Cross Baking Co., Inc.

CROSS BAKING COMPANY Cross Baking Company, Inc. and Bakery& Confection- ery Workers' International Union of America, Local 100. Cases 1-CA-6547 October 31, 1970 DECISION, ORDER, AND CERTIFICA- TION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On September 18, 1969, Trial Examiner Lloyd S. Greenidge issued his Decision and Recommendation on Challenges and Objections in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices. The Trial Examiner also recommended that the challenge to one ballot be sustained and that certain objections to conduct affecting the results of the election be overruled. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision together with a supporting brief; the Respondent-Employer filed exceptions to portions of the Trial Examiner's Decision together with support- ing briefs as well as a brief in support of other portions of the Trial Examiner's Decision. The General Counsel and the Petitioner each filed briefs in answer to certain parts of the briefs filed by the Respondent- Employer. 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 and Recommendation on Chal- lenges and Objections, 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 modification. I The General Counsel excepts to some of the Trial Examiner's credibility resolutions It is the Board's established policy, however, not to overrule a Trial Examiner's credibility resolutions unless, as is not the case here, the preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) 2 140 NLRB at 224 199 The Employer contends that the election should be set aside because the Petitioner, in a letter to unit employees, misrepresented an increase in wages and benefits which it had obtained for its members at another plant. Applying the tests set forth in Holly- wood Ceramics Company, Inc., 140 NLRB 221, the Trial Examiner refused to set the election aside. He reasoned that, even if it contained misrepresentations, the Petitioner's letter was unobjectionable because the Employer had adequate opportunity to reply. The Trial Examiner did not decide whether the letter in fact contained misrepresentations. In Hollywood Ceramics, supra, we stated that we would set an election aside: where there has been a misrepresentation . . . which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election.2 We find that the Petitioner's letter did not contain any misrepresentation of the sort prescribed by Hollywood Ceramics, supra, and we agree with the Trial Examiner that the election should not be set aside.3 The election was held in a unit of the Employer's production and maintenance employees on January 22, 1969. Thirty-four valid votes were cast for, and 32 against, the Petitioner; 4 ballots were challenged.4 Before the election, the Petitioner sent letters to employees in the unit which stated, inter aha, that employees at nearby Ward Baking Company had voted for this Local and that: They have received 75 cents per hour in wage and fringe benefits . . . in their first contract with this Union. . . . They are happy to pay the $4.00 per month after receiving a $30.00-per-week increase in wages and fringe benefits. Analysis of its agreement with Ward, effective October 1, 1968, through October 21, 1971, indicates that the Petitioner did in fact secure a substantial increase over the life of the contract in the package of wages and fringe benefits. This increase in wages alone amounted to 49.5 cents per hour, or a total of $19.80 per week, and the increase in the cost of employer contributions to health and welfare and pension programs amounted to 9 or 12.5 cents per hour, or $3.60 or $5.00 per week.5 In addition, there 3 In the view that we take of this case, it is unnecessary to pass upon the Trial Examiner's finding that, even if the letter contained substantial misrepresentations, the Employer had adequate time to reply thereto 4 As the challenges to 3 of these 4 ballots have been sustained, the remaining unopened ballot cannot affect the results of the election. 5 The disparity in the aforementioned figures is due to the fact that under the Petitioner's predecessor's agreement with Ward , with which this (Continued) 186 NLRB No. 28 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were other changes affecting holidays, vacation benefits, and the identity of the health and welfare and pension program carriers which would appear to have some value to the employees, the precise amount of which is not readily ascertainable from the instant record. Under these circumstances, we are satisfied that while the Petitioner in its letter may have exaggerated the size of the increases, in the context of the large increases which it did in fact secure, there was not that "substantial departure from the truth . . . [which] may reasonably be expected to have a significant impact on the election." We shall, therefore, certify the Petitioner as the employees' representative. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as 'amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Cross Baking Company, Inc., Claremont, New Hampshire, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. CERTIFICATION OF REPRESENTATIVE It is hereby certified that Bakery & Confectionery Workers' International Union of America, Local 100, has been designated and selected by a majority of the employees in the appropriate unit and that pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all employees in such unit for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. contract must be compared, the Employer made different contributions to the health and welfare fund for those employees with , and those without, dependents. TRIAL EXAMINER'S DECISION AND REC- OMMENDATION ON CHALLENGES AND OBJECTIONS STATEMENT OF THE CASE LLOYD S. GREENIDGE, Trial Examiner: Case 1-CA-6547, a proceeding under 10(b) of the National Labor Relations Act, as amended, herein called the Act, was heard at Claremont, New Hampshire, on March 5 and 6, 1969, pursuant to due notice upon a complaint' issued by the General Counsel on January 24, 1969. The complaint alleges, in substance, that Cross Baking Company, Inc., herein called Respondent or Company, threatened employ- ees with discharge, economic reprisal, and bodily harm if they continued their activities on behalf of or affiliation with the Union in violation of Section 8(a)(1) of the Act; and suspended Patricia Von Dreden2 on or about November 22, 1968, and Cheryl Stapleton on or about November 24, 1968, and discharged Von Dreden on or about November 25, 1968, because they joined or assisted the Union or engaged in other concerted activities in violation of Section 8(a)(3) and (1) of the Act. Respondent answered on February 13, 1969, denying the unfair labor practices as alleged. On March 27, 1969, the General Counsel moved to consolidate Case 1-RC-10,271 with Case l-CA-6547, to reopen the record in Case 1-CA-6547 to receive evidence mutually relating to both, and to extend indefinitely the date for filing briefs. Respondent opposed the motion insofar as it sought to reopen the record. By telegram dated April 4, 1969, and, later by Order dated May 20, 1969, the Trial Examiner granted the motion to consolidate and to reopen the record but, as to the latter, only to the extent that any additional evidence sought to be presented in Case 1-CA-6547 is shown to be newly discovered or previously unavailable. The consolidated cases were heard by me in Claremont, New Hampshire, on July 8, 1969. In Case 1-RC-10,271, pursuant to a Decision and Direction of Election by the Regional Director for Region I dated December 17, 1968, an election by secret ballot was held on January 22, 1969, in a unit of the Company's production and maintenance employees to determine whether or not said employees desired to be represented by the Union for the purposes of collective bargaining. A tally of the ballots shows that of approximately 69 eligible voters, 66 cast valid ballots, of which 34 ballots were for the Union, 32 ballots were for no union, and 4 were challenged. On January 27, 1969, the Company filed with the Regional Director timely objections to conduct affecting the results of the election. The objections allege as follows: On January 17, 1969, at a meeting attended by approximately thirty employees of the Company, representatives of the Bakery and Confectionery Union supplied false and misleading information concerning the pay received by employees of the Ward Baking Company which is located in White River Junction, Vermont. The information in question is set forth in the attached affidavits. The Company contends that such conduct as well as other conduct engaged in by the above mentioned Union affected the results of the election. After an investigation, the Regional Director, on March 26, 1969, issued and duly served upon the parties a Supplemental Decision on Objections and Challenges. In the Supplemental Decision, the Regional Director sus- tained challenges to two of the four challenged ballots and referred to the Trial Examiner challenges to the remaining ballots of Patricia Von Dreden, alleged in the complaint to have been discriminatorily discharged prior to the election, and Valerie Hull, whose status as a supervisor was in issue in the unfair labor practice proceeding. It was further found 1 Based on a charge filed by Bakery & Confectionery Workers' International Union of America, Local 100, herein called the Charging Party or the Union. 2 The name of this alleged discriminatee appears as corrected at the hearing. CROSS BAKING COMPANY by the Regional Director that the "other conduct" alluded to by the Company in its objections embraced an allegation that Patricia Von Dreden, acting as agent for the Union, "threatened, and assaulted other employees thereby impairing a free choice in the election." Consequently, as a determination of the validity of the objections is inherent in the resolution of the relevant issues in the complaint case, the Regional Director also referred to the Trial Examiner for hearing in the consolidated proceeding the issues raised by the Company's objections. All parties were represented by counsel or union representatives at the original and consolidated proceeding, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence rele- vant and material to the issues, and to file briefs and proposed findings. Briefs were filed by the General Counsel, the Respondent, and the Union on or before August 28, 1969, the extended date for filing briefs. Upon the entire record in this proceeding,3 his resolution of issues of credibility based upon the appearance and demeanor of the witnesses, and the briefs, which have been carefully considered, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint declares that the Respondent is a Vermont corporation engaged in the manufacture, sale, and distribution of baked goods and related products in Claremont, New Hampshire. In the course and conduct of its business, Respondent annually purchases goods and materials valued in excess of $50,000 directly from points outside the State of New Hampshire which are received at its Claremont location. Upon the complaint's jurisdictional declarations, which are conceded, I find that Respondent, throughout the period with which this case is concerned, was an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and the Board's jurisdictional standards. II. THE LABOR ORGANIZATION INVOLVED The Charging Party is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction 1. The start of the Union's campaign and Respondent's opposition The parties stipulated, and it is found, that Jeffrey Burgess, assistant plant manager, and Claire Underkofler, production manager, are, and at all times material have 3 A complaint allegation that Respondent, by one N. Cardier, threatened employees with economic reprisal was withdrawn by the General Counsel. Another allegation that N. Cardier was, at times 201 been, supervisors of the Respondent within the meaning of Section 2(11) of the Act. The Company had approximately 69 employees in the appropriate unit employed on two shifts, 5 days a week. The factory is closed on Saturdays, and Tuesdays are down days meaning that on Tuesdays the Company operates with a skeleton crew detailed to make crackers. The Union's organizing campaign began in early October 1968 when employee Stanton Dorion and Leo J. Dell'Olio, the Union's International representative, visited Patricia Von Dreden. Von Dreden distributed union cards at the bakery during her breaks and, from the latter part of October through early November, held union meetings in her home. Burgess testified that everyone in the plant knew who was and was not active on behalf of the Union and frankly admitted that, several weeks before Von Dreden's suspension on November 22 and subsequent discharge on November 25 or 26, and before Stapleton's suspension on November 24, the Company knew from reports from leadgirl Valerie Hull and others that Von Dreden and Stapleton were active supporters of the Union. Admittedly, too, the Company received no report of union interest on the part of employees Dorothy Loiselle and Lynn Platt. In conversations with the employees, the Company made clear its opposition to the Union's attempts to organize. The petition for an election in Case 1-RC-10,271 was filed on October 14, 1968. The conduct attacked by the General Counsel and the Union took place in a period prior to the election which was conducted on a date previously fixed herein as January 22. 2. The Redwater Brook Road incident Questions concerning the Redwater Brook Road and Cota incidents, discussed in sequence hereinbelow, were raised in conversations which preceded the suspensions of Von Dreden and Stapleton. Further, certain occurrences on the former occasion are advanced as an objection to the election. As the evidence with respect to the Redwater Brook Road incident is in serious conflict, I present below two divergent views of the events of that evening. a. The version of Von Dreden, Stapleton, and Lorraine Bunnell About 11:30 p.m., on Monday, November 18, 1968, Von Dreden was driving home after having picked up her 3- month-old baby who had been staying with her mother while Von Dreden, Bunnell, their respective husbands, Stapleton, and Union Agent Dell'Olio were out bowling. Accompanying Von Dreden in her blue Saab were Stapleton and Bunnell, the latter holding the baby in the rear of the automobile. While traveling on a major road in West Claremont but not Main Street, Von Dreden observed that the operator of the car directly behind her was driving at close range- "almost bumper to bumper." First, Von Dreden testified that the headlights in the other car were on but not on "bright," later that she could not remember whether both were on. Stapleton recalled that material, an agent and supervisor of the Respondent was struck at the hearing. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Von Dreden said they were being followed but that she (Stapleton) was too frightened by the lights to look behind. At this point, Von Dreden made a left turn onto Bowker Street4 and another turn onto Redwater Brook Road followed in each turn by the car behind which finally pulled ahead and stopped causing Von Dreden to stop as well. Dorothy Loiselle got out of the car that had pulled ahead and walked towards Von Dreden. Von Dreden left her car and started towards Loiselle exclaiming, "Dot, what are you trying to do? I've a 3 months old baby in the car." To this, Loiselle replied: "Do you want to fight?" and, without further ado, swung at Von Dreden. Von Dreden retaliated by pushing Loiselle to the ground with such force as to cause her to cry in anguish, "Oh my back, my back!" At this juncture, Lynn Platt jumped out of Loiselle's car and started to remove her coat and Stapleton left Von Dreden's car. Bunnell remained behind with the baby. Stapleton then told Platt it was none of her business and to stay out of it. Apparently, undaunted by the appeal, Platt asked Staple- ton if she was looking for a fight and, thereupon, struck Stapleton about the face and body with her hands. After the affray, Von Dreden and Stapleton returned to Von Dreden's car and the former drove her companions to her home. On November 19, Stapleton obtained a warrant for the arrest of Platt and, on November 20, filed a criminal complaint against Platt charging an assault. Von Dreden filed a like complaint against Loiselle and Platt on November 19 or 20. b. The version of Dorothy Loiselle and Officer Albert R. Bergeron Lynn Platt was visiting with Loiselle the evening of November 18. About 11 p.m., Loiselle observed a blue Saab, which she recognized to be Von Dreden's, pass the house on High Street where she resided. Shortly after this, Loiselle and Platt got into Loiselle's 1963 Cutlass Oldsmobile - black and white - and started towards Platt's house. Loiselle was driving with the headlights on "dim" and only one light was working in that position. On high beam, which she did not use, both lights worked satisfactorily. While on Main Street, Loiselle noticed she was being pursued, made a right turn onto Bowker Street and stopped. She then told Platt to get out of the car and asked Von Dreden why she was following them. When Platt returned she reported that Von Dreden and the others had said that they were following Loiselle because they had nothing better to do .5 Loiselle decided to resume the journey and, if Von Dreden continued to follow, to attempt to lose her. The next thing Loiselle knew she was climbing a hill that lead to a dead end and, when she attempted to back down, Von Dreden blocked her path. At this point, both Loiselle and Platt debarked, walked back to Von Dreden, and asked why she refused to move her car. Von Dreden told them it was stuck. Loiselle tried to move the vehicle, discovered it had a standard shift, and abandoned 4 A reference to the map of Claremont (Resp. Exh. 2) reveals that access to Bowker Street can be gained by a turn off Main Street. Moreover, Main Street appears to be the road Von Dreden would have traveled to reach her home on Winter Street. 5 Platt was not called as a witness. 6 On cross-examination , Loiselle testified that she did not like the Union the effort. As Loiselle was returning to her car, Von Dreden asked Loiselle and Platt if they were for the Union and both answered in the negatives Von Dreden then said it was all right with her, that she did not have to work the next day and could stay all night. To this, Loiselle declared, "Well, yes Pat, I'm for the Union just so I can go home. I'm tired. I want to go home," and started towards her car. Von Dreden and Stapleton followed asking whether Loiselle and Platt were going to help them move Von Dreden's car. Once again, Loiselle and Platt debarked. At this point, Von Dreden asked Loiselle, "Are you chicken to fight with me?"; shoved her; and, grabbing her arm, said, "You are chicken to fight with me." Loiselle replied, "No, I respect my elders, I do not fight with them." Whereupon, Von Dreden knocked Loiselle to the ground. As Loiselle attempted to get up, something came down on her back. While not charging Stapleton with assault, Loiselle testified that, when she looked around, Stapleton was on her back. In any event, Loiselle screamed: "My back, my back!" To this, Von Dreden replied, "Yes, it's always something isn't it." Loiselle then crawled to her car, boosted herself up and, leaning against the vehicle, saw Von Dreden and Stapleton attack Platt. After Von Dreden and her companions had departed, Loiselle drove Platt back to the apartment Loiselle shared with Valerie Hull, the leadgirl.7 Hull called the police. In support, Albert B. Bergeron, an officer in the police department of the city of Claremont, testified that he left his home on Bowker Street to report for duty about 11:15 p.m. the night in question; that he made a left turn onto Main Street, at the intersection of Bowker and Main Streets; that, while driving on Main Street and going towards town, he noticed two cars approach; and, as they got closer, he observed that the operator of the second car was driving almost bumper to bumper on the first. The officer also testified that one headlight in the first car was out and identified the car as a 1964 two-door Oldsmobile with white bottom, black top. Bergeron recalled the second car to be a blue Saab, late model. The officer continued to say that, about one-half hour after reporting for work, he was dispatched to High Street to investigate an alleged assault on a young lady, that he found Loiselle lying on a couch and she appeared to be in great pain, that he and Officer Hart carried Loiselle to their cruiser, that he drove Loiselle and Platt to the Claremont General Hospital and, later that evening, drove Loiselle back to her apartment. Finally, Bergeron averred that the Oldsmobile parked in front of the building where Loiselle lived and the blue Saab 8 in Von Dreden's yard were the same automobiles he had observed on Main Street earlier that evening. Loiselle was a cracker girl and normally worked on Tuesdays. Thus, despite severe back pains, Loiselle went to the plant Tuesday morning, November 19, to ask Hull if she had secured a replacement. Since Tuesday is a down day, Loiselle did not expect to see any management representa- tive. According to Burgess, however, Hull telephoned him and had refused to sign a union card. 7 The Union, which had challenged Hull as a supervisor, withdrew its challenge at the consolidated hearing and agreed to her inclusion in the unit. 8 Inspected by Bergeron after he had received the registration number from Loiselle. CROSS BAKING COMPANY 203 at his home that morning and advised him of the fight the night before. Apparently, sometime that day or the next, Loiselle filed criminal complaints against Von Dreden9 and Stapleton. Loiselle testified that she was also a defendant in the criminal court action. Wednesday morning, November 20, Loiselle returned to the plant and told Burgess that she and Platt "got beat up because of the union." The next day, Loiselle visited her doctor and X-rays of her back showed that she had sustained two chipped ribs and a chipped spine. Loiselle was laid up from about November 20 until January 22 during which period she received full compensation under the Company's group insurance policy.10 On December 5, Von Dreden and Platt were each found guilty of assault and fined $10, and Stapleton was found not guilty. 3. The Cota incident Early in the morning of Wednesday, November 20, Von Dreden, Stapleton, and Bunnell appeared in court in connection with the criminal charges that had been or were being filed against Loiselle and Platt. About 11 a.m., Bunnell telephoned Burgess and asked whether they should report for work that day., Burgess replied that it was a matter of indifference to him. Shortly, thereafter, the girls appeared and worked until about 10 p.m. that night. About 7:30 p.m., Eli Cota entered the bakery and walked over to Valerie Hull. Cota, a mixer, worked days as a relief man to Garfield Von Dreden.11 When Bunnell saw Cota she said to Von Dreden, "I'm scared, I think they are up to something." Suddenly, Cota ran over to Bunnell and asked: "What are you saying now, Lorraine? Causing more trouble?" 12 Bunnell told Cota that her conversation with Von Dreden was none of his business. Cota replied, according to Bunnell, "Oh, you want to fight, you want to fight," and put his fists in her face. Von Dreden recalled that Cota asked Bunnell, "Do you want to fight, you woman beater?" and then said, "Fight me." Von Dreden cautioned restraint and Bunnell walked away without responding to Cota's remarks, taunts, and gestures. The incident was reported to Hull who told Bunnell to keep quiet and return to work. At the end of the workday, Bunnell filed a complaint with the police. Shortly after the Bunnell encounter, Cota approached Stapleton and asked her if she wanted to fight. Startled by the inquiry, Stapleton said, "What!" and Cota replied, "You want to fight me? Looking for a fight tonight, Cheryl." Stapleton then told Cota to leave her alone and he left. Soon thereafter Stapleton requested and received permission from one Eileen Fowler to use the telephone. About 8:30 p.m., and in the first of two telephone calls to her father that evening, Stapleton told him that Cota was "bothering the girls." Some time later, Police Officer Dan L. Wright was dispatched to investigate a complaint filed 9 A copy of the complaint filed by Loiselle against Von Dreden shows a charge of assault. Von Dreden testified that Platt also filed complaints against Von Dreden and Stapleton. 10 Loiselle filed an application for disability insurance on November 19 or 20. She had sought coverage about I month previous but the Company deferred action on the request because of the military status of her husband and attendant doubts that Loiselle needed the protection provided by a man who had reported that his daughter had been threatened and had requested transportation for her. About 9 p.m., Stapleton repeated Cota's remarks to Officer Wright. Wright asked for Cota's address. Unable to interview Cota at the plant or at his home as he was not present at either location, Wright left instructions with Cota's wife for him to report to the police station as soon as possible. Within 1 or 2 hours after the call, Cota responded to Wright's instructions. Cota admitted to Wright that he had had words with the girls and that he had said he would take action against them if they continued to "mess around" with the other girls. To this, Wright replied that he would call Cota in again if he repeated his threats. As Von Dreden and Stapleton were preparing to leave the plant that evening, Hull remarked that she (Hull) was taking Stapleton to the office the next day. Von Dreden then said, "Valerie, if you should take Cheryl into the office I'm going too because you're the one that told me to go and get her when I was through my work." According to Von Dreden, this exchange took place as the girls were passing through a doorway that leads to the stairs. Von Dreden declared emphatically that she had no conversation with Hull that evening in the vicinity of a telephone. Thursday, November 21, Von Dreden called in sick. Sometime that morning, Hull told Burgess, according to Burgess, that she had attempted to talk to Stapleton the night before but Von Dreden had interrupted asking Hull if she wanted to fight. In the lunchroom the same morning, Cota apologized to Bunnell, and through her to Von Dreden and Stapleton, for his conduct the night before. He told Bunnell that the police had upset him, that he did not realize what he was doing and did not mean to frighten the girls. About this point, Underkofler entered and ordered them back to work.13 B. Interference, Restraint, and Coercion Threats 1. By Jeffrey Burgess The complaint alleges, and the answer denies, that on or about November 3, 1968 , Burgess, the assistant production manager, threatened "to discharge employees-if they continued their activity on behalf of the Union." On November 3, Von Dreden entered Burgess' office, unannounced and without invitation, while Burgess and Underkofler were talking to her husband. Von Dreden explained that she had heard that either Burgess or Underkofler had thrown a loaf of bread at her husband. Further, Von Dreden declared that her husband had been ordered to return to the plant after a night tour of duty and the meeting between her husband and management representatives presented an opportunity to ask that he be compensated for working during his free time. Her effort by its policy. 11 Patricia's husband. 12 Cota was not called as a witness. 13 The findings of fact regarding the Cota incident are based on a synthesis of the testimony of Von Dreden, Stapleton, Bunnell, and Officer Wright. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was to no avail because Underkofler ordered her to leave the office and her husband pushed her out the door. Later the same day, Von Dreden was summoned to the office where she was directed by Burgess and Underkofler to apologize for disrupting the meeting. Von Dreden complied and, as she was leaving, according to uncontro- verted and credited testimony of Von Dreden,14 Burgess pointed a finger at her and said, "You keep your nose out of this union business or 'you and your husband, Lorraine Bunnell, Cheryl Stapleton, Roger Lawton and Stanton Dorton will be the first out the door." It is clear and I find that the quoted statement of Burgess was a threat of reprisal, uttered to an employee during a period of union activities, and constituted coercion. Respondent thereby violated Section 8(a)(1). 2. By Claire Underkofler The complaint alleges, and the answer denies, that Underkofler, the production manager, (i) on or about November 21, 1968, and again on or about November 26, 1968, threatened employees "with economic reprisal for engaging in activities on behalf of and continuing their affiliation with the Union"; and (ii) on November 21 threatened employees with bodily harm for engaging in the aforesaid activities. About noon, on November 21, Bunnell went to Underkofler's office to obtain permission to leave the plant as she was not feeling well. Present at the time was Burgess. Bunnell testified, credibly and without contradiction, that Underkofler called her a hoodlum; told her she belonged in jail; accused her and the Union of sending Von Dreden and Stapleton - whom he characterized as hoods - to beat up two girls; and declared that, although he was 56 years old and had had a lung operation, he would take care of the union man. Finally, Underkofler told Bunnell, again according to uncontroverted and credited testimony of Bunnell, "Little girl, you better start keeping your nose clean and out of the Union because if you don't you won't even have a job here." I find that the above-quoted statement of Underkofler was a threat of reprisal for union activities and constituted coercion of an employee in the exercise of rights guaranteed under Section 7. By such conduct Respondent violated Section 8(a)(1). In his brief, the General Counsel asserts that he does not rely on Underkofler's statement to take care of the union man, uttered in the presence of Bunnell, as proof of an independent violation. Consequently, no finding is made with respect to it. On November 25 or 26, one Ann, an employee, told Bunnell that she had received a wage increase and asked whether it was reflected in her paycheck. After making the necessary computations, Bunnell replied in the affirmative. 14 Respondent argues that Von Dreden is not to be credited because of an omission in her employment application filed on January 31, 1969, with Sylvania, her employer at the time of the hearing . It is true that, in the space calling for the "name and address of former employer ," Von Dreden wrote "Claremont General Hospital, Elm St., Claremont." Von Dreden's explanation that no one told her to record all previous experiences must be discounted in view of the clear wording of the form . By way of a further explanation, Von Dreden averred that she did not show Cross Bakery as her former employer because she was afraid Sylvania a "nonunion shop" would not hire her if it knew she had been employed in a "union shop." Soon thereafter Burgess called Bunnell to his office. Burgess locked one door, Underkofler the other. According to the unimpeached and credited testimony of Bunnell, Underkofler, on this occasion, accused Bunnell of "snapping" a paycheck out of the hands of an employee; told her it was none of her business; observed that she was not interested in her job as she had not followed his instructions "to keep it [job) out of the union business"; cautioned that if she persisted she would "be in a lot more trouble . . ."; and, again warned that she (Bunnell) won't have a job if she doesn't keep her nose out of the Union. I conclude and find that by threatening discharge in the event Bunnell continued her union activities, Respondent violated Section 8(a)(1) of the Act. C. Alleged Discrimination 1. The suspension and subsequent discharge of Patricia Von Dreden As stated above, Von Dreden was out sick on November 21. When she returned to work about 7 a.m., Friday, November 22, she found that her timecard had been removed from the rack. She asked her husband what it meant and he said someone in the office wanted to see her. Von Dreden went to the office where Burgess asked her about Monday night. Von Dreden replied, "If you mean the fight, I can't tell you anything about it." Burgess then inquired about Wednesday night and Von Dreden said, if the question concerned Eli Cota coming into the plant and asking Bunnell to fight and calling her "a woman beater," she would respond to it. Burgess replied that he had witnesses who assert that Cota was not in the plant that evening. He then called Valerie Hull and Cota, and Hull called Pat Russell. Von Dreden repeated her story before them. In reply, Cota said he was not around, Hull agreed, and Russell disclaimed any knowledge of the Cota incident. Von Dreden then suggested that Burgess talk to four named employees all of whom allegedly were present at the time in question and Burgess said that he would do so.15 Finally, according to Von Dreden, Burgess declared that he had no alternative but to suspend her indefinitely because she had tried to pick a fight with Cota. Burgess testified that he told Von Dreden she was suspended because of her participa- tion in a fight with two girls and because she had attempted to pick a fight with a leadgirl. Von Dreden's suspension notice, dated November 24, reads, in pertinent part, "suspended indefinitely for threatening lead girl. 11/22/68." I credit Burgess over Von Dreden and find that the reasons given Von Dreden for her suspension at the close of the meeting on November 22 were those set forth by Burgess in his testimony on the stand.16 Thereafter, and on the same day, Burgess took the The explanation is speculative, self-serving, and devoid of factual support. Misrepresentation, whether by commission or omission, is not condoned but the misrepresentation here is insufficient to discredit the uncontradicted testimony of Von Dreden . In this regard, it is significant that Burgess, who was present during the hearing and testified on three different occasions, did not deny the statement attributed to him by Von Dreden and that Underkofler was not called as a witness. 15 These findings are based on a composite reading of the credited testimony of Von Dreden and Burgess. 16 Burgess asked a general question about Wednesday night but Von CROSS BAKING COMPANY following steps to investigate the occurrences on Monday and Wednesday nights: He contacted Cola who, this time, admitted that he had been in the plant Wednesday night. He questioned Russell Magoon 17 as to what he knew about the incident. Magoon reported that, while in the shipping room Wednesday evening, he had observed Von Dreden interrupt a conversation between Hull and Stapleton near the telephone; that Von Dreden asked Hull, "Do you want to fight? Do you want to fight?"; and that Hull backed away in silence. According to Burgess, this was his second conversation with Magoon and was initiated to confirm findings he had reached the day before in the earlier conversation. He summoned Bunnell to his office during her lunch period. Initially, Burgess asked about Wednesday night but, before Bunnell could respond, he interrupted announcing that he had "expelled" Von Dreden. He went on to say that he had received information to the effect that Von Dreden had "beat up or threatened to beat up Valerie." Bunnell protested but Burgess declared that Hull had a witness in the person of Pat Russell, that he had to go by what Hull said and that "Pat [Russell] agreed to it." After this, Burgess returned to his,question about Wednesday night. Bunnell explained that Cota had entered the plant during his nonworking hours and had threatened her. Burgess asked for proof and Bunnell mentioned "the men on nights." About 20 minutes later, Burgess again called Bunnell to his office. This time he asked about Monday night but Bunnell refused to say anything about the events that evening asserting that she had been instructed by her lawyer not to discuss the matter. Burgess then said that he had heard the other girls' story and now desired to hear Bunnell's, adding that he had been told "it was about the union." Bunnell denied that the Union was involved. Burgess pressed his inquiry but Bunnell continued to refuse to tell him anything about Monday night.18 Sometime on November 24, Von Dreden called Burgess and asked if her suspension was up. Burgess replied, "Not until my lawyers decide." On November 25 or 26, Von Dreden called again and this time asked whether the lawyers had decided. Burgess answered, "I have just come to the conclusion Pat that you are discharged." Von Dreden asked what for and Burgess said, according to Von Dreden, "for threatening Valerie." Von Dreden denied that she had threatened Valerie. The separation notice issued to Von Dreden and dated November 26 states that she was discharged for threatening leadgirl (Valerie Hull). Burgess denied giving Von Dreden a reason for the discharge on the telephone but, in response to a question from the General Counsel, asserted that she was discharged for threatening the leadgirl on Wednesday night and because of her involvement in the Monday night incident. Dreden focused on Cota. From all that appears, Burgess backed into a discussion of the Cota affair. Further, it is unreasonable to believe that, after stating that he had received reports to the effect that Cota was not in the plant Wednesday night - supported at the suspension meeting by statements from Hull and Cota himself, Burgess would tell Von Dreden, a few minutes later, that she was suspended for threatening Cota that night. For these reasons, as well as demeanor, I do not credit this testimony of Conclusion 205 The General Counsel contends that the Respondent suspended and later discharged Von Dreden because of her union membership and activities. The Respondent, con- versely, argues that Von Dreden was suspended and subsequently discharged because she had threatened a leadgirl and because of her participation in the fight. At the hearing, Burgess amplified, testifying that he suspended Von Dreden because he wanted to investigate the circumstances surrounding the fight and the alleged threat to the leadgirl. Von Dreden was an ardent supporter of the Union almost from the inception of its organizational campaign. She had distributed union cards at the plant during her breaks and had held employee gatherings at her home. That her union activities were known to the Respondent prior to her suspension and discharge was admitted by Burgess and such knowledge is clearly evident in his warning to her on November 3 to keep her nose out of the union business. At the outset, it is necessary to remember that the Cota incident and the alleged threat to Hull were two separate and distinct events and to avoid confusing the two, both having occurred in the plant the same evening. There is no dispute, in view of the credited and unchallenged testimony of Bunnell, Stapleton, and Von Dreden, but that Cota threatened Bunnell and Stapleton Wednesday night. Cota finally admitted his presence in the plant on the night in question to Burgess and admitted the threat to Officer Wright. The Hull incident was an entirely different matter. It will be recalled that Hull reported to Burgess Thursday morning that she had been threatened by Von Dreden Wednesday night. Thereafter, Burgess conducted an investigation but the results were not such as might lead a reasonable man to conclude that Von Dreden had in fact threatened Hull and that Burgess had a reasonable basis for believing that she had done so. This is because (1) I credit Von Dreden that she did not threaten Hull, (2) Von Dreden is supported by Bunnell, (3) Hull did not testify, (4) neither Magoon nor Russell testified at the original hearing, although both, and presumably Hull, were still employed by the Respondent and no excuse was offered for its failure to call them,19 and (5) Stapleton, the only other witness to the alleged threat, was interrupted by Burgess when she sought to tell him about Wednesday night. Although the evidence is insufficient to establish a defense based on the asserted threat to Hull, such a finding does not end our inquiry because, as noted, Respondent has the traditional two strings to its bow. In this instance, the second string is the Redwater Brook Road incident, Monday night. Manifestly, the events of that evening were a matter of deep concern to Burgess. One employee had been disabled and would probably be away from work for an extended Von Dreden. '7 Neither Hull, Russell, nor Magoon was called as a witness at the original hearing. Is The findings with regard to the two conversations with Burgess are based on the credited and uncontroverted testimony of Bunnell. 19 1 draw an inference adverse to Respondent from this. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period drawing disability compensation under the Compa- ny's group insurance policy, and five, including the disabled employee, were parties in criminal proceedings in the local court. Self-interest and curiosity sufficiently aroused, Burgess sought, as late as Sunday, November 24--or 1 or 2 days before the discharge-"to get to the bottom of what happened Monday night," but Stapleton, Von Dreden, and Bunnell refused to cooperate and, in the end, Burgess was left with only unimpeached reports from Loiselle and Platt about a vicious assault upon Loiselle and with clear and direct evidence of the effects thereof. It, therefore, becomes fairly inferable that what really disturbed Burgess, Hull's alleged complaint notwithstand- ing, was the occurrence Monday night and the reverbera- tions from that event which reached the plant area Wednesday night, the first regular workday thereafter. In this connection, it is not without significance that Burgess did not discharge Von Dreden at once but, instead, suspended her and continued his investigation. In view of the foregoing andthe record as a whole, I conclude that the General Counsel has failed to adduce convincing evidence that the Redwater Brook Road incident was used as an excuse to suspend and later to discharge Von Dreden. On the contrary, I find that Burgess was in fact convinced that Von Dreden was guilty of conduct justifying her suspension and discharge, and that Burgess' union animus and Von Dreden's union activities did not play a material part in this decision 2° Surely, Von Dreden's union activities cannot shield her from a discharge for cause and even employers hostile to a union do not forfeit their right to discharge for this reason.21 Finally, it is immaterial that an unresolved question concerning Von Dreden's participation in the affray was pending in the local court at the time disciplinary action was taken against her.22 I, therefore, find and conclude that Respondent did not violate the Act by suspending and discharging Patricia Von Dreden. 2. The suspension of Cheryl Stapleton After an absence of I or 2 days, Stapleton returned to work Sunday, November 24. About 7:30 a.m. that day, Burgess called Stapleton to his office. First, Burgess stated that he wanted to get to the bottom of the Monday night occurrence and then asked what happened that night. Like Von Dreden and Bunnell, Stapleton replied that she had been advised by her lawyer not to discuss the events of that evening. After this Burgess queried Stapleton about Wednesday night and she said that she was willing to discuss the Wednesday night incident because it took place on company time and property. However, before she could respond, Burgess interrupted and repeated his inquiry about Monday night. Again Stapleton refused to furnish any information about the events of that evening this time saying it was no concern of the Company. To this, Burgess 20 See Loffland Brothers Company, 166 NLRB No. 3; Refiners Transport & Terminal Corporation, 164 NLRB No. 99; N.L.R.B. v. I. V., Sutphin Co. - Atlanta, Inc., 373 F.2d 890 (C.A. 5); Distinguish N.LR.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1). 21 See, e.g., Electra Controls, Inc., 161 NLRB 307, 317; N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (C.A. 2). and cases cited. 22 See Loffland Brothers Company, supra, fn. 5. 23 These findings are based on the credited testimony of Stapleton replied, "What do you mean it's no concern of the Company's. I have a girl whose [sic ] out on sick [leave] who has doctor's papers for the right to be out sick." About this point, Burgess told Stapleton that Loiselle and Platt had given their side of the story and he wanted to hear the other side. Once more he pressed his question about Monday night but Stapleton steadfastly refused to discuss the matter. Finally, Burgess told Stapleton she was suspended for 3 days. Asked for a reason for the suspension, Burgess replied it was because she had refused to tell him about Monday night and the inference he drew therefrom that she was involved in the fight .23 Stapleton did not receive a separation notice but her timecard was marked to show a 3- day suspension. Conclusion The General Counsel argues that Stapleton was suspend- ed because she had joined the Union and engaged in other concerted activities. The Respondent attributes the suspen- sion to Stapleton's involvement in the fight Monday night. Stapleton came to Respondent's employ shortly after the start of the union campaign. She signed a union card, attended a Board hearing in connection with the \represen- tation petition, and her union activities were admittedly known to the Respondent. In my opinion, Stapleton was not suspended for being active on behalf of the Union and the reason assigned for her suspension is not a pretext to mask or disguise a discriminatory motive. Despite Burgess' urging and expla- nations as to why he sought information about the Redwater Brook Road incident, Stapleton stubbornly refused to discuss the matter. As indicated above, Burgess' concern about the fight is readily understandable particu- larly in view of the fact that the Company was financing, through its premium payments, the cost of Loiselle's recovery.24 The evidence, therefore, militates against the conclusion that it was Burgess' union animus, rather than Stapleton's refusal to cooperate in the investigation and the inference drawn therefrom that she was involved in the fight, which was the basis for the decision to suspend her. Accordingly, I conclude and find that the General Counsel has not sustained the burden of proof required to establish that Stapleton's 3-day suspension was a violation of Section 8(a)(3) of the Act. IV. THE REPRESENTATION CASE A. The Challenges As Patricia Von Dreden was lawfully suspended then discharged in November 1968, she was not an employee of the Company at the time of the election in January 1969 and, therefore, was ineligible to cast a ballot. The challenge to her ballot must be sustained. corroborated, in major parts, by Burgess. 24 The group insurance program is financed by joint contributions from the employer and employees. At the time of her disability, Loiselle had contributed nothing to the plan obviously because of the Company's delay in approving her request for coverage. Since her return to work in January, Loiselle has made regular contributions to the plan but it is not clear from the record whether they include retroactive payments to the date of coverage or are prospective only. CROSS BAKING COMPANY 207 As the Union withdrew its challenge to the ballot of Valerie Hull at the resumed hearing and agreed to her inclusion in the voting unit, her vote may be counted. B. The Objections In addition to the foregoing challenges I have before me Objections to Conduct Affecting the Results of the Election also referred by the Regional Director for disposition. The objections are discussed , seriatim, as follows: 1. The dissemination of allegedly false and misleading wage information Employees of the Company were invited to attend a union meeting held on January 17 at the Claremont Library Building. Present for the Union were President Kralstein, International Representative Leo J. Dell'Olio, and Gene Montroni. Also in attendance were about 11 employees of the Company,25 Sandra Davis, and one or two employees of Ward Foods, Inc., Bakery Division. At one point during the meeting, Dell'Olio read from six pay statements issued to Davis while she was employed by Ward.26 Dell'Olio credibly testified that he read only gross earnings and this testimony was corroborated by Stanton Dorion and Lorraine Bunnell ; the latter having averred that Davis, who sat beside her while Dell'Olio read from the pay stubs, confirmed the accuracy of the report. Russell Magoon, however, challenged the report and, according to the credited testimony of Dorion, Bunnell, and Patricia Russell, was invited to inspect the statements and did. His denial of the credited testimony is, therefore, rejected. According to Russell, at some point during the reading of the Davis earnings, an unidentified union official or member stated that in 1 week Davis worked 36 hours and earned $90 plus; and, in another, worked in excess of 40 hours and earned $100 plus. Further, Russell and Magoon testified that there was no mention of overtime by the union spokesman. On the other hand, Dell'Olio averred that certain ink and pencil numerical notations in the upper left- hand comer of each statement, purporting to show the number of hours worked, were not on the statements while they were in his possession27 and he denied mentioning hours worked by Davis. It is noted that the printed form itself contains no provision for recording the number of hours worked by an employee. In evaluating the foregoing testimony, I credit Dell'Olio over Russell as his testimony was straightforward, certain, and supported by Bunnell. Conversely, Russell, at one point, stated that an unidentified union official or member, not in the hearing room, read the statements; later, that the official could have been Dell'Olio; and, finally that she could not recall who read them. In view of her uncertainty, vacillation, and general confusion, as well as demeanor, I regard Russell's testimony as unworthy of reliance. I find, 25 Russell Magoon, Valerie Hull, Patricia Russell, Patricia Von Dreden, Lorraine Bunnell, Cheryl Stapleton, Lawton, Stanton Dorion, Bouther, LeBlanc, and Platt. 26 Davis worked for Ward for a period of 8 or 9 weeks ending December 16. 27 Clarence Smith, Ward's controller, speculated that the markings were probably made by Ward's payroll clerk. therefore, no credible evidence that Dell'Olio made the remarks alluded to by Russell. Moreover, even assuming such statements were made by Dell'Olio, they were ambiguous in nature and, in the context in which they were uttered, cannot reasonably be construed as a material misrepresentation of Davis' wage earnings. Further, any questions the employees may have had concerning this matter could easily have been resolved by the simple expedient of asking Davis who, as stated, was present at the meeting.28 The Employer also contends that the Union falsely advised the employees of a wage increase which it claimed it had obtained for its members. In this regard, the record shows that, in a letter mailed to the homes of the employees on January 17 and dated January 18, the Union appealed to them to vote "Yes" in the coming election and warned that the Company's only concern was to defeat the employees so that it can continue paying low wages and avoid "proper" fringe benefits. The letter asked rhetorically why the employees must be treated as second class citizens responding with the suggestion that they follow the lead of the employees of Ward Baking Company, White River Junction, Vermont. It Continued, "As you know, they voted 64 to I to join this union. They have received 75 cents per hour in wages and fringe benefits-in their first contract with this Union. Many of you were at the party given by the Ward Baking employees saw and heard for yourself how happy they are to be part of this union. They are happy to pay the $4.00 per month after receiving a $30.00 per week increase in wages and other benefits." Finally, it exclaimed,"Joining this Union will better your standard of living. On January 22, 1969, VOTE IN THE LEFTHAND CORNER-YES!" Monday afternoon, January 20, George Edson, the Company's vice president, was shown a copy of the Union's letter by either Burgess or Underkofler. Edson testified that, after examining the letter, he concluded that the statement therein that Ward's employees had received a 75- cent-per-hour wage settlement was inaccurate because the Burlington Free Press reported on October 7, 1968, that the Union had settled for about 65 cents per hour.m Edson discussed the matter with his lawyer the next morning but, according to Edson, as "there was a 24-hour period before the election at which time we could do nothing," they decided it was too late to prepare a rebuttal. Edson also testified that the newspaper report was his only basis for concluding that the 75-cent-per-hour figure was fictitious. It is clear enough that a newspaper report is not evidence of the accuracy of statements made therein.30 The Company, however, offered in evidence copies of Ward's collective-bargaining agreement with Local Union 28 See Hollywood Ceramics Company, Inc., 140 NLRB 221, 225. 29 The newspaper account reads, in pertinent part, that, "the union reported a contract settlement with Ward calling for a package of 60 cents per hour over a 3-year period, including additional health and welfare and major medical benefits, as well as improved pension benefits and additional vacations." 30 See 7 Wigmore, Evidence, § 2150 (3d ed.) 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 573, New England Joint Board , Retail, Wholesale & Department Store Union , CIO,31 and it current agreement with the Union and, on the basis of a comparison of the wage schedules , asserts that the true general increase in wages and fringe benefits obtained by the Union for its members at Ward was only 60 cents per hour or $24 per week and that the 15-cent discrepancy was due to the fact that the Union deliberately took credit for certain fringe benefit contributions which had existed under Ward's prior contract with Local 573. I find no merit in this objection. The standards which the Board applies in determining whether an election should be set aside where, as alleged here, there has been a substantial misrepresentation is set forth in Hollywood Ceramics Company, Inc., supra, p. 224. Under these standards , a misrepresentation need not be shown to be deliberate but it must represent a "substantial departure from the truth" and must be of such a character as to have had "a significant impact on the election." Accepting the accuracy of the Employer's computations for the purpose of discussion only, I am of the opinion that the Union's letter of January 18 did not contain material misrepresentations which impaired the employees' freedom of choice within the intent of Hollywood Ceramics. For one thing, the Union gave the name and location of the company with which the comparison was being made thus providing the employees with a means of evaluating the information contained therein . For another, the Employer had an opportunity to make an effective reply. The letters were mailed to the employees from a motel in Claremont on Friday, January 17, and, presumably, were received no later than early Monday morning , January 20, or 2 days before the election . As stated, Edson himself received a copy Monday afternoon from either Burgess or Underkofler, who obviously had obtained the copy sometime previously. It would not have taken much time for Edson to have communicated with the Ward officials if, as he asserts, he had reason to believe that the Union had materially misrepresented the wage settlement , particularly as the Employer appears to maintain cordial relations with Ward and as the two plants are only about 25 miles apart. In this connection, it is not without significance that Charles Smith, the bakery controller at Ward and also an official conversant with its labor relations policy, was not questioned about the alleged 75 -cent settlement despite the fact that he testified under subpena as a witness for the Employer. Finally, the Employer's apparent reliance on the Peerless Plywood32 rule, as an excuse for its failure to rebut the alleged misrepresentation, is misplaced as the rule does not apply to campaign material. For the reasons hereinabove set forth , I recommend that this objection be overruled. 2. Patricia Von Dreden's alleged involvement in threats to an assault of other employees In this objection the Employer asserts that Von Dreden acted as an agent for the Union but the evidence shows only that she was a rank-and-file employee without official status with the Union. 31 Local 100's predecessor. 32 Peerless Plywood Company, 107 NLRB 427. In all other respects, the evidence relied on by the Employer to support the objection is essentially the same as that considered above in the discussion of the Redwater Brook Road and Cota incidents . To the extent, therefore, that I have already dealt with the substance of this objection, I consider it an undue burden upon the record and the reader to repeat the discussion in a parallel context. It will suffice to say, however, that, even assuming Von Dreden was the aggressor in the affray, the Union is not responsible for her conduct since there is no evidence that she was an agent of the Union at the time or that the Union authorized, condoned, or ratified her actions.33 I also recommend that this objection be overruled. Accordingly, I conclude and find that the Union did not, by its conduct, interfere with or affect the results of the election conducted on January 22, 1969. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above , have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, I shall recom- mend that the Board issue an order requiring that it cease and desist therefrom and take certain affirmative action including the posting of appropriate notices designed to effectuate the policies of the Act. Having found that Respondent has engaged in acts of interference, restraint, and coercion by unlawfully threaten- ing employees and thereby having violated Section 8(a)(1) of the Act, I shall recommend that Respondent cease and desist therefrom. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent 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 threatening to discharge employees, and by threatening employees with economic reprisal if , in each instance, they continue their activities on behalf of and affiliation with the Union, the Respondent has engaged in interference, restraint, and coercion of employees in the exercise of rights guaranteed in Section 7 of the Act and, by this conduct, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The Respondent did not suspend and discharge 33 See Orleans Manufacturing Company, 120 NLRB 630; Pittsfield Shoe Company, Inc., 119 NLRB 1067. CROSS BAKING COMPANY 209 employees and thereby discriminate against them in regard to their hire or tenure or terms or conditions of employment within the meaning of Section 8(a)(3) and Section 2(6) and (7) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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." 35 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." RECOMMENDED ORDER Upon the basis of the above findings of fact, conclusions of law, and upon the entire record, it is hereby recommend- ed that Cross Baking Company, Inc., its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to discharge employees and threatening employees with economic reprisal if they continue their activities on behalf of and affiliation with the Union. (b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action found necessar- y and designed to effectuate the policies of the Act: (a) Post at its place of business in Claremont, New Hampshire, copies of the attached notice marked "Appendix." 34 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's 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. (b) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.35 IT IS FURTHER RECOMMENDED that the allegations in the complaint not found to have been sustained in the Decision herein be dismissed; that the Employer's objections to the conduct of the election, held on January 22, 1969, be overruled in their entirety; and that the results of the election be certified. 34 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 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 threaten to discharge our employees or threaten them with economic reprisal if they continue their activities on behalf of and affiliation with Bakery & Confectionery Workers' International Union of America, Local 100. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the right to self-organization, to form, join, or assist the above- named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, in conformity with Section 8(a)(3) of the Act. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named labor organization or any other labor organization. CROSS BAKING COMPANY, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 20th Floor, John F. Kennedy Federal Building, Cambridge and New Sudbury Streets, Boston, Massachusetts 02203, Telephone 617-223-3300.