Schott's Bakery, Inc.

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schott's Bakery, Inc. and American Bakery and Confectionery Workers' International Union, AFL-CIO, Local 163. Cases 23-CA-2266 and 23-CA-2384. May 4,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 9, 1966 , Trial Examiner William W. Kapell issued his Decision 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 certain 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 recommended dismissal as to them. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision , the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner, with the following additions. The Trial Examiner found, and we agree , that the Respondent's transfer and later discharge of James M. Nails, president and chief shop steward of the Union, were violative of Section 8(a)(3) and (1) of the Act. The Union , pursuant to the contractual grievance procedure, appealed the matter of his transfer to an arbitrator, who found that Nails had been transferred to a more onerous job because of his union activities. The Trial Examiner recommended recognizing the arbitrator's award , and, in any event, found on the evidence before him that the Respondent discriminatorily transferred Nails because of his union activities . The Trial Examiner likewise found that Nails , in his job as a loader of bread, did not , as the Respondent contended, deliberately damage or threaten to damage any bread, and that he was discriminatorily discharged in order to discourage union support and activities. As the Trial Examiner also pointed out, the situation giving rise to the discharge of Nails was a result of the original discriminatory transfer. There is, moreover , no contention that Nails' conduct culminating in his discharge was of such a nature as to render him unemployable. Accordingly, while we agree with the Trial Examiner that Nails was, in all the circumstances of this case, discriminatorily discharged, we find that, in any event, our Order directing that Nails be offered reinstatement to his original job as checker, and be made whole, is necessary to remedy the original discriminatory transfer.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Schott's Bakery, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. I See John Kinkle & Son, 157 NLRB 744. Vita Foods, 154 NLRB 1716, 1720, Anderson -Rooney Operating Company, 134 NLRB 1480, 1481 , N L R.B v M & B Headwear Co , 349 F 2d 170, 174 (C A 4) TRIAL EXAMINER'S DECISION and RECOMMENDED ORDER STATEMENT OF THE CASES WILLIAM W. KAPELL, Trial Examiner: This matter was heard at Houston, Texas, on August 30 and 31, 1966,1 upon complaints of the General Counsel issued in Case 23-CA-22662 on April 27, and in Case 23-CA-23843 on June 15, respectively. The cases were consolidated for hearing by an order of the Regional Director, dated June 15. The complaint in Case 23-CA-2266 alleges in substance, that Schott's Bakery, Inc., hereafter referred to as Respondent, violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, hereafter referred to as the Act, by interrogating employees concerning their union activities, threatening to transfer employees to more arduous positions, and transferring employee James M. Nails from his job as checker to the more arduous job of manually loading and unloading trucks because of his union activities. The complaint in Case 23-CA-2384 alleges, in substance, that Respondent violated Section 8(a)(1) and (3) of the Act by instituting changes in the working conditions of employee James M. Nails, thereby increasing his workload, threatening to discharge him, and thereafter discharging and refusing to reinstate him because of his union activities. In its answers to the complaints, Respondent denied the commission of any unfair labor practices. It, however, admitted the discharge of and refusal to reinstate Nails, but denied in effect that it was discriminatorily motivated. I All dates hereafter refer to the year 1966 unless otherwise noted Based upon charges filed on December 23, 1965, and April 25, by American Bakery and Confectionery Workers' International Union, AFL-CIO, Local 163, hereafter called the Union. 9 Based on a charge filed on May 9 by the Union 164 NLRB No. 59 SCHOTT'S BAKERY, INC. 333 All parties were afforded full opportunity to be heard, to introduce relevant evidence,.to present oral argument, and to file briefs. The General Counsel and Respondent filed briefs which have been duly considered. Upon the entire record in the cases, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE conclusions, and recommendations of the Trial Examiner. The Trial Examiner had found that Respondent in violation of Section 8(a)(1) of the Act threatened to impose economic reprisals against its employees who joined the Union and to physically harm them because they sought assistance from the Union regarding maintenance of the terms and conditions of their employment; and that in violation of Section 8(a)(3), Respondent discriminatorily reduced the hours of employment of an employee and then discharged and refused to reinstate him.4 Respondent, a Texas corporation having its principal office and place of business in Houston, is engaged in the manufacture and sale of bread and bakery products. During the 12-month period prior to the issuance of the complaints, Respondent, in the course of its business operations, admittedly purchased goods and materials valued in excess of $50,000, which were shipped to it from points outside the State of Texas. Respondent admits, and I find, that at all times material herein, it was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that at all times material herein, the Union was a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Since November 1, 1963, the Union, as the recognized exclusive bargaining representative of Respondent's production and shipping employees, and Respondent have been parties to a collective-bargaining contract. The contract contains, inter alia, a Labor Management provision (article V) and a Disputes provision (article XII). The Labor Management provision states: "Except as otherwise provided by specific provisions of this contract, the management of the business and the direction of the working forces including the right to plan, direct and control operations and to introduce new or improved methods or facilities is vested exclusively in the employer." The Disputes provision, in pertinent part, provides that any employee who feels that he has been discharged without just cause may file a grievance; that in the event employee grievances or disputes concerning terms or condition of this contract arise, such grievances or disputes shall be processed as indicated therein; that arbitration, the final step in the processing of grievances or disputes shall be binding and final upon both parties; and that the sole function of the arbitrator shall be to determine whether the Company or the Union is correct with reference to the proper application and interpretation of this contract and the arbitrator shall have no authority to change, amend, or modify this contract in any respect whatsoever. It also appears that Respondent and the Union were recently involved in litigation before the Board. In May 1965, the Union filed unfair labor practice charges against Respondent, alleging 8(a)(1) and (3) violations. Thereafter, following a hearing before a Trial Examiner, the Board on June 23, issued an order adopting the findings, B. The Alleged Discriminatory Transfer 1. The arbitration proceeding On April 25, the Union filed an amended charge against Respondent in Case 16-CA-2266 alleging that in or about the end of January Respondent discriminatorily transferred employee James M. Nails from the position of checker to that of a loader, a more onerous job, because of his activities in or on behalf of the Union. Following his transfer and prior to the issuance of a complaint in said case, a grievance pursuant to the Disputes provision of the collective-bargaining agreement was filed on his behalf objecting to the transfer. While this grievance was being processed, the complaint in Case 23-CA-2266 was issued and Respondent moved on June 8 to dismiss the allegations therein pertaining to Nails' transfer or, in the alternative, to stay that proceeding because of the pending grievance which at that time had been noticed for hearing on June 16 before the Honorable Clyde Emory, a law professor selected as the neutral arbitrator. The motion was denied by the order of Trial Examiner Charles W. Schneider on July 6. Thereafter, following the filing of a charge and issuance of the complaint in Case 23-CA-2384, alleging the discriminatory discharge of Nails, Respondent made an amended motion for the same relief sought in its previous motion, and also moved that the allegations in the new case pertaining to the alleged discriminatory discharge of Nails be dismissed or, in the alternative, that the cases be stayed pending the completion of the arbitration proceeding which, in the meantime had been requested in connection with his discharge. Inasmuch as the Board hearing in the consolidated cases had been continued to August 30, which, in effect, was tantamount to a stay of that proceeding, no further action was taken in connection with the amended motion. It is significant to note that in support of its motion and amended motion, Respondent asserted that it and the Union had submitted the issues pertaining to the transfer and discharge of Nails to binding arbitration pursuant to their collective-bargaining contract, and that the hearing in the Board cases should be stayed pending the rendition of an award by the arbitrator, which then should be acted upon by the Board in accordance with the criteria set forth in the Board's decision in Spielberg Manufacturing Company.5 A hearing was held on June 16 before the arbitrator specifically confined to the alleged discriminatory transfer of Nails. Testimony was taken concerning whether or not Respondent had discriminatorily transferred Nails from his job as checker to that of loader because of his union activities. In its brief to the arbitrator Respondent contended that Nails' alleged discriminatory transfer did 4 159 NLRB 1040 5 112 NLRB 1080, 1082 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not constitute a proper subject for arbitration because the provision pursuant to which the arbitration was brought contained no specific antidiscrimination clause of any sort. However, the arbitrator in his award ruled that the whole contract seemed to imply that discrimination because of union activity was forbidden, and that a violation of such an implied term of the contract would seem to come within the contemplated scope of grievances, which article XII states concerns "terms or conditions of this contract." Although article V, the labor management provision of the contract, expressly precludes the contract having any implied terms, and although there was no express clause pertaining to discriminatory transfers, the arbitrator ruled that condonation of the alleged discrimination, if proved, would run counter to one of the strongest policies enumerated by the Federal Labor Management statutes, and that the parties would be barred even by agreement from infringing upon the fundamental rights of an employee to engage freely and fully in union activities without reprisal. Accordingly, he found that any construction of the management rights provision of the contract, which would sanction discriminatory treatment of an employee because of union activities would be illegal and void to that extent. He, therefore, concluded that he would not be modifying the contract in refusing to apply strictly the management rights provision in the instant situation and issued an award on June 30, in which he found that Nails was transferred from job of checker to that of unloading because of his union activities, and sustained his grievance. He, accordingly, ordered that Nails be reinstated to his former job as checker in the event that the grievance concerning his discharge be sustained. At the hearing held herein Respondent objected to the admission in evidence of the arbitrator's award, either as determinative of the transfer issue or as evidence to be considered by the Trial Examiner, on the grounds that it was contingent upon a determination of the discharge issue; the testimony presented to the arbitrator was different than that presented herein; and the only issue before the arbitrator was whether Nails was transferred for "just cause," which obviated the necessity of establishing illegal motivation within the meaning of Section 8(a)(3) of the Act, and consequently this issue was not before the arbitrator. Conclusions as to the Arbitrator's Award The contract in article XII provides that grievances or disputes concerning terms or conditions of this contract "-shall be taken up promptly in the following manner," and after setting forth the interim steps provides for arbitration which shall be binding and final upon the parties. This persuasively suggests that the grievance and arbitration procedure is mandatory upon the parties.' I also find no merit in Respondent's contention in its brief to the arbitrator that he had no jurisdiction over the issue presented to him because a discriminatory transfer is not covered by any specific provision of its collective- bargaining contract. The contract provides that the " See Local 174 , Teamsters v Lucas Flower Co , 369 U S 95 Cf Dubo Manufacturing Corporation , 148 NLRB 1114, 1118. ' Spielberg Mfg Co., supra, 1081 " Spielberg Mfg Co., supra, International Harvester Company function of the arbitrator was to determine whether the Company or the Union was correct with reference to the proper application and interpretation of the contract. This he did as indicated supra in his opinion. See also Hercules Motor Corporatton, 136 NLRB 1648. It has long been the policy of the Board to recognize and honor arbitration awards in order to promote the "desirable objective of encouraging voluntary settlement of labor disputes.1'7 The Supreme Court has also indicated its approval of effectuating the statutory policy of encouraging settlements of grievances under a collective- bargaining agreement. Thus, in United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 566, the Court stated "that policy can be effectuated only if the means chosen by the parties for the settlement of their grievances under a collective- bargaining agreement is given full play." The Board however, will withhold its authority to adjudicate alleged unfair labor practices involving the same subject matter, unless it clearly appears that the arbitration proceedings were unfair, had procedural irregularities, or that the award was clearly repugnant to the purposes and policies of the Act.8 It definitely appears and was admitted that the arbitration proceedings were fair, with ample opportunity accorded Respondent to introduce evidence, and that there were no procedural irregularities . The award was clearly not repugnant to the purposes and policies of the Act. Respondent's reliance upon Ford Motor Company' and Mitchell Transport, Inc.,10 to support the position that the principles enumerated in the Spielberg case are inapplicable to the instant case is misplaced . In the Ford case, the Board declined to honor the arbitrator's award because, unlike the Spielberg case, it was not a situation where an arbitrator had passed upon a question subsequently presented to the Board for a new determination. The arbitrator did not have before him nor did he pass upon the question subsequently presented to the Board. In the instant case the arbitrator took evidence concerning the alleged discriminatory transfer because of Nails' union activities and resolved it, an issue now presented herein. Similarly, in the Mitchell case, the Trial Examiner declined to accept the Joint Committee's arbitration award because the issue presented to him involved the filing of grievances, which concedely were not presented to or resolved by the Joint Committee. I also find no merit in Respondent's contention that the award may not be recognized because it was made contingent upon a determination of the discharge issue. The arbitrator had no alternative but to condition the reinstatement upon a favorable resolution of the discharge issue . Even if he had omitted the contingency, his finding or reinstatement , in effect, would have been subject thereto. For example, a proven unprovoked assault upon one of Respondent's officers would have barred his reinstatement despite the arbitrator's award. Furthermore, as appears hereafter, the discharge issue is resolved in Nails' favor, thereby removing the contingency. In these circumstances I find that the desirable objective of encouraging the voluntary settlement of labor disputes will best be served by recognizing the arbitrator's award. I, accordingly, find that (UAW), 138 NLRB 923, 927, enfd sub nom Thomas Ramsey v N L.R.B., 327 F 2d 784 (C A 7) " 131 NLRB 1462. 10 152 NLRB 122 SCHOTT'S BAKERY, INC. Nails was discriminatorily transferred from his position of checker because of his union activities. 2. The evidence presented concerning the discriminatory transfer of Nails Even if the arbitrator's award may not be recognized and honored I, nevertheless, find that Respondent discriminatorily transferred Nails because of his union activities. The record herein concerning Nails' employment and transfer is as follows: He obtained employment with Respondent in August 1957, and, except for a short break in service in the latter part of that year, he continued in Respondent's employ until May 1 when he was discharged. During his employment he held several positions in the Union, including that of chief shop steward during 2 months in 1964, and as president since August 1964. As president he discussed employee grievances with William Laird, who became Respondent's personnel manager in September 1965, especially those grievances arising in connection with a Teamster's strike and a picket line involving Respondent in September 1965. During the early part of his employment Nails operated a slicing machine and boxed bread. In the latter part of 1957 he became a checker. As a checker it was his responsibility to inspect the contents of the trucks of the driver-salesmen after they have been loaded to ascertain whether the drivers had received all of the products previously ordered by them. This was done by checking the contents of each truck against the items appearing on the duplicate of what is referred to in the industry as a "load sheet," which contains a list of the products ordered by a driver, and is pinned on the rear of his loaded truck. After making whatever corrections are necessary on the duplicate load sheet to indicate the correct contents of each truck, the checker then conforms the original load sheet to the corrected duplicate. This paperwork is supposed to be done at a desk provided for the checker near the loading zone, which is close by a door leading to the coffee bar or lunchroom of Respondent's premises. The driver then receives the duplicate load sheet, which he can double check against this load, and, if any errors are found, these are brought to the attention of the checker for correction. The corrected original is sent to the office where the driver is charged for his load. Undetected errors in the checking of the truck could result either in over- or under-charging the driver. In the latter case the Company would absorb the loss unless the error were called to its attention by the driver. During Nails' tenure as a checker the number of driver- salesmen trucks increased from about 50 to 65, most of the increase occurring during the period 1964-1966. This greatly increased his workload, and he began complaining to the Company about it in 1961, suggesting the need for additional checkers. In September 1965 he complained to William Laird, the then newly appointed personnel manager, that he needed help to do the checking, mentioning that he had previously spoken about it to Woodrow Choate, the shipping manager, who had stated that the Company would not authorize any increase in help although he agreed that a part-time checker was needed to " Choate admittedly participated in the decision to transfer Nails, but failed to correct Nails' mistaken impression that he had nothing to do with it 12 Choate, the shipping manager, admitted that Nails was too old to box bread, that it took a younger man to do it, and that 335 take care of the increased workload. Laird agreed to look into the matter at the request of Nails. About January 20, Nails again spoke to Laird about getting additional help. Laird advised him that they had decided they did not need another checker, and suggested that Nails should take another job in the Company where he could advance if he knew more about the Company. Nails demurred about changing his job and remonstrated that Laird was not disclosing everything about the suggested job change. Laird in reply stated "you know how things are around here and we don't do what we have to do-what we want to do, we do whatever we have to do, and anytime any little thing goes wrong the first thing they start hollering is that so-and-so president of the Union is a checker." When Nails continued to voice his feelings that there was more to it then he was being told, Laird said, "Well, it just don't look right for the president of the Union to be checking," and asked Nails to consider a transfer. Nails agreed to think it over. About a week later, Nails was summoned to a meeting with Laird, which was also attended by Chief Shop Steward Eddie Getro and Shop Steward Charles Leonard. Laird told Nails that, although he had been given a chance to change his job, he had not heard from him and he, therefore, was being transfered to another job. When Nails asked why, Laird stated that the Company had checked up around $400 short and had found many mistakes on his load sheets. Nails replied that he had previously told him how he was pushed for time and had not obtained the additional help requested, and that, accordingly, there could be some possibility of mistakes because of a lack of help. Laird then asked Nails to look at some papers which indicated his mistakes in checking but Nails declined to do so. Shop Steward Leonard then reminded Laird that only a few days before he had admitted that there had been some shortages in the ingredients, and had asked him whether those shortages could also be reflected in Nails' load sheets. Laird admitted it possibly could. After leaving Laird's office Nails met Choate, and informed him that he had been taken off his job as checker. When Choate asked why, Nails replied that it was ostensibly because there were mistakes on the load sheets. Choate assured him that he had nothing to do with it.11 On January 30, Nails was transferred to the job of boxing breads. A week later he became ill and upon his return on February 13 he was assigned to the loading of buns and bread.12 The above findings are based upon the credited testimony of Nails. Respondent contended that Nails was transferred from his job as checker because his checking duties were not satisfactorily performed. In support thereof, Laird testified that Respondent's vice president, Archie Schott, complained to him about the variances between the loads charged to drivers and their orders, and that as a result he asked the office manager to conduct a study of Nails' load sheets, which indicated that about 40 errors were made during the months of December 1965 and January 1966. He also stated that he was advised by Foreman Phillip J. Hyman, Nails' supervisor, that Nails was doing his paperwork in the coffee bar rather than at the desk provided for that purpose,13 and that employee Hefefinger, who was also a checker, complained to him loading was more strenuous than checking because in checking the heaviest thing carried is a pencil. i3 Nails admitted using the coffee bar on occasion because the wind at his desk blew his papers around, but stated that Hyman never spoke to him about it. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Nails was not devoting full time to his job and was involved with other activities. I find it significant to note that Laird did not deny Nails' testimony that at first he (Laird) had urged him to transfer to another job in order to improve his chances of advancement. His alleged inadequate performance was asserted only after Nails questioned his purpose in urging a transfer. I find Laird's testimony unimpressive. Foreman Hyman, who supervised the wrapping, bagging, and loading of trucks, also testified on behalf of Respondent about Nails' inadequate job performance as a checker. He stated that until the last 6 months of Nails' tenure as a checker he did a good job, that he then began to complain about needing help, that he saw Nails talking to the production people and told him that he could get his job done by spending more time checking the trucks instead of talking to the production people, that the driver- salesmen complained about the delay in checking out their trucks, that Choate complained to him about shortages, and that he criticized Nails for taking 40 to 50 minutes for his lunch break instead of the allotted 30 minutes.'" I find it odd that, despite the alleged widespread criticism of Nails, Hyman never warned him, an employee of longstanding who had admittedly done good work as a checker for many years, that he would be transferred unless he mended his ways. His testimony concerning the criticism of Nails is not credited. Conclusions Viewing the evidence in its entirety, especially the manner in which the transfer was first broached to Nails, his position in the Union, his active participation in union matters, the recent trouble in connection with the Teamsters strike, and the recent finding by the Board of Respondent's antiunionism and violations, I find that Nails was transferred to a more onerous position in order to discourage union interest and support in the bakery. He not only was given a more onerous job, but the transfer itself was also tantamount to a demotion to a job he had held during the first few months of his employment before being advanced to a checker. The reason ascribed by Respondent for effecting the transfer was pretextual and was advanced to mask its true motivation. Accordingly, I find that the transfer constituted a violation of Section 8(a)(3) and (1). C. The Alleged Discriminatory Discharge of Nails Following his transfer, Nails continued to work loading buns and bread. The machanics of the loading and prior operations are as follows: The bread after being baked is carried from the ovens and cooled on a conveyor called the "cooler," to machines which slice and bag it. To increase the flow of bread to these machines, it is only necessary to speed up the cooler. When more bread comes off the cooler then could normally be handled by the baggers, their speed can also be increased to a certain point depending upon how fast air can fill the bags. In the event a bagging machine breaks down, which is not uncommon, the bread is directed from the cooler to the other bagging machines. From the bagging machines the bread is deposited upon long loading conveyors of which there were several in the bakery. The speed of these conveyors 14 Nails admitted a minimal amount of talking which did not interfere with his work, and that Hyman spoke to him only on one occasion about it. is constant and cannot be changed, but the spacing between loaves of bread can be materially decreased, thereby substantially increasing the flow of the bread. The loader works along a conveyor, removing the bread, four loaves at a time, placing them upon trays and then loading the trays in a truck. In the event the movement of bread is greatly increased on the conveyors by sharply reducing the normal 12 inches between loaves, the loader may find it very difficult or even impossible to place the loaves on trays, carry them to a truck, and then return in time to pack the next tray for removal to the truck, and as a result some of the bread will be carried on the conveyor past the loader to the end of the line, and there deposited on the floor, probably in a "crippled" condition. Nails loaded bread without incident until the night of April 29. The testimony concerning the events, which occurred on that night and culminated in his discharge is inconsistent and conflicting. According to Nails, he began his shift about 6 p.m. on that night and after loading buns he was assigned to loading bread on one of the conveyors called the "fourteen trucks" conveyor. After loading about half of the trucks assigned to him, he noticed that the loaves of bread were being spaced much closer than normally, which made it extremely difficult to handle. He, therefore, called to Bob Metzler, who was operating a bagging machine, to tell Foreman Hyman to come to his work station because the bread was coming so fast that he was unable to keep up with it. At that time he counted the speed of the bread at 61 loaves a minute, whereas before it was running about 45 loaves a minute. When Hyman appeared, Nails told him that the bread was coming too fast and he was unable to keep up with it. Hyman replied, "Well, anytime you think you can't keep up with it, punch your card and go home." Nails refused to leave, and remonstrated that he had counted the speed of the bread at 61 loaves per minute, but Hyman denied that it was going that fast. When Nails stated that if he did not slow it down it would get away from him and run off on the floor, Hyman warned him, "You just let it run off on the floor and you are really going home." Nails reiterated that he was doing his best but that he could not handle it and it would get away from him. Five loaves did get away from him, three of which were spoiled. Hyman then left the area. Shortly thereafter, employee Parish, who operated a slicing machine, approached Nails and advised him that he had been sent by Hyman to relieve him, and he took over. After Parish began loading, he remarked to Nails that he could not handle the bread because of the speed, and added "I will let more bread get away from me than you did." Nails then left to punch his card. After doing so, Hyman called to him and accused him of letting five loaves of bread run off. Nails conceded that five loaves had run- off because he could not keep up with the speed of the flow of the bread. Hyman then commented that he would report to the office that he was unable to do the job, to which Nails replied, "I can't catch the bread the way it was going out there and nobody else can. It was going too fast and you know it." When Hyman reiterated that he was still going to advise the office that he could not do the job, Nails started to walk off, stating that he did not care what he reported, and that he could not catch the bread. When he reported for work the following morning, Choate told him he was fired for deliberately damaging company property. Employee John Parish testified on behalf of the General Counsel that two of the bagging machines broke down during the night of April 29, that following the second breakdown the speed of the bagger was increased to 65 SCHOTT'S BAKERY, INC. 337 loaves a minute from a previous normal speed of about 42, that shortly thereafter he was sent to relieve Nails at which time the speed of the bread was about 55 loaves a minute, and that the bread continued to run fast for about an hour but he managed to keep up with it although two loaves went by him. Parish also stated that Hyman speeded up the cooler twice that night, that it was customary for Hyman to speed up the cooler, but that he did it more often after Nails began working as a loader. The following employees testified on behalf of Respondent. Ernest Cox, a machine operator, stated that his machine broke down several times on the night of April 29, and that the bagger was operated faster than usual for about half an hour. John Castleberry, a loader and bun packer, and Billy Lawhorn, a machine operator, claimed that the bread was moving at normal speed on the night in question. Foreman Hyman stated that on the night in question he heard Nails shout "hold number 2 conveyor." He thereupon cut the bagger off and sent employee Metzler to find out what the trouble was. Metzler returned in a few minutes and told him to let number 2 conveyor go,'s and that Nails was complaining that the bread was running too fast. He thereupon went out and spoke to Nails, who complained that the bread was running too fast for him to handle, that he could not keep up with it, and that if he (Hyman) did not slow it down, he was going to let the bread run off. He warned Nails that if he let it run off he would have to send him home, and left. About 15 or 20 minutes later he returned and found about 12 or 14 loaves which had run off, only 3 of which had not been spoiled. He then sent Parish to relieve Nails. As Nails was walking by him on his way to punch his card, he told him that he would have to report what happened to the office. Nails retorted he "did not give a G-d- what he told the people in the office" and walked by, punched his card, and went home. Later that morning he (Hyman) told Laird that Nails had deliberately let bread run off. Laird thereupon called Choate on the telephone, and he (Hyman) related to Choate what had happened and recommended that Nails be discharged. Choate agreed and advised them to have Nails' check made up in the preparation for his discharge. Shipping Manager Choate testified that after Hyman told him on the telephone that Nails had deliberately let bread run off, he authorized his discharge, that the following morning when Nails reported for work, he informed him he was being fired because of what Hyman had reported to him, that he did not ask Nails whether or not the accusations against him were true, and that Nails only said it was "all lies." Conclusions Respondent contends that Nails was discharged for deliberately damaging company property. The General Counsel submits that the reason advanced for Nails' discharge was pretextual, and that, in fact, Respondent was motivated to discharge him because of his union "This conveyor (on which Nails was working ), had been mistakenly cut off in response to a call from the loader on a nearby conveyor who was having trouble keeping up with the flow of bread and had called out to have his conveyor cut off. 16 In this connection it is significant to note that Parish testified that the cooler was speeded up more often after Nails began working as a loader. 17 It appears from the record that this was not the only time that bread had run off the conveyor Parish testified without activities. Evaluating the contradictory testimony and taking into consideration the demeanor of the witnesses in determining their credibility, I find that on the night in question the speed of the flow of bread on the conveyor at which Nails was working, was increased to an extent which taxed his ability to keep up with it, and that as a result some of the bread unavoidably ran off and was spoiled. In reaching this conclusion, it is unnecessary to determine whether the flow was increased intentionally to cause the runoff or whether the exigencies of the operations that night, brought on by the failure of some of the equipment, were the cause of speeding up the flow. IS I also find that Nails did not threaten to deliberately allow bread to run off. He complained to Hyman at the time in question that unless the flow of bread was diminished, the unavoidable consequence would be a runoff of some of the bread. Hyman may, in good faith, have inferred or thought he heard Nails threaten to deliberately permit bread to run off. If he thought he heard Nails make the threat, I find he was mistaken in that impression. If he made an inference to that effect, it was not justified in view of the circumstances found herein." I conclude that Nails was physically unable to keep up with the speed of the bread flow, and that a small quantity ran off. This may have been due to some extent to the fact that his age militated against his ability to do the loading under the conditions extant on that night, whereas a younger employee may have been able to successfully cope with the situation. Were it not for the discriminatory transfer of Nails to a more onerous position, the situation would not have arisen or developed where he would be faced with doing a job beyond his capabilities and discharged. In these circumstances, I find that, inasmuch as Respondent bears the responsibility for having discriminatorily created a situation which, through no fault of Nails, resulted in his discharge, it must also bear the responsibility for the consequences which emanated from its discriminatory action. Moreover, the circumstances relating and leading to Nails' discharge must also be viewed in the light of Respondent's history of antiunionism as evidenced by the Board's findings in the prior case. It is also significant to note that had Nails refused to accept the transfer and quit because of the more onerous nature of the new job, Respondent would have been found in violation of Section 8(a)(3). "An employee who is forced to leave his employment as the only alternative to accepting discriminatory action relating to his conditions of employment is constructively discharged in violation of the Act." American Auto-Felt Corporation, 158 NLRB 1628. Viewing the record in its entirety, I find that Nails was discriminatorily discharged in order to discourage union support and activities in violation of Section 8(a)(3) and (1). 18 D. The Alleged Interference, Restraint, and Coercion The complaint in Case 23-CA-2266 alleges that Laird interrogated employees concerning their union activities, contradiction that two loaves ran off after he replaced Nails, and the latter stated that he had seen bread run off on many occasions , as much as 50 to 100 loaves at a time, Hyman testified that he could remember only one such instance , when a loader abandoned his job , but admitted that other occasions may not have been brought to his attention. 11 Cf. N.L.R.B. v. Baltimore Paint and Chemical Corp., 308 F 2d 75 (C.A. 4), enfg. 135 NLRB 87, Zelrich Company, 144 NLRB 1381 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that he and Choate threatened an employee that he would be assigned to more onerous and arduous tasks if he continued his interest in the Union. The complaint in Case 23-CA-2384 alleges that Hyman threatened Nails with discharge because of his union activities. The only evidence adduced pertaining to interrogation of employees concerning their union activities is a conversation had between Laird and Nails in January. In this conversation Laird inquired whether it was true as he had heard from a union business agent that Nails would have to be away on union business . Nails replied that he must have misunderstood the business agent , and that although a union meeting was, in fact , set to be held in Memphis, he was not planning to attend . Laird knew that Nails was president of the Union, and had discussed personnel matters with him. Thus, Nails' possible absence from the bakery was a matter of legitimate interest to Laird. Under these circumstances , I find that Laird did not unlawfully question Nails within the meaning of the proscription of Section 8(a)(1). I find further that the General Counsel has not established by a preponderance of the evidence that Laird or Choate threatened to assign Nails or any other employee to a more onerous fob if they continued their interest in the Union. Nails was transferred to a more onerous job, as found herein, but he was only requested and not threatened with such a transfer prior to its occurrence. I also find that the General Counsel has failed to establish by a preponderance of the evidence that Hyman threatened to discharge Nails because of his union activities . Hyman did threaten to send Nails home for the night if he let bread get by him. This involved only a work loss for part of the night , but not a discharge . The only threat of discharge made by Hyman to Nails was in the event that he deliberately or intentionally let the bread run off. Whether or not it was deliberate is an issue unrelated to Nails' union activities. Accordingly, I will recommend that the complaints herein be dismissed insofar as they allege interrogation and threats of reprisal in violation of Section 8(a)(1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, and therein found to constitute unfair labor practices defined in the Act, occurring in connection with the operations of Respondent as outlined in section I, above, have a close, intimate , and substantial 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 entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily transferring Nails from position of checker to that of loader, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By discriminatorily discharging Nails, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The above-described unfair labor practices affect commerce 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 General Counsel has failed to establish by a preponderance of the evidence the remaining allegations of the complaints, and I will recommend that the said complaints be, to that extent, dismissed. THE REMEDY Having found that Respondent engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom, and that it take certain affirmative action ordered in such cases as provided in the Recommended Order below, which I find necessary to remedy and remove the effects of the unfair labor practices, and to effectuate the policies of the Act. Having found that Respondent discriminatorily transferred Nails from his job as checker to that of loader and thereafter discharged him because of his union activities and to discourage union support, I shall recommend that Respondent be required to offer him reinstatement to his former job as checker or a substantially equivalent position and make him whole for loss of earnings since his discharge in accordance with the remedial policies outlined in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In view of the serious nature of the violations found herein , and because of its recent history of violations, I shall recommend that Respondent be required to cease and desist from in any other manner infringing upon employees' rights guaranteed in Section 7 of the Act. Upon the basis of the entire record, the findings of fact and conclusions of law , I issue the following: RECOMMENDED ORDER The Respondent, Schott's Bakery, Inc., its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in American Bakery and Confectionery Workers' International Union , AFL-CIO. Local 163, or any other union , by discriminatorily transferring employees from one job to another because of their union activities or by discriminatorily discharging and refusing to reinstate , or in any other manner discriminating in regard to their hire or tenure of employment or any other term or condition of employment. (b) In any other manner interfering with , restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer James Nails immediate and full reinstatement to his former or substantially equivalent position as checker, 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." (b) Notify James Nails if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the SCHOTT'S BAKERY, INC. 339 Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due to Nails and the right to reinstatement under the terms of this Recommended Order. (d) Post at its plant in Houston, Texas, copies of the attached notice marked "Appendix."19 Copies of said notice, to be furnished by the Regional Director for Region 23, after being duly signed by an authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.20 IT IS ALSO RECOMMENDED that the complaints be dismissed insofar as they allege unfair labor practices not specifically found hereinabove. 1s In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 20 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations 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 American Bakery and Confectionery Workers' International Union, AFL-CIO, Local 163, or any other labor organization , by discriminatorily transferring employees from one job to another or by discharging and refusing to reinstate them, or in any other manner discriminating in regard to the hire or tenure of their employment , or any term or condition of employment. WE WILL offer James Nails immediate and full reinstatement to his former or substantially equivalent position as checker, without prejudice to his seniority or other rights and privileges , and make him whole for any losses he may have suffered by reason of our discrimination against him. 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. 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 James Nails 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. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, def.tced, 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 CA8-0611, Ext. 4721. 298-668 0-69-23