Old Homestead Bread Co.

National Labor Relations Board - Board Decisions

Oct 5, 1965

155 N.L.R.B. 32 (N.L.R.B. 1965)

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time of the discharge , which occurred during or at the conclusion of this conversa-
tion , that she told Cole she would not continue to work for less than $ 1.50 an
hour . She was then receiving $ 1.34.1
It is assumed though not found that under the Union 's bargaining agreement with
Respondent , Dorris' , experience entitled her to the wage the Union demanded. I
would not think however that this would put the Respondent to the alternative of
keeping one in its employ at the stipulated wage whom it regarded as incompetent
to receive such a wage , or being found guilty of an 8 ( a)(1) and ( 3) violation.
Upon the entire evidence I have no doubt that the Respondent believed ; as Cole
stated to Ross and , indeed , to Dorris herself 2 that Dorris was not worth-in terms
of competency-the stipulated wage . It could not keep Dorris in its employ unless
it paid her the stipulated wage, or the wage demanded by Dorris as a condition for
remaining in its employ, and accordingly it discharged her: There is no evidence
of antiunion bias on the part of Respondent , such evidence as there is, with the
exception of the discharge itself, indicating amicable relations between the Union
.and Respondent.
The mere assertion of a right under a bargaining agreement if made in good
:faith , even though the right asserted may not be supported by the contract itself,
:may be protected union and concerted activity as the Board has held (Mushroom
:Transportation Co., Inc., 142 NLRB 1150 , 1157- 1158 ), but in my opinion it does
:not follow that insubordination or other breach of plant discipline based on an
employee's unilateral determination of his contractual rights, or, as here, an em-
:ployee 's refusal to continue to work unless paid a stipulated wage, even though that
employee's refusal is based on a belief that the bargaining agreement entitles her to
'such higher wage, is protected union or concerted activity. Had the employee in
question merely asserted a claim , or filed a grievance , and been discharged therefor,
we would have a different problem . I attempted to make such a distinction in an
earlier decision ( Traylor-Pamco, 154 NLRB 380 , 387, footnote 6, October 12,
1964 ) but here it is more clearly defined. This is not an appropriate forum , I think,
in which to seek enforcement of the terms of a bargaining agreement.
I shall recommend dismissal of the complaint.
CONCLUSIONS OF LAW
The Respondent is an employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning of Section 2(5) of the Act.
The Respondent has not engaged in the alleged unfair labor practices.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed:
1 Cole testified that he had already decided to discharge Dorris for incompetency at
the time he first learned of the Union's protest on her wages, and was supported in this
by Klontz. I do not credit this testimony. Klontz' testimony is inconsistent with that
given in a prehearing affidavit, and Cole's statements to Dorris at the time of her dis-
charge, while bearing out his position that he did not consider her work satisfactory,
showed clearly that the Union's demand for a higher wage entered into the discharge
considerations.
2 Dorris testified:
I said, "Has my work been satisfactory?" And he said, no, not exactly that he was
honest, that his wife had always told him how honest he was.
Old Homestead Bread Co. (Town Talk Bread )' and Charles E.
Cosens. Case No. 17-CA-92611. October 5, 1965
DECISION AND ORDER
On July 21, 1965, Trial Examiner Sydney S. Asher, Jr., issued his
Decision in the above-entitled proceeding, finding that the Respondent
155 NLRB No. 8.
OLD HOMESTEAD BREAD CO. 33
had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its en-
tirety, as set forth in the attached Trial Examiner's Decision. There-
after, the General Counsel filed exceptions to the Decision with 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 powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins 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 brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On January 29, 1965, Charles E. Cosens, an individual, filed charges against Old
Homestead Bread Co. (Town Talk Bread), Scottsbluff, Nebraska, herein called the
Respondent. On March 19, 1965, the General Counsel I issued a complaint alleg-
ing that since on or about October 5, 1964, the Respondent has interfered with, re-
strained, and coerced its employees by certain specified conduct, and that on or
about October 22, 1964, the Respondent discharged Charles E. Cosens, its employee,
and since then has failed and refused to reinstate him because of his membership
in or assistance to International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local No. 219, herein called the Union, and because
he engaged in other concerted activities. It is alleged that this conduct violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat.
136), herein called the Act. The Respondent filed an answer admitting that it had
discharged Cosens, but alleging that this took place on October 28, 1964, because
of acts of dishonesty by Cosens and his failure properly to handle funds of the
Respondent It denied the commission of any unfair labor practice.
Upon due notice, a hearing was held before Trial Examiner Sydney S. Asher, Jr.,
on May 18, 1965, in Scottsbluff, Nebraska All parties were present or represented
and participated fully in the hearing. At the hearing the General Counsel was per-
mitted to amend the complaint in certain specific respects. At the close of the hear-
ing, the Respondent moved for dismissal of the complaint in its entirety. Ruling on
this motion was reserved; it is disposed of herein. Although all parties were afforded
an opportunity to file a brief, no party has done so.
'The term General Counsel refers to the General Counsel of the National Labor Rela-
tions Board and his representative at the hearing.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case , 2 and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and it is found that the Respondent is,
and at all material times has been, an employer engaged in commerce as defined in
the Act, and its operations meet the Board's jurisdictional standards ; 3 and that
the Union is, and at all material times has been, a labor organization within the
meaning of the Act.
A. Background
Charles E. Cosens began working for the Respondent as a routeman in May 1965.
This employment lasted approximately 2 years. Cosens was reemployed as a route-
man in Denver, Colorado, on November 2, 1962 4 On May 15, 1964, Cosens was
discharged by Eric Tipton, the Respondent's sales manager in Denver, because of
admitted theft by Cosens from a customer of the Respondent. Cosens made restitu-
tion to the customer. A few days later, about May 18,5 Cosens applied for re-
instatement. Tipton conferred with C. J. Downing, the Respondent's president.
As a result, Cosens was reinstated, with a warning that he had "better keep [his]
nose clean." He continued to work in the Denver area until about June 27, when
he was transferred to the Respondent's operation at Scottsbluff, Nebraska. Cosens
had been a member of the Union while working in Denver. Before Cosens left
Denver, he was told by Tipton that he (Cosens) "would have to withdraw from
the Union in Denver due to the fact that there was no union" in Scottsbluff.6
There were four routemen at Scottsbluff, including Cosens. In late September
Cosens signed a union authorization card and obtained the signatures on similar
cards of two of his fellow routemen. On October 2 the Union filed with the Board
a petition seeking to represent a unit of all routemen employed by the Respondent
in Scottsbluff.?
B. Alleged interference, restraint, and coercion
1. Alleged interrogation
On Sunday, October If, in a tavern in Scottsbluff, Cosens had a talk with his
immediate superior, Courtland K. Hoffman, supervisor in charge of the routemen
in Scottsbluff. They first discussed certain subjects pertaining to the Respondent's
business, and what ensued is a matter of dispute. According to Cosens' testimony
the following took place: Hoffman stated that he had heard that the Union had
filed a petition to represent the routemen at Scottsbluff, and asked: "What's the big
x The reporter 's stamp on Respondent ' s Exhibit No. 1, which erroneously indicates that
it was received in evidence, is corrected to reflect the fact, shown on the record , that this
exhibit was rejected The record is further corrected as follows:
Page 79 , line 6-Strike the letter "A " and substitute therefor the letter "Q
Page 139, line 7-Stake the words "did not anticipate" and substitute therefor the
words "anticipated a "
Page 140, line 22-Strike the word "group" and substitute therefor the word " route."
Page 146, lines 14 and 15-Strike the words " comrade degree " and substitute therefor
the void "camaraderie"
Page 163, line 15-Strike the words "far as" and substitute therefor the words
"part of "
i The Respondent is, and at all material times has been , a Colorado corporation engaged
in the manufacture , distribution , and sale of bread and other baked goods. Its prin-
cipal place of business and manufacturing plant is located in -Denver , Colorado, and it
maintains various distribution points outside the State of Colorado , including one in
Scottsbluff , Nebraska . During the year 1964 the Respondent shipped goods valued at
more than $50,000 from its Denver , Colorado , plant directly to destinations outside the
State.
4 Cosens testified that in March 1964 during a discussion of a proposed deal with a
customer involving Cosens ' relinquishing part of his commission , his supervisor in Denver,
Alfred C. Reinfront , told him: "You could steal that much , can't you ?" Reinfront denied
making the remark I deem it unnecessary to resolve this conflict.
All dates hereafter refer to the year 1964 , unless otherwise noted
a The General Counsel does not contend that either Cosens' transfer to Scottsbluff or
Tipton 's remark about the Union constitutes a violation of the Act
7 Case No. 17-RC-4616 An election was held on November 5 and the Union lost.
On December 30 a certificate of results of election was issued
OLD HOMESTEAD BREAD CO. 35
deal about you guys getting into the union?" Cosens replied that the routemen felt
that their earnings were insufficient. Hoffman remarked: "If you guys felt that you
needed more money, why didn't you come to me or Albert Corum [the Respond-
ent's sales manager and Hoffman's immediate superior]?" Cosens answered that
he had not done so because he feared reprisals. Hoffman responded: "Well, as far
as I'm concerned, the way in which you handled this union membership is kind of
stinking." Hoffman, a member of the Union, related a somewhat different version
of this part of the conversation. According to Hoffman, he knew nothing about
the matter until Cosens informed him that the Union had filed a petition and that
Hoffman would receive an election notice to post on the bulletin board. Hoffman
denied that he expressed any opinion to Cosens as to his feelings about the Union.
I deem it unnecessary to determine which version of this part of the conversation
is the more accurate. For even had Hoffman made the remarks attributed to him
by Cosens, in my opinion this would not prove the allegation of the amended
complaint (denied by the answer) that Hoffman on this occasion "interrogated
[Cosens] . . . concerning his union membership, activities and desires." As I view
the matter, even Cosen's version fails to indicate that Hoffman attempted to elicit
information. Moreover, no threat was made and the atmosphere was not one of
restraint or coercion. Under these circumstances, regardless of which version is
credited, no violation of the Act has occurred. And even if, contrary to the above,
an unfair labor practice should be found to have been committed by Hoffman in
this conversation, it would be an isolated one, insufficient to warrant any remedial
order against the Respondent.
2. Alleged threats
Cosens testified that less than a week after the incident in the tavern described
above, about 2:30 or 3 p.m., Hoffman appeared at the Scottsbluff dock. According
to Cosens, in the presence of Cosens, Michael R. Merkel, and Charles Drake,
Hoffman stated:
Well, if you guys want to join the union . there are going to be some
changes made. If it goes through, there will be no more of this going home
and sitting around for an hour. There will be no more coming in early, check-
ing in and going home. And if you are going to join the union, you will put
in the same kind of hours they do in Denver, and that means an extra hour on
Fridays and Saturdays. You're going to be expected to run your doubles 8
instead of going home.
According to Cosens, neither he nor Merkel nor Drake made any response to
Hoffman. Merkel, an employee of the Respondent, was called as a witness by the
General Counsel and testified to another event, but was not questioned about the
alleged statements by Hoffman at 2:30 or 3 p.m. at the Scottsbluff dock in mid-
October, described by Cosens. Drake, presumably also an employee of the Re-
spondent, was not called as a witness by any party.
Hoffman denied having any such conversation with Cosens, Merkel, and Drake,
or being at the Scottsbluff dock anytime between October 1 and 22. He testified
that all during this period he was working for the Respondent in Wyoming, and
only returned to Scottsbluff on Sundays. From my observation of the witnesses
while testifying, and also in view of the General Counsel's failure to question
Merkel about the matter when he had Merkel on the stand as his own witness, I
credit Hoffman's testimony in this regard and conclude that during the period in
question (between October 1 and 22) Hoffman was only in Scottsbluff on Sundays,
and did not visit the Respondent's Scottsbluff dock. It follows, and I find, that he
made no statements to Cosens, Merkel, and Drake similar to those described by
Cosens. In this posture of the case I deem it unnecessary to rule upon the Re-
spondent's alternative defense that, even had Hoffman made the statements attributed
to him by Cosens, these were mere predictions of what a union contract might re-
quire and did not constitute threats of reprisal on the part of the Respondent.
8In the afternoon, after finishing serving his route, a routeman may stop for a second
time that day at certain stores which require extra attention to check on his display, to
replace merchandise which has been sold , or to perform similar functions . This is known
as a double trip.
212-808-66-vol. 155-4
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Cosens' discharge
1. Facts
At the end of each workday the Respondent 's routemen are required to submit a
settlement sheet showing the day's transactions . On the back they list accounts re-
ceivable, including any sum due the Respondent from the routeman personally.
A routeman may be "on the sheet"-that is he may owe money to the Respondent-
for a variety of reasons. Regardless of how the routeman happens to be in that
position , when his name is "on the sheet" he is personally indebted to the Respondent.
The Respondent has had "many, many experiences of routemen building up a per-
sonal balance . on their settlement sheet and then skip [ ping] town." Therefore
the Respondent has maintained a policy of expecting each routeman "to keep his
sheet clean ," that is, to remove all such balances due within a reasonable time after
they first appear on the settlement sheet.
In July, Cosens began listing his name on the back of his settlement sheets "in
small amounts ." He remained continuously indebted to the Respondent in various
amounts during the remainder of his employment . At one time , the balance he
owed got up as high as approximately $90; he paid off $30 to bring it down to
about $60. Toward the end of August Hoffman received instructions "to get all
personal balance dues [ sic] cleared off " He then told all the routemen at Scotts-
bluff, including Cosens, "to clear off their sheets." On Sunday, October 11, during
the conversation between Hoffman and Cosens in Scottsbluff referred to above,
Hoffman again warned Cosens that he had been ordered by Corum "to be sure and
tell him [Cosens ] to get off that sheet " Cosens replied that "he would get it off." 9
On October 21 Cosens was still "on the sheet" for about $ 68. He was then the
only rank-and-file routeman in the Respondent 's Scottsbluff operation who was "on
the sheet" for any amount . On that day Downing, in Denver, spoke on the long-
distance telephone to George Pagliasotti , president of Frontier Baking Company in
Cheyenne , Wyoming, and asked Pagliasotti to deliver a message to either Corum
or Hoffman . 10 The message was that Cosens should "pay up in full and stay off
that sheet , or he was through , to let him go ." Later that same day , in Cheyenne,
Pagliasotti told Hoffman that "if [Cosens] was still on the sheet when [Hoffman]
got [to Scottsbluff ] that morning to fire him because he had had plenty of warn-
ings." Hoffman went to Scottsbluff that night . About 5 am . the next day, Octo-
ber 22, Hoffman appeared at the Scottsbluff dock and, in the presence of Cosens
and Merkel , examined Cosens' settlement sheet which still showed a balance due
the Respondent of approximately $ 68. Hoffman then told Cosens • "Well, I guess
you're through . They [the management in Cheyenne] called me and told me to pull
a route today and let you go." Upon inquiry by Cosens as to why he was dis-
charged , Hoffman replied . "Well, you were told to get off the sheet , off the settlement
sheet," and added that he had orders from Pagliasotti to discharge Cosens if he
were "still on the sheet ." Cosens , angry, turned over his keys and records to
Hoffman and started to leave. He returned almost immediately and asked Hoffman
whether the Union had anything to do with his being discharged . Hoffman an-
swered: "It could be , I don't know ." 11 Cosens then left again.
On November 5 Cosens went to the Respondent 's Scottsbluff dock to vote in the
Board election there that day. Downing was present , and opposed Cosens' right to
vote, stating : "That man was fired in Scottsbluff for the same reason he was fired
in Denver ." Cosens then voted under challenge. On November 25 Cosens paid
his indebtedness to the Respondent in full.
6 Hoffman further testified that he told Cosens on this occasion that if he failed to get
off the sheet he could be discharged Cosens , while admitting that on October 11 Hoff-
man warned him to get off the sheet , denied that he had ever been told that he would be
discharged if he did not do so. I deem it unnecessary to resolve this conflict.
iU Frontier Baking Company is a corporation separate from the Respondent . Pagliasotti
does not take orders from Downing Because the Respondent acts as a distribution
agent for Frontier in certain sales routes In Wyoming , Pagliasotti "has some degree of
control or supervision " over the Respondent 's routemen in this area . Presumably this
Includes the Respondent 's Scottsbluff operation.
"The findings of fact regarding Cosens ' question after he came back and Hoffman's
reply are based upon the testimony of Merkel , a witness for the General Counsel Cosens
testified that he asked whether his being "on the sheet" was the only reason for his
discharge and that Hoffman replied. "Well, I guess it's over this union deal " I credit
Merkel ' s version , which was substantially corroborated by Hoffman , as a more accurate
, description than that given by Cosens.
OLD HOMESTEAD BREAD CO. 37
2. Contentions of the parties
The complaint alleges that the Respondent discharged Cosens on October 22, and
since that time has failed and refused to reinstate him because he assisted the Union.
Specifically, the General Counsel urges that Cosens' admitted failure to "get off the
sheet" was not the real reason for his discharge, but was a pretext used to cover
the true reason, namely, the Respondent's resentment against Cosens arising from
his sponsorship of the Union at Scottsbluff. The answer states that Cosens was dis-
charged "because of acts of dishonesty by the employee and his failure to properly
handle funds of the employer." At the hearing the Respondent did not appear to
rely upon "dishonesty" as a reason for the discharge, and took the position that
"failure to properly handle funds of the employer" covered Cosens' failure to "get
off the sheet"-the principal cause of his discharge As an additional factor con-
tributing to the discharge the Respondent points to Cosens' use of the Respondent's
telephone to make personal long-distance calls initially charged to the Respondent,
for which the Respondent then had to seek reimbursement from him.
3. Conclusions
Undoubtedly Cosens was the principal proponent of the Union in Scottsbluff,
and on October 11 Hoffman became aware of this. Eleven days later Cosens was
discharged by Hoffman on orders originating with Downing. Both Hoffman and
Downing denied that between these two events Hoffman told Downing of Cosens'
union activities; accordingly the Respondent urges that Downing had no knowledge
.of Cosens' union activities when he decided to discharge Cosens. However, for the
purposes of this Decision, whatever knowledge Hoffman acquired will be attributed
to the Respondent, and will be treated as having been communicated to Downing,
-either directly or indirectly. We therefore begin our consideration of the reason for
the discharge with the assumption that Cosens, the leader of the Union's effort to
organize the Scottsbluff routemen, was discharged shortly after discovery of his
union activities.
Even with this start, no antiunion motivation for the discharge is evident unless
Respondent's conduct indicates antagonism toward the Union. The General Counsel
contends that Hoffman showed union animus on October 11 when Cosens first re-
vealed his prounion leanings. But even accepting for argument's sake Cosens'
version of this conversation, I cannot agree that the question: "If you guys felt that
you needed more money, why didn't you come to me or Albert Comm?" or the
statement "the way in which you handled this union membership is kind of stink-
ing" indicate either a deep-seated aversion to unions or strong hostility toward the
employees' attempts at self-organization. In my opinion the most that can reason-
ably be said is that Hoffman exhibited some degree of irritation. So far as Tipton's
.earlier remark to Cosens is concerned (that he would have to withdraw from the
Union when leaving Denver because there was no union in Scottsbluff) the General
Counsel does not appear to rely upon this incident as proof of union animus. In
fact he stated on the record, with reference to this remark: "I'm sure it was only
advisory" to which Cosens himself added from the witness stand: "it was merely
friendly." I conclude that the record contains no probative or credited testimony
which convincingly establishes the Respondent's hostility toward or opposition to
,the Union. Bearing in mind that suspicion alone is not enough to prove the com-
mission of an unfair labor practice, I find that the General Counsel has failed to
establish a prima facie case that Cosens' discharge was motivated by his union
activities.12
However, even assuming that, contrary to the above, the General Counsel had
established a prima facie case, this would be overcome by the Respondent's defense;
namely, that Cosens was discharged because, after at least two warnings which he
disregarded, he failed to "get off the sheet." The General Counsel makes four
attacks upon this defense. In the first place, while admitting that Cosens was warned,
the General Counsel contends that he was never told what would happen if he failed
to heed the warning. I find no merit in this contention. Assuming the facts to be
as the General Counsel maintains, nevertheless a warning by an employer to an
employee carries an implied threat to take disciplinary action, if necessary, to en-
12 Sam Letter and George Goldberg, Partners, d/b/a Lester Manufacturing Company,
112 NLRB 843, 851. Tru-Line Metal Products Company, et al, 138 NLRB 964, and
Anthony 0. Grimaldi, d/b/a Superior Rambler, 150 NLRB 1264, both cited by the Gen-
eral Counsel, are distinguishable on their facts, for the commission of other unfair labor
practices by the Respondents in those cases amply demonstrated union animus.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
force it.13 I am unable to subscribe to any theory that such a warning may be dis-
regarded with impunity merely because it failed to spell out the exact sanction which
might be applied in case of breach. In the second place, the General Counsel points
to the disparate treatment accorded Hoffman on the one hand and Cosens on the
other vis-a-vis being "on the sheet ." This contention likewise lacks merit. It is true
that, despite several warnings , Hoffman was "on the sheet" for a period which
ended October 23, the day after Cosens ' discharge . But Hoffman was a supervisor,
and the Respondent had had better experience with, and customarily extended more
leniency toward , its supervisors than it did its routemen . Furthermore , after Cosens'
theft and his reinstatement in May contingent upon his "keep[ing his ] nose clean,"
the Respondent had reason , less than 6 months later , to be more concerned and un-
easy about Cosens' indebtedness than about that of other routemen with different
past records regarding money matters and the handling of funds. In any event there
is no proof of disparate treatment of Cosens vis-a-vis other rank -and-file routemen,
as contrasted with supervisors . In the third place , the General Counsel maintains
that Downing's order concerning Cosens, as stated to Pagliasotti , was in the alterna-
tive, that is, that Cosens should either pay up in full and stay off the sheet, or he
was to be discharged ; but that Hoffman did not give Cosens any such choice. How-
ever, Hoffman's undenied and credited testimony was that the order he received
from Pagliasotti contained no alternative proposition for Cosens to act upon , but was
simply that if Cosens should still be "on the sheet " when Hoffman arrived in Scotts-
bluff to discharge him. Hoffman carried out this order . Even if Pagliasotti garbled
the message and removed an alternative Downing meant to allow Cosens , this fact
does not weaken the Respondent 's defense . It was surely under no obligation, after
reinstating Cosens and warning him at least twice to pay his debt , to accord him
still another chance to clear himself . In the fourth place, the General Counsel
points to the exchange between Cosens and Hoffman on October 22 when, shortly
after being discharged , Cosens returned briefly to ask Hoffman a question . Bring-
ing up the subject of the Union for the first time that day, Cosens asked if it had
anything to do with his discharge . Hoffman 's ambiguous response ("It could be,
I don't know.") did no more than indicate a lack of information and cannot reason-
ably be stretched into an admission of illegal motivation.
On the record before me , I am convinced that, in discharging Cosens, the Respond-
ent acted in a legitimate manner to protect its own interest and to eliminate the risk
of loss. Nor can it be said that the Respondent 's action was precipitate , or unfair
to Cosens . Viewed from any angle, it constituted a reasonable exercise of business
discretion . For the foregoing reasons, I conclude that the reason given for Cosens'
discharge-that he failed after warnings to get off the sheet-was not a pretext but,
on the contrary , the actual motivating cause, and that Cosens ' support of the Union
was not shown to have been a substantial contributing factor.14
Upon the basis of the above findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Old Homestead Bread Co. (Town Talk Bread ) is, and at all material times
has been, an employer within the meaning of Section 2(2) of the Act , engaged in
commerce within the meaning of Section 2(6) of the Act.
2. International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America , Local No. 219, is, and at all material times has been, a labor
organization within the meaning of Section 2 ( 5) of the Act.
3. The General Counsel has failed to establish by a fair preponderance of the
evidence that the Respondent is engaging in or has engaged in unfair labor practices
within the meaning of Section 8(a)(1) or ( 3) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in this case , the Respondent's motion to dismiss the complaint in its
entirety is granted.
13 See Sterling Prectision Corp., Instrument Division , 131 NLRB 1229 , 1235 (footnote 18
in Intermediate Report).
14 In this posture of the case , I deem it unnecessary to evaluate the Respondent's as-
sertion that Cosen's use of its telephone for personal calls was a contributing factor in-
the decision to discharge him.