St Louis Bagel Bakers, Inc.

ST LOUIS BAGEL BAKERS St Louis Bagel Bakers, Inc. and Bakers Union No. 4 of Greater St. Louis, affiliated with Bakery and Confectionery Workers' International Union, AFL- CIO. Case 14-CA-8569 June 1, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On January 30, 1976, Administrative Law Judge Platoma P Kirkwood issued the attached Decision in this proceeding Thereafter, Respondent filed ex- ceptions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, St Louis Bagel Bakers, Inc, Crestwood, Missouri, its of- ficers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified 2 1 Substitute the following paragraph for 1(e) "(e) In any other manner interfering with, re- straining, or coercing employees in the exercise of their right to self-organization, to form, loin, or assist any labor organization, to bargain collectively through representatives of their own choosing, to en- gage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any and all such activities " 2 Substitute the attached notice for that of the Administrative Law Judge 1 We find in agreement with the Administrative Law Judge that Respon dent engaged in a number of violations of Sec 8(a)(1) of the Act including a threat to have employee Michael Coogan arrested for stealing an official's car which he used with the latter's permission However the Administrative Law Judge at one point in her Decision inadvertently referred to that offi- cial as Stanley rather than Ronald Kanofsky 2 As this case involves unlawful discharges, we shall require a broad or- der SKRL Die Casting, Inc 222 NLRB 85 (1976) APPENDIX 307 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing before an Administrative Law Judge in which all sides had the opportunity to present their side of the case, it has been decided we violated the National Labor Relations Act We have been or- dered to post this notice and to carry out its terms WE WILL NOT interrogate employees in a coer- cive manner concerning their or any other em- ployees' union membership or affiliation WE WILL NOT create the impression among our employees, or give them to understand, that their union activities are or will be under our surveillance WE WILL NOT threaten employees with more arduous working conditions, arrest, or other harmful economic consequences because of the exercise of their right under the Act to join or maintain membership in Bakers Union No 4 of Greater St Louis, affiliated with Bakery and Confectionery Workers' International Union, AFL-CIO, or any other union or to engage in other concerted activity protected under the Act WE WILL NOT discriminate against any em- ployee in regard to hire, tenure, or terms or con- ditions of employment, by discharging him or by withholding monies due him because of his affiliation with or sympathy for Bakers Union No 4 of Greater St Louis, affiliated with Bak- ery and Confectionery Workers' International Union, AFL-CIO, or any other labor organiza- tion or because of the exercise by him of his right to engage in any other concerted activity protected under the Act WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their right to self-organization, to form, loin, or assist Bakers Union No 4 of Greater St Louis, affiliated with Bakery and Confectionery Workers' International Union, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities WE WILL offer Michael Coogan, Steven Zim- merman, Robert Polsky, Thomas Suchan, and Richard Stephens immediate and full reinstate- 224 NLRB No 37 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment to their former positions or, if such posi- tions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing if neces- sary any employee hired subsequent to June 4, 1975, and make them whole for any losses they may have suffered as a result of any failure to reinstate them beginning 5 days after their appli- cation for reinstatement WE WILL reimburse Richard Stephens for monies unlawfully withheld from him on June 8, 1975 All our employees are free to become or remain members of the above-named labor organization or any other labor organization ST Louis BAGEL BAKERS, INC DECISION STATEMENT OF THE CASE PLATONIA P KIRKWOOD, Administrative Law Judge This matter was heard by me at St Louis , Missouri, on Septem- ber 11, 12, and 16, 1975 The complaint was issued on August 13, 1975,1 pursuant to a charge filed by the above- named Charging Party on June 6 The complaint alleges that the Respondent interfered with , restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act in the respects below de- scribed and that Respondent 's unlawful conduct caused or prolonged a strike by its employees which commenced on June 3 or 4 Respondent's answer admits the jurisdictional allegations of the complaint but denies the commission of unfair labor practices General Counsel and the Respondent respectively filed posthearing briefs Upon the entire record in this case, including my obser- vation of the witnesses and consideration of the briefs filed by General Counsel and Respondent, I make the follow- ing FINDINGS OF FACT I THE EMPLOYER INVOLVED St Louis Bagel Bakers, Inc, is engaged at its sole facility in Crestwood, Missouri, in the manufacture and nonretail sale and distribution of bagels, breads , and specialty rolls Its stock is owned by members of a single family-Helen and Stanley Kanofsky and their sons, Ronald and Arthur Kanofsky During the year ending December 31, 1974, a period representative of Respondent's operations, Respondent purchased more than $50,000 worth of baking materials, 1 Unless otherwise mentioned all dates hereafter set forth are for the year 1975 supplies, and other goods and materials from enterprises located in the State of Missouri, each of which enterprises had received the said goods and materials from points lo- cated outside the State of Missouri Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Bakers Union No 4 of Greater St Louis, affiliated with Bakery and Confectionery Workers' International Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Introductory Statement, The Nature of the Issues Respondent's bakery was staffed, at times here relevant, with between 13 and 19 employees 2 About one half of these employees worked on the daytime shift which com- menced at 10 a in and ended at about 6 p in The remain- ing employees began their 8-hour shifts at various times between 10 p in, when the plant began its daily production process, and 6 a in This latter group of employees is some- times referred to herein as the "night crew " The alleged unfair labor practices are concerned solely with night crew workers, five of whom are named in the complaint Rich- ard Coogan , Steve Zimmerman, Richard Stephens, Bob Polsky, and Tom Suchan All of the events described in the complaint are dated in May and June There is credible evidence that, in May, some of the em- ployees composing the night crew began feeling restive and uncomfortable about the mechanical condition of one of the machines-called a baller-which some of them were required to operate as part of the bagel preparation pro- cess 3 The baller was an old machine which Respondent had purchased some time ago as a used product and, from time to time, one or another of its parts would break At the dates here relevant, one of the parts which suffered damage was a handle attached to a plate that functioned as a pressure device so that when it was pushed down on dough applied to a bottom surface, the machine was acti- vated in a manner which formed the dough into balls of a predetermined size Respondent had replaced the defective or damaged handle with a home-made combination bar and pipe which served to render the machine operable, though less efficiently so than it would have been with the handle designed by the manufacturer With progressive use, the home-made handle developed, by May, a slippage 2 The exact number of employees is not shown in the record The testimo- ny of employees involved seems to indicate that there were about 13 bakery employees whereas the testimony of the Kanofskys seems to indicate there were about 19 or 20 Some of the employees engaged in the operations were also relatives of the Kanofskys , but not officials or stockholders 3 The machine was also used by the day shift employees for the prepara- tion of other of Respondents bread products The evidence here recited concerning the condition of the bailer appears in part in the testimony of the five workers above named , all of whom testified as General Counsels witnesses and in part in the testimony of another employee on the night crew-Mike Sylvester Burnside-who testi- fied as a witness for Respondent I credit that testimony ST LOUIS BAGEL BAKERS condition which caused the pipe or bar to fall to the floor and which had resulted in injury to some employees-al- beit of a minor nature 4 Complaints about the handle slip- page were voiced by some night crew workers to manage- ment officials, and, in response to one of these complaints, management agents had promised to correct the condi- tion 5 No corrective action had, however, been taken by the date the events described by the complaint took place Beginning on May 9, some of the employees initiated union activity and thereafter many of them signed authori- zation cards On May 16, a representation petition was filed (Case 14-RC-7922) The complaint alleges, in part, that Respondent then en- gsged in unlawful interrogation of Polsky and Coogan and made certain threats to them in order to discourage the union activity On June 3, Coogan and Zimmerman, the first two of the night crew to report for work, concertedly refused to oper- ate the baller and went off the job Stephens, a third mem- ber of that crew-next due on the job-joined in that re- fusal and did not turn up for his scheduled shift Two others-Polsky and Suchan walked off the job while on shift the following morning, June 4 The five who thus withheld their services were all school and social friends The complaint charges that on June 4, Respondent dis- charged striking employees Coogan and Zimmerman and threatened and took certain other reprisal action against them and others, all because the employees had engaged in a protected strike activity Respondent denies the commission of any of the con- duct attributed to it by the complaint It also asserts, as an affirmative defense, that any of the conduct as it might be found to have committed is outside the reach of the Act It premises the latter claim on two contentions (1) that Coo- gan and Polsky were supervisors within the meaning of the Act, and (2) that the concerted strike activity which Coo- gan instigated, and in which the other employees joined, was unprotected because, so Respondent asserts, it did not in fact stem from any reasonably cognizable concern over the safety of employees assigned to operate the baller ma- chine The issues thus posed turn, in part, on disputed ques- tions of fact, and, in part, on disputed questions of law I reach the factual issues first B The Evidence Bearing on the Unfair Labor Practices 1 Respondent's reaction to the advent of the Union Union activity among the Respondent's employees be- gan on or about Friday, May 9, when a group of them met with the union agent at the union hall in St Louis, Missou- ri 6 Authorization cards were signed at that time and later 4 A clamp or clip whose function was to hold the handle in place so that the bailer would operate automatically was also broken in May and, in its absence, the operators would have to hold the handle down manually This clip was repaired in May Coogan testified, without contradiction, that Ronald Kanofsky, the Respondent's official in charge of maintenance, had promised to have the machine fixed by Monday June 2, a day when the plant was not operating 6 There is no evidence of any union activity before that date 309 in a number denied sufficent to support the filing of the representation petition on Friday, May 16 'i Those who signed cards included the five employees named in the complaint in this case as discrimmatees or as strikers and Robin Romine, another employee-no longer working at the time of the hearing Respondent unquestionably acquired knowledge of the union activity with the filing of the representation petition, if not before As noted earlier, General Counsel claims that Respondent reacted to this by engaging in unlawful efforts to discourage the activity and to prevent effectuation of the employees' organizational efforts In support of this claim, General Counsel adduced the following testimony by Coo- gan and Polsky On a Saturday about a week after the union meeting,' Coogan and Polsky went together to the plant office to get their paychecks, and Coogan telephoned Authur Kanof- sky, Respondent's president, to so advise him 9 After dis- cussing the checks, Kanofsky asked Coogan if he knew anything about "this Union " Coogan replied that he didn't, and Kanofsky then said that he thought Robin (Ro- mine) and Bob (Polsky) were the instigators 10 Polsky then got on the telephone and Arthur Kanofsky asked him, "What do you know about this Union stuff " Polsky re- plied, "I don't know anything but if I hear anything I'll let you know " The following Monday, while Coogan was at work, Ar- thur Kanofsky came up to him and said that he was think- ing "about the Union thing" and that he thought that Rob- in and Richard (Stephens) "had something to do with it " About a week later, when Polsky was working with Ron- ald Kanofsky, another of Respondent's officials, the two discussed the Union Kanofsky said that he "suspected that Robin was in on the Union", that Erline (Whitaker) another employee was "the instigator", and that "he was going to make it so that whoever was on the Union would want to quit " He also said that a lawyer was going to get a list of the employees involved for him 11 On May 29, Coogan telephoned Arthur Kanofsky at home to ask him whether he knew that his mother, Helen Kanofsky, had directed that one of the employees, Steve Zimmerman, was not to report for work that night 12 Ka- nofsky said that he did The following Monday, June 2, Kanofsky called Polsky and Coogan into his office to ex- press his displeasure that Coogan or Polsky had tried to question the authority of any of the Kanofsky family over the employees Polsky tried to explain, but Kanofsky inter- rupted and said he did not want to hear anything out of 7 Although the record indicates that a hearing was directed on issues raised by this petition, it does not show what happened to the representation case thereafter B That Saturday would be May 17 v The plant office was closed at the time, but Coogan had a key 10 It also appears that in Kanofsky's exchange with Coogan , some men- tion was made as to whether Polsky, Coogan, and Dizzy Dunlop (a day employee) were supervisors who would not be "affected" by the union peti- tion or organizational effort u At the time of these events Ackerman, counsel who appeared for the Respondent at this hearing, was not Respondents counsel 1 Polsky had reported to Coogan that Helen had told him (Polsky) to tell Steve Z,mmerman not to come in Zimmerman worked with Coogan for most of his shift 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Polsky, that he was "ready to fire him" because he (Kanof- sky) thought he had "something to do with the Union " Kanofsky also mentioned the name of Richard (Stephens), Steve (Zimmerman), and Robin (Romme), and said he thought "they had something to do with the Union" and would "find out for sure that morning," and would "make it so hard on them that they would want to quit by the end of the week " Coogan retorted, "Well what about this stuff going on about not fixing the baller when Ronnie (Kanof- sky) had time to wash the walls You come in and the walls are nice and shiny but the baller is nice and broken " Ka- nof sky replied, "It's going to be fixed " 13 Arthur and Ronald Kanofsky, testifying as Re- spondent's witnesses, both respectively denied in gener- al terms having issued any reprimands or threats to any employees that any of them in any way would be penalized because of any union activities, or having otherwise made any insinuations to that effect But I do not credit their denials I find, rather, that the above events occurred sub- stantially as described by Coogan and Polsky, whose testi- mony I credit Both impressed me, in general, as attempt- ing earnestly to be truthful in their answers, and their testimony about the various events they were asked to de- scribe was mutually consistent, and had the ring of truth I conclude and find, accordingly, that Respondent in fact questioned Coogan and Polsky about their knowledge of union activities, gave them the impression that it intend- ed to keep the activities of the employees under surveil- lance and threatened that it would make working condi- tions more arduous for the employees so that those who had joined the Union would want to quit This conduct was clearly proscribed by Section 8(a)(1) of the Act unless, as Respondent claims, Coogan and Polsky were supervi- sors within the meaning of the Act For the reasons ex- pressed below, I reject that claim as unsupported by the relevant evidence 2 The supervisory status of Coogan and Polsky Coogan was identified by the Respondent as the bagel dough preparation supervisor-foreman and Polsky as the bagel oven baking supervisor-foreman Coogan's shift be- gan at 10 p in , and Polsky's at 4 a in Each performed his assigned functions with a crew of two or three employees and, according to General Counsel, the relationship of each to the employees he worked with was no more than that of a leadman to less experienced employees Accord- ing to Respondent, however, the relationship of each to such employees was a supervisory one and included the power to hire, discharge, and responsibly direct the work involved The question of whether Coogan and/or Polsky pos- sessed the authority to determine or affect the employee status of any employee turns on resolution of a partial con- flict between the testimony given on the subject by Arthur Kanofsky, Respondent's president, on the one hand, and that given by the employees involved on the other Kanofsky testified that Coogan and Polsky "employed" 13 Ronald Kanofsky had told Coogan the day before that he was waiting for Monday, a day the plant was closed , so that a piece could get welded Steve Zimmerman-a member of Coogan's crew, and Tom Suchan-a member of Polsky's crew, and that Coogan "fired" another member of his crew, Drew McNillis His testimony on direct on the subject was as follows Q How was their employment with your company determined9 A Well, Mike Coogan and Bob Polsky confronted me with he knew some people that needed a job, and they were good workers, and he said he would get them to come into work Q Then they were employed9 A Yes Q To your knowledge, was any personnel of the company fired that was in the dough-mixing depart- ment A Mean under- Q (Interrupting) Under Mike Coogan A Yes Q Who was that? A Tom-Drew McNellis Q Do you remember approximately how that came about? A He was supposed to be in on I believe it was a Saturday night, and he failed to show up, and he called up that he was sick or something, and we said, 0 K, fine, we'll talk to you the next day The follow- ing day Mike Coogan came in and told us that he had seen him at this KSHE kite flying contest or some- thing like that, and that he asked him how come he wasn't at work, and Drew said, well, he didn't care that much about the job anyway and he didn't feel like coming in So Mike says, "Well, in that case you don't have to come to work any more You're fired " Q Mike Coogan told you that? A Yes Q Did you countermand his having fired Drew9 A You mean did we punish Mike9 Q Did you do anything about it9 A We stood behind him Q That's your way of putting it, you stood behind him9 A Yes Coogan and Polsky denied that they had ever hired or fired any employees or that they had ever been told they had authority to do so They, as well as other of the em- ployees involved, gave specific testimony indicating that it was common practice for one of them to pass the word among their buddies about available jobs and to bring in- terested prospects into the office to introduce them to the Kanofskys 14 Then one of the Kanofskys would hand the prospect an application form, conduct an interview, and, on making the decision to hire the prospect, would assign him the job and set the hours of work and rate of pay t 14 The practice was not confined to Polsky and Coogan, but was engaged in by admitted nonsupervisory employees Thus, Coogan obtained his job most recently through Polsky's contact at a time when Polsky's status was indisputably that of a rank-and-file employee 15 Kanofsky during cross-examination by counsel for the General Coun- sel did not deny the specifics of the employees testimony He claimed he could not `remember' who handed out the application forms, and in re- sponse to the question as to whether he had interviewed Zimmerman and ST LOUIS BAGEL BAKERS Additionally, Coogan and McNillis testified about the circumstances relating to McNillis' termination of his job McNillis, corroborated in substantial part by Coogan, had absented himself from work for several days soon after he was hired on the excuse that he was sick In this period, Coogan ran into McNillis at a kite-flying contest In re- sponse to questions by McNillis, Coogan said that manage- ment was annoyed or perturbed about his absence, and McNillis then stated he was not going to work the hours assigned him and "quit " Coogan then reported to Arthur Kanofsky that McNillis was not coming back to work Reviewing all the above evidence , I am satisfied that the detailed versions of facts bearing on the question of Coo- gan and Polsky's power to hire and fire, as given by the employees, are more reliable and plausible than Kanofsky's generalized and conclusionary testimonial as- sertions that Polsky and/or Coogan hired and/or fired any employee I perceive nothing in the credited evidence which supports Respondent's attribution to Coogan and Polsky of a decision-making role with respect to the hire, discharge, or job status of any employees I conclude, ac- cordingly, that neither Coogan nor Polsky had any authori- ty to hire or discharge employees , or to make any determi- nations with respect to the job status, hours of work, or wages of any employees The remaining contention of Respondent, that Coogan and Polsky responsibly direct the work of employees, turns on analysis of virtually undisputed facts descriptive of the duties each performed Coogan's daily work responsibility was to mix the bagel dough Respondent needed to meet customers ' orders, and with the assistance of other employees to have that dough shaped and cut into the proper sizes for oven baking Coo- gan regularly reported for work at 10 p in, at a time when the plant was closed, opened the plant premises with a key provided to him by the Respondent, and, for about a half hour, worked alone During that period, he determined from a written sheet of instructions left for him by one of the Kanofskys the amount of bagels to be produced that day and proceeded to weigh and scale the flour in accord with Respondent's written recipes, mix a batch of bagel dough, and set it aside to proof Another employee was scheduled to report about 10 p in , and one or two others at midnight 16 Together with Coogan, they composed the Respondent's bagel dough production crew, and all of them, including Coogan, did the manual mechanical oper- ation work necessary to get the dough ready for the baking process That preparatory process required-apart from the mixing of the dough itself-the formation of the dough into balls with the use of two machines and a conveyor belt Suchan before hiring them, he responded , "We talked everybody talked " Further, although he seemed to claim at one point in his testimony that the $2 50-per-hour rate given Suchan and Zimmerman was `set by Polsky and Coogan, he admitted, at another point, that $2 50 is the standard start- ing rate , that "whoever interviews or hires" the prospects tells them their starting rate 16 At times here relevant, the employee who was scheduled to report at 10 30 p in was Steve Zimmerman The employees scheduled to report at midnight were Richard Stephens and Michael Sylvester Burnside The latter apparently worked irregularly 311 which joined the two , and the lighting of the baking ovens One machine was the baller to which I referred earlier, and the other was the bagel machine which cuts the balls into their final shapes Admittedly, no high degree of skill was required for any of these tasks , and all such tasks could be performed by any members of the baking crew Although Coogan was "in charge" of the above employ- ees until about 2 a m, when Arthur Kanofsky came to the plant,17 I find no evidence that he directed the work force in a manner requiring his use of independent judgment All the employees, including Coogan, were expected to and did share the work tasks and help out where needed , the tasks that they performed were routine , repetitive, and easily learned , and any directions issued to them by Coogan were limited to such matters as asking one employee to move from one location or machine to another No change in pay was involved by such relocation, and there is no claim-and no evidence-that Coogan was free to suspend or otherwise to discipline any employee who failed to fol- low his directions , or to effectively recommend any such action 18 Nor was he free to change the pay rate or the scheduled hours of work of any employee, authorize any absences, or direct the performance of overtime During the dates here material Polsky arrived at the plant at 4 a in, together with Tom Suchan These two, and possibly one or two other workers with later starting times, composed the bagel-baking crew 19 The main work respon- sibility of this crew was to start and complete the baking of the raw bagels in the ovens, and then to clean up the equip- ment All of the crew, including Polsky, shared in the per- formance of these tasks , and other employees in Coogan's crew could and frequently were called upon to assist as needed Polsky was in charge of the crew and would in- struct others in his crew to do particular tasks as work progressed, such as using or watching a particular oven, and getting water for a boiler As in the case of Coogan, he had no authority to discipline or suspend any employee, to grant time off, or to authorize the working of overtime hours He was not free to choose which employees to work with or to decide that certain of the assigned work tasks need not be performed Nor did he have the power effec- tively to recommend any such disciplinary or transfer ac- tion to superiors Reviewing the above, I am satisfied and find that, al- though Coogan and Polsky instructed and directed other employees in the performance of work tasks , they were not called upon to and did not exercise the degree of indepen- dent judgment which meets the statutory criterion of re- sponsible direction of members of a work force 20 The na- 17 Ronald Kanofsky came in between I I and midnight , but he remained at the plant only the short time necessary to load a truck with goods baked on the day shift and begin delivery In the event difficulties developed in the absence of management offi- cials, Coogan reported the same to Arthur Kanofsky by telephone 18 Indeed, Coogan testified without contradiction that he had complained without avail about Sylvester's work performance to Kanofsky asked the latter to get rid of him, and recommended against rehiring him 19 At all times during Polsky s scheduled hours , one of the Kanofskys was present at the plant and actively participated in supervising the work 20 I have not overlooked the facts that Coogan and Polsky were salaried rather than hourly paid employees and that they were paid $ 130 per week (or $3 25 per hour figured on a 40-hour per week basis) as contrasted with Continued 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ture of the instructions they issued was no different in character than that found in the case where more skilled or more experienced employees are called upon to lead or direct the work of less skilled employees 21 In sum, I conclude and find that Coogan and Polsky were not supervisors within the meaning of Section 2(11) of the Act at any time here relevant It therefore follows that each of them enjoyed the protection accorded employees under Section 7 of the Act in the exercise of the rights there enumerated, and that Respondent interfered with, re- strained, and coerced them within the meaning of Section 8(a)(1), in the exercise of their Section 7 rights by interro- gating each about union activities, concurrently implying that it would keep the union activities of employees under surveillance, and threatening to impose more arduous working conditions so that union activists would want to quit-all as detailed above The above findings dispose of one part of the complaint's allegations The remaining alleged unfair labor practices are concerned with the Respondent's conduct to- wards its employees when, on June 3 and 4, they engaged in certain concerted strike action I turn next to this por- tion of the complaint 3 The concerted walkout of June 3 and 4 As explained in the introductory statement, Coogan and Zimmerman left their job together on the evening of June 3 Their testimony, which I credit, establishes that they did so shortly after reporting for work because Respondent had failed to repair the baller machine and they were un- willing to continue operating it absent the repair Coogan communicated their joint decision to refuse to work the baller to Arthur Kanofsky by telephone at about I1 p in He first told Kanofsky that Zimmerman refused to operate the baller Kanofsky told him to tell Zimmerman to go home Coogan then said, "I refuse to operate it too " Ka- nofsky told him that, in that event, he should go home as well 2 Both then left the plant together and drove away in an auto owned by Ronald Kanofsky but being used by Coo- gan with Ronald Kanofsky's permission under an oral ar- rangement looking to Coogan's purchase of the car Coo- gan then telephoned Stephens-the employee next due on the $2 50 per hour paid to most, if not all the employees composing their respective crews But the differences in mode of payment and the variances in the amount of pay, while of some relevance, do not here control the question of the supervisory status of Coogan and Polsky It bears mention in this connection, that like other employees, Coogan and Polsky were required to punch a timeclock, and that under Respondent's general rule that holiday pay would be given only to employ- ees who worked the day before and the day after the holiday, they were docked for the holiday preceding that on which they struck Furthermore Respondent regarded the $130 salary payment as covering any overtime work Coogan or Polsky might be called upon to do, whereas it specifically comensated hourly paid employees for any overtime hours 21PSee Mid State Fruit Inc 186 NLRB 51 (1970) a case cited by General Counsels brief, where the Board found to be nonsupervisory a night fore- man or leadman of a crew appearing to have more authority than that possessed by either Coogan or Polsky here 22 Kanofsky's version of the telephone conversation with Coogan is slight- ly different He claims he had told Coogan What s going on down there1 Please wait for me" As noted, I credit Coogan s version the job-and told him that he and Zimmerman had walked out because the baller machine had not been repaired Ste- phens decided that he would join in that strike activity and he did not report for work Informed of the walkout action shortly after it occurred, Ronald Kanofsky decided to call the police to retrieve his auto from Coogan He so advised Polsky by telephone at about 12 30 a in , and indicated further that he intended to tell the police that Coogan had stolen the car 23 At 4 a in when Polsky and Suchan reported for work, they found all the Kanofskys had come into the plant to do the necessary production work They observed that all of them were in an angry mood over the events that had tran- spired and that there was much "commotion " Shortly af- ter reporting, these two employees saw Arthur Kanofsky Kanofsky then told Polsky, in Suchan's presence, that he was going to have Coogan arrested for car theft Polsky protested, pointing out that Kanofsky well knew that Coo- gan had not stolen the car 24 Polsky and Suchan then began doing their regular work tasks, but found it uncomfortable to remain at work in the face of so much commotion, the Kanofskys' display of an- ger towards each other and towards Coogan, and the short- age of help Polsky walked off accordingly about an hour after he arrived He met Arthur Kanofsky on the way out and the latter told him that he put him "in the same class" that he put Mike Coogan Suchan left shortly after Polsky At about 9 o'clock that evening (June 4), Coogan, Zim- merman, Polsky, Suchan, and Stephens were all at a party at a mutual friend's house Coogan, with Zimmerman standing nearby, called the plant to inquire about their job status He reached Helen Kanofsky on the telephone and, according to Coogan's version of the conversation between them, Mrs Kanofsky made it clear that, so far as Respon- dent was concerned, Coogan and Zimmerman were no lon- ger employees 25 Thereafter, some of the employees appeared at the plant to collect their paychecks and saw Helen Kanof sky for that purpose Polsky and Coogan did so on June 6, and Ste- phens on June 8 Polsky and Coogan found that deduc- 23 Helen Kanofsky also telephoned Polsky asked if he knew where Coo- gan was as the police were looking for him 24 This part of the statement of facts is founded on testimony of Polsky which I credit Arthur Kanofsky denied this conduct but I do not accept his denial as truth The car was in fact picked up by the police at the Kanofskys instigation but no arrest was made 25 Coogan's version of the conversation between him and Mrs Kanofsky on direct was as follows `Well I asked are we supposed to be in tonight" and she goes no you quit And I told her that no I didn t quit I just refused to run that ma chine the bailer and she goes, well if you refuse to run the machine that s just like saying that you quit And I dust said that I didn't quit and she hung up and then I hung up Coogan adhered to this version of the conversation on cross-examination He also explained that his reference to `we em braced Zimmerman as well as himself and that he was impelled to make the call because he and Zimmerman had been sent home by Kanofsky the night before and they didn t know whether or not this meant they were fired Helen Kanofsky's version of that conversation is slightly different from that of Coogan s According to Kanofsky Mike called and opened the conversation with Helen am I fired" And I said no Mike He then said `did I quit"' And I said no Mike' He said well And I said well you walked out What else is there for me to say9 And that was the entire conversation " I find Coogan s version to be the more plausible one ST LOUIS BAGEL BAKERS tions of 1 day's pay had been made in their checks for a holiday for which they would have been paid, but for the fact that they had walked off their jobs under the circum- stances above related without completing their scheduled shift on their next regular workday 26 Stephens found his check did not include an $11 amount (representing 4 hours' pay) which had been withheld from a previous paycheck Stephens got in May as a penalty for Stephens' then having taken an undue amount of time to deliver certain orders to Respondent's customers As Mrs Kanofsky had earlier promised to give him the $11 pay when Stephens explained to her the reasons for the delayed delivery, he expected his current check to include that amount Stephens therefore asked Mrs Kanofsky why this check did not include the $11 amount Mrs Kanofsky re- sponded, "Because of the crap you guys pulled " 27 None of the above five employees who walked out on June 3 and 4 has since worked for Respondent 4 Discussion of the unfair labor practice issues posed by the Respondent's conduct on and after the June 3 walkout The facts, as found above, establish, in brief, that Coo- gan and Zimmerman initiated a concerted stoppage of work on June 3 because their or other employees' com- plaints concerning the mechanical condition of the baller had not been remedied to their satisfaction, that, in sup- port of their action, three other employees also ceased their work or withheld their services, and that Respondent thereafter took certain punitive action against some of them because of their work stoppage The complaint alleges that Respondent's punitive acts, as were specifically described below, were in violation of Section 8(a)(1) of the Act because the work stoppage in which the employees engaged represented the exercise of a protected Section 7 right accorded employees to engage in strike or other concerted action for their mutual aid and protection Contrary to the General Counsel, Respondent claims, however, that the work stoppage was not protected action within the meaning of the Act It grounds this claim on contentions that the baller machine was not in fact either inoperable or dangerous to use, despite the slipping handle or bar I find no merit in the Respondent's position Although the employees' objections to operation of the baller and other work conditions may have seemed unreasonable to the Respondent, I do not find that they were wholly groundless That being so, the Supreme Court's decision in N L R B v Washington Aluminum Company, Inc, 370 U S 9 (1962), and subsequent decisions of the Board applying the principles of that case 28 make it clear that, so long as a 26 Respondent applied to them the rule that pay for a holdiday would be given only if the employee concerned had worked both the day before and the day after There is no claim that this deduction was unlawfully impelled 27 Stephens' testimony concerning this exchange was not disputed and I credit it 28 See, e g, Union Boiler Company, 213 NLRB 818 (1974), Essex Interna tional Inc, 213 NLRB 260 (1974), G W Murphy Industries Inc, Portable Electric Tools Division, 183 NLRB 996, 999 (1970), Trumbull Asphalt Compa 313 complaint which impels the employees to take strike action is grounded in their work conditions and is not "wholly indefensible," that strike action is a protected activity with- out regard to the "reasonableness" of, or seeming lack of justification for, the employees' decision to engage in it Washington Aluminum Co, 370 U S at 15-16 29 Concluding, as I do, that the strike activity of the five employees involved was protected in character, I reach and decide the 8(a)(1) violation issues posed by the complaint's allegations that Respondent took or threatened certain pu- nitive action against its striking employees on and after June 4, because of their protected strike activity Reviewing the above evidence, I conclude these allegations should be sustained I do so because the conduct that I have found that the Respondent committed included the following spe- cific acts which may be fairly viewed as operating to inter- fere with, restrain, and coerce the employees in the exercise of their protected Section 7 rights to strike (a) A threat uttered by Arthur Kanofsky to Polsky and Suchan on June 4 to impair Coogan's freedom to return to work by having Coogan arrested and charged with stealing Stanley Kanofsky's car, when all concerned knew that Coogan was driving that car with Stanley Kanofsky's per- mission (b) The termination, in effect, of the employee status of strikers Coogan and Zimmerman when Coogan called Hel- en Kanofsky on the evening of June 4 to inquire about his job status and that of Zimmerman (c) The failure to reimburse striker Stephens for a previ- ously deducted $11 in pay which Helen Kanofsky had, during prior discussions with him over a "time worked" dispute, promised to treat as duly owing to him One further problem remains to be resolved General Counsel urges, and I agree, that the commission of all the above unfair labor practices-but especially the termina- tion action taken against Coogan and Zimmerman on June 4-had the effect of prolonging the strike and converting the status of those who remained on strike after June 4 from economic strikers to unfair labor practice strikers 30 As there is no evidence that any of the five striking em- ployees had in fact abandoned the strike following its con- version, I find that all five became unfair labor practice strikers on and after June 4 31 ny Inc 219 NLRB 131 (1975) Compare First National Bank of Omaha 171 NLRB 1145 (1968), Polytech Incorporated 195 NLRB 695 (1972) 29 Contrary to Respondent's argument there is nothing in N L R B v Knight Morley Corp 251 F 2d 753 (C A 6 1957), cert denied 357 U S 927 (1958) which can afford Respondent support for its position in this case The question presented in Knight Morley was whether the concerted quit by employees in the face of abnormally dangerous work conditions was outside the protection of the Act because at the time of the quit, there was in effect a bargaining contract containing a no-strike clause The court found in agreement with the Board, that the quit was protected under statutory pro- visions set out in Sec 502 of the Act to accord employees certain protections for concerted action in dangerous circumstances, independent of that ac- corded by Sec 7 of the Act 30 General Counsel concedes that the strike at its inception, was an eco- nomic strike 31 I do not accept as valid the suggestion made by General Counsel in his brief that Coogan s inquiry about his and Zimmerman's job status on the evening of June 4 is to be viewed as an offer on behalf of both to abandon the grievance which had prompted the strike or to cease using strike tactics as a means of pressing for its satisfactory resolution In these circumstances Continued 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act In accord with established precedent defining the reme- dial rights of unfair labor practice strikers,32 Respondent shall be required, as part of its affirmative obligations, to reinstate Michael Coogan, Steven Zimmerman, Robert Polsky, Thomas Suchan, and Richard Stephens upon their unconditional application, to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employee hired since June 4, 1975, and make them whole for any monetary losses they may have suffered as a result of any failure to reinstate them, together with customary interest, beginning 5 days after the said employees' uncon- ditional request for reinstatement and continuing until the date of reinstatement Backpay, if any, that may be due shall be computed in the manner delineated in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb- ing & Heating Co, 138 NLRB 716 (1962) Respondent shall also be required to reimburse Richard Stephens the sum of $11, together with customary interest running from June 8, 1975, the date on which Respondent unlawfully withheld the above sum from Stephens, until the sum is paid Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I recommend, pur- suant to Section 10(c) of the Act, the issuance of the fol- lowing recommended ORDER33 Respondent, St Louis Bagel Bakers, Inc, Crestwood, Missouri, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating employees in a coercive manner con- cerning their or any other employees' union membership or affiliation (b) Creating the impression among its employees and giving them to understand that their union activities are or will be under its surveillance (c) Threatening its employees with more arduous work- ing conditions, arrest, or other harmful economic conse- quences because of the exercise by its employees of their the status of Coogan and Zimmerman, for remedial purposes, is identical to that of the unlawfully discharged unfair labor practice strikers in such cases as Sea Way Distributing Inc, 143 NLRB 460 (1963), Artim Transportation System Inc 166 NLRB 795 (1967), and Roosevelt Roofing and Sheet Metal Works Inc 204 NLRB 671 (1973) 32 See cases cited at fn 31, supra 33 In the event no exceptions are filed as provided by Sec 102 46 o' the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes right under the Act to join or maintain membership in a union or to engage in other concerted activity protected under the Act (d) Discriminating against any employee in regard to his hire, tenure, or terms or conditions of his employment by discharging him or by withholding monies due him be- cause of his affiliation with or sympathy for Bakers Union No 4 of Greater St Louis, affiliated with Bakery and Con- fectionery Workers' International Union, AFL-CIO, or any other labor organization or because of the exercise by him of his right to engage in any other concerted activity protected under the Act (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their right to self-organization, to form,j oin, or assist any labor organization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activi- ties for the purpose of collective bargaining or other mutu- al aid or protection, or to refrain from any and all such activities 2 Take the following affirmative action necessary to ef- fectuate the policies of the Act (a) Offer, upon application, immediate and full rein- statement to Michael Coogan, Steven Zimmerman, Robert Polsky, Thomas Suchan, and Richard Stephens, to their former or to substantially equivalent positions without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employee hired subsequent to June 4, 1975, and make them whole for any losses they may have suffered as a result of any failure to reinstate them beginning 5 days after their application for reinstate- ment, in the manner set forth in the section of this Decision entitled "Remedy " (b) Reimburse Richard Stephens for monies unlawfully withheld from him on June 8, 1975, in the manner set out in the section of this Decision entitled "Remedy " (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay if any which may be due under the terms of this Order (d) Post at its plant in Crestwood, Missouri, copies of the attached notice marked "Appendix " 34 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's au- thorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed Reasonable steps shall be taken by the Respondent to insure that such notices shall not be altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith 14 In the event the Board s Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board' shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "