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National Labor Relations Board v. Keystone Pretzel Bakery Inc.

December 29, 1982



Gibbons, Weis and Garth, Circuit Judges. Seitz, Chief Judge, Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham, Sloviter and Becker, Circuit Judges. Adams, Circuit Judge, concurring. Judge Becker joins in this concurrence. Weis, dissenting, with whom Judges Hunter and Garth join.

Author: Gibbons


GIBBONS, Circuit Judge:

This case is before us on the application of the National Labor Relations Board pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., for enforcement of orders issued against Keystone Pretzel Bakery, Inc. on May 24, 1979 and June 2, 1981.*fn1 The Board found that the company violated sections 8(a)(1), 8(a)(3) and 8(a)(5) of the Act by engaging in activities aimed at discouraging union membership, and by refusing to bargain with a union having a membership card majority in the bargaining unit. As a part of its remedy the Board imposed a bargaining order. We enforce in full.


Keystone is engaged in the production of pretzels at its Lancaster, Pennsylvania plant. The company, which employs about 40 people, was purchased in December 1976 by President Glen Hyneman and Secretary-Treasurer Horace Groff. Several months after that purchase, Bakery and Confectionary Workers International Union of America, Local 6, began organizing Keystone's production and maintenance employees. By June 1, 1977 the Union had obtained authorization cards from 17 employees in what it regarded as an appropriate bargaining unit of 29 employees, and petitioned the Board for a representation election. No election was held, however, for on June 16, 1977 the Union filed an unfair labor practice charge with respect to Keystone's activities after its officers learned of the organizing effort. On August 31, 1977, the General Counsel filed a complaint and issued a notice of hearing. After a hearing an Administrative Law Judge, on June 23, 1978, found that Keystone had interfered, restrained and coerced employees in the choice of a bargaining representative, but that the Union had lacked authorization cards from a majority of an appropriate bargaining unit. Thus the Administrative Law Judge did not recommend imposition of a bargaining order. The General Counsel, the charging party, and Keystone all filed exceptions, and the Board, rejecting Keystone's exceptions, on May 24, 1979 made the first order for which enforcement is sought. That order finds appropriate a bargaining unit consisting of all full and part-time production and maintenance employees, excluding a truckdriver, office clerical employees, and supervisors. It finds that various forms of interference, restraint and coercion took place, and that those unfair labor practices were so substantial and pervasive that they disrupted the election process, thus precluding a fair election and warranting a bargaining order.

The Board petitioned this court for enforcement. In response, on September 9, 1980, Keystone moved pursuant to section 10(e) of the Act to remand to the Board in order to adduce additional evidence to the effect that changes in the membership of the bargaining unit since the union obtained its authorization cards would cast doubt upon the propriety of a bargaining order "at this late date." On October 8, 1980 a two judge panel of this court granted that motion. The Board moved for reconsideration of that order by the court in banc, and on November 14, 1980 this court denied the Board's motion; four judges dissenting.

On remand the Board notified the parties that they could file statements of position on the issues raised by the remand. Accepting as true the employer's affidavit describing personnel changes in the bargaining unit, the Board concluded that no evidentiary hearing was required, and declined to withdraw its earlier bargaining order. Once again the Board petitioned for enforcement. Keystone resists enforcement, contending that: (1) there is insufficient evidence to support the Board's findings of unfair labor practices; (2) the Board erred in defining the appropriate bargaining unit; (3) the Board erred in determining that a majority of the bargaining unit had authorized the Union to bargain on their behalf; and (4) the Board's statement of reasons is insufficient to justify a bargaining order. We consider those contentions seriatim.


Under section 8(a)(1) of the Act it is an unfair labor practice for an employer to interfere with, restrain or coerce in the exercise of the right of employees, guaranteed by section 7, to organize, and to bargain collectively through chosen representatives. The Administrative Law Judge who heard the testimony found that Keystone had violated section 8(a)(1) by authorizing employee Douglas Shertzer to conduct surveillance of union activity and report, by coercively interrogating employees Ken Rohrer and Charles Swift, and by coercing employee Ken Hall to refrain from union activity. He also found that Keystone, with knowledge of the union activity, solicited and promised to resolve employee grievances, and grant benefits; conducted an employee meeting on a holiday, for attendance at which employees were paid, and conducted an employee poll at that meeting; and through President Hyneman expressed satisfaction at a negative vote. The Administrative Law Judge also found that Keystone violated sections 8(a)(1) and (3) when it denied a pay raise to union adherent Hall, while giving a raise to a union foe, Schertzer. The Board adopted these findings.*fn2 We have reviewed the testimony, and conclude that the findings respecting these activities are amply supported. Moreover, they fully support the Board's conclusion that Keystone engaged in a pattern of unfair labor practice reasonably tending to coerce or intimidate employees in the exercise of section 7 rights. See, e.g., NLRB v. Garry Manufacturing Co., 630 F.2d 934, 937 (3d Cir. 1980); NLRB v. Eagle Material Handling, Inc., 558 F.2d 160, 165 (3d Cir. 1977); Hedstrom Co. v. NLRB, 558 F.2d 1137, 1144 and n. 18 (3d Cir. 1977); NLRB v. Armour Industries, Inc., 535 F.2d 239, 242 (3d Cir. 1976); NLRB v. Triangle Publications, Inc., 500 F.2d 597, 598 (3d Cir. 1974). (The test of coercion and intimidation is whether the misconduct is such that, under the existing circumstances, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected by the National Labor Relations Act).


Under section 9(b) of the Act the Board has broad discretion in determining what is an appropriate bargaining unit. E.g., Allied Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 171, 30 L. Ed. 2d 341, 92 S. Ct. 383 (1971); NLRB v. St. Francis College, 562 F.2d 246, 248 (3d Cir. 1977). Before the Board the parties were in agreement as to the inclusion of 28 employees contended for by the General Counsel. Keystone objected to the exclusion of seven others. These included three bakers whom the Administrative Law Judge found to be supervisors, and thus excludable as a matter of law. 29 U.S.C. § 152(11). These findings as to supervisor status, approved by the Board, are supported by substantial evidence. The Administrative Law Judge found that Leroy Hyneman, the president's father, a part time employee who had mortgaged his home to provide his son with the wherewithall to purchase the business, and Michael Boaman, a part time employee and a student, son of the plant manager, were too closely allied with management to be included in the bargaining unit. A majority of the Board did not approve their exclusion from the bargaining unit, although member Truesdale would have excluded them.*fn3 Thus they may be counted for the purpose of determining majority status. The Administrative Law Judge excluded from the bargaining unit a truckdriver, Russ Yoder, whose work was mostly outside the plant, on the ground that he lacked a community of interest with plant employees. In doing so he noted that the Union expressed a preference for Yoder's exclusion, and that under Board precedent unrepresented truckdrivers may be either included in or excluded from a production and maintenance unit depending on the wishes of the petitioning union.*fn4 The Board approved this determination. We find no abuse of discretion. Finally the Administrative Law Judge found that Joanne Herbst, a part time employee, first included in the General Counsel's list, but later objected to as a casual employee, should be included. The Board approved her inclusion.

The unit approved by the Board, therefore, consisting of all full and part time production and maintenance employees, excluding the truck driver, office clerical employees, and statutory supervisors, apparently included a stipulated list of 28 people plus Leroy Hyneman. Michael Boaman, and Joanne Herbert, a total of 31. Since the Board's findings are supported by substantial evidence, the exclusion of three supervisors was required by law, and the exclusion of Yoder, the truck driver, was a matter within the Board's discretion, we must approve the makeup of the bargaining unit.*fn5


The General Counsel placed in evidence 17 authorization cards (GC Exhibits 3-19). Since these comprise a majority of the 31 members in the approved bargaining unit, Keystone urges that the Board erred in relying on them as evidence that the union could bargain for those members. The authorization cards are unequivocal. Each is on a printed form as follows:


B. & C. W.I.U. of A. -- AFL-CIO

5416 Rising Sun Ave. Phila. Pa. 19120-329-8933

Print Name

(Date employed)

the undersigned, employee of the

(Name of Company)

Home Address Phone


hereby authorize the Bakery and Confectionery Workers Local No. 6 to represent me and, in my behalf, for the purpose of collective bargaining to negotiate and conclude all agreements in respect to rates of pay, wages, hours of employment, or other conditions of employment.

Department Shift Job Title

Signature of Employee Date

Each of the 17 cards is filled in with the employee's name and address, phone number, and job description, and each is signed by a Keystone employee. No objection is made about their authenticity.

Keystone offered no testimony impeaching the authorization cards. It makes two contentions with respect to the sufficiency of the General Counsel's showing: that the General Counsel's showing of authorization was legally insufficient, in that he failed to adduce testimony that each employee read the card before signing it, or that it was read to the signer; and that in any event, in the General Counsel's own case, there is testimony impeaching the cards.

In appraising Keystone's contentions, the starting point must be the Board's decision in Cumberland Shoe Corp., 144 NLRB 1268 (1963), which holds that when a card states on its face that it authorizes collective bargaining it will be counted for that purpose unless it is established that the employee who signed it was told it would not be used for that purpose, but solely for another purpose. Under the Cumberland Shoe rule the General Counsel need do no more than produce duly authenticated cards authorizing ...

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