Parisan Bakaries, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1968

169 N.L.R.B. 1047 (N.L.R.B. 1968)

PARISIAN BAKERIES 1047
Parisian Bakeries , Inc. and Armando D . Larez, An TRIAL EXAMINER'S DECISION
Individual
Bakery Wagon Drivers & Salesmen Local Union No.
484, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica and Armando D . Larez, An Individual. Cases
20-CA-4515 and 20-CB-1 606
February 23, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On November 16, 1967, Trial Examiner Maurice
M. Miller issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondents filed joint excep-
tions to the Trial Examiner's Decision and a joint
supporting brief, and the General Counsel filed a
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent Company, Parisian Bak-
eries, Inc., San Francisco, California, its officers,
agents, successors, and assigns, and the Respond-
ent Union, Bakery Wagon Drivers & Salesmen
Local Union No. 484, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, San Francisco, California, its of-
ficers, agents, and representatives, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order.
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner: Upon charges
duly filed and served, the General Counsel of the Na-
tional Labor Relations Board issued successive com-
plaints against Bakery Wagon Drivers & Salesmen Local
Union No. 484, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
designated Respondent Union herein, and Parisian Bake-
ries, Inc., designated Respondent Company herein, under
Section 10(b) of the National Labor Relations Act, as
amended. (Armando D. Larez, an individual, had filed his
first charge, against Respondent Union, on November
30, 1966; General Counsel's complaint and notice of
hearing, with respect to this charge, issued March 2,
1967. Thereafter, complainant Larez filed a related
charge against Respondent Company on April 27, 1967;
General Counsel's complaint with respect to this charge
issued May 19, 1967. Concurrently therewith, the
Board's Regional Director issued an order consolidating
cases, wherein both matters were set for hearing.)
Within these complaints, Respondent Company and
Respondent Union have been charged with unfair labor
practices affecting commerce under Sections 8(a)(3) and
(1), 8(b)(2) and (1)(A), and 2(6) and (7) of the statute, 61
Stat. 136, 73 Stat. 519. Copies of both complaints, and
the Regional Director's order consolidating cases and
notice of hearing, were duly served upon Respondent
Company and Respondent Union. Within their respective
answers, duly filed, certain factual matters set forth
within General Counsel's complaints were conceded;
Respondents, however, denied the commission of any un-
fair labor practice. Shortly before the scheduled hearing
date set forth in these matters, Respondent Company's
counsel filed a motion to dismiss complaint and suppress
statements; this motion was held for disposition when the
hearing convened.
Pursuant to notice, a hearing with respect to the issues
was held at San Francisco, California, on June 27, 1967,
before me. The General Counsel, Respondent Union,
and Respondent Company were represented by counsel.
Each party was afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce
evidence pertinent to the issues. (When the hearing con-
vened, Respondent Company counsel's motion to dismiss
complaint and suppress statements was considered; my
determinations with respect thereto were-for reasons
which I propose to note further within this Deci-
sion-deferred.) When their respective testimonial
presentations were concluded, counsel were notified re-
garding their right to file briefs. Since the hearing's close,
briefs have been received from all counsel; these have
been duly considered.
Together with his brief, General Counsel has filed a
motion to correct the transcript. Neither of Respondents'
counsel had noted objection; the motion is hereby
granted. The corrections required will be found set forth
within this Decision's final appendix.
FINDINGS OF FACT
Upon the entire testimonial record, documentary
evidence received, and my observation of the witnesses,
I make the following findings of fact:
1 169 NLRB No. 143
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. THE RESPONDENT COMPANY
Respondent Company, functioning as a California cor-
poration, maintains its principal office and place of busi-
ness in San Francisco, California. There, throughout the
period with which this case is concerned, it has been en-
gaged in the production and wholesale distribution of
bakery products. During the year which preceded the
complaint's issuance, Respondent Company, in the
course and conduct of this business operation, purchased
supplies valued in excess of $50,000 directly from out-of-
State sources. Upon the relevant complaint's jurisdic-
tional allegations , which are conceded, I find that
Respondent Company, throughout the period with which
this case is concerned, was, and is now, an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and business activities which affect commerce
within the meaning of Section 2(6) and (7) of the Act, as
amended. With due regard for the jurisdictional standards
which the Board presently applies - see Siemons Mailing
Service, 122 NLRB 81, and related cases-I find asser-
tion of the Board's jurisdiction in this case warranted and
necessary to effectuate statutory objectives.
It. THE RESPONDENT UNION
Bakery Wagon Drivers & Salesmen Local Union No.
484, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
designated Respondent Union herein, is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act, as amended, which
represents certain of Respondent Company's workers for
collective-bargaining purposes.
IH. THE UNFAIR LABOR PRACTICES
A. Issues
This case substantially presents two related questions,
with respect to which General Counsel seeks affirmative
replies. First: Did Respondent Union cause Parisian
Bakeries, Inc., to discharge Armando Larez, a worker
with less than 6 months' baking industry service who had
not yet perfected his union membership, so that a position
would thereby become available for one Francisco Fer-
rando, union member? Second: Did Respondent Com-
pany, pursuant to Respondent Union's request, terminate
Larez for that reason? Respondent Company and
Respondent Union press for negative resolutions; they
contend, rather, that Ferrando was hired, pursuant to a
decision for which Respondent Company's sales manager
was primarily responsible, because he was licensed and
qualified to drive a large bakery goods transport truck
which position Larez concededly could not fill, that Larez
was terminated to make room for Ferrando's hire, and
that Respondent Union merely concurred with Respond-
ent Company's previously disclosed wishes in this re-
gard. (Within his brief, counsel for Respondent Company
presently suggests-for the first time-that Larez was
really terminated when a reduction in force became
necessary because the firm was losing customers. Sup-
port for this contention within the record can hardly be
considered more than negligible . Some discussion with
respect thereto, however, will be found subsequently
within this Decision.) Respondents further contend, sub-
stantially, that Larez' selection for displacement com-
passed no statutory violation, since he was a probationary
worker, without contractual seniority rights, and since his
termination did not derive from some statutorily
proscribed motivation.
B. Facts
1. Background
a. Respondent Company's management
Throughout the period with which this case is con-
cerned, Aldo Fontana functioned, and continues to func-
tion, as Respondent Company's president and general
manager. He maintains general charge of Respondent
Company's business; serving in that capacity he hires and
dismisses department heads, who in turn hire and fire
rank-and-file workers within their respective depart-
ments. Directly subordinate to Fontana, Andrew Knox
functions as Respondent Company's sales manager. He
supervises Respondent Company's selling and distribu-
tion personnel and with the help of five supervisors he
directs the work of Respondent Company's driver-
salesmen and transport (truck) drivers. Likewise directly
subordinate to Fontana, within the plant, Respondent
Company maintains two foremen. Louis Gonzales serves
the firm as day shift foreman; subject to Fontana's super-
vision, he hires and fires plant workers, directs their
work, and bears full responsibility during his shift for
plant operations whenever Respondent Company's pre-
sident and general manager cannot be physically present.
Charles Guitron serves as the firm's night foreman; his
duties and responsibilities while functioning in that
capacity parallel those of Gonzales, previously noted.
Respondent Company, herein, has conceded the super-
visory status and representative capacity of Fontana,
Gonzales, and Guitron, respectively; Respondent Union,
however, has proffered no concessions or denial. With
due regard for the record, determination seems fully war-
ranted, herein, that Fontana, Gonzales, and Guitron
were, throughout the period with which this case is con-
cerned, supervisors within the meaning of Section 2(11)
of the Act, as amended; likewise, within my view, they
may properly be characterized as Respondent Com-
pany's agents, subject to Section 2(13) of the statute. I so
find.
b. Respondent Union's representative
At times material herein, Emil J. Devincenzi has func-
tioned, and continues to function, as Respondent Union's
assistant business agent; he serves, so the record shows,
as that organization's dispatcher. His conduct in that
capacity, while presumptively functioning within the
scope of his authority, was-so I find-conduct un-
dertaken as Respondent Union's statutory agent, for
which the Union may be held responsible pursuant to
Section 2(13), previously noted.
c. Relevant contractual provisions
Between October 1, 1963, and September 30, 1966,
Respondent Company was, concededly, privy to a master
contract between the California Bakery Employers As-
sociation and 13 Teamsters locals, including Respondent
-Union herein. This contract was superseded, October 1,
1966, by a new agreement with a September 30, 1969,
PARISIAN BAKERIES
termination date These master contracts, throughout the
period with which this case is concerned, served to fix the
wages, hours, and conditions of work for bakery wagon
drivers, and various related classifications, in Respondent
Company's hire. With respect to union security and
seniority, both contracts contain provisions which read as
follows:
SECTION 3-UNION SECURITY
A. Hiring. Employers shall give preference of em-
ployment to persons who have had previous ex-
perience in the baking industry in the geographical
area covered by each Local Union in any of the clas-
sifications of work covered by this Agreement.
* *
SECTION 7-SENIORITY
. Seniority shall not apply to any employee until he
shall have been employed by a particular Employer
for a period of six (6) consecutive months Once so
acquired, seniority shall be effective from the com-
mencement of the six (6) consecutive month
period....
Though Respondent Union's relevant contracts further
contain a conventional 30-day membership requirement,
the record shows that workers new to the trade, when
hired, have not, customarily, been required to perfect
union membership status before their completion of 6
consecutive months' work for some "particular" contrac-
tually covered firm. Testimony by Wendell Phillips,
Respondent Union's secretary-business agent, proffered
and received without contradiction, warrants a deter-
mination that Respondent Union considers a new
worker's successful completion of 6 months' service with
a particular firm sufficient to qualify him as a person hav-
ing "experience in the baking industry" within his job
classification. Since such workers are considered no
longer subject to discharge within their current em-
plover's sole discretion, Respondent Union then, but only
then, requires their compliance with its contractually
sanctioned membership requirements.
d. Contractually covered classifications
Respondent Company, so the record shows, hires ad-
ministrative and office personnel, bakers, wrappers,
packers, checkers, driver-salesmen, engineers, store
(warehouse?) clerks, and janitors. This case, however,
concerns none of Respondent Company's professional
bakers, maintenance workers, or clerical personnel.
Respondent Union herein, pursuant to contract,
represents merely the firm's driver-salesmen and trans-
port truckdriver, plus certain so-called inside workers;
the latter group is contractually defined as follows:
loaders, shipping and receiving clerks, machine wrappers
and packers, including inside foremen. These inside work-
ers, so the record shows, work two shifts, supervised by
Day Foreman Gonzales and Night Foreman Guitron,
respectively; the shift crews number eight-nine workers
each, with foremen counted.
Respondent Company further maintains two "depots"
some distance from its main plant; these are located at
Novato in Marin County, north of San Francisco, and
Menlo Park, southward on the San Francisco Peninsula,
respectively. From these "depots" driver-salesmen
deliver bakery products to retail outlets nearby. To
supply its Menlo Park depot, particularly, with fresh
1049
bakery products for distribution daily, Respondent main-
tains and operates a large tractor-trailer vehicle designed
as a transport truck. This truck regularly makes two runs
nightly between Respondent's San Francisco plant and
Menlo Park, driven by a so-called transport
truckdriver.
e. Larez and Ferrando; their work records
The complainant herein, Armando Larez, began work
with Respondent Company sometime during 1962; he
was hired for janitorial work, and served in that classifica-
tion until June 1966. Night Foreman Guitron, then, hired
him for checker's work. (At Respondent Company's
plant this job title, so I find, compasses the full range of
contractually defined work performed by so-called in-
side workers, previously noted. Larez, so his testimony
shows, had sought such work for some time. He was
transfered when a vacancy developed which Respondent
Union's dispatcher could not then fill through the referral
of someone with "previous [baking industry] ex-
perience" contractually entitled to preference.) Respond-
ent Company's night foreman-before he finalized
Larez' hire, sent him to Respondent Union's hall to get a
so-called permit or clearance card. On June 2 Larez
visited Respondent Union's headquarters; there
Assistant Business Agent Devincenzi gave him a card
variously designated as a permit, clearance card, or
"OK" card. Thereby, Larez was "O.K.'D." for inside
work with Respondent Company, purportedly for "vaca-
tion periods" only. The record herein contains Devincen-
zi's testimony, proffered without contradiction, that
Larez was told his clearance was limited, but that:
. if everything works out all right for you, you
might end up with a steady job and you will get into
the Union and everything will be all right for you.
The complainant began work for Respondent Company,
within his new classification, on June 12; he continued to
work in this capacity until terminated on December 3,
1966, under circumstances which will, of course, be
discussed further.
Before August 1966, Respondent Company's regular
transport truckdriver, for the nightly Menlo Park depot
runs previously noted, had been a person named Brown.
Concurrently, Respondent Company had, within its
plant, a loader and checker, Bill Rea, who likewise pos-
sessed a class A chauffeur's license, and who was, there-
fore, qualified to serve as Brown's relief driver, whenever
the latter became ill or left on vacation. Sometime during
the latter part of August, however, Brown left Respond-
ent Company's hire. Thereupon Rea was promoted; he
became the firm's regular transport driver. (None of
Respondent Company's remaining workers were, then,
qualified to serve as transport truck relief drivers should
Rea, for any reason, prove unable to perform his regular
service; Respondent Company's sales manager testified
that following Rea's promotion he sought a worker to
replace Rea as a loader and checker, who was likewise
qualified to serve as the transport driver's emergency re-
lief, but without success.) Late in October, Sales
Manager Knox called Respondent Union for a driver to
serve as transport driver Rea's vacation relief. Francisco
Ferrando was referred and hired. He began work on
Thursday, October 27, and served until Saturday.
November 12, when Rea returned. Ferrando was sub-
sequently rehired by Respondent Company, under cir-
cumstances which I propose to note, further, herein.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The termination of Larez not completely corroborate Respondent Company's pres-
ident. He testified, first, that Fontana had told him
Respondent Company would have to rehire a driver, not
mentioned by name, pursuant to Devincenzi's request;
Gonzales, however, so he testified, knew that Ferrando
was the driver. Then, when asked whether Fontana had
told him one "permit" man would have to be replaced by
a regular union man, Gonzales replied, "more or less."
Finally, he testified that Fontana had merely referred to
some "problem" which Devincenzi had raised regarding
the firm's former transport driver, and that he (Gonzales)
had been requested to communicate with Devincenzi to
learn what the problem was. While a witness, Fontana
struck me as basically straightforward, testifying
truthfully to the best of his recollection; Gonzales, how-
ever, displayed a tendency to hedge his 'testimony. With
their respective witness-chair presentations in mind, I
would credit Fontana's version of their conversation over
that which Gonzales provided. Though voicing some dis-
pleasure over the fact that he would have to train a new
man for the work, Gonzales said he would discuss the
matter with Respondent Company's night foreman.
Promptly following his conversation with Respondent
Company's president, Gonzales, as he testified, spoke
with Respondent Union's assistant business representa-
tive. Devincenzi told him, so he recalled, the Respondent
Company would have to get rid of one nonmember "ap-
plicant" who would have to be replaced by a union
member since the firm's vacation period had been
completed. Ferrando's name was mentioned specifically.
Gonzales was told that Respondent Company would
have to have him (Ferrando) back on the job by Monday
morning; within context, I find, this was a direction that
Ferrando would have to be rehired by the Monday next
following. (This testimony buttresses my conclusion,
previously noted, regarding the relevant chronology. Fer-
rando, so the record shows, was later rehired and began
work on Sunday, November 27. The Fontana-Gonzales
and Gonzales-Devincenzi conversations must have taken
place, therefore, sometime on or about November 23; I
so find.) So far as the record shows, Gonzales made no
protest; shortly thereafter, he conferred by telephone
with Night Foreman Guitron to determine the particular
"applicant" who would be tapped for termination.
Guitron's testimony regarding their conversa-
tion - with respect to which Gonzales, though a prior wit-
ness, had not been questioned-reveals that Respondent
Company's day foreman reported the substance of Fon-
tana's purported conversation with Respondent Union's
representative; Guitron was told, consistently therewith,
that one "permit" man would have to be laid off, since
President Fontana had reported Respondent Union had
a member available for replacement purposes . Respond-
ent Company's night foreman, so his testimony shows,
replied somewhat testily that, "If the Union wants to let
them go, let the Union fire them." Gonzales, thereupon,
switched Guitron's telephone connection to Respondent
Company's president. With respect to their conversation,
Guitron testified as follows:
I told him I didn't want to lay off a man because my
men were doing their work and they were capable of
performing their duties and I was the person that
would have the headaches training a new man. And
the way I understood, it was supposed to be the
union that wanted to get the permit men out... .
Fontana gave him permission to "iron out this problem"
with Respondent Union, and suggested that, should he do
Though Larez' December 3 termination, previously
noted, which Night Foreman Guitron personally effectu-
ated, pursuant to some supervisor's direction, has been
conceded, counsel have presented sharply divergent con-
tentions regarding the circumstances which purportedly
provided Guitron's motivation. For convenience, the
parties' respective testimonial presentations will be
separately stated.
a. General Counsel's case
When proffered as General Counsel's witness, Larez
could testify, merely, regarding his termination and Night
Foreman Guitron's contemporaneous comments with
respect thereto. General Counsel's case with respect to
Respondent Company's motivation, and Respondent
Union's claimed casual responsibility, therefore, rests
primarily upon testimony which President Fontana and
Respondent Company's two foremen provided when
questioned herein as so-called adverse party witnesses,
pursuant to Rule 43(b) of the Federal Rules of Civil
Procedure, and Section 776 of California's new evidence
code. Their testimony, should it be taken as true, would
warrant the following factual determinations:
Sometime in November 1966, so President Fontana
testified, he received a telephone call from Devicenzi;
Fontana was told that three of Respondent Company's
inside workers were merely "permit" men, that Respond-
ent Union currently had regular union men available for
work, and that Respondent Company would have to
replace one "permit man" with a regular union member.
(During cross-examination, Fontana conceded some lack
of certainty with respect to whether Devincenzi had
referred to "permit men" or "applicants" when describ-
ing the worker to be replaced. Respondent Company's
president testified that-since his experience within the
trade has covered a lengthy period during which both
designations have been used at various times, to describe
those workers without union membership status -he con-
siders the designations synonymous. The record clearly
warrants a determination, in any event, that he knew
Devincenzi was referring to three "inside" workers in
Respondent Company's hire, with less than 6 months'
trade experience, who were not yet union members.)
Respondent Company's president told Devincenzi that
he would take the matter up with his foreman. Thereafter,
something "less than a week" after Devincenzi's
telephone call, Fontana spoke with Day Foreman Gon-
zales; the latter was told that Devincenzi had requested
Respondent Company to replace one of their "appli-
cants" with a regular union member. He was requested to
confer with Night Foreman Guitron regarding such a
replacement.
Gonzales, subpenaed as General Counsel's witness,
provided testimony which, within my view, would war-
rant a determination that this purported conversation
took place on Wednesday, November 23; he recalled that
the conversation took place on the day following his regu-
lar Tuesday off "about a week" following Ferrando's ter-
mination as Respondent Company's vacation relief trans-
port driver. The record shows Ferrando's termination
date as Saturday, November 12; Fontana's conversation
with Gonzales, therefore, could not have taken place as
early as Wednesday, November 16. Regarding the sub-
stance of their November 23 conversation, Gonzales did
PARISIAN BAKERIES 1051
so, it would be "all right" to retain Larez for checker's
work. Guitron telephoned Devincenzi; Respondent
Union's representative was asked why he (Guitron)
would have to terminate a permit man. Devincenzi pur-
portedly declared- so Guitron's testimony prepon-
derantly shows - that this would have to be done because
a union "book man" was looking for work. (Guitron's
recitals, relative to this conversation, reflect some vacilla-
tion. First, Respondent Company's night foreman
testified that Devincenzi had said Ferrando would start
work, and that he (Devincenzi) would take the matter up
with President Fontana; Guitron purportedly could not,
initially, recall any query, directed to Respondent
Union's representative, whereby the latter was asked
why a permit man would have to be terminated. Then,
when confronted with a prior sworn statement, Guitron
conceded the correctness of his recitals therein: (a) That
he had telephoned Devincenzi; (b) that the latter had
been asked why he (Guitron) would have to lay off one of
Respondent Company's permit men; and (c) that Devin-
cenzi had then told him he would have to let one of the
permit men go because there was a bookman looking for
work. Finally, when confronted with several subtly lead-
ing questions by Respondent Union's highly competent
counsel, Guitron conceded that he possessed no precise
present recollection with respect to Devincenzi's choice
of words. With matters in this posture, the total substance
and purport of Guitron's testimony must be determined
with due regard for several factors. It should be noted
that: (a) Guitron testified pursuant to General Counsel's
subpena; (b) he was a so-called adverse witness, both
technically and realistically; (c) he was, and still is, a long-
time union member, presumptively swayed by sentiments
of loyalty; '(d) before he testified, he had been summoned
before Secretary-Business Agent Phillips and Devincen-
zi, while this matter was still under Regional Office in-
vestigation; (e) those men had questioned and repri-
manded him for having, reportedly, given Larez advice
regarding this case; (f) he testified during the late after-
noon, following, a night's work and a full day's presence
while the hearing was in progress, so that his testimony
was given following a period of practically 24 hours
without sleep; and (g) when confronted with his prior
statement, he did forthrightly concede his belief regarding
its correctness,' since it had been given within a relatively
short period of time following Larez' termination. With
these factors in mind, I have concluded that Guitron's
confessed' lack of precise present recollection, with
respect to some portion of his testimony, in and of itself,
does not vitiate whatever probative worth his witness-
chair concession regarding the truth of his prior sworn
statement may have. J. C. Penney Co., Inc. v. N.L.R.B.,
384 F.2d 479, 483-484 (C.A. 10). In short, the present
record-even assuming, arguendo, that Guitron may
really have confessed no present recollection regarding
DevincenZi's precise language -clearly reflects his readi-
ness to confirm his Prior statement in that regard, as past
recollection recorded.) Guitron replied, so he testified,
that he had not hired Ferrando, did not want him, and did
not want to lay off a worker. Respondent Union's
representative, however, declared categorically that Fer-
rando would report for work, and that he would discuss
the matter with Guitron's superiors.
Gonzales and Gtiitron, thereupon, consulted to deter-
mine which one of Respondent Company's three "per-
mit" men would be terminated. They decided that the
worker with least chronological seniority would have to
go; Larez was the worker thus designated.
According to Guitron, Larez was told "about a week
ahead of time" that he was being terminated; this would
fix November 25 or 26 as his date of notification.
Questioned regarding his discharge, Larez testified that,
when notified, he queried Guitron with wry bitterness as
to why he was being permitted to work that very day,
since he would have to seek other employment. Guitron,
according to Larez, replied:
Armando, don't take it out on me. It is not my doing.
It is the union's. They won't let you stay here....
You could work this whole week if you want to.
Respondent Company's night foreman, so he testified,
told Larez that, so far as he was concerned, he was
satisfied with the latter's work. Larez' final shift began on
the evening of Friday, December 2; when his shift ended
the following morning, he left Respondent Company's
plant.
b. Respondent Company's version
Respondent Company's sales manager was its sole wit-
ness, with respect to the circumstances which motivated
Larez' termination. Substantially, Knox declared that
Ferrando's rehire was conceived by him, and was finally
effectuated pursuant to his decision; that the transport
driver's return was sought for valid, nondiscriminatory
business reasons; and that Larez' termination was a
necessary concommitant of Ferrando's rehire.
Consistently with this position, Respondent Com-
pany's sales manager testified: That Parisian's manage-
ment had, for some years, found it desirable to hire -for
so-called "inside" work -men qualified to perform emer-
gency relief service as transport truckdrivers; that Bill
Rea had filled this post while Brown was Respondent
Company's regular transport driver; that, when Brown
left and Rea was promoted to fill his position, Respondent
Company had no worker, currently on payroll, qualified
to provide substitute or relief service; that, therefore,
company management, following Rea's promotion, tried,
without success, to find someone qualified with a class A
chauffeur's license who would take regular "inside" work
subject to possible calls for transport truck duty as
needed; that Respondent Union, pursuant to Knox's
request did refer Ferrando specifically for service as
Rea's vacation relief between October 27 and November
12; that Ferrando's relief stint terminated when Rea
returned on the date last designated; and that "the Mon-
day or Tuesday after Ferrando left" he (Knox)
telephoned Devincenzi, telling him that he would like to
have Ferrando back. (While a witness, Knox was vague
regarding the precise dates of Ferrando's vacation relief
employment; for present purposes I have used the dates
which are found in Respondent Company's record. With
Saturday, November 12 set therein as Ferrando's last
day of work, Knox's testimony, taken at face value, would
seem to suggest that he telephoned Respondent Union's
representative on November 14 or 15, thereafter.)
Devincenzi, so Respondent Company's sales manager
testified, was told that Ferrando's services in a dual
capacity were desired; that he would do packing but
would also drive the transport truck when required.
Respondent Union's representative, according to Knox'
purported recollection, promised to do what he could,
saying that he would see "how many permanent
[permit?] men we have, how many applicants we have"
working at Respondent Company's plant.
While a witness, Knox purportedly recalled that Fer-
rando had resumed work as a checker, qualified to do
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transport driving at night, the Sunday following his
November 12 termination; this would have been
November 20. When prompted by General Counsel,
however, he recalled that Ferrando had returned "ap-
proximately about the time" when Larez was terminated.
Company records show that Ferrando really resumed
work on Sunday, November 27. He worked two nights,
failed to report on Tuesday night, November 29, and
never returned thereafter. Whether Respondent Com-
pany's management ever sought his return-directly or
through Respondent Union's dispatcher-cannot be told;
with respect thereto, the record is silent.
c. Respondent Union's counterstatement
Respondent Union's position -regarding the source of
Respondent Company's determination to rehire Ferrando
and dispense with the services of some probationary
worker- substantially parallels that stated by Respond-
dent Company's sales manager. Devincenzi's testimony
with respect to several relevant developments, however,
differs from that which Knox provided.
Proffered as Respondent Union's principal witness,
Devincenzi testified that, sometime in November, Sales
Manager Knox had telephoned him, seeking the referral
of a qualified transport driver; that they had subsequently
conferred on some Tuesday, at Knox's office; that
Respondent Company's sales manager had said he
wanted a checker with a class A chauffeur's license who
could double as a relief transport driver; that Ferrando's
name had been mentioned; that Knox had then "wanted
to know" whether Respondent Company could hire such
a doubly qualified worker, making room for him by
dismissing some "applicant" worker; that he had been
told Respondent Company could freely do that, under
their current contract, since "applicants" did not have
contractual seniority; that he (Devincenzi) had thereupon
himself reminded Knox that Respondent Company had
three "applicants" currently employed; and that their
conversation had concluded with Knox's pleased
acknowledgment of Respondent Union's willingness to
withhold any challenge relative to his proposed personnel
changes. (While a witness, Devincenzi professed a lack
of certainty regarding the precise date of this purported
Tuesday conference; conceivably, the meeting-should
I find that it took place - could have been held on
November 15 or 22. The record, however, warrants a
determination, within my view, that Devincenzi's recital,
properly construed with due regard for the whole body of
testimony, would fix a November 22 conference date.
For example: Respondent Union's representative
declared, following his testimony regarding the con-
ference, that Gonzales had telephoned him the next day.
Since a determination has previously been found war-
ranted, with matters in their present posture, that Gon-
zales, really, telephoned Devincenzi on November 23,
whatever lack of certainty Respondent Union's represent-
ative may have shown regarding the date of his con-
ference with Respondent Company's sales manager
could, thus, be resolved. Should I find Devincenzi's
recital worthy of credence, therefore, I would find
November 22 to be the date when he and Knox con-
ferred.) Within a few minues thereafter, so Devincenzi
testified, Knox and he met President Fontana in the hall-
way just outside Knox's office. There Knox purportedly
told Fontana that Respondent Union would have no ob-
jection to Ferrando's rehire, displacing a probationary
worker. Fontana purportedly said, "That's fine."
While a witness, Devincenzi denied, generally, that he
had requested Fontana to replace a so-called applicant
or permit man with some union member. However, he
did not, when so testifying, refer to Fontana's testimony
that such a request had been made during a telephone call
which Devincenzi had placed. The testimony of Respond-
ent Company's president, previously noted herein, that
he received such a call stands, therefore, somewhat in
limbo-with its purported substance denied, but the fact
of placement not disputed. During a further conversation
within Fontana's office, which followed, Devincenzi, so
he testified, further advised Respondent Company's pre-
sident that there were three "applicant" workers, among
whom one could be selected for termination. Fontana, so
Devincenzi recalled, said that he would report whichever
probationary worker he selected.
The next day, which I have found was November 23
herein, so Respondent Union's representative testified,
Gonzales telephoned him, and he returned the call.
Respondent Company's day foreman was then purport-
edly told:
Be ready for something. They [management] are
going to put [on] Francisco Ferrando and
[terminate] one of the applicants.
Gonzales purportedly expressed dismay. With respect to
this conversation, Respondent Union's representative,
while a witness, categorically denied making any
reference to replacing an applicant or permit man with a
book member; further he denied using the term "union
member" when referring to Parisian's former transport
driver. Finally, he denied telling Respondent Company's
day foreman that he would have to "get rid" of nonmem-
bers in order to make room for union members or book
members.
Some few days later, according to Devincenzi's recital,
he received a telephone call from Night Foreman
Guitron. With respect thereto, the assistant business
agent testified as follows:
He called me and he was rather hot. He said, "You
want to put on Francisco Ferrando and you want me
to fire one of these guys. You come over here and
fire these guys." I told him, "I don't have any right to
hire and fire anyone. The people upstairs will tell you
what to do."
Guitron, purportedly, then hung up. With respect to this
conversation, likewise, Devincenzi denied making any
comment that it would be necessary for Respondent
Company to lay off a permit man so that some "book
man" could be hired.
So far as Respondent Union's presentation goes, this
conversation would seem to have concluded Devincen-
zi's contact with the situation. Previously, during his con-
ference with Respondent Company's sales manager, so
he testified, he had volunteered to communicate with Fer-
rando and direct him to report at some certain time; Knox
had, however, declared that he would take care of the
matter. Devincenzi's only subsequent contact with Fer-
rando, according to his testimony, developed "the day
after" he (Ferrando) failed to report for work. Their con-
versation during this confrontation, however, has not
been developed within the present record.
3. Subsequent developments
Reference has been made within this Decision to Fer-
PARISIAN BAKERIES 1053
rando's presumptively voluntary quit, following the ter-
mination of his November 28 shift. The complainant
herein, who had been notified of his termination on
November 25 or 26, previously noted, was still working.
So far as the record shows, nothing was said within his
hearing, regarding his purported replacement's
precipitate departure.
On Wednesday, November 30, Larez filed his first
charge herein; Respondent Union was charged therein,
with having "attempted to cause" his termination.
Respondent Company, so the record shows, received
notice thereof, on Friday, December 2, plus a copy of the
charge. Shortly thereafter, Fontana, so he testified,
telephoned Devincenzi; Respondent Union's representa-
tive was asked what had happened. Fontana, further, pur-
portedly reminded Devincenzi that Respondent Union
had requested his firm to replace a so-called permit
man with a regular union member. With respect to Fon-
tana's testimony regarding this purported conversation,
Devincenzi proffered neither confirmation nor denial.
The uncontradicted testimony of Respondent Company's
president, however, regarding their talk provides no clue
whatever regarding Devincenzi's reply, when purport-
edly reminded of his previously stated position.
Meanwhile, however, Respondent Company had hired
a new "inside" worker on Thursday, December 1,
presumably as Ferrando's replacement. William Spring-
stead, so the record shows, began work on the date
designated. (Larez was, of course, still in Respondent
Company's hire. The record warrants a determination,
nevertheless, that Night Foreman Guitron requested
Respondent Union to dispatch a replacement worker fol-
lowing Ferrando's November 29 failure to report. We
have no data with regard to Springstead's qualification, if
any, for transport driver work. Though referred pursuant
to a request made by Night Foreman Guitron, he seems
to have been assigned work under Respondent Com-
pany's day foreman.) Springstead worked until January
9, 1967; the record is silent regarding the circumstances
of his termination. Respondent Company, so the parties
stipulated, next hired a new "inside" worker on January
27; Henry Blaettler was then hired for work under Night
Foreman Guitro'n. January 30, however, was his last day
worked. Kenneth Bauman, hired on February 1 worked
through the 6th; Jacob Hoffer, hired on February 7,
worked through March 4. (These men were, presumably,
successive replacements for Blaettler; the record is silent,
however, regarding their shift supervisor.) Meanwhile,
Max Brandshaw had been hired for wrapper's work on
February 22, under Day Foreman Gonzales; so far as the
record shows, he is still employed.
C. Discussion
The present record, primarily, presents problems
which must be resolved through credibility determina-
tions. Most of General Counsel's case, with respect to
Respondent Company's "real" motivation for Larez'
discharge, and Respondent Union's causal responsibility
for his termination, rests upon certain factual concessions
proffered through "adverse party" witnesses. Respond-
ent Company's current defensive presentation, how-
ever, seemingly calls for factual determinations signifi-
cantly divergent from those which the composite "ad-
verse party" testimony of President Fontana, Day
Foreman Gonzales and Night Foreman Guitron would
warrant. Likewise, Respondent Union's presenta-
tion-patently proffered to corroborate the testimony
which Respondent Company's sales manager gave-pur-
ports to contradict or significantly qualify testimony Pre-
sident Fontana and Respondent Company's foremen had
provided.
The present record, considered in totality, convinces
me that General Counsel's factual contentions merit
Board concurrence. Generally speaking, neither Sales
Manager Knox nor Respondent Union's assistant busi-
ness representative could be considered persuasive wit-
nesses. With respect to certain significant matters, their
testimony revealed lapses of recollection; with respect to
certain other matters - which, upon this record, I would
consider both relevant and material-they were either
completely silent or less than candid. Their testimony -to
the extent that it deviates from or contradicts the
testimony of Respondent Company's president, which
Gonzales and Guitron substantially corroborated-must
be rejected.
First: With respect to Sales Manager Knox's proffered
background testimony that Respondent Company's
management, pursuant to settled policy, considered it
good practice to hire checkers qualified for service as re-
lief transport drivers, no collateral support whatever can
be found within the record. Rather, determination would
seem to be warranted that Bill Rea's presence on Re-
spondent Company's so-called inside payroll-for some
period, never definitely specified, partially concurrent
with Brown's 1960-66 term of service as the firm's regu-
lar transport driver-had been completely fortuitous.
(Though he did testify that, throughout most of his 7-year
period of service, checkers qualified for service as emer-
gency relief drivers had been hired, Knox provided no
precise data regarding their names or terms of service; no
claim has been made that Brown's service with Re-
spondent Company, for example, began as checker-relief
driver. President Fontana, when cross-examined follow-
ing his testimony as General Counsel's witness, was not
even questioned regarding such a company policy; he
testified, merely, that "at one time" the firm's present
transport driver, Bill Rea, had been a checker and trans-
port driver. Thus, with respect to purported company pol-
icy, Knox's testimony stands without persuasive circum-
stantial support.) During the August-October period
which directly followed Rea's promotion to full-time
worker as Respondent Company's regular transport
driver, there was no qualified "inside" worker, with a
class A chauffeur's license, ready for service as Rea's
emergency replacement. Respondent Company's sales
manager did testify that he had tried to find someone
qualified to fill such a checker-relief driver post, several
times, during the period in question. He could not, how-
ever, recall whether he had contacted Respondent Union;
nor could he recall how many times, if at all, he had
sought help from Respondent Union's dispatcher. This,
even though, pursuant to their collective-bargaining con-
tract, Respondent Company was committed to seek new
workers through Respondent Union first, before doing its
own hiring. While a witness, Devincenzi made no
reference whatever to any such communications . Knox's
testimony, further, suggests a contention that, during this
period, workers qualified for services as transport drivers
could not be found. The present record-specifically the
testimony of Secretary-Business Agent Phillips
herein -warrants a determination, however, that a com-
petitor of Respondent Company which conducted door-
to-door selling, Colonial Bakery, went out of business
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some time during August 1966, and that some 4-5 trans-
port drivers, previously with that firm, sought and
procured new employment, through Respondent Union's
dispatcher, thereafter. (Qualified transport drivers, con-
ceivably, could have considered proffered "inside" work
with Respondent Company somewhat less than desirable.
Throughout the period with which we are presently con-
cerned the contractual wage rate for transport
truckdrivers was $165.50 per week; concurrently, so-
called experienced inside workers were receiving
merely $145.80 per week. Therefore, the likelihood that
qualified transport truckdrivers would consider taking
full-time "inside" work-with nothing more than
prospects for some sporadic relief driver work, looking
toward subsequent promotion at some nondetermined fu-
ture date -seems remote.) With matters in this posture,
Knox's present testimonial contention- that Respondent
Company's management, pursuant to some fixed policy,
regularly sought to hire "inside" workers qualified to
serve as relief transport drivers-fails to persuade.
Rather, such testimony, considered in context, suggests
a deliberate try to contrive some relevant background,
calculated merely to provide a superficial verisimilitude
for the sales manager's otherwise "bald and unconvinc-
ing" narrative.
Second: Respondent Company contends, substantially,
that Knox's decision to rehire Ferrando, particularly,
derived directly from his purported desire to maintain a
qualified relief transport driver on payroll; consistently,
Respondent Company's sales manager testified that, pur-
suant to his personal decision, Respondent Union's
representative had been consulted to determine merely
whether a probationary worker's termination, purpor-
tedly to make room for Ferrando's proposed rehire,
would be protested. These factual recitals, considered
within their testimonial context, strain credulity. Item: If
Sales Manager Knox had, really, been seeking a checker-
relief driver for several months, following Rea's promo-
tioh to regular transport work, why was Ferrando, follow-
ing his referral, hired for nothing more than temporary
duty, merely as Rea's vacation replacement? The record
herein provides no suggestion whatever, slight or signifi-
cant, that Ferrando, before or during his period of service
as Rea's vacation relief, was requested or solicited to
remain in Respondent Company's hire, within some non-
driver classification; when the firm's regular transport
driver returned, Ferrando was, so far as the record
shows, terminated without a second thought. In this con-
nection, further, note should be taken that Knox's
testimony, considered at face value, would warrant a
determination that, despite his presumptive knowledge
regarding the date when the driver's vacation relief stint
would terminate, he made no timely effort whatever to
determine Respondent Union's position with respect to
Ferrando's possible retention as checker-relief driver;
Devincenzi, so Respondent Company's sales manager re-
called, was not requested to declare his position regarding
management's purported plans until some 2-3 days had
passed. Devincenzi's testimony, considered in context,
would warrant a determination, however, that Knox's first
communication, regarding the possibility of Ferrando's
rehire, came some 9-10 days following the driver's
completion of his vacation relief duty tour. Thus, both
testimonial recitals -disregarding, for the moment, their
chronological disparity-clearly show that Respondent
Company's sales manager, despite his professed long
term desire to procure a checker-relief transport driver's
service, permitted Ferrando's tour of duty to terminate
without giving him a chance to remain, and thereafter
sought his rehire belatedly. Such behavior hardly com-
ports with Respondent Company's present claim that
Sales Manager Knox sought Ferrando's rehire pursuant
to some well-established, previously determined com-
pany policy. Item: If Respondent Company really needed
a checker-relief transport driver, why was no effort made
to satisfy that need following Ferrando's November 29
failure to report for work? The record provides no
testimonial suggestion, whatever, that Respondent Com-
pany's management tried to procure Ferrando's return,
either directly or through Respondent Union's
dispatcher. Nor does it show any company concern
directed toward the procurement of some replacement
with similar class A license qualifications. (William
Springstead, hired December 1 for packer's work, served
under Day Foreman Gonzales' supervision. Since any re-
lief transport driver's service, when required, would have
to be performed during Night Foreman Guitron's shift,
determination would seem to be warranted that Spring-
stead was neither requested, referred, or hired as Ferran-
do's particular replacement.) Such relaxed managerial
reactions, directly following Ferrando's presumptively
voluntary departure, likewise reveal the hollow character
of Sales Manager Knox's present claim that his November
27 rehire had been dictated by Respondent Company's
need.
Third: If Larez' termination was, really, rendered
necessary because Respondent Company needed a
checker qualified to provide relief transport driver ser-
vice, why was he not given that reason for discharge?
True, Guitron may not have been dutybound to provide
his subordinate with Respondent Company's purported
motivation. The record shows, however, that, when con-
fronted with directions to dismiss the probationary
worker, Guitron was reluctant, perhaps even resentful;
reason and commonsense, therefore, suggest that, had he,
really, been given Respondent Company's presently pur-
ported business reason for such a personnel change, he
would most likely have mentioned it to Larez, by way of
self-exculpation or justification. The probationary
worker's testimony, which has not really been challenged
in this connection, reveals, however, that nothing was
said about Respondent Company's need for a checker
with a class A chauffeur's license. This significant omis-
sion provides further warrant for a conclusion that Knox's
testimony herein reflects afterthought merely.
Fourth: Within their respective recitals, Knox and
Devincenzi reveal significantly divergent testimonial
recollections with regard to their contacts. Item: Knox
testified that, following Ferrando's November 12 depar-
ture, he telephoned Devincenzi with a request for the
transport driver's return; Respondent Union's represent-
ative was purportedly told, then, that Ferrando's con-
tinued service, both as full-time checker and relief driver,
was desired. And Respondent Company's sales manager
recalled no further communication with Devincenzi,
whatever, related to Ferrando's rehire. Respondent
Union's representative, however, declared that Knox and
he had conferred, personally, thereafter; that Respondent
Company's purported need for Ferrando's renewed ser-
vice had been detailed during their subsequent face-to-
face discussion; that Knox had then "wanted to know"
whether Respondent Company could make payroll room
for Ferrando's return without inviting Respondent
Union's protest, by dismissing some probationary
PARISIAN BAKERIES 1055
worker. Item: Knox purportedly recalled that Respond-
ent Union 's representative , during their single telephone
conversation , had promised to do what he could to satisfy
Respondent Company's professed need ; further, Respond-
dent Company's sales manager testified that Devincenzi
had said he would "check" to see how many probationary
workers were currently in Respondent Company's hire.
(Knox's testimony provides no clue regarding Devincen-
zi's possible or purported reasons for making such a
check, or Respondent Company's need therefor; com-
pany records would presumably reveal quite readily,
without any need for union verification , those relatively
new workers on Respondent Company's payroll who,
then, lacked 6 months' "previous experience" within the
baking industry .) Devincenzi , however, testified that,
during their face-to-face conference, he had volunteered
to communicate with Ferrando in Respondent Com-
pany's behalf, to suggest that he "come in" for rehire, but
that Knox had declared he would communicate with the
transport driver directly. (Devincenzi 's testimony, with
respect to this proffer of help, followed, within seconds,
his witness chair declaration that, when this conversation
took place , he "thought" Ferrando was still working.)
Further, so Respondent Union's representative declared,
Knox was definitely told, during the same conversation,
that union records showed Respondent Company then
had three probationary workers on payroll, whose layoff
Respondent Union would not question . Item: Knox,
while a witness , could not definitively recall any commu-
nication with Respondent Company's president , before
his purported telephone call or directly following his
discussion with Respondent Union 's representative, re-
garding his presently professed plan to recall Ferrando
for full-time checker and relief transport driver work. His
failure of recollection , in this respect , seems understanda-
ble; President Fontana had previously testified,
forthrightly , that he was not told about Knox's purported
consultations with Devincenzi, or what Knox purport-
edly had planned to do, until February or March 1967.
Respondent Union 's representative testified , however,
that- following his plant conference with Respondent
Company 's sales manager- they met President Fontana
fortuitously ; that Knox thereupon told Fontana there
would be no protest from Respondent Union regarding
Ferrando 's rehire, despite the fact that his return would
displace a probationary worker; and that Respondent
Company's president had declared , "That's fine," when
told of their consensus . Though further testimonial dis-
crepancies -between Sales Manager Knox and Re-
spondent Union 's representative-could be cited, their
recapitulation would merely burden and lengthen this
Decision . Those noted, within my view, suffice to raise
substantial doubts with respect to both defensive presen-
tations herein.
Fifth: Devincenzi 's testimony , particularly regarding
his telephone conversations with Respondent Company's
foremen , cannot be reconciled with Respondent Union's
basic contention herein ; considered within the context of
Respondent Union's claim that Ferrando 's rehire derived
from Respondent Company's initiative, the business
representative 's testimonial declarations relative to these
telephone calls lack consistency . Item: Devincenzi
testified that, during the morning which followed his plant
conference with Respondent Company's sales manager,
Foreman Gonzales telephoned him; he subsequently
returned the call. Yet, when questioned about their con-
versation , Devincenzi reported no statements by Gon-
zales from which a conclusion might be drawn regarding
the latter 's purpose in placing a call. Respondent Union's
representative declared , merely, that he had alerted
Gonzales to "be ready" for certain specified personnel
changes which his (Gonzales ') superiors had proposed.
If, however , Ferrando ' s prospective rehire, conjoined
with a probationary worker's layoff, was to derive from
a managerial decision , which , so Devincenzi claimed, had
merely been previously cleared with him , what could
have motivated Gonzales' first call ? Presumably, Pre-
sident Fontana or Sales Manager Knox would have com-
municated their decision to Respondent Company's
foreman; the matter would , then , have been closed. Why
would Devincenzi feel that notice regarding a company
decision, coming from him, was either necessary or
proper? His testimony- that this was "all " which his con-
versation with Gonzales compassed- simply does not
ring true. Item: With respect to Guitron 's subsequent
telephone call, Devincenzi conceded Respondent Com-
pany's night foremen had, rather heatedly, charged
Respondent Union with responsibility for causing Fer-
rando 's prospective rehire, coupled with a probationary
worker's discharge . Yet personnel changes dictated by
Respondent Company's management , purportedly for
business reasons, would hardly have stimulated Guitron's
conceded challenge to Respondent Union's dispatcher.
Devincenzi 's testimony , taken at face value, would
necessarily require a determination , therefore, that
Guitron ' s telephone complaint derived from some
"misconception" he had, regarding Respondent Union's
responsibility for Ferrando ' s forthcoming recall. The
likelihood of mistake on Guitron 's part, however, must be
considered remote; nothing in Respondent Union's
presentation or Sales Manager Knox's testimony suggests
that Respondent Company's night foreman had, really,
been misinformed. Since Guitron's telephone call, ac-
cording to Devincenzi 's testimony, came some "few
days" following his (Devincenzi 's) several conversations
with Sales Manager Knox, President Fontana, and
Foreman Gonzales, previously noted , Respondent Union
can hardly contend, persuasively , that Respondent Com-
pany's night foreman must have lacked knowledge re-
garding his firm 's real motivation for personnel changes
which would directly concern his crew. Certainly, no trier
of fact could , reasonably , conclude that Guitron 's superi-
ors and colleagues, who must have communicated with
him, had provided him with false or mistaken data regard-
ing Respondent Company's reason for making such
changes. Thus, when considered within the context of
Respondent Union 's present contention that Sales
Manager Knox should be found responsible for setting
these matters in motion, Devincenzi ' s recital, with
respect to Guitron's comments during their telephone
call, makes no sense.
Sixth: Respondent Company's failure or refusal to can-
cel Larez' prospective December 3 termination , follow-
ing Ferrando 's November 29 failure to report for work,
completely belies Sales Manager Knox's present claim
that some probationary worker's discharge was required,
so that room could be made for a checker qualified to per-
form relief transport truck duty. Respondents have
proffered no testimony , herein , that company manage-
ment ever solicited Ferrando 's return, following his
failure to report. Nor would a determination be warranted
that some qualified substitute for the relief transport
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
driver was, then or later, sought. (Previously, within this
Decision, reference has been made to facts which would
warrant a conclusion that William Springstead, Respond-
ent Company's December 1 hire, could not have been
dispatched by Respondent Union, or hired, as Ferrando's
replacement.) With matters in this posture, no "business"
justification for Respondent Company's failure to retain
Larez can be found. His perviously set "notice week"
was permitted to run its course, despite management's
knowledge that his purported replacement had, already,
left the firm's employ. Such quiescence on management's
part must, logically, generate suspicion, particularly since
the record shows, further, that nothing was done to
rescind Larez' discharge even after President Fontana's
conceded receipt of notice, regarding the probationary
worker's first charge herein, before his scheduled ter-
mination date. If, consistently with Respondent Com-
pany's present contention, Larez had been given notice
solely because management wished to make room for a
checker qualified to provide relief transport truck service,
that notice could have been recalled, once it became clear
that such a purportedly desirable substitution could not
be consummated; Larez' retention, certainly, could have
been deemed doubly warranted following Fontana's
receipt of notice that he (Larez) considered his treat-
ment presumptively violative of law. Respondent Com-
pany, however, took no action reasonably calculated to
render a possible controversy moot; Fontana's credible
testimony, which Respondent Union took no trouble to
deny, reveals, merely, that he questioned Devincenzi re-
garding the situation, and reminded him that he (Devin-
cenzi) had generated the problem by calling to request the
replacement of some probationary worker with a regular
union member.
With matters in this posture, both defensive presenta-
tions herein must be rejected. Substantially, Respondent
Company has contended that Larez' discharge was dic-
tated by legitimate business considerations. (Within his
brief, Respondent Company's counsel presently suggests,
for the first time, that Larez' termination was doubly
motivated; that the probationary worker was, inter alia,
discharged "because of a reduction in work force made
necessary due to certain loss of business" which the firm
had sustained. This contention rests, however, upon
nothing more substantial than some collateral comments
proffered by Foreman Guitron, and by Sales Manager
Knox during cross-examination, with respect to certain
lost customers. The subject was not pursued. We do not
know precisely when Respondent Company sustained
these customer defections; nor do we know their sig-
nificance in terms of reduced business volume. Nothing
in the record would warrant a determination that such
presumptively "lost business" really dictated a reduction
in Respondent Company's plant complement contem-
poraneously with Larez' termination. While a witness,
Sales Manager Knox made no such contention. Data
taken from Respondent Company's payroll record shows,
rather, that various persons were newly hired for "inside"
work, following Larez' termination. With matters in this
posture, counsel's belated suggestion that Larez was laid
off for lack of work cannot be taken seriously.) General
Counsel has, within his brief, designated Respondent
Company's testimonially developed contention flimsy
and concocted; such characterizations, within my view,
must be considered deserved. With respect to Respond-
ent Union, counsel's contention boils down to this: That
Devincenzi's course of conduct reflected nothing more
than disinterested cooperation with company manage-
ment's legitimate business decision. He would have this
Board conclude that - when Devincenzi was asked
whether Respondent Company could make room for Fer-
rando's rehire by some probationary worker's termina-
tion - Respondent Union's representative did nothing
more than concede management's contractual right.
However, this defense, like that which Respondent Com-
pany proffered, stands, within my view, shot through with
self-contradictions and significant discrepancies; fails to
comport with reasonable probability; flies in the face of
contradictory testimony proffered by generally credible
witnesses; and completely lacks persuasive power.
D. Conclusions
General Counsel's presentation-particularly Pre-
sident Fontana's testimony, which Respondent Com-
pany's foremen, albeit somewhat reluctantly, substan-
tially corroborated-fully sustains his position regarding
the statutory violations herein charged.
The credible testimony noted, within my view, clearly
requires a determination that Respondent Union had,
from the outset, presumed to dictate the terms of Larez'
employment relationship with Respondent Company
herein. (When Larez was "OK'D" for checker's work in
june 1966 Devincenzi noted, within his logbook, that
Larez was being cleared for "vacation" period work.
When questioned regarding his reason for such a nota-
tion, he could only recall that he had been told to limit
Larez' clearance by Respondent Union's secretary-trea-
surer; further, he could only speculate that Secretary-
Treasurer Gernns "must have gotten" such a direction
from Respondent Company's foremen. Neither Gonzales
nor Guitron, though presumably friendly witnesses so
far as Respondents were concerned, was questioned,
however, with respect to this matter; Respondent Com-
pany presently makes no such contention to justify Larez'
termination. With matters in this posture, we may cer-
tainly deduce, consistently with General Counsel's con-
tention, that it was Respondent Union, rather than com-
pany management, which was determined to limit Larez'
employment relationship.)
Further, determination is warranted-so I find-that
Respondent Union was the prime mover, really, with
respect to those developments which, finally, resulted in
Larez' termination. (The testimony proffered by Gon-
zales about his telephone conversation with Respondent
Union's dispatcher, regarding which I have found the
latter's version unworthy of credit, reveals Devincenzi
telling him that Ferrando, whom Gonzales knew to be a
union member, would have to replace one of the firm's
"applicants" since "vacations" were then over. Thus we
see Respondent Union's representative, who had first
presumed to prescribe Larez' term of service, taking ac-
tion calculated to give that prescription timely effect.)
And whatever Devincenzi may have said, precisely,
when he sought Ferrando's rehire, there can be no doubt
that Respondent Union was, within that context,
requesting company management to make a personnel
change not sanctioned by contractual requirements or
previous practice. (While a witness, Secretary-Business
Agent Phillips testified, without challenge or contradic-
tion, that Respondent Union did not, routinely, require
contractual signatories to terminate so-called appli-
cants currently on payroll, merely to make room for so-
called experienced men.) Realistically-whether or not
PARISIAN BAKERIES 1057
Respondent Union's representative said so-the Com-
pany was being requested to dispense with the services of
someone without seniority status, who had not yet been
required to perfect his union membership, so that place
could be made for some current member.
This case does not, therefore, present a situation
wherein Respondent Union was merely displaying care
for the welfare of its members by requesting management
to prefer a worker currently on payroll, for promotion or
transfer, rather than to hire someone new. See
International Hod Carriers, Building and Common
Laborers Union of America, Local 7, AFL-CIO (Yon-
kers Contracting Co., Inc.), 135 NLRB 865. Nor do we
have here, so far as credible testimony shows, demands
for preferential treatment, related to hire or layoff, bot-
tomed upon some permissible discrimination between
workers similarly situated. Bricklayers, Masons and
Plasters' International Union of America (Plaza Buil-
ders, Inc.), 134 NLRB 751, 752-757; cf. the Supreme
Court decision therein cited. President Fontana so con-
strued Devincenzi's request; his construction, bottomed
upon knowledge of personnel practices within the trade,
was, so I find, reasonable, reflecting a correct conception
of Respondent Union's basic position.
Since, therefore, Respondent Union sought to have
Respondent Company rehire a worker whose member-
ship status would, under the circumstances, be known to
those concerned-while displacing a probationary worker
whose union membership concededly had not yet been
perfected - determination would seem warranted that
Parisian was caused to terminate that probationary
worker - herein Larez, fortuitously, because of his lesser
period of service within the probationary group-dis-
criminatorily, to encourage union membership. Hoisting
and Portable Engineers, Local 4, IUOE (Corey
Steeplejacks, Inc.), 141 NLRB 1231; Local Union No.
28, Sheet Metal Workers International Association,
AFL-CIO (Consolidated Ventilation and Duct Co.,
Inc.), 144 NLRB 324, 326-330; cf. Animated Displays
Company, 137 NLRB 999. I so find. Similarly, within my
view, determination must be considered warranted that
Respondent Company violated Section 8(a)(3) and (1),
when it designated Larez for discharge pursuant to
Respondent Union's suggestion, and subsequently failed
to rescind his termination, with knowledge that Respond-
ent Union's request derived from its desire to procure
some union member's rehire. Air Flow Sheet Metal, Inc.,
160 NLRB 1653. Upon this record there can be no doubt
that Respondent Company knew, or, at the very least,
had some reasonable basis for belief, that Respondent
Union was seeking a probationary worker's displacement
for reasons other than his nonpayment of required initia-
tion fees or dues.
E. The Motion To Dismiss
Previously, within this Decision, reference has been
made to Respondent Company's motion to dismiss; that
motion, so the record shows, rests upon two distinct con-
tentions. When, shortly following the hearing's com-
mencement, counsel discussed the motion, I concluded
that some factual presentation would be required, before
proper determinations with respect to either contention
could be made. Upon the present record, though Respon-
dent Company's counsel has not pressed the matter
within his brief, some disposition with respect thereto
must be noted.
First: Respondent Company contends that General
Coupsel's complaint, designating its purported statutory
violations, should be dismissed because Larez' basic
charge, directed against the firm had been solicited by
some Regional Office representative. The relevant case
law does plainly reveal this Board's tacit concurrence
with a rule of policy that proven "solicitation" will be
considered a valid ground for refusal to proceed with a
case. N.L.R.B. v. Reliance Steel Products Company, 322
F.2d 49 (C.A. 5), enfg. as modified 135 NLRB 730;
Petersen Construction Corp., 128 NLRB 969, 972-973.
Neither cited case, however, presented a situation in
which solicitation was considered proven. And no such
determination, certainly, seems required herein. While a
witness, Larez was questioned closely regarding the
genesis of his Section 8(a)(3) charge against Respondent
Company, so belatedly filed. His testimony, which
Respondent Company made no effort to vitiate, reveals
that his decision to charge the firm with a statutory viola-
tion was his own; that his decision in that regard was
reached following Respondent Union's motion for a con-
tinuance calculated to postpone the Regional Office's
originally scheduled hearing date; that he was not,
thereafter, counseled to file his second charge by some
Regional Office representative. Such a record, clearly
provides no factual or legal justification whatsoever for
granting Respondent Company's motion to dismiss the
complaint on grounds of solicitation.
Second: Counsel for Respondent Company contends
that General Counsel's complaint, designating his client,
should be dismissed because that complaint could only be
sustained through proof corroborative of self-incriminat-
ing statements previously taken from company
spokesmen, during the Regional Office's investigation of
Larez' charge against Respondent Union herein. This,
counsel suggests, smacks of constitutionally proscribed
entrapment, since Respondent Company presently stands
charged on the basis of data innocently provided, with
respect to Respondent Union's collateral matter, pur-
suant to representations that Respondent Company
would not be legally "affected" thereby. When requested
to detail this contention, Respondent Company's counsel
stated:
We can show and are prepared to show that in the
course of the investigation by the Board Field Ex-
aminer under the CB case there were conversations
between the Board Examiner and the representatives
of Respondent Employer, Parisian Bakeries,
[which] at that time was not a party to the action
against the Union under 20-CB-1606. During the
course of these conversations-during the time
[when] no action had as yet been filed against the
Respondent Employer-the Field Examiner urged
the employer Mr. Fontana, go give him certain infor-
mation ... assuring him that he was not part of this
action. It had nothing to do with him and [he] ...
was not involved and would not be involved... .
Substantially, counsel suggests that, since General Coun-
sel's present complaint against Respondent Company
derives primarily from data which President Fontana pro-
vided, for Regional Office files, following the reas-
surances noted, the proceeding, so far as Respondent
Company is concerned, should be quashed.
We are not here concerned, really, with entrapment,
legally defined. No contention has been made, nor, upon
the present record, could one be made, that Respondent
Company was persuaded to participate in conduct viola-
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of law , through some representation chargeable to
General Counsel 's representative . Counsel, rather, seems
to contend merely that because the Board ' s Regional Of-
fice derived its purported basis for proceeding against
Respondent Company from statements by company per-
sonnel , solicited while Larez' charges against Respondent
Union were being checked , the firm's prosecution, con-
sequent upon the probationary worker's subsequently
filed charge , would not be fair. Realistically, this conten-
tion seems to reflect a so-called fruit of the poisoned
tree concept . Substantially , the argument is that
Respondent Company cannot properly be found guilty of
committing unfair labor practices through reliance upon
testimony which a Government representative had first
discovered under purportedly "unethical" conditions.
The contention must be rejected . No proof has been
provided that "misrepresentations " were made to per-
suade Respondent Company's president . His testimony,
herein , reveals that when the Regional Office 's represent-
ative questioned him regarding Larez' termination Pre-
sident Fontana was told the probationary worker's
charged filed against Respondent Union did not legally
affect his firm, and that he (Fontana) would not be in-
volved , with respect to Larez' charge against Respondent
Union herein , unless General Counsel found it necessary
to summon him for testimony . When made , that represen-
tation was, without a doubt, completely correct. Larez'
charge against Respondent Union was the only matter
then being checked ; with respect thereto , Respondent
Company could not have been designated aparty respond-
ent. Nor has counsel shown that General Counsel's
representative , when he discussed Larez' situation with
Respondent Company's president , knew, or had reason
to believe , that Respondent Company would sub-
sequently be separately charged . With matters in such a
posture , no contention can, legitimately , be proffered that
Respondent Company's possible guilt , herein, would
necessarily have to rest upon data first procured through
some chicanery or conscious misrepresentation. Com-
pare Hoosier Cardinal Corporation , 67 NLRB 49; see
Exact Level and Tool Manufacturing Co., Inc., 66
NLRB 1238. Should a presumption nevertheless be con-
sidered warranted , arguendo , that- with a Section 8(b)(2)
charge against Respondent Union currently on file-the
possibility of some companion charge against Respond-
ent Company under Section 8(a)(3) did lurk in the
background , Board proceedings , presumptively bottomed
upon President Fontana's earlier statements still could
not be considered constitutionally barred ; Respondent
Company's president , so the record shows , had proffered
his statements freely, during the course of an administra-
tive investigation , when the Regional Office's investiga-
tor had no reason to foresee the possibility of such com-
panion proceedings . See Kohatsu v. United States, 351
F.2d 898 (C.A. 9), cert . denied 384 U . S. 1011 ; compare
Mathis v. United States, 376 F.2d 595 (C.A. 5). General
Counsel 's representative was merely trying to determine,
with reference to charges which did not then directly con-
cern Respondent Company herein, whether unfair labor
practices had really been committed ; his failure to warn
company spokesmen , before any truly "accusatorial"
stage had been reached , regarding the conceivable "possi-
bility" that Respondent Company might , likewise, be
charged cannot be characterized , reasonably , as trickery,
misrepresentation , or positive fraud . With matters in their
present posture , therefore , counsel's case for dismissal,
whether bottomed upon constitutional principles, pur-
ported Federal Court policy, or Board discretion , cannot
be sustained.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent Union and Respondent
Company set forth in section III, above , since they oc-
curred in connection with Respondent Company's busi-
ness operations described in section I, above , had, and
continue to have, a close , intimate , and substantial rela-
tion to trade, traffic , and commerce among the several
States. Absent correction , such conduct would tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Since I have found that Respondents did engage in and
continue to engage in unfair labor practices , I shall
recommend that they be ordered to cease and desist
therefrom , and to take certain affirmative action, includ-
ing the posting of appropriate notices, designed to effectu-
ate the policies of the Act, as amended.
Specifically , I shall recommend that Respondent Com-
pany be ordered to offer Armando D. Larez immediate
and full reinstatement to his former or substantially
equivalent position , without prejudice to his previously
acquired noncontractual seniority as a probationary
worker, or his other rights and privileges . Further, I shall
recommend that Respondent Union be ordered to send a
written notice to Respondent Company, with a copy to
Armando D. Larez, stating that it has no objection to his
reinstatement and continued employment.
My recommendation will be that the Board order
Respondent Union and Respondent Company, jointly
and severally, to make Armando D. Larez whole for any
loss of pay he may have suffered , by reason of the dis-
crimination practiced against him , through the payment
to him of a sum of money equal to that which he normally
would have earned as wages from the date of his dis-
criminatory termination to the date of the reinstatement
offer recommended herein, less his net earnings for such
period. Larez' backpay should be computed on a quar-
terly basis , in accordance with the Board 's Woolworth
formula. F. W. Woolworth Company, 90 NLRB 289,
with interest thereon computed at 6 , percent per annum,
as provided in Isis Plumbing & Heating Company, 138
NLRB 716.
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon
the entire record in the case , I make the following conclu-
sions of law:
1. Respondent Company, Parisian Bakeries, Inc., is
an employer within the meaning of Section 2(2) of the
Act, engaged in commerce and business activities which
affect commerce within the meaning of Section 2(6) and
(7) of the Act, as amended.
2. Respondent Union, Bakery Wagon Drivers &
Salesmen Local Union No. 484, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America , is a labor organization within the
meaning of Section 2(5) of the Act, as amended, which
admits employees of Respondent to membership.
3. When it attempted to cause, and did cause , Respond-
PARISIAN BAKERIES
ent Company to terminate Armando D. Larez because
he was a probationary worker who had not yet been
granted union membership status, purportedly to make a
position available which some union member could be
hired to fill, Respondent Union engaged, and has con-
tinued to engage, in unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) of the Act, as
amended.
4. When it terminated Armando D. Larez pursuant to
Respondent Union's request, purportedly to make a posi-
tion available which some union member could be hired
to fill, Respondent Company engaged, and has continued
to engage, in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act, as amended.
5. The unfair labor practices herein found are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act, as amended.
RECOMMENDED ORDER
Upon these findings of fact, and conclusions of law,
and upon the entire record in the case, it is recommended
that the Board, pursuant to Section 10(c) of the National
Labor Relations Act, as amended, issue the following
order:
A. That Respondent Company, Parisian Bakeries,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) The encouragement of membership in Respondent
Union, Bakery Wagon Drivers & Salesmen Local Union
No. 484, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, through
the discharge of Armando D. Larez or any other proba-
tionary worker not yet granted union membership for the
purpose of making a position available which some union
members may thereupon be hired to fill, or through dis-
crimination against its employees, in any other manner,
with regard to their hire or tenure of employment, or any
term or condition of their employment, except to the ex-
tent which Section 8(a)(3) of the Act, as amended, per-
mits.
(b) Interference with, and restraint or coercion of, em-
ployees, in any like or related manner, in the exercise of
their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own free choice, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment, authorized by Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action, which will ef-
fectuate the policies of the Act, as amended:
(a) Offer Armando D. Larez immediate and full rein-
statement to his former or substantially equivalent posi-
tion, without prejudice to his previously acquired noncon-
tractual seniority as a probationary worker, or his other
rights and privileges.
(b) Notify the above-named employee if presently
' 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. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
1059
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Make the above-named employee whole, jointly
and severally with Respondent Union herein, for any loss
of pay he may have suffered by reason of the discrimina-
tion practiced against him, in the manner set forth within
"The Remedy" section of this Decision.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(e) Post at its place of business in San Francisco,
California, copies of the attached notice marked "Appen-
dix." 1 Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly signed
by Respondent Company's representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent Company to insure that
said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.2
B. That Respondent Union, Bakery Wagon Drivers &
Salesmen Local Union No. 484, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, its officers, representatives, and
agents, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Respondent Com-
pany, Parisian Bakeries, Inc., to discriminate against em-
ployees through the discharge of Armando D. Larez, or
any other probationary worker not yet granted union
membership, for the purpose of making a position availa-
ble which some union member may, thereupon, be hired
to fill; or causing or attempting to cause Respondent
Company to discriminate against employees, in any other
manner, with regard to their hire or tenure of employ-
ment, or any term or condition of their employment, ex-
cept to the extent which Section 8(a)(3) of the Act, as
amended, permits.
(b) Restraining or coercing employees, in any like or
related manner, in the exercise of their rights to self-or-
ganization, to form, join or assist labor organizations, to
bargain collectively through representatives of their own
free choice, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activi-
ties, except to the extent that such rights may be affected
by an agreement requiring membership in a labor or-
ganization as a condition of employment, authorized by
Section 8(a)(3) of the Act, as amended.
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
2 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent Company has taken to comply herewith."
350-212 0-70-68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which will ef-
fectuate the policies of the Act, as amended:
(a) Make Armando D. Larez whole, jointly and
severally with Respondent Company herein, for any loss
of pay he may have suffered by reason of the discrimina-
tion practiced against him, in the manner set forth within
"The Remedy" section of this Decision.
(b) Send a written notice to Respondent Company,
and mail a copy to Armando D. Larez, stating that it has
no objection to his current employment by Respondent
Company and will not oppose his reinstatement.
(c) Post at its business office and meeting hall at San
Francisco, California, copies of the attached notice
marked "Appendix."3 Copies of said notice, on forms
provided by the Regional Director for Region 20, after
being duly signed by Respondent Union's representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent Union to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Mail to the Regional Director for Region 20 signed
copies of the appropriate notice attached to this report as
an appendix, for posting by Respondent Company,
should it be willing, at its San Francisco, California, place
of business as provided above. Copies of this notice, upon
forms to be furnished by the Regional Director, shall be
returned to him forthwith for appropriate disposition,
after being signed by Respondent Union's representative.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.4
:' See in. 1, supra.
4 See fn. 2, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT encourage membership in Bakery
Wagon Drivers & Salesmen Local Union No. 484,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
through the discharge of probationary workers who
have not yet been granted union membership, for the
purpose of making a position available which some
union member may thereupon be hired to fill, or
though discrimination against our employees, in any
other manner, with regard to their hire or tenure of
employment, or any term or condition of their em-
ployment, except to the extent which Section 8(a)(3)
of the National Labor Relations Act permits.
WE WILL NOT engage in like or related conduct
which interferes with, restrains, or coerces our em-
ployees in the exercise of their right to self-organiza-
tion, to form, join, or assist labor organizations, to
bargain collectively through representatives of their
own free choice, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such
rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, authorized by Section 8(a)(3) of the
Act, as amended.
WE WILL offer Armando D. Larez, immediate and
full reinstatement to his former or substantially
equivalent position, without prejudice to his previ-
ously acquired noncontractual seniority as a proba-
tionary worker, or his other rights and privileges, and
make him whole, jointly and severally with Bakery
Wagon Drivers & Salesmen Local Union No. 484,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, for
any loss of earnings, including interest, he may have
suffered by reason of the discrimination practiced
against him.
PARISIAN BAKERIES, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Armando D. Larez if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training 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, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-0335.
APPENDIX B
NOTICE TO ALL MEMBERS OF BAKERY WAGON DRIVERS
& SALESMEN LOCAL UNION NO. 484, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause, or attempt to cause Parisian
Bakeries, Inc., or any other employer, to dis-
criminate against Armando D. Larez, or any other
probationary worker not yet granted union member-
ship, for the purpose of making a position available
which some union member may thereupon be hired
to fill, or to discriminate against employees in any
other manner, with regard to their hire or tenure of
employment, or any term or condition of their em-
ployment, except to the extent which Section 8(a)(3)
of the National Labor Relations Act permits.
WE WILL NOT restrain or coerce employees,
through any like or related conduct, in the exercise
of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own free choice, and
PARISIAN BAKERIES
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activi-
ties, except to the extent that such rights may be af-
fected by an agreement requiring membership in a
labor organization as a condition of employment,
authorized in Section 8(a)(3) of the Act, as amended.
WE WILL send written notices to Parisian Baker-
ies, Inc., and Armando D. Larez, that we have
withdrawn our objection to the employment of the
latter, and that we have no objection to his employ-
ment or to the employment of any other probationary
worker, based upon their lack of membership in our
organization.
WE WILL, jointly and severally with Parisian Bake-
ries, Inc., make whole Armando D. Larez for any
loss of earnings, including interest, he may have suf-
1061
fered by reason of the discrimination practiced
against him.
Dated By
BAKERY WAGON DRIVERS
& SALESMEN LOCAL UNION
NO. 484, INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
(Representative) (Title)
This notice must remain posted for 60 consecutive
da s from the date of posting and must not be altered,
defaced, or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-0335.