Roma Baking Company

National Labor Relations Board - Board Decisions

Jul 30, 1982

263 N.L.R.B. 24 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roma Baking Company and Teamsters Local Union
No. 688. Case 14-CA-13835
July 30, 1982
DECISION AND ORDER
On October 27, 1980, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed an answering brief to Respondent's excep-
tions.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and briefs and has decided to
affirm the rulings, findings,' and conclusions of the
I In its exceptions, Respondent contends that no competent evidence
was presented that it meets the Board's jurisdictional standards. We find
no merit in this contention. Thus, Respondent was a party in a prior
Board representation proceeding, Roma Baking Company, Case 14-RC-
9176 (Decision and Direction of Election dated June 12, 1980). At the
hearing in that case, Respondent, an employer engaged in both nonretail
and retail sales, entered into stipulations that during the 12-month period
ending December 31, 1979, a representative period, it purchased from
other employers engaged in commerce goods and services in an amount
in excess of S50,000. Based thereon, the Regional Director for Region 14
found that Respondent met both the Board's statutory and discretionary
standards for the assertion of jurisdiction. Although the Regional Direc-
tor's decision was subsequently vacated upon withdrawal of the petition,
we note that Respondent did not seek to contest the Regional Director's
findings concerning the jurisdictional facts by filing a request for review
of his decision nor does Respondent now argue that the Regional Direc-
tor's findings with respect to those facts were erroneous or that changed
circumstances require a reexamination of those facts. Further, at the
unfair labor practice hearing, Respondent's attorney stated that "for pur-
poses of this hearing we are admitting [jurisdiction]." Moreover, jurisdic-
tional allegations sufficient to bring Respondent within the Board's statu-
tory and discretionary jurisdictional amount standards were contained in
par. 2(c) of the complaint. In its original answer to the complaint, which
set forth enumerated paragraphs corresponding to those of the complaint,
Respondent answered the allegations of par. 2(c) by stating that it
"admits the allegations of paragraph 4(c)." We note that the complaint
contains no par. 4(c). Thus, it appears that Respondent either intended to
admit the jurisdictional facts alleged in the complaint or that it filed no
specific answer to those allegations in which case, under Sec. 102.20 of
the Board's Rules and Regulations, Series 8, as amended, such allegations
may have been deemed to be admitted. Finally, we note that Respondent
did not attempt to amend its answer to deny the allegations of jurisdic-
tion in the complaint until after the Administrative Law Judge had raised
the matter at the hearing and, although the Administrative Law Judge
afforded Respondent the opportunity to support its amended answer by
stating that he would consider any evidence offered by it to controvert
the jurisdictional findings in the prior representation case, Respondent in-
troduced no such evidence. Accordingly, we find that the assertion of ju-
risdiction here is proper.
Respondent has alleged, in essence, that the Administrative Law
Judge's resolutions of credibility are the result of bias. After careful ex-
amination of the entire record, we are satisfied that this allegation is with-
out merit. There is no basis for finding that bias and partiality existed
merely because the Administrative Law Judge resolved important factual
conflicts in favor of the General Counsel's witnesses. As the Supreme
Court stated in N.L.R.B. v. Pittsburgh Steamship Company, 337 U.S. 656,
659 (1949), "[T)otal rejection of an opposed view cannot of itself impugn
the integrity or competence of a trier of fact." Furthermore, it is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings.
263 NLRB No. 4
Administrative Law Judge and to adopt his recom-
mended Order, as modified herein.2
The Administrative Law Judge concluded that
Respondent violated Section 8(a)(1) of the Act by
discharging Supervisor Robert Hoskins. We find
merit in Respondent's exceptions to the Adminis-
trative Law Judge's conclusion.
In our recent decision in Parker-Robb Chevrolet,
Inc., 262 NLRB 402 (1982), we held that the pro-
tection of the Act does not extend to supervisors
who are disciplined or discharged as a result of
their participation in union or concerted activity.
In so doing, we overruled DR W Corporation d/b/a
Brothers Three Cabinets, 248 NLRB 828 (1980), on
which the Administrative Law Judge relied in find-
ing Hoskins' discharge unlawful, and similar cases
to the extent those cases held that a violation is es-
tablished when the discipline or discharge of super-
visors is an "integral part" of an employer's pattern
of unlawful conduct directed against employees.
Accordingly, we conclude, for the reasons fully set
forth in Parker-Robb, that there is no basis for find-
ing the discharge of Supervisor Hoskins unlawful.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied and set out in full below, and hereby orders
that the Respondent, Roma Baking Company, St.
Louis, Missouri, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees regarding their
union sentiments.
In sec. 11,A. of his Decision, the Administrative Law Judge inadvert-
ently referred to "Imo" rather than "Supervisor lHokins" as having been
scheduled to work on May 26, 1980.
In par. I(h) of his recommended Order, the Administrative Law
Judge used the narrow cease-and-desist language, "in any like er related
manner." We have considered this case in light of the standards set forth
in Hickmott Foods, Inc., 242 NLRB 1357 (1979), and have concluded that
a broad remedial order is appropriate. Accordingly. we shall modify the
recommended Order and use the broad injunctive language, "in any
other manner."
We find that it will effectuate the purpose of the Act to require Re-
spondent to expunge from its files any references to the unlawful layoffs
of Michael Bantle, John Hoskins, and Joseph Pashia on May 15, 1980,
and to notify them in writing that this has been done and that evidence of
their unlawful layoffs will not be used as a basis for fiture personnel ac-
tions against them.
3 Member Jenkins concurs with his colleagues' dismissal of tie com-
plaint with respect to Supervisor Hoskins, but does so for the reason that
no violation has been shown under the "integral part" or "pattern of con-
duct" doctrine. See his concurring opinion in Parker-Robb Chevrolet, Inc.,
supra.
In accordance with his dissent in Olympic M.edical Corporartioi. 250
NLRB 146 (1980) Member Jenkins would award interest ion the backpay
due based on the formula set forth therein.
24
ROMA BAKING COMPANY
(b) Issuing expressions of the futility of engaging
in Ilnion activity to its employees.
(c) Telling its employees they could quit, in
order to discourage their union activities.
(d) Threatening its employees with layoff or
plant closure if they are successful in obtaining
union representation.
(e) Threatening its employees with changed
working conditions in reprisal for engaging in
union activities.
(f) Discriminating against its employees by laying
off any of them for engaging in union activities.
(g) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them under Section 7 of the
National Labor Relations Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Offer Michael Bantle, John Hoskins, and
Joseph Pashia immediate and full reinstatement to
their former jobs or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges previously enjoyed, and make each
whole in the manner described in the section of the
Administrative Law Judge's Decision entitled "The
Remedy" for any loss of pay or other benefits suf-
fered by reason of their discriminatory layoffs on
May 15. 1980.
(b) Expunge from its files any references to the
unlawful layoffs of Michael Bantle, John Hoskins,
and Joseph Pashia on May 15, 1980, and notify
them in writing that this has been done and that
evidence of their unlawful layoffs will not be used
as a basis for future personnel actions against them.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, 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
Order.
(d) Post at its St. Louis, Missouri, location copies
of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 14, after being duly
signed by an authorized representative of Respond-
ent, shall be posted by Respondent 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
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order ,f the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 14,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WILL NOT question you regarding your
union activities, sentiments, and feelings.
WE WILL NOT say anything to you to indi-
cate it is futile for you to engage in union ac-
tivities.
WE WILL NOT tell you you can quit your
jobs in order to discourage your union activi-
ties.
WE WILL NOT threaten to lay you off or to
close our plant because you engage in union
activities or because you are successful in ob-
taining a union to represent you.
WE WILL NOT threaten to change your
working conditions because you engaged in
union activities.
WE WII.L NOT discriminate against you by
laying any of you off because you engage in
union activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any of you because
you engage in, or refuse to engage in, any of
the protected activities described above.
WE WILL offer Michael Bantle, John Hos-
kins, and Joseph Pashia immediate and full re-
instatement to their former jobs or, if those po-
25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sitions no longer exist, to substantially equiva-
lent positions, without prejudice to their se-
niority or other rights and privileges previous-
ly enjoyed, and WE WILL make each of them
whole for all loss of pay and other benefits
suffered as a result of their May 15, 1980, lay-
offs, with interest.
WE WILL expunge from our files any refer-
ences to the unlawful layoffs of Michael
Bantle, John Hoskins, and Joseph Pashia on
May 15, 1980, and WE WILL notify them that
this has been done and that evidence of their
unlawful layoffs will not be used as a basis for
future personnel actions against them.
ROMA BAKING COMPANY
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: This
case was heard before me on July 30, 1980,1 at St. Louis,
Missouri.
Upon an original charge filed by Teamsters Local
Union No. 688 (the Union), a complaint and notice of
hearing was issued by the Board's Regional Director for
Region 14 on July 3.
The complaint alleges that Roma Baking Company
(Respondent) violated Section 8(a)(1) of the National
Labor Relations Act, as amended (the Act), by a variety
of independent activities including unlawful interroga-
tion, expressing futility of union representation, unlawful-
ly suggesting employees quit if they were unhappy
working for Respondent, and threatening employees
with economic reprisals consisting of loss of employment
and undesirable changes in their working conditions if
the Union became their bargaining representative, and
threatening to go out of business if the employees chose
to be represented by a labor organization.
An additional 8(a)(1) violation is alleged to have oc-
curred when Respondent terminated the employment of
its supervisor, Robert Hoskins.
Finally, the complaint alleges the layoff of employees
Michael Bantle, John Hoskins, and Joseph Pashia was
discriminatory and in violation of Section 8(a)(3) and (1)
of the Act.
Respondent filed a timely answer to the complaint.
The answer admitted certain matters but denied the sub-
stantive allegations and that it committed any unfair
labor practices.
All parties appeared at the hearing. Each was repre-
sented by counsel and was afforded full opportunity to
be heard, to introduce and meet material evidence, to ex-
amine and cross-examine witnesses, to present oral argu-
ments, and to file briefs. I have carefully considered the
contents of the briefs filed by counsel for the General
Counsel and Respondent's counsel.
I All dates hereinafter are 1980 unless otherwise stated.
Upon consideration of the entire record and the briefs,
and my observation of the witnesses and their demeanor,
I make the following:
FINDINGS AND CONCI USIONS
I. JURISDICTION
No issue is raised as to jurisdiction or labor organiza-
tion status. Based on the complaint allegations and Re-
spondent's admissions, I find Respondent is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11. THE At.LF.GED UNFAIR L ABOR PRACTICES
A. The Facts
The following recitation of facts is a composite of rele-
vant unrefuted oral testimony, supporting documents,
and other undisputed evidence. Wherever material con-
flicts exist, they are resolved. Not every bit of evidence
is discussed. Nonetheless, I have considered all of it to-
gether with all arguments of counsel. Omitted matter is
considered irrelevant or superfluous.
In late April or early May, a group of Respondent's
employees met and discussed the possibility of union rep-
resentation. Night-shift Supervisor Robert Hoskins2 par-
ticipated in such discussion. In early May, initial contact
was made with the Union. Supervisor Hoskins initiated
this contact. He talked with a union representative. Su-
pervisor Hoskins signed a union authorization card. He
took blank authorization cards and solicited the signa-
tures of Respondent's employees. Those who signed the
cards returned them to Supervisor Hoskins.
On May 14 Respondent's manager, William Jennings,
spoke with Supervisor Hoskins upon Hoskins' arrival at
work. Jennings told Supervisor Hoskins that he heard he
had been talking about a union. The conversation contin-
ued. Jennings said if a union came in, Respondent would
expect skilled labor.
Supervisor Hoskins testified, also, that Jennings told
him if he continued his union activity "nobody would
have a job, that they would just close the place up and
everybody would be out of work." Jennings denied ever
having made this statement. 3 I credit Supervisor Hos-
kins. His testimony regarding the threat to close is con-
sistent with testimony of Tammy Sullivan. Sullivan still
in Respondent's employ on the hearing date also testified
that Jennings told her and some other employees, on
May 16 or 17, "if the Union would come in that the
doors could be closed."
Respondent argues Sullivan's testimony in this connec-
tion was elicited by a leading question. I disagree. The
record shows otherwise. Thus, the General Counsel
asked Sullivan to describe what occurred during a meet-
ing among Jennings and a group of employees shortly
after the alleged discriminatory layoffs. After founda-
2 Hereinafter referred to as Supervisor Hoskins to distinguish him from
alleged discriminatee John Hoskins.
I The threat of closure made to Supervisor Hoskins is not alleged as an
unfair labor practice.
26
ROMA BAKING COMPANY
tional questions were answered by Sullivan, Respond-
ent's counsel objected. Colloquy concerning the objec-
tion ensued. The objection was overruled. Counsel for
the General Counsel then asked Sullivan the following
general question: "What did Mr. Jennings say at that
time?" Sullivan spontaneously responded, "Bill (Jen-
nings) had told us that if the Union would come in that
the doors could be closed." Accordingly, I find Sulli-
van's impromptu response was to a generalized question.
Sullivan impressed me with her sincerity. With specific
regard to their respective testimony concerning plant
closure, Sullivan's spontaniety contrasts with Jennings'
self-serving denial. Testimony of current employees like
Sullivan is entitled to considerable weight because it is
not likely to be false. Such testimony is adverse to an
employee's pecuniary interests. Shop-Rite Supermarket,
Inc., 231 NLRB 500 (1977); Georgia Rug Mill, 131
NLRB 1304, 1305 (1961), modified other grounds 308
F.2d 89 (5th Cir.). Upon the foregoing, I find that a day
or two after the May 15 layoff Jennings made the plant
closure remark to Sullivan and some other employees.
That remark is consistent with the one attributed to Jen-
nings on May 14. Thus, for background purposes, I find
Jennings told Supervisor Hoskins that Respondent could
close the business during their May 14 conversation.
Because Sullivan's testimony described above is, at
least in part, inherently consistent with that of Supervi-
sor Hoskins and because Hoskins, in some respects, was
uncontradicted in his description of the May 14 conver-
sation, I adopt Hoskins' narration as my factual findings.
Thus, I find Jennings also asked Supervisor Hoskins how
many employees signed authorization cards. Supervisor
Hoskins answered that 11 employees did so. He said that
each employee solicited did actually sign a card. Jen-
nings asked "what do you expect to gain out of it?" Su-
pervisor Hoskins responded, "Well, the people aren't
happy with their working conditions around here." The
conversation concluded when Jennings said he would
report to Respondent's owner, Edward Imo, what he
knew of the employees' union activity. Also, Jennings
opined that Imo would be unhappy and there would be
hard feelings.4
Jennings admitted he reported to Imo that union activ-
ities were in progress. The entire content of their con-
versation is absent from the record. However, it is un-
controverted that Imo and Jennings immediately spoke
to Respondent's attorney by telephone. They discussed
whether or not Respondent employed individuals under
18 years of age. How the topic was initiated, and by
whom, is obscure. In any event, Jennings told the attor-
ney he knew some employees were under 18 years old.
The attorney indicated a state law existed prohibiting op-
eration of power equipment by individuals younger than
18.
Later, on May 14, Jennings spoke with the individuals
working on the night shift. In attendance were alleged
discriminatees Bantle, John Hoskins, and Pashia and em-
ployee Harold Batson. Supervisor Hoskins was among
4 Neither Jennings' plant closure remark made to, nor his interrogation
of, Supervisor tloskins is alleged as an unfair labor practice. Presumably,
that evidence was adduced to support the General Counsel's claim of un-
lawful motivation and for background
them. It is admitted that Jennings asked the employees
what they thought they would gain from their union ac-
tivity. Jennings suggested the employees should think
about what they were doing. He admitted he said that if
the Union came in and if Respondent would be required
to pay wages for skilled labor, it would expect skilled
labor.
Bantle testified Jennings told the employees at the
May 14 meeting if they did not like their jobs they could
quit. Jennings testified he could not recall whether or
not he made that statement. Nonetheless, Jennings ad-
mitted "it's possible" he said it. Bantle's testimony, in
general, was direct and forthright. His narration of what
occurred during the May 14 meeting was more compre-
hensive and precise than Jennings'. Accordingly, I credit
Bantle's account. Thus, I find that on May 14 Jennings
told the employees if they did not like their jobs they
could quit.
The General Counsel requested Supervisor Hoskins to
further describe the events at the May 14 meeting. Su-
pervisor Hoskins was asked, "did he [Jennings] ever say
anything concerning employees losing their jobs or quit-
ting or anything like that?" Over Respondent's objection,
Supervisor Hoskins responded to Jennings "if the place
did go union, he didn't expect it to even go as far as a
vote. That if the place did go union he would close up
the bakery part and just make pizza shells." I have con-
sidered the leading character of this question by the
General Counsel. In other circumstances, Supervisor
Hoskins' answer might be of diminished probative value.
However, I have weighed that answer against the stacca-
to, bare self-serving denials of Jennings. I have already
noted Jennings was equivocal regarding this conversa-
tion. Thus, I am persuaded Supervisor Hoskins' testimo-
ny is probative. His reply was couched in more explicit
terms than used in the General Counsel's question. The
totality of these circumstances provides a basis for my
reliance upon Supervisor Hoskins' testimony in connec-
tion with the alleged expression of futility of employee
representation.
Bantle and John Hoskins testified that Jennings told
them if the Union came into the plant the employees
would have to go to bakers' school. I credit their testi-
mony. As earlier noted, Jennings admitted referring to
Respondent's expectation skilled labor would be the
result of having to pay union wages. The implication of
such a comment is that attendance at baker's school
would be a consequence of unionization. Moreover, Jen-
nings was not explicitly asked to deny he precisely told
the employees they would have to go to bakers' school if
the Union came in. Instead, Jennings merely was asked
"did you threaten anybody with being forced to accept
unwanted changes in their working conditions if they
were members of a union?" Jennings replied, "Not at all,
sir." Upon the foregoing, I find it probable Jennings ac-
tually said unionization would lead to the employees'
going to bakers' school. In assessing the relative witness
credibility on this issue, it is noted that when Bantle tes-
tified he was once again in Respondent's employ. As pre-
viously observed, testimony of current employees is enti-
tled to considerable weight. This precept is especially
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
true as to Bantle inasmuch as he is one of the alleged dis-
criminatees. Having once been terminated for what he
believes to be unlawful reasons he has even more reason
to be apprehensive concerning his testimony if it were
false.
Supervisor Hoskins also spoke at the May 14 meet-
ing.6 Supervisor Hoskins complained he was not being
treated fairly; the Union would protect everyone's job;
Respondent would not be allowed to make changes in
working conditions. Particularly, Supervisor Hoskins
said that now that the Union was involved, Respondent
could not alter his method of wage payment from hourly
to salary as Jennings had proposed at some earlier time.
Also, Supervisor Hoskins told the employees of some un-
identified union benefits and explained why he thought
the employees should become union members.
The meeting ended when Jennings said he would have
to speak to Imo. He added Imo would be unhappy when
he learned of the union activity and that if the place
went union, he would have to go by union rules and
some people might be laid off.
Later during the same shift, Jennings again met with
the night-shift employees. Again, Supervisor Hoskins
was present. Jennings reported he would have to lay off
Bantle, John Hoskins, and Pashia. Jennings said they
were too young to work there. Jennings ascribed this de-
cision to a discussion with Respondent's attorney. Ac-
cording to Jennings, Respondent's attorney had advised
that the layoff was necessary to protect Respondent. (It
is undisputed that the three employees identified for
layoff had operated certain power equipment.) Supervi-
sor Hoskins testified without contradiction on this point
that Jennings again asked the employees what they ex-
pected to gain from their union activity. Also, Jennings
told the employees if they wanted to go union, Respond-
ent would have to go by union rules and he (Jennings)
would lay some people off.
On May 15, when the night shift began, Bantle, John
Hoskins, and Pashia were laid off by Jennings. Supervi-
sor Hoskins was present. Jennings told the employees
their layoff was because they were too young to work
on the machines. Each employee was told to check back
a week later to see if work was available for them.
Bantle and Pashia complied and were offered immediate
employment in jobs requiring no machine operating.
These two were actually reemployed in the new posi-
tions 2 weeks after their layoffs. Supervisor Hoskins
asked Jennings whether Sullivan, who was 17 years old,
would also be laid off. Jennings responded Sullivan
would also be laid off.
As indicated above, Sullivan testified that Jennings
met with a group of day-shift employees a day or two
after the May 15 layoff. I have already credited Sulli-
van's testimony that Jennings told the employees if the
Union came into the Company, the doors could be
s Jennings testified as to what Supervisor Hoskins is supposed to have
said. That testimony is uncontroverted. I adopt Jennings, version. To the
extent this is contrary to my earlier findings that Jennings was not as reli-
able a witness as others, it is proper to partially credit Jennings. A trier
of fact is not required to believe the entirety of a witness' testimony.
Maximum Precision Metal Products, Inc., Renault Stamping Ltd., 236
NLRB 1417 (1978).
closed. Additionally, Sullivan credibly testified that Jen-
nings said if he was going to pay out money for baker's
school, he wanted bakers and that some of the employees
would be laid off.
Supervisor Hoskins had been employed a total of 4
years. His service was broken. At first, he worked ap-
proximately 9-10 months. Then he quit. Two weeks later
he returned to work. Four months after that he quit. He
was absent for 3 months and then returned. Thereafter,
his service was continuous.
There is background evidence upon Respondent's
union sentiments. Approximately I year before the in-
stant hearing, Supervisor Hoskins and Imo talked about
unions. At that time, there was a strike in the bread in-
dustry. Some of Respondent's employees were engaged
in casual conversation concerning the strike. It was sug-
gested that they, too, strike. Imo told Supervisor Hoskins
if he heard anything more about a strike he would get
rid of whoever talked about it.
The second background conversation occurred 4-5
months before the instant hearing. Supervisor Hoskins
was engaged in an argument with another employee.
The subject of their discussion is unclear. Supervisor
Hoskins testified, without contradiction, that Imo told
him, "I don't want to hear anymore talk about a strike or
nothing. If I hear anything about a strike, I will get rid
of the people. If anybody ain't happy here, they can just
quit now."
In approximately March or April, Supervisor lHoskins
asked Jennings for a vacation late in May or June. Jen-
nings said, "O.K. Let me know." Some time during the
week of May 19, Supervisor Hoskins again asked for his
vacation. This time he spoke with Imo. Imo denied the
request. Imo said that Supervisor Hoskins had to be
"crazy" asking for the vacation after all the trouble he
started. During his conversation, Imo referred to Super-
visor Hoskins as an "alley rat." According to Supervisor
Hoskins, Imo said if it cost $100,000 he would get even
with him for what he did. Supervisor Hoskins testified
Imo said he had ways of getting even with people like
him. Imo's version is slightly different. He admitted re-
ferring to spending $100,000 but did so by saying he
would spend that amount rather than give Supervisor
Hoskins the vacation. I credit Supervisor Hoskins' ver-
sion. His was more comprehensive and inherently con-
sistent than Imo's. Imo's testimony, generally, was less
direct and candid, and more selective.
Respondent's employees customarily were paid on
Friday. Supervisor Hoskins normally had Friday as a
day off. Nonetheless, on Friday, May 16, Supervisor
Hoskins visited Respondent's plant to pick up his check.
On May 18, Supervisor Hoskins had been scheduled to
work. His wife called and said he was sick. On May 19,
Supervisor Hoskins did not work due to illness.
Supervisor Hoskins worked on May 20, 21, and 22. On
May 21, Supervisor Hoskins spoke with Jennings. How
the conversation started is obscure. Supervisor Hoskins
commented that Respondent had laid off his son, alleged
discriminatee John Hoskins. He asked why Respondent
would not lay him (Supervisor Hoskins) off also. Jen-
nings admitted asking why Supervisor Hoskins started
28
ROMA BAKING COMPANY
"this thing." Supervisor Hoskins speculated Imo would
be mad if he (Supervisor Hoskins) would ask for unem-
ployment compensation. Jennings retorted, "don't you
think he's (Imo) mad now?"
Jennings said he had to speak with Imo concerning the
request for layoff.
The next day, May 22, Supervisor Hoskins worked
only approximately 50 minutes. Apparently, he became
enraged during an altercation with another employee.
Jennings sent him home.
On Friday, May 23, Supervisor Hoskins reported for
his check. He spoke with Jennings. They discussed Su-
pervisor Hoskins' requests for layoffs and vacation. Jen-
nings told Supervisor Hoskins he could not lay him off
because Respondent's attorney advised Respondent could
be in trouble. Nonetheless, Jennings asked for the layoff
proposal to be reduced to writing. Supervisor Hoskins
prepared a handwritten note, dated May 24, requesting
unemployment compensation "without trouble and a
week's vacation." He gave the document to Jennings,
who rejected both requests.
Supervisor Imo was scheduled to work May 26. He
took ill on May 24. On May 26, his wife called Respond-
ent and reported he was ill. On May 28 he visited his
physician. The record does not establish whether Re-
spondent had a clear policy regarding extended absences
for sickness. However, Supervisor Hoskins obtained a
note from his doctor. The note relates, "unable to work
May 25-May 29 due to intestinal virus." This note was
never presented to Respondent.
Supervisor Hoskins visited Respondent's premises on
May 28, the day of the doctor's visit. His uncontradicted
testimony reflects he spoke with Jennings. He told Jen-
nings he would not come to work the rest of the week
because of his illness. According to Supervisor Hoskins,
Jennings responded, "O.K. fine. Let me know when you
are better."
On May 30, Supervisor Hoskins visited Respondent's
premises to pick up his check. He spoke to Jennings. Jen-
nings said, "As far as I'm concerned, you quit." Supervi-
sor Hoskins protested he did not quit and was ready to
resume work. Jennings repeated Respondent considered
him no longer employed. Apparently, there was no dis-
cussion on this day between the two regarding the
Union, Supervisor Hoskins' illness, or his request for
layoff and vacation. There is no evidence Supervisor
Hoskins visited Respondent's premises thereafter.
B. Analysis
1. The independent 8(a)(1) violations
There are seven separate allegations that Respondent
engaged in conduct proscribed by Section 8(a)(1). These
allegations, contained in complaint paragraphs 5(a)-(g),
will be discussed, seriatim, below.
Complaint paragraph 5(a) alleges Respondent unlaw-
fully interrogated employees regarding their union senti-
ments on May 14. The critical fact is undisputed. Thus, it
is admitted that Jennings asked the assembled night-shift
employees what they thought of, or expected to gain
from, their union activity.
In assessing the evidence relating to the instant issue, I
must determine whether the alleged unlawful activity
reasonably tends to have a proscribed effect. Hanes Hoi-
sery, Inc., 219 NLRB 338 (1975); Impact Die Casting Cor-
poration, 199 NLRB 268, 271 (1972). The test is objec-
tive. Employees' perceptions of what they heard and
their reactions are irrelevant. El Rancho Market, 235
NLRB 468, 471 (1978). The foregoing are the guiding
principles in my resolution of each of the alleged inde-
pendent 8(a)(l) violations.
The General Counsel contends the May 14 meeting
was pervaded by Jennings' antiunion expressions. The
General Counsel argues an employer commits unlawful
interrogation when it questions its employees about their
reasons for supporting a union. Respondent submits this
remark of Jennings was privileged free speech. Respond-
ent claims the evidence shows Supervisor Hoskins was
able to, and did, present a rebuttal on behalf of the
Union. Additionally, Respondent argues the facts do not
support the General Counsel's claim that Jennings' injury
was attended by any threat or coercion.
As stated in Paceco, a Division of Fruehauf Corporation,
237 NLRB 399, 399-400 (1978): ". . . an interrogation
of an employee's union sympathies or his reasons for sup-
porting a union need not be uttered in the context of
threats or promises in order to be coercive. The probing
of such views, even addressed to employees who have
openly declared their prounion sympathies . . . is coer-
cive." Thus, I find Respondent's position untenable.
It is true Jennings did not literally ask the employees
to tell him why they wanted a union or why they en-
gaged in union activity. Nonetheless, I conclude asking
them what they expected to gain from such activity ef-
fectively requires disclosure of (I) their personal affili-
ation and sympathies, and (2) explanation of the reasons
for their activity and interest. An employer is not free to
require such revelations directly or indirectly. To do sc
has a coercive impact. ITT Automotive Electrical Products
Division, 231 NLRB 878 (1977). Upon the foregoing, I
find the General Counsel has sustained his burden of
proving the instant allegation. No further proof of addi-
tional threats or other proscribed conduct is necessary.
I shall find below that Jennings threatened employees
at the May 14 meeting with economic reprisal, as al-
leged. In such a context, Jennings' request that the em-
ployees explain how they expected to benefit from their
union activity is, a fortiori, unlawful. The Board, in
Fayette Cotton Mill, 245 NLRB 428 (1979), left undis-
turbed an administrative law judge's observation that the
Paceco rationale dictates a finding of violation in circum-
stances where the instant question is attended by threats
of economic reprisal. Thus, I conclude the entire atmos-
phere engendered by Jennings at the May 14 meeting
provides further basis for finding the subject question
violative of Section 8(a)(l).
In complaint paragraph 5(b) it is alleged Respondent
unlawfully expressed to employees the futility of union
representation. The unlawful remark is attributed to Jen-
nings during his May 14 meeting with employees.
Respondent argues that the General Counsel produced
no evidence that Jennings told the employees it was
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
futile to be represented by a labor organization. Literally,
that is true. However, Respondent apparently miscon-
ceives the thrust of this allegation. Thus, the General
Counsel argues that the credited accounts of Bantle and
Supervisor Hoskins support this allegation. I have cred-
ited their testimony that, on May 14, Jennings told the
employees they could quit if they did not like their jobs
or were not happy with them. Also, I have found Jen-
nings said, if they went union, he (Jennings) did not
expect it to even go as far as a vote. This remark was
followed by a threat to close the shop. The General
Counsel contends the totality of these remarks present a
frustrating view of pursuit of union activity. I agree.
The combined effect of Jennings' words has the tend-
ency to impress employees with a feeling their union ac-
tivities would be fruitless. When Jennings said the em-
ployees could quit if they are not happy he, in effect, in-
dicated union activities are not consistent with continued
employment at Respondent. Next, he indicated the union
activities would be short-lived by saying he did not think
the matter would go as far as a vote. Finally, Jennings
issued the direct threat to close if the organizational ef-
forts were successful.
The combined effect of Jennings' words, in my view,
creates a not-too-subtle expression of the frustrating and
futile results of the employees' organizing activity. The
Act expressly excepts from free speech protection ex-
pressions containing threats of reprisal or force or prom-
ises of benefit. Even though such statements may be
couched as expressions of opinion, they are unlawful if
their reasonable tendency is coercive in effect. Interna-
tional Paper Company, Inc., 228 NLRB 1137, 1141 (1977).
In Woodline, Inc., 233 NLRB 97, 100 (1977), it was
found that an employer unlawfully suggested the futility
of selecting a union as collective-bargaining representa-
tive by telling the employees the employer could hold
the union up in court for as long as the employer
wanted. That remark was coupled with a threat to close.
The case at bar is analogous. Jennings' suggestion that
organizational efforts might not reach the voting stage
was combined with a threat to close. That context clear-
ly signals to the employees that their statutory right to
make a ballot choice might be foreclosed by Respondent.
Even assuming Jennings referred to the vote in isolation,
I conclude such a comment itself implies futility of con-
tinuation of the employees' exercise of the rights guaran-
teed in the Act. Jennings' words imply Respondent
would take such action as would prevent or impede the
employees' ability to make a selection regarding repre-
sentation. I conclude such implication conveys futility in
the exercise of Section 7 rights.
Upon the foregoing, I conclude the record contains a
preponderance of evidence to prove the instant allega-
tion.
Complaint paragraph 5(c) alleges that Section 8(a)(1)
was violated when Jennings told the employees they
could quit if they were not happy. Respondent's brief
does not seriously contest that Jennings made the com-
ment. Instead, Respondent claims this is another example
of Jennings' exercise of the Act's Section 8(c), free
speech, rights. I disagree.
If viewed in isolation, a remark telling employees they
could quit if they are not happy might be lawful. How-
ever, the context in which such a statement is made is
important. It gives expression and meaning to the words.
Admittedly, the May 14 meeting was held by Jennings to
discuss the union activity. I have already found that he
made other antiunion comments. (See discussion regard-
ing complaint par. 5(b), supra.) In such a context, the
subject remark constitutes "a veiled threat" violative of
the Act. Markle Manufacturing Company of San Antonio,
239 NLRB 1353, 1354 (1979). Arguably, the Markle case
is distinguishable. There, employees were told they could
quit if they did not like their employer's collective-bar-
gaining proposals. Herein, Jennings' statement was relat-
ed to employee dissatisfaction with their jobs. The dis-
tinction is not significant.
In Markle, the Board explicated the vice inherent in a
suggestion that employees could quit. Specifically, the
Board observed such remarks result in an "impression
that management considers continued employment in-
compatible with engaging in Union activities." 239
NLRB at 1354. I conclude that meaning inescapably is
derived from Jennings' words. I find those words are
tantamount to apprising the listener that Respondent be-
lieves there is mutual inconsistency of union activities
and employment tenure. Accordingly, I find there is
merit to the allegations of complaint paragraph 5(c).
In complaint paragraph 5(d) Respondent is charged
with having unlawfully threatened employees with loss
of employment if they continued their union activities.
Respondent, on credibility grounds, argues such a threat
was not proved. Specifically, Respondent claims Super-
visor Hoskins is not credible because his testimony as to
the threat was presented in response to a leading ques-
tion.
The character of Supervisor Hoskins' testimony is dis-
cussed supra, in section II,A. I have concluded more reli-
ance should be placed upon Hoskins' manner of narration
that the leading nature of the question put to him by
counsel for the General Counsel. Thus, I have found
Jennings did threaten to close the shop. Other evidence
forms the predicate for the subject allegation. Thus, the
General Counsel's brief notes the following elements in
support of the alleged threat of loss of employment:
(1) Jennings told the employees if they did not like
their jobs they could quit. I have already found this
statement contains an implied threat of discharge.
(2) Jennings' threat to close the plant if the Union
were selected as the employees' bargaining representa-
tive. That remark is discussed above and also will be
found below to constitute a separate violation of Section
8(a)(l).
(3) Jennings terminated the May 14 meeting by saying
that if Respondent went union some employees might be
laid off. There is no evidence that Jennings proffered any
factual basis for such a remark. Without such potential
justification, it is unlawful to tell employees they might
be laid off in the event their organizing efforts are suc-
cessful. Ohio Valley Graphic Art. Inc., 234 NLRB 493
(1978); Civic Center Sports, Inc., 206 NLRB 428 (1973).
30
ROMA BAKING COMPANY
Respondent, in complaint paragraph 5(e) is charged
with having violated Section 8(a)(1) by threatening em-
ployees with forced acceptance of unwanted changes in
their working conditions because of their union activities.
The basis of this allegation is Jennings' statement, on
May 14, that the employees would have to go to bakers'
school if the Union came in. I have found Jennings made
such a statement.
The record contains no direct evidence to establish
such school attendance was "unwanted" by the employ-
ees. However, the surrounding circumstances create such
an implication. Thus, the record reflects the absence of a
preexisting policy by which Respondent sent employees
to the school. In this backdrop, Jennings' reference to
the school reasonably creates an impression that more
stringent qualifications would be imposed for job reten-
tion.
A supervisor's similar announcement was held unlaw-
ful in Whiting Corporation, 188 NLRB 500, 505 (1971). In
Whiting, contrary to the employer's former liberal testing
policy, a requirement that welding tests would be admin-
istered every 6 months if a union won an election was
held to violate Section 8(a)(1). There, as herein, the
statement was made in an organizational framework. I
conclude this comment of Jennings reasonably tends to
impart a threat of reprisal. As such, it is proscribed by
Section 8(a)(l).
It is alleged, in complaint paragraph 5(f), that Re-
spondent threatened to discharge employees if they suc-
ceeded in obtaining union representation. This allegation
emanates from Jennings' discussion with day-shift em-
ployees on or about May 16. As noted, Jennings told the
employees some of them would be laid off if Respondent
was going to pay out money for bakers' school.
No extended discussion or analysis is necessary to re-
solve this allegation. Clearly, a threat of layoff condition-
ed upon the results of organizational efforts is violative
of Section 8(a)(1). Accordingly, I find there is merit to
this allegation.
Finally, Respondent is alleged to have violated Section
8(a)(1), in complaint paragraph 5(g), when Jennings told
the employees if the Union came in the doors could be
closed. There is no hidden meaning to this remark. It di-
rectly attributes the potential for closing the plant to the
results of the employees' exercise of Section 7 rights. Re-
spondent argues there is a distinction between Jennings'
use of the word could, instead of would, when he referred
to closing the plant. Respondent suggests a failure of
proof in that the complaint alleges Jennings used the
word would. In other circumstances, this distinction
might be valid. Herein, however, I disagree with Re-
spondent.
It is true that generally an employer freely may com-
municate to his employees his general views. "He may
even make a prediction as to the precise effects he be-
lieves unionization will have on his company." N.L.R.B.
v. Gissel Packing Co., Inc., 395 U.S. 575, 616 (1969). Such
predictions must be phrased carefully and based on ob-
jective facts "to convey an employer's belief as to de-
monstrably probable consequences beyond his control or
to convey a management decision to close, already
made."
Thus, an employer may not disguise in terms of eco-
nomic predictions a veiled threat of what it will do of its
own volition. It is not contended that Respondent had
decided to close at any time prior to Jennings' comment.
It is not asserted that Jennings referred to such economic
consequences as made his prediction probable. Thus,
even if Respondent's distinction were viable, the record
is not susceptible to a conclusion that Jennings' statement
concerning plant closing constitutes a permissible predic-
tion.
"It is a clear violation of the Act for an employer to
threaten to close its place of business if its employees
choose representation by a union." N.L.R.B. v. Buckhorn
Hazard Coal Corporation, 472 F.2d 53, 55 (6th Cir. 1973).
"Such a reference to a threatened closure has uniformly
been considered the type of interference with an organiz-
ing campaign whose effects are severe and linger on
after they had been made." Axton Candy and Tobacco
Company, 241 NLRB 1034, 1035 (1979).
Upon the foregoing, I find that, on or about May 16,
Respondent unlawfully threatened employees with plant
closure if they selected the Union to represent them.
2. The layoffs
Resolution of the May 15 layoffs of Bantle, Pashia,
and John Hoskins is governed by the following legal
principles.
The General Counsel must prove certain elements to
establish his prima facie case of discrimination. Those ele-
ments are (a) that the affected employee had engaged in
activity protected by the Act, (b) the employer had
knowledge of that activity, (c) the adverse personnel
action imposed upon the employee was motivated by
union animus, and (d) that the discipline had the effect of
encouraging or discouraging membership in a labor orga-
nization. The General Counsel has the burden of proving
his case by a preponderance of the evidence. Gonic Man-
ufacturing Co., Div. of Hampshire Woolen Co., 141 NLRB
201, 209 (1963).
Respondent admits the layoffs. In defense, it contends
the layoffs were necessitated by compliance with state
law. It is uncontradicted that the three laid-off employ-
ees were under the legal age established for operation of
power equipment. It is unquestioned that each of them
actually engaged in such operations. Thus. this case pre-
sents the classic dilemma of discerning Respondent's mo-
tivation for dismissing employees where there is, on the
one hand, just cause for the termination; and, on the
other, an abundance of union animus. Such hostility is
demonstrated by the variety of independent 8(a)(l) con-
duct which I have found violated the Act.
Recently, in Wright Line, a Division of Wright Line,
Inc., 251 NLRB 1083 (1980), the Board enunciated a
two-part causation test applicable to cases such as
present herein. The Board followed the test of causality
applied by the Supreme Court in Mt. Healthy City School
District Board of Education v. Doyle, 429 U.S. 274 (1977).
Initially, the General Counsel bears the burden of
making a prima facie showing that the protected conduct
of the affected employees was a motivating or substantial
factor in the employer's decision to discipline (or in this
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case to lay off) an employee. Once this is accomplished,
the burden of proof shifts to the employer to demon-
strate by a preponderance of the evidence it would have
reached the same decision even in the absence of the
protected conduct. Wright Line, Inc., supra.
There is ample evidence to show the three laid-off em-
ployees were engaged in protected activity. They signed
authorization cards and were engaged in discussion of
the efficacy of unionization.
As to employer knowledge, the dialogue between Jen-
nings and the employees at the May 14 meeting shows
Jennings was fully aware of the activity and the senti-
ments of the employees. Moreover, Jennings evinced Re-
spondent's hostility toward unionization by making the
various unlawful remarks to the employees during that
meeting.
Coincidence in protected activity and adverse person-
nel actions against employees is a strong factor support-
ing an inference of unlawful motivation. McGraw-Edison
Company v. N.L.R.B., 419 F.2d 67 (8th Cir. 1969);
N.L.R.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d
239, 245 (8th Cir. 1969), cert. denied 396 U.S. 823. The
evidence shows the three subject employees were laid
off on the day following Jennings' antiunion discussion
with them. During the May 14 discussion, Jennings did
not allude to their age. It was only after he consulted
with Imo and Respondent's attorney that Jennings an-
nounced the employees' age was a factor. The precipi-
tous intrusion of this element supports the General Coun-
sel's cause.
The age factor takes on further significance. Evidence,
not discussed heretofore, shows Respondent was not
concerned with the age of its employees until their overt
union activity. Thus, John Hoskins testified without con-
tradiction that he had been frequently warned in the past
to be careful when working around the power equipment
because he was too young to be working with them. I
consider the apparent delay by Respondent to comply
with the state labor law supports an inference that its
hurried attempt to comply was motivated by unlawful
considerations.
Further, I conclude the layoffs reasonably have the
proscribed effect of discouraging employee union activi-
ty. Those layoffs, having occurred only I day after Jen-
nings spoke to the employees and at the height of their
union activity, surely signaled to other employees the po-
tential risks of freely expressing union sympathies. This is
precisely the inhibiting effect against which the Act is
designed to afford protection.
Upon the foregoing analysis, I conclude the General
Counsel has established the existence of the requisite
prima facie case of discriminatory layoffs imposed upon
Bantle, Pashia, and John Hoskins.
I turn now to the analysis of Respondent's defense to
the Bantle, Pashia, and John Hoskins layoffs. For Re-
spondent to prevail, the evidence must show that these
three employees would have been laid off even if they
had engaged in no protected activity. I conclude the de-
fense evidence does not sufficiently prove Respondent's
contentions.
Respondent's reliance upon child labor laws is only su-
perficially appealing. I conclude, however, that defense
is a contrivance to provide integrity to the defense. I am
persuaded the following factors negate the validity of
Respondent's claims:
(a) Respondent delayed its adherence to the local labor
laws. John Hoskins' uncontroverted testimony regarding
warnings to be careful while engaged in machine oper-
ations reveals Respondent's awareness of the law's age
limits for such operations months before the Union's
advent. No evidence was adduced to show Respondent
considered transferring the underage employees from
tasks which entailed operation of power equipment or
laying off any of those, or indeed other, employees
before the Union came on the scene.
(b) The record shows Bantle, Pashia, and John Hos-
kins were treated in a disparate manner. Sullivan was
also underage. She worked on the day shift. She had not
participated in the May 14 discussion among Jennings
and the night-shift employees. Sullivan was not laid off.
Instead, Sullivan was transferred to another job. That
transfer occurred some days after the alleged discrimina-
tory layoffs.
I consider the failure to lay off Sullivan contemporane-
ously with the three alleged discriminatees materially de-
tracts from Respondent's assertions in its defense. If Re-
spondent, as it claims, found the layoffs were necessary
to comply with the labor laws, no proof has been ad-
duced to justify the failure to take that action as to Sulli-
van, who also had engaged in some operation of power
equipment.
That Sullivan was later transferred to other work does
not aid Respondent. As noted, the three alleged discri-
minatees were told to check back to see if there would
be other positions they could fill. The record as a whole,
especially the presence of the conduct found violative of
Section 8(a)(l), impels only little reliance upon the sug-
gestion that alternative job possibilities strengthens Re-
spondent's position. Most impressive is the very different
ways of Respondent's handling those alternative posi-
tions between Sullivan, on the one hand, and Bantle,
Pashia, and John Hoskins on the other. Respondent's ac-
tivity tends to underscore the alleged discriminatory
character of the layoffs. Sullivan is distinguishable from
the alleged discriminatees by virtue of her absence from
overt participation in protected activity. In that posture,
Sullivan was retained at work. Sullivan was not subject-
ed to layoff before being shifted to another position. In
contrast, the three employees whose union sympathies
were known to Respondent were precipitously laid off.
It was only after they suffered their layoffs that alterna-
tive work was found for them. The time elapsed between
the layoffs and Sullivan's transfer is irrelevant.
It is logical to presume if Respondent had not been
motivated by a desire to discourage union activity, it
would have treated Bantle, Pashia, and John Hoskins as
it did Sullivan. The failure to do so persuades me there is
little probative value to Respondent's reliance on the ul-
timate placement of Bantle and Pashia into different jobs
from which they had been laid off.
(c) The layoffs coincided with overt union activity. As
already noted, Respondent was well aware that underage
employees engaged in operations of power equipment 4
32
ROMA BAKING COMPANY
months before the layoffs. The delay in rectifying this
situation is unexplained. Instead, the decision to lay off
emanated directly from the conversation by which Jen-
nings reported the union activity to Imo and Respondent
obtained legal advice.
It is true there is no direct evidence that Imo and Jen-
nings were told the existence of union activity should
precipitate layoffs or other personnel actions. Neverthe-
less, it is equally true there is no evidence that any lay-
offs had been contemplated before Imo was notified of
that union activity. The logical conclusion is that Re-
spondent grasped upon the presence of a valid reason to
lay off as a response and reaction to the union activity.
Thereafter, Respondent's action was swift. The layoffs
occurred the very next workday.
Respondent argues that the record shows no disparate
treatment toward Bantle, Pashia, and John Hoskins. In
support, Respondent observes Sullivan, too, signed a
union authorization card. She was not laid off. Reliance
on these facts is misplaced. There is no evidence Re-
spondent knew Sullivan had signed a card during times
material to this issue. Conversely, the three laid-off em-
ployees' sympathies were made known to Respondent
during the May 14 meeting Jennings had with them.
(d) The background evidence reflects Respondent's
hostility toward unionization. Thus, about a year before
the instant hearing, Imo said he would get rid of whoev-
er talked about a strike. Several months later, Imo cau-
tioned he did not wish to hear strike talk and threatened
to "get rid of the people" if such discussion came to his
attention.
Upon all the foregoing, I conclude Respondent has not
sustained its burden of proving the layoffs of Bantle,
Pashia, and John Hoskins would have occurred absent
their union activity. Accordingly, I find their layoffs dis-
criminatory in violation of Section 8(a)(3) and (1) of the
Act.
3. Supervisor Hoskins' discharge
The General Counsel contends Supervisor Hoskins'
discharge was "an integral part of a pattern of conduct
aimed at penalizing employees for their union activities
and ridding the plant of union adherents."
Respondent asserts this discharge was imposed because
Supervisor Hoskins failed to report for work without
prior notice. Respondent admits Supervisor Hoskins was
the initiator of the union activity and its most vigorous
proponent. Nonetheless, Respondent argues the record
does not establish the requisite pattern of penalizing em-
ployees for union activities. See DR W Corporation, d/b/a
Brothers Three Cabinets, 248 NLRB 828 (1980).
Supervisor Hoskins became ill on May 24. On May 26,
his wife telephoned Respondent to report his absence.
Supervisor Hoskins did not report for work that week.
However, after going to his doctor on May 28, Supervi-
sor Hoskins visited Respondent's premises. There, he
orally advised Jennings he would be absent from work
the balance of that week, through May 30. Jennings told
Supervisor Hoskins to let him know when be felt better.
Even assuming the existence of a preexisting call-in
policy (which I have noted the record does not reveal)
applicable to Supervisor Hoskins, the above events re-
flect Respondent's approval of, or at least acquiescence
in, the extended absence. Thus, in view of Respondent's
admitted knowledge of Supervisor Hoskins' union activi-
ty and its other unlawful conduct. I conclude the Gener-
al Counsel has established a prima facie case that the dis-
charge was unlawful and had undertones of hostility
toward Respondent's employees engaging in protected
activity.
I also conclude Respondent's approval of Supervisor
Hoskins' absence makes material inroads upon its burden
of proving Supervisor Hoskins would have been dis-
charged for the claimed infraction of attendance rules.
On the whole, I find the preponderance of evidence
shows Supervisor Hoskins' discharge was grounded upon
his union activity and a desire to interfere with the Sec-
tion 7 rights of Respondent's employees.
Robert Hoskins' supervisory status is admitted. Thus,
it must be determined whether the instant circumstances
warrant extension of the Act's protection to him. Super-
visors generally are not accorded the protection of the
Act. L & S Enterprises. Inc.. 245 NLRB 1123 (1979);
Nevis Industries, Inc.., d/b/a Fresno Townhouse, 246
NLRB 1053 (1979); Stop and Go Foods, Inc., 246 NLRB
1076 (1979).
Nonetheless, the Board and courts have held that dis-
crimination directed against a supervisor does comprise a
violation of the Act where such conduct infringes upon
the statutory rights of employees. Talladega Cotton Fac-
tory, 106 NLRB 295 (1953), enfd. 213 F.2d 209 (5th Cir.
1954). This protection applies where such discrimination
is an integral part of an employer's scheme of striking at
its employees, through a supervisor's discharge, for their
engaging in protected activities or to discourage them
from engaging in such activities. DR W Corporation,
supra; Donelson Packing Co.. Inc. and Riegel Provision
Company, 220 NLRB 1043 (1975): F4ADA of Oklahoma,
Inc., 216 NLRB 750 (1975); Fairview Nursing Home, 202
NLRB 318 (1973).
If there is evidence sufficient to warrant a finding that
the "employer's conduct, as a whole, including the
action taken against its supervisors, was motivated by a
desire to discourage union activities among its employees
in general . . " (DRW Corporation, supra, 248 NLRB
at 829) the Board has found there exists a pattern of con-
duct directed to coercing employees in the exercise of
their Section 7 rights. The underlying rationale for such
a conclusion was expressed by a Board majority thus:
The Employer has "intentionally created an atmosphere
of coercion in which employees cannot be expected to
perceive the distinction between the employer's right to
prohibit union activity among supervisors and their right
to engage freely in such activity themselves." (248
NLRB at 829.)
Where there is no evidence of a tainted motive in dis-
charging a supervisor, that conduct will not be unlawful
if its tendency to interfere with employee rights is "com-
paratively slight, and the employer's conduct is reason-
ably adapted to achieve legitimate ends." N.L.R.B. v.
John Brown, et al.. d/b/a Brown Food Store. et al., 380
U.S. 278, 287-288 (1965). See also Texas Gulf Sulphur
Company, 163 NLRB 88 (1967); National Freight, Inc.,
33
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
154 NLRB 621 (1965); Sibilio's Golden Grill, Inc., 227
NLRB 1688 (1977).
Respondent's asserted reason for the discharge of Su-
pervisor Hoskins is patently false. There are two bases
for this conclusion. First, Respondent claims Supervisor
Hoskirns was discharged because he absented himself
without calling in. However, the credited evidence re-
futes that position. Thus, Jennings was orally advised on
May 28 by Hoskins of the latter's illness and anticipated
absence. Jennings acknowledged he understood and ap-
proved it by saying, "O.K. fine, let me know when
you're feeling better."
Second, the evidence reflects Respondent varied its
reasons for the discharge. Such "shifting" reasons are
evidence of discrimination. Skaggs Pay Less Drug Store,
188 NLRB 784, 786 (1971); Georgia Rug Mill, 131 NLRB
1304, 1305-07 (1961). Respondent's defense that the dis-
charge was assertedly as discipline for a breach of at-
tendance rules is different from the reason given Supervi-
sor Hoskins by Jennings. Thus, on May 30, Jennings told
Supervisor Hoskins that he could no longer work for Re-
spondent because Hoskins "quit." I consider these con-
tradictory reasons seriously detract from Respondent's
claim of legitimacy to its actions.
Support for a finding of unlawful conduct "is aug-
mented [when] the explanation of the [employer's con-
duct] offered by the Respondent [does] not stand up
under scrutiny." N.L.R.B. v. Bird Machine Company, 161
F.2d 589, 592 (Ist Cir. 1947).
The record contains the following evidence relevant to
a determination whether a pattern of conduct exists
herein which was designed to coerce employees in the
exercise of their Section 7 rights. That evidence follows.
(a) The "background" evidence discussed above re-
flects Respondent harbored animosity against union ac-
tivity.
(b) Respondent immediately responded to the overt
union activity by engaging in the conduct found herein
to constitute independent violations of Section 8(a)(l) of
the Act.
(c) Respondent exhibited hostility and antipathy
toward Supervisor Hoskins' role in union activities.
Thus, Imo, in effect, told Supervisor Hoskins the latter's
union activity was reprehensible when Imo said he be-
lieved Supervisor Hoskins was "crazy" to pursue his va-
cation request after all the "trouble" that Supervisor
Hoskins started. Also, Jennings testified to Respondent's
hostility against Supervisor Hoskins. Thus, Jennings ad-
mitted he asked Supervisor Hoskins why he started the
union activity and rhetorically asked Supervisor Hoskins
whether he (Supervisor Hoskins) did not think Imo was
already angry over Supervisor Hoskins' conduct.
(d) Virtually every employee knew of Supervisor Hos-
kins' role in the organizational efforts. The record shows
Respondent's day and night shifts consisted of approxi-
mately 13 employees. Supervisor Hoskins obtained signa-
tures of 11 of them on authorization cards. In Jennings'
presence, Supervisor Hoskins was vocal on behalf of the
Union during the May 14 meeting with the night-shift
employees. These circumstances provide a ready source
for setting an example for the employees. Surely, any
action taken against Supervisor Hoskins would come to
the attention of all the employees.
Where, as here, the asserted reasons for Supervisor
Hoskins' discharge are an apparent fabrication designed
to exonerate Respondent from its unlawful conduct, ele-
ments (a)-(d), above, considered with the record as a
whole, are impressive reflections of a continuing pattern
of conduct designed to react against the employees'
union activities and coerce them from further pursuit.
Supervisor Hoskins' discharge occurred 2 full weeks
after the apex of union activity, the 8(a)(3) layoffs, and
the independent 8(a)(1) conduct. Also, the discharge fol-
lowed by I week Respondent's offers to return Bantle
and Pashia to work at different jobs. Conceivable, this
chronology tends to favor Respondent. However, I con-
clude they bear little impact upon the presence of an un-
lawful pattern of conduct.
A realistic assessment of the facts indicates the laid-off
employees had been already impressed by the lesson Re-
spondent desired to convey. The damage was done. Al-
though Respondent somewhat recanted, the coercive
effect of the layoffs and separate 8(a)(1) conduct lin-
gered. No evidence was adduced to show Supervisor
Hoskins provided Respondent with any basis whatsoever
for discipline until he became ill. Moreover, the illness
first became known virtually contemporaneously with
the return of Bantle and Pashia; and, at first, Supervisor
Hoskins' wife telephoned Respondent to advise of his ini-
tial absence. Thus, there is no real hiatus in the sequence
of events which I consider combine to form an unlawful
pattern of conduct.
Arguably, DR W Corporation is distinguishable from
the case at bar. In DR W, the employer announced to the
employees that its supervisor was discharged because he
had been a union "instigator." Herein, there is no evi-
dence that Respondent expressly said anything to its em-
ployees which connected Supervisor Hoskins' discharge
with his union activities. I consider this difference not
material. Indeed, the fact that Respondent informs em-
ployees that a supervisor is laid off or discharged be-
cause of his union activities is irrelevant to the issue of
that supervisor's termination. Cf. Texas Gulf Sulphur
Company, supra.
It is clear the Board's finding of violation regarding
the supervisor's discharge was not principally based, in
DR W, on the announcement to employees. The Board's
incisive analysis in DR W indicates its holding was based
on the existence of other unlawful conduct which pre-
sented an unlawful atmosphere of coercion. The series of
events effectively created an unlawful pattern of con-
duct.
Examples to employees of what might happen to them
if they persist in the exercise of statutory rights need not
be explicit. Such examples may be derived by implication
from surrounding circumstances. In the present case, Re-
spondent has not sustained its burden of showing a legiti-
mate reason for discharging Supervisor Hoskins. In such
circumstances, it is reasonable to conclude, as I have
done, the discharge is part of Respondent's program of
coercion of its employees. The unlawful effect of such a
discharge, in this context, is inherent in the conduct. It is
34
ROMA BAKING COMPANY
a silent, yet eloquent, sign to the employees that there is
a potential peril involved in pursuing their statutory
rights.
Upon all the foregoing, I find that Supervisor Hoskins'
discharge on May 30 constitutes a violation of Section
8(aXI) of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
I. Roma Baking Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Teamsters Local Union No. 688 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent unlawfully interrogated employees re-
garding their union sentiments on May 14, 1980, in viola-
tion of Section 8(a)(1) of the Act.
4. Respondent unlawfully expressed to employees the
futility of union representation on May 14, 1980, in viola-
tion of Section 8(a)(1) of the Act.
5. Respondent interfered with, restrained, and coerced
its employees in violation of Section 8(a)(1) of the Act
on May 14, 1980, when it told them they could quit if
they were not happy.
6. Respondent unlawfully threatened employees in vio-
lation of Section 8(a)(1) of the Act when, on May 14,
1980, it threatened them with the loss of employment by
telling them they could be laid off if Respondent went
union.
7. Respondent interfered with, restrained, and coerced
its employees in violation of Section 8(a)(1) of the Act
on May 14, 1980, by threatening them with reprisals
when it told them they would have to go to bakers'
school.
8. Respondent, on May 16, 1980, interfered with, re-
strained, and coerced its employees in violation of Sec-
tion 8(a)(1) of the Act by threatening to lay off employ-
ees.
9. Respondent, on May 16, 1980, interfered with, re-
strained, and coerced its employees in violation of Sec-
tion 8(a)(I) of the Act when it threatened to close its
plant if the Union came in.
10. Respondent discriminated against its employees in
violation of Section 8(a)(3) and (1) of the Act by laying
off its employees Michael Bantle, John Hoskins, and
Joseph Pashia on May 15, 1980.
11. Respondent interfered with, restrained, and co-
erced its employees in violation of Section 8(a)(1) of the
Act by discharging Supervisor Robert Hoskins on May
30, 1980.
12. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(3)
and (1) of the Act in a variety of ways, I shall recom-
mend it cease and desist from engaging in such conduct
in the future and affirmatively take such action as will
dissipate the effect of its unfair labor practices.
Because the layoffs of Bantle, John Hoskins, and
Pashia have been found unlawful, the Order shall require
Respondent to offer each of them fill and immediate re-
instatement to his former or substantially equivalent posi-
tion of employment, without prejudice to the seniority or
other rights and privileges possessed by each; and to
make each of them whole for any loss of earnings he
may have suffered as a result of the discrimination by
payment of a sum equal to that which each would have
earned, absent the discrimination, to the date of Re-
spondent's offer of reinstatement. Loss of earnings shall
be computed as prescribed in F. W. Woolworth Company,
90 NLRB 289 (1950). plus interest as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and
Florida Steel Corporation, 231 NLRB 651 (1977). The fact
that Bantle, John Hoskins. or Pashia might still be under-
age for machine operations at the time the offers of rein-
statement required hereunder are made is not an impedi-
ment to the recommended Order. Satisfactory alternate
positions should be offered to them. Southern Tours, Inc.,
and Gulf Coast Motor Lines. Inc., 167 NLRB 363, 380
(1967). In any event, the nature of the job offered is a
matter for the compliance stage of these proceedings.
Sure-Tan, Inc. and Surak Leather Co., 234 NLRB 1187
(1978).
Inasmuch as I have found Supervisor Hoskins' May 30
discharge was in violation of Section 8(a)(1) of the Act,
the Order shall require Respondent to offer him full and
immediate reinstatement to his former or substantially
equivalent job, without prejudice to his seniority or
other rights and privileges (Production Stamping, Inc.,
239 NLRB 1183. 1184, 1193-94 (1979); Barnes and NVoble
Bookstores. Inc., 233 NLRB 1326 (1977)) and to make
him whole for any loss of earnings he may have suffered
as a result of the discrimination (DR W Corporation,
supra, the remedy section) by payment of a sum equal to
that which he would have earned, absent the unlawful
activity to the date of Respondent's offer of reinstate-
ment. Loss of earnings shall be paid with interest, and
computed as prescribed in F W. Woolworth Company,
Isis Plumbing & Heating Co., and Florida Steel Corpora-
tion, supra.
The General Counsel has requested issuance of a
broad remedial order "because the violations found
herein come in the context of a Union organizing cam-
paign, and therefore go to the very heart of the Act."
The Board, in Hickmott Foods, Inc., 242 NLRB 1357
(1979), stated, "where ... it can be further shown that a
Respondent, either previous to or concurrently with (the
misconduct) engaged in other severe conduct . . . a
broader order may be warranted. Thus, repeat offenders
and egregious violators of the Act would be subject to
the traditional Board remedy for conduct which requires
broad injunctive relief."
35
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No evidence was presented herein to reflect that Re-
spondent has a proclivity to violate the Act. I have
found no authority subsequent to Hickmott Foods, nor
has any been cited, to indicate that the mere existence of
an organizational campaign is sufficient to warrant a
broad proscriptive order. Accordingly, the General
Counsel's request is denied. Instead, the Order herein
shall require Respondent to refrain from, in any like or
related manner, interfering with, restraining, and coerc-
ing its employees in the exercise of their Section 7 rights.
[Recommended Order omitted from publication.]
36