D. H. Holmes Co., Ltd.

National Labor Relations Board - Board Decisions

Feb 18, 1949

81 N.L.R.B. 753 (N.L.R.B. 1949)

In the Matter of D. H. HOLMES COMPANY, LTD. and BAKERY AND
CONFECTIONERY WORKERS' INTERNATIONAL UNION OF AMERICA,
LOCAL No. 35, AFL
Case No . 15-C-1302.-Decided February 18, 19.49
DECISION
AND
ORDER
On June 27,1947, Trial Examiner Mortimer Riemer issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices 1 and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions and a supporting brief. The Respondent also requested
oral argument. This request is hereby denied because the record,
exceptions, and brief, in our opinion, adequately present the issues
and the positions of the parties.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the 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 additions and modifications 2
1. The Respondent has excepted to the Intermediate Report on the
ground that it does not show compliance with the procedural require-
ments added by the Labor Management Relations Act, 1947. These
procedural changes were intended to have only prospective eftect.$
'The provisions of Section 8 (1), (3), and ( 5) of the National Labor Relations Act,
which the Trial Examiner found were violated , are continued in Section 8 (a) (1), 8 (a)
( 3), and 8 (a) (5) of the Act, as amended by the Labor Management Relations Act, 1947.
2 We adopt the Trial Examiner 's findings that employees Wilson and Hart were not
discriminatorily discharged , in view of the fact that no exceptions have been filed to these
findings.
3N. L. R. B. v. National Garment Co., 166 F. ( 2d) 233 (C. A. 8) ; N. L. R. B. v. Mylan-
Sparta Co., Inc, 166 F. (2d) 485 (C. A. 6) ; N. L. R. B. v. Brazen, 166 F . (2d) 812 (C. A. 2) ;
N. L R. B. v. Caroline Mills, Inc., 167 F (2d) 212 (C. A 5).
In its exceptions, the Respondent also alleges that the Trial Examiner failed to consider
unfair labor practices by the Union in effecting a secondary boycott of the Respondent and
in intimidating employees to join the Union. Not only does the evidence fail to show
either a secondary boycott or intimidation by the Union, but such conduct, even if com-
81 N. L. R. B., No. 125. 753
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They do not apply to cases, such as the present one, in which the
Intermediate Report was issued before the effective date of the
amended Act.
2. The Respondent contends that the Board's Order of November
15, 1946, granting "with prejudice" the Union's request to withdraw
its representation petition, had the force of res judicata on the unfair
labor practices which are the basis of the complaint in this proceeding.
In permitting the Union to withdraw its representation petition, how-
ever, the Board gave no consideration to, nor did it intend in any way
to prejudice, the present unfair labor practice charges. The phrase
"with prejudice" was intended to apply only to the early filing of
another representation petition. There is consequently no proper
ground for the application of res judicata.4
3. We agree with the Trial Examiner that the Respondent violated
Section 8 (1) of the Act. We rest this finding exclusively on the
following unlawful conduct of the Respondent: (a) Secretary Evans'
coercive remarks to the employees in his speech of October 3, 1946,
(we do not rely on the Trial Examiner's alternative finding that, even
if the speech were not coercive per se, it had a coercive effect when
considered together with the Respondent's other unfair labor prac-
tices) ; (b) the lock-out of October 28, 1946; 8 (c) Manager Dichtl's
questioning of employee Wilson as to the manner in which she was
going to vote in the coming election; (d) President Lienhard's uni-
lateral granting to employees, on the eve of the election, of individual
wage increases and back pay for wages lost during the lock-out; (e)
President Lienhard's threat to close the bakery if the Union won
the election; (f) President Lienhard's interrogation of employees as
to their union activities; and (g) the Respondent's unlawful refusal
to bargain with the Union from on or about October 4, 1946.
4. We also agree with the Trial Examiner's finding that on and
after October 4, 1946, the Respondent unlawfully refused to bargain
with the Union. On October 4, when the Union made its initial re-
quest for recognition, it represented a majority of the employees in the
appropriate unit. The Respondent refused the request, insisting that
the Union first prove its majority in a Board conducted election. This,
the Respondent would have had a lawful right to do if it had been
witted, would not have been an unfair labor practice because it occurred before the enact-
ment of the amended Act ( See Section 102)
4 See N. L R. B . v. McKesson & Robbins, Inc ., 121 F. ( 2d) 84 ( App. D. C .) ; N. L. R. B. v.
Stone, 125 F (2d) 752 (C. A. 7) ; N. L. R B. v. Hawk & Buck Co, Inc, 120 F (2d) 903
(C. A. 5).
5 The Respondent contends that the lock -out was not an unfair labor practice because
there is no direct testimony that the lock-out had any coercive effect on employees who
voted in the election . Such testimony is not necessary in order to establish the unlawful-
ness of the lock-out N . L. R. B. v. Illinois Tool Works, 153 F. (2d) 811 , 814 (C. A. 7) ;
N. L. R. B . v. Ford Brothers, 170 F. ( 2d) 735 (C. A. 6).
D. H. HOLMES COMPANY, LTD. 755
motivated by a bona fide doubt of the Union's majority.6 But the
Respondent's actual purpose is disclosed in the record to have been to
gain time within which to undermine the Union's support, as indi-
cated by its unanticipated and unlawful conduct only 1 day after it
had signed a consent election agreement on November 4, 1946, and
only approximately 1 month after it had first refused to extend recog-
nition to the Union.7 The fact that under these circumstances the
Respondent prevailed on the Union to file a representation petition
with the Board is not a defense to the refusal to bargains Nor is the
election result 9 a defense, as the Respondent's unfair labor practices
during the very short period of 2 days between the execution of the
consent election agreement and the holding of the election made a
free election impossible.1° To the extent that the election showed a
defection in the Union's support, we find that it was attributable to the
Respondent's unfair labor practices, and therefore that it is not a
bar to a remedial order in this case.'1
ORDER
Upon the entire record in the 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, D. H. Holmes
Company, Ltd., New Orleans, Louisiana, and its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Bakery and Confectionery Work-
ers' International Union of America, Local No. 35, AFL, or in any
other labor organization of its employees, by discharging or refusing
to reinstate any of its employees, or in any other manner discriminat-
ing in regard to their hire or tenure of employment, or any term or
condition of their employment;
(b) Refusing to bargain collectively with Bakery and Confection-
ery Workers' International Union of America, Local No. 35, AFL, as
the exclusive representative of all production and maintenance em-
ployees in the Respondent's bakery department, excluding the depart-
e See Matter of Artcraft Hosiery Company, 78 N. L. R. B. 333; Matter of Wilson & Co.,
Inc, 77 N. L. R. B. 959 ; Matter of Georgia Twine and Cordage Company, 76 N L R B 84;
Matter of Chamberlain Corporation, 75 N. L. R. B 1188; Matter of Differential Steel Car
Company, 75 N. L. R B. 714; Matter of Roanoke Public Warehouse , 72 N. L. R. B. 1281.
7 Cf. Matter of Artcraft Hosiery Company, supra
° N. L. It. B. v. National Seal Corporation , 127 F (2d) 776 (C. A 2).
1 The Union lost the election by eight votes to nine, with two ballots challenged.
10 This is a much stronger case than Matter of Radio Corporation of America, 74 N. L.
R. B. 1729.
11 Franks Bros Company v. N. L. R. B , 321 U S. 702; Matter of Peoples Motor Express
Inc., 74 N. L. R. B. 1597.
829595-50-vol. 81-49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment manager, office and clerical employees, and all supervisors as de-
fined in the Act;
(c) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Bakery and Confectionery
Workers' International Union of America, Local No. 35, AFL, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
and to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as author-
ized in Section 8 (a) (3) of the Act, as guaranteed by Section 7 thereof.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Bakery and Confec-
tionery Workers' International Union of America, Local No. 35, AFL,
as the exclusive representative of all employees in the unit described
above, with respect to grievances, labor disputes, wages, rates of pay,
hours of employment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement;
(b) Post in its bakery department copies of the notice attached to
this Order and marked "Appendix A."- Copies of said notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein, insofar as it alleges
that the Respondent discriminatorily discharged Mary A. Wilson and
Gustave Hart, be, and it hereby is, dismissed.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
12 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted in the notice, before the words "A DECISION AND ORDER ," the words
"A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
D. H. HOLMES COMPANY, LTD. 757
APPENDIX A
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, we hereby notify our employees that :
WE WILL NOT in any manner interefere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist BAKERY AND CONFEC-
TIONERY WORKERS' INTERNATIONAL UNION OF AMERICA, LOCAL No.
35, AFL, or any other labor organization, 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 or protection, and to refrain from any or all of
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the
Act, as guaranteed by Section 7 thereof.
WE WILL BARGAIN collectively upon request with BAKERY AND
CONFECTIONERY WORKERS' INTERNATIONAL UNION OF AMERICA,
LOCAL No. 35, AFL, as the exclusive representative of all employees
in the unit described herein, with respect to grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other condi-
tions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit
is:
All production and maintenance employees in our bakery de-
partment, excluding the department manager, office and clerical
employees, and all supervisors as defined in the Act.
All our employees are free to become or remain members of the
above-mentioned union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term or
condition of employment of any employee because of membership in
or activity on behalf of any such labor organization.
D. H. HOLMES COMPANY, LTD.,.
Employer.
By ----------------------------------
(Repreeentative ) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. C. Paul Barker and Mr. Fred J. Cassibry, for the Board.
Mr. Leon Sarpy, of Chaffe, McCall, Bruns, Toler d Phillips, of New Orleans, La.,
for the respondent.
Mr. Anthony H. Buckley, of New Orleans, La., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed April 18, 1947 , by Bakery and Confectionery
Workers' International Union of America , Local No. 35, affiliated with the Ameri-
can Federation of Labor , herein called the Union , the National Labor Relations
Board, herein called the Board , by its Regional Director for the Fifteenth Region
( New Orleans , Louisiana ), issued a complaint dated April 22, 1947 , against D. H.
Holmes Company, LTD, 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.
With respect to the unfair labor practices the complaint alleged in substance
that: ( 1) the respondent since about October 4, 1946, refused to bargain collec-
tively with the Union although it represented a majority of the employees in an
appropriate unit, as result of which the employees , on or abort October 18, 19A
went on strike ; ( 2) the striking employees called off the strike on October 26,
1946, but were up to and including November 4, 1946, locked-out and refused rein-
statement because of their union membership and activity ; (3) on November 5,
1946 , the respondent bargained directly and individually with the employees in
the appropriate unit concerning their rates of pay, wages , and other conditions
of employment ; ( 4) the respondent on November 8, 1946, term inated the employ-
ment of Mary A. Wilson and Gustave Hart by forcing said employees to resign
from their employment and thereafter failed and refused to reinstate them because
of their union membership or activity; (5) the respondent ( a) compelled employ-
ees to listen to anti-union arguments ; ( b) suggested the formation of a committee
as a substitute for representation by the Union ; ( c) questioned employees as to
their union membership and why they joined the Union ; ( d) attempted to per-
suade employees to vote against the Union ; ( e) threatened to close the bakery
department if the Union won a scheduled election ; ( f) prior to the election
and for the purpose of influencing the employees ' choice of a bargaining repre-
sentative , unilaterally granted wage increases and compensated employees for
wages lost during the lock-out ; and (6 ) by reason of the foregoing acts the re-
spondent interfered with, restrained , and coerced its employees in the exercise
of ,the rights guaranteed in Section 7 of the Act.
Copies of the complaint 'together with notice of hearing were duly served upon
the respondent and the Union. The respondent filed an answer on May 5, 1947, in
which it admitted certain factual allegations of the complaint but denied that it
had engaged in any unfair labor practices . The answer set forth that pursuant to
a stipulation between the parties a consent election was held on November 6, 1946;
the Union did not receive a majority of the votes cast ; and on November 25, 1946,
the Board , acting on the Union ' s request to withdraw its petition , entered an
Order authorizing the Union to withdraw its petition "with prejudice ," thereby
closing the case.
Pursuant to notice a hearing was held on May 12, 13, and 14, 1947, in New
Orleans, Louisiana, before Mortimer Riemer, the undersigned Trial Examiner
,duly designated by the Chief Trial Examiner . The Board and the respondent
D. H. HOLMES COMPANY, LTD. 759
were represented by counsel and participated in the hearing. The Union was
represented by an officer. Full opportunity to be heard, to examine and cross-
examine witnesses and to introduce evidence bearing upon the issues was afforded
all parties. At the outset of the hearing the respondent moved to dismiss the
complaint by reason of the Order issued by the Board above mentioned. The
undersigned denied this motion. The motion was renewed at the conclusion of
the hearing at which time the undersigned reserved ruling thereon. The motion
is denied herein for reasons discussed below. The undersigned granted without
objection a motion by counsel for the Board to conform the pleadings to the proof
as to formal matters. A date was fixed for the filing of briefs. Thereafter briefs
were submitted by counsel for the Board and the respondent.
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
D. H. Holmes Company, Ltd., a Louisiana corporation, the respondent herein,
maintains its principal office and place of business in New Orleans, Louisiana,
where it is engaged in the business of operating a retail department store. It
employs approximately 1700 employees. In the course and conduct of its business
the respondent has continuously caused large quantities of merchandise to be
purchased and transported in interstate commerce to its store in New Orleans,
Louisiana, from states other than the State of Louisiana. The annual value of
its purchases exceeds $3,000,000, approximately 80 percent of which is purchased
and transported from states other than the State of Louisiana. The respondent
has caused large quantities of merchandise sold by it to be transported and dis-
tributed in interstate commerce from its store at New Orleans to and through
states of the United States other than the State of Louisiana. The annual value
of merchandise sold and distributed exceeds $8,000,000, of which approximately
$250,000.00 is sold and distributed to and through states other than the State of
Louisiana.
The respondent denied that it was engaged in interstate commerce within the
meaning of the Act. The undersigned finds on the basis of the foregoing facts
that the respondent caused a substantial amount of its merchandise to be trans-
ported and delivered in interstate commerce to and through states of the United
States other than the State of Louisiana, and is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Bakery and Confectionery Workers' International Union of America, Local
No. 35, A. F. of L., is a labor organization admitting to membership employees
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary motions
Pursuant to a consent election agreement, the Board conducted an election
for the respondent's bakery employees on November 6, 1946, in which the Union
received 8 votes whereas 9 were cast against it, with 2 challenged ballots. Repre-
sentatives of both parties signed a certificate that balloting was fairly conducted.
No objections to the conduct of the election were thereafter filed. About
November 13, however, the Union filed a Withdrawal Request seeking withdrawal
1
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without prejudice of the Petition in its representation case and on November 14
filed a charge alleging violation of Section 8 (1), (3) and (5) of the Act. On
November 25, the Board entered an Order in Case No. 15 -R-2052 permitting
withdrawal of the Petition and directed that : "the request of the Petitioner to
withdraw its petition be, and it hereby is, granted , with prejudice , and that the
aforesaid case be, and it hereby is, closed."
The respondent 's position as set forth in its brief is that :
1. it has not engaged in unfair labor practices ;
2. if it is found that it did, then the Union, by consenting to the election
and filing no objections, and the National Labor Relations Board making
no report on challenged ballots, jointly waived such charges ; and
3 the order of the Board dismissing the petition for the election with
prejudice closed the entire case which cannot be reopened by this or any other
proceeding.
The latter two contentions will be discussed in the inverse order of presentation,
preliminarily to a consideration of the unfair labor practices.
1. Did the Board's Order dismissing the Petition with prejudice close the
entire case
In support of its position that the Board's order dismissing with prejudice the
Union's petition closed "the entire case ," the respondent cites a number of state
court decisions generally to the effect that the dismissal of a suit at law "with
prejudice" is equivalent to a final adjudication upon the merits and the doctrine
of judicial estoppel bars any further action seeking to establish rights sought
in the original action at law. The respondent urges that this is what the Board
must have had in mind in dismissing the petition . In Wallace Corporation v.
N. R. L. B ., 323 U. S. 248, 253, the Supreme Court held :
We cannot , by incorporating the judicial concept of estoppel into its pro-
cedure, render the Board powerless to prevent an obvious frustration of the
Act's purposes.
It is the undersigned 's opinion that the Board in approving withdrawal of the
petition intended to close the R-case with prejudice to the renewal or refiling of
another petition . The undersigned is of the opinion further, that it was not
intended thereby to foreclose the possibility of filing charges under the Act, albeit
the charges raised the same or substantially the same issues as were raised by
the petition . The undersigned rejects the respondent 's contention that the Order
dismissing the petition operates as a bar to consideration of the charges raised by
the complaint.
2. Did the consent election and failure to file objections constitute a waiver?
The contention here is that the Board and the Union cannot go behind the
consent election agreement and the certification of a fair election . The argument
is similar to that made above, that the general principles upon which rest the
rule of judicial estoppel apply here. There is po evidence that in signing the
consent election agreement , the Union waived unfair labor practices . The prin-
cipal acts of which complaint is made occurred following the consent election
agreement . Nor is there evidence that the respondent 's actions on November 5,
became known to the Union at the time of the election on November 6. Assum-
ing this to be the case, however , it may well be that the Union was willing to
take a chance on the outcome of the election . Having failed, it then filed charges.
D. H. HOLMES COMPANY, LTD. 761
Nothing in the Act or in the Board Rules and Regulations precludes the filing
of charges in the absence of objections to the election. The undersigned rejected
above, the contention that the Order dismissing the petition was operative
as a bar to the filing of charges.
In the Wallace case, above cited, the Supreme Court also stated :
. . . the Board has established as a working rule the principle that it ordi-
narily will respect the terms of a settlement agreement approved by it (citing
cases). It has consistently gone behind such agreements, however, where
subsequent events have demonstrated that efforts at adjustment have failed
to accomplish their purpose, or where there has been a subsequent unfair
labor practice (citing cases). We think this rule adopted by the Board
is appropriate to accomplish the Act's purpose with fairness to all concerned.
Consequently, since the Board correctly found that there was a subsequent
unfair labor practice, it was justified in considering evidence as to peti-
tioner's conduct, both before and after the settlement . . . [Emphasis added.]
The Wallace case and the Board principles there enunciated and approved there-
fore warrant consideration of acts occurring both before and after the election
agreement if charged to the violations of the Act. The undersigned appreciates
the respondent's argument that this gives the Union two bites of the apple.
But the purposes of the Act are best served by preventing unfair labor practices
rather than by sanctioning them. Having disposed of the argument that there
is a waiver standing as a bar to a consideration of the acts charged to be violative
of the Act, the real issue now posed is whether the facts hereafter found consti-
tute violations of the Act.
B. Organization of the bakery
The dispute herein arises out of an attempt to organize the bakery department'
of the respondent's mercantile establishment. No other employees or depart-
ments are involved. The events for the most part are confined in time to the
months of October and November 1946.
Robert Lienhard is the respondent's president and general manager. The
bakery is under the supervision of Hugh McCloskey Evans, respondent's secre-
tary, as well as a divisional merchandise manager , Hans Dichtl is manager of
the bakery. Charles Fanz is the working foreman in the bakery in full charge
of production. His reports on employee capability are reported to Dichtl who
controls all hiring and firing. Fanz, as distinguished from other production em-
ployees, is on a monthly salary.
The Union sought unsuccessfully to organize the bakery employees in 1939.
About September 30, 1946, Gustave Hart, employed as a helper earning $22 a
week, asked for a raise. William J. Hankel, the "bread foreman" under Fanz,
said he would recommend to Dichtl an increase of $1 per week for Hart. Hart
was not satisfied because he was doing bench work and believed himself entitled
to a baker's pay and stated that he would go to the Union "and organize." Hart
called at the Union's office on October 1, and saw Anthony H. Buckley, its rep-
resentative. Buckley agreed to visit the bakery the next day.
On the morning of October 2, Buckley called at the bakery and spoke to the
employees. He distributed application cards in which he was assisted by Hart
and Employee James Cain. On this day there were 20 employees in the bakery.
Buckley, Hart, and Cain testified without contradiction that they either saw
signed or had returned after distribution 13 signed cards. These cards were
turned over to Buckley.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buckley's presence in the bakery was reported to Dichtl who thereupon went
to the bakery but found Buckley had departed The employees gathered about
Dichtl, some stating they had signed cards and others that they had refused to
do so. Dichtl replied that this was their privilege and no one "would interfere".
Dichtl asked where the cards came from but denied that at this moment he
knew who had signed or the number. This testimony is somewhat inconsistent
with his other testimony that a number of the employees told him, "we signed
those cards." In any event, that same morning Dichtl discussed the incident with
Lienhard and told him "some" employees had signed union cards. Lienhard
asked Dichtl what he thought of the matter and Dichtl replied :
Well, I don't just-I can't tell you in an off-hand way. I know that most
of the boys are getting more than union salaries and until I can get to the
boys and ask them to give me reasons I wouldn't be able to tell definitely what
the reasons for them joining was.
Later that day Fanz told Dichtl that 12 or 13 employees "had signed up with
Mr. Buckley's union." That evening Buckley met with the employees who had
signed the cards. Thirteen in all attended the meeting. Buckley stated that it
would be his job to meet with Lienhard and establish the Union's identity as
bargaining agent. He made no commitment to them on the subject of wages
because the Union was then engaged in current negotiations on a city-wide
contract.
C. The refusal to bargain collectively; the lock-out; interference, restraint and
coercion
1. The appropriate unit
The complaint alleges that all production employees of the respondent's bakery
department excluding the department manager, office and clerical employees,
and all other supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in status of employees, or effectively rec-
ommend such action constitute a unit appropriate for the purposes of collective
bargaining. On November 4, 1946, the parties hereto signed a stipulation for
certification upon consent election, setting forth the same unit as alleged in the
complaint to be appropriate.
The undersigned finds that the above-described unit at all times material
herein constituted and now constitutes a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
2. Representation by the Union of a majority in the appropriate unit
The complaint alleges that on or about October 2, 1946, a majority of the
employees in the above-described unit designated the Union as their representa-
tive for the purposes of collective bargaining. This, the answer denies.
The evidence shows that on October 2, there were 20 employees in the appro-
priate unit including H. L. Richardson who was later discharged for cause and
did not vote. There was introduced in evidence 13 signed application cards
designating the Union as "agent in all negotiations" with the respondent and
all dated October 2, 1946. The authenticity of the signatures is successfully
established by the signees' own testimony in many cases, as well as by the testi-
mony of Buckley, Hart and Cain, who testified that they saw the cards signed.
Some witnesses, although identifying their signatures could not recall whether
the dates appeared thereon when the cards were signed. It is not clearly shown
D. H. HOLMES COMPANY, LTD. 763
when or by whom the dates were placed on the 13 cards. Buckley testified that
the cards were dated when they were returned to him on October 2, although he
did not know by whom . It is clear , however, and the undersigned is satisfi'd
from the record as a whole , that the cards were signed on October 2, the day
Buckley appeared in the bakery, regardless of when the dates were otherwise
affixed.
In addition to the foregoing there is evidence, persuasive in character, that
on October 18, when the Union struck, only 7 employees, none of whom had signed
designation cards, remained at work. The remaining 13 employees participated
in the strike by performing picket and other incidental duties.
After October 2, there was a defection in the Union's ranks as is evidenced
by the election results of November 6. It is found hereafter, that this defection
in the Union 's ranks was caused by the respondent 's refusal to bargain and by
its other unfair labor practices . Under the circumstances , such defection does
not impair the Union 's previously established majority status.
The undersigned finds that on October 2, 1946, and at all material times
thereafter , the Union was, and now is, the duly designated representative of the
majority of the employees in the aforesaid appropriate unit, and that , by virtue
of Section 9 (a) of the Act, the Union at all times was, and now is, the represen-
tative of all the respondent's employees in such unit for the purposes of col-
lective bargaining with respect to rates of pay, wages, hours of employment or
other conditions of employment.
3. The events following October 2, 1946
Dichtl knew of Buckley's presence in the bakery on October 2 and discussed
it later that morning with Lienhard . Fanz told Dichtl that same day that 12
or 13 employees "had signed up with Mr. Buckley 's union." Since the record
discloses no effort to conceal union affiliation and a willingness to reveal this to
Dichtl, it is a fair inference that such knowledge became general.
On the morning of October 3, the bakery employees were notified to assemble
to listen to an informal talk by Secretary Evans. The night crew , accustomed
to reporting later in the day were also present. This was the first time Evans
had made a special event of addressing bakery employees . A rdsumc of Evans'
remarks reveals that Evans asked what was "going on" in the bakery and
wanted to know about " this disturbance ." Some employees spoke up and said,
"we're looking for a raise ." Evans replied that if the employees had come to
him "something" would have been done for them. He then outlined the bene-
fits that the employees enjoyed including : group insurance, vacations with pay,
sick leave , a stock purchase plan, and discounts on store purchases . Evans said
he would not offer wage increases to keep employees from joining the Union but
if that was what they wanted they should have come to him . He suggested also
that if the Union was not to the respondent 's liking the possibility existed that
the bakery might be discontinued . Finally Evans stated that employees were
free to join the Union if they chose to do so, and regardless of election results.
"everybody 's job is still open here."
The foregoing findings are based upon credible and uncontradicted testimony
since Evans did not testify , being ill at the time of the hearing . His remarks
were clearly occasioned by the Union' s organizational activity. To combat it,
Evans contrasted employee benefits with possible union gains and suggested that
direct dealing with him initially would have achieved increased wages. Al-
though stating that union membership would not entail loss of security, the
effect of Evans ' assurance was cancelled by his suggesting discontinuance of
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bakery in the event the Union was "to their dislike." It is impossible to tell
in what sequence Evans made his points or whether one idea was given emphasis
over another. The undersigned is mindful of constitutional guarantees and
hesitates to condemn an expression of opinion as violative of the Act unless there
clearly appears therein to be an element of coercion or threat. The speech con-
sidered as a whole, in connection with the circumstances under which it was
given, contains in the undersigned's opinion such an element. It will be recalled
that it followed immediately the "disturbance" caused by the Union. The em-
ployees' conduct in affiliating with the Union was questioned immediately as to
its desirability in view of personnel practices and benefits. Whereas job security
on the one hand was not threatened, on the other discontinuance of the bakery
was injected as a possibility. The net effect was thus to seriously raise the pro-
priety of employee conduct and to suggest the closing of the bakery in the event
union organization drew the respondent's disfavor. The undersigned is of the
opinion that Evans' remarks were, by reason of inherent threats of loss of secu-
rity, per se, a violation of the Act. Whatever reason the undersigned had to doubt
this conclusion, is dissipated by respondent's other acts, which form, together
with the speech, whether considered a violation per se or not, the initial step
of a concerted unified pattern to disrupt the Union's majority representation. It
is so found.
Buckley met with Lienhard for the first time on October 4. Lienhard testified
that prior to this visit he had no knowledge of union activity in the bakery. This
is in conflict with Dichtl's testimony that he discussed the problem with Lienhard
on October 2. Moreover, by reason of Secretary Evans talk on October 3, the in-
ference is legally justified that Lienhard was aware of the Union activity on
October 4, when Buckley called. This inference is supported by the further fact
that when Buckley first called Lienhard had determined by comparison with the
union wage scale that the earnings of at least 11 bakery employees were equal to
or higher than the prevailing union scale.
According to Lienhard's own testimony, Buckley stated that he represented a
majority of the employees and had signed cards to prove it. When Lienhard
questioned the majority, Buckley offered to prove it by a cross-check of the re-
spondent's pay roll to be conducted by the Board or the Conciliation Service.
During the course of the conversation, Buckley mentioned that once the Union
had "established" itself he would want to negotiate a contract. Although Buckley
did not present a proposed contract to Lienhard, the latter was of the impression
by reason of the tenor of the whole conversation that thereby Buckley meant a
closed shop contract. No agreement was reached on how to prove the Union's
majority, Lienhard insisting upon an election to which Buckley would not assent.
The second meeting between the parties occurred on October 9, at which the
question of recognition was again discussed without successful resolution. Buck-
ley pressed the advantages of quick recognition, the majority to be ascertained
by cross-check against the pay roll. Lienhard stated that the respondent would
consent only to an election which Buckley rejected because of the time element
involved. Lienhard testified that from the outset Buckley wanted a closed shop
contract and that on this occasion Buckley pulled "something out of his pocket"
and offered it to him . Lienhard "surmized" that this was a closed shop contract.
He refused to look at the document.
On October 14, the parties met again . The respondent proposed to settle the
problem of recognition by Board election but this was rejected by the Union on
the ground that it would involve a delay of from 30 to 90 days. Buckley staked
that this would give the respondent "a chance to needle the workers too much."
D. H. HOLMES COMPANY, LTD. 765
The Union again asked for a cross-check against the pay roll to establish the
authenticity of signatures. Buckley offered to give the signed cards to Lienhard
for personal comparison with the pay roll and if thereafter it was found that the
signatures were not genuine or a majority was lacking , Buckley would "forget
about the whole deal." Lienhard declined to accept the cards.
At another conference between the parties about October 17, recognition still
being open, Lienhard stated that the respondent had ascertained upon inquiry
of the Regional Director that it would be possible to bold an election within 5 days.
Buckley responded that the Union had no assurance that this could be accom-
plished. Apparently he made no effort to check this possibility. When Lienhard
again expressed the belief that the employees did not want the Union and if given
the opportunity would renounce it, Buckley suggested that Lienhard call a meet-
ing to be addressed by both Lienhard and Buckley. The exact nature of this
understanding is difficult to determine from the record. According to Buckley,
Lienhard tentatively agreed to a meeting to be held that night in the store to be
attended only by the employees who had signed cards . If the employees still ex-
pressed their preference for a Union, the parties would then proceed to negotiate
a contract, contrariwise, Buckley would "quit." Buckley denied stating that if
the Union prevailed it would mean a closed shop contract. Lienhard on the con-
trary testified that he explained that the meeting would have to be cleared with
the Respondent's Board of Directors in view of the closed shop demand. The
undersigned is of the opinion that Buckley did not formally demand a close-shop
contract at this time but that Lienhard believed that once bargaining negotiations
commenced such a demand would be forthcoming. That afternoon the Board of
Directors rejected the idea of the meeting. Lienhard informed Buckley that the
meeting would have to be cancelled.
The notice came too late for Buckley to notify the employees who gathered that
night at the sidewalk entrance to the store. He informed the employees of the
meeting's cancellation. From there they went to the Union' s Hall. According to
Buckley :
... the workers decided the company didn't want to do business , that they
were just dilly-dallying around. They were tired just playing around so they
decided that they was going to strike.
Buckley testified further that all those who signed cards voted unanimously to
strike,
... because they felt like the company was just giving them the run -around
and wasn 't going to do any thing and they were tired waiting for them to do
something . . . They were tired waiting for the company to recognize them
as a bargaining unit and sit down and talk business.
The strike became effective the next day, Friday, October 18. Thirteen em-
ployees participated in the strike . During the strike Buckley sought through
Lienhard to settle all differences but the respondent was still insistent upon an
election. Those employees who remained at work were generally speaking the
skilled employees of long tenure with the respondent . All these non-striking
employees were granted a raise varying in amount from $2 .90 to $6.50 per week
on October 18, the effective date of the strike. In this connection it is significant
that Lienhard testified that it was his impression that all employees were satisfied
with their salaries prior to Buckley's visit to the bakery on October 2, and that
he first learned of dissatisfaction after talking to Buckley on October 4. Before
October 2, Dichtl had told certain employees that he could do "nothing" about a
wage increase for them. Furthermore, it is the respondent's policy to review pay
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roll records for salary increases on an individual merit basis and it is against
policy to grant store-wide or departmental -wide increases . Assuming that the
aforementioned increases were deserved , the inference seems clear that more
than any other reason, wage raises at this time to non-strikers were dictated in
large measure by respondent's desire to reward non-strikers, keep the bakery
operating, and warn strikers of the insecurity of their position. This particular
conduct was not alleged to be a violation of the Act nor was it litigated as such.
It is significant however, in appraising the respondent's total conduct and attitude
towards the Union.
During the strike no new employees were hired to replace the strikers. Some-
time in the latter part of the week of October 21, the parties agreed to meet with
the Regional Director at the Regional Office in an effort to settle the strike. The
meeting took place at about 3 p. in. on Friday, October 25 According to Lien-
hard's testimony first given on direct, when called as a witness by the Board, an
agreement was then reached to settle the strike, remove the pickets, reinstate
the strikers and have a consent election. He testified further that upon return-
ing to the store, he found the pickets on the sidewalk and it was not until 5 p. in.
that they were removed. Thereupon Lienhard communicated with some of his
Directors and it was decided to refuse reinstatement to all the strikers until after
the election was held.
The foregoing account differs little from Buckley's testimony. He testified that
he told the respondent's representatives that he would remove the pickets as
soon as he got to the scene from the meeting and this was done at 5 p. in. Ac-
cording to Buckley's further testimony, there was a definite commitment on the
respondent's part to reinstate the strikers "unconditionally." Lienhard when
recalled as a witness in the respondent's case, testified that before the meeting
at the Regional Office, the respondent's Board of Directors had decided on October
24 that :
... in view of the fact that these men had been out for quite a number
of days that it would be unwise to permit them to return to work until the
matter would be definitely settled.
This latter testimony would suggest that on October 25, there was no agreement
to reinstate the strikers prior to the election.
A study of the entire record with particular reference to the meeting of October
25, indicates in the undersigned's opinion however, that it was there decided to
call off the strike, remove the pickets, agree to a consent election, and reinstate
the strikers. It is so found. These findings are supported by the fact that on
October 26, the respondent received a telegram from the Union notifying it that
the strike "was called off unconditionally" and the strikers would return to work.
On October 28, the strikers were denied reinstatement. When Buckley learned
this he called Lienhard who advised him that the strikers would be denied rein-
statement until after the election. Two days later the pickets resumed their ac-
tivity, this time carrying lock-out signs. When questioned as to the reason for
denying reinstatement to the strikers, Lienhard testified:
We figured we should have an election and our principal reason was this
that while this turmoil was going on this picketing we wanted to know how
the employees stood before permitting them to go back to work. We figured
if we permitted them to go back to work we would have all this agitation in
the bakery. It would interfere with the services they were rendering.
There was a good deal of gossiping, talking in the bakery and we felt if
we permitted these people to go back to work before the matter was settled,
D. H. HOLMES COMPANY, LTD. 767
as I told Mr. Buckley , "We feel that this matter should be settled before we
let the employees go back to work."
From the foregoing , it is clear beyond any doubt that the strikers after an un-
conditional application for reinstatement were denied such , due to their participa-
tion in the strike and the respondent 's determination not to permit return until an
election had settled the question of the Union 's status. Regardless of whether the-
strike is considered economic in origin or as stemming from an unfair labor prac-
tice, a determination which is later reached , the strikers were denied reinstate-
ment because of their concerted activity.
On November 1, the respondent dispatched the following telegram to the Union :
We promised to give you a definite answer following our Board of Directors
Meeting of Thursday afternoon , October thirty first. We are instructed to
answer your telegram of October twenty sixth accepting your proposal con-
tained therein that all bakery employees report unconditionally for work.
We request that all employees report for work immediately . We agree to an
election on Monday November fourth. This telegram is not to be considered
as an admission on our part that Local 35 represents a majority of the em-
ployees in the bargaining unit as this is to be determined by the election.
After receipt of the telegram the strikers returned to work.
On November 4, the parties signed a stipulation for certification upon consent
election. Therein the unit above found to be appropriate was set forth . The elec-
tion was scheduled to be held on November 6, between 11: 45 a. m. and 12: 15 p. in.
on the respondent 's premises . But prior thereto occurred certain events, uni-
lateral in nature , from which arises the gravamen of the complaint.
Mary Agnes Wilson, a cake icer, struck with the Union on October 18. She
returned to work on November 2. Towards the close of work on November 4, she
was told to report to Dichtl. Dichtl told Wilson that Lienhard wanted to speak
to her in his office. On the way to Lienhard 's office Dichtl engaged Wilson in
conversation in which he expressed the desire that Wilson would be "sensible"
and "go along" with the respondent in which event she would "be in good stand-
ing." Dichtl introduced Wilson to Lienhard and left. According to Wilson,
Lienhard stated that the respondent wished to pay the strikers "for the week
they were locked out ," since it was felt that an injustice had been (lone . Wilson
refused to accept the money until she first ascertained whether the others would
be paid. Lienhard then stated that the money would be sent "down the next day."
Before passing to Wilson 's further testimony , disposition is required of Wil-
son's conversation with Dichtl and of another held with him on November 5, be-
cause of a conflict raised by his testimony . According to Wilson, when Dichti
presented her with the back pay award on November 5, he took occasion at the
same time to ask whether she had made up her mind as to how she would vote.
Wilson replied that it was hard to decide whereupon she quotes Dichtl as answer-
ing: "Oh, no, no , that ' s not hard to decide at all if you want to keep your job, don't
you?" Dichtl could not remember asking Wilson how she intended to vote and
then testified he was certain he had never made such inquiry. He termed in-
correct her testimony to the effect that he asked her to vote against the Union
and denied generally ever threatening anyone's job security by reason of union
activity . In resolving these conflicts the undersigned relies on the facts that
Dichtl took Wilson to Lienhard's office ; Wilson was offered back pay and Dichtl's
comments were similar in nature to those admitted-y made by Lienhard. In ad-
dition, Wilson was an impressive and forthright witness . Her testimony is
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credited, Dichtl' s denials are not, and it is found that he made the statements
substantially as given by Wilson.
According to Wilson's further account of the Lienhard conversation , Iaenhard
raised the question of a salary increase first inquiring, "what the Union had
offered." He then offered to raise Wilson's wages from $20 to $30 a week. He
stated also that in the event the Union won the election the respondent would
close the bakery. When Wilson inquired what would be the effect of a union
defeat, she was assured : "Naturally, you'll have your job there as long as you
do your work." Upon leaving, Lienhard expressed the hope that Wilson would
"be able to vote along with the company."
The foregoing account of the Wilson-Lienhard conversation is not specibeally
denied and in fact finds substantial corroboration in Lienhardts own testimony.
He acknowledged that on November 5, he called to his office for individual con-
ference the 12 employees who had gone on strike. He did not relate the con-
versation with each striker but testified generally concerning the substance of
his remarks to each as follows:
Q. (By Mr. BARKER.) What, if anything, did you do in those conferences
with reference to wages, pay for time lost and things of that nature.
A. I spoke to them and I endeavored to sell them on the idea of what
Holmes was doing for them. I told them our bakery had been in operation
for many years. We had always wanted to pay our workers a fair wage-
We didn't know that they were dissatisfied at the time, no one had brought
it to my attention.
I spoke to them about the benefits that the store gave: life insurance
policies, discount on the purchases, two weeks' vacation, two weeks' sick
leave. And I told them, I asked them, too, what the salary was the union
was offering, that we wanted to increase their pay. We thought that as
long as there was dissatisfaction and they thought they wereir't getting
enough money, we wanted to increase their salaries:
And they wanted to know what it was and I told them, what tike amoent
wou'd be and I also asked them how it compared with the union scale.
Some told me , and others did not.
And during the discussion I told them, I said that the bakery was after
all such a small part of our operation we wanted harmony, peace and
harmony to exist, but if we were going to have trouble and dissension down
there and discord, that maybe it would be to our advantage to lease it out
to an outside operator or probably discontinue the bakery.
Q. Did you tell each employee substantially the same thing?
A. Substantially that was it, yes.
Q. Now, and did you give each of the employees a raise or announce to
them that they would receive a raise at that meeting?
A. Practically everyone. There may have been one or two that we did
,not but I believe practically all of them got it.
Q. Most of them got a ten-dollar increase or raise, did they not?
A. No, no, I don't think it was ten dollars. I just can't recall what it was.
Q. It amounted to about 25 percent raise?
A. Well, I would say about 20 percent, anyhow.
Q. About 20 percent?
A. Maybe in some cases not 20. Some of them were getting more I believe
than . . . and I found in my conversations with them that, I found that
some of them were getting more salary than the union scale.
D. H. HOLMES COMPANY, LTD. 769
Q. More than the union scale?
A. Yes, sir.
Q. Then you didn't raise them as high?
A. No, some of them we didn't give-no, some of them we didn' t give a
raise right away, but since then.
Q. In other words your wage was based on what the union scale was.
You matched it or bettered the union scale?
A. I used as a guide , yes, sir.
Q. (By Mr. BARKER.) ... I would like to ask you this : did you also in
those individual conferences announce to the employees that you were going
to pay them for the week that they were out?
A. Yes, sir.
Q. And did you pay them at that time or at a later time?
A. They said that they felt we were unfair and unjust to them by
locking them out, not permitting them to come back and it was our feeling
also that we did not want our employees to feel we were taking advantage
of them and we paid them the amount involved.
Q. That is, you paid them for the time?
A. That they considered it a lock-out.
* * * * * *
Q. And each of them was paid for that time, each of those that had been
on strike?
A. Yes, sir.
The testimony of numerous other witnesses indicates clearly the accuracy
of Lienhard's testimony as to the general content of the conversations. In some
instances , employees were asked why they had joined the Union and to some
few a suggestion was made that the proper way to have handled any dis-
satisfaction was by the formation of a three-man committee to meet with Lien-
hard . Aside from variations of this nature, it is clear that the returning
strikers were granted weekly wage increases, the highest being about $14 a
week, all received wages for the time they were locked out, and all were warned
that a union victory might result in the closing of the bakery. In each instance
this represented the first occasion on which these individuals were called to the
office of the respondent's president to be informed of a wage increase.
At the election held on November 6, the day following Lienhard's personal
interviews, and the announcement of wage increases and back pay awards
to the strikers, the Union received eight votes, nine were cast against it, with
two challenged ballots.
4. Conclusions
The foregoing summary covers substantially all of the issues raised by the
complaint, except for the discharge cases of Wilson and Hart, hereafter
considered.
The complaint alleges a continuing refusal to bargain with the respondent
on and after October 4, 1946. At the threshold arises the question of whether
on October 4, and thereafter, the respondent entertained honest doubt about the
Union's majority or whether the respondent's insistence on a Board-conducted
election was designed to delay and frustrate collective bargaining. The under-
signed is satisfied and has heretofore found that on October 2, 13 of the then
20 employees signed union designation cards. There is satisfactory proof by
numerous witnesses that all cards were in fact signed on October 2, when Buckley
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first appeared in the bakery. Dichtl was told that day that 12 or 13 employees
had joined the Union. He discussed Buckley's presence in the bakery with
Lienhard shortly after the incident. On October 3, Evans addressed the em-
ployees, the night crew being called in for the event. The possibility of closing
the bakery was advanced. When Buckley called on October 4, Lienhard had
already determined that earnings of 11 employees were equal to or higher
than the prevailing union scales.
On October 4, when Lienhard questioned the Union's majority and was
offered a cross-check to prove it, he suggested a Board-conducted election.
Were there nothing more, such expressed preference in view of the yet unproven,
though actual majority, would indicate disagreement on the best method of
de'ermining a majority. The professed good faith of the doubt, however, does
not comport with respondent's later conduct. In fact, the undersigned questions
whether the doubt could be entertained in view of the information possessed
by Lienhard and Dichtl on October 2, Evans' conduct on October 3, and the
public nature of the Union's activity. The rule that an employer can insist
upon a Board-conducted election and certification prior to bargaining is a sound
one and rests upon honest doubt as to a union's majority without any desire to
frustrate or delay collective bargaining. But in Matter of L. B. Hartz Stores,
71 N. L. R. B. 848, the Board held that an employer may not require certification
as a condition precedent to bargaining where the employer entertains no real
doubt of the union's majority, or where reasonable proof is available and the
employer makes no effort to ascertain whether the Union has a majority.
Certainly the respondent's expressed doubt on October 4, of a union majority,
is not consistent with later action taken to dispel that majority or its refusal
to accept reasonable means to ascertain whether a majority existed. On
October 9, respondent's position remained the same on the question of proving
a majority but on October 14, Buckley offered to give the union cards to Lienhard
so that he could personally ascertain the authenticity of the signatures by
comparison with the pay roll. This Lienhard refused to do. On October 17,
the Union was willing to allow Lienhard to address a store meeting of the
employees to determine by a show of hands the employees' adherence to the
Union. Buckley was willing to "quit" if the count was adverse to the Union.
The meeting idea was rejected and the respondent stood adamant on a Board-
conducted election.
It is true that by October 17, the respondent had determined that a Board-
conducted election could be held within 5 days. This was not an unreasonable
reriol of time. Yet of the two or three methods suggested by the Union, from
the standpoint of time alone, the cross-check offered a quicker method of proof
with as reasonable a degree of certainty as the election. But implicit from
the beginning in the respondent's opposition to a cross-check or a personal
inspection of cards, was its hope that in an election some card signatories might
vote against the Union. Starting with Evans' talk of October 3, and continuing
thereafter down to the day preceding the election, the respondent by action sought
to reduce the chances of a union victory in the election.
On October 18, the day the strike started, all non-strikers were granted wage
increases under circumstances indicating a departure from standard policy
of not granting department-wide increases. Moreover, there is no evidence
that the non-strikers were under current consideration for such increases on
a merit basis. On October 23, after the cancellation of the strike and withdrawal
of pickets, all strikers were denied reinstatement because the respondent wanted
to know how the employees "stood" before permitting their return to work.
D. H. HOLMES COMPANY, LTD. 771
On November 5, after reinstatement all the strikers were granted wage increases
and awarded back pay for the time denied reinstatement . Concurrently with
this bestowal of favors , some of these employees were asked to vote against
the Union but all were told that if "dissension " existed the bakery would be
leased to an "outside operator " or discontinued.
The undersigned has considered the testimony of witnesses that they freely
expressed their opinion in the election of November 6, and were not influenced
or coerced therein by the respondent 's prior conduct . The undersigned is satis-
fied that Lienhard ' s relations with the employees were cordial and sympathetic
but nonetheless the undersigned is convinced that his remarks , of the nature here-
tofore indicated , were intended to influence the employees in the selection of
representatives for the purpose of collective bargaining and that the employees
could reasonably have regarded them as having such a purpose . In N. L. R. B.
v. Aintree Corporation , 132 F. ( 2d) 469, 472 (C. C. A. 7), cert. denied, 318
U. S. 774, the Court stated:
From this record, there can be no question but that the employees had
just cause to believe that the respondent disapproved of an outside union
. . . it is clear that the words and deeds of the supervisory employees . . .
were reasonably likely to have restrained the employees ' choice. [Emghasis
added.]
So here, the understanding is of the opinion that Lienhard 's statements and
the unilateral award of financial benefits were of a character which were rea-
sonably likely to have restrained the employees in the exercise of their right
to self-organization It is so found.
The granting of unilateral wage increases and the attempt to bargain indi-
vidually on November 5, with Union members in the hope that this would lead
them to renounce their affiliation , was an unlawful inducement and a violation
of the rights of the Union. In the Medo case, 321 U. S. 678, 684, the Supreme
Court held that an employer by:
ignoring the union as the employee 's exclusive bargaining representative,
by negotiating with its employees concerning wages . . . and by inducing
its employees to abandon the union by promising them higher wages, vio-
lated § 8 (1) of the Act, which forbids interference with the right of em-
ployees to bargain collectively through representatives of their own choice.
The undersigned concludes and finds that any dissipation of the Union's mem-
bership is traceable directly to the respondent's conduct on October 4, and there-
after, and that such conduct is ineffectual in law in destroying the Union's
majority and that the Union was on October 4, and at all times material there-
after, the duly designated representative of a majority of the employees within
the aforesaid appropriate unit.
Therefore , the undersigned finds that on October 4, and thereafter , the re-
spondent refused to recognize and bargain collectively with the Union with
respect to rates of pay , wages, hours of employment and other conditions of
employment as the exclusive representative of the employees in the unit above
found to be appropriate . It is also found that the respondent used the addi-
tional time obtain 'd by its insistence upon an election as a means to delay
and frustrate the Union in performing its duties as a collective bargain . ng agent.
It is further found that by utilizing individual conferences with union mem-
bers in an effort to persuade them to vote against the Union; suggesting the
formation of a committee to represent employees ; questioning employees about the
829595-50-vol. 81 50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union membership ; threatening to close the bakery if the Union won the election ;
unilaterally granting wage increases and compensating employees for lost wages
just prior to an election, all in order to influence their choice, the respondent
engaged in unfair labor practices within the meaning of Section 8 (5) of the Act.
The lockout
The undersigned concludes and finds that the strike of October 18, is attrib-
utable to the respondent's refusal to recognize and deal with the Union. As
has been noted the strikers were engaged in lawful concerted activity for
which they could not be discharged or punished. When the strike was termi-
nated on October 26, the respondent was duty bound to reinstate them on appli-
cation. It could not, as it did, legally deprive them of their right to reinstate-
ment. By failing to reinstate the strikers the respondent penalized them for
their concerted activity in striking.' Moreover, the places of the strikers not
having been filled and being still available on October 28, by denying them an
opportunity to continue their employment by reason of their concerted activ-
ities, the undersigned finds that the strikers were locked out on October 28,
1946, and that thereby the respondent discriminated in regard to the hire and
tenure of their employment, thus discouraging membership in the Union in
violation of Section 8 (3) of the Act2 The undersigned finds further, that
thereby the respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
D. The alleged discrimination against Gustave Hart and Mary A. Wilson
The complaint alleges that the respondent on or about November 8, 1946, ter-
minated the employment of Hart and Wilson "by forcing the said employees
to resign " This, the respondent denied. Both cases are separately consid-
ered hereunder.
Gustave Hart
Hart was first employed by the respondent on May 8, 1945, as a bench hand
at a salary of $30 a week. His employment lasted through November of that
year. He was rehired in March 1946, as a helper at a salary of $22 a week.
This was satisfactory to Hart because, as he testified, he "figured" it would be
light work and he did not care to work too hard. Although hired as a helper,
Hart in fact performed in part thereafter the work of a baker, the union scale
for which was about 85 cents an hour on October 1.
As found above, about September 30, Hart asked for a raise and when told
that a raise of $1 a week would be recommended for him, he refused to accept
this assurance and stated that he would go to the Union "and organize." It
was Hart's activities which resulted in the initial visit on October 2 of Buckley
to the bakery. At the meeting of the bakery employees on October 3, addressed by
Evans, Hart was one of the few employees who spoke up and complained that he
was not receiving a proper wage.
On October 18, Hart struck with the other employees, was thereafter denied
reinstatement, and was finally recalled to work on November 2. On November
5, Hart was called to Lienhard's office. He was there told that he would be
I N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333.
2 Matter of Draper Corporation , 52 N. L. R. B. 1477 , set aside on other grounds, 145 F.
( 2d) 199 (C. C. A. 4) ; Matter of Rapid Roller Company, 33 N. L. R. B. 557, enf 'd as mod.
126 F. ( 2d) 452 (C. C. A. 7), cert . denied 317 U S. 650.
D. H. HOLMES COMPANY, LTD. 773
rewarded back pay for the period that he had been refused reinstatement.
Lienhard then asked him what wage he thought he was entitled to for the job
he was doing. Hart replied that he was entitled to baker's pay. Lienhard told
him that he had been hired as a helper whereupon Hart replied that he was
doing bench work which was worth $41.80 a week. Lienhard replied that he
would discuss the matter with Dichtl. On Thursday, November 7, the day
following the election, Hart asked Dichtl if he had spoken to Lienhard con-
cerning his salary. He testified as follows concerning this conversation with
Dichtl :
He (Dichtl) says, "Your salary will be the same thing as your came here,
nothing more." So I said, "I'll quit." That was the last of Mr. Hans
and I.
Following this Hart obtained employment elsewhere and he testified that at
the time of the hearing he was making $60 a week. He has never sought rein-
statement.
Hart was the only striker who was not notified prior to the election that he
would be given a raise. It appears affirmatively from other evidence further-
more, that on November 8, all of the non-striking employees were granted
certain wage increase adjustments in addition to those granted on October
18, so that of all the employees, Hart was the only one not to receive an increase.
Hart testified that he did not think he was being paid for the job that he was
doing ; that the Union's scale for the work he was performing was about $41.80,
whereas he was earning only $22. It was for this reason that he voluntarily
quit his employment.
Mary Agnes Wilson
Wilson was first employed by the respondent in 1942, at a wage of $14 a
week. She received various increases over a period of time until May 1944,
when she quit her employment. She was last hired on February 14, 1946, as a
cake icer at a salary of $20 a week.
Wilson first heard of the Union on October 2 when Buckley visited the bakery.
She signed one of the cards and struck with the other employees on October
18. She returned to work on November 2. Wilson was the first of the striking
employees to be called to Lienhard's office. The substance of her conversation
on this occasion with Lienhard has been reported in full above As a result
Wilson was given a weekly wage increase from $20 to $30, and she also received
a back pay reward for the time the employees were locked out. Lienhard also
told Wilson that he hoped that she would be able to vote "along with the com-
pany." In addition, it has been found that on November 5, Dichtl told Wilson
that it was not hard to decide the question of how she should vote in the election
if she wanted to retain her job.
Following the election on November 6, Lienhard mingled with the employees
because as he testified he was "anxious to find out what the result was and to
see who is on our side and who was against us." He testified further when
asked if he knew how the employees had voted : "I didn't know definitely but
I had an idea from what the men said."
Wilson testified without contradiction that on November 7, Dichtl approached
her and the following conversation occurred :
And he said, "You didn't believe what Mr. Lienhard told you, did you?"
And I said, "What do you mean by that?"
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And he said, "Well, you didn't believe that you was going to get to keep
your job. You didn't believe you was going to get a nice raise in salary.
You didn't vote along with us."
And so I said, "Well, I wasn't going to vote against my friends that I had
been out on strike with. I had joined the union because I felt like I could
better myself and I was going to stick with them and I wasn't going to change
my vote, regardless of what happened."
So he said, "Well, you know, I've really lost all confidence in you. I used
to think you was such a nice little girl. I gave you a job. You know I gave
you a job when you needed it, when your husband was in the Service. This
is the way you've turned against the Company. And I just want you to
know that I haven't got one bit of confidence in you and I never will have
again."
*
He said . , "You know, when a boss loses confidence in a body there
isn't much left, is there?" He said, "I just hope this tau' ht you a lesson
and if you go anywhere else to work you'll never let anything like this
happen again, you'll learn how to conduct yourself better. You'll learn
how to be a good wife, and good mother, and you'll learn how to conduct
yourself better than this and you won't listen too much to Mr. Buckley . . ."
Wilson testified further that following this conversation she decided that she
did not "feel like staying any longer" and she told Dichtl that she was quitting
her employment that afternoon. She testified also that Dichtl's remarks made
her nervous and did not make her "feel good," because she did not believe that
she had "disgraced" herself by belonging to the Union and going out on strike
and that she realized that she did not want to work for the respondent again.
The foregoing findings are based upon Wilson's testimony despite the general
denials of Dichtl that he had ever threatened the job security of any employee
for union activity including both Wilson and Hart.
Counsel for the Board in his brief states that it is well settled law that treat-
ment such as that given to Hart and Wilson resulting in their resignations
is to be construed as a constructive discharge and violation of the Act. He cites
in support of his position two cases. In one, the East Texas Motor Freight
Lines case, 140 F. (2d) 404, it is clear that therein the respondent's representa-
tive not only expressed loss of confidence in employees who joined a union but
solicited their resignations and, in addition, stated that it would be best to
seek other employment because "many ways and causes could be found" to
discharge those employees. The court held that this was clearly illegal inter-
ference. In the other cited case, N. L. R. B. v. Palm Beach Broadcasting Corp.,
155 F (2d) 805, the Circuit Court sustained the findings of the Board that the
respondent "adopted and enga^.ed in the relentless course of persecution . . ,
in order to force" an employee to resign. Both cases are distinguishable on
the facts for in the one, the respondent requested resignation and threatened
discharge because of union membership and in the other the respondent en-
ga^ed in "relentless persecution." Herein, the respondent neither asked for
nor suggested the resignation of Hart and Wilson nor is there any evidence of
coercion affecting employment status by reason of their known union activity.
It may well be that no self-respecting employee would continue to work after
remarks such as those made by Dichtl to Wilson. Dichtl's language clearly
expressed dissatisfaction with Wilson's conduct but contained no threat of
retribution or future action by reason of her loyalty to the Union. Hart no
D. H. HOLMES COMPANY, LTD. 775
doubt believed that he could no longer continue in employment because of the
low wages being paid him by the respondent. It is significant, however, that
union members who continued to work after the election were neither intimidated
nor forced by anything the respondent said or did to relinquish their employ-
ment. The respondent having hired Hart as a helper, may have believed that
regardless of the work he performed, the job itself called for no more than helpers'
pay and for this reason was unwilling to grant any increase.
These cases are not free from doubt but the undersigned is of the opinion
and finds that the respondent did not force Hart and Wilson to resign because
of their union membership or concerted activity. It will be recommended here-
after that these allegations of the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring
in connection with the operations of the respondent 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 and have led to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has violated Section 8 ( 1), (3), and (5)
of the Act, the undersigned will recommend that it cease and desist therefrom
and take certain affirmative action which the undersigned finds necessary to
effectuate the policies of the Act.
It has been found that respondent locked out 12 employees on October 28, 1946,
and thereafter refused to reinstate them until November 2, 1946, because of the
union membership and concerted activities of the said employees . These em-
ployees were thereafter made whole for any loss of pay suffered by reason of
the lock -out. Hence , no recommendation is made herein respecting any loss
of wages resulting from that unfair labor practice , nor is any recommendation
necessary concerning the reinstatement of the said employees in order to remedy
the unfair labor practice.
It was also found that on October 4, 1946 , and continuing thereafter, the
respondent engaged in acts of interference , restraint , and coercion , by question-
ing employees concerning their union membership ; endeavoring to persuade the
employees to vote against the Union in a scheduled Board election ; threatening
to close the bakery in the event the Union won the election , and by unilaterally
granting wage increases and compensating employees for loss of wages just
prior to the election all for the purpose of influencing their choice of a bargain-
ing representative in the election . Moreover , it was found that the foregoing acts
were in negation of the right of the Union as the majority representative of all
the employees in an appropriate unit and, aside from and in addition to the
respondent's refusal to recognize and bargain with the Union , were independently
and of themselves , refusals to bargain.
In the consent election that was held on November 6, the Union obtained
only 8 votes , 4 less ( excluding Richardson , who had been discharged for cause)
than the number who had originally signed union application cards and who
presumably would have voted for the Union in a fair and free election. The
undersigned has found that this defection in the Union's ranks was caused by
the respondent 's refusal to bargain and by other unfair labor practices com-
mitted by the respondent , prior to November 6, and that therefore , the election
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
results did not reflect the untrammeled expression of the employees' will. Under
the circumstances, this result does not impair the Union's previous estab-
lished majority status.' For the reasons expressed by the Board in its decision
in the Matter of Karp Metal Products Co. Inc., 51 N. L. R. B. 621, the undersigned
is of the opinion that the policies of the Act are best effectuated by requiring the
respondent to bargain collectively with the Union and, it will be so recommended.
It will be recommended also that the election results be set aside.
Upon the basis of the above findings of fact and 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. 35, A. F. of L., is a labor organization, within the meaning of Section 2 (5)
of the Act.
2. By discriminating with regard to the hire and tenure of employment of the
individual employees who went on strike on October 18, 1946, and thereby dis-
couraging membership in the Union, respondent engaged in unfair labor prac-
tices within the meaning of Section 8 (3) of the Act.
3. A unit consisting of all production employees of the respondent's bakery
department excluding the department manager, office and clerical employees,
and all other supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees or effectively
recommend such action, at all times material herein constituted, and now con-
stitute, a unit appropriate for the purposes of collective bargaining within the
meaning of Section 8 (b) of the Act.
4. Bakery and Confectionery Workers' International Union of America, Local
No. 35, A. F. of L., was at all times material herein, and now is the exclusive
representative of all the employees in such unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with the Union, as the exclusive repre-
sentative of the employees in the above described unit, the respondent has
engaged in and is engaging in unfair labor practices within the meaining of
Section 8 (5) 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.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that D. H. Holmes Company, Ltd., New Orleans, Louisiana,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the Bakery and Confectionery Workers'
International Union of America, Local No. 35, A. F. of L., or in any other labor
organization of its employees by the discharge, lock-out, and refusal to reinstate
a N. L. R. B. v. Bradford Dyeing Association, 310 U. S. 31.8 ; Franks Bros . Co. v. N. L.
R. B., 321 U. S. 702; N. L. R. B. v. Palm Beach Broadcasting Co., 155 F. (2d) 806
(C. C. A. 5).
D. H. HOLMES COMPANY, LTD. 777
any of its employees or in any other manner discriminating in regard to the hire
and tenure of employment, and any terms or conditions of employment ;
(b) Refusing to bargain collectively with the Bakery and Confectionery Work-
ers' International Union of America, Local No. 35, A. F. of L., as the exclusive
representative of all production employees of the bakery department excluding
the department manager, office and clerical employees, and all other supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees or effectively recommend such action
with respect to rates of pay, wages, hours of employment and other conditions
of employment;
(c) In any other manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization , to form labor organi-
zations, to join or assist Bakery and Confectionery Workers' International Union
of America, Local No. 35, A. F. of L., or any other labor organization, to bargain
collectively through representatives of their own choosing and to engage in con-
certed activities for the purpose 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 undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Bakery and Confectionery Work-
ers' International Union of America, Local No. 35, A. F. of L., as the exclusive
bargaining representative of all production employees in the bargaining unit
described herein with respect to wages, rates of pay, hours of employment or
other conditions of employment ;
(b) Post in conspicuous places in the bakery department of its establishment
copies of the notice attached hereto marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Fifteenth Region, after being
signed by the respondent's representative shall be posted immediately by the
respondent upon receipt thereof, and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places including all places where notices are
customarily posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the Fifteenth 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 herewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report , the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
It is also recommended that the election results of November 6, 1946, be set
aside.
It is further recommended that the allegations of the complaint that the re-
spondent terminated the employment of Mary A. Wilson, and Gustave Hart by
forcing the said employees to resign, be dismissed.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203.38 of said
Rules and Regulations , file with the Board, Rochambeau Building, Washington
25, 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 pro-
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof ; and any
party or counsel for the Board, may within the same period file an original and
four copies of a brief in support of the Intermediate Report. Immediately upon
the filing of such statement of exceptions and/or briefs, the party or counsel for
the Board filing the same shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203.65. As further provided in said Section 203.39, 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 service of the
order transferring the case to the Board.
MORTIMER RIEMER,
Trial Examiner.
Dated June 27, 1947.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL BARGAIN collectively upon request with the BAKERY AND CON-
FECTIONERY WORKERS' INTERNATIONAL UNION OF AMERICA, LOCAL NO. 35, A.
F. OF L., as exclusive representative of all the employees in the bargaining
unit,described herein with respect to rates of pay, hours of employment, or
other conditions of employment.
The bargaining unit is:
All production employees of the bakery department excluding the depart-
ment manager, office and clerical employees and all other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees or effectively recommend such
action.
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-organization, to form labor
organizations, to join or assist BAKERY AND CONFECTIONERY WORKERS'
INTERNATIONAL UNION OF AMERICA, LOCAL No. 35, A. F. OF L., or any other
labor organization, to bargain collectively through representatives of their
own choosing and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection.
All our employees are free to become or remain members of the above-Dallied
union or any other labor organization. We will not discriminate in regard
to the hire or tenure of employment or any term or condition of employment
against any employee because of membership in or activity on behalf of any
such labor organization.
D. H. HOLMES COMPANY, LTD.,
Employer.
By ----------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof and must
not be altered, defaced, or covered by any other material.