American Bread Co.

National Labor Relations Board - Board Decisions

Aug 14, 1943

51 N.L.R.B. 1302 (N.L.R.B. 1943)

In the Matter of AMERICAN BREAD COMPANY and BAKERY & CoNTEC-
TIONERY WORKERS ' INTERNATIONAL UNION OF AMERICA, LOCAL
No. 128
Case No. C-2531 .-Decided August 11, 1943
DECISION
AND
ORDER
On February 16, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set out in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report, and a brief in support of the exceptions. Oral
argument was held before the Board at Washington, D. C., on March
23, 1943. Subsequent thereto, the Board on April 9, 1943, ordered that
the record be reopened for the purpose of obtaining additional evi-
dence. On June 7, 1943, the parties executed a stipulation, and on
July 9 an amendment thereto, which were- accepted by the Board in
lieu of further hearings, and were made part of the record herein.
The Board has considered the rulings of the Trial Examiner made at
the hearing and rinds that no prejudicial errors were committed. The
rulings are hereby affirmed.
The Board has considered the Intermediate Report, the respondent's
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following exception and additions :
The Trial Examiner has found, and we agree, that the respondent
discriminated with regard to the hire and tenure of employment of
the strikers . We do not, however, regard the evidence as sufficient to
support the Trial Examiner's subsidiary finding that on July 11, 1942,
the date on which the strikers offered to return to work, President
Evers told the Union's business agent, Rowlette, that the strikers
would not be reinstated, and we do not rely upon this finding in de-
ciding that the respondent discriminated against the strikers on and
51 N. L . R. B., No. 208.
1302
AMERICAN BREAD COMPANY 1303
after July 11, 1942. The record discloses that between July 12 and
September 28, 1942, the respondent hired approximately 64 new em-
ployees to perform work which could have been performed by the
strikers; that approximately 24 of these new employees were engaged
in the shipping department, approximately 16 in the cake finishing
department, and approximately 24 in the bread department; and that
among the strikers were at least 11 who had formerly been employed
in the shipping department, 8 who had formerly been employed in the
cake finishing department, and 15 who had formerly been employed
in the bread department. As indicated in the Intermediate Report,
there is frequent inter- and intra-departmental exchange of personnel.
The strikers are admittedly capable of performing the duties which
they had previously performed. Furthermore, as the Trial Examiner
has found, the respondent, in hiring employees, customarily prefers
persons who have had previous experience with it as against persons
without such experience; despite this practice and the number of em-
ployees hired by the respondent following the termination of the
strike, it offered reemployment to only 2 of the strikers. In view of
the foregoing, and in the absence of any adequate explanation by the
respondent for this wholesale departure from its practice, we find, as
did the Trial Examiner, that the respondent failed and refused to
recall the strikers whose names appear in Appendix A to the Inter-
mediate Report because of their union membership or concerted
activities.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, American Bread Company,
Nashville, Tennessee, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Bakery & Confectionery Work-
ers' International Union of America, Local No. 128, or in any other
labor organization of its employees, by discharging or refusing to
reinstate or hire employees, or by discriminating in any other manner
in regard to the hire and tenure of employment or any term or condi-
tion of employment of employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
1 The courts have repeatedly held that an unexplained departure from a customary prac-
tice is "cogent evidence of discrimination " (N. L R B v Rock Heil Printing d Finishing
Co, 131 F. (2d) 171 (C. C. A. 4)) and that "if no other reason [for the discharge] isl
apparent , union membership may logically be inferred " ( N. L R. B . v. Tex-O-Kan Flour
Mills Co., 122 F . ( 2d) 433, 438 (C. C. A. 5)).
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
join, or assist labor organizations , to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
and 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) Offer to the strikers whose names appear in Appendix A to
the Intermediate Report immediate and full reinstatement, without
prejudice to their seniority and other Tights and privileges, in the
manner set forth in the section of the Intermediate Report entitled
"`The remedy," placing those employees for whom employment is not
immediately available and those who, although reinstated, are re-
instated not to their former or substantially equivalent positions, but
to positions for which they are qualified, upon a preferential list in
the manner set forth in said section;
(b) Make whole each of the strikers whose names are listed in
Appendix A to the Intermediate Report for any loss of pay he has
suffered by reason of the respondent's discrimination in regard to
his hire and tenure of employment in the manner provided in the
section of the Intermediate Report entitled "The Remedy";
(c) Post immediately in conspicuous places throughout its plant
at Nashville, Tennessee, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to itsl em-
ployees stating : (1) that the respondent will not engage in the con-
duct from which it is ordered to cease and desist in paragraphs 1
(a) and (b) of this Order; (2) that the respondent will take the
affirmative action set forth in paragraphs 2 (a) and (b) of this
Order; and (3) that the respondent's employees are free to become
and remain members of Bakery & Confectionery Workers' Interna-
tional Union, Local No. 128, and that the respondent will not dis-
criminate against any employee because of membership in or activity
on behalf of that organization;
(d) Notify the Regional Director, for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
CHAIRMAN MILLis took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Dan M . Byrd, Jr., for the Board.
Armistead, Waller, Davis and Lansden, by Mr. George H. Armistead, Jr., of
Nashville , Tenn., for the respondent.
Mr. Curtis R. Sims, of Chattanooga , Tenn ., for the Union.
AMERICAN BREAD COMPANY 1305
STATEMENT OF THE CASE
Upon an amended charge duly filed January 13, 1943, by Bakery and Con-
fectionery Workers' International Union of America, Local No. 128, 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
Tenth Region (Atlanta, Georgia), issued its complaint dated January 13, 1943,
against American Bread Company, a corporation, Nashville, Tennessee, herein
called the respondent, alleging 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 National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint;
amended charge and notice of hearing thereon, were duly served upon the
respondent -and the Union.
With respect to the unfair labor practices, the complaint alleged, in sub-
stance: (1) that the respondent on or about June 28, 1942, and at various
other times refused to bargain collectively with the Union as the exclusive
representative of its employees in a unit appropriate for the purposes of col-
lective bargaining, although the Union on or about June 28, 1942, became and
at all times thereafter has been the duly designated representative of a ma-
jority of the employees in such unit; (2) that as a result of and in protest
against the respondent's refusal to bargain the respondent's employees went on
strike on or about June 28, 1942, and remained on strike until July 11, 1942,
at which time said strike was officially terminated; (3) that on or about July
11, all the employees whose names appear in Appendix A attached to this
Intermediate Report and who had gone on strike because of the respondent's
refusal to bargain with the Union, applied to the respondent for reinstatement
to their former or substantially equivalent positions ' and that the respondent
on July 11, 1942, refused and at all times since has refused to reinstate these
employees because of their membership in and activities in behalf of the Union
and because they engaged in concerted activities for their mutual aid and pro-
tection; and (4) by the aforementioned unfair labor practices the respondent
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
In its answer dated January 18, 1943, the respondent denied that it had'
engaged in or was engaging in the alleged unfair labor practices. The answer
admitted receipt of notice that the strike had been terminated ; denied that
the strikers' request for reinstatement had been refused because of their con-
certed activities and averred that the "respondent did refuse to reinstate some
employees because they had left their jobs voluntarily and without any, just or
legal reason or cause."
Pursuant to notice, a hearing was held on January 25 and 26, 1943, at
Nashville, Tennessee, before Mortimer Riemer, the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner. The Board and the respondent
were represented by counsel, and the Union by its International representa-
tive. All parties 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 the parties.
During the course of the hearing counsel for the Board moved to dismiss
those allegations of the complaint which alleged that the respondent had re-
fused to bargain with the Union and that as a result of said refusal the
employees had gone on strike. This motion was granted without objection.
Counsel for the Board also moved to strike the names of 7 employees who, it
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was alleged, were discriminatorily refused reinstatement on July 11, 1942.' This
motion was granted without objection. At the conclusion of the Board's case,
counsel for the respondent moved to dismiss the remaining portions of the
complaint not affected by the previous motions of the Board's counsel. This
motion was denied. At the conclusion of the hearing, the Board moved to
conform the pleadings to the proof with respect to dates and spelling of names,
which motion was granted without objection. Decision was reserved on the
motion of the counsel for the respondent to dismiss the complaint. This motion
is now denied. After all the evidence had been adduced, counsel for the
Board and the respondent presented oral argument on the record before the
undersigned. The Union's representative presented no oral argument. Al-
though advised that they might do so all parties waived the right to file briefs
with the undersigned.2
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Tennessee corporation operating a general bread and
cake baking business at its sole production 'plant in Nashville, Tennessee. Its
principal products, consisting of 58 varieties of loaf bread, doughnuts, cakes, and
related bakery products, amounted in value in 1942, to more than $250,000, 26
percent of which represented shipments to points outside the State of Tennessee.
During the same period, the respondent purchased raw materials consisting of
flour, sugar and shortening, valued in excess of $100,000, approximately 80
percent of which was shipped to the respondent from points outside the State
of Tennessee. The respondent operates 40 trucks for the distribution of its
merchandise.
The respondent admits, for the purposes of this proceeding, that it is en-
gaged in commerce within the meaning of the Act. ,
II. THE ORGANIZATION INVOLVED
Bakery and Confectionery Worker's International Union of America, Local
No. 128, is a labor organization affiliated with the American Federation of
Labor, admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Events leading to the strike of June 27, 19112
At various times during the course of the progress of the Union's organiza-
tional activities in 1942, several of the respondent's supervisory officials, includ-
ing its president, F. B. Evers, displayed a hostile attitude towards the Union.
On April 15, 1942, the respondent's employees in the cake department of its
plant went out on strike. That strike was caused by the respondent's unfair
labor practices, particularly the circulation of a loyalty petition, and threats,
inquiries, and advice concerning union membership. These were the findings
1 The names stricken by the motion are : Frank Buckler, R L Hackney, David Johnson,
E. L. McClellan, Leo F McDonald, James Parrish, and James Wittmann.
2 On February 5, 1943, subsequent to the bearing but prior to the issuance of the Inter-
mediate Report, the undersigned issued an Order correcting the transcript, pursuant to a
telegraphic stipulation entered into between counsel for the Board and the respondent and
the International representative of the Union.
AMERICAN BREAD COMPANY 1307
of the Board in a Decision and Order dated October 9, 1942, involving the
same parties .3
On the morning of June 27, 1942, Joe Rowlette, the Union's business agent,
called upon Evers, the respondent's 'president and general manager. Rowlette
asserted that the Union represented a majority of the respondent's employees,
demanded that it be recognized as the exclusive bargaining representative and
that the respondent commence negotiations concerning the terms and condi-
tions of a contract. Evers indicated his unwillingness to start negotiations and
suggested that an election be held to determine the Union's right to repre-
sentation. This suggestion Rowlette rejected because, as he testified at the
hearing, of the respondent's previous interference with a consent election
scheduled to be held on April 10, 1942, which was called off at the request of
the Union. Thereafter Rowlette returned to his office where he communicated
the outcome of his interview with Evers to members of the Union. The mem-
bers thereupon decided to strike. About 9 o'clock on the night of Julie 27,
52 of the respondent's employees went out on strike and established a picket
line about the respondent's plant.'
B. Refusal to reinstate
The complaint alleged that on or about July 11, 1942, and at all times there-
after, except as hereinafter indicated, the respondent refused and failed to
reinstate to employment at its plant the employees who participated in the
strike of June 27, 1942, because of their membership in the Union and their
participation in this strike. It is further alleged that by such refusal to re-
employ, the respondent discriminated in regard to the hire and tenure of em-
ployment of the said individuals and discouraged membership in the Union, in
violation of Section 8 (3) of the Act.
It is clear from the definition of an "employee" in Section 2 (3) of the Act,
that a strike does not terminate the employer-employee relationship, where the
employee has ceased work in connection with a current labor dispute or because
of an unfair labor practice. In the Mackay Radio case,5 the Supreme Court
held that an employer whose employees have struck and who has committed
no unfair labor practice is not obliged to discontinue his business but may hire
others in the place of the strikers. The employer's obligation to reinstate, in
ouch case, extends only to such of the striking employees as have not been
replaced during the strike.
Thus, in the instant case, the employees having gone on strike in a current
labor dispute, retained their status as employees for the purpose of the Act and
its protective provisions. They had a right to apply for and to be reinstated.
If the respondent was not guilty of an unfair labor practice, the right existed
subject, however, to the condition that only such strikers could seek and get
reinstatement as. had not already been replaced during the strike.
On July 11, 1942, the Union terminated the strike because "the people wanted
to go back to work." Rowlette notified Evers by telephone of this decision and
3In the Matter of American Bread Company and Bakery and Confectionery Workers
International Union of Ainerica, Local #128, A F. of L, 44 N L R B 970
'Although the complaint alleged that the strike was caused by the respondent's unfair
labor practices in refusing to bargain with the Union, this allegation was dismissed during
the hearing on motion of counsel for the Board. Hence, what is alleged in the complaint
to be an unfair labor practice strike becomes, for the purpose of this Intermediate Report,
a fair labor practice strike, or a current labor dispute engaged in by the employees, not
because of any unfair labor practice on the respondent 's part, but because of a dispute
between the Union and the respondent
i N. L. R . B. v. Mackay Radio if Telegraph Co., 304 U. S 383
1308 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
stated the Union was seeking the reinstatement of all the strikers.' Evers told
Rowlette that he would see him at the plant but that he would not talk to the
strikers. Thereafter on the same day, Rowlette accompanied by 18 of the
striking employees called at ' the plant to' see Evers. Rowlette repeated his
request for reinstatement and asked Evers for application forms to be filled in
by the strikers who accompanied him.7 According to Rowlette 's testimony
Evers said : "I will give you some papers that you can sign their names to, but
it won't do you any good anyway, it won't do you any good to apply, you are
not going to get your job back here. Just sign a blank piece of paper with your
name and address and give it to the secretary ." Evers denied that he told
Rowlette that it would not do the, strikers any good to apply for their jobs
because they would not be reinstated. He claimed at the hearing to have told
Rowlette to make application and that he "would see what could be done." He
testified further, that he stated to Rowlette that it was not necessary for the
strikers to complete new application forms inasmuch as their original applica-
tions were still on file and for the further reason that Evers wanted to save
time and "be nice to them," he said that it would be sufficient if each left his
name, address and telephone number. When Evers was asked at the hearing
what he meant when he allegedly said that he "would see what could be done"
for the strikers seeking reinstatement, he answered : "I simply meant nothing,
it was just simply a nice thing to say to him [Rowlette]." When asked whether
he had any intention to reinstate the strikers on July 11, 1942, Evers testified :
"I had no intentions of any kind," but that he "wanted to be courteous."
The crucial conflict in the above testimony of Rowlette and Evers is whether
the latter stated in substance that no purpose would be served in filing appli-
cations for strikers because the respondent had no intention of reinstating those
who had struck. In deciding this issue neither Rowlette nor Evers were satis-
factory witnesses. Rowlette's testimony on other matters was plainly confused
if not unintelligible. Everys was evasive and not forthright. But, as between
the two there is no showing that Rowlette gave a false version of his con-
versation with Evers and the undersigned believes that it represents an accur-
ate account of what Evers said. Rowlette's testimony moreover, is corroborated
in part by the respondent's answer sworn to by Evers, wherein it is admitted
that the "respondent did refuse to reinstate some employees because they had
left their jobs voluntarily and without any just or legal reason or cause."" In
addition Evers admitted at the hearing that he had no intention of reinstating
the ,strikers at the time application was made. This attitude is consistent with
his action in asking each striker to leave his name and address in order to save
time and "be nice to them." Accordingly, the undersigned finds that on July 11,
1942, Evers told Rowlette that the strikers would not be reinstated.
Moreover, neither Rowlette nor the strikers were told that their places had been
filled. This reason as a ground for refusing reinstatement on July 11, 1942, was
9 The respondent's answer admitted "that on or about July 11, 1942, the Union did offi-
cially notify respondent that the strike was called off "
7 These findings are based upon Rowlette's uncontradicted testimony. In N. L R B v.
Lightner Publishing Corp. of Illinois, 128 F. (2d) 237 (C. C. A. 7), the Circuit Court o$
Appeals said : "An application for work may be made personally or through an agent in
any manner which reasonably brings notice of the application to the employer."
8 Evers testified as follows :
A. I would say, off hand, the majority of them [the strikers ] left there at the date of
that strike on June 28.
Q. Your terminology that they quit might have been termed by the employees themselves
as a strike , is that true'?
A. It might have been
AMERICAN BREAD COMPANY 1309
first advanced at the hearing.' The respondent's payroll records introduced in
evidence do not support this conclusion. On June 27, 1942, the day of the strike,
the respondent had on its payroll in its production departments, 127 employees,
distributed in this fashion : bread production, 39; cake production, 16; cake fin-
ishing, 31; and shipping, 41. Although on July 11, the date of the mass appli-
cation for reinstatement, the respondent had 130 employees in these four
respective departments, it had 1 less employee in cake finishing and 6 less in the
shipping department than on June 27, 1942. Thus, although the overall employ-
ment had risen by three, there were six vacancies in the shipping department, at
'least five of which could have been filed by shipping 'department employees on
strike 30 and one vacancy in cake finishing which could have been filled by one
of at least four cake icers on strike.
An examination of payrolls for the periods ending July 18 and July 25 respec-
tively, indicates that although the overall employment figure had dropped from
what it was on either June 27 or July 11, the respondent had increased the
number of employees engaged in miscellaneous tasks by six on July 18 and five
on July 25 over the number so engaged on July 11. It is also true that the
respondent employed fewer persons on July 18 and 25, in its bread production,
cake finishing and shipping departments than it had at work on June 27, the
day of the strike.1' Except for James Wlttmann, a striker offered a job on
July 13, which he refused, the respondent did not offer any of the vacancies exist-
ing on July 11, 18, and 25, 1942 to the strikers." An examination of the payroll
for July 25, 1942, reveals further, the names of at least five employees in the
bread production department hired subsequent to July 11, 1942, the date of the
Union's application for reinstatement of the strikers.13 Evers admitted that none
of these jobs were offered to the strikers, although W. S. Swanson, superintend-
ent of the department, knew of the strikers' pending applications.
Inasmuch as there is a considerable amount of interchange of positions among
the respondent's employees as manifested by the testimony of Swanson, the-
undersigned finds no reason to believe that there were not any strikers who could
have filled the positions still vacant on July 11, 1942, and thereafter, or the
positions for which new employees were hired. Indeed, Swanson testified that
following seasonal lay-offs employees were recalled principally on the basis of
"ability" rather than any other* standard. Evers testified also, that the re-
spondent would give preference in employment to a person with previous ex-
perience with the respondent over one who lacked such experience. From an
examination of the respondent's payrolls and the testimony of Evers and Swan-
0 Evers testified that there were no vacancies on July 11, 1942.
to Edging, Hambrick, McMurtry, Mad lox and Parrish.
n Number of employees on pay roll for week ending :
June 27 July 11 July 18 July 25
Bread production---------------------------------------- 39 45 33 36
Cake finishing------------------------------------------- 31 30 27 28
Shipping------------------------------------------------- 41 35 36 36
Cake production --------------------------------------- 16 20 19 19
Maintenance--------------------------------------------- 5 5 5 4
Mlscellaneous-------------------------------------------- 2 2 8 7
134 137 128 130
1' The following strikers were rehired on the dates set opposite their names : E. L.
McClellan, July 5; Frank Buckler, July 5 ; Leo F. McDonald, July 10 ; James Parrish,
July 28 ; R. L. Hackney, September 14. The complaint was dismissed as to them at
the hearing.
1111. F. Cook, W. E. Grinstead , G. M. Hamer , W. H. McGrew and B . F. Riddle.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son concerning job descriptions and the operations of the plant, the under-
signed finds that is was customary to shift employees from one department to
another in order to facilitate operations." It is clear therefore, that the strikers
could not have been refused employment because of any lack of experience.
Accordingly, the undersigned finds that the vacancies existing on July 11 and
thereafter, as well as the work for which 5 new men were hired in the bread
production department after the termination of the strike, were vacancies which
could have been filled and work that could have been performed by individuals
listed in Appendix A.
To suimnarize, the undersigned finds that the strike of June 27, 1942, was a
labor dispute within the meaning of Section 2 (9) of the Act; that the work
of those individuals listed in Appendix A ceased as a consequence of, and in
connection with, a current labor dispute ; that said individuals retain their
status as employees within the meaning of Section 2 (3) of the Act; that the
strike was terminated on July 11, 1942, and that at that time the striking em-
ployees were entitled to fill existing vacancies and to consideration on a non-
discriminatory basis to fill newly created jobs or vacancies thereafter existing
and were entitled to protection against the unfair labor practices proscribed
by the Act ; 15 that Evers told Rowlette that the strikers would.not be reinstated
and` the filing of applications on their behalf was a meaningless gesture ; that
only 3 of the strikers were reinstated after the application of July 11, 1942; 10
that at the termination of the strike on July 11 and thereafter down to July 25,
vacancies existed and new employees were hired to do work which could have
been performed by individuals listed in Appendix A. The undersigned further
finds that Evers' reason that strikers were refused reinstatement because all
vacancies had been filled is contradicted by payroll records and that there is no
adequate or persuasive explanation for the respondent's refusal to reinstate the
strikers after application, to fill existing vacancies or its failure to consider
them on a non-discriminatory basis for new positions.
Upon this record, the undersigned is satisfied and finds, that the respondent
failed to fill vacancies and to recall the employees listed in Appendix A when
vacancies occurred in order to penalize them because of their union membership or
concerted activities.'
The undersigned finds that the respondent discriminated in regard to the hire
and tenure of employment of the employees listed in Appendix A, discouraged
membership in the Union, and thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section.7 of the Act"
IV. THE EFFECT OF 11HE UNPAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above , occurring in
connection with the operations of the respondent described in Section I above,
have a close , intimate, and substantial relation to trade, traffic , and commerce
14 For example : Swanson testified that C. W. Bennett classed as a helper in bread pro-
duction, was a utility man who could work on the bun machine, oven,, the bench or
"wherever he was needed" and this was "mostly" true of all helpers.
15 N. L R B. v. Mackay Radio cf Telegraph Co , 304 U S 333 -
10 This includes James Wittmann, offered a job which was refused.
11 Refusal to hire because of union activity ; Phelps Dodge Corp. v. N L R. B, 313 U. S.
177 (1941) ; N L R. B v. IVaatmbeo Mills, 114 F (2d) 226 (C C A. 1, 1940).
18 Assuming that on July 11, 1942, the strike was terminated and all vacancies filled,
and the persons listed in Appendix A were not employees of the respondent after the termi-
nation of the strike, the undersigned would still find that the respondent discriminated
against them as applicants for employment within the meaning of Section 8 (3) of the Act.
See Phelps Dodge and Waumbec Mills, decisions cited, supra.
AMERICAN BREAD COMPANY 1311
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies of the Act and to restore
as nearly as possible the condition which existed prior to the commission of
the unfair labor practices.
The undersigned has found that the respondent has discriminated in regard
to the hire and tenure of employment of employees listed in Appendix A. The
undersigned will therefore recommend that the respondent offer to each of the
employees reinstatement to his former or to a substantially equivalent position,
or if no such position be available, then to any position for which he may be
qualified occupied by any person hired after July 11, 1942, and to give each of
them back pay. The offer of reinstatement shall be without prejudice to their
seniority and other rights and privileges. Such reinstatement shall-be effectuated
in the following manner:
All, or such number as may be necessary, of the persons hired after July 11,
1942, the date the employees listed in Appendix A applied for reinstatement,
shall be dismissed, if necessary,"' to provide employment for those to be offered
reinstatement. If, after this is done, there is not sufficient employment imme-
diately available for all or any of the employees listed in Appendix A, all avail-
able positions shall be distributed among such employees, without discrimination
against any employee because of his union membership, activities, or partici-
pation in the strike, following the system of seniority or other procedure to
such an extent as has heretofore been followed in the conduct of the respondent's
business. Those of the said employees remaining after such distribution for
whom no employment is immediately available and those who, in accordance with
what has been set forth above, are reinstated not to their former or substantially
equivalent positions but to positions for which they may be qualified, shall be
placed upon a preferential list prepared in accordance with the provisions set
forth in the previous sentence, and shall thereafter in accordance with such list
be reinstated to their former or substantially equivalent positions, as such
employment becomes available and before other persons are hired for such work.
Further, the undersigned recommends that the respondent make whole the
employees listed in Appendix A, against whom it discriminated, in the manner
hereinafter set forth. The undersigned has found that between July 11, 1942,
the date the employees listed in Appendix A applied for reinstatement and July
25, 1942, the respondent discriminatorily filled fewer vacancies than there were
employees available and qualified to fill such vacancies. In addition, the under-
signed has found that the respondent hired new employees for work which
employees listed in Appendix A were qualified to perform. It is impossible from
the record and from an examination of the respondent's payrolls to determine,
in those instances which of the employees listed in Appendix A, absent unlawful
discrimination against them, would have been reinstated to the limited number
of positions or in what order they would have been reinstated. Accordingly,
the undersigned's recommendation with respect to back pay will make due allow-
ance for those circumstances. The undersigned will recommend that the re-
'B This does not apply to reinstated strikers but applies to persons hired for jobs which
the employees listed in Appendix A were qualified to fill.
1312 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
spondent make payment to the employees listed in Appendix A of an amount
,equal to that which each of such employees would have earned as wages during
the period from the date on which, absent discrimination against him, he would
have been reinstated had the respondent filled the vacancies, which existed on
July 11, 1942, and thereafter, with the employees listed in Appendix A, in accord-
ance with and following such system of seniority or other procedure as has hereto-
fore been followed in the conduct of the respondent's business, to the date of the
offer of reinstatement or placement upon a preferential list, less his net earnings 20
during the period.-"
Appendix A does not include the name of Harry Sanderson originally included
in Appendix A attached to the Board's complaint. It appears from the record
that Sanderson either did not go out on strike on June 27, 1942 or if he did so
he was rehired on June 30, 1942. In view of this uncertainty therefore, it is
found that the respondent did not discriminate against him within the meaning
of Section 8 (3) of the Act and Appendix A will not accordingly include his
name.
In view of the fact that one of the strikers, Douglas Davidson, listed in Ap-
pendix A, may have enlisted in the United States Navy, subsequent to the strike,
the undersigned will therefore recommend that in that event, the respondent
upon application by him within forty (40) days after his discharge from the
armed forces of the United States offer him reinstatement to his former or a
substantially equivalent position without prejudice to his seniority or other
'rights and privileges. The undersigned will further recommend that the re-
spondent make him whole for any loss of earnings he may have suffered by reason
of the respondent's discrimination against him by payment to him of a sum of
money equal to the amount he would -normally have earned as wages during
the periods: (1) between the date of the respondent's unlawful discrimination
and the date of his induction; and (2) between a date five (5) days after his
timely application for reinstatement, and the date of offer of reinstatement by
the respondent, less his net earnings 22 during those periods 21
Upon the basis of the above findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CoNcLUsIoNs of LAW
1. Bakery and Confectionery Workers' International Union of America, Local
No. 128, affiliated with the American Federation of Labor, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. By, discriminating in regard to the hire and tenure of employment of the
employees listed in Appendix A, thereby discouraging membership in the Bakery
and Confectionery Workers' International Union of America, Local No. 128, the
respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
20 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 the respondent's
'discrimination against him and the consequent necessity of his seeking employment else-
where. 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 shall be considered as earnings. See Republic Steel Corp. v. N. L. R. B.,
311 U S. 7.
21 Wilson h Co. V. N. L. R. B., 124 F. (2d)" 845 (C. C. A. 7), enforcing 30 N. L. R. B. 314.
22 See footnote 20, supra.
21 Matter of J. D. Brock, at al., and International Jewelry Workers, Local No. 9, affiliated
With the American Federation of Labor, 42 N. L. R. B. 457 , 468, 469.
AMERICAN BREAD COMPANY 1313
3. 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.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
5. The respondent has not discriminated against Harry Sanderson within
the meaning of Section 8 (3) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondent , American Bread Company, Nash-
ville , Tennessee , and its officers , agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in Bakery and Confectionery Workers' Inter-
national Union of America , Local No. 128, or any other labor organization of
its employees, by discriminating in regard to hire or tenure of employment
or any term or condition of employment ;
(b) In any other manner interfering with, restraining , or coercing its em-
ployees in the exercise of the right to self -organization , to form, join, or assist
labor organization , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purposes of collective
bargaining , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned , finds will
effectuate the policies of the Act :
(a) Offer to the employees listed in Appendix A immediate and full rein-
statement without prejudice to their seniority and other rights and privileges,
in the manner set forth in the section entitled "The remedy " above, placing
those employees for whom employment is not immediately available and
those who although reinstated are reinstated not to their former or substantially
equivalent positions but to positions for which they are qualified , upon a pref-
erential list in the manner set forth in said section ;
(b) Make whole each of the employees listed in (Appendix A, respectively, for
any loss of pay he may have suffered by reason of the respondent 's discrimina-
tion against him as to hire and tenure of employment in the manner set forth
in the section entitled "The remedy", less his net earnings during said period ;
(c) Post immediately in conspicuous places throughout its plant , and main-
tain for a period of at least sixty ( 60) consecutive days from the date of post-
ing, notices to its employees stating: ( 1) that the respondent will not engage
in the conduct from which it is recommended it cease and desist in paragraphs
1 (a) and ( b) of these recommendations ; ( 2) that the respondent will take
the affirmative action set forth in paragraphs 2 (a) and ( b) of these recom-
mendations ; and (3 ) that the respondent 's employees are free to become or
remain members of Bakery and Confectionery Workers' International Union,
Local No.' 128, and that the respondent will not discriminate against any em-
ployee because of membership or activity in that or any other labor organization;
(d) Notify the Regional Director for the Tenth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report, what steps the
respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board issue an order requiring the respondent to take the
action aforesaid.
It is further recommended that the complaint be dismissed in so far as it
alleges that the respondent has discriminated against Harry Sanderson in regard
to his hire and tenure of employment within the meaning of Section 8 (3) of
the Act.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as'amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, D. C, an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board -within ten (10) days from the date of the order transferring the case
to the Board.
MORTIMEII RIEMER
Trial Examiner
Dated February 16, 1943.
Appendix A
Ophelia B. Barrett Henry R. Escue Luther B. McMurtry, Jr.
Charles W. Bennett Clyde Ferguson Benjamin B. Mosley
William R. Bennett Roy E. Gifford Allen S. Nash
Louise R. Binkley James T. Greason Frances Parham
John Calvo Charles C. Hambrick Burton Smith Palmer
Ernest Cates Catherine G. Hudgens Frances Marie Petrone
Z. J. Creasey Elmore G. Hunter, James M. Phillips
Felix B. Clark James C. Jackson James Sandlin
James T Culberson Elmer W. Janes C. H. Smith
Douglas Davidson R. E. Knight, Jr. Elton D. Tucker
Howard Demerick Roy Mabry
Robert Edging Preston Maddox