Tasty Baking Co.

National Labor Relations Board - Board Decisions

Jan 31, 2000

330 N.L.R.B. 560 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560
Tasty Baking Company and Teamsters Union Local
115, a/w International Brotherhood of Team-
sters, AFL-CIO. Cases 4–CA–24152, 4–CA–
24611, 4–CA–24891, and 4–CA–25014
January 31, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On June 15, 1998, Administrative Law Judge George
Aleman issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a brief in reply to the answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
Contrary to our dissenting colleague, we agree with the
judge, for the reasons stated by him, that Supervisor
Thomas Kenny’s remarks to employee Billy Martin on
January 26, 1996, violated Section 8(a)(1) of the Act.
The credited evidence established that at one point in
their conversation Martin stated that employee Michael
Flannery did not deserve the warning he had received on
January 12 for leaving crumbs in the depositor because it
was Martin’s responsibility, and not Flannery’s, to get rid
of the crumbs. Kenny stated that he did not care whose
job it was, “that he had told Mike that if Mike f—ked
him, he would f—k Mike back.” Kenny then told Martin
that “if you f—k me, I’ll f—k you back.” Kenny ended
by saying, “now, I’m getting Mike. I told him I was go-
ing to do it. Now I’m doing it.”

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In affirming the judge’s decision, we note that under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982), to establish a violation under Sec. 8(a)(3),
the General Counsel must show that animus against the union activity
was a motivating factor in the respondent’s conduct. The respondent
must then show that it would have taken the same action even in the
absence of the union activity to avoid liability. Here, the credited evi-
dence clearly establishes that the Respondent’s animus against the
union activities of Michael Flannery and Robert Nolan was a motivat-
ing factor in their disciplinary warnings and Nolan’s suspension and in
the demotion and transfer to the night shift of Michael’s wife, Edwina
Flannery, and that the Respondent did not meet its burden of showing
that it would have taken those same actions in any event. We therefore
disavow the judge’s characterizing the evidence of the Respondent’s
actions in those incidents as either “supporting an inference” or show-
ing that those actions “may have been motivated by” antiunion animus.
3 We shall modify the judge’s recommended Order to correct inad-
vertent omissions and to conform to our decision in Excel Container,
Inc., 325 NLRB 17 (1997).
As the judge found, Martin could reasonably conclude
from Kenny’s remarks, in light of Flannery’s role as an
open and leading union adherent, that the warning issued
to Flannery on January 12 had nothing to do with his
work performance but was motivated by his union activi-
ties and that his own involvement in the Union could
lead to similar reprisals against himself. Under those
circumstances, we adopt the judge’s finding that Kenny’s
remarks constituted an unlawful threat.
We also agree with the judge, contrary to our dissent-
ing colleague, that the allegation in the charge that the
Respondent unlawfully demoted an “employee” is suffi-
cient to support the complaint allegation that the Re-
spondent unlawfully demoted a “supervisor.” As the
judge noted, the term “employee” in the charge was used
in its generic sense and intended to reflect someone em-
ployed by the Respondent. Nothing in the Act nor in
Board precedent requires a charging party to use the de-
gree of precision in drafting a charge that the Respondent
and our dissenting colleague would mandate.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Tasty
Baking Company, Philadelphia, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(d).
“(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.”
2. Substitute the following for paragraph 2(c).
“(c) Within 14 days of this Order, remove from its files
any and all reference to the unlawful written warnings
issued to Michael Flannery on January 12 and June 6,
1996, to the 3-day suspension and written warning issued
to Robert Nolan in February 1996, and to the demotion
and transfer to the night shift of Edwina Flannery, and
within 3 days thereafter, notify the employees in writing
that this has been done and that these unlawful actions
will not be used against them in any way.”
3. Substitute “June 13, 1995” for “August 17, 1995” in
paragraph 2(e).
4. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HURTGEN, dissenting in part.
Although I agree with my colleagues in most respects,
I do not agree with two of their findings.
The judge found, and my colleagues agree, that Super-
visor Thomas Kenny, in speaking to employee Billy
Martin, violated Section 8(a)(1) by his remarks about
330 NLRB No. 80
TASTY BAKING CO. 561
employee Michael Flannery.1 Kenny stated to Martin that
he had warned Flannery that he (Kenny) would “f—k”
Flannery back if Flannery “f—ked” him. Kenny directed
the same sentiment to Martin. In light of Flannery’s be-
ing an open and active union adherent, the judge con-
cluded that Kenny’s remarks suggested reprisals for un-
ion activity. However, Kenny’s remarks were made in
response to Kenny and Martin’s discussion about
Flannery’s being warned because crumbs were found in
the Respondent’s depositor. Martin opined that Flannery
did not deserve the “crumb” warning and Kenny dis-
agreed. Thus, in this context, it has not been firmly estab-
lished that Kenny suggested reprisals for union activity.
Rather, it is equally (if not more) plausible that Kenny
was referring to Flannery’s failure to insure that the de-
positor was clean, and that Martin would so understand
the reference.
Secondly, contrary to the judge and my colleagues, I
find, for procedural reasons, that the Respondent’s demo-
tion of Supervisor Edwinna Flannery (E. Flannery) did
not violate the Act.2 The complaint allegation regarding
the demotion of E. Flannery was not closely related to
any timely charge allegation. Thus, it is barred by Sec-
tion 10(b).
In Redd-I, Inc., 290 NLRB 1115 (1988), the Board set
forth the factors it would consider to determine whether
otherwise untimely allegations of violations of the Act
are closely related to timely filed allegations so that the
former are not time barred under Section 10(b). The
Board examines (1) whether the untimely allegation and
the timely allegation involve the same legal theory and
same subsection of the Act, (2) whether they arise from
the same factual circumstances, and (3) whether a re-
spondent would raise similar defenses to both allega-
tions. Here, applying these factors, I conclude that the
allegation about E. Flannery’s demotion is time barred.
The Respondent demoted E. Flannery in June 1995.
An amended charge, filed October 16, 1995, alleged that
Respondent violated Section 8(a)(3) by “by demoting an
employee for supporting and associating with the Un-
ion.” However, the first complaint, issued February 12,
1996, alleged that the Respondent violated Section
8(a)(1) by demoting E. Flannery from the position of
supervisor.
There is a fundamental difference between an em-
ployer action directed at the union activity of an em-
ployee and employer action directed at the union activity
of a supervisor. The former case is that typically before
the Board, and involves Section 8(a)(3) of the Act. The
focus is on the union activity of the employee and
whether the employer retaliated against that employee
because of his or her union activity. In the latter case, the

1 As fully recounted by the judge, Michael Flannery was a leading
union adherent.
2 Edwinna Flannery is the wife of union activist Michael Flannery.
focus is on Section 8(a)(1) and whether the employer
action against a supervisor interfered with employee Sec-
tion 7 rights. Employer actions against a supervisor vio-
late the Act only in limited circumstances. In this case,
the General Counsel urged that the demotion of E.
Flannery was unlawful under the holding of cases like
Advertizer’s Mfg. Co., 280 NLRB 1185 (1986). That case
holds that it is unlawful for an employer to take adverse
action against a supervisor if that action has a “direct,
severe and unmistakable thrust” that interferes with the
Section 7 rights of employee relatives of the supervisor.
I now apply the elements of Redd-I. First, it seems
clear that the theory of the General Counsel’s case here is
substantially different than that alleged in the charge.
The General Counsel argues that the demotion of Super-
visor E. Flannery violated Section 8(a)(1) because it in-
terfered with the protected activity of her spouse. The
charge, quite differently, alleged an 8(a)(3) demotion of
an employee for that same employee’s protected activity.
Second, the facts critical to a supervisory demotion
would differ from those critical to an employee demo-
tion. As to the former, the General Counsel must adduce
evidence regarding the relationship between the em-
ployee and the supervisor. And, the General Counsel
must show that the adverse action against the supervisor
had a “direct, severe, and unmistakable” impact on the
employee relative. By contrast, an 8(a)(3) case requires
only a showing of discriminatory motive.
Finally, an employer’s defenses to its actions toward a
supervisor would typically differ from its defenses in
regard to its actions toward an employee. Again, in re-
gard to an allegation involving an employee discharge,
an employer would defend by attempting to show it did
not act in retaliation for the employee’s union activity.
For an allegation regarding a supervisor, the employer
can show, inter alia, that its actions against a supervisor
had insufficient impact on employee rights.
Overall, the differences between an 8(a)(3) “employee
case” and an 8(a)(1) “supervisor case” are stark and fun-
damental.3 Thus, I cannot find that a charge alleging the
8(a)(3) demotion of an employee is closely related to a
complaint alleging an 8(a)(1) demotion of a supervisor.4
3 My colleagues seek to minimize the fundamental difference be-
tween “employee” and “supervisor.” In my view, the difference is not
simply a legal distinction, but is one that would be well understood by
the Charging Party Union. In any event, the General Counsel’s agents,
working in the Regional Office, surely knew the difference, and they
could have easily suggested to the Charging Party that it may wish to
amend the charge. Such an amendment would have apprised Respon-
dent as to the essential nature of the charge. Notwithstanding all of this,
the charge was never amended.
4 For reasons set forth in my partial dissent in Ross Stores, 329
NLRB 573 (1999), I would not find that the untimely and timely allega-
tions are closely related merely because they are based on acts that arise
out of the same anti-union campaign.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 562
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten Michael Flannery, Billy Martin,
or any other employee with discharge or unspecified re-
prisals because they engaged in union or other concerted
protected activity.
WE WILL NOT retaliate against Edwina Flannery be de-
moting her from a supervisory position to a packer posi-
tion and assigning her to the night shift because her hus-
band, Michael Flannery, engaged in activities on behalf
of Teamsters Local 115, a/w International Brotherhood
of Teamsters, AFL–CIO.
WE WILL NOT suspend or issue a written warning to
employee Robert Nolan and WE WILL NOT issue written
warnings to Michael Flannery because of their activities
on behalf of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Edwina Flannery full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges she previously en-
joyed.
WE WILL make Edwina Flannery whole for any loss of
earnings and other benefits resulting from her unlawful
retaliatory demotion, and WE WILL also make Robert
Nolan whole for similar losses sustained by him by vir-
tue of the unlawful 3-day suspension imposed on him on
January 31, February 1 and 2, 1996, less any net interim
earnings, plus interest.
WE WILL, within 14 days of the Board’s Order, remove
from our files any and all reference to the unlawful writ-
ten warnings issued to Michael Flannery on January 12,
and June 6, 1996, to the 3-day suspension and written
warning issued to Robert Nolan in February 1996, and to
the demotion and transfer to the night shift of Edwina
Flannery, and WE WILL, within 3 days thereafter, notify
the employees in writing that this has been done and that
these unlawful actions will not be used against them in
any way.
TASTY BAKING COMPANY

Elana R. Hollo, Esq., for the General Counsel.1
Barry Simon, Esq., for the Respondent.
Norton H. Brainard III, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE ALEMÁN, Administrative Law Judge. A formal
hearing in this matter was held before me in Philadelphia,
Pennsylvania, between February 26 and March 5, 1997, follow-
ing charges filed by Teamsters Union Local 115, a/w Interna-
tional Brotherhood of Teamsters, AFL–CIO (the Union) be-
tween August 17, 1995, and July 12, 1996.2 On February 12,
1996, the Regional Director issued a complaint in Case 4–CA–
24152 (G.C. Exh. 1[g]), and on November 26, 1996, issued a
consolidated complaint in Cases 4–CA–24611, 4–CA–24891,
and 4–CA–25014 (G.C. Exh. 1[x]). On December 10, 1996,
the Regional Director issued an order consolidating both com-
plaints for hearing (G.C. Exh. 1[cc]). The consolidated com-
plaint alleges that Respondent, Tasty Baking Company, had in
various manner violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). The Respondent thereafter filed
an answer to the consolidated complaint on December 6, 1996,
denying the above allegations.3
All parties were afforded full opportunity at the hearing to
appear, to call and examine witnesses, to submit oral as well as
written evidence, and to argue orally on the record.4 On the

1 Herein referred to as the General Counsel.
2
All dates are in 1996, unless otherwise indicated. The General
Counsel’s and Respondent’s Exhibits are identified respectively as “GC
Exh.” and “R. Exh.” followed by the exhibit number. Record testi-
mony is identified by the transcript (Tr.) page number. The various
charges and amended charges are set forth in G.C. Exh. 1(a), (c), (e),
(j), (l), (m), (r), (t), and (v).
3 By Order dated February 13, 1997, the Regional Director granted
the Charging Party Union’s request for partial withdrawal of the charge
in Case 4–CA–25014, and, accordingly, dismissed the corresponding
allegations contained in par. 12 and part of par. 14 of the November 26,
consolidated complaint relating to the removal of an employee from a
training program (G.C. Exh. 1[x]).
4 A sequestration order was put into effect on a motion by the Re-
spondent, from which only alleged discriminatees Edwina and Michael
Flannery, and Respondent’s vice president for human relations, Wil-
liam Mahoney, were exempt. The Respondent sought to also exempt
Supervisors Joe Carboy, Tom Kenny, Dave Britsch, and Joe O’Boyle,
all of whom are alleged in the complaint to have engaged in unlawful
conduct on behalf of the Respondent, claiming their presence was “es-
sential” because the allegations involving them were purportedly too
vague to allow the Respondent to defend itself without the supervisors
being present to assist it. I denied the Respondent’s request. Initially,
Respondent’s claim that the allegations involving these four supervisors
were too vague is without merit, for the complaint clearly identifies the
conduct being attributed to them, as well as date when the conduct is
alleged to have occurred. Further, having selected Mahoney as its
chosen representative to assist in its defense, the presence of any or all
of these four supervisors was not necessary, as Mahoney or Respon-
dent’s counsel could easily have prepared the four to respond to any
adverse testimony presented in their absence. In these circumstances,
their exclusion from the hearing was proper under Rule 615 of the
Federal Rules of Evidence, and consistent with the Board’s Model
TASTY BAKING CO. 563
basis of the entire record in this proceeding, including my per-
sonal observation of the demeanor of the witnesses, and after
considering briefs filed by the General Counsel and the Re-
spondent,5 I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Pennsylvania corporation with an office
and place of business in Philadelphia, Pennsylvania, where it is
engaged in the production and distribution of snack cakes, pies,
cookies, donuts, and other baked goods, and products. During
the calendar year ending December 31, 1995, a representative
period, the Respondent, in the course and conduct of its busi-
ness operations, sold goods and products valued in excess of
$50,000 directly to customers located outside the Common-
wealth of Pennsylvania. The complaint alleges, and I find, that
the Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. I also find that
the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. PROCEDURAL ISSUES
Respondent’s Motion to Dismiss
On brief (R. Br. 25), the Respondent argues, as it did at the
start of the hearing, that paragraphs 7(a)–(c), 9, and 10(b)–(e) in
the November 26, consolidated complaint are procedurally
deficient under the holding in Lotus Suites v. NLRB, 32 F.3d
588 (D.C. Cir. 1994), and must therefore be dismissed for lack
of factual specificity. I adhere to my prior ruling that Lotus
Suites is not controlling here (Tr. 79–80).
In Lotus Suites, the D.C. Court of Appeals declined to en-
force the Board’s order which directed the employer therein to
cease and desist from engaging in certain 8(a)(1) conduct, and
to post a remedial order. In doing so, the court found that the
Board lacked jurisdiction to issue the complaint because the
latter was supported only by a general boilerplate allegation in
the underlying charge that “was utterly lacking in factual speci-
ficity.” Id. at 592. The court concluded that the Board’s com-
plaint in that case failed to satisfy even its own requirement as
set forth in Nickles Bakery of Indiana, 296 NLRB 927 (1989),
and Redd-I, Inc., 290 NLRB 1115 (1988), that “the complaint
allegation be factually related to the allegation in the underlying
charge.”6

Sequestration Rule as described in Greyhound Lines, 319 NLRB 554
(1995).
5 The General Counsel’s unopposed motion to correct certain minor
inaccuracies and typographical errors in the record is granted. The
record is corrected to reflect that the proper spelling of the General
Counsel’s name is as set forth just below the case caption in this deci-
sion. The record is further corrected as follows: At Tr. 125, L. 6,
change “Bake” to “Baking,” at Tr. 161, LL. 7, 25, change “panes” to
“pans,” at Tr. 185, L. 9, change “beating” to “feeding,” and at Tr. 458,
L. 22, change “calls” to “culls.”
6 In Redd-I, supra, the Board established the following test for de-
termining whether a charge adequately supports a complaint allegation:
Thus, the Board will look at (1) whether the allegations involve the
same legal theory as the allegations in the charge; (2) whether the alle-
gations arise from the same factual circumstances or sequence of events
as the charge. The Board may also look at whether a respondent would
raise similar defenses to both allegations. Id at 928. In Nickles Bakery,
the Board held that the Redd-I closely-related test also applies to
8(a)(1) complaint allegations, not just to other parts of Sec. 8(a), and
Here, unlike in Lotus Suites, the complaint allegations for
which the Respondent seeks dismissal are based on specific
factual assertions made by the Charging Party in the charges
and amended charges filed, and not on standard boilerplate
language contained in the Agency’s charge form. Thus, the
allegations in complaint paragraphs 7(a), (b), (c), and 9 are
factually similar to the unlawful conduct alleged by the Charg-
ing Party in its third amended charge in Case 4–CA–24611
(G.C. Exh. 1[v]). Likewise, the allegation in the charge filed in
Case 4–CA–24891, claiming that the Respondent “treats an
employee in a disparate manner with regard to the employee’s
terms and conditions of employment” is, I find, sufficient to
support complaint allegations Section 10(b) through (e) alleg-
ing that Respondent has changed the working conditions of
Michael Flannery by failing to assign him a helper, and by
reducing his smoke and lunch breaks. Nor is dismissal of the
complaint allegation involving the demotion of Supervisor E.
Flannery warranted simply because the charge makes reference
to the demotion of an employee, rather than a supervisor, for
while there is no question that the Act distinguishes between
the two, such knowledge can hardly be imputed to a charging
party who may not be aware of such distinction or as well
versed in the subtleties of labor law as an established practitio-
ner in the field might be. I am convinced the term employee as
set forth in the charge was used in its generic sense and in-
tended to reflect someone employed by the Respondent,
whether in an employee or supervisor/managerial capacity.
III. THE ALLEGATIONS
The consolidated complaint alleges that Respondent violated
Section 8(a)(1) by
1. Threatening employees with unspecified reprisals because
of their union activity, and telling an employee that another
employee had been disciplined for engaging in union activity
(pars. 7[a] and 9[i]).
2. Creating the impression that an employee’s union activity
was under surveillance, threatening the employee with reprisals
because of such activity, and interrogating the employee
regarding other employees’ union sympathies (par. 7[b]).7
3. Threatening an employee with discharge because of his
union activity (par. 7[c]).
4. Telling an employee that because of his union activity its
work rules would be enforced more rigidly (par. 9[ii]).
5. Demoting Supervisor Edwina Flannery (E. Flannery) to a
day-shift nonsupervisory position because her husband, Mi-
chael Flannery (M. Flannery), engaged in union activities (GC
Exh. 1[g], par. 6[a]; G.C. Exh. 1[kk]).
It further alleges that Respondent violated Section 8(a)(3)
and (1) by:

1. Transferring E. Flannery to a night-shift position to dis-
courage membership in the Union (G.C. Exhs. 1[g]; 1[kk]).
2. Issuing written warnings to M. Flannery and to Robert
Nolan, and by prohibiting M. Flannery from talking to a “de-
positor,” refusing to assign him a “helper,” and reducing the

that henceforth the “other acts” boilerplate language contained in a
charge form would not, without more, suffice to sustain an 8(a)(1)
complaint allegation.
7 The allegations pertaining to creating the impression of surveil-
lance and unlawful interrogations have apparently been abandoned by
the General Counsel for no evidence was produced in support thereof,
and the General Counsel makes no mention of them in her posthearing
brief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564
length of his lunch and smoke breaks, because of his union
activities (par. 10 [a-g]).
IV. FACTUAL BACKGROUND
The Respondent maintains two facilities, one of which
houses its bakery operations, the other its administrative of-
fices. It has a total complement of approximately 950 employ-
ees, 700 of whom work in the production area, and approxi-
mately 50–60 falling into the managerial or supervisory cate-
gory, with the number of supervisors totaling between 30 and
35. Included in Respondent’s managerial hierarchy are Human
Resources Vice President William Mahoney, Manufacturing
Vice President Paul Woite, Production Operations Director
Thomas Kenny, Manufacturing Superintendent Charles Britsch,
Night Production Superintendent Joseph Carboy, and Engineer-
ing Superintendent Timothy Waldron. Below the superinten-
dent’s rank are supervisors some of whom include Bruce Maul,
Joseph O’Boyle, and Daniel McCrossen.8 The Respondent also
utilizes employees in a classification known as “line” and “pro-
duction” monitors in the production area. The line monitor’s
function is to oversee a particular production line to ensure it is
operating and moving properly, and to monitor personnel work-
ing on the line, including reporting any disciplinary problems to
supervisors. The floor monitors perform basically the same
function except that they oversee an entire floor. Their duties
include ensuring that production lines are properly supplied,
rotating employees, and reassigning them in the event of a
breakdown. One such monitor, Linda Casey, employed in the
environmental sanitation (E&S) department, testified that her
duties include reporting infractions to supervisors, and prepar-
ing writeups or memos on employees which go into their files.
Such memos, according to Casey, could lead to discipline if
they reflect a particular pattern of misconduct. Casey’s latter
testimony was corroborated by Britsch (Tr. 289, 304, 405).9
The Respondent’s product line includes a variety of well-
known baked goods such as chocolate cupcakes, crumb cakes,
Krimpets, Tandy cakes, creamies, etc. The production process
begins on the fifth floor where the different type batter is
mixed. From there, batter is pumped or gravity-fed through
pipes to stainless steel, hydraulically-operated depositors, and
presumably finds it way to the ovens. The record reflects that
for the most part, the production of crumb cakes occurs during
the night shift, while the chocolate cupcakes are baked during
the day shift. In the production of the crumb cake, the Respon-
dent utilizes a crumb chute or hopper running from the fifth
floor to the V-shaped depositor on the third floor. The deposi-
tor is operated by a depositor operator. The crumb chute,
which ends right above the depositor, has a small gate that,
when opened, pours crumbs into the depositor. The depositor
is timed with the oven, operated by an “ovenman,” to deposit
the crumbs onto the batter. With the arrival of the day shift, the
switch to production of chocolate cupcakes occurs, requiring

8 All of the named managers and supervisors are admitted by Re-
spondent to have been supervisors within the meaning of Sec. 2(11) of
the Act during 1996, the relevant time period herein.
9 Given these facts, I find merit to the General Counsel’s assertion
on brief (p. 37, fn. 20) that at all relevant times herein the monitors
were, if not supervisors, at a minimum agents of the Respondent within
the meaning of Sec. 2(13) of the Act. See Kidd Electric Co., 313
NLRB 1178, 1180 (1994). Casey’s own description of her duties as
monitor supports such a finding (Tr. 287).
that the depositor be thoroughly cleaned of all remaining
crumbs and other residue.
E. Flannery and M. Flannery have each been employed by
Respondent for more than 20 years. E. Flannery has held nu-
merous positions during her long tenure with Respondent.
Thus, in 1982, she was made a line monitor; in 1989 moved up
to floor monitor, and in August 1990, was promoted to supervi-
sor. In June 1995, however, E. Flannery was demoted to a
nonsupervisory packer’s position. Two other supervisors, Wil-
liam Whitehead and Whitelock, were also demoted at the same
time.
M. Flannery worked as a day-shift ovenman on the third
floor of Respondent’s facility. As described by him, M.
Flannery’s duties as an ovenman included maintaining control
of the heat for the ovens by turning the proper switches on and
off, coordinating the oven heating times with the floor monitor
and the depositor operator, and generally assuring that the
baked product is properly carried away on a conveyor belt to a
bin as it leaves the oven. When he arrives for work at 5:30
a.m., the production of crumb cakes is completed and the ovens
are prepared for the production of chocolate cupcakes. Among
the employees working in the same vicinity with him are the
depositor operator, who during the relevant time period herein
was Billy Martin, and the packers. The record reflects that
during two 15-minute break periods and one 30-minute
lunchbreak, M. Flannery relieves Martin from his depositor
operator duties. During those times, however, the units are shut
down, so that M. Flannery is not performing any of the deposi-
tor’s duties, and is performing only his normal oven duties. M.
Flannery nevertheless admits that he has on occasion run the
depositor and has helped the depositor operator remove crumbs
left in the depositor on completion of the crumbcake produc-
tion. Regarding the cleaning of the crumb depositor, he testi-
fied that prior to January 1996, his practice was to remove left-
over crumbs from the depositor when the depositor operator
was not present.
The record reflects that in 1994, the Union began an organiz-
ing drive among Respondent’s employees, and that M.
Flannery and alleged discriminatee, Robert Nolan, a 15-year
employee, figured prominently in that campaign. Both, for
example, handed out authorization cards to large numbers of
employees and openly distributed union literature10 at the main
entrance to Respondent’s facility which conduct, according M.
Flannery, was observed by various company officials including
Mahoney, Kenny, Woite, and his immediate supervisor,
O’Boyle (Tr. 117). Several of Respondent’s managers readily
admitted that Respondent was strongly opposed to the Union
and knowing that M. Flannery and Nolan were actively in-
volved in prounion activities (Tr. 337, 360, 420, 511). M.
Flannery was also a member of the Union’s organizing commit-
tee. He began openly distributing union literature in front of
Respondent’s facility in January 1995, solicited a ”couple of
hundred” signed union authorization cards from employees,
authored various articles which appeared under his name in
“Tasty Talk,” openly displayed his prounion sympathies by
wearing a union button and hat to work, and on occasion wore a
union T-shirt that was visible through the company uniform.
On February 28, 1995, the Union petitioned for an election. A
Board-conducted election was thereafter held on April 5, 1995,
10 One such distribution was a union publication entitled “Tasty
Talk” (G.C. Exh. 4).
TASTY BAKING CO. 565
which the Union lost. The election, however, was subsequently
set aside and, on March 29, 1996, the Board directed that a new
election be held.11 Despite the Union’s loss, M. Flannery con-
tinued his prounion activities.
The General Counsel contends, and the Respondent denies,
that beginning with the June 1995, demotion and subsequent
transfer to the night shift of E. Flannery, and continuing
through June 1996, during which period the Respondent alleg-
edly issued warnings to union activists M. Flannery and Nolan,
the Respondent interfered with its employees’ Section 7 rights
and attempted through unlawful means to discourage further
support for the Union. A discussion of these incidents follows.
A. Flannery is Demoted and Assigned to Night Shift
E. Flannery, as noted, was made a supervisor in August
1990. She remained in that position until demoted to a nonsu-
pervisory packer position on June 13, 1995. Her testimony is
that she began hearing rumors as far back as November 1994,
about her possible demotion, but received assurances from
managers that such was not the case.12 On June 6, her superior,
Robb, discussed her upcoming evaluation scheduled for June
24. On June 7, she discussed the rumors with Britsch, and
claims Britsch told her he knew nothing about such rumors and
to go and enjoy her vacation. On June 13, 1995, while on vaca-
tion, Kenny called her at home to say that some management
changes had been made and that she should no be a supervisor.
Kenny, according to E. Flannery, expressed his regrets about
having to give her the decision over the phone, and advised that
if she wished, he would be willing to discuss it with her on her
return from vacation. Two other supervisors—William White-
head and Don Whitelock—were also demoted at the same time,
and a third, Nater, was terminated.13
On June 20, 1995, she spoke with Britsch to find out where
she would be working, and learned she would be working as an
“extra.”14 She again spoke with Britsch 2 days later in his of-
fice to find out why she had been demoted. Brtisch, according
to E. Flannery, stated he really did not know anything about her
demotion, as no one had officially told him anything, but that

11 Judicial notice is taken of an earlier decision issued on February
16, 1996, in Cases 4–CA–23640 and 4–CA–18565, by Administrative
Law Judge Richard Beddow Jr., involving the same parties, wherein he
recommended, inter alia, that the April 5, election be set aside and a
new election be conducted. As no exceptions were filed to Judge Bed-
dow’s decision, his recommendations were adopted by the Board on
March 29, 1996.
12 E. Flannery testified to hearing a rumor that Kenny was stating
that within 1 year she “would be feeding cake,” a reference to the low-
est position at the plant. She claims she discussed the matter with
Mahoney who assured her she had nothing to worry about because she
was Respondent’s “newest rising star.” Mahoney admits having a
conversation with E. Flannery around November 1994, but claims she
came to him in a very agitated and almost hysterical fashion, stating she
was going to be fired. Mahoney advised her that these were only ru-
mors, and that her hysterical attitude was the kind of conduct that could
cause her to be fired. He then commented that she “could be a rising
star” (Tr. 591). E. Flannery heard the rumor again sometime in May
1995, and this inquired of then superintendent, Robb, who told her not
to be concerned because he had heard similar about her and himself too
(Tr. 185–186).
13 Nater was terminated for failing to meet his probationary period,
not because of any reorganization (Tr. 558).
14 As an “extra,” E. Flannery spent 4 hours a day packing in the cup-
cake department, assisting another employee who only worked 4 hours
per day (Tr. 194).
he assumed it was because she was “a little too intense, which
tends to alienate people.” E. Flannery replied that she thought
this was “bullshit” and that it was because Kenny hated her
husband. She told Britsch that had it been for some other rea-
son, Respondent would not have waited for her to go on vaca-
tion to demote her, and that she had never been warned that
Respondent was dissatisfied with her work. E. Flannery
pointed out the fact that McCrossen had had an employee peti-
tion circulated against him and yet management supported him
but would not support her. Britsch purportedly responded that
she was lucky to have her job, at which point she asked and
received permission to see her personnel file (Tr. 187–188). M.
Flannery worked at the “extra” position until June 30, 1995, at
which point the position was given to a Margaret Jefferson,
who was returning from vacation.
E. Flannery claims that on July 10, 1995, she asked Kenny
for an explanation for her demotion, and that he told her it was
because she was not getting things done. E. Flannery, however,
insisted it was because of her husband’s union activity, but
Kenny denied it and stated that he liked her as an employee,
and that if he did not, she wouldn’t have a job, that she should
thank him for her job because he was responsible for her being
able to keep it (Tr. 196). E. Flannery also asked about the Jef-
ferson position, noting that it had first been offered to E. Flan-
nery on June 22, 1995, did not become available until June 23,
1995, and given her greater seniority over Jefferson, she should
have received it. Kenny responded that Jefferson had placed
her name on a list for the job, but that if Jefferson was willing
to relinquish it, E. Flannery could have the job. Kenny, ac-
cording to E. Flannery, agreed to speak to Jefferson about the
matter. Kenny further purportedly commented to E. Flannery
that people were upset that she was working on the day shift,
but offered no explanation when she asked how that would
make people upset (Tr. 195–196).
On July 17, 1995, E. Flannery asked Respondent’s CEO,
Carl Watts, why Jefferson was given the job; the latter agreed
to look into the matter and get back to her. E. Flannery then
spoke to Paul Woite about the Jefferson position on July 21,
1995. Woite admitted there were some inconsistencies in the
way a supervisor who is demoted is treated vis-a-vis her senior-
ity, and that he was in the process of clarifying the policy be-
cause the job really should have gone to her and not to Jeffer-
son. He also mentioned that people were upset that she was on
day shift. Woite did not testify. On July 25, 1995, Watts told
her that Kenny and Mahoney had decided the position properly
went to Jefferson because she had put in for the position first
(Tr. 197–198).
By August 1995, E. Flannery gave up all hopes of getting the
Jefferson position, and around that time inquired of Britsch of
the likelihood of getting a position in the Tandy Cakes area.
Britsch, according to E. Flannery, told her she no longer had
her seniority, that under company policy demoted supervisors
lose their seniority for 3 years, after which it is regained. When
E. Flannery asked to see the company policy, Britsch purport-
edly refused to show it to her. E. Flannery testified to another
conversation with Britsch on August 10, 1995, while on her
way to lunch. She claims that during this conversation Britsch
told her that M. Flannery’s continued distribution of union
literature outside Respondent’s premises “was not helping her
chances of staying on day work,” and that “upper management
would interpret this as a slap in the face,” because while they
were being nice to her, her husband continued with his union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566
activity and that, because of this, she “could very seriously end
up on night work (Tr. 200). Britsch, according to E. Flannery,
stated he would deny ever making such remarks to her if she
repeated the comments to others.
Britsch denied any prior knowledge of E. Flannery’s demo-
tion, and testified he learned after the fact that she was demoted
because of “her interactions with people, the way she alienated
people. She had alienated the Engineering group tremendously.
It was her gruff, aggressive nature that really became her de-
mise, along with declining performance for her product line.”
(Tr. 416.) He also recalls E. Flannery asking him about the
Jefferson position, and claims he told her that Jefferson had
seniority over her by because E. Flannery had lost her seniority
when she was demoted (Tr. 417). Britsch denied making any
comment to E. Flannery about her husband’s distribution of
union literature outside Respondent’s facility, or advising that
she might be able to keep her day job if M. Flannery changed
his prounion behavior. He does, however, admit saying to E.
Flannery that she stood a “good chance of staying on day work”
if she “faded into the woodwork and not bring attention to her-
self all the time” (Tr. 413, 419). More importantly, he admitted
that while Respondent has a policy on an employee’s loss of
seniority caused by a change in classification, Respondent does
not always follow that policy when demoting a supervisor (Tr.
424).
In September 1995, E. Flannery was placed on the night
shift. Mahoney explained that because of her reclassification,
she was naturally assigned to the night shift due to her loss of
seniority (Tr. 613).
Kenny’s testimony as to the events leading up to the demo-
tion of Flannery, Whitehead, and Whitelock was vague. Thus,
on direct examination by Respondent’s counsel, he testified that
in 1994, he was promoted from maintenance superintendent to
superintendent of production and asked to review the overall
operation of the production department because it had not been
running well, and in particular, the “Krimpet” department su-
pervised by E. Flannery. He claims that he found that the
whole production operation was “completely out of control . . .
chaotic . . . and simply lacked structure” and that he told pro-
duction superintendent, Fred Robb, and production manager,
Bill Parshall, that “it was management’s responsibility to take
care of that” (Tr. 445–446).
Kenny further testified that beginning 6 to 8 months before
the Union came on the scene, he held several discussions with
E. Flannery regarding her need to improve the operation of the
Krimpet department, which he characterized as a mess and out
of control (Tr. 448–449). E. Flannery understandably denies
that her department was a mess or having had any such conver-
sations with Kenny.15 Kenny also claims to have received re-
peated complaints about E. Flannery’s running of the Krimpet
department. Thus, he states that two monitors, Yvonne Scott
and Esther Berman, came to him in tears complaining of being
mistreated by E. Flannery, of her yelling and screaming, and
asking Kenny to do something about her because they did not
want to work under those conditions. He further testified to
receiving an “onslaught” of complaints from other employees.

15 The Union’s organizational campaign got under way in early Au-
gust 1994. Thus, according to Kenny, he began having these perform-
ance conversations with E. Flannery sometime between December
1993 and February 1994. E. Flannery testified that at no time prior to
her demotion did Kenny ever speak to her about her management style
or her overall performance (Tr. 209–210).
Asked what he might have told E. Flannery about such com-
plaints, Kenny responded in very general terms that he cau-
tioned her that “we had to get control a bit, how we had to shut
down the area and get it straightened up and stop continually
working people 8 hours a day, day in and day out, in a mess.”
Despite these purported numerous discussions with E. Flan-
nery, Kenny claims she viewed his discussions with her as
intrusive and made no improvements in her overall perform-
ance. Kenny thus purportedly concluded that E. Flannery just
“couldn’t get the job done.” Although he states he discussed
his views on E. Flannery with other members of management,
he was unable to recall the specifics of any such meetings, or
the dates, of when they might have occurred. Kenny further
claims he personally observed E. Flannery’s behavior and
found her to be “very combative, very in-your-face. . . . Just
left a mess everywhere she went when she dealt with people.”
(Tr. 448–451.)
Kenny testified that after he and Woite replaced Parshall and
Robb (both of whom were demoted in 1994) in the production
department, they reviewed all the issues in the department,
including supervision, and how best to deal with them. One
proposal was that E. Flannery and the other supervisors be dis-
charged because of their poor work performance.16 This option,
according to Kenny was consistent with previous reorganiza-
tions, in particular one held in 1994, in which supervisors were
discharged. He and Woite, however, agreed that terminating E.
Flannery and the others was “not the way to go, ” and that, at
least in the case of E. Flannery, she would be demoted to a
packer position. Whitelock and Whitehead likewise were de-
moted to hourly jobs. Kenny testified that company policy
dictates that when an employee changes classifications, they
loses their seniority for 3 years at the end of which their normal
seniority is reinstated. Consequently, E. Flannery, as well as
Whitelock and Whitehead, lost their right, at least for the next 3
years, to select their shift by virtue of having lost all seniority.
Kenny stated this was the reason for E. Flannery going to the
night shift. Kenny testified that E. Flannery, Whitehead, and
Whitelock were treated just as all other employees affected by a
change in classification have been treated.
B. Incidents Involving M. Flannery
1. The “crumbs” in depositor
On January 16, M. Flannery received a disciplinary warning
for “not removing the crumbs from the crumb depositor for 2
days in a row (Wed., 1/10/96 & Thurs. 1/11/96).” (G.C. Exh.
5). M. Flannery does not deny that crumbs were left in the
depositor on both days, noting that about 6 inches of crumbs
were left on January 10, and a lesser amount on January 11 (Tr.
166). He testified he did not realize crumbs were left in the
depositor on January 10, until notified on January 16, when the
warning was given to him. The testimony of the various Re-
spondent’s witnesses who testified confirm that neither the
16 Whitehead, according to Kenny, had problems getting people to
do their job, was not authoritative, and had a tendency to let people
have their way. Whitelock, Kenny testified, had similar problems in
that he could not communicate with people, could not earn his employ-
ees’ respect, and people simply did not want to work for him (Tr. 456–
457). Kenny claims E. Flannery fell in the same category as White-
lock. Thus, in addition to the problems mentioned above, Kenny
claims E. Flannery’s “Krimpet” department was the poorest of all in
that it was “extremely unproductive day in and day out” (Tr. 457–458).
TASTY BAKING CO. 567
January 10 or 11 incident was brought to M. Flannery’s atten-
tion at any time prior to January 16.
M. Flannery recalled that earlier that on January 11, a
“brown-out” (e.g., loss of power) occurred resulting in im-
proper oven readings and causing him to have difficulty with
the oven. He claims that Britsch and Viola came to his work
area, apparently in response to the “brown-out.” As to the
crumbs left in the depositor that day, M. Flannery stated he
assumed Martin was going to take care of the leftover crumbs.
Martin, it turns out, did not do so (Tr. 120–121). M. Flannery
does not dispute that he often helped Martin clean crumbs from
the depositor,17 but testified he was never told it was his re-
sponsibility to do so, and first learned it was part of his normal
duties on January 16, when he received the warning. He had
always assumed that the function was part of the depositor
operator’s normal job duties (Tr. 167–168, 179, 181).
Casey testified she learned of the January 11 incident when
an employee assigned to clean out the chute and the depositor
reported finding crumbs in those areas. Although she states
that finding crumbs in the depositor is a common occurrence,
on this particular occasion the crumbs purportedly filled the
entire chute and depositor and were pouring into oven #30, the
one run by M. Flannery. By her estimation, it was the worst
incident she had ever seen of crumbs being left in depositor and
chute (Tr. 297–298). Later that evening, according to Casey,
she reported the incident to Superintendents Carboy and Britsch
(Tr. 296–297, 317–318).18
Casey admits she did not discuss the incident with M. Flan-
nery before reporting it to Carboy and Britsch, but offered con-
flicting explanations for not doing so. Thus, she at first stated
that M. Flannery was still on the premises when the crumbs
were found in the depositor on January 11, but when asked why
she did not inform M. Flannery of the problem, responded in a
vacillatory fashion, “I don’t know if Mike was even in the
building at that time” (Tr. 303). Yet, during further cross-
examination, Casey proffered that she did not mention the inci-
dent to M. Flannery that day because he “wasn’t around at the
time,” but when reminded about her earlier answer that she did
not know whether or not M. Flannery was still on the premises,
stated, unconvincingly, “Okay. I will say that Mr. Flannery
wasn’t on the third floor in the 30 oven area at the time of the
incident” (Tr. 305). Casey’s testimony as to why she did not
inform M. Flannery is simply not believable and is not credited.
M. Flannery in fact testified, without contradiction, that he was
indeed still at the plant when the crumbs were discovered.
Accordingly, I credit M. Flannery and find he was still at the
worksite on January 11, when the crumbs were found in the
depositor.

17 Although M. Flannery responded affirmatively when asked by Re-
spondent’s counsel if his removal of the crumbs was the standard prac-
tice long before January 1996, his response in this regard was, in my
view, nothing more than a reaffirmation of his prior claim that he helps
the depositor man, and not an admission that he understood such work
to be part of his own duties as ovenman.
18 Carboy did not testify. It should be noted that on direct examina-
tion Casey did not state she had reported the incident to Britsch.
Rather, she did so on cross-examination almost as an afterthought and
pursuant to a suggestive query from the Charging Party’s attorney.
Casey, however, explained that she reported the incident to Britsch
more as a matter of courtesy, suggesting implicitly, and contrary to
Britsch’s contrary assertion, that she was under no obligation to do so
(Tr. 305; 428).
Britsch also testified to receiving notice of the leftover
crumbs from Casey. His version, however, does not coincide
with Casey’s. Britsch, for example, states Casey told him that a
considerable amount of crumbs had been left in the depositor
and crumb chute “on two consecutive days,” e.g., January 10
and 11. Casey, however, never testified to reporting two sepa-
rate incidents to Britsch. Britsch’s further claim that Casey was
required to report the incident to him is also contrary to Casey’s
testimony that she reported the matter to him as a matter of
courtesy (Tr. 428).
Britsch and others whom he did not identify purportedly in-
vestigated the incident and “we found out” that the crumbs
were left during a changeover from crumb cake to chocolate
cupcake production. He testified that because M. Flannery had
relieved depositor Martin during changeovers on January 10
and 11, it became his responsibility to insure the depositor and
chute were free of crumbs. Based on that “investigation,”
Britsch decided that M. Flannery should be issued a “perform-
ance” warning, and instructed O’Boyle to do so (Tr. 400–401).
Asked if he or anyone spoke to M. Flannery regarding the
January 10 incident, Britsch answered he did not because he
hadn’t had time to gather the information from Casey, who was
on a different shift. There is no indeed no indication in the
record that Britsch, during his investigation of the January 11,
incident, sought to ascertain from either Martin or M. Flannery
their version of what had happened on either January 10 or 11.
O’Boyle testified that on January 12, Britsch informed him
of M. Flannery’s alleged failure to clean out the depositor and
that, pursuant to his instructions, prepared a written warning to
M. Flannery for “not removing the crumbs from the crumb
depositor for 2 days in a row, (Wed., 1/10/96 & Thurs.
1/11/96).”19 The warning states it was M. Flannery’s responsi-
bility “to empty the depositor for cleaning and this was not
done.” O’Boyle claims that for “as long as I can remember,”
the oven man, not the depositor operator, was responsible for
making sure no crumbs remained in the depositor during a
changeover in production. O’Boyle never questioned Martin
about the incidents, explaining “it was my understanding Mike
[Flannery] sent Billy [Martin] away on break at the changeover;
so that automatically puts the burden on Mike to make sure the
crumbs” are removed (Tr. 351). He also did not discuss either
incident with M. Flannery before issuing the warning.
O’Boyle admits that no employee has ever been issued a dis-
ciplinary warning for failing to clean out a depositor. He ex-
plained, however, that M. Flannery received one because he left
crumbs in the depositor 2 days in a row. Had there been only
one incident, no warning would issued, according to O’Boyle.
Instead, the matter would have been called to M. Flannery’s
attention and that would have been the end of it (Tr. 324–326).
O’Boyle claims that on January 16, when he gave M. Flannery
the warning, the latter simply shook his head but did not deny
responsibility for the incident. He admits to never mentioning
the January 10, incident to M. Flannery during their discussion
of the warning (Tr. 347–348).
On January 18, M. Flannery filed a written grievance under
the Company’s internal grievance procedure protesting the
warning, asserting therein that the warning was issued because
he supported the Union’s effort to “unionize” the Company
19 Although the “crumbs” incidents purportedly occurred January 10
and 11, the warning shows January 12, as the “Date Infraction Oc-
curred” (G.C. Exh. 5).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 568
(G.C. Exh. 6). He claims he met with O’Boyle that same day to
discuss the grievance and that O’Boyle disputed his contention
that the warning had been issued for his union activities.
O’Boyle instead insisted the warning resulted from crumbs
being left in the depositor, an explanation M. Flannery declined
to accept. O’Boyle was not asked about this alleged subsequent
conversation with M. Flannery.
M. Flannery also spoke with Britsch that same day in the lat-
ter’s office. Britsch, according to M. Flannery, began the meet-
ing by discussing the warning and by telling M. Flannery they
were “were enemies over this.” M. Flannery purportedly re-
sponded that he did not share Britsch’s sentiments regarding
their relationship. He then informed Britsch that he believed he
was being set up, explaining that everyone knew that crumbs
had been left in the hopper before he had left work, and if the
crumbs had really been a concern, someone should have called
it to his attention and he would have remedied the problem.20
Britsch puportedly responded that the warning was part of Re-
spondent’s new “get tough” policy that was being implemented
because too many people were “screwing up.” M. Flannery
claims that Britsch then suggested that “enemies” was probably
not the right word to use to describe their relationship, and went
on to say while he ( M. Flannery) felt he “was doing the right
thing for Tasty Baking people,” he (Britsch) felt he was “doing
the right thing for Tasty Bake and will do whatever I have to
keep the union out.” (Tr. 124–125.)
Britsch acknowledged meeting with M. Flannery to discuss
the grievance, but lacked specific recollection of what was said.
He does claim to have told M. Flannery that the warning had
nothing to do with the Union and was instead related to poor
work performance. He did not, however, recall if M. Flannery
denied responsibility for the “crumbs” incident. Nor did
Britsch deny outright the “enemies” remark attributed to him by
M. Flannery, stating only that he “does not think that I said [to
M. Flannery] that we were enemies,” and instead believes he
“might have alluded to the fact that, in my opinion, arguing
about union affairs is the same as arguing about church or argu-
ing about politics; that there are no winners; that people only
wind up as enemies when they argue about these situations
because there are no winners.” On cross-examination. Britsch
conceded he could not recall specifically what was said during
this meeting (Tr. 410–411; 420).
Kenny was equally as vague. Thus, asked if he had any in-
volvement in the warning issued to M. Flannery, Kenny testi-
fied that he did not know if he investigated the incident other
than to simply approve it, and when queried regarding any con-
versations he may have had with Britsch regarding the warning,
responded rather ambiguously, “Well, Mr. Britsch would quite
naturally, as he was answering a grievance, tell me what he
found.” His suggestion that Britsch might have informed him
of the warning is not confirmed by Britsch who made no claim
to having discussed the matter with Kenny. Any suggestion
that Kenny may have been part of Britsch’s purported “investi-
gative” team is disputed by Kenny’s own admission that he did
not investigate the matter.
2. The “helper” issue
M. Flannery claims he was usually assigned a helper during
cupcake production, but that beginning late September or early

20 M. Flannery’s claim to Britsch that he was still in the plant when
the crumbs were discovered, presumably by Casey and the employee
who reported the matter to her, undermines Casey’s.
October 1995, Respondent stopped assigning him a helper.
When he inquired of baking department monitor Sam Viola as
to the reason, Viola purportedly told him that Respondent was
“short on people” (Tr. 116). On January 18, M. Flannery filed
a grievance claiming that while two men are assigned to run the
ovens on the other floors, and on his third floor during the night
shift, he is the only person assigned to the third floor, day-shift
oven operation, and that he believed he was being treated dif-
ferently because of his support for the Union and his attempts
to unionize the Company (G.C. Exh. 7). He testified that on
previous occasions during crumb cake production, he had been
assigned such a helper.
Viola denied receiving a complaint from M. Flannery regard-
ing a helper, and testified that, in any event, helpers are as-
signed only in certain cases, such as when extra ovens are to be
run and the additional help was available (Tr. 387–388).
O’Boyle responded to the grievance the same day, stating
that only if the work schedule called for the operation of more
than two ovens at the same time would a helper be assigned to
assist M. Flannery, and that the reason a helper is assigned to
the sixth floor oven man is because most of the time three ov-
ens are in operation, but that if only two were operating, the
oven man would receive no helper. O’Boyle denied M.
Flannery’s claim that the failure to assign him a helper was in
any way related to his union activity (G.C. Exh. 7). O’Boyle
testified that M. Flannery has never been denied a helper if one
was needed, and that only on rare occasions was a helper
needed (Tr. 335).
3. The “no talking” restriction
M. Flannery claims that on January 30, O’Boyle instructed
him to remain at his job behind the ovens and not talk to Mar-
tin. According to M. Flannery, it was common practice for the
depositor operator and the ovenman to speak with one another
(Tr. 127). O’Boyle denied prohibiting M. Flannery from
speaking with Martin, noting that the oven man and the deposi-
tor operator must communicate with each other regarding bak-
ing times and to discuss when breaks will be taken. He admits,
however, that on occasion he may have had to break up discus-
sions between the two when he observed them standing to-
gether for extended periods of time, e.g., 5–10 minutes (Tr.
333–335).
4. Kenny’s April 11 remarks to E. Flannery
M. Flannery testified that shortly before 11 a.m. on April 11,
as he stood behind the third floor ovens, Kenny approached
him, and remarked, “ I don’t believe you. After what happened
to your wife (e.g., the demotion), you’re still pushing the union
and calling OSHA. Are you going to make me fire you?” M.
Flannery states he did not respond to Kenny’s comments (Tr.
127–128). Kenny generally denied ever having had a conversa-
tion with M. Flannery regarding OSHA, or telling him he
thought M. Flannery had called OSHA to come to Respon-
dent’s facility (Tr. 467). He was not, however, asked about,
and consequently did not deny, having made reference to his
wife’s demotion or to his continued union activity, or having
suggested that he (M. Flannery) was going to make Kenny fire
him.
5. The change in smoke break/lunch policy
M. Flannery testified that when he returned to work on Mon-
day, April 29, O’Boyle told him he was no longer permitted to
take his smoke break behind the black doors separating the
TASTY BAKING CO. 569
third floor baking area from the engineering shops, which M.
Flannery claims he’d been doing for 24 years, and that from
then on he, O’Boyle, would instruct M. Flannery when to take
his breaks.21 According to M. Flannery, O’Boyle offered no
explanation for this change in his working conditions (Tr. 130).
O’Boyle agrees that he instructed M. Flannery in 1996, not
to use the third floor hallway as a smoking area, but to instead
use the designated smoking rooms on the second or fourth
floors. However, he gave somewhat conflicting reasons for
doing so, stating at first that it was part of a companywide di-
rective aimed at all employees, but subsequently asserting that
he changed the practice of employees smoking in the hallway
because he did not want his employees smoking where he could
not see them (Tr. 333, 344). He claims he personally informed
both M. Flannery and another employee, Howard Booker, of
the new smoking restriction, but did not personally inform
other employees under his supervision because “the word got
around that there’s no more smoking in that area” (Tr. 331–
333). O’Boyle further admits telling his employees, including
M. Flannery, how long of a break they were entitled to, and did
so because employees were overextending their breaks (Tr.
330).
6. The June 6 “oven times” incident
On June 6, M. Flannery received a second written warning
for giving the mixing room employees the wrong “finish” times
which presumably caused in a one-half hour loss of production
time. The warning advised that a third warning would result in
a 3-day suspension (G.C. Exh. 8). On June 14, M. Flannery
filed a grievance protesting the warning, noting therein that
although O’Boyle had stated a memo was being put in his file
and he would receive a warning only if a similar incident oc-
curred within six months, O’Boyle nevertheless issued him a
performance warning. M. Flannery stated his belief that the
warning was issued because of his union activity (G.C. Exh. 9).
M. Flannery, O’Boyle, and Britsch gave testimony regarding
this incident.
M. Flannery testified that he generally receives verbal notice
of the oven times for a particular day from a floor monitor, and
that he then writes down the times and provides operator Mar-
tin with a copy. He claims that on June 6, while returning from
lunch, employee Terry Richardson told him about the mixup
with the oven times, and when he arrived at his work station
was officially told by O’Boyle. M. Flannery testified he tried
to get the oven restarted so as to reduce the amount of produc-
tion time lost to 5 or 10 minutes, but that baking department
monitor, Sam Viola, called down from the mixing room and
told him to forget it, and to run whatever was left in the system
to make devil’s food cake.
O’Boyle, according M. Flannery, told him he was going to
write him up for the incident and later that day, on his way to
take a smoke break, was told by O’Boyle that a memo of the
incident had been placed in his file. However, the following
day, O’Boyle called him into his office and showed him a
warning that had been issued to him regarding the incident.
When M. Flannery remarked, “[Y]esterday memo, today its a

21 The area previously used by M. Flannery for smoking is approxi-
mately 20 feet from E. Flannery’s workstation, whereas the fourth floor
smoking room where he was instructed by O’Boyle to start taking his
smoke break was some 100 yards away. The previous smoke locale
continues to remain a smoking area for maintenance and mechanics
personnel.
warning,” O’Boyle responded that “the powers that be decided
it should be a warning.” (Tr. 131.) M. Flannery claims that the
mixup in times did not result in any loss of production (Tr.
135).22
O’Boyle gave a different version of his conversation with M.
Flannery. Thus, he testified that on June 6, M. Flannery admit-
ted he had screwed up by giving the mixing room personnel the
wrong times. After O’Boyle told M. Flannery not much could
be done at that point, Britsch, who was standing nearby, told
him (O’Boyle) that M. Flannery’s mistake at a minimum war-
ranted a memo be put in his file. O’Boyle purportedly agreed
with Britsch’s assessment and thereafter prepared a memo and
gave it to Cathy Mahoney, an employee in Respondent’s plan-
ning and schedule department, with instructions to put it in M.
Flannery’s file. However, O’Boyle claims that the matter was
subsequently reviewed by upper management who decided that
because of the one-half hour of lost production time, M. Flan-
nery should receive a warning. O’Boyle denied taking part in
that decision, but admits issuing the warning to M. Flannery
(Tr. 326–327).
O’Boyle admits that M. Flannery receives the daily oven
times from some else, e.g., from monitor Sam Viola, employee
Cathy Morrissey, or himself. O’Boyle, however, was uncertain
who might have given the oven times to M. Flannery on June 6,
suggesting it might have been Morrissey. Despite his uncer-
tainty as to who provided M. Flannery with the oven times,
O’Boyle testified he checked the oven times Morrissey had
recorded on a piece of paper with those M. Flannery had writ-
ten down, and that the latter’s times were wrong. He admits he
did not ask Morrissey what she might have stated to M. Flan-
nery (Tr. 343–344).
Britsch’s testimony is consistent with O’Boyle’s only insofar
as Britsch agrees mentioning that M. Flannery’s “oven time”
incident warranted a memo to M. Flannery’s file. However,
their stories vary in other material respects. Thus, Britsch de-
nies directing O’Boyle to place a memo in M. Flannery’s file,
testifying instead that, in his view, no such decision was ever
made (Tr. 425). He further contradicts O’Boyle’s implicit de-
nial that he had anything to do with the issuance of the warning,
stating in this regard that he, Kenny, and O’Boyle “discussed
the magnitude of the situation later that day . . . and felt it justi-
fied a warning” (Tr. 403). Britsch testified that the warning
was issued because it had caused the Company “30 minutes of
lost time and lost sales” (Tr. 405). He could not, however,
recall whether any oven man had ever been issued a warning in
the past for similar conduct.
Although the Respondent claims on brief (R. Br. 24) that
Kenny made the decision to issue the warning to M. Flannery
after consultation with Britsch, the record does not bear this
out. Thus, Kenny provided little specifics about this incident
and testified only in a very general sense that when an em-
ployee receives a discipline, a supervisor presents him with the
action to be taken and he either approves or disapproves it.
Kenny claims he does not investigate any particular matter until
the affected individual complains to him about the action taken
22 The Respondent objected on hearsay grounds to M. Flannery’s
further testimony that Howard Brocker, a third floor packer monitor,
told him that the order had been made (Tr. 136). I sustained the objec-
tion. However, given my finding herein that monitors were agents of
Respondent, M. Flannery’s testimony as to what Brocker might have
said to him would not be hearsay. Advance Auto Parts Distribution
Center, 322 NLRB 910, 911 (1997); Fed.R.Evid. 801(d)2(D).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570
(Tr. 518–519). Asked about his involvement in the warning, he
vaguely responded, “either that warning was recommended to
me or I okayed that warning.” Kenny’s testimony thus makes
clear he was not sure of his own involvement in the issuance of
the warning. The warning, it should be noted, contains only
O’Boyle’s signature, and a grievance filed by M. Flannery over
that warning was considered by Britsch and upheld by Manu-
facturing VP Paul Woite, not by Kenny (G.C. Exh. 8). Thus,
other than Britsch’s rather dubious testimony and Kenny’s own
vague assertions, I find little evidence to support Respondent’s
claim that Kenny was responsible for the issuance of the warn-
ing. Kenny, however, explained that he was in full agreement
with the warning because as a result of the wrong oven times
“there was lost time, there was lost product” (Tr. 469–470).
C. Incident Involving Nolan
On January 31, Nolan received a 3-day suspension (January
31, February 1–2), and subsequently issued a written warning
on February 5, for “Insubordination” resulting from an incident
that occurred on January 31, between him and Casey (G.C.
Exh. 26). A description of the incident as described by Nolan
and Casey follows.
Nolan testified that on January 30, Casey filled in for his
then monitor Whitehead, who apparently took the day off. He
claims he often worked either a 12 to 8 p.m. shift, or a 2 to 10
p.m. shift. During the latter shift, Nolan’s breaks were a 15-
minute break at 5 p.m., a lunchbreak at 7 p.m., and a final 15-
minute break at 9 p.m. On January 30, Casey informed Nolan
that his breaks that day would be at 4, 6, and 8 p.m., and that
whatever he had done under Whitehead was his business.23
The next day, January 31, at about 1:50 p.m., Nolan claims he
spoke to Whitehead about the change in his breaks, and asked
to be put back on a 5, 7, and 9 p.m. break schedule, and that
Whitehead agreed to the change (Tr. 265). At 5:10 p.m. that
day, Nolan was speaking to his wife on the phone when Casey
approached and, according to Nolan, began screaming that he
was not on break, that he had been told the day before that this
was not his breaktime. Nolan told Casey he was speaking to
his wife and then asked to see Whitehead. Casey then in-
structed Nolan to get off the phone and return to work, which
Nolan claims he did almost immediately. Casey purportedly
told Nolan that she was “writing this up.” Nolan claims he
went to see Whitehead soon thereafter and that the latter told
him not to worry about it (Tr. 266). Nolan then returned to his
job but soon thereafter, at around 5:25 p.m., Casey appeared
and directed him to “punch out,” which Nolan did. Nolan
claims he remained calm throughout the incident, but was
shocked by Casey’s behavior.
Whitehead testified to having a phone and a subsequent face-
to-face conversation with Nolan that day. As to the phone call,
Whitehead testified Nolan called him to say Casey had caught
him talking on the phone and would he agree to say that he
(Nolan) was on break. Whitehead claims he refused to lie for
Nolan and that “at that point, Linda [Casey] proceeded to issue
out a warning and send [Nolan] home” (Tr. 359). Whitehead
implicitly denied Nolan’s testimony that he authorized Nolan to

23 Casey testified that on January 30, Nolan and three other employ-
ees (Joe Logue, John Tourigian, and Keith Washington) over-extended
their breaks on two occasions and that she had memos prepared and put
into their files (Tr. 286–287; R. Exh. 2) which she claims was to be put
in each of their files. Nolan did not recall the incident but admits that
Casey told them what their break periods would be that day.
take his breaks at 5, 7, and 9 p.m. when he stated Nolan’s
breaktimes should have been at 2, 4, and 6 p.m. He did not,
however, provide any information regarding his face-to-face
conversation with Nolan (Tr. 364).
The following day, while at home on suspension, Nolan re-
ceived a call from Daytime Supervisor Maul who told him he
was being issued a warning for insubordination. The warning,
signed by McCrossen, was in fact issued on February 5 (G.C.
Exh. 26). On February 5, Nolan spoke with McCrossen about
the warning who informed him the warning had been issued for
insubordination. Nolan claims he did not file a grievance be-
cause when he asked McCrossen for a grievance form, the latter
told him he should get one from Flannery, an apparent refer-
ence to the fact that M. Flannery had filed several grievances
(Tr. 271).
Casey’s version of the January 31, incident is that at around
5:10 p.m., as she got off the elevator on the fourth floor, she
observed Nolan talking on the phone, told him he was not on
break, and instructed him to get off the phone and return to his
job. Nolan responded he was speaking with his wife, but Casey
again reminded him he was not on break and again told him to
return to work. Nolan then asked to speak with Whitehead, but
Casey stated this had nothing to do with Whitehead, and again
instructed him to return to work. She claims that she left the
area with Nolan still on the phone, and that she contacted
McCrossen and explained the incident to him. McCrossen
instructed her to send Nolan home and to find Whitehead. Ca-
sey claims she found Nolan speaking with Whitehead. When
she approached Nolan, he stated he was there to pick up his
paycheck. Casey told Nolan he could pick up his paycheck at
his job, and reminded him that she had instructed him to return
to work. Nolan, according to Casey, turned around and ignored
her, at which point she claims “we just sent him home” (Tr.
290–291). Casey then prepared a memo of the incident (R.
Exh. 3).
Nolan claims he asked Kenny on February 10, why he was
not given an opportunity to present his case before being issued
a warning, and that Kenny told him, “[S]ounds like you got a
bad break.” Kenny, according to Nolan, then made repeated
comments about M. Flannery, called him names, stated he did
not understand why everybody wanted the union,” and re-
marked that employee Martin was “a nut.” Nolan testified that
Kenny agreed to review his case. Kenny, however, did not get
back to Nolan but instead told Whitehead, who in turn told
Nolan, that the latter’s break schedule was 4, 6, and 8 p.m. (Tr.
270–271).
McCrossen, who figured prominently in the suspension and
warning issued to Nolan, was not called to testify. Instead, an
undated handwritten memo, purportedly prepared by
McCrossen regarding the January 31, incident and presumably
placed in Nolan’s file, was received in evidence as General
Counsel’s Exhibit 24. Briefly, the memo states that on January
31, McCrossen received a call from Casey reporting that she
had found Nolan talking on the phone outside his normal break
period, and that when she instructed him to return to work
Nolan gave her “a hard time” and did not follow her instruc-
tions. McCrossen, according to the memo, then instructed Ca-
sey to tell Nolan to “hit out the time card and that he will re-
ceive a performance warning,” and would be contacted by a
supervisor in the E&S department instructing him when to re-
turn to work.
TASTY BAKING CO. 571
Kenny gave brief testimony regarding the January 31, inci-
dent involving Nolan. Thus, he testified he was the one who
recommended that Nolan be suspended for being “insubordi-
nate to a supervisor” (Tr. 467). He claims he received the in-
formation regarding the incident directly from Casey herself.
Asked to explain why he believed the suspension was justified,
Kenny explained that it was because Nolan “quite frankly was
in her face and telling her in so many words to mind her own
business and go see somebody else, and just wouldn’t listen to
her, and gave her a hard time.” Kenny further explained that
his policy is “that if somebody gets on somebody’s face and
deliberately will not follow orders, that they should be sus-
pended and it shouldn’t go beyond that. It shouldn’t be argu-
mentative, them getting into anything other than that. It should
be a suspension.” (Tr. 468.) Casey makes no mention in her
testimony of ever having spoken with Kenny about this inci-
dent. Further, Kenny was not asked about, and consequently
did not refute, the February 10, “bad break” statement attrib-
uted to him by Nolan. Kenny’s claim that it was he who rec-
ommended that Nolan be suspended is contrary to Casey’s
testimony and inconsistent with the McCrossen memo which
shows that the latter, not Kenny, was the one who not only
initiated, but also implemented, the 3-day suspension immedi-
ately after the incident occurred on January 31.
Finally, Mahoney claims he also played a role in the issuance
of the warning to Nolan. Thus, he claims that the “production
people” brought the incident to his attention and that he re-
viewed “the facts independently” to see if what “the production
people” wanted to do was appropriate in light of Respondent’s
overall corporate policy. He concluded based on this inde-
pendent evaluation that the facts warranted “an insubordination
charge” and that such a charge brings with it “a summary warn-
ing.” Mahoney testified that he conducted his investigation
between January 31, when the incident occurred, and February
5, when the warning was issued, noting that the warning could
not have been issued without his approval (Tr. 566–567).
D. The Kenny-Martin Meeting
On January 26, Martin went to Kenny’s office after being
told by O’Boyle that Kenny wanted to see him about a sugges-
tion Martin had submitted as part of Respondent’s policy of
soliciting employee suggestions on workplace improvements.
Martin’s suggestion was that Respondent install metal detectors
at Respondent’s front entrance (R. Exh. 4). Martin claims that
on entering Kenny’s office, Kenny showed him a copy of his
suggestion and asked, “What the f—k is this?” When Martin
explained that he had heard some of Respondent’s bosses were
carrying weapons and was afraid, Kenny told him the sugges-
tion was a stupid one, that he never should have submitted it,
and that he believed M. Flannery had put him up to it. Martin
denied that M. Flannery was involved in his suggestion, stating
that he had been with the Company for 16 years and had, dur-
ing that period, submitted many suggestions to Respondent and
received thousands of dollars for such suggestions. Kenny
apparently did not believe Martin for the latter claims he con-
tinued to insist that M. Flannery was somehow involved.
The conversation, according to Martin, then turned to E.
Flannery, with Kenny commenting that he had saved her job
when others wanted to fire her, but had regretted sticking up for
her. The conversation, Martin claims, then turned back to M.
Flannery with Kenny again insisting that he had something to
do with Martin’s suggestion. Martin continued to deny M.
Flannery’s involvement with the suggestion, and then com-
mented to Kenny that M. Flannery did not deserve the warning
he had received when the crumbs were found in the depositor
because as far as he knew, it was his responsibility, not M.
Flannery’s, to get rid of the crumbs. According to Martin,
Kenny stated he did not care whose job it was, “that he had told
Mike that if Mike f—ked him, he would f—k Mike back.” He
went on to tell Martin that “if you f—k me, I’ll f—k you back.”
The meeting apparently ended with Kenny remarking to Mar-
tin, “now, I’m getting Mike. I told him I was going to do it.
Now I’m doing it.” (Tr. 220–222.)
Although he recalls meeting with Martin in January, Kenny
had difficulty recalling the specifics of the meeting. Thus, he
recalls the meeting lasted well over an hour, but could not re-
call whether he asked to see Martin, or vice versa, indicating,
however, that most times people will ask to see him. He claims
that he considered the suggestion to be a joke and that Martin
was only kidding. When he asked Martin if it was a joke, Mar-
tin answered no, that he felt his safety was being threatened.
Kenny denies asking Martin if M. Flannery had put him up to
it. He testified that after some discussion with Martin, it be-
came clear to him that the suggestion was precipitated by “a
rash of threats” that management had directed at employees,
and in particular about an incident involving a disagreement
between a Mike Gallagher and a Bob Smoygi (Tr. 436). Kenny
was uncertain, however, if he mentioned this latter incident to
Martin during his meeting, stating only that “I may have said
. . . something to that effect.”
The meeting, according to Kenny, went from one thing to
another, and was more of a general conversation between the
two. He had little recollection of the various topics they may
have discussed, stating, “We talked about a lot of things. I
don’t recall.” He claims that every time he’s had occasion to
speak with Martin, “it’s always been a conversation about life,
about a lot of different things, a lot of different issues.” He
could not recall if M. Flannery’s name ever came up during that
conversation, and did not specifically recall saying words to the
effect that, “if somebody f—ks with me I’m going to f—k with
them.” His testimony in this regard was somewhat contradic-
tory for he at first flatly denied having made any such comment
to Martin (Tr. 489). Further, while claiming he did not deal in
such profane terms, he conceded on cross-examination that he
and Martin often used such language in their conversations and
that is was possible he would have used the profanity attributed
to him by Martin (Tr. 522–523).
Kenny further could not recall telling Martin that he had
saved E. Flannery’s job, but would not deny having made such
a remark to Martin because it would have been true. He claims
that during the “restructuring” which led to E. Flannery’s de-
motion, serious consideration was given to terminating her
along with the other two supervisors, but that he opposed their
terminations and “saved their jobs.” (Tr. 443.) Kenny states
that he was bothered by talk that he was out to hurt E. Flannery
because if he wanted to hurt her, he could have allowed her to
be terminated, and that the demotion decision was made based
on her performance. He could not recall, however, if he men-
tioned this to Martin during his conversation, but that if it did
come up, it was not raised by him because “I didn’t bring up
any of those kinds of issues at any meetings with people unless
they brought them up to me.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572
V. ANALYSIS AND FINDINGS
A. The 8(a)(1) Conduct
1. Kenny’s threat to Martin
The complaint alleges at paragraph 7(a), and the General
Counsel contends on brief (G.C .Br. 19), that Respondent vio-
lated Section 8(a)(1) of the Act when during his January 26
meeting with Martin to discuss the latter’s metal detector sug-
gestion, Kenny remarked that he warned M. Flannery that he
would “f—k” him back if M. Flannery “f—ked” him, that he
was now getting back at M. Flannery as he said he would, and
by making the same threat to Martin. I find merit in this allega-
tion.
Initially, both Kenny and Martin agree that a meeting took
place sometime in January between the two to discuss the lat-
ter’s suggestion for metal detectors. However, as between the
two, I credit Martin’s version of the meeting. Martin seemed to
be testifying in an honest and truthful manner and provided a
more detailed account of the meeting. Kenny, on the other
hand, discussed the meeting in very general terms and was at
times inconsistent in his explanations. In fact, Kenny did not
deny making the remark about M. Flannery, and testified only
that he could not recall having made it. Further, while initially
claiming he never used profanity in dealing with employees, he
conceded that he and Martin often engage in such exchanges
and that he might have done so during that meeting. Finally,
from a demeanor standpoint, Kenny was not a very convincing
witness. Accordingly, I reject his version of the January 26
discussion with Martin. Instead, I find, as testified to by Mar-
tin, that Kenny indeed told Martin that M. Flannery had been
warned not to “f—k” with him, and that he had now gotten
back at M. Flannery, and would likewise retaliate against Mar-
tin if the latter also “f—ked” with him.
While Kenny did not expressly state how he had retaliated
against M. Flannery, his comments followed Martin’s own
attempt to exculpate M. Flannery for the “crumbs” incident by
asserting that it was his job, not M. Flannery’s, to clean out the
depositor. Thus, it is fairly apparent, and I so find, that
Kenny’s remark about having gotten back at M. Flannery was a
reference to the January 12 warning that was issued to M.
Flannery for not cleaning out the depositor. From Martin’s
description of the incident, it does not appear that Kenny ex-
plained to Martin how M. Flannery had “f—ked” him. Absent
any such explanation, and given Kenny’s refusal to accept Mar-
tin’s admission of culpability for the “crumbs” incident and his
statement that it did not matter whether or not M. Flannery was
responsible, Martin could reasonably have concluded, particu-
larly in light of M. Flannery’s role as an open and active union
adherent, that the warning issued to M. Flannery on January 12,
had nothing to do with the depositor-cleaning chores, but rather
was linked to M. Flannery’s involvement with Union. The
import of Kenny’s message, therefore, would not have been lost
on Martin: involvement with the Union could lead to unspeci-
fied reprisals being taken against him. As such, Kenny’s re-
marks were coercive and violative of Section 8(a)(1) of the Act.
2. Kenny’s threat to M. Flannery
Complaint paragraph 7(c) alleges, and the General Counsel
on brief (p. 21) contends, that Respondent violated Section
8(a)(1) when, on April 11, Kenny threatened to fire M. Flan-
nery because he was “still pushing the union and calling
OSHA.” I find merit in the allegation.
As previously discussed, except for the part relating to
OSHA, M. Flannery’s testimony as to what Kenny said to him
on April 11, is uncontroverted. While a trier of fact need not
accept uncontradicted testimony as true if it contains improb-
abilities or reasonable grounds exist for concluding it is false,
Medin Realty Corp., 307 NLRB 497, 505 (1992), I see no rea-
son to do so here. Thus, from a demeanor standpoint, I found
M. Flannery generally to be a credible witness. I am convinced
he testified in an honest and straightforward manner notwith-
standing any minor inconsistencies that might be found in his
testimony. Further, in light of Kenny’s earlier threat to Martin
(see discussion above), it is not unreasonable to believe that
Kenny would have threatened M. Flannery, one of Union’s
most ardent supporters, with discharge if he persisted in his
union activities.
The Respondent contends that M. Flannery’s testimony can
not be credited because it was not been corroborated by any
other witness (R. Br. 43). However, except for Kenny himself,
M. Flannery never testified that there were others around who
might have overheard Kenny make his remarks and thereby
been able to corroborate M. Flannery’s account. If anything,
his testimony that Kenny approached him as he was standing
behind the third floor ovens suggests that the two were alone
when Kenny made his remarks. Kenny never claimed that
others were present during this meeting, nor indeed was he ever
asked to confirm or deny M. Flannery’s testimony in this re-
gard. In light of these facts, and having found M. Flannery to
be a generally credible witness, I see no reason to reject his
claim that Kenny threatened him with discharge on April 11,
solely because it has not been corroborated by others. See, e.g.,
Sam’s Club v. NLRB, 141 F.3d 653 (6th Cir. 1998), enfg. 322
NLRB 8 (1996). Finally, I find Kenny’s general denial about
ever having spoken to M. Flannery about OSHA insufficient to
refute M. Flannery’s more specific testimony that Kenny
brought up his wife’s demotion and threatened to fire him for
continuing to “push” the Union and calling OSHA. Accord-
ingly, I find that on April 11, Respondent, through Kenny,
threatened to discharge M. Flannery if he continued advocating
for the Union and that, by doing so, it violated Section 8(a)(1)
of the Act, as alleged.
3. Britsch’s threats to M. Flannery
Complaint paragraph 9 alleges, and the General Counsel on
brief contends (p. 21), that on or about January 18, the Respon-
dent violated Section 8(a)(1) by threatening to take unspecified
reprisals against M. Flannery and to enforce its work rules more
stringently because of his union activities. The Respondent
argues that M. Flannery’s version is simply not credible and
that, in any event, nothing in the conversation that occurred
between the two can be construed as amounting to a threat of
unspecified reprisals or a threat to enforce work rules more
rigidly against M. Flannery because of his union activities (R.
Br. 46). Respondent’s arguments are without merit.
M. Flannery, as found above, was a generally credible wit-
ness. His version of this meeting was fact specific, that is, he
recalled the meeting occurred on the morning of the day he
received the warning, that it occurred in Britsch’s office, and
that they discussed the reasons for the warning. He further
provided an account of what he specifically said to Britsch, and
what the latter said to him. Britsch, on the other hand, while
admitting to having had a 10-minute conversation, recalled very
little of that meeting. Further, unlike M. Flannery, he described
TASTY BAKING CO. 573
the meeting in very general terms, stating for example, that
during the meeting he “tried to deal with the situation in a pro-
fessional fashion and tried to deal strictly with the points, the
issues at hand.” He did not deny using the term “enemies” with
M. Flannery, but does not think he told M. Flannery they were
enemies, and could simply have alluded to the fact that people
who argue over union matters, like people who argue over re-
ligion and politics, wind up as enemies. Finally, while claiming
on direct examination that this was the extent of his conversa-
tion with M. Flannery that day, on cross-examination Britsch
admitted having no specific recollection of what might have
been said. Britsch could therefore have made the remarks as
claimed by M. Flannery and forgot he had done so.
Thus, as between M. Flannery’s more reliable and detailed
account of that meeting, and Britsch’s own vague and sketchy
description of what occurred, I credit the former and find that
Britsch in fact told M. Flannery on January 18, that the latter
was his enemy, that the warning issued to him was part of Re-
spondent’s new “get tough” policy, and that he (Britsch) was
doing the right thing for Respondent and would do whatever it
took to keep the Union out. There remains the question of
whether such remarks were coercive and violative of the Act.
Respondent, as noted, argues that even if made, Britsch’s
mention of a new “get tough” policy and his statement about
people “screwing up” were not unlawful as the remarks contain
no reference to union activity and, moreover, were not charac-
terized as threatening by M. Flannery. Respondent’s argu-
ments are without merit. Initially, M. Flannery testified only to
what Britsch said during their meeting, and was never asked to
opine on what, if any, impact Britsch’s words may have had on
him. Thus, if M. Flannery failed to characterize Britsch’s re-
marks as threatening it is because he was simply never asked. I
note in this regard that during its cross-examination of M.
Flannery, the Respondent never questioned him about this par-
ticular incident. The test, in any event, for determining whether
an employer’s remarks are coercive depends not on the success-
ful effect of such coercion, but rather on whether such remarks
may reasonably be said to have a tendency to interfere with the
free exercise of employee rights under the Act. MDI Commer-
cial Services, 325 NLRB 53 16 (1997); M. K. Railway Corp.,
319 NLRB 337, 342 (1995); Interstate Truck Parts, 312 NLRB
661 (1993); Cox Fire Protection, 308 NLRB 793 (1992). Thus,
whether or not M. Flannery personally felt threatened is of no
real consequence, for Britsch’s remarks will be found to be
coercive if they had a tendency to interfere with, restrain, or
coerce employees in the exercise of their Section 7 rights.
Nor do I find the absence from Britsch’s remarks of a spe-
cific reference to union activity to be particularly significant,
for more often than not antiunion threats directed at employees
by an employer intent on undermining union activity are
couched in the most subtle of terms without mention of the
union activity against which the threat is being directed.
Clearly, if viewed in isolation, Britsch’s mention to M.
Flannery of a new “get tough” policy and about people “screw-
ing up” is arguably subject to more than one interpretation,
including one supportive of Respondent’s position. Thus, one
possible construction is that Respondent’s “get tough” policy
was prompted by losses caused by employees “screwing up” on
the production line. But there is yet another equally plausible
construction for Britsch’s remarks. Britsch, for example, could
very well have been suggesting that M. Flannery and other
employees were “screwing up” by supporting the Union, and
that Respondent was retaliating against M. Flannery by issuing
him a warning under its new “get tough” policy for the
“crumbs” incident. Britsch’s remarks, however, cannot be
viewed in isolation but must be considered in light of all sur-
rounding circumstances. Mediplex of Danbury, 314 NLRB
470, 471 (1994); Rockwell International Corp. v. NLRB, 814
F.2d 1530, 1534 (11th Cir. 1987). Here, Britsch’s reference to
a new “get tough” policy and his comment about “people
screwing up” occurred in the context of Britsch’s reference to
M. Flannery as his enemy and his assertion that he would do
whatever it took to keep the Union out. In these circumstances,
M. Flannery could reasonably have construed Britsch’s remarks
to mean that the warning issued to him was part of Britsch’s
admitted strategy of doing what it took to keep the Union out,
and as a threat that he and other union supporters faced further
reprisals under Respondent’s new “get tough” policy should
they persist in their union efforts. Accordingly, I find that
Britsch’s were indeed coercive and in violation of Section
8(a)(1) of the Act.
B. The 8(a)(3) Conduct
1. The January 12, “crumbs” warning
The complaint alleges (pars. 10[a], [f]), and the General
Counsel contends on brief (G.C. Br. 36–38) that the January 12
warning issued to M. Flannery was issued not for leaving
crumbs in the depositor but for his union activities. The Re-
spondent, not surprisingly, disputes the allegation.
The analytical framework for deciding when a disciplinary
action, such as the warnings issued here to M. Flannery, violate
Section 8(a)(3) and (1) is set forth in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). Thus, under Wright Line, the General
Counsel bears the initial burden of making a prima facie show-
ing sufficient to support an inference that protected conduct
was a motivating factor in the issuance of the warnings. The
elements of a prima facie case are satisfied by a showing that
the affected employee was engaged in union or other protected
activity, that the employer knew of such activity, and that it
harbored antiunion animus. Once a prima facie case is estab-
lished, the burden shifts to the employer to demonstrate by a
preponderance of credible evidence that it would have taken the
same action against the employee even in the absence of any
union or other protected conduct. However, if the employer’s
explanation are found to be pretextual—that is, if the reasons
either did not exist or were not in fact relied on—the employer
will not have satisfied its burden and the inquiry ended at that
point. Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982).
The General Counsel, I find, has made a strong prima facie
showing under Wright Line, supra, that the “crumbs” warning
was in fact motivated by M. Flannery’s union activities. Thus,
there is no disputing M. Flannery’s role as an active and open
union adherent, or Respondent’s knowledge of such activities.
Further, the above-found threats directed at M. Flannery and
Martin by Kenny and Britsch provide clear evidence of Re-
spondent’s antiunion animus. In fact, Kenny’s statement to
Martin on January 26, barely 2 weeks after M. Flannery was
handed the “crumbs” warning, that he did not care whose job it
was to remove crumbs from the depositor because he was sim-
ply getting back at M. Flannery, provides near irrefutable proof
that the warning was issued in response to M. Flannery’s union
activities, and not for any failure by M. Flannery to perform his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574
job assignments. The General Counsel having established a
prima facie case, the burden shifts to the Respondent to show
through a preponderance of credible evidence that it would
have issued the warning even if M. Flannery had not engaged
in any union activities. The Respondent has not done so here.
There is scant evidence, for example, to sustain the underly-
ing basis for the warning, that is, that it was M. Flannery’s re-
sponsibility to clean crumbs from the depositor when the de-
positor operator was on break. Thus, the only evidence in this
regard is Britsch’s and O’Boyle’s testimony that the removal of
crumbs from the depositor during a changeover in production
and in the operator’s absence has always been the ovenman’s,
e.g., M. Flannery’s, job. However, contradictions in their tes-
timony, particularly with respect to the June 6, alleged wrong
oven times” incident, call into question their overall veracity.
For example, Britsch and O’Boyle, as noted, contradict each
other on whether a memo was ordered put in M. Flannery’s file
regarding the “oven times” incident, with O’Boyle claiming
Britsch ordered him to do so, and Britsch denying the same.
They further contradict each other as to O’Boyle’s involvement
in the decision to issue M. Flannery the June 6, warning, with
O’Boyle stating he was not involved, and Britsch claiming
O’Boyle took part in that decision. Britsch’s further claim
regarding the January 12, “crumbs” warning, that Casey noti-
fied him that crumbs had been left in the depositor 2 days in a
row is likewise not corroborated by Casey, who testified only
that she informed him only of the January 11 incident. In light
of these contradictions, as well as their questionable demeanor
on the witness stand, I do not credit Britsch’s O’Boyle’s claim
that the removal of crumbs from the depositor has always been
part of M. Flannery’s job duties.
Thus, I find that while M. Flannery often assisted depositor
operator Martin in cleaning crumbs from the depositor, there is
simply no credible evidence to suggest that he was in fact re-
quired to do so as part of his normal ovenman’s duties. In this
regard I note that M. Flannery testified, credibly and without
contradiction, that at no time prior to being issued the warning
was he ever told that removal of crumbs during the depositor
operator’s absence was part of his regularly assigned chores.
The Respondent, I further note, did not produce a copy of the
oven man’s job description, which Casey admits exists (Tr.
314–315), which might have shed light on the precise nature of
M. Flannery’s operational duties and possibly removed any
doubts on this matter, for if removing crumbs from the deposi-
tor was indeed part of an oven man’s responsibility, it more
likely than not would be reflected in the job description. In
fact, the depositor operator’s job description, introduced into
evidence by the General Counsel (G.C. Exh. 14), establishes
rather convincingly that the removal of crumbs from the de-
positor was the depositor operator’s function, as Martin tried to
make clear to Kenny during their January 26 conversation. It is
clear to me, and I so find, that the January 12 warning issued to
M. Flannery was not prompted by his failure to perform his
assigned job duties, as it was not his job to clean out the crumbs
from the depositor either on January 10 or 11.
There is yet another factor undermining Respondent’s claim
that M. Flannery was disciplined for leaving crumbs in the
depositor on January 10 and 11. Britsch, as noted, claims he
investigated the “crumbs” incident and based on that investiga-
tion concluded that M. Flannery had filled in for Martin during
the latter’s lunchbreak and during a changeover from
crumbcake to chocolate cupcake, and consequently was respon-
sible for leaving crumbs in the depositor. His inquiry, however,
if indeed there was one, could only be described as superficial
and perfunctory in nature, for neither Martin nor M. Flannery,
the only two individuals with firsthand knowledge of the events
of January 10 and 11, and who could best explain why the de-
positor was not cleaned on either of those days, was never
questioned or asked to provide an explanation regarding those
incidents. Nor did he consult with O’Boyle, M. Flannery’s
direct supervisor and the only other person who might have had
knowledge of the incident, prior to arriving at his conclusion as
to M. Flannery’s culpability, for O’Boyle testified that Britsch
“reported” to him that M. Flannery had left “the hopper full one
day, and the next day, two days in a row” (Tr. 324).24 Although
not asked to explain how he conducted his alleged investigation
or who he might have questioned, it is inconceivable that
Britsch would not have inquired of M. Flannery and Martin
(and indeed O’Boyle) regarding their knowledge of the inci-
dents. In fact, had Britsch questioned Martin the latter in all
likelihood would have told him, as he subsequently told Kenny
on January 26, that he, not M. Flannery, was responsible for not
removing the crumbs from the depositor. Respondent’s failure
to adequately investigate M. Flannery’s alleged misconduct
supports an inference that the warning issued to him on January
12, was discriminatorily motivated. Operator Engineers Local
3, 324 NLRB 1183 (1997); Paper Mart, 319 NLRB 9, 10
(1995); Denholme & Mohr, Inc., 292 NLRB 61, 67 (1988).
Indeed, Kenny’s January 26, comment to Martin, that he did
not care whose job it was to remove crumbs from the depositor
and that he was simply carrying out an earlier threat to get back
at M. Flannery, provides near irrefutable evidence that the
warning had nothing to do with crumbs being left in the deposi-
tor.
In light of the above, I find that Respondent’s explanation for
issuing M. Flannery the January 12 warning—his alleged fail-
ure to remove crumbs from the depositor 2 days in a row—is
nothing more than a pretext designed to mask its true motive,
its opposition to his union activities. As noted, when the reason
given for disciplinary action is found to be pretextual, the em-
ployer will not have met its burden under Wright Line. As the
Respondent has not met its burden of showing that it would
have issued the warning to M. Flannery even if he had not en-
gaged in union activity, the General Counsel’s prima facie case
remains intact, warranting a finding, which I make here, that
the warning was issued for discriminatory reasons in violation
of Section 8(a)(3) and (1) of the Act.
2. M. Flannery’s wrong “oven times” warning
The General Counsel contends that the June 6 warning to M.
Flannery for reporting the wrong oven times was in fact issued
for his union activities. Not surprisingly, the Respondent de-
nies the same, and argues that the June 6 warning “was justified
because of the impact of this error in terms of lost production
on the operation of the business,” and “was consistent with

24 Surprisingly, O’Boyle claims he knew nothing of either incident
until Britsch reported both incidents to him on January 11 (Tr. 347–
348). While the record does not make clear if Britsch was aware of
O’Boyle’s lack of knowledge, he could reasonably have assumed that
as M. Flannery’s supervisor, O’Boyle would have known of both the
January 10 and 11 incidents.
TASTY BAKING CO. 575
discipline that [had been] previously imposed for production
errors” (R. Br. 24).25
For the reasons previously discussed regarding the crumbs
warning, I find that the General Counsel has made a prima facie
showing that the June 6 warning, like the January 12 warning,
may have been motivated by antiunion considerations. There
is, as noted, no disputing M. Flannery’s involvement with the
Union, or Respondent’s knowledge of such activities, and given
my above findings no doubt that Respondent harbored anti-
union animus. The burden thus rests with the Respondent to
show that it would have issued the warning to M. Flannery
even if he had not engaged in union activity. The Respondent
has failed to do so.
Before turning to the merits of Respondent’s argument, cer-
tain conflicts in testimony, including M. Flannery’s and
O’Boyle’s different versions of their discussion of the incident,
must be addressed, for they ultimately impact on the legitimacy
of Respondent’s defense. O’Boyle and M. Flannery, as previ-
ously noted, disagree on what they said to each other and how
the discussion of the incident was first broached, with O’Boyle
asserting M. Flannery came to him and admitted to “screwing
up” the oven times, and M. Flannery claiming O’Boyle who
approached him, told him the oven times he gave the mixing
room employees were wrong, and that a memo regarding the
incident was being placed in his personnel file. I found M.
Flannery to be the more credible of the two and, accordingly,
credit his version over O’Boyle’s account. From a demeanor
standpoint, O’Boyle was an unconvincing witness whose testi-
mony, in my view, seemed tailored to fit Respondent’s version
of events. Further, as found above, inconsistencies in the de-
scription of the June 6, events provided by O’Boyle and
Britsch, render suspect O’Boyle’s, as well as Britsch’s, testi-
mony. To reiterate, Britsch’s claim that O’Boyle took part in
the decision to issue M. Flannery a warning was denied by
O’Boyle, and O’Boyle’s claim that Britsch instructed him to
place a memo in M. Flannery’s file was denied by Britsch. On
this latter point, I do not credit O’Boyle’s claim that he placed a
memo in M. Flannery’s file, for not only was no such memo
found in his file, but I find it highly unlikely O’Boyle would
have acted on his own and issued the memo without first ob-
taining Britsch’s prior approval. Britsch, as noted, denies ever
directing O’Boyle to do so (Tr. 425). For all of the above rea-
sons, I credit M. Flannery over O’Boyle and accept the for-
mer’s testimony as true whenever it conflicts with that given by
O’Boyle. Accordingly, I find that on June 6, O’Boyle ap-
proached and notified M. Flannery of the mixup in oven times,
and further told him a memo of the incident was to be placed in
his file. I also credit M. Flannery’s claim that when O’Boyle
subsequently informed him that a warning was to be issued, the
latter told him that “the powers that be decided it should be a
warning, suggesting implicitly that he had no part in that deci-
sion.”

25 The Respondent on brief (R. Br. 23) states that the “complaint
does not allege the underlying charge and the underlying charge cannot
be determined.” I take its above remark to mean that this particular
allegation is not related to any of the charges filed in the case. Its claim
is rejected for the charge filed on June 13, 1996, in Case 4–CA–25014
makes clear reference to the warning in its statement that “[o]n or about
June 6, 1996 the above-named Employer acting through its agent
and/or supervisor Joe O’Boyle did discipline Michael Flannery” in
violation of Sec. 8(a)(3) of the Act (G.C. Exh. 1[r]).
Regarding the merits of its defense, I find unpersuasive Re-
spondent’s claim that it decided to issue M. Flannery a warn-
ing, rather than simply placing a memo in his file, because his
purported error of providing the wrong oven times to the mix-
ing room resulted in a loss of production. While it did include
this explanation in the warning (G.C. Exh. 8), in separate June
20 denials to M. Flannery’s grievance O’Boyle and Britsch
both justify the warning because the mixup in oven times had
the potential for causing a considerable amount of lost sales
(G.C. Exh. 9). Their memos thus make clear that it was the
potential for, and not an actual, loss which purportedly led to
the warning.26 Indeed, their June 20 responses are consistent
with M. Flannery’s claim to be told by third floor monitor
Brocker that Respondent did not sustain any loss in production
and had been able to complete the order despite the wrong oven
times. While Britsch and Kenny both testified that Respondent
experienced a loss of production, I do not credit their testimony
for not only was neither a credible witness, but their oral asser-
tions contradict the above written responses to M. Flannery’s
grievance as well as M. Flannery’s more credible assertion that
he was told no loss was sustained by Respondent. The Re-
spondent, it should be noted, produced no records to substanti-
ate its claim that the wrong oven times used on June 6, had
adversely affected production that day.
Further undermining the legitimacy of its defense is the fact
that the Respondent, contrary to its assertion on brief, did not
adequately investigate the incident before issuing the warning
to M. Flannery. O’Boyle does claim that he fully investigated
the matter by comparing the oven times presumably furnished
to M. Flannery by “floorlady,” Cathy Morrissey, to those jotted
down by the former and passed on to the mixing room, from
which he concluded that M. Flannery had recorded the wrong
times. However, O’Boyle, whose overall credibility is highly
suspect, was anything but certain regarding his investigation of
this incident. Thus, he testified only that he “believed” the
individual who provided the oven times to M. Flannery was
Cathy Morrissey, but qualified his testimony by stating that
“it’s been a while ago.”27
However, assuming, arguendo, that it was Morrissey who
furnished M. Flannery with the oven times on June 6, and that
O’Boyle did review the oven times recorded on a piece of paper
by Morrissey, O’Boyle admits he never questioned Morrissey
to determine if she might have misread the oven times to M.
Flannery over the phone, and admits in this regard that such an
error by Morrissey was a distinct possibility (Tr. 342–343).
Further, it is not all that clear that O’Boyle actually spoke with
Morrissey, for his testimony is that he “checked” the oven
times purportedly recorded by Morrissey on a piece of paper
with that written down by M. Flannery, and makes no mention
of ever having actually spoken to Morrissey.
26 Britsch’s statement at the hearing, that the warning was issued for
“30 minutes of lost time and lost sales” contradicts the statement in his
memo to M. Flannery that the warning was issued because it had the
potential for causing a sales loss (Tr. 405). This contradiction serves to
further undermine his overall credibility.
27 O’Boyle’s “belief” that it was Morrissey who called the oven
times in to M. Flannery, when viewed together with his “it’s been a
while ago” remark, reflects a certain degree of uncertainty on his part
as to who might have provided M. Flannery with the oven times that
day. Given his uncertainty, I find it difficult to accept his further testi-
mony that he compared the oven times recorded by Morrissey on a
piece of paper with that written down by M. Flannery.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 576
Nor presumably did O’Boyle bother to obtain an explanation
from M. Flannery regarding the incident before issuing the
warning, for according to M. Flannery’s credited account, when
he was notified by O’Boyle about the mix-up in oven times,
O’Boyle told him that a memo of the incident was to be placed
in his file. There is no indication from either M. Flannery’s,
O’Boyle’s, or for that matter Britsch’s, testimony that M. Flan-
nery was ever given an opportunity to explain what he knew
about the mixup. If asked, M. Flannery quite possibly would
have stated that he wrote down whatever he was told by the
person who called in the oven times to him, presumably Mor-
rissey.28 That Morrissey might have provided M. Flannery with
the wrong oven times would not have been so unusual, for the
record reflects that just 1-month later Morrissey was involved
in a similar incident during which she furnished the wrong oven
times to the baking department (Tr. 392). The record, on the
other hand, reveals no prior incidents by M. Flannery of provid-
ing the wrong times to another department. Thus, the likeli-
hood that Morrissey and not M. Flannery made the mistake on
June 6, is fairly strong. The Respondent, however, chose not to
ask Morrissey what she may have told M. Flannery, nor for that
matter to seek M. Flannery side of the story. While I seriously
doubt that Respondent conducted any investigation into the
matter, if it did, it was at most a superficial one. Its failure to
adequately investigate M. Flannery’s alleged misconduct, as
found above, supports an inference that the disciplinary action
taken was discriminatorily motivated.
Finally, the Respondent claims that the warning issued to M.
Flannery was consistent with that issued to other employees,
noting in particular, that warnings were issued in January to
employees George White and Richard Brooks for errors which
led to production losses (R. Exhs. 5, 6). The problem with this
argument, however, is that, as found above, there is no indica-
tion that Respondent actually experienced any loss in produc-
tion. Had Respondent sustained an actual loss from the mix-up
in oven times on June 6, it would have mentioned the precise
nature of loss in the warning, as it did with the White and
Brooks. In fact, the evidence, if anything, suggests that M.
Flannery was treated in a disparate manner vis-à-vis other em-
ployees who engaged in similar conduct. Thus, the record re-
flects that 2 weeks after the M. Flannery incident, another em-
ployee, Tom McIntyre received only a memo to file when he
prematurely shut down the oven causing a loss in production
time (G.C. Exh. 23).29
Accordingly, I find no credible support for Respondent’s ex-
planation of the June 6 warning, and am convinced that the true
reason for the warning was to further punish M. Flannery for
his union activity. As noted, neither O’Boyle nor Britsch, the

28 M. Flannery’s testimony, as the Respondent correctly points out,
reflects uncertainty as to what precisely he was told by the individual
who gave him the oven times on June 6. However, M. Flannery testi-
fied that he “thought the lady told me” the correct oven time was 11:45
a.m., not 12:15 p.m. Respondent could have clarified this apparent
confusion by questioning the person responsible for giving M. Flannery
the oven times. It chose not to do so.
29 Respondent sought to distinguish the McIntyre incident at the
hearing. Thus, supervisor Al Grasch testified that McIntyre received a
memo instead of warning because his error only caused a 7-minute
delay in production. Grasch’s explanation was not credible, for on
cross-examination he stated that McIntyre received the memo because
this was his first error of this type. As previously noted, there is no
evidence that M. Flannery had had a similar incident involving wrong
oven times prior to the June 6 incident.
two most connected with the issuance of the warning, were
credible witnesses. The Respondent having failed to sustain its
burden under Wright Line, I find that the warning issued to M.
Flannery on June 6, was unlawful and violative of Section
8(a)(3) and (1) of the Act.
3. The warning to Nolan
Applying the Wright Line analysis, I find that the General
Counsel has made a prima facie showing that Nolan’s 3-day
suspension and accompanying February 5 warning may have
been motivated by antiunion reasons. As previously noted,
Nolan, like M. Flannery, was an open and active union adher-
ent, whose union sympathies were well known to Respondent.
Respondent’s antiunion animus is well established on this re-
cord and made evident by the unlawful threats directed at Mar-
tin and M. Flannery, and by the unlawful warnings issued to the
latter for his union activities. I further find that the Respondent
has not satisfied its own burden under Wright Line of showing
that it would have suspended and issued the warning to Nolan
even if he had not engaged in any union activity.
The merits of Respondent’s claim that Nolan was properly
disciplined for being insubordinate to Casey depends, in large
measure, on which account of the January 31 phone incident
can be believed, Casey’s or Nolan’s. Casey, as noted, avers she
found Nolan speaking on the phone when he was not on a
break, directed him in a normal voice to return to his work, that
Nolan refused to do so and instead asked to see Whitehead, and
that he was still on the phone when she left to report the inci-
dent to McCrossen. Nolan’s version is that he had permission
that day from Whitehead to take his 15-minute break at 5 rather
than 4 p.m., that when Casey observed him on the phone she
began screaming at him to get off and return to work, that he
told Casey he was speaking with his wife and admittedly asked
to see Whitehead, but that he got off the phone within ten sec-
onds of being told to do so by Casey.
As between the two, I find Nolan’s version to be the more
credible. From a demeanor standpoint, Casey was neither im-
pressive nor convincing. She struck me as someone who was
willing to slant her testimony to help her Employer’s cause. On
the other hand Nolan, while by no means the perfect witness,
did convince me as having testified in an honest and truthful
manner. The Respondent disputes Nolan’s credibility by point-
ing to Whitehead’s testimony that soon after the phone incident
with Casey, Nolan called and asked Whitehead to lie for him,
and to Nolan’s inability to remember that Casey on January 30,
had reproached him and several other employees (e.g., Logue,
Washington, Kirby, and Tourigan) for overextending their
breaks.
Whitehead, as Respondent correctly points out, does claim
that Nolan asked him to lie for him by saying he was on break.
Nolan, however, testified that he called Whitehead and that the
latter simply said not to worry about his encounter with Casey.
I do not credit Whitehead, for I find it difficult to believe Nolan
would have been so bold as to ask one supervisor to lie on his
behalf to another supervisor. Rather, I am convinced Nolan
was in fact told by Whitehead not to worry about the incident.
Nor do I find significant that Nolan was unable to recall that
Casey on January 30 admonished him and others against over-
extending their break periods, for it is not uncommon for wit-
nesses to recall certain things but not others. Nolan did recall
casy telling him and others on January 30, that their breaks for
that day were at 4, 6, and 8 o’clock. Respondent’s suggestion
TASTY BAKING CO. 577
that Nolan was lying because he did not also recall Casey’s
admonishment is not grounds for disbelieving his entire testi-
mony or for finding him not to be credible. Nor, as implicitly
suggested by Respondent on brief, is it proper to draw some
adverse inference against the General Counsel for not calling
employees Logue, Washington, Kirby, or Tourigan to refute
Casey’s claim that she instructed them and Nolan against ex-
tending their breaks, for these individuals were as accessible to
Respondent as they were to the General Counsel, and likewise
could have been called by Respondent to corroborate Casey. In
sum, the arguments made by Respondent against Nolan’s
credibility are rejected. Rather, crediting Nolan’s version of
events, I find that at around 5:10 p.m. on January 31, Casey
observed Nolan talking on the phone, that she then began
screaming that he get off the phone and return to work, that
Nolan asked to speak with Whitehead, and that he immediately
got off the phone. I further credit his assertion that Whitehead
told him not to worry about the incident.
On these credited facts, I find nothing in Nolan’s conduct or
response to Casey during the January 31 phone incident that
can reasonably be characterized as insubordinate behavior. I
am convinced that when Nolan asked to speak with Whitehead,
he was simply trying to get Casey to confirm that he was le-
gitimately on break. Nolan, however, never got the opportunity
to explain. In fact, it was Casey’s behavior throughout the
entire incident that, in my view, was unreasonable and disre-
spectful. Had Nolan been allowed to explain, I am certain that,
consistent with his testimony at the hearing, he would have told
Casey that his break period had been changed by Whitehead, a
claim Casey could easily have corroborated or refuted by con-
sulting with Whitehead. Casey, however, was apparently not
interested in finding out why Nolan was not at his workstation
or if he maybe was on break, for she went directly to
McCrossen to report Nolan’s alleged insubordination without
so much as inquiring of Nolan why he was on the phone, or
asking Whitehead if he had authorized Nolan to use the phone
or to take break at 5 p.m. When she exited McCrossen’s office,
the decision to suspend Nolan for three days and issue him a
performance warning had been made without so much as the
semblance of an investigation having been conducted by Casey
or McCrossen into the matter.
Nor, given certain inconsistencies in his testimony, do I find
credible Mahoney’s assertion that he conducted his own inde-
pendent investigation of the incident. Thus, Mahoney’s claim
that Casey reported the incident to him was not corroborated by
Casey, whose testimony reflects only that she reported the inci-
dent to McCrossen, who in turn decided on the spot to suspend
Nolan and to issue him a performance warning. Further, while
Mahoney testified that no disciplinary action, such as a suspen-
sion, can be imposed without his prior review and approval (Tr.
566), there is no question that Nolan was indeed suspended
before Mahoney could have given his approval, as evident
again by Casey’s testimony and by the memo of the incident
placed in Nolan’s file by McCrossen, both of which reflect the
suspension as occurring soon after Casey reported the matter
McCrossen. Thus, I do not accept Mahoney’s claim that he
was the one responsible for the suspension and warning being
issued. In this regard, other than Mahoney’s vague reference to
the “production people,” nothing in Mahoney’s testimony sug-
gests that he and McCrossen discussed the matter before the
latter directed Casey to send Nolan home on January 31.
Further, even if I were to believe that Mahoney conducted an
independent investigation of the incident, which I do not, the
investigation was anything but adequate, for he never gave
Nolan an opportunity to be heard nor did he inquire of White-
head whether he had authorized Nolan to take his break on
January 31, at 5 p.m.. In this regard I accept as true Nolan’s
claim that when he asked Kenny why he had not been asked to
give his side of the story, Kenny told him he had gotten a bad
break. Kenny never denied having had such a conversation
with Nolan. Finally, I do not credit Kenny’s claim that it was
he who recommended that Nolan be suspended, for again his
testimony that the incident was brought to his attention by Ca-
sey was not corroborated by the latter. Further, Casey’s testi-
mony makes clear that the suspension followed her discussion
with McCrossen, and there is no indication that Kenny and
McCrossen discussed the matter before Casey was instructed
by McCrossen to tell Nolan to go home and of the issuance of a
performance warning.
In sum, the numerous inconsistencies in the testimony of Re-
spondent’s witnesses regarding this incident, their questionable
credibility, and the Respondent’s failure to adequately investi-
gate the matter before imposing discipline on Nolan, convince
me that Respondent’s claim of insubordination as the basis for
the suspension and the warning meted out to Nolan is nothing
more than a pretext, and that the true reason for Respondent’s
actions was to retaliate against him for his union activities.
Accordingly, I find that the 3-day suspension and warning is-
sued to Nolan both violated Section 8(a)(3) and (1) of the Act,
as alleged.
4. The “no talking” restriction
The complaint alleges (G.C. Exh. 1[x], par. 10[b]) and the
General Counsel contends that Respondent, through O’Boyle,
continued to retaliate against M. Flannery for his union activi-
ties by prohibiting him from talking to Martin, a claim denied
by Respondent. The sole evidence relied on by the General
Counsel consists of M. Flannery’s testimony that on January
30, O’Boyle told him he “was not allowed to be up on the de-
positor with Martin anymore” and was to remain at his job
behind the oven (Tr. 127). The Respondent denies the allega-
tion, noting that O’Boyle denies imposing any talking restric-
tion on M. Flannery. It further points out that even if M.
Flannery were to be believed, the remarks he attributes to
O’Boyle on their face do not reflect a prohibition on speaking
with Martin, and amounts to nothing more than a routine exer-
cise of supervision by O’Boyle.
The Respondent has the better of the argument. Thus, the
complaint alleges that Respondent “prohibited its employee
Michael Flannery from talking to ‘a depositor.’ However, M.
Flannery testified only that O’Boyle prohibited him from being
at the depositor and did not state that O’Boyle also restricted
him from having any conversations with Martin. Conse-
quently, even if credited, M. Flannery’s testimony does not
establish that O’Boyle restricted him from speaking with Mar-
tin. Given the absence of any reference to such a prohibition in
M. Flannery’s testimony, and O’Boyle’s denial that he ever
imposed such a restriction on M. Flannery, I find no evidence
to support this complaint allegation and shall accordingly rec-
ommend its dismissal.
5. The change in smoke and lunchbreaks
The General Counsel contends that the Respondent violated
Section 8(a)(3) and (1) of the Act when O’Boyle prohibited M.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 578
Flannery from taking smoke breaks in the third floor hallway
and directed that he smoke only at the designated smoke rooms
on the second or fourth floors. She argues that this change,
resulting in M. Flannery having to walk some distance from his
workstation to take a smoke break, was retaliatory in nature.
The Respondent argues, in turn, that the complaint alleges only
that M. Flannery’s smoke break was unlawfully reduced to
fifteen minutes, and contains no allegation regarding the change
in smoking locations. It seeks dismissal on this ground.
I find merit in Respondent’s argument, for complaint para-
graph 10(e) alleges only that the Respondent unlawfully “re-
duced the length of M. Flannery’s smoke break to 15 minutes”
and does not allege that the change in smoking areas was itself
unlawful. The General Counsel did not seek to amend the
complaint to include this allegation or to modify paragraph
10(e) to reflect the change in location as violative of the Act,
nor did she move at the conclusion of the hearing to conform
the pleadings to the proof. Accordingly, the General Counsel’s
contention that Respondent violated the Act by changing the
location where M. Flannery was permitted to smoke is found to
be without merit.
The complaint further alleges at paragraph 10(d) that the Re-
spondent unlawfully reduced M. Flannery’s lunchbreak to 30
minutes. I find no merit to this allegation, for by M. Flannery’s
own admission he was only entitled to a 30-minute lunchbreak
(Tr.160). The General Counsel, on brief (G.C. Br. 43), states
that “Respondent provided no reason why M. Flannery’s
lunchbreaks were changed.” However, she offers no explana-
tion as to how M. Flannery’s lunchbreaks may have been
changed. The only evidence pointing to a possible change is M.
Flannery’s claim that O’Boyle told him he (O’Boyle) would
decide when M. Flannery could take his breaks. The complaint,
however, does not allege a violation based on O’Boyle’s re-
marks, but rather alleges only that the violation stems from a
reduction in the length of M. Flannery’s lunch break, a conten-
tion which, as noted, lacks merit. Like the prior claim regard-
ing the change in smoke locations, the General Counsel did not
seek to amend the complaint to allege O’Boyle’s remarks as a
violation of the Act, and did not move to conform the pleadings
to the proof. Accordingly, I shall recommend dismissal of
complaint paragraph 10(d).
C. The 8(a)(1) and (3) Allegations Involving E. Flannery
1. Her demotion
The General Counsel contends that the Respondent demoted
E. Flannery from her supervisory position to a packer position
in June 1995, in retaliation for her husband’s union activity,
and that said demotion was violative of Section 8(a)(1), citing
in support Kenrich Petrochemicals v. NLRB, 907 F.2d 400 (3d
Cir. 1990), and the Board’s holdings in Advertiser’s Mfg. Co.,
280 NLRB 1185 (1986), and Parker-Robb Chevrolet, 262
NLRB 404 (1982).30 While admitting that the retaliatory dis-

30 In Parker-Robb, the Board addressed the question of when a su-
pervisor’s discharge violates the Act. Overruling what had come to be
known as the “integral part” or “pattern of conduct” line of cases, the
Board in Parker-Robb limited the circumstances in which a supervisory
discharge would be proscribed by the Act to instances where the very
act of discharge itself severely and directly impinged on the exercise of
Sec. 7 rights. The instances that would trigger such a finding include
the discharge of a supervisor for giving testimony adverse to an em-
ployer’s interest either at an NLRB proceeding or during the processing
of a grievance, for refusing to commit unfair labor practices or failing
charge of a supervisor for the protected activities of a relative
may be found violative of the Act under the above line of cases,
the Respondent contends that “the ‘demotion’ a supervisor is
distinguishable from a discharge,” and that “[w]hen weighing
the delicate balance between the rights of management to select
its supervisors and the requirements of the Act, the fact that the
supervisor was not discharged, but rather was demoted, should
tip the scale towards finding that such a decision is not pro-
scribed by the Act” (R. Br. 8). It further argues that E.
Flannery’s demotion was, in any event, part of a lawful reor-
ganization it underwent in June 1995, that affected several su-
pervisors, not just E. Flannery, and which was consistent with
similar reorganizations in the past.
As to its first argument, there is no disputing that the demo-
tion of a supervisor is not the same as a discharge, for unlike a
demotion wherein a supervisor remains in the employer’s em-
ploy albeit in a lower employee status, a discharge is more
severe and results in a complete severance of the employment
relationship. It is also true that the holdings in Kenrich Petro-
chemicals v. NLRB and Advertiser’s Manufacturing Co., supra,
dealt with the discharge, and not the demotion, of supervisors.
However, I find nothing in those decisions to suggest that only
a retaliatory discharge of a supervisor, and not some other
lesser form of retribution, is deemed proscribed by the Act. In
Parker-Robb, the Board made clear that the underlying ration-
ale “for finding a violation and reinstating a supervisor who
would otherwise be excluded from coverage under the Act is
grounded upon the view that the discharge itself severely im-
pinged on the employees’ Section 7 rights.” The demotion of a
supervisor in response to the union or other protected activities
of a relative or other family member of the supervisor is clearly
no less coercive than a discharge and, like the retaliatory dis-
charge, would have the same unmistakable effect of interfering
with the employee relative’s exercise of their statutory Section
7 rights. Accordingly, I find that the demotion of a supervisor
in retaliation for the protected activities of the supervisor’s
relatives, like a retaliatory discharge, is also proscribed by Act
under the holdings of Parker-Robb, Kenrich Petrochemicals v.
NLRB and Advertiser’s Manufacturing Co., supra.
There remains the question of whether in this particular case,
E. Flannery’s demotion was in retaliation for her husband’s
union activity or, as claimed by Respondent, part of a company
reorganization. As in all cases dealing with employer motiva-
tion, the first line of inquiry is whether the General Counsel has
established that protected activity was a motivating factor in
Respondent’s decision to demote E. Flannery. See Kenrich
Petrochemicals, 294 NLRB 519, 531 (1989), citing to Wright
Line, 251 NLRB 1083 (1980).31
The General Counsel has clearly met her burden here, for not
only was Respondent fully aware of M. Flannery’s union in-
volvement, it unlawfully issued him two separate warnings for
his union activities and unlawfully threatened him with dis-

to prevent unionization of its employees, or where the discharge is in
retaliation for protected or union activities engaged in by the supervi-
sor’s relative. See Advertiser’s Mfg. Co., supra, enfd. 823 F.2d 1086
(7th Cir. 1987), and Kenrich Petrochemicals, 294 NLRB 519, 531
(1989), enfd. 907 F.2d 400 (3d Cir. 1990).
31 The General Counsel’s burden in a case such as this is satisfied by
a showing that the Respondent knew that E. Flannery’s husband, M.
Flannery, was engaged in union activity, that it harbored antiunion
animus, and that said animus may have been a motivating factor in
Respondent’s decision to demote E. Flannery.
TASTY BAKING CO. 579
charge, clearly demonstrating its antiunion animus. Aside from
its primary defense that E. Flannery’s demotion was simply
part of a lawful reorganization, the Respondent argues that the
timing of her demotion in June 1995, many months after M.
Flannery first revealed his prounion sympathies by distributing
leaflets outside its facilities in late 1994 or early 1995, militates
against a finding that her demotion was related to her husband’s
protected activities.
While the “timing” argument may at first blush appear to fa-
vor Respondent’s claim, it is worth noting that the demotion
occurred only 2 months after the Board-conducted election held
in April 1995, which the Respondent won. It is quite possible,
therefore, that the Respondent may have been reluctant to en-
gage in any retaliatory conduct prior to the election for fear it
might be found liable for interfering with the election process,
and that having prevailed in the election the Respondent no
longer felt constrained to act. This might reasonably explain
why Respondent chose not to act until June 1995, at which
point it opted to strike back at the one individual most respon-
sible for the Union’s attempt to organize its employees, M.
Flannery, by demoting his wife. When viewed in this light, the
timing of E. Flannery’s demotion would not undermine the
General Counsel’s claim that the demotion was unlawfully
motivated.
Further support for the notion that the demotion was retalia-
tory in nature is found in Kenny’s rhetorical remark to M.
Flannery on April 11, which Kenny did not dispute, that he
could not believe M. Flannery would continue with his pro-
union activities “after what happened to your wife.” The clear
implication of Kenny’s comment is that E. Flannery had been
demoted because of M. Flannery’s involvement with the Union.
Accordingly, I find that the General Counsel has made a prima
facie showing under Wright Line that E. Flannery was demoted
in retaliation for her husband’s union activities. The burden
now rests with the Respondent to demonstrate that it had a le-
gitimate nondiscriminatory reason for the demotion.
Respondent’s chief defense, as noted, is that E. Flannery was
demoted as part of an internal reorganization. Initially, this
alleged reorganization, according to Kenny, came about when
he assumed the position of production superintendent and
Woite was put in charge of the maintenance department. He
claims that he and Woite selected E. Flannery, Whitehead, and
Whitelock for demotion strictly on the basis of their perform-
ance. Another supervisor, Nater, who had worked for Respon-
dent less than 90 days, was selected for termination. As to why
E. Flannery was selected for demotion, Kenny explained it was
because she “couldn’t get the job done,” stating that her de-
partment was the “poorest in the bakery” and “extremely un-
productive day in and day out” (Tr. 457–458).
Of all Respondent’s witnesses, I found Kenny to be the least
credible. His testimony was vague and at times uncertain.
Thus, asked on direct examination by Respondent’s counsel if
he expressed concern about E. Flannery’s ability to get the job
done to other members of management, Kenny replied, “I’m
sure I did.” But asked if he had any specific recollection of any
meeting he might have attended wherein he voiced his concern,
he answered, “Specifically, no” (Tr. 449). Further, while he
apparently had no difficulty identifying the individuals who
complained to him about E. Flannery’s supervision, where
those complaints were made, and the fact that two female em-
ployees came to him in tears, his memory suddenly seemed to
fade when asked by the General Counsel if he could recall the
year in which those complaints were made, stating at first, “I
couldn’t give you an exact date,” then stating “it was probably
in ‘95,” and yet again suggesting, “. . . or ‘94, whatever.”
Asked again by the General Counsel if he could say within a
year’s time when such complaints were made, Kenny re-
sponded, “No, I have employees talk to me . . . all the time,
every day, and for me to recall every conversation with every
person I just couldn’t do that honestly with you.” I am con-
vinced Kenny was simply being evasive in his response to the
General Counsel, for on direct examination he seemed to know
when these alleged complaints were made to him. Thus, asked
by Respondent’s counsel if “during this period of time” (e.g.,
1994) any employee had complained to him about E. Flannery,
Kenny emphatically responded, “Oh, absolutely, yes” (Tr. 449–
450, 496–497). Further, as previously noted, Kenny vacillated
regarding his meeting with Martin about the latter’s suggestion
for “metal detectors,” at first denying emphatically that he ever
used profanity with Martin, and may have done so during the
meeting in question.
In light of the above, and given his generally poor
deameanor on the witness stand, I do not accept Kenny’s testi-
mony that E. Flannery was chosen for demotion because of her
poor work performance. Kenny’s attempt to depict E. Flannery
as a poor worker and supervisor is disputed by the various per-
formance appraisals submitted into evidence which show that
she consistently met or exceeded Respondent’s performance
standards and/or expectations for the job of Krimpet depart-
ment supervisor. In her June 1994 evaluation, for example, E.
Flannery received an overall performance rating of “3” out of a
possible “5,” and a merit increase for her performance.32 Thus,
Kenny’s assertion that beginning in early 1994, he repeatedly
had to speak to E. Flannery because her department was a mess
and out of control, and because she was having difficulty deal-
ing with employees under supervision, simply makes no sense
in light of her 1994 performance evaluation, and is not cred-
ited.33 Kenny placed no stock in the evaluations in deciding
who to demote because he found them to be unreliable. How-
ever, given his poor performance as a witness, it is his testi-
mony I find unreliable, not E. Flannery’s performance apprais-

32 A “3” rating is defined as: “Performance meets all or most re-
quirements. Employee may be slightly below job requirements in a few
areas, but this is offset by exceeding requirements by equal or greater
amounts in other areas” (G.C. Exh. 13[f]). In her June 1994 evaluation,
E. Flannery received a “3” rating in her Technical, Analytical, and
Control skills, and a “4” rating in her Communication skills (G.C. Exh.
13[d]). For whatever reason, E. Flannery’s 1995 evaluation was not
entered into evidence. In her ability to maintain discipline, morale, and
harmonious personnel relationship[s]” with employees, an area in
which Kenny asserts E. Flannery was deficient, her supervisors gave
her a “3” rating and wrote: “PERFORMANCE MEETS REQUIREMENT.
EDWINA HAS GOOD CONTROL OVER THE PEOPLE SHE SUPERVISES.
SHE IS QUICK TO INVESTIGATE AND RESOLVE PERSONNEL ISSUES AT
DEPARTMENT LEVEL” (G.C. Exh. 13[d]). The only negative comment,
if it be described as such, was a notation inserted in the appraisal by the
appraiser’s supervisor, e.g., the one who presumably reviewed the
evaluation prepared by E. Flannery’s own supervisor, that E. Flannery
was outspoken on a number of issues. This rather ambiguous comment
is not explained further. Thus, there is no suggestion that it was in-
tended as a criticism of E. Flannery’s interpersonal skills or an indica-
tion that she was having production problems.
33 E. Flannery did testify, credibly I find, to having been told by a
former supervisor, Fred Robb, in January or February 1994, that she
was too demanding on the maintenance people, but that that was the
extent of the conversation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 580
als. In short, I find no credible evidence to support Respon-
dent’s claim that E. Flannery was a poor performer or that she
had difficulty getting along with her supervisors. Conse-
quently, I am convinced poor performance was not the reason
for her demotion.
There are yet other factors supporting such a conclusion. E.
Flannery, for example, was not the only supervisor in her de-
partment, for she shared supervisory responsibility with Al
Grasch. Yet, only E. Flannery was singled out for demotion,
despite Kenny’s assertion that the entire Krimpet department
presumably was a mess and nonproductive. The Respondent
offers no explanation for why only E. Flannery was demoted.
Nor did it explain why if, as claimed by Kenny, E. Flannery
had been performing so poorly since at least February 1994, it
did not demote her during the alleged 1994 reorganization. The
answer, in my view, is fairly obvious: E. Flannery was simply
not the poor performer Kenny has made her out to be, as evi-
dent from her 1994 performance evaluation and, if anything,
was Respondent’s “newest rising star,” as Mahoney assured her
in November 1994.
Also undermining its defense and supporting a finding of
pretext is Mahoney’s suggestion that an incident that occurred 2
years prior to demotion between her and then superintendent of
maintenance, James Rodgers, factored into the decision to de-
mote her (Tr. 573).34 While I doubt such an incident occurred,
if it did take place it defies logic to believe that Respondent
would wait 2 years before demoting her, in part, for that inci-
dent, particularly since she was never warned or disciplined for
it and since she subsequently received her 1994 appraisal com-
mending her for her performance. For Respondent to now sug-
gest, through Mahoney, that this incident may have played a
role in its decision to demote E. Flannery is simply too incredi-
ble to merit further discussion. Suffice it to say that the argu-
ment serves only to further establish the pretextual nature of
Respondent’s defense.

34 Rodgers, E. Flannery’s superior at the time of this alleged inci-
dent, testified on direct examination that at a management meeting in
1993, E. Flannery embarrassed and insulted him by asking him aloud
twice during the meeting if he was asleep. Her comment, Rodgers
claims, “really burned me up” and “aggravated me” (Tr. 379). On
cross-examination, he admitted he was simply guessing as to when the
incident occurred. Further, while stating he took personal offense to M.
Flannery’s comment, he admitted that there may have been some kid-
ding around at the meeting but could not recall any specifics. Kenny
claims he recalled the incident, but not when it occurred, and stated that
E. Flannery yelled possibly three times to Rodgers asking if he was
awake and that Rodgers did not say anything (Tr. 445). E. Flannery
denied having made any such remark (Tr. 213). Neither Rodgers nor
Kenny is found to be credible regarding this incident. Both had no
recollection as to when the incident occurred, and were vague on the
specifics of the meeting. Further, I find it inconceivable, given Rod-
gers’ assertion that he felt very aggravated and burned up by the re-
marks, that he would not have insisted that E. Flannery be disciplined
for her behavior towards him. In this regard, he testified only that he
informed E. Flannery’s supervisor, Bill Parshall, about the incident.
Parshall was not called to corroborate Rodger’s account nor is there any
evidence that Parshall ever issued a warning to E. Flannery or, for that
matter, that he ever called the matter to her attention. The failure to
discipline E. Flannery for such behavior leads me to believe that either
it did not occur or that, if it did, it was not viewed as offensive by Rod-
gers. Kenny also admitted he did not report the incident to anyone.
Given these facts, I seriously doubt that any such incident occurred and
am convinced Respondent concocted this incident in an attempt to
further portray E. Flannery in a poor light.
The weight of the evidence thus makes clear, and I so find,
that E. Flannery was performing her supervisory functions well
throughout 1994, and had received no complaints regarding her
performance. There is in this regard no evidence of any warn-
ings, memos, or reprimands having been issued to her. Nor is
there any evidence, other than Kenny’s own discredited testi-
mony, that E. Flannery’s performance took a turn for the worst
after being assured by Mahoney of her “rising star” status in
November 1994. Clearly, the best evidence of any change in
her work behavior would have been her 1995 performance
evaluation which she apparently received in June 1995 (Tr.
186). The Respondent does not contend that no such evaluation
was prepared on her. Yet, despite its obvious relevance to Re-
spondent’s defense that E. Flannery was selected for demotion
because of her poor performance, the 1995 evaluation, which I
am convinced exists, was not produced at the hearing or, for
that matter, even discussed.
While there is therefore no way of knowing from the record
just how E. Flannery fared in her 1995 evaluation, it is reason-
able to infer that E. Flannery received a favorable rating, for
had she not been so rated the Respondent, I am convinced,
would have made that fact known at the hearing in furtherance
of its defense that her demotion was prompted by her poor per-
formance. Kenny’s admission that E. Flannery’s evaluations
were not relied on in deciding to demote her, if anything, sug-
gests that her 1995 evaluation could not have been unfavorable,
for given Kenny’s claim that E. Flannery was demoted for poor
performance, his refusal to rely on E. Flannery’s evaluations,
including the 1995 one, could only mean that in 1995 E.
Flannery, as in years past, received a favorable rating.
To summarize, Respondent’s explanation for selecting E.
Flannery for demotion, e.g., her poor performance, simply lacks
evidentiary support and is, in my view, nothing more than a
pretext designed to hide the true motive for the demotion: re-
taliation against M. Flannery for his union activities. I am not
unmindful of the fact that two other supervisors apparently
having no similar link to the Union were also demoted along
with E. Flannery, and that a third was discharged. However, I
remain highly skeptical that these demotions were in any way
related to a reorganization Respondent underwent in June 1995,
for aside from Mahoney’s and Kenny’s doubtful testimony, no
documentary evidence was produced by Respondent establish-
ing that such a reorganization had been planned. Mahoney
sought to explain the lack of written documentation by stating
that the decision to reorganize the production department was
made at the highest level and called for the highest
confidentiality (Tr. 571). Mahoney’s testimony is simply not
credible. Thus, he provided confusing testimony as to his
involvement in the reorganization decision, at one point
claiming that he learned about the reorganization from Kenny
who simply told him, “[W]e’re having a reorganization,” but
subsequently stating, in somewhat of a rambling fashion, that
he found out about the reorganization in a general sense during
staff meetings, but that the specifics he obtained from Kenny.
Aside from his total lack of credibility in this regard, I find
inconceivable Mahoney’s claim that Respondent would hold
staff meetings, discuss a major event such as a reorganization,
and not put on paper or otherwise record the minutes of those
meetings or the action to be taken. Further, I find no specific
mention in Kenny’s testimony of Mahoney being involved in
the reorganization decisions. Under these circumstances, I
remained unconvinced that any reorganization in fact took
TASTY BAKING CO. 581
convinced that any reorganization in fact took place in June
1995.
Rejection of Respondent’s reorganization defense does, of
course, leave unexplained its decision to demote Whitehead and
Whitelock. However, it is Respondent’s burden to come for-
ward with a rational, nondiscriminatory explanation for having
selected E. Flannery for demotion, a burden that, as found
above, has not been met. The demotion of Whitehead and
Whitelock could very well have been part of Respondent’s
attempt to lend an aura of legitimacy to its demotion of E.
Flannery. See, e.g., Pillsbury Chemical Co., 317 NLRB 261
(1995). It may also be that Respondent only intended to de-
mote Whitehead and Whitelock in the first place, and seized the
opportunity to retaliate against M. Flannery by demoting his
wife. Whatever the reason, it is patently clear that Respon-
dent’s reason for selecting E. Flannery does not withstand scru-
tiny. Consequently, the General Counsel’s prima facie case
remains intact, warranting a finding that E. Flannery was se-
lected for demotion in June 1995, in retaliation for her hus-
band’s, M. Flannery’s, union activity. Accordingly, I find that
the demotion violated Section 8(a)(1) of the Act, as alleged.
2. The transfer to night shift
There remains for resolution the question whether Respon-
dent further discriminated against E. Flannery by transferring
her to the night shift, as alleged in the complaint and argued by
the General Counsel, or whether, as claimed by Respondent,
her transfer was necessitated by company policy.
The elements of a Wright Line prima facie case have been
satisfied here by the General Counsel. As found above, E.
Flannery was demoted in retaliation for her husband’s union
activities, conduct he continued to engage in despite the dis-
criminatory treatment accorded his wife for his activities. On
August 10, the Respondent made known its opposition to M.
Flannery’s continued involvement with the Union when
Britsch, according to E. Flannery, advised that her chances of
staying on the day shift were being hurt by her husband’s con-
tinuing conduct of distributing leaflets outside Respondent’s
property, and that Respondent viewed her husband’s behavior
as a “slap in the face.” Britsch further warned that because of
her husband’s activities, E. Flannery could very well end up on
night work (Tr. 200). E. Flannery, however, responded that her
husband was a grown man and that she could not tell him what
to do. Britsch recalled only that he advised E. Flannery as a
“Dutch uncle” to “fade into the woodwork” if she wanted to
avoid night work (Tr. 419). I credit E. Flannery’s version and
find that he in fact made the remarks attributed to him by E.
Flannery. Britsch, as noted, was not a credible witness, and his
attempt to portray himself as a friend and counselor to E. Flan-
nery simply lacked the ring of truth.
The record does not reflect if E. Flannery told her husband
about Britsch’s admonition. Nevertheless, it is patently clear
that M. Flannery was not to be deterred from supporting the
Union, for on September 13, he again stood outside Respon-
dent’s premises in plain view distributing union literature. E.
Flannery’s transfer to the night shift occurred just one week
later. Britsch’s above comments to E. Flannery, and the timing
of the transfer one week after her husband’s activity, provide
strong evidence that Respondent’s transfer of E. Flannery to the
night shift may have been motivated by her husband’s refusal
to cease his prounion activities, thereby establishing a prima
facie case of discrimination under Wright Line. The Respon-
dent’s burden now is to show that E. Flannery’s transfer to
night shift was motivated by a legitimate nondiscriminatory
reason unrelated to her husband’s union activities. The Re-
spondent, I find, has not done so here.
Respondent defends E. Flannery’s transfer to the night shift
by arguing that when demoted to a packer position, E. Flannery
lost her seniority for a 3-year period pursuant to an established
company policy, and that her loss of seniority rendered her
eligible only for the night shift. I find Respondent’s argument
unpersuasive.
Initially, the record reflects that E. Flannery’s demotion was
within her own department, that is, she went from a supervisor
in the baking department to a night shift packer in the same
department. Regarding Respondent’s policy on the loss of
seniority, the only documentary evidence produced at the hear-
ing is a provision found in section 4.6.1 of its policy-procedure
manual which states:

When an employee is transferred from one department to an-
other, he shall retain his plant wide seniority for benefit pur-
poses, but his occupational department seniority shall date
from the time of transfer. [G.C. Exh. 27.]

On its face, however, the above provision could not have ap-
plied to E. Flannery because her demotion did not result in a
transfer to another department (see Mahoney testimony at Tr.
614). Thus, there is nothing in that provision to suggest that the
demotion of a supervisor, or for that matter, a nonsupervisory
employee, within the same department would trigger a loss of
seniority. Further, neither Britsch nor Kenny were quite sure
what to make of the above provision. Britsch, for example, was
not certain if Respondent had a written policy regarding the
loss of seniority following a demotion, and claimed that “it has
always been a policy that when you change classifications, you
lose your seniority.” When shown General Counsel’s Exhibit
27, Britsch proffered that section “4.6.1 more or less deals with
the situation at hand.”35 He admitted, however, that nowhere in
section 4.6.1 does it state that “when someone is demoted from
a supervisory position to a nonsupervisory position they will
lose their seniority for a period of three years” (Tr. 423).
Kenny’s testimony contains a similar admission (Tr. 502).
Further, both Kenny and Britsch claim that the loss of seniority
occurs when a change in classification takes place. Section
4.6.1, however, makes no reference to classification, and states
only that the loss of seniority occurs when a change in depart-
ment, not job classification, takes place.36
Thus, except for section 4.6.1, no evidence of a written pol-
icy applicable to demotions of employees was produced by
Respondent. More importantly, even assuming, arguendo, that
Respondent had a such a policy, which I find it does not, such a
policy, by Britsch’s own admission, was not strictly followed.
Thus, had E. Flannery “blended into the woodwork” she could
have, as advised by Britsch, avoided the night shift (Tr. 424).
Overall, I find no credible evidence to support Respondent’s
argument that it acted pursuant to a company policy when it

35 Britsch also explained that prior to becoming superintendent of
production in 1995, the “loss of seniority” policy from a change in
“classification” was not being followed by all departments, and that it
became more of an across-the-board policy after his promotion.
36 There is an obvious difference between a change in job classifica-
tion and a change in department. An employee, for example, may have
a change in job classification but still remain within the same depart-
ment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 582
assigned E. Flannery to the night shift in September 1995. As
the reason proffered by Respondent for transferring E. Flannery
to the night shift is obviously false, I find that it has not rebut-
ted the General Counsel’s prima facie case. As such, I further
find that by transferring E. Flannery to the night shift, the Re-
spondent violated Section 8(a)(3) and (1) of the Act, as alleged.
CONCLUSIONS OF LAW
1. The Respondent, Tasty Baking Company, is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union, Teamsters Local Union No. 115, a/w Interna-
tional Brotherhood of Teamsters, AFL–CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening employee Martin on January 26, 1996,
with unspecified reprisals if he should engage in union activity,
telling M. Flannery that it was imposing a new get tough policy
in response to his union activities and that he was issued the
January 12 warning for such activities, and by threatening M.
Flannery on April 11, 1996, with discharge because of his un-
ion activities and for calling OSHA, the Respondent has en-
gaged in unfair labor practices within the meaning of Section
8(a)(1), and Section 2(6) and (7) of the Act.
4. By demoting E. Flannery from supervisor to a nonsuper-
visory packer position in retaliation for her husband’s union
activities, the Respondent has violated Section 8(a)(1) and Sec-
tion 2(6) and (7) of the Act.
5. By transferring E. Flannery to the night shift because of
her husband’s continued union activity, issuing written warn-
ings to M. Flannery on January 12, and June 6, and issuing a 3-
day suspension and written warning to employee Robert Nolan
in February 1996, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) and
Section 2(6) and (7) of the Act.
6. Except as found herein, the Respondent has not engaged
in any other unfair labor practices.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent unlawfully demoted E.
Flannery from her supervisory position, I shall recommend that
Respondent be required, within 14 days from the date of this
Order, to reinstate her to her former supervisory position or, if
that position no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other rights or privi-
leges she previously enjoyed, and to make her whole for any
losses she may have suffered because of the retaliation prac-
ticed against her for her husband’s union activities, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest on such amounts to be computed in the manner set forth
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent shall also be required to make employee Rob-
ert Nolan whole for any loss of earnings resulting from the 3-
day suspension issued to him on January 31, February 1 and 2,
because of his union activities, in accordance with F. W.
Woolworth, supra, and with interest as set forth in New Hori-
zons for the Retarded, supra.
Further, to the extent it has not done so, the Respondent shall
be ordered to remove from its files any all reference to the
unlawful warning issued to Nolan on February 5, 1996, and to
those issued to M. Flannery on January 12, and June 6, 1996,
and to notify them in writing that it has done so.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended37
ORDER
The Respondent, Tasty Baking Company, Philadelphia,
Pennsylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Retaliating against Edwina Flannery by demoting her
from a supervisory position and transferring her to the night
shift because of the activities engaged in by her husband, Mi-
chael Flannery, on behalf of the Union, Teamsters Local Union
No. 115, a/w International Brotherhood of Teamsters, AFL–
CIO.
(b) Suspending employee Robert Nolan and issuing to him
and to Michael Flannery written warnings because of their ac-
tivities on behalf of the Union.
(c) Interfering with employees’ rights to engage in protected
concerted activity by threatening Michael Flannery and em-
ployee Billy Martin with discharge or other unspecified repri-
sals for supporting the Union.
(d) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Edwina
Flannery full reinstatement to her former job or, if that position
no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights and privileges
previously enjoyed.
(b) Make Edwina Flannery whole for any loss of earnings
and benefits she may have suffered as a result of the retaliatory
discrimination practiced against her for the union activities of
her husband, Michael Flannery, and make Robert Nolan whole
for any losses he may have suffered due to the unlawful three-
day suspension imposed upon him for his union activities, in
the manner described in the remedy portion of this decision.
(c) Within 14 days of this Order, remove from its files any
and all reference to the unlawful written warnings issued to
Michael Flannery on January 12, and June 6, 1996, and to Rob-
ert Nolan on January 26, 1996, and within 3 days thereafter
notify them in writing that this has been done and that said
warnings will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Philadelphia, Pennsylvania, copies of the attached no-
tice marked “Appendix.”38 Copies of the notice, on forms pro-

37 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
38 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
TASTY BAKING CO. 583
vided by the Regional Director for Region 4, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since August 17, 1995.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.