Sanfair Bakeries, Inc.

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