Hansen Cakes, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hansen Cakes, Inc. and Irma Peralta and Local No. 37, Bakery & Confectionery Workers International Union, AFL-CIO. Cases 31-CA-7691 and 31-CA- 7995 May 23, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On February 7, 1979, Administrative Law Judge Joan Wieder issued the attached Decision in this pro- ceeding. Thereafter, counsel for General Counsel filed a letter to the Executive Secretary in the nature of limited exceptions, and a brief supporting her request that interest on backpay be computed at 9 percent. 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, to modify her remedy,' and to adopt her recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Hansen Cakes, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied. 1. Insert the following as paragraph l(d) and re- letter the subsequent paragraphs accordingly: "(d) Threatening to impose onerous working con- ditions." 2. Substitute the attached notice for that of the Administrative Law Judge. I The General Counsel recommended, as it has in various recent cases, that interest on backpay be computed at 9 percent. The issue, as such. is presently under consideration by the Board. In the meantime we adopt the Administrative Law Judge's reliance on Florida Steel Corporation, 231 NLRB 651 (1977). The Administrative Law Judge inadvertently specified interest to be paid at 6 percent. However, interest will be calculated accord- ing to the "adjusted prime rate" used by the U.S. Internal Revenue Service for interest on tax payments. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportu- nity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive of their choice To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities ex- cept to the extent that the employees' bargain- ing representative and employer have a collec- tive-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT interrogate you regarding your sympathies and reasons for engaging in activities on behalf of Local No. 37, Bakery & Confection- ery Workers International Union, AFL-CIO, or any other labor organization. WE WILL NOT select employees to inform us regarding union activities WE WILL NOT threaten to blackball you for engaging in activities on behalf on Local 37, Bakery & Confectionery Workers International Union, AFL-CIO, or any other labor organiza- tion. WE WILL NOT threaten to impose onerous working conditions on you for union activities, or actually impose such conditions as a penalty for engaging in union activity. WE WILL NOT discriminate against you in re- gard to hire, tenure, or any term or condition of employment in order to discourage membership in or activities on behalf of Local No. 37, Bakery & Confectionery Workers International Union, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL make whole Irma Peralta for any losses she may have suffered as a result of our 242 NLRB No. 74 472 HANSEN CAKES, INC. unlawful discrimination against her and WE WILL offer her immediate reinstatement to her former job, dismissing, if necessary, anyone who may have been hired to perform the work which she had been performing prior to the time she was terminated on January 10, 1977, or if such job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or other rights. WE WILL expunge from our personnel records any and all references to the discriminatory ter- mination of employment of Irma Penalta as a decorator. All our employees are free to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Our employees are also free to refrain from any or all such activities. HANSEN CAKES, INC. DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge: This consoli- dated matter was heard in Los Angeles, California, on Au- gust 3-4 and 8-11 and September 19 and 20, 1978.1 The original charge in Case 31-CA-7691 was filed on February I and alleged that Hansen Cakes, Inc., herein called the Company or Respondent, on or about January 10 terminated the employment of the Charging Party, Irma Peralta, for engaging in protected concerted activity, in vio- lation of Section 8(aX)() and (3) of the National Labor Re- lations Act. The complaint in Case 31-CA-7995, as amended, consolidated the proceedings and alleged viola- tions of Section 8(a)(1) and (3) of the Act in that following reinstatement of Peralta, she was, on or about May 6, 1976, discharged by the Company for engaging in protected con- certed activities, and Respondent changed the conditions of employment to discourage employees from being represent- ed by the Charging Party, Local No. 37, Bakery & Confec- tionery Workers International Union, AFL-CIO, herein called the Union. The Respondent admits in its answer that it terminated, reinstated, and then discharged Peralta, but denies that the first termination and subsequent discharge were unlawful or threatening or in any way violated the Act. Respondent also denies all allegations regarding changing conditions of employment to discourage employ- ees from being represented by the Union. All parties were given full opportunity to participate, to introduce relevant evidence, and to examine and cross-ex- amine witnesses. Oral argument was waived. The briefs filed by all parties have been carefully considered. Upon the entire record, including especially my observation of the witnesses and their demeanor, I make the following: I All dates are in 1978 unless otherwise indicated. FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company, a California corporation with its principle office in Los Angeles, California, is engaged in the produc- tion and sale of specialty cakes. Respondent annually sells goods or services valued in excess of $50,000 to customers or business enterprises within the State of California, which customers or business enterprises meet one of the Board's jurisdictional standards; and the inflow or outflow standard was met pursuant to a stipulation that, within the past cal- endar year, Respondent, in the course and conduct of its business operations, purchased and received supplies val- ued in excess of $9,900 from a California supplier, who received those goods from a firm located in Jersey City, New Jersey, and remittance was made to New Jersey. I find and conclude that the Respondent is, and has been at all times material herein, as stipulated, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Local No. 37, Bakery & Confectionary Workers Interna- tional Union, AFL-CIO, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is engaged in the manufacturing of specialty and custom cakes. The Company is owned and managed by Gary Hansen (Hansen).' Respondent has two stores, one located in Beverly Hills and the other in Fairfax, California. The manufacturing facility is also located in Fairfax, the Company's original location. The Company has industry recognition as one of the top bakeries and will make almost any custom-designed cake ordered by a customer. Respondent also produces "stock cakes" that can be ordered from catalogs or display cakes.' During the period of time considered herein, Respondent had approximately 12 to 15 employees engaged in baking, icing, decorating, selling, and delivering cakes, of which 6 or 7 were cake decorators. B Alleged Interrogation and Threats In November or December 1977, Respondent's employ- ees, particularly the cake decorators, started discussing the I The business was previously owned by Hansen's father. Hansen has been working at the bakery since he was a small child, and he started managing the Company 17 years ago, when he became a partner. Approximately 8 years ago Hansen purchased his father's interest. 3 Display cakes are referred to as "dummy cakes" and are made by apply- ing royal icing and other decorations to pieces of styrofoam. Royal icing is a mixture of powdered sugar and egg whites which dries to a hardness similar to plaster of Paris. Royal icing is used on dummy cakes because it holds up for a long period of time and gets so hard it can be dusted or even vacuumed. 473 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advantages and disadvantages of being represented by a union. It was during this organizing period that General Counsel alleges that Respondent violated Section 8(a)(1) of the Act by: (I) interrogating employees regarding their union activities; (2) threatening to impose more onerous working conditions upon employees if they were represent- ed by a union; and (3) threatening to blackball Irma Peralta (Peralta) for her union activities. 1. Union activity The undisputed facts are that in the middle of December, several employees-Peralta, Salvador Barragan, and Don Todd'-were conversing when Barragan inquired about the Union at Peralta's former place of employment, for he thought it would be a good idea to join a union. Peralta volunteered to phone the Union since Barragan does not speak English well. Shortly after their conversation Peralta did contact the Union. There were several other discussions among the employees involving unionizing, some of which occurred on or just outside Respondent's premises and oth- ers occurring during lunch at different restaurants. A meet- ing was scheduled for January 9 at Barragan's house. Hansen testified that he was first informed that the em- ployees were discussing unionizing at lunchtime' on Satur- day, January 7, by decorator Martin Ellefsen. Ellefsen told Hansen that there was talk of a union in the bakery. Han- sen inquired what Ellefsen knew about it, and Ellefsen re- plied that there was going to be a meeting at Barragan's house. Hansen then asked when the meeting was going to occur, and Ellefsen stated that he did not know the date. Shortly after this conversation, Hansen called his attorney for advice regarding the Union and was told not to do or say anything. Robert Twitty, a management trainee, stated that on the afternoon of January 7, after work, when no other em- ployee was present, Hansen asked him if he had heard about the Union. Twitty replied no, which was a prevarica- tion. Hansen then asked a couple of other questions about the Union and Twitty continued to falsely claim ignorance. Also on January 7, Hansen had two conversations with Todd. The first conversation occurred about 7 a.m. in the walk-in refrigerator. Hansen stated that Peralta had better start inscribing the cakes she decorated and start getting to work on time "or else ... " According to Todd, Hansen stopped in mid-sentence and did not say any more but ap- peared "very, very uptight that day." Todd did overhear Hansen talking to Peralta later that day, stating that she "had better start getting her own inscriptions on her cakes and getting to work on time, or else." Later in the day Hansen criticized Peralta for making roses too large. Later that same day, January 7, Hansen and Todd had a conversation at approximately 2:30 p.m. in Hansen's office. Hansen said, according to Todd, that the bakery was about to be governed by the Union, and that the employees were communicating among themselves, but no one was commu- nicating with him. Todd, at this point in his testimony, characterized Hansen's statements as "indirect." Hansen 4 Barragan, a baker, is still employed by Respondent, and, according to Peralta, he is considered a good worker. Todd, a decorator, is considered a very fine decorator and is also still employed by Respondent. 5 Lunch normally occurs between 11:15 a.m. and 12 noon. then inquired about Todd's views, to which Todd re- sponded that the Union had both advantages and disadvan- tages which should be weighed. Hansen then acknowledged that one advantage would be the facility to hire experienced decorators. Hansen then asked if he would think over the question of unionization and "maybe talk with some of the other employees and try to persuade them to communicate with him [Hansen] about wages and benefits." Two or three days before the Union meeting, Twitty had another conversation with Hansen. Another employee, Guadalupe Gonzales (Guadalupe), was present for a por- tion of the conversation. According to Twitty, Hansen asked Guadalupe whether he was going to join the Union, to which Guadalupe replied, "no, no union." Twitty had difficulty recalling the remainder of the conversation but recalled that Hansen mentioned something about Peralta when he was talking to Guadalupe. Hansen also stated that Peralta wanted time off to work in her husband's studio, but Hansen was not going to give it to her fr he felt she did not deserve it. Hansen also mentioned the meeting at Bar- ragan's house. Twitty and Hansen had further conversations concerning the Union after January 9, the day of the meeting. Accord- ing to Twitty, the first of these conversations occurred on January II 1, his first day back to work after the union meet- ing at Barragan's house. The conversation is described as occurring in the decorating area after work, at or about 3:15 p.m., with no one else present. The dialogue was de- scribed by Twitty as follows: Hansen said, "you know, Bob you just made it." Twitty said, "what do you mean." Hansen said, "you just got a raise. You know I've been pretty nice around here." Twitty replied, "oh." Hansen said, "yes," stating Irma is nothing but a trouble maker. If I really wanted to I could put the word out on her, spread it all through the bakeries and make sure she never got a job again at any bakery. Hansen also stated that he had given loans out to 2 other employees and could require full payment on demand. Hansen further said, "Don and Salvador had really better watch it around here and shape up a little bit more, because if not, they just better watch it." Hansen stated that Irma was nothing but a troublemaker trying to get the Union into here. Hansen said he was pretty sure it was Peralta, that she was the one who was behind it all. Hansen asked whether Twitty was sure he was not contacted before the meeting and Twitty replied that he was probably notified by receiving a note in the mailbox when he got home, and that it was possibly Irma or somebody who knew where he lived had dropped it off. Hansen said, "if things really got hairy he could really make it on his own; he could run the bakery himself with the assistance of his sister, father and possibly his mother and whoever else wanted to stay and run it." Hansen further said let them stay outside and picket, he didn't care. Hansen also kept rubbing it in about the decorators, how the decorators would have to be a lot more than they are now, that there would be a lot of pressure on them. They would have to know how to do icing and baking and making various ornaments for the cake, 474 HANSEN CAKES, INC. and on and on and on, continuously off and on after that, not only during that certain conversation. He also indicated that if the Union came in that all decorators would have to do everything. Hansen indicated he did not understand why the em- ployees wanted to form a union because he thought that he had been pretty nice around the bakery. The next conversation occurred on a Wednesday, but the date was not recalled. The conversation occurred in Gary Hansen's office. No one else was present. The conversation with Twitty indicated that Hansen would probably think of him as nothing more than a trouble- maker and would probably think of him as an Irma Peralta, but when he saw something wrong, he had to speak out and that he didn't care because that was one of the reasons he wanted a union in there due to the fact that there was a lack of communication on Han- sen's part. Hansen, on the other hand, testified that Twitty initiated the conversation by informing Hansen that there had been a union meeting. Hansen inquired who was at the meeting and what had transpired. Twitty was said to reply that he did not know too much about what occurred since most of the discussion was conducted in Spanish. Respondent de- nied that any threats were made in conversations with Twitty and attacked Twitty's credibility, claiming that Twitty became disgruntled and angry at Hansen over the failure of the Employer to provide insurance coverage for spouses. Twitty allegedly made a claim for his wife's medi- cal treatment directly to the insurance company, which then billed Hansen. Hansen told Twitty those medical ex- penses would be deducted from Twitty's salary, which aroused Twitty's ire. It is further asserted that shortly thereafter, Twitty, who is described as a member of management, entered into a conspiracy of silence regarding union activities, and when on January 7 Hansen ascertained from Ellefsen that a meet- ing was to be held, Twitty admittedly lied by indicating that he had no knowledge of any union activity. It is also asserted that Twitty was further disgruntled be- cause he was required to work on Sundays. It is alleged that Twitty quit by failing to show up for work on Sunday, May 7. Hansen stated that a few days later, Twitty requested that Hansen misrepresent to the State unemployment ser- vice that he was fired, to permit him to collect unemploy- ment insurance. Hansen replied that he would not lie, and as far as he was concerned Twitty quit.6 2. Discussion Respondent's allegations regarding Twitty's credibility are not persuasive. The date of the insurance incident, a major factor in Twitty's alleged disgruntlement, is not clearly presented. Hansen testified that he could not re- 6 Hansen also claimed that a charge brought by Twitty alleging unlawful discharge was dismissed on the basis that Twitty quit, and Hansen so in- formed the "employment department." It is noted that no documents were placed in evidence to support this characterization of the Board's action. The decision to dismiss Twitty's charge could have been based on many factors. such as the lack of sufficient evidence demonstrating that Twitty's termina- tion was due to union activity. member the date he had a discussion with Twitty regarding the deduction of the insurance monies from salary, stating that it could have been 2 or 3 days to a month before Twitty left the bakery. Hansen admitted that it could have been the first couple of days in May or the end of April that the discussion occurred. Twitty's statement to the Board,7 given on February 10, contained all the salient points re- cited above. February 10 is well before any disgruntlement was caused by the Respondent's failure to provide insur- ance for spouses. The same is true regarding Twitty's termi- nation, either voluntary or otherwise, which also occurred in May. Furthermore, Hansen testified that he heard from Carol Dombrowsky, an office worker who also served as Hansen's secretary, that Twitty considered himself fired. but could not recall the date he acquired this knowledge. In a state- ment to the Board dated May 31, Hansen admitted telling Twitty that he was to work on Sundays. On May 4, Twitty informed Hansen that he would no longer work on Sun- days. On May 5, Hansen informed Twitty that he had to work on Sundays. Twitty did not show up on Sunday, May 6. Hansen then stated: Twitty called in on May 9, 1978 and told a secretary, Carol Dombrowsky, that he assumed that he was ter- minated for not showing up on May 6, 1978 so he would pick up his check. I saw Twitty on Thursday, May 10, 1978, when Twitty dropped into my office when he came to get his check. I asked Twitty if he had another job lined up and Twitty said that he did .... Twitty filed for unemployment and I put on the form I received that Twitty didn't show up for work. I don't recall if I put anything else on the form. Hansen also denied that he ever conversed with Twitty about the Union or Peralta. But immediately thereafter he admitted that he told Twitty he did not know how the Union would affect Twitty's position.' Accordingly, it appears that the only prevarication Twitty committed was denying knowledge of the forthcom- ing union meeting to an employer who was admittedly very upset about the potential unionization of his business: and Hansen acknowledged that he disclosed these feelings to Todd. Respondent's interrogation concerning Twitty's knowledge of a union meeting in the admittedly agitated climate was of such a character that it would result in re- straint and coercion. The right to engage in union activities, or to refuse to do so, is severely diminished if the employee may be, as a result of such protected activities, forced to face his employer and admit or deny that he, or others, have engaged in such conduct. Hence, the prevarication cannot be considered of such a nature as to warrant dis- crediting Twitty's testimony. Based on the foregoing and considering the demeanor of the witnesses, the testimony of Todd and Twitty is credited.9 I Twitty's statement was admitted into evidence, over objection, pursuant to Rule 801(dX I) of the Federal Rules of Evidence. I Hansen, on cross-examination. also admitted having conversations with Twitty about the Union on January 7 and I I. ' It is also noted that at the time of Todd's testimony and Twitty's state- ment to the Board, they were still employed by Respondent, and gave testi- mony adverse to their employer at considerable personal economic risk. which lends further credence to their testimony. 475 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, Hansen did not deny that he carried through his threat to rescind his permission to Peralta to take off or leave work early on the basis that "they were too busy," further substantiating Twitty's recitation of Hansen's state- ments. Accordingly, it is found that Hansen interrogated employees regarding their union activities, threatened to impose more onerous working conditions on his employees should they be represented by a union, and threatened to blackball Peralta for her union activities. In determining whether interviews or interrogations are coercive, the Board, in Johnny's Poultry Co., 146 NLRB 770 (1964), enforcement denied on other grounds, 344 F.2d 617 (8th Cir. 1965), set forth the following criteria: Despite the inherent danger of coercion therein, the Board and courts have held that where an employer has a legitimate cause to inquire, he may exercise the privilege of interrogating employees on matters involv- ing their Section 7 rights without incurring Section 8(a)(1) liability. The purposes which the Board and courts have held legitimate are of two types: the verifi- cation of a union's claimed majority status to deter- mine whether recognition should be extended, in- volved in the preceding discussion, and the investigation of facts concerning issues raised in a com- plaint where such interrogation is necessary in prepar- ing the employer's defense for trial of the case. In allowing an employer the privilege of ascertaining the necessary facts from employees in these given cir- cumstances, the Board and courts have established specific safeguards designed to minimize the coercive impact of such employer interrogation. Thus, the em- ployer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary ba- sis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by pry- ing into other union matters, eliciting information con- cerning an employee's subjective state of mind, or oth- erwise interfering with the statutory rights of employees. When an employer transgresses the bound- aries of these safeguards, he loses the benefits of the privilege. In evaluating the conversations herein, it is clear that neither verification of claimed majority status nor the inves- tigation of facts regarding a complaint in preparation for the Employer's defense were involved, and Respondent never claimed such involvement. Neither were the estab- lished safeguards observed to minimize the coercive impact of employer interrogation. In fact, the interrogations of Todd, Twitty, and Guadalupe Gonzales occurred after Hansen was advised by counsel to "say nothing and do nothing." These three employees were asked what they knew about the union meeting, Guadalupe was asked whether he would join the Union, and Twitty was asked who attended the meeting. These inquiries were unneces- sary and unprivileged and were made in an admitted atmo- sphere of "upset," which was related to Todd. The test for "interference," "restraint," or "coercion" does not turn on the subjective impact which the inquiries may have on the individual employee.' Rather, the ques- tion is whether it can be reasonably said that the Employ- er's conduct tends to interfere with the free exercise of em- ployee rights under the Act. Litton Dental Products Division of Litton Industrial Products, Inc., 221 NLRB 700 (1975). There appeared to be no legitimate purpose for asking the questions, nor were the employees given assurances against reprisals. Moreover, when considered in connection with the existing atmosphere and the accompanying threats of more onerous working conditions and the threat of black- balling Peralta, I find such interrogations and statements to be inherently coercive and in violation of Section 8(a)(l) of the Act. San Lorenzo Lumber Company, 238 NLRB 1421 (1978). 3. Discharges The complaint alleges that Respondent violated Section 8(a)(3) and (1) of the Act by (1) discharging Peralta on January 10 because of her union activities; (2) imposing more onerous terms and conditions of employment on its employees in order to discourage union membership and support: (3) discriminatorily imposing more onerous terms and conditions of employment on Irma Peralta because of her union activities after her reinstatement; and (4) dis- charging Irma Peralta on May 6 because of her union ac- tivities. a. January 10 termination Peralta applied for a job as a decorator at Hansen's in April 1977. During the personal interview, Hansen and Pe- ralta discussed cake decorating, including the different tech- niques employed at the bakery. Hansen then took Peralta to the decorating area to demonstrate her skills by writing "happy birthday" and making floral designs." Peralta was then requested to fill out a job application. She was hired in August 1977. Two weeks to a month later, Peralta received her first and only raise." At approximately 3 p.m. on January 10," Hansen called three employees into his office: Peralta, Pedro Juarez Pla- cencia and George Lewis. Hansen informed these employ- ees that business was slow, necessitating their layoff. These three employees were chosen, Hansen explained, because they were the last hired.' 4 Hansen's statement that business was slow confused Pe- ralta inasmuch as in early January, as previously discussed, due to family illness, Peralta asked permission to leave work early for an unspecified period of time. Initially Han- sen granted the request, but shortly thereafter requested Pe- 0 No evidence of impact was introduced. " This is a standard interview procedure used by Hansen with all appli- cants. 12 Her salary was increased by 50 cents an hour, from S4.50 to $5.00 an hour. ' The day after the union meeting at Barragan's house, at which member- ship cards were distributed. On February 21, the Union filed a petition for election, which resulted in a hearing on March 9 at which both Hansen and Peralta testified. '' Placencia and Peralta were decorators; Lewis was a deliveryman and bakery worker who was not engaged in cake decorating. Placencia was hired in December 1977. There is no evidence indicating that Placencia or Lewis were involved in any organizing activities. 476 HANSEN CAKES, INC. ralta to work a full 8-hour day during business hours be- cause the bakery was too busy." This statement was made the Saturday before her termination and the union meeting. The bakery does experience two slow periods a year, but it is uncontroverted that never before had employees been laid off or terminated during any slow periods. Hansen tes- tified that he terminated Peralta because she was inad- equate, but did not inform Peralta that she was discharged for incompetence. Hansen also admitted that he had no intention of reinstating Peralta. On February 1, Peralta filed charges alleging that the termination was because of her union activities, in violation of Section 8(a)(I) and (3) of the Act. Respondent's defenses regarding the January 10 termina- tion encompass in part the defenses raised to the later dis- charge and will be considered therewith. b. Events preceding the May 6 discharge During the investigation of the February I charges, Han- sen and his attorney considered offering Peralta reinstate- ment.'" On April 5, Peralta was offered reinstatement with full benefits and privileges, which she accepted. Peralta started her second period of employment on April 1 1. 1. Hairnets When Peralta first entered the bakery on April II. at about 6:20 a.m., Hansen said she needed a hairnet, to which she replied, "[Y]es, okay." Hansen said. "[Wjell bring it in tomorrow." To her knowledge, none of the other bak- ery employees was wearing a hairnet or hat on that day, nor did they wear hair coverings during her first period of em- ployment.' 7 To Peralta's knowledge, no one else had previ- ously been asked to wear a hairnet or hat, even though two male employees had long hair.' Peralta did not object to wearing a hairnet, knowing that head covering was required for individuals working in the bakery, but she objected to being singled out." She also stated that she felt coerced because she had never been asked previously to wear a hairnet while employed at Hansen's.0 She did not wear a hairnet after April 11, and did not see any other employee wearing a head covering, with the exception of Barragan, who occasionally wore a baseball hat. Hansen never men- tioned the subject of hairnets again; and until she was ter- minated on May 6, she did not accede to Hansen's request. Hansen testified that in requesting that Peralta wear a hairnet, he did not feel that he was guilty of disparate treat- ment inasmuch as Peralta was the only female. Hansen, on 5 Hansen does not deny making this statement. 15 Hansen alleged that he left the decision in the hands of his attorney. 17 Pnor to her discharge on January 10. the only employees who wore head coverings were Salvador Barragan, who wore a baseball cap, and Sigsby, who occasionally wore a little scarf when she was late and did not have time to comb her hair. 18 Todd's hair was shoulder length and Barragan's hair was to his neckline and over his ears. 1s No one else was wearing a hairnet or head covering. At the time of her second employment Peralta was the only female employee working in the baking area. 2 on April I 1, Peralta wore her hair piled high on her head, part of which was a wig. cross-examination, admitted that the health department rules require all employees in the working area of a bakery to wear a head covering. According to Hansen. only Martin Ellefsen wore a hat. Hansen explained his action by claim- ing that he differentiated by length of hair. This explanation is not credited, for Hansen admitted that Todd had fairly long hair and did not refute Peralta's testimony that Barra- gan also had fairly long hair." Furthermore, the female em- ployees who entered the baking and decorating area to box cakes, or for other purposes. were not required to wear hair- nets. 2. Decorating tools The second discussion Peralta had with Hansen the day of her return, April 11, occurred approximately 5 minutes after the hairnet incident. When Peralta reported to work, she did not bring any decorating tools. 23 Peralta requested Hansen to furnish her with tools, as he did for the other decorators. Hansen supplied a few tools, but many fewer than he supplied to the other decorators. Hansen claimed that he had ordered decorating tools for Peralta from a supply house; however, he did not answer the question re- garding whether the tools ordered were for other employ- ees. Hansen did admit that, to perform her duties, Peralta had to borrow tools from others. It is noted that the deco- rating tools ordered did not amount to the number or vari- ety used by the other decorators, 24 which Hansen did sup- ply. Hansen stated he did not know how many tools he gave the other decorators or what the tools he ordered did.2 despite the fact that he testified that he was an experienced decorator who trained others for many years and received many prizes for his decorating skills in competitions he en- tered. Peralta stated. without controversion. that the lack of tools impaired her facility to decorate, and she finally bought her own tools, for she was tired of working so slowly. Two coworkers, Todd and Lopez, stated that they needed the large variety of tools to work; if they did not have a large variety, it would limit the designs they could make, slow them down, and adversely affect the quality of their work. Upon her return to work, Peralta started working next to Todd in the decorating area. 6 The following day Peralta 21 Hansen could not remember the length of Barragan's hair. 22 Hansen stated that he never thought about the salesgirls having to wear head coverings for they were not in the bakery area for extensive periods of time. Hansen's testimony was contrary to Twitty's. Twitty stated that Dom- browsk) frequently entered the baking area to box cakes. As stated previ- ously. Twitty's testimony is credited. 21 During her first period of employment. Peralta furnished her own tools. She did not brinng her tools when reinstated because she had previously experienced difficulty with fellow employees borrowing her tools and forget- ting to return them. so she decided to leave her tools at home. Peralta's testimony was not questioned on this point. 14 Todd has about 50 tools. obtaining approximately 40 from Hansen. Lopez was provided between 30 to 50 tools. as Hansen then admitted that he did not know whether the tools he or- dered were usable by Peralta in accomplishing the tasks he assigned. a6 Hansen stated that shipments of supplies were stocked at Peralta's for- mer work station. Based on demeanor and inconsistencies in Hansen's testi- mony, Peralta's version is credited. Hansen's credibility will be discussed in greater detail hereinafter. Furthermore. Todd. whose testimony is credited based on demeanor and the possibility of adverse economic impact based on his current emplo)ment by Respondent. thought Peralta worked next to Todd when she was reinstated and was then moved 477 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was told to move to a table located in front of Hansen's office, an area not located in the decorating department. She remained at that location for approximately I week, and then was moved to an area in front of the ovens, after Peralta complained about working in front of Hansen's of- fice. While Peralta was working at these different locations. no decorator was regularly assigned to her former work location. 7 As previously stated, Hansen stated that the assignment to work locations outside of the regular decorating area was necessitated by the need to store supplies at Peralta's for- mer work location. Hansen said the area was not cleared until the week before the hearing. Respondent further said that he was in accord with Peralta that the location in front of his office was not agreeable, and that pursuant to her request, she was moved to the location in front of the oven. Hansen described the location in front of the oven as being comfortable, better lit than the decorating area and, in gen- eral, a desirable worksite that has been and continues to be used for cake decorating and special projects. The credited testimony of Peralta, Lopez, and Todd re- futes Hansen's contentions. These decorators stated that the heat from the oven melted the icing at times, making it difficult to decorate. Peralta's replacement, Star Kinsey (Kinsey), was initially placed in front of the oven and Lo- pez heard her complain about the heat, which adversely affected her decorating capabilities. Kinsey worked in that location for a week to a month and then was assigned a position next to Todd, Peralta's former position. This as- signment occurred more than a week prior to the hearing. Respondent regularly receives supplies, and there was no showing that the shipments received just prior to Peralta's reinstatement were exceptional, necessitating storage at her former worksite. The fact that she was able to work at her former location the first day of her return dispels any con- tentions of supplies stacked at that site.28 Accordingly, the reasons given by Respondent for changing her work loca- tion are found to be pretextual and without merit. 3. Talking Peralta, whose testimony is credited, recalled that during both periods of employment, her coworkers were allowed to talk and frequently conversed among themselves. During the first week after her reinstatement, when Peralta was stationed in front of Hansen's office, she was conversing with fellow employees in Spanish. Hansen came over and told her to be quiet; he did not want her talking. She replied 27 According to Lopez, when Peralta was working in front of the oven. her old area was not used for anything, which controverts Hansen's claim that the area was used for storage. Lopez is still employed by Respondent, and testimony against his employer could be detrimental to his future employ- ment. Additionally, he exhibited great candor and his testimony is credited. 28 The election was conducted May 6 at a location near Peralta's former worksite. Hansen stated the area was cleared specially for that purpose and. after the election, the supplies were returned to Peralta's former location. Respondent does have a regular storage area which was not claimed to have been full. Accordingly, if Hansen's claims were to he credited, he demon- strated that the area could have been cleared to permit Peralta to assume her former work location. 2 Lopez, Twitty. and Todd confirm this testimony. that she had the same privileges as the other employees, who were allowed to talk. Hansen stated that the other employees were not talking. About 10 minutes later, he re- turned to the workroom and instructed everyone to be quiet? °0 Hansen explained his actions as being necessitated by the loudness of the conversation. Hansen did not explain why he admittedly addressed his instructions to Peralta initially. There was no indication that the conversation was interfer- ing with the normal conduct of the business or that Peralta was talking louder than the other parties to the conversa- tion. Also, after her reinstatement, coworkers who used to talk with her freely during her first period of employment felt tension and avoided her. Peralta stated that when other employees spoke to her during working hours during the time she was situated in front of Hansen's office, he would hear her voice and come out of his office. Hansen would made no comment but would just stand there, look around, and then go back into his office. Twitty testified that he tried to talk to Peralta several times after her reinstatement. The first time3' Twitty tried to speak to Peralta, he noticed Hansen watching him and Hansen immediately ap- proached to within 12 feet of Peralta. Hansen did not say anything: he was described as "observing." When Twitty subsequently tried to speak to Peralta, Hansen, on each occasion, would interrupt the conversation by giving work instructions to Twitty. Consequently, Twitty tried to limit his conversations with Peralta or speak with her when Han- sen was not around. Twitty noticed that the other employ- ees also limited their conversations with Peralta. Todd admitted talking less with Peralta based on what he described as an "uneasy situation," stating: I was aware of what was going on, you know, of her termination, and of the lawsuit against Gary Hansen, and as I didn't want to cause any-I didn't want to talk to her because I didn't want to cause her any problems. Hansen's denial of treating Peralta differently than any other employee regarding conversing on the job is clearly refuted by the testimony of Peralta and her coworkers and by Hansen's admission that when he chastised the employ- ees for talking in the above-described conversation, he first told Peralta. and only Peralta, to be quiet. Only after Pe- ralta accused him of disparate treatment did Hansen re- quest the other employees to "keep it down." Accordingly, it is concluded that Peralta could not converse as freely as her coworkers because of Hansen's actions. 4. Supervision When Peralta first began working fbr Hansen in August 1977, he supervised her closely during the first 2 weeks, 13 This rendition of the event was confirmed by Lopez. ni Twitty indicated the first incident occurred on the first day Peralta re- turned to work. in front of Hansen's office, which was Tuesday,. April I However. Twitty indicated in other testimony that he did not work Tues- days. and therefore it is concluded that the incident occurred on Twitty's first workday after Peralta's reinstatement. The record is silent on this question. but there was no indication that Tlwitty's days off changed between Peralta's first and second periods of employment. 478 HANSEN CAKES, INC. watching and instructing her as to the type of work he ex- pected. Peralta stated she could not complain about this close supervision, indicating it was constructive. Thereafter, Peralta was supervised like the other more experienced decorators. For example, most of the checking of the cakes was done by the person boxing the finished product. Han- sen also walked through the bakery several times a day. According to Lopez, on some days Hansen did not super- vise a decorator at all; on other days, he supervised two or more times, depending, to some extent, on whether the as- signment was difficult or required techniques new to the decorator. When Peralta was reinstated, Hansen supervised her much more closely than during her first period of employ- ment. The amount of supervision was much greater than that of the other decorators. Additionally, new supervisory techniques were implemented, including the issuance of a memoranda describing decorating errors, daily worksheets listing cakes completed, and the photographing of errors. Hansen would stand 2 to 3 feet away from her for several minutes, five to six times an hour, criticizing her work, as compared to her first period of employment when she was personally supervised while decorating only two to three times a month. Todd observed the greatly increased fre- quency of Hansen's supervision and criticism for the en- tirety of Peralta's second employment. Todd described the closeness of supervision as comparable to that given a new employee. Todd did not consider Peralta a new employee. Peralta stated that the closeness and constancy of supervi- sion made her extremely nervous and caused her difficulty in performing her job. Respondent contends that the close supervision was ne- cessitated by the assignment of admittedly new and more difficult tasks. It is also contended that the system of issuing memoranda was instituted prior to Peralta's reinstatement. The record discloses that while another employee received a memorandum prior to Peralta's return, she was the first employee to receive a memorandum listing errors. Accord- ingly, it is found that the using of memoranda to document errors was instituted subsequent to Peralta's reinstate- ment.2 Hansen further admitted that he began photograph- ing errors during Peralta's second period of employment in an effort to document her errors. The worksheet detailing cakes decorated by the individual employees appears to have been required prior to Peralta's return. It is, therefore, found that the memo system and the photographing of er- rors were changes effected after Peralta's reinstatement. 5. Decorating assignments During Peralta's first period of employment, she deco- rated different types of floral cakes exclusively.?3 She chose the cakes to be decorated from a line in the refrigerator. The choice of work did not have to be cleared with Hansen. There was no evidence that Hansen assigned Peralta spe- l2 In a statement given to General Counsel. Hansen admitted that Peralta was given the first memo on errors. ' Basket cakes and floral birthday cakes. On the basket cakes. Peralta would pipe on anrous flowers directly from the decorating tube, and then would add flowers premade of royal icing. cific cakes to decorate, floral or otherwise, during her first period of employment. During her first period of employment, Peralta did have difficulty inscribing cakes, and other decorators generally did the inscriptions for her. It is unrefuted that in Decem- ber 1977. Hansen asked Peralta to make it her New Year's resolution that she improve her inscriptions: Peralta agreed. When Peralta returned in April, she no longer went to the refrigerator and chose the cakes she would decorate. After the first week.? she was given different types of deco- rating assignments" very few of which were florals. Addi- tionally, she was required to do her own inscriptions. Many of the assignments were new to Peralta and had previously been done by other decorators. Hansen denies that the change in assignments resulted in the imposition of more onerous or rigorous terms and con- ditions of employment. However, Hansen admitted later in his testimony that the tasks assigned during her second pe- riod of employment were more difficult and to some extent necessitated closer supervision. Hansen also explained the assigning of different tasks to ascertain Peralta's competency level. He noted that Peralta did not complain to him about the new job tasks she had been given, and she even commented that in most bakeries all decorators performed all decorating tasks. Hansen ob- fuscated his answer on cross-examination regarding whether Peralta was permitted to go into the refrigerator and select her own work. He indicated that the other deco- rators did not continue to select their work from the refrig- erator. but Lopez, whose testimony is credited for the rea- sons stated hereinbefore, stated that the decorators continued to select their own decorating tasks from the re- frigerator. Hansen claimed that during Peralta's second period of employment, the decorators did not have preference areas in which they specialized. Both Todd and Lopez testified to the contrary'. as did Peralta. and they are credited. Further- more, Hansen, in a statement dated March 31. 1978. given to the General ('ounsel's office. admitted that the decora- tors had preference areas. In this statement, Hansen recog- nized that his decorators had preference areas but averred that they needed to know how to do all types of decorating. Based on the credited testimony of Todd and Lopez, which confirms the testimony of Peralta. the different deco- rators have the following specialties: Don Todd does all the special tasks such as drawings and portraits as well as all the fine inscriptions. Todd is given all the hard tasks. Todd does the majority, if not all, of the special decorating assignments such as drawing, portraits, and fine printing. Todd does all his own inscriptions, and has been employed at Hansen's Cakes for about 6-1/2 years. Angelo Austin specializes in cutouts and sculpting." Aus- 4 There was a week's 'sacalion when the bakery was closed during Peral- ta's second period of emplo~lment, so the change in assignments actually occurred in the third week after her reinstatement. '1 The different assignments included. in part, a wedding cake decorated with crisscross hanging lace, sheet cake referred toi as the hlue-cross cake which was almost entirel printed inscription. small chvcolate waters to he inscrihed, and cake referred to as the director's chair cake. which as decorated bh drawing in icing several items Some of these cakes will he discussed inlro "' Such as baseball caps. tennis halls, and ttles of wine 479 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tin does his own inscriptions at times, but Todd and Lopez do about 50 percent of his inscriptions because Austin's printing is not very good. His inscriptions have improved over the last couple of years and he is close to reaching the Hansen standard. Austin has been employed at Hansen's 8 or 9 years. Martin Ellefsen specializes in decorating wedding cakes. According to Todd, Ellefsen does not do long inscriptions or inscriptions on small wafers, for his printing does not meet the Hansen standard. Todd estimated that he does one-third of Ellefsen's inscriptions, even though Ellefsen has been employed at Hansen's for more than 6 years. Joacquin Lopez is considered by Todd to be a general all- around good decorator who does beautiful floral arrange- ments on cakes, fancy scrollwork, and lacework. Todd and Peralta described Lopez' specialty as standard florals and layons. Lopez does all his own inscriptions. He has been employed by Respondent for 4 years. Placencia decorates standard floral cakes. Lopez and Todd had to assist Placencia by inscribing the cakes he had decorated when he first started but after a while his inscrip- tions improved to the point where he could do some of his own inscriptions; but Lopez still assists Placencia at times. Hansen occasionally decorates cakes, primarily standard florals, although he has also done drawings on the cakes. Hansen does his own inscriptions and puts inscriptions on cakes done by others. Peralta's specialty during her first period of employment, according to both Todd and Lopez, was floral arrange- ments. Lopez testified that Peralta decorated "almost the same as he, but she did one thing he did not do, figures." The record clearly demonstrates that Peralta could not in- scribe cakes in the Hansen manner," and that Todd, Lopez, and occasionally Hansen did most of her inscriptions dur- ing her first period of employment. According to Todd, Pe- ralta did do some inscriptions, mostly short messages. Todd has heard Hansen commenting to Peralta on more than one occasion that she would have to practice her printing be- cause it was not up to the Company's standard. According to Todd, Peralta was asked to do a couple of drawings during her first period of employment, but he believed that, because she did so well on floral arrangements, she was regularly assigned floral cakes to decorate. Todd heard Hansen tell Peralta on many occasions that he liked her florals, especially her spring florals and baskets of flowers. In Todd's opinion, Peralta was better than any other Han- sen decorator at piping3" the flowers right onto the cake. Hansen, on the other hand, did not consider Peralta a spe- cialist, and stated that he had never heard of a decorator specializing in florals. Hansen did not employ the technique of piping flowers directly onto cakes; he requested that the flowers first be made of royal icing, on a rose nail or other device, and later the decorations would be placed on the cake. Hansen considered the premade decorations to be su- perior. Todd testified that the other decorators used pre- made flowers because they were not as experienced as Pe- 37 The inscriptions were printed. 3s Piping refers to the technique of using a cake-decorating tube and tip to make a design or flower directly on an iced cake. ralta in piping on flowers. Hansen did not explain how his criticism of Peralta's technique of floral decoration coin- cided with his undenied compliments of the finished prod- ucts. Kinsey, who was hired as a decorator approximately I week after Peralta was terminated the second time, accord- ing to Lopez, is able to decorate all kinds of cakes, but not with the facility or rapidity of the other decorating special- ists. Kinsey does her own inscriptions but Lopez does not consider them up to Hansen's standards. Lopez considers her to be a very good decorator who just needs practice in overcoming her difficulty with inscriptions. Based on the foregoing, it is concluded that each of the decorators working at Respondent's bakery has recognized areas of specialization, unlike many bakeries where all decorators do all types of cake decorations. The credited testimony of Hansen's employees is that this specialization continued after Peralta's return on April II11. Peralta, though, was given decorating assignments outside her area of specialization. One assignment, characterized by Todd3 9 as being very difficult, was to decorate a dummy cake, referred to as the blue-cross cake. The cake had a blue cross at the top and the remaining decorations were extensive inscriptions, some long sentences requiring small letters. Not one of the deco- rators had seen Peralta decorate a dummy cake during her first period of employment, nor had they ever seen her as- signed a task with extensive inscription previously. Todd stated that he had never seen Peralta decorate such a diffi- cult cake before. Peralta admittedly, and by the general consensus of all the decorators who testified, did a poor decorating job on the cake. Todd further testified that the decorating assignment required concentration, " and if con- centration was interrupted, words could be misspelled or the decorator could get nervous and write crooked. Another assignment new to Peralta was printing inscrip- tions on small wafers or mints, about 1-1/2 inches in diam- eter. The inscriptions were names combined with happy anniversary. Todd described the assignment as difficult be- cause of the amount of writing required to be placed in a small space. Furthermore, Todd noted that the wafers deco- rated by Peralta had bumpy surfaces which are more diffi- cult to decorate. Todd, after examining pictures of the wa- fers decorated by Peralta, opined that she had progressed in her printing, for the mints "looked good." Todd doubted that Pedro Placencia could have decorated the wafers in a manner consistent with the Hansen standard. Hansen evaluated Placencia's skills as "adequate." Another cake assigned by Hansen to Peralta was called the director's chair cake. It required drawing and had some script inscription which Hansen stated he thought Peralta could do. Peralta was experienced in writing inscriptions in script. Peralta made numerous spelling errors. Although 39Todd decorated the original cake. ,0 It is noted that Peralta decorated this cake dunng a period of intense supervision when Hansen would oversee Peralta's progress very often. Todd had never previously observed a decorator being assigned a dummy cake outside his area of competence which was preserved, but the blue-cross was preserved. 480 HANSEN CAKES, INC. Hansen first testified that Peralta chose this cake to deco- rate, he later modified his testimony and admitted that he assigned the project to Peralta. Hansen also assigned Pe- ralta a wedding cake with crisscross hanging lace. Lopez had never seen Peralta decorate a similar cake. Peralta did a poor job on the cake. Hansen stated that he assigned different tasks to Peralta after her reinstatement to ascertain her competency level." He admitted that he assigned more difficult tasks to Peralta during her second period of employment, but denied impos- ing more onerous or rigorous terms or conditions of em- ployment. Hansen also denied that the decorators have preference areas, but when confronted with a prior state- ment given on March 31, 1978, he revised his testimony indicating that all decorators have preference areas, but they need to know how to do all types of decorating. Re- spondent then said the decorators did not want to specialize during Peralta's second period of employment. Next, he qualified this statement to indicate that after May 18 the decorators no longer chose their own work. Hansen's testimony is not credited because of the inconsis- tencies noted, as well as others. Additionally, current em- ployees testified that they still chose their own work by selecting from the orders in the refrigerator, although Han- sen did assign some special tasks to Todd, the special pro- jects decorator. Accordingly, it is concluded that Respon- dent altered only the decorating tasks assigned Peralta, tasks that were admittedly more difficult than were assigned during her first period of employment. C. Respondent's Defenses I. Incompetence Respondent asserts that one reason for the first termina- tion and the primary reason for the second termination of Peralta was incompetence. Errors committed by Peralta during her first period of employment were not docu- mented. However, Lopez testified that he made more errors than all the decorators during Peralta's first period of em- ployment primarily because he tended to spell the words in Spanish. Twitty, who boxed and inspected many cakes, tes- tified that between November 1977 and January 10, Lopez made the most errors, one to five a week, and Peralta made approximately zero to three errors a week.' 2 After Peralta's reinstatement, through the newly imple- mented recordkeeping procedures, Peralta's errors were documented. The record is replete with the numerous errors made by Peralta. However, these errors do not support a finding of discharge for good cause. The mistakes were a This testimony contradicts his testimony that one of the reasons Peralta was terminated on January 10 was because she was not competent, indicat- ing that Hansen had already ascertained her competency level and found it wanting. ,2 Twitty also testified that dunng her first period of employment, Peralta corrected her own errors. However, during her second employment, Hansen changed the procedure: Twitty was to show Hansen the error. Peralta, in undisputed testimony, said she was not permitted to correct her errors during her second term of employment. Twitty said the other decorators continued to correct their own errors. committed on projects that were new to Peralta and at a time when she was under extremely close supervision, fac- tors which, the credited Todd testimony indicated, would result in mistakes and poor performance. Peralta has what was described as a perception problem, resulting in the transportation of letters and words. This problem did account for a number of the mistakes docu- mented in the record which occurred during her second period of employment. Peralta claims that she informed Hansen of her perception problem when he first inter- viewed her and at a later meeting. Her application for em- ployment made no mention of the difficulty. Peralta also told Lopez and Dombrowsky about her perception prob- lem. She avers the problem never previously interfered to "that extreme" but the nervousness she experienced during her second period of employment exacerbated the condi- tion. Dombrowsky printed the instructions more clearly for her when she was given the wafers to inscribe, and it ap- pears that Peralta was able to complete the task without spelling errors. The application form fails to indicate the existence of any disability. However, it is concluded that this problem was not of such a nature that it prevented Peralta from perform- ing her duties in an acceptable manner. Peralta was able to perform her decorating duties during her first period of em- ployment without committing a great number of errors, as previously described. Twitty and Lopez both testified that Lopez committed more errors than Peralta during that pe- riod of time. It could be argued that the problem did not surface during her first period of employment because she inscribed very few cakes. This argument is not persuasive. During her second period of employment, Peralta reversed the color combinations set forth in the instructions. There is no evidence that she committed similar errors during her first period of employment. It is therefore concluded that the additional pressures she experienced after her reinstate- ment exacerbated the condition. Furthermore, it was dem- onstrated in the wafer incident that the clearer presentation of instructions greatly abated the problem. Peralta is cur- rently working as a decorator at Frederico's Bakery,' ap- parently effectively, though still suffering from the percep- tion problem. Accordingly, it is concluded that this disability is not of such a nature as to warrant a finding that Peralta is incapable of performing the duties of a decorator competently. Respondent avers that Peralta could not inscribe cakes to the Hansen standard. Peralta admitted that Hansen was dissatisfied with her inscriptions well before any union ac- tivity commenced at the bakery. There was no showing that the ability to inscribe cakes in the Hansen manner was a requirement of employment. Martin Ellefsen has worked at Hansen's for many years but still must be assisted in plac- ing long inscriptions on cakes. The same is true for Angelo Austin, who after many years is just developing the facility to inscribe cakes up to the Hansen standard. Todd, the best (3 Frederico's apparently does not impose as high a decorating standard as Hansen's; however, the described problem, if it were a consistent and dis- qualifying impairment, would have precluded the Peralta's effective perform- ance at Frederico's: yet Peralta has been able to hold a job at that bakery. 481 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decorator at Hansen's who is assigned the most difficult inscriptions, after examining the wafers inscribed by Pe- ralta, was impressed with the progress she had made, indi- cating that Peralta had the facility to learn to inscribe in the Hansen manner. 44 There was no formal training program to assist Peralta in developing her facility to inscribe cakes in the Hansen manner. Hansen did offer to stay after work to help her learn the skill. It is undisputed that at the end of December 1977, Peralta, pursuant to a request from Han- sen, promised, as a New Year's resolution, to work on her inscriptions. She did not have the opportunity to keep the promise because she was discharged on January 10. The foregoing findings that Hansen retained for years decora- tors who could not inscribe in the Hansen manner, cojoined with the indications that Peralta, with proper instruction and practice, could develop the facility to inscribe cakes consistent with the Hansen standard, lead to the conclusion that this defense is pretextual. Furthermore, Hansen could not recall whether Peralta made as many mistakes before her discharge on January 10 as she did during her second period of employment; nor did he know the quantity of her mistakes as compared to the other decorators. Yet he claims he terminated her for incompetence. Based on the admitted lack of recollection, this reason for termination is not cred- ited. Respondent further alleges that Peralta's overall decorat- ing skills were deficient, that all she could do was put roses on cakes. Hansen stated that her limited skills could not be called "specialization," but rather "isolation." This claim is not credited. Hansen admitted that he could not recall what type of work Peralta was doing as of January 10, so the basis for his testimony is placed in doubt. The statement he gave in February made no mention of Peralta's alleged in- competence, nor did the January 10 termination notice. Ad- ditionally, in one of three statements Hansen gave the Board, he admitted that Peralta did an acceptable job in floral decorations, especially roses.45 It appears that it was not until the time of the hearing that Peralta's skills became limited to placing roses on cakes decorated by others. The credited testimony of Todd, Lopez, and Peralta all support Hansen's original statement that Peralta was highly compe- tent in decorating floral cakes. Those witnesses also over- heard Hansen complimenting Peralta on the floral cakes she decorated, which further discredits the claimed incom- petence. Todd also testified, without refutation, that Han- sen had experienced a steady demand for standard floral birthday cakes over the previous 2 years. Todd stated that during Peralta's first period of employment a sufficient number of standard birthday cakes were ordered to keep her busy, and that floral cakes comprise a major portion of Hansens's business, approximately 50 percent, further con- tradicting the claimed "isolation" which could no longer be tolerated. This claim is also found to be pretextual. " As previously discussed, the wafers Peralta inscribed were bumpy mak- ing this task more difficult, yet Peralta did an acceptable job. Additionally. it was Peralta's undisputed testimony that the wafers were decorated while she was stationed in front of the oven, and the heat from the oven caused the icing to melt, greatly increasing the difficulty of the task. 45 This statement was made in the presence of Hansen's attorney. 2. Economic justification Respondent contends that the January 10 terminations were caused by a decline in business.4 plus the failure of plans to open up a third store to come to fruition. Specifi- cally, Respondent states that because Christmas and New Year's fell directly on weekends, business was very ad- versely affected. Additionally, Hansen stated that he was negotiating to lease a store in the San Fernando Valley area and was increasing his staff to handle the anticipated addi- tional business. When the lease was given to another busi- ness, Respondent contends that staffing requirements di- minished. These contentions are not credited as the basis for Peral- ta's discharge. Hansen admitted that he hired Peralta to replace another decorator who had left his employ. Peralta was hired prior to Hansen's entry into negotiations for the lease for a third store. Shortly after Peralta's second dis- charge, another decorator was hired to take her place. It also appears that Placencia was hired after the lease nego- tiations failed. Todd 47 confirmed Hansen's claim that Christmas was a slack period. However, Todd does not remember any other employee being laid off previously during the January slack period. In addition, Todd also stated that they were still busy after Christmas 1977. According to Todd, during his experience with Hansen's, over the years business has in- creased continuously; there were always birthday cakes, and the birthday cake business has increased to the point now that there is not much of a slack period.,' 3. Credibility of witnesses Respondent attacked the credibility of both Twitty49 and Peralta. The first attack on Peralta's credibility is her al- leged failure to disclose her visual disability and what is referred to as her lie on her application. The fact that Peral- ta's perception problem did not incapacitate her to perform her duties during her first employment at Hansen's and was not shown to have been disabling during prior employ- ments50 could have reasonably led Peralta to not consider the condition disabling. Additionally. Peralta testified that she informed Hansen during the employment interview about her perception problem. Hansen denied being so in- formed. Hansen has not demonstrated a clear recollection of past events and his denial is not credited. Another basis put forward by Respondent for discredit- ing Peralta's testimony involves a back injury incurred dur- ing her first employment at Hansen's. The medical records clearly show that Peralta sustained a back injury. However, the disability compensation claim alleges that the injury is totally disabling and continuing, even though she was working. Peralta credibly explained what appeared to be a 4' Respondent's financial records were subpoenaed, but only a portion were supplied; hence the claimed economic defense is undocumented. 47 As previously stated, Todd's testimony is credited. " Hansen, on the other hand, stated that people stopped ordering birthday cakes because the holidays fell on weekends. 49 See the preceding discussion regarding Twitty's credibility. 5 With the exception of Peralta's second employment at Hansen's, when the tense situation exacerbated the condition. 482 HANSEN CAKES, INC. misrepresentation as follows: she sought the advice of coun- sel and requested that he attempt to get reimbursement from the State for her medical expenses: the form was com- pleted by counsel and reflected his advice: Peralta did not appear to appreciate the medical significance of the claims appearing therein; and the claim was not shown to be mis- leading at the time it was filed. Finally, Respondent alleges that Peralta threatened Mo- desto and Guadalupe Gonzales with deportation if they did not join the Union, and told Guadalupe Gonzales that everyone would be mad at him if he did not go to the January union meeting. The testimony of the Gonzales brothers was unclear. Guadalupe testified in English, a lan- guage he had difficulty understanding and speaking. Mo- desto used a translator, but he also had difficulty in compre- hending the questions and responding clearly. Apparently what occurred was that Peralta, shortly after her first discharge, had asked Modesto if he wanted to sign the card, indicating it was solely Modesto's option. At some point in this conversation Peralta allegedly stated that whether or not he signed the card, "they' would get rid of us." The predicate for the "get rid of us" statement was not explained, so that the import of the statement cannot be put into a context permitting an analysis of its meaning or in- tent. The fact that Modesto clearly recalled Peralta inform- ing him during the same conversation that it was solely his decision whether to sign the card or not indicates that the alleged statement was not a threat. This conclusion is but- tressed by the fact that Modesto understood that they would be "gotten rid of' whether or not he signed the card. Modesto told his brother, Guadalupe, about this conver- sation. For some unexplained reason," the conversation was interpreted as a threat to inform the immigration au- thorities and have the Gonzales brothers deported. How- ever, the actual phrases testified to by Modesto, as found supra, do not support such an interpretation. After Peralta's first termination, Guadalupe told Hansen about the alleged threat. On March 22, the Gonzales brothers were asked to sign a statement about the incident, which they did. The statement said: "Sometime during the first week in Decem- ber 1977 we were approached by Irma Peralta with the following: If we do not sign the union card she would see to it that we would be deported back to Mexico."" Guadalupe recalled having two conversations with Pe- ralta regarding the Union. The first conversation was not clearly recalled, but he did remember that Peralta did not make any threat "about signing cards." The second conver- sation was either at the bakery or at the meeting and appar- ently occurred on January 9. The testimony then became very confusing. Guadalupe first stated that in the second conversation Peralta informed him about the union meet- ing; later he denied it was Peralta, claiming it was Barragan who told him about the meeting. Gonzales also stated that he had a number of conversations with Peralta regarding Mexico, but he admitted that the conversations were not in reference to the union organization campaign. Guadalupe '1 Modesto indicated that he did not like Peralta, stating that he hardl) talked to her and admitting that she used to address him and he would not reply. 51 It is noted that the cards were not distributed until the meeting held the evening of January 9. believes the conversation about Mexico occurred after the union meeting, but earlier stated he told Hansen about it at the end of November or in December 1977. Another example of the witness' confusion is that he first admitted that Peralta informed him that he did not have to be a citizen to be a union member and then denied Peralta informed him that he did not have to have a green card to support the Union or to be a union member. He stated that fact was common knowledge. The testimony that Peralta told him everyone would be mad at him if he did not attend the union meeting was equally confusing. Guadalupe said this threat was not made the same day as the meeting. As previously discussed, he denied at one point that Peralta told him about the meeting, and that the first conversation regarding the Union was devoid of threats. How the alleged threat arose and in what context is unexplained. The confusion in the testimony of the Gonzales brothers and the lack of a rational context require a finding that the record fails to demonstrate that the alleged threats were in fact made. Additionally, the Gonzales brothers did not make their allegations to Hansen until after he discharged Peralta, so the allegation cannot be found to be a persua- sive, affirmative defense regarding the January 10 dis- charge. Hansen knew of the allegation prior to his offer of reinstatement. Accordingly, the alleged threats cannot be deemed a cause of the May discharge. Iv. ANALYSIS ANI) (ON('LL SIONS A. Januar' 10 Discharge An employer may discharge or lay off an employee with- out violating the Act if this action is not motivated by un- lawful considerations. However, the existence of justifiable grounds for discharging an employee is no defense if the motivation for the layoff was in part the employee's engag- ing in protected activities. Barnes and Nsoble Bookstores. Inc., 237 NLRB 1246 (1978). Respondent argues that the evidence fails to show that Hansen knew about Peralta's involvement in the employ- ees' organizing efforts, so this discharge could not be based on an unlawful motivation. I do not credit this denial of knowledge that Peralta was active and prominent in the campaign to organize Respondent's employees in a business with few employees who work in close proximity to each other. Hansen admittedly interrogated several employees regarding the organizational campaign. Hansen's attitude was antiunion and he made an effort to ascertain who was at the union meeting. These conversations amounted to un- lawful interrogations. The day after Peralta's termination, Hansen stated that he considered Peralta the employee re- sponsible for the unionizing efforts. These facts warrant the inference, and I find, that Hansen knew Peralta was a union supporter. Alhbertson Manufacturing Companv. 236 NLRB 663 (1978). The timing of the discharge, the day after the union meeting, indicates discriminatory motivation. Liberty Mu- tual Insurance Co.. 235 NLRB 1023 (1978). Peralta's alleged inadequacies becarme intolerable onl the da) after the union meeting. Respondent contends that the basis for discharge was in- competence, discussed in detail .supra. Hansen did not ex- 483 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plain why he kept an allegedly incompetent employee ap- proximately 5 months, giving that employee a raise within the first 2 weeks to a month of her initial employment. Respondent also states that its economic situation re- quired the discharges of the three employees with the least seniority (see supra). Respondent claims that the staff was increased to meet the anticipated business increase due to his plans to open a third store. The failure of this plan to come to fruition is one alleged basis for laying off three employees, including Peralta. Hansen's testimony contra- dicts this assertion. Peralta was hired to replace another decorator who left Hansen's employ. Additionally, Hansen retained Peralta for almost a month after learning that the third store would not open in the near future. Hansen hired Placencia around the time, and possibly after learning, that he would not be able to open the third store. Where the motive is contradicting and unconvincing, the inference is that the real motive was unlawful. The Bendix Corporation; Research Laboratories Division, 131 NLRB 599 (1961), enfd. N.L.R.B. v. The Bendix Corp., 299 F.2d 308 (6th Cir. 1962), cert. denied 371 U.S. 827 (1963). The fact that the business was allegedly in one of its cyclical slow periods, as discussed above, is also a pretextual reason for the discharge. The Company has never before laid off or discharged employees during the yearly slow periods. Variance by the employer from normal business practices further supports an infer- ence of unlawful motivation. McGraw-Edison Company, 172 NLRB 1604 (1968), enfd. 419 F.2d 67 (1969). Hansen admitted that the reasons given to Peralta for her discharge were pretextual. The use of pretextual reasons in discharging an employee strongly indicates that the reasons are advanced to mask unlawful conduct. N.L.R.B. v. Wal- ton Manufacturing Company & Loganville Pants Co., 369 U.S. 404 (1962). Also relevant in determining motivation is the employer's use of a multiplicity of alleged reasons and the belated explanation for its actions, which are familiar signposts to discriminatory intent. See La-Z-Boy Tennessee, 233 NLRB 1255 (1977); N.L.R.B. v. Superior Sales, Inc., 366 F.2d 229 (8th Cir. 1966). Respondent claims the discharges were made based on seniority. General Counsel argues that Twitty was less sen- ior than Peralta. Twitty was designated a management trainee and was in a different job classification. However, there was no allegation that Twitty held supervisory status. George Lewis, who was not a decorator, was also dis- charged. Hansen's disregarding seniority criteria in recall- ing the two employees discharged with Peralta"l is indica- tive of discriminatory motive. Medline Industries, Inc.. 233 NLRB 627 (1977). Respondent also uses the fact that two other employees who were discharged with Peralta were not shown to be union adherents. Shortly after Placencia's discharge on January 10, he was rehired. Hansen claims that Barragan, the head baker, was injured, necessitating replacement. However, Placencia did not assume Barragan's baking du- ties; rather, he continued as a decorator. This defense is yet another unconvincing explanation of the Company's mo- tive. 53 Placencia and Lewis were both recalled to work shortly after they were terminated on January 10. Another of Respondent's contentions is that other em- ployees who were involved in union activities were not ter- minated. "[A] discriminatory motive, otherwise established, is not disproved by an employer's proof that it did not [take similar action against] all union adherents." N.L.R.B. v. W. C. Nasors Co., 196 F.2d 272, 276 (5th Cir. 1952), cert. denied 344 U.S. 865 (1965). Upon all the facts, including the above indicia of unlaw- ful motive, I conclude that Hansen's motive in discharging Peralta was an unlawful motive, a desire to rid himself of a leader of the unionizing effort in order to which discourage the unionization effort, in violation of Section 8(a)(1) and (3) of the Act. Changes After Peralta's Reinstatement; Peralta's Discharge on May 6 As found above, Respondent instituted many new prac- tices and procedures immediately prior to or at the time of Peralta's reinstatement. Hansen admitted that at the time of Peralta's return, he was fully aware of her union activities. Hansen further admitted that at the time of Peralta's first discharge, he had no intention of rehiring her. When Pe- ralta reported to work, as previously found,4 she was singled out for special observation and harassment. The system of writing memoranda describing errors and taking photographs thereof was started when Peralta returned. The changes, Hansen contends, were implemented to im- prove management oversight. The timing and nature of the changes, however, cojoined with Hansen's animus, as found previously, support the conclusion that the changes were designed to create and document causes for Peralta's subse- quent discharge and were done with discriminatory intent, in violation of Section 8(a)(1) and (3) of the Act. See Florida Steel Corp. v. N. L. R. B., 529 F.2d 1225 (5th Cir. 1976), and National Tape Corporation, 187 NLRB 321 (1970). Respondent's stated reasons for Peralta's termination and the changes in working conditions do not withstand scru- tiny. No clear reason was given why Peralta's former work area could not be cleared. Hansen admitted he had regular storage areas which were regularly used and there was no claim these storage areas were full. The assignment of unfa- miliar tasks which were beyond Peralta's acknowledged area of expertise was allegedly made to ascertain her skills. This reasoning, as previously discussed, was found to be pretextual. Peralta had worked for Respondent approxi- mately 5 months, affording ample opportunity for assess- ment of speciality areas. Hansen claimed he discharged Pe- ralta because she could not do the assigned tasks, yet Hansen assigned tasks admittedly more difficult and outside of Peralta's area of expertise. Accordingly, this reason given for the change in working conditions is found to be pre- textual. The institution of the systems to document errors coin- ciding with Peralta's reinstatement is found to be motivated by a desire to document causes for her eventual termina- tion. The existence of grounds for termination was insured s4 Peralta was requested to wear a hairnet while none of the other decora- tors were requested to wear hair coverings, her work location was changed, she was supervised very closely, the nature of her assignments was changed, she was precluded or inhibited from conversing with other employees, she was given insufficient tools, etc. 484 HANSEN CAKES. INC by the assigning of admittedly more difficult and unfamiliar tasks, the failure to provide adequate tools, the greatly in- tensified supervision causing lack of concentration and ner- vousness, and the less amenable work locations. Respon- dent failed to provide material evidence in the form of business records or supporting evidence of other employees' errors that would justify or explain his actions. After weighing all the evidence and circumstances, and considering all of the parties' contentions, I find that the changes in working conditions were illegally motivated and were implemented to justify eliminating a union activist from the work force. It is therefore found that Respondent discriminatorily changed working conditions and dis- charged Peralta in violation of Section 8(a)(3) and (1) of the Act. CON(I.:SI()NS OF LAW I. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act, engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent interfered with, coerced, and restrained employees in the exercise of rights guaranteed in Section 7 of the Act, thereby committing unfair labor practices pro- hibited by Section 8(a)( ) of the Act, by: (a) Questioning employees concerning their union activi- ties and the union activities of other employees. (b) Threatening to impose more onerous working condi- tions should the Union represent the employees. (c) Threatening to blackball an employee for her union activity. 4. Respondent discriminated with respect to employees' tenure and terms and conditions of employment, thereby discouraging membership in a labor organization and com- mitting unfair labor practices prohibited by Section 8(a)(3) and (I) of the Act. by discharging Irma Peralta on January 10 and not reinstating her until April I1;: when reinstating Peralta. by imposing more onerous terms and conditions on all the employees and. in particular, upon Irma Peralta by discharging Irma Peralta on May 6: and by failing and refusing to reinstate her thereafter. THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices within the mean- ing of Section 8(a)( ) and (3) of the Act. I shall recommend that it cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. Accordingly, Respondent shall be ordered to immediately reinstate Irma Peralta to her former job or, if that job no longer exists. then to a substantially equivalent job, without prejudice to her seniority and other rights and privileges, and to make her whole for any loss of earnings and compensation she may have suffered because of this illegal discrimination against her in her employment as herein found. Backpay shall be computed with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950) and payment of 6 percent interest per annum" shall be computed in the manner prescribed by the Board in Florida Steel Corporation, 231 NLRB 651 (1977).6 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER" The Respondent, Hansen Cakes, Inc., Los Angeles, Cali- fornia. its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Questioning employees about union activities. (b) Selecting employees to inform Respondent regarding union activities. (c) Threatening to have union supporters blackballed. (d) Discriminating against any employee in regard to hire, tenure, or any term or condition of employment in order to discourage membership in or activities on behalf of Local No. 37, Bakery & Confectionery Workers Interna- tional Union, AFI. CIO, or any other labor organization. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the National abor Relations Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer Irma Peralta immediate and full reinstatement to her former position as a decorator or, if such position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights or privileges, and make her whole for loss of earnings in the manner set forth in the section of the Decision entitled "The Remedy." (b) Expunge from Respondent's personnel records any and all references to the discriminatory termination of em- ployment of Irma Peralta as a decorator. (c) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records and reports and all other records necessary to ana- lyze and determine the amount of backpay due under the terms of the Order. (d) Post at its Los Angeles, California. facilities, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Re- gion 31, after being duly signed by the Respondent's repre- sentative, shall be posted by the Respondent immediately " Counsel for General Counsel seeks the computation of interest at a rate higher than that prescribed by the Board. This policy can only be altered by the Board and is hereby referred for their consideration. "See, generally. Isis Plumbing d Heating Co., 138 NLRB 716 (1962). "? In the event no exceptions are filed as provided by Sec 102.46 of 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. 1s In the event that the Board's Order is enforced by a Judgment of a 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." 485 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon receipt thereof and maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 31 in writ- ing, within 60 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURIHER ORDERED that the amended complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein. 486