Lenders's Bagel Bakery

National Labor Relations Board - Board Decisions

May 27, 1966

158 N.L.R.B. 1175 (N.L.R.B. 1966)

LENDER'S BAGEL BAKERY 1175
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 316
Federal Building , 110 South Fourth Street , Minneapolis , Minnesota , Telephone
No. 334-2618.
Lender 's Bagel Bakery and Bagel Bakers Union Local 338 of the
Bakery and Confectionery Workers International Union of
America and Local No . 171, American Bakery and Confection-
ery Workers , AFL-CIO. Cases Nos. 1-CA-5054 and 1-CA-5165.
May 27, 1966
DECISION AND ORDER
On March 3, 1966, Trial Examiner William W. Kapell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action,* as set forth in the attached Trial Exam-
iner's Decision. Ile further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that they be dismissed. Thereafter, the
Respondent, the General Counsel, and the Charging Party filed ex-
,ceptions to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended,. the National Labor Relations Board
has delegated its powers in connection with this proceeding to a
three-member panel [Members Fanning, Brown,, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, -and the entire record
in this proceeding, and hereby adopts the Trial Examiner's findings,
,conclusions," and recommendations with the following modifications.
1 We 'agree with the Trial Examiner 's conclusion that Respondent ' s discharge of Thomas
violated Section 8 ( a) (3) of the Act . In this connection , we find that Thomas' union
activity was the motivating factor for the discharge . Wolverine Shoe & Tanning Corpo-
ration, 152 NLRB 307 ; Tursair Fueling, Inc , 151 NLRB 270.
We further agree, for the reasons stated by the Trial Examiner , that Respondent inter-
fered with Local 171 in violation of Section 8(a) (2) and that the contract between them,
dated December 25, 1964, should not be given effect. However , in reaching this con-
clusion , we do not adopt the Trial Examiner's statement in his "Conclusions as to Sec-
tion 8(a) (1) and ( 2) violations," that "The unlawful genesis of the contract precludes
its validity . . . " insofar as this may imply any finding that events occurring before
December 21, 1964, the cutoff date under Section 10 ( b) of the Act , violated the Act, or
any reliance on such events to support our finding of a violation therein
158 NLRB No. 118.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner concluded that the record failed to establish
that Raymond Young was discharged on August 27 and there was
insufficient evidence to show that he was denied reemployment be-
cause of his union activities. We do not agree. As the Trial Exam-
iner noted with respect to Thomas' unlawful discharge, Respondent's
failure.to, retain Young in its employ must be viewed "in the context
of Respondent's violations of Section 8(a) (1) and 12) of the entire
record."
The Respondent engaged in extensive and flagrant violations of the
Act in its efforts to convince employees to support Local 171. Among
other things more fully set forth in the Trial Examiner's Decision,
shortly before Christmas in 1964, Samuel Lender told Young that
if he and the other employees did not vote in favor of the contract
negotiated by Local 171 all employees would lose their jobs. And
about a week later, Lender questioned Young about whether he had
opposed the contract at the union meeting the night before and
threatened that "If [Young] didn't go along with" Respondent, he,
Young, knew what would happen.
Although Young apparently began soliciting employees on behalf
of Local 338 in April 1965,, his disaffection with the leadership of
Local 171 became notorious in May 1965 when he and Thomas for-
mally accused Sulkis, Local 171's business agent, of "not doing his
job" and "Making deals with Management." At a union meeting
held in June 1965 to consider those charges, Respondent's supervisor,
Lugo, who was actively engaged in Respondent's unlawful assistance
to Local 171, defended Sulkis and stated that the bringing of charges
was not permitting Sulkis to do his job. Respondent was further
made aware of Young's opposition to Local 171 by his refusal to sign
a checkoff authorization for the union upon request of Lugo in June
after the unfair labor practice charges herein were filed. Thus,
Young's attitude toward Local 171 continued to be expressed in the
face of Respondent's clearly announced -and longstanding unlawful
encouragement of Local 171.
Young had been employed by Respondent for 41/2 years, and it is
undisputed that Respondent considered him to be a superior em-
ployee. In June 1965, Murray Lender stated that Young was reliable
and a good worker. Indeed, Respondent had recently moved to a
larger plant, and had previously chosen Young to help train new
employees in its expanding work force at the new plant. Neverthe-
less, it is uncontroverted that rafter the June union meeting, Samuel
Lender frequently criticized Young's work although prior thereto
such comment was rare.
It is against this background that the events of August 1965, must
be viewed. In this context it becomes apparent that Samuel Lender
LENDER'S BAGEL BAKERY 1177
initiated the conversation on August 14 in order to rid Respondent
of ,an outspoken opponent of its collective-bargaining practices.
Thus, Lender called Young to his office on that date and asked about
a rumor that Young was going to California, to which Young replied
that he had a job opportunity there and was leaving in 2 weeks.
This conversation occurred on a Saturday, yet the next Monday,
August 16, when Young informed Lender that he did not wish to
move to California and would like to reiriain in his job, Lender said
a replacement had already been hired and he would have to discuss
the matter with his brothers. This replacement, it developed, was
totally inexperienced and in no sense capable of performing in place
of Young as a dough cutter, apparently an important job in the
plant, without extensive training. Further, the replacement worked
only part of the first few days thereafter and then was absent be-
cause of illness. Despite this, Young's repeated requests to remain
on the job were denied and he was terminated on August 27, as-
sertedly because his replacement had been hired, although Respond-
ent was, by its own testimony, in a state of expansion and in need of
additional competent personnel.2
On the facts in this case, it is immaterial whether the termination
of Young's employment be denominated a discharge, a refusal to
accept an attempted rescission of a resignation, or a refusal to rehire.
Whatever it be called, we cannot agree with the Trial Examiner that
such termination was not in violation of the Act. Rather, viewed in
the entire context of this case, we conclude that Respondent's termi-
nation of Young was motivated by its desire to rid itself of an
employee who actively opposed the union favored by Respondent.
The Respondent's asserted reason is clearly a pretext since based on
the entire record, and in view of Respondent's continuing need for
additional personnel throughout this period, it is highly improbable
that an employer motivated by nondiscriminatory considerations
would reject an opportunity to retain an experienced, competent
employee of long standing, even if such retention would have re-
quired that Respondent lay off for a brief period a new unskilled
employee who had worked less than a week and was absent thereafter
because of illness., On the other hand, Respondent's manifest desire
to maintain its bargaining relationship with the unlawfully assisted
Local 171, its knowledge of Young's active opposition to the incum-
bent union, and the pretextual nature of Respondent's asserted reason
for not retaining him, reveals that Young's activities in opposition
to Local 171 were the controlling factors motivating Respondent's
2 Murray Lender stated that at the time of the hearing in November 1965, the em-
ployee complement was about 40. He further indicated that the plant had been "in a
rapid phase of expansion" and that "there really has been no levelling point."
3 Cf N.L.R.B. v. Melrose Processing Co., 351 F. 2d 693 (C.A. 8), enfg 151 NLRB 1352
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actions. Accordingly, we find that Respondent violated . Section'
8('a) (3) by terminating Young and we shall order his reinstatement
with appropriate backpay, to be computed in accordance with the
provisions of The Remedy section of the Trial Examiner's Decision
relating to Robert Thomas.
[The Board adopted Trial Examiner's Recommended Order with
the following modifications : 4
[1. Substitute the following as paragraphs 2(b) and (c)
[ (b) Offer to Robert Thomas and Raymond Young immediate and
full reinstatement to their former or substantially equivalent position
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have suffered by
reason of Respondent's discrimination against them, in the manner
and to the extent set forth in the section of this Decision entitled
"The Remedy."
[(cr Notify Robert Thomas and Raymond Young if presently
serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the provisions
of the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.]
' The Appendix attached to the Trial Examiner's Decision shall be modified in accord-
ance with 'the modified Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASES
Cases Nos. 1-CA-5054 and 1-CA-5165,1 proceedings under Section 10(b) of
the National Labor Relations Act, as amended , herein called the Act, were heard
before Trial Examiner William W. Kapell in New Haven, Connecticut , on Novem-
ber 9 and 10 , 1965,2 pursuant to due notice. An amended complaint s issued by
the Acting Regional Director of Region 1 of the National Labor Relations Board,
hereinafter called the Board , alleges that Respondent gave assistance to, and inter-
fered with the administration of, Local No. 171, American Bakery and Confec-
tionary Workers, AFL-CIO, hereinafter referred to as Local 171 , in violation of
Section 8(a)(2); interfered with , restrained , or coerced its employees in the exer-
cise of rights guaranteed by Section 7 in violation of Section 8(a)(1); and dis-
criminatorily discharged employees Robert Thomas and Raymond Young, and
' The charges were filed , and the amended complaint was issued, against Samuel Lender,
Marvin Lender and Murray Lender d/b/a New York Bagel Bakery , hereinafter referred
to as Respondent. During the hearing undisputed testimony by Respondent showed that
3 weeks before , it changed its name to Lender's Bagel Bakery. This affected merely a
change in the form of ownership and legal composition to a corporation. The partners
continued to control and operate the business . In his brief , General Counsel moved to
amend all of the formal papers to indicate the change in Respondent 's name No opposi-
tion having been submitted by Respondent, and the matter having been duly considered,
the motion is hereby granted and all formal papers herein are amended to reflect the change
in Respondent 's name effected by the conversion of the copartnership to a corporate
structure.
2 AR dates hereinafter refer to the year 1965 unless otherwise noted.
8 Based on charges filed on June 21 and September 24, respectively , by Bagel Bakers
Union Local 338 of the Bakery and Confectionery Workers International Union of America,
hereinafter called Local 338, against Respondent . An order consolidating the cases for
bearing and the amended complaint were issued on October 7.
LENDER'S BAGEL BAJ ERY , 1179
executed a collective-bargaining agreement with Local 171, restricting employment
in branch shops to members of Local 171, in violation of Section 8(a) (3). Local
171 was made a party herein because of its current collective-bargaining agree-
ment with Respondent. In its duly filed answer Respondent denied all material
allegations of the amended complaint, including allegations pertaining to its com-
merce and the status of Locals 171 and 338 as labor organizations within the
meaning of the Act. At the hearing Respondent admitted the allegations of the
complaint pertaining to its commerce, the status of Local 171 as a labor organiza-
tion within the meaning of the Act, and the supervisory status of the three Lenders,
named as copartners. Although duly served with process, Local 171 filed no
answer and made no appearance at the hearing. All other parties were represented
and afforded full opportunity to be heard, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. Counsel for General
Counsel, Respondent, and the Charging Party filed briefs which have been duly
considered. Upon the entire record in the cases and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein Respondent has maintained a place of business in
New Haven or West Haven, Connecticut, where it engaged in the manufacture,
sale, and distribution of bagels and other bakery products. In the course and con-
duct of such business large quantities of food stuffs and other materials used in
the manufacture of bagels and other bakery products are purchased and trans-
ported in interstate commerce from and through various States other than Connecti-
cut, and bagels and other bakery products valued in excess of $50,000 are annually
sold and transported in interstate commerce to States other than Connecticut.
Respondent admits, and I find, that at all times material herein Respondent was
engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits, and I find, that Local 171 at all times material herein was
a labor organization within the meaning of the Act.
Respondent in its answer and at the hearing denied that Local 338 is a labor
organization within the meaning of the Act. Raymond Fleishman, who identified
himself as the current president and chairman of the organizing committee of
Local 338, testified that he had been associated in one or more capacities with
Local 338 for many years, that the local exists for the purpose of representing
employees in their relations with management with respect to the terms and condi-
tions of their employment, and that it currently represents employees in collective-
bargaining agreements with about 40 employers. No evidence was presented by
Respondent to refute that testimony. Contrary to Respondent's contention, I find
that Local 338 is, and at all times material herein was, a labor organization within
the meaning of the Act. See Edward Fields, Incorporated, 141 NLRB 1182, 1184.
III. THE UNFAIR LABOR PRACTICES
A. Background and setting
Prior to on or about the beginning of January , Respondent operated a shop on
Baldwin Street in New Haven, Connecticut , with seven to nine employees, and
was a large distributor of bagels in the New York City metropolitan area, where
Local 338 has several collective -bargaining agreements with other bagel bakeries.
In November 1964 Respondent began the construction of a larger shop in West
Haven , Connecticut , which was completed in the latter part of 1964, and into
which Respondent moved during January. At the old shop Respondent operated
one shift until sometime in September or October 1964 when it began organizing
and operating second shift in anticipation of moving into and expanding its
operations at the new shop . Preceding and following its move into the new
shop, Respondent gradually increased its working force to about 40 employees.
Fur the past number of years Respondent had been a party to several successive
collective -bargaining agreements with Local 171, the last of which expired by its
terms on December 25, 1964. Several weeks prior thereto, Murray Lender began
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiating with Local 171 for a new agreement . In these negotiations Maurice
Sulkis, business representative and president of Local 171 , and John Lugo, an
employee of Respondent, represented Local 171.
The first unfair labor practice charge was filed herein , on June 21 , consequently,
conduct attributable to Respondent prior to December 21, 1964 , may not be found
violative of the Act because barred by Section 10 of the Act. However, as urged
by General Counsel , such conduct may be considered as background evidence to
shed light on events occurring within the 6-month statutory limitation period, which
are alleged to constitute unfair labor practices.4 Thus, in the early part of Decem-
ber 1964 about 2 or 3 weeks before Christmas, Respondent held a meeting of its
employees at the new shop prior to its being put into operation for the purpose
of familiarizing the employees with the equipment and shop layout. At this meet-
ing Murray Lender referred to the pressures being exerted against the Company
by Local 338 in New York, which were stifling its trade. Following these remarks
some of the employees asked questions concerning the new agreement, which was
then in process of negotiation. Murray Lender thereupon discussed several of its
provisions relating to wage increases, welfare, and other terms, upon which he had
reached agreement with Sulkis and John Lugo 5 The Lenders urged acceptance of
the new agreement, Murray Lender asserting that it was the only agreement they
could survive on "and that was it." Marvin Lender stated that if the employees
refused to go along with the proposed agreement, he and his brothers would move
back to the old shop, close down the new shop, and let all the employees go who
declined to go along with it.6
About 2 or 3 days after the employee meeting at the new shop, Samuel Lender
told Young at the old shop that the employees should go along with the agreement
otherwise they would get rid of the employees who refused to do so.7
About a week after the employee meeting at the shop, they attended a union
meeting at the Workmen's Circle in New Haven, where Sulkis and Lugo urged
acceptance of the new contract. Employee Richardson objected to the presence
of Lugo but was overruled by Sulkis. Some employees spoke up against the pro-
posed new agreement and, as a result , a negotiating committee was appointed
consisting of Sulkis and employees Young, Richardson , and Branham , and a meet-
ing was scheduled for the following week, but never held. The following day at
the shop Samuel Lender asked Young if he opened his mouth at the meeting, and
said "If I (Young) didn't go along with him I knew what would happen." 8
General Counsel concedes that the foregoing related events occurred prior to
December 21, 1964, but asserts that the events related hereafter occurred within the
6-month statute of limitations , and constitute unfair labor practices in violation of
the Act.
B. The alleged violations of Section 8(a) (2) and (1)
The amended complaint, in substance, alleges that Respondent through its super-
visors and agents (the Lenders and Lugo) since on or about December 21, 1964,
interfered with Local 171 in the negotiation and execution of a collective-bargaining
agreement covering its employees by contributing support to said union ; attending
contract ratification meetings and other internal union meetings; soliciting employ-
4 Florida All-Bound Box Company, 138 NLRB 15G.
5 General Counsel contends , as alleged in the amended complaint, that Lugo, a super-
visory employee of Respondent , unlawfully represented Local 171 in its negotiations with
Respondent Respondent asserts that Lugo was not a supervisor during the contract
negotiations, and did not attain supervisory status until about the summer of 1965.
Lugo's status is discussed and resolved infra
U The findings relating to the discussion of the terms of the proposed agreement are
based upon the testimony of employees Raymond Young and Robert Thomas, who testified
on behalf of General Counsel, and employee Vincent Di Carlo who testified on behalf of
Respondent. Murray Lender admitted commenting about Local 338 and answering sonic
questions about the proposed agreement The threats to employees, who refused to go
along with the agreement, are based on the credited testimony of Young and Thomas.
Di Carlo's testimony that he was unable to recall whether the Lenders made any threats
appeared evasive and untrustworthy Murray Lender denied threatening employees with
the loss of jobs or closing the new shop while Marvin Lender to whom the threats were
specifically attributed did not testify
7 This finding is based on the uncontradicted testimony of Young
s These findings are based on the uncontradicted testimony of Young.
LENDER'S BAGEL BAKERY 1181
ees to join Local 171; passing out union authorization cards to its employees;
participating in the deliberations of Local 171's negotiations committee ; paying
the union dues of its employees ; checking off union dues without proper employee
authorizations ; threatening employees with plant closure, loss of employment, and
loss of benefits if they failed to ratify the agreement submitted to them by Local
171; and executing on or about December 25, 1964, a collective-bargaining agree-
ment with Local 171 restricting employment in branch shops to its members.
Lugo's Supervisory Status
General Counsel contends that certain conduct of Lugo, related infra, constitutes
unfair labor practices , which are attributable to Respondent because of his super-
visory status . Inasmuch as Respondent denies his supervisory status at times mate-
rial herein , it is necessary to resolve this issue before considering his alleged viola-
tive conduct .9 The evidence reflecting on his status is as follows:
Murray Lender testified that until September or October 1964, the Company
operated one shift on which there was a crew consisting of three or four men
shaping bagels and three men in the oven room . In anticipation of moving into
the new shop , they decided to organize another crew for a second shift, and only
Lugo, an experienced bagel shaper with the most seniority , was selected to be
trained to take charge of that crew , and the other employees became aware of the
change in Lugo's status . Lender admitted that while Lugo was being trained he,
on occasion , directed the work of other employees on the 1 to 9 p.m. shift to
which he had been assigned , and that between the fall of 1964 and the move into
the new shop ( at the beginning of January ), "There would have been times when
he had almost complete charge. Never complete charge." 10 Lugo admitted
receiving authority to direct other employees after moving to the new shop but not
before.
Employees Young and Thomas testified that in August or September 1964,
Sam Lender told them that Lugo was being made a foreman and he was the boss
when the Lenders "weren't around ." They testified further that in the old shop as
well as in the new shop, Lugo directed them in their work, had the authority to
discipline employees by sending them home ," and assigned overtime work.
Conclusions as to Lugo's Status
From the testimony of Murray Lender and Lugo, it is apparent that the latter
was a supervisor or foreman after they moved into the new shop. The testimony
concerning his supervisory status prior to that time is in conflict. However, Murray
Lender admitted that Lugo on occasion directed other employees during his "train-
ing period," and had almost but never complete charge. Yet he never indicated
in what way Lugo's control was not complete or distinguishable from that of a
supervisor. Also, Lugo admitted that when interviewed by a Board representative
investigating the case during the past summer he may have stated that he exer-
cised disciplinary authority by sending employees home while in the old shop. His
testimony on this point was evasive, and his demeanor carried little conviction
when he claimed inability to recall the substance of that interview. Complementing
the above admissions with the straightforward and persuasive testimony of Young
and Thomas, which I credit, regarding Lugo's supervisory status in the old shop,
I find that at least on and after December 21, 1964, his duties and authority dur-
ing that part of his so-called training period were those of a supervisor, and that
D Respondent conceded that it participated in the deliberations of Local 171 only if
Lugo's status is determined to be that of a supervisor.
11 Lender 's testimony also shows that at an executive board meeting of Local 171 In
June , which was called to resolve whether Young was entitled to a night's pay niter having
been sent home by Lugo because of having become embroiled in a dispute with another
employee ( Sue Cuzzinelli ), Lugo's authority to discipline Young by sending him home was
raised as an issue , and that lie ( Lender ) advised the executive board that in the absence
of the Lenders , Lugo had authority to "lake decisions and to keep the work going. Al-
though this incident occurred several months after the Company moved to the new shop,
no reference was made to the effect that Lugo had only recently acquired such authority.
n On cross -examination Lugo admitted that in a conversation with a Board representa-
tive investigating the case during the summer, he may have said that be sent people home
while at the old shop, but didn't recall.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he functioned in that capacity on his shift. The Bama Company, 145 NLRB
1141, 1143.112 Accordingly, I find that Lugo's conduct on and after December 21,
1964 , is attributable to and binding on Respondent.
1. Respondent's participation in the meetings of Local 171 and on
its negotiating committee
The undisputed testimony of Murray Lender, Sulkis, and Lugo demonstrates
that Lugo and Sulkis represented Local 171 in its contract negotiations with
Respondent. They reached substantial oral agreement on its terms which were
discussed to some extent at the employee meeting held in the new shop early in
December 1964. Acceptable language on some points not pertaining to monetary
terms, and the selection of another holiday, remained to be agreed on. Approval
of the proposed contract, however, was subject to ratification by the employees,
and a union meeting to vote on the matter was held 2 or 3 evenings before
Christmas 1964.13
During that day, but prior to the union meeting, Samuel Lender telephoned
Young, who was then at the shop, and urged him to attend the union ratification
meeting and to vote in favor of the contract, otherwise he knew what would
happen and they would all lose their jobs.14 Also, during that day Lugo told
Young and Di Carlo at the shop to vote for the proposed contract because it was
the only one Respondent could "survive on." That night Lugo attended the union
meeting, taking two female employees with him, who accepted his invitation to go
to the meeting in his car. One of these employees had previously punched in at
the shop, and, apparently, attended the meeting during her working hours. Dur-
ing the meeting Lugo urged the employees to ratify the proposed contract, stating
that Respondent could not afford to give them a raise during the contract's first
year because they were short of money, having expended most or all of it on the
neW shop. The employees, including Lugo, then voted six to one or two to ratify
the contract. Sulkis, who also attended this meeting, then appointed a committee
consisting of Lugo, Young, and Thomas to represent Local 171 in completing
negotiations on the matters left open in the contract.15
Subsequent to the contract ratification meeting, and about the middle of Jan-
uary, Lugo, Young, and Thomas met with Morris Olmer, Respondent's attorney,
in his office, for the purpose of completing the new contract, and agreed on the
language to be used on terms previously left open, and also selected Easter Sunday
for the unspecified holiday. The contract was thereafter reduced to writing and
signed during the latter part of January, but dated December 25, 1964.
On May 21, Young and Thomas filed formal charges with their International
Union against Sulkis, accusing him of failing to protect the interests of the mem-
bers of Local 171 in the performance of his duties as business agent of that local.16
On June 7, a meeting of Local 171, including its executive board, was held to
consider these charges, as a result of which Sulkis was suspended from office. There-
after, on June 16, the executive board held another meeting, attended by two
12 Cf. Hy Plans Dressed Beef, Inc., 146 NLRB 1253, 1260, where a trainee being groomed
to occupy a management role and on occasion exercising some powers of management was
held sufficient to establish his status as that of a supervisor within the meaning of the
Act. See also WTOP, Inc., 115 NLRB 758, 759, where the Board held that trainees being
prepared to assume responsibilities and duties of supervisors were not "employees " within
the meaning of the Act.
13 This was the next union meeting held after the one which took place about 2 weeks
before Christmas , as related supra. Young testified that this meeting was held on 'a
Wednesday or a Thursday, 2 or 3 days before Christmas. Sulkis testified that this meet-
ing took place about 2 weeks before the expiration of the old contract ( December 25).
Lugo testified that this meeting took place about a week or two after the first meeting.
Undisputed testimony shows that the employee meeting at the new shop occurred 2 or 3
weeks before Christmas, and that the first union meeting took place about a week later.
Inasmuch as the second union meeting obviously occurred sometime after the first meet-
ing, and based on the demeanor of the witness , I find Sulkis ' testimony implausible and I
credit Young's testimony as to the date of the second union meeting
14 These findings are based on the uncontradicted testimony of Young.
15 These findings are based on the undenied, credited composite testimony of Young, Lugo,
and Sulkis.
16'The charges also alleged that the members were not allowed the right of collective
bargaining on their last contract.
LENDER'S BAGEL BAKERY 1183
representatives of the International. Lugo also appeared at this meeting and spoke
up publicly in support of Sulkis, asserting that the filing of the charges and the
answer of David Montano (iecording secretary of Local 171) to a few of the
witnesses, were not permitting Sulkis to do his job. During the meeting Sulkis'
suspension was lifted and he was reinstated.17
2. Respondent's solicitation of employees to join Local 171, and its
checkoff and payment of union dues
About the middle of March, Young, as shop steward, advised Murray Lender
that some female employees 18 had refused to join Local 171 and would have to
be fired, and requested his assistance in obtaining union authorization cards from
them. Lender approached two of them (Josephine Stamford and Mary Lou
Thomas) and discussed the union card problem with them, advising them that they
had to sign the cards as had been told to them when they were hired. Their cards
were thereafter signed by them and returned to Young.is
During April, Young advised Murray Lender that Tony Avilla, who had been
working 8 or 9 months, had refused to join Local 171. Lender replied that he
would take care of it. A few days later Young informed Sulkis about Avilla's
refusal to loin the Union. Sulkis replied that he would take care of the matter
and took the application card from Young. Later that day Sulkis advised Young
that Avilla had signed his application to join the Union and that Respondent was
going to pay his dues. Thereafter, at the union meeting held on June 16,,at which
Sulkis, Young, and Avilla were present, Avilla declared that he had not signed
his application to join the Union and was not paying his union dues. Lugo then
stated that Avilla was an exceptionally good worker and the bosses were paying
his dues as a bonus .20
Prior to June 21, Respondent checked off the union dues of its employees and
paid them to Local 171 without any authorization from the employees.21 Follow-
ing the filing of the instant charges by Local 338 on June 21, Lugo requested and
obtained written checkoff authorizations from about 15 employees. Young, how-
ever, refused to comply with Lugo's request to sign a checkoff authorization but
Respondent continued to check off and pay his dues to Local 171 .22
Conclusions as to the 8(a)(1) and (2) Violations
The evidence establishes that early in December 1964, Respondent began threat-
ening its employees with economic reprisals if they refused to ratify the contract
then in process of negotiations, and that Lugo participated in the negotiations on
behalf of Local 171. Although these activities may not be found violative of the
Act because of the 6-month statutory limitation, it, nevertheless, revealed the
course of action on which Respondent embarked in order to obtain employee
approval of the proposed contract, despite its infringement of the statutory rights
guaranteed to employees, and assistance to Local 171.
Thereafter, within its 6-month statutory limitation period, Respondent continued
to exhort and threaten its employees to ratify the proposed contract; 23 and its
supervisor, Lugo, continued to attend meetings of Local 171 and to actively par-
ticipate in its union affairs, including the negotiation of the contract on behalf of
17 These findings are based on the uncontroverted testimony of Young.
18 Josephine Stamford, Mary Lou Thomas, Enice Barnes, and Louise Charnulci.
IP These findings are based upon the credited composite testimony of Lender and Young.
Mary Lou Thomas' version of the circumstances attending the signing of her authorization
card differed somewhat from the above findings, in that she approached Lender for the
purpose of signing a card, and is not credited.
20 These findings are based on the uncontradicted testimony of Young. David Montano,
recording and financial secretary of Local 171, testified that Marvin Lender confirmed to
him that the Lenders were paying Avilla' s dues.
21 The contract provision pertaining to check- off is numbered "Article XX" and states
only the following- "Check-off system."
as These findings are based on the uncontradicted testimony of Young, who stated that,
as shop steward, he was familiar with dues payments. Thomas also testified without
contradiction that he never signed an authorization card to deduct his union dues.
as This not only assisted Local 171 in obtaining approval of the contract, but also in-
directly assisted that local to maintain its representative status through the union-
security provisions contained in the contract.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 171. I find that such activities unlawfully interfered with the administration
of Local 171, and also assisted that local in violation of Section 8(a)(2). See
The Powers Regulator Company v. N.L.R.B., 355 F. 2d 506 (C.A. 7), enfg. 149
NLRB 1185; Coca-Cola Bottling Company of Sacramento, 146 NLRB 1045. Cf.
National Gypsum Company, 139 NLRB 916, 910-921.
Lender's threat of economic reprisal to Young to attend the union meeting and
vote for ratification of the contract also obviously coerced him in the exercise of
his statutory rights in violation of Section 8(a)(1).
I, therefore, conclude that the contract is neither valid nor enforceable because
obtained through Respondent's assistance to, and interference with the administra-
tion of, Local 171 in its negotiation and ratification, and Respondent's threats to
its employees. The unlawful genesis of the contract precludes its validity despite
its ratification by -a majority of the employees.
It, accordingly, follows, and I find, that additional assistance violative of Section
8(a)(2) was given to Local 171 after the execution of the contract when Respond-
ent solicited and obtained signed membership cards from its employees to join
Local 171.
I find further that Respondent's deduction of union dues from the wages of its
employees and their payment to Local 171 in the absence of a valid and enforce-
able contract containing a union-security provision and without obtaining authoriza-
tions from its employees, also constituted assistance to Local 171 in violation of
Section 8(a)(2) and (1); and that its solicitation of authorizations to deduct union
dues similarly violated the Act. T. C. Wagster d/b/a ABC Machine and Welding
Service, 122 NLRB 944, 945; Dan T. Edwards and Son d/b/a Western Auto
Associates Store, 143 NLRB 703.24
C. The alleged violations of Section 8(a) (3)
1. The activities of Raymond Young and Robert Thomas
on behalf of Local 338
The undisputed evidence reveals that during the spring and summer of 1965,
Local 338 conducted an organizational campaign among Respondent's employees.
Fleishman 25 contacted Young and Thomas and requested their assistance in
organizing Respondent's employees. They readily agreed and began soliciting
fellow employees on behalf of Local 338. Young also arranged meetings at which
he introduced Fleishman to employees, and obtained about 30 pledge cards. Thomas
also distributed pledge cards.
2. The alleged discriminatory discharge of Young
The amended complaint alleges that Young was discriminatorily discharged on
August 27. In his brief, General Counsel submits that if termination of Young's
employment is not found to be a discharge, it must be characterized as a voluntary
quit, followed by Respondent's refusal to rehire him, which would also constitute
a violation of Section 8(a)(3) because discriminatorily motivated. Respondent
asserts that Young voluntarily resigned and could not be rehired because a replace-
ment had been hired, and that, furthermore, he was a supervisor at the time of
his termination and, therefore, presumably not protected by the rights guaranteed
to "employees" in Section 7 of the Act.
In support of its contention that Young was a supervisor, Respondent adduced
testimony to the effect that Young was appointed a supervisor 26 in February, and
thereafter responsibly directed employees in their work, including directions to them
when to take coffee and lunch "breaks" and when to switch machines. Young
Ind no merit in Respondent's contentions that there was no evidence of a widespreadIf
checkoff, or that the evidence presented by General Counsel throughout the undenied
testimony of Young was insufficient to prove the payment of union dues because not
established through Respondent's records. The evidence, in fact, indicated a widespread
checkoff, although not necessary to establish a violation, and the duty to go forward to
refute General Counsel's evidence of the payments shifted to Respondent in the circum-
stances present herein.
a President of Local 338 and Chairman of its organizing campaign committee
20 At that time Young was shop steward of Local 171 and continued in that capacity
until his termination.
LENDERS BAGEL BAKERY 1185
testified that he simply instructed new employees how to perform their work and
assisted them when necessary; that he only relay orders from Lugo to the
employees when to take their "breaks," and operated their machines during such
"breaks"; that he did not responsibly direct or supervise any employees; and that
the title of "supervisor" was bestowed on him in name only. The preponderance
of the credited evidence indicates that at no time did Young's duties qualify him
as a supervisor. Furthermore, it definitely appears from admissions in the testi-
mony of Murray Lender that, as a result of the incident involving Young's dispute
with Lugo in June involving employee Sue Cuzzinelli 27 and other incidents, Young
was "relieved of his supervisory capacity" prior to his termination. I accordingly
find that Young was not a supervisor just prior to or at the time of his termination.
The evidence pertaining to Young's termination is as follows:
Young, who had been employed for about 41/2 years as a bagel and doughcutter,
was told to see Samuel Lender during his lunch hour on Saturday, August 14. In
the conversation between them Lender asked, "What's this I hear about you going
to California?" Young replied that he had a job opportunity in California, and
that he was leaving in 2 weeks. He also inquired whether he would be entitled to
receive vacation pay and was assured that he would get it 28 On the following
Monday, his day off, Young telephoned to Marvin Lender and stated that he did
not want to go to California and asked whether he could have his job back. Lender
replied that he did not think he could have his job back because a replacement
had been hired, but he would discuss it with his brothers. The next day when
Young reported for work he was advised by Marvin Lender that he could not have
his job back because a replacement had been hired. The same day Young met his
replacement, an inexperienced bakery worker, identified as "Tomas," and began
training him. Tomas worked a few hours each day for the rest of the week and
then went home because of illness. On Sunday, August 22, Tomas said he was
sick and was told by the foreman to go home and report back for work when he
felt better. Two or three times during the week of August 15, and on August 23
Young unsuccessfully asked Marvin Lender for permission to remain on the job.
Also, on August 23, Young asked Lender whether Tomas had left the job, stating
that he had heard so. Lender denied it. Tomas did not report for work during
the balance of that week, and on August 27, Samuel Lender gave Young his pay
and vacation check and told him he was through.29
Conclusions as to Young's Termination
Based on the credited evidence I find that General Counsel has failed to estab-
lish that Young was discharged on August 27, and that he was terminated pursuant
to his notice that he was quitting on that day to take a new job in California. His
attempt to rescind that notice, although made within 2 days, was ineffective because
a replacement had already been hired.
In order for General Counsel to prevail on his contention that Respondent
refused to rehire Young because of his union activity on behalf of Local 338, he
must first establish that a job within his capabilities was available or that Respond-
ent refused to consider him for a job regardless of its availability because of his
union activity. The only evidence presented with respect to the availability of a
job for Young tended to show that his replacement was an unsatisfactory employee
who took substantial sick leave while being trained, and had quit. The preponder-
ance of the evidence fails to establish that he had quit. At most, Young cited
a report that he had quit, which was rebutted by Lender. Furthermore, Young
adequately explained Tomas' absence from the shop during Young's last week of
employment by his testimony to the effect that he overheard the foreman advise
Tomas to go home and not to report to work until he felt better. Respondent
27 This was the incident, related supra, discussed at an executive board meeting of
Local 171 in June , as a result of which Young was sent home by Lugo , and a question was
raised as to whether or not Young was entitled to his pay for that night.
28 General Counsel contended and Young testified on direct examination that he told
Lender he might be leaving in a couple of weeks, and , therefore , did not notify Respondent
that he was resigning. However, on cross-examination Young admitted informing Lender
that he was leaving in 2 weeks , and his testimony to that effect is credited.
2D These findings are based on the uncontradicted testimony of Young.
221-731-67-vol. 15 ,8-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
probably welcomed Young's decision to leave because of his contentiousness but
that does not suffice to support a finding that he was refused consideration for
reemployment, especially in view of the fact that a replacement had been hired.
Accordingly, I find that there is a lack of any probative evidence to the effect that
Lender declined to consider Young for reemployment regardless of the availability
of a job for him because of his union activities.
I, accordingly, conclude that General Counsel failed to establish that Respondent
violated Section 8(a)(3) with respect to Young's termination or reemployment,
and I shall recommend that the allegations in the amended complaint to that
effect be dismissed.
3. The alleged discriminatory discharge of Thomas
As related above, Thomas, who had been employed by Respondent for 21/2 years,
campaigned actively on behalf of Local 338, and with Young had filed charges
against Sulkis. About a month after the filing of these charges, Marvin Lender
told Thomas that his brother Sam was thinking of firing him because of his poor
work. In July, Thomas asked Marvin Lender for an advance on his vacation pay
to take care of his car which was then in a repair shop. Lender replied that he
would have to talk to his brothers and call him back. He later called Thomas
and said, "Bobby I think you are very young and I know you're messing with
another union . . . but I'll give you the money since you need it that bad," and
he gave to him.30
According to Thomas, he received a telephone call at his home from Foreman
Piambino on August 6,31 shortly before 11 p m. when he was preparing to leave
for work on the 11 p.m. shift, and was requested to visit employee Victor Ortiz,
who lived in his neighborhood, to ascertain whether he was going to report for
work that night. As a result of making this call, Thomas reported late for work 32
Later that night, about 12:30 a in., Thomas received a telephone call to the effect
that his baby was sick and he left the shop against Lugo's order to remain at work
or otherwise be fired. The following morning Sam Lender telephoned to Thomas
and told him, "I'm not firing you because you went home, but I'm firing you
because you've been late in the past, and you were late last night and that was
the reason I'm firing you." The following Monday, Thomas went to see Sam
Lender in his office, where he was again told he was being fired because he was
late too often. Thomas remonstrated that other employees were late more often
than he was, and that he was being fired because he had filed charges against
Sulkis. Lender replied that they were not discussing other employees, and reiter-
ated that he was being fired because he was late too often.33 Thomas admitted
being late a few minutes, three or four times a month.
About an hour before the close of the hearing herein, General Counsel requested
Respondent to produce the timecards of Thomas and Ortiz. Pursuant to said
request, only Thomas' card was produced . Respondent claimed insufficient time
to obtain Ortiz card and declined to produce it unless subpenaed . Ortiz was not
called on to testify.
su Tbese findings are based on the uncontradicted testimony of Thomas . Also, Sam
Lender acknowledged that he had been informed by several employees in the spring and
early summer that they had been approached by Thomas to join another union.
31 The witnesses for General Counsel and Respondent referred to this date in their testi-
mony as August 13. At the close of the hearing , the production of Thomas' timecard
definitely indicated that August 6 was his last workday and it was so acknowledged by
Respondent . Thomas was admittedly discharged the following day, August 7 (the
amended complaint alleges that he was discharged on or about August 14 ). In view of
the foregoing circumstances , the correct dates of August 6 and 7 are used herein in lieu
of August 13 and 14, respectively , which were inadvertantly cited in the testimony.
82
HIs timecard showed that he checked in at 11: 27 p in. Foreman Piambino testified
that he telephoned Thomas about 11: 15 p.m . on the night in question to report for work
because he was needed , and that he never asked Thomas to call on Ortiz. Based on the
demeanor of the witnesses , Thomas' testimony , as related above, is credited . Thomas
also testified that Ortiz did not report for work that night. However , the record shows
that Thomas left the shop at 1: 14 a.m . that night , and his reference to Ortiz' failure to
show up would presumably be limited to that hour . Respondent indicated that Ortiz'
shift was to begin at 1 a.m. on that night.
33 These findings are based upon the credited composite testimony of Lender and Thomas.
LENDER'S BAGEL BAKERY 1187
Conclusions as to Thomas' Discharge
In order to prove the discriminatory discharge of Thomas, it was incumbent
,on General Counsel to establish that Respondent had knowledge of Thomas'
union activities, and was motivated, at least in part, to discharge him for that
reason. The credited testimony reveals that both Marvin and Sam Lender were
clearly aware of Thomas' union activities. Respondent, however, denied that these
activities were the cause of his discharge, and asserts that he was discharged because
of being frequently late. The record reveals that Respondent was aware that a
rival union organizing campaign was in progress at the time of Thomas' discharge;
that it knew, or could be charged with knowledge through Lugo, that Thomas had
filed charges against Sulkis involving , inter alia, the negotiation of its collective-
bargaining contract; that it failed to refute Thomas' claim that other employees
with worse records of lateness were not discharged; 34 and that there is no evidence
to indicate Thomas was ever warned about his tardiness before his abrupt
discharge.35
Viewing Thomas' discharge in the context of Respondent's violations of Section
8(a)(1) and (2) and the entire record, I conclude that he was discharged at least
in part to discourage his union activities on behalf of Local 338, and not for the
reasons advanced by Respondent. Furthermore, even conceding the existence of
valid grounds warranting Thomas' discharge because he was frequently late in
reporting for work, it is well settled that the presence of valid grounds for an
employee's discharge does not legalize it where the circumstances reasonably indi-
cate that it was wholly or even in part motivated by the employee's union activity.
Thus, in N.L.R.B. v. Great Eastern Lithographic Corp., 309 F. 2d 352, 355
(C.A. 2), cert. denied 373 U.S. 950, the court stated:
The issue before us is not, of course, whether or not there existed grounds
for discharge of these employees apart from their union activities. The fact
that the employer had ample reason for discharging them is of no moment.
It was free to discharge them for any reason good or bad, so long as it did
not discharge them for their union activity. And even though the discharges
may have based upon other reasons as well, if the employer was partly
motivated by union activity, the discharges were violative of the Act.
See also N.L.R.B. v. Symons Manufacturing Co., 328 F. 2d 834, 837 C.A. 7);
N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2). I accord-
ingly conclude that Respondent discriminatorily discharged Thomas in violation
of Section 8(a)(3) and (1).
4. The union-security provision applicable to branch shop employees
The current contract between Local 171 and Respondent in "Article I" contains
a provision, which on its face is a lawful union-security provision covering new
employees. Following that provision in the same "Article" there is a provision
affecting branch shop employees as follows:
In the event where any shop has branch shops, those shops shall be considered
as part of the main shop and come under UNION jurisdiction, and only
Union men of Local # 171 shall be employed.
Although General Counsel conceded that there is no evidence of the existence of
any branch shops, he maintains that the mere existence of a contract containing
a preferential employment clause, apart from any enforcement thereof, violates
Section 8(a)(3). Respondent contends that this provision must be construed in
4 Respondent not only failed to question Thomas as to the identity of these individuals,
but also declined to discuss the matter with him.
35 See E. Anthony & Sons, Inc v . N.L.R B , 163 F. 2d 22 , 26-27 (C.A D.C.), where the
court commenting on the sudden discharge of employees without any prior warnings
stated as follows: "If the employer had really been disturbed by the circumstances it
assigned as reasons for these discharges , and had had no other circumstance in mind,
some word of admonition , some caution that the offending lapse be not repeated , or some
opportunity for correction of the objectionable practice , would be almost inevitable." Bear-
ing in mind that Thomas had been working for Respondent 21/ years , it is not unreason-
able to infer , as the court did in the Anthony & Sons case , that the summariness of Thomas'
discharge gives rise to a doubt as to the good faith of Respondent ' s assigned reason.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the light of the other union-security provision and is, therefore, not unlawfully
restrictive in its hiring requirements and that, furthermore, the absence of any
branch shops precludes its involvement or application.
Conclusions
I find it unnecessary to determine whether the disputed provision is unlawfully
restrictive of Respondent's hiring conditions. Even if found violative of Section
8(a)(3), it would not affect the nature or scope of the Order which is hereinafter
recommended based on the finding that Robert Thomas was discriminatorily dis-
charged. Furthermore, no effect can be given to the disputed provision in view
of the further provisions of the Recommended Order enjoining Respondent from
enforcing the contract or recognizing Local 171 as the bargaining representative
of its employees unless and until certified by the Board as such representative.
Moreover, as contended by Respondent, the disputed provision is the third para-
graph of article I in the contract, and it is arguable that a fair construction of the
whole article would read into the language of the disputed provision the intent of
the parties evidenced in the previous two paragraphs. If so construed, the provi-
sion would not appear to be unlawfully restrictive of Respondent's hiring conditions.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and, such of them as have been found to constitute unfair labor practices,
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 unfair labor practices violative of
Section 8(a)(1), (2), and (3) of the Act, it will be recommended that it cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent unlawfully gave assistance to, and interfered
with the administration of, Local 171, it will be recommended that Respondent
cease and desist from giving the effect to the collective-bargaining contract dated
December 25, 1964, or to any modification, extension, renewal, or supplement
thereto, and withdraw and withhold all recognition from Local 171 as the repre-
sentative of its employees unless and until that Union is certified by the Board
as such representative.
Having found that Respondent discriminatorily discharged Robert Thomas, it
will be recommended that Respondent be required to offer him immediate and full
reinstatement to his former or substantially equivalent position and make him
whole for any loss of earnings suffered by him by payment to him of a sum of
money equal to the amount lie would have earned from the date of his discharge
to the date of Respondent's offer of reinstatement, less his net earnings during
said period, backpay and interest thereon at the rate of 6 percent to be computed
and paid in accordance with the remedial policies outlined in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Having found that Respondent unlawfully deducted union dues from the wages
of its employees and paid such dues to Local 171, 1 find that a reimbursement
order is necessary to effectuate the policies of the Act for the following reasons.
The Board has held 36 reimbursement is appropriate to those employees whose pay-
ment of dues are shown to have been made under coercion. Thereafter, in Sinko
Manufacturing and Tool Company,37 the Board on a motion to modify its previous
order directing reimbursement to all employees for moneys unlawfully exacted
under a union-security agreement, held, in effect, that union dues deducted and
paid on behalf of employees, who joined the Union after the execution of the
unlawful contract containing a union-security provision, were not voluntarily paid
but were coerced. See also Hampton Merchants Association, 151 NLRB 1307.
The record herein amply demonstrates that at least as to two employees (Josephine
8' Meyers Bros. of Missouri Inc., 151 NLRB 889.
37 154 NLRB 1474.
LENDER'S BAGEL BAKERY 1189
Stamford and Mary Lou Thomas) they were coerced by Respondent into signing
cards to join Local 171 pursuant to the union-security provision in an invalid and
unenforceable contract; that dues deductions were made without employee authori-
zations; and that no employee affirmatively indicated either a desire or a willing-
ness for a checkoff of union dues. Under these circumstances, I find it reasonable
to infer that the dues of employees hired after the execution of the contract, which
were deducted pursuant to the union-security provision, were not voluntarily paid
but were coerced. Accordingly, it will be recommended that Respondent reim-
burse those employees for the dues deducted from their wages, with interest to be
computed in the manner set forth in Seafarers International Union of North
America, 133 NLRB 1142.
In view of the nature and extent of Respondent's unfair labor practices, the
danger exists that it will commit similar or other unlawful labor practices which
will deprive employees of rights guaranteed under the Act. Accordingly, it will
be recommended that Respondent cease and desist from in any manner infringing
on said rights.
On the basis of the foregoing findings of fact and upon the record as a whole,
I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein was, an employer engaged
in commerce and in a business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 171 and Local 338 are, and at all times material herein were, labor
organizations within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, to the extent hereinabove set forth
and found, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By assisting Local 171 and interfering with the administration of said Union,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(2) of the Act.
5. By discriminating in regard to the hire and tenure of employment and other
terms and conditions of employment, thereby encouraging or discouraging mem-
bership in a labor organization, Respondent has engaged in and is engagaing in
unfair labor practices within the meaning of Section 8(a)(3).
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
7. General Counsel has failed to establish by the preponderance of the evidence
that Young was discriminatorily terminated or refused reemployment.
Upon the basis of the foregoing findings of fact and conclusions of law, and the
entire record, and pursuant to Section 10(a) of the Act, I issue the following:
RECOMMENDED ORDER
Lender's Bagel Bakery, located at West Haven, Connecticut, its offices, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Giving effect to the agreement December 25, 1964, or to any extention,
renewal, modification, or supplemental or superseding agreement entered into with
Local No. 171, American Bakery and Confectionery Workers, AFL-CIO; but
nothing herein shall be construed to vary or abandon the wages, hours, seniority,
or other substantive provisions of any such agreement.
(b) Recognizing or bargaining with Local No. 171, American Bakery and
Confectionery Workers, AFL-CIO, as the collective-bargaining representative of
its employees, unless and until said labor organization has been duly certified by
the Board as the exclusive representative of its employees.
(c) Unlawfully soliciting or requiring its employees to execute union membership
cards or authorizations to deduct union dues from their wages on behalf of Local
No. 171, American Bakery and Confectionery Workers, AFL-CIO, or in any other
manner offering illegal assistance or support to said Union.
(d) Interfering with the administration of Local No. 171, American Bakery
and Confectionery Workers, AFL-CIO, by conducting collective-bargaining negotia-
tions with any committee representing that union, which includes in its member-
1190 DECISIONS OF NATIONAL LABOR - RELATIONS __ BOARD
ship 'any supervisors of Respondent within the meaning of Section 2(11) of the
Act; or by having any of its supervisors actively participate in union meetings
with respect to the negotiation of a collective -bargaining agreement , or interfere
in any other manner with the internal administration of Local No. 171, American
Bakery and Confectionery Workers, AFL-CIO.
(e) Threatening economic reprisal against any employee who fails or refuses
to ratify a collective-bargaining contract entered into between Respondent and any
labor organization.
(f) Encouraging membership of its employees in Local No. 171, American
Bakery and Confectionery Workers, AFL-CIO, or discouraging their membership
in any other labor organizations, by discharging and/or refusing to reinstate its
employees because of their union activities, or in any other manner discriminating
against its employees with respect to their hire or tenure of employment or any
other term or condition of employment.
(g) In any other manner interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act, except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized by Section 8(a)(3) of
the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Withdraw and withhold all recognition from Local No. 171, American
Bakery and Confectionery Workers, AFL-CIO, as the representative of any of
its employees , unless and until such labor organization shall have been certified
by the Board as such representative.
(b) Offer to Robert Thomas immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay he may have suffered
by reason of Respondent 's discrimination against him , in the manner and to the
extent set forth in the section of this Decision entitled "The Remedy."
(c) Notify Robert Thomas if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the provisions of the Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the Armed Forces.
(d) Reimburse all employees hired after the execution of the collective-bargaining
contract entered into with Local 171, American Bakery and Confectionery Work-
ers, AFL-CIO, for union dues deducted from their wages, in the manner set forth
in the section of this Decision entitled "The Remedy."
(e) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all records necessary for the determination of the amount
of backpay and the reimbursement of union dues.
(f) Post at its plant in West Haven, Connecticut, copies of the attached notice
marked "Appendix ." 38 Copies of such notice to be furnished by the Regional
Director for Region 1, shall , after being duly signed by an authorized representa-
tive of Lender's Bagel Bakery, be posted by Respondent immediately upon receipt
thereof, in conspicuous places, including all places where notices to employees are
customarily posted and maintained by it for 60 consecutive days. Reasonable steps
shall be taken by said Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director, in writing, within 20 days from receipt of
this Decision, what steps Respondent has taken to comply herewith39
IT IS FURTHER ORDERED that the paragraphs of the amended complaint alleging
the discriminatory discharge of or refusal to rehire Raymond Young are hereby
dismissed.
Is In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a Trial
Examiner" in the notice . If the Board 's Order is enforced by a decree of a United States
Court of Appeals, the notice shall be further amended by the substitution of the words "a
Decree of the United States Court of Appeals, Enforcing an Order" for the words "a
Decision and Order."
39 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 1, in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply herewith."
LENDER'S BAGEL BAKERY 1191
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT maintain in effect or enforce our contract dated December 25,
1964, with Local No. 171, American Bakery and Confectionery Workers,
AFL-CIO.
WE WILL NOT recognize or bargain with Local No. 171, American Bakery
and Confectionery Workers, AFL-CIO, as the collective-bargaining representa-
tive of our employees unless and until said union has been duly certified by
the Board as the exclusive representative of our employees.
WE WILL NOT solicit our employees to execute union designation cards or
authorization to deduct union dues from their wages on behalf of Local No.
171, American Bakery and Confectionery Workers, AFL-CIO, or in any other
manner render unlawful assistance or support to said union, or any other
labor organization.
WE WILL NOT threaten our employees with economic reprisal for failing
to attend union meetings and vote for ratification of collective-bargaining con-
tracts with Local No. 171, American Bakery and Confectionery Workers,
AFL-CIO, or any other labor organization.
WE WILL NOT interfere with the administration of Local No. 171, American
Bakery and Confectionery Workers, AFL-CIO, by conducting collective-
bargaining negotiations with any committee representing that union, which
includes in its membership any of our supervisors; or by having any of our
supervisors actively participate in union meetings with respect to negotiations
of a collective-bargaining agreement or interfere in any other manner with
the internal administration of that union.
WE WILL offer Robert Thomas immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority
and other rights and privileges, and make him whole for any loss of pay he
may have suffered as the result of the discrimination against him.
WE WILL NOT encourage membership of any of our employees in Local No.
171, American Bakery and Confectionery Workers, AFL-CIO, or discourage
their membership in any other labor organization, by discharging or in any
other manner discriminating against any employees in regard to their hire or
tenure of employment, or any term or condition of employment.
WE WILL reimburse our employees, who were hired after the execution of
the collective-bargaining agreement entered into with Local No. 171, American
Bakery and Confectionery Workers, AFL-CIO, dated December 25, 1964, for
any union dues deducted from their wages pursuant to said contract.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized by Section 8(a)(3) of the Act.
All our employees are free to become, remain, or to refrain from becoming or
remaining, members of any labor organization.
LENDER'S BAGEL BAKERY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify Robert Thomas if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and
Service Act, a3 amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 24
School Street, Boston, Massachusetts, Telephone No. 233-3353.