Kathleen's Bakeshop, LLC

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1081 (N.L.R.B. 2002)

KATHLEEN’S BAKESHOP, LLC 1081
Kathleen’s Bakeshop, LLC and Workers & Grain
Millers International Union, Local 3, AFL–CIO.
Cases 29–CA–22254, 29–CA–22291, 29–CA–
22321, 29–CA–22837, 29–CA–22855, 29–CA–
22923, and 29–CA–22964
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND BARTLETT
On August 9, 2000, Administrative Law Judge Eleanor
MacDonald issued the attached decision. The Respon­
dent filed exceptions, an answering brief, and a reply
brief. The General Counsel filed limited cross-
exceptions, and an answering brief.
The National Labor Relations Board has delegated 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,
and to adopt the recommended Order as modified and set
forth in full below.2
We adopt the judge’s findings and conclusions except
with regard to the following: (1) that the Respondent
violated Section 8(a)(1) of the Act by creating the im­
pression that Panagiotopoulos’ union activities were un­
der surveillance; and, (2) that the Respondent violated
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju­
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by discharging employee Maria Campero, we clarify
an apparent conflict in the judge’s factual findings concerning Cam­
pero’s recollection regarding the presence of employee Solis during
Campero’s October 4, 1998, discussion of work schedules with night
manager Clark. Our review of Campero’s testimony establishes that she
test ified that Solis was present during that incident. This clarification
does not affect our ultimate finding of a violation.
In adopting the judge’s finding that the Respondent constructively
discharged employee George Panagiotopoulos, we need not rely on the
judge’s discussion of the Respondent’s application of its progressive
discipline system to Panagiotopoulos. There was no allegation or find­
ing that the Respondent actually discharged Panagiotopoulos.
2 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001). Further, we shall substitute a new notice in accordance with
our recent decision in Ishikawa Gasket American, Inc., 337 NLRB No.
29 (2001).
Section 8(a)(5) of the Act by failing to provide informa­
tion requested by the Union concerning the Respondent’s
last date of operation in Southampton.
1. We reverse the judge’s finding that the Respondent,
by Night Manager Clark, created the impression that
Panagiotopoulos’ union activities were under surveil-
lance.
On August 27, 2 weeks after the Union was certified,
Panagiotopoulos and employee Karl Stork went to a local
pub after work to have a beer. Clark entered the same
pub and sat down next to Panagiotopoulos. After
Panagiotopoulos introduced himself, Clark said, “You
are the guy that started the Union.” Clark later said,
“You started the union and that’s why I’m here.” The
judge found that these comments created the impression
that Panagiotopoulos’ union activities were under sur­
veillance.
We do not agree. Panagiotopoulos served as the Un­
ion’s observer at the July 10, 1998 election, a fact known
b y Respondent’s part owner, Kathleen King, and its
president, Robert Weber. Thus, it is clear that Panagio­
topoulos was openly identified as a union supporter at
that time. Clark directed his comments to Panagiotopou­
los more than a month after Panagiotopoulos had been
openly identified as a union supporter. We find that
Clark’s statements expressed that which had been well
known, i.e., that Panagiotopoulos was a union supporter.
Accordingly, we shall dismiss this allegation of the com­
plaint.
Our colleague says that Clark’s remark shows that the
Respondent created the impression that it had placed
under surveillance the degree and extent of Panagio­
topoulos’ union activity. In fact, the General Counsel
has not made that showing. Panagiotopoulos was an ac­
tive adherent of the Union. He was the one who con­
tacted the Union and he passed out the authorization
cards. Indeed, he was so strong an adherent that he was
the Union’s observer at the critical point of the cam­
paign, i.e., the election. Under these circumstances, we
do not find that Panagiotopoulos would reasonably as­
sume that Clark’s statement to him was based on surveil-
lance of his union activities.
2. We reverse the judge’s finding that the Respondent
violated Section 8(a)(5) by failing to provide information
concerning the last date of operation in Southampton.
During the May 11, 1999 collective-bargaining session,
the Union asked Respondent for the date of the last day
of work in Southampton. The Respondent advised the
Union on June 10, 1999, that it was not certain as to
when production would stop but that it would let the Un­
ion know the date as soon as it was determined. On June
14, 1999, the Respondent advised the Union that the
337 NLRB No. 169
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
drivers would be terminated on June 15 and that produc­
tion would stop on June 19.
The General Counsel has not shown that the Respon­
dent knew, prior to June 14, the date it would cease op­
erations in Southampton. The Respondent cannot be
expected to provide information that it does not have.
Thus, since the General Counsel has failed to establish
that the Respondent knew the last date of operation in
Southampton before June 14, we do not find a violation.
Our colleague asserts that, as of June 10, the Respon­
dent must have been in a position to tell the Union that
only a few more days were left for Southhampton. We
do not disagree that this is a reasonable surmise, but
surmise cannot replace fact in a court of law. The Ge n­
eral Counsel, by subpoena and by questions, could have
tied down the precise date when the Respondent decided
upon the day of closure. The General Counsel did not do
so, and he cannot rescue this failure by surmise. Not-
withstanding the failure of the General Counsel to pre-
sent any evidence that the Respondent knew before June
14 when it would cease operations, our dissenting col­
league speculates from the timing between the Union’s
June 10 inquiry and the Respondent’s June 14 decision
that, by June 10, the Respondent must have known
“enough about its own plans” to be responsive to the
Union’s inquiry. We decline to join this speculation.
Although it may be reasonable to infer that the Respon­
dent was discussing concrete plans and scenarios for the
shutdown by June 10, it does not follow that the Respon­
dent was obligated to provide the Union with such in­
choate information—information that was likely to be
incorrect precisely because plans were still evolving.
3. Remedial issues
(a) We adopt the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) by refusing to bargain
over the effects of its decision to relocate production and
subcontract delivery operations and the recommended
bargaining order. We also adopt the judge’s recom­
mended Order of limited backpay to the affected employ­
ees, pursuant to Transmarine Corp., 170 NLRB 389
(1968); and we conform the Transmarine remedial lan­
guage to the requirements of Melody Toyota, 325 NLRB
846 (1998).3 Thus, we order that the Respondent shall
pay employees backpay at the rate of their normal wages
when last in the Respondent’s employ, from 5 days after
the Board’s decision, until the occurrence of the earliest
of the following conditions: (1) the date the Respondent
3 Although the Respondent excepts to this remedy, it does so only on
the ground that no violation occurred. The Respondent does not contest
the judge’s recommended application of the Transmarine remedy as an
appropriate remedy for the violation found.
bargains to agreement with the Union about those sub­
jects pertaining to the effects on its employees resulting
from its partial closing and subcontracting decision; (2) a
bona fide impasse in bargaining; (3) the failure of the
Union to request bargaining within 5 business days after
receipt of the Decision and Order, or to commence nego­
tiations within 5 business days after receipt of the Re­
spondent’s notice of its desire to bargain with the Union;
or (4) the subsequent failure of the Union to bargain in
good faith, but in no event shall the sum paid to any of the
employees exceed the amount he or she would have
earned as wages from the date on which he or she was
terminated to the time he or she secured equivalent em­
ployment elsewhere, or the date on which the Respondent
shall have offered to bargain, whichever occurs sooner;
provided, however that in no event shall this sum be less
than these employees would have earned for a 2-week
period at the rate of their last normal wages when last in
the Respondent’s employ, with interest.
Further, we grant the General Counsel’s exception to
the judge’s failure to include this violation in her conclu­
sions of law and to include a backpay provision in the
notice to employees.
(b) We adopt the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) by unilaterally increasing
the hours of employment of salaried unit employee Karl
Stork and, thereby, effectively reducing Stork’s hourly
rate of pay. In addition to ordering the Respondent to
bargain over the change in Stork’s hours, we shall remedy
the judge’s inadvertent failure to provide a make whole
remedy for Stork. We do so conditionally, however, as
we find insufficient record evidence to permit a determi­
nation whether Stork did, in fact, lose pay as a result of
the increase in his hours. For example, there is evidence
that Stork’s hours could increase or decrease, and at least
on some occasions, any decrease in hours did not affect
his salary or pay. On the record before us, it is not clear
whether, or to what extent, his salary and pay may have
changed during past seasonal fluctuations in workhours,
which typically did not exceed one additional hour per
day. We also note that, if the Respondent had negotiated
the change in Stork’s hours, a change in his salary or pay
could have resulted. We leave to compliance the deter­
mination whether any backpay is due Stork as a result of
the May 1999 unilateral increase in his workhours.
AMENDED CONCLUSIONS OF LAW
Add the following to Conclusions of Law as paragraph
7 and renumber subsequent paragraphs accordingly:
“7. By refusing to bargain in good faith over the ef­
fects of its relocation of production and the subcon-
KATHLEEN’S BAKESHOP, LLC 1083
tracting of delivery operations, the Respondent violated
Section 8(a)(5) and (1) of the Act.”
ORDER4
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Kath­
leen’s Bakeshop, LLC, Southampton, New York, its of­
ficers, agents, successors, and assigns shall
1. Cease and desist from
(a) Discharging its employees because they engaged in
protected concerted activities.
(b) Discharging it s employees because they support
Bakery, Confectionery, Tobacco Workers & Grain Mill­
ers International Union, Local 3, AFL–CIO, or any other
labor organization.
(c) Threatening to kill its employees because they sup-
port the Union.
(d) Unilaterally increasing the hours of employment of
its salaried unit employees without giving the Union no­
tice and an opportunity to bargain.
(e) Failing to supply relevant information requested by
the Union relating to wages, benefits, hours, and working
conditions of its unit employees and information related
to the effects of its decision to move production to Rich­
mond, Virginia, and its decision to subcontract delivery
operations.
(f) 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 necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Maria Campero and George Panagiotopoulos full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi­
leges previously enjoyed.
(b) Make Maria Campero and George Panagiotopoulos
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, in the
manner set forth in the amended remedy section of this
decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writ­
ing that this has been done and that the discharges will
not be used against them in any way.
4 We order the Respondent, infra, to provide relevant information
requested by the Union. To the extent that the Respondent has belat­
edly supplied the requested information, the Respondent need not du­
plicate its response.
(d) Make salaried employee Karl Stork whole for any
loss of earnings and other benefits suffered as a result of
the unilateral increase in his hours, in the manner set
forth in the remedy section of the decision.
(e) On request, bargain with the Union concerning
wages, hours, and working conditions of the employees
in the unit described above.
(f) Furnish the Union with certain information found
relevant in this decision to wages, hours, and working
conditions and certain information found relevant in this
decision to the effects on unit employees of the Respon­
dent’s decision to close production in Southampton, New
York, and to subcontract its delivery operation.
(g) On request, bargain with the Union over the effects
on unit employees of the Respondent’s decision to close
production in Southampton, New York, and subcontract
its delivery operation.
(h) Pay the employees who were terminated as a result
of the closing of production in Southampton, New York,
and as a result of the subcontracting of the delivery op­
eration, backpay as set forth in the remedy section of this
decision.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(j) Within 14 days after service by the Region, post at
its facility in Southampton, New York, copies of the at­
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus­
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
5 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 Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rent employees and former employees employed by the
Respondent at any time since August 27, 1998.
(k) Within 14 days after service by the Region, mail a
copy of the attached notice marked “Appendix” to all
employees in the above described unit who were em­
ployed by the Respondent at its Southampton, New York
facility, at any time from the onset of the unfair labor
practices found in this case until the termination of the
employees from the Southampton facility. The notice
shall be mailed to the last known address of each of the
employees after being signed by the Respondent’s au­
thorized representative.
(l) With 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi­
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
CHAIRMAN HURTGEN, concurring.
I agree with my colleagues in all respects, but I wish to
set forth a separate view as to the 8(a)(5) violation con­
cerning the unilateral increase in the hours of employee
Stork.
Stork was a salaried employee. In the past, Stork’s
usual workday was 8 hours (8 a.m. to 4 p.m.), except
that, during the summer busy season, it had been in-
creased to 9 hours (7 a.m. to 4 p.m.). In the instant case,
Respondent took the unprecedented step of increasing
the hours to 11 or 11.5 hours on some days. In these
circumstances, I agree that there was a unilateral change
of hours, violative of Section 8(a)(5) of the Act.
I agree that the remanded issue of backpay should be
left to compliance. However, I would provide some
guidance in this regard. It appears that, in the past,
Stork’s salary may have remained the same per pay pe­
riod, irrespective of seasonal or other fluctuations (up or
down). In the instant case, if the unlawful change had
the effect of increasing by “x” percent the hours per pay
period, Stork should receive backpay in the amount of
“x” percent of his salary for each such period.
MEMBER LIEBMAN, concurring in part and dissenting in
part.
My colleagues disagree with the judge with respect to
two points, which I believe the judge got right: (1) her
finding that the Respondent created an unlawful impres­
sion of surveillance of employees’ union activity when
its new night-shift manager confronted union supporter
George Panagiotopoulos in a pub and threatened to kill
him; and (2) her finding that the Respondent unlawfully
refused to provide the Union with timely notice of its
anticipated shutdown date—which turned out to be only
a week later. I address each issue in turn.
With respect to the surveillance finding, the majority
unaccountably departs from precedent that makes clear
there was a violation here. As to the shutdown notice,
the majority fails to draw what seems to me to be an ob­
vious inference: that the Respondent knew enough about
its own plans to provide the Union with information.
Accordingly, I dissent from the majority’s rulings on
these issues.
1. Creation of impression of surveillance
George Panagiotopoulos was a baker on the day shift.
He served as an observer for the Union at the July 10,
19981 representation election, which the Union won. At
the end of July, the Respondent hired Buddy Clark as the
new night-shift manager. After finishing work on Au-
gust 27, Panagiotopoulos and fellow employee Karl
Stork went together to a bar. Shortly after they got there,
Clark entered and, although the bar was almost empty, he
sat right next to Panagiotopoulos, who he had not yet
met. Clark introduced himself to Panagiotopoulos and
then said to him “You are the guy that started the Un­
ion.” Panagiotopoulos replied “No, we started the Un­
ion.” Clark told Panagiotopoulos “You started the Union
and that’s why I’m here. I’m here to kill you. They
came looking for me to come after you and take you
out.” Clark told Panagiotopoulos that he was a “corpo­
rate killer.” Later that evening, Panagiotopoulos filed a
report of this threat to the local police.
The judge found that Clark’s statement to Panagio­
topoulos—that he knew that Panagiotopoulos had started
the Union—created the impression that Panagiotopoulos’
union activities were under surveillance, and thus vio­
lated Section 8(a)(1) of the Act. I agree.
My colleagues, on the other hand, dismiss this allega­
tion. In their view, Panagiotopoulos’ service as a union
election observer had already identified him to the Re­
spondent as a union supporter, and thus, Clark’s remarks
to Panagiotopoulos in the bar expressed no more than
what the Respondent already knew—according to my
colleagues, “that Panagiotopoulos was a union supporter.”
They ignore the obviously coercive effect of Clark’s ac­
cusation to Panagiotopoulos that he started the Union.
The test for determining whether an employer has
unlawfully created an impression of surveillance is
whether the employee would reasonably assume from the
statement that his union activities had been placed under
surveillance. E.g., Rood Industries, 278 NLRB 160, 164
(1986). The premise of this violation is that employees
should be free to participate in union organizing cam-
1 All dates in this sec. 1 are 1998 unless otherwise stated.
KATHLEEN’S BAKESHOP, LLC 1085
paigns without the fear that members of management are
peering over their shoulders, taking note of who is in­
volved in union activities, and in what particular ways.
E.g., Flexsteel Industries, 311 NLRB 257 (1993). An
employer creates an impression of surveillance by indi­
cating that it is closely monitoring the degree of an em­
ployee’s union involvement. Emerson Electric Co., 287
NLRB 1065 (1988).
In Emerson, the Board said, with particular relevance
to this case, that:
Even if it was common knowledge at the plant that
[employee] Alsup had attended union meetings, [plant
manager] Gilbert’s statements [that he did not consider
Alsup to be a “pusher” for the union like some of the
people on the floor who were wearing union buttons,
etc.] went beyond permissible comments. Gilbert
stated not only that he knew that Alsup had attended
union meetings, but also indicated that he knew the ex-
tent of his involvement. . . . [Gilbert’s statements]
would reasonably suggest to Alsup that the Respondent
was closely monitoring the degree of his union in­
volvement. [287 NLRB at 1065; emphasis supplied].2
As in Flexsteel and Emerson, and contrary to my col­
leagues’ view of this issue, even if it was generally
known that Panagiotopoulos was a union supporter,
Clark’s particularized statement to Panagiotopoulos went
far beyond permissible comments. Clark confronted
Panagiotopoulos in the bar saying, “You are the guy that
started the Union.” Panagiotopoulos said, “No, we
started the Union.” As though correcting him, Clark
pointedly replied, “You started the Union and that’s why
I’m here.” Clark then added, “I’m here to kill you.” By
these coercive remarks, Clark could scarcely have con­
veyed a clearer impression to Panagiotopoulos and Stork
that the Respondent was monitoring and was aware of
the degree and extent of Panagiotopoulos’ particular un­
ion activities—far beyond the mere observation of
Panagiotopoulos while he served as a union observer at
the election or engaged in general prounion activity.
2. Failure to provide information
On October 22, 1998, the Respondent informed the Un­
ion that it was going to shut down its production facilities
in Southampton, New York, in January 1999,3 and relo­
cate them to Richmond, Virginia. The Union immedi­
ately requested bargaining over the effects of this shut-
down and relocation on the unit employees. The shut-
down and relocation were, however, delayed. On May 11
2 See also Acme Bus Corp., 320 NLRB 458, 477 (1995) (Gilman’s
comments to Anderson and Edmond).
3 All the remaining dates in this sec. 2 are 1999 unless otherwise
stated.
the Union asked the Respondent for, inter alia, the antici­
pated date of the Respondent’s shutdown of production in
Southampton. The Union wanted this information so that
it could help employees with applications for unemploy­
ment benefits and get letters of recommendation for them.
The Respondent did not provide this information to the
Union at that time or soon thereafter. Rather, about a
month later, on June 10, the Respondent told the Union
that it was still uncertain when it would shut down pro­
duction, but that it would let the Union know as soon as
the Respondent decided. A few days later, on June 14,
the Respondent informed the Union that it was terminat­
ing the drivers (unit employees) the next day, June 15,
and was shutting down production in Southampton 4 days
after that, on June 19. (In fact, however, the Respondent
actually stopped using its drivers the same day, June 14,
and shut down production on June 18.)
The judge found that the Respondent violated Section
8(a)(5) of the Act by failing to provide the Union with
timely notice of the date of the shutdown of production
in Southampton (section II,E,2,a,b of her attached deci­
sion). I agree.
My colleagues, on the other hand, reversed the judge,
finding that the Respondent acted lawfully. In their
view, the record does not establish that the Respondent
knew before June 14 that it was shutting down produc­
tion on June 19, and the Respondent was therefore not in
a position to give the Union this information before June
14. I disagree with my colleagues’ assessment.
An employer is obligated to give a union a meaningful
opportunity to bargain over the effects on employees of a
decision to shut down operations and layoff employees .
First National Maintenance Corp. v. NLRB, 452 U.S.
666, 682 (1981). This requires giving the Union suffi­
cient advance notice of the effective dates of those final
actions. The Respondent clearly did not fulfill this bar-
gaining obligation by telling the Union as late as June 10
that it was still uncertain when it would shut down pro­
duction. Certainly by then, if not significantly sooner,
the Respondent must have been in a position to offer the
Union at least a considered judgment of how many days
were left for Southampton—especially since, as the evi­
dence bears out, only a very few days were in fact left.
Presumably, the Respondent had control over the tim­
ing of its termination of the drivers and shutdown of
Southampton production. It is hard to imagine that, just
a few days in advance of the actual shutdown, the Re­
spondent did not know that it was imminent. No claim is
made that some force majeure or act of God had sud­
denly intervened on June 14, requiring an immediate
shutdown and termination of employees. Yet, my col­
leagues in the majority fail to draw what seems to me to
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be the obvious inference: that the Respondent knew
enough about its own plans by June 10 to provide the
Union with information.
Thus, I agree with the judge that the Respondent’s
failure under these circumstances to provide the Union
with prior notice of the actual date for the shutdown of
Southampton production denied the Union the opportu­
nity to bargain meaningfully over this decision. See Mi­
ami Rivet of Puerto Rico, 318 NLRB 769, 771–772
(1995), cited by the judge.
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 vio­
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Bakery, Confectionery,
Tobacco Workers & Grain Millers International Union,
Local 3, AFL–CIO, or any other union.
WE WILL NOT discharge you because you engage in
protected concerted activities by complaining about
wages, hours, and working conditions.
WE WILL NOT threaten our employees’ lives because
they support the Union.
WE WILL NOT increase our employees’ workhours
without bargaining with the Union.
WE WILL NOT fail to supply information requested by
the Union so that it may carry out its duties to bargain for
the employees in the following unit:
All full-time and regular part-time bakers, production
employees employed by Respondent at its facility, ex­
cluding all office clerical employees, guards, and su­
pervisors as defined in Section 2(11) of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Maria Campero and George Panagiotopou­
los full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Maria Campero and George Panagio­
topoulos whole for any loss of earnings and other bene­
fits resulting from their discharge, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw­
ful discharges of Maria Campero and George Panagio­
topoulos, and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and that
the discharges will not be used against them in any way.
WE WILL make Karl Stork whole for any loss of earn­
ings and other benefits resulting from our unilateral in-
crease in his hours of employment, plus interest.
WE WILL supply the Union with relevant information
necessary for it to fulfill its duties as bargaining repre­
sentative of the unit employees.
WE WILL bargain with the Union over the effects of
our decision to move production facilities away from
Southampton, New York, and to subcontract the delivery
operation.
WE WILL pay limited backpay to the unit employees in
connection with our failure to bargain over the effects of
our decision to move production facilities away from
Southampton and to subcontract the delivery operation.
KATHLEEN’S BAKESHOP, LLC
Tracy Belfiore, Esq., for the General Counsel.

Fred G. Groiss, Esq. (Quarles & Brady LLP), of Milwaukee,

Wisconsin, for the Respondent.
Thomas M. Murray, Esq. (Spivak, Lipton, Watanabe, Spivak &
Moss LLP), of New York, New York, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ELEANOR M ACDONALD, Administrative Law Judge. This
case was tried in New York, NY, on October 15 and December
9 and 10, 1999. The Complaint alleges that the Respondent, in
violation of Section 8 (a) (1), (3) and (5) of the Act threatened
employees with death because of their activities on behalf of
the Union, created an impression of surveillance among its
employees, interrogated employees, constructively discharged
George Panagiotopoulos, discharged Maria Campero, refused
to provide relevant information to the Union, refused to bargain
over the effects of relocating its production operation and sub-
contracting its trucking operation and increased employees’
hours of work resulting in a decrease in hourly pay rates of
salaried employees without notice to the Union. The Respon­
dent denies that it has engaged in violations of the Act.
KATHLEEN’S BAKESHOP, LLC 1087
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing1
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, with its principal
office and place of business located at 43 North Sea Road,
Southampton, New York, is engaged in the retail sale of baked
goods and related products. The Respondent annually derives
gross revenues in excess of $500,000 and purchases and re­
ceives at its facility goods valued in excess of $5,000 directly
from points outside the State of New York. It is undisputed,
and I find, that the Respondent is an employer engaged in com­
merce within the meaning of Section 2 (2), (6), and (7) of the
Act and Bakery, Confectionery, Tobacco Workers &
Grainmillers International Union, Local 3, AFL–CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
II. ALLEGED UNFAIR L ABOR PRACTICES
A. Background
In June 1998 the Union began its organizational campaign
among the Respondent’s employees in the Southampton facil­
ity. The Respondent conducted a vigorous campaign against
the Union. The Union won the election conducted on July 10,
1998 and a Certification issued on August 13, 1998 for a unit
including the following employees:
All full-time and regular part-time bakers, production em­
ployees, drivers, store clerks and maintenance employees em­
ployed by Respondent at its facility, excluding all office cleri­
cal employees, guards, and supervisors as defined in Section 2
(11) of the Act.
Certain of the Respondent’s actions led to the signing of
agreements settling unfair labor practice charges. Some of
these actions were described at the instant hearing and were
received for the purposes of background only.
The record shows that the owners of the Respondent are
Kathleen King and her brothers Robert Weber and Kevin We­
ber. It is undisputed that they are agents of the Respondent.
Owner and president of the company, Robert Weber, testified
in this proceeding both as an adverse witness called by the
General Counsel and as a witness for the Respondent. Owner
Kathleen King was present in the hearing room during the in­
stant proceeding but she was not called to testify.
Robert Weber testified that when the Respondent operated
solely from its Southampton location, it conducted a retail op­
eration that accounted for about 30 percent of the business and
a wholesale operation that accounted for 70 percent of the busi­
ness. In June 1999 the Respondent transferred its wholesale
1 The record is hereby corrected so that at page 15, line 1, the word
“newrity” is changed to “seniority”; at page 70, line 1, the second sen­
tence should begin “He said, ‘you should put an end to it. . . .’”; at page
216, line 24 the date should read “October 22, 1998”; on page 267, line
13, the last word should read “disparate”; at page 324, line 8, the word
“inadmissible” should read “admissible”.
operation to Richmond, Virginia. Deliveries were made from
that location. Robert Weber also testified that during a period
in June and July 1999 certain wholesale deliveries were made
from a location in Kearny, New Jersey. At the time of the in­
stant hearing products such as cakes, pies, cookies and brown­
ies were made in Richmond for wholesale distribution and were
shipped to the retail store for sale. Some products were also
manufactured in Southampton for sale in the retail store.
Robert Weber testified that the Respondent utilizes a method
of progressive discipline. Employees are generally not termi­
nated until after three or more written warnings accumulate in
their personnel files. The Respondent’s files contain various
“report of employee discipline” forms which establish that the
bakeshop maintains a “three strikes and you’re fired” policy.
Thus, on March 26, 1999 Leonides Olivencia was terminated
after one unexcused absence and two instances of “no call, no
show.” On December 9, 1998, Ralph Hunter was given a writ-
ten warning for lateness after “many verbal warnings” and he
was informed that the written report was the first in a sequence
of “three strikes you’re fired.” On October 23, 1998 Patrick
Farez was discharged after accumulating six verbal warnings in
six weeks. The report of employee discipline for Farez stated
the following reasons for his termination “after many attempts”
to counsel the employee: “(1) Just recently caught lying about
employer permission; (2) Called manager a Fu—ing bastard
about scheduling; (3) Made obscene gestures to woman em­
ployee by saying he wanted to fuck her in the ass; (4) Same
night asked manager to ‘Make him a favor by fucking dying.’”
B. Discharge of Maria Campero
Maria Campero began working for the Respondent in June
1994.2 She worked the night shift beginning at 5 p.m. and end­
ing when the work was done. She averaged 40 to 45 hours of
work per week. Campero testified that on Sunday, October 4,
1998, she arrived at work and began preparing the bread. Be-
tween 5:30 and 6 p.m. she noticed that the new hourly schedule
had been posted. She saw that employees with the most senior­
ity had been given fewer days of work than the newer employ­
ees. This was contrary to the past practice whereby the more
senior people had been given more hours of work. Campero
approached night manager Warren “Buddy” Clark to ask him
why he had made that change.3 Clark is not fluent in Spanish
but his mother speaks Spanish and he can say a few words.
Campero took the new schedule with her and asked Clark why
the more senior people had been given fewer hours. She men­
tioned senior employees such as “Melva”, “Patricia” and her-
self. According to Campero, Clark started screaming and told
her “If you don’t like the job you can go home.” When Cam­
pero questioned him again, he said, “You and your workmates
are like hungry dogs.” Clark made some gestures with his
hands and screamed some words in English. Clark was not
holding any muffin pans while he spoke to Campero. Campero
testified that she did not yell or curse at Clark and she did not
throw the schedule at him. Campero stated that after this inci-
2 Campero’s native language is Spanish. She testified through an in­
terpreter.
3 It is undisputed that Clark was the night manager and an agent of
the Respondent.
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dent, which lasted four or five minutes, she took the schedule
back to the bulletin board and pinned it up again. Campero
recalled that Norma Jimenez Solis was there during the incident
with Clark but she did not say anything. Campero did not no­
tice any other employees in the vicinity. Campero said that she
did not speak to Solis about the schedule or about her decision
to confront Clark. Campero stated that retail manager Barbara
Toro did not come to the production area and say “shut up”
while Buddy was screaming.
Campero testified that on October 6 supervisor Guadalupe
Camacho called her on the telephone and said she was fired
because of the incident on Sunday. The next day Campero
went to the bakeshop and spoke to owner Robert Weber
through “Freddy” who interpreted for her. She asked why she
was fired and Weber said it was because she had thrown the
schedule at Clark. Campero denied that she threw the schedule
and she said that Clark had taken an unjust decision because the
new schedule gave more senior people fewer days of work.
Weber repeated that she was fired. It is undisputed that Cam­
pero had an unblemished disciplinary record from 1994 to the
day she was fired.
Norma Jimenez Solis began working for Kathleen’s Bake-
shop in September, 1993. She left the Respondent’s employ in
June 1999. In the summer of 1998 she was working the night
shift from 5pm to 7am. Solis testified that on a Sunday in Oc­
tober 1998 she arrived at work with Maria Campero.4 When
they punched in they noticed that a new work schedule had
been posted. This new schedule changed employees’ hours of
work in order to accommodate the declining production that
usually accompanied the end of the summer season. The new
schedule provided five days of work per week for the least
senior employees but only four days of work per week for those
employees with the most seniority. According to Solis she and
Campero discussed the new schedule and Campero decided that
she would speak to night manager Clark “for all of us.” Solis
testified that she observed Campero approach Clark at the
bread-packing table holding the new schedule which she had
removed from the wall where it had been tacked up. Campero
said she had a question for him and she proceeded to ask why
he had given workers with less seniority five days of work
whereas the most senior employees had only four days of work.
Campero put the schedule on the table and she pointed at the
names of the employees on the list. Solis testified that Cam­
pero spoke in a mixture of English and Spanish to Clark. Al­
though Clark does not speak perfect Spanish he can make him-
self understood because his mother is Spanish. Clark replied in
Spanish that he was the boss and that it was none of Campero’s
concern. Campero replied that “this is not justice” and that he
had to fix it up. Clark turned red and became upset. In English
he said in a strong voice, “Stupid Spanish people … fuck you.”
Clark continued yelling in a high voice in English. Campero
took the schedule from the table and put it back on the wall.
Campero and Solis went about their work for the rest of the
evening. Solis testified that Campero did not curse or yell dur­
ing this incident and she did not throw the schedule. Solis was
4 Solis’ native language is Spanish. She testified through an inter­
preter.
frightened during this incident because Clark is a tall muscular
man who is built like a weight lifter.
Solis testified that no other employees were in the area when
this exchange took place. The others were downstairs putting
on their aprons. Solis did not see retail manager Toro during
this incident. The retail store is in the same building as the
production area but it is separate from the production area.
On the next Tuesday Solis was at work but Campero was
taking her usual day off. Solis testified that supervisor
Camacho summoned her to speak to Clark on Tuesday. Clark
spoke to Solis in English and Camacho translated into Spanish.
Clark asked Solis to inform Campero that there was no more
work for her at the bakeshop. Solis told him that it was not her
place to give such information to Campero and that Clark
should call her himself. Clark said that Campero was fired
because she had been disrespectful to him. Solis responded that
this was not true. Clark replied that he had his witnesses. Solis
asked him who his witness was; she said there were only two
“of us” in the area. Clark said it was not a problem and that he
would produce his witnesses.
Barbara Toro has been a manager of the retail area of the
bakeshop for 17 months. Toro testified that on October 4, 1998
she was in the production area of the bakeshop and she could
see the whole night crew standing near the schedule. Toro
stated that they were “complaining.” Toro saw Campero and
Clark arguing. She saw Campero holding the schedule and
waving it at Clark. Toro said that she saw Solis next to Cam­
pero “egging her on.” Toro heard Campero screaming very
loud in Spanish but she did not hear Clark screaming; he was
just spraying some muffin pans. Toro told Campero to “shut
up.” According to Toro she saw the schedule drop to the floor
but she did not see how it dropped. During this incident, there
were at least five night shift employees near the table. They
had not started production because they were all too busy look­
ing at the schedule. Toro stated that she informed owners
Kathleen King and Robert Weber of what she had seen.
Robert Weber testified that the Respondent discharged Cam­
pero based on a written report of employee discipline prepared
by Clark. The report states:
10/4/98, 6:00pm Maria upset about another employee’s
schedule. Confronted me with abusive foul language yelling
at the top of her lungs, not allowing me the way out of her
pathway, then tearing the schedule sheet off the wall throwing
it at my feet swearing in Spanish. After much consideration
with also speaking with all three owners we all agreed that
termination would be the correct action.
Manager Clark was not called to testify in this proceeding.
In Meyers Industries (Meyers I), 268 NLRB 493 (1984),
revd. 755 F.2d 941 (D.C Cir. 1985), cert denied 474 U.S. 971
((1985), decision on remand 281 NLRB 882 (1986), affd. 835
F.2d 1481 (D.C. Cir. 1987), cert denied 487 U.S. 1205 (1988),
the Board set forth the following test to find that an employee
engaged in concerted activity:
we shall require that it be engaged in with or on the authority
of other employees, and not solely by and on behalf of the
employee himself. Once the activity is found to be concerted,
an 8 (a) (1) violation will be found if, in addition, the em-
KATHLEEN’S BAKESHOP, LLC 1089
ployer knew of the concerted nature of the employee’s activ­
ity, the concerted activity was protected by the Act, and the
adverse employment action at issue (e.g. discharge) was mo­
tivated by the employee’s protected concerted activity. (foot-
notes omitted)
I credit Solis that she and Campero discussed the new sched­
ule and its deleterious effect on senior employees on October 4
when they arrived at work and I find that Campero said that she
would speak to Clark about the matter. Both Solis and Toro
testified that Solis was with Campero when she confronted
Clark about the schedule change. In fact, Toro stated that Solis
was “egging on” Campero in her effort to discuss the matter
with Clark. Although Campero herself did not recall that Solis
was present, I believe that this failure of recollection is not
significant in view of the fact that both a unit member and a
manager called by the Respondent testified convincingly that
Solis supported Campero in her discussion with Clark about the
schedules. In addition, I note that Toro stated that all of the
night shift employees were standing around the schedule and
complaining. I find that after Campero and Solis discussed the
new schedule Campero went to tell Clark that his schedule was
unfair to the senior employees and contrary to the way things
had been done before. Campero’s approach was authorized by
Solis and was engaged in with her standing by Campero’s side
“egging her on.” Campero’s effort to discuss employee sched­
ules with Clark was undertaken on behalf of herself and other
unit members. Campero was therefore engaged in protected
concerted activity. The Respondent was aware of the unit em­
ployees’ concern and the fact that Campero was speaking for
them because Toro reported to the owners all that she had seen
on October 4.
I find, based on the testimony of Solis and Campero, that
Clark raised his voice while Campero was talking to him and
that he cursed. I find, based on Toro’s testimony, that Campero
also raised her voice but, in the absence of credible testimony
that she cursed at Clark, I do not find that she cursed. Clark did
not appear to testify that Campero threw the schedule on the
floor and Toro did not see that happen. Campero and Solis
deny that the schedule was thrown. I do not find that Campero
threw the schedule. A certain leeway is granted to employees
engaged in discussions of terms and conditions of employment
with their employers. These discussions often become heated
and employees do not lose the protection of the Act even if they
scream, curse or engage in other spirited acts. Felix Industries,
331 NLRB 144 (2000). Thus, I find that Campero did not lose
the protection of the Act by raising her voice to Clark while
talking about the schedule change. Moreover, even if I had
found that Campero cursed and threw the schedule I would not
find that her actions were so egregious as to render them unpro­
tected, especially where Clark was screaming and cursing at
Campero.
The Respondent does not dispute that it discharged Campero
for her conduct in speaking to Clark about the new schedules.
Thus, I find that the Respondent violated Section 8 (a) (1) of
the Act because it discharged Campero for protected concerted
activity.
C. Constructive Discharge of George Panagiotopoulos
George Panagiotopoulos was employed by the Respondent
from August 1992 until August 27, 1998. He was the head
baker; his duties included making fillings, making crumb, mak­
ing pies, mixing brownies and working the ovens. Panagio­
topoulos worked the day shift. Panagiotopoulos made contact
with the Union in May 1998 and he obtained employee signa­
tures on Union authorization cards. He served as the Union’s
election observer.
Before the election the general manager of the bakery quit.
Panagiotopoulos asked owner Robert Weber what was going
on. Weber responded, “You know what’s going on. You
should put an end to it before things get complicated.”
Panagiotopoulos said he did not know what was going on.
Weber said that a union was not necessary in the bakery be-
cause it was not as big as Entenmann’s and if there were any
problems “we can all sit down and talk about it.” Weber told
him to think it over.
On June 16, owner Kathleen King told Panagiotopoulos that
he would henceforth be assigned to make pies.5 She instructed
him to check with her before he did anything in the bakery and
not to speak to anyone. King said he was no longer allowed to
receive telephone calls or have anything to eat or drink. King
called Panagiotopoulos some names and said, “You call your-
self a man. You’re a pathetic excuse of a person.” Whenever
King saw Panagiotopoulos speaking to another person she re-
minded him that he was not allowed to speak to anyone and she
said, “Go back to work you bastard.”
On July 10, 1998, the day of the election, Panagiotopoulos
went to the building where the election was being conducted
after Robert Weber told him that he had been requested to act
as an observer. As the Board Agent was explaining the proce­
dures, Panagiotopoulos felt someone hit him across the shoul­
ders. King said, “You figure out a way to keep your boss’
mouth shut.” He said he did not know what she was talking
about and began walking away when she grabbed him and said,
“You fucking liar. I thought you weren’t part of this.” Robert
Weber apologized for King and took her out of the room. Later
Panagiotopoulos told Robert Weber to keep King away from
him. Weber replied, “Well, you’re trying to destroy this place.”
Employee Karl Stork testified that before the election took
place he was standing outside with a group of employees.
Kathleen King was nearby and as she looked at Panagiotopou­
los Stork heard her say, “I knew that bastard was involved with
the Union.”
On Saturday July 11, the day after the election, the Respon­
dent conducted a meeting for its employees. Robert Weber,
Kathleen King and plant manager Richard Bartlett attended on
behalf of management. The employees present included
Panagiotopoulos, Karl Stork, Sean Corbett, a new summer em­
ployee named Robert and an employee named Raphael. Byler
said that since there was a union there were new rules. He then
informed the employees that the new rules included the follow­
ing:
No coffee or tea during working hours.
5 One of his assistants took over his former mixing duties.
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
No more eating in the bakery.

No more receiving or making telephone calls.

No more radio in the bakery.

No speaking to other employees unless it was work related.

No loafing.

As the meeting ended, King said that she did not want any of
this to happen but that the employees had brought it upon them-
selves by voting in the Union.
Panagiotopoulos recalled that at the end of July a new night
manager named Warren “Buddy” Clark was hired. On August
27, 1998 he saw Clark come to work at his usual time of 4:30
p.m. Panagiotopoulos and fellow employee Karl Stork were
just finishing their work and they went to the local pub at
around 5:15 to have a beer. After about 10 minutes Clark came
in, and despite the fact that the bar was essentially empty, he
came over to Panagiotopoulos and sat down right next to him
and Stork. Panagiotopoulos introduced himself and Clark said
“I’m Buddy.” Clark then said, “You are the guy that started the
Union.” Panagiotopoulos replied “No, we started the Union.”
Clark continued, “You started the Union and that’s why I’m
here. I’m here to kill you.” Clark said, “They came looking for
me to come after you and take you out.” Clark told Panagio­
topoulos that the employees would never get overtime again,
they would lose their Christmas bonuses and everything else.
Clark said he was a “corporate killer.”
Panagiotopoulos left the bar and drove to the Southampton
police station about five miles away to file a report. After a
series of visits to various local and state police stations where
he was repeatedly sent to another location he was eventually
permitted to file a report.
The next day Panagiotopoulos did not go to work; instead, he
went to the Labor Board. While he was giving an affidavit
about the previous day’s experience, he was called by Union
organizer Larry Atkins who had been contacted by Panagio­
topoulos’ wife after Robert Weber called his home to find out
why he was not at work. Atkins, Robert Weber and Panagio­
topoulos then held a telephone conference call. Robert Weber
asked what was going on. Panagiotopoulos said that Weber
had hired someone to kill him and he related what had hap­
pened the afternoon before. Weber said that was ridiculous and
that he expected him back to work the next morning. Panagio­
topoulos protested that he could not work the next morning.
Weber told him that if he did not show up he would be consid­
ered to have resigned. Panagiotopoulos said he would come
back to work when the authorities could guarantee his safety.
Weber replied, “The big shot guarantees your safety.” When
Panagiotopoulos asked how he could guarantee his safety when
he had hired someone to kill him Weber responded that he was
“blowing it out of proportion.” Weber denied that he had hired
a corporate killer.
Panagiotopoulos had been apprehensive about events at the
bakery before August 27. A note had been placed on his wind-
shield at work telling him to stop what he was doing “or else.”
When he showed the note to Robert Weber and Kathleen King,
Weber ripped it up and threw it away with the comment that a
lot of people were not happy with what Panagiotopoulos was
doing. Every time he approached Kathleen King she said, “Go
fuck yourself.”
Panagiotopoulos was issued an order of protection on No­
vember 17, 1998. He said that the local police reported to him
that they had trouble finding Clark.
Panagiotopoulos’ recital of the encounter was confirmed by
the testimony of Stork.6 Stork testified that the day after Clark
made his threats in the bar he went to work with a baseball bat.
Stork felt endangered. When Kathleen King asked why he had
a bat in the workplace Stork told her that he and Panagiotopou­
los had been threatened by the night manager. King said Clark
was no longer working in the bakeshop. However, Stork testi­
fied without contradiction that he repeatedly saw Clark at the
bakeshop premises after this occasion.
Robert Weber testified in response to questions posed by
Counsel for the General Counsel that on August 28 Stork in-
formed him that Clark had threatened to kill Panagiotopoulos.
Weber stated that at some point Clark told him about the inci­
dent. Weber acknowledged that on September 1, 1998 Counsel
for the Respondent informed the Regional Office that Clark had
no memory of the incident in a letter written at the behest of the
company. Following this testimony, Weber testified in re­
sponse to questions posed by Counsel for the Respondent.
Weber persisted in describing the incident as something that
happened in the “middle of the night in a bar.”7 Weber said
that on August 29 he asked Clark what had happened. Clark
said he could not recall anything happening. When Robert
Weber persisted in his questioning, Clark said that he “might
have had some words” with Panagiotopoulos and Stork but
nothing “argumentative.” Weber told Clark “you can’t do this
type of thing” and Clark apologized and said he was very upset
because he had a family member that died. The Respondent
did not call Clark to testify about the events in the bar on the
afternoon of August 27. Weber’s second hand description of
Clark’s version of the conversation is hearsay and, as discussed
below, it is inconsistent and incredible.
The evidence that night manager Clark threatened to kill
Panagiotopoulos because he brought the Union to the bakeshop
is convincing and it is unrebuted. I find that the Respondent
violated Section 8 (a) (1) of the Act. Pioneer Recycling Corp.,
323 NLRB 652, 658 (1997). Further, the evidence that Clark
said that he knew Panagiotopoulos had started the Union is
convincing and it is unrebuted. I find that this comment created
the impression that Panagiotopoulos’ union activities were
under surveillance and that the Respondent thus violated Sec­
tion 8 (a) (1) of the Act. I do not find that Clark unlawfully
interrogated Panagiotopoulos about his union activities.
The uncontradicted testimony shows that the Respondent’s
principals harbored a thoroughgoing antiunion animus which
was often directed at Panagiotopoulos. King cursed him and
blamed him for his activities on behalf of the Union. Weber
thought that he was trying to “destroy” the company by bring­
ing in the Union. The Respondent retaliated against Panagio­
topoulos by imposing onerous working conditions on him.
Thus when Clark came into the bar on August 27 and told
6 Stork has been employed as a mixer by the Respondent since 1996.
7 It is undisputed that the incident occurred shortly after 5 p.m.
KATHLEEN’S BAKESHOP, LLC 1091
Panagiotopoulos that he was a corporate killer who had been
hired to kill him and take him out, Panagiotopoulos had every
reason to believe Clark. Robert Weber’s denials in connection
with his demand that Panagiotopoulos return to work were not
such as would reasonably reassure an employee whose life had
been threatened because of his union activities. Weber denied
that he had hired a corporate killer, he said that Panagiotopou­
los’ fears were ridiculous and that he was blowing the incident
out of proportion. This response to Panagiotopoulos was not
the serious response of an employer concerned about an em­
ployee’s safety. Weber did not say that he would investigate
the matter and take appropriate steps, he did not say that he
would confront Clark and he did not say that he would cooper-
ate with the authorities. Instead he merely dismissed Panagio­
topoulos’ well-founded fears out of hand. Furthermore, We­
ber’s testimony herein was not forthcoming. At first he testi­
fied that he authorized company Counsel to inform the Re­
gional Office that Clark had no memory of the incident. Then
he testified that Clark might have had words with the two em­
ployees but nothing argumentative. Inexplicably, Weber
warned Clark that he “can’t do this type of thing.” If Clark
denied an argument with Panagiotopoulos and Stork then We­
ber would have had no reason to tell Clark “you can’t do this
type of thing.” Finally, Weber offered the excuse that Clark
was upset over the death of a family member. Of course, there
is no connection between a death in the family and Clark’s
threats to kill Panagiotopoulos because he had brought the Un­
ion to the company. I find that Robert Weber’s testimony
about this incident was disingenuous and evasive.
The Respondent’s records and Robert Weber’s testimony
show that the company maintained a system of progressive
discipline and that it did not discharge employees for a single
instance of absenteeism. Thus Olivencia was not terminated
until he had accumulated three absences. In the case of
Panagiotopoulos, however, the Respondent seized upon his
absence in connection with Clark’s threats to issue an immedi­
ate warning that if he did not return to work the next day he
would be treated as having resigned. The Respondent did not
apply progressive discipline and it did not seek to take steps to
insure his safety. Weber cavalierly dismissed Clark’s threats
and insisted that Panagiotopoulos had to return to work. This
action on the part of Weber further confirms that the Respon­
dent, having driven Panagiotopoulos from the workplace
through a manager’s threats on his life, immediately took steps
to make his departure final. By threatening the employee’s life
and failing to take convincing steps to assure him of his per­
sonal safety, the Respondent constructively discharged
Panagiotopoulos.
Based on ample evidence of the Respondent’s antiunion
animus, I find that a motivating factor in Panagiotopoulos’
discharge was his activity in support of the Union. Further, I
find that the Respondent has not shown that if Panagiotopoulos
had not engaged in Union activity, he would have been dis­
charged nevertheless. Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F. 2d 899 (1st Cir. 1981). Panagiotopoulos had a
very good reason for his absence. If he had not been threatened
in connection with union activity which the Respondent op­
posed the company would have reacted with concern to his
well-corroborated report of having received a death threat from
a supervisor. The Respondent’s own records show that the
Respondent usually applied a “three strikes” policy in cases of
employee absence.
The General Counsel has met the test enunciated in Crystal
Princeton Refining Co., 222 NLRB 1068 (1976). The burdens
imposed upon the employee have caused and were intended to
cause a change in his working conditions so difficult or un­
pleasant as to force him to resign. Second, the burdens were
imposed because of the employee’s union activities. I conclude
that the Respondent violated Section 8 (a) (3) of the Act when
it constructively discharged Panagiotopoulos.
D. Increase in Hours
The Respondent stipulated that in May 1999 it increased the
hours of employment of the day shift production employees and
that this resulted in a decrease in the hourly pay rates of sala­
ried employees. Karl Stork is the only salaried bargaining unit
employee. He has been employed as a mixer since 1996. Stork
testified that in the off season he worked from 8 a.m. to 4 p.m.
but that in the summer he normally worked from 7 a.m. to 4
p.m. Stork testified that some days in the summer of 1999 the
Respondent required him to work 11 to 11 ½ hours per day.
Stork stated that this was much longer than he had ever before
been required to work during a summer season.8 It is undis­
puted that the Respondent did not notify the Union and provide
it with an opportunity to bargain about the change in Stork’s
hours. The Respondent thus violated Section 8 (a) (5) of the
Act.
E. The Union’s Information Requests
The Complaint alleges that by not supplying requested in-
formation to the Union the Respondent failed to bargain in
good faith over the effects of moving the production operation
and subcontracting the trucking operation. In addition, the
Complaint alleges that the Respondent failed to supply infor­
mation to the Union that was necessary and relevant to its du­
ties as representative of the unit employees.
The first collective bargaining session between the Respon­
dent and the Union took place on October 22, 1998. The
spokesman for the Union was Larry Atkins, secretary-treasurer
and business agent of Local 3. Robert Weber was the company
spokesman. At this meeting, Robert Weber informed the Union
that the Respondent was moving its production facilities to
Richmond, Virginia. The move would take place about January
1999. Weber said that the cake decorating and retail store op­
eration would remain in Southampton and “maybe” the drivers.
Atkins replied that he wanted to bargain over the effects of the
move and also to bargain on behalf of the employees remaining
in Southampton.
8 Although Stork had once worked about 50 hours per week, that oc­
curred when he was first hired and while he was also managing the
retail part of the operation. After Barbara Toro was hired as retail store
manager, Stork did not continue doing this job.
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Requests for information on April 13 and May 11
By letter of April 13, 1999 the Union requested, inter alia,
the following information:9
2. A list of all job titles represented by Local 3 in the
Southampton facility that will be relocated to the new fa­
cility in Richmond.
4. A list of all existing job titles that have been filled
or will be filled in the Richmond facility, as well as the
rates of pay and benefits the company is offering employ­
ees in those titles, including vacation, holidays, sick days,
health, pension and any other benefits.10
Atkins testified that the information about wages and bene­
fits being paid to similar employees in Richmond would have
been relevant in formulating a demand for the unit employees
in Southampton.
Atkins also testified that he needed this information to bar-
gain on behalf of employees who were relocated to Virginia.
The record shows that employee Freddy Ruiz, a former South­
ampton employee, now works in the new Richmond facility.
Furthermore, Southampton employee Guadalupe Camacho has
made trips to Richmond to help with recipes. Therefore, the
requested information would have been relevant to bargaining
concerning the effects of relocating employees to Richmond.
On April 13, 1999 the Union also requested the following in-
formation:
With respect to truck driver job titles, a description of
the delivery routes including the geographic scope of the
routes, the products delivered on each route and type of
customers being serviced (i.e., restaurants, supermarkets,
etc.) and the job description of the drivers.
With respect to deliveries contracted out to entities or
to persons not employed by Respondent, a description of
the delivery routes, including the geographic scope of the
routes, the products delivered on each route and type of
customers being serviced (i.e. restaurants, supermarkets,
etc.) and the job description of the drivers.
Atkins testified that the Union needed this information so
that it could determine whether employee Ken Patrick was
actually a unit employee or an independent contractor. Al­
though Patrick’s name had been on the Excelsior List, Patrick
appeared to be distributing work to the other drivers and he
kept the best routes for himself.
The Union’s April 13 letter also requested the following in-
formation:
A list of all existing job titles, filled and unfilled at any other
facilities owned or operated by Respondent.
By letter of April 21, 1999 Robert Weber replied to the Un­
ion request for information. His letter said:
9 The hiatus between the first bargaining session and the information
request occurred because the Union filed a number of charges against
the Respondent and it waited to continue the bargaining until the
charges were acted upon. Certain of the charges did not result in the
issuance of any complaint.
10 At the instant hearing the General Counsel deleted from the Com­
plaint the reference to item 2 stating that it was duplicative of item 4.
We are not relocating job titles to Richmond. We will
be commencing production operations and any of our cur-
rent employees currently working in that capacity at
Southampton are potentially affected. None of our em­
ployees have been “offered benefits” prior to your letter.
We fail to see what interest your union has with re­
spect to how we conduct our Richmond operations. Fur­
thermore, that has not yet been finalized.
Weber’s April 21 letter also stated:
There are no other facilities other than those referred to
above . . . .
Another collective bargaining session was held on May 11,
1999. At this meeting Atkins asked for the following informa­
tion:
Information concerning Respondent’s plans to move
the operation, including the names of the employees to be
moved.
Date of last day of work in Southampton.
What machinery would remain in Southampton.
The cost of subcontracting the drivers’ work.
The cost to Respondent to deliver the product.
A copy of the bids in order to negotiate whether the
drivers could remain in Southampton.
Atkins testified that on May 11 the negotiators discussed the
possibility of keeping the distribution operation in Southamp­
ton. The company said that it was receiving bids from a sub-
contractor for the deliveries and that it would get back to the
Union. The Union wanted a chance to provide an alternative to
subcontracting the drivers’ work and Atkins said that he could
devise a less expensive contract. However, Atkins testified, the
Respondent never got back to him with the requested informa­
tion.
Atkins wanted advance notice of the termination of produc­
tion in Southampton so that the Union could help employees
with applications for unemployment benefits and ask for letters
of recommendation.
Atkins testified that he wanted a list of the machinery that
the Respondent intended to retain in Southampton so that he
could negotiate on behalf of the unit employees who would be
operating the equipment. The Respondent did not furnish this
information.
On June 14, 1999 Robert Weber wrote to Atkins informing
him that the Respondent intended “to terminate our driver staff
in Southampton on June 15, 1999 and our production in South­
ampton on June 19, 1999.” An attached list named the employ­
ees to be terminated. Weber testified that all wholesale opera­
tions at Southampton ceased on June 18. Weber had hired
various companies to move equipment such as mixers and ov­
ens and he hired companies to hook up electricity, gas and wa­
ter in the new facility. Weber testified that the Respondent
ceased using its own employees as drivers on June 14. The
company now uses a distributor located in Florida and it con-
tracts with Ken Patrick, a former employee, who buys products
from the company in Richmond and markets them in the New
York metropolitan area.
KATHLEEN’S BAKESHOP, LLC 1093
On September 8, 1999 the Respondent’s counsel provided
information to Atkins about the Richmond operation as fol­
lows:
The job titles for production and maintenance personnel in
Richmond are mixer, depositors and packers. Workers are
obtained through a temporary agency and are paid rates de­
termined by the agency. We understand this to currently be a
minimum of $7.00 per hour. We are unaware of any benefits.
The letter also stated:
The employer does not have truck drivers. Its former truck
drivers did not have job descriptions. Their routes varied de-
pending upon customer orders. . . . The employer’s current
distribution and delivery system is handled by independent
distributors. . . .
In his September 8 letter Counsel for the Respondent noted
that the Regional Office was pursuing a case based on the re­
fusal to negotiate effects of the decision to move to Richmond.
The letter reiterated Robert Weber’s prior statement by saying,
“There are no other facilities.” In response to a further inquiry
by the Union, Counsel for the Respondent stated in a letter
dated September 22, 1999:
As your people must know, the “Kearny Facility” is located at
680 Schuyler Avenue, Kearny, New Jersey. It is an empty
warehouse with a freezer. It has not been and is not “operat­
ing”. There are no plans for its use and if you are aware of
anyone who might be interested in purchasing the facility,
please let us know.
In connection with the Kearny facility, Robert Weber testi­
fied that after production was moved to Richmond the pies
were shipped from Richmond to Kearny and then to customers
in New York. Although he first stated concerning his product
“it was baked in Richmond,” he later acknowledged that the
pies were assembled in Richmond and baked in Kearny.11 We­
ber testified that he looked at the Kearny facility in the spring
or summer and that he signed the lease in June 1999. In June
and July the Respondent baked pies in Kearny and had them
delivered to gourmet shops, restaurants, supermarkets and ho­
tels from that location. Before the setting up of the Kearny
facility, the deliveries had taken place from Southampton.
Weber admitted that the letter of September 22 was authorized
by him and that it “is not literally true.”
2. Discussion and conclusions concerning information requests
a. Production jobs in Richmond and terminations in
Southampton
The Respondent has a duty to provide the Union with rele­
vant information required for the proper performance of its
duties. Information relating to the wages, hours and working
conditions of employees in the bargaining unit is presumptively
relevant. Information concerning employees outside the unit
must be shown to be relevant to bargainable issues. The Union
11 This meant that the Kearny facility contained ovens and other
equipment as well as the freezer mentioned in the letter from Counsel
for the Respondent.
need only demonstrate that the requested information is proba­
bly relevant and that it will be of use to the Union in carrying
out its statutory duties and responsibilities. A “discovery-type
standard” is applied to determine relevance. NLRB v. Acme
Industrial Co., 385 U.S. 432, 437 (1967). Press Democrat
Publishing Co., 237 NLRB 1335, 1338 (1978), enfd. 629 F.2d
1320 (9th Cir. 1980).
The information concerning the wages and benefits paid to
the Respondent’s Richmond employees who perform similar
work to that performed by the unit employees would clearly be
relevant and helpful to the Union in formulating a demand for
the unit employees. This information should have been fur­
nished to the Union promptly. Press Democrat Publishing Co.,
supra, at 1339. The failure to furnish this information from
April 13 to September 8 was a violation of Section 8 (a) (5) of
the Act.
It has long been clear that when an employer has a duty to
bargain over the effects of a managerial decision, the bargain­
ing “must be conducted in a meaningful manner and at a mean­
ingful time” and the union “has some control over the effects of
the decision and indirectly may ensure that the decision itself is
deliberately considered.” First National Maintenance Corp. v.
NLRB 452 U.S. 666, 682 (1981).
As set forth above, the Respondent’s April 21 letter to the
Union stated “we are not relocating job titles to Richmond.”
This answer was not responsive to information the Union was
clearly seeking, that is, what kind of work performed by the
unit employees was being shifted to the Richmond facility.
Although the Union could have guessed that any or all produc­
tion operations were being moved, the Respondent had a duty
to answer the request for information fully. The Respondent’s
April 21 letter also stated that its plans had not been “final­
ized.” Therefore, the Union could have bargained about job
security at this time as part of the effects bargaining. The fail­
ure to provide this information precluded meaningful effects
bargaining. First National Maintenance Corp., supra. Fur­
thermore, at some point the Respondent did “finalize” the scope
of its Richmond operations and it did decide to offer relocation
to some employees. Yet the Respondent did not provide this
information to the Union. By the time the Respondent provided
the information relating to the job titles on September 8, the
relocation had already taken place. Thus, the Union was de­
prived of the opportunity to bargain about the terms of the relo­
cation and about the number of employees to be offered reloca­
tion to Richmond. The information was provided too late to
permit the Union to bargain over the effects of the Respon­
dent’s decision to relocate. This constitutes a separate basis for
finding a violation to furnish the information. Miami Rivet of
Puerto Rico, Inc., 318 NLRB 769, 771–772 (1995).
As shown above, the Union asked on May 11 for the date of
the last day of production in Southampton. The Respondent did
not furnish that information until June 14, four days before it
terminated the production employees on June 18 and only one
day before it terminated the drivers on June 15. The delay in
providing information concerning the last date of operation was
not only an unlawful refusal to provide information but it also
precluded meaningful bargaining over effects. Miami Rivet of
Puerto Rico, Inc., supra.
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b. Truck drivers
The information requested on April 13 about the truck driv­
ers including job titles, delivery routes, products and job de­
scription was presumptively relevant because it dealt with the
working conditions of the unit employees. The request for
information about whether any deliveries were being contracted
out would have been helpful to the Union to determine the true
job status of employee Patrick. This information should have
been furnished to the Union promptly. The failure to furnish
this information was a violation of Section 8 (a) (5) of the Act.
The information requested on May 11 concerned the subcon­
tracting of the delivery operation including costs of delivery
and of subcontracting. The Respondent did not furnish any of
this information and it notified the Union on June 14, 1999 that
it was terminating the drivers the next day. Although the deci­
sion to subcontract the drivers’ duties is not alleged to violate
the Act, at the time that the Union requested the information the
subcontracting decision had not yet been made final and bar-
gaining on the effects of the decision was still possible. In fact,
Atkins testified that he was trying to put together a plan that
would convince the company to keep its own drivers for deliv­
eries and keep this part of the operation in Southampton. Thus
the Respondent’s failure to provide this information prevented
meaningful bargaining on the job security of the drivers and on
the effects of the decision to relocate. The Respondent thus
violated Section 8 (a) (5) of the Act.
c. Other facilities
It is clear that the Respondent did not respond accurately or
truthfully to the Union’s requests for information about other
facilities. The Respondent finally acknowledged the existence
of the Kearny facility on September 22, after the facility had
been abandoned. If the Union had been provided with the in-
formation about establishment of the Kearny facility it could
have bargained about the relocation of employees to that facil­
ity. Further, the information would have been relevant to the
Union in formulating its demands on behalf of the unit in
Southampton. The failure to provide this information violated
Section 8 (a) (5) of the Act.
d. Machinery
The information about machinery to remain in Southampton
related directly to the job duties of the unit employees. Thus
this information was presumptively relevant to the bargaining.
The failure to furnish this information to the Union violated
Section 8 (a) (5) of the Act.
CONCLUSIONS OF LAW
1. By discharging its employee Maria Campero because she
engaged in protected concerted activities by complaining to
management about wages, hours and working conditions the
Respondent violated Section 8 (a) (1) of the Act.
2. By constructively discharging its employee George Pana­
tiotopoulos because he supported the Union the Respondent
violated Section 8 (a) (3) and (1) of the Act.
3. By threatening to kill its employees because they support
the Union and by creating the impression that its employees’
activities in support of the Union were under surveillance the
Respondent violated Section 8 (a) (1) of the Act.
4. The Union is the exclusive collective bargaining repre­
sentative of the employees in the following unit within the
meaning of Section 9 (a) of the Act:
All full-time and regular part-time bakers, production em­
ployees, drivers, store clerks and maintenance employees em­
ployed by Respondent at its facility, excluding all office cleri­
cal employees, guards, and supervisors as defined in Section 2
(11) of the Act.
5. By increasing the hours of employment of day shift pro­
duction workers which resulted in a decrease in the hourly pay
rates of salaried employees without notice and an opportunity
to bargain to the Union the Respondent violated Section 8 (a)
(5) and (1) of the Act.
6. By failing to supply relevant information requested by the
Union relating to wages, hours and working conditions of its
unit employees and related to the effects of its decision to move
production to Richmond, Virginia, and to subcontract delivery
operations, the Respondent violated Section 8 (a) (5) and (1) of
the Act.
7. The General Counsel has not shown that the Respondent
engaged in any other violations of the Act.
REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu­
ate the policies of the Act.
The Respondent having discriminatorily discharged employ­
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com­
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Since the Respondent refused to bargain with the Union
about the effects of its relocation of production and the subcon­
tracting of delivery operations, the Order must contain a limited
backpay requirement designed both to make employees whole
for losses, if any, suffered as a result of the violation, and to
recreate in some practicable manner a situation in which the
parties’ bargaining position is not entirely devoid of economic
consequences for the Respondent. The Respondent should be
ordered to pay backpay to its employees in the manner analo­
gous to that required in Transmarine Corp., 170 NLRB 389
(1968), and Interstate Fuel Co., 177 NLRB 686 (1969). The
Respondent shall pay employees backpay at the rate of their
normal wages when last in the the Respondent’s employ, from
five days after the Board’s decision until the occurrence of the
earliest of the following conditions: (1) The date the Respon­
dent bargains to agreement with the Union about those subjects
pertaining to the effects on its employees resulting from its
partial closing and subcontracting decision; (2) a bona fide
impasse in bargaining; (3) the failure of the Union to request
bargaining within five days of the Board’s decision, or to com-
KATHLEEN’S BAKESHOP, LLC 1095
mence negotiations within five days of the Respondent’s notice dent shall have offered to bargain, whichever occurs sooner;

of its desire to bargain with the Union; or (4) the subsequent provided, however, that in no event shall this sum be less than

failure of the Union to bargain in good faith; but in no event these employees would have earned for a two-week period at

shall the sum paid to any of the employees exceed the amount the rate of their normal wages when last in the Respondent’s

he or she would have earned as wages from the date on which employ.

he or she was terminated to the time he or she secured equiva- [Recommended Order omitted from publication.]

lent employment elsewhere, or the date on which the Respon-