Schott's Bakery, Inc.

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Freight Drivers , Dockworkers and Helpers Local No. 24, or any other labor organization, by discriminatorily discharging any of our employ- ees, or by discriminating in any other manner in regard to our employees' hire and tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate our employees concerning their union membership or activities. WE WILL NOT threaten employees with sale of the business, discharge, or any other reprisals because of their union activities , or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations , to join or assist the above- named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activ- ities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities. WE WILL offer to Robert McCall, Jr., immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his se- niority or other rights and privileges , and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named union or any other labor organization. FISCHBACH TRUCKING Co., Employer. Dated ------------------- By------------------------------------------- (Representative ) ( Title) NoTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465. Schott's Bakery, Inc. and American Bakery and Confectionery Workers' International Union, AFL-CIO. Case ?3-CA-2054. June $3, 1966 DECISION AND ORDER On March 4, 1966, Trial Examiner Robert Cohn issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and 159 NLRB No. 91. SCHOTT'S BAKERY, INC. 1041 recommended that they be dismissed. Thereafter, the Respondent filed exceptions to certain portions of the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding under Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), with all parties represented , was heard before Trial Examiner Robert Cohn at Houston , Texas, on October 4, 11, and 12, 1965, upon a complaint of the General Counsel of the National Labor Relations Board (herein called the Board ), dated July 6, 1965 .1 The complaint alleges, in substance, that Schott's Bakery, Inc. (herein called Respondent or Company ), violated Section 8(a)(1) and (3) of the Act by engaging in certain described conduct, more fully detailed herein. By its duly filed answer, Respondent admitted the jurisdictional allegations in the complaint, but generally denied the commission of any unfair labor practices. At the hearing, all parties were given full opportunity to present evidence, to examine and cross-examine the witnesses , to argue orally, and to file briefs. The parties waived oral argument . Subsequent to the hearing, helpful briefs were filed by counsel for the General Counsel and by counsel for the Respondent. Having considered the record as a whole, the briefs, and upon my observation of the demeanor of the witnesses while testifying , I make the following: FINDINGS AND CONCLUSIONS 2 1. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary discussion The complaint in this case alleges some 12 independent violations of Section 8(a)(1) of the Act, consisting of various types of threats and coercive statements and interrogations regarding employees' union activities. It appears that the sole perpetrator of this alleged unlawful conduct is one S. L. Nichols, Respondent's chief maintenance engineer and an admitted supervisor. Also alleged is discrimination in violation of Section 8(a)(3) imposed upon employee Johnny Mike Lummus by reducing his work hours and wages, and even- tually discharging him, all because of his union membership and activities. i The charge upon which the complaint is based was filed May 18, by American Bakery and Confectionery Workers' International Union, AFL-CIO (herein called the Union), and served upon Respondent on May 19, 1965. 2 There Is no Issue as to the Board's jurisdiction or labor organization . The complaint alleges sufficient facts, duly admitted by answer , upon which I may, and do hereby, find that Respondent is engaged in commerce , and the Union is a labor organization, within the meaning of the Act. 243-084-67--vol. 159-67 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent is engaged at Houston, Texas, in the manufacture and sale of bread and bakery products. With respect to its history of labor relations, it appears that for several years prior to the events in the instant case, Respondent has had collective-bargaining agreements with the Union covering generally its production and maintenance employees, and with the Teamsters' Union encompassing the driver-salesmen. Thus, at all times material herein, the hours, wages, and working conditions of the maintenance employees (with whom this case is primarily con- cerned) were regulated by the terms of a collective-bargaining agreement, such agreement, however, stated specifically that any new employee was not required to join, the Union as a condition of employment. S. L. Nichols, as chief of the maintenance department, was, of course, bound by the provisions of the collective-bargaining agreement as they related to his department. However, I think a fair appraisal of the evidence, including Nichols' appearance as a witness and his demeanor while testifying, compels the finding and conclusion that he was not happy with the fetters and restrictions which the agree- ment imposed upon his freedom in running the department. Indeed, as some of the admitted or undenied evidence shows, he vocally showed his dislike of the Union and was constantly alert that none of the employees in his department were pres- sured into joining the Union. General Counsel urges that the evidence shows that Nichols went much further, i.e. that he pressured employees not to join the Union by exercising the (perhaps) last prerogative open to him-withholding overtime hours conditioned upon the employee's not joining the Union. B. Interference, restraint, and coercion 1. Artis Williams The first seven allegations of independent violations of Section 8(a) (1) of the Act (paragraphs 7(a) through (g) of the complaint) are grounded, according to General Counsel, on alleged conversations between Nichols and one Artis Williams, an employee, on or about November 20, 1964. Williams had been hired on Octo- ber 1, 1964, as a porter.3 At the employment interview, according to Williams' testimony, Nichols told him that although the Company had a union in the shop, he did not want anyone put- ting pressure on Williams to join. Nichols' version is that he told all new applicants for employment that there was a union in the shop and that it did not make any difference to him whether the employee joined, but that he (Nichols) did not want anyone putting pressure on them either way. Although Williams impressed me generally favorably as a witness who was making a valiant effort to recall specific statements and events, he was testifying concerning these events approximately 9 or 10 months after they occurred and he admittedly could not recall each statement and event definitively. On the other hand, as previously noted, I am convinced, based upon the record as a whole and his own pressuring tactics hereinafter dis- cussed, that Nichols really meant to emphasize the portion of the statement in which he cautioned against pressure to join the Union although he may have stated it as he said he did. In any event, I deem it unnecessary to resolve the credibility issue on this particular conversation as it bears on the ultimate issue to be decided. Within the next several weeks, according to Williams, Nichols called him into his office on several occasions and told him that while he could not raise his wages, he could give him more time, i.e., overtime. One of these conversations occurred shortly after Williams had made a "big check," i.e., one which included a lot of overtime .4 At that time, Nichols asked him how he felt about the Union. Wil- liams replied that he did not know-that he had never worked in a union shop. Nichols pointed out that the union contract required only 40 hours work per week, but that by virtue of his being the foreman, he could prescribe more (overtime) work. Several days later, Nichols called Williams into his office again and stated that something was going on among the employees that was wrong-that some of the employees were receiving union membership applications, but that he (Nichols) did not know the names. He asked Wiliiams to find out and report to him. 3 At that time, the Company's porters, janitors, and sanitation men were included in the maintenance department. On or about January 2, 1965, for reasons undisclosed by the record, these classifications of employees were taken out of the maintenance department, and therefore from under Nichols' supervision. 4 The records show that Williams received his two largest checks for the weeks ending October 24 and 31, 1964. SCHOTT'S BAKERY, INC. 1043 Apparently Williams indicated his willingness to do this, but at about this time he himself received an application from Union Business Agent Louis Hernandez. Nichols again summoned Williams into his office and inquired where the applica- tion was. Williams replied that it was in his locker; whereupon, Nichols directed him to get it. Williams complied. Nichols then advised, "I told you about how I could help you. Now, if you want to stay here, you better tear that application up." Williams complied .5 A final conversation was had between Williams and Nichols approximately a month after Williams was employed. This conversation also was in Nichols' office.6 Nichols asked if Williams had any information for him. Williams stated that the only thing he knew was that the boys "are working." Nichols responded that the next time he called, Williams better have something for him. Later that day Nichols called him into his office again, and asked the same question. At that point, Williams advised that he could not do what Nichols requested-that he had never done anything like that before, and that he was not going to start at that time.? The record shows that on November 17, 1964, Williams signed a checkoff authorization for the Company to deduct his monthly union dues and transmit the money to the Union. It is a reasonable inference that this was probably done either coincidentally with or shortly after he signed his union authorization card. Significantly, company records show that up to the week ending November 21, 1964, Williams worked some overtime during each week except one. However, after that date, until he got a panracking (operator's) job on or about March 15, 1965, Williams worked only 3 weeks in which the number of hours exceeded 40. As previously noted, General Counsel contends that the interrogations, threats, and directions given Williams by Nichols during the aforementioned conversations constitute interference with, restraint, and coercion of Section 7 rights, thereby violat- ing Section 8(a)(1). We may assume, arguendo, that they would if such occurred within the statute of limitations established by Section 10(b) of the Act. However, even by Williams' own testimony, it is conceded that all the conversations took place before Nichols knew Williams had joined the Union. This must have been sometime coincident with or prior to November 17, 1964, when Williams signed the checkoff authorization. The charge in this case was filed on May 18, 1965, and served on Respondent the next day. Thus the 6-month period of limitation expired on November 20, 1964, and I am unable to base any finding of statutory violation on these conversa- sations. I can and will consider such events only to the extent that they tend "to shed light on the true character of matters occurring within the limitations period." Local Lodge No. 1424, International Association of Machinists, v. N.L.R.B., 362 U.S. 411, 416. 2. Odell Cash, Jr. Although the alleged conversations between this witness and Nichols concededly occurred prior to the Section 10(b) period, General Counsel offered his testimony s Thereafter, Williams requested another application from Union Shop Steward Charles Leonard, filled it out and turned it in. 6 No third party was present at any of these conversations. Williams testified that on each occasion Nichols would lock the office door during the conversation. 7The foregoing findings are based upon the credited testimony of Williams. Nichols denied having any conversations with Williams (or any other porter) in which the Union was mentioned, after his initial employment interview with the employee, as explained above. This denial is not credited. Not only am I unable to believe that Williams fabricated these incidents, but his testimony concerning the union applications is cor- roborated by the testimony of Charles Leonard Finally, it should be pointed out that at the time of the hearing, Williams had voluntarily quit his employment with Respondent and was in business for himself. (He appeared in the uniform of a Texaco service sta- tion operator.) Thus it does not appear that he had any direct interest in the outcome of the proceedings Respondent, in its brief, emphasizes that in his prehearing affidavit, Williams stated that Nichols asked him to report concerning how many times the work- ers on the second floor "went to the rest-room and who was smoking," and that Williams did not mention this in direct testimony, or, indeed when first asked about it on cross- examination. However, upon having his memory refreshed by the affidavit, Williams acknowledged that what was there stated was correct. Moreover, I do not see that this request was necessarily inconsistent with, or exclusive of, the request concerning the union applications. 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as background evidence purportedly tending to show certain parallel patterns of conduct by Nichols, thereby corroborating the testimony of Williams and Lummus. Cash was hired in July 1963 as a porter or laborer . According to his testimony on direct examination , Nichols summoned him into the foreman 's office about a year later and asked whether he belonged to the Union . Cash replied in the nega- tive. Whereupon, Nichols advised that he (Nichols ) could do more for him than the Union could-that the nonunion fellows would get more overtime than the union members. Nevertheless, Cash joined the Union in either October of November 1964,8 and, at about this time, he filed a grievance relating to wages. Whereupon , Nichols called him into the office and pointed out that the other employees also wanted more money, and threatened to punish Cash for filing such a grievance , and "to kick [his] a- out of the door." 9 Finally, Cash testified to a meeting of all porters in Nichols' office in which Nichols stated that "he better not hear any more trying to pressure the other ones to join the Union." Nichols denied having any conversations with Cash concerning the Union or overtime except that he did acknowledge calling a meeting of the porters about the first of January 1965, in which he thanked them for doing a good job, spurred them on to greater efforts, and advised that he had heard that there had been pressure exerted on some of them to join the Union-that "it didn't matter to [him] one way or another, but [he] didn't want anybody putting pressure on them." Although Cash, an obviously uneducated person, appeared to be making a valiant effort to truthfully recall events as they occurred , his recollection was vis- ibly shaken on cross-examination . For example, as respects the conversation regarding overtime, Cash finally admitted that he could have been "reading between the lines" when he attributed to Nichols the statement that the fellows who belonged to the Union would not get as much overtime as those who did not-that it "could be" that the only thing Nichols said about overtime during the conversation was that the employees were receiving a lot of overtime. Accordingly, I accord little weight to the substance of these conversations except that I do believe they occurred, that Nichols made inquiry as to union membership and the pressures placed on him to join, and that he punished Cash for filing a grievance. More importantly, however, the Company's records tend to support Cash in that they reflect that he worked some overtime during every week from September 19, 1964 through November 14 , 1964 (approximately when he testified he joined the Union, but none following that through March 15, 1965. This, of course, when considered with similar patterns evidenced by Williams, supra, and Lummus, infra, tends to support General Counsel 's theory that once a maintenance department employee joined the Union , he could expect no more largess in the form of over- time from Foreman Nichols. C. The alleged discrimination 1. Lummus is hired; the funeral incident Johnny Mike Lummus , the alleged discriminatee , was employed by Nichols dur- ing October 1964, as a maintenance helper. According to Nichols , about 2 weeks later Business Agent Hernandez informed him (Nichols ) that the job of mainte- nance helper had to be bid-that it was not bid before Lummus was hired, and that the alternative was to either fire Lummus or retain him as a second -class mechanic at a higher rate. Apparently, Nichols reluctantly complied with the second aspect of this alternative and so advised Lummus.io 8 His checkoff authorization is dated December 15, 1964. 9In fact, Cash was punished by being placed on the oven -cleaning job, apparently con- sidered among the most undesirable jobs in the plant presumably because of the heat involved. 0 10 Lummus' version is slightly-though not significantly-different. He related that Nichols advised that "due to the Union" he would have to fire Lummus and then rehire him as a second-class mechanic because of the failure to post the job-that this was nec- essary in "order to keep them off me and him both " Either version one chooses to believe discloses , in my view, an implacable distaste by Nichols for having his freedom in these matters impinged upon by the union contract. SCHOTT'S BAKERY, INC. 1045 On Thursday afternoon, February 11, 1965, Lummus left work to attend his great-grandmother's funeral in another city in Texas. He attempted to inform Nichols of this, but was informed that the latter was in a meeting. Lummus testi- fied that he then called Nichols' wife and advised her that he planned to be back the following Sunday night but that if he could not, he (Lummus) would call Nichols and let him know. Nichols testified that he received word of Lummus' leaving that Thursday night-that Lummus' wife had called his wife. Whereupon, Nichols telephoned Mrs. Lummus and inquired when Lummus expected to return. Mrs. Lummus said that in all probability he would return Sunday, but that she could not give Nichols a definite answer. In his prehearing affidavit Lummus stated, in conformity with Nichols' testimony, that rather than his calling Nichols' wife, he had instructed his wife to call Nichols or the latter's wife. In any event, Lummus, concededly without any further notification to Nichols, appeared for work the following Sunday night, as apparently was his schedule. However, Nichols refused to let him work, stating that since he had not heard any- thing from Lummus, he (Nichols) scheduled himself to work that night. This misunderstanding as to the existence and accuracy of the messages resulted in rather extreme anger arising between the two men, including an invitation by one to the other to engage in fisticuffs. However, they eventually "cooled down," with- out a fight, but Lummus did not work that night. The next day, Lummus complained to Shop Steward "Bud" Nails, who, in turn, raised the matter with Nichols. The latter maintained the same position with Nails as with Lummus: to with, that Lummus had not left adequate notification of his intention to return to work that Sunday night. The next day Lummus had a conversation with Nichols in the latter's office. According to Lummus, Nichols was quite angry that Lummus had raised this mat- ter with the Union-that it was none of their "goddam business," and that Nichols again invited him outside to fight. Lummus apparently did not accept the invita- tion, and Nichols concluded by stating that if Lummus had come to him in the first instance he would have paid him but "being as you did go to the Union instead of me, I will absolutely not pay you." 11 The next evening, Lummus joined the Union. At that time he was the only mechanic who was a member; a mechanic's helper named Thomas was the only other member in the maintenance department as then constituted (the porters and sanitation employees having been taken out of that department on January 2, 1965). 2 The reduction in hours Company records reflect that from the first of the year 1965, until the week Lummus went to the funeral (week ending 2/13/65) he worked some overtime every week except for the week ending 2/6/65 when he worked an even 40 hours. Thereafter, he worked overtime for only one week-the week ending 4/10/65- when he worked 50 hours.12 General Counsel alleges and contends that such reduction in hours was dis- criminatorily motivated by Nichols after he discovered Lummus joined the Union, in the same pattern as Williams and Cash. Respondent's position is that as of January 9 it hired a first-class mechanic, Fell, which had the effect of diminishing the amount of work of all the other mechanics. However, Fell was out sick for one week in January, thus tending to explain, in Nichols' view, the continuance of overtime during this heavy season. Nichols also stated that work "slacked off" for a few weeks in February But the records, considered in the light of the pattern established in the Williams and Cash cases, convince me that had Lummus "Nichols' version is simply that the next day he called Lummus in and told him that he could make up the time if he desired He denies that the Union was mentioned or that he told Lummus that the latter should have come to him first. In view of Nichols' anti- union proclivities adverted to above, this denial is not credited The fact that company records reflect that Lummus was allowed to make up on the following Saturday most of the lost time does not alter my conviction that Nichols said the things attributed to hun during the conversation The threat to commit physical violence becanae Lummus contacted the Union is alleged as a violation of Section 8(a) (1). I so find 13 Such company records were incorporated into the record subsequent to the close of the hearing by stipulation of counsel made at the hearing However, there is no explana- tion for the omission of Lummus' time records during the period prior to 1/9/6.i, and for the period subsequent to 4/10/65. 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not joined the Union in mid-February, he would have worked more overtime than he did during the subsequent period until his termination in mid-May 1965. Thus, during the weeks ending 1/16/65 and 1/30/65, when Fell was working 58 and 541/2 hours per week respectively, Lummus still worked 431/2 hours each week. Commencing the week ending 2/20/65, and extending until the week ending 4/3/65, the three first-class mechanics worked overtime each and every week, some- times as many as 11 , 13, 16, and 211/2 hours in excess of 40. Yet the only week subsequent to his joining the Union in which Lummus enjoyed ,any of this was dur- ing the week ending 4/10/65, which was, incidentally, the first week after first-class mechanic Liveoak quit. Nichols attempted to explain that the first-class mechanics were "set up" on a 48-hour week while second-class mechanics were "set up" on a 40-hour week. Were this explanation submitted in the abstract, it might be enough to tip the scales in Respondent's favor. But the trier of the fact must consider such facts in the context in which they have arisen. Here, I cannot overlook the evidence of Nichols' violent antipathy to Lummus' and others joining the Union against his wishes, and the -recriminations he visited upon others in similar circumstances. Accordingly, I find and conclude that Lummus' hours of employment (and thus his wages) were reduced subsequent to the week ending 2/20/65 in order to discourage membership in the Union, in violation of Section 8(a)(3) and (1) of the Act. 3 Events leading up to the termination During the couple of months following Lummus' joining the Union, he testified that Nichols singled him out for criticism in complying with work rules. General Counsel's theory is that these harassing tactics, coupled with the reduction in over- time hours, led to Lummus' quitting his employment; he urges, however, that such quitting, under these circumstances, amounts to a constructive discharge Lummus testified that on several occasions during this period, Nichols "got onto him" about smoking to the exclusion of the other employees. On another occa- sion, Nichols cautioned Lummus about taking a coffee break before he had been on the job at least 2 hours Lummus replied that he did not believe the union con- tract said anything about when a coffee break was to be taken. Whereupon, Nichols, clearly angeied by the reference to the union contract, deprecated such instrument with an obscene four-letter word, stated that he ran "this place and not them," and that those who joined the Union were being misled, that "they (the Union) are just going to get your a- in a lot of trouble. They are not going to back you up." 13 With reference to the smoking, Nichols' uncontradicted testimony was that dur- ing the first of the year 1965, both the city of Houston and an independent investi- gative agency found violations of smoking regulations at the bakery, and that a crackdown on smoking for all employees resulted. He pointed out that signs and notices were posted all over the plant and that enforcement was tightened up in all depai tments. In the light of this uncontradicted testimony, and in the absence of any cor- roborative evidence by General Counsel's witnesses, I am not persuaded that Nichols utilized the smoking issue as a harrassing technique. With respect to coffee breaks, Nichols admitted, in substance, so much of the conversation as testified to by Lummus except the disparaging remarks allegedly made with reference to the Union and the contract. His denial is not credited, and I find, as alleged in the complaint, that the admonition concerning the dis- advantages of union membership contained in that conversation violated Section 8(a)(1) of the Act. 4 Lummus' termination on May 16, 1965 The facts leading up to Lummus' leaving the employment of Respondent are quite different, depending upon which of the participants-Nichols or Lummus- 13 Lummus also testified that in a previous conversation, before he joined the Union, Nichols has referred to unions as being Communist-led and that he (Nichols) did not want to have any dealings with them. General Counsel alleges this to be a violation of Section 8(a) (1) of the Act (paragraph 7(h) of the complaint). However, I agree with Respond- ent that such disparagement, while not to be condoned , does not amount to interference with, restraint, or coercion within the meaning of that section. Tiailers Oil Company of Houston, 119 NLRB 746. SCHOTT'S BAKERY, INC. 1047 is relating the story. In the interests of clarification , I will set each version separately and then make an analysis in an attempt to deduce the truth of the matter. 14 a. Lummus' version Lummus testified that on Sunday morning, May 9, 1965,15 he was in the plant having coffee with former employee Rip Liveoak, who was there for the purpose of talking to Nichols about purchasing some electrical conduits. As they were about to leave. Nichols passed by and told Liveoak that if the latter would give Lummus a job, he would give Liveoak the conduits the latter wanted.16 Shortly thereafter, Nichols instructed Lummus to go across the street to the lum- ber yard and pull some nails out of some boards. Nichols followed. Nichols told him that he appeared uphappy with the Company, and they were unhappy with him, and suggested that Lummus quit. Lummus said that he could not do that because he had a family to support. There followed some discussion relative to the nature and quality of inducements which Nichols would give Lummus if he quit Lummus finally agreed that if Nichols would give him a letter of recom- mendation, pay him "for all next week," and give Lummus a good recommendation to any prospective employer who might call, he would quit. Whereupon, they returned to the plant proper where Lummus signed his worksheet with the words, "I quit," 17 and left the plant. The following day, Monday, Lummus went to the plant and Nichols gave him the letter of recommendation 18 He then told Lummus that, "You might as well put your tool pouch back on and come on back to work," and that if he wanted to look for a job on company time, he could do so. Whereupon, Lummus commenced work that day and worked an undetermined number of hours each day that week (through Thursday or Friday) taking off a portion of each day to look for work. On either Friday or Saturday of that week, Lummus received a telephone call from an employee of the Company, the result of which led Lummus to secure Union Shop Steward Charles Leonard to go in with him to work on Sunday, May 16 When he reported that day, he saw Nichols and stated, "Well, I didn't find anything so I am ready to come on back to work. What do you want me to start on first?" Nichols replied, "You' are no longer employed by'this bakery." Lummus asked, "Whys" Nichols reminded him that he had signed a worksheet which stated that he had quit. Whereupon, Nichols asked Lummus to step into the maintenance shop without the shop stewaid. Lummus refused, stating that he brought the shop steward as a witness because " . . information had found its way to me that I had been terminated, [and] I wanted a witness, more or less" Then, Nichols called Superintendent Choates as his witness, and produced the "I quit" slip which Lummus had signed. Whereupon, Lummus asked Nichols again whether he worked for the Company any more, and upon receiving a negative reply, prepared to leave. There was some further discussion which may have some significance. Nichols invited Lummus to have some coffee and talk, which Lummus refused. Lummus desired to go up to his locker and get his belongings, but Nichols refused, stating that "if [Lummus] ever set foot back in there again, he would have the police throw [him] off." b. Nicliol's version Nichols testified that the first indication he had of Lummus' intention to leave the Company was on Monday, May 10. At that time, Lummus said that he (Lum- mus) had been offered an offshore drilling job at $750 per week, and requested a recommendation. Nichols questioned the need for a recommendation since he had the job. Lummus replied that he would still like to have one. Lummus was unable to offer a definate date when he intended to cease work. Later in the day, Nicols gave him the letter of recommendation, and secured the advice from Lummus that the latter would "probably stay the rest of the week." 11 It is apparent that the divergencies are of such a nature as to reveal that one of the participants engaged in calculated prevarication . Under the circumstances , I do not think it untoward to suggest that this matter be ultimately referred to.appropriate authorities to investigate the possibilities of perjury prosecution. 15 All subsequent dates refer to 1965 unless otherwise stated 18 Liveoak was not called as a witness by either party. 17 See Respondent's Exhibit 2. 18 See General Counsel's Exhibit 2. 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOAM) Nichols also- averred that Lummus raised the question 'of the Union in that con- versation, as follows: Q. (By Mr. DEAKINS.) What was mentioned about the Union? A. He said, "I guess if I hadn't joined the Union, I guess you and I would have gotten along better, probably hit it off better during this employment while I was working here. I said, "Mike, it doesn't make any difference to me whether you have or have not, just the same as I told you the first day you came here, it does not matter to me whether you have or have not joined the Union, the way you and I have gotten along." Q. All right. What else? A He went ahead to cuss the Union. Q. What did he say? A. I don't feel like I want to say it. Q. Well, go ahead. A. He said they were a bunch of no good bastards, sons of bitches, he didn't know why he ever joined them to start with. Q. All right A That is what he told me. The next conversation between the two was the following Wednesday, May 12, at which time, according to Nichols. he laid out some work (undefined) for Lum- mus to do, and left. When he returned in approximately 11/2 hours, he assigned Lummus the job of replacing some wiring on the air-conditioning, and then Nichols left again to attend a meeting. Lummus completed the work assigned sometime before noon because at that time Nichols returned, looked for him, and could not find him. Instead, he found his work card in the box stating that he had quit. He did not see Lummus anymore that day. However, Nichols mentioned the matter to his superior Superintendent Jack Free- born in the following manner: A. I talked to Mr. Freeborn about it. I said, "Since Mike was figuring on leaving this week end anyway-but he had told me nothing definitely for sure-" and I said, "Since he has left the work card that he has quit, he will prob- ably be back. Now, can I make out his check and just pay him forty hours for the week so he can go ahead to the other job?" He said, "I don't see why you can't." And so I had his check made out. And when Mike came in, I gave him his check. I said, "Mike, since you have youi other job and you are going this weekend anyway, here is your check for forty hours." Q. All right What did he say? A. He said, "0 K." He said, "I want to go upstairs and see somebody." After that I never saw him. The next encounter with Lummus occurred the following Sunday, May 16 His version of what occurred that day does not differ materially from Lummus'. Both agree that Nichols took the position that Lummus had quit, that he could not return to work, and that Nichols refused to let him go upstairs unaccompanied by a man- agement representative. Finally, Nichols testified that the Company's records showed that Lummus worked 8 hours each on May 9, 10, and 11, and that he was paid through Thursday, May 13 However, as above adverted to. for some undisclosed reason, such time records were not submitted with the records received from counsel subsequent to the hearing (see Joint Exhibit 1). 5. Analysis and concluding findings As may be observed, both versions contain various incongruities and imponder- ables unexplainable by tests of what an ordinary, prudent man might have done under the circumstances. Thus, under Lummus' recitation, one wonders why he bothered to commence working during the last week when he was assertedly prom- ised a week's pay without apparently being required to work for it. Also, since there was no precondition that he secure Another job as a quid pro quo to his SCHOTT'S BAKERY, INC. 1049 promise to quit the Company, one wonders why he appeared so distraught upon learning that Nichols refused to allow him to return to work on Sunday, May 16. His explanation that because Nichols told him to return to work on Monday that he (Lummus) somehow concluded that he could work there as long as he wanted to is not entirely satisfactory although, to a certain extent, it is plausible. On the other hand, with respect to Nichol's version, it seems rather peculiar that Lummus would request a written recommendation after he had assertedly secured another job. Also, it seems highly incongruous that Nichols would have requested permission from his superior, Jack Freeborn, to pay Lummus an entire week's pay after the latter had left the Respondent under such abrupt circumstances. However, after a careful consideration of all the evidence in th- record,19 includ- ing the demeanor of the witness and briefs of the parties, I have concluded that Nichols did, in fact, induce Lummus to quit his employment at Respondent, and that such constituted a constructive d'scharge discriminatorily motivated within the meaning of Section 8(a)(3) of the Act. In so concluding, I have considered the following factors (not listed necessarily in order of importance): 1. Lummus contended that he signed the timesheet (Respondent's Exhibit 2) on Sunday, May 9, while Nichols testified that Lummus signed it on Wednesday, May 12. The timesheet is, in fact, dated "5-12-65," and Nichols testified that he (Nichols) placed the name "Lummus" and the date on the sheet at the same time and with the same pen. He denied that it appeared that the date was filled out with a different colored ink than the name; yet to the most casual observer it is obvious that the contrary is the fact I am convinced that Nichol's testimony in this connection is more an effort to comport the facts to his theory rather than a strict adherence to the truth of the matter. 2. Moreover, the information on the timesheet itself conforms to Lummus' ver- sion rather than Nichols'. Thus, the sheet recites that at approximately 9 45 a.m he was engaged (as he testified) in putting up a bread or bun conveyor, and that from 10.30 to 11 am. he pulled nails out of boards (as he also testified). Nichols' testimony that on "5-12-65" he instructed Lummus to fix the air-conditioner (which he did) is nowhere reflected on the timeslip. 3. During the conversation with Lummus on Monday, May 10, Nichols testified that Lummus cussed the Union and stated that he did not know why he ever joined it If this were true, it seems highly unlikely that Lummus would have sought union assistance at the exit interview on Sunday, May 16. 4 Nichols maintained that it was company policy to refuse access to Respond- ent's premises to former employees who had quit. Yet he allowed Liveoak on the premises, and did not object on Thursday-unlike Sunday-to Lummus' "going upstairs" after he had quit. 5. As previously noted, I find it extremely unlikely-absent an agreement to the contrary-for Nichols to have voluntarily paid Lummus for a full week's work after he (assertedly) abruptly left on Wednesday, May 12. 6 I have considered Nichols' great antipathy toward the Union and his propen- sity to recriminate against any of his employees who joined, as above adverted to, which is amply supported by the record 7. Respondent's failure to submit Lummus' timesheets for the last week of his employment which would have clarified the questions: (1) What date the time- sheet (Respondent's Exhibit 2) actually represented, i.e. if it was, in fact, for 5-12-65 as Nichols testified, what did the timesheet for 5-9-65 state?; and (2) How much time, and how many days Lummus actually worked the final week? In the 19 Respondent's only witness other than Nichols was first-class mechanic, John Lyon who testified that when he came to work about noon on Wednesday , May 12 , Nichols advised him that Lummus had quit. He further testified that the preceding Sunday or Monday, Lummus had told him that he (Lummus ) was quitting because he found himself a better job. Lyon was not particularly impressive as a witness , being unable to remember how the conversation with Lummus arose or the other particulars thereof. Also, of course, he, being currently employed by Respondent, was not altogether unbiased in the matter But even giving his testimony full credence , It does not necessarily refute Lummus . The latter would not be expected either to tell Lyon of his agreement with Nichols or to admit that he quit without prospect of another job, since such a statement would provoke a iequest for an explanation 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absence of the production of such records, which are peculiarly within the control and domain ' of the Company, an inference adverse to Respondent is warranted.20 8 Finally, I have considered, under Respondent's theory of the matter, that it is not contested that Lummus was a satisfactory and proficient employee. Under these circumstances, I find it difficult to believe that had Lummus not joined the Union and Nichols been so strongly opposed thereto , he would not have allowed Lummus the opportunity to' resume his employment on May 16, since his job had not been filled at the time. In view of all the foregoing , I find and conclude that Respondent , on May 16, constructively discharged Johnny Mike Lummus in order to discourage member- ship in the Union, in violation of Section 8(a)(3) and ( 1), and I will recommend an appropriate remedy. II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section I, above, occurring in connec- tion with the interstate operations of Respondent , have a close, intimate , and sub- stantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact and upon the record as a whole, I make the following. CONCLUSIONS OF LAW 1. Schott's Bakery, Inc., Respondent herein, is an employer engaged in com- merce within the meaning of Section 2(6) and ( 7) of the Act. 2. The Union is a Labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in certain described conduct referred to heremabove in section I hereof, Respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By engaging in the conduct referred to in section I, subsection C above, Respondent discriminated against an employee in regard to his hire and tenure of employment, and terms and conditions thereof, in order to discourage membership in the Union , and thereby engaged in , and is engaging in, unfair labor practices within the meaning of Section 8 ( a)(3) and ( 1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Except to the extent that violations of the Act have been specifically found, as set forth above, the Gencial Counsel has failed to establish by a preponderance of the evidence the remaining allegations of the complaint herein , and it will be recommended that said complaint be, to that extent, dismissed. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and ( 3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Because the clearly coercive and discriminatory treatment of Lummus by Respondent goes to the very heart of the Act and indicates a purpose to defeat the exercise by employees of rights guaranteed in Section 7 of the Act , I am convinced that a cease and desist order coextensive with the guarantees of Section 7 is war- ranted and necessary in this case to prevent other unfair labor practices potentially related to those found herein I shall therefore recommend that Respondent be required to cease and desist from in any other manner infringing upon employees' Section 7 rights. I shall require that Respondent offer Lummus immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges , and that he be made whole for any and all losses he may have suffered by reason of the disciimination against him including any 20 See e.g. 2 Wigmore, Evidence, § 285, et seq. SCHOTT'S BAKERY, INC. 1051- loss in wages which may have resulted from the failure and refusal of Respondent to accord Lummus the oidinary and normal amount of overtime hours which he would have worked from February 20, 1965, to such offer of reinstatement. Any backpay found to be due Lummus shall be computed in accordance with the for- mulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the entire record, the findings of fact and the conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER The Respondent, Schott's Bakery, Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to deprive employees of wages or other benefits or privileges conditioned upon the employees joining the Union. (b) Threatening to harm or committ physical violence upon employees because they sought assistance and support from the Union respecting maintainance of the terms and conditions of their employment. (c) Discouraging membership in American Bakery and Confectionery Workers' International Union, AFL-CIO, or its Local 163, by reducing the number of hours to be worked, discharging, refusing to reinstate , or in any other manner discriminat- ing in regard to the hire or tenure of employment of employees , or any term or condition of employment. (d) In any other manner interfering with, restraining, and coercing its employ- ees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Johnny Mike Lummus immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for all losses he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." Notify Johnny Mike Lummus, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (b) Preserve and upon request, make available to the Board or its agents, for examination and copying , all payroll records, social security payment records, time- cards, personnel records and reports, and all other records useful and necessary to enable the Board to determine the amount of backpay due to Lummus and the right to reinstatement under the terms of this Recommended Order. (c) Post at its plant in Houston , Texas, copies of the attached notice marked "Appendix." 21 Copies of said notice to be furnished by the Regional Director for Region 23 , shall, after having been signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof, and main- tained by it for a period of 60 consecutive days from the date of posting, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director for Region 23, in writing, within 20 days from the date hereof, what steps Respondent has taken to comply herewith.22 IT IS ALSO RECOMMENDED that the complaint be dismissed insofar as it alleges unfair labor practices not specifically found hereinabove. 21 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enfoicing an Order" shall be substituted for the words "a Decision and Order" 22 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read' "Notify said Regional Diiector, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT threaten our employees with loss of wages or other benefits or privileges because any employee joins, or contemplates joining, American Bakery and Confectionery Workers' International Union, AFL-CIO, or any other labor organization. WE WILL NOT threaten our employees with harm or physical violence should they seek the assistance or support of the above-named Union respecting the maintenance of the terms and conditions of their employment. WE WILL NOT discourage membership in American Bakery and Confection- ery Workers' Union, AFL-CIO, or any other labor organization, by reducing the number of hours worked by any employee, by discharging, refusing to reinstate or in any other manner discriminating in regard to the hire or tenure of employment of employees, or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Johnny Mike Lummus immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his senior- ity or other rights and privileges and make him whole for all losses he may have suffered by reason of our discrimination against him. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union. SCHOTT'S BAKERY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify Johnny Mike Lummus if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228- 4722. Pioneer Plastics Corporation and Leather Workers International Union, AFL-CIO and Truckdrivers, Warehousemen and Help- ers Union, Local No. 340, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Cases 1-CA-5150 and 5210. June 23, 1966 DECISION AND ORDER On April 18, 1966, Trial Examiner John II. Eadie issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and 159 NLRB No. 110.