Royal Baking Co., Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1969

177 N.L.R.B. 129 (N.L.R.B. 1969)

ROYAL BAKING COMPANY, INC.
Royal Baking Company, Inc. and Local No. 249,
American Bakery and Confectionery Workers
International Union , AFL-CIO. Case 12-CA-4195
June 27, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On April 16, 1969, Trial Examiner James M.
Fitzpatrick issued his Decision in the above-entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner ' s Decision and a brief in support of its
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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 , brief, and the
entire record in this case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the Board hereby adopts
as its Order the Order recommended by the Trial
Examiner, and orders that the Respondent, Royal
Baking Company , Inc., its officers , agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner 's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK , Trial Examiner: This
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (the Act), was tried before me
at Miami , Florida, December 3 and 4 , 1968, on a
complaint issued October 23, 1968 , pursuant to an initial
charge filed April 15, 1968, and amended October 10,
1968, and Respondent' s answer to the complaint. The
issues are whether Royal Baking Company, Inc.
(Respondent or Company) fired employee Robert E.
Burke because of union activity in violation of Section
8(a)(3) of the Act, and interrogated employees regarding
union sympathies and activities and solicited employees to
join a rival union in violation of Section 8 (a)(1) of the
Act. A preliminary issue is whether one Paul Rathbone,
alleged to have engaged in some of the solicitation, was a
129
supervisor whose conduct is attributable to Respondent.
Upon the entire record , including my observation of the
witnesses and consideration of the briefs of General
Counsel and Respondent , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATIONS INVOLVED
The Company, a Florida corporation, which operates a
bakery at Miami, Florida, where it engages in the baking
and wholesale distribution of bread, cake , and related
products, and where it annually receives goods and
materials valued at over $50,000 from points outside the
State of Florida, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. The
charges herein were filed by Local No. 249, American
Bakery and Confectionery Workers International Union,
AFL-CIO (Bakery Union). Also involved is General Sales
Drivers and Allied Employees Union, Local No. 198,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Teamsters). I
find Bakery Union and Teamsters to be labor
organizations within the meaning of Section 2(5) of the
Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts - The Production Departments
At times material to the complaint the Company
employed a total of about 240 employees, of which about
105 were engaged in the production of baked goods. The
baked goods produced were of two types , sweet goods and
nonsweet goods . Nonsweet goods included bread and
bread-like products such as rolls . Sweet goods included
cake and in general other baked products using large
amounts of sugar and were produced in the sweet good
department.
The Company contends that bread and rolls were
produced in one department . The General Counsel
contends that rolls were produced in a department
separate from the bread department . In any event it is
clear that the nonsweet goods including both bread and
rolls were under the overall supervision of Production
Manager John Hatcher and Assistant Production
Manager Vernon Parrish . Whether or not rolls and bread
were formally in separate departments , it at least appears
that there was some physical and organizational
separation between the production of the two items.
Although the production processes for bread and rolls
were substantially similar, different machines were used
for each . The facilities and personnel for each were
physically separated by a wall-like partition . Different
employees worked on the bread producing machinery than
worked on the roll producing machinery.
B. Supervisory Status of Paul Rathbone
The Company employed from 35 to 38 employees in
roll production , divided into two approximately equal
shifts . According to the Company these were supervised
only by Production Manager Hatcher and Assistant
Production Manager Parrish . The General Counsel
alleges, and Respondent denies, that one Paul Rathbone
also exercised supervisory authority as to employees in
roll production.
177 NLRB No. 23
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undisputed that , among other things , Rathbone's
duties in roll production included : frequent "setting up"
the machinery to operate in accordance with daily
production schedules ; training and instructing new
employees , a frequent requirement because of rapid
turnover in employees ; and, on occasion , in the event of
absenteeism and the unavailability of another substitute,
operation of any of the machines . Respondent asserts he
was at most a leadman with only routine authority.
General Counsel offered evidence that he exercised
additional supervisory authority . Rathbone himself did not
testify . About 3 or 4 months prior to the hearing, and
subsequent to the events covered in the complaint, he had
left the Company ' s employ.
In April 1968 , according to the testimony of Production
Manager Hatcher, only he and his assistant Parrish
exercised supervision over the production of bread and
rolls, there being no supervisors subordinate to Parrish.
All other employees were either rank -and-file employees
or leadmen with no authority to hire , fire, lay off, or
discipline or to make recommendations for layoffs or pay
raises . Specifically with regard to Rathbone, he recalled
no instance when Rathbone complained about the work of
other employees. Rathbone, he testified , spent 80 to 90
percent of his time working with about five other persons
in setting up machines to produce the various types and
quantities of rolls called for on the daily production
schedule furnished by Hatcher , and the balance of his time
training new employees.
Subsequent to the time covered in the complaint and
about 6 or 7 weeks before Rathbone left the Company,
one Francis Fitzgerald , who since January 1968 had been
a leadman in bread production, was formally named
foreman over both bread and roll production subordinate
to Parrish and Hatcher . It does not appear that he
formally replaced anyone who previously had the title of
foreman . Fitzgerald testified that thereafter he was
Rathbone' s immediate supervisor , and when Rathbone left
he assumed certain of his duties involving the training of
new employees.
It is clear that in April 1968 the only formally
designated supervisors over the employees on the two
shifts in roll production were Hatcher who supervised the
entire plant and Parrish who supervised production of
both sweet and nonsweet goods . If in reality this was all
the supervision that existed , it was indeed thin. The
situation was a natural one, then , particularly in view of
the substantial turnover in employees, for older,
experienced employees such as Rathbone to exercise some
degree of supervision, even though informally. I am
therefore unable to conclude from the testimony of
Hatcher and Fitzgerald that Hatcher and Parrish (who did
not testify) were the only persons who exercised any
supervisory authority over employees in roll production.
From the testimony of a number of rank-and-file
employees in roll production it is obvious that they at
least considered Rathbone their foreman . Thus Wilbur
Alard , a dough mixer , testified that Rathbone was his
foreman and , among other things , gave him orders,
supervised the work , instructed him in the operation of his
machine, and told him when he could take his breaks.
Charlie Woodard , an oven man , in his testimony also
described him as the foreman of the day shift in the roll
department who directed other employees as to what to do
and what not to do, what position to take, and when to
take breaks, and who designated a relief man when they
took breaks . According to Woodard , he also excused
employees for illness , and on occasion meted out
punishment by giving a day off without pay. Francis J.
Twamley, who operated a pan-o-mat machine, also
confirmed that Rathbone disciplined employees on the
spot by sending them home early. He also stated that he
assigned work to employees according to their ability to
perform and that , when employees were absent, he
assigned others to substitute for the absent employee or
filled in himself. Twamley also related that, in a
conversation with Hatcher when he was first assigned to
roll production in late 1966, he was told that he would be
working for Rathbone who would be his foreman , assign
him work , and direct him what to do. Hatcher could not
recall the conversation but admitted that, ". . . something
like that could have gone on, yes, because frequently I do
this." Robert E. Burke , a dough mixer and the
discriminatee named in the complaint , also testified that
Rathbone told people what to do , assigned them work,
and disciplined employees by sending them home.
There is no dispute about the fact that Rathbone did
not punch a timeclock as did rank -and-file employees,
that he received a salary rather than hourly wages, and
that he kept his clothes in a locker located in a locked
room for which he had a key, apart from the location of
the lockers of ordinary employees.
Considering all the evidence regarding Rathbone's
status , I credit the testimony of employees Alard,
Woodard, Twamley, and Burke as to particular ways in
which he exercised supervisory authority. I do not credit
the testimony of Hatcher or Fitzgerald to the effect that
supervision was exercised only by Hatcher and Parrish. As
noted hereinafter , I did not find Hatcher to be a
believable witness . Fitzgerald during the pertinent time
period was in bread production and was not present in roll
production to the same extent as the ordinary roll
employees who testified. Parrish did not testify. I find that
in roll production Rathbone assigned work to other
employees on the basis of ability to perform, directed
them as to what to do and what not to do, assigned
substitutes in case of absences and relief men during
breaktime , and directed employees when to take breaks.
The exercise of these supervisory duties was consistent
with his function of instructing new employees in the
proper performance of their work. See Henry Colder
Company, 163 NLRB 105. It is also consistent with what
I infer , from the size of this plant employing 105
production workers and with 240 employees in all, to have
been the necessary and frequent absence of Hatcher and
Parrish from the site of roll production. See The Bama
Company, 145 NLRB 1141. In so finding I am not
unmindful that a well-trained rank -and-file employee
operating from a daily production schedule provided by
Hatcher may have required a minimum of supervision.
Nevertheless, on the record before me I find Rathbone did
exercise supervision at least to the extent above indicated
and in so doing he did lay off, assign , discipline, and
responsibly direct employees in a manner requiring the use
of independent judgment . The Board has frequently held
that the exercise of such functions indicates supervisory
status and concomitant employer responsibility for such
supervisor's conduct toward other employees . Florence
Printing Co., 145 NLRB 141; Ertel Manufacturing Corp.,
147 NLRB 312; J. P. Stevens and Co., Inc., 163 NLRB
217; Bama Co., supra; Henry Colder Company, supra.
Accordingly, I reject Respondent ' s defense that it bears no
legal responsibility for Rathbone ' s conduct.
During the hearing at the request of Respondent, I took
judicial notice of the Decision and Direction of Election
issued December 2, 1968 , in Case 12-RC-3070 involving
ROYAL BAKING COMPANY, INC.
the Respondent, the Teamsters , and the Bakery Union.
Respondent argues that the findings in that decision
foreclose a conclusion here that Paul Rathbone was a
supervisor. That decision refers to only two production
departments , sweet goods and bread, making no mention
of any roll department. While no leadmen are mentioned
by name , the decision indicates employment of eight
leadmen in the bread department , four in sweet goods,
and three in shipping , and finds all of them
nonsupervisors. On the other hand, the General Counsel
here emphasizes that Rathbone was not mentioned by
name in that decision , that the findings there were based
upon a different record than the present one, and in any
event referred to circumstances existing at the time of the
representation case hearing on November 12, 1968, a time
later than the period alleged in the complaint herein to be
material .' Finally, the General Counsel argues that the
Decision and Direction of Election in Case 12-RC-3070 is
not binding upon the Trial Examiner in the present unfair
labor practice proceeding.
The record before me contains evidence from company
witnesses that roll production made up part of the bread
department and was not a separate department. On the
other hand, witnesses for the General Counsel who were
rank -and-file employees in roll production testified that it
was a separate department . I do not view these two lines
of evidence as being necessarily contradictory . It may well
be that on paper the Company had only one department
for nonsweet goods. But I am convinced from the
testimony of rank-and -file employees that they considered
roll production where they worked separate from bread
production in significant regards, and that to them it was
a separate department . It seems to me that it doesn't
make any difference to the disposition of this case whether
technically on the organization chart of the Company roll
production was or was not a department separate from
bread production. The supervisory status of Paul
Rathbone does not depend upon the existence of a
separate roll department. I cannot see therefore how the
finding in the Decision and Direction of Election based on
another record in Case 12-RC-3070 to the effect that there
was a single bread department has any persuasive value in
the present matter.
The decision regarding leadmen on the other hand lends
support to the Company's position that Paul Rathbone
was not a supervisor . Of course none of the leadmen were
named in the decision , and the findings there, as pointed
out by the General Counsel, refer to a point of time later
than the events covered by the complaint before me. In
any case , the Decision and Direction of Election in Case
12-RC-3070 is not binding upon me in this proceeding.
Southern Airways Company, 124 NLRB 749, 750;
Leonard Niederriter Company, Inc., 130 NLRB 113, 115,
fn. 2. And since the record before me contains specific
evidence as to what Rathbone did and did not do, I base
my findings as to his supervisory status upon the evidence
in this record.
On December 13, 1968, subsequent to the close of the hearing in the
present matter , the General Counsel riled with the Trial Examiner a
motion to take judicial notice of the first page of the transcript in the
representation proceeding (Case 12-RC-3070). Notice having been given to
the other parties herein , and no opposition having been indicated , I hereby
grant such motion and take judicial notice of page I of the transcript in
Case 12-RC-3070 which indicates that hearing was held November 12,
1968.
C. Alleged 8(a)(1) Conduct
131
1. Soliciting by Paul Rathbone for Teamsters
The complaint alleges that about April 15, 1968, the
Company in the person of Paul Rathbone violated Section
8(a)(1) of the Act by soliciting employees to join another
labor organization (the Teamsters), and advising them not
to join the Bakery Union. In support of this allegation the
General Counsel offered the uncontradicted testimony of
two witnesses , Wilbur Alard and Charlie Woodard.
In the spring of 1968 when the Bakery Union
organizing campaign was in progress, Alard worked as a
mixer in roll production. His sister, Mirna Alard, was
employed in packing in roll production. Alard identified
her signature on an application card for membership in
the Teamsters, dated April 16, 1968. According to him at
about that time he observed Paul Rathbone come out of
the plant office carrying a clipboard to which several such
Teamsters cards were attached. Rathbone then proceeded
to where Mirna Alard and several other employees were
working and solicited their signatures on the Teamsters
cards. Wilbur Alard did not hear their conversation but he
saw his sister sign one of the cards. Shortly thereafter she
told him she had signed a union card. Mirna Alard did
not testify.
Charlie Woodard, an oven man employed by
Respondent, testified that in late April 1968 he and three
other employees in roll production were also approached
by Rathbone in the plant. He had Teamsters membership
application cards on his clipboard and said to the group,
"I hear that the boys want to get a union into the plant
and that if they want to they ought to get a good one. I
have some cards here to sign and get the best one here.
The other one ain't no good." One of the group took a
card, the others demurred. Rathbone then moved over to
the wrapping machine where he talked with the women
employees, a couple of whom took Teamsters cards. He
then proceeded to the location of the egg washing machine
where another employee took a card.
Based on the uncontradicted testimony of Alard and
Woodard, whom I credit, I find that in April 1968, during
the Bakery Union 's organizing campaign , Paul Rathbone,
whom I have already found to have been a supervisor of
Respondent, circulated among employees in roll
production soliciting membership applications in the
Teamsters while advising employees that the Bakery
Union was no good. In these circumstances I find such
advice coercive.
2. Soliciting by John A. Hatcher for Teamsters
The complaint also alleges that about April 20, 1968,
Production Manager John A. Hatcher solicited employees
to join the Teamsters and advised them not to join the
Bakery Union. In support of this allegation the General
Counsel offered the testimony of Roberto Quintero, an
employee of the Company from late 1967 until October
1968. According to Quintero, in April 1968 Hatcher
appeared in the plant coffeeroom used by both employees
and supervisors with some union cards, one of which he
handed to an employee named John Pappas. Pappas put
the card between his T-shirt and apron. About 2-1/2
hours later he again saw Pappas with the card, which
Quintero then saw was a Teamster card, and Pappas
confirmed that Hatcher had given him the card in the
coffeeroom. Teamster cards were distinguishable from
Bakery Union cards in that they were large while the
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bakery Union cards were small. When Quintero saw
Pappas the second time , he was still carrying the card
between his T-shirt and his apron.
Hatcher denied that he had solicited any signatures for
cards. However, Quintero on the stand appeared to be an
accurate reporter of detailed facts which he himself
observed. I credit Quintero. I do not credit the denial of
Hatcher for reasons stated elsewhere in this Decision. I
find that in April 1968, during the Bakery Union
organizing campaign , Hatcher had in his possession
Teamsters membership application cards for distribution
to the employees and that he did distribute one of them to
employee John Pappas.
Cesar Castanela worked as a shipping clerk in the
Company' s warehouse located across the street and about
a block away from the bakery. The shipping department
in which he worked furnished the supplies and materials
used by the various production departments in the bakery.
Each department daily prepared a requisition of supplies
and materials for the following day. These then normally
passed into the hands of Production Manager Hatcher or
one of his two production assistants in the shipping office
located in the bakery building . Arranged along one wall
separating this office from an open area in the plant were
rows of message boxes, each with a slot opening on the
office side and a sliding door on the plant side. These
boxes were used for transmitting intracompany
communications . On the outside each box was designated
with the name of the intended recipient of the
communications. One such box was designated for
communications directed to the shipping department
where Castanela worked . Each day requisitions would be
placed in the shipping department ' s box through the slot
from inside the shipping office by someone in that office
or sometimes by someone from the department requesting
the supplies. As a daily routine Castanela picked up the
requisition through the opening from the outside of the
box.
One day in mid-April 1968 Castanela picked up the
day's requisitions through the outside opening of this box.
As usual the requisitions were stapled together . With them
were two or three loose Teamsters membership
application cards . He concluded that they all had come
from Production Manager Hatcher . He took the
requisitions and cards back to the warehouse where he
signed one of the cards himself and distributed the others
to his coworkers in the shipping department . Castanela
testified that the boxes were not locked and that the cards
could have been placed there by anyone from inside the
office or for that matter from outside the office. Hatcher
denied that he placed the cards in the box.
For reasons stated elsewhere in this Decision I do not
credit Hatcher ' s denial. It is undisputed that the cards
were placed in the box and that they were received by
Castanela , the normal recipient of all communications
routed through the box, and through him by other
employees in the shipping department . The remaining
question is whether the Company bears responsibility for
their being placed there. Bearing in mind the other
evidence in the record indicating that the Company
preferred the Teamsters to the Bakery Union, that
Hatcher as well as Rathbone solicited employees to sign
Teamster membership application cards, that Castanela's
Teamsters card was dated April 18, 1968, 3 days after
Hatcher himself had signed a Teamsters card (as set forth
hereinafter ), that the box was the normal mode for
transmitting company communications to Castanela, and
the absence of any evidence affirmatively indicating that
unauthorized persons actually put communications in the
box, I am of the view that a preponderance of the
evidence establishes that Hatcher or some other company
official delivered the Teamsters cards to Castanela by this
means, and I so find.
3. Interrogation regarding union activity
During the time of the events covered by the complaint,
the Company's night-shift supervisor was Jimmy
Agognistis, familiarly known around the plant as Jimmy
A. William Henry Bates , an employee of the Company
from about March 20, 1968, until about August 1968,
testified without contradiction that in about the third week
of April 1968 he came to see Jimmy A. in the shipping
department in order to request a favor, namely that
Jimmy A. sign some parole papers assuring future
employment to Bates' brother-in-law so that he could be
released from prison . Bates opened the conversation by
asking Jimmy A. if he would do him a favor. Without
waiting to hear what the favor was, Jimmy A. asked Bates
if he was in the Union . He then asked Bates what favor
he wanted and, after hearing it , told Bates he would see
what he could do. He also told Bates that one favor
deserved another and that he should keep himself on the
right side of the fence . Jimmy A . did sign the paper, and,
a couple of weeks later when Bates ' brother-in-law was
released from prison, he was hired by the Company.
Jimmy A. did not testify.
Based on the uncontradicted testimony of Bates, I find
that in the third week of April 1968 Jimmy Agognistis
interrogated him as to whether he belonged to the Union,
and used the occasion to endeavor to influence him
against the Bakery Union by trading one favor for
another. I infer from the fact that the Bakery Union was
at that time engaged in organizing among the employees
and : the fact established elsewhere in the record that the
Company disapproved of the Bakery Union that Jimmy
A.'s admonition to Bates to keep on the right side of the
fence meant not to support the Bakery Union. In the
context of Jimmy A.' s position as a supervisor vis-a-vis
Bates' position as an ordinary employee, and also in the
light of the nature of the favor which Bates asked, I
conclude that Jimmy A.'s interrogation as well as his
admonition were coercive.
D. Alleged Discriminatory Discharge of Robert E.
Burke
The complaint alleges that on April 10, 1968, the
Company discharged Robert E. Burke because of his
activity on behalf of the Bakery Union. The Company
admits the discharge but claims it fired Burke for cause.
Burke began working for the Company in 1963. He
subsequently left the Company's employ. About a year
and a half prior to his discharge on April 10, 1968, he had
returned to the Company and worked as a dough mixer in
roll production until the time of his discharge. The
Company had no complaints about the quality of his work
as a mixer. However, Production Manager Hatcher
testified that Burke was deficient in the cleanup of his
equipment , in his adherence to safety regulations, and in
tardiness. Hatcher claimed that in the 11-week period
prior to his discharge Burke was late as many as 23 times,
and on occasion as much as 2 hours late . Hatcher stated
that he talked to him five or six times about it and twice
told him that he would have to replace him if he did not
come in on time . Burke admitted he had a history of
ROYAL BAKING COMPANY, INC. 133
tardiness for which he had been reprimanded. Until his
discharge, however, no disciplinary action of any kind was
taken against him.
Some 2 or 3 weeks before his discharge on April 10,
1968, Burke signed a membership application in the
Bakery Union. He then became very active in organizing
among other employees in the plant, obtaining employee
signatures on between 85 and 100 Bakery Union
membership application cards prior to his discharge. It is
fair to say that he was the focal point of inplant
organization for the Bakery Union. According to Hatcher,
Bakery Union cards as well as Teamsters cards were all
over the plant. He had as many as half a dozen Bakery
Union cards on his desk. Burke did most of his union
soliciting in the coffeeroom used by both employees and
supervisors. Bearing in mind that company officials
preferred the rival Teamsters to the Bakery Union and
that Burke had signed up for the Bakery Union a large
portion of the 105 production workers in the plant, I find
in all the circumstances that the Company had knowledge
of his union activity. This finding is further supported by
Burke's uncontradicted testimony that on April 10, 1968,
prior to his discharge, Rathbone approached him at his
work station saying, "We're still friends." When Burke
asked, "What are you talking about?" Rathbone replied,
"Well, the same thing happened to me one time." Burke
then said, "What are you talking about, the Union?" to
which Rathbone replied, "Well, they've got your name
and a few others."
The events immediately surrounding Burke's discharge
are as follows. April 9, the day before his discharge, was a
day which ordinarily Burke would have had off. He was
however told to come to work at 9 a.m. on that day. He
showed up at his station about 15 minutes late. According
to Hatcher, the balance of the crew had begun and were
well along with the setup work necessary for the scheduled
production, and he, Hatcher, had gone to the warehouse
for some needed supplies. As he returned he saw Burke
sitting in the coffeeroom drinking coffee while the others
of the crew were at work. Hatcher admitted this angered
him, yet he said nothing to Burke at that time. Hatcher
went back to the work area. About 15 minutes later
Burke came into the work area. By then most of the
heavy work had been done and all of the setup had been
done. Hatcher remonstrated with Burke for not coming
back to the work area, then told him to take the day off.
He did not discharge him on the spot. The next day Burke
reported on time and worked his entire shift. Hatcher
reported to the Company 's general manager on his
troubles with Burke, and asked and received his
permission to let Burke go. At the end of his shift on
April 10 Hatcher discharged Burke, accusing him of
having lost interest in the job, of not cleaning up, and of
coming in late. According to Burke this was the first time
he had ever been criticized for not cleaning up properly.
The Company, according to Hatcher, has no set
practice for the discharge of employees for lateness or
misconduct. In the past year only one other employee had
been discharged for lateness. Production department
employees had no fixed and invariable time to begin work.
The starting times varied from day to day depending upon
the nature and quantity of the goods scheduled for baking.
The baking schedules in turn varied depending upon what
contracts the Company received each day. As noted
above, April 9 would have been Burke's day off, but he
was told to come in specially at 9 a.m., a time somewhat
earlier than usual . Charlie Woodard testified that the
starting time on the second shift in roll production was
anywhere from 9 a.m. to 10 a.m. but that no special time
was standard. Tardiness among production employees was
quite common. Frequently no reprimand whatever was
given for tardiness, and in general no disciplinary action
was taken. Woodard testified for example that on the day
of the hearing he was 15 minutes late for work but had
received no reprimand as a result of it. In sum, it appears
that starting times varied constantly and that some
tardiness was generally tolerated.
Although Hatcher denied that he had discharged Burke
because of his union activities, stating that he did not
know Burke was active in the Union, I do not credit him.
His testimony was at times vague and uncertain. On
cross-examination he testified he did not favor the
Teamsters over the Bakery Union although other evidence
indicated he had solicited on behalf of the Teamsters. He
testified he had never seen anything but blank Teamster
cards and that he had never signed a Teamsters card
himself, yet the General Counsel produced a Teamsters
card dated April 15, 1968, bearing a signature which
Hatcher agreed looked liked his signature, which he
refused to deny was his signature, but which he said he
could not remember signing.
I have no doubt that Burke was a faulty employee,
particularly in regard to tardiness. But in this plant, given
the varying starting times, tardiness was not a serious
matter, certainly not something for which employees were
usually discharged. It may be argued that Burke was
flagrantly tardy. But it seems to me, if Burke was late 23
times in the 11-week period before his discharge,
sometimes as much as 2 hours late, and that he had been
spoken to five or six times because of it, he would have
been discharged long before April 10 if in fact tardiness
was the reason for his discharge. I do not think it was. I
think the tardiness, the alleged loss of interest in his job,
and his claimed untidiness and unsafe practices were in
reality pretexts. I note that on April 9 Hatcher did not
fire him on the spot, but merely sent him home. The next
day, after he had slept on it, Hatcher was not instructed
to fire Burke, he asked permission of the general manager
to fire him. I also note that Burke had been with the
Company for some time , that the production manager
approved of the way he mixed his dough, that he had not
previously been reprimanded for failure to clean up or for
violation of safety rules , and that the incident which
angered Hatcher and led him to reprimand and then
discharge Burke was seeing him in the coffeeroom rather
than at his work station. The coffeeroom was the location
for most of Burke's prounion activity. In view of
company, and in particular Hatcher's, knowledge of
Bakery Union organizing in the plant, Burke's
considerable activity on behalf of the Bakery Union, and
the activity of Hatcher and Rathbone on behalf of the
rival Teamsters Union, I find that the motivation for
Burke's discharge was his union activity and not his
deficiencies as an employee. Accordingly, I find the
Company unlawfully discriminated against Burke in
discharging him.
Respondent defends in part on the ground that Burke
was not a credible witness, with particular reliance on his
answers to questions on cross-examination regarding prior
criminal convictions. However, the above findings do not
necessarily depend upon Burke's testimony. Even
discrediting Burke, my findings would be the same. His
testimony was pertinent to establish the extent of his
union activity and the comments to him by Rathbone on
the day of his discharge. But other evidence, particularly
the testimony of Wilbur Alard, establishes the substantial
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nature of Burke's union activity. And in the circumstances
of this case , even without relying upon Rathbone's
comment to Burke on the day of his discharge indicating
the Company's discriminatory motivation, I would find
that such motivation existed. There is ample evidence in
the record that the Company preferred the Teamsters to
the Bakery Union, and sufficient evidence to infer that the
Company knew about Burke's union activity.
In spite of his past troubles with the law, in this
proceeding Burke appeared to be a believable witness. He
testified in a forthright manner about the matters on
which he was questioned, even though some of these were
personally embarrassing to him. On some matters he was
somewhat vague , but this appeared to be not from
evasiveness or an unwillingness to tell the truth but rather
from the difficulty of recalling events long passed. On
September 22, 1965, he was convicted and sentenced to 30
days in the county jail as a result of charges of trespass,
vagrancy , lewd, wanton and lascivious person, and
resisting arrest.' He was also charged with making a false
affidavit, which he explained was because he had in his
possession his brother ' s driver' s license . But he was found
not guilty on the charge of making a false affidavit. Since
that was the only charge which could relate to his
credibility, the convictions of September 22, 1965, have no
bearing upon his quality as a witness . About a month
later on October 26, 1965, he was charged with prowling,
drunkenness, and giving false information to the police.
To these charges he pleaded guilty and was given a 30-day
suspended sentence on each . Burke was not too clear in
his testimony on what happened , but he said he thought
the principal charge was drunkenness , and that he thought
he probably had been asked by the police if he had
previously been arrested and he thought he probably had
answered no. These events occurred during a hiatus in his
employment with the Company, and there is no evidence
the Company knew about them. The only evidence in the
record regarding them comes from Burke ' s own testimony
on cross-examination . Respondent did not offer in
evidence any official record of any convictions. From his
appearance Burke is now a young man . In 1965 he was
even younger. Putting his 1965 difficulties with the law
into perspective they indicate a propensity for rowdiness
rather than an inclination to depart from the truth.
Considering his testimony as a whole , and particularly his
demeanor as a witness, I am persuaded that in this
proceeding he was truthful. Accordingly I credit him.
In sum , I find that a preponderance of the evidence
demonstrates that in April 1968 the Company in the
person of Paul Rathbone, a supervisor, and John A.
Hatcher, its production manager, solicited employees to
join the Teamsters rather than the Bakery Union which
Rathbone characterized as no good , and in so doing
violated Section 8(a)(1) of the Act. I further find that in
the person of Jimmy Agognistis the Company about the
same time coercively interrogated an employee concerning
union activities and admonished him to not support, and
promised and then conferred on him a benefit if he would
not support , the Bakery Union, and in so doing violated
Section 8(a)(1) of the Act. I further find that by its
discharge of Robert E. Burke on April 10, 1968, and its
refusal thereafter to reinstate him, the Company violated
Section 8 (a)(3) of the Act.
'It is not clear from the record whether this 30-day sentence was served
or was suspended.
Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
It having been found that Respondent engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act, including
that it offer Robert E. Burke immediate, full, and
unconditional reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and
other rights, privileges, or working conditions, and make
him whole for any loss of earnings suffered by reason of
the discrimination against him by paying him a sum of
money equal to the amount he would have earned from
the date of the discrimination against him to the date
Respondent offers him reinstatement as aforesaid, less his
net earnings during that period in accordance with the
Board 's formula stated in F. W. Woolworth Company,
90 NLRB 289, with interest thereon at the rate of 6
percent per annum , as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716, make records available to
Board agents in connection with compliance with the
Board's order, and post appropriate notices.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Bakery Union and the Teamsters are labor
organizations within the meaning of Section 2(5) of the
Act.
3. By conduct set forth in section II, above, which has
been found to constitute unfair labor practices,
Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed to them by
Section 7 of the Act, and discriminated against employees
to discourage membership in the Bakery Union.
Respondent thereby engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following:
RECOMMENDED ORDER
Royal Baking Company, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Soliciting employee applications for membership in
General Sales Drivers and Allied Employees Union, Local
No. 198, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization.
ROYAL BAKING COMPANY, INC. 135
(b) Coercively interrogating its employees concerning
their union activities.
(c) Coercively advising its employees not to support the
Bakery Union.
(d) Promising any benefit or conferring any benefit on
employees on the condition that they not support the
Bakery Union.
(e) Discouraging membership in Local No. 249,
American Bakery and Confectionery Workers
International Union, AFL-CIO, or any other labor
organization of its employees, by discriminatorily
discharging, refusing to reinstate, or in any other manner
discriminating against any employee in regard to his hire,
tenure, or other term or condition of employment.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization, to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all of such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to Robert E. Burke immediate, full, and
unconditional reinstatement to his former or substantially
equivalent position , without prejudice to his seniority or
other rights, privileges, or working conditions, and make
him whole for any loss of earnings he may have suffered,
in the manner set forth in the section hereto entitled "The
Remedy."
(b) Notify Robert E. Burke 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.
(c) 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.
(d) Post at its plant in Miami, Florida, copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by its authorized
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 to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.'
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT solicit employee applications for
membership in the Teamsters or any other labor
organization.
WE WILL NOT coercively interrogate our employees
concerning their union activities.
WE WILL NOT coercively advise our employees not to
support the Bakery Union.
WE WILL NOT promise any benefit or confer any
benefit on employees on the condition that they not
support the Bakery Union.
WE WILL NOT fire or otherwise discriminate against
any employee because he joins, assists, or supports a
union.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities.
WE WILL offer Robert E. Burke his old job back, with
full seniority, and we will make up the pay he lost,
together with 6 percent interest.
WE WILL notify Robert E. Burke 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.
'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
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
'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 Respondent
has taken to comply herewith "
Dated By
ROYAL BAKING
COMPANY, INC.
(Employer)
(Representative) (Title)
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, Room 706,
Federal Office Building, 500 Zack Street, Tampa, Florida
33602, Telephone 813-228-7711, Extension 227.