Kern's Bakeries, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1977

228 N.L.R.B. 1462 (N.L.R.B. 1977)

1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kern's Bakeries, Inc. and General Drivers, Ware-
housemen and Helpers, Local Union No. 89,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 9-CA-10098
April 14, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On November 29, 1976, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Kern's Bakeries, Inc., London, Kentucky, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order as so
modified:
Insert the following as paragraph 1(e):
"(e) In any other manner interfering with, restrain-
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have
carefully examined the record and find no basis for reversing his findings
2 The Administrative Law Judge credits employee Phillip Bradley's
testimony that Respondent's manager, Jebb Bndgeman, told employees
"We will not recognize the Union " and "we'll close it down or we'll
lock it up " Based on this testimony, the Administrative Law Judge correctly
finds, and we agree, that Respondent threatened its employees with refusal
to recognize the Union and with closure of its Louisville plant (warehouse)
However, through inadvertent error, the Administrative Law Judge at one
point states that the threat occurred on January 27, 1976 It is clear,
however, that the threat occurred on October 27, 1975 (as he elsewhere
finds). We hereby correct the Administrative Law Judge's findings
accordingly
3 Although the Administrative Law Judge included the broad injunctive
language in his notice , he inadvertently failed to include it in his
recommended Order. We will, therefore, modify his recommended Order
accordingly
ing, or coercing employees in the exercise and
enjoyment of rights guaranteed them by Section 7 of
the Act, except to the extent that such rights might be
affected by lawful agreements in accord with Section
8(a)(3) of the Act."
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
a charge filed on February 26, 1976, and thereafter
amended on April 8 and 14, 1976, respectively, by General
Drivers, Warehousemen and Helpers Local Union No. 89,
hereinafter called the Union, against Kern's Bakeries, Inc.,
hereinafter called the Respondent, the General Counsel, by
the Regional Director for Region 9 (Cincinnati, Ohio),
issued a complaint and notice of hearing on April 22, 1976.
The complaint alleges in substance that Respondent
coercively interrogated its employees about their sympa-
thies for and activities on behalf of the Union; that it
threatened to discontinue its profit-sharing plan if the
employees selected the Union as their representative; that
it discriminatorily instituted a system of written warnings
to employees because of their sympathy for or activities on
behalf of the Union, all in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended; and
that it discriminatorily failed and refused to recall an
employee to his previous or similar position of employment
because of his union activity; and that it discriminatorily
discharged and thereafter failed and refused to reinstate an
employee because of his union interest and activities, in
violation of Section 8(a)(3) of the Act.
The Respondent filed an answer denying any violation of
the Act.
This hearing was held before me in Louisville, Kentucky,
on June 9 and 10, 1976. Briefs have been received from
counsel for the General Counsel and counsel for the
Respondent, respectively, which have been carefully
considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Kern's Bakeries, Inc., Respondent herein, is a Kentucky
corporation with its principal place of business and plant
located in London, Kentucky, where it is engaged in the
wholesale distribution of bakery goods from its warehouse
in Louisville and other locations in Kentucky. During the
past 12 months, a representative period, Respondent
purchased goods and products valued in excess of $50,000
from suppliers located outside the State of Kentucky, and
caused said goods and products to be shipped directly in
interstate commerce from points outside the State of
Kentucky to its place of business within the State of
Kentucky. During the same period Respondent had a gross
volume of business in excess of $500,000.
The complaint alleges , the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
228 NLRB No. 175
KERN'S BAKERIES , INC. 1463
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
General Drivers, Warehousemen and Helpers Local Union
No. 89, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Although the Respondent's plant is located in London,
Kentucky, it nevertheless serves two-thirds of the State,
including eastern Kentucky, central Kentucky, and west-
ern Kentucky. Each location has a sales manager who in
turn has two and sometimes three area managers. Each
area has no less than two nor more than three route
supervisors who are under the direct supervision of the area
manager. Louisville is in the western Kentucky section,
under the supervision of Sales Manager Jepp Bridgeman.
His area manager in Louisville is Elroy Johnson and the
Louisville route supervisor is Joseph Masterson.
Each bread salesman for the Respondent has a standing
order of bakery products which is approximately what he
needs per day on a 5-day week for his route. However, he is
allowed adjustments up to 24 hours in advance which he
may request by telephone. These orders are submitted to
the plant where they are produced in accordance with the
order slips of the bread salesmen and thereupon shipped by
trailer at night and distributed into the various warehouses.
The bread salesmen report to the warehouse in the
morning and load their own trucks in accordance with the
bread orders which are stacked behind their trucks.
The bakery products are delivered and picked up as
follows: Donuts have a code printed on the package
indicating when they are to be picked up and bread is
picked up on Mondays and Thursdays. That is, bread
which is distributed on Mondays and Tuesdays is picked
up on Thursdays, and bread which is distributed on
Thursdays, Fridays, and Saturdays is picked up on
Mondays. Restaurants are worked on a 4-day code. The
merchandise distributed in restaurants on Saturdays is
picked up on Tuesdays. When stale products are picked up
they are returned to the warehouse to be sold in the surplus
store.
Respondent has a plant payroll of 375 employees. It has
126 driver salesmen and 19 tractor-trailer drivers. The
alleged discriminatee, Roger Bryant, was employed by the
Respondent as a driver route salesman on November 19,
1973, and he worked the Carrolton route. Alleged discrimi-
natee Phillip D. Bradley was first employed by the
Respondent as a driver route salesman in July 1975 and
was assigned to the Shepherdsville route.'
A. The Employment Tenure of Dischargees Roger
Bryant and Phillip D. Bradley, Their Organizing
Activity, and Respondent's Conduct Subsequent
Thereto
Dischargee Roger Bryant was employed by the Respon-
dent on November 19, 1973, as a driver route salesman
delivering bread and bakery products to the grocery and
restaurant customers of the Respondent. For 2 years he
was assigned to the longest sales route milewise which
included 26 stops. During the 2-week period of October 7-
21, 1975, Bryant testified that he was engaged in organiza-
tional activity by talking to several of Respondent's drivers
about unionization. He also signed a union authorization
card. On October 22, 1975, he was discharged for the first
time for refusing to set up or put out "punchboards" in the
local markets where patrons could take chances in
punching out the right number to win a fruitcake.
Bryant said although he had set up the punchboards in
the past Christmas seasons, he nevertheless had returned to
his Church of Christ in September 1975, and thereafter
refused to set up the punchboards on October 20, 1975,
because he was trying to comply with his religious
teachings (which presumably considered punchboard
chances gambling). He said he advised Supervisor Master-
son of this fact and Masterson dropped the matter.
However, on October 22, 1975, Supervisor Johnson
ordered him to set up the punchboards on his route and he
said he would rather not do it because he was trying to
abide by his religious beliefs. Johnson then said, "You
either set them up or you will be fired." Bryant did not set
them out so he was discharged.
Bryant said he did not believe he was discharged for
failing and refusing to put out the punchboard, but, rather,
because of his organizational activity about which he
believed the Respondent had learned. On October 28,
1975, he went to the National Labor Relations Board and
filed a charge. On October 25, 1975, Respondent received
the Union's demand letter requesting recognition.
On November 10, 1975, Area Manager Elroy Johnson
telephoned Bryant and asked him to come to the
warehouse the next morning because he wanted to talk
with him. When Bryant arrived he found Area Manager
Johnson and other supervisory personnel, Manager Bridge-
man and Supervisor Masterson, present and the following
conversation ensued: Manager Bridgeman said, "Roger,
how would you like to go back to work for us? Selling our
products." "And I said it would be alright with me, and
then he asked me when I could start and I said, `well, Jebb
I lost three things when I left here; I lost my seniority; I
lost all my hospitalization, and backpay. I want them all
three back.' " Bryant then said Mr. Bridgeman did not
have the power to do that so he told him he would go to
London and see Mr. Oakes that night and come back the
next day with it in writing after Bryant requested that it be
in writing. After receiving the note from Mr. Oakes about
his seniority and other benefits (Resp. Exh. 2), Bryant said
he dropped the charges filed with the Board because he was
given his backpay. He was thereupon assigned to his same
i The facts set forth above are undisputed and are not in conflict in the
record.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carrolton sales route with Supervisor Masterson accompa-
nying him on the route the first day, which Respondent
said was customary whenever a breadman has been out a
week or more. When they completed the first day's work,
Bryant said he asked Masterson how was everything and
Masterson said, "just fine." Masterson did not accompany
him the next day. However, on his second day at work he
received a company warning called a "verbal correction
report," charging him with careless operation of a truck
and not watching the road (G.C. Exh. 2), because
Masterson had reported to Area Supervisor Johnson that
he (Bryant) had run off the road. The record establishes
that this is the first time Bryant or any other employee in
the western area had ever been given a written company
warning. The warning was dated November 18, 1975.
Bryant said he received a second company written
warning dated November 25, 1975, wherein he was charged
with failure to order some hotdog buns for a school for
which the Respondent had a bid. Supervisor Johnson also
said Bryant needed to watch ordering closer. (G.C. Exh. 3).
The parties stipulated that the union election was held on
January 27, 1976.
Bryant further testified that when he returned from his
route on the date of the election (January 27, 1976), he was
given two more written warnings (one of which is G.C.
Exh. 4) by the Company, which was the result of a report of
Supervisor Johnson who had followed him on his route
that day and charged that he was taking too much time on
his stops. Although this report is dated January 12, 1976,
Bryant said he was not given this report or warning until
the night of the election, January 27, 1976.
Bryant was also given a company written warning (Resp.
Exh. 4) from Respondent's customer, "Bob's Truck Stop,"
charging that Bryant did not service this stop in a good
manner; that he rubbed up against some waitresses; that he
had helped himself out of the cash register; and that he had
refused to pick up stales and refused to use the back door.
Bryant contends that both of these reports (G. C. Exh. 4
and Resp. Exh. 4) were given to him on the night of the
union election, January 27, 1976. Respondent contends
that it delivered General Counsel's Exhibit 4 on the date
indicated thereon, January 12, 1976, instead of January 27,
1976.
Bryant further testified that when Manager Bridgeman
gave him the warning from Bob's Truck Stop he told him
Union Business Agent Norman Hug could not do a damn
thing for him now; and then he asked him how long did he
think he could get away by acting like he was. Bryant made
no reply. When Supervisor Johnson gave him a copy of the
Company's written warning (G.C. Exh. 4), Bryant said
Supervisor Johnson told him that he had followed him the
entire day and timed him at every stop. He said this was
the first time he had ever been followed and he did not
have knowledge of any other driver salesmen who had
been followed before. Respondent admitted that no one
had been followed in the Louisville area before but that
some had been followed in other distribution areas.
Respondent also admitted that it had not utilized verbal
correction reports in the Louisville area before, although
they had been used in some of Respondent's other
distribution areas.
Bryant testified that subsequent to the election on
January 27, 1976, he received another company written
warning based on a complaint from the English Grocery
Store, accusing him of refusing to allow the store manager
to check his bread deliveries and pickups. At that time
Bryant said he was given a choice either to sign a
resignation and be eligible for the receipt of unemployment
compensation, or be fired. He said he advised the
Respondent he would not sign anything and he was in fact
fired.
On cross-examination Bryant acknowledged that the
following letter dated January 23, 1976 (Resp. Exh. 3), was
read to him by Mr. Bridgeman and that he denied the
charges:
Kern's Bakeries, Inc. lost the account of BoB's [sic]
and Lee's Truck Stop served by Roger Bryant out of
the Louisville Warehouse. Investigation by Jepp
Bridgeman and Elroy Johnson determined that these
are reasons as told by Bob Menges:
1. Rubs against waitresses in restaurant.
2. Would not pick up stale (donuts).
3. Roger Bryant was asked to service the restaurant
from the rear door; whereas, he refused and continued
to use the front door. He came into the restaurant and
set trays of bread down hard on "glass-top" counter.
4. He went into the kitchen and talked about the
waitresses, runs them down.
5. Smarts off to the waitresses. All waitresses said
he was a "smart aleck."
6. Made the statement that he did not care if the
truck stop bought Kern's products or not.
7. Made the statement in the restaurant that no
way Kern's Bakery could get rid of him.
8. Bob Menges said the boy's attitude was all
"messed up."
9. He would come into the restaurant and act as if
he owned it.
10. He would stand in front of the cash register for
a long length of time and peck on the register and block
customers.
11. He would not get to the restaurant until the
lunch hour (12 noon or after), their busiest time. A sales
supervisor can run the route and get there at 10:30 or
11 a.m.
12. He opens the cash register and gets his money.
On cross-examination Bryant categorically or in essence
denied all of the allegations in Respondent's Exhibit 3.
With respect to the charges by Bob's and Lee's Truck
Stop, Bryant testified as follows:
Q. Okay, in regard to the truck stop. Did Mr.
Menges ever tell you to come in the back door?
A. Yes sir, he did, but not as I said, every day I
would go in there he would always kid me about
Rainbow's phone number, you know, and joke with me
about the back door.
Q. What do you mean about Rainbow's number?
A. He would just kid me.
Q. Who was Rainbow?
KERN'S BAKERIES , INC. 1465
A. Rainbow Baking Company . He did that for over
a year . He would kid me about it . I got Rainbow's
phone number . Or I'm going to get Bunny in here. He
was joking with me all the time.
Q. Did he ever specifically ask you to come in the
back door?
A. No. If he had come up and told me he wanted
me to come in the back door, I would have come in the
back door . It didn 't matter which door I came in. Its
just that the front door was the easiest . I had been
coming in the front way and if he would have asked me
to come in the back door I would have done it.
Also on cross-examination , Bryant admitted that Re-
spondent read the following letter to him and that he
denied the charges therein:
February 12, 1976
English Grocery
English , Kentucky
1. Either get rid of Route Man [sic] or loose [sic]
the account.
2. Did not want to be checked . Would always get
smart over being checked.
3. Makes slur remarks - gives the attitude that he
could not make a mistake.
4. Called the customer names.
5. His attitude isn't right.
6. Very poor service.
7. Agitated Mr. Myers where they almost came to
blows.
8. Told Mr . Myers he could dust skip him if he
wanted to.
In this regard , Bryant admitted that he called the
proprietor of the English Grocery Store "old man" but said
he did so in a joking manner, because one day Mr. Myers
would joke and kid with him and on another day he would
not. He denied Mr. Myers ever told him that his attitude or
service was poor. He acknowledged that he and Mr. Myers
almost came to blows on one occasion and his testimony in
describing the incident is as follows:
Q. What was the occasion for that?
A. Well, it was one of those days , like I say, when
you don 't know what to expect . I put the bread on the
shelf and he said, let me check it, and he came over and
said to me, how 's it going? and I said to him How's it
going? and he said slow down , I can't keep up with you,
and I said , Mr. Myers, do you want me to do this for
you or put the bread in the shelves, but I don 't know, he
lost his top. He went crazy. He said , do you want to go
back and fight? and I said, no sir, I don 't want to go
back and fight. I've got no reason to fight you, so I shut
my mouth , and got out of the store as quietly as
possible.
Q. Then did you tell Mr . Myers at any time that
you could just skip his store?
A. No sir, Mr. Myers questioned me when I first
started servicing him about would we ever skip him and
I said , no, the supervisor told me when I picked up a
stop that it was going to cost me time to drop it and if it
wasn't then to go on leave bread and this man asked
about a break [sic] rack and the supervisors said this is
a $30 stop . We don't want to put a bread rack in it and
from then on it was like that.
On January 27, 1976 , Bryant was given the following
written warning (Resp . Exh. 6):
RE: Final Warning Notice
This notice is to confirm your final warning.
The purpose for this final warning has been ex-
plained to you in detail Tuesday afternoon , January
27th, as a result of your continuing poor work
performance , negligence and carelessness in perfor-
mance of your route sale duties.
This final warning is the result of your having been
given three prior disciplinary verbal warnings dealing
with your unsatisfactory work performance on your
route.
Any further negligence or carelessness in the perfor-
mance of your route duties or work performance will
result in immediate discharge.
Bryant was given his separation pay of $532.57 on
February 27, 1976, and he was paid $361 .93 on his human
relations claim against Respondent dated March 22, 1976.
(Resp . Exh. 18.)
Although Bryant acknowledged that his supervisors
would ride with route salesmen occasionally, he said his
supervisor started talking to him about the decline of his
sales after they found out about his union effort (general
conversations Bryant held with fellow truckdrivers about
the Union , including Benny Drake , nephew of Supervisor
Elroy Johnson , who became involved with the union
activity). He further stated that there was general talk
about the Union by the drivers at the warehouse and
added , however, that he did not think Respondent knew
anything about their union activity before it received the
Union's demand letter on October 25, 1975 . He said one of
the complaints of the English Grocery Store was that his
supervisor had promised to send them a bread rack.
However , when his supervisor checked his order book, he
noted that English Grocery only got $25 or $30 worth of
products and he said no rack there.
John Batts, field investigator for the Kentucky Human
Rights Commission, testified that he investigated Bryant's
complaint on December 17, 1975 , and had the occasion to
talk with Mr. Masterson of the Respondent . He described
their discussion as follows:
That is correct . They [sic] Kentucky Human Rights
Act is not punitive in nature and in view of the
situation which appeared to be transpiring at that time,
it was my responsibility to make the Respondent aware
that this could be interpreted that was following his
reinstatement on November 10, 1975 , as possible
retaliation for him having filed a complaint , I wanted to
explain the situation as thoroughly as I could to Mr.
Masterson . Mr. Masterson assured me that verbal
warnings were not a new item instigated simply to get
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back at Mr. Bryant for filing his complaint with the
Kentucky Commission on Human Rights. Rather he
stated that they had implemented the use of the verbal
correction reports in view of Union activities that had
recently occurred.
With respect to Bryant's testimony that he was given two
verbal correction reports on January 27, Mr. Batts further
testified as follows:
So, at 11:00 o'clock I went to my appointment with
Mr. Johnson and he introduced me to Mr. Bridgeman
and we went through the normal processing of my
complaint which involved religious discrimination. And
as a closing matter in the conversation I asked whether
or not Mr. Bryant had just received two warning
notices and Mr. Bridgeman said, yes, as a matter of
fact, he had dust given Mr. Bryant two warning notices
the same day and he stated that they had held the
warning notice to avoid any conflict at the Union
election.
Mr. Batts also said he went to talk to Mr. Bob Menges
of Bob's and Lee's Truck Stop and he learned that Mr.
Menges said he had quite a bit of trouble with Bryant and
had reported the same to Bryant's supervisors prior to
October 27, 1975.2
Elroy Johnson testified that he gave Bryant General
Counsel's Exhibit 4 dated January 12, 1976, on the same
day and not on January 27, as Bryant said. He further
stated that Bryant had personality problems on his stops
prior to October 22, 1975, and he was considered a fair
breadman at that time. Johnson admitted he and Mr.
Masterson discussed the Union and who they thought were
the organizers. He said there were three men at the Board
hearing determining the appropriate unit on November 25,
1975; Bill Rose, Kenny Brown, and Roger Bryant. Johnson
further testified as follows:
MR. FISCHER: Is it your testimony that it wasn't until
November the 25th or a month after you received the
letter from the Union that you had any idea who was
behind the Union?
A. I think prior to that we got an unfair labor
practice on Roger Bryant from the Union.
2 I credit the testimony of John Batts over that of the Respondent's
managerial witnesses because Mr. Batts is a disinterested third party and
does not appear to have any interest in the outcome of this proceeding.
Moreover , his testimonial version of what Masterson said to him regarding
the implementation of the verbal correction reports appears to be consistent
with the total evidence of record considering the tuning and the conduct of
the Respondent, and his testimony further corroborates Bryant's version of
when he was given the verbal correction report dated January 12, 1976
9 I credit the testimonial account of Roger Bryant over the account of
Respondent witnesses in the following respects : That Bryant received the
Company's warning dated January 12, 1976, on January 27, 1976, that at
that time Manager Bndgeman told him the Union's business agent,
"Norman Hug could not do a damn thing for him now," and asked Bryant,
"How long did he think he could get away with acting like he was", that
Bryant denied or explained the circumstances of the charges made by Mr
Menges, and that Bryant did call Mr. Myers "old man" in a joking manner
because of Bryant's undenied testimony that they kidded with each other on
occasions. I credit Bryant's account not only because I was persuaded by his
demeanor that he was telling the truth, but also because his account is in
Q. Because of the unfair labor practice did you feel
that Mr. Bryant had a hand in organizing the Union?
A. Well, you would assume that.
Johnson admitted Bryant was not the least paid driver.3
B. Testimony of Respondent's Customers About the
Work Performance of Roger Bryant
Mr. Lester B. Myers, proprietor of the English Grocery
Store, testified that Managers Bridgeman and Johnson
came to him after he complained that Respondent had to
get rid of Roger Bryant or lose its account. When they
arrived he told them he did not want to be bothered with
Bryant anymore and when he was asked why, by Manager
Bridgeman, he testified as follows:
He didn't want me to check him and when I would
go to pay him if his bill was $4.94 he wanted me to give
him change. I felt like that was my money and I had the
right to do with it what I wanted to do with it. Things
like that. Then he called me an old man. He said you
think you can check it, old man, and that made me mad
and I told him. I've got witnesses to this - I told him if
he thought I was old enough to come on outside. I'd
take him on and that goes for today too.
Mr. Myers further testified that Bryant would come
into the store and look at women's stockings and ask him
to take them down so he could look at them. Bryant would
either overstock or understock his supply of bread. On one
occasion Bryant told him he could skip his business but
Bryant denied he said that.4
Mr. Allen Birchfield, proprietor of Country Cupboard,
testified that Bryant would either understock or overstock
him with cakes or bread. He said his only complaint with
Bryant was that he could not get enough cake and sweet
rolls from him but he did not ever report this fact to the
Respondents
Mr. Robert Menges , proprietor of Bob's and Lee's
Truck Stop, testified that he had purchased products from
the Respondent for about 6 months until he discontinued
the account because of the poor service and attitude of
Roger Bryant. He further stated that, after several
complaints to the Respondent and its visits to his business,
he discontinued the service. Thereafter, he was visited by
part corroborated by Mr. Batts and is supported by the logical consistency
of all of the creditable evidence of record. I credit the charge that Bryant
was asked by Mr. Menges to enter through the rear door, but since the
evidence shows that Mr. Menges tolerated, rather than further instructing
him to discontinue his entry through the front door, I received the
impression that Mr Menges and Respondent are exaggerating the
significance of the charge . I credit Bryant's testimony that he denied the
charges , not only because he appeared to be telling the truth but because it
is so logical that it is almost instinctive and one so charged would deny or at
least respond to such charges Finally , I also credit Bryant's testimony and
believe that Respondent had knowledge of his union involvement before
and after October 25, 1975, because Manager Johnson said it assumed
Bryant's involvement
4 I credit the testimony of Mr. Myers not only because he appeared to be
telling the truth but also because he is a third party without any apparent
motive to be untruthful.
5 1 do not credit the testimony of Mr. Birchfield because it is so
mconsistent it is meaningless as is largely reflected on the record
KERN 'S BAKERIES , INC. 1467
Manager Bridgeman and Masterson at which time they
documented his complaint which comprises Respondent's
Exhibit 3, supra, with the exception of item 12 therein.
Mr. Menges continued to testify as follows:
Q. You said several things in your statement about
Mr. Bryant, and the first one was that he rubs against
waitresses in the restaurant? Could you explain that?
A. Well, he'd stand there by the cash register, go
behind the counter. We don't let nobody go behind the
counter. It so happened I have seen him back there on
occasions when the girls were coming to put money in
the cash register and there might be 10 persons who
were waiting to pay their checks and he would be
standing there waiting for his money so he would dust
rub himself up against her when she was putting money
in the cash register and all this kind of stuff, and the
waitress would complain to me about it so I sat there
and watched to see if he did it, and I saw it.
Mr. Menges further stated that he asked Bryant to
refrain from such conduct but Bryant would nevertheless
continue the same conduct. With respect to other com-
plaints about Bryant, Mr. Menges continued to testify as
follows:
Q. The second complaint is that he would not pick
up the stale donuts?
A. I had a special box that I put stuff in to give my
dog. All of a sudden one day there was 12 donuts lying
in that box and I asked, where did these come from so
they said the bread man threw them in there and I said
I have to get credit for them, that rascal.
Q. Did you say anything to him about it?
A. Yes.
Q.
A.
Q.
A.
Q.
A.
Q.
What did he say?
He said, aw, they wasn't any good.
What did you say about that?
I told him I needed my credit.
Did he ever give you credit for them?
Not that I know of.
Did you ever ask him to service the restaurant
from the rear door?
A. Yes. When we were putting in air conditioning
the doors coming through the front got kind of tight
and you would have to raise it up real high to get into
the kitchen . I said you can come around the back.
There 's a big door back there , but he would keep
bringing them in through the front , laying them down
and crowding things up and dumping all over and
things falling all over the place , on the glass top
counter.
Mr. Menges said he requested Bryant not to bring his
deliveries during the lunch hour (11:30-1 p.m.). His
waitresses advised him that Bryant was a "smart aleck"
because he would ask for his money as they were waiting
on customers; and that Bryant's poor service plus the
6 I credit the testimony of Mr Menges except on the matter of his asking
Bryant to use the rear door as discussed , supra, because as a third party to
this dispute he does not appear to have any motive to make such false
charges against Bryant.
complaints of his waitresses about Bryant's conduct were
the main reasons he discontinued his account with
Respondent. He admitted that he did not inform Bryant's
supervisor about his failure to use the rear door .6
Patsy Welch, waitress for Bob's and Lee's Truck Stop,
described Bryant's service in her testimony as follows:
Tiiii wrrNEss: He'd come in and he'd slam it down.
Everybody in the place was looking. Then he would
come, here you are, you are trying to ring up
somebody's ticket and he would push right up to you.
Q. He would come behind the counter?
A. Yes, to put up his buns which the other bread
man puts in that little hole in the kitchen. He never
comes behind the counter. He would cone behind the
counter, sometimes he would put them on the first shelf
and sometimes on the second shelf. I would have to
reach and put it on the second because it was short
when you reach the top. Well, then maybe I would
reach to get a glass of water - here is your glasses -
and here he is in my way. Either he was shoving me or I
was shoving him, you know, to get out of the way and
he'd go into the kitchen take the bread back there.
We've got this little narrow door. Well, here he is, you
know, I mean he wouldn't get out of your way. I mean,
you just had to shove him or he was shoving you all the
time, and or maybe he would be out of your way if he
seen you coming, he'd like to rub up against you, I
mean, with other waitresses the same way. I've seen
him do that.
Patsy Welch also said some days Bryant would tell the
cook in the kitchen he would like to curse her out. She
continued to testify as follows:
Q. Did you have any occasion at any time to see
him go in the cash register?
A. No, not mine, no. He said something about it
one time and I advised him not to do that. He thought I
should pay him - like I would be taking money from
the customers and he was thinking I should stop right
now and pay him and maybe the ticket would be like
$12 something or $8 something and he'd want to give
you 5 or 6 cents to make it come out to an even amount
and you've got to stop and think would that be right or
not. He didn't like for you to give him no pennies at all.
If you would give him pennies he'd have a fit. He would
go in the kitchen and order his food and then there
would be somebody's food out in the window and I
wouldn't know who it belonged to and it would be his.
Sometimes I would tell him about it and again I would
fix him his milk to go and he would say, no I don't want
no hot milk, I'll wait until my sandwich comes out here.
Maybe at that time was the only time I could do it and
then like when he goes to pay for his food he'd make a
smart remark like I won't give you a tip and always
slurring.?
7 1 credit the testimony of Ms Welch whose demeanor persuaded me
that she was telling the truth because she is not involved with the
Respondent and her account is consistent with and corroborated by the
account of Mr Menges.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Work Performance, Union Activity, and
Layoff of Phillip Bradley
Phillip D. Bradley was first employed by Respondent
July 28, 1975, as a bread driver salesman assigned to the
Shepherdsville route. While still a probationary employee,
Bradley testified that during July and/or August 1975, the
drivers in the warehouse commenced discussing the
unionization of Respondent's drivers. In furtherance of
their discussions, he went to Teamsters Local 89 union hall
on or about October 10, 1975, to secure their representa-
tion for Respondent's driver salesmen . He spoke with Mr.
Hug and Mr. Borders, union representatives, who gave
them some union authorization cards to have signed and
returned. On the next day Bradley said he distributed the
cards among drivers at the warehouse advising them that, if
they intended to sign the cards, he would collect them and
return them to the Union. He said he received signed cards
from most (six or seven) of the drivers; and that there were
nine such drivers at the time.
Sometime between September and early October 1975,
the Shepherdsville route was discontinued and after
October 22, 1975, Bradley was assigned to the route of
Roger Bryant who had been discharged. Two weeks later
he was advised that he was laid off without expectation of
rehire because Roger Bryant was recalled and would
assume the Carrolton route. At that time Bradley said he
asked Manager Bridgeman and Supervisor Masterson did
his work performance have anything to do with the layoff,
and he or they replied, "absolutely not."
When Bradley was asked did he have trouble loading his
truck, he testified that he had been told to watch the
various drivers and do his work the way they did; that he
did watch the different drivers and supervisors but noted
that the method of each was different from the other and
he had difficulty knowing precisely just what his supervisor
wanted. He said he did not know of any complaints from
his customers even though they did point out to him that
there was nothing against him, but that they liked the prior
salesman whom they had known for a number of years.
Bradley admitted he has made mistakes, and on one
occasion left a customer 130 loaves of bread for which he
neglected to write the total on the ticket. However, he said
he and the customer corrected the mistake the next day
without any loss of money to the Respondent. He serviced
the English Grocery Store where he said all the comments
he ever heard about Bryant were positive. With respect to
time, he said he finished the route about 4 p.m. and that
Mr. Masterson would get in from the same route between 3
and 4 o'clock.
On or about the night Respondent received the demand
letter from the Union (October 25, 1975), Bradley said he
received a telephone call from Supervisor Elroy Johnson.
After customary courtesies, Bradley said Johnson stated
that "we received word today that a bunch of you guys
signed some cards for Teamsters 89" and he said, "Do you
8 1 credit Bradley's account of his union activity, his work duties, his
telephone conversation with Manager Johnson on October 25, 1975, his
conversation with Supervisor Masterson on October 27, 1975, in which
Masterson asked him about employees' union interest and activity and that
on October 27, 1975, Manager Bridgeman asked the drivers did they know
anything about the Union, because such account is partially corroborated
happen to know anything about that." Bradley said he told
Johnson he did not know anything about it and Johnson
asked him again, did he know anything about it. Bradley
said he said no he did not, and Johnson said, "Well, I
believe somebody's pulling my leg."
While riding with Supervisor Masterson on October 27,
Bradley said they held a conversation which he testified
was as follows:
A. Buddy was sitting down by me while I was
driving. He asked me Phil, we are trying to find out
some things about what's going on around the ware-
house, you guys signing cards for a Union and
everything. We can't seem to find anything out. Is there
anything you can tell me about it, that you want to tell
me?
Q. What did you tell him?
A. I said, no, Buddy, I don't know anything about
it. I don't think the guy [sic] would confide in me since
I haven't been there that long, something like that and
then he said, again, well, nobody seems to know
anything about it. We would like to know anything you
can tell us and I said, I can't help you.
Bradley further testified that on or about October 27,
1975, a brief meeting was held of the bread salesmen in the
warehouse at 4 a.m. when Mr. Bridgeman, holding what he
saw as the Union's demand letter in his hand, asked what
did anybody know about the Union. Bradley continued to
testify as follows:
MR. FISCHER: Did any of the drivers respond to his
question?
A. No sir, they did not.
Q. Did Mr. Bridgeman say anything when the
drivers didn't respond?
A. Yes he did.
Q. What did he say then?
A. He said one thing I do want to say is that we do
not recognize - we will not recognize the Union. I
can't quote him but he said something on the order that
we'll close it down or we'll lock it up.
Bradley said Manager Bridgeman went on to talk about
a profit-sharing plan or pension and company benefits, and
he stated that the Company did not want a union and it
would take all legal means to fight it. Present at the
meeting were Manager Elroy Johnson, Supervisor Master-
son, and also Mr. Phillips, formerly from management.8
Bradley further testified that he got in from his sales
route at 6 p.m. on two occasions, one of which was his first
day at work without a supervisor, and that he made a few
mistakes on the orders. He acknowledged that his Shep-
herdsville route sales were declining and that his supervi-
sors had talked to him about it on several occasions. He
said he did not know the reason for the decline because he
by Manager Johnson Bradley's account is also consistent with the overall
tenor of all of the credible evidence of record. I also credit Bradley's
testimony that Manager Bndgeman said, "We will not recognize the Union
" and "we 'll close it down or we'll lock it up ," "it" meaning
Respondent's Louisville plant, because of the widespread inquiring of
Respondent's supervisors to learn about the union activity of its employees.
KERN'S BAKERIES, INC.
did not do the ordering but, instead, his supervisor took his
route book and did the ordering and he simply signed it.
With respect to Bradley's performance, Area Manager
Elroy Johnson testified that he had received customer
complaints on Bradley for not leaving enough hotdog or
hamburger buns or bread. He said Bradley was to be laid
off on October 25, but after Bryant left on October 22,
Respondent decided to put Bradley on the Carrolton route
since Bradley's route to Shepherdsville was consolidated
with another route. Manager Johnson said the basic
problem with Bradley was his attitude. He would not talk
to the customers and he had a particular problem with
mistakes on his tickets. He spoke with Bradley about these
problems .9 Since Bradley was laid off Respondent (Dewey
Elroy Johnson) hired Bill Carter on January 12, 1976, and
Respondent did not consider Bradley for the job because
he had too many problems on his route. On February 19,
1976, Respondent hired inexperienced Doug Roy to
replace Bryant, and when Respondent laid off Bradley,
Johnson said he simply advised Bradley that he was
permanently laid off because Respondent discontinued his
route. He said Bryant was the only employee who received
a verbal correction report.
Johnson further testified that Bill Carter applied for
employment on December 15, 1975, and was hired by
Respondent on January 12, 1976, because Bremer had an
accident and his physician said he would be out indefinite-
ly. When Bremer returned, Respondent employed Kenneth
Brown who shortly thereafter quit, and Doug Roy was
hired and assigned to the Carrolton route. Bremer was still
out sick and Bryant had been laid off 3 weeks before. Bill
Rose was terminated or suspended March 5, 1975, and on
March 11, 1976, Buddy Masterson resigned as supervisor
and assumed Rose's sales route. Doug Roy, who was hired
on February 19, 1976, worked in the surplus store 2 weeks
and on March 15, 1976, took over Bryant's route. Wayne
Fuqua applied for employment on February 11, 1976, and
was hired by Respondent on March 22, 1976. In February,
Roy Webb who worked in the surplus store requested the
Phillips' route which he worked 4 months and requested his
return to surplus. Fuqua was then given Webb's route.
Respondent had decided to split Bryant's route 2 weeks
before the Board representation hearing and Respondent
did not have any knowledge of union activity prior to its
receipt of the Union's demand letter on October 25, 1975.10
Manager Johnson said he gave all of the verbal
correction reports to Bryant on the dates indicated thereon
and that he gave Bryant a copy of Mr. Myers' complaint on
February 12, 1976, at which time Bryant said nothing.ii
D. Testimony of Respondent's Customers About the
Work Performance of Phillip Bradley
Mr. Harold Redmond , operator of the Shepherdsville
Key Market , testified that Bradley serviced his store and
9 1 do not credit Manager Johnson's testimony that Respondent was
going to lay off Bradley on October 25 because it is self-serving and his
complaints about Bradley's attitude in not talkin g to the customers was not
established beyond his own statement that Bradley was warned, about not
talking . I credit Manager Johnson's account about Bradley's ticket problems
and inadequate supply of bread , but I credit Bradley's explanation that he
did not do the ordering , because his statement is not disputed by
Respondent and Bradley was in fact a relatively new driver
1469
his main complaint was that he did not leave enough bread
while the store's sales were declining. He said he told
Manager Johnson and Supervisor Masterson if they did
not do something about the problem he was going to cut
their space. He did not speak to Bradley personally about
the problem but he added, he did not have such a problem
with driver Jim Vessels who served him before and after
Bradley. He said he had nothing against Bradley because
he knew Bradley was a new employee.
Mrs. Sylvia Jackson, proprietor of the Jackson's Gro-
cery Store for 20 years, credibly testified that she had
difficulty with Bradley because he could not figure his
tickets and she would have to assist him in correcting it.
She further testified that Bradley would have her charged
for something that wasn't there or "you would have to go
to the truck and tell him what to bring in, or you would
receive more merchandise that he charged you for and that
way the Company loses money, if he leaves it and doesn't
get paid for it." She was thinking about calling Respondent
and asking for a more alert driver or she would have to quit
the Company, but she was giving Bradley an opportunity
to prove himself. She did not report Bradley on her own
initiative. Instead, Respondent contacted her on or about
June 7 or 8, 1976, after Bradley left the Company, and
inquired about his work performance.
Mrs. Catherine Ferguson, friend of Mrs. Sylvia Jackson
and proprietor of Ferguson's Grocery for 16 years,
equivocally testified that she did not have any difficulty
with Bradley because he was a new man but that after some
time she expected him to improve and he didn't. The
problem was his not leaving sufficient bread. At times she
would have to borrow bread from her friend Mrs. Jackson,
or vice versa, and Bradley would have difficulty charging
one of them for the borrowed bread. She only spoke to
Bradley about this situation on one occasion and she went
on to describe how Bradley was always complaining about
having had a headache. She was just about to quit Kern's
when the former breadman, Jim Vessels, was reassigned to
her route. She too testified that she did not complain to the
Respondent until Respondent contacted her on Monday,
June 7, 1976. She also stated that she did not have to help
Bradley figure his tickets but Bradley would put the bread
on the floor at times instead of in the proper place.
E. Respondent's Knowledge of Union Activity and
its Institution of a Written Warning System
Supervisor Joseph Masterson testified that he was
formerly route supervisor until February 1976; that he
supervised Phillip Bradley and Roger Bryant and that he
did not know about the employees' organizing campaign
until October 25, 1975. However, on cross-examination
with his affidavit (G.C. Exh. 6) previously submitted to the
Board, Masterson said after October 25, 1975, he was told
by three different employees, the names of other employees
1O I credit Manager Johnson 's account of the order and names of the
persons Respondent hired in January, February, and March 1976, but not
for the reasons stated by him.
11 I do not credit Manager Johnson's testimony in this regard over the
credited testimony of Roger Bryant and Mr John Batts, supra, for the same
reasons stated herein.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who were involved or in favor of the Union ; and that each
one told him the name of one or more of Respondent's
nine employees who were involved . Masterson further
stated that he rode with Bryant because it was customary
to do so when a driver salesman had been off for 2 weeks,
and also because he had received a complaint from one of
the customers that Bryant did not want to be checked on
his deliveries.
Supervisor Masterson said he did not talk to Bryant
about the complaint and that the verbal correction report
system was instituted in October 1975 to record irregulari-
ties of employees . He admitted he told an agent of the
Kentucky Human Rights Commission that the reason the
verbal correction reports system was instituted was because
of the Union since unionized bakeries operate that way.
Masterson further admitted that in the past he had been
short on his account but he has never been reprimanded
for it . He said most mistakes do not cost the Respondent
money because they are always caught and corrected; and
that the only person who can lose money by bread
salesmen delivery mistakes is the driver himself, because he
has to pay for it.
Masterson acknowledged that he trained Bradley and
admitted that he told Bradley, Bryant had no stale bread
problem above getting his orders in line and that he ran a
clean route . Although he said he received a complaint from
the Key Market about Bradley , he could not recall whether
he had ever discussed the complaint with Bradley. When he
accompanied Bradley on his route he observed Bradley
serving Bob's and Lee's Truck Stop and the English
Grocery Store but he did not observe any problems.
Masterson also admitted that he has never had a driver
reprimanded for driving unsafely and that he has never had
a customer put a complaint in writing.12
Respondent 's motion during the proceeding to strike
paragraph 6 of the complaint herein in regard to the recall
of Phillip D . Bradley , on which I reserved judgment, is
hereby denied . The motion is denied because the facts as
established on the record did not impose an obligation
upon Bradley to request recall, reinstatement , or reemploy-
ment by the Respondent.
Talmadge Crawford Jr. is the assistant manager for the
Respondent 's plant at London , Kentucky . With respect to
the Respondent's implementation and use of the verbal
correction reports, Mr. Crawford credibly testified as
follows:
A. For a number of years ever since we became
involved with the Union elections , we have found it
necessary because of continuous charges and counter
charges of unfair labor practices , intimidating witness-
es, discriminatory policies, we have found that it is
absolutely necessary to document any correction notice
given to an employee . Now this has been confined only
to the inside employee because up until 1975 we had
not had an election of outside employees , therefore we
did not feel it necessary to use it amongst our outside
employees.
12 1 credit the testimony of Supervisor Masterson because the straightfor-
ward and responsive manner in which he testified persuaded me that he was
Q. All right, when you received notice of the Union
claim of representation, did you extend that policy up
here?
A. Yes.
Q.
A.
Q.
men?
Did you extend that policy to have-
We did.
Did you extend that same policy to all sales-
A. Yes sir.
Mr. Crawford denied that he was present either when
Bryant was given the first verbal correction report
(reprimand) or on the night of the election when Bryant
was terminated. He confirmed that Bryant's supervisor and
the area manager have authority to fire employees if they
deem it necessary. He also confirmed that after October 25,
1975, the date Respondent received the Union's demand
letter, Respondent proceeded to implement the use of
verbal correction reports. He said he was advised that
Respondent had lost the Bob's and Lee's Truck Stop
account prior to the election (January 27, 1976), and that
he instructed his managers and supervisors not to take any
action or say anything about it until after the election to
avoid the allegation of unfair labor practice charges.
The Respondent introduced a graph (Resp. Exh. 29)
showing Bradley's declining sales during the period August
through October 25, 1975, which reflected a decline in sales
of at least $100 less than Bradley's predecessor and
successor, J. Vessels. Respondent's Exhibit 24 shows
Bryant's declining sales record.
F. Respondent's Speech to its Employees About the
Union
Jepp Bridgeman, division sales manager of western
Kentucky for the Respondent, testified that present with
him when Bryant was terminated were Jerry Phillips, new
route supervisor, Elroy Johnson, area manager, and
Supervisor Buddy Masterson. At that time they gave
Bryant the verbal correction report regarding Mr. Myers'
complaint and they read him the final notice. He said
Bryant had no comment so they discharged him but Bryant
testified that he demed the charges. Manager Bndgeman
denied that he had the Union's demand letter in his hand
at the time he talked with the employees. In fact he said the
Union's letter had been sent to London and what he had in
his hand was simply a paper with notes on his remarks
which in substance he testified were as follows:
Well, I started off with telling the men I wanted to let
all 10 men know what was going on in the warehouse,
not just a select few. I also told them they had a right to
do anything they wanted to do, sign a card or not. They
were free to do anything they wanted to do and I told
them, we had 123 salesmen, and I didn't think that 9
men could definitely talk for the 123. I pointed out the
benefits that we had recently added. We established
profit sharing. We voluntarily just gave a 12 percent
pay increase. This was at no cost to them and we
voluntarily did it. I told them we didn't think that a
telling the truth. Furthermore, his testimony is consistent with the overall
tenor of all of the credible evidence of record
KERN'S BAKERIES , INC. 1471
select few could tell what the 123 men could do and like
I say, the profit sharing. I told them it would look
ridiculous for 9 men to be recognized when the other
100 and so who did not want to be recognized and I
told them they were smart enough men to know that we
couldn't give select benefits to 9 men without giving it
to the other 100 and so and I also told them that they
were not the perfect unit and they couldn't speak for
the whole sales force and I also told them if they had
some questions I was there to try and answer it and if I
could not I would take it back to Mr. Oakes and they
were free to go to see him at the home office.
Manager Bridgeman denied that he told his audience if
the Union came in he would close down the plant and he
denied he asked if any of them had signed a union card. He
further testified that on January 23, 1976, he received a
complaint from Bob's and Lee's Truck Stop and returned
to the warehouse and awaited Bryant where they issued
him his final warning. He stated that Bradley was
discharged and has not been rehired because he was
terminated during the 6-month tryout period. He denied
having any knowledge of union activity before October 25,
1975.
Joseph Masterson, area supervisor during Bryant's
tenure, testified that Bryant was not discharged on January
27, 1976, but on February 12, 1976, and that he (Master-
son) was not present at the time.
John Phillips, formerly a salesman but now a supervisor
since February 16, 1976, testified that he was not present
on January 27, 1976, when Bryant was given the final
warning.
Analysis and Conclusions
The determination of the validity of the allegations with
which the Respondent is charged and the corresponding
defenses asserted by it in response thereto depends largely
on a determination of the veracity of the several witnesses
whose testimony in some measure is conflicting. While it is
difficult in these instances to resolve such vexing questions
of fact to which the parties alone bear witness, I have
nevertheless resolved such questions by considering the
relationship of each witness to the party on whose behalf
he testified, the readily responsive, nonselective, nonexag-
gerating, consistent, and straightforward manner in which
he testified, the reasonableness of efforts made by the
parties to bring essential witnesses and appropriate docu-
mentary evidence before the court, as well as how such
testimony or other evidence relates to the logical consisten-
cy of all of the evidence of record and the sequence of
events as they transpired.
Accordingly, based on the foregoing credible evidence of
record, I conclude and find that sometime between early
September and October 22, 1975, Phillip Bradley 's sales
route was discontinued by the Respondent and he was
assigned to the route of Roger Bryant who had been
discharged on October 22, 1975. The Respondent received
a copy of the Union's demand letter on October 25, 1975.
Bradley was laid off by the Respondent 2 weeks later,
without any expectation for recall. When Bradley asked
Respondent (Manager Bridgeman and Supervisor Master-
son) if his layoff in any way related to his work
performance he was assured that it was not. Bradley was
first hired by the Respondent in late July 1975 and was not
a very experienced or competent worker. Nevertheless, the
Respondent hired an inexperienced bread driver on
January 12, 1976, an inexperienced driver salesman on
February 19, 1976, and a third driver salesman on March
22, 1976. At no time did the Respondent ever recall Phillip
Bradley to its employ.
On or about the night of the very date (October 25, 1975)
the Respondent received the Union's demand letter,
Supervisor Elroy Johnson telephoned Phillip Bradley at
home and said, "we received word today that a bunch of
you guys signed some cards for Teamsters 89" and he
asked Bradley, "do you happen to know anything about
that?" Although Bradley said no, he did not, Supervisor
Johnson repeated his question and Bradley repeated his
answer . While riding with Bradley on or about October 27,
1975, Supervisor Buddy Masterson told Bradley that
Respondent was trying to learn what was going on around
the warehouse, with respect to the drivers signing union
cards for the Union, and Respondent cannot seem to find
out what is going on. He then asked Bradley could he tell
him anything about it and Bradley said no, he could not.
Supervisor Johnson then said, "Do you know anything you
can tell us?" and Bradley said he could not help him.
On or about October 27, 1975, Respondent held a brief
meeting with its bread salesmen in the warehouse at 4 a.m.
when Manager Bridgeman asked what did anybody know
about the Union. The drivers did not respond to the
question. I find that the Respondent said it would not
recognize the Union, and that it would close down the
plant or lock it up. Bradley was laid off on or about
November 7 or 11, 1975, and has not since been recalled by
the Respondent. Supervisor Johnson admitted at the
hearing that he and Supervisor Masterson discussed the
Union and who they thought were the organizers. He said
they discussed the matter and had learned that the three
men at the Board hearing on November 25, 1975, Bill
Rose, Kenny Brown, and Roger Bryant, were involved. He
also admitted that since the Respondent had received an
unfair labor practice charge filed by Roger Bryant
(October 28, 1975), they had assumed that Roger Bryant
was involved in the employees ' organizational campaign.
Similarly, Supervisor Masterson acknowledged that after
October 25, 1975, he was told by three different employees
the names of other employees who were involved or in
favor of the Union, and that each one told him the name of
one or more of the Respondent's nine employees who were
involved.
I conclude and find that the telephone inquiry of Bradley
by Supervisor Johnson on or about October 25, 1975, and
Supervisor Masterson's inquiry of Bradley about the Union
on or about October 27, 1975, clearly constituted unlawful
interrogation of Respondent's employees in violation of
Section 8(a)(1) of the Act.
I further conclude and find that during the months of
July and August 1975, Respondent's driver-employees of
its Louisville warehouse commenced discussing unioniza-
tion of the drivers. More specifically, during the weeks of
October 7-22, 1975, employee Phillip Bradley procured
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union authorization cards from the Union which he
distributed to Respondent 's employees in the warehouse
and, with the assistance of fellow employee Roger Bryant,
talked to the employees about the Union. Both Bradley
and Bryant signed a union authorization card on October
22, 1975. On that same day Bryant was discharged by the
Respondent, purportedly for refusing to set out punch-
boards in certain customer stores of the Respondent. The
Respondent received the Union 's demand letter on
October 25, 1975.
On October 28, 1975, Bryant filed a charge with the
Board which charge he withdrew after the Respondent
contacted and rehired him without the loss of benefits on
or about November 11, 1975.
On his first day back on the job, Bryant's supervisor rode
with him on his route. Although his supervisor (Buddy
Masterson) did not ride with him on the second day Bryant
was nevertheless given a written warning (dated November
18, 1975) at the end of the day. This was the first written
warning ever given an employee by the Respondent in the
Louisville area. Bryant was given another written warning
on October 25, 1975, and still another on November 25,
1975.
At the close of the day of the election, January 27, 1975,
Bryant was given a written warning dated January 12,
1976, which was based on a report of his supervisor who
had followed him that day complaining that he spent too
much time on his route stops . Bryant was given a final
written warning regarding his unsatisfactory work perfor-
mance which was partly based on multiple complaints
from a customer who discontinued his account with the
Respondent because of the complaints against Bryant.
Bryant is the first and only Louisville employee ever
given a written warning and he is the only driver in the
Louisville area who has ever been followed on his route by
a supervisor. When Supervisor Bridgeman gave Bryant the
final warning on January 27, 1976, he told him the Union
could not do a damn thing now, and he asked Bryant how
long did he think he could get away with acting the way he
was. Sometime after January 27, 1976, Bryant was given
another written warning, at which time he was given the
choice to resign or be fired. Bryant refused to resign and he
was in fact fired by the Respondent on February 12, 1976.
Since Phillip Bradley was not laid off until on or about
November 7 or 11, 1975, and Roger Bryant was not
discharged until February 12, 1976, the evidence is clear
and I thereupon conclude and find that Respondent had
knowledge of the union activities of Bradley and Bryant
prior to Bradley's layoff and Bryant's discharge. The only
remaining questions are: Whether the refusal to recall
Bradley and the discharge of Bryant were motivated by
their union activity or for cause, as the Respondent
contends.
Since the Respondent hired its first new sales route driver
on or about January 12, 1976, without recalling Phillip
Bradley, it thereby discriminatorily refused to recall
Bradley in violation of Section 8(a)(3) and (1) of the Act.
Respondent's conduct in this regard was unlawful because
its refusal was based on Bradley 's union activities prior to
November 11, 1975, of which fact the Respondent had
knowledge. Although the Respondent contends that it laid
off Bradley indefinitely because of his poor work perfor-
mance the credible evidence of record shows considerable
mitigating factors in defense of Bradley 's work record.
That is, although the record contains the testimony of
several of the Respondent 's customers with respect to the
poor work performance of Bradley, it is particularly noted
that the Respondent as well as some of its customers
recognized that Bradley was a new route driver ; that there
was considerable question about the adequacy of his
training since he was instructed to learn the job by
observing and talking with other drivers, each of whom
appeared to differ to considerable extent in the perfor-
mance of the job. It is also noted that the record clearly
shows that two of the three customer complaints about
Bradley 's work performance were not known by Respon-
dent at the time it laid him off and such complaints were
only obtained upon the initiation of the Respondent, after
it had discharged Bradley.
In other words , the evidence of record clearly shows that
the Respondent made a diligent effort to collect and shore
up evidence of Bradley's performance record after it
precipitously laid him off and, even then, only a few days
before this proceeding in preparation for the hearing.
Hence , when all of these circumstances are taken into
consideration, along with the evidence describing Roger
Bryant's discharge, it becomes obvious that Respondent's
failure to recall Bradley was for his union activity and not
his work performance which it had tolerated since July
1975. Such failure to recall Bradley was therefore discnnu-
natory and violative of Section 8(a)(3) and (1) of the Act.
Respondent's evidence of Bradley's poor work perfor-
mance, even if true , was merely a pretext to conceal its
unlawful failure to recall him.
The record is replete with evidence that Respondent did
not establish and institute a written warning system in its
Louisville area until it received the Union 's demand letter
on October 25, 1975. Meanwhile it is noted that the first
and subsequently the only employee to whom the Respon-
dent has given such a warning is Roger Bryant. Thus, the
timing of Respondent's implementation of the system as
well as its subsequent use thereof requires careful scrutiny.
In this context, when it is considered that Roger Bryant
had been in the employ of the Respondent for nearly 2
years prior to his first discharge on October 22, 1975, and
his receipt of the first company written warning on his
reemployment on November 7 or 18, 1975, it is particularly
noted that the advent of Respondent 's written warning
system emerged in the midst of its employees' organization-
al campaign and the Respondent's receipt of the Union's
demand letter on October 25, 1975.
It is further observed that Phillip Bradley, the chief union
organizer, was laid off on or about November 11, 1975, and
that every subsequent written warning (at least three in
number) was given to Roger Bryant whose union activity
was known to the Respondent. Moreover, Supervisor
Masterson admitted in his testimony that he told an agent
of the Kentucky Human Rights Commission that the
reason the verbal correction report system was instituted
by the Respondent was because of the Union. Although
Mr. Masterson tried to amend that statement at the hearing
by adding "since unionized bakeries operate that way," I
KERN 'S BAKERIES, INC.
do not credit his amended statement because that amend-
ment was not included in his original statement to the
Human Rights Commission . Hence , when all of these
factors are considered in totality , the evidence is more than
ample to support the conclusion and finding that the
Respondent instituted its verbal correction (warning)
system on or about November 25, 1975, because of the
efforts of its driver-employees to unionize its Louisville
plant. Such conduct on the part of the Respondent was
clearly discriminatory and violative of Section 8(a)(3) and
(1) of the Act.
The Respondent contends it discharged Roger Bryant
for cause, and in support of its position it submitted the
testimony of two of its customers and a documentary
statement signed by one of the two customers complaining
about Bryant's failure to leave sufficient bread and hotdog
buns, not wanting one customer to check his deliveries and
pickups, and calling one customer an "old man ." The other
customer had a series of 11 complaints among which were
Bryant's failure to pick up stale donuts , his failure to enter
the business from the rear door, his going into the kitchen
of the customer and talking about the waitresses, his
standing and pecking on the cash register with a pencil or
key obstructing customers , his failure to service the
restaurant except during the lunch hour , and perhaps most
significantly , his rubbing up against the waitresses in the
restaurant . These complaints formed in great part the basis
for the written warnings the Respondent had given to
Roger Bryant . Respondent admitted that the first time it
ever had a customer to reduce a complaint to writing was
in the case of Roger Bryant.
While the work performance record of Roger Bryant,
standing alone , appears to establish sufficient evidence of
cause for his discharge , when it is examined in conjunction
with all of the evidence of record , particularly the evidence
of Respondent 's newly implemented warning system, it
becomes obvious that such contended cause was not the
real reason for his discharge . More specifically, when it is
observed that Bryant had worked for Respondent for 2
years prior to his discharges on October 22, 1975, and
February 12 or 21, 1976, the record does not show
Respondent had any significant problem with Bryant's
performance prior thereto ; that his first discharge occurred
during the advent of the employees ' union activity , and his
second discharge occurred immediately subsequent to
Respondent 's institution of the warning system , after it
learned about the union activity of Bryant, Bradley, and
other employees ; that Bryant has been the only employee
to have fallen victim to Respondent's new warning system
and the only employee who was the subject of a customer's
written complaint ; that one of Respondent 's customer
witnesses ' testimony was not credible ; that Respondent
made a diligent effort in Bryant' s case too, to collect
evidence against him to justify the use of several written
warnings , with the long-range object to obtain a sufficient
number of warnings to make its discharge of him appear
for just cause ; that Bryant was the first driver employee in
the Louisville area to have been followed on his route by a
supervisor ; and that all of these incidents occurred within a
period of 4 months, beginning October 22 , 1975, 3 days
1473
prior to Respondent's receipt of the Union 's demand letter
on October 25, 1975.
When all of the above -described factors are considered
along with the evidence of Respondent 's interrogation of
its employees ' union activity , through which inquiries
Respondent learned and/or confirmed the union activity
of Bradley and Bryant , it becomes abundantly clear that
while Respondent may have had just cause to discharge
Roger Bryant and refuse to recall Phillip Bradley, its
overriding motive for discharging Bryant and not recalling
Bradley was their union activity . Such conduct by
Respondent is obviously discriminatory and in violation of
Section 8(a)(3) and (1) of the Act.
Finally , I also conclude and find upon the credited
evidence that on or about January 27, 1976, Respondent
did threaten its employees with refusal to recognize the
Union and to close down its Louisville plant (warehouse)
operations . This finding is supported upon the credited
testimony of Phillip Bradley , which is consistent with and
further supported by the total evidence of record.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice warranting a remedial order , I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies of
the Act.
It having been found that Respondent interfered with,
restrained , and coerced its employee Phillip Bradley in the
exercise of his Section 7 protected rights, in violation of
Section 8(a)(1) of the Act, and that it laid off and thereafter
unlawfully refused to recall employee Phillip Bradley,
instituted a written warning system and discharged
employee Roger Bryant , in violation of Section 8(a)(3) and
(1) of the Act, the recommended Order will provide that
Respondent recall or offer to recall Phillip Bradley to its
employ as of the date of January 12, 1976, and offer Roger
Bryant reinstatement to his job , and make him whole for
loss of earnings within the meaning and in accord with the
Board's decision in F. W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962), except as specifically modified by the wording
of such recommended Order.
Upon the basis of the above findings of fact and upon
the entire record of this case, I make the following:
CONCLUSIONS OF LAW
1. Kern's Bakeries , Inc., the Respondent, is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. General Drivers, Warehousemen and Helpers Local
Union No. 89, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, the Charging Party herein, is and has
been at all times material herein a labor organization
within the meaning of the Act.
3. By interrogating its employees about their union
sympathies and knowledge of the union activities of
employees, the Respondent interfered with, restrained, and
coerced its employees in the exercise of rights protected by
Section 7, in violation of Section 8(a)(1) of the Act.
4. By threatening its employees with its refusal to
recognize the Union and to close down or lock up its
Louisville plant if the Union prevailed, the Respondent
violated Section 8(a)(1) of the Act.
5. By instituting a system of disciplinary warnings on or
about November 25, 1975, the Respondent violated Section
8(a)(3) and (1) of the Act.
6. By refusing and failing to recall Phillip Bradley to
work on January 12, 1976, the Respondent discriminated
with respect to employees' hire and tenure of employment
in violation of Section 8(a)(3) and (1) of the Act.
7. By discharging Roger Bryant, the Respondent
discriminated with respect to employees' hire and tenure of
employment in violation of Section 8(a)(3) and (1) of the
Act.
Upon the foregoing findings of facts, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 13
The Respondent, Kern's Bakeries, Inc., London, Ken-
tucky, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
membership or activities in a manner violative of Section
8(a)(1) of the Act.
(b) Threatening its employees with refusal to recognize
the Union and to close down or lock up its Louisville plant.
(c) Instituting warning systems to discourage union
membership or activities.
(d) Discharging or refusing and failing to recall or
otherwise discriminating against employees in order to
discourage membership in or support of General Drivers,
Warehousemen and Helpers Local Union No. 89, or any
other labor organization.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Recall Phillip Bradley and offer to Roger Bryant
reinstatement to their former positions or, if such positions
no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights previous-
ly enjoyed, and make them whole for any loss of pay
suffered by reason of the discrimination against them, with
interest at the rate of 6 percent, in the manner described in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of the recommended Order.
(c) Post at Respondent's plant (warehouse) at Louisville,
Kentucky, copies of the attached notice marked "Appen-
dix." 14 Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly signed by
Respondent 's representatives , shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not herein found.
13 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
14 In the event the Board 's Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
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 having found, after
hearing, that we violated Federal law during employees'
organizing campaign in October 1975, we hereby notify
you that:
WE WILL NOT coercively interrogate employees
about their and other employees' union membership,
activities, and desires.
WE WILL NOT institute a disciplinary warning system
to discourage union membership or union activities.
WE WILL NOT threaten employees with refusal to
recognize the Union or to close down or lock up our
Louisville plant (warehouse) to discourage union
membership or union activities.
WE WILL NOT transfer, discharge, demote, refuse to
recall or employ, or otherwise discriminate against
employees in order to discourage membership in or
support of General Drivers, Warehousemen and Help-
ers Local Union No. 89, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor
organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise and
enjoyment of rights guaranteed to them by Section 7 of
the National Labor Relations Act.
KERN 'S BAKERIES , INC. 1475
WE WILL recall Phillip Bradley and offer to Roger
Bryant immediate and full reinstatement to their
former positions or, if such positions no longer exist, to
substantially equivalent positions , without prejudice to
their seniority or other rights and privileges previously
enjoyed , and make them whole for any loss of pay
suffered by reason of the discrimination against them,
with interest at the rate of 6 percent per annum.
All our employees are free to become , or remain, or
refuse to become or remain , members of General Drivers,
Warehousemen and Helpers Local Union No. 89 , affiliated
with the International Brotherhood of Teamsters , Chauff-
eurs, Warehousemen and Helpers of America, or any other
labor organization , except to the extent that such rights
may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
KERN'S BAKERIES, INC.