ' d in Continental
Box Co. v. N. L R B, 113 F. (2d) 93 (C C. A. 5).
11 By "net earnings" is meant earnings less expenses , such as for transportation, room
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful dis-
charge, and the consequent necessity for his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L It . B 440. Monies received for
work performed upon Federal , State, county , municipal , or other work -relief projects are
not considered as earnings , but, as provided below in the Order, shall be deducted from the
sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal
agency of the Federal , State, county , municipal , or other government or governments which
supplied the funds for said work-relief projects See Matter of Republic Steel Corporation
and Steel Workers Organizing Committee , 9 N. L. It. B. 219, enf 'd, as modified on other
grounds , Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3), cert.
granted as to this issue, 60 S Ct. 1072.
876 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
for the purposes of collective bargaining, within the meaning of
Section 9 (b) of the Act.
3. Local 622, Bakery Drivers and Salesmen, was on July 5, 1939,
and at all times thereafter has been the exclusive representative of
all the employees in such appropriate unit for the purpose of collec-
tive bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing on July 5 and 6, 1939, and at all times thereafter,
to bargain collectively with the Union as the exclusive representative
of the employees in the appropriate unit, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (5) of the Act.
5. By discriminating in-regard to the hire and tenure of employ-
ment of John J. Hasenkamp, thereby discouraging membership in
Local 622, Bakery Drivers and Salesmen, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act. -
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
7. The -aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Schmidt Baking Company, Inc., Baltimore, Maryland,
and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively •with Local 622, Bakery
Drivers and Salesmen, as the exclusive representative of all its driver-
salesmen, excluding supervisory employees, employed by it at its
Baltimore, Maryland, plant;
(b) Discouraging membership in Local 622, Bakery Drivers and
Salesmen, or any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees, or in any other
manner discriminating in regard to their hire or tenure of employ-
ment or any terms or conditions thereof ;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form,, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
SCHMIDT BAKING Co., INC. 877
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 622, Bakery
Drivers and Salesmen,,as the exclusive representative of all its driver-
salesmen, excluding supervisory employees, employed by it at its
Baltimore, Maryland, plant, respecting wages, hours of employment,
and other conditions of employment;
(b) Offer to John J. Hasenkamp immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority and'other rights and privileges;
(c) Make whole John J. Hasenkamp for any loss of pay he has
suffered by reason of his discharge by payment to him of a sum of
money equal to that which he normally would have earned as wages
during the period from the date of his discharge to the date of the
offer of reinstatement, less his net earnings 20 during said period;
deducting, however, from the amount otherwise due to the said em-
ployee monies received by said employee during said period for work
performed upon Federal, State, county, municipal, or other work-
relief projects; and pay over the amount so deducted to the appro-
priate fiscal agency of the Federal, State, county, municipal, or other
government or governments which supplied the funds for said work-
relief project;
(d) Post immediately in conspicuous places throughout its Balti-
more, Maryland, plant, and maintain for a period of at least sixty
(60) consecutive days'from the date of posting, notices to its em-
ployees stating (1) that the respondent will not engaged in the con-
duct from which it is ordered to cease and desist in paragraphs 1 (a),
(b), and (c) of this Order; (2) that it will take the affirmative action
set forth in paragraphs 2 (a), (b)', and (c) of the Order; and (3)
that its employees are free to join or remain members of Local 622,
Bakery Drivers and Salesmen, and that the respondent will not dis-
criminate against any employee because of membership or activity in
that organization;
(e) Notify the Regional Director for the Fifth Region in writing
within ten, (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
20 See footnote 18, supra
0