J & G Wall Baking Co, Inc

National Labor Relations Board - Board Decisions

Oct 31, 1984

272 N.L.R.B. 1008 (N.L.R.B. 1984)

1008
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J & G Wall Baking Co, Inc and Bakery, Confec
tionery and Tobacco Workers' International
Union of America, Local No 85 Cases 20-CA-
17389 and 20-CA-17643
31 October 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN HUNTER AND
DENNIS
On 19 July 1983 , Administrative Law Judge
Richard D Taplitz issued the attached decision
The Respondent filed exceptions and a supporting
brief and the General Counsel filed a brief in sup
port of the judge s decision
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 1 and
conclusions 2 and to adopt the recommended Order
as modified 3
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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 In view of our agreement with the judge s finding that a bargaining
order is warranted to remedy the Respondent s extensive unfair labor
practices we find It unnecessary to pass on the judge s discussion find
trigs and conclusions concerning the 8(a)(5) allegation of the complaint
We shall therefore delete from the Order and notice the cease and desist
provisions pertaining to the alleged refusal to bargain We shall date the
Respondent s bargaining obligation as of 1 October 1982 when the Union
achieved majority status inasmuch as the Respondent s unfair labor prac
tices began the preceding month See Peaker Run Coal Co 228 NLRB
93 (1977)
In adopting the judge s conclusion that a bargaining order is warranted
in th s case Member Hunter does not rely on Concur Corp 261 NLRB
1189 (1982) cited by the judge See his concurring and dissenting opinion
in Conan- and the majority opinion in Gourmet Foods 270 NLRB 578
(1984) overruling Conair
3 Member Dennis agrees that a bargaining order is an appropriate
remedy under NLRB v Gissel Packing Co 395 U S 575 (1969) but she
does not adopt the judge s entire rationale particularly his definition of
Gissel category 1 cases and his reliance on Conair Corp 261 NLRB 1189
(1982) enf denied in pertinent part 721 F 2d 1355 (DC Cir 1983) See
Member Dennis concurring opinion in Gourmet Foods 270 NLRB 578
(1984)
In the Instant case the Respondent committed at least five hallmark
violations consisting of a threat of plant closure two threats of dis
charge the discharge of one of the two employee organizers and the
layoff of the other See NLRB v Jamaica Towing 632 F 2d 208 212-213
(2d Or 1980) In the unit of approximately 22 employees a total of 4
employees were directly affected by these highly coercive unfair labor
practices Additionally in view of the small size of the unit the discharge
and layoff of the two leading union adherents was likely to have had a
profound Impact on all employees
The Respondent s hallmark violations of pervasive effect justify a bar
gaining order absent significant mitigating circumstances Id at 212-215
Contrary to the Respondent s contention Member Dennis finds that the
resignation of General Manager Nickel is entitled to little weight It
alone does not constitute a change in management to one which gives
genuine and sincere assurances to the work force of non Interference by
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent J & G Wall Baking Co Inc Sacra
mento California its officers agents successors
and assigns shall take the action set forth in the
Order as modified
1 Delete paragraph 1(c) and reletter the subse
quent paragraph J
2 Substitute the following for paragraph 2(e)
(e) On request bargain with the Union as the
exclusive representative of the employees in the
following appropriate unit concerning terms and
conditions of employment and if an understanding
is reached embody the understanding in a signed
agreement )
All production workers wrppers shippers
loaders and sanitation workers excluding all
truck drivers clerical workers maintenance
mechanics ' guards and supervisors as defined
in the Act
3 Substitute the attached notice for that of the
administrative law judge
the employer Id at 215 To the contrary the Respondent committed a
hallmark violation after Nickel s resignation Finally the 2 year passage
of time between the events of this case and our decision is regrettable
but unavoidable and does not by itself warrant withholding a bargaining
order Accordingly for the above reasons Member Dennis joins her col
leagues in issuing a bargaining order
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT discharge or otherwise discrimi
nate against any employee for engaging in activity
on behalf of Bakery Confectionery and Tobacco
Workers International Union of America Local
No 85 or any other union
WE WILL NOT create the impression that the
union activity of our employees is under surveil
lance coercively interrogate employees concerning
union activity threaten to close if our employees
select a union to represent them solicit grievances
from employees and explicitly or implicitly promise
to remedy them in order to induce employees to
reject the Union ask any employee to quit because
272 NLRB No 157
J & G WALL BAKING CO 1009
of his or her union activity threaten to discharge
any employee because of his or her union activity
or inform employees that wage increases are being
withheld because of the presence of the Union
WE WILL NOT any like or related manner inter
fere with restrain or coerce employees in the exer
cise of the rights guaranteed them by Section 7 of
the Act
WE WILL offer full reinstatement to Scott Frick
with backpay plus interest
WE WILL make Marla Peletta whole for her
layoff of 17 through 25 January 1983 by paying
her backpay plus interest
WE WILL expunge from our files any reference
to the 9 September 1982 discharge of Scott Frick
and the 17 through 25 January 1983 layoff of
Marla Peletta and notify them in writing that that
has been done and that evidence of the discharge
and layoff will not be used as a basis for future per
sonnel action against them
WE WILL on request bargain with the Union as
the exclusive representative of the employees in the
following appropriate unit concerning terms and
conditions of employment and if an understanding
is reached embody the understanding in a signed
agreement
All production workers wrappers shippers
loaders and sanitation workers excluding all
truck drivers clerical workers maintenance
mechanics guards and supervisors as defined
in the Act
J & G WALL BAKING CO INC
DECISION
STATEMENT OF THE CASE
RICHARD D TAPLITZ Administrative Law Judge
This case was tried in Sacramento California on March
22 23 and 24 1983 The charge and first amended
charge in Case 20-CA-17389 were filed respectively on
September 10 and 16 1982 by Bakery Confectionery
and Tobacco Workers International Union of America
Local 85 (the Union) A complaint issued thereon on Oc
tober 29 1982 alleging that J & G Wall Baking Co
Inc (Respondent or the Company) violated Section
8(a)(1) (3) and (5) of the National Labor Relations Act
The charge first amended charge second amended
charge and third amended charge in Case 20-CA-17643
were filed respectively on January 14 19 and 26 and
February 17 1983 by the Union A complaint issued in
that case on February 23 1983 alleging that Respondent
violated Section 8(a)(1) and (3) of the Act By order
dated February 23 1983 the two cases were consolidat
ed for hearing The complaints were further amended at
the hearing
Issues
The primary issues are
1 Whether Respondent violated Section 8(a)(1) of the
Act by engaging in a number of acts that interfered with
the right of its employees to organize including the so
licitation of complaints and the promise of benefits cre
ating the impression of surveillance interrogating em
ployees about their own union conduct and the union
conduct of other employees threatening to discharge
employees because of union conduct telling employees
to quit because of their union conduct threatening to
close the plant if the employees organized assisting in
the circulation of an antiunion petition and telling em
ployees that there would be no pay raise because of the
Union
2 Whether Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Scott Frick and laying off
Marla Peletta because of their union activities
3 Whether Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to recognize and bargain with
the Union after it obtained authorization cards from a
majority of the employees in an appropriate unit
All parties were given full opportunity to participate
to introduce relevant evidence to examine and cross ex
amine witnesses to argue orally and to file briefs Briefs
which have been carefully considered were filed on
behalf of the General Counsel and Respondent
On the entire record of the case and from my observa
tion of the witnesses and their demeanor I make the fol
lowing
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent a California corporation , with an office
and place of business in Sacramento California is en
gaged in the business of manufacturing and freezing raw
bakery dough for food distributors During the calendar
year ending December 31 1981 Respondent sold and
shipped from its Sacramento California facility products
valued in excess of $50 000 directly to points outside of
California The complaint alleges the answer admits and
I find that Respondent is an employer engaged in com
merce within the meaning of Section 2(6) and (7) of the
Act
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background and the Organizational Drive
John Wall is the president of Respondent corporation
and together with his wife is the owner of that corpora
tion Respondent began its frozen dough business in Sac
ramento in 1980 Prior to that time John Wall was the
owner of a bakery in New Jersey where the employees
were represented by a union John Wall opened the Sac
ramento facility as a nonunion operation and Respondent
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has not recognized any union as a representative of its
employees John Wall s attitude toward unions was indi
cated by a remark made to employee Ken Ludwig
toward the end of 1981 or the beginning of 1982 John
Wall said that he would shut down if the union ever
came in
By September 1 1982 two of Respondent s employ
ees Scott Frick and Marla Peletta contacted the Union
and sought representation for Respondent s 20 odd em
ployees The Union s assistant business agent James
Mauer gave them authorization cards and told them that
they would have to get the cards signed by the employ
ees before the Union could represent them Frick and
Peletta immediately began soliciting employees to sign
the cards Frick was discharged about a week later Pe
letta continued to seek signatures for the Union On
about January 17 1983 she lost a week s work under cir
cumstances that the General Counsel contends was a
layoff Both the discharge and the asserted layoff are dis
cussed in detail in separate sections below
B The Unlawful Conduct Attributed to Respondents
General Manager Douglas Nickel
1 The facts
Douglas Nickel was Respondent s general manager
from about the time the Sacramento facility opened until
December 31 1982 when he left Respondent s employ
He had and exercised the authority to hire and fire em
ployees The complaint alleges the answer admits and I
find that at the time of the alleged unfair labor practices
he was an agent of Respondent and a supervisor within
the meaning of the Act
Frick and Peletta began soliciting employees to sign
authorization cards on about September 1 1982 By Sep
tember 8 1982 at the latest Respondent learned not
only of the union activity but of Frick s and Peletta s
part herein On the morning of August 8 Frick told
NIckel that he (Frick) and Peletta had gone to the
Union 2 Later that morning the Union s assistant business
manager James Mauer spoke on the telephone to John
Wall and asked Wall to recognize the Union as the rep
resentative of Respondent s employees
Sometime thereafter John Wall asked James Wineland
who at the time was a supervisor of sanitation to talk to
Peletta to find out what he could about the Union and to
report back to him There is no evidence that Wineland
spoke to the employees about the Union However Gen
' This finding is based on the testimony of Ludwig John Wall in his
testimony denied that he ever had a conversation with Ludwig concern
mg what might happen if the union came in As Is set forth in more detail
below I believe that John Wall was less than candid in much of his testi
mony Particularly with regard to the reasons that he gave for the dis
charge of Scott Frick his testimony was often Internally inconsistent and
evasive His demeanor while he testified did not enhance his believability
I credit Ludwig and not John Wall This incident occurred more than 6
months before the filing of the original charge and is not alleged as a vio
'anon of the Act However It may be considered in placing into context
actions of Respondent that occurred within 6 months of the filing of the
charge that are cognizable under Sec 10(3) of the Act Machinists Local
1424 (Bryan Mfg Co ) v NLRB 362 U S 411 416 (1960)
Nickel credibly averred that that conversation occurred on the morn
mg of August 8 Frick was somewhat vague in his testimony as to the
date
eral Manager Nickel did speak to all of the employees on
the day shift about the Union He did so after John Wall
asked him to find out who was with the Company and
who was not Nickel acknowledged in his testimony that
he spoke to everyone on the day crew about their union
activities Some of the employees filled in the details of
those conversations
Roger Hensley one of Respondent s employees signed
a union authorization card on September 3 1982 On
about September 8 or 9 Nickel spoke to him while he
was leaving the packaging area 3 Nickel said that he
knew that Hensley had signed a card and that all the
night shift crew had signed Nickel told Hensley to be
honest with him and asked whether he did sign Hensley
acknowledged that he had In the course of the conver
sation Nickel said that if the Union came in all they had
to do was shut the doors Nickel asked whether Hensley
had any complaints against the Company They dis
cussed weekend work as well as problems presented by a
supervisor that Hensley did not like Nickel asked
whether Hensley was satisfied with his wages and Hens
ley replied that he had not been there long enough to
have any complaints 4
A few days later Hensley was reading union material
while eating lunch in his car Nickel walked up to him
and said that he had nothing against Hensley reading the
material He then asked Hensley whether Scott Frick
had given it to him
On September 9 1982 Nickel spoke to employee Gary
M Riordan outside the bakery He asked Riordan if
Riordan knew what was going on around the bakery
with the Union Riordan said that he did not Nickel
asked Riordan whether Riordan had signed a card and
Riordan replied that he did not know anything about it
Nickel asked Riordan whether Frick had talked to him
about the Union and Riordan replied in the negative
On September 8 1982 Marla Peletta overheard Nickel
telling Frick that Frick was fired Shortly thereafter
Nickel came over to her and said How can you do
this9 She asked him what he meant and he said About
this union She replied that she did not know anything
about the Union He said Come on Marla I know you
and Scott went down there together I bent over
backwards for you and you stab me in the back Thanks
a lot And the Walls are all over me because of this
union business The following day September 9 1982
Nickel had a long conversation with Peletta in the
bakery He asked her if she was still going to pursue the
union matter and she said she was He then asked her to
quit the bakery She asked him if it was because of her
work and he said that was not and that it was because
she threw a wrench in a circle of friends He again asked
3 Hensley testified this conversation took place a few days after he
signed the card From the sequence of events set forth above It appears
that Hensley s recollection was a few days off and that the conversation
actually occurred on about September 8 or 9
These findings are based on the credited testimony of Hensley
Nickel acknowledged in his testimony that he did ask Hensley whether
Hensley and other employees had signed union cards He averred that he
did not recall saying anything about the possibility of the employees
being fired if the Union came in but that it was possisble that he did
make such a statement
3 & G WALL BAKING CO 1011
her to quit He told her that John Wall had a union in
New York and there was not going to be a union at the
Sacramento bakery He said that he would fire everyone
who had anything to do with the Union and that he
would hire new people He told her that he no longer
had any respect for her that the matter could not be set
tied between them and that the Walls told him I told
you so because he was the one who had asked them to
rehire her when she had left previously Once again he
asked her to quit and she said that she would not 5
Joseph Sunderland was employed by the Company as
a production worker on September 9 1982 A few days
later Nickel asked him if he had heard anything around
the shop about the Union He replied that he did not
Nickel then said that the Company would not go union
and if the employees tried to go union the Company was
going to stop it Nickel also said that anyone who
wanted to try to go union would be fired
As is described more fully below in early October
1982 Sunderland solicited employees to sign an antiunion
petition Nickel asked him who had signed that petition
and he replied that everyone had signed except for Pe
letta
2 Analysis and conclusions
About September 8 or 9 Respondent s general manag
er Nickel told employee Hensley that he (Nickel) knew
that Hensley had signed a card and that all the night
shift crew had signed Hensley s union activities had not
been open and Nickel did not say anything about how he
obtained the information Hensley could reasonably have
assumed from Nickel s remark that the union activity of
the employees had been placed under surveillance I find
that Respondent through Nickel violated Section 8(a)(1)
of the Act by creating the impression that the union ac
tivity of its employees was under surveillance Marines
Memorial Assn 261 NLRB 1357 1362 (1982) Fashion
time Ltd 256 NLRB 403 407 (1981) Maxwells Plum
256 NLRB 211 216 (1981) Nickel told Hensley to be
honest with him and asked him whether he did sign Par
ticularly in view of the other unfair labor practices at
trtbutable to Nickel which are discussed herein that was
a part of a general pattern of unlawful conduct and con
stituted coercive interogation in violation of Section
8(a)(1) of the Act See Marines Memorial Assn supra at
1362 and cases cited therein Nickel told Hensley that if
the Union came in all Respondent had to do was to shut
the doors That constituted a threat to close if the em
ployees selected the Union to represent them and consti
tuted an impermissible threat of economic reprisal to be
taken solely on Respondent s own volition It therefore
was a violation of Section 8(a)(1) of the Act NLRB v
Gissel Packaging Co 395 U S 575 617-620 (1969) Ma
rules Memorial Assn supra at 1362 Anderson Cottonwood
Concrete Products 246 NLRB 1090 1095 (1979) In the
context pf that conversation Nickel asked Hensley
5 These findings are based on the credited testimony of Peletta Nickel
acknowledged in his testimony that he did ask her to quit He averred
that he did not recall saying anything about the possibilty of employees
being fired if the Union came in but that it was possible that he did make
such statement
whether Hensley had complaints against the Company
That constituted a solicitation of grievances Such a so
licitation during a union organizational drive carries with
it an inference that the employer is implicitly promising
to remedy those grievances That inference is rebuttable
by the employer but the employer has the burden of re
butting it In the instant case the Inference is unrebutted
I find that by soliciting grievances from Hensley Nickel
was implicitly promising to remedy them in order to
induce him to reject the Union and that the solicitation
of gnevances violated Section 8(a)(1) of the Act Ma
rines Memorial Assn supra at 1362-63 and cases cited
About September 9 1982 Nickel asked employee
Riordan whether Riordan knew what was going on
around the bakery with the Union and whether Riordan
had signed a union card That constituted coercive inter
rogation by Nickel concerning Riordan s and other em
ployees union activities in violation of Section 8(a)(1) of
the Act
On September 8 1982 Nickel accused employee
Marla Peletta of stabbing him in the back by bringing in
the Union The following day he coercively interrogated
her in violation of Section 8(a)(1) of the Act by asking
her if she was still going to pursue the union matter In
the context of telling her that she had thrown a wrench
in the circle of friends he asked her to quit her employ
ment because of her union activity That request for her
to quit interfered with her right under Section 7 of the
Act to engage in union activity and therefore violated
Section 8(a)(1) of the Act In the same conversation
Nickel said that he would fire everyone who had any
thing to do with the Union That was a threat to dis
charge employees because of union activity and consti
tuted a clear violation of Section 8(a)(1) of the Act
On September 9 1982 Nickel coercively interrogated
employee Joseph Sunderland by asking Sunderland
whether he had heard anything around the shop about
the Union Nickel said that if employees tried to go
union the Company was going to stop it and that any
one who wanted to try to go union would be fired That
threat of discharge for union activity constituted a viola
non of Section 8(a)(1) of the Act
C The Allegation That Respondent Told Employees
That There Would Be No Pay Raise Because of the
Union
1 The facts
After John Wall became aware of the Union s organi
zational activity he sought advice from Selby Lewis Jr
a representative of the California Association of Employ
ers Lewis testified The question came up about wage
increases because it was time that some people should be
looked at evidently And I told Mr Wall and Mr Nickel
that it was a Board s posture that had been for many
many years and absent consent and agreement from the
union there could be no changes in wages hours or
working conditions during the time that the organizing
drive was taking place Lewis told Wall that unless an
ironclad guarantee of a wage raise had been made to an
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee before the organizing began Wall could not
make any changes in wages
Sometime in October Respondent s production manag
er Steven Harns 6 attended management meetings where
wage increases were discussed He told John Wall that
employees were asking about wage increases John Wall
told him that there would be no wage increases given
because there was a wage freeze due to their situation
and that it would be discriminatory to give raises At one
of the management meetings Ken Ludwig who for part
of his employment was an assistant night crew manager
asked John Wall why they were not getting salary in
creases and there were not any raises Wall told him that
the Federal government had put a freeze on salaries
hiring and firing Wall told him that when the employ
ees asked for union representation the Federal Govern
ment steps in and freezes hiring firing and wages
Sometime in October 1982 employee James Wineland
asked Supervisor Harris for a raise Harris replied that
John Wall could not give a raise because the Union and
the Government had put a freeze on all wages hiring
and firing 7
After employee Gary Riordan had signed a union
card he heard a rumor that there would not be any
wage increases He asked his supervisor Steven Harris if
there was a wage freeze Harris replied that there was
and that the Union and the Government put a freeze on
all wages hiring and firing until it was all over
News spread throughout the plant that there were to
be no wage increases because of the Union Employee
Joseph Sunderland heard that news and asked Nickel
why there was a pay freeze Nickel told him that that
was the way things were and that was the way John
Wall was going to handle things Sunderland who had
previously signed a union authorization card then pre
pared and circulated an antiunion petition When he
asked employees to sign the petition he told them that he
hoped it would get the freeze over with He told em
ployee Robert Ludwig that the petition would allow the
employees to get a raise and that the Union and the
Government would not let John Wall give them a raise
He asked James Wineland to sign the petition to get the
Union out so that they could get a raise
About the time that Sunderland was passing out the
antiunion petition Sunderland together with employees
Gary Riordan and Bill Conrado went to the union hall
and asked for their cards back Riordan and Conrado
both credibly testified that they took that action because
they thought if the Union was out it would help them
get the wage increase
2 Analysis and conclusions
Respondent through its supervisor Steven Harris told
employees that they would get no wage increases be
cause of a wage freeze and that the wage freeze was re
quired by the Union and the Government in light of the
6 It was stipulated and I find that Harris was a supervisor within the
meaning of the Act
7 This finding is based on the credited testimony of \Vineland Harris
acknowledged in his testimony that he told Sunderland that there was a
Federal wage freeze because of the NLRB charge and that wages were
frozen until the situation was resolved
union activity In effect Respondent was blaming the
Union for causing a wage freeze and was misrepresenting
to the employees what the law was The fact that Re
spondent may have received some incomplete or inaccu
rate advice from its labor relations representative does
not constitute a defense As the Board held in adopting
the administrative law judge s decision in McCormick
Long Meadows Stone Co 158 NLRB 1237 1242 (1966)
An employer s legal duty in deciding whether to
grant benefits while a representation case is pending
is to determine that question precisely as he would
if a union was not in the picture If the employer
would have granted the benefits because of eco
nomic circumstances unrelated to union organiza
tion the grant of those benefits will not violate the
Act On the other hand if the employer s course is
altered by virtue of the union s presence then the
employer has violated the Act and this is true
whether he confers benefits because of the union or
withholds them because of the union
The same principle of law applies during a union s or
ganizational campaign As the Board held in Famous
Barr Co 174 NLRB 770 (1969)
[A]n employer confronted with a union organiz
ing campaign should decide the question of granting
or withholding benefits as he would if a union were
not in the picture if his course of action in granting
or withholding benefits is prompted by the Union s
presence he violates the Act
See also Marines Memorial Assn supra In , Cutter Lab
oratories 221 NLRB 161 168 (1975) the Board held that
an employer did not violate the Act through the with
holding of a wage increase where on advice of counsel
the employer told employees that a wage increase would
be deferred to avoid the appearance of improper con
duct and that the raise was theirs and would be granted
retroactively regardless of the outcome of an election In
later cases the Board appears to conclude that an em
ployer does not violate the Act where he truthfully in
forms employees that the sole reason for his action in
postponing an increase for the duration of an election
campaign is to avoid the appearance that he seeks to
interfere in the election Smith & Smith Aircraft Co 264
NLRB 516 (1982) Progressive Supermarkets 259 NLRB
512 (1981)
In the instant case Respondent went well beyond tell
ing employees that it was postponing wage increases to
avoid the appearance that it was interfering with an or
ganizational campaign It affirmatively used the wage
freeze for antiunion propaganda by placing the onus of
that freeze on the Union 8 The impact of that action was
8 See Centre Engineering 253 NLRB 419 421 (1980) in which the
Board found a violation where a supervisor said that a planned raise
would not be given because the employer s hands were tied The Board
found that The statement naturally Impressed upon the employee that a
raise would have been received but for the union campaign
J & G WALL BAKING CO 1013
very substantial It resulted in an antiunion petition being
circulated and employees attempting to withdraw their
union authorizations in the hope of receiving a wage in
crease I find that Respondent violated Section 8(a)(1) of
the Act by informing employees that wage increases
were being withheld because of the presence of the
Union
D Respondent s Alleged Assistance in the Circulation
of the Antiunion Petition—Facts and Conclusions
On about November 8 or 9 Joseph Sunderland circu
lated the antiunion petition that is described above Sun
derland prepared a handwritten petition to withdraw
union support and he passed it around to employees
After some had signed it he asked Supervisor Nickel if
Nickel would give it to Laura Wan g to type up Later
John Wall returned the handwritten petition to Sunder
land and told him that the Company could not have any
thing to do with it
James Wineland testified that about the time that Sun
derland was passing out the antiunion petition he over
heard a conversation between Sunderland and Laura
Wall According to Wineland Sunderland was working
on a panning operation about 3 20 p m when Laura Wall
walked over to him and asked him whether he would
like to talk to the night crew According to Wmeland
Laura Wall took over Sunderland s panning duties while
Sunderland walked into the breakroom where he asked
the night crew personnel whether they wanted to sign
the petition to get the Union out so that they could all
get a raise That was about 10 minutes before the end of
Sunderland s shift and it was very unusual for an em
ployee to be relieved just before a shift ended
Sunderland testified that it was he who asked Laura
Wall for relief so that he could talk to the night crew
that she did not ask what he wanted the time off for that
she said she needed some excuse that he replied that he
had to go to the bathroom and that she then relieved
him Sunderland testified that Laura Wall did not know
what he was getting off for Laura Wall in her testimony
acknowledged that she did relieve Sunderland at his ma
chine She averred that Sunderland asked her if he could
go to the men s room and that she took over for him
She also averred that nothing was said about a petition
Sunderland testified on behalf of the General Counsel
and his testimony was quite harmful to Respondent He
credibly testified that Nickel told him that anybody who
wanted to try to go union would be fired I credit his
assertion that it was he who asked Laura Wall for time
off I believe that Wmeland was mistaken with regard to
his testimony that it was Laura Wall who asked Sunder
land whether Sunderland wanted to talk to the night
crew Apparently Sunderland did not think that Laura
Wall was helping him in getting the petition signed He
averred she didn t know what I was getting off for
Though it was uncommon for anyone to ask for a break
Just 10 minutes before quitting time it was not uncom
mon for Laura Wall to fill in for employees who wanted
to take short breaks No other evidence was adduced re
9 Laura Wall is John Wall s daughter It was admitted and I find that
she was a supervisor within the meaning of the Act
lating to Laura Wall s assisting in the solicitation of em
ployees signatures on a petition to withdraw union au
thorization cards other than that relating to the 10
minute break for Sunderland My impression of Laura
Wall as she testified was that she was the type of person
who would be very considerate and helpful toward em
ployees with regard to any reasonable request I do not
believe the evidence is sufficient to establish that Laura
Wall had an improper motive in filling in for Sunderland
for that 10 minutes I shall therefore recommend that
paragraph 6(a) of the complaint as amended in Case 20-
CA-17643 be dismissed
E The Discharge of Scott Frick
1 The sequence of events
As is set forth above Frick and Peletta were the em
ployees who sought out the Union and who spearheaded
the organizational drive
Frick was hired by General Manager Douglas Nickel
on about November 16 1980 From then until his dis
charge on September 9 1982 Frick worked in a number
of different jobs throughout the bakery At the time of
his discharge he was working on a mixing machine
which required both strength and skill He received five
salary increases in 1981 and four more by August 1982
At the time of the discharge he was earning $7 75 an
hour which was appreciably higher than most other em
ployees
Though his progress with the Company and his wage
increases indicated that Respondent considered him a
good employee Frick came close to losing his job short
ly before he became involved in union activity For some
time Respondent s president John Wall had been con
cerned about problems presented by employees spreading
rumors in the plant In mid to late August 1982 Frick
told Nickel that he had heard that Respondent was going
to lose a major account Nickel reported that to John
Wall and both Nickel and Wall asked Frick where he
had obtained his information Frick gave misleading an
swers because he feared that the employee who had
given him the information would be in difficulty if he
disclosed his name When John Wall learned that the ac
count was not going to be lost and that the information
Frick had given him was not accurate Wall decided to
discharge Frick He instructed his general manager
Nickel to fire Frick That occurred about two weeks
before Frick was actually discharged
' There is a sharp conflict between the testimony of
Nickel and John Wall as to what happened next Nickel
testified that he called John Wall and said that he was
having a very difficult time in discharging Frick" and
he asked Wall to allow Frick to stay Nickel considered
Frick to be a fairly good worker According to Nickel
Wall said Okay we will hang on to him " Wall in
° Though Frick and Nickel have different names they are full broth
ers
' Nickel averred that 2 or more weeks later Wall told him that he
thought Nickel was Just asking for a 2 week extension for Frick It ap
pears that Wall s remark was made after Frick was finally discharged
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect denied that he had cancelled his instructions to
discharge Frick According to Wall he simply decided
on September 1 to give Frick a week or two notice to
look for another job For the reasons set forth below I
credit Nickel and I do not credit John Wall I find that
John Wall reversed his decision to discharge Frick be
cause of the rumor incident and agreed to allow Frick to
remain in his employ
John Wall testified that the rumor incident triggered
the discharge and that nothing happened between that
incident arid the discharge to make him want to fire
Frick
Some extended comments are needed with regard to
my evaluation of the credibility of Nickel and Wall
Nickel testified at the trial in a manner that was adverse
to Respondent He gave an affidavit to a Board agent at
a time when he was still employed by Respondent as a
supervisor At the trial he recanted parts of that affidavit
and averred that statements made in the affidavit were
untrue He asserted that his testimony at the trial was the
truth In evaluating whether his testimony was based on
some sort of bias consideration must be given to a
number of conflicting pressures that Nickel was under
He not only held the position of general manager for Re
spondent he was engaged to be married to Laura Wall
the daughter of the owner of Respondent He also bore a
special relation to the two alleged discnminatees Scott
Frick and Marla Peletta Though Frick has a different
last name because of adoption he is the full brother of
Nickel Nickel and Peletta were close personal friends of
longstanding Nickel was a high level supervisor and was
about to become the owner s son in law He acknowl
edged in his testimony that he felt that his brother Frick
and his friend Peletta had stabbed him in the back by
going to the Union Nickel personally fired his brother
Frick He personally berated his friend Peletta and asked
her to quit He gave an affidavit to a Board agent which
he thought would protect the Company Perhaps the
conflicting pressures were too much for him because
much to the surprise of his fiancee he quit and left town
He came back for the trial in order to testify on behalf of
his brother and his friend It was apparent from observ
ing Nickel as he testified that he was under a good deal
of emotional strain However that strain did not under
mine his credibility His demeanor while he testified was
such as to make his assertions utterly convincing I be
lieve that he was telling the truth when he was on the
stand and I credit him
John Wall was not a convincing witness Neither his
demeanor nor the substance of his testimony inspired
confidence in his veracity In his initial testimony he
averred that the basic reason for firing Frick was that
Frick made bad dough Yet he acknowledged that he
did not take Frick off the mixing machine Further in his
testimony he averred that the bad dough was not the
main reason for the discharge but only one of the rea
sons In an affidavit he gave to the Board he said that
the reason he decided to terminate Frick was because
Frick was late for work In his testimony at the trial he
averred that Frick s being late for work was not one of
the reasons for the termination Later he averred that
Frick was discharged because of his attitude his bad
dough and the fact that he was late Still later in his tes
timony he averred that Frick was discharged because of
lateness poor attitude poor dough and because he
spread rumors around the plant He averred that the
rumor with regard to the loss of the customer actually
triggered the discharge and that the discharge would not
have taken place at the time and manner it did if it had
not been for that incident In an affidavit that John Wall
gave to the Board he did mention that Frick made up
rumors Yet the affidavit goes on to state that the reason
Wall decided to terminate Frick was because Frick was
late for work and because he used the telephone without
authorization The affidavit then states that the basic
reason Wall decided to terminate Frick was because he
mixed dough poorly Wall s constant shifting of the
grounds that he had for discharging Fnck did not en
hance his credibility 12 In sum where the testimony of
Nickel conflicts with that of John Wall I credit Nickel
Shortly after John Wall told Nickel that Frick could
remain as an employee Nickel told Frick what had hap
pened Frick said that he did not want to work there Just
because he was Nickel s brother Both Nickel and Laura
Wall spoke to Frick about Frick s intention to quit They
succeeded in talking him out of it In the course of the
conversation Laura Wall said that Frick was a very
good mixer and she was happy with his work They both
asked him to stay 13
On about September 7 1982 Nickel approached Frick
and asked him to smooth things over with John Wall
and to get things back near normal by apologizing to
Wall for the rumor incident Nickel said that he was
speaking as a brother and not as a supervisor and he
asked Frick not to use his name
The following morning September 8 1982 Frick
showed Nickel a handwritten copy of a telegram dated
September 7 1982 7 49 p m that he had already sent to
John Wall In the telegram Frick apologized for any nits
conduct on his part that caused Wall to terminate his
employment on September 1 1982 The telegram went
on to say that he did so on the advice of Nickel and he
did so under protest At that time Frick told Nickel of
his and Peletta s involvement with the Union
Later that morning John Wall called Nickel into his
office and showed him Frick s telegram 14 In the con
Respondent s payroll card record for Frick for the week of August
22-28 1982 shows that Frick was on vacation It also states Terminal
ed—Leaves mixing station while mixer is going Third Notice 2 wk
notice given John Wall who made the decision to discharge Frick and
who testified in detail with regard to the reasons for the discharge
averred that he had no Idea what that entry was about Wall was simply
not believable and the reliability of the Respondent s records regarding
Frick are put in serious question
3 These findings are based on the testimony of Nickel and Frick
Laura Wall testified that she recalled the conversation but she was not
certain what was said She averred that she could not say for sure wheth
er or not it was Frick who wanted to go and she and Nickel who were
urging him to stay Both Nickel and Frick were credible witnesses and
they appeared to have a better recollection of the meeting than did Laura
Wall
John Wall testified that he showed the telegram to Nickel as a
matter of curiosity and that he had no intention of firing Frick for that
telegram
J & G WALL BAKING CO 1015
versation that followed Nickel told Wall that Frick and
Peletta had gone to the Union but that they had decided
not to pursue it 15
Sometime on the morning of September 8 after he had
received the telegram from Frick John Wall received a
telephone call from Union Assistant Business Agent
James Mauer Mauer said that the Union had authoriza
tion cards and represented Respondent s employees He
said that the Union was willing to submit the cards for
third party verification John Wall replied that he did
not know about that and he would call back 16
After John Wall received the telephone call from the
Union he spoke to Nickel They discussed Frick and Pe
letta Wall told Nickel that he should have fired Frick
At that point Nickel went into the bakery and fired his
brother 11 As to the reason for the discharge Nickel tes
tified I fired my brother after I found out he had gone
to the union It was a combination of the telegram that I
was already fuming about and the fact that you know
John [Wall] was completely blown up out of the water
He told me before that I should have fired him a long
time ago and then when the Union did call all hell broke
loose Nickel also testified the telegram [from Frick]
did not appear to upset John [Wall] all that much it
did upset him but it wasn t a determining factor The de
termining factor was the call from the union and I was
already hot that the telegram came and I was double
hot because the guy told me he wasn t going to the
union and he did go to the union we got a call from
them saying they wanted to negotiate
When Nickel went into the bakery and fired Frick
John Wall was right behind him Wall told Nickel that
that was not the way to do it and that Frick could work
out the rest of the week Later that day Nickel told Wall
that Frick had done some damage to a former employer
by poking holes in a refrigeration line Sometime on
Wednesday September 8 John Wall told Nickel that
they could not afford to have Frick there swaying the
opinion of the people so that they were going to let him
go on Thursday at noon and pay him through Friday
That is what they did Nickel testified Scott [Frick]
5 This finding is based on the credited testimony of Nickel John Wall
averred that Nickel did not say anything about the Union I credit Nickel
over John Wall
is These findings are based in a large part on the testimony of Mauer
Mauer testified that during the conversation he read the text of a letter to
Wall in which the Union stated that Frick was chairman of the orgamz
mg committee Wall in his testimony denied that such a letter was read
to him On that matter I credit Wall The text of the letter which is
dated September 8 1982 refers to the telephone conversation that Mauer
had with Wall that morning It thus appears that the letter was written
after the conversation and that the text of the letter could not have been
read during the conversations The letter formally requested Respondent
to recognize the Union and it stated that Frick was the chairman of the
organizing committee Wall received the letter on September 9 On that
day Mauer once again called Wall on the telephone and asked for recog
ninon Wall said that he did not believe the Union represented the em
ployees and Mauer replied that the Union would have to do it the hard
way
" There is some confusion in the record as to when the decision to
fire Frtck was made On direct examination Nickel testified that Wall
spoke of firing Frick when he (Nickel) said that Frick had gone to the
Union Later Nickel expanded on his testimony and indicated that the
discussion of discharge occurred later that morning after the Union agent
called Wall In either case the discharge decision was made after Wall
had knowledge of Frick s union activity
was let go before the end of the week because Scott and
Marla [Peletta] at that time were talking to people about
the union telling them what the benefits would be and
like that and that is the reason Scott was let go on
Thursday 18
Sometime after Frick was discharged John Wall at
tended a management meeting with a number of supervi
sors including James Wineland At that meeting one of
the supervisors said that they knew Frick had started the
Union and that was why he was terminated
2 Analysis and conclusions
The controlling law is set forth in Wright Line 251
NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981)
cert denied 455 U S 989 (1982) in which the Board ap
plied the test of causation that had been articulated by
the Supreme Court in Mt Healthy Board of Education v
Doyle 429 U S 274 (1977) The Board held that to estab
lish a violation of Section 8(a)(3) of the Act which turns
on employer motivation the General Counsel was re
quired to make a prima facie showing sufficient to sup
port the inference that protected activity was a motivat
ing factor in the employer s decision The Board further
held that once the prima facie case was established the
burden shifted to the employer to demonstrate that the
same action would have taken place even in the absence
of the protected conduct
The Supreme Court has recently indicated its approval
of the Board s approach In NLRB v Transportation
Management Corp 462 U S 393 (1983) that Court held
As we understand the Board s decisions they
have consistently held that the unfair labor practice
consists of a discharge or other adverse action that
is based in whole or in part on union animus—or as
the Board now puts it that the employee s protect
ed conduct was a substantial or motivating factor in
the adverse action The General Counsel has the
burden of proving these elements under Sec 10(c)
But the Board s construction of the statute permits
an employer to avoid being adjudicated a violator
by showing what his actions would have been re
gardless of his forbiden motivation It extends to the
employer what the Board considers to be an affirm
alive defense but does not change or add to the ele
ments of the unfair labor practice that the General
Counsel has the burden of proving under Sec 10(c)
We assume that the Board could reasonably have
construed the Act in the manner insisted on by the
Court of Appeals We also assume that the adverse
action would have occurred in any event as not ob
viating a violation adjudication but as going only to
the permissible remedy in which event the burden
of proof could surely have been put on the employ
er The Board has instead chosen to recognize as it
insists it has done for many years what it designates
8 Where the testimony of Nickel and John Wall was in conflict with
regard to these matters I credit Nickel Frick testified that when Nickel
told him that he was fired Nickel specifically said that it was because of
the Union Nickel testified that he simply said You out buddy On
that point I believe that Nickel s recollection was more accurate
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as an affirmative defense that the employer has the
burden of substaming We are unprepared to hold
that this is an impermissible construction of the Act
[T]he Board s construction here while it may not
be required by the Act is at least permissible under
it and in these circumstances its position is
entitled to deference NLR B v Weingarten Inc
420 US 251 266-267 (1975) NLRB v Erie Re
sistor Corp 373 U S 221 236 (1963) [Fns omitted ]
The threshold question is therefore whether the Gen
eral Counsel has established by a preponderance of the
credible evidence that Frick s union activity was a sub
stantial or motivating factor in his discharge
The General Counsel has established the following
facts Frick was active on behalf of the Union He to
gether with another employee sought out the Union and
spearheaded the Union s organizational drive Respond
ent learned of Frick s union activity at the latest by the
morning of September 8 when Frick acknowledged to
Plant Manager Nickel that he (Frick) and Peletta went
to the Union Respondent harbored the type of antiunion
animus that would make it reasonable to believe that it
was motivated to discharge employees who engaged in
union activity Respondent demonstrated that antiunion
animus by creating the impression that the union activity
of its employees was under surveillance by coercively
interrogating employees concerning union activity by
threatening to close if its employees selected the Union
to represent them by soliciting grievances and implicitly
promising to remedy them in order to induce employees
to reject the Union by asking an employee to quit be
cause of her union activity by threatening to discharge
employees because of their union activity and by in
forming employees that wage increases were being with
held because of the presence of the Union The day after
Respondent learned of Frick s union activity he was dis
charged Nickel the plant manager who actually dis
charged Frick credibly testified in substance that a mo
tivating factor for the discharge was the union activity
At a subsequent supervisors meeting there was a frank
admission that Frick had started the Union and that was
why he was terminated Considering all those facts it is
clear that the General Counsel has established a power
ful prima facie case 19
The evidence adduced by Respondent falls far short of
establishing that Frick would have been discharged re
gardless of his union activity Respondent adduced evi
dence to indicate that the decision was made to dis
charge Frick even before Frick engaged in union activity
and that the effectuation of the discharge was delayed
for a few weeks in order to allow Frick time to find
other employment That assertion turns in large part on
the credibility of John Wall who averred that he told
Nickel to discharge Frick and then agreed to allow Frick
9 A prima facie case can be established on much less evidence than
was present in the instant case As the Board held in Associated Milk Pro
ducers 259 NLRB 1033 1035 (1982)
The elements of protected activity on the part of the discharged em
ployee employer knowledge of the protected activity and employer
animus toward the union taken together are sufficient to establish a
prima facie case of unlawful discharge
to remain on for a short time while he looked for an
other job Nickel testified that John Wall actually can
celed the decision to fire Frick I credit Nickel over
Frick Between the time that the decision to discharge
Frick was canceled and Frick s discharge Frick did not
engage in any misconduct which arguably could have
justified Wall to change his mind again and reinstate the
discharge decision The only evidence in the record with
regard to Frick s actions during that time period related
to his union activity
The General Counsel has established that a substantial
or motivating factor in the discharge was Frick s union
activity and the Respondent has not established that
Frick would have been discharged even if he had not en
gaged in union activity Indeed this is not even a dual
motive discharge situation Respondent had decided to
let Frick remain an employee in spite of past problems
The sole reason for the discharge was his union activity
That conclusion is buttressed by an analysis of John
Wall s testimony concerning the reasons for the dis
charge As is set forth above there were shifting reasons
for the discharge inconsistencies between testimony and
a prior affidavit internal inconsistencies within the testi
mony itself and inconsistent and unexplained company
records concerning the reasons for discharge It is also
supported by Nickel s credible testimony which indicated
that there was in effect an explosion of resentment
when John Wall heard from the Union
In sum I find that Respondent in violation of Section
8(a)(3) and (1) of the Act discharged Frick because of
his union activity
F The Layoff of Peletta
1 The sequence of events
Respondent hired Marla Peletta in May 1980 In May
1981 she quit to go to college She returned to Respond
ent s employ in July 1982
As is set forth above Peletta was one of the two key
union organizers They began their union activity on
about September 1 1982 and Respondent learned of that
activity on the morning of September 8 1982 when
Frick told Nickel that he and Peletta had brought in the
Union The following day Frick was discharged The
reasons advanced by Respondent for that discharge were
merely pretexts to conceal the real reason for the dis
charge and the real reason was Frick s union activity
On the day Frick was discharged Nickel asked Peletta
whether she was going to pursue her union activity
When she said that she was he said that he would fire
everyone who had anything to do with the Union He
told her that he no longer had any respect for her and he
asked her to quit From that time on Nickel s attitude
changed toward Peletta He constantly criticized her
work Prior to that time she and the other employees
had been assigned to variety of tasks From that time on
she was consistently assigned to tasks that the employees
considered most undesirable For days at a time she was
required to pick up rolls as they came out of a machine
where the machine had a bar across it that required
bending She was kept on a job related to Kaiser rolls
J & G WALL BAKING CO 1017
for long periods of time Nickel credibly testified that it
was better from morale if the employees were moved
around and that that practice was generally followed
but with Peletta he kept her on Kaiser rolls until it
became a joke among the management personnel He
averred that he assigned her more often than other em
ployees to the old Kaiser roll machine which was diffi
cult work 20 Nickel also credibly testified that at manag
ment meetings supervisors discussed what they could do
to get rid of Peletta
On January 3 1983 Peletta s arm began to swell while
she was working on a machine Her doctor diagnosed
the swelling as acute tendonitis and she was required to
take time off from work The doctor released her to
return to work on Friday January 14 On that day she
called the bakery and told Laura Wall that she could
come back to work that Monday January 17 1983
Laura Wall said that she would give the message to Pro
duction Manager Harris who was not in the bakery at
that time
On Monday January 17 Peletta reported to work at
6 45 a m Harris told her that he did not have any work
for her and that he would call her the following Friday
to tell her whether there would be any work the next
week 21 At that time Harris anticipated 3 days work for
that week In fact an order came in shortly thereafter
and there was 5 days work However Harris did not
call Peletta back that week Harris treatment of Peletta
was completely inconsistent with Respondent s prior
practices Respondent often worked a 3 day week and in
those cases the entire work force worked only those 3
days Group layoffs were common However other than
the layoff of Peletta individual layoffs were unkown 22
Harris did not keep his promise to call Peletta the fol
lowing Friday January 21 Instead Laura Wall called
her and told her to pick up her check 23
During the time that Peletta was only layoff status
Production Manager Steve Harris had a conversation
with James Wineland who at the time was a supervisor
of sanitation Wineland had worked for Respondent for
about a year and a half and during that entire time he
had not known of any single individual who had been
laid off when production was slow Wineland asked
Harris why Peletta was laid off Harris replied that they
did not need her Harris then said that he could lay her
off indefinitely and it would not be illegal
On January 19 1983 the first amended charge in Case
20-CA-17643 was filed That charge alleged in part that
Peletta was laid off because of her union activity A
copy of that charge was delivered to Respondent and
signed for by Laura Wall on Friday January 21 1983
20 Respondent s production manager Steven Harris testified in sub
stance that Peletta was not treated differently than any other employee I
credit Nickel and I do not credit Harris
2 Harris in his testimony acknowledged that he told Peletta that he
would call her when work was available Respondent s records show the
following entry for Peletta 1/17/83—Due to lack of work Marla was
laid off this week Was asked to keep in touch If we get some more
orders she 11 come back
22 After some equivocation John Wall testified that he did not know a
single employee who had been laid off for lack of work
23 Peletta told Laura Wall that she would come by to pick up the
check However she was unable to do so
Because Harris had not called her as she had promisd
to do on Friday January 21 and because Laura Wall
had told her to pick up her check Peletta thought she
had been discharged and she did not report for work on
January 24 On Tuesday January 25 1983 Peletta re
ceived a letter dated January 24 from John Wall which
stated
On January 17 1983 due to a lack of production
Steve Harris had told you to take the week off and
that he would call you on Friday the 21st of Janu
ary for the following week
We called you on Friday the 21st asking if you
were coming down to pick up your check You said
you were but never showed up
We now request a reason why you didn t report for
work on Monday January 24 1983 If there is no
reason please report to work immediately
Also please have a Doctor s Certificate stating that
you are able to return to work
When she received the letter Peletta called Respondent
and said that she had a dental appointment the following
day Wednesday January 26 but that she would report
the following day Peletta returned to work on January
27 and she has worked for Respondent since that time
2 Analysis and conclusions
The legal principles discussed above with regard to
Frick also apply to the layoff of Peletta
Peletta together with Frick sought out the Union and
spearheaded the Union s organizational drive Respond
ent learned of Peletta s union activity on September 8
1982 when Frick told Nickel that he and Peletta had
brought in the Union Respondent harbored the type of
union animus that would make it reasonable to believe
that it was motivated to take reprisals against employees
who engaged in union activity It demonstrated that
animus by engaging in the unfair labor practices detailed
above On September 9 Nickel coercively interrogated
her concerning her union activity and threatened to fire
everyone who had anything to do with the Union He
told her that he no longer had any respect for her and he
asked her to quit He assigned her to work that employ
ees considered undesireable until it became a joke among
the management personnel and he constantly criticized
her work At management meetings supervisors dis
cussed what they could do to get rid of Peletta Thus
Respondent s union animus was not only general it was
specifically directed against Peletta From January 4
through 14 1983 Peletta could not work because of an
arm injury On January 14 she notified Respondent that
she could come back to work on Monday January 17
However when she reported for work that day she was
told that there was no work for her In effect she was
laid off That layoff was completely inconsistent with
prior company policy It was the first time that any indi
vidual was laid off because of lack of work She was not
recalled on Wednesday January 19 when additional
work came into the bakery and the other employees
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were given a 5 day rather than a 3 day week She was
not called by her supervisor on that Friday as the super
visor had promised She was called and told that there
was a check for her While she was on layoff Produc
tion Manager Harris told James Wineland that the Corn
pany could lay Peletta off indefinitely and it would not
be illegal Shortly after the charge was filed alleging that
Peletta was laid off because of her union activity Peletta
was recalled to work She received the recall letter of
January 25 and could have reported for work on January
26 Because of a dental appointment she chose not to
report until January 27 1983 She was thus laid off from
January 17 through 25 1983 These facts are sufficient to
support a strong prima facie showing that Peletta was
laid off because of her union activity
Respondent s defense in substance is that during the
period of layoff it had no work for Peletta However
that had never been a justification in the past for Re
spondent to lay off individual employees It simply did
not engage in such a practice Even when additional un
expected work came into the bakery while Peletta was
on layoff Respondent did not call her to return The evi
dence is clear that Respondent from the time it learned
of her union activity wanted her to quit and was trying
to make life difficult for her The layoff device was
simply a ploy that Respondent used as part of its overall
effort to find a way to get rid of Peletta Viewing the
evidence as a whole the conclusion is unescapable that
Peletta was laid off solely because of her union activity
and that she would not have been laid off but for that
activity I find that Respondent in violation of Section
8(a)(3) and (1) of the Act laid off Peletta from January
17 through 25 1983 because of her union activity
G The Refusal to Bargain
1 The facts
The complaint alleges the answer admits and I find
that the following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
All production workers wrappers shippers loaders
and sanitation workers excluding all truck drivers
clerical workers maintenance mechanics guards
and supervisors as defined in the Act
The Union demanded recognition through Mauer s
phone call to John Wall on September 8 1982 That
demand was confirmed in writing on the following day
As of September 8 the Union had secured 10 authonza
tion cards from Respondent s employees Respondent s
payroll records show that on September 8 Respondent
employed 25 employees in the bargaining unit The
Union s claim that it represented a majority of employees
was therefore premature However the Union continued
its organizational activity By October 1 1982 the Union
had obtained 15 union authorization cards from employ
ees in the bargaining unit Respondent s payroll period
for the payroll period ending October 2 1982 shows 21
employees in the bargaining unit The name of one of the
employees who signed a card Mike Jinson does not
appear on that October 2 payroll list Nor does the name
Scott Frick As Frick s discharge has been found to be
unlawful he must be counted as an employee That
makes 22 employees for the week ending October 2
1982 Jinson s card cannot be counted because his name
does not appear on that list However that leaves 14
union authorization cards that correspond to 14 out of
the 22 names (21 plus Frick) on the pay oll That consti
tutes a majority of the employees in the bargaung unit
and I find that the Union did attain majority status on
October 1 1982 24
Respondent did not respond to the Union s September
8 and 9 demand for recognition at that time or at any
time thereafter
2 Analysis and conclusions
In NLRB v Gissel Packing Co 395 U S 575 613-615
(1969) the Supreme Court set forth three categories of
employer misconduct The first is in exceptional cases
where the unfair labor practices are outrageous and per
vasive to such an extent that their coercive effects
cannot be eliminated by the application of traditional
remedies with the result of that a fair and reliable elec
non cannot be had In such situations there is no need
to inquire into majority status on the basis of cards or
otherwise and the Board has issued a bargaining order
even where the union did not have a card majority
Conair Corp 261 NLRB 1189 (1982) Applying the rig
orous standard set forth by the Board in United Super
markets 261 NLRB 1291 (1982) I do not believe that
Respondent s conduct in this case falls in that category
The second category in which a bargaining order is
appropriate under the Gissel case is where the unlawflul
conduct is marked by less pervasive practiees which
nonetheless still have the tendency to undermine majon
ty strength and impede the election processes In such
situations there must be a showing that the union at one
point had majority status and the possibility of erasing
the effects of past practices and of ensuring a fair elec
ton (or a fair rerun) by the use of traditional remedies
though present is slight and that employee sentiment
once expressed through cards would on balance be
better protected by a bargaining order
The third category applies to minor or less extensive
unfair labor practices which because of their minimal
impact on the election machinery will not sustain a bar
gaining order
In the instant case Respondent violated Section 8(a)(1)
of the Act by creating the impression that the union ac
4 In its brief the General Counsel asserts that a majority was obtained
on October 13 1982 On that day the Union secured a 16th authorization
card Respondent s records for the weekly payroll period ending October
16 showed that there were 21 employees in the bargaining unit Frick
was not listed so the figure must be calculated at 22 Once again Jinson s
name does not appear on the payroll list so only 15 of the cards can be
counted That leaves a majority of 15 out of 22 employees
The following cards date as indicated were properly authenticated
and received in evidence Marla Peletta 9/3 Scott Frick 9/3 Roger A
Hensley 9/3 Wally F Diaz 9/4 Ron Steward 9/4 Robert Ludwig Jr
9/4 Gary Riordan 9/4 Bill S Conrado 9/4 Kevin Voyez 9/7 Mike
Jmson 9/7 Joseph Sunderland 9/20 John Erickson 9/24 James E Ma
chado 9/29 Tom Hopper 10/1 Kenneth J Flint 10/1 James 10/13
J & G WALL BAKING CO 1019
tivity of its employees was under surveillance by coer
cively interrogating employees concerning union activi
ty by threatening to close if the employees selected the
Union to represent them by soliciting grievances from
an employee and implicitly promising to remedy them in
order to induce the employees to reject the Union by
asking an employee to quit because of her union activity
by threatening to discharge employees because of their
union activities and by informing employees that wage
increases were being withheld because of the presence of
the Union In addition Respondent violated Section
8(a)(3) and (1) of the Act discharging one of the two key
union spokesmen because of his union activity and by
laying off the other key union spokesman because of her
union activity
Respondent s vio ations of the Act were so extensive
as to fall into the second Gissel criteria Land Printing
264 NLRB 369 (1982) R L White Co 262 NLRB 575
(1982) Ja Wex Sportswear 260 NLRB 1229 (1982) Grey
hound Food Management 258 NLRB 1293 (1981) Preci
mon Graphics 256 NLRB 381 (1981) enfd 681 F 2d 807
(3d Cir 1982) Jim Baker Trucking Co 241 NLRB 121
(1979) enfd 626 F 2d 866 (9th Cir 1980) Boston Pet
Supply 227 NLRB 1981 (1977)
In Vinyl Fab Industries 265 NLRB 1097 (1982) a
three member majority of the Board (Members Fanning
Jenkins and Zimmerman) found that a bargaining order
was warranted in the circumstances where an employer
engaged in violation sof Section 8(a)(1) of the Act which
were less extensive than Respondent s Referring to the
two member dissent (Chairman Van de Water and
Member Hunter) the majority stated that the dissent
seemed to hold that a bargaining order would be appro
pnate only when a company took action to implement its
threats In the instant case Respondent made a number of
very serious unlawful threats and then implemented some
of those threats with the discharge of one union spokes
man and the layoff of another Under any standard that
is applied the second Gissel criteria is met and a bargain
mg order is warranted
Respondent s actions (which included discharging and
laying off the union leaders threatening to discharge
union adherents threatening to close and blaming the
Union for its failure to give wage increases) certainly
had the tendency to undermine the Union s strength and
to impede the election process The Union did have ma
jonty status as expressed in authorization cards The pos
sibility of erasing the effects of the past practices and of
ensuring a fair election by the use of traditional remedies
is slight and employee sentiment that had been expressed
through cards would be better protected by a bargaining
order
Respondent argues that a bargaining order should not
be required because there was never an outstanding
union demand for recognition at a time when a majority
of employees in the bargaining unit had signed authonza
lion cards It is true that the Union made its demand at a
time when it did not have authorization cards from a ma
jonty of the employees and that the Union did not make
a new demand after it did achieve majority status How
ever Respondent s argument cannot prevail
In American Compressed Steel Corp 146 NLRB 1463
1470 (1964) enfd 343 F 2d 307 (DC Cir 1965) the
Board rejected such an argument In that case it was
held that the refusal to bargain was not based on the fact
that the union did not represent a majority at the time of
the demand but rather on the outright rejection of the
union s request without regard to the number of cards
held It was found that the reiteration of the demand in
light of such a refusal would have been futile The D C
Circuit enforced the Board s order holding that in such
circumstances at least where the union had an honest
but mistaken belief that it represented a majority at the
time of demand the continuing demand concept was ap
propnate The Board used a similar approach in Head
strom Co 223 NLRB 1409 (1976) enf denied 558 F 2d
1137 (3d Cir 1977) However in that case the Third Cir
cult refused to accept the Board s concept of continuing
demand and denied enforcement The Eighth Circuit
reached a similar result denying enforcement of the
Board s order in Arkansas Grain Corp 163 NLRB 625
(1967) enf denied 390 F 2d 824 (8th Cir 1968) In more
recent cases the Board has consistently required bargain
ing in situations where a union achieved majority after
making its demand in J P Stevens & Co 244 NLRB 407
(1979) enfd 668 F 2d 767 (4th Cir 1980) the Board held
that the union had made a valid continuing demand for
recognition sufficient to support a finding that the corn
pany violated Section 8(a)(5) and (1) of the Act by refus
ing to bargain with the union The Board dated the bar
gaining order as of the date the union established that a
majority of the unit employees designated and selected
the union as their representative In Warehouse Groceries
Management 256 NLRB 64 (1981) enfd 683 F 2d 418
(11th Cir 1982) the Board again dated the bargaining
order from the date on which the union acquired author
ization cards from a majority of the employees In Twin
County Trucking 259 NLRB 576 (1981) a union demand
recognition and only thereafter obtained authorization
cards from a majority of the employees The Board held
that the company s obligation to bargain dated from the
date on which it achieved majority status
In light of Respondent s violations of Section 8(a)(1)
and (3) of the Act it is reasonable to assume that any
reiteration of the Union s bargaining demand would have
been an exercise in futility The Board law appears clear
and I am bound by that law even where some of the cir
cult courts disagree with it IT Services 263 NLRB 1183
1182 (1982)
Moreover in the instant case a bargaining order would
be appropriate even if no violation of Section 8(a)(5) of
the Act had been alleged The bargaining order would
be required simply to remedy Respondent s extensive
violations of Section 8(a)(3) and (1) of the Act As the
Board held in Honda of Mineola 218 NLRB 486 (1975)
when dealing with a bargaining order that remedies vio
lawns separate and apart from Section 8(a)(5) of the
Act the continuing nature of the demand and the spe
cific date on which the Union achieved majority status
are irrelevant See also Scott s IGA Foodhner 223
NLRB 394 413 (1976) enfd 549 F 2d 805 (7th Cir
1977)
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum I find that a bargaining order agreed to the
date on which the Union obtained majority authorization
is warranted on two separate theories The first is that
the Union s demand for recognition was continuing and
became effective when the Union obtained authorization
cards from a majority of the employees in the unit The
second is that a bargaining order is needed to remedy the
serious violations of Section 8(a)(3) and (1) of the Act
committed by Respondent Those unfair labor practices
began at the time of the Union s demand for recognition
and continued on and after the Union became majority
representative 25
I find that Respondent violated Section 8(a)(5) and (1)
of the Act by failing and refusing to bargain with the
Union on and after October 1 1982
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III
above occurring in connection with the operations of
Respondent described in section I above have a close
common intimate and substantial relationship to trade
traffic and commerce among the several States and tend
to lead to labor disputes burdening and obstructing com
merce and the free flow of commerce
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I recommend that it be ordered to
cease and desist therefrom and to take certain affirma
tive action designed to effectuate the policies of the Act
Having found that Respondent discharged Frick in
violation of Section 8(a)(3) and (1) of the Act I recom
mend that Respondent be ordered to reinstate him and
make him whole for any loss of earnings resulting from
his discharge by payment to him of a sum of money
equal to the amount he normally would have earned as
wages and other benefits from October 9 1982 which
was the date of his discharge to the date on which rein
statement is offered less net earnings during that period
Having found that Respondent laid off Peletta from Jan
uary 17 through 25 1983 in violation of Section 8(a)(3)
and (1) of the Act I recommend that Respondent be or
dered to make her whole for any loss of earnings result
ing from that layoff by payment to her of a sum of
money equal to the amount she normally would have
earned as wages and other benefits during the time of
her layoff less net earnings during that period The
amount of backpay shall be computed in the manner set
forth in F W Woolworth Co 90 NLRB 289 (1950) with
interest thereon to be computed in the manner described
in Florida Steel Corp 231 NLRB 651 (1977) 26
25 As the Board held in Devon Gables Nursing Home 237 NLRB 775
777 (1978) enfd 615 F 2d 509 (9th Or 1980) the fact that cards are se
cured after an employer violates the Act does not necessarily indicate
that a fair election can be held As the Board stated unfair labor prac
tices can have a significant negative impact on the free choice of the
employees This premise is not rebutted by the ebb and flow of card sign
mg
25 See generally Isis Plumbing Co 138 NLRB 716 (1962)
Preserve and on request make available to the Board
or its agents for examination and copying all payroll
records social security payment records timecards per
sonnel records and reports and all other records neces
sary to analyze the amount of backpay due under the
terms of this Order
It is further recommended that Respondent be ordered
to recognize and bargain with the Union as the exclusive
bargaining representative of the employees in the above
described bargaining unit
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Scott Frick and by laying off Marla
Peletta because of their union activities
4 Respondent violated Section 8(a)(1) of the Act by
creating the impression that the union activity of its em
ployees was under surveillance by coercively interrogat
ing employees concerning union activity by threatening
to close if its employees selected the Union to represent
them by soliciting grievances from an employee and int
plicitly promising to remedy them in order to induce the
employee to reject the Union by asking an employee to
quit because of her union activity by threatening to dis
charge employees because of their union activity and by
informing employees that wage increases were being
withheld because of the presence of the Union
5 The following unit of Respondent s employees is ap
propriate for the purposes of collective bargaining
All production workers wrappers shippers loaders
and sanitation workers excluding all truck drivers
clerical workers maintenance mechanics guards
and supervisors as defined in the Act
6 The Union is the exclusive collective bargaining
representative in the above described unit
7 By refusing since October 1 1982 to recognize and
bargain with the Union as the exclsuive collective bar
gaining representative of its employes in the appropriate
unit set forth above Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act
8 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
9 The aforesaid labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed27
27 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 Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
J & G WALL BAKING CO

1021
ORDER
The Respondent J & G Wall Baking Co Inc Sacra
mento California its officers agents successors and as
signs shall
1 Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for engaging in activity on behalf of
Bakery Confectionery and Tobacco Workers Interna
tional Union of America Local No 85 or any other
union
(b) Creating the impression that the union activity of
its employees is under surveillance coercively interrogat
mg employees concerning union activity threatening to
close if its employees select a union to represent them
soliciting grievances from employees and explicitly or
implicitly promising to remedy them in order to induce
employees to reject the Union asking any employee to
quit because of his or her union activity threatening to
discharge any employee because of his or her union ac
tivity or informing employees that wage increases are
being withheld because of the presence of the Union
(c) Refusing to recognize and bargain with Bakery
Confectionery and Tobacco Workers International
Union of America Local No 85 as the exclusive collec
live bargaining representative of its employees in the fol
lowing unit
All production workers wrappers shippers loaders
and sanitation workers excluding all truck drivers
clerical workers maintenance mechanics guards
and supervisors as defined in the Act
(d) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action designed to ef
fectuate the policies of the Act
(a) Offer Scott Frick full reinstatement to his former
job or if that job no longer exists to a substantially
equivalent job without prejudice to his seniority or
other rights and privileges and make him whole with
interest for lost earnings in the manner set forth in the
section of this decision entitled The Remedy
(b) Make Marla Peletta whole with interest for lost
earnings during her layoff of January 17 through 25
1983 in the manner set forth in the section of this deci
sion entitled The Remedy
(c) 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
(d) Expunge from its files any reference to the Septem
ber 9 1982 discharge of Scott Frick and the January 17
through 25 1983 layoff of Marla Peletta and notify them
in writing that that has been done and that evidence of
the unlawful discharge and layoff will not be used as a
basis for future personnel action against them
(e) On request recognize and bargain with said Union
as the exclusive collective bargaining representative of its
employees in the bargaining unit set forth above with re
spect to wages hours and other terms and conditions of
employment and if an understanding is reached embody
such understanding in a signed agreement
(0 Post at its Sacaramento California bakery copies of
the attached notice marked Appendix 28 Copies of the
notice on forms provided by the Regional Director for
Region 20 after being signed by the Respondent s au
thonzed representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
28 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 Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board