Jewel Bakery

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1326 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jewel Bakery, Inc. and Darryl Spiller. Case 7-CA-
19964
29 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 26 January 1983 Administrative Law Judge
Leonard M. Wagman issued the attached decision.
The Respondent filed exceptions and a supporting
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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge concluded that the Respondent violat-
ed Section 8(a)(3) and (1) of the Act by discharg-
ing employee Darryl Spiller at the insistence of the
Union and because he had sought to become a
member of the Union and had visited the Union's
offices. The judge also concluded that the Re-
spondent violated Section 8(a)(1) of the Act by
telling Darryl Spiller that he was being discharged
at the insistence of the Union and because he had
visited the Union's offices.
In reaching his factual findings, the judge relied
entirely on the testimony of Spiller and his mother,
which he credited on the basis of their demeanor.
The Respondent disputes, inter alia, the judge's
credibility resolutions. It argues that the judge
erred in failing to describe and rely on the testimo-
ny of its witnesses. We find merit in the Respond-
ent's exceptions.
The facts, as found by the judge, are as follows.
Spiller was employed by the Respondent as a
bakers' helper from July 1981 until his termination
19 October 1981. He was not represented by the
Union. I On becoming interested in obtaining union
membership, Spiller, on Friday, 16 October 1981,
went to the Union's offices, spoke to a union offi-
cial named Levin, told Levin he worked for Jewel
Bakery, and expressed interest in obtaining union
membership. Levin asked why Spiller wanted
union membership and who had sent him to the
union office. Levin said that he could not presently
The record reflects that the Respondent was party to a collective-
bargaining agreement with Local 78. Bakery, Confectionery and Tobacco
Workers. While there was testimony that Spiller, as well as some other
employees, was not "in" the Union and did not receive contract wages,
the record does not reflect the unit description or indicate whether the
contract contains a union-security clause.
268 NLRB No. 197
respond but that he would be talking to the Re-
spondent and would thereafter contact Spiller.
Spiller was scheduled to work an evening shift on
Sunday, 18 October. The morning of 18 October,
according to the credited testimony, Spiller's
mother called the Company and told Company
President Erno Klein that Spiller had been ill the
previous night and would be "going to the hospi-
tal." Spiller did not report for work as scheduled.
On that date, he visited two hospitals because of an
undisclosed illness.
The judge credited Spiller's testimony that he
called Klein on Monday, 19 October, and told him
that he would be coming to work. He also credited
Spiller's account of the conversation, which he de-
scribed as follows: Klein told him not to report be-
cause Levin, the union official, had told Klein not
to permit Spiller to work. Spiller asked Klein if he
was losing his job because he had gone to the
Union about himself and Klein said, "Yeah." Spill-
er asked if there was any way he could obtain rein-
statement. Klein answered that the Respondent
could not employ Spiller because of the insistence
of the Union.
In reaching his view of the facts, the judge dis-
credited all of the testimony of the Respondent's
witnesses2 concerning the circumstances leading to
Spiller's discharge. He did not describe or analyze
their testimony. He simply found that they gave
conflicting accounts of the discharge and that
Klein made a "hastily and crudely contrived at-
tempt to repudiate his earlier admission in a pretrial
affidavit that it was he who had discharged . . .
Spiller." In contrast, the judge stated his impres-
sion that Spiller and his mother were candid wit-
nesses.
Relying on the credited testimony, the judge
proceeded to find that the Union "caused [Re-
spondent] to terminate Spiller because he dis-
pleased the Union's business agent" and that
"[s]uch displeasure arose from Spiller's visit to the
Union's office in an effort to learn the qualifica-
tions for Union membership." He continued by
stating that "the interference [presumably the
Union's interference] with Spiller's employment did
not arise from 'a valid union security clause' nor
from facts showing 'that the union action was nec-
essary to the effective performance of its function
of representing its constituency."' He thereupon
concluded that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging Spiller "in
these circumstances"; he further concluded that
2 The witnesses were the Respondent's president, Klein; co-owner,
Maznu Chowdhury; and Arthur Spiller, an admitted supervisor and
Spiller's uncle.
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JEWEL BAKERY
Klein's 19 October statements to Spiller interfered
with Spiller's Section 7 rights in violation of Sec-
tion 8(a)(l) of the Act.
As stated above, the violations found by the
judge rest solely on credibility resolutions which,
in turn, arise from his demeanor observations and
his evaluation of the consistency of the testimony
of the Respondent's witnesses. The pivotal piece of
evidence in the judge's analysis is Spiller's testimo-
ny about his 19 October discharge conversation
with Klein. Absent this testimony, the judge de-
scribes no other evidence sufficient to support his
findings.
In reviewing this record we have been mindful
of the Board's established policy against overruling
an administrative law judge's credibility resolutions
unless a clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. 3 The
rationale for this policy is that the administrative
law judge and not the Board has the advantage of
observing the witnesses as they testify. According-
ly, the Board has traditionally accorded "great
weight" to credibility resolutions based on demean-
or. 4 We have also been mindful, however, that in
enunciating the Standard Dry Wall policy the
Board did not cede its statutory "power and re-
sponsibility of determining the facts as revealed by
the preponderance of the evidence."5 Rather, as
the Board explicitly stated, in all cases coming
before it for review on exceptions, it would base its
"findings as to the facts upon a de novo review of
the entire record, and [did] not deem [itself] bound
by the [administrative law judge's] findings."6
Since the enunciation of the policy, the Board has
repeatedly stated that the "ultimate choice between
conflicting testimony rests not only on the wit-
nesses' demeanor, but also on the weight of the evi-
dence, established or admitted facts, inherent prob-
abilities, and reasonable inferences drawn from the
record as a whole."7
The Board has not applied its Standard Dry Wall
policy so as to make inviolable an administrative
law judge's credibility resolutions, including those
based on demeanor. In cases in which the except-
ed-to credibility resolutions are in decisions which
have omitted reference to relevant testimony on
critical matters and have mistakenly characterized
the state of the record, the Board has accorded less
' Standard Dry Wall Products, 91 NLRB 544, 545 (1950), enfd. 188
F.2d 362 (3d Cir. 1951).
4 Id. at 545.
Id. at 544-545.
* Id. at 545.
7 Humes Electric, 263 NLRB 1238 (1982); V W Castings, 231 NLRB
912 (1977), enfd. 587 F.2d 1005 (9th Cir. 1978); Northridge Knitting Mills,
223 NLRB 230 (1976)
weight to the factor of demeanor.8 Thus, the invo-
cation of the demeanor factor is not a substitute for
a complete review and analysis of all the record
evidence.
In this case, the judge's decision omitted refer-:
ence to relevant testimony on critical matters; and
no reasons were set forth for ignoring such testi-
mony. Further, conclusions were based on testimo-
ny which was not placed within context. And, fi-
nally, the decision contained statements and find-
ings unsupported by the record evidence.
We note particularly that the judge omitted all
reference to Spiller's employment history with the
Respondent other than his July 1981 hire date and
his 19 October 1981 final discharge date. Spiller's
own testimony, which is corroborated by the Re-
spondent's witnesses, reveals a history of absentee-
ism and discipline during his short tenure. Specifi-
cally, Spiller was first twice warned about lateness
or absenteeism without calling in. He was then dis-
charged, in August, for another incident of absen-
teeism; and, he was subsequently reinstated from
that discharge with the understanding that, for any
further misconduct of the same nature, he would
be discharged and never rehired. These facts sub-
stantiate the Respondent's defense-that Spiller
was discharged for yet another instance of absen-
teeism. Conversely, the failure to consider these
facts serves to cast doubt on the blanket discredit-
ing of the Respondent's witnesses' testimony 9 re-
' See, e.g., Bralco Metals, 227 NLRB 973 (1977); Carlton Paper Corp.,
173 NLRB 153 (1968).
9 We also do not agree with the judge's characterizations of the testi-
mony of Respondent's witnesses. As described above, he found that Klein
made a "crudely contrived attempt to repudiate his earlier admission in a
pretrial affidavit" and also found that the Respondent's three witnesses
gave "conflicting accounts" of the discharge.
With respect to Klein's testimony, we note that, after his denial of
having notified Spiller of the discharge, Klein acknowledged having
stated in his affidavit that "he discharged Darryl Spiller because of unre-
liability as an employee." Klein subsequently explained this statement as
meaning that another individual told Spiller of his discharge but that
Klein took responsibility for the discharge. This explanation is eminently
plausible. Further, Klein's explanation is consistent with his stated as-
sumption of broad responsibility in the affidavit (for example Klein stated
in his affidavit that he "hired and employed" Spiller while the record in-
dicates that Spiller's uncle actually notified Spiller of his hire).
With respect to the testimony of the Respondent's three witnesses
about the discharge, we again emphasize that the judge labeled it "con-
flicting" but failed to specifically describe and analyze such testimony.
While we recognize some minor inconsistencies among the testimony of
the three witnesses, such inconsistencies are not significant. One example
is that Chowdhury asserted he discussed Spiller's absence with Klein by
phone on Sunday night while Klein recalled the discussion occurring in
person on Monday. Also, it is not significant that both Chowdhury and
Spiller's uncle claimed to have discharged Spiller, since both acknowl-
edged that Chowdhury sent Spiller home on 19 October and it is undis-
puted that the uncle explained to Spiller the reason for the discharge the
following day. Rather, the testimony of the Respondent's witnesses, infra,
at fn. 10, yields a consistent sequential description of how Spiller came to
be discharged and notified of the discharge as well as a consistent expla-
nation for why he was discharged
1327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
garding the events leading to the Spiller dis-
charge. I 0
The judge also omitted reference to evidence
and circumstances that call into question the likeli-
hood of Spiller's version of the purported 19 Octo-
ber conversation with Klein. Spiller's version, as
set forth by the judge, has Klein attributing
Spiller's discharge to both Spillers having gone to
the Union and the Union's insistence. " i First, how-
ever, the judge failed to describe how Spiller came
to visit the Union's office. The record reflects that
Spiller was referred to the Union by his supervisor
who told him the location of the office and the
name of the business agent. Such evidence indicates
an absence of antiunion motivation on the Re-
spondent's part. Second, the judge failed to point
out that the record is devoid of evidence that
would lend credence to union animus on the Re-
spondent's part as described in Spiller's version of
the purported 19 October conversation. There is no
evidence of any other antiunion statements by the
Respondent. 2 The Respondent enjoyed a collec-
tive-bargaining relationship with the Union that
was not shown to be marked by any discord. And
there is no evidence showing that the Respondent's
employment of employees who were not members
of the Union and not paid the contract rates was a
'0 The following is a description of the composite testimony of the
three witnesses concerning the discharge events. On the evening of 18
October, after Spiller failed to arrive for his shift, Chowdhury, who was
in charge during that shift, called Spiller's uncle. Spiller's uncle had pre-
viously argued for Spiller's past reinstatement by promising to substitute
or find a replacement if Spiller missed another shift During their conver-
sation, Spiller's uncle gave Chowdhury excuses for not coming in to
work himself and offered to try to find a replacement, but Chowdhury
said he would find a replacement. Chowdhury then filled in on Spiller's
job until he obtained a replacement that evening. Either that evening or
the following morning, Chowdhury discussed Spiller's absence with
Klein and they agreed to discharge Spiller because of the absence. On
Monday, 19 October, Klein discussed Spiller's absence and the intended
discharge with Spiller's uncle. That evening, when Spiller came to work,
Chowdhury sent him home, saying he had had his last chance. On Tues-
day, Spiller called Klein, who in turn referred Spiller to his uncle for an
explanation of why he was sent home. Spiller then called his uncle and
asked why he was sent home and was again told he had had his last
chance. All three witnesses attributed Spiller's discharge to his absence.
II We note that Klein denied the substance of the 19 October conver-
sation with Spiller, as well as the fact that it occurred at all.
is While there are two references in the record to statements attributa-
ble to the Respondent concerning Spiller and the Union, neither of those
was relied on, or even discussed, by the judge. We do not find that either
of the statements reflects union animus on the Respondent's part. Thus,
one statement, as testified to by Spiller's mother, has Spiller's uncle stat-
ing, several days after the discharge, that the uncle would have gotten
Spiller into the Union but Spiller was hardheaded and went to the Union
himself. We note that the testimony of Spiller's mothers leaves unclear
the sequential flow of her conversation with the uncle and the question
of who raised the subject of the Union. The second reference is con-
tained in the Respondent's response to Spiller's unemployment compensa-
tion claim. After stating the reason for the discharge, and in response to
alleged "claimant" statements about the Union's refusing membership to
Spiller, the Respondent stated that, "He seems to have goten [sic] the
idea that if he was a member of the Union, he could not be fired. The
union refused to member him because he was not qualified. Even if Spill-
er had been a union member, he would have been fired."
point of contention between the Respondent and
the Union. Third the judge similarly failed to point
out that there is no evidence that would lend cre-
dence to the Union's seeking Spiller's discharge.
Aside from the claimed admission by Klein in the
purported 19 October conversation, there is no
direct evidence that the Union contacted Klein
before Spiller's discharge and there is no direct evi-
dence that the Union sought Spiller's discharge.'3
The record does not demonstrate any union motive
that would have led it to seek Spiller's discharge.
Contrary to the findings of the judge, the evidence
does not show that the Union was motivated to
take any action "because [Spiller] displeased the
Union's business agent" as a result of his visit to
the Union's office to learn the qualifications for
union membership. Evidence of the Union's re-
sponse to Spiller's visit is derived from Spiller's tes-
timony. There is nothing in Spiller's description of
that 16 October visit to indicate that the union rep-
resentative was "displeased." To the contrary, the
union representative appears to have discussed with
Spiller the qualifications for becoming a master
baker and simply to have told Spiller that he could
not immediately respond and would contact Spiller
in the future.
Finally, the judge failed to describe some of the
dialogue which Spiller testified occurred during the
purported 19 October conversation with Klein. At
the end of the conversation, after assertedly having
been told that there was no way he could get his
job back because of the Union's insistence, Spiller
testified he asked Klein how he could get in the
Union. According to Spiller, Klein responded that,
if Spiller got his job back, he could get in the
Union. Spiller also testified that "it all-it sounded
kind of confusing" and so he "later" called his
uncle. Such testimony indeed sounds confusing.
Yet the internal ambiguity and Spiller's own admit-
ted confusion about the purported conversation
were not examined in the decision nor were they
made an apparent part of the judge's credibility de-
termination. ' 4
Accordingly, we find that the judge's failure to
explicitly review and give due consideration to all
the relevant evidence taints his credibility resolu-
1" Klein denied that he spoke to the Union about Spiller.
"4 There were also internal inconsistencies in Spiller's testimony that
were left apparently unexamined by the judge. Spiller first testified that
he called in to the Company on Sunday, 18 October, but later testified
that his mother called on his behalf. Also, at first Spiller was not sure
whether Klein mentioned the name of the Union's business representative
during the purported 19 October conversation, while in subsequent testi-
mony he asserted unequivocally that Klein referred to the union repre-
sentative by name. Further, Spiller first denied that the union representa-
tive told him the qualifications for becoming a master baker whereas he
later claimed that the union representative did tell him such qualifica-
tions.
1328
JEWEL BAKERY
tions. Our review of all the relevant evidence con-
vinces us that the judge's credibility resolutions, at
least with respect to the crediting of Spiller's testi-
mony about the purported 19 October conversation
with Klein and the discrediting of the Respondent's
witnesses as to the reasons for Spiller's discharge,
are incorrect.
As discussed above, there is direct evidence
which supports a probability that the purported 19
October conversation with Klein occurred as Spill-
er testified. In contrast, there is evidence to support
the Respondent's account of its own motivation. It
is undisputed that at the time of his discharge Spill-
er was working under "last chance" conditions re-
sulting from prior absences and lateness. On 18 Oc-
tober, Spiller was once again absent and the Re-
spondent's co-owner, Chowdhury, obtained a re-
placement for Spiller during that shift. There is no
evidence, however, that the Respondent planned
Spiller's replacement before that evening or that
the decision to bring in the replacement was
prompted by anything other than Spiller's absence.
Spiller's absence preceded his discharge by I day.
Following Spiller's discharge, Spiller called his
uncle and, according to the uncle's unrefuted testi-
mony, the uncle informed Spiller that a replace-
ment had been hired because Spiller had not shown
up and that Spiller had had his last chance as he
had been warned.
Thus, in view of the strength of the evidence un-
derpinning the Respondent's account of its actions
and the related probability that the events occurred
as asserted by the Respondent rather than by Spill-
er, we are unable to credit Spiller's version of his
discharge, in general, and of the purported 19 Oc-
tober conversation with Klein, in particular.' 5
Since the remaining evidence is insufficient to sup-
port the complaint allegations, we find that the
General Counsel has failed to prove the 8(a)(3) and
(1) complaint allegations and we shall dismiss the
complaint in its entirety.' 6
15 We note the remaining testimonial conflict between Spiller's mother
and Erno Klein. Spiller's mother testified that she called the bakery the
morning of 18 October and notified an unidentified man with an accent
that Spiller would be absent that evening; at the hearing, she testified that
the accent of the man she heard that Sunday sounded like Klein's accent,
'hich she heard when Klein testified Klein denied speaking to anyone
about Spiller that day. We find it unnecessary to resolve this conflict
since neither version would alter our view of Spiller's testimony about
his discharge.
'' Member Hunter agrees that the General Counsel failed to sustain his
burden of proof in this case. He would find that even assuming that the
Respondent stated that it was firing Spiller because he went to the Union,
as credited by the judge, the Respondent has shown that the discharge
was also because of Spiller's absenteeism. Examining the Respondent's
dual motive, Member Hunter finds that the Respondent has shown that,
even if Spiller had not gone to the Union, the Respondent would have
discharged him for his intervening absence on IS October.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge:
This matter was heard by me on October 21 and 22,
1982, at Detroit, Michigan, upon a charge filed on Octo-
ber 26, 1981, by Darryl Spiller, an individual, and upon a
complaint issued by the Regional Director for Region 7
of the National Labor Relations Board on December 4,
which was amended by counsel for the General Counsel
at the hearing. The amended complaint alleged that
Jewel Bakery, Inc., the Company, by its agent Erno
Klein, violated Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended (29 U.S.C. §151, et
seq.), referred to below as the Act, by discharging Spill-
er because he had sought membership in Local 78,
Bakery, Confectionary and Tobacco Workers, AFL-
CIO, the Union, at the Union's insistence, and because
Spiller had visited the Union's offices. The Company
denied commission of the alleged unfair labor practices.
On the entire record in this case, including my obser-
vation of the witnesses and their demeanor, and after due
consideration of the oral arguments of counsel for the
General Counsel and the Company's counsel at the con-
clusion of the hearing, I make the following
FINDINGS OF FACT
I. THE COMPANY'S BUSINESS
The Company, a Michigan corporation with its princi-
pal office and place of business at Southfield, Michigan,
is engaged in the baking, retail sale, and wholesale sale of
bread and related products. In a pretrial affidavit the
Company's president, Erno Klein, admitted that the
Company's gross dollar sales volume for the year ending
December 31, 1980, was $355,577.41 and that the same
figure for the year ending December 31, 1981, was
$367,675.04. Klein also admitted that during the calendar
year 1981 the Company's wholesale sales were approxi-
mately $29,414 and that the same figure for the calendar
year 1980 was $28,446.19. I also find from the uncontra-
dicted and credible testimony of Paul Korcos and Jeffrey
Olander that during the year ending December 31, 1981,
a representative period, the Company in the course and
conduct of its business received flour, raisins, shortening,
nuts, and other goods valued in excess of $50,000, of
which goods and materials valued in excess of $50,000
were transported and delivered to the Company's place
of business at Southfield, Michigan, from other firms,
each of which firms had received these goods and mate-
rials from Phillip Olander & Company and Korcos Flour
Company, both of which are located in the State of
Michigan and each of which firms had received these
goods and materials that were delivered to the Company
directly from points located outside Michigan.
I find on the basis of the foregoing that, contrary to its
position, the Company has been at all times material
herein an employer engaged in commerce within the
1329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 2(2), (6), and (7) of the Act. Culligan
Softwater Service, 149 NLRB 2, 3-4 (1964).
II. THE LABOR ORGANIZATION INVOLVED
The Company admits and I find that Local 78, Bakery,
Confectionery and Tobacco Workers, AFL-CIO, the
Union, is, and has been at all times material to this case,
a labor organization within the meaning of Section 2(5)
of the Act.
II1. THE UNFAIR LABOR PRACTICES
A. The Facts
The Company employed Darryl Spiller from approxi-
mately July 1981 until his termination on October 19,
1981, as a bakers' helper.' Although the Union represent-
ed certain of the Company's employees, Spiller was
among those who were not represented by the Union or
any other labor organization. However, Spiller became
interested in obtaining union membership.
On October 16, Spiller visited the Union's office
where he met Levin, a union official and expressed inter-
est in obtaining union membership. Levin asked Spiller
why he wished union membership and who had sent him
to the union office. Spiller told Levin that he was em-
ployed by the Company. Levin advised Spiller that he
could not presently respond to Spiller, but would be
talking to the Company's management and would con-
tact Spiller thereafter.
On Sunday, October 18, Spiller failed to appear for
work as scheduled. Instead, he visited two hospitals be-
cause of an undisclosed malady. However, prior to
Spiller's scheduled reporting time, his mother, Elizabeth
Dove, notified Company President Erno Klein that her
son had been ill the previous night and would be "going
to the hospital."
On Monday, October 19, Spiller telephoned the Com-
pany and advised Erno Klein that he would be reporting
for work. Klein told Spiller not to report for work,
adding that the Union's business agent, Levin, had ad-
vised Klein not to permit Spiller to work. When Spiller
asked Klein if he was losing his job because he had gone
to the Union about himself, Klein responded, "Yeah."
Spiller asked if there was any way he could obtain rein-
statement. Again Klein responded that, because of the in-
sistence of the business agent, the Company could not
employ Spiller.2
X All dates occurred in 1981.
2 My findings of fact regarding Spiller's discharge on October 19 are
based upon his testimony and that of his mother, Elizabeth Dove. In re-
solving the issues of credibility raised by the contrary testimony of com-
pany witnesses Erno Klein, Maznu Chowdhury, and Arthur Lee Spiller,
I noted Klein's hastily and crudely contrived attempt to repudiate his ear-
lier admission in a pretrial affidavit that it was he who had discharged
Spiller, and that the three witnesses gave conflicting accounts of Darryl
Spiller's discharge. In light of these conflicts, and Klein's admission as
contained in his pretrial affidavit, I have concluded that the testimony of
the three Company witnesses regarding the circumstances leading to
Spiller's discharge, was unreliable. I also considered my impression that
Darryl Spiller and his mother, Elizabeth Dove, were candid witnesses.
B. Analysis and Conclusions
In Operating Engineers Local 18 (Ohio Contractors), 204
NLRB 681 (1973), the Board declared:
When a union prevents an employee from being
hired or causes an employee's discharge, it has dem-
onstrated its influence over the employee and its
power to affect his livelihood in so dramatic a way
that we will infer-or, if you please, adopt a pre-
sumption that-the effect of its action is to encour-
age union membership on the part all employees
who have perceived that exercise of power. But the
inference may be overcome, or the presumption re-
butted, not only when the interference with em-
ployment was pursuant to a valid union-security
clause, but also in instances where the facts show
that the union action was necessary to the effective
performance of its function of representing its con-
stituency.
In the instant case, I find that the Union caused the
Company to terminate Spiller because he displeased the
Union's business agent. Such displeasure arose from
Spiller's visit to the Union's office in an effort to learn
from that union official the qualifications for obtaining
union membership. Here, the interference with Spiller's
employment did not arise from "a valid union-security
clause" nor from facts showing "that the union action
was necessary to the effective performance of its func-
tion of representing its constituency." Operating Engi-
neers Local 18, supra. I find, therefore, that, by discharg-
ing Darryl Spiller in these circumstances, the Company
violated Section 8(a)(3) and (1) of the Act. Chapin d
Chapin, Inc., 213 NLRB 250, 255 (1974); Rust Engineer-
ing Co., 183 NLRB 649, 654 (1970).
I further find that on October 19 the Company violat-
ed Section 8(a)(l) of the Act when Erno Klein told
Darryl Spiller that he was being discharged because of
the Union's insistence and because he had visited the
Union's office on October 16. For, by such statement,
the Company interfered with Darryl Spiller's rights
under Section 7 of the ActS to seek membership in a
labor organization.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union, Local 78, Bakery, Confectionary and
Tobacco Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
s Sec. 7 of the Act provides:
Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any or all
such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in section 8(aX3).
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JEWEL BAKERY
3. By telling Darryl Spiller that he was being dis-
charged because of the Union's insistence and because he
had visited the Union's office, the Company violated
Section 8(a)(1) of the Act.
4. By discharging Darryl Spiller because he had vis-
ited the Union's office and had sought membership in the
Union, and because of the Union's insistence that Spiller
be discharged, the Company has engaged in, and is en-
gaging in, unfair labor practices within the meaning of
Section 8 (a)3) and (1) of the Act.
5. The aforesaid 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 Company has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that the Company be or-
dered to cease and desist therefrom, and to take certain
affirmative action, set forth below, designed and found
necessary to effectuate the policies of the Act.
Having found that the Company unlawfully dis-
charged Darryl Spiller, it will be recommended that he
be offered immediate and full reinstatement to his former
position or, if that position no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or other rights and privileges. It is further recom-
mended that the Company be required to make Darryl
Spiller whole for any loss of earnings he may have suf-
fered by reason of the discrimination against him by
paying to him a sum of money equal to the amount he
would have normally earned as wages from October 19,
1981, the date of his discharge, to the date of the Com-
pany's offer of reinstatement, less net earnings, with
backpay and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977). 4
I shall also recommend that the Company expunge
from its files any reference to Darryl Spiller's discharge
on October 19, 1981, and notify him in writing that this
has been done and that evidence of this unlawful dis-
charge will not be used as a basis for future personnel
actions against him.
I shall further recommend that the Company be re-
quired to preserve and make available to Board agents,
upon request, all pertinent records and data necessary to
analyze and determine whatever backpay may be due
Darryl Spiller.
[Recommended Order omitted from publication.]
4 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
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