Sanfair Bakeries, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1968

173 N.L.R.B. 652 (N.L.R.B. 1968)

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sanfair Bakeries , Inc. and International Brotherhood
of Teamsters , Chauffeurs , Warehousemen &
Helpers of America , Local 959. Case
19-CA-3664
November 8, 1968
DECISION AND ORDER
By MEMBERS BROWN , J ENKINS,
AND ZAGORIA
On August 20, 1968, Trial Examiner Allen
Sinsheimer, Jr., issued his Decision in the above-
entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondent had not discriminated
against employees Shirley Vanderwyst and James A.
Wilde in violation of Section 8(a)(3) of the Act as
alleged in the complaint. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner 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, the briefs, and
the entire record in the case, and adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR., Trial Examiner This proceeding
was heard before me at Fairbanks, Alaska, on November 14 to
16, 1967 The complaint dated July 28, 1967,' alleges that
Respondent has engaged in numerous specified violations of
Section 8(a)(1) of the National Labor Relations Act, as
amended (herein called the Act), and has violated Section
8(a)(3) of the Act by the discharges of three persons.
Respondent admits that it terminated Terry Maher on April
12, 1967, and James A. Wilde on April 18, 1967 The parties
agreed that Shirley Vanderwyst was no longer employed by
the Respondent on or about April 10, 1967-the circumstances
relative thereto will be considered hereafter Respondent
denies the commission of any unfair labor practices.
Upon the record including consideration of briefs filed by
the parties and upon my observation of the witnesses I hereby
make the following-
FINDINGS OF FACT
I THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local 959 (herein called
the Union), is a labor organization within the meaning of
Section 2(5) of the Act
II THE BUSINESS OF THE RESPONDENT
Respondent, an Alaska corporation with its principal place
of business at Fairbanks, Alaska, is engaged in the operation of
a commercial bakery in which it manufactures bread and
related items mainly for nonretail sales. During its past fiscal or
calendar year Respondent purchased goods and supplies valued
in excess of $50,000 directly from suppliers outside the State
of Alaska. I accordingly find that the business of the
Respondent affects commerce within the meaning of the Act
and that it will effectuate the policies of the Act to assert
jurisdiction.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Sanfair Bakeries, Inc., Fair-
banks, Alaska, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
1
In the absence of exceptions thereto, we adopt, pro forma, the
Trial Examiner 's findings and recommendations as to the violation of
Section 8(a)(1), the violation of Section 8(a)(3) concerning employee
Maher , and the dismissal of the complaint concerning employee Wilde
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
Involved are whether or not Respondent engaged in the acts
alleged to violate Section 8(a)(1), whether it violated Section
8(a)(3) by discharging Terry Maher and James A. Wilde, what
the circumstances were with respect to the termination of
employment of Shirley Vanderwyst and whether such involved
violation of Section 8(a)(3) by Respondent.
I An original charge was filed April 17, 1967, a first amended
charge, May 22, 1967, a second amended charge , May 29, 1967, and a
third amended charge , June 8 , 1967. -
173 NLRB No. 104
SANFAIR BAKERIES, INC. 653
B. Commencement of Union Activity
On Wednesday, April 5, 1967, which was his day off,
employee Terry Maher, one of the alleged discrlminatees, went
to the office of the Union to inquire about becoming a
member so he might obtain employment with a trucking
company. While there he was asked whether he would try to
organize Respondent's employees, to which he agreed Maher
then signed a union authorization card and was given eight or
ten cards to distribute among employees for signatures.
On Thursday, April 6, 1967, Maher began talking to
employees at Respondent's plant concerning the Union He
talked to Shirley Vanderwyst and others on that day,2 and
the next day, Friday, specifically naming employees Curry,
Barr and one Larry-but did not distribute any authorization
cards either day. On Sunday, April 9, he distributed cards to
employees Wilde, Barr , Cash and Billy . On Monday,
April 10, he gave three cards to Wilde who had told Maher that
he had talked to three others in the bakery who would sign
them The foregoing is based on the testimony of Maher,
which I credit.
According to Vanderwyst after being approached by Maher,
she contacted employees Margie Rector, Etta Newcomer, a
Korean girl, and Milly Fry about the Union She also testified
that on Friday, April 7, she went to the union hall, during her
lunch hour,3 and signed a card. More will be said concerning
her testimony hereafter.
C Alleged Acts of Interference,
Restraint , and Coercion
The complaint alleged that about April 6, Respondent by
Gerald Claus, its president, interrogated employee Shirley
Vanderwyst concerning union activity and that on or about
April 6, 1967, Claus threatened to fire anyone connected with
the Union.
Evidence in support of the foregoing consisted of testimony
by Vanderwyst that while at lunch one day, which she first
placed as the Wednesday before she signed a card she was told
by Claus that he was hearing rumors about a union. She said
"you hear rumors all the time" and Claus replied "No, that he
thought this was for real this time, and then he started going
out of the room and said he would fire anybody connected
with the Union."4 Vanderwyst further testified that later that
day she overheard Claus say to employee Dick Sticha "Can
you imagine a 19 year old kid trying to start a union." Maher
was the only 19 year old she knew of Maher confirmed that
he was 19 years of age.
The time of the foregoing conversation apparently could
not have been Wednesday since Maher did not sign a card or go
to the Union until that day. It could have been Thursday or
Friday. Early Thursday afternoon would be soon for Claus to
have had such knowledge, although not necessarily impossible
as Maher may have commenced contacting persons the latter
part of the morning or early afternoon-he testified that he
ordinarily came in about 15 to 20 minutes before starting out
in the morning and returned from his route about 11.30 or 12.
Friday would appear more likely although Vanderwyst said she
went to the union hall during her lunch hour that day to sign a
card. The location of the hall was not specified but Vander-
wyst indicated she had paid her husband's union dues on other
occasions. She also testified that she normally did not stay at
the bakery a whole hour and sometimes she went home for
lunch and sometimes went to a restaurant.5 Accordingly, her
going to the union hall would not negate holding a conver-
sation at lunch at the plant.
In connection with appraising the foregoing and her
credibility in general, it would also be noted that Vanderwyst
testified that she spoke to Maher about union matters and
interest over a 2-week period, which conflicts with his
testimony of commencing to organize April 5 and continuing
to his termination on April 12. Actually, Maher refers to
talking to Vanderwyst only on Thursday, April 6, and Friday,
April 7. Presumably, if she worked April 10 (which is in
dispute), he could have talked to her then. This question of the
2-week interval, which was repeated by Vanderwyst, accord-
ingly requires consideration.
Vanderwyst admitted that she was not sure about dates and
exactly whom she spoke to or when, although she did recall
certain statements and conversations In analyzing her testi-
mony, I consider that the problem of time recollection and
spacing may be accounted for by the interval between the
events and the hearing so that it subsequently seemed to be
over a longer period. I shall consider the foregoing in
evaluating Vanderwyst's testimony as to various statements
and conversations, but shall also consider other purported
conversations and statements, circumstances, timing and all of
the evidence, including evaluation of the witnesses involved in
resolving credibility as to testimony relating to each material
aspect where there is or may be conflict.
With respect to the aforesaid conversation between Claus
and Vanderwyst wherein she testified he said he would fire
anyone connected with the Union, and also Vanderwyst's
testimony as to overhearing Claus say "Can you imagine a 19
year old kid trying to start a union?" I credit her testimony. I
recognize that she initially placed the conversation during
lunch as occurring 2 days prior to her signing the card which
was also placed as during her lunch hour. This date would
obviously be before Maher started to organize which he
commenced sometime Thursday although exactly when or to
what extent Maher was active on Thursday is not entirely
clear.6 However, he began activity that day and it is possible
that the luncheon referred to by Vanderwyst could have been
Thursday. It is also possible as indicated, supra, that it could
have been Friday the day she signed her card Still another
question is raised by her testimony that she mentioned to
Maher her conversation with Claus the same day it occurred. If
2 Maher testified that he couldn't be sure of just when or whom he
talked to on a particular date As pointed out hereafter, it appears from
an evaluation of all the evidence that he spoke to some employees on
Thursday and others on Friday, April 6 and 7.
3 Which would be from 12 to 1
4 Vanderwyst testified she was eating lunch and, "It might have
been around 1."
5 It should also be noted that Fairbanks is not a large place
6 Maher at first indicated he talked first to Vanderwyst on Thursday
and then referred by name to persons he spoke to on Friday and
following days However , Maher subsequently testified that he could
not recall the precise days he spoke to particular individuals except he
started by talking to Vanderwyst on Thursday the day after he signed a
card. Although he at first testified that he talked to her in the afternoon
that day he later said he didn't remember exactly, explaining that his
testimony had been predicated on his spending only 15 to 20 minutes in
the bakery to load trucks in the morning and that he was normally gone
until about 11 30 a in or 12 noon.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so it would appear to make such conversation later on
Thursday or late Friday since Maher ordinarily was on the Big
Delta run on Friday and was fully occupied by that until late
in the day From Maher's testimony it appears that while on
occasion he could make the Big Delta run in 12 hours, Friday
was a longer day and that 14 hours would be a close
approximation. If so with a starting time of 4 or 4:30 a.m ,
Maher ordinarily would return about 6 p.m. or shortly
thereafter. According to Vanderwyst she worked normally
when in the back from about 10 to 6 p in. or 11 to 7 p.m.
(Although on occasion work in the back would last to 8.)
However most significant in my resolution of credibility as
to the foregoing is that it coincides with other testimony; I am
hereafter crediting which concerns related statements or
incidents-particularly that of Jay A. Noll and Frederick
Livingston and also Claus' admission, post, of hearing about
and inquiring concerning union activities although he denied
learning of any activity on the part of the alleged
discrrminatees
The complaint also alleged that Respondent violated Sec-
tion 8(a)(1) by Claus about April 6 threatening employees that
"he would fire any driver he did not like even if he had to
make up a false reason and adding to this remark that he
would not have a union in the plant."
Frederick Livingston, A Fairbanks police patrolman, whose
testimony I credit, was employed at Respondent from some-
time in March to April 20, 1967. Livingston testified that
about a week or week and a half after he went to work, Terry
Maher asked him if he had any preference over a union to
which he replied he didn't know. About the same time, while
standing on a platform with driver and supervisor Harry Frazee
and Claus, according to Livingston, Claus stated "That people
had been talking about the Union. He didn't want the Union in
the shop. There was already one there, and there couldn't be
two unions? in the same shop, that it was such a small
operation that if any of the personnel had a problem they
could come and see him and that no one was going to tell him
who he was going to hire and who he couldn't fire and if he
had an excuse for firing someone he used the excuse he didn't
like the way they backed the trucks into the stalls, and then
came up that he was not going to have a Union in the bakery."
According to Livingston about 2 weeks later Maher left-here
again there would appear to be a possible time difference (of 1
week versus 2 weeks), which I do not consider of critical
significance in evaluating the result-particularly since it was
stated as "approximate" and is within a range of what might
be expected of recollection 6 months later.
The complaint also alleged a violation of Section 8(a)(1) by
Claus interrogating an applicant for employment concerning
his union desires, etc. Jay A. Noll, a student at the University
of Alaska, testified that about the middle of April he applied
for work at Respondent He spoke to Claus in his office and
according to Noll the following occurred, "Well, he asked me
how I felt about unions and I told him the position I was in. I
wasn't planning on making a full time job out of it, that I
didn't see any point in it and he just said good."
With respect to the above allegations of Section 8(a)(1) and
the testimony of Vanderwyst, Livingston, and Noll set forth,
Claus denied making any such utterances or inquiries except in
the case of Livingston he said he had no clear recollection and
if it occurred it would have been in reference to a question and
not brought up by him.
Claus, as set forth hereafter, admitted making some general
inquiries as to what was occurring and who was involved but
claimed he obtained no specific information.
Both Noll and Livingston appeared to be disinterested
witnesses, and their testimony and that of Vanderwyst appears
consistent in character, content and time relationship. Based
on this and my appraisal of the witnesses, I am crediting the
testimony of Vanderwyst,8 Noll, and Livingston as to the
statements above set forth and accordingly find Respondent
violated Section 8(a)(1) in the respects alleged.
I have also considered the testimony of Ross Jones as to
Claus allegedly stating that sometime between Christmas and
May but later placed as "quite awhile" before Maher was
terminated, he heard Claus say "he would fire anyone who
tries to bung a union in." As indicated the time of this alleged
statement was indefinite and placed "quite awhile" before
Maher was terminated. Unless it was close in time to Maher's
termination there is no foundation of union activity to
establish a background out of which to evaluate the truth of
said statement, and it would appear outside the scope of the
complaint except as possible "background" evidence. Both for
these reasons and that it will not add to my prior findings of
violation nor be determinative of any other allegations, I shall
not evaluate its significance if any.
The same also applies to a statement testified to by James
Wilde as made by Claus to Harry Frazee, route supervisor, in
the early part of 1967-January or February. According to
Wilde, "I heard Mr. Claus tell Harry that anyone he heard talk
Union would be fired on the spot " Since this is both without
a foundation and is not requisite to a determination of the
allegations as to violation of Section 8(a)(1) of the Act, nor
determinative of any other allegations, I shall not evaluate its
significance if any
I
D Knowledge by Respondent of
Union Activities
Respondent contends that it was without knowledge of the
union activities of the alleged discriminatees or, in fact, of any
union activities. I conclude otherwise Based on my findings as
to the testimony of Vanderwyst, it is manifest that Claus was
aware that Maher was the principal organizer for the Union
While evidence as to Vanderwyst's and Wilde's activities is not
as direct, the record contains substantial evidence from which
knowledge of the union activities of Vanderwyst and Wilde
may be drawn First, is the evidence showing knowledge on the
part of Claus of Maher's activities soon after their occurrence
from which it is evident that Claus was receiving information
as to union activities. Second, is the evidence of Claus' inquiry
7 According to Livingston , Claus said there was a bakers union in
Seattle to which all the bakers belonged.
8 Subsequently with respect to other matters , I do not credit all of
Vanderwyst's testimony-particularly where her self-interest is directly
involved and there is conflicting testimony requiring detailed analysis
considered hereafter.
SANFAIR BAKERIES, INC.
of Noll as to union interest when Noll applied for work. Third,
are the threats by Claus to get rid of any union adherents as
testified to by Livingston and Vanderwyst. Fourth, Claus
admitted that one driver, Larry Owens, told him he had been
approached to sign a card for the Union but didn't identify the
person except that he was an employee. Claus said he didn't
think it was Maher at the time but another employee, Ross
(Jones), Claus further stated at one point (according to the
transcript)' that Terry [sic] told him he had been approached
to sign a card and that two other employees told Paul Trichak,
a partner (25 percent stockholder), and superintendent of the
bakery, they had been asked to sign cards. One of these was
Trichak's son. Claus then testified he never directly asked any
employee but "I might have questioned a few people about
what was going on, I didn't specifically say who is doing this,
who isn't doing it, I wasn't that involved in it " Claus further
testified he "asked the woman who work [sic] in the office if
she knew anything about it." The woman, Mrs. Stone, "just
said she had been hearing conversations as to that." He said she
mentioned Ross Jones' name in connection with being a union
man but not about passing cards. Claus also said he "might
have questioned the supervisors in the bakery." Claus discussed
the matter with Trichak as to who made the approach. Claus
testified "Nobody seemed to know. I don't know, he didn't
tell me who had." At still another point in his testimony Claus
said he heard Maher was a union man but never heard he was
trying to organize the bakery. Fifth, when the aforesaid are
coupled with a small operation as here involved, it is a fair
inference that Claus had such information as to who was
involved in union activity I have considered Respondent's
argument about the short time interval involved but under the
foregoing circumstances do not consider it a decisive factor.
E. The Alleged Discriminatory Discharges
Each of the foregoing will be considered separately
Although inferred knowledge of activity found above is usually
an essential element, and other antiunion conduct may bear on
motivation, it must be kept in mind that an employer does
have the right to operate his business in a reasonable manner
with employees who can and will perform work satisfactorily
Further, that he can terminate unsatisfactory employees for
such reasons or impose reasonable standards or requirements
which employees must meet if they want to continue in his
employ. However, employment may not be terminated
because of union activity. Where an employee active in
organizing has been derelict in certain respects in his work and
is discharged it may require careful analysis to determine
whether the motivating cause of termination was poor work or
attitude or whether it was union activity
1 The discharge of Terry Maher
Terry Maher, who initiated the organizational activities
herein, began employment in February 1967. After his training
9 Earlier Claus testified Larry Owens was the one who offered the
information he had been approached . From the context he may have
meant "Larry" Owens.
10 The only available driver for the Big Delta run
l 1 I recognize that it is also possible that origin to Maher could be
traced through Vanderwyst 's discussions with other employees
following Maher 's introducing the subject to her. However , from the
entire context it appears more likely to have been a result of Maher's
direct conversation with fellow employees
655
program, Maher worked a run to Big Delta about 90 to 100
miles on Tuesdays and Fridays, a troup issue run to Fort
Wainwright on Monday, Thursday, and Saturday, a town run
on Sunday and had Wednesday off His work performance and
attitude admittedly were not of the best and the General
Counsel so concedes but also points out that Respondent was
hard pressed for help. The General Counsel in essence argues
that Respondent kept Maher in spite of his deficiencies until
he tried to organize for the Union Respondent contends it
terminated him at the time it did for his work performance
and attitude, when Route Supervisor Frazee returnedt 0 and
would have done so earlier had a replacement been available.
To best evaluate Respondent's motivation as to Maher, an
analysis of the incidents involved and Respondent's complaints
as to his work and attitude is in order Particular attention will
be directed to the time of occurrence of certain matters and
Respondent's response and also relation to the time of union
organizational activity.
Terry Maher, as previously set forth, began organizing on
Thursday, April 6, after having himself joined the Union on
Wednesday, April 5. On that day he spoke to Shirley
Vanderwyst and evidently some other employees although he
was not entirely clear as to the precise days he discussed the
Union. Maher named a number of employees as set forth,
supra From the course of events and the record as a whole, I
have concluded that he spoke to some employees on Thursday,
in addition to Vanderwyst This most logicallyi 1 explains the
sequence which led to Claus' knowledge of Maher's activities as
well as to Claus' discussion with Vanderwyst concerning union
activity, his threat in such discussion to terminate anyone who
was active for the Union, and the subsequent reference to a
"19 year old kid" seeking to organize the Union The fact that
the witnesses were not entirely clear or specific as to the dates
and individuals 6 months after the events does not deter from
the conclusion which I have reached. Rather the testimony in
this respect appeared to be given in an honest fashion without
any effort to color it or to direct it to positive recollection of
exact days which, could be suspect, at least where too definite
and specific. Evaluation of credibility in terms of preciseness as
against vagueness is often difficult at best. However, in my
judgment the indefiniteness involved here does not detract
from the credit to be given to the `estimony as to the
occurrence of events or what was said at least as to the matters
which I am now referring to.t 2 As previously set forth, in
addition to employees whom Maher spoke to on April 6 or 7,
he also distributed cards about Sunday, April 9, to other
employees of whom he named four (see, supra) and on
Monday, April 10, distributed four cards and gave three blank
ones to Wilde requesting him to obtain other signatures The
foregoing indicates that Maher was far and away not only the
organizer but the most active proponent for the Union.
During the period of union activity by Maher, Frazee, the
route supervisor, who was the only person who could have
taken the Big Delta run was absent from the Fairbanks area.
12 The credited testimony of disinterested witnesses , Noll and
Livingston , supra, furnishes particularly strong corroborative support
for the testimony of Vanderwyst concerning Claus' statements relative
to the Union. Also, as previously indicated, Claus' own testimony
relative to his inquiring but obtaining no knowledge is largely
improbable and hence discredits his denials both as to knowledge and as
to making the statements or inquiries testified to by Noll, Vanderwyst,
and Livingston
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maher made the run to Big Delta on Tuesday, April 11. On
Wednesday, April 12, while Maher was home on his day off,
Claus telephoned and told him he had been terminated and
could pick up his check. No reason was then given by Claus.
When Maher picked up his check the following day, he asked
why and was told by Claus that he could write a book on the
reasons he was letting Maher go. According to Maher's
testimony.
"For one reason," he says, "you are not loyal to the
bakery, and for the second reason, I do not like your
attitude." Then he repeated that he could write a book on
the reasons he was letting me go He told me that when I
came to the bakery he told me that he wanted loyalty to
the bakery I took my check and left.
Claus denied that he used the terms "loyalty" as reflecting
the relationship between the Company and the union activities
but testified that:
The sense that I used the term in is that in the course of
his making deliveries of our products to our various
customers the excuses he always made was either not having
the product or the fact that the product may be stale on the
rack, or whatever the complaints were, they were always
based that the bakery was at fault, that it was us at fault,
never him. And I feel that any employee who is working for
me should always reflect that the bakery is doing its best to
put on the market the best product it can. The only thing
we have to sell is service to the people we do business with,
and I demand of the people who work for us that they
express this, that they reflect it, and when I told him that I
also told him that I could write a book which would reflect
this.
With respect to this statement by Claus more will be said
hereafter, although at this point it may be noted that Claus did
not particularly emphasize derelictions in the foregoing in his
initial testimony as to why Maher was let go In other words,
the above items referred to as what he meant by "loyalty,"
which term he stressed in terminating Maher, were not items
that he particularly emphasized as to why he discharged
Maher, when he first testified as an adverse witness called for
examination by the General Counsel
Claus, in explaining the reasons for Maher's termination,
initially testified that he was dissatisfied with a number of
things about Maher One element was Maher's poor attitude.
Claus referred to an occasion on a Saturday in February when,
according to Claus, Maher refused to help Frazee complete the
town route and Claus said at that time he began to consider
discharging Maher. Maher denied he so refused but admitted
that he had objected to Claus' request to help Frazee and that
he had told Claus that he had helped Frazee a week earlier
without aiding the completion of the work Maher testified
that after objecting he went with Frazee but that Frazee took
him home instead of using him.
Another instance referred to by Claus was one which
occurred on a Saturday and involved Mrs Claus, who asked
Maher to make a delivery to the Monroe School and was told
by Maher he didn't know where the school was. Mrs. Claus said
she became quite angered and upset by this, called her husband
and told him that she guessed he would have to discharge
Maher if he did not want to cooperate. Mrs. Claus didn't tell
Maher where the location of the school was since she was upset
by the response as there had been a buildup over a period of
time with Maher. She said during that period Maher was
contemptuous of anybody in authority and didn't wish to
cooperate, that he would not do anything willingly Mrs. Claus
testified "The relationship between us and between him as an
employee had deteriorated to a point I had no communication,
I felt. I didn't argue with him about where the place was and I
didn't tell him where the place was. I thought he could look in
the phone book even if he cared to do it." Mrs. Claus also
testified that she had recommended to her husband that he not
hire Maher She said her husband agreed with her, that he
would discharge Maher as soon as he could find a replacement
and made the decision to terminate him at that time.
The General Counsel makes much of the fact that Claus in
testifying as to the disputed place of the delivery referred to
the USO Club rather than the Monroe School and repeated
that was the place. The latter I do not consider to be as
significant as the General Counsel does for the reason that
there is no question that the incident occurred as testified to
by Mrs. Claus and as admitted by Maher. There is also no
question that Mrs. Claus was upset by it and that her
relationship with Maher was not a good one, which accounts
for her response by calling her husband rather than telling
Maher where the school was. However, more significant is the
question when did this Saturday incident occur1 Claus was
asked whether it was the Saturday immediately preceding the
first Saturday before he told Maher he was discharged and
responded he could not tie it down to a week, that it was a
period before that. Claus testified "It was in the period that
Harry [Frazee] was in the States that it happened and I had no
replacement for him or I would have fired him that Saturday
or let him go." [Emphasis supplied.] Clause said he made up
his nund to terminate him at that time as soon as Frazee
returned. Mrs Claus testified she spoke to her husband a
number of times about terminating Maher. She told him
several times that she didn't think Maher was doing the
business any good and wished he would discharge him. Mrs.
Claus was asked when that occurred and responded that it was
before she left on vacation, March 5, for most of March,
because when she got back she was so busy catching up with
back work and they were having Internal Revenue audits that
she wasn't too involved with any of the employees.
Accordingly, the Monroe School incident evidently occurred
prior to March 5, which would be over a month before Maher
started to organize and before he was terminated. This raises a
question of exactly when did it occur? Also just when did
Frazee leave Fairbanks? First it should be noted that in
connection with the incident involving Frazee, according to
Claus, Maher absolutely refused to assist Frazee, although, as
set forth, Maher's version differs in that he went with Frazee
who, Maher said, took him home. The latter occurred about
the end of February and obviously at a time when Frazee was
still in Fairbanks. According to Claus he lectured Maher when
he refused to go with Frazee and told him "if it happened in
any other time I would not permit it. I would terminate
him ...." Claus was asked, "Why was it that you told him
that you wouldn't stand for that kind of attitude at any other
time, why did you stand for it at that time?" Claus answered,
"Because at this time we had absolutely no one to service these
routes . we were, just, as you might say, shorthanded." It
should be noted that at this time near the end of February the
excuse for keeping Maher was not the absence of Frazee but
general shortage of help
In another incident relied on by Respondent Maher took a
truck to Big Delta and on the way back went off the road into
a ditch with it which required some repairs to the truck.
SANFAIR BAKERIES, INC 657
Respondent's position is that he was driving too fast while
Maher said road conditions were such as to cause the accident,
that is, some ice. He conceded that he was going slightly faster
than he was expected to drive under those conditions This
occurred on Friday, March 3. According to Ross Jones, a
witness who had just left Respondent's employ, Claus stated
to him at the time that if he had another driver, he would have
let Maher go. Jones also said that Frazee was on duty at
Sanfair at the time of the accident
If Frazee was at Sanfair on Friday, March 3, and Mrs. Claus
left on March 5, unless the Monroe School incident occurred
on Saturday, March 4, from this record Frazee would
definitely have been at Sanfair. As for March 4 there is no
evidence that Frazee was not there.' 3 Neither is there any
evidence that the incident with Mrs Claus involving the
Monroe School occurred on March 4 On the contra if it had
occurred the day before she went on vacation it would seem
that she would remember that and so state 14
Claus and Trichak, superintendent of the bakery and part
owner, also testified concerning Maher's failure to do his job in
certain respects whereby customer complaints had been
received These were not stressed in.earlier testimony by Claus
but were brought out on subsequent examination In response
to questions by the Trial Examiner, Claus said the manager of
the NCO Club and Fort Greely complained about servicing
such as not delivering all items contracted for and not
removing stale loaves Claus said he asked Maher "How come
you are telling these people down there that we don't have the
products, when it is in the bakery .. " Maher according to
Claus would tell him he forgot or some such excuse. Claus said
he spoke to Maher at least once a week. Trichak testified
Maher failed to make deliveries on a number of occasions and
then he would talk to him, but received a grumble or nothing
Maher recalled only one complaint about donuts left at Fort
Greely when he first took over the route and said his
predecessor had left too many and failed to pick up the old
ones. Claus and Trichak also testified about the condition of
Maher's truck, that the inside was not kept clean with food
and cans-"lunch garbage" left there requiring steam cleaning
on one occasion. However, Claus admitted that Maher cleaned
the truck periodically
The essence of the remaining complaints by Respondent
concerning Maher appear to have been about the general
uncooperativeness that he displayed with the basis of decision
to terminate going back to the incidents involving Frazee and
the one involving Mrs Claus and the Monroe School. The truck
accident was also stated to be a factor.
The issue might be clarified were the specific times of
Frazee's absence set forth. From the record as it now appears
these would have been after the truck incident and obviously
after Maher's objection to performing work one Saturday with
Frazee and apparently after the incident involving the Monroe
School and Mrs. Claus.' 5 If Frazee had left immediately after
the incident involving Mrs. Claus it could have been that
Respondent waited for his return. However, Respondent
offered no such explanation but only the general explanation
that it couldn't terminate Maher while Frazee was away. If
there had been involved the knowledge that Frazee was about
to leave at the time of the Monroe School incident, it would
seem that an explanation would have been forthcoming.
Actually as pointed out, Claus claimed Frazee wasn't there
then. In this respect unless Jones was wrong about Frazee
being there March 3 and the placing of the incident with
Frazee also in error, in the light of Mrs. Claus' testimony it
would appear Frazee was there and the probabilities place the
Monroe School incident as sometime in February. Moreover, as
pointed out, supra prior to Frazee's absence, Respondent's
purported reason or excuse for not terminating Maher was that
it was shorthanded. So that even though Frazee was then there
Respondent didn't terminate Maher. Yet immediately after
Maher becomes the union proponent he is terminated as soon
as Frazee returned Respondent's "shorthanded" position
changed instantly without any explanation therefor. Further-
more, I find difficulty in believing that Respondent was unable
to obtain any replacement for Maher during the period
beginning March 5 until April 12. It appears much more
reasonable that although Respondent did not like Maher and
did not consider his work nor his attitude completely
satisfactory, that during the time that Mrs. Claus was away and
as long as no other major incidents arose, that in view of the
difficulty of obtaining help which the Respondent indicated
was the case,' 6 and in spite of all the foregoing, Respondent
was willing to put up with Maher until he organized or
commenced organizing for the Union. This latter combined
with his other deficiencies thereupon ended any such willing-
ness and resulted in his termination. I find from all of the
evidence that this organizational activity was the triggering
cause of Maher's termination and that his discharge accord-
ingly was in violation of Section 8(a)(3) of the Act.
2. The discharge of Shirley Vanderwyst
Shirley Vanderwyst was first employed by the Respondent
for a period in 1966 from about June to September when she
requested time off because her child was injured. She returned
to work for Respondent in March 1967, and was at first
assigned to work both in the production area in back and in
retail sales in front with time about equally divided between
them. Vanderwyst testified that she then worked Monday
through Saturday and 8 hours a day (with Sunday off) and
continued to work 8 hours a day until terminated. Her hours
would run from about 10 to 7 and 11 to 7. Toward the latter
part of her employment after a girl named Ellen was
hired, Vanderwyst worked more in the back than the front
Vanderwyst testified, "She took over the front almost com-
pletely and I felt I was being pushed to the back then."
Vanderwyst then said that after Ellen was hired she worked
pretty exclusively in the back, including particularly her last
week of employment. Vanderwyst said there was a policy for
an employee doing the kind of work she did to work 40 hours
a week. Vanderwyst also testified that in front the hours were
usually 10 to 6, Monday through Saturday, with Sunday off,
while in back the hours might be 11 to 7 or even 12 to 8 with
Sunday a workday and Saturday off. Vanderwyst subsequently
testified that the normal workday in the back was 7 hours a
day or 42 hours a week; and that would be the normal when
13 The record shows he was there on March 3. It also reflects that he
did not work the week of April 1 to 8 but did work the following week.
14 As pointed out above, Mrs. Claus said she was gone on vacation
for several weeks after March 5 and busy with other matters thereafter.
15 Although as set forth, Claus said Frazee wasn't there then.
16 Respondent testified and evidence was in the record that there
was a substantial turnover and help was not easy to obtain.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she worked in back. She also testified that the normal day in
front was 8 hours and the workweek 48 hours The signif-
icance of the foregoing will become apparent hereafter
The testimony concerning the circumstances surrounding
the termination of Vanderwyst is in substantial conflict. The
General Counsel's version, in essence, is that she was termi-
nated by Respondent because of her union activities Respon-
dent's position is that she knew she had to work on the
Sunday prior to her termination but did not work on this
Sunday nor thereafter and voluntarily left her employment
The General Counsel's position is that she was told on Friday
she did not have to work Sunday, in fact worked on Monday,
and was told that afternoon she was terminated because she
did not work Sunday The evidence relative to the issue of
requirement of her working on the Sunday in question and
whether or not she worked on the following Monday will be
analyzed here-after, although it should be noted that there are
certain gaps which the record does not appear to fully answer
Previously set forth were the organizational activities of
Terry Maher and certain testimony of Vanderwyst with respect
to conversations with or involving Claus, which I have
concluded occurred on either Thursday, April 6, or Friday,
April 7. After Vanderwyst was approached by Maher, which I
have found was on Tnursday, April 6, she stated she contacted
her fellow employees Etta Newcomer, Margie Rector, a Korean
girl, and Millie Fry with respect to the Union Also, during her
lunch hour on Friday, April 7, she signed a card at the union
hall
The General Counsel's version with respect to the terim-
nation of Vanderwyst is substantially as follows. On Friday,
April 7, she went to see Claus whether she should work the
next day because she had been told by the office girl, a Mrs.
Stone, that she wasn't sure if Vanderwyst should work
Saturday. According to Vanderwyst, Claus said she was to
work Sunday and not Saturday. Until this time Vanderwyst
had not worked Sundays Vanderwyst testified that she replied
that she couldn't work Sunday because that was the only day
her husband had off and that Claus then told her it was all
right to take both Saturday and Sunday off and to work a
5-day week Vanderwyst testified without contradiction that
she did not work Saturday, April 8, or Sunday, April 9.
Vanderwyst testified she worked on Monday, April 10, until
about 4 30 p in. when she heard from a fellow employee she
was going to be let go. Vanderwyst said she went to Claus who
told her she was laid off because she would not work Sunday
and he could not have anyone who would not work on
Sundays. Vanderwyst said she was not given a chance to
indicate whether or not she would work Sundays. At one point
Vanderwyst said she worked a complete day; at another from
about 11 a m. to 4 30 p.m.
Respondent's version as testified to by Claus is that on
Friday, April 7• "I asked her if she was going to work Sunday
and she said she wouldn't be able to work, that was the only
day her husband takes off I said if you don't work Sundays
you can't work. I don't know if that would be considered
termination." Claus said he didn't terminate her, that she had a
choice of working or leaving. He said Vanderwyst didn't say
whether she would or wouldn't work Sundays According to
Claus, Vanderwyst did not come in to work again after that
but only to pick up her check on Tuesday Claus explained
that the reason he told her on Friday she would have to work
Sunday was because of a meeting of employees concerning
Sunday work held earlier in the week. This resulted, according
to Claus, because of contention arising over one girl, Millie
Fry,' 7 not working Sundays which was brought to his
attention by Shirley (Vanderwyst). Claus said Vanderwyst and
some other girls were dissatisfied with it. Claus said he then
called a meeting of the female employees in the production
part of the bakery in the middle of the week in which he told
them they must all work on Sundays without exception. Claus
testified Fry agreed she would work Sunday and he "thought
it was all straightened out." Claus was asked if he thought
everything was straightened out, what prompted him to go to
Vanderwyst and tell her she would have to work on Sunday?
Claus replied because she had told him earlier in the day, on
Friday, she wasn't coming in Sunday, that it was the only day
her husband had off. At this time, Claus testified: "I said she
was present at the meeting and I had made a decision, she
would have to do it, if the rest did it." Claus was asked if he
already told her this earlier in the day why did he see her again
later and repeat it. Claus commenced: "Because she was
unhappy about it and I was concerned as to who was coming
to work on Sunday." Vanderwyst, on the other hand, first
testified she could not recall a meeting about Sunday work and
later said that she was not at such a meeting.
The foregoing leads to an obvious conflict as to what
occurred with respect to Vanderwyst's termination. The
General Counsel's contention, in essence, is that Respondent's
version is a fabrication and that Respondent found out about
her union activities over the weekend and decided to terminate
her. The Respondent's version is that he never knew about her
activities, that it was necessary for all employees to work
Sundays in the bakery and, as set forth, that he held a meeting
at which all employees were informed they would be required
to work Sundays
What other evidence is there bearing on the issues9 The
General Counsel relies in substantial part on her last check stub
(for period ending April 8) and showing that Vanderwyst
received 45 hours regular pay for that pay period but showing
no overtime The General Counsel contends therefore that she
must have received 5 hours' pay for Monday, April 10,
otherwise there should have been or would have been overtime
shown for work the preceding week 1 8 The timecards which
presumably would have shown the actual hours worked were
stated to be unavailable because of the flood which over-
whelmed Fairbanks in the summer of 1967 and left many of
the records either lost or completely covered with mud and
destroyed Counsel for Respondent indicated the last he saw of
a good deal of the records for the Company were in a
mud-covered trash can.' 9 The foregoing pay stub is certainly
of substantial significance but there is other evidence to the
contrary and this payroll record, in my opinion, is not as
17 Millie Fry or Frey appears so spelled at different places in
transcript , but refers to the same person
18 This conclusion is predicated on testimony that overtime is
normally forthcoming and required for time over 40 hours and on
records for other pay periods reflecting such overtime pay after 40
hours.
19 The happening of the flood was conceded by counsel and also
judicial notice thereof can be taken based on the wide publicity given to
the event which inundated Fairbanks in August 1967.
SANFAIR BAKERIES, INC. 659
conclusive as might appear at first blush, for a number of
reasons While Claus testified he did not know the explanation
for the 45 hours on regular time, he suggested possibilities of
half days pay when persons show up and are terminated,
similar to report-in pay although why 5 and not 4 hours if such
were the case, Claus could not explain. 0 More significant in
the problem of evaluating this is some other evidence First, is
Vanderwyst's own testimony that she did not work in the
front where she normally would have worked 40 hours the
week preceding her termination but rather worked most of it
in the back where she normally worked 7 hours a day so that
an assumption of a 40-hour workweek, the preceding week is
not necessarily a valid one. On the contrary, her workweek
immediately preceding the end of her employment would
appear to have been under 40 hours unless she worked
overtime on certain days or on Saturday, April 8, on which
date she testified she did not work. It also be noted that for
the preceding period ending April 1 the check stub shows she
worked only 35.2 hours regular time and 5 hours overtime
(apparently for over 8 hours one day) Here, too, she was
working a substantial time in the back She also testified that
she worked Saturday that week. In addition, there is testimony
indicating she was called and came in to work for a time (she
"thought" it was about 2 hours) on a Sunday. She couldn't
recall which Sunday but testified it could have been any
Sunday, including possible, Sunday, April 2-if the latter it
would have left some time to be paid which was not ordinarily
in her workweek which could have been included in her final
check. The foregoing leaves an open question as to where this
"extra" time on her final pay stub could have come from
In addition, there is testimony of Mrs. Claus elicited by the
General Counsel on cross-examination that the payroll was
normally submitted to the accountant to be made up as of
noon on Monday to cover the preceding period which in this
instance reflected to April 8. During the same cross-
examination, Claus also said she had no independent recollec-
tion of Vanderwyst's check and upon questioning by the Trial
Examiner said she knew of no variations from such practice.
The Monday involved here was April 10. In addition, Mrs.
Claus testified on direct examination that the normal pro-
cedure was to make out a separate check if the employee was
terminated in the week following a preceding payroll period so
there would have been presumably two checks if Vanderwyst
had worked on Monday.
Further, with respect to the discussion as to Vanderwyst's
work on Monday, the Respondent brought in a witness, Agnes
Govednic, who testified that Vanderwyst had not worked that
Sunday and also was not there on Monday. I recognize that the
latter is in nature negative testimony which may be of less
significance many months later than affirmative testimony
However, here it follows nonwork on Sunday, which latter
day, according to Govednic, all the girls were supposed to
work but Vanderwyst had said she didn't like working Sundays
and didn't want to work Sundays. Govednic also testified on
direct examination "I don't remember her back after that, it
was Friday, because she didn't come Sunday. All we girls come
Sunday and she didn't, and that Friday was her last day of
working I never saw her Monday." She also testified on
cross-examination concerning her knowledge "How do you
call this I mean we were a bunch of girls there. Shirley didn't
come to work because she didn't want to work Sundays, she
said. So we all have to work Sundays and we were just thinking
that was why she didn't come to work Monday, but I didn't
ask Jerry why she didn't come, or anything I didn't ask
anybody." There is an indicated language expression difficulty
in her testimony but a basis for her conclusions is nevertheless
furnished A similar response was elicited by a question from
the Trial Examiner "I just had a feeling I know because all of
them have to work Sundays. I was surprised how one person
wouldn't have to work Sundays."
Further, in connection with the question of the Sunday
work, there is Vanderwyst's testimony that earlier in the week
she had a discussion with Millie Fry in which she testified she
told Mrs Fry she was going to ask for Sunday off - to ask
Claus if she could continue having Sunday off and that Fry
was mad and wouldn't talk to her According to Vanderwyst,
Fry had been getting Sundays off and didn't want to work
Sundays. Vanderwyst said she said this to Fry because Jo
Stone, a woman in the front office, had said during the
beginning of the week, Vanderwyst would have to start
working Sundays The foregoing, including particularly the
Vanderwyst-Fry incident lends additional credence to Claus'
version about a meeting with the girls where they were told
they would have to work Sunday. Govednic, as indicated, also
confirmed this requirement. Further, the Sunday requirement
was prior to any union activity.
Also pertinent to the matter of what actually occurred is
evidence that Vanderwyst quite properly considered her family
obligations as perhaps ahead of employment First, she had
previously given up her job to take care of her little boy when
he fell and broke his leg; second, she did not want to work
Sunday and so stated because it was her husband's only day
off; third, she had planned in the summer to take 6 weeks to 2
months to visit her mother. I do not in any way suggest that
the foregoing is other than commendable. However, it does
raise a question as to her intentions with respect to the job if it
required Sunday work and hence may have some bearing on
what transpired.
Another item to consider is Vanderwyst's attitude toward
her work She was asked on cross-examination if she was
happy about her job and replied "yes." She was asked if she
complained about her job and working conditions and replied
"no." She was then asked if she complained to Mrs Stone
about the help and replied "yes." She was asked:
Q Whom did you complain about?
A I felt that I was not being treated right
Q. Why was that?
A Because I was to understand that I was to work in
the front and I felt I was being used because I was jerked
back and forth. If I had one specific job, I would have done
it.
She didn't tell Claus because Mrs Stone kept telling her she
would speak to Claus.
The foregoing indicates a rather complex credibility resolu-
tion. It also involves an overall situation in which the burden
of proof is on the General Counsel to establish by a
preponderance of the evidence that the Respondent violated
20 Claus also said sometimes people are advanced time which would
be for time not worked, or credited for a holiday but no overtime
would then apply However, no explanation was given as to any such
application herein
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. Although not free from doubt, I am not satisfied that
in the case of Vanderwyst he has done so.
The General Counsel's case rests on the testimony of
Vanderwyst, previously credited in certain respects, buttressed
by the findings of threats and other violations particularly the
termination of Maher, and the check stub for the period
ending April 8.
The Respondent's case rests on the testimony of Claus
previously discredited in certain respects, the same check stub
for period ending April 8 indicating that as Vanderwyst's last
day of employment, buttressed by the testimony of Mrs Claus
as to practice relative to making out the payroll, all of the
testimony and records above referred to which indicate that
the General Counsel's explanation of the 45 hours straight
time may be an oversimplication and that other explanations
may be in order, the testimony of Govednic that Vanderwyst
did not work Sunday or Monday and that they were expected
to work Sunday, the testimony of Vanderwyst regarding her
talk with Fry, and the evidence that Vanderwyst did not want
to work Sundays, planned to leave for a lengthy vacation in
summer, and was evidently not happy about working in back.
In addition, a question may be posed if Claus knew about
Maher's activities on Friday afternoon which he commented
on in the conversation overheard by Vanderwyst, did he also
then know of Vanderwyst? If he did and was concerned about
it, whey would he tell Vanderwyst she didn't have to work
Sunday when he knew she didn't want to? Claus' information
as to Maher would have come either from people Maher spoke
to directly or persons Vanderwyst spoke to. The above
question is not posed rhetorically but merely to show another
one of the aspects to be considered The General Counsel, of
course, claims Claus learned of Vanderwyst's union activity
later on Monday but there is no specific evidence relative to
such time.
While not free from doubt, from my overall appraisal of the
evidence and evaluation of it and appraisal of the witnesses I
am not convinced that Vanderwyst's testimony as to conversa-
tions with Claus on Friday and Monday relative to her
employment should be credited, and accordingly conclude that
the General Counsel has not established a violation of Section
8(a)(3) of the Act in the case of Shirley Vanderwyst. I shall
accordingly recommend that the complaint be dismissed with
respect to the allegation of such violation.
3 The discharge of James Wilde
James Wilde was first employed at Respondent2 i in
November 1966, worked for a short time as a cleanup and
maintenance man and then became an ovenman, a job he held
until terminated on April 18, 1967 He worked the second or
bread shift with a starting time from the end of January 1967,
of about 10 am., although this fluctuated somewhat de-
pending on daily workload. Sometime after Maher signed a
card on April 5, he contacted Wilde concerning his interest in
the Union. As previously set forth, Maher places this about
Monday, April 10, and Wilde, about 2 weeks prior to his
termination on April 18. Wilde subsequently placed the time as
Thursday, April 7, or Friday, April 8. As indicated, supra, I
have not considered this time variance of material significance
but have concluded that Maher contacted Wilde about April
102 2 and that Wilde, at Maher's request, undertook to solicit
other employees to join the Union In addition to signing a
card himself, Wilde handed out three or four cards to
employees, specifically naming Ed Smagge, James Kirk, and a
Tony He asked them to sign the cards and return
them either to him or Maher Wilde received from Maher and
distributed all of these the same day, Maher contacted him
concerning the Union
On April 18, when Wilde reported for work, he was met by
Claus and told he was discharged on the ground he had been
tardy too often. According to Wilde "He [Claus] told me that
that was the third day that week I had been late to work, he
didn't need me anymore " Wilde admitted he had been late 3
days in a row at the time he was discharged but testified that
no one had said anything about this prior to his discharge.
Wilde also admitted he had been from 10 to 30 minutes late
once or twice a week for 2 or 3 months but testified that no
one ever said anything to him about it Wilde made no inquiry
or comment when told of his discharge. He testified that he
did not because he felt the real reason was his efforts on behalf
of the Union. In this connection, on cross-examination, Wilde
admitted he filed an application for unemployment benefits in
which he stated that the reason for termination was "for being
late to work" The Respondent contended that Wilde, in
addition to being tardy the last 3 days, had been tardy
repeatedly over a rather extensive period, and that he had been
warned of this repeatedly Respondent also contended that
Wilde was a constant violator of a rule against smoking and
that he was repeatedly going to the restroom or the back and
had been warned against this on numerous occasions. Respon-
dent also stated that Wilde had by leaving the area for too long
and otherwise caused bread on numerous occasions to burn so
that more bread was burned than normal and that Wilde was
also warned about this but didn't seem to care
Claus testified that Wilde was a "half hour, hour late" the
day he was fired. Claus said he told Wilde that he had been
warned repeatedly and that he was through. Claus then
testified, "He had been warned by me repeatedly about
coming to work late." Claus recalled this conversation as
occurring early in the week. Claus was asked if he recalled the
time before his termination Wilde had last been late. Claus
testified Wilde had been late two previous Sundays, the first
one he asked Wilde why he was late and was told his car was
"struck [sic] in the driveway." The next Sunday Claus told
Wilde he was tired of having to be there every Sunday
wondering whether he was going to work or not and that he
wanted him to work on time Claus testified. "I warned him
that if it happened again I would terminate him." Claus said
Wilde was periodically late and had a particular problem of
arriving on time on Sunday Claus was asked about whether on
occasions that Wilde was tardy he spoke to him and replied,
"There was a time I spoke to him, times I let it go by." Claus
was asked if the second Sunday he warned Wilde about
discharge was the only time. Claus replied "I may have told
him previously."
Clause was asked if he recalled any other time telling Wilde
he aught discharge him for tardiness. Claus replied "That one
Sunday I remember I was explicit about tardiness, however, I
21 Wilde had previously been employed (apparently for several 22 If the time were Thursday , April 7, or Friday , April 8, it would
years ) at a bakery subsequently taken over by Respondent There was a not appear to have any material effect in Wilde's case.
3-week gap in his employment following the takeover
SANFAIR BAKERIES, INC 661
told him previously on other occasions about other things in
his work if he didn't change." Accordingly, although Claus had
testified to talking to Wilde at times about being late, as set
forth, he could remember only one time he specifically warned
him of discharge for tardiness.
Claus then testified as to other things, such as loading the
oven and then going in the restroom. Claus warned him about
that and bread burning as a result Claus also testified he
reprimanded Wilde about leaving the ovens to go back to have
a cigarette. Claus further said that Wilde "Instead of loading
the ovens, he would take the job of bringing trays over to the
oven, he wouldn't do it fast enough, and I had to do it. The
bread wasn't too burnt . .." Claus then testified all of these
derelictions, described, led to burning bread.
With respect to when he started talking to Wilde about his
shortcomings, Claus testified "He worked for a period of
months very good, and all of a sudden he seemed to, as you
might say, lose interest in his work, and acted like he could
care less." Claus said this indifferent attitude persisted for a
period of 2 or 3 months before he terminated Wilde and that
during that time, "There were days he did real well, there were
days, like I said, he didn't seem to care." Claus said he had
been trying for 6 weeks to find a replacement and was working
in the ovens himself
Claus then testified ` ...I was working in the ovens
myself, and I made an issue, I felt by making an issue of
whether you are to work on time it would straighten out, after
I directed myself, I had no alternative but to terminate him I
had made the issue with him and stated to him that the next
time he was late would be the last. And I felt that I could go
on with it no longer, that I had to back up my position as the
authority that I had in the bakery, that I had to go through
with the decision I had told him."
Claus then testified he told Wilde the next time, when he
came in a half hour late, that he was through. Claus said he had
made up his mind when he told Wilde "the next time he was
late ......
Paul Trichak, bakery superintendent or supervisor (and a 25
percent owner of the business) testified respecting Wilde that
he would give him his starting time, normally 10 am. but
sometimes 11, occasionally, but not after 12 o'clock.
According to Trichak, Wilde was late in February, March, and
April, 1967, two or three times a week. Trichak said Wilde was
an hour or an hour and a half late generally. Trichak testified
he spoke to Wilde about his late arrivals and told him they had
schedules so that he had to be there at a certain time as it
interfered with production. This also required either Claus or
himself to work in the oven, and took them away from other
operations such as in his case mixing etc.
According to Trichak, Wilde didn't give me much of an
answer. He acted like he didn't care. Trichak said he reported
Wilde's lateness to Claus Trichak also testified that " . . I
heard Mr Claus angrily tell him one time that he had to be at
work on time or we would get someone else." Trichak placed
the latter conversation as about a week before Wilde was
terminated.
Trichak further said Wilde usually had an excuse, that when
first hired, Wilde was a good employee, and, "Then he got so
he didn't care "
Trichak testified he spoke to Wilde about violation of other
company rules or duties, that he spoke to him a couple of
times about smoking while on the oven which was against
company rules and as to which inspectors were strict.
According to Trichak, Wilde smoked wherever and whenever
he wanted to.
Trichak referred to Wilde's going to the restroom for 10
minutes on more than one occasion and allowing bread to
burn Trichak said in the last 2 or 3 weeks Wilde was
particularly lax. He testified he went to find Wilde when he
saw no one at the oven and he knew the oven should be
coming out, etc.,23 and would find him in the restroom
smoking According to Trichak he would say "are we going to
let this oven of bread burn or are we going to take it out "
Trichak said Wilde's response was either a grumble or he
would not say anything. Wilde would then come out and pull
the oven. Trichak reported this to Claus. Trichak said the
above occurred in the last couple of weeks of employment-
that it had happened earlier but Wilde was at his worst the last
couple of weeks
In response to a question from the Trial Examiner, Trichak
said he spoke to Wilde about smoking "probably three times "
The first was shortly after employment and the last a week or
2 weeks prior to his dismissal. Trichak also said he went to the
restroom after Wilde two or three times. The last was within
the couple of weeks prior to termination when he "had to be
on him all the time, whether it was in the rest room or
wherever it was, . . about taking care of his job."
Subsequently, Trichak testified he had to go to the restroom
for Wilde frequently and he reported it to Claus on two or
three different occasions. He said he told Claus every time the
bread was burned. The last time he had to locate Wilde in the
restroom was within the last week (of employment).
Trichak said on cross-examination if an employee wanted to
take a break and smoke he was instructed to go to the
restroom. He then testified on redirect that Wilde was usually
there 10 to 15 minutes and frequently. He added that in
addition to pulling the oven, Wilde had other duties such as
filling trucks with ingredients, and keeping the place clean
including bench and floor and that Wilde neglected to do any
of these the last month before he left.
The General Counsel admits that Wilde was not an ideal
employee, that he was tardy on a regular basis and that his
habit of smoking interfered with good bread baking but claims
that the timing of his discharge and the ending of toleration of
his shortcomings at or about the time he engaged in union
activities reveal an illegal motive. The Respondent's position,
in essence, appears to be that while Wilde had performed
reasonably, although not completely, satisfactorily up to a
certain point, that he gradually lost all interest in his work and
as a result ignored warnings about tardiness and about bread
burning and adopted an attitude of not caring The record and,
in fact, Wilde's own testimony, in substantial part, supports
the latter version of the Respondent
Wilde admitted that he smoked occasionally in the pro-
duction area and that if he didn't smoke there he went to the
locker room 50 feet away or the back dock a 100 feet away.
He said he was warned about not smoking in the production
area by Al Woods, who told him it was not allowed by .
supervision. Woods also along with Claus and Trichak would
tell him what time to come to work. Wilde also admitted
talking to Claus about smoking several times. He testified Claus
approached him on the back dock several times and told him
23 Trichak explained he looked at the oven and the bread was
getting darker
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to get back on the oven. Claus wanted him to watch the ovens
more carefully. He knew of no particular reason for that. Wilde
was asked if Claus ever pointed out any reason he should be at
the oven when he was not, and answered "He wanted one of us
at the oven at all times " Wilde said this wasn't his responsi-
bility when asked if he attempted to see this was done. Wilde
was asked if he sought permission to go to the back dock to
have a cigarette and answered, "No, sir." Wilde said that a
supervisor was not there at all times when he decided to have a
cigarette and supervisors did not release him to have a
cigarette He said he went to the dock area 4, 5, or 6 times a
day to smoke and if there was a supervisor in the immediate
area he asked permission but not otherwise. He said one of
them would always try to watch the ovens or tell the other one
we were going at the time. Wilde was asked
TRIAL EXAMINER What if somebody wasn't around, did
you go anyway.
A. Yes, sir.
TRIAL EXAMINER Then you didn't make sure that
someone else was watching the oven'
A. If I was watching the oven at the time and I had time
I would go
TRIAL EXAMINER That is without either getting per-
mission or making sure that somebody else was there to
watch the oven, you would go anyway, is that it?
A. Yes, sir
Wilde said he did not burn any more bread than normal and
that no one spoke to him about bread burning. As set forth
above, Wilde adrrutted he was late on a regular basis once or twice
a week for 2 or 3 months-February, March, and April, and
denied that he was ever spoken to about his lateness which he
said was about 10 to 30 minutes. Wilde as stated said that at the
time, Claus told him he had been late 3 days in a row (which he
admitted) he said nothing Wilde said he didn't feel it would do
any good When asked why, Wilde said, "A. Well, his attitude and
the union spreading through the shop, everything tied together."
Wilde said in response to a question as to why he was late that
"I got the impression there was no particular time that I had to
be there " Then after it was pointed out that he had already
admitted to being late, he said "I had stated that I was late to
work repeatedly in the last month or two months of my job."
[Emphasis supplied.]
Wilde said he got along "ordinarily" with Claus, that he did
not like his job and was not satisfied there He said he liked
baking but "didn't like that particular place to work." He also
didn't like Mr Claus' personality. Wilde attributed his discharge
to the Union in part and to his general impression of Claus, the
whole operation and statements he made to other employees
about the Union coming in and working conditions. He blamed
union activity and voicing his opinion to employees that it was
a hard place to work in with Claus' attitude toward employees
Previously referred to is his filing an application with the State
of Alaska setting forth that the reason for his termination was
"late for work "
Wilde denied there was a reason for being late for work.
However, further examination developed that there had been
difficulty with one of the two automobiles he and his wife had
and a problem had arisen in connection with her getting to
work and then obtaining time off to pick him up whenever she
took the operating vehicle to go to work This was one of the
reasons for his being late He admitted someone else would
have to do his job when he was late. Wilde said he was only
gone a few minutes, 3 or 4 or 5 minutes, when smoking a
cigarette. This is obviously an understatement particularly
when he usually walked 50 or 100 feet and back Among the
regulations or conditions Wilde complained about to fellow
employees was not being given time to smoke Wilde also
denied that anyone else expressed himself as strongly as he did.
He said that his opinions about working conditions were not
expressed to any greater extent after organization commenced
than before
Another witness, John Reynolds, testified that he started
employment at Sanfair about April 1967, worked on the oven
with Wilde and that Wilde was from 10 minutes to a half hour
late to work almost every day Reynolds also testified that
shortly before Wilde was laid off that Wilde said that he wished
he would get laid off so he could draw his unemployment
compensation
The timing of discharge does not appear to directly relate to
Wilde's organizing which was evident but not great, although
he tried to make it appear so. Wilde's work conduct also was
clearly becoming progressively worse His attitude was
obviously indifferent.
Although Wilde denied being spoken to or warned about his
tardiness, I do not credit his testimony in this respect. The
degree, continuity and extent thereof, makes much more
plausible the testimony of Claus and Trichak that they did
speak to him about it and also of Claus that he warned him on
the Sunday preceding termination that continuation thereof
would result in discharge Wilde admittedly did not like the
job, admittedly smoked when he shouldn't, admittedly left the
oven without permission to smoke in the restroom or in the
rear requiring supervision to locate him or temporarily replace
him, and admittedly was warned about smoking and spoken to
about leaving the oven unattended. I also find and conclude
based on credited testimony of Claus and Trichak that Wilde
did not perform his job properly. I accordingly conclude that
Wilde was discharged for valid cause. In any event, I find and
conclude that the General Counsel has not established illegal
motivation I am accordingly recommending that the com-
plaint be dismissed as to Wilde.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The conduct of the Respondent set forth in section III,
above, occurring in connection with the 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
V. THE REMEDY
It has been found that Respondent has engaged in certain
unfair labor practices. It will therefore be recommended that it
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
Having found that Respondent discriminated against Terry
Maher by discharging him, it will be recommended that
Respondent offer said employee immediate and full reinstate-
ment to his former or substantially equavalent position
without prejudice to his seniority or other rights and privileges.
It will also be recommended that Respondent make said
employee whole for any loss of earnings he may have suffered
by reason of the discrimination against him by payment to him
of a sum of money equal to the amount he normally would
have earned as wages from April 12, 1967, to the date of
SANFAIR
Respondent's offer of reinstatement less his net earnings
during said period
Loss of earnings shall be computed in accordance with the
formula prescribed in F. W. Woolworth Company, 90 NLRB
289, and interest at the rate of 6 percent per annum shall be
added to the backpay to be computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that Respondent preserve and,
upon request, make available to the Board, payroll and other
records to faciliate computation of backpay, and the deter-
mination of proper effectuation of reinstatement
In view of the nature and extent of the unfair labor
practices engaged in by Respondent as found above, it will
further be recommended that Respondent be ordered to cease
and desist from infringing in any other manner upon the rights
of employees guaranteed in Section 7 of the Act
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, the Trial Examiner makes the
following.
CONCLUSIONS OF LAW
1. Sanfair Bakeries, Inc. is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local 959, is a labor
organization within the meaning of Section 2(5) of the Act.
3 By discharging Terry Maher on April 12, 1967, to
discourage membership in a labor organization, Respondent
has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
4. As found above by interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
6. The General Counsel has failed to prove by a prepon-
derance of the evidence that Respondent discharged Shirley
Vanderwyst on or about April 10, 1967, in violation of
Section 8(a)(3) and (1) of the Act.
7. The General Counsel has failed to prove by a prepon-
derance of the evidence that Respondent discharged James A.
Wilde on or about April 18, in violation of Section 8(a)(3) and
(1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case, it is
hereby recommended that Respondent, Sanfair Bakeries, Inc.,
its officers, agents, successors, and assigns, shall'
1. Cease and desist from'
(a) Discouraging membership in International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Local 959, or in any other labor organization of his
employees by discriminating in regard to their hire and tenure
of employment or any term or condition of employment.
BAKERIES, INC. 663
(b) Unlawfully interrogating employees with respect to
union membership or activities.
(c) Threatening employees with discharge or reprisal for
participating in union activities or supporting a union.
(d) In any other manner interfering with, restraining, or
coercing his employees in the exercise of their right to
self-organization, to form, join, or assist labor organizations,
including the above-named labor organization, to bargain
collectively through representatives of their own choosing, or
to engage in other concerted activities for the purpose of
collective bargaining or mutual aid or protection, or to refrain
from any or all such activities except to the extent that such
right may be affected by an agreement authorized by Section
8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act
(a) Offer Terry Maher immediate and full reinstatement to
his former or substantially equivalent position without pre-
judice to his seniority and other rights and privileges.
(b) Make Terry Maher whole for any loss of earnings he
may have sustained as a result of the discrimination against
him in the manner prescribed in Section V of this Decision
entitled "The Remedy."
(c) Notify Terry Maher 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.
(d) Preserve and, upon request, make available to the Board
and its agents, for examination and copying, all payroll
records, and all other records relevant or necessary to the
determination of backpay due and to the reinstatement and
related rights provided under the terms of this Recommended
Order.
(e) Post at its place of business located at Fairbanks,
Alaska, copies of the notice attached hereto and marked
"Appendix." 24 Copies of said notice, on forms to be furnished
by the Regional Director for Region 19, shall, after being duly
signed by an authorized representative of Respondent, be
posted by Respondent immediately upon receipt thereof, and
maintained by him 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.
(f) Notify the Regional Director for Region 19, in writing,
within 10 days from the date of this Recommended Order, what
steps have been taken to comply herewith .2 5
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
2 4 In the event that this Recommended Order be adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words "a Recommended Order of a Trial Examiner " in the notice. In
the further event that the Board 's Order be 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 "
25 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."
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 discourage membership in International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local 959, or any other labor
organization, by discharging, laying off, or otherwise
discriminating in regard to the hire and tenure of employ-
ment, or any term or condition of employment of our
employees.
WE WILL NOT unlawfully interrogate employees with
respect to union membership or activities.
WE WILL NOT threaten employees with discharge or
reprisal for participating in union activities or supporting a
union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the right
to self-organization, to form labor organizations, to join or
assist the above-named labor organization, or any other
labor organization, to bargain collectively through repre-
sentatives 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 such activities, except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
WE WILL offer to Terry Maher immediate and full
reinstatement to his former or substantially equivalent,
position without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay
suffered as a result of the discrimination against him.
Dated By
SANFAIR BAKERIES,
INC.,
(Employer)
(Representative) (Title)
Note We will notify Terry Maher if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed
Forces
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If employees have any question concerning this Notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 327 Logan Building,
500 Union St , Seattle, Washington 98101, Telephone
583-7473.