Ann's Schneider Bakery

National Labor Relations Board - Board Decisions

Jan 22, 1982

259 N.L.R.B. 1151 (N.L.R.B. 1982)

ANN'S SCHNEIDER BAKERY 1151
Chassen Brothers, Inc., d/b/a Ann's-Schneider AFL-CIO, and that said labor organization is not
Bakery and Local Union No. 50, Bakery, Con- the exclusive representative of all the employees, in
fectionery & Tobacco Workers Union, AFL- the unit herein involved, within the meaning of
CIO and Joseph Dones and Charles Skinner. Section 9(a) of the National Labor Relations Act,
Cases 22-CA-9237, 22-RC-7887, 22-CA- as a ded
9401, and 22-CA-9423
DECISIONJanuary 22, 1982DECISION
DECISION AND ORDER STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge:
BY MEMBERS FANNING, JENKINS, AND This case was heard before me in Newark, New Jersey,
ZIMMERMAN on February 19, 20, 21, and 22 and March 11 and 13,
On March 9, 1981, Administrative Law Judge 1980. The charge in Case 22-CA-9237 was filed on May
Eleanor MacDonald issued the attached Decision 23, 1979; the charge in Case 22-CA-9401 was filed by
Joseph Dones on August I, 1979, and amended onin this proceeding. Thereafter, the General Counsel Jsh Dnes on August 1, 1979 t e hare in CaseAugust 20 and September 19, 1979; the charge in Case
filed exceptions and a supporting brief, and the Re- 22-CA-9423 was filed by Charles Skinner on August 8,
spondent filed a brief in support of the Administra- 1979, and amended on August 21 and September 19,
tive Law Judge's Decision and in opposition to the 1979. An informal settlement agreement in Case 22-CA-
General Counsel's exceptions. 9237 was entered into on July 13, 1979, and was subse-
Pursuant to the provisions of Section 3(b) of the quently set aside by the Regional Director on September
National Labor Relations Act, as amended, the Na- 21, 1979. The consolidated complaint issued on Septem-
tional Labor Relations Board has delegated its au- ber 21, 1979, alleging that Respondent engaged in certain
thority in this proceeding to a three-member panel. unfair labor practices in violation of Section 8(a)(1), (3),
The Board has considered the record and the at- (4) and (5) of the Act including:
tached Decision in light of the exceptions and I. Engaging in threats, promises of benefits, interroga-
briefs and has decided to affirm the rulings, find- tions, and solicitation of grievances (prior to execution of
the informal settlement agreement).ings,' and conclusions of the Administrative Law the iformal settlement agreement)2. Discharging Dones and Skinner for concerted activ-
Judge and to adopt her recommended Order. ity (prior to the execution of the settlement agreement).
ORDER 3. Engaging in harassment, interrogation, and threats,
and creating the impression of surveillance (after the ex-
Pursuant to Section 10(c) of the National Labor ecution of the settlement agreement).
Relations Act, as amended, the National Labor Re- 4. Giving certain employees money in order to refrain
lations Board adopts as its Order the recommended from voting in a Board election held on August 3, 1979.
Order of the Administrative Law Judge and 5. Assigning Dones more arduous and less agreeable
hereby orders that the complaint be, and it hereby work after his reinstatement pursuant to the settlement
is, dismissed in its entirety. agreement and issuing Dones warning letters and dis-
IT IS FURTHER ORDERED that the settlement charging Dones.
agreement in Case 22-CA-9237 be, and it hereby 6. Assigning Skinner more arduous and less agreeable
iagreiement in Case 22-CA-9237 be, andithereby work after his reinstatement pursuant to the settlement
~~is, reinstated~~. agreement, and denying Skinner a wage increase and
IT IS FURTHER ORDERED that the objections to causing his termination.
the election conducted on August 3, 1979, in Case 7. Refusing to recognize and bargain collectively with
22-RC-7887, be, and they hereby are, overruled Local Union No. 50, Bakery, Confectionery & Tobacco
and that the results be, and they hereby are, certi- Workers Union, AFL-CIO, herein called Local 50, as
fled. the exclusive collective bargaining representative of its
unit employees.
CERTIFICATION OF RESULTS OF The complaint further alleges that the unfair labor
ELECTION practices set forth therein are so serious and substantial
It is hereby certified that a majority of the valid in character and effect as to warrant the entry of a reme-
. It~. .. he.~ ,r,~ e.~ byT dial order requiring Respondent to recognize and bargain
ballots have not been cast for Local Union No. 50, with Local 50 on an alleged majority of authorization
Bakery, Confectionery & Tobacco Workers Union, cards from unit employees.
Respondent filed an answer denying the material alle-I The General Counsel has excepted to certain credibility findings gations of the complaint an d alleging that Dones and
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re- Skinner were discharged for cause.
spect to credibility unless the clear preponderance of all of the relevant In the representation case, a consent election was held
evidence convinces us that the resolutions are incorrect. Standard Dry pursuant to stipulation on August 3, 1979. After determi-
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re- nation of the challenged ballots, the vote was eight for
versing her findings. the Union and nine against union representation. One ob-
259 NLRB No. 162

les ti l
- men .
ry 2DECISION
ST TE E T OF THE CASE
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agreement in Case 22-CA-9237 be, and it hereby 6. Assigning Skinner more arduous and less agreeableis, reinstated. ~~~~~~~work after his reinstate ent pursuant to the settle ent
agreement,
I t t t e jecti s to causing his ter ination.
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It is hereby certified that a majority of the valid i
c ha r ac t er an d ef ec t as to warrant the entry of a reme-
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------- ~~~~~~~~~~~~Respondent r i t ri l l The r l l s t t t i r dibilit fi i Respondent filed an swer denin he aterial lle
ade i ludge. t ' t li g c
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evidence convince& us that the solutions ar e incor rec t . Standard Dry pursuant to stipulation on August 3, 1979. After deter i-
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1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jection timely filed by the Union is before me for deci- time twisting pastry on the bench, but that he also per-
sion pursuant to the Order dated November 15, 1979, formed other work as follows: unloading the truck on
consolidating cases and referring the representation case Tuesday, helping in the wrapping room several hours
to the Board. per week, cleaning the bathrooms once a week, taking
Upon the entire record including my observations of out the garbage every morning, cleaning "downstairs"
the demeanor of the witnesses and after due considera- every morning for 1 hour, and cleaning the "icebox."
tion of the briefs filed by Respondent and the General Dones testified that he was discharged in May 1979. 3
Counsel in June 1980, I make the following: As a result of charges filed by the Union, a settlement
agreement was entered into and Dones was reinstated
FINDINGS OF FACT with payment of a sum for "net backpay." Dones testi-
fied that Leonard McGinley, the Union's business repre-
I. JURISDICTION sentative and organizer, told him that, from his reinstate-
Respondent, a New Jersey corporation, operates a ment until the date of the consent election (August 3,
bakery engaged in the manufacture and wholesale and 1979), Dones would work from 9 a.m. until 6 p.m. and
retail sale of baked goods in Jersey City, New Jersey, that he would be excused from work on Sundays as well
where it annually purchases and causes to be delivered as the normal Saturday day off.
to it, goods and materials valued in excess of $50,000 di- The need for an arrangement to last until the election
rectly from other enterprises located within the State of arose from a change in the operations of the bakery. The
New Jersey, which other enterprises receive said goods uncontroverted testimony of several witnesses shows
and materials in interstate commerce directly from States that, for some time prior to Dones' discharge, the bakery
other than the State of New Jersey. Respondent admits, had been subject to repeated citations and threats of clo-
and I find, that it is an employer engaged in commerce sure for uncleanliness by the Board of Health. This was
within the meaning of Section 2(6) and (7) of the Act, due, in part, to the lack of sufficient facilities for cleaning
and that Local Union No. 50, Bakery, Confectionery & separate from the baking area. As a result, Respondent
Tobacco Workers Union, AFL-CIO, is a labor organiza- undertook certain construction and renovation work and
tion within the meaning of Section 2(5) of the Act. created additional cleaning areas. Further, the hours of
the employees who performed cleaning functions were
II. THE ALLEGED UNFAIR LABOR PRACTICES changed so that they began to work at noon which was
generally after most of the mixing and baking was com-I will consider first the General Counsel's allegations g a
pleted. (The bakers worked from 2 or 3 a.m. until 11 orthat Respondent engaged in unfair labor practices after pleted. (The bakers worked from 2 or 3 a. until or
12 a.m.). This system permitted a more thorough clean-the execution of the settlement agreement,' since a find- 1 . .
ing of the bakery premises.ing of failure to comply with the settlement agreement o
or of postsettlement violation is a prerequisite to a find- T he new system and new hours were instituted prior
ing of violation based on presettlement conduct. Inter- to the settlement discussions in July 1979, and, when
state Paper Supply Company, Inc., 251 NLRB 1423 (1980). Dones was to be reinstated, Myron or Robert Chassen
requested that Dones work new hours from 12 noon to 8
A. Events Relating to Dones or 9 p.m. However, as a result of Dones' protests that he
would be unable to talk union with his coworkers be-
Joseph Dones was one of the General Counsel's chief cause some of them would be gone by the time he began
witnesses in this case. He testified that he was hired by work, it was agreed that, until the day of the election, he
Myron Chassen in September 1978, as a bench hand and would work from 9 a.m. to 6 p.m. Dones also testified
helper. At first he worked 3 days a week on the oven that, as part of the settlement, he was excused from
and ran the cleaning machine, but subsequently his hours Sunday work so that he could function as a preacher.
were changed so that he worked 6 days a week, exclud- Before his discharge in May, Dones stated he had been
ing Saturday, from 1 or 2 a.m. until 10 or 11 a.m. Robert excused by 11 a.m. on Sundays if the bakery were not too
Chassen ran the bakery during most of these early morn- busy. With the new hours, this schedule would be impos-
ing hours. 2 Dones stated that he spent the bulk of his sible. Dones apparently believed that the Sunday excusal
would be in effect beyond the election. However, Myron
The settlement agreement was signed by the parties on July 13, and Chassen testified that his understanding of the settlement
approved by the Regional Director on July 16, 1979.
' Myron and Robert Chassen, the two brothers who own and operate was that Dones would again work Sundays once the
Respondent, are, respectively, secretary and president of Respondent. election was over. Chassen explained that Sunday was
Myron Chassen is generally responsible for the operation of the bakery the busiest workday at the bakery and that he would
during normal business hours, while Robert Chassen is in charge of the never have agreed to excuse Dones from work on Sun-
premises in the early morning hours beginning at midnight while most of 4
the mixing and baking is taking place. Robert Chassen personally con- days on a ermanent basis Further, there was resent-
ducts the mixing process. The hours worked by the two brothers are not ment among the other employees at the special treatment
rigidly fixed and they overlap. The bakery is a family enterprise that was afforded Dones. Myron Chassen testified that it had been
formerly operated by the father and uncle of the Chassen brothers. The his understanding from the settlement discussions that a
uncontradicted testimony shows that both Chassen brothers work side by
side with their employees and perform many of the same tasks as their settlement of the charge i Case 22-CA-9237 and a con-
employees according to the particular requirements of the day. In fact.
the testimony of all the witnesses clearly establishes that all employees. The record shows Dones was discharged on May 21, 1979.
including the Chassen brothers, would normally lend a hand with any ' Other witnesses, including McGinley, agreed that Sunday was the
type of work that was available and needed to be done at the bakery busiest day in the bakery.

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ANN'S SCHNEIDER BAKERY 1153
sent election would be obtained only if he agreed to the sel he also testified that he had never seen anyone else
special conditions for Dones which were to last until the clean the freezers. 6
day of the election. Dones testified that he spent a few hours cleaning
From Dones' testimony it is clear that he did not floors every day, and that the areas where new floor had
object to the requirement that after the election he been installed as part of the renovations were "very
would start work at noon as did the other employees easy" to clean compared to the condition that had exist-
who performed mostly cleaning work. Under the new ed previously. Dones stated that he still cleaned the bath-
system which was in force after his reinstatement, it is room after his reinstatement and also continued to take
undisputed that Dones' working hours would not permit out the garbage. On cross-examination, Dones conceded
him to do much, if any, manufacturing, and that the tasks that his post-reinstatement cleaning work resembled his
that remained to be performed would involve cleaning prereinstatement work, except that he had to clean more
and other "porter" work. carefully. Dones testified that after his reinstatement the
Dones testified that pursuant to the settlement agree- bakery was like "a concentration camp" in that as soon
ment he was to report to work on Tuesday, July 17, as one task was finished he was given another, and that
1979, if certain personal business he was obliged to trans- one day Robert told him not to talk so much. 7
act was completed by that date. He had promised to On Monday, July 23, 1979, Dones testified, he had a
work even if he reported a little late. On direct examina- court appointment and was excused from work in ad-
tion, Dones testified that he was unable to report to vance by Robert Chassen. In August, Dones stated, he
work at all and that he therefore called the bakery and missed a day or two of work.
asked to speak to Myron Chassen in order to inform him After having his attention directed to Friday, August
of this fact. However, the woman who answered the 17, 1979, Dones testified that Myron Chassen told him
phone hung up. Dones' wife also called the bakery, he that he had missed "quite a few Sundays" and that
stated, but the woman hung up on her as well. After Dones would be fired if he did not start reporting to
having his recollection refreshed by looking at his tele- work on Sundays. Dones told Myron Chassen that the
phone bill, Dones testified that he called the bakery settlement agreement specified that he would not be re-
twice. He also testified that he could not work because quired to work on Sundays and "you may as well let me
he was at the doctor's office. On cross-examination, go now." Chassen told Dones that the special arrange-
Dones stated that he could not report to work late, as he ment was to apply only until the date of the election.
had previously suggested he would do if he were able, Dones testified that he did not work the next Sunday,
because he was in court at the World Trade Center in and that Mryon Chassen discharged him the next
New York City; although his appointment was for 11 Monday. In response to a leading question by the Gener-
a.m., the hearing did not conclude until 2 or 3 or 4 p.m. al Counsel, Dones stated that during the Friday conver-
Dones stated that during a recess his wife had called the sation he had offered to work Sundays if his hours could
bakery. After counsel for Respondent called Dones' at- be adjusted; however, Dones could not recall what
tention to the fact that Dones' phone bill indicated that Chassen's response had been.
calls had been made from Dones' home in New Jersey at McGinley testified that his understanding of the terms
12:19, 12:31, and 12:35 p.m., Dones added the informa- of Dones' reinstatement was that Dones was to work as
tion that he had taken the train home during a recess and a porter, not a baker, and that he was to be required to
that he and his wife had called the bakery from their work only 5 days a week. McGinley stated that Dones
home. Counsel for the General Counsel did not seek to would not have to work Sundays at all, and that this
clarify this sequence of events on redirect examination, would not change after the election.
and so the record is barren of any further explanations Myron Chassen testified that Dones was hired as a
which might make the testimony seem credible such as porter and that his work consisted primarily of cleaning,
the amount of time required to travel back and forth helping with the wrapping machine, and helping out
from the World Trade Center, or the reason for Dones' generally. After Dones' reinstatement, Dones did no
original testimony that he was at his doctor's office. wrapping because, under the new work schedule, the
From the time of his reinstatement until his discharge wrapping was completed before Dones appeared. The
in August 1979, Dones testified that he did the "dirty testimony was corroborated by that of Benjamin Van-
work. " 5 He testified that he scraped hand trucks in the dross, a witness called by the General Counsel." Van-
sun, washed the garage door, washed the floor with a dross testified that before Dones discharge he observed
hose and a hand scraper that required him to kneel Dones at work and that his job consisted of porter work
down, and cleaned the freezers with the doors closed. s uc h a s putting o u t g a r ba ge , c le an n g t h e b a c k o f t h
bakery, and working on the wrapping machine. AfterConcerning the freezers, Dones testified at great length bakery, and working on the wrapping machine. After
that he was not permitted by Myron Chassen to turn offthat he was not permitted by Myron Chassen to turn off 6 The General Counsel did not ask Dones to explain how he was
the blowers and leave the door open while he cleaned aware of the usual practice if he had never observed it in the past.
and scraped the ice. Dones stated that it was the usual ' Greg Simon, whose testimony and credibility are discussed below,
practice to turn off the blowers and keep the door open, testified that, after Dones' reinstatement, Myron Chassen stopped Simon
although in response to a question by the General Coun- from scraping the floors and said that he had someone to do the cleaning
now and "that'sn the law. Chassen said Dones would clean
I Vandross signed an authorization card for the Union. I found Van-
s Dones could not recall any of the relevant dates in this proceeding. dross to be a generally credible witness; his testimony was consistent and
He was reinstated on July 18s and discharged again on August 20. 1979 given in a forthright manner.
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w o u l d o t c h an g e af t e r t e e l ec t io n .
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hose and a hand scraper that required him to kneel
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1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dones' reinstatement, Vandross saw him scraping floors, facts. In more than a few instances, the General Coun-
and cleaning the freezer, storage room, bathroom, and sel's brief overzealously misstates the evidence in the
baking racks. Vandross testified that the freezers were record, and the brief also refers to nonexistent pages of
cleaned more often after Dones returned and that he the transcript. (To give only two examples, the brief
heard Myron Chassen tell Dones not to leave the doors states that Chassen "refused" to alter Dones' Sunday
open because the cakes would get soft. hours when there is no testimony at all to this effect, and
Myron Chassen also testified about the incidents relat- the brief refers to "page 168" of the transcript as the
ed to by Dones. He stated that he has cleaned the freez- source for several important factual assertions when
ers at the bakery, and that, in the summer months, the there is no p. 168 in the record).
freezer doors must be kept closed during this process or Dones' testimony is characterized by internal inconsis-
the goods stored within will begin to melt. He also stated tencies and by a seeming willingness to tell whatever
that coats and gloves are kept in the freezers for the use story is best suited to the General Counsel's case. Fur-
of employees working in them. This testimony was cor- ther, Dones' testimony is contrary in many respects to
roborated by Terry Smith. Smith also testified that at the the testimony of other credible witnesses.
urging of other unit employees he gave a sworn state- Dones' testimony contradicts that of McGinley, the
ment to the Board to the effect that Myron Chassen union representative who was called by the General
closed the door while Dones was working in the freezer Counsel in this proceeding." McGinley clearly and un-
without a coat on. In fact, Smith never observed such an equivocally stated that, as a result of the settlement,
incident. Smith also testified that his sworn statement Dones was reinstated as a "porter." Yet Dones spent a
omitted facts he was aware of; namely, that there are lengthy time on the witness stand denying that he was a
jackets in the freezer for the use of employees and that porter and seeking to show that Respondent discrimina-
Dones worked in the freezers with the doors open on oc- torily imposed porter work on him after his reinstate-
casion. Significantly, Dones was not called to rebut this ment in order to make his work less pleasant and more
testimony.9 difficult than it had been before his first discharge. 2 In
Concerning Dones' attendance record, Myron Chassen the same manner, Dones indignantly described being re-
stated that Dones was discharged for absenteeism in May quired to clean the freezer with the door closed contrary
1979, because he missed at least 1 day of work every to the "usual" practice but later admitted that he had
week. After Dones' reinstatement pursuant to the settle- never observed anyone else cleaning freezers. Dones
ment agreement, Chassen testified, Dones missed 6 days claimed that he could not return to work on July 17,
in a 3-week period and two warning letters were issued 1979, but while he testified that he was at the doctor's
to him. Chassen said that in the past he simply would office, he later changed the story to provide details of a
have fired an employee for that amount of absenteeism, day spent at the World Trade Center And the progres-
but that he was advised by counsel to send warning let- sion of Dones' testimony, detailed above c nin the
ters instead. 1 When Dones failed to report to work on Wod T e Cente ode i o c a nae a to.... ,. j World Trade Center episode is of such a nature as toSundays after the elections, he was discharged. Myron l m t b t r
Chassen testified that other full-time employees were lead me to believe that Dones fabricated explanations ast ti
absent less frequently than Dones, but that one employee he went alon ands e confronted with prior
who was absent the same number of days as Dones did
not continuously miss Sundays. Chassen also testified This tendency is nowhere better illustrated than in
that he had offered Dones reinstatement after August 20, Dones' testimony concerning his solicitation of authori-
if he would work Sundays, but Dones refused. zation cards for the Union, a subject not directly rele-
The General Counsel argues that Dones was discri- vant to this portion of the case. On direct examination,
minatorily discharged in violation of the Act, and con- Dones identified a number of cards and stated that they
tends that the unfavorable changes in Dones' working had been signed and filled out in his presence, or that
conditions, the insistence on Dones' working regular they had been signed and completed and handed to him
Sunday hours after the election, the use of warning let- by the individual employees. Based on the testimony of
ters to Dones, and other alleged acts of interference with McGinley and of the individual signers, however, it is
the rights of unit employees all show that Respondent clear that Dones' testimony was inaccurate and that he
had union animus and prove that Dones' postsettlement had absolutely no memory of the events to which he
discharge was an unfair labor practice. I note that the willingly testified to on behalf of the General Counsel.
discussion in the General Counsel's brief relating to The record shows that Dones' direct testimony was in
Dones, as well as to all the other issues in the case, pre- error concernig the circumstances of the completion and
sents a highly selective overview of the testimony and signature of cards from employees Gibbs, Smith, Pickett,
does not explain testimony unfavorable to the General Vandross, Skinner, and Mitchell.
Counsel's case. For reasons which I will discuss below, I In contrast to the testimony of Dones, Myron and
am unable to share the General Counsel's view of the Robert Chassen testified in a credible and forthright
manner; their testimony was internally consistent, and
'Terry Smith's testimony will be discussed more fully below.
'0 The letter of July 24 states that Dones missed two out of the last " McGinley testified in a calm, forthright manner and did not seek to
seven working days, including July 17 which was unexcused due to lack evade cross-examination. I find that he was a credible witness.
of notification to Respondent. The letter of August 6, 1979, mentions fur- "2 Further, Vandross' testimony about Dones' workload before and
ther absences by Dones and requests that he again report for work on after his reinstatement makes it clear that Dones did substantial porter
Sundays. work before his initial discharge in May 1979.
.
.
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have fir an l f r t t t f t i , s t
but that he as a ise c sel t se r i l t- s f t etai once iing
s . 0 t . ,,o of ,oes t st . ', .eaie , o, °ocrin h
ters instea.10 Wheni Done failed to report to work on
Sundays after the elections, he as isc ar e . r l to .le t Doe r e a as
ss testifie that other full-ti e e ployees ere l e a d e t o believe that Dones fabricated explanations as
s t less fr tl t s, t t t l ch e w e n t a lo n a nd a s h e w a s f t it ior h s-
T h is t i

D o n e s '

za t o n i ,

v a n t t o t h s ti o f th e
D o n e s t t t t t

th e
it i
l.
h e

I n
r; t ir t ti
0
" t
r
, ' ' l
it t

' .,
ANN'S SCHNEIDER BAKERY 1155
they did not seek to evade questions on cross-examina- Both Myron Chassen and Dones himself testified that
tion. The General Counsel's brief points out that neither Dones was fired because he refused to begin regular
Myron nor Robert Chassen specifically denied uttering Sunday work once the election was over. Dones testified
certain of the presettlement statements that are alleged to that he indicated to Chassen that, if Chassen were to
constitute violations of Section 8(a)(l) of the Act. insist on Sunday work, Chassen "may as well let me go
Indeed, this candor leads me to believe that both Chas- now." Although Dones responded to a leading question
sen brothers testified in a direct and unguarded way. The from the General Counsel by stating that he had offered
general character of their testimony comports with the to adjust his Sunday hours, I do not credit this. Signifi-
fact that, when the Union's demand for recognition was cantly, Dones could not recall what Chassen's response
received in May 1979, Respondent was not represented to this offer had been, although Dones did not testify
by experienced labor counsel, and it was only some time that Chassen had refused his offer. (The General Coun-
after charges were filed that Respondent obtained advice sel's brief is quite incorrect on this point.) Further, when
from labor counsel and negotiated the settlement agree- Chassen offered reinstatement to Dones on condition
ment. that Dones work on Sundays, Dones did not at that time
Since I have determined that Dones is not a credible agree to return provided some adjustment could be made
witness, I must evaluate the issues relating to his testimo- in his hours.
ny in light of this finding. Thus, I conclude that, by I also do not find that Respondent engaged in unlaw-
agreement of the parties, Dones was reinstated as a ful conduct when it issued warning letters to Dones con-
porter and that he was assigned substantially the same cerning his absenteeism and his failure to work on Sun-
duties after his reinstatement as he had performed prior days. Dones was indeed absent frequently and he did
to his discharge on May 21, 1979. I find that any change refuse to work on Sundays. There is no evidence that
in the manner in which he was asked to perform his Respondent had any other purpose than to follow advice
duties was caused not by Respondent's desire to make his of counsel and make a record of warnings. Nor has the
job more onerous and less pleasant, but by the reorgani- General Counsel shown that any other employee had a
zation and renovation of the bakery and by Respondent's record quite as bad as Dones."4 Finally, it is clear that
desire to avoid further citations from the Board of Respondent repeatedly offered Dones a chance to con-
Health. I also find that Dones was not required to work tinue working by improving his attendance record, espe-
in a different manner from other employees and that Re- cially his attendance on Sunday.
spondent's requirements as to his manner of cleaning the
freezers, for example, were the same as those imposed by B. Events Relating to Skinner
Respondent on other employees. Charles Skinner testified that he was hired as a baker's
Turning to the question of whether Dones' excusal helper in April 1978, and that he was discharged on July
from Sunday work was to continue beyond the date of 17, 1979. Skinner's testimony about the dates of his
the election, I find that Myron Chassen's understanding hiring, discharge, reinstatement, and second discharge
of the arrangement is more reliable than that of Dones or was confused, as was much of the rest of his testimony.
McGinley. I have already explained that I do not regard In fact, the record shows that Skinner was discharged on
Dones as a credible witness. Alhough I have found that May 21, 1979, and that he was reinstated on July 17,
McGinley is a credible witness, I believe his memory is 1979, pursuant to the settlement agreement. There is a
less reliable than is Myron Chassen's on the subject of dispute as to the actual date and circumstances of his
Sunday work for Dones. It is not plausible that Respond- second discharge which will be discussed below. Skin-
ent would have agreed to excuse Dones from work on ner's hours were from 2 or 3 a.m. until 11 a.m. or noon,
Sunday since it was acknowledged that Sunday is typi- Sunday through Friday. Before his discharge in May
cally the busiest day of the week. It is much more likely 1979, he made pastry on the belt, scaled dough (weighed
that Respondent agreed, as it contends it did, to certain it by portion), fried doughnuts, operated the oven, and
special conditions for Dones to last until the date of the helped load the oven. After his reinstatement, he again
election. From the demeanor of Myron and Robert made pastry on the belt but, after a time, Robert Chassen
Chassen and from their testimony, it is clear that they assigned him to operate the two ovens. This work con-
each have an intense commitment to the bakery and are sisted of loading and unloading ovens, and of watching
familiar with the most minute details of the enterprise goods in the ovens.
Therefore, I find Myron Chassen's memory in the matter Skinner testified that he asked Robert Chassen for as-
of Dones' Sunday hours more reliable than that of sistance to unload the oven but that he was not given
McGinley. I therefore find that Dones was properly ex-
pected to resume work on Sundays after the election.. .could be spared; this circumstance lends weight to Respondent's position
on this issue.
' I note also the paucity of testimony by Dones, an otherwise loqua- " I do not credit Dones' explanations that he gave notice of intended
cious witness, concerning the precise nature and requirements of his absences since, as discussed above, I do not believe him to be a credible
preaching duties. Dones did not testify as to the hours of his preaching witness. Further, I do not credit Dones' excuses for his absences, whether
duties nor their location, and the record is therefore barren of any specif- a doctor's appointment or a court appearance, since these stories seem to
ic information as to when he would have to be released on Sunday. This me to be fabricated.
leads me to believe that Dones' commitments were rather vague, and re- '5 Skinner testified in an inconsistent manner He showed an extremely
inforces my belief that the Union agreed that the Sunday excusal would poor memory for the sequence of events. despite the extensive use of
last only until the date of the election. Further, Dones testified that leading questions by the General Counsel during his direct testimony.
before his first discharge he was excused early on Sunday only if he Much of his testimony is so undecipherable as to be almost worthless

.
ti
l
fr t ti t t , . '
t l ti , I fi t t ' t i i , i , i t t t, i
t rr t i li l t t t
i l . I lr l i t t I t r r f t, t r r t t i r i
r i l it . l I f , ,
i l i a r i l it , I li i r i , t ttl t " i
l r li l t i r ' t j t f i t t t t l t i t i
f . It i t l i l t t - i r i ill i l . i
s ti
i it l t t i i i f i i i
ll t i t f t . It i li l , l
t t t r , it t it i t i i ,
i l iti f t l t til t t
tr l
fr t ir t ti , it i l t t i i t t i
i t it t t t r r i l i l i i
i i t t i t t il f the enterprise. goods in the ovens.
r f r , I fi r hassen's e ory in the atter Skinner testified that he asked Robert Chassen for as-
f ' r r r li l t t t t t hat
. f rl
t t r r ft r t l ti n."l ~ .*,^ *i .pected t resu e ork on Sundays after the eletion." 1 l ;
"I
"1
.
.
t t t t i
ct o l ction." l ~~ 7 i. * , ^ * i. n ^11
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
help. He stated that Chassen told him "that was my job. to scale the dough and another to put it in the oven;
If I didn't like it . . . go back to the labor board." On Chassen said that in that circumstance he would consider
direct examination, Skinner stated that no other employ- that the men were helping each other. From a careful
ees worked the ovens without assistance; however, Skin- comparison of Skinner's testimony with the testimony of
ner later testified that "Paul and George" worked alone. Robert Chassen on this point, I believe that when Skin-
Skinner also stated that he asked Robert Chassen for a ner testified that an oven man often had assistance, he
raise but that he was refused. Skinner gave it as his opin- had reference to the times when one man did scaling and
ion that he should have been earning more money be- the other loaded and unloaded the goods.
cause he was working on the ovens. However, on cross- Robert Chassen testified that he assigned Skinner to
examination, Skinner testified that he did not know how the ovens because a previous oven man quit and Skinner
much other oven men earned. He stated that he believed was next in line to do the work. This testimony was not
that one oven man who was a long service employee contradicted by any witness. Robert Chassen stated that
earned more than he did, and he acknowledged that the after his reinstatement pursuant to the settlement agree-
long service man also performed mixing, a task Skinner ment, Skinner "took his time. He walked away a lot and
did not perform. There was no general wage increase at he was a little arrogant and I couldn't talk to him....
this time. I had no choice. I had to put up with him." Chassen tes-
Skinner testified that he was unable to get someone to tified that Skinner had burned merchandise on numerous
watch the oven while he went upstairs to the bathroom occasions.
but that he worked out a system for going upstairs while Concerning Skinner's discharge, Robert Chassen testi-
the ovens were loaded. Robert Chassen testified that he fled that one day Skinner ruined a whole rack of coffee
did not deny Skinner's proper requests for relief. Skinner buns because he walked outside for coffee.' 8 Chassen
testified that on August 6, 1979, he overproofed some was so upset because no more could be made that he
crumb buns and Robert Chassen told him to "go told him to "go home for the day." He did not see Skin-
home."' 6 Skinner thought he was fired but he neverthe- ner thereafter. Both Robert and Myron Chassen testified
less finished out the day. Skinner testified that he over- that Skinner was fired because he was absent from work
proofed the buns because "I forgot about it," and that for 9 days. Apparently, a letter of discharge was sent to
while he was unloading the big oven he could not take him.' 9 Myron Chassen testified that, after his discharge,
the crumb buns out. Although his testimony on this point Skinner returned to the bakery and threatened him.
is confused, a careful reading of Skinner's testimony con- The General Counsel asserts that Skinner's August dis-
vinces me that Skinner forgot about the crumb buns and charge was in violation of Section 8(a)(1), (3), and (4), of
only realized that they were overproofed while he was the Act. An extended discussion of the General Coun-
unloading an oven, at which point it was too late to pre- sel's brief is not required in that part of the case relating
vent damage. Skinner was working without assistance to Skinner since the brief is based on an erroneous view
during this occurrence, and he testified that the damage of the facts. Skinner's total inability to place in context
occurred because he had no help. the various incidents he was asked to relate and his in-
Following the incident of August 6, Skinner testified, ability to recall in what sequence these events took place
he did not return to work until about August 17. He re- (except in response to leading questions) leads me to be-
ceived a letter dated August 9, 1979, from Myron Chas- lieve that he had memorized a series of stories for the
sen stating that Skinner had previously been warned con- hearing in the instant proceeding and was unable to keep
cerning damage to $700 worth of baked goods, and that his stories straight. I will not, therefore, credit Skinner's
Skinner had been absent from work on August 7, 8, and testimony where it conflicts with that of Robert Chassen.
9. The letter stated: I am convinced from my observation of Skinner and
The purpose of this letter is to serve you with from a reading of the record that he had little recollec-
notice that your continued absence without notice tion of many of the events he testified to and that much
or excuse will result in your dismissal. of his testimony had been suggested to him by someone
else.
Some time after receiving the letter, Skinner went back I find that Skinner was not harassed by being assigned
to the bakery. Upon seeing Robert Chassen, Skinner told to perform oven work in any way that was contrary to
him he "came back for my money and my clothes," and the usual practice at the bakery; even Skinner admitted
Chassen told him to get out. Skinner did not ask Chassen that oven men often work alone. I find that Skinner was
if he could go back to work. not improperly refused a wage increase; there was no
Robert Chassen testified that the work of loading and testimony to show why he was entitled to an increase. I
unloading the ovens is a one man job. In fact, Chassen find that the warning letters were properly issued to
stated, some oven men also scale dough without assist- Skinner for destruction of baked goods as claimed by
ance while loading and unloading but that Skinner was Respondent. I find, as testified to by Robert Chassen,
not asked to do this. The usual procedure is for one man that Skinner was not fired on August 6, but that he was
told to go home for the rest of the day. Skinner received
" Skinner's testimony on this incident is not clear; at various points in
the record, he placed the crumb bun incident before his reinstatement a letter dated August 9, warning him that as he had been
under the settlement agreement. absent from work without excuse for 3 days he faced dis-
"On July 24, 1979, Skinner was given a note signed by Robert Chas-
sen listing goods improperly baked by Skinner and warning that he might " This is the "crumb bun" incident.
be dismissed. Skinner denied some of the allegations in this note. This letter was not introduced into evidence.

..
. . . .

i
"
e.'""
t ti i t t t t i fir s s s t fr r

.'"
r f l i ti r l l r
ti )(l
l l il t t. t isc ssi f t eneral oun-
l i f l ti
. i r i it t i t t i er since the ri f is based on an erroneous vie
i t i , ti i l ili
l i i i t r l t i i -
l ti ll
i t til i ti
i l tt t , ,
t ti t t i i l i
r i t rt f , t t i t i t i t. ill t, t f , i i '
t , ti it fli it t t f rt .
9. 11 The letter stated:
i i i i
r i r
, l r i
t l i t t t. i r i t ask hassen that oven en often ork alone. I find that kinner as
i l rl ;
rt t tifi t t t l i ti ti i r
l i t i j I f t, rl
t t , l l i i t tr ti
i t. ti
t t t i . l r r i f r
- - - --- , .^ . ,^I~~~~~~tod t f . i r i1" t re d Ski n e rci ved

l e t t e r d a t e
,
"
"
t
i
ANN'S SCHNEIDER BAKERY 1157
missal if he continued to be absent without notice or when they saw Myron Chassen at or about 10 p.m.22
excuse. Skinner did nothing on receipt of this letter, and Chassen said "tomorrow" was the election, that they
sometime later he returned to the bakery for his money could not vote and he gave Smith $30 "to get lost to-
and his clothes. He did not ask to be put back to work. morrow." When the three of them went outside, Smith
Although, as set forth above, Robert Chassen candidly gave $10 each to Simon and Howard.
expressed a certain amount of resentment against Skinner On the day of the election, Simon testified, he, Charles
and his "arrogant" postsettlement behavior, the General Howard, and Terry Smith "got into Terry's car" and,
Counsel has not shown that this played any part in Skin- with Terry Smith at the wheel they "went riding."
ner's termination. Rather, I find that Skinner gave ample Someone said: "[L]et's go around the bakery." (On
cause to Respondent by damaging merchandise and by cross-examination Simon testified that the car belonged
failing to report to work or to contact Respondent upon to Smith's brother.) Simon stated that they drove to the
receipt of the August 9 letter. bakery and parked in the public lot on the corner of
Newark Avenue and Monmouth Street, and that their
C. Events Relting to ion Meetings nd to thepurpose was to vote in the election. The three young
men then walked to another part of the lot toward First
The General Counsel presented the testimony of Greg Street, the location at the back of the bakery where the
Simon to show alleged instances of Employer surveil- election was being conducted in a garage area.2 3 Before
lance and interference. Simon testified that he is a porter they left the lot or reached First Street, they saw Myron
and that he works the hours of 4 to 10 or 11 p.m.; he Chassen who stopped them and asked where they were
stated that he was expected to work 6 days a week but going. Simon testified that Chassen said, "[Y]ou're not al-
that he occasionally did not work on Wednesdays.2 0 lowed to vote," and told them that their names were not
Simon testified that Dones called a union meeting on on the list and that they should "go home, and come
Saturday in late July 1979 at the Golden Skillet Restau- back to work this evening." After this incident, the three
rant. He testified that he and Charles Howard and Terry young men left. Simon stated that he, Smith, and
Smith talked to Myron Chassen about this time and that Howard came to work at "four o'clock, on the dot" in
Chassen asked them to go to the meeting and report the afternoon of the election, and that Chassen said,
back to him concerning what was discussed. 2t Chassen "thanks." On the next payday, Simon testified, there was
then asked Simon who was for the Union and who $30 extra stapled to the outside of each of their pay en-
would vote against representation. Simon testified that velopes, and Myron Chassen said, "Thanks again." 24
Myron Chassen told the three young men that their Simon could not remember the day of the week on
names were not on the list of eligible voters. Chassen al- which the election was held; however, he gave a de-
legedly told them that the Union was no good, that it tailed account of his movements on that morning includ-
slowed up business, and that one bakery which had a ing a trip to an ice cream parlor. Simon did not recall
union was now closed. seeing the union organizer, Leonard McGinley, near the
On the Saturday of the meeting, Simon testified, he bakery on that day. When McGinley testified, however,
looked for the Golden Skillet with Howard and Smith he said that on the day of the election, he had positioned
but could not find it. The three then saw Myron Chassen himself on Monmouth Street near the bakery so that he
near Newark Avenue, and he told them to look for the could "observe the back where the election was being
meeting and report back to him. Simon testified that they held." McGinley saw a car with Terry Smith and two
did not locate the meeting, but nevertheless, told Chas- other young black men in it which drove around the
sen that they attended it and that the fellows were drink- block once and then went on. McGinley did not see the
ing and saying "to vote for the Union." On cross-exami- car pull into the lot and park, nor did he see anyone
nation, when counsel for Respondent asked Simon about emerge from the car. Further, he did not observe Myron
the lie involved in this report to Chassen, Simon testified Chassen talk to three men in the lot.
that he did not lie and that Terry Smith did all the talk- Charles Howard was called by Respondent and testi-
ing. After further cross-examination, Simon recalled that fied that he had been employed by Respondent for 1-1/2
on this day the three young men saw employees Benja- years. From March through August 1979, he worked 6
min Vandross and Charles Skinner in a car; Vandross days a week when there was work available. Howard
and Skinner told the three about the meeting and so en- testified that he recalled the day of the election, and that
abled Terry Smith to tell Myron Chassen what had hap- he remained at home and did not go to the bakery to
pened there. According to Simon, the three young men vote in the morning while the election was held.
did not tell Vandross and Skinner about Chassen's inter- Howard denied being in a car with Simon and Smith on
est in the meeting. It was during this encounter, Simon the day of the election, and said that he had gotten to
said, that Vandross told them they had a right to vote afternoon.
According to Simon, the day before the election of
August 3, 1979, he was at work with Howard and Smith 22 The Employer's payroll records show that neither Simon nor
Howard were at work on August 2. 1979, the day before the election.
2 In fact, the payroll records for 1979 show that he often did not work and that neither Simon nor Smith worked on the day of the election.
a full week and that he often worked only 2 or 4 hours per day. " The bakery faces Newark Avenue at the front and First Street at the
"' Simon, Howard, and Smith are high school students who work for rear. It is between Monmouth Street and Cole Street.
Respondent after school hours. " This last payment is not alleged as a violation in the complaint
'
"

'
C. Events latin t Enio eetingspurpose t .
"
'
ays.2

1 ."

ll t t sti-
i ll t t fi t t l s t f r 1-1/2
l j . r r t r t , r

. t , i i .
i it
t i t ti . ,
, . w b
, l r' a r ll r r s s t at eit er i on nor
.
w
l l
,
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination, Howard acknowledged that in threatened again by Dones and Vandross and a gun was
June 1979 he borrowed money for a bicycle from Myron mentioned. Further, Smith stated that Greg Simon had
Chassen, but he stated that he had long since paid it all called him shortly before the hearing and stated that the
back (at the rate of $10 per week). He also testified that General Counsel would help him get into the Army and
he was sometimes given extra money by Chassen for that if he changed his testimony he would be "lynched."
doing good work and that he received $20 at Christmas. Before this call, Smith had told Simon that he was going
Howard denied being given any money by Myron Chas- to tell the truth at the hearing because he had spoken to
sen before the election, and he explained that he did not a family friend who is a Jersey City police officer earlier
vote because his mother did not want him to get in- in the week, and had been advised about the seriousness
volved with the Union or with the Labor Board. He re- of the situation. Concerning the source for the untruths
called that Myron Chassen had told him when the elec- in his statements, Smith explained that Greg Simon
tion would be held, although Chassen did not tell him coached him in the story and that Dones "put some
whether or not to vote. more lies with it." Smith recalled being told to say that
Terry Smith was called by Respondent, he testifiederr it s ll , Myron Chassen asked them to go to the meeting, that he
that he had been employed at the bakery for about 3that he had been e ployed at the bakery for about 3 gave them money before and after the election and pre-
years. Smith stated that on the day of the election, he gve the money before andafter the electon and pre-
first arrived at the bakery in time to work at 4 p.m. He vented them from voting, and that Dones worked in the
denied being in a car with Simon and Howard that freezer without a coat. Finally, Smith testified, Dones
morning or going to the bakery to vote in the election. 25 approached him while he waited to testify outside the
On cross-examination by the General Counsel, Smith court room and said, "[its for your benefit, and if you
acknowledged giving two sworn statements to the Board tell the truth they're going to throw you in jail." He tes-
which were contrary to his testimony at the hearing. tifed, in great detail, that on the day of the election he
The statements, dated August 13 and 26, 1979, were in- spent the morning with his girl friend and later went to
troduced into evidence by the General Counsel. Smith work with Howard and Simon. Smith stated that the
testified that when he came to the Regional Office to election was held on a Monday or Tuesday; he denied
give the statements he was accompanied by Greg Simon. receiving extra money after the election. 27
The statement of August 13 is, in substance, to the fol- After Smith's testimony was given, the General Coun-
lowing effect: On Friday, July 27, 1979, Myron Chassen sel recalled Simon, Dones, and Vandross. Simon denied
asked Smith, Howard, and Simon to attend a union meet- coercing Smith in any way, and stated that Smith had
ing and report back concerning statements made by suggested giving an affidavit to the Board, and that
Dones. Chassen also gave the young men $30 "to go the Dones also suggested filing a complaint. Vandross denied
shore" and not vote in the election. The three tried un- threatening Smith; he stated, however, that he had called
successfully to find the union meeting on July 28, 1979, Smith at home about coming to the Board. Vandross tes-
and then met "Benny" and "Lee" as these two returned tified that, on the night of the election, he and Lee
from the meeting. Benny and Lee told the three men Archer met Smith, Simon, and Howard and that they
what Dones said at the meeting, but when Smith, discussed what had happened and he told them that they
Howard, and Simon saw Myron Chassen a few minutes were entitled to vote. Dones also called Smith after the
later, Smith told Chassen that he could not find the election; however, Dones denied threatening Smith.
meeting and had not seen anyone. On July 29, a payday, Dones testified that Smith, Simon, and Howard told him
Chassen asked about the meeting and later gave Smith about being chased from the polls and asked his advice,
extra money and said, "[T]hank you for not coming." and that he told all three to file a complaint with the
The statement then reads, "I believe he was referring to Board.
the election." The statement of August 16, 1979, is to the Myron Chassen testified that he arrived at the bakery
following effect: On August 2, 1979, Chassen gave Smith at or about 7:30 a.m. on the day of the election. He
$30, mentioning a trip to the shore, and on August 3, decorated cakes with whipped cream until about 10:30
1979, Smith, Simon, and Howard appeared to vote and a.m. when the Board agent directed him to leave. There-
saw Myron Chassen who told them to go home and upon, both Chassen brothers and their counsel stayed in
come back around 6 p.m.2 6 the bakery office for about one-half hour until an em-
Pursuant to cross-examination by the General Counsel, ployee entered the office to say that a pot of whipped
Smith stated that he was coerced into giving the sworn cream had been left out right near the office. At that
statements by Benny Vandross, Joe Dones, and Greg point, Myron Chassen walked through the manufacturing
Simon who "threatened, abused and scared" him. Smith area to the door of the garage where he attracted the
testified that initially Vandross and Dones told him to go Board agent's attention by waving to him. The Board
the Board and sign a statement and that he was beaten directed Chassen to return to the office and the
up by an unknown person when he failed to do so. Sub- latter did so. Myron Chassen testified that he was con-
sequently, when Greg Simon, Dones, and Vandrossse e tl , , cerned that the cream would spoil in the heat of the day,
called him at home, Smith agreed to give a statement. Board agent's permission to re-and that he wanted the Board agent's permission to re-After he gave the first statement, Smith testified, he was frigerate it. Chassen denied being near the parking lot
and denied seeing either Smith, Howard, or Simon2a As set forth above, the payroll records show that Smith did not dring the time the eetion too
work on the day of the election.r t e a f the election, during the time the election took place.
" Many other subjects, not relevant to this discussion, are covered in
Smith's statements. ' In fact, August 3, 1979. was a Friday.

.
t i t i t t i t t i - i, t e ee , and had been advised about the seriousness

ti l l , lt i t
r li it it." it r ll i t l t sa t at
», ^ 1 .. * LiTerr Smih ws caled y Rsponenthe estiied yron Chassen asked the to go to the eeting, that he
r h o e y e e n t t h e ti e
. it t t t t t f t l ti , g av e t h er m o ne y b ef o r e an d a f t er t h e el ec two n, a nd pi -
first rriv at the k ry in ti e to rk at 4 p. . e fv en t ed t he m f ro m v ti , and that ones orked in the
denied being in a car with Simon and Howard that f ra t whileally, Smith testified, Dones
i i t t r t t i t l ti . ca proac i il it t t tif t i t
tellth r o o u a n d sat dy going fo rtho wy e n eui tn a n d i f Ht
te l1 t h e t r u t " "e 're
r e d
t t t , " t h e
w o r k w it h
"
t
i t r .
t l ti . i ti
ll i , l ti .
, ti i t i t t , t , t it i r til t :
i l
. . 2 t r ffi f t - lf til -
t t - x i ti r l l
it t t t t i t i i t l i
. f t ri
m o n w h o t h r ea tene d , ab u sed an d sc ar e d " h i . it h r t t r f t r r ttr t t
t tifi t t i iti ll r t l i t ' ti i
t r i t t t t t t a t r t r t t ffi t
il . . ti i
ntl i , , ^ , , tedysequetlywhenGreg imon ons, an anross cerned that the crea ould spoil in the heat of he day,
c ll hi at , it r t i a st t t. a t he w r t' r i i t r -
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,.. r i. ,. ,. „ .. ,. ^~ and denied seeing it r it , r , r i
2" As set forth above, the payroll records show that S ith did notr a d i s i e r S i. H o
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.
it 's st t ts. " I f t, t . . i .
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ANN'S SCHNEIDER BAKERY 1159
Manifestly, a major issue in this case is the relative depart. If the car had been parked and if the three young
credibility of the three young men-Greg Simon, men had emerged and had been confronted by Myron
Charles Howard, and Terry Smith. Charles Howard tes- Chassen, McGinley would have observed this. His fail-
tified in a careful, consistent, and forthright manner. He ure to see any of the events testified to by Simon leads to
testified that his mother had strong feelings against his the conclusion that these events did not occur.
involvement with the Union and, for that matter, with Terry Smith admitted giving two false statements to
the Board. I am convinced from his demeanor and from the Board, and there is thus no need to dwell at length
the nature of his replies to questions posed by counsel on the reasons for finding all of his testimony and his
that he did indeed shun any involvement with the Union sworn affidavits open to serious question. Although it is
and that his testimony was in all respects truthful. Thus, difficult to sift fact from fiction in Smith's testimony, it is
I credit his testimony that he was not bribed, interrogat- interesting to note that his first affidavit reads like a
ed, or prevented from voting by Myron Chassen. As will badly remembered version of Greg Simon's testimony:
be seen below, I do not credit any of Greg Simon's testi- for example, the alleged bribe is given on the day of the
mony about alleged unfair labor practices committed by Saturday union meeting and a second bribe is given
Respondent. before the election. This would seem to lend some cre-
There are many reasons, aside from the truthfulness of dence to Smith's story that his affidavits are false and
Howard's testimony, for discrediting the version of were given at the urging of Greg Simon and Joseph
events given by Simon. For one, Simon's stories do not Dones who also provided the false details to be included
make sense. As an example, if Simon had indeed been in the affidavits. This is not to say, however, that I find
asked by Myron Chassen to find the Golden Skillet his testimony at the hearing to be entirely reliable. For
meeting and report back to him, Simon would surely example, Smith gave a very detailed account of his sup-
have mentioned this fact to Vandross and Skinner (two posed activities on the morning of the election, and yet
union supporters), when he met them on the day of the he was unable to recall what day of the week he was tes-
meeting and discussed with them what had taken place tifying about, nor did he recall that he did not work on
there. Vandross, a witness called by the General Counsel the day of the election. In view of the fact that Smith is
and whose testimony I credit, did not testify at all about a self-admitted teller of untruths and in view of the fact
his encounter; Vandross testified that he met the three that it is impossible to determine when Smith might be
young men after a postelection meeting which was held giving accurate testimony, I shall disregard all of Smith's
at a bar one block from the bakery and that he was ac- testimony and his affidavits. Although the General Coun-
companied by Lee Archer, not Skinner. Significantly, sel urges that Smith's affidavits should be credited, no
Simon would not accept responsibility for allegedly re- basis has been shown to support a finding that the state-
porting back to Chassen and lying about the meeting; he ments contained in the affidavits are true.
testified that Terry Smith had done the talking. Another The General Counsel called Ulyssee Mitchell to testify
example of a story that does not make sense is Simon's concerning alleged instances of surveillance by Respond-
version of the alleged bribe. Simon claims that the ent.28 Mitchell was hired as a baker's helper in 1978, and
money was given to Terry Smith in order to insure that he was discharged on August 25, 1979, following an al-
the three young men would not vote "tomorrow." How- tercation with Robert Chassen during which the police
ever, the payroll records introduced into evidence by the were called. As Mitchell described it, the fracas arose
General Counsel show that neither Simon nor Howard over an order given by Myron Chassen to put away cer-
were at work on the day before the election. Further, no tain goods which was not promptly carried out by
reason has been shown why Chassen would give the Mitchell. Mitchell was accused of "pushing" Robert
three any money to stay away from the election, and Chassen and criminal charges were filed by both parties.
there is no testimony to show Chassen had any basis for According to Mitchell, Chassen did not touch him. After
believing they intended to vote. Their names were not the police came, both Joseph Dones and one of the
on the list of eligibles, and Chassen had not been in- police officers advised Mitchell to leave the scene and
formed that they intended to cast ballots. Indeed, even "cool off." Mitchell was clearly hostile to both Myron
Simon did not testify that he had expressed any intention and Robert Chassen, and volunteered the information
of voting before the election. concerning Robert Chassen that "he's no match for me. I
Simon's story about the election day ride also strains could have washed up the floor with him." On direct ex-
credulity. Simon was able to testify in detail about the amination, Mitchell was confused despite the extensive
ride and the events of the day, but he could not recall use of leading questions by the General Counsel, and tes-
seeing McGinley near the bakery during the election al- tified as though he was telling a story by rote. Further,
though the car allegedly drove close to where McGinley Mitchell resisted counsel's questions on cross-examina-
was standing. Further, if Simon had indeed been prevent- tion and answered evasively.
ed from voting, why did he not immediately seek out the In response to a series of leading questions by the
union organizer and make this fact known? McGinley, a General Counsel, Mitchell stated that he had called a
witness called by the General Counsel and whose testi- meeting at the Lucky Seven bar on the Saturday before
mony I credit, had stationed himself so that he could ob- the election, and that on the next day Robert Chassen
serve the relevant locations during the election. McGin- asked him if he had attended the meeting. Mitchell alleg-
ley saw a car with three youths in it, but he was unable
to say that Simon or Howard was in the car. McGinley . Mitchell signed a card for the Union and was known to support the
saw the car drive once around the bakery and then Union.

ction,.concerning

it, l

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edly answered, "[N]o ... I went to Staten Island." conduct. However, since the General Counsel supplied
Mitchell testified that employee Paul Mueller was 5 feet the time and place of the union meeting to Mitchell in
away when this conversation took place, and that, when his very first question about the transaction, Mitchell had
Robert Chassen went over to Mueller's work station to no opportunity to try to remember when the conversa-
look for something, Mueller said: "I was in the bar. I tions occurred. The use of a leading question here is par-
should have found out who all was in there." There- ticularly crucial to my evaluation of the testimony be-
upon, according to Mitchell, Robert Chassen said: cause several meetings were held at the bar, and Mitchell
"That's a good idea. Go over to the bar today and find should have been permitted to testify of his own recol-
out who all was in the bar, in the meeting." Mitchell tes- lection concerning the timing of Chassen's remarks. As
tified that, on the next Tuesday, he asked Robert Chas- the record stands, it may be that Mitchell was testifying
sen: "Didn't you tell Paul to go and find out who all about a premeeting conversation which took place before
went to the meeting." According to Mitchell, Chassen the settlement agreement was executed.
acknowledged that he had and further said that the Further, there is testimony by Myron Chassen that he
Union would not win "because we have the majority of was especially friendly with certain employees including
the votes in the back." Chassen continued by saying: a few who told him early in the Union's campaign that
"But you can vote the way you want to vote . . . be- they did not favor union representation. Mueller is one
cause no one would ever know." of these named employees. If the Chassen brothers
Mitchell testified in response to questions by the Gen- wished to spy on the union meeting, it is not reasonable
eral Counsel that he had observed Dones' duties after the to suppose they would approach Mueller in front of a
latter was reinstated and that Dones was given "filthy known union supporter. It is even less likely that Robert
work" such as cleaning racks in the hot sun, "clean out Chassen would have admitted such surveillance to
refrigerators with the motors on ... got on top of steam Mitchell 3 days before the election. The testimony of
things and cleaned them off." Mitchell did not explain both brothers shows that they were well aware of the
how he could observe Dones at work at this time: during consequences of the alleged unfair labor practices com-
the summer of 1979, Mitchell worked in the wrapping mitted before the settlement agreement, and it is most
room and he began work at 2 a.m., while Dones did not unlikely that Robert Chassen would have admitted a fur-
appear until 9 a.m. and worked in other areas of the ther unfair labor practice to one of the Union's chief sup-
bakery. The nature of Mitchell's testimony on the subject porters right before the election was to take place.
of dones, and the manner in which it was given con- Since I do not find Mitchell to be a credible or reliable
vinces me that Mitchell was testifying to matters of witness, I am unable to find that Respondent engaged in
which he had no direct knowledge. acts of interrogation and surveillance as alleged by the
In evaluating Mitchell's testimony concerning alleged General Counsel.
instances of interrogation and surveillance, I have taken In summary, I find and conclude that the General
into account his gratuitous expression of hostility to Counsel has not shown any violations by Respondent in
Robert Chassen, his demeanor while testifying, the Gen- connection with the union meetings or the election.
eral Counsel's extensive use of leading questions on
direct examination and his unreliable testimony on the D. The Presettlement Allegations
subject of Dones. Further, I have considered the likeli-
hood that the story related to by Mitchell is accurate. I On September 21, 1979, the Regional Director vacated
have determined that Mitchell is not a reliable witness and set aside the settlement agreement. As I have found
and that he should not be credited. Although no other that no unfair labor practices were committed by Re-
witness testified about these events, and Mitchell's testi- spondent after the execution of the settlement agreement,
mony is uncontradicted, I am not convinced that the tes- I also find that the Regional Director had no grounds for
timony is truthful or accurate. The story told by Mitch- setting aside the settlement agreement. Therefore, I shall
ell is incredible on its face. As discussed above, certain recommend that the settlement agreement in Case 22-
presettlement statements by both Robert and Myron CA-9237 be reinstated, and it is therefore unnecessary to
Chassen, admitted in the testimony of both brothers, make any findings concerning the alleged unfair labor
were in the nature of interrogations, threats, and the like. practices predating the settlement agreement. Deister
The record is clear, however, that once labor counsel Concentrator Company, Inc., 253 NLRB 358 (1980).
was retained by Respondent and the settlement agree-
ment entered into, neither of the brothers made speeches
to employees or discussed the Union with employees in The General Counsel maintains that the unfair labor
informal meetings. Yet the General Counsel would have practices alleged herein are so serious and substantial in
us believe that less than I week before the election, after character and effect as to undermine the alleged majority
compliance with the settlement agreement including status of the Union, and that a bargaining order should
posting of a notice and reinstatement of two alleged dis- issue pursuant to N.L.R.B. v. Gissel Packing Co.. Inc.,
criminatees, Robert Chassen approached a known union 395 U.S. 575 (1969). In view of my findings that none of
adherent and asked him about a union meeting and fur- the unfair labor practices alleged by the general Counsel
ther asked another employee to obtain information about did in fact take place, I conclude that Respondent has
the meeting in the presence of this same union activist. It not violated Section 8(a)(5) of the Act and that there is
may be that Mitchell dimly remembered some occasion no basis for the issuance of a bargaining order pursuant
when Robert Chassen may have engaged in improper to the rationale of Gissel.

I

..

wledge,.acts
sel.

i ti l ti e ttlement
j t li
ll . n , , t i l ir t r t
r ll it
a nd t i t ttl t r t. I v f
l i lt
t h at u n fa r la bo r P ti r itt -
t ti it ' ti ft t ti f t ttl t r t,
is tr i t , I t i t t t t -
al so f in d t h at t h e i l i
l . t i t ttl t r t. r f r , I shall
ll i . i t t t ttl t r t i -
ttl t ry
ti fi i r i t ll f ir l r
, ti t ttl t r t. i ler
r, l trator , I ., (1980).
i t ttl E Th R T
i
1
,
.

l t i
ANN'S SCHNEIDER BAKERY 1161
CONCLUSIONS OF LAW are without merit. Therefore, I find no merit in the Ob-
1. Chassen Brothers, Inc., d/b/a Ann's-Schneider jeci
is an employer engaged in commerce within the Upon the foregoing findings of fact, conclusions of
Bakery, is an employer engaged m7 commerce with the law, and the entire record, and pursuant to Section 10(c)
meaning of Section 2(6) and (7) of the Act. of the Act, I hereby issue the following recommended:
2. Local Union No. 50, Bakery, Confectionary & To-
bacco Workers Union, AFL-CIO, is a labor organization ORDER2 ,
within the meaning of Section 2(5) of the Act.
3. Based on the findings of fact set forth above, I con- The complaint is dismissed in its entirety.
elude that Respondent has not violated Section 8(a)(l), IT Is FURTHER ORDERED that the settlement agreement
(3), (4), or (5) of the Act as alleged by the General in Case 22-CA-9237 be reinstated.
Counsel, nor violated the Act in any other manner. IT IS FURTHER ORDERED that the objections to the
election conducted on August 3, 1979, in Case 22-RC-
THE REPRESENTATION PROCEEDING 7887 be overruled and that a certification of results shall
issue.
The objection filed in connection with this proceeding
is that Respondent prevented Greg Simon, Terry Smith, :9 In the event no exceptions are filed as provided by Sec. 102.46 of
and Charles Howard from entering the polling place and the Rules and Regulations of the National Labor Relations Board, the
voting in the election on August 3, 1979. This objection findings, conclusions, and recommended Order herein shall, as provided
is coextensive with certain of the unfair labor practices in sec 102.48 of the Rules and Regulations, be adopted by the Board and
ees wih a e fi abecome its findings, conclusions, and Order, and all objections thereto
alleged, as to which have made a finding above that they shall be deemed waived for all purposes.

t ' i j ec tion o
Bakery, is an employer engaged in commerce within the Upon the foregoing findings of fact, conclusions of
meaning of Section 2(6) and (7) of the Act. n th law, and the entire record, and pursuant to Section 10(c)
i ,^ u i
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