Bakers Of Paris, Inc.

National Labor Relations Board - Board Decisions

May 17, 1988

288 N.L.R.B. 991 (N.L.R.B. 1988)

BAKERS OF PARIS 991
Bakers of Paris, Inc. and Bakery, Confectionery &
Tobacco Workers International Union, Local
No. 24, AFL-CIO-CLC. Cases 20-CA-18601
and 20-RC-15679
May 17, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On August 23, 1985, Administrative Law Judge
David G. Heilbrun issued the attached decision.
The Respondent filed exceptions and supporting
and answering briefs. The General Counsel filed
limited cross-exceptions, supporting and answering
briefs, and a motion to strike portions of the Re-
spondent's brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings,2
1 The Respondent contests the judge's rulings precluding it from im-
peaching the General Counsel's witnesses by using pretrial statements,
which the Respondent itself had taken in English with the help of an in-
terpreter The judge based his rulings on the inability of a non-English-
speaking-and-reading witness to authenticate his affidavits' contents as
being his statement Accordingly, the judge ruled that a translated copy
in the witnesses' native language would be required for Impeachment
purposes The Respondent declined to obtain official translations of its af-
fidavits We affirm the judge's ruling, which is in accord with NLRB v.
Dora! Building Services, 666 F 2d 432, 435 (9th Cir 1982)
The Respondent further excepts to the judge's ruling permitting trans-
lation of testimony by two Interpreters who the Respondent contends
were biased because of their Involvement in the preparation of the Gen-
eral Counsel's case prior to trial Absent a showing of erroneous or im-
proper translations or other evidence of interpreter bias, we find that the
Respondent has not demonstrated in its exceptions any evidence of bias
on the part of the Interpreters which would warrant a finding that it has
been prejudiced by the judge's ruling
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Respondent further asserts that the judge has failed to make spe-
cific findings of fact as required by the Administrative Procedure Act
We are satisfied that the judge's findings are sufficiently clear and specif-
ic In fact, the only finding not specified as to exact time and place is his
finding that the Respondent threatened to close the plant in the event of
unionization We note that the mutually corroborative testimony of three
fully credited witnesses, Chi, Xuan, and Luu, establishes that Wicker
stated at the October 14 assembly of employees that the Respondent
would close the bakery if the Union were successful
Because the judge has found unlawful interrogations, and promises and
grants of benefits and his Order remedies those violations, we find it un-
necessary to pass on the General Counsel's limited exceptions urging that
we find additional instances of such violations
We note and correct an apparent inadvertence of the judge concerning
the identity of an employee who met with Vice President Wicker in late
November, by substituting the name "Nam" for "Nhon" in the seventh
paragraph of sec II,F,1 of his decision
and conclusions as amplified below and to adopt
the judge's recommended Order.
We affirm, for the following reasons, the judge's
conclusion that the Respondent's unlawful conduct
warrants the imposition of a Gissel3 bargaining
order to protect the employees' majority selection
of a bargaining representative based on authoriza-
tion cards.4
As the judge found, immediately on receipt of
the Union's representation petition the Respond-
ent's top officials embarked on an unlawful course
of conduct in an effort to discourage employee
support for the Union.
Thus, on October 5, Respondent's vice president
Wicker, on learning of the employees' organizing
activities, unlawfully asked three employees if they
had signed cards for the Union, 5 expressed his per-
sonal outrage to them, describing such conduct as
betrayal or personal disloyalty, and characterized
their conduct by means of gestures as a "stab in the
back." From then on Wicker conducted a cam-
paign designed to undermine the Union's support.
At a meeting of the assembled employees on Octo-
ber 14, Wicker threatened that unionization of the
bakery would lead either to the purchase of high
capacity automated baking equipment, which
would displace some employees, or to a sale or a
complete shutdown of the bakery. And at that
same meeting, he unlawfully announced and grant-
ed extended work breaks to all the employees. At
other times, Wicker promised hourly wage in-
creases to some employees conditioned on the
Union's election defeat and for similar reasons
granted hourly increases to two employees. He also
repeated the layoff threat to employees, and a
month before the election he discriminatorily dis-
3 NLRB v Gissel Packing Co., 395 U S 575 (1969).
4 The Respondent contests the judge's finding that the Union obtained
a majority of valid employee authorizations, arguing that the General
Counsel failed to show that the non-English-reading-or-speaking employ-
ees understood the import of their signatures on the cards Moreover, it
asserts that Fred Phung and Michael Nguyen are supervisors whose so-
licitation efforts invalidated eight authorizations in addition to their own
Contrary to the Respondent, we find that the record fully supports the
judge's finding that Fred and Michael are not supervisors within the
meaning of the Act. We also find that the testimony of signatories or so-
licitors of at least 17 authorization cards establishes that those 17 card
signers knew or were advised of the purpose and significance of their
signing the union authorization cards We therefore find that a majority
of the unit employees, 17 of 28, had designated the Union to be their col-
lective-bargaining representative by September 27, 1983 The 17 are-
Toha Dam, Phuong Phuoc Hung, Nhon Nang La, Xuan Duong, Trieu
Tan Dao, Chi Van Hoang, Thanh Luu, who authenticated their cards,
and Vinh Pham, Nam Hang, Tran Minh, Michael Nguyen, Gia Phung,
Wilson Ton, Cuong Luu, Luong Mach, An Than Quan, and Quan Khong
Ton, whose cards were authenticated by those who solicited them. (In
light of this finding, it is unnecessary for us to determine whether five
additional cards were valid )
He also unlawfully interrogated a fourth employee a few days later
about whether the employee intended to discuss unionization with an-
other employee while the two of them were on the telephone with each
other
288 NLRB No. 113
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
charged the most prominent union proponent, Chi
Hoang, who had previously declined an offer of an
hourly increase in return for the Union's defeat. A
few days later Wicker discriminatorily rescheduled
Thanh Luu, another leading union adherent, to an
isolated work shift.
The Respondent's president Robbe-Jedeau also
participated in the unlawful antiunion campaign. In
a departure from his practice of not becoming per-
sonally involved with the employees, Robbe-
Jedeau began to meet with them in the closing
weeks of the campaign. In one meeting he repeated
Wicker's earlier threat of full automation and re-
sulting layoffs in the event of unionization by his
pointed reference to highly automated equipment
used by unionized bakeries, capable of producing
2000 loaves of bread in an hour, in contrast to the
type of semiautomated equipment that the Re-
spondent had recently ordered.
In Gissel, the Supreme Court indicated, inter alia,
that a bargaining order is warranted where an em-
ployer's unfair labor practices "have a tendency to
undermine majority strength and impede the elec-
tion process." 395 U.S. at 614. The unfair labor
practices of the Respondent are clearly the type of
conduct to which Gissel referred.
To begin with, the bulk of the Respondent's
unfair labor practices are of a kind whose effect is
unlikely to dissipate with time, namely, the threats
of plant closure and job displacement, and the dis-
charge of one union activist and transfer of another
to an isolated shift in retaliation for their union ac-
tivities. 6 Further, the threats of closure and job loss
were less likely to be discounted or forgotten by
the employees because they were made by the Re-
spondent's vice president and president, and were
directed at and reached every unit employee. The
effect of unfair labor practices is increased when
the unlawful conduct is committed by top manage-
ment officials, who are readily perceived as repre-
senting company policy and in positions to carry
out their threats, and when that conduct envelopes
a significant number of employees. 7 It is also in-
creased when the threats begin, as here, on the
Employer's acquiring knowledge of the advent of
the Union, and then are repeated, again as here,
shortly before the election is conducted. 8 Similarly,
the impact on the employees of the discriminatory
treatment accorded fellow employees Hoang and
Luu must be viewed as continuing. 6 The unlawful
6 See, e.g., NLRB v. Sertafilm, Inc , 753 F 2d 313, 319 (3d Cir 1985),
Martin City Ready Mix, 264 NLRB 450, 451 (1982).
7 See, e.g., Kona 60 Minute Photo, 277 NLRB 867, 870 (1985); Long
Airdox Co , 277 NLRB 1157, 1160 (1985)
8 See, e g, Quality Aluminum Products, 278 NLRB 338 (1986), enfd
813 F.2d 795 (6th Cir 1987)
See, e.g., NLRB v. Sertafilm, supra, 753 F 2d at 319
treatment of these two employees graphically dem-
onstrated to the other employees the price they
might have to pay if they continued to support the
Union.
The Respondent's efforts to keep the Union out,
however, were not limited to threats and discrimi-
nation. To the contrary, the Respondent made
clear to all its employees its readiness to reward as
well as punish them. At the October 14 meeting,
Wicker summarily announced and granted the em-
ployees extended work breaks in response to one of
their complaints. Subsequently, he promised or
granted wage increases to some employees in
return for their abandoning or eschewing support
for the Union. While these increases were not of-
fered to all the employees, it is more than likely
that their existence became known to the entire
unit through dissemination—considering that these
and all the other unfair labor practices were com-
mitted by Wicker and Robbe-Jedeau, that the unit
was small, and that it was composed of a few
close-knit ethnic, foreign-language-speaking
groups." The promise and grant of wage increases
or improved benefits, because of their economic in-
ducement, are unfair labor practices which, like
their punitive counterparts, have a substantial and
lingering effect on employees. 11 Consequently, the
benefits offered or provided here support our con-
clusion that "the possibility of erasing the effects of
past practices and of ensuring a fair election (or a
fair rerun) by the use of traditional remedies . . . is
slight . . . ." 1 2
Finally, the Respondent's engagement in post-
election unfair labor practices demonstrates the Re-
spondent's continuing opposition to unionization of
its employees and the lack of any change in its an-
tiunion policy, and this 'further diminishes the likeli-
hood that a fair rerun election could be conduct-
10 Compare NLRB v. General Stencils, Inc , 472 F.2d 170, 172-173 (2d
Cir. 1972), denying enf 195 NLRB 1109 (1972) (cannot infer dissemina-
tion of threat made to 1 employee where that employee left shortly
thereafter and of 17 employees called by the General Counsel, none testi-
fied to having heard about the threat) When, is here, an employer en-
gages at the highest levels of management in a full-scale campaign of un-
lawful intimidation and reward designed to reach all the employees, and
the unit is small and close-knit, we find it reasonable with respect to in-
stances of misconduct directed at the few rather than the many to infer
dissemination. It is likely that the employees, having been subjected as a
group to many of the employer's unfair labor practices, will also circulate
among themselves news of unlawful incidents which were directed at but
one or a few of them. Thus, the cases relied on below by our colleague
are distinguishable and we perceive -no inconsistency between them and
the instant case on the issue of dissemination
Member Cracraft would not infer dissemination to the unit of the
promise or grant of wage increases to some employees See Sears Roe-
buck de Puerto Rico, Inc. 284 NLRB 258, 259 fn. 13 (1987), Metz Metal-
lurgical Corp, 270 NLRB 889 (1984). This does not affect her decision,
however, regarding appropriateness of a Gissel bargaining order
" See, e g., Glengarry Contracting Industries, 258 NLRB 1167 at fn. 2
(1981).
i2 supra, 395 Us at 614
BAKERS OF PARIS 993
ed." Thus, more than 6 months after the election,
during a 2-month recess in the hearing of this case,
President Robbe-Jedeau threatened all the employ-
ees when, in an address to them, he declared that
litigation of this matter would cause wages to be
frozen for 2 to 5 years. Then, approximately 2
months later, Wicker and a customer of the Re-
spondent named Henry Lam met with employee
Gia Phung in Robbe-Jedeau's office and accused
Gia of having lied on the witness stand for the
General Counsel. Immediately thereafter, Lam
spoke privately with Gia and intimated that Gia's
job was in jeopardy but that it could be "cleared"
if Gia recanted his prior testimony. These further
illegal acts of the Respondent, one of which affect-
ed all the employees, could only have served to
remind them of the Respondent's earlier unfair
labor practices and to fix more securely in their
minds that they supported the Union at their
peril."
Accordingly, given the swiftness, severity, and
extensiveness of the Respondent's unfair labor
practices, we find it highly unlikely that its em-
ployees would be willing or able freely to express
their choice in another election. We therefore con-
clude that simply requiring the Respondent to re-
frain from unlawful conduct will not eradicate the
lingering effects of the Respondent's violations.I5
Rather, we conclude that the majority employee
sentiment previously expressed for the Union
through authorization cards would be better pro-
tected by a bargaining order and, therefore, we
adopt the judge's recommended Order requiring
the Respondent to bargain with the Union."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Bakers of
Paris, Inc., South San Francisco, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
13 See, e.g , Long Airdox Go, 277 NLRB at 1160.
14 See, e.g. Quality Alununum, 278 NLRB 338.
15 See, e.g. Pacific Southwest Airlines, 201 NLRB 647, 657 (1973), enfd
550 F.2d 1148, 1153 (9th eir 1977). Granite City Journal, 262 NLRB
1153, 1157-1158 (1982)
16 The General Counsel moved to strike from the Respondent's brief
Vice President Wicker's averment that the Respondent has retained only
9 of the original 28 unit employees in a unit which has expanded to 37
employees, on the ground that the alleged facts are not in evidence or
subject to cross-examination. We grant the General Counsel's motion. We
note, in any event, that even accepting as true the Respondent's averment
that employee turnover has left the unit with only nine of the employees
who voted in the election, there is no assurance that conditions for a fair
election now exist See Quality Aluminum Products, supra, Koons Ford of
Annapolis, 282 NLRB 506, 509 and fn. 18 (1986), enfd mem. 833 F.2d 310
(4th Qr. 1987).
Maxine Auerbach and Jane Lawhon, Esgs., for the Gener-
al Counsel.
Robert G. Hulteng (Littler, Mendelson, Fast/if& Tichy), of
San Francisco, California, for the Respondent.
Kenneth N. Silbert, of San Francisco, California, for the
Union.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge.
These consolidated cases were tried at San Francisco,
California, on various days during the timespan 30 May
through 5 October 1984, The charge in Case 20-CA-
18601 was filed by Bakery, Confectionery & Tobacco
Workers International Union, Local No. 24, AFL-CIO-
CLC, (the Union), on 27 December 1983, and the com-
plaint was issued 31 January, 1984, with an order consoli-
dating cases and referring the associated representation
proceeding, Case 20-RC-15679, to the Board. The pri-
mary issues in the complaint case are whether Bakers of
Paris, Inc. (Respondent) (a) unlawfully engaged in vari-
ous acts and conduct that interfered with, restrained, and
coerced employees in the exercise of their statutory
rights, (b) discriminatorily discharged one employee and
discriminatorily changed the shift of another, in violation
of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, and (c) by allegedly engaging in such unfair
labor practices has precluded the holding of a fair rerun
election thus warranting the entry of a remedial bargain-
ing order.
In the representation case proceeding, a petition was
tiled by the Union on 29 September 1983, and an election
pursuant to Stipulation for Certification upon Consent
Election was conducted 9 December 1983. Of approxi-
mately 32 eligible voters, 10 votes were cast for the Peti-
tioner and 16 against. The six challenged ballots resulting
from the election were not sufficient in number to affect
its results. The Union filed timely objections, which the
Acting Regional Director for Region 20 found, in part,
to "involve the same issues" as presented by alleged vio-
lations of Section 8(a)(1) of the Act as set forth in the
simultaneously issued complaint.
On the entire record,' including my observation of the
demeanor of witnesses, and after consideration of briefs
filed by the General Counsel and Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California corporation, operates
with an office and place of business in south San Francis-
co, California, where it has been engaged in the whole-
sale and retail sale of bakery products. During the calen-
dar year ending 31 December 1983, Respondent, in the
course and conduct of its business operations at this facil-
ity, sold and shipped goods and materials valued in
Numerous transcnpt corrections are set forth below in sec II,D,2 of
this decision.
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
excess of $50,000 directly to Safeway Stores, Inc., an en-
terprise located within the State of California and that
meets direct standards for the assertion of jurisdiction by
the National Labor Relations Board. Respondent admits
and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Case Background
Respondent was founded in 1981 as a producer of
French breads, croissants, pastries, and other baked
goods. Its operation serves customers 7 days of the
week. Principal business guidance emanates from Lionel
Robbe-Jedeau, president, and Gilles Wicker, vice presi-
dent. The latter is specifically in charge of production
functions. Soon after its inception Respondent experi-
enced labor problems generated with the Teamsters
Union, which led to several case filings in Region 20.
From an original work force of only a few, Respond-
ent has expanded its employment to approximately 40
persons and operates several retail stores in the metropol-
itan area. A resultant configuration at the main produc-
tion and distribution facility in South San Francisco is
that persons of French extraction manage the operation,
and persons of Southeast Asian extraction are predomi-
nant in the rank-and-file work force that includes several
other individuals falling in neither category.,
Production at material times was departmentalized into
breadmaking, a viennoiserie (croissant) line, a section for
cakes and pastries, and a packaging department. Oper-
ations are concentrated in the night and early morning
hours. Employee work shifts shoV■,̀ much variation of
length, frequency, and starting times due to functional in-
tegration, traditionally busiest days, and full-time/part-
time variations within the work force. Jackie Jegat is
production manager, Guy Manceau is manager of bread
production, and Christian de Bock is manager of the
viennoiserie. These three individuals are stipulated by the
parties to be an exempt class, and concededly for all case
purposes to be statutory supervisors within the meaning
of Section 2(11) of the Act.
After contact from interested employees, the Union
undertook an organizing effort focused on an appropriate
bargaining unit that became officially described as:
All production and maintenance employees em-
ployed by the Employer at its 360 Swift Avenue,
South San Francisco, California facility; excluding
all sales employees, office clerical employees,
guards and supervisors as defined in the 'Act.
Following commencement of this organizing effort in
late September 1983 representation case proceedings un-
folded typically, with the election agreement approved
on 3 November 1983 and a two-part secret-ballot elec-
tion at the premises on Friday, 9 December 1983, from 2
to 3 p.m. and reopening from 10 p.m. to midnight. By
this time practically all salient events of the litigation had
transpired, and emphasis shifted to results of handling the
Union's unfair labor practice charge.
B. Case Outline
As calendar year 1983 passed, Respondent had en-
larged on its former structuring of employee relations,
and its stepped up internal communications. By mid-
August 1983 Jegat was holding small group meetings
with employees concerning expansion and bonus plans,
as well as description of anticipated new equipment. His
written outline of that approximate point in time ex-
tended such described topics into more detailed oper-
ational matters touching organization, scheduling, and
breaks from work, in addition to inviting rank-and-file
suggestions on miscellaneous subjects.
In this context routine employment dynamics were
manifesting, including job or shift change request and in-
quiry about advancement or wage increase prospects, as
well as daily working conditions. Management's own ac-
tions involved switching personnel and establishing a
rough outline for an annual 1983 bonus to be budgeted at
a total of $50,000, with $30,000 of this to be allocated
among the rank-and-file for yearend distribution.
Respondent's officials obtained immediate legal advice
after the Union's petition was received on Monday, 3
October 1983, and following this there were extensive in-
dividual and group communications with employees on
the subject and the issues of written campaign materia1.2
Wicker held small meetings of employees on 5 October,
and a major one on 14 October. Following approval of
the election agreement Respondent used consecutive 2-
day timespans on 17-18 November and 1-2 and 7-8 De-
cember to hold a series of meetings with scheduled em-
ployees comprising about 10-person blocks on each occa-
sion. In these sessions Robbe-Jedeau spoke from pre-
pared texts, and along with Wicker engaged in some en-
larging remarks or response to questions. Interspersed in
the overall timespan of 5 October-8 December, individ-
ual employee contact also occurred, as specifically de-
scribed below, and on the election date of 9 December
both Robbe-Jedeau and Wicker took their final opportu-
nity to campaign by actions that are, in part, among the
alleged violations of the Act.
Wicker used a handwritten outline for his general
meeting with employees on 14 October. In verbatim
form and usage it reads:
Hoang Oanh is here to help me to have a better
communication for those of you that have some dif-
ficulties in understanding and speaking English.
This meeting was called by Mary and Me.
On Monday October 3 we received a letter from
the Union Bakery Local 24 telling us that at least
30% of our employees are asking for a vote that
will decide if the Bakers of Paris employees want or
don't want to join the union.
When employees ask a union to come to organize
a business, it means that those employees are unhap-
py about the way the company treats them.
For the past year; a big part of my job in this
company was to improve communication between
2 All dates and named months hereafter are in 1983 unless indicated
otherwise.
,-
BAKERS OF PARIS 995
employees and management. I started by making
weekly meetings with my supervisors. First with
Jacky the production manager and the managers of
bread and Viennoiserie line. Then meetings with the
two supervisors of the packaging Fred and Mi-
chael—Then a weekly meeting with Carl the super-
visor of the pastry line. In April we started the line
meeting that involved you and your direct supervi-
sors. Last month we completed the communication
efforts with the newsletter.
In spite of all these efforts, without any warning
or further discussion, some of you called for an [sic]
union vote.
For me it is a shock and I take it personaly [sic].
I am wondering why you people did this to me.
In spite of our differences of opinion regarding
union matters, I want you all to know that during
this meeting I will [sic] like you to express you sug-
gestions.
Business is business and we will deal with the
union situation as it progresses. We want to get
back on the track of communication that we work
so hard to built [sic].
I am waiting for a good understanding between
us and I am waiting your suggestions.
The outline for the first of the November/December
2-day meetings, which are acceptably labeled the
"Lionel" meetings because of his principal and uncom-
mon involvement with assembled employees, was hand-
written by Robbe-Jedeau. To this extent, surplusage
omitted, it reads:
As you know, the election here at Bakers of Paris
will take place on December 9, 1983. That's 3
weeks from tomorrow—the voting hours will be
from 2 to 3 pm and from 10 pm to midnight.
On that day you will decide whether or not you
want to be represented by the union. Your decision
is very important for the future of Bakers of Paris.
I hope that you will vote against the union by
voting NO in the election. A NO vote means that
you don't want the union. Between today and the
election, I intend to give you the facts about why it's
in your best interest to vote against the union.
Today we will discuss. . . .
Attached further as his discussion outline for the 17-18
November meetings were several typed pages headed
"election procedures," "the meaning of collective bar-
gaining," and "the effects of a strike," respectively.
Robbe-Jedeau's handwritten outline for 1-2 December
was considerably more extensive. It is set forth verbatim
as Appendix A to this decision. His final handwritten
outline, as used 7-8 December, reads as follows:
Tonight is the last time we meet before the elec-
tion, and I hope that all of you will say "no" to the
union on Friday. And I mean that 100% of you, not
only a majority will say no to the union. A split
vote—even in favor of the company would bring all
of us into a battleship. Unity behind the company is
in the best interest of all of us.
Already in the course of the past few weeks
many of you have changed your mind about the
union. During the individual meetings you had with
Gilles, you expressed your loyalty to this company.
And this company tells you tonight through my
voice that you don't have to worry. Bakers of Paris
will always bring the rice in your house.
Let me thank you for your courage, your trust
and your long term commitment, because that's the
way we're building this business: for life. And that's
how long we'd like you to stay with us.
Bakers of Paris is a new company and a small
one—we specialize in french bread, croissant, and
viennoiserie, using the exact methods as practiced in
Paris, France. Quality is the key to our success and
the main value in this company. 1984 should be a
turning point in our development. We are not only
going to invest in new equipment in order to
achieve greater productivity and better quality. We
will also start to freeze our pastries and invest in
freezing equipment. Needless to say that we need
your loyalty and commitment to implement effec-
tively the new changes and to compete against
competition.
Let me tell you who are some of our competi-
tors. The first to come to my mind is Pepsi-Cola
with a La Petite Boulangerie, its non union bakery
(incidentally they pay people in your job situation
$5/hour). Vie de France a new and large French
bakery—another non union bakery. And the old in-
dustrial sourdough bakeries—those like Parisian,
Boudin, etc. with the help of their union have tried
to put us out of business. And yOu have to know
what they did. First they went picketing our ac-
counts, hoping that we would lose them. They
failed. So they lied to us, they manipulated the poli-
ticians against us—as the result Barbara Boxer, the
Congresswoman sent a letter to the St. Francis
Hotel, the Fairmont Hotel, etc. asking them to use
other bakerie [sic], and of course she suggested Pa-
risian, Boudin or Pisano. Here is her letter. [Omit-
ted from publication.]
If the union wants us out of business they won't
do much for you—they will let you down, if you
get in trouble as they did for Chi. They probably
made him believe he could do anything—and now
what? He lost his job, his vote won't count, and the
union does not even file the charges of his claim.
He is all alone. He's still calling you because he still
believes in I don't know what kind of promises—
but they all will vanish/disappear on December 10
after the election.
Now I hear also that the union is threatening
you. I am told that the agents who work here,
threaten the many of you that express their support
to Bakers of Paris. First you should know that, it is
an old union technique used when they believe they
going to loose an election. Its easier to threaten
than to come up with a good reason to vote for the
union. As a matter of fact during our past meetings
I haven't heard any of the leaders that we all know
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
come up with any reason at all. But the main point
that I am making here is that threats of violence are
not acceptable in this company. And if this happens
to you, feel free to let us know—we can help you,
and we will. This is a case of immediate discharge.
Hopefully it won't happen, because our group
will be unified again on Friday, and that you will
give a vote of confidence to the company. Any
problem we may have should be solved within
Bakers of Paris not with a third party involved.
Freedom and social peace, is what we're looking
for not unionism. And I am very excited to meet
with you after the election to talk about you future
at Bakers of Paris. Thank you.
In this same general timeframe other written campaign
materials were also used. During the period of late No-
vember to eve of the election the following quoted mate-
rials, a letter to all employees, a memorandum to them
from Robbe-Jedeau and Wicker, jointly, and an item la-
beled "Facts" about the imminent election, respectively,
were distributed.
I've talked to you already about what could
happen with the Union here. As you know, there is
no guarantee that we would agree with the Union
on a contract.
If this should happen, one real possibility is that
this Union would demand that all employees go out
on strike against Bakers of Paris. By pulling employ-
ees out on strike, a union can try to force a compa-
ny to agree to its demands. I don't know if this
would happen. But if there was a strike at Bakers of
Paris, here are the facts about how it could affect
all of us:
(1) Under California law, you would not be enti-
tled to any unemployment insurance benefits during
a strike.
(2) Bakers of Paris obviously does not pay em-
ployees while they are out on strike.
(3) Bakers of Paris has an absolute right to keep
operating and to hire permanent replacements for
any employee who engages in an economic strike.
This would mean that if you were permanently re-
placed, the Company would be under no obligation
to rehire you unless and until a vacancy occurred.
(4) As a Union member, you could be fined if
you tried to return to work during a strike. The
Union would probably exert all the pressure it
could to keep you from returning to work during
such a strike.
I can guarantee you one thing—Bakers of Paris
will not be intimidated by strikes and picketing. The
Teamsters Union has tried to shut us down with
picketing, and we beat them. We are determined to
keep Bakers of Paris operating despite a strike or
picketing.
There is simply no way of knowing whether a
strike might occur here at Bakers of Paris if the
Union won the election. But why run the risk of
possible union strikes and picketing? By voting
against the Union on December 9, you can protect
yourself and your family from the uncertanties that
a union creates.
Vote "NO" on December 9!
. . . .
We are very happy that several employees have
now told us that they have changed their minds and
are voting against the Union. We felt sure that, as
soon as everyone knew the truth about the Union,
you would realize that the Union works against
your interest.
It is now clear that a majority of our employees
will be voting against the Union. In fact, we hope
very much that every single employee will vote
against the Union. It would be better for all of us if
there is a 100% vote against the Union. Then we
can put this Union thing behind us and work to-
gether to make Bakers of Paris more successful.
When you vote, remember that the Unions in San
Francisco have been trying to put Bakers of Paris
out of business. When the Union tries to hurt
Bakers of Paris, it tries to hurt all of us. That's why
we honestly do not believe that this Union would
help any of our employees. This Union has no real
interest in the Vietnamese people—it has no Viet-
namese officers and not even any Vietnamese mem-
bers. As many of you have discovered, this Union is
wrong for our Company.
We want the support of each and every one of
you in the election on Friday. We hope you will
join with other employees in voting "NO."
. . . .
THE FACTS ABOUT FRIDAY'S ELECTION
Election Time and Place: [omitted]
Election Procedure: The election will be super-
vised by the National Labor Relations Board, a fed-
eral government agency. No Union representative
will be allowed in our building while voting is
going on. Voting will be by secret ballot—no one
else will know how you vote. Everyone will vote
one at a time, in a special private voting booth.
A Possible Strike: If the Union wins the election,
it will then be possible for the Union to call a strike.
We can't say whether this will happen, because we
don't know. When the Teamsters Union picketed us
before, they made a big mistake, and got in legal
trouble. We hope that the Union does not try to
force you out on strike.
False Union Promises: This Union's promises have
proven to be untrue. You simply can't believe
Union guarantees. Bakers of Paris has regularly in-
creased wages and benefits without the Union. We
hope that we can continue to do so.
A "NO" VOTE IS A VOTE AGAINST THE
UNION
PLEASE VOTE "NO"
The issues of this case include a single allegedly dis-
criminatory discharge and a challenged change of shift
assertedly made so as to isolate an active supporter of
BAKERS OF PARIS 997
the Union from convenient association with the general
production work force. Contact to the Union was origi-
nated by employee Thanh Vinh Luu (Luu). He was a
relatively long-service employee having workeocLcontinu-
ously since December 1981. His employment was com-
menced through a community intermediary called South-
east Asian Refugee Center (SEARC). Luu was originally
hired by Wicker into the packaging department at a $5
hourly rate. He later became aware of an organizational
chart displayed in the production area on which his
name was titled "assistant dispatcher." After about a year
he transferred to the viennoiserie line to mix and roll
dough and to bake croissants.
Through a knowledgeable coworker, Luu became in-
terested by late summer of 1983 in bringing about union
organizing at his employer, and he met preliminarily
with David York, the Union's business agent. At a
second meeting held 25 September at York's house, with
various other interested persons accompanying Luu,
more extensive plans for a campaign were discussed and
authorization cards were made available for immediate
signing or distribution. One of those attending was Chi
Van Hoang (Chi), who had been employed during 1982
for bread baking work. His starting hourly rate of $6 had
been increased to $6.50 in approximately January. Al-
though also working at times on the viennoiserie line,
Chi was in the bread section as of September. He had re-
verted from full-time to part-time status the previous
month, working thereafter on Friday, Saturday, and
Sunday nights only. Chi involved himself extensively in
the organizing campaign, following which from an epi-
sode occuring on 5 November he was discharged. Subse-
quently, effective on 14 November, Luu was rescheduled
from an 8 p.m.-4 a.m. shift to one of the 6:30 a.m.-2:30
p.m.
Further issues of the case involve happenings subse-
quent to the opening of trial. Following 9 days of hear-
ing, in a period slightly exceeding 2 weeks' time from
commencement on 30 May 1984, the case recessed for 2
months until mid-August 1984. On resumption the Gen-
eral Counsel successfully amended the complaint to
allege matters occurring at a meeting of assembled em-
ployees called by Robbe-Jedeau on 13 July 1984, and at
which Wicker and two translators were present. Re-
spondent introduced into evidence a three-page typed
text from which Robbe-Jedeau spoke on this date, the
translators simultaneously communicating in two lan-
guages during his pauses. This text reads:
We know that everyone's interested in the hear-
ing at the Labor Board. We wanted to bring you up
to date on the hearing and what we expect in the
future.
So far, the two lawyers from the Labor Board,
Maxine Auerbach and Jane Lawhon, have been
asking employees and former employees to testify.
The Labor Board assigned these two women to
help the Union. Their job is to try to support the
Union's charges against the Company. So the two
Labor oard women are not neutral in this case.
They are completely, 100% on the side of the
Union.
On the first day of the hearing, the Union's
lawyer showed up two hours late. He then left
before the day was over. Since then, he hasn't even
bothered to show up. So the two lawyers from the
Labor Board are doing all of the work for the
Union.
When the hearing started, we hoped that it
would be over soon. We have always wanted to get
this thing settled one way or the other—and get it
over quickly. Now we know that it won't be over
quickly. Instead of finishing the hearing, one of the
Labor Board lawyers, Maxine, said she wanted to
go on vacation to Ireland for over a month. So the
hearing stopped on June 15, and it won't start again
until August 16.
When the hearing starts again, the Labor Board
lawyers are going to ask a couple more people to
testify. Then it will be the Company's turn. Just like
the Labor Board, we have the right to ask you to
testify. We will ask people only to tell the truth.
We know that we will win the case if everyone tells
the truth.
Our lawyers now tell us that there will not be a
decision in this case soon. Their best estimate is that
there will not be a final decision for two to five
years. That's right—two to five years. Because this
case is taking such a long time, it is costing the
Company a lot of money in legal fees and other
costs. We don't like this at all, but we have no
choice.
I AM SURE THAT ALL OF YOU WONDER ABOUT
SALARY INCREASE. LET ME TELL YOU WHAT THE
SITUATION IS,
ONE OF THE CHARGES MADE AGAINST THE COM-
PANY IS THAT WE USED WAGE INCREASE TO INFLU-
ENCE CERTAIN EMPLOYEES TO VOTE AGAINST THE
UNION. THE UNION COMPLAINS ABOUT INCREASES
OF C50 AN HOUR THAT SOME OF YOU RECEIVED
LAST FALL. AND CERTAIN EMPLOYEES TEND TO
AGREE WITH IT. THE UNION ALSO CHARGES THAT IT
WAS IMPROPER TO GIVE YOU A LARGER BONUS LAST
YEAR. BECAUSE OF THESE CHARGES WE ARE NOW
VERY CAUTIOUS ABOUT ANY LEGAL PROBLEMS THAT
MIGHT BE CAUSED IF WE MAKE CHANGES IN WAGES
OR BENEFITS.
Our lawyers tell us that the Union could file simi-
lar charges against any new changes in our wages
or benefits. Apparently, the law says that a compa-
ny takes a serious risk when it makes changes
during a time that a union is trying to get an elec-
tion thrown out. Unfortunately, the Union is still
trying to have our election of last December
thrown out. So we would run a legal risk if we
made changes now. We certainly don't like this
rule, but we also don't want to risk more charges
and more hearings right now.
We hope that this helps you to understand our
current situation. We remain totally committed to
seeing that the truth comes out in the hearing. That
is the most important thing to us. We hope that we
will have your support.
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A final issue of the case, successfully amended into the
complaint by the General Counsel after a month-long
trial recess during late summer of 1984, concerns experi-
ences by employee Gia Tuong Phung (Gia) on 15 and 16
September 1984 when called into Respondent's offices
for discussion with Wicker and others. As to this the
General Counsel alleges that unlawful interrogation oc-
curred in contravention of the Board's rule stated in
Johnnie's Poultry Co., 146 NLRB 770 (1964), enf. denied
344 F.2d 617 (8th Cir. 1965), and otherwise Gia was
threatened in violation of Section 8(a)(1) during the
course of this entire episode.
C. Contentions
1. The General Counsel
Claiming that a majority of employees in the appropri-
ate production and maintenance unit had knowingly se-
lected the Union as their collective-bargaining represent-
ative, the General Counsel asserts that numerous unfair
labor practices committed by Respondent can now only
be remedied by a bargaining order under which the elec-
tion results of 9 December are immaterial. The identifia-
ble allegations respecting Section 8(a)(1) of the Act are
categorized as follows:
1. Unlawful interrogation committed at various times
in October, November, and December plus unlawful in-
terrogation of Gia on 15 and 16 September 1984.
2. Unlawful threats of plant closure and of mechaniza-
tion to affect employment and job layoffs, committed at
various times in October, November, and December.
3. Unlawful creation of the impression of surveillance
of union activities committed on 5 October and in No-
vember.
4. Unlawful granting of a longer break period to em-
ployees effective 14 October.
5. Unlawful retaliatory enforcement of work rules as
committed beginning on 14 October.
6.Unlawful voting instructions to employees and solic-
itation of their grievances on 18 November.
7. Unlawful promise of extra large bonuses to employ-
ees as committed on 1 and 2 December.
8. Unlawful granting of wage increases and promising
wage increases and promotions as committed during the
critical period prior to the election.
9. Unlawful telling to employees on 13 July 1984 that
wage increases would be withheld through a future
period of several years.
Respecting 8(a)(3) allegations, the General Counsel
contends that Chi was pretextually discharged after miss-
ing work under circumstances devoid of any basis for
such extreme disciplinary action. The episode in question
involved claimed illness that the General Counsel main-
tains is both proven and justifying the work absence that
ensued, notwithstanding that Chi participated in a social
engagement while actually sick. The dynamics of this
discharge issue are intricately compressed into a time-
span beginning the early afternoon of Saturday, 5 No-
vember, and ending slightly over 24 hours later with a
meeting between Chi and Wicker in the latter's office.
The General Counsel contends that composite evidence
on the subject exposes Respondent's action as pretextual
and therefore discriminatory, arguing further that with-
out a true, second, or "dual" motive the burden-shifting
concept of Wright Line, 251 NLRB 1038 (1980), enfd.
622 F.2d 899 (1st Cir. 1981), as approved in NLRB v.
Transportation Management Coq., 462 U.S. 393 (1983), is
not applicable. The General Counsel also contends that
Luu was discriminated against by a shift rescheduling
done deliberately to isolate him from most other employ-
ees.
Anticipating various defenses on the point, the General
Counsel contends that a majority of employees in the ap-
propriate unit had by 27 September signed authorization
cards that in each case reflected the signatory's compre-
hended intention to designate the Union as a representa-
tive for fundamentally sensed collective-bargaining pur-
poses. The General Counsel does not concede invalidity
to any of the authorization cards entered in evidence,
either as an intrinsic matter or based on circumstances
surrounding the signatures, nor does it concede that pres-
ence and participation by 'Thanh Quan Phung (Fred) and
Michael Nguyen (Michael) at York's house on 25 Sep-
tember and their later distribution of cards among some
employees lead to any taint of essential authorization
cards. This countervailing thought arises from the related
issues of whether Fred and Michael, or either of them,
are supervisors within the meaning of the Act in their es-
tablished capacities with job authority as packaging oper-
ations are carried out.
The General Counsel's concluding contention is that
unfair labor practices of the case are egregious and last-
ing in nature, and which warrant imposition of a bargain-
ing order within the intendment of NLRB v. Gissel Pack-
ing Co., 395 U.S. 575 (1969), rehearing denied 396 U.S.
869.
2. Respondent
Respondent's brief traverses each alleged violation of
Section 8(a)(1), contending that credible evidence does
not establish any unfair labor practice and that all mat-
ters in this realm amounted only to vigorous but permis-
sible election campaigning or are otherwise not violative
as a matter of law. Respondent argues with particular
emphasis that the overall testimony of witnesses for the
General Counsel is flawed by pervasively insufficient
comprehension of what they were being told in various
large or small meetings, and that beyond this there is de-
monstrable bias and self-serving motivation as to what is
advanced in support of alleged 8(a)(1) violations. Specifi-
cally, with respect to bonus plans and wage increases
granted or promised, Respondent asserts that all action
and advice on the subjects was based on legitimate busi-
ness considerations consistent with past practice and es-
tablished intentions as existing prior to the Union's repre-
sentation petition.
Respecting 8(a)(3) issues, Respondent contends that
Chi was lawfully discharged for dishonesty towards his
employer during an episode in which he was feigning ill-
ness to deliberately avoid work on a night of other per-
sonal priorities. On the issue of Luu's shift change, Re-
spondent contends that the position to which he was
transferred had opened by necessary accommodation to
' BAKERS OF PARIS 999
another employee, and that Luu alone had the qualifica-
tions to perform required duties on the day shift. Re-
spondent adds that even beyond this defense the change
could not have led to claimed isolation, because Luu re-
mained still relatively fully capable of mingling with nu-
merous employees from the general work force.
Respondent concludes its contentions by arguing that
while logically no basis for a bargaining order is present,
alternatively the majority of employees in the unit had
not signed valid authorization cards because invalidating
circumstances voided such a number of them that a nu-
merical majority did not remain Claimed invalidation is
pointed to in misunderstood purposes of signing, disquali-
fying circumstances of the signatory process, and in-
volvement in distribution and solicitation of cards by
Packaging Line Supervisors Fred and Michael. Here,
Respondent relies on Maximum Precision Metal Products,
236 NLRB 1417 (1978), and is otherwise in disagreement
with the General Counsel as to specific composition of
the appropriate unit
D. Methodology
1. In general
The nature, length, and litigation density of this case
leads to a need for special comment on the decisional
process. Over 40 persons testified including 3 of the 4 in-
terpreters used during the trial. This particular array re-
sulted in an extreme range of semantic quality. Aside
from expert or 'specialized witnesses, a high percentage
of others with personal knowledge bearing primarily or
secondarily on the issues expressed themselves through
interpreters in a comfortably appropriate language. Just
over a dozen were translated in Vietnamese and eight
others testified via Catonese translation. Respondent
called two witnesses for whom translation in French was
necessary, while its own chief officials testified sophisti-
catedly in fluent, albeit imperfect and highly accented,
English. Several witnesses chose to testify in English
even though not native to them, and employee Luu,
while testifying through the second of two Vietnamese
interpreters, demonstrated an English fluency of unasses-
sable but definite character.
The amended-in issue of Respondent holding a general
meeting with assembled employees on 13 July 1984 in-
volves testimony of oratorical and expansive remarks by
Robbe-Jedeau and Wicker, respectively, as to which two
interpreters simultaneously translated aloud into both Vi-
etnamese and Catonese. Since attending employees
Luong Mach (Loung) and Tan Loi (Tan) are bilingual in
each of the languages, and the latter has limited compre-
hension of English, the situation yields multiple verbal-
ized sources of comprehension, which are then subject to
the further discipline of formal testimony in only one
elected language. However, it must be remembered that
the interpreters are themselves merely conduits through
whom a slippage of meaning might eventuate during the
best intentioned translating process. Furthermore, this
variable is not enough of a conundrum, for one need
merely look at the syntax of this record as it builds page
by page and folio by folio, particularly as to the transla-
tions in Asiatic languages, to see that a permeating indi-
rection of meaning is often left at the outset of testimony
only to be clouded further by cross-examination and
other procedural techniques that are brought to bear on
the witnesses. Thus, with Tan as an example, the excur-
sion from actual English words spoken by Respondent's
officials on 13 July 1984 to the record of this proceeding
covers several distinct and potentially cross-purposeful
phenomena. Finally, the litigation itself is fundamentally
subject to integrity of its court reporting process, and
while I impugn nothing in this regard it does essentially
constitute a still separate variable in the distillation of
memory.3
To a lesser extent language barrier also impinges on
documentary exhibits of the case, with respect to infor-
mal usages as with timecards or more lasting purposes as
with postings, written policies, and other pronounce-
ments meant to be read for retention. The overall config-
uration of evidence is left with occasionally perplexing
thrust, and the essential mode of resolution becomes in-
fluenced if not improvised by sucn realities.
2. The record
On 24 December 1984 the General Counsel filed a 24-
page motion to correct the transcript. Subsequently, on
28 January 1985, a joint motion to correct the transcript
was filed by the parties. This second document had three
components, the first being nearly three full pages of mu-
tually agreed-on corrections, and the second being nu-
merous deletions from the General Counsel's original
motion to correct but embodying a third characteristic of
asterisking deletions objectionable to Respondent but
that reappear on the General Counsel's simultaneously
filed revised motion to correct the transcript dated 28
January 1985. In summary as to the General Counsel's
efforts at correcting the transcript, one need look at the
original motion to correct in modified form (disregarding
unasterisked deletions listed in the joint motion from
pages 3-7), the corrections "additiona[lly]" agreed on be-
tween the parties, and the two-page tabulation that the
revised motion constitutes.
On 28 January 1985 Respondent also filed a motion to
correct transcript as to page and lines 4643/18-20 only.
An order to show cause as to substantive and technical
matters relating to transcript corrections issued 1 Febru-
ary 1985, and both parties filed timely responses. The
General Counsel resisted Respondent's proposed change
in a two-page opposition dated 20 February 1985 and
Respondent filed a nine-page opposition to various
changes proposed by the General Counsel, attaching as
Exhibit A a letter of the reporting service dated 15 Octo-
ber 1984 covering certain inquiries about the then recent-
ly furnished folios.4
On consideration of these described materials, I cor-
rect the transcript as follows:
'There were four different reporters during the overall course of trial.
4 As matters outside this record, the reporting service responded on
other occasions to inquiry by the General Counsel as to accuracy of tran-
scribed passages These letters were respectively dated 8 August, 24 Sep-
tember, and 6 and 29 November 1984.
1000
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. General Counsel's modified Motion to Correct
the Transcript is approved, except that no change is
made as to page and line 149/1$, and 2877/15.5
2. General Counsel's Revised Motion to Correct
the Transcript is approved as to four unopposed
changes at page and line 161/8, 353/17, 361/13, and
832/12. The Revised Motion is further approved in
all remaining regards, except that no change is
made as to page and line 465/17, 3511/6, 9, 12, and
15, 3996/21, 4610/18, and 4643/19.6
3. Both parties assail the record at page 4643 as
to the interrogatory posed in lines 18-20. The vigor
of their concern is rooted in how examination at
this point might affect a crucial supervisory status
issue of the case. After fully reflecting on the par-
ticularly highlighted portion of line 19 only, Re-
spondent's Motion to Correct Transcript is ap-
proved and General Counsel's associated request set
forth in the Revised Motion as pertaining to page
and line 4643/19 is denied. [In addition to these nil-
ings, I corrected the transcript in several respects,
sua sponte.]
I draw attention to, but attempt no correction of, the
folio indices, which are frequently incorrect and particu-
larly so as to the page locations of presenting and deal-
ing with exhibits. I confirm that Respondents Exhibit 45
is a rejected document, notwithstanding that it remains in
a basic exhibit folder after an out-of-record letter dated 6
November 1984 from the reporting service stated it
would be "rebound . . . and labeled as a Rejected Ex-
hibit."
3. Interpreters
Respondent challenged the entitlement of certain inter-
preters to legitimately so function, and made an extensive
record on the subject. Essentially, the argument ran that
earlier involvement with the investigatory process of
Case 20-CA-18601 would expectably leave vestiges of
suggestibility in the translator's awareness, and that sepa-
rate circumstances tended to show there could be a bias
favoring the General Counsel's witnesses.7
I adhere to rulings made under which all interpreters
were found appropriately qualified, and with regard to
both Nhi Le and Bosco Lee I express full satisfaction
with their credibility as it manifests in both, (1) a faithful
intent to translate as an oath was taken to do, and (2) an
actual ability to give effect to the essence of questions
5 An approved change on p 2492 relates to L 13 not L. 11, while the
approved change at 2505/21 is duplicative of one appearing in the re-
vised motion.
6 In most regards the changes requested in the General Counsel's re-
vised motion survive Respondent's reasons in opposition. Most signifi-
cantly among the disagreements are those relating to identity of Luu
versus Luong Here, the overall case context concernmg an older Viet-
namese individual with 20 years' experience as a baker supports the re-
quested change As to Respondent's opposition addressing phonetic dis-
tinctions about which the reporting service has commented, I impose my
own recollection of contested passages taken in overall context. Cf.
Rogers Mfg. Co, 197 NLRB 1264 (1972)
7 There has been judicial cognizance of this prospect, as well as stated
awareness of the situation where, as often the case here, witnesses have
"difficulty" with English or understand "very little" of the language See
People v. Aguilar, 35 Cal. 3d 785 (1984)
posed and the best expression of answers made. This is
an assessment based largely on demeanor factors in
which these two (and other) interpreters gave every ap-
parent indication of fidelity to their role.
4. Testimony
The final and most critical phase of decisional method-
ology is the actual sifting of testimony and related con-
sideration of documentary evidence. Oral testimony is by
far the more significant, for it is abundantly established
that with respect to the various instances in which there
was communication by agents of this Employer to as-
sembled employees with written text as a basis, there
also followed, or was interspersed, extemporaneous and
collateral remarks, responses, or elaborations.
In prefatory phrasing of the order to show cause re-
ferred to above, I wrote that the case bore "unique and
compelling reasons [for] meticulous integrity" of its tran-
script. This eventuated as a futile hope, for the case tran-
script exists with a content that is ponderous at best and
puzzling at worst. Testimony, and particularly from
those witnesses being translated in Asiatic languages, was
subject to searching cross-exmination and the challenge
of inconsistency when compared with prior statements.
Although these and other procedural steps during exami-
nation of witnesses are normal entitlements in fulfilment
of due process rights, it is also true that there exists in
this case a relatively narrow band of experience from
which the salient testimony relative to most issues per-
tains. The several 8(a)(1) issues of the case involve
highly subtle distinctions of word choice and phrasing,
which, when coupled with stilted and often abstruse
relays of the interpreter, practically shades into total in-
comprehensibility as a pure matter of semantics.
Facing this situation, I render below 'typical assess-
ments of witness credibility, but emphasize that beyond
these impressions a general sense of the witnesses' testi-
mony is used where literal words of the transcript fail to
completely present the authentic comprehension shown
as a composite matter from each credited witness. It
must be remembered that in this employment setting,
given the settled personal and cultural interplays, recol-
lection of utterances made is rooted in fleeting moments
of auditory experience with this very phenomenon itself
colored by imperfectly evolved mechanisms of compre-
hension as possessed by the respective individuals at ma-
terial points in time.
E. Credibility
The peculiarities referred to immediately above lead to
a need for most exacting assessments of credibility. In
this process, lines between demeanor and nondemeanor
factors are blurred by the quasiartificiality of an inter-
preting process, and the enormous amount of colloquy
that interrupted witness presentations. There were nu-
merous impressions left from the many witnesses. Tenta-
tively, the positive ones include intensity of seeming
candor, behavioral reinforcement of assertions, consisten-
cy as to essentials of testimony, probabilities of past alert-
ness, and palpable assurance of expression. Presumably,
the negative impressions include nervous hesitation, indi-
BAKERS OF PARIS

1001
rection, self-contradiction, awkward refinements, inher-
ent unlikelihood of claimed recollection, and resolute
clinging to non sequiturs. All such factors, positive and
negative, are ironically subject to what sticks in the plau-
sibility net of the factfinder, for in the last analysis a
poised and clarion assertion could be just as false as a
sweaty, stammered, simplisticism could be true. In the
last analysis the testimony of most witnesses was irredu-
cibly mercurial, and the evaluations that follow are no
more nor less than what I choose to believe from a com-
posite experience beside the particular witness.
1. Wicker
This witness' testimony is most extensive of the entire
case and touches practically every issue that is up for
resolution. He led off when called adversely under Sec-
tion 611(c), and as later chief witness during Respond-
ent's defense testified lengthily on direct and certainly no
less so on cross. Wicker chose to testify in English, and
aside from vagaries of accent and pronunciation has ex-
cellent command of this second language.
As a controlling matter I am assuredly satisfied that he
has not presented truthful reditions and, on the contrary,
in practically every instance where contradictions be-
tween individuals arise, he has slanted his testimony in
vain hope of distorting the outcome of the case. This
evaluation pertains most definitely to the 8(a)(1) issues of
the case and to Wicker's involvement in the discharge of
Chi. I recognize there is veracity in much of the context
and continuity that he described, as well as isolated sub-
jects such as his consternation over the assertions of
Trieu Tan Dao (Trieu) relative to a supervisory status
issue of the case. However, my overall assessment is a
near-total discrediting of Wicker, which subsumes into
the various factual holdings set forth below in section
II,F, of this decision.
2. James Conway
This sole expert witness of the case testified as a hand-
writing expert to support admissibility of signed authori-
zation cards. Although suspiciously facile of delivery, I
am satisfied that in the narrow realm of credibility
Conway is fully plausible. He is disinterested respecting
the litigation and maintained professional aplomb during
pointed cross-examination into his comparative assess-
ments. Conway is credited in full.
3. Chi
A main discriminatee is naturally enough subject to
particular scrutiny, for the pecuniary and other interests
of such a person can be temptingly a reason to devise
testimony. My overriding impression here is that Chi has
resolute attachment to truth, and a singularly bright ca-
pacity to remember events, remarks, and circumstances.
Respondent has exhaustedly set forth all countervailing
reasons why Chi should not be given credence, 8 and
8 There is extensive hyperbole in the attack on Chi's credibility, as, for
example, in argument made regarding his plans for attending the wedding
party, and other testimony characterized as "so riddled with contradic-
tions that it is impossible to credit." (R l3r 169.) Here, it is overstatedly
contended that Chi depicted himself as still gripped by miserable illness
these have been carefully weighed with particular con-
cern for areas in which contradictions or unexplainable
gaps in memory are present. Notwithstanding some va-
lidity to points so made, 8 what is paramount here is that
for fundamental reasons of demeanor and collateral har-
mony with total circumstances of the case, I credit Chi
in full where his testimony has any salient connection to
the issue.
4. Gia
This witness appeared twice and is about as perplexing
a person as any under consideration. In general, I have
some doubts about the first phase of his testimony, and
believing it is subject to some suggestibility credit him
only slightly on overall balance. Gia was initially a wit-
ness on 5 June 1984, and his testimony at that time repre-
sented a harbinger of things to come. On this first occa-
sion his offerings were vacillating, echoing, ambiguous,
and unspecific. Were this not to be enough, the presenta-
tion was complicated further (as with several other indi-
viduals in this same general regard) by some responsive-
ness based on limited English language comprehension in
supplement to his testimony in Cantonese.
His second calling for events on 15 and 16 September
1984 resulted in notably more assured and impressive tes-
timony. I do not speculate on why such a variance
would arise, but round off the assessment of Gia as a
witness by firmly crediting his version of events on
which the final amendment to the complaint is based.
5. Hung Phuong (Hung)
This witness impressed me sufficiently that his testimo-
ny is credited in full.
6. Tolia Dam (Toha)
This witness failed to present convincing testimony
and was not of seemingly reliable demeanor. I believe his
assertions are clouded by external suggestibility and do
not rely on his testimony as to any factual holding.
7. Nhon Nang La (Nhon)
This was another witness who impressed me to a suffi-
cient extent that he is credited in full.
8. Xuan Duong (Xuan)
This witness projected with a substantially good ability
for accurate recall of experiences. His testimony is fully
credited.
on the morning of 5 November, yet also determined to show up at the
wedding party. The correct understanding of what Respondent distorts in
this illustrative instance is that on receiving the party invitation a week in
advance, Chi had planned to attend at that earlier point in time, and his
explanation that sickness caused him to plan otherwise when the party
date actually arrived has been coherently set forth in the record when
principles of pluperfect tense grammar are applied to the testimony Re-
latedly, Chi also explained that the illness did not seem of such serious-
ness to him, as the sufferer that he could not appear for work on the
Friday shift. (Tr. 893, 898, 899, 989).
9 When questioned whether he had seen a physician, Chi's testimony
reads, "I remember I didn't, but I don't remember exactly." (Tr. 990.) I
decline to devine what this quoted response might possibly mean
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9. Thanh Van Nguyen (Nguyen)
This witness was particularly unimpressive, and gave
most normal indications of being unsure of what he was
voicing. My general resolution here is to discredit the
bulk of his testimony.
10. Trieu
I have definite reservations about the ability of this
witness to testify usefully. His recollection seems flawed
by uncertainty, and I doubt that he has done more than
parrot out his perception of what was expected from
him Except for any limited specific instance in which he
does seem believable, his testimony is otherwise discred-
ited.
11. Luu
This important witness is entitled to full credibility. He
was the unique instance of testimony by Vietnamese
translation, but also adding English language embellish-
ment to his presentation. Luu is strongly convincing on
demeanor grounds and impressed as quite capable of ac-
curately retaining and fairly recounting experiences that
were drawn out of him relative to issues of the case. The
credibility resolution as to Luu is acceptance of his entire
renditions.
12. Vinh Pham (Vinh)
This witness impressed me as not being able to contain
a general bias in favor of the General Counsel's case.
The characteristic, however, was not so extreme as to
disregard all that he covered. The credibility evaluation
on Vinh is highly mixed and shall be delineated in specif-
ic instances on 8(a)(1) issues. As to his rebuttal testimony
on an 8(a)(3) aspect of the case, I credit him fully as to
detailed description of festivities at the wedding party
that ties inextricably to the issue of Chi's discharges.
13. Nam Hang (Nam)
This witness impressed me more than sufficiently and
is credited in full.
14. An My-Dung
This witness, now Chi's wife, gave appropriately cred-
itable testimony concerning the wedding party and relat-
ed events of that day.
15. Ton Khong Quan (Ton)
This witness impressed sufficiently that his testimony is
credtited in full.
16. Tuong Dinh Do
This physician witness testified that Chi had been his
patient during the period 1981-1983. Dr. Do maintains
San Francisco offices and is formally board-certified in
family medicine as he claimed. 10 I detected some inclina-
1 ° "Directory of Medical Specialists" (21st ed 1983-1984), vol 1, p
328.
tion to assist Chi's case, and particularly concerning in-
terpretation of his own office records regarding the pa-
tient. However, the overall presentation displayed a pro-
fessional, essentially truthful ring, and on fundamental
points of a retroactive diagnosis and treatment made by
Dr. Do, I credit the essentials of his testimony.
17. Cecilia Doherty
It is difficult to imagine a more candid-seeming wit-
ness, and although not found to be an expert in her field
for purposes of opinion testimony, the specialized back-
ground she possesses was useful to issues of the case.
This is particularly true as to her empirical knowledge
concerning the alternative language comprehensions that
could be expected in terms of any related ability to call
up a description of past verbalisms heard and sketchily
understood. To this extent, and it is a vital one in formu-
lating factual holdings, I have every confidence in as-
signing credible weight to what Doherty explained.
18. York
This witness led off Respondent's case as another
called adversely under Section 611(c). I find nothing sus-
pect about his essentially peripheral testimony and
extend it ordinary credibility.
19. Carl Galiano
This witness is an experienced American baker and a
retired member of the Union. On both counts he is set
apart from all other individuals involved in the case. Ga-
liano was actually the source of information that im-
pelled Luu to originate the prospect of organizing Re-
spondent's employees. Galiano was also Respondent's
first witness as to contrary versions of what officials said
in meetings with assembled employees. He displayed
sharply divided loyalties and a decided inclination to
slant his testimony on most subjects to suit self-interest.
Demeanor factors are extremely unfavorable in Galiano's
case, and for these and other reasons I totally reject the
essentials of his testimony.
20. Tom Lam
This minor witness is credited to whatever extent his
testimony pertains.
21. Hoang-Oanh Ton (Hoang-Oanh)
This office employee translated Wicker's remarks to
the group on 14 October into Vietnamese. I do not find
that she made a genuine effort to call up the truth from
her memory, if in fact she even effectively retained much
of the experience. I am satisfied that she is party-biased
for case purposes, and do not credit her testimony in any
important regard.
22. Mary Fong
Respondent would profit well from this witness if her
testimony is believed. I am contrarily convinced, howev-
er, that she is highly opportunistic, and was determined
to tailor her version of important involvements so as to
assist Respondent by artificial assertions. The factor of
BAKERS OF PARIS 1003
'
demeanor is crucial in this assessment, particularly as to
dissembling behavior during cross-examination. I totally
discredit all aspects of Fong's testimony, except for obvi-
ously correct continuity and minor aspects that do not
conflict with essential factual holdings.
23. Alain de la Crose
This witness impressed me in rather a neutral fashion;
however, my action is to withhold any significant weight
from his testimony on grounds that he simply did not
convincingly show sufficient awareness of matters about
which he testified.
24. Manceau
This witness displayed an institutional bias favoring
Respondent and was overly dogmatic in his assertions.
The demeanor assessment of IVlanceau is a difficult one,
but overall I am persuaded to disregard the relevant
thrusts of his testimony.
25. Jegat
This witness is the highest on-site supervisor aside
from corporate officials. His function is assumed by
Wicker on days off and he is deeply involved in business
planning and operational tedium. I am impressed with
Jegat's candor and the favorable demeanor that he pro-
jected while testifying. Overall I find him to be generally
credible and give weight to his testimony in such par-
ticular regards as is appropriate to the issues.
26. de Bock
This witness is crucial to Respondent's defense against
allegations of unlawful discrimination regarding the dis-
charge of Chi. I find him in roughly the same discredit-
able category as Fong, and particularly so when his testi-
mony is completely at odds with numerous other wit-
nesses of believable nature. There is ample reason for a
de Bock to present with bias, and I am well satisfied that
this is an influencing factor in his departure from truth or
in fanciful inventions of claimed memory. His demeanor
was decidedly unimpressive, and my assured assessment
is that of rejecting the complete essence of what de Bock
described.
27. Robbe-Jedeau
This suave executive was evaluated with careful atten-
tion because the earnestness and polish of his testimony
was consistently well presented. Subjectivity must be a
highly influencing factor in such a case, although it is
even more significant that Rohbe-Jedeau has been effec-
tively contradicted, particularly as to his seriatim denials
of unlawful statements. I discredit the main import of
what he covered as another of Respondent's important
witnesses.
28. Cuong Luu (Cuong)
I attach practically no veracity to what this witness
presented. His demeanor was notably unimpressive cou-
pled with a plain showing of uncertainty as to what little
he managed to assert. I discredit Cuong in every signifi-
cant regard.
29. Quang Thanh Nguyen (Quang)
This witness completed the tandem of two rank-and-
file persons, both testifying via translation in an Asiatic
language, whereby Respondent would seek to counteract
evidence of unlawfulness in various remarks of the em-
ployer agents. I find him equally unconvincing as was his
counterpart Cuong, and for this reason plus my impres-
sions from his demeanor reject Quang's testimony as it
would otherwise aid Respondent in defending allegations
of the complaint as amended.
30. Cecilia (Taffy) Von Hungen
This employee, one excluded from the bargaining unit,
testified in corroboration of Respondent's version of
events when Gia was interviewed on 15 and 16 Septem-
ber 1984. She was assigned note taking for the episode,
and was separately questioned on her memory of the
verbal exchanges. I am given ample reason from her
total role as a- witness to disbelieve the testimony and
discount the value of her notes. No weight is accorded
the evidence educed from Von Hungen.
31. Michael
Much of what the case is about turns on the testimony
of this witness. He had become titled as a supervisor of
the packaging department in June, and is both a union
card signer and arguably a solicitor of other authoriza-
tion cards as would taint their validity were he to be
held to be a supervisor within the meaning of the Act. In
short, Michael's testimony was almost totally unreliable
both intrinsically and as to classic matters of viewing his
demeanor. Here, as with other persons, the process of
cross-examination revealed waffling uncertainties that
mark him as a witness of doubtful veracity. I largely dis-
credit Michael with respect to the numerous evidentiary
aspects on which his claimed supervisory status turns,
and equally reject the essence of his testimony on other
issues, but particularly so as it conflicts with Chi.
32. Fred
This witness is the second person titled supervisor for
the packaging line. Much of what applies to Michael's
credibility evaluation applies similarly to Fred. I am sat-
isfied that he testified mostly from self-interest and had
little regard for the actual truth of what he described.
Fred, as did Michael, appeared at the York home for the
aborning organizational effort and is similarly situated as
to an adjudication on the issue of low-level supervisory
status and its ramifications. As also with Michael, Fred
participated in written evaluations of employees at the
request of Wicker, and ostensibly for bonus allotment
purposes. The involvement of both these functionaries in
the process, and their labored description of input ren-
dered, served to cast further doubt both on their true
management capacities with Respondent and their per-
sonal credibility. Fred's testimony is largely rejected.
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33. Steve Duong
This first of the rebuttal witnesses testified credibly,
but inconsequentially, concerning his recollection of re-
marks that he was commissioned to translate in Vietnam-
ese on 13 July 1984. My assessment here is that of a
well-intentioned individual, but one who is striving to
give some meaningful content to his role. What little he
did contribute, as occasionally the case with other rebut-
tal witnesses, was tediously led forth from his memory,
and the upshot here is that I give bare weight to his tes-
timony only insofar as it corroborates.
34. Minh Tran (Minh)
This witness testified with clear and sufficient candor
and is fully credited.
35. Wilson Ton
This witness testified on the narrow issue of what was
actually said to assembled employees on 13 July 1984,
and I find his subtly delineated recollection of remarks to
be convincing and worthy of being fully credited.
36. Luong
This witness, once named above, gave every appear-
ance of mature candor. I find him to be among the more
persuasive of the many who testified and thus credited
Luong in full.
37. Tan
Again the General Counsel had presented a witness in
rebuttal only out significantly so as to key happenings of
the case. Tan was impressively believable and his testi-
mOny is credited in full.
38.Le Van Hoa
This individual, the bridegroom at the 5 November
wedding party, appeared sufficiently truthful and pos-
sessed of accurate recall. I credit his limited testimony.
39.Nam Chung
This witness associates to Tom Lam in significance
and for what it is worth routinely credited.
40.Beverly Boum
This witness displayed superb characteristics of
candor, consistency, and impressive demeanor. Her sig-
nificance was largely to discredit Galiano, and in this I
am amply satisfied that the purpose was achieved.
F. Factual Holdings
1. Section 8(a)(1)
In an initial episode on 5 October Wicker asked Luong
and Tan to enter the locker room with him, a place then
also used for employee breaks. Vinh was found to be
present and Wicker included him in the assemblage.
Then referring to very recent contact from a Labor
Board, Wicker asked each of the three employees if they
has signed a union authorization card. After inconclusive
answers from the individuals, Wicker inferred that any
such signings would be like a stab in the back to him and
illustrated this notion by assaultive gesturing."-
On 12 October Wicker happened to take an incoming
telephone call of Luu, who had only been intending to
ask Fred for a fresh bread delivery. Wicker preempted
the contact to tell him that a few workers had betrayed
by trying to unionize. Luu disclaimed any knowledge of
the matter, after which Wicker asked Luu if he had been
intending to discuss the subject with Fred while on the
telephone. The conversation ended uneventfully after
this last remark, with Luu simply stating his other pur-
pose.
After delivering his prepared statement on 14 October
Wicker handled questions from certain employees. In the
process, one dealt with Respondent's compliance under
California law relating to work breaks, and to this
Wicker briefly spoke in private with Manceau. He then
informed the group that with Manceau's concurrence the
daily work breaks were immediately increased from 15
to 30 minutes. Other questions touched on comparative
hourly earnings within the work force and Wicker was
drawn into further comment. In the course of this he
said that union wages were typically high in relation to a
new business, and his reaction to unionization would in-
volve purchase of higher capacity baking equipment or
an ownership change, either of which steps would lead
to forced layoff of employees.
Following the meeting, production resumed, and
toward the end of his shift Chi was in conversation with
fellow employee An Thanh Quan (An) by the former's
work station. Jegat appeared and ordered An into the
breakroom if he was not actually doing his own tasks. A
general management rule of the past had forbidden
casual talk while working, however, several employees,
including Michael and Fred, would commonly so speak
with Chi or briefly spell his breadmaking functions.
In an office meeting on 23 October arranged with Chi
by Wicker, the official listed to some criticism of Re-
spondent's policies and then offered a 50-cent hourly pay
increase conditioned on lack of success by the Union.
Chi disdained the offer and Wicker said that the prospect
of automation and a reduced number of employees
would result from unionizing the operation.
After the first of Lionel's mid-November meetings
Wicker personally presented Gia his paycheck in which
a 50-cent hourly increase was contained. This action re-
lated to the employee's request the prior summer for an
increase based on his 2 years of employment and pro-
gressively increasing experience as a doughsheeter for
several months. The following day the personal delivery
of a paycheck was repeated with Vinh, who at that point
had worked as the other and senior doughsheeter for ap-
proximately 8 months without any change in compensa-
tion. In the meeting of 18 November Robbe-Jedeau had
remarked that employees should disregard whatever
Wicker had previously said about machinery, and should
11 I do,not credit the uncorroborated testimony of Vmh that on this
occasion Wicker also made a threat to close the bakery if unionizing
were successful
BAKERS OF PARIS 1005
simply present management with any unresolved prob-
lems in order that they could be handled.
Among Wicker's miscellaneous meetings with employ-
ees in late November were those with Ton translating re-
marks for Nhon and a separate one with Vinh. In the
first of these, Wicker sought to draw comment from the
two rank-and-file listeners as to the reasons for numerous
employees having supported the Union. The meeting
with Vinh, fixed as 27 November, opened with miscella-
neous personal topics and the furnishing to Vinh of one
of the employees letters then being distributed. In further
course of this meeting, Wicker stated that if the Union
won in the scheduled election Respondent would buy
new machinery to do its work with only half the em-
ployees. Vinh was also offered a wage increase to $8 per
hour if the Umon lost and promised a shop manager's
job in the future.
In the second set of Lionel's meetings photographic
depiction of automated bakery equipment was displayed
to employees. It was known from a production meeting
earlier in August that certain modernization was planned
by Respondent insofar as a new mixer and divider would
be installed. The intended machinery was not graphically
shown, and the more advanced automated equipment
was pointed to by both officials as available technology
that Respondent had decided not to obtain even though
it was designed for especially high production. Wicker
took the opportunity while on this subject to point out
how potential use of such extremely modern equipment
at Respondent's facility would mean the layoff of many
employees."
The topic of annual bonuses was also covered in the
group meetings of December. Robbe-Jedeau broached
the subject as the first employees were to know that
their 1983 bonus would generally average 10 percent of
regular earnings. As to timing, he said its distribution
would occur after the election, and when asked if this
benefit was conditioned on the Union not winning his
silent response was only with a cryptic smile.
Xuan's testimony of being questioned by Wicker on 9
December as to how he would vote is a limited excep-
tion to what I otherwise credit. At this point in the chro-
nology both Robbe-Jedeau and Wicker had disciplined
their remarks, and without corroboration by others I am
not convinced that Wicker would single out only one
person for such forceful comment on voting when so
many others were experiencing only lawful final cam-
paigning.13
In the conflict of testimony concerning what Robbe-
Jedeau stated in the course of meeting with employees
on 13 July 1984, I am persuaded that employees were
told they would be without pay increases for 2 to 5 years
as the litigation might run in its expected course. This
meeting had been arranged with notable effort as to the
hiring of translators and creation of artful propaganda
emphasizing an employer's dilemma during a protracted
organizing campaign. The actual written pronouncement
12 Testimony of Trieu to the effect that further enlarging remarks
were made has been discredited.
13 Nguyen's isolated recollection of being instructed to make a "no"
vote is among all that I reject from this witness' testimony.
on one of the posters so utilized in Respondent's graphic
emphasis was to the effect that even though current
promises on the subject of wages were forbidden the
Employer could not foresee a period of even "1 or 2
years" during which compensation would remain frozen.
Wilson Ton, perhaps one of the General Counsel's most
convincing witnesses, rendered somewhat equivocal tes-
timony that either of Respondent's officials uttered the
simple prediction of several years without pay increases
because of the Union's presence as a factor. I note that
such a statement was admitted by Jegat during his de-
scription of Robbe-Jedeau's rhetoric in predicting a 2- to
5-year life for the labor law litigation itself."
Gia's fortuitous appearance at the facility on 15 Sep-
tember 1984 was used by Wicker as an opportunity to
question him closely respecting testimony given in the
hearing the previous June. The interrogation used as
context in a much earlier report by Gia that he had dis-
liked his involvement during the investigatory phase of
the unfair practice charge, in which he was figuratively
forced into signing an affidavit. After such softening up
Gia's experience was continued with the assistance of Vi-
etnamese-speaking customer Henry Lam. After finally
making a direct accusation that Gia had lied in court,
Wicker acquiesced in Lam escorting Gia away for more
private discussion. When together only with Gia, Lam
intimated that Gia's employment had been jeopardized
and that he could return to the Employer's graces by re-
canting his formal testimony. The two returned to Wick-
er's presence where (ha was annoyingly questioned fur-
ther about what was true from his memory and what
was false. The upshot was an understanding to continue
with the subject on the following day. As so resumed on
16 September 1984, Wicker introduced an incident of
recent building damage by a forklift, which Gia could
have been operating, and scheduled the reluctant em-
ployee for a meeting with Respondent's attorney. This
prospect, one couched as a chance for Gia to correct
prior testimony, did not actually eventuate.
2. Section 8(a)(3)
a. Discharge of Chi
The early November part-time work schedule of Chi
contemplated three consecutive night-time production
shifts of Friday through Sunday for the first weekend of
that month. After a typically longer shift on Friday, 4
November (ending midmorning of Saturday, 5 Novem-
ber), a bronchial ailment of several days duration wors-
ened and Chi went directly to the office of Dr. Do. The
waiting room was crowded with patients, and Chi then
left for his home where he took to bed with his illness
and slept. This followed a home remedy of forceful nose-
pinching, and telephone advice from Chi to the Employ-
er that he would be unable to work that night as sched-
uled. Later in the afternoon Vinh telephoned him to ask
why Chi and his then-fiancee An My-Dung were not at
14 The following day Respondent Issued written clarification on the
subject of wages, in which persons in an established training period were
informed that their previously promised Increases on completion would
not be affected by the general rule
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a wedding party in process for which they had been in-
vited. Chi begged off with his friend because of feeling
ill, however, Vinh telephoned again around 6 p.m. to
urge that Chi come, particularly with so many friends
and coworkers present at the San Francisco restaurant
used for the event. Chi acceded and went with An My-
Dung to the restaurant where they took seats at a table
with Luu, Vinh, and Minh along with their wives, and
de Bock. Food was served and libations were provided.
After this de Bock left with Luu as a guide to city
streets, and 15 minutes later Chi and An My-Dung went
home for the evening.15
The following morning Michael telephoned Chi with a
warning that he should not take off work on many
scheduled days, and later Wicker called to ask for a
meeting that afternoon. Chi went to Wicker's office and
when confronted about the prior evening routinely con-
ceded that he had been to the wedding party, explaining
that he did so only as a social accommodation to the fact
that the honored bridegroom was Vinh's brother-in-law.
Wicker accused Chi of lying and said he was fired for
what came to be termed dishonesty and breach of neces-
sary trust between an employer and its employees. The
two debated this action for a while, during which
Wicker made telephone calls to both Michael and de
Bock, which ostensibly gave him no reason to change his
own position on what had been determined.
Chi eventually saw Dr. Do on 8 November, at which
point the diagnosed bronchitis was abating, but for
which continued rest, use of fluids, and medication was
prescribed."
b. Rescheduling of Luu
At a time in late September Minh had requested a
schedule change for personal reasons. His weekend job
up to then was a specialized one of mixing pastry ingre-
dients, baking, and packing as a sideline of the viennoi-
serie operation. Minh pressed his request and at a super-
visor's meeting in October, Jegat, Manceau, and de Bock
-being in attendance, Wicker asked them to search for a
way to change Minh's schedule. The result was a pro-
posed weekend schedule of 6:30 a.m. to 2:30 p.m. for
Luu, who in fact was available only for part-time work
because of school attendance. The change was made ef-
fective 14 November, and although packaging employees
overlapped onto the new shift on their long nights the
only regular employee sharing these hours was mainte-
nance worker Nam.
15 I emphasize here that de Bock is specifically discredited in his claim
of Chi having suggested further revelry that lnight, that he mocked any
indication of really being ill, that de Bock had been repeatedly urged to
conceal from the Employer that Chi attended this party, and as to other
testimony about detailed celebratory rituals of the affair
15 I do not believe Chi's particular claim of having seen Dr Do on 5
November, nor of the doctor's assertion that his medical record note was
made contemporaneously with its date Neither of these variances have
any significant impact on resolution of any issue in the case
3. Majority
a. Unit
By stipulation as General Counsel's Exhibit 41, a prin-
cipal portion of the composition of this appropriate pro-
duction and maintenance unit as it existed about 27 Sep-
tember is established. This document lists 23 persons, the
bulk of whom have already been referred to in their ca-
pacities as witnesses or actors in events of the case. A
separate group of seven individuals are identified as in
dispute with respect to unit placement, and of them Fred
and Michael warrant separate treatment because of the
close legal question involved in regard to the issue of
their supervisory status. The five persons of relatively
more apparent resolution are the following:
(1) David Bensi
Respondent contends this individual is within the unit
and the General Counsel concedes in its brief at page 119
that this may be found. There is only the slightest refer-
ence to Bensi in the overall record, which included,
without more, a label of "supervisor." No basis exists to
do other than deem him as having been an eligible
member of the bargaining unit.
(2) de la Crose
This individual was on salary and titled assistant man-
ager of the bread line as of the semimonthly pay period
ending 30 September. He had previously managed the
viennoiserie line until de Bock arrived in the summer of
1983. As assistant manager to Manceau, de la Crose as-
sumed his position on the former's 2 nights off each
week. Chi had been overseen by de la Crose, who direct-
ed changes in the baking process and criticized any leth-
argy. Notwithstanding that Jegat focused his time on
bread line operations when Manceau had scheduled
nights off, this principal operation of Respondent is
shown to have required the authoritative guidance of de
la Crose for proper functioning. The weekly regularity
of de la Crose as acting bread line manager, coupled
with his assured experience in baking procedures, is suffi-
cient to hold that he possessed and exercised effective
powers in directing this important branch of the work
force. I find him to be a supervisor within the meaning
of Section 2(11) of the Act at relevant times and thus ex-
cluded from the unit.
(3) Carl Galiano
The General Counsel contends he is managerial, while
Respondent casts him only as a cookie maker who also
routinely orders production ingredients. Galiano worked
a day shift and his own testimony shows no status as a
supervisor of others. Although he attended technical
production meetings with Wicker his only distinguishing
responsibility of ordering special ingredients is totally
routine, and particularly so for one of his long experi-
ences in the industry. I find nothing in his job duties that
remotely suggests the policy formulating and effectuating
functions of a managerial employee as defined by the in-
tricately evolved case doctrine on this subject, and thus
BAKERS OF PARIS

1007
-
hold that Galiano is an included employee of the bar-
gaining unit.
(4) Phuc T. Le
This individual is counterpart to de la Crose in the
sense that as a salaried assistant manager for the viennoi-
serie he fills in for de Bock on two occasions each week.
He performs extensive production work himself even
when acting as a department manager, and is not shown
to have been an approver of timecards under Respond-
ent's sometimes structured policy on this subject. Vinh
credibly described how Phuc Le authoritatively pre-
vailed on employees to work more effectively, and was
himself permitted perquisites not available to the rank-
and-file. Without Jegat closely monitoring the depart-
ment, this important component of Respondent's produc-
tion would be without effective management were Phuc
Le's role as its acting head not given ordinary business
meaning. From such facts as are known I find him also
to be a supervisor within the meaning of the Act and ex-
cluded from the unit.
(5) Luc Manceau
This individual, the son of Guy Manceau, is high-
school age and worked on a fluctuating part-time basis as
a production helper. His mother had also been a part-
time employee of Respondent in September and Luc
Manceau resided with his parents who have no owner-
ship interest in the enterprise, The General Counsel
argues that he represents a "special status" individual
with ties to management, and has insufficient community
of interest with other employees for unit inclusion pur-
poses. Respondent contends that he is hourly paid and
part time as are many others, besides which he has little
job interaction with his father and performs duties highly
comparable to other employees. The most significant
factor in his case is the admittedly irregular nature of his
appearance for work. Given Respondent's considerable
utilization of part-time employees, however, I minimize
this factor, particularly as it manifested 2 years ago. On
close balance, I hold that Luc Manceau is properly in-
cludable within the unit.
b. Supervisory status
Fred had been a packaging department supervisor
since approximately 1982. Michael became a second su-
pervisor of the department in approximately June 1983
after about a year of employment with Respondent. At
material times the packaging department comprised nine
individuals, either five or six of whom including those
titled supervisor were at work on any given occasion.
Both Fred and Michael work through much of the night
in rank-and-file packing of the breads and pastries, but
toward the end of the shift they carry out the additional
duty of loading orders onto delivery trucks.
As to supervisory indicia the evidence shows that vari-
ous persons who started work in Respondent's packaging
operation including Cuong, Carlson Phung, Nhon,
Wilson Ton, and Xuan were not truly hired on the ac-
tions or effective recommendations of either Fred or Mi-
chael. In all such cases the job inductees were merely
guided to this prospect of employment, with Wicker as
the only authority to make it official. A high degree of
ethnic and family interchange affects these dynamics, and
both Fred and Michael were either involved or bypassed
in the accession process based on fortuitous circum-
stances of the moment. The probative evidence shows
that Gin and Luu had nearly as much involvement with
the introduction of new persons to the bakery as did
Fred or Michael. Furthermore, they are each sweepingly
discredited on this important indicia of supervisory
status, as compared with Xuan who credibly asserted
that Wicker hired him and as with Luu who persuasively.
described an absence of any apparent hiring powers
being possessed by Fred or Michael during his times of
convenient observance.
The operational roles of Fred and Michael are plainly
more significant than other packagers, but it is equally
true that this operation exists as one of fully settled rou-
tine, lacks the skills requirements of the product depart-
ments, and can readily be overseen by other supervisors
of the facility. To the extent that employees contact Fred
and Michael regarding absences, job changes, and mis-
cellaneous request, these do not require any appreciable
measure of independent judgment in their handling. Simi-
larly, this is so with ordinary job directing and the minis-
terial signing of timecards. There is an insufficient show-
ing that Fred and Michael have even had any significant
role in the release of an employee and, although loosely
described involvement with an individual probably
named Chiem Phen arose, it did not amount to an effec-
tive judgmental action on their part.
While Fred and Michael communicate with Wicker on
the subject of employees performance, they have no es-
tablished role in this regard nor do their opinions carry
effective weight in the establishment or modification of
wage rates. The fully developed subject of their partici-
pation in Wicker's intricate bonus allocation evaluation
sheets is noted, however, the entire project was poorly
understood by Fred and Michael. As an ordinary busi-
ness endeavor it bordered on the whimsical, and aside
from doubt whether it had, or was intended to have, any
influential meaning in the bonus-apportioning process, I
find nothing from this branch of the record to support
Respondent's position.
In Soil Engineering Co., 269 NLRB 55 (1984), the
Board reaffirmed that the burden of disproving employee
status rests on the party asserting that persons engaged in
important operational roles within an enterprise are statu-
tory supervisors. Even though it is true that Fred and
Michael meet for purposes of increasing production effi-
ciency, the requisite burden has not been shown for these
individuals as a general matter. A top-heavy supervisor-
employee ratio would obtain were they viewed other-
wise. Their actual functioning is harmonious to the "dis-
patcher" label, or to what a leadperson would perform. I
find both Fred and Michael are not possessed of suffi-
ciently discretionary authority respecting any disjunctive
aspect of the statutory definition as applying to a valid
supervisor. They are included within the unit by reason
of not in either case being the claimed supervisor within
the meaning of Section 2(11) of the Act and this holding
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
also constitutes them as rank-and-file persons for pur-
poses of the union organizing campaign and card signing
in support thereof.
c. Authorization cards
The holding in section II,F,3,b, above dissolves most
of the contentions regarding validity of authorization
cards. The General Counsel has established through
Conway's analysis of its Exhibits 11-24 that such 14
cards of unit employees are valid. These include cards of
Fred and Michael themselves, now properly countable
toward a majority. Additional cards, those of An and
Ton, were authenticated by Chi as the solicitor. A fmal
group, those of Hung, Toha, Nhon, Xuan, Trieu, and
Luu were authenticated by direct testimony of the signa-
tory.
There is no evidence concerning circumstances in the
signing of cards as would invalidate any of them. In
cases of limited reading comprehension, the act was an
experiential one on the signer's part that freely expressed
their intention to designate the Union for collective-bar-
gaining purposes where they worked. Earlier resolutions
have determined the composition of the unit about 27
September to be 28 persons inclusive of Fred and Mi-
chael. By 27 September the Union possessed valid au-
thorization cards from 22 employees of the unit, a con-
figuration that clearly establishes its majority status as of
that date.
G. Analysis
1. Section 8(a)(1)
Respondent's actions from 5 October and into Novem-
ber constituted coercive interrogation of employees con-
cerning the freshly known prospect of unionization. The
conduct must be viewed as aggravated in its seriousness
because of Wicker's stern personalizing of matters, as
though some treacherous social act had occurred. Such
dramatization reached a height with his back-stabbing
analogy, particularly inasmuch as this was not limited to
one occasion and all employees who witnessed the ges-
ture recognized the startling implication.
The action of similarly increasing work breaks in mid-
October and later effecting pay increases reasonably
tended to undermine the Union's support. Comparably
so, the promises of increased pay without the Union and
individual job improvements constitute coercive tactics
that illegally address the right of self-organization.
As typically so, the most serious conduct established
by probative evidence is the various indications of how
management would counteract the Union by mechaniza-
tion leading to extreme job losses or by outright closing
down. The evidence shows these violations to have oc-
curred repeatedly and with bewilderingly different em-
phasis as communication to employees on the subject
adroitly unfolded over the weeks following the petition.
Other 8(a)(1) allegations during the critical period are
not supported by the evidence. The claimed enthusiasm
in discriminatorily reviving work rules turns on the thin-
nest sort of episode, and must be viewed in context of
Jegat's persuasive testimony that he was constantly in-
tending to see that employees only worked when that
was in order. Such a subject is also effected by the va-
garies of when and whether supervisory persons observe
an infraction and, if so, whether they are sufficiently un-
distracted as to give it their immediate attention. I de-
cline to find an actual unfair labor practice has been
committed because of a showing that on one isolated oc-
currence an errant employee was chastised.
Relatedly, I do not find that utterances of Respond-
ent's agents established the elements of creating the im-
pression of surveillance of union activities. This area of
8(a)(1) conduct is one in which it is not enough for some
vague implication to be made, for as pure doctrine it is
actual surveillance of union activities that must be sug-
gested as an implication from suspect remarks. Here, the
statements of Wicker could be as easily his idle mouth-
ings, as they could be the requisite implication that em-
ployees were being deliberately watched as the time
passed from petition to election. There was in fact no in-
dication of actual surveillance, and mere badgering of
employees is not actionable. The Board has expressly dis-
cussed these distinctions, and particularly those between
actual and implied surveillance. See Photo Drive UP, 267
NLRB 329 (1983). I, therefore, also decline to find that
this violation is present. Cf. Snyder Tank Corp., 177
NLRB 724, 730 (1969).
The allegation concerning voting instructions to em-
ployees and solicitation of their grievances is based on no
more than a strained interpretation of Robbe-Jedeau's pa-
tronizing remarks, and on a generally solicitous aura that
Respondent attempted to create for good-will purposes.
There is insufficient proof that unfair labor practices in
either instance have been committed.
In final regard to allegations of 8(a)(1) violations
during 1983, the General Counsel maintains that Re-
spondent interfered with employee rights by promising
an "extra large" bonus at a time near to the election.
This allegation also fails because the evidence control-
lingly shows that growth and profitability were as much
factors in the 1983 bonus to rank-and-file as any manipu-
lative use of the subject. An actual bonus distribution
had been long in Respondent's plans, and early Decem-
ber was a natural time to release the news. Furthermore,
Robbe-Jedeau ducked the temptation to link bonuses
with a defeat of the Union, and this subject is left as one
in which the General Counsel has insufficient probative
evidence to prevail.
This case also involves the uncommon instances of al-
leged 8(a)(1) conduct occurring during the timespan
needed to complete the entire trial. By my factual hold-
ings respecting the meeting of 13 July 1984 it follows
that Respondent threatened its employees with sweeping
denial of pay increases for a period that to ordinary
wage earners would be tantamount to permanence. The
only associated reason for such an announcement was
the generation of a legitimate legal proceeding under ap-
plicable Federal legislation, and the clear message of the
threat was that employees relinquish their right to seek
such redress or be punished economically.
The final issue relates to events of mid-September
1984, as to which sufficient evidence shows Gia was sub-
ject to hostile interrogation and a cleverly voiced threat
BAKERS OF PARIS 1009
of the implied variety. The General Counsel has ade-
quately identified the several departures from Johnnie's
Poultry safeguards, 'while Respondent's reliance on Ross-
more House, 269 NLRB 1176 (1984), is unavailing for the
distinctions present in the facts. Clearly, the incessant,
displeaded questioning of this rank-and-file employee is
outside the contemplation of what Rossmore would
excuse as noncoercive.
2. Section 8(a)(3)
a. CM'S discharge
All elements of an inferentially discriminatory termina-
tion from employment for the purpose of discouraging
engagement in union activities have been established
from probative evidence as a whole. Chi was prominent
among Vietnamese-speaking employees insofar as indi-
vidual solicitations of auithorization cards and talking up
of the Union was concerned. Even Wicker had long rec-
ognized his assertive personality by singling him out for
special discussions both before and after the petition had
been filed. As one of the questioners at Wicker's 14 Oc-
tober meeting, and having shown resistance to proposed
abandonment of the Union, when coaxed to do so by
Wicker as the two conversed on 23 October, Chi was
necessarily identified by circumstances as a particular ac-
tivist in the development felt by Wicker to be so abomi-
nable. This background, coupled with the stark arbitrari-
ness of Chi's discharge, is sufficient to compel an infer-
ence that Respondent viewed him as a vital force in the
Union's prospects of holding majority support in this
multiethnic work force. If this were not enough, there is
evidence that Respondent made it a business to remain
alert to just such inclinations, as with Robbe-Jedeau's
written reference in December to rank-and-file "leaders"
of the Union "that we all know."
There is abundant evidence that Respondent routinely
tolerated occasional absences from work, and even did
so when notification from the employee was inexcusably
late or nonexistent. The few past instances of actual ter-
mination for cause, remote in time from the eventful
period of the fall of 1983 and otherwise highly distin-
guishable on their little-known facts, provide no convinc-
ing basis to believe that the discharge of Chi had any
bona fide rationale.
The credited facts of his activities on 5 November are
quite limited and understandable. An individual left work
from a prior overnight shift feeling ill and displaying re-
lated symptoms. After being unable to see a doctor, he
was contented with home care until a persistent social
entreaty caused him to deviate. He participated in jovial
events of a wedding party, but passively so and without
consumption of alcohol or average animation. When
Wicker learned merely that Chi was among those miss-
ing their shifts on 5 November, Chi having earlier re-
ported that this would be the case, he plainly seized on
the opportunity to rid Respondent of a union activist. In
the process he recklessly or deliberately disregarded the
true background facts, and compounded heavy-handed
action by advancing the rather odd, moralizing charac-
terization of Chi having been disloyal.
The Supreme Court has significantly noted evidence
of how union activities had been taken "personally" by
the discharge-deciding supervisor, leading him to become
"obviously upset" to the point that pretextual action fol-
lowed. In this setting "commonplace" transgressions
were handled by uncommon departure from the employ-
er's, "usual practice in dealing with rules infractions."
NLRB v. Transportation Management Corp., 462 U.S. at
396, 404.
These factors, taken in conjunction with timing of the
action so as to practically remove Chi from both final
weeks of the vigorous campaign against the Union and
possibly as an election participant, are influencing in my
conclusion that a pretextual discharge was visited on this
individual.
b. Luu's rescheduling
This issue must be viewed in overall context; that
being of an employer that by 14 November had em-
barked on a course of aggressive unfair labor practices.
If anything is clear from depicting this employer's oper-
ations it is that a high degree of flexibility and a capacity
for internal adjustment is present. It is simply not con-
vincing to explain that a prepetition request from Minh
for shift change would suddenly be responded to at such
a critical time as was done. Respondent's arguments in
defense to this issue are singularly weak, for there is
reason to assume that protest by Luu would have been
futile, and as to opportunity for contact with packagers
on his new shift this limited prospect was totally differ-
ent from Luu's earlier full presence at times of main
product operations. Given Respondent's established moti-
vation and timing of this decision, I conclude there is
substantially enough evidence here to also infer that
Luu's rescheduling was punitive in nature and thus un-
lawful.
CONCLUSIONS OF LAW
1.Respondent Bakers of Paris, Inc, is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Bakery, Confectionery & Tobacco Workers Interna-
tional Union, Local No. 24, AFL-CIO-CLC is a labor
organization within the meaning of Section 2(5) of the
Act.
3. Respondent, commencing 5 October 1983, has inter-
fered with, restrained, and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the
Act, and has thereby engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act and has thus en-
gaged in unfair labor practices which have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States tending to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof by:
(a) Coercively interrogating employees regarding their
own and other employees' union activities and sympa-
thies, and their execution of union membership authoriza-
tion cards.
(b) 'Threatening its employees with layoff, job reduc-
tion following automation, and plant closure if they
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
engage in union activities or supported the Union, or if
the Union became their collective-bargaining representa-
tive.
(c) Granting employees longer break periods from
working time for the purpose of inducing them not to
engage in union activities or support the Union.
(d) Granting employees wage increases for the purpose
of inducing them not to engage in union activities or sup-
port the Union.
(e) Promising employees wage increases for the pur-
pose of inducing them not to engage in union activities
or support the Union.
(f) Promising employees job promotions for the pur-
pose of inducing them not to engage in union activities
or support the Union.
(g) Threatening employees with the withholding of
any wage increases for a period upwards of 2 years in
retaliation for services of the National Labor Relations
Board having been sought by them or on their behalf.
4. By discharging its employee, Chi Van Hoang, on 6
November because of his union activities and refusing to
reinstate him, Respondent has unlawfully discriminated
against the employee and has thereby engaged in unfair
labor practices in violation of Section 8(a)(3) and (1) of
the Act.
5. By rescheduling its employee, Thanh Luu, on 14
November to a physically and functionally isolated
workshift, Respondent has unlawfully discriminated
against the employee and has thereby engaged in unfair
labor practices in violation of Section 8(a)(3) and (1) of
the Act.
6. All full-time and regular part-time production and
maintenance employees employed by Respondent at its
South San Francisco, California facility, but excluding all
sales employees, office clerical employees, guards and su-
pervisors as defined in the Act, constitute a unit appro-
priate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
7. Since 27 September 1983, the Union has been and is
the exclusive collective-bargaining representative of all
employees employed in the above appropriate unit for
the purpose of collective bargaining within the meaning
of Section 9(a) of the Act.
8. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respodnent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
necessary to effectuate the policies of the Act.
The Respondent having discriminatorily discharged
Chi, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on
a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as
prescribed in F. W Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in Florida Steel Corp., 231
NLRB 651 (1977). Because of the Respondent's wide-
spread misconduct, demonstrating a general disregard for
the employees' fundamental rights, I find it necessary to
issue a broad order requiring the Respondent to cease
and desist from infringing in any other manner on rights
guaranteed employees by Section 7 of the Act.17
Having found that Respondent discriminatorily re-
scheduled the workshift of Luu, I consider the manner in
which this misconduct may be remedied. The passage of
nearly 2 years is a substantial span in Respondent's busi-
ness evolution, and I am without current information on
operational matters or Luu's specific job status. Under
the circumstances, I decline to affirmatively order any
current change regarding Luu, but emphasize that should
the Regional Director for Region 20 conclude on such
compliance undertakings as arise in this case that a con-
tinued discriminatory factor is present as to his utiliza-
tion, then in that event the unfair labor practice shall be
deemed unremedied and Respondent shall be obliged to
purge the continued discrimination in keeping with the
spirit of this decision or by bargaining with the Union
about his status within the larger obligation that my rec-
ommended Order shall contain. ■
When the Union filed its petition for an election on 29
September, it had valid authorization cards from a ma-
jority of employees in the unit. Cf. Shaller Trucking
Corp., 269 NLRB 392, 397 (1984). At no time, however,
did it demand bargaining or recognition. The Board has
long held that mere filing of a representation petition
does not constitute a request for recognition or bargain-
ing such as to make an employer's failure to bargain,
without more, a violation of Section 8(a)(5) of the Act.
Furthermore, the instant complaint does not invoke Sec-
tion 8(a)(5) among its allegations. The absence of a spe-
cific 8(a)(5) violation, however, does not affect the pro-
priety of a bargaining order, when such is required to
remedy extensive unfair labor practices that have made it
unlikely for a fair rerun election to be held. See Produc-
tion Plating Co., 233 NLRB 116 (1977); Naum Bros., 240
NLRB 311 (1979).
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
the Supreme Court identified two categories of cases in
which a bargaining order would be appropriate. These
were: (1) "exceptional" cases marked by "outrageous"
and "pervasive" unfair labor practices; and (2) "less ex-
traordinary" cases marked by "less pervasive" unfair
labor practices. In the latter instance of less pervasive
but unlawfully extensive conduct, the Court approved
use of a bargaining order where the result had been a
"tendency to undermine [the union's] majority strength
and impede the election process." This leads to the prin-
ciple that when an employer's unfair labor practices are
less flagrant, after a union had at one time enjoyed ma-
jority support among unit employees, the extraordinary
remedy of an order to bargain may follow. The Court's
guiding language reads:
The Board can properly take into consideration the
extensiveness of an employer's unfair practices in
terms of their past effect on election conditions and
the likelihood of their recurrence in the future. If
the Board finds that the possibility of erasing the ef-
17 Hickmott Foods, 242 NLRB 1357 (1979)
BAKERS OF PARIS 1011
fects of past practices and of ensuring a fair election
(or a fair rerun) by the use of traditional remedies,
though present, is slight and that employee senti-
ment once expressed through cards would, on bal-
ance, be better protected by a bargaining order,
then such an order should issue. [Gissel, supra at
614-615.]
The numerous unfair labor practices engaged in here
by Respondent include those judicially termed "hall-
mark" violations, which without significant mitigating
circumstances do support issuance of a bargaining order.
This principle is found in NLRB v. Jamaica Towing, 632
F.2d 208 (2d Cir. 1980), in which the court stated that
such "hallmark" violations include closing or threatening
to close a plant with loss of employment, the grant of
benefits to employees, or the reassignment, demotion, or
discharge of union adherents in violation of Section
8(a)(3) of the Act. In such cases the seriousness of this
conduct, coupled with the fact that it often represents
action taken rather than mere statements, interrogations,
or promises, justifies a finding that it is likely to have
lasting inhibitive effect on a substantial percentage of the
work force.
This Respondent literally pounced on its work force
just 2 days after the petition was received, and herded
employees into various gatherings where they were re-
quired to listen while the Union was harangued. Various
employees were intimidated into nervous concealment of
their true sympathies, and Respondent's nonsupervisory
packaging department leaders were induced to falsely
distort many background and operational realities of the
enterprise. The commencement of this conduct was
closely followed by chilling discharge of an authentic
rallying figure, and the comparably visible Luu was also
then soon banished from the mainstream. Unfair labor
practices rapidly spilled over one onto another as Re-
spondent adroitly manipulated ordinary fears and feelings
by threats and actions involving worker income and job
security.
The cultural factors often referred to made lingering
effects of such conduct even more acute than ordinarily
so, and I attached particular significance to Respondent's
intermeddling in the adjudicatory process itself by stri-
dent criticism of Government lawyers and cornering a
witness for confounding accusations. It it is perceived by
employees that Respondent seems superior to the legal
system itself, there is no likelihood they would be left
with any confidence that the more informal election pro-
cedures, as typically done on the very premises that the
Employer controls, could at all allow them a successful
expression of free sentiment on the subject so fiercely op-
posed.
Finally, I see no mitigating factors as would permit
Respondent to escape the teachings of Jamaica Towing.
Executive direction of the Employer is rooted in persons
of mature experience and facile talent for interpersonal
dealings on either a group or individual level. There is
formal schooling shown in matters of business adminis-
tration, and well-versed counsel was retained at outset of
the fray. I recognize the self-serving evidence is present
of an intent to stay within the law, and further that much
of the propagandizing during Respondent's campaign
was of lawful character within the meaning of Section
8(c) of the Act. It is not, however, what Respondent has
done properly that controls, but what it has done im-
properly. Involvement by its highest officials in interro-
gation, threats, promises, discharge, and job discrimina-
tion, when the work force is relatively small and has
been paternalistically infiltrated in the past, leaves the sit-
uation shown here to involve slight, if any, possibility of
erasing lingering effects of unfair labor practices even
following the passage of years. The same characteristic
applies to whether a fair rerun election may be undertak-
en with only limited remedies. For these reasons the
total case circumstances persuade me that, on balance, a
bargaining order must be imposed because the expression
of employee sentiment, once established by a majority of
signed authorization cards for the Union, becomes here
the best determinant of fundamental employee choice.
See Granite City Journal, 262 NLRB 1153 (1982); Enter-
prise Products Co., 265 NLRB 544 (1982).
The Representation Case
Respondent contends that the Union's objections to
conduct affecting results of election are not sustainable
because of constructive abandonment and failure to con-
stantly maintain the presence of an attorney or author-
ized representative during the complete course of trial. /
confirm numerous rulings denying Respondent's formal
motions to dismiss in this regard, noting that the attorney
signing these objections made sporadic appearances
during the hearing, but more importantly that on two oc-
casions business representatives of the Union expressed
for the record a satisfaction with having their objections
considered in terms of evidence educed by the General
Counsel in the course of presenting proofs germane to al-
legations of the complaint as originally issued. Under the
circumstances, I find no basis to conclude that the Union
became technically vulnerable to dismissal of its tiled ob-
jections.
As the conduct recited in certain objections involved
the same activities as involved in the Employer's unfair
labor practices of the complaint case, I sustain Objec-
tions 1-3 and 5-7, while overruluing numbers 4,8, and 9,
for insufficiency of the proofs. The result is to order, as
done below, that the election held on 9 December 1983,
in Case 20-RC-15679 be set aside and that the petition
be dismissed. Enterprise Products, supra.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed18
ORDER
The Respondent, Bakers of Paris, Inc., South San
Francisco, California, its officers, agents, successors, and
assigns, shall
18 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sep. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from
(a) Coercively interrogating its employees regarding
their own and other employees' union activities and sym-
pathies, including whether any such employees have exe-
cuted membership authorization cards for the Union or
any other labor organization.
(b) Threatening its employees with layoff, job reduc-
tion following automation, plant closure, or any other re-
taliation if they engage in union activities, become union
members, or support the Union or any other labor orga-
nization.
(c) Granting employees longer break periods from
working time for the purpose of inducing them not to
engage in union activities or to support the Union, how-
ever, nothing in this Order shall be construed as requir-
ing Respondent to withdraw preexisting benefits.
(d) Granting employees wage increases for the purpose
of inducing them not to engage in union activities or to
support the Union, however, nothing in this Order shall
be construed as requiring Respondent to withdraw pre-
existing benefits.
(e) Promising employees wage increases for the pur-
pose of inducing them not to engage in union activities
or to support the Union.
(f) Promising employees job promotions for the pur-
pose of inducing them not to engage in union activities
or to support the Union.
(g) Threatening employees with a withholding of any
wage increase for a period upwards of 2 years in retalia-
tion for services of the National Labor Relations Board
having been sought by them or on their behalf.
(h) Changing the work hours or other terms and con-
ditions of employment of employees because they engage
in union activities or support of the Union.
(i) Discouraging membership in, or support for, the
Union, or for any other labor organization, by discharg-
ing employees or otherwise unlawfully discriminating
against them in their wages, hours, or other terms and
conditions of employment.
(j) Refusing to recognize and, on request to bargain
with Bakery, Confectionery & Tobacco Workers Inter-
national Union, Local No. 24, AFL-CIO-CLC as the
exclusive collective-bargaining representative of its em-
ployees in the appropriate production and maintenance
unit here.
(k) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Chi Van Hoang immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of this decision.
(b) Remove from its files any reference to the unlawful
discharge and notify Chi Van Hoang in writing that this
has been done and that the discharge will not be used
against him in any way.
(c) Forthwith notify the Union of Respondent's will-
ingness, on request, to immediately recognize and bar-
gain in good faith with the Union, and specify reasonable
times and places where Respondent will engage in such
bargaining, effective 5 October 1983, as exclusive collec-
tive-bargaining representative of its employees in the fol-
lowing appropriate unit concerning rates of pay, wages,
hours of employment, or other conditions of employ-
ment, and with respect to the working hours and work
shift of Thanh Vinh Luu, if still employed at the time of
bargaining and, if an understanding is reached, embody
the understanding in a signed agreement:
All full-time and regular part-time production and
maintenance employees at its South San Francisco,
California facility, excluding all sales employees,
office clerical employees, guards and supervisors as
defined in the Act.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order and the terms and conditions of em-
ployment of employees as of 5 October 1983 and thereaf-
ter.
(e) Post at its South San Francisco, California facility,
copies of the attached notice marked "Appendix
B.""Copies of the notice, on forms provided by the Re-
gional Director for Region 20, after being signed by the
Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
In view of the above disposition wherein I have found
that a Board-conducted election can no longer be expect-
ed to reasonably reflect the uncoerced desire of the unit
employees as once expressed, and having recommended
that the Board therefore issue a bargaining order to
remedy Respondent's unfair labor practices, IT IS ALSO
FURTHER ORDERED that the Union's petition for certifica-
tion of representative in Case 20-RC-15679 be dismissed.
'9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board?'
BAKERS OF PARIS 1013
APPENDIX A
It has been 2 weeks now since we met, and I want to
thank you to be here again.
As you know I'm here because it is very important to
me and for the success of our company that you vote
"no" on December 9. Today I will give you more infor-
mation about job security in this company and about
union fees and other restrictive rules.
I. JOB SECURITY
It's time to look into out past, and see what kind of
benefits our small company gave you without anyone
having to pay union dues.
First let me remain [sic] you the commitment we have
had with the Vietnamese community: Out of the 40
people working in this commissary, 27 of them—or the
majority, are Vietnamese—and let me ask you this, how
many jobs did the union provide for you community?
Hiring is only part of our commitment. We also train
the individuals that we hire. Did you know that besides
our French bakers, only 3 of you had experience as
bakers before they worked here: There [sic] were Mary,
Luong and An.
In France it takes a minimum of 4 years to become a
baker. This is to say that your training is not over and
that in the coming years we still have more to give you
in order to achieve what we have started together. And
let me ask you this again: Do you think unionized bak-
eries hire people without experience?
Salary wise, Bakers of Paris has in the past given gen-
eral increases once a year in January—in addition you
receive a bonus in December. Since January 1982,
Bakers of Paris has provided wage increases (including
bonus) which average 42% in the bread line, 29% in the
pastry line and 17% in the packaging line. Compare that
with a 6% increase in the union contract.
3—Average wage in January 1982, in the 3 lines was
$5.04. In December 1983 including the coming bonus the
average salary in the bread line is $7.20, in the viennoi-
serie line $6.51 and $5.90 for the packaging.
—Bonus will average about 10% of your salary—let's
take an example. If someone has earned about $800 per
month for the past 12 months (or $9,600) then this
person should get a bonus of about $1,000.
Job security is also an area where we have the most
outstanding record. No employee has been laid off since
we started. Indeed employment has increased by 59% or
13 persons over the past year. Can the union tell you
that none of its members has been laid off?
In addition this company has chosen to favor employ-
ment over automation, and that is, unlike, all other indus-
trial bakeries: Let's take an example of what I'm saying.
-At the bread line we have a productivity of about 150
loaves per hour and per man. An industrial plant with a
fully automated line can produce 2,000 loaves an hour
with only one man. We have nothing in common with
the industrial unionized bakeries, and we have no inten-
tion to use their fully automated lines, and never had.
II. UNION DUES, FEES, ASSESSMENT & RESTRICTIVE
RULES
However, as you know since the month of August, we
are going to purchase new equipment, and I would like
to tell you what it means to you. First thing there will be
NO layoff as the result of our new equipment. Second
what we want to achieve is to improve quality and pro-
ductivity—at the bread line our goals is [sic] to raise pro-
ductivity from 150 loaves per man hour to 200 loaves.
Part of this gain in productivity should mean cost saving.
This will be returned to you in the form of an increase in
salary as we told you last August.
Now that I have told you some of the benefits of
working at Bakers of Paris, I would like to let you know
more about union dues and restrictive rules.
A. Dues
I understand that the dues are over $240 per year, and
you have no choice—you got to pay—and they can be
increased by the union. As a matter of fact the union has
good reason to want to do so—last year this union had a
deficit of $21,000 and they must need more money.
B. Fines, Assessment
Last year the union collected an extra $30,000 from its
members and fees, fines and assessment. And as I told
you they still had a deficit. The way you get fine[d], is if
you do not obey their rule. Did the union tell you about
their rules? If not, what are they hiding from you?
Let me just mention a few of them:
Union Meeting: You must attend all union meet-
ings or you may have to pay a fine.
Dues Payments: If you don't pay your dues, the
union can force us to fire you.
Weekly timesheets: The union can ask you to
complete weekly timesheets. If you don't the first
time you'll pay $25, second mistake $50, and the
third time you get expelled.
These are only a few of the rules that you have to live
with if the union were to get here. And if you want
more information, I'll give you a copy of their bylaws. I
understand also that the union may have talked to you
about vacations and about 8 hour days. I think there are
two things you should know.
First, the union can not guarantee you anything in
good faith. And remember, unions change their mind.
They said they would not allow bread deliveries on
Wednesdays and Sundays—well they came back with an-
other story. Starting January 1st they will allow the de-
liveries 7 days a week. You just can't trust the union.
Second, I want you to know that I fully appreciate that
there are benefits we don't provide here. We are a new
company and a small one. We aren't perfect. But please
believe that I have heard what you've been saying. I
wish I could talk to you about plans for the future. But
the law is very strict in preventing me from making
promises Instead I ask you to trust me, as I have been
trusting you all the way along.
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the past Bakers of Paris has not only provided job
security, but also trained you to become a professional
baker. And when you look at the freedom you enjoy
here, you will find many reasons to vote against the
union on December 9 by voting "NO."
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all the parties participated, the Na-
ticinal Labor Relations Board has found that Bakers of
Paris, Inc. has violated the National Labor Relations
Act. We have been ordered to post this notice and to
abide by its terms.
The National Labor Relations Act gives all employees
these rights.
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives
of their own chosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with, re-
strains, or coerces you with respect to these rights. More
Specifically.
WE WILL NOT coercively interrogate you regarding
your own or other employees' union activities or sympa-
thies or whether any of you have executed union mem-
bership application or authorization cards for Bakery,
Confectionery & Tobacco Workers International Union,
Local No. 24; AFL-CIO-CLC, which in this notice is
abbreviated as "the Union," or membership application
or authorization cards for any other labor organization.
WE WILL NOT threaten you with layoff, plant closure,
or changes in your working conditions or wages if you
engage in union activities or support the Union.
WE WILL NOT grant you longer work breaks from
working time as an attempt to weaken or eliminate your
support of the Union, however, in making this assurance
we are not authorized to withdraw any preexisting bene-
fit which you now enjoy.
WE WILL NOT grant you wage increases an an attempt
to weaken or eliminate your support of the Union, how-
ever, in making this assurance we are not authorized to
withdraw any preexisting benefit which you now enjoy.
WE WILL NOT promise you wage increases in an at-
tempt to weaken or eliminate your support of the Union.
WE WILL NOT promise any of you job promotions in
an attempt to weaken or eliminate your support of the
Union.
WE WILL NOT withhold, nor will we threaten to with-
hold, future wage increases from you which, in the ordi-
nary course of business would have been granted at vari-
ous future times, including the future timespan of 2 to 5
years, and which in the course of the National Labor Re-
lations Board trial was stated during a meeting of em-
ployees occurring on 13 July 1984 as the length of time
that it could possibly take to conclude this litigation.
WE WILL NOT discriminate against you by discharging
you or changing your wages, hours, or other terms and
conditions of employment because you are members of
the Union or because you support the Union, for the
purpose of attempting to discourage you from supporting
the Union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL NOT refuse to recognize and bargain with
Bakers, Confectionery & Tobacco Workers International
Union, Local No. 24, AFL-CIO-CLC, again called the
Union, as your exclusive collective-bargaining represent-
ative with respect to pay, wages, hours of employment,
and other terms and conditions of employment, includ-
ing, if applicable, the working hours and work shift of
Thanh Vinh Luu.
WE WILL offer Chi Van Hoang immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, discharging,
if necessary, any replacement, without prejudice to his
seniority or any other rights or privileged previously en-
joyed, and WE WILL make him whole for any loss of
earnings or other benefits resulting from our discrimina-
tory conduct against him, plus interest.
WE WILL remove any reference to this discharge of
Chi from our files, and notify him in writing that this has
been done and that the discharge will not be used in any
way as a basis for future personnel action against him.
WE WILL, forthwith, notify the Union of our immedi-
ate willingness to recognize and bargain collectively
with the Union as your exclusive representative, which
bargaining will be retroactive to 5 October 1983 in the
appropriate bargaining unit as follows:
All full-time and regular part-time production and
maintenance employees employed by us at our
South San Francisco facility, but excluding all sales
employees, office clerical employees, guards and su-
pervisors as defined in the National Labor Relations
Act.
BAKERS OF PARIS, INC.