The Well-Bred Loaf, Inc.

306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Well-Bred Loaf, Inc. and Bakery, Confectionery & Tobacco Workers International Union of America, Local No. 3, AFL-CIO. Cases 2-CA- 17508, 2-CA-17589, and 2-CA-17596 11 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 4 June 1982 Administrative Law Judge Stan- ley N. Ohlbaum issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions as modified and to adopt the recom- mended Order. 1. We agree with the judge that the Respondent unlawfully interrogated employees. The test for de- termining whether interrogation violates Section 8(a)(1) is whether under all the circumstances it reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act.2 Applying the test to this case, we find that Baking Supervisor Bodek's questioning of employees Ramkissoon Ramrattan and Eduardo Jaramillo in August 1980 and employees Ramrattan and Mohammed Bhatti in October 1980 was coercive. The employees questioned had not openly declared their support of the Union. Bodek was their shift supervisor. He asked detailed questions: which employees were participating in union activity, which had signed union authorization cards, and whether Ramrattan and Bhatti had spoken to the union organizer. He accompanied his questions to Ramrattan with a warning not to sign a union card and a threat that the Respondent's owner had stated he would dis- charge all employees who were involved in union activity. The questioning in the total circumstances 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings. We also find the Respondent's contentions that the judge was biased without merit. There is nothing in the record to suggest that his conduct at the hearing, his resolutions of credibility, his rulings, or the inferences he drew were affected by any bias or prejudice. Y See Rossmore House, 269 NLRB 1176 (1984) undeniably infringed upon the employees' Section 7 rights. 2. Like the judge, we find that the Union has demonstrated by union authorization cards that during the stipulated material period, 5 to 10 Octo- ber 1980, it represented a majority of the unit em- ployees.3 We disagree, however, with some of his comments about the cards, and we will not count employee Leesa O'Dell's card. In discussing the validity of several cards4 that the Respondent contests on the ground that the card solicitor told the signer that the card would be used only for an election, the judge reasons that "regardless" of what the solicitor tells the signer, the language of an authorization card prevails if it is unambiguous. Representations by a solicitor, however, may limit and cancel card language and may invalidate a card for purposes of determining majority status when, in effect, they direct the signer to disregard the card language.5 Therefore, 8 The cards expressly designate the Union as bargaining representative. They read in pertinent part: "I hereby request and authorize Bakery, Confectionery & Tobacco Workers Internat'l Union of America, Local No 3 to act for me as my sole collective bargaining representative in all matters pertaining to wages, hours and all other terms and conditions of employment." 4 The cards of Fauzia Ashig, Florence Miller, Vallone Miller, and Leesa O'Dell. We agree with the judge that Florence Miller was not a supervisor from August through October 1980, when she signed a umon authoriza- tion card and solicited employees Vallone Miller and Fauzia Ashig to sign cards. Florence Miller's personnel file shows that she was hired as a packer 13 September 1978, was promoted to packing supervisor 9 April 1979, and was "Retired from Supervisory position" April 1980. Miller's semian- nual evaluation dated 26 January 1981 shows her job title as "packer," evaluates her as "outstanding," and states her major weakness as "unwill- ing to take on responsibility " Miller testified twice at the hearing. On 16 April 1981, as the General Counsel's witness, she stated that she was a packer and had been em- ployed as a packer during August through October 1980. She gave testi- mony about umon authorization cards, but was not questioned about her packing duties or responsibilities On 3 June 1981, as the Respondent's witness, Miller testified that in May 1981 she had become packing crew chief with a pay increase of $25 a week. Questioned about her duties during 1979 and 1980, when she was packing supervisor , Miller testified that she totaled and initialed timecards , arranged schedules and overtime, ordered supplies, and assigned packing tasks . She further testified that after her reclassification to packer , she continued the same duties , assisted the packing supervisor, and made suggestions the supervisor followed. In addition, she stated that the packing manager told her it was expected that she would keep the packing section in order and running smoothly. Witness Vicki Goodman, who worked for the Respondent in various supervisory or managerial positions, and who worked temporarily as a packer sometime during September and October 1980, testified that during that time Miller gave packers work orders and assigned packers to pack delivery runs. She testified also, however, she was not sure of Mil- ler's responsibilities and did not know whether Miller added up or ini- tialed timecards, ordered supplies, assisted the supervisor in arranging schedules, or made recommendations about overtime. A finding that Miller was a supervisor in August through October 1980 could rest only on Miller's testimony as the Respondent's witness. The judge, however, did not credit her testimony, based in part upon demean- or observations, and we see no reason to reject his credibility finding 5 See NLRB v. Gissel Packing Co., 395 U S 575, 606 (1969), Sambo's Restaurant, 269 NLRB 1187 (1984), Cumberland Shoe Corp, 144 NLRB 1268 (1963), enfd 351 F 2d 917 (6th Cir 1965). 280 NLRB No. 36 WELL-BRED LOAF, INC. we do not rely upon the judge's comment. We find, nevertheless, that the cards of Fauzia Ashig, Florence Miller, and Vallorie Miller validly au- thorize the Union to be bargaining representative. The judge did not make specific findings as to what representations the card solicitors made to Ashig, Florence Miller, Vallorie Miller, and O'Dell because of his view that the card language prevails over any representation. In determining the cards' validity we rely on his credibility findings concern- ing other testimony and find that the solicitors did not make representations to Ashig and the two Millers that negated the card language.6 We find that there is a question whether a representation was made to O'Dell that canceled the card lan- guage, and we do not consider her card a valid designation of the Union as bargaining representa- tive.7 3. We consider a bargaining order an appropriate remedy, as the judge recommended. We reject, however, the judge's suggestion that a bargaining order may be warranted when a labor organization has not achieved majority status. The Board con- sidered this question in Gourmet Foods, 270 NLRB 578 (1984), and decided that a nonmajority bargain- ing order is not a remedial option. In this case the Union represented a card majority from 5 to 10 October 1980. We conclude that employee senti- ment concerning representation, expressed by the card authorizations, would, on balance, be better protected by a bargaining order than an election, as the possibility of ensuring a fair election by the use of traditional remedies is slight.8 The Respondent's unfair labor practices were se- rious and pervasive. Soon after organizational ac- tivity began in August 1980, the Respondent inter- rogated employees about the activity and warned that it would discharge union adherents. It then discharged four employees, including the two 6 We cannot rely on Florence Miller's testimony that in soliciting Ashig to sign a card she told Ashig that "we need her signature on the card only to have a vote." The judge discredited Miller's related testimo- ny and described some of her testimony as "seriously prevancative." We also do not rely on Miller's testimony that Carmen Mann, who asked her to sign a card, told her the "sole purpose " of the cards was to get an election, or her testimony that in soliciting Vallone Miller to sign a card she told Vallone Miller what Mann had said. We accept the testimony of Marin, whom the judge credited on other issues, that she told Florence Miller "we would have elections after we would get 50 percent of the cards" and that to join the Union, Florence Miller would have "to sign the card." We also rely on Vallorie Miller's testimony that , when she au- thorized Florence Miller to sign a card for her, Florence Miller said "that if we get enough votes-enough people to sign the cards, the Union would come in " 7 O'Dell testified that Paula Reynolds, who had secured the authoriza- tion card for her to sign, told her that the signed cards "would enable us to have a vote to bring the Union in, but it was just to vote." Reynolds testified that she did not remember whether she said anything to O'Dell about the purpose of the cards. The judge credited the testimony of both O'Dell and Reynolds on other issues. 8 See NLRB Y. Gissel Packing Co., above at 614. 307 union leaders. In October 1980 it again questioned employees about union activity and discharged two other employees. The threat of discharge and the actual discharge of six employees are violations that are highly coercive and resistant to traditional remedies. The unit is small, comprising 23 employ- ees, and 6 of these lost employment because of their union activities. Three employees were sub- jected to coercive conduct, and two of these in turn cautioned some other employees. Although the Respondent reinstated two of the employees it unlawfully discharged in August, any mitigating effect the reinstatements may have had, as the Re- spondent urges, was overcome by further unlawful conduct after the reinstatements-additional inter- rogation and the discharge of two other employ- ees.9 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, The Well- Bred Loaf, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 9 In approving the bargauung order in this case, Member Dennis relies on the analysis set forth in her concurring opinion in Regency Manor Nursing Home, 275 NLRB 1261 (1985) Timothy J. English and John R. Westhoff, Esqs., for the General Counsel. Fred C. Klein, Roger H. Briton, & Jeffrey H. Lapidus, Esqs. (Messrs. Seham, Klein & Zelman, Attorneys), of New York, New York, for the Respondent. M. Margaret Terry, Esq. (Messrs. Cohn, Glickstein, Lurie, Ostrin, Lubell & Lubell, Attorneys), of New York, New York, for the Charging Party. DECISION PRELIMINARY STATEMENT-ISSUES STANLEY N. OHLBAUM, Administrative Law Judge. This proceeding under the National Labor Relations Act (the Act), based on a consolidated complaint issued on December 10, 1980,1 by the Regional Director for Region 2 of the National Labor Relations Board, grow- ing out of charges filed on September 2 and October 14 and 15, 1980, by the Charging Party was litigated before me in New York City, New York, on various dates from April 13 to June 18, 1981, with all parties appearing by counsel2 who were afforded full opportunity to present i At the outset of the trial, the General Counsel indicated that the con- solidated complaint subsumes the original complaint (dated October 22, 1980). Accordingly, all references herein are to the consolidated com- plaint. Unless otherwise specified, date references throughout are to 1980. Counsel for the Charging Party attended only the first day of the trial. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence and arguments, as well as to file posttrial briefs, which after several unopposed applications for time ex- tension, were received from the General Counsel and counsel for Respondent in September 1981. The trial re- quired 14 days, with 28 witnesses (3 of whom were called by both sides), 2056 transcript pages, and 260 pages of exhibits; with briefs totaling an additional 248 pages, in all over 2500 pages of written matter. Record and briefs have been carefully considered. The principal issues are whether, in violation of Sec- tion 8(a)(1), (3), and (4) of the Act, Respondent: ( 1) inter- rogated employees concerning their union membership, activities, and sentiments; (2) warned employees to re- frain from union activities; (3) created the impression on surveillance over employees' union activities; (4) threat- ened employees with discharge for union membership or activity; (5) discharged employees for giving testimony to the Board under the Act; and (6) discharged employ- ees for union membership, activity, or support. A further principal issue is (7) the appropriateness of an electionless bargaining order3 to remedy Respondent's alleged viola- tions of the Act. On the entire record and my observation of the testi- monial demeanor of the wtinesses, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION At all material times, Respondent has been and is a New York corporation, with office and place of business in the county, city, and State of New York, engaged in the retail and wholesale bakery business. From its oper- ation of that business, during the representative year im- mediately preceding issuance of the complaint, Respond- ent derived gross revenues exceeding $500,000, and also, within the same period at the same place for that busi- ness, purchased and received goods and materials of gross value exceeding $50,000, from other New York en- terprises, each of which received same directly in inter- state commerce from States other than New York. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7), and that at all times the Charging Party has been and is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES: FACTS AS FOUND A. Background Respondent operates a bakery located on the second floor of a loft building at 432 East 91st Street, between York and 1st Avenues, in New York City. Respondent's primary and almost exclusive product is dessert cakes and cookies, with but little bread. In the front portion of its loft are its offices; tables, mixing apparatus, and ovens are in the unpartitioned rear, where its products are also boxed for delivery. Respondent additionally operates a separate retail sales store about two blocks away, on Second Avenue between 90th and 91st Street. Its pro- 8 NLRB v. Gissel Packing Co, 395 U S. 575 (1969) duction and maintence employees in its bakery (bakers, packers, and maintenance workers) total around 25.4 It is conceded that union organizational activity, under the aegis of the Charging Party with the in-plant leader- ship of various employees, commenced in August 1980 and moved into higher gear around the end of Septem- ber-early October 1980. This activity was common knowledge not only among Respondent 's employees, but alsos on the part of Respondent, which continued to maintain open hostility thereto (as was its undoubted right, within lawful parameters). It is within the context of this organizing activity that the spate of alleged violations of the Act by Respondent, here complained of but denied by Respondent, are claimed to have occurred . These will now be examined. B. Specific Alleged Violations 1. Interrogation of employees concerning union affairs The complaint (par. 10) alleges and the answer denies that on various occasions in August and October 1980 Respondent through its supervisor , Baking Foreman John Bodek, interrogated employees in violation of Sec- tion 8(a)(1) of the Act concerning their union member- ship, activities, support, and sympathies. Respondent's former baker Ramkissoon Ramrattan tes- tified credibly that in early August, soon after the start of union attempts to organize the bakery employees and after fellow employee Carmen Marin had solicited him to sign a union card, he was summoned into the privacy of the refrigeration room by Baking Supervisor Bodek (Bodek), who, after informing him that Owner Caccavo was "very worried" about these activities, questioned Ramrattan about which employees were involved, specif- ically singling out Ramrattan's fellow baker and friend Mohammed Bhatti. Ramrattan professed ignorance. Bodek told him Owner Caccavo had stated he would fire all employees involved. As soon as he left the refrig- erator, Ramrattan warned Bhatti to "be careful." Later that day he learned Marin had been fired. Thereafter, "almost on a daily basis," Bodek continued to prod Ram- rattan on whether "[you] saw the union guy today" and to inquire of him if he knew "anyone who else signed the card," while at the same time warning him, "Don't sign a card." Respondent's oven tender Eduardo Jaramillo, steadily in Respondent's employ for about 3 years,6 testified cre- dibly that in August he also was questioned by Bodek, who asked him to "tell [me], if I knew who was getting mvolved in this thing with the union, about signing the papers," referring to them as "troublemakers." Jaramillo denied any knowledge, but immediately thereafter he 4 This is an approximation for introductory orientation purposes only. See sec. III,C, infra for more precise figures Testimony of Respondent's principals Caccavo and Glicken as well as Supervisor Bodek. 6 We have been instructed that such witnesses, testifying at risk of em- ployer reprisal, may deserve an extra credibility mark for that reason. Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2 (1961), enfd. as modified 308 F.2d 89 (5th Cir 1962), Wirtz v. B.A.C. Steel Products, 312 F 2d 14, 16 (4th Cir 1962) WELL-BRED LOAF, INC. warned Carmen Mann to stop passing out union cards "because John Bodek was looking for those people." Jar- amillo, a credible witness, was uncross-examined and his testimony stands undisputed. Respondent's former packing supervisor Vincent Soto testified credibly that in mid-August he and fellow Su- pervisor Eric Isler were summoned to the office of Owner Caccavo, where, in the presence of Respondent's manager Guy Sikes (Shar), Caccavo and Sikes asked them what they knew about union activities, including distribution of union cards. When Soto and Isler re- sponded in the negative, they were instructed to report such activities.7 Baker Ramrattan testified additionally that on October 2, after he signed a union card on the street before re- porting to work, under observation by Bodek, as soon as he reported in Bodek demanded to know, "What [were you] speaking to the union man about? [I know that he is] a union organizer." From that day (October 2) until his discharge on October 9 (see infra, sec. III,B,6,e&f), Bodek continued to ply Ramrattan concerning union ac- tivities and card signers, at the same time warning Ram- rattan to desist. Respondent's former baker Mohammed Bhatti testified credibly that while baking a cake on October 3 he, too, was questioned by Bodek whether Bhatti had "seen the union person on the corner" (Bhatti, with Ramrattan, had indeed signed union cards on the street the day before, under Bodek's observation). Bhatti remained silent. (He, too, was discharged, with Ramrattan, on Oc- tober 9, under circumstances described infra, sec. III,B,6,e&f.) Respondent's initial defense to the foregoing, in its answer, was a denial. On opening argument at the trial, its contention was that its interrogations were uncoercive and that the information elicited was "volunteered" by the employees in question. (Its contentions remain the same on brief.) Respondent's witness Bodek conceded during cross-examination, after lengthy hesitation, that information concerning union activities, including names of employees who had signed union cards, was elicited in response to his questioning of Ramrattan as well as Bhatti;8 and that Bodek passed this information on to Respondent's principal Caccavo, subsequent to which some or all the identified employees were terminated. On the entire record, crediting the foregoing testimony of the interrogated employees, I find that, as alleged in the complaint (par. 10), Respondent in August as well as October 1980 interrogated employees, in violation of Section 8(a)(1) of the Act, concerning union member- ship, activities, support, and sympathies. 2. Warnings to employees to refrain from union activities The complaint alleges (par. 11), and the answer denies, that from August to October Respondent, through its 7 This particular incident, involving Soto and Isler, may not be regard- ed as violative of the Act, nor is it so alleged , since Soto and Isler were, at the time, supervisory employees a During later cross-examination , Bodek stated he questoned only Ramrattan, not Bhatti, concerning the Union. 309 baking supervisor Bodek, warned and advised employees to refrain from union-assisted activities. Concerning the foregoing, Respondent's former baker Ramrattan testified, as will be recalled, that when he was interrogated by Bodek in the privacy of the refrigerator in August, Bodek warned him that Respondent's princi- pal Caccavo had stated that he would fire all employees involved in union activity, and Bodek continued to wom Ramrattan not to sign a union card. Also on October 2 (the same day as Ramrattan signed a union card and a week before his discharge), Bodek warned him that he did not "want the employees to be speaking to Carmen [Marin] because she was the one that was bringing in the union"; and thereafter Bodek continued to warn Ramrat- tan not to sign up with the Union-a warning relayed on by Ramrattan to his fellow bakers Arnold Worthman and Mohammed Bhatti, as testified to by each of them. The matter concerned Bhatti to the extent that he indi- cated to Bodek in the refrigerator in August that he had nothing to do with the Union and did not want to be falsely accused or suspected, drawing reassurances from Bodek that he would report this to principal Caccavo. These matters having been testified to persuasively, I find that, as alleged, Respondent in August as well as October 1980 warned employees to refrain from union activities. 3. Creation of impression of surveillance over employees' union activities The complaint (par. 12) alleges and the answer denies that about October 2 Respondent through its supervisor Bodek created the impression that its employees' union activities were under its surveillance. Credited proof9 establishes that on their way to work on October 2, on a street corner about 200 feet from the bakery, Respondent's former bakers Ramrattan and Bhatti, at the behest of their fellow worker Carmen Marin (the leader of the union organizational activities among the bakery employees) and union organizer Narciso Martas, signed union representation cards. At the time, as it happened-there is no proof to the con- trary, that he was following them or that he was deliber- ately spying on their movements-Respondent's baking supervisor Bodek was passing by, on this public street near Respondent's bakery, also on his way to work, and saw and greeted them. Whether Bodek saw them actual- ly signing cards is disputed and conjectural-Bodek indi- cates he did not. Bodek proceeded to the bakery, but, ac- cording to the General Counsel's witnesses, he soon thereafter emerged and looked at them again. On this record, I find the allegation in question not es- tablished by preponderating substantial evidence as re- quired. t 0 It has not been shown that Bodek deliberately 9 Testimony of General Counsel witnesses Mann, Martas, Ramrattan, and Bhatti i° Administrative Procedure Act, 5 U S C §§ 556(d), 706(2)(E); Con- solidated Edison Co. Y. NLRB, 305 U S. 197, 229, 230 (1938); NLRB Y Bell Oil Co, 98 F 2d 406, 410 (5th Cir 1938), NLRB v. A. S. Abell Co., 97 F 2d 951, 958 (4th Cir 1938), Attorney General 's Manual on the Admin- istrative Procedure Act 75 (1947) 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD positioned himself where he could or did spy on the inci- dent in question. For aught that appears, Bodek was simply on his way to work, as were Ramrattan and Bhatti, on a public sidewalk close to the bakery. The fact that Bodek later emerged from the bakery after entering it and looked in the direction of the group is of insuffi- cient significance, in my opinion, to constitute a violation of the Act. It has been pointed out" that it does not constitute unlawful surveillance or creation of that im- pression for an employer to observe that which is plain to see while he is about his usual business or activities and without his having deliberately and obtrusively placed himself to spy over his employees' union activi- ties; and, indeed, not even in the latter situation when it is within his business premises during his employees' paid worktime while they should be working. Because the proof here fails to establish creation of the impression of surveillance in violation of the Act, I find the allegation in question not sustained. t 2 4. Threats of discharge for union membership or activity The complaint (par. 9) alleges and the answer denies that about August 22 Respondent through its baking foreman Bodek threatened employees with discharge if they joined or remained members of the Union or en- gaged in activities on its behalf. Concerning this, Respondent's former baker Ramrattan testified credibly that in August Bodek informed him that Respondent's principal Steven Caccavo had said he would fire all employees who had signed union cards. Not only is this totally undisputed by Bodek, but Bodek conceded during cross-examination that when he discovered and reported the union organizational activity to Caccavo in late August, the latter indicated to him that he would "nip the situation in the butt [sic]" by ter- minating employees involved with the Union-and that those employees were, indeed, later terminated. I find that allegation in question established. 5. Discharge of employees for giving testimony to the Board under the Act Paragraph 15 of the complaint alleges that, in violation of Section 8(a)(4) and (1), Respondent discharged its em- ployees Ramrattan and Bhatti on October 9 additional- lyls because they supplied the Board with an affidavit and gave testimony under the Act. ii Cf. NLRB v. Simplex Time Recorder Co, 401 F.2d 547, 549 (1st Cir 1968); Federated Department Stores, 241 NLRB 240, 243 (1979), Porto Sys- tems Corp, 238 NLRB 192 (1978), enfd 625 F 2d 399 (2d Cir 1980), Em- erson Electric Co., 177 NLRB 75, 87, and cases cited (1969). But cf Elm Hill Meats of Owensboro, 205 NLRB 285 (1973); Cannon Electric Co, 151 NLRB 1465 (1965) 12 In this connection, while in my opinion, Bodek's happening to see the described incident (or part of it) while passing by on the street going to work is clearly not violative of the Act, because he was not required to put a blindfold on or look the other way, Bodek' s described reemer- gence from the bakery might not similarly be regarded However, Bodek disputes this, and even were it to be assumed that he did reemerge and glance in their direction , the episode as described in the given context is simply too equivocal and trivial , in my estimation, to rise to the level of a violation of the Act. 13 I e , in addition to their union membership and activities discussed infra, sec. III,B,6,e&f The proof 14 establishes that on October 7 Respond- ent's former baker Ram rattan, who was discharged by Respondent 2 days later on October 9 under circum- stances to be described (infra, sec. III,B,6,e&f), supplied to NLRB Agent John Westhoff a written statement con- cerning matters here under official Board investigation by Westhoff, in an automobile on the street. After sup- plying the statement, Ramrattan expressed misgivings about executing and leaving it with Westhoff because "I must say how scared I was to lose my job . . . I was very scared to do anything . . . because I've been seeing all my coworkers who was involved with the union just going." 1 s At work, Ramrattan left the written statement in the pocket of his jacket, which he hung in his un- locked private locker with his name on it in the employ- ees' washroom. At the end of that workday (October 7) he left his jacket in the locker, as he did the next day (October 8), returning to his home two blocks away without it on each of those days. After reporting to work on October 9, when Ramrattan went to the urinal in or near the locker room, he observed Bodek holding and reading Ramrattan's statement to the Board . Ramrat- tan remonstrated with Bodek that he had no right to go into his personal possessions , and he snatched the docu- ment-which contains a detailed expose' of Respondent's violative actions here, up to that point-from Bodek. Bodek warned Ramrattan not to sign the paper and not to disclose the incident to anybody , saying, "Do you want to suck my blood? Do you want to send me to jail?" Bodek then said he would and immediately did go to Caccavo's office, closing the door of Caccavo's office behind him. Shortly thereafter (as detailed infra, sec. III,B,6,e&f), Ramrattan was precipitately discharged. On the next day (October 10), he signed and returned the written statement in question (R. Exh. 14) to Board Agent Westhoff (which was redated from October 7 to October 10). Bodek totally denies the incident testified to by Ram- rattan. After observing Ramrattan closely during his lengthy sojourn on the witness stand, I am unable to accept the notion, as Bodek would have me believe, that Ramrattan simply manufactured the episode in question out of his imagination . Comparing testimonial demeanor as careful- ly observed, and evaluating it within the context of the record as a whole, I prefer and credit the testimony of Ramrattan concerning the described incident, and ac- cordingly find the complaint allegation in question estab- lished by preponderating credible proof-only however, in respect to Ramrattan and not (as also alleged) as to Bhatti. 16 14 Credited testimony of General Counsel witnesses Ramrattan and Martas. 15 See infra, sec III,B,6,a (Mann), sec III,B,6,b (O'Dell), sec. III,B,6,c (Vera), and sec III,B,6,d (Reynolds). 16 While it is true that the statement in question does not appear to have been signed and sworn to by Ramrattan until October 10, 1 day after he was discharged , it is undisputed that it was supplied to the Board agent on October 7; and the circumstances compel the conclusion that the statement was indeed part and parcel of the competent producing and triggering cause for Ramrattan 's rapidly ensuing discharge , thus constitut- Continued WELL-BRED LOAF, INC. 6. Discharge of employees for union membership, activity, or support The complaint (pars. 13a through 13d) further alleges that Respondent discharged six of its employees because of their union membership, activities, and support in vio- lation of Section 8(a)(3) and (1) of the Act. The six employees in question are Carmen Marin, Leesa O'Dell, Humberto Vera (Vega), Paula Reynolds, Ramkissoon Ramrattan (Ramrattan), and Mohammed Bhatti. Their cases will be reviewed separately. Howev- er, in considering these discharges and evaluating the true reasons therefor, it is necessary to bear in mind cer- tain established facts or concessions, applicable to all, within the context of the record as a whole. These are: (1) all six employees were discharged shortly after the inception or resurgence of union organizational activities; (2) the absence of any previous "layoff' policy on the part of Respondent; (3) for practical purposes, the essen- tially satisfactory work performance of the employees in- volved; (4) Respondent's prompt hiring of new employ- ees, notwithstanding its current assertion that it terminat- ed some of the employees in question because of a busi- ness downturn; (5) Respondent's subsequent reinstate- ment or rehire (or alleged offer to do so) of a number of the discharged employees; (6) the union organizational leadership of some of the discharged employees and the union affiliation and activities of all of them; (7) Re- spondent's conceded knowledge of its employees' union organizational activities; (8) Respondent's sharp hostility to the unionizaion of its bakery; (9) Respondent's unfair labor practices as described and found, supra; (10) cred- ited testimony (supra) that Respondent's principal Cac- cavo stated that he would fire all employees involved with the Union; (11) the testimony of Respondent's su- pervisor Bodek, called as its own witness, that when he informed Respondent's principal Caccavo, in late August, of the union organizational effort, Caccavo in- formed him that Respondent would "nip the situation in the butt [sic]" by terminating employees involved with the Union, which was in fact thereafter carried out; (12) the testimony of Respondent's personnel manager Diana Troxel, called by Respondent as its own witness, conced- ing on cross-examination that she had been told by Re- spondent's manager Guy Sikes (Shar)17 that "there had been a union drive and that some people had signed some cards and that we were letting some people go . . . the ones who were involved in the Union activity"; (13) the concession of Respondent's principal, one-half owner, and then President Judy Caccavo Glicken, also mg a direct interference with the Board's investigative processes and, indeed, with a basic purpose for its creation Cf First National Bank Co, 209 NLRB 95 (1974), enfd. 506 F 2d 1054 (5th Cit. 1974) (Sec 8(a)(4) violated where employee discharged because employer suspected he had filed or was about to file charge ), Fuqua Homes (Ohio). Inc, 211 NLRB 399, 400 fn. 6 and 403 fn 14 (1974) (Sec. 8(aX4) violated where employee scheduled to testify, but who did not actually testify, was disciplined). It is additionally to be noted that Webster's Third International Dictionary (1968) defines "testimony" to include averments not necessarily made under oath Indeed , under certain court usages even in formal proceed- ings testimony may be given not under oath No indication has been pro- vided that Congress intended the expression strictissimi in Sec 8(a)(4) See NLRB v Scrivener, 405 U.S. 117, 121-125 (1972) 17 Undisputed by Sikes, who was not called to testify 311 testifying as Respondent's own witness, on direct exami- nation, that the Company had-prior to September-dis- charged four employees "because they were involved in union activity" or "layoff '-"combination"; and also (14) the testimony of Respondent's other principal Steven Caccavo, likewise testifying as its witness on direct examination, that when he learned on August 22 from Baking Supervisor Bodek that union organizing ac- tivity was going on in the bakery, with a list of seven names, Caccavo at once called a management meeting, at which Manager Sikes (Shar) insisted that all unionists be fired at once because "the union would put us out of business," and that Caccavo agreed about four (claimed at the instant hearing to have been slated for discharge- plus O'Dell, who Caccavo now claims was laid off only because she was the roommate of unionist Reynolds and had only been at the bakery for 2 weeks, but whom Bodek admits he probably also identified to Caccavo as a unionist and whom Respondent concedes on brief it "presumed" to be such). a. Carmen Marin The consolidated complaint (pars. 13a, 14, 18, and 19) alleges that, in violation of Section 8(a)(3) and (1), Re- spondent discharged its employee, Carmen Marin about August 22 discriminatorily and because of her protected concerted union activities and failed to reinstate her until about September 24. There is no doubt that Carmen Marin was the leader of the union organizing activities among Respondent's employees, recruiting many into union membership. It was Marin who first approached and met with Narciso Martas, general organizer of the Union, early in August, concerning organizing Respondent's bakery. Thereafter, in mid-August, Martas again met with Marin and Hum- berto Vera (and employee Joseph Dahmen, whose subse- quent discharge is not here involved)-Vera had been recommended by Marin-and, forming the employees' organizing committee, received union representation des- ignation cards for signature by employees, Vera promis- ing to "start tomorrow the ball rolling." On one occasion (in early October), Baking Supervisor Bodek indicated to baker Ramrattan that Bodek was well aware that "Carmen [Marin] ... was the one that was bringing in the union." Carmen Marin entered Respondent's employ as a packer's assistant in its bakery on April 10, 1978 (over 2 years before the events to be described), was promoted to packer in July 1978, and remained continuously in its employ until she was precipitately discharged or, as Re- spondent claims, "laid off," on August 22, 1980. Al- though she has worked on three different shifts (6 a.m.-2 p.m., 2-10 p.m., and 10 p.m.-6 a.m.), at the time of her termination as well as for 3 months prior thereto she worked on the afternoon or 2-10 p.m. shift. At the time of her termination (August 22), she was receiving $6.50 per hour, having received her latest 50-cent hourly raise about a month before, in July, when her supervisor Glenn Agrin informed her she had had a "good evalua- tion," which he showed her (G.C. Exh. 23B-indeed a good evaluation) and praised her for her "good work." 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And during the year prior to her termination she had also received praise from customers as well as supervi- sors for her work. At no time during her 2-1/3-year work tenure prior to her precipitate termination had any dissatisfaction or displeasure been expressed about her work performance-quite the contrary, as her written evaluation (G.C. Exh. 23B) attests. Respondent's total satisfaction with Mann's job per- formance, confirmed in the testimony of Packing Super- visor Vincent Soto, suddenly changed after she began exercising the rights guaranteed to her by Congress under the Act. According to Respondent's principal Cac- cavo, he learned of this on August 22. On the same day, Marin was unceremoniously terminated, after 2-1/3 years on the job. On that day (August 22), reporting for work as usual, she was warned by her coworker Eduardo Jara- millo that Bakery Supervisor Bodek was going around asking about "the troublemakers" and that Respondent intended to fire the unionists . Soon thereafter, baker Ramrattan expressed similar apprehensions. Marin was then summoned by Supervisor Eric Isler to the office, where she was informed by Manager Sikes (Shar) that although she was "one of my best workers" 1 s he was nevertheless "obliged to cut my personnel," and that "in the last two weeks you are working very badly . . . and ... very slowly" and that "your face, you look tired"; and she was told she could leave then and there. On her way out, her supervisor, Isler, told her, "I'm so sorry, we have a lot of work. 'Shar' [i.e., Manager Sikes] is crazy. [Shar] is crazy telling me to bother [you], push [you], push [you] . . . . [I] told [him you're] working; [you're] working fine." When Marin indicated she was being fired because of her union activities, Isler said he knew nothing about that. At the time of her termination, there were five or six packers working mornings and three-all new-in the afternoon. Of these only one, Olga Paz, had more senior- ity than Marin; and Marin, who worked afternoons, had the most seniority on that shift. During the 2 weeks before Marin's termination, additional packers had been hired; indeed, on the very day of her layoff, she oriented a new employee in his work. I believe Marin's testimony that work was not slow at the time, that the quantity of orders had not slackened off, and that business was around the same level as it had been during the preced- ing 6 months, and the contrary has in no way factually been demonstrated . I also credit her testimony, corrobo- rated by Packing Supervisor Vincent Soto, that prior to her termination, when work slacked off, it was not the Company's practice to lay off, but to reduce the work- time (as, e.g., by reducing the employees' 5-day week to a 4-day week) and thereby to spread the available work around; and that no packers had been terminated for not enough work to do. 18 Undisputed by Sikes, who was not called to testify . Also undisputed by Isler, who was there and who, as Respondent's witness, merely denied that Isler told Marin she was one of his best employees-something that Marin had not testified to. Approximately 1 month later, on September 24, after the initial charge was filed herein by the Union, Marin was recalled by Respondent and returned to her job.19 Respondent's explanation for its termination of Mar in is that her work was poor and inefficient and that its business had fallen off. I unhesitatingly reject the first of these contentions as contrary to fact and the second as also contrary to fact or not factually established by sub- stantial credible evidence. Concerning the first (Marin's alleged inefficiency), it is to be observed that at no time had her work performance been meaningfully or signifi- cantly criticized prior to her advent into and leadership of the employer-disfavored union organizational activi- tieszo and Caccavo's vow to rid his bakery of all union- ists. I place little if any stock in Personnel Manager Troxel's alleged memorandum dated August 19 to Re- spondent's principal Glicken (Judy Caccavo)-which Respondent's principal Steven Caccavo conceded he did not see until "a matter of weeks" afterward-because it is purely self-serving and inconsistent with the true facts, as here established, concerning Marin's work perform- ance; for example, Main's extremely high marks on her work evaluation rating sheet (G.C. Exh. 23B, where she scored 93 points out of a possible maximum 100 , with the added comment "Alway [sic] on time & ready to work" (id.).) Furthermore, Respondent's purported (but, as I be- lieve and find, feigned) suddenly compelling dissatisfac- tion with Main's work within the time frame and cir- 19 According to testimony of Respondent's principal Caccavo, he re- tained labor counsel in early September, subsequent to Marco's termina- tion and after receiving the charge herein , and his counsel thereupon sup- plied him with a memorandum detailing appropriate as well as proscribed employer conduct "during a union-organizing driver." The memorandum (R Exh. 22) includes warnings that "During a union-organizing cam- paign, certain activities by management are prohibited ... [and] . must be avoided ... [including "Playing off or discharging any employee for union activity. If found to be an unfair labor practice, you can be liable for full back pay for all time lost by the employee"] (id. at 6); that "any discharge during the course of a union organizing campaign should be discussed in advance with counsel" (id. at 15); that "[i]n certain cases where an employer commits an unfair labor practice , the NLRB will cer- tify the union as the bargaining representative of your employees even though it lost the NLRB-conducted election (id. at 1); that "The danger of committing unfair labor practices that could produce a bargaining order is one of the primary pitfalls that must be avoided during an elec- tion campaign" (id. at 5); that "[i]n a face-to-face meeting with the [union] organizer, you should not examine the signed authorization cards, even if the organizer offers to show them to you . . . . Looking at the cards is tantamount to recognizing the union as bargaining agent without an election" (id. at 4); and "[l]isten carefully to what the organizer tells you, so that you can get as much information as possible from him" (id.); and that in case of a union demand for recognition , "DO NOT PANIC Do not take any steps until you have obtained legal advice" (id at 3-4) This memorandum was supplied to Respondent after its termination of at least Marin, Vera, Reynolds, and O'Dell. Caccavo testified that he of- fered reinstatement to these employeees on advice of counsel. 20 The testimony of Marin's packing supervisor Isler is not to the con- trary. Although he referred to a written warning to Mann about her work, after it was called to his attention that it was in October, long after her termination and subsequent to her recall, he conceded there had been no work criticism before then (October)-which means before her termi- nation on August 22 in question here. Respondent's principal Caccavo similarly conceded no work criticism of Marin prior to her discharge. And I reject Respondent's currently advanced tongue-in-cheek conten- tion that Mann's inability to read English affected her work performance; consider, for example, her uninterrupted over 2-year tenure, her excellent work evaluation rating, and Respondent's rehire and reinstatement of her a month after her termination. WELL-BRED LOAF, INC. cumstances described is difficult to reconcile with its recall and reinstatement of her a month later .21 Insofar as Respondent's "economic necessity" contention is con- cerned, it is addressed; infra ("Additional General Obser- vations Regarding Respondent 's `Economic ' and Other De- fenses"). Suffice it to say at this point that it has not been credibly factually established ; that I credit Marin's testi- mony to the contrary as to the prevailing work level; and that the contemporaneous hiring pattern also belies the contention.22 Under all these circumstances, the conclusion is com- pelling that the real reason for Marin 's discharge on August 22 was her leadership of the union organizational activities in Respondent's bakery, so highly disfavored by Respondent and which Respondent had vowed to end through discharge of its proponents. Respondent having failed satisfactorily, through substantial credible evidence to rebut the General Counsel's persuasive prima facie case in that regard (cf. Wright Line, 251 NLRB 1083 (1980)), I find and determine on the record as a whole that it was Marin's union organizational , protected con- certed activities among Respondent's bakery employees which were the true and only reasons for her termination on August 22, 1980, and that but for those activities she would not have been terminated. b. Humberto Vera (Vega)23 Humberto Vera (Vega) was after Carmen Marin (supra), the leading union activist among Respondent's bakery employees. Although Mann established the initial contact with the Union, Vera appears to have led her in distribution and solicitation of union representational des- ignation cards among the employees. Together with Mann and one other employee,24 they constituted the employees' union organizing committee. After over 5 months in Respondent's employ, Vera was also summarily discharged-on August 23, the day after Mann's discharge, and the day after Caccavo learned Vera as well as Marin (and Paula Reynolds, to be discussed, infra) were involved in union organizing activities in the bakery. Vera entered Respondent's employ as a packer and maintenance man on March 4, 1980, at a starting wage of $4.50 per hour. On July 9, 1980, as a dishwashing25 2i See, however, fn 19, supra, which provides a logical and believable explanation for that succession of events. 22 Respondent's packing supervisor Vincent Soto testified credibly that, at the time of Mann's termination, he had already posted a work schedule for the following week for the packing section and that it in- cluded Marin, and, further, that after Mann's termination on August 22, he hired a replacement for her. When, in the light of Respondent's "eco- nomic necessity" defense, Respondent's principal Caccavo was called on to account for Respondent's hire of new packer Golish on August 21, his response was limited to, "We are a very unusual company . Nothing surprises me anymore." 23 Consolidated complaint pars 13(b), 14, 18, and 19 24 Joseph Dahmen, also subsequently discharged, for an alleged reason not considered by the Regional Director to have been violative of the Act, because she declined to include him in the complaint (See G.C Exh 1P) as I e , washing baking equipment (scoops, ladles, pans, etc), there being no dishes in the commonly accepted sense 313 maintenance man, he was advanced to $5 per hour.26 I credit Vera's testimony that during his employment in Respondent's bakery, his work performance met with no criticism. It will be recalled that Respondent's principal Caccavo testified that he first learned of the union organizing ac- tivities of Marin and Vera (and some others) on August 22, whereupon, according to the testimony of his Baking Supervisor Bodek, who was his informant, he resolved to "nip the situation in the butt [sic]" by terminating the employees involved in those activities; and that, further according to Bodek, those employees were indeed termi- nated. On the next day after Caccavo (according to his own testimony) learned of Vera's union organizational activi- ties (August 22), on August 23 (a Saturday), after Vera punched out, he was invited to the office by Manager Sikes (Shar), who said to him, 2 v "Humberto, you're a good worker, but I have to lay you off because the work is slow . . . . On Wednesday you want me to send your check by mail or do you want to come and get it?" But there had been no diminution in the quantity of hours of work of Vera, whose testimony to that effect I credit- nor was the contrary here credibly established. When Vera returned for his paycheck the following Wednes- day, Sikes (Shar) wished him luck and offered to provide him with a recommendation. But Vera observed a new employee doing the work Vera had previously been doing. It is stipulated that on November 26, 1980, Respondent offered to reinstate Vera to his former job. Vera con- cedes that he did not return because he had meanwhile obtained another job .211 Respondent's defenses to its termination of Vera a day after it learned of his union organizational activities and it vowed to rid itself of union protagonists in its work force is essentially the same as in the case of Marin (supra), namely, work inefficiency and economic strin- gency. We dispose of the latter (economic necessity) first, by reiterating that in Vera's case, as in Marin's case, it has not been established by substantial credible proof; further noting, as in Marin's case, that, notwithstanding the claim of alleged economic necessity, Vera was re- placed within a few days after his termination. As to the claim that Vera's work was unsatisfactory, (1) on com- parative testimonial demeanor observations, I have a definite and clear preference for the testimony of Vera, who impressed me as a sincere and honest witness, over that of his former supervisor (since promoted to sales manager) Glen Agrin, who impressed me as distinctly 26 Disputing that this was a pay raise, Respondent now maintains it was only an "incentive" to induce better work on his part-in effect, a sort of reward for allegedly poor work rather than for good work. In view of the total circumstances shown, I do not credit this; nor does Re- spendent's personnel record (G.C Exh 20) support Respondent's current explanation about the reason for the raise it gave Vera a month and a half before he was discharged 27 Undisputed by Sikes, who was not called to testify. 28 It is the General Counsel 's contention that Vera would have re- turned if he had been offered earlier reinstatement Whether this is so, if Vera's termination was violative of the Act he is entitled to backpay with interest, to the time of Respondent's offer of reinstatement, less any inter- im earnings See sec. V, infra. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD partial and less than candid in his appraisal of and testi- mony concerning Vera. I also entertain a degree of re- serve concerning an alleged memorandum which Agrin claims he wrote on July 25 concerning Vera, allegedly recommending he be replaced, in view of the fact that (a) it was never given or shown to Vera; (b) Agrin con- ceded such a memorandum was wholly unprecedented, and that he prepared it only at the request of Caccavo; (c) Agrin conceded on cross-examination that it was originally written out in longhand, but that it was subse- quently typed by Respondent's principal Caccavo, with certain unspecified revisions (which Agrin characterizes as in his opinion only "grammatical"-why Caccavo should waste his time as a busy executive in correcting Agrin's grammer and typing up a long "narrative" of this type is not readily apparent unless it was intended as a self-serving justification to make Vera's discharge seem plausible; the actual date of its production also being questionable); (2) Agrin testified that, although he was Vera's supervisor, he in no way participated in any deci- sion to terminate Vera; and (3) in any event, whether Vera was the best of employees , he was at any rate satis- factory enough to be retained in Respondent's employ for over a month after the foregoing alleged memoran- dum, and also good enough to be recalled by Respond- ent to its employ after his termination. As in the case of Mann, preponderating credited proof on the record as a whole persuades me that Vera also was terminated, on the heels of Caccavo's discovery of his union organizational activities and to carry out his determination to rid his bakery of union protagonists. Respondent having failed convincingly to rebut the Gen- eral Counsel's prima facie case in this regard, I find that the true and compelling reason for Respondent's termina- tion of Vera on August 23, 1980, was his activism in union organizational activities, protected under the Act, and that but for those activities he would not have been terminated. c. and d. Paula Reynolds and Leesa O'Dell29 The terminations of Paula Reynolds and Leesa O'Dell will be considered together, because they were room- mates-an allegedly determining factor in their joint ter- minations, according to Respondent's principal Cac- cavo-and their union activities as well as the circum- stances of their terminations (and also their subsequent recalls) were intertwined. Paula Reynolds, another unionist identified as such by Baking Supervisor Bodek to Caccavo and for that reason (according to Bodek) promptly slated by Caccavo for discharge, was also indeed terminated on the next day, August 23. In its answer (par. 22), Respondent alleges that Paula Reynolds and Leesa O'Dell "were not discharged but rather were laid-off for legitimate business reasons." The normal intendment of this kind of language is to raise an "economic necessity" defense which again, normally, avoids or moots any issue concerning the work perform- ance efficiency of the "not discharged but rather .. . laid-off" employee. Because, however, at the trial Re- 99 Consolidated complaint pars. 13c, 13a, 14, 18, and 19. spondent chose to raise issues also about the quality of the work performance of Reynolds, it is perhaps appro- priate to deal with that subject here. Paula Reynolds entered Respondent's employ on March 31, 1980, as a baker's assistant or assistant baker at $4.50 per hour. On July 29 (1980) she was given a $1- per-hour raise to $5.50 per hour. There is no reason to believe, nor is any suggestion made by Respondent-as it does in the case of Humberto Vera, supra-that this raise was because of her poor work and to stimulate her to improve her performance. Indeed, in her written job per- formance evaluation (G.C. Exh. 27), scored by her Su- pervisor Michael Warren who gave her 'overall . . . a very good evaluation,"30 Reynolds attained a score of 86 out of a possible 100, losing some points (earning 7? out of 10) on attendance and punctuality. 31 She was sudden- ly and perfunctorily terminated on August 23-1 day after Caccavo learned (on the previous afternoon, from his baking supervisor, Bodek) that she had affiliated with the Union. Leesa O'Dell (Paula Reynolds' roommate) entered Re- spondent's employ as a part-time packer on August 11, 1980, at $4.50 per hour. The next week she was given a full-time job, remaining there without incident or any suggestion regarding any fault with her work, until she also was summarily terminated, at the same time and in the same manner as and jointly with Paula Reynolds, on August 23. Both Reynolds and O'Dell were solicited for and joined the Union at the same time-August 16.32 Re- spondent's baking supervisor Bodek testified, as Re- spondent's witness, that he informed Respondent's princi- pal Caccavo (who in his testimony placed the date at August 22) that various named employees , including Reynolds, were involved in union activity, and that Cac- cavo's reaction (as well as that of his production manag- er, Sykes (Shar), and Packing Manager Anderson) was that they would "nip the situation in the butt [sic]" by terminating the employees "involved" with the Union, which terminations (still according to Bodek's testimony) were in fact speedily accomplished . According to Cacca- vo's own testimony, Caccavo agreed,93 and included O'Dell (who had also signed a card) because she was Reynolds' roommate. (According to Bodek, he had prob- ably also identified O'Dell to Caccavo as a unionist.) When Reynolds and O'Dell left work on Friday, August 22, they were not told not to return to work on Monday (August 25); Saturday through Sunday (August 23-24) were not workdays for them. O'Dell's packing su- pervisor, Soto, testified that O'Dell was actually sched- uled on the posted written schedule to work the follow- ing week. O'Dell recounted that as she left work on Friday, her supervisor, Soto, directed her attention to so Undisputed by Warren, who was not called to testify. sl This is consistent with a written warning in her file (R. Exh. 24) on that subject, relating to August 8 . She was not, however, then or later terminated for that reason. 89 Reynolds may have signed her card, dated August 16, on August 18, after discussion with O'Dell in the residence room they shared. ss Although Caccavo testified he excepted Salazar, Gomez, and Rodri- guez, none of these employees had signed a union card . All the terminat- ed employees had. WELL-BRED LOAF, INC. that schedule and said, "Goodbye. See you Monday." However, on Saturday (August 24) her roommate Reyn- olds received a telephone call at home from Respond- ent's personnel manager Troxel, stating that "things [are] slow and [we] couldn't afford for you to work [here]" and that she and her roommate O'Dell were "laid off." Troxel gave no indication of the possibility of any recall and said nothing about the possibility of working on the night shift. (At the time, although Reynolds was the most junior assistant baker on the day shift , there were several assistant bakers on the night shift who were junior to her who were not laid off, and Reynolds would have been willing to work on the night shift but was not given that opportunity.) Reynolds conveyed the message to O'Dell, and on Monday, August 25, the two of them visited the bakery to speak to Caccavo or his then wife (now Glicken), but were told they were not available. Unsuccessful in thereafter attempting to reach either of them by telephone, Reynolds and O'Dell returned to the bakery about September 2 (after the Labor Day week- end), when they asked Caccavo why they had been laid off. Caccavo accused Reynolds of making a "crank phone call" to Caccavo, which she denied. On compara- tive demeanor observations I credit Reynolds' denial and find the alleged telephone call either contrived or mistak- enly attributed, without plausible basis, to Reynolds. Caccavo thereupon claimed there had been a lack of work, immediately adding, however, that work had meanwhile picked up to such an extent that he had al- ready hired a replacement for Reynolds since he had been unable to reach her by telephone over the Labor Day weekend (Reynolds and O'Dell had been away for that weekend). Caccavo nevertheless indicated he would recall them "if business picked up." When Reynolds called him later, he told her there were no openings but was willing to "try to find [you] a job somewhere else." During all of this time, there was no suggestion of criti- cism of any kind by Caccavo or Troxel as to the work performance of Reynolds or O'Dell. I credit the testimony of Reynolds and O'Dell that at the time of their "layoff" and for some weeks before then, there had been no diminution in the quantity or hours of their work, and in no way has the contrary been established. Indeed, during the week preceding her layoff, Reynolds had worked overtime in addition to the regular 40 hours she as well as O'Dell had worked. And-as other witnesses (including Respondent's super- visor Soto) corroborated-in past periods when work was sometimes slow, Respondent had not laid off but re- duced and spread the available workdays and hours among the working staff. O'Dell was recalled and returned to work at the bakery on September 24; Reynolds was recalled around the end of October or early November, but did not return. When Reynolds first started at Respondent's bakery, she only "scooped" cookies. After a few weeks of obser- vation and training, she cracked eggs, tended ovens all day (i.e., prepared material for the ovens, and placed the material into and tended both the rack ovens and the deck ovens until ready), and then removed the product 315 for cooling. She did not prepare or mix batter, that being a regular or journeyman baker's task.34 Once again, regarding Respondent's "economic neces- sity" defense for its terminations of Reynolds and O'Dell, I find that it has not been established and, further, that it is transparently made of the whole cloth, Caccavo's claims of a sudden resurgence of business over the week- end or a few days being incredible in the absence of sup- porting data, figures, and statistics, which were, without explanation, not supplied. Concerning the current intima- tions of unsatisfactory job performance by Reynolds, I likewise reject that defense as pretextuous, in view of the facts that it has not been credibly established; that Reyn- olds had received a substantial raise as well as an excel- lent job evaluation ; that at no time did Respondent state, at or after her termination, that her work had been unsat- isfactory;35 that Caccavo conceded at the trial that Reynolds had been "a good worker ... a work horse" despite her alleged, undefined "bad attitude"; that there is no suggestion whatsoever about any work dissatisfac- tioil with O'Dell; that Caccavo insisted to both Reynolds and O'Dell that they were "laid off' only because of lack of work; and that Caccavo testified he attempted promptly to recall both Reynolds and O'Dell, and it is conceded that he later actually did so. Certanly Reynolds was at least a satisfactory enough employee to be retained in Respondent's employ until Caccavo discovered who was involved in union activity, which he was determined to stamp out. O'Dell's only "sin," apparently, was that she was Reynolds' roommate and, of course, was also marred by union affiliation. On the record as a whole, the General Counsel having made out a prima facie case that both of these employees were terminated because of their protected, concerted union activities, and Respondent having failed credibly to rebut that showing or to establish any other credible basis for those terminations, I find that the true reason for the ter- mination of these employees was their protected concert- ed union activities and affiliation, and that, but for that, they would not have been terminated. ,* Although seemingly not material, in view of Caccavo's admission to Reynolds that she had been replaced and Respondent 's supervisor Soto's testimony that he hired a replacement for O'Dell, it would appear that Reynolds' replacement was Owens, who, according to testimony of Re- spondent's baker Arnold Worthman characterizing Owens as a mere baker's assistant (as was Reynolds), rather than the full-fledged "baker" which Troxel attempts to make him out to be ; also, Owens' employment history (G C Exh. 6) shows at best a brief amount of previously qualify- ing experience, a fact seemingly recognized by Respondent's rating inter- viewer on his or her employment interview assessment (G.C. Exh. 5, p. 2). Credited testimony of Respondent's former baker Bhatti further cor- roborates that Owens' job duties as observed corresponded to those which had been performed by Reynolds When it was pointed out to Caccavo at the trial that Owens actually started to work in the bakery on the afternoon of August 22, according to his timecard (R Exh 35), Cac- cavo's response (as stated in another connection) was, "we are a very un- usual company . Nothing surprises me anymore." Owens remained in Respondent's employ for only a few weeks. ss I regard two typed, unworn papers allegedly placed in Reynolds' personnel file after her termination (R. Exhs. 2 and 34 ), at least one alleg- edly signed by Shar-who was not produced to testify-as self-serving, post facto attempts to create a seemingly plausible basis for Reynolds' termination They cannot prevail over the testimony of the live witnesses, as here recounted 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Additional General Observations Regarding Respondent's "Economic" and Other Defenses to the Foregoing Four Discharges/"Layoffs" (Mann, Vera, Reynolds, and O'Dell) A few additional general observations may be in order concerning Respondent's "economic" and other defenses to its foregoing four discharges, which it is now disposed to characterize as mere temporary "layoffs." First, there is Respondent's alleged defense of econom- ic necessity. The short answer to this is that-even beyond the fact that, as here found, that was not the true reason for those discharges-it has in any event not been factually established by substantial credible evidence. Beyond Respondent's own unpersuasive, self-serving ipse dixit, no facts demonstrating economic necessity have been shown. Respondent has produced a letter (R. Exh. 31) from its accountants, bearing a date in August, sug- gesting that it take steps to "improve your gross margin"-whatever that may mean. Because that letter (received in absence of objection)-even without expla- nation of the circumstances under which it was written- is unworn and no more than conclusionary, self-serving, and susceptible of a veritable laundry list of interpreta- tions, it is of little if any significance in resolving any claim of economic necessity. Parties to adversary litiga- tion such as this, whether they be employers or unions, who wish to raise such factual contentions seriously, should present persuasive evidence in support thereof, such as their penalty income tax returns backed up by their original books of entry , supplemented if necessary by sworn testimony of their bookkeepers or accountants, not just their own ipse dixits and conclusionary, self- serving, unsworn letters. 36 Further, in appraising the al- leged bona fides of Respondent's "economic necessity" defense, I have taken into consideration that these dis- charges occurred on August 22-23 (Saturday, a non- working day), the very time when Caccavo (who had vowed to discharge all union adherents ) according to his testimony discovered from Bodek that they had joined the Union; and that-notwithstanding the alleged "eco- nomic necessity" on Friday through Saturday, August 22-23, replacement employees were hired concurrently or within a few days. I am constrained to regard such an amazing alleged resurgence of Respondent's fortunes over a weekend, under the circumstances here presented, with skepticism-a skepticism which was not allayed by any factual demonstration by Respondent, which without explanation produced no books, records, or data to sup- port its contention. Respondent also urges by way of defense to these dis- charges that it did not discharge all the union adherents. This unappealing argument is made notwithstanding the fact that it has repeatedly been pointed out that an em- ployer need not "weed out all other union adherents"37 S8 Cf. United States v. Denver & R.G.R. Co., 191 U.S 84, 91-92 (1903), NLRB v. Wall ck, 198 F.2d 477, 483 (3d Cir 1952) s" Nachman Corp. Y. NLRB, 337 F 2d 421, 423 (7th Cir. 1964). See also NLRB v W. C. Nabors Co., 196 F.2d 272, 276 (5th Cit. 1952), cert denied 344 U.S. 865 (1952). In fact, however, Respondent did terminate all of the union adherents among its employees at the time, save for two union "turncoats"-Olga Paz and Florence Miller (and the latter's daugh- before he may be found guilty of discharging some in violation of the Act. e. and f. Ramkissoon Ramrattan (Ramrattan) and Mohammed Bhatti38 The terminations of Ramkissoon Ramrattan (Ramrat- tan) and Mohammed Bhatti will also be considered to- gether, because (as in the case of Reynolds and O'Dell, supra, sec. III,c&d) they were close friends and their union activities as well as the circumstances of their ter- minations were closely interrelated. Ramrattan entered Respondent's employ on September 20, 1978, as a baker's assistant at $4 per hour. In April 1979 he was promoted to baker, earning $6.75 per hour by February 1980.39 Bhatti, with 5 years' experience as a baker, was hired at $6 per hour on July 14, 1980, as a baker's assistant, baker's "trainee," or baker, performing a wide spectrum of baker's work. Ramrattan and Bhatti worked together and were good friends. Prior to their precipitate double discharge on October 9, under circumstances to be described, there had been no significant (if, indeed, any) criticism of the work of either. Arnold Worthman, a long-time experienced jour- neyman baker, evaluates Ramrattan as an "outstanding" baker who was the most skilled, fastest, and most consci- entious baker in Respondent 's employ, while Bhatti-not yet performing as wide a spectrum of bakers work there as Ramrattan-was a an experienced and efficient batch mixer and cake icer as well as reliable worker . Ramrat- tan and Bhatti were similarly characterized by other wit- nesses, including Respondent's long-term present em- ployee40 Eduardo Jaramillo, as efficient and reliable workers enjoying good work relationships. Indeed, Re- spondent's baking supervisor Bodek , in giving or recom- mending Ramrattan for a raise, had praised his work as "fine" and, testifying as Respondent's witness here, Bodek further characterized Ramrattan as "a very good worker-he gave it [his] all," who even worked through his lunch hour. I credit Bhatti's testimony, over the denial of Respondent's principal Glicken-an unprepos- sessing witness who, among other things, blandly con- ceded at the trial that she had furnished false and mis- leading official information to the city of New York (infra)-that when he asked her for a raise at the begin- ning of October (1980), she assured him he would get it because he was a "good worker." I likewise credit Bhat- ti's testimony-as well as his pretrial affidavit, introduced into evidence by Respondent (R. Exh. 18, pp. 2-3) that his work had been praised by Glicken (Judy Caccavo then) as well as by Bodek.41 All appear to agree that, ter), who allied themselves with Respondent and testified for it herein, as shown below (sec. V,B,3, chart, figure 1, mfrs). as Consolidated complaint pars 13(d), 14, 18, and 19 89 According to Ramrattan, he received a further raise to $7 per hour in June or July 1980. 40 See fn 6, supra. II Because Bhattl was never shown an alleged job evaluation now pro- duced by Respondent (R Exh 21), and Caccavo concedes that Caccavo never saw it until subsequent to Bhatti's discharge, at which time Cac- cavo added to it in preparation for opposing Bhatti's application for New Continued WELL-BRED LOAF, INC. prior to their fateful and precipitate double discharge on October 9, there had been not a single significantly criti- cizable or untoward incident at the bakery involving either Ramrattan or Bhatti. What, then, changed all of this? The evidence establishes that both Ramrattan and Bhatti were hesitant if not reluctant, late union card sign- ers. They signed only on October 2 or 3, as part of a "second wave," so to speak, after the reinstatement of Carmen Marin (supra, sec. III,B,6,a). Following Mann's reinstatement, Bodek repeatedly warned and cautioned at least Ramrattan not to talk to Marin because she was thought to be the union focus among the employees. However, whether because of Bodek's continued interro- gations, warnings, and threats or for other reason or rea- sons, Ramrattan and Bhatti finally decided to affiliate with the Union on October 242 when, as described above (surpa, sec. III,B,3), they did so on the street near the bakery, under the observation of Bodek'43 who thereafter questioned them about it. After they had joined the Union, Ramrattan supplied at least employee Worthman with a union card, as also did Bhatti to fellow employee Shafie. Ramrattan's and Bhatti's execution of union cards on October 2 under the observation of Bodek is one undeniable physical fact which occurred to sour their formerly favorable status with their Employer. But still another and perhaps even more souring incident occurred on the heels of this. On October 7 (1 day after the Union filed its petition for an election, on October 6-G.C. Exh. 22), as detailed above (supra, sec. III,B,5), Ramrattan was approached by an NLRB agent and fur- nished to him data concerning violative actions on Re- spondent's (notably Bodek's) part, which statement, how- ever, Ramrattan did not then sign but placed into his jacket pocket for consideration.44 As will be recalled id., Ramrattan left his jacket, containing the statement, in his personal locker at the bakery, only to observe 2 days later-on October 9-Bodek holding it in his hands and reading it. This was the second physical fact curdling the formerly satisfactory work relationship, and speedily triggering-within a matter of minutes or hours-the precipitate discharges of Ramrattan and Bhatti. The precise circumstances of the actual discharges of Ramrattan and Bhatti are in conflict. The version sup- York State unemployment insurance benefits (infra), I place little if any reliance on it. In this connection, although I have received into evidence the state un- employment insurance agency determination (R Exh. 20) denying Bhatti such benefits, it is, of course, for a variety of reasons, as conceded on brief (Br. 118) by Respondent, not determinative here 4L Although I have found no violative "surveillance" by Bodek to have been involved in this incident because Bodek merely happened to be passing by and could not avoid seeing what was plainly there to see (supra, sec. III,B,3), nonetheless the episode clearly betokens awareness by Bodek based on his observation, because he recognized the individuals (including Mann and Martas as well as Ramrattan and Bhatti ) involved 43 The union cards of both Ramrattan (G.C Exhs 13(lla) and (b)) and Bhatti (GC. Exhs. 13(12a) & (b)) are involved, because, through error, they each neglected on October 2 to sign the cards properly-an error repaired the next day, when they each executed another card (G.C. Exhs. l3(l lb) and 13(12b)) 44 It is noted that, indeed, Ramrattan's statement (R. Exh. 14, last page) appears originally to have been dated October 7, with an overwrit- ten "10," (i.e., October 10), when it was actually signed and executed by Ramrattan, following his discharge on October 9. 317 plied by those two employees supported by corroborat- ing General Counsel witnesses is essentially as follows. Within an hour or so (i.e., between 2 and 3 p.m.) after reporting for work in the bakery on the afternoon of Oc- tober 9 (3 days after the Union filed its election petition, based in part on the cards signed by Bhatti and Ramrat- tan), Bhatti and Ramrattan (and Assistant Baking Super- visor White) had just finished "scooping" a batch of mix and were awaiting the next batch of mix from Worth- man, who was in the process of readying the mix for them. Bodex suddenly appeared and without inquiry or further ado stridently accused them of standing around doing nothing. Ramrattan or Bhatti (or both) attempted to explain to Bodek that his criticism was unjustified be- cause they were, in the regular and usual course, briefly awaiting the next batch of mix. Bodek left and Ramrat- tan proceeded to begin cracking eggs and, when the next batch of mix was ready, the bakers commenced "scoop- ing" it for the ovens. Shortly thereafter, however, Bodek returned and directed Bhatti to accompany him to the office, where Bhatti was summarily discharged without assignment of any reason. When Bhatti emerged from the office, he asked Caccavo for a letter stating why he was being discharged, but Caccavo placed his hands on him and started moving him outwards.45 When Bhatti declared he would not leave before he was given such a letter, Caccavo directed Bodek to call the police.46 When Ramrattan went to the men's room in or near the locker room, he there observed Bodek in front of Ram- rattan's personal locker, holding and reading Ramrattan's statement to the Board agent, which had been in the pocket of Ramrattan's jacket in his locker. Remonstrat- ing with Bodek that he had no right to go into his pock- ets, Ramrattan snatched the paper from Bodek's hands. Bodek demanded of Ramrattan, "Do you want to suck my blood? Do you want to send me to jail," and warned Ramrattan not to disclose the incident and not to sign the statement.47 Bodek then immediately repaired to Caccavo's office and closed the door. Ramrattan went outside for a brief break, returning shortly. When he ar- rived back, the outside door was locked, so he pressed the button to enter. Caccavo emerged, closing the door behind him so as not to permit Ramrattan to enter, and stated, "Ram, I'm sorry it had to end this way, but I have to let you go." When Ramrattan asked Caccavo for permission to say farewell to his coworkers with whom he had worked for 2 years, Caccavo replied that it was "not possible." However, Caccavo allowed Ramrattan to pick up his clothes, following him closely and refusing to allow him to give his telephone number to Marin. Cac- cavo gave Ramrattan a letter, which Ramrattan read later, stating he also (as Bhatti) was discharged for "in- subordination."48 Ramrattan, Bhatti, and the General 45 Bodek concedes that it was Caccavo who placed his hand or bands on Bhatti first to "lead" him out of the bakery. 46 Caccavo concedes that when the police arrived they were told by him that they were unneeded. Caccavo had meanwhile supplied Bhiatti with a letter (G C. Exh. 26) stating he was discharged for "insubordina- tion." 47 See fn. 44, supra. 48 1 discredit Caccavo's testimony (denied by Ramrattan) suggesting that Ramrattan in effect quit his job on October 9 and left the bakery, stating he "didn't want to work at The Well Bred Loaf anymore." 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel's witnesses agree that during this episode there was no profanity, violence, disorderliness, or other mis- behavior manifested by Ramrattan or Bhatti. Respondent's witnesses provide a different version of the foregoing episode. Bodek completely denies he ever removed from Ramrattan 's pocket or read Ramrattan's statement to the Board agent. Concerning this, attempt- ing to evaluate and weigh my close testimonial demeanor observations of Ramrattan and Bodek, within the frame of reference of the record as a whole, I credit Ramrat- tan, who I do not believe simply fabricated the incident (as Bodek would have it).49 The other significant differ- ence from the described version provided by the General Counsel's witnesses is that, according to Respondent's witnesses, much of the episode was accompanied by throwing down, hurling to the floor, and beating on the table(s) of baking equipment by Ramrattan and Bhatti, with insolent and vulgar behavior including a continuing stream from them of vile profanities and expletives, which appear in the record and need not here be repeat- ed. Faced with the formidable task of determining whether the disorderliness occurred and the profanities were uttered as described by Respondent 's witnesses (some of whose accounts varied and some of whom were doubtfully within earshot or present at all), on balance, again comparing and assessing as best I am able my at- tentive testimonial demeanor observations of the wit- nesses in question, I am left with a clear preference for and accordingly credit the version, essentially, of Ram- rattan and Bhatti as described above.50 On October 10, the day following these discharges, Ramrattan telephoned Respondent's principal Glicken (then Judy Caccavo) to inquire about his accrued sick pay. She informed him she would discuss it with Cac- cavo and call him back. She did so and turned it down, adding that "everything was going fine until the union came in." I credit this testimony by Ramrattan in prefer- ence to the denial by Glicken, whose general demeanor impressed me adversely, who concedes that she know- ingly lied to and missled the city of New York by sup- plying it with false information concerning an employee (Olga Paz) to support that employee's application for benefits, and who also (in company with Caccavo) in- credibly attributed to Ramrattan alleged statements to her that-far from seeking protection from the NLRB- he was being egged on and "harassed " by the NLRB. Although here, too, there were suggestions at the trial from some of Respondent's witnesses (Troxel, Glicken, and Caccavo) that "economics" played a role in the dis- charge of Bhatti, Respondent's counsel stipulated on the record (Tr. 1779) that the only reason for Bhatti's dis- charge was the described alleged episode of October 9. 49 Respondent's principal Glicken, asked on cross-examination whether she observed Bodek on the afternoon in question with pieces of paper to talk to her about, replied, "It's there but it's very vague." so In this connection, it is noted that-in contradistinction to the testi- mony of other Respondent's witnesses-Bodek, a central participant in the episode in question, conceded on cross-examination that Ramrattan threw no pan on the floor or table ; that neither Ramrattan nor Bhatti threw nor banged a spoon on the table; and that it was only Bhatti who threw pans to the floor . This strongly suggests that the other accounts of the episode are much exaggerated. In arriving at credibility resolutions as I have , involv- ing the turbulent events described, I have, of course, as is my responsibility, given weight to my close and care- ful observations of the testimonial demeanor of each wit- ness as he or she testified, within the overall frame of reference of the record as a whole. I was well impressed by Ramrattan and Bhatti as they testified-to my obser- vation quiet, dignified, gentlemenly, unusually soft- spoken, meek, and restrained witnesses who demonstrat- ed candor, self-possession, and if anything impassivity and lack of excitability on the witness stand, even while under rigorous cross-examination. Demonstrating, as they did consistently on the witness stand, the qualities of well-bred persons, it is difficult for me to picture them, as Respondent now seeks to protray , as suddenly without reason transformed into uncouth louts and disor- derly rowdies who engaged in profanities and obscenities of the worst sort toward their Employer, on whom their continued livelihood depended, and in dish-hurling and pounding and general disorder. This attempted portrayal is out of character with their quiet behavioral habitus during their preceding term of employment (in Ramrat- tan's case, several years) as conceded even by Caccavo, Glicken, Troxel, Bodek, and Agrin. My testimonial de- meanor impressions of Respondent's witnesses on the other side were not nearly so good , and concerning sev- eral (as I have had occasion to remark) distinctly poor. Even Caccavo's testimony was replete with equivocation and hyperbole, perhaps in part ascribable to his conceded extreme aversion to any of his employees affiliating with a union. Both Ramrattan and Bhatti were experienced and effi- cient members of Respondent's baking staff, without complaint or blemish on their work records prior to their precipitate discharge on October 9. It will be recalled that, after repeated interrogations concerning union affili- ations, with interlaced threats regarding the dire conse- quences thereof to their employment , they nevertheless both affiliated with the Union on October 2, visibly on the street near the bakery, under the eyes of Respond- ent's baking supervisor Bodek, who then questioned them closely about it. Within a scant week thereafter, and 3 days after the Union filed a petition with the Board seeking an election (October 6), and on the same day (October 9) as Bodek discovered in the pocket of Ramrattan's jacket in his personal locker a statement given by Ramrattan to a Board agent concerning viola- tive events in the bakery-involving a charge herein filed by the Union against Respondent in September cen- tering around its termination of Carmen Marin and others-both Ramrattan and Bhatti were precipitately discharged, on the excuse of what I cannot but view as a provoked and grossly exaggerated scenario deliberately set up or portrayed to serve as a plausible basis for dis- charging these two good employees and to mask the real reason, namely, their participation in concerted activities within the Act's guarantees and protections. Although I believe it likely that Respondent's account of the reactions of Ramrattan (and Bhatti) on the occa- sion in question is at best exaggerated , it would be sur- prising if he had been nonreactive after his pocket had I WELL-BRED LOAF, INC. been picked by Bodek and the demarche of all the other provocative circumstances,bt the Greek tragedy charac- ter of which could hardly have been lost on Ramrattan, who had not wanted to join the Union but had done so at long last through seeming apprehension over his job security after he had been repeatedly put upon and har- ried by the intrusive probings of Bodek and after he had witnessed the reinstatement of the terminated union ac- tivists to their jobs. Undoubtedly Bodek's discovery of Ramrattan's state- ment to the Board, viewed by Bodek as an act of treach- ery, served to sting him to create or exaggerate the epi- sode described, to serve as a pretext for retaliatory action against Ramrattan, as well as his close friend and ally Bhatti; and, when Bodek immediately reported the resurgent union "problem" to Cacavo behind closed doors, it served also to inflame Caccavo, who earlier had vowed-as testified to by his own managerial and super- visory staff and as his own testimony acknowledges-to discharge the unionists (characterized by Bodek as "trou- blemakers") in his bakery. The described episode thus served as the pretextuous vehicle for making good those earlier threats. On the record as a whole, I find that the true and only reason for Respondent's discharge of Ramrattan and Bhatti on October 9, 1980, was their membership in the activities in support of the Union, in exercise of their rights guaranteed by Section 7 of the Act; and that but for such membership and activities they would not have been discharged. 52 On the foregoing findings and the entire record, I state the following CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted here. 2. By terminating its employees Carmen Marin, Hum- berto Vera, Paula Reynolds, Leesa O'Dell, Ramkissoon Ramrattan, and Mohammed Bhatti at the times and under the circuimstances described and found in section II, above, Respondent has discriminated in regard to the hire, tenure, and terms and conditions of employment of its employees and has, further, interfered with, re- 51 "An employer cannot provoke an employee to the point where [he] commits . . an indiscretion . and then rely on this to terminate [his] employment." NLRB v M & B Headware Co., 349 F 2d 170, 174 (4th Cir 1965). Cf NLRB v Thor Power Tool Co., 351 F.2d 584 (7th Cir 1965), enfg 148 NLRB 1379 (1964); Guerdon Industries, 199 NLRB 937, 940 (1972), Butcher Boy Refrigerator Door Co., 127 NLRB 1360 (1960), enfd 290 F.2d 22 (7th Cir. 1961); N. P Nelson Iron Works, 80 NLRB 788, 795- 796 (1948), Bettcher Mfg. Corp., 76 NLRB 526, 527, 532-537 (1948). Respondent's personnel manager Troxel conceded on cross-examina- tion that a raised voice by a subordinate may be justified under certain circumstances, while deliberately eschewing a judgment whether the cir- cumstances here were such, because she did not witness the scene in question. Troxel also conceded, not surprisingly, that raised voices in the bakery were not unknown Caccavo, as well as Glicken and Troxel, ac- knowledge that they made no attempt to ascertain the employees' version of what took place. (Ghcken, who testified she makes it a practice to "hear both sides of the story," claims her omission to follow this practice in this case was due to her preoccupation with a parental visit that day.) Atop this, Bodek now insists he made no recommendation that these em- ployees be discharged , feeling that all that was called for was a repri- mand or warning " A referential recapitulation of findings and resolutions herein is con- tained in App . A, attached. 319 strained, and coerced employees in the exercise of the rights guaranteed them by Section 7, thereby violating Section 8(a)(3) and (1) of the Act. 3. By its discharge of its employee Ramkissoon Ram- rattan on October 9, 1980, for giving a statement to the Board, under the circumstances described and found in section II, above, Respondent violated Section 8(a)(4) and (1) of the Act. 4. By its (1) interrogation of employees concerning their and other employees' union membership, senti- ments, and activities; (2) warnings to employees to re- frain from union activities; (3) threats of discharge of em- ployees for union membership or activities, as described and found in section II, above, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them by Section 7, thereby vio- lating Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices have affected, are affecting, and unless permanently restrained and en- joined will continue to affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Substantial credible evidence on the record as a whole fails to establish that Respondent (1) created the impression of surveillance over its employees' union ac- tivities, in violation of the Act, as alleged in paragraph 9 of the consolidated complaint, or (2) discharged its em- ployee Mohammed Bhatti on October 9, 1980, for giving testimony to the Board, as alleged in paragraph 15 of the consolidated complaint, which should be dismissed in those respects.53 REMEDY A. Conventional Provisions Respondent having been found to have terminated em- ployees and to have interfered with, restrained, and co- erced them in the exercise of their Section 7 rights, in violation of Section 8(a)(3) and (1) of the Act, should, as is usual in cases of that variety, be ordered to cease and desist from continuing or other such violations and to offer reinstatement to such of the employees as have not already been reinstated or duly offered reinstatement, with backpay and interest computed as explicated by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). Respondent should also, as usual, be required to preserve and open its books and records to the Board's agents for backpay computation and compliance determination purposes; and to post the conventional informational notice to employ- ees. Regarding violations alleged but not found, the con- solidated complaint should be dismissed. There remains to be addressed the question of what, if any, additional remedy the circumstances require. ss Additional conclusions of law relating to the remedial order herein will be found in the remedy section, infra 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Bargaining Order 1. Propriety We have been instructed by the Supreme Court, in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), regard- ing the appropriateness of a bargaining order without an election under the Act. The instant case fits comfortably within the Court's instruction there. I find that Respond- ent's described unlawful actions in discharging six em- ployees for attempting to exercise the statutorily guaran- teed right to bargain collectively, and one of them also for supplying information to an investigator for the Board, were egregious and pervasive , thrusting at the heart of the Act's purposes and guarantees; that they have had and will "have the tendency to undermine ma- jority strength and impede the election processes" (Gissel, supra at 614); that they were and continue to be of "such a nature that their coercive effects cannot be eliminated by the applicaiton of traditional remedies, with the result that a fair and reliable election cannot be had" (id. at 614); that, under the circumstances described and found, "the possibility of erasing the effects of [Re- spondent's] past practices and of ensuring a fair election ... by the use of traditional remedies . . . is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order" (id. at 614-615); and that there is "insufficient in- dication that an election . . . would definitely be a more reliable test of the employees' desires than the card count taken before the unfair labor practices occurred" (id. at 616).54 An employer who discharges a significant segment (in- cluding the leadership) of the bargaining unit because they have designated a union to bargain collectively for them is hardly in a position to complain if required to bargain with the union without that election which it at- tempted to render impossible by riding roughshod over its employees' rights and the law's requirements.58 Re- spondent's current tongue-in-cheek protestation against an electionless (Gissel) bargaining order on the ground that it would deprive its present employees of the "free choice" of bargaining representative has a hollow ring, because it was Respondent which, by terminating its union employees, attempted to deprive them of that free 6' See also Amsterdam Wrecking & Salvage Co, 196 NLRB 113 (1972), enfd 472 F 2d 153 (2d Cir 1973); Medley Distilling Co., 187 NLRB 84 (1970), enfd. 453 F.2d 374 (6th Cir. 1971), Gibson Products Co., 185 NLRB 362 (1970) That any possible subsequent loss of union majority, under the circumstances shown , would not preclude a bargaining order. Gissel, supra at 610, NLRB v. Katz, 369 U.S. 736, 748 in. 16 (1962), Franks Bros. Co. v. NLRB, 321 U S. 702 (1944); NLRB v P. Lorillard Co., 314 U S. 512, 513 (1942), Gibson Products Co., supra at 364 An employer may hardly insist on a right to retain the fruits of his own illegal action in dispelling a union majority through violating the Act Franks Bros Co., supra at 704 Nor-contrary to Respondent's contention on brief-is a bargaining demand (or petition) a necessary predicate for a Gissel bar- gaining order. 66 As has been pointed out, discriminatory discharge "goes to the very heart of the Act" (A. J Krajewski Mfg. Co., 180 NLRB 1071 (1970)) and is the "surest method of undermining a union 's majority of impeding an election process" (NLRB Y. Sitton Tank Co., 467 F.2d 1371, 1372 (8th Cir 1972)); and, accordingly, a bargaining order is on that basis alone warranted. Gissel, supra at 610 and 614; Sitton, supra An 8(a)(5) violation is not a prerequisite for a Gissel bargaining order Id choice through an uncoerced and fair election without unlawful interference on its part. Respondent's current argument, purportedly "seeking to vindicate the rights of its employees" (cf. Brooks v. NLRB, 348 U.S. 96, 103 (1954); Ladies Garment Workers Local 57 v. NLRB, 374 F.2d 295, 308 (D.C. Cir. 1967), cert. denied 387 U.S. 942 (1967)) who themselves seek no such "vindication," would be more appealing if Respondent had not deliber- ately terminated its. union employees and replaced them with nonunion employees, thereby deranging the statuto- ry election system by putting a heavy hand on the elec- tion scales. Respondent has changed the electorate to one of its own design. Its position is thus at odds with the principles enunciated by the Supreme Court 13 years ago in Gissel. Accordingly, it is appropriate and just that a bargain- ing order be issued here, and the recommended Order will so provide if other proper basis exists therefor-a question now to be addressed. 2. Bargaining unit The consolidated complaint (pars. 6 and 7) alleges that the Union is the duly designated collective -bargaining representative of a majority of Respondent' s "full-time and regular part-time production and maintenance em- ployees including bakers, packers, porters, and shippers employed by Respondent at its facility at 432 East 91st Street, New York, New York, but excluding office per- sonnel, sales personnel, truck drivers, guards, all other employees, and supervisors as defined in Seciton 2(11) of the Act" (id. par. 6). This is a conventional and usual production and maintenance employees' collective-bar- gaining unit. Although Respondent in its answer denies this to be an appropriate collective-bargaining unit, on brief (Br. 9) it concedes the appropriateness of that unit for collective- bargaining purposes. It is accordingly found that the unit specified was and is appropriate for collective-bargaining purposes, as al- leged in the consolidated complaint. 3. Union strength It is also appropriate, even if perhaps not utterly essen- tial58 for purposes of determining whether to issue a bar- gaining order under Gissel, to deal with the question of whether the Union in fact represented a majority of the unit employees, because, if it did, a lesser severity of unfair labor practices would warrant issuance of such a bargaining order. 57 A series of stipulations (Jt. Exhs. 1 and 2) engendered at my suggestion, from Respondent's records to avoid many additional days of litigation and perhaps much un- certainty and ambiguity, greatly aids and pinpoints the issues in this connection, i.e., (1) which employees were, and which were not, members of the bargaining unit, (2) which of the employees in the bargaining unit signed valid union bargaining authorization cards, and (3) 56 Cf United Dairy Farmers Coop Assn. v NLRB, 633 F.2d 1054 (3d Cir. 1979), and 257 NLRB 772 (1981) 64 Supra, fn. 56. WELL-BRED LOAF, INC. whether the proportion of union card-signing employees in the bargaining unit constituted a majority of the em- ployees in that unit. Figure 1 constitutes my findings and the basis therefor, concerning unit membership and union representational authorization with regard to the 29 employees Respond- ent contends were in the unit, which includes the 22 em- ployees (only) the General Counsel contends were in the unit, on 5 of the 6 days (i.e., October 5-9, 1980)58 to which determination of majority status has been limited by stipulation (Jt. Exh. 2). [Figure 1 is removed from here and placed in the back of this case as App. B.] The results of the foregoing are shown on figure 2: Recapitulation of Union Representational Strength vis-a-vis Number of Employees in Bargaining Unit, October 5-10, 198059 No. Unit Employee Name Valid Union Card? Yes No 1 Ashig, Fauzia .......................... ....... x 2 Bhatti, Mohammed ............................ x 3 Gomez, Roberto ...................................... x 4 Gross, Roger ............................. ........ x 5 Harris, Michael ............. .................... x 6 Helmer, Sven ............................. ... x 7 Hughes, Kieran ............. ....................... x 8 Jaramillo, Eduardo ............................... x 9 Mann, Carmen... .. ......................... X 10 Miller, Florence .. ......................... x 11 Miller, Vallone ...................................... x 12 Neumann, Katherine ............................. x 13 O'Dell, Leesa ..................... x 14 Paz, Olga ... ... ....................... . .. x 15 Ramrattan, Ramkissoon ............... ....... x 16 Reynolds, Paula ................................ X 17 Rodriguez, Ismael ................. . . . ... x 18 Salazar, Jaime . .................. ................. x 19 Schumann, Robert . . .............................. x 20 Shafie, Taher.... . x 21 Torres, Eliud ............ ....... x 22 Vera, Humberto ............ ........................ x 23 Worthman, Arnold .............................. X se On the sixth day, i e, October 10, these figures for the number of unit employees are claimed by the contending parties to have changed as follows 10/5-10/9 General Counsel. 22 Respondent 29 10/10 General Counsel 20 (by reason of alleged intervening layoffs or terminations of Helmer and Hughes) Respondent 27 (by reason of alleged lawful discharges of Ramrat- tan and Bhatti on 10/9) 59 The parties have stipulated that these are the only material dates (it Exh 2, p 2) In agreement with Respondent , I have (supra, figure 1) found-contrary to the General Counsel's contention to the contrary (based on is contention that Helmer and Hughes should be eliminated from the unit for October 10, since they were terminated on that date, a contention I have rejected)-that Helmer and Hughes should be regarded as members of the unit from October 5 through 10 (thus keeping the number of unit employees constant at 23 throughout that period, as shown in figure 1, and above) No. Unit Employee Name 321 Valid Union Card? Yes No Total ......................................... ............. 13 10 23 Union strength, 10-5 through 10-10 13/23 = 56. 5 percent.. Because the Union held valid bargaining representa- tional credentials from a majority, namely, 56.5 percent of the unit employees during the stipulated material period October 5-10, 1980, it is appropriate under Gissel, supra, in view of the circumstances here found, that a bargaining order should be issued, and I shall so recom- mend. On the foregoing findings and the entire record, I state the following ADDITIONAL CONCLUSIONS OF LAW The unfair labor practices here found are so serious and substantial in character and effect as to warrant entry of a remedial order requiring Respondent as of Oc- tober 5, 1980, to recognize and bargain with the Union as the exclusive collective-bargaining representative of its employees in the following appropriate bargaining unit, from a majority of the employees in which the Union held proper bargaining designation credentials on and after that date: All full-time and regular part-time production and maintenance employees including bakers , packers, porters, and shippers employed by Respondent at its facility at 432 East 91st Street, New York, New York, but excluding office personnel, sales person- nel, truck drivers, guards, all other employees, and supervisors as defined in Section 2(11) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed80 ORDER The Respondent, The Well-Bred Loaf, Inc., New York, New York, its officers , agents, successors, and as- signs, shall 1. Cease and desist from (a) Interrogating employees, in violation of the Nation- al Labor Relations Act, concerning their or other em- ployees' union membership, activities, support, sympa- thies, or desires. (b) Warning employees, in violation of the Act, to re- frain from union membership, activities, or support. 60 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Threatening employees with discharge, termina- tion, layoff, furlough, suspension, or job loss or diminu- tion for union membership, activities, or support. (d) Discouraging or encouraging membership in any labor organization by discharging, terminating, laying off, furloughing, suspending, failing to recall or reinstate or rehire, or otherwise discriminating in regard to the hire or tenure of employment or any term or condition of employment of any of its employees. (e) Interfering with, restraining, or coercing any of its employees in the exercise of any of the rights guaranteed them by Section 7 of the Act through discharge, termi- nation, layoff, furlough, suspension, failure to recall or reinstate or rehire, or other economic retaliation or threat thereof. (f) Discharging or otherwise discriminating against any employee for filing charges or giving testimony under the Act. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to the following employees immediate, full, and unconditional reinstatement to their former or sub- stantially equivalent positions , without prejudice to their seniority and other rights, privileges, benefits, and emolu- ments, including pay raises in the interim and also cur- rently applicable pay scales, and make them whole for any loss of pay (including overtime, holiday, and vaca- tion pay and insurance benefits and reimbursements, if any), together with interest, in the manner set forth in the remedy section of the decision. The employees are: Mohammed Bhatti Carmen Marin Leesa O'Dell Ramkissoon Ramrattan Paula Reynolds Humberto Vega Concerning such of the foregoing employees to whom Respondent has duly offered, but who have refused or failed to accept such reinstatement, Respondent's obliga- tion under 2(a), above, shall be limited to backpay with interest and other appropriate economic restitution and recompense under the provision to 2(a), above, to the ef- fective date of any such proper offer. (b) Forthwith remove from the personnel and employ- ment records of each of the employees all statements or references that they (or either of them) were terminated or laid off by Respondent for any work-related fault, de- ficiency, or reason; refrain from so reporting to any em- ployer, prospective employer, employment agency, refer- ence seeker, or credit or character inquiry, or that such action by Respondent was in any way related to any union or other lawful activity by any of the employees under the Act; and notify the employees in writing that such entries in Respondent's records have been removed and that evidence of the terminations or layoffs will not be used as a basis for future personnel actions against them. (c) Preserve and, on 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 nec- essary to analyze the amount of backpay due under the terms of this Order. (d) On request, bargain collectively in good faith with Bakery, Confectionery & Tobacco Workers International Union of America, Local No. 3, AFL-CIO as the exclu- sive bargaining representative of Respondent 's employees in the following appropriate collective -bargaining unit, with respect to rates of pay, wages , hours of employ- ment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached: All full-time and regular part -time production and maintenance employees including bakers , packers, porters, and shippers employed by Respondent at its facility at 432 East 91st Street, New York, New York, but excluding office personnel, sales person- nel, truck drivers, guards, all other employees, and supervisors as defined in Section 2(11) of the Act. (e) Post at it premises at 432 East 91st Street, New York, New York, copies of the attached notice marked "Appendix C."81 Copies of the notice, on forms provid- ed by the Regional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that any violations alleged in the consolidated complaint dated December 10, 1980, and not here found, the consolidated complaint is dis- missed. 61 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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." APPENDIX A: RECAPITULATION Consol. Complt. .ID Par(s) Par(s). No(s). Act Sec(s) Subject or Chief Witness(es) Sub- stance General Counsel Respondent 9-,16,17,18, & III B 4 ..... 8(a)(1) ...... TD. ... Ramrattan .............. Bodek .... .. .. .. .. . .. 21. Exhibit(s) Resolution Basis(es) General Counsel Respondent 10,, 16, 17, 18, III B I ...... 8(a)(1) ....... I ..... ........ Ramrattan, Bodek ...................... ............................... & 21. Jaramillo, Bhatti. 11; 16, 17, 18, III B 2..... 8(a)(1) ....... W ........... Ramrattan, Bhatti, & 21 Worthman. 12, 16, 17, 18, III B 3...... 8(a)(1) ..... S ................ Marin, Martas, Bodek ............... .. .. & 21. Ramrattan, Bhatti. X .............. Re: MARIN 13(a); 14, 16, III B 6 a 8(a)(3) & DU: Marin, Soto, 17, 18, 19, & (Mann) (1). Carmen, Jaramillo, 21. & III B Marin, Martas, 6 d & Neumann, (O'Dell) Leesa Reynolds, Vera. O'Dell. Re O DELL Re: O 'DELL See Ans. O'Dell, Reynolds, Par."22". Martas, Soto, Vera. 13(b); 14, 16, III B 6 b... 8(a)(3) & DU; Vera, Marin, 17, 18, 19, & (1). Hum- Martas, 21. berto, Reynolds. Vera. See Ans. par "23" 13(c); 14, 16, III B 6 c ... 8(aX3) & DU; Reynolds, O'Dell, 17, 18, 19, & (1). Paula Martas, 21. Reyn- Worthman, olds. Vera, Ramrattan, Bhatti. .............................. Re: MARIN Islet, Bodek, F. 23A 23B 34 ............. Miller, Troxel, Glicken, Caccavo. ............................... Re: O 'DELL Bodek, Troxel, Joint 1 Glicken, Caccavo. Bodek, Agrin, 20 ............................. Troxel, Caccavo. Found .............. GC witness' uncontroverted testimony credited. Found .............. GC witnesses' substantially uncontroverted testimony credited. Found .............. GC witnesses' uncontroverted testimony credited. Not found ....... Not established by preponderating substantial credited evidence as violative of Act. ............................... Re: MARIN Re: MARIN 32 ............................. Found .............. (1) Credit GC Joint 1 ................... witnesses and admissions and concessions of Resp. Witnesses; (2) Reject Resp. explanations as pretextuous Re: O 'DELL Re: O 'DELL Found ............. Same as for Mann, supra 29 ............................ Found .............. Same as for Mann, Joint 1 ..................... supra Bodek, Troxel, 27 ............................ 2,24,33,34 ............. Found .............. Same as for Mann, Glicken, Joint 1 .................. supra Caccavo. ConsoL Comp" Act Subject or Par(s). No(s). JD Pars) Sec(s) Sub- stance* See Ans. pm "22„ 13(d); 14, 16, III B 6 e 8(aX3) & DU: 17, 18, 19, & (Ram- (1) Ram- 21. rattan) kissoon & III B Ram- 6 f rattan (Bhatti). (Ram- nattan) APPENDIX A: RECAPITULATION- Continued Chief Witness(es) Exhibit(s) General Counsel Respondent General Counsel Respondent Resolution Basis(es) Ramrattan, Bhatti, Bodek, Caccavo, 26 ......................... 14, 15, 16, 17, 18, Found ............ (1) On record as a Worthman, Glicken, 19, 20, 21, 25, whole, prefer and Jaramillo, Troxel, Paz, F. 26. credit the General Martas, Marin. Miller, Isler, Joint 1 .................. Counsel's Agrin, witnesses in Anderson, preference to Helmer, White. Respondent's & (2) Find Mo- Respondent's hammed alleged Bhatti. justification for discharges pretextuous. 15; 16, 17, 18, III B 5..... 8(a)(4) & DT: Ramrattan Martas .. Bodek ..................... ..................... 14............................. Found in part Credit Ramrattan in 19, & 21. (1). Ram- (only as to preference to kissoon Ramrattan; Bodek, and find Ram- not as to allegation as to rattan Bhatti. Ramrattan (only) (Ram- established by mattan) preponderating & substantial credible Mo- evidence on hammed record as a whole. Bhatti. 17 (etc.) ............. V ............. 8(a)(1), Bargain- See above and ....................... See above and .................................. Allowed........... (1) Seriousness of (3), & ing Figure 1. Figure 1. unfair labor (4). order practices. remedy. (2) appropriateness of bargaining unit. (3) Union majority representation of bargaining unit employees. (See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and Figures 1 and 2) * Code: DT: Employer discharge of employee(s) for giving testimony to Board under the Act; DU: Employer discharge of employee(s) for union membership, activity, or support; I: Employer interrogation of employee(s); S: Employer creation of impression of surveillance over employees' union activities. TD: Employer threats of discharge for union membership or activities; W: Employer warnings to employees to refrain from union activities. APPENDIX B Figure 1-Bargaining Unit Membership and Union Representational Status Employ- Card Union ee Count Count No. No. 1 Name Effective Date of Respondent &/or General Card Counsel Contention(s) (1980) Resp. 1 Ashig, Fauzia .. ..... . Late Sept. 1 Not on payroll ................. or early 2. "Election only" card..... . Oct. 3. Supervisory taint, if F. Miller found to be super- visor 4. Card undated ................... 5. Replacement for Marin or O'Dell. Basis and Comments x ......... ......... 1. Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). 2 Respondent's personnel manager Troxel's testimo- ny (as well as if F. Miller found that of supervisor Soto) and also its personnel records and other documents establish Ashig was not terminated until 10-10 (G.C. Exhs. 18, 3, and 4) ... 3. Credit testimony of card solicitor Florence Miller, whom I find not then a supervisor within meaning of Act, that she solicited and Ashig signed card (at top) in her presence in late Sept. or early Oct. 4. Regardless of what Ashig may have been told by Florence Miller, whose related testimony I largely discredit for a variety of reasons including testimo- nial demeanor observations, language of card is clear as designation of union bargaining representa- tive and is therefore valid and should be counted as such. See Dresser Industries, 248 NLRB 33 (1980), enfd. as modified 654 F.2d 944 (4th Cir. 1981); Hitchiner Mfg. Co., 243 NLRB 927 (1979), enfd. 634 F.2d 1110 (8th Cir. 1980). 5. No credible evidence Ashig (a packer) was re- placement for Marin (a baker's assistant) or O'Dell (a packer); nor does it follow that even for such alleged reason her card should not be counted, under the circumstances shown. 6. Ashig continued in Respondent's employ after reinstatement of Marin and O'Dell. 2 RESP. Bhatti, Mohammed.... 10-2 1. "Election only" card......... 2. Card not valid after lawful discharge on 10-9. Finding. In Finding: Count Unit? Card? Yes No Yes No x............ x .......... .......... 1. Concededly in unit 10-5 through part of 10-9 (Jt. Exh. 2). ....... 2. Card language clear and its representational pur- pose understood. Valid as Union bargaining agent designation in accordance with its terms . See Jef- frey, supra; Hitchiner, supra. 3. Since 10-9 discharge unlawful, found in unit with valid Union card for all of 10-9 as well as 10-10 (and from 10-2 on). GC APPENDIX B-Continued Employ- Caron ee Count Count No. No. Name Effective Date of Respondent &/or General Unit? Card? Card Counsel Contention(s) (1980) Yes No Yes No Basis and Comments. Resp. 3 Bianchi, Bolivar........ - Replacement for Vera ......... x .......... .......... - ........ Credit testimony of Respondent's supervisor and wit- (infra). ness Agrin (corroborated by General Counsel's witness Goodman) that Bianchi was hired on 8-26 as replacement for Humberto Vera (who was un- lawfully terminated on 8-23 ). Accordingly, Vera and not Bianchi should be considered to be in unit. See NLRB v. Fabsteel Co. of Louisiana, 587 F.2d 689 (5th Cir. 1979). 4 - Gomez, Roberto........ ................................................ ............ x.......... .......... .......... Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). GC ............ .......... .......... 5 - Goodman, Vicki........ - Supervisor or temporary........ ............ x.......... - Finding: In Finding: Count -........ Evidence establishes that, after originally having been a retail salesclerk in the separate, nonunit retail store, in 1979 Goodman was first made an office secretary at $225 per week and then "office super- visor" at $275 per week. In mid-September .......... 1980, shortly after being informed at a management meeting that "a union [is] trying to come in" and given a "top secret" memorandum not to be dis- closed to subordinates, in mid-September she was told she was being moved to the packing section and would be made its supervisor . About 2 weeks later she was informed she was shipping and re- ceiving supervisor, with a subordinate (Bolivar Bianchi, supra) under her, at same time, Goodman served (about 50 percent of time) in charge of "product development," reporting directly to Per- sonnel Manager Troxel. She was expressly told by Troxel as well as Operations Manager Anderson (undisputed by Anderson) that she was not a packer, although she occasionally (as did others, including Respondent's principal Caccavo) assisted with packing when essential. Goodman was termi- nated subsequent to the time here material. .......... Notwithstanding Troxel's suggestion that Goodman was moved into packing as a rank-and-file packer, it is noted that Goodman continued, unlike hourly paid packers, to be on her usual $275 weekly salary. The General Counsel contends that at best Goodman was only very tentatively carried in the ........ packing unit in order to "pack" the bargaining unit. On the record as a whole, I find that Goodman continued, at the time here material, to function in a supervisory or managerial capacity, allied to management and its interests, and should not be regarded as a member of the bargaining unit. Employ- Uon a C t rd C Name ee oun Count No. No. 6 - Gross, Roger ........... 7 - Harris, Michael ........ 8 - Heisterkamp, Jean ..... 9 - Helmer, Sven ............. 10 - Hughes, Kieran......... 11 - Jaramillo, Eduardo.... 12 3 Mann, Carmen .......... 13 4 Miller, Florence ........ APPENDIX B-Continued Effective Finding: In Date of Respondent &/or General Unit? Card Counsel Contention(s) (1980) Yes No Resp. - - ........................................... x............ - - ........................................ x.......... GC ............ Finding: Count Card? Yes No Basis and Comments - ........ - ...... Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). - Temporary ............................ ............ -........ -........ GC Laid off 10-10 ......................... ............ GC ............ - Laid off 10-10 ......................... x............ ........................................... .......... - - ............................................. x............ 8-12 - .............................................. x............ RESP. 8-13 1. "Election only" card.......... x............ 2. Card misrepresentation ...... 3. Supervisor ........................... 2. Whether or not Hughes was laid off on 10-10, as the General Counsel contends (G.C. Exh. 15), or whether Respondent changed its mind and contin- ued him on with reduced hours as its personnel manager Troxel testified and as is borne out by its payroll records (G.C. Exh. 2), in any event he worked and was in the unit 10-5 through 10-10, the period here material. .......... -........ -........ Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). .......... x .......... .......... Unit and union membership conceded (Jt. Exh. 2). .......... x.......... Not in unit; a mere transient filler, concededly, while waiting for a job, seeking a few occasional dollars from working a half-day a week (when she did; she worked a total of only 12 hours September-Octo- ber 1980, when she obtained a management job elsewhere); according to Personnel Manager Troxel, carried on books as a "retail store" employ- ee, and for that additional reason not in unit. (She was formerly "retail manager and resident artist" of the sales store, and is a friend of Caccavo and Glicken; acknowledges she is desirous of "help[ing] out [Caccavo] if ... needed" and that she knew a "Union was trying to come in.") 1. Concededly in unit 10-5 through 10-9 (Jt. Exh. 2). 2. Although much confusion and uncertainty, with conflicting records of Respondent itself, surrounds the question of whether Helmer worked on 10-11 (Saturday, the day of his layoff), in view of Helmer's positive testimony, as Respondent's wit- ness, corroborated by Respondent's supervisor and witness Islet, that he worked on 10-11, it is found that Helmer was a member of the unit 10-5 through 10-10 (the only days here material). - ....... - ........ 1. Concededly in unit 10-5 through 10-9 (Jt. Exh. 2). 1. Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). APPENDIX B-Continued Effective Finding: In Finding: Count Employ- Card Date of Respondent &/or General Unit? Card? ee Count Name Basis and Comments Count Card Counsel Contention(s) No. No. (1980) Yes No Yes No Resp. Originally hired as a packer in 1978, Florence Miller served from 3-79 to 4-80 only, as a packing supervisor. She ther-after, through at least October 1980, again became a rank-and-file packer, as her personnel file (G.C. Exh. 32) shows-i.e., that in 4- 80 (and until 4-13-81; see infra) she "Retired from supervisory position" and "Converted Back to Wage/Hr.-No longer a supe[rvisor]." She was solicited by Marin to sign a union card , which she did, well understanding its meaning and signifi- cance. She testified twice at the trial-first as Gen- eral Counsel's witness and later as Respondent's witness, her testimony as Respondent's witness being in sharp contrast to her earlier testimony before me as General Counsel's witness. She con- ceded that during the hiatus in the trial following her testimony as General Counsel's witness, she was approached by Respondent and supplied Re- spondent's counsel with a statement elicited from her and sworn to before Respondent's counsel (G.C. Exh. 31A), dated 4-9-81, a few days after which she received a promotion and a $25-weekly raise (4-13-81; G.C. Exh. 32) and thereafter exe- cuted a further but more extensive statement (G.C. Exh. 31B; 5-20-81) to Respondent's counsel, and then appeared here as a witness on Respondent's behalf to contradict her earlier testimony as Gener- al Counsel's witness. She also attempted in her second postpromotion affidavit, as well as on her second trip to the witness stand, to expand her alleged job "authority" to make it out to be super- visory-also in contrast to her earlier testimony before me and contrary to her personnel records. Under these circumstances, and based on my close testimonial demeanor observations when she testi- fied, I am constrained to regard her later testimony as seriously prevaricative. 3. In any event, however, regardless of what she may have been told about her union card, the words on that card, which she testified she read, and which she understood, are clear and unambiguous as a designation of the Union as bargaining representa- tive, and she never sought the return of that card. APPENDIX B-Continued Union Effective Finding: In Finding- Count Employ- ee Count Card Name Date of Respondent &/or General Unit? Card? Basis and Comments No. Count No. Card (1980) Counsel Contention(s) Yes No Yes No Resp Her card should therefore be counted. See Jeffrey, supra; Hitchiner, supra. Nor are a card-signing em- ployee's post facto alleged substance ruminations- particularly under the highly suspicious circum- stances here, involving a second visit to the witness stand following a promotion and raise by her spon- sor for the revisit to the stand-to be accorded telling weight. See Gissel, 395 U.S. at 608 (1969). Since Florence Miller was not a supervisor and her card was a valid union representational designation at the times here material , she was a member of the bargaining unit and her card should be counted. RESP. ......... ........ 14 5 Miller, Vallone ... .... . 8-13 1 "Election only" card........ x..... .... ........ x ....... ........ 1 Concededly in unit 10-5 through 10-10 (Jt. Exh. 2. Supervisory taint, if F. 2). Miller found to be a su- pervisor. ....... 2. Vallone Miller was solicited to sign a card by her mother, Florence Miller (supra, according to her testimony before her second visit to the witness stand as described above), who (as well as Marin) ...... explained the card to her, and she authorized and instructed her mother to sign for her (testimony of mother and daughter) (On her postpromotion re- visit to the witness stand , mother Florence Miller attempted to water this down by indicating she told her daughter it was for purposes of election, etc. I discredit this testimony. See supra, comments sub "Miller, Florence ") ...... 3. However, regardless of what Vallone Miller may have been told, the language of her card is clear and unambiguous as a valid union bargaining repre- sentational designation, and it should be counted See Jeffrey, supra; Hitchiner, supra. Nor, in view of finding, supra (sub "Miller, Florence," comments) that Florence Miller was not a supervi- sor during the period here material , was there any "supervisory taint" to the card of Vallorie Miller RESP ....... ...... . 15 16 Neumann, 9-30 1. "Election only" card ........ x...... ....... x .......... ........ 1 Concededly in unit 10-5 through 10-10 (Jt. Exh. Katherine. 2. Supervisory taint, if F. 2). Miller found to be a su- pervisor. APPENDIX B-Continued Employ- Union Effective Finding: In Finding: Count ee Count Card Name Date of Respondent &/or General Unit? Card? Basis and Comments No Count Card Counsel Contention(s) . No. (1980) Yes No Yes No Resp. 2. Neumann testified credibly that she obtained union card from Mann, well aware of what it was, took it home and signed it, returned it to Marin , and has never asked for it back . She expressly testified that she signed the card because "I wanted the Union to serve as my collective bargaining representa- tive." (I discredit contrary intimations by Florence Miller on her revisit to the witness stand. See supra, comments sub "Miller, Florence.") 3. In view of fording (supra, sub "Miller, Florence," comments) that Florence Miller was not a supervi- sor during the period here material there is no "supervisory taint" to the card of Katherine Neu- mann. RESP. .......... 16 7 O'Dell, Leesa ... ......... 8-16 "Election only" card ............. x....... ... x ......... ......... 1. Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). 2. Regardless of whether she was told the purpose of card was "to enable us to have a vote to bring the union in ... just to vote" (as she testified), O'Dell testified that after attending union organizational discussions she-with 3 years of college and to my ........ observation an intelligent, alert person-read, un- derstood, and signed the card, the language of which is clear and unambiguous as a representa- tional designation of the Union. Under these cir- cumstances, her card should be counted. See Gissel, supra; Jeffrey, supra; Hitckiner, supra. RESP. 17 8 Paz, Olga .................... 8- 18 1. Misrepresentation ............ x..... ..... 2. "Election only" card......... 3. Withdrawal of card........... x .......... ......... 1. Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). ........ 2. It is undisputed that Paz obtained her union card from Vera and signed it on August 18. Testifying as Respondent's witness, Paz, a packer in its employ for almost 4 years, stated that Vera asked ....... her in Spanish on the telephone whether she wanted to enter into the Union, to sign a card for the Union, that "everyone had signed," that he only needed her signature "in order to have a vote." Vera denies this. Paz further testified that after signing the card and learning that some other employees had not signed, she "furious[lyJ" de- 0 APPENDIX B-Continued Union Effective Finding: In Finding: Count Employ- C t C ard Name Date of Respondent do/or General Unit? Card? Basis and Comments ee oun Count Card Counsel Contention(s) No No. (1980) Yes No Yes No Resp. manded of Vera the return of her card, which he declined for the reason that "you signed it already" and he had turned it over to the Union. (She never sought it back from the Union-as corroborated by the testimony of Union Representative Martas and also Marin and Vera that no employee sought the return of any card.) Vera specifically denies that Paz ever sought the return of her card. Paz con- cedes that when requested by a Board agent to testify here she declined for health reasons and because even if she were well she did not want to testify "against" the Company because it had been "very good" and "very consid- erate" to her; it is, however, observed that she apparently had no such compunctions about testify- ing as a witness for Respondent, after receiving disability benefits of $95 per week for 7 weeks from a governmental source, without being termi- nated or laid off. Paz also testified, incredibly, since she filled out the Union card, that she did not read it except for "name and address," and indicated she reads English "very little" (although she concededly studied it for 6 years in high school)-a contention utterly belied when, at my invitation, she accurately explained the card (which is in English) in Spanish to the Spanish interpreter, establishing that she does indeed understand the meaning of the card. She also otherwise demonstrated an adequate reading comprehension knowledge of English with regard to her job evaluation form (G.C. Exh. 28) which she testified was accurate, as well as with regard to a form in English supporting her application to the City of New York for benefits (G.C. Exh. 29). Finally, as to the latter, Paz admitted on the wit- ness stand that that form for benefits to her from the city of New York (and which she testified she filled out, signed, and filed) contains information as to her income which was substantially false and misleading (stating she earned only $160 per week when in reality her salary, at $6.50 per hour, was considerably higher-$260 for 40 hours), APPENDIX B-Continued Effective Finding: In Finding Count Employ Card Date of Respondent do/or General Unit? Card? ee Count Count Name Card Counsel Contention(s) Basis and Comments No. No. (1980) Yes No Yes No Resp. ...................................... ......................................... ........................................ ......................................... RESP. 18 9 Ramrattan, 10-2 1. Undated ............................. . Ranikissoon. 2. "Election only" card.......... 3. Card not valid after lawful discharge on 10-9. x........... in order to obtain benefits from the city of New York-a successful venture in which she was knowingly and deliberately assisted by Respond- ent's principal Glicken (then Judy Caccavo), who attested to this falsehood and acknowledged it in her testimony before me. (This may be regarded as further placing Paz under an imagined obligation to assist Respondent in relation to the issues here under consideration.) Under all these circum- stances, as well as my testimonial demeanor obser- vations, I resolve issues of credibility adversely to Paz, and find her card a valid union representation- al designation, which was not withdrawn. "It is not essential to the validity of such an [union ] authori- zation [card] that its signer be totally literate in the English tongue, nor are the intended benefits of the Act restricted to those who are fluent in English. Ruby Concrete Company, 213 NLRB 724, 727 (1974), enfd. 519 F.2d 1375 (6th Cir. 1975); NLRB v. American Art Industries, Inc., 415 F.2d 1223, 1229 (5th Cir. 1969); New York Patient Aids Inc. d/b/a Guardian Ambulance Service and American Medical Supplies, 228 NLRB 1127 (1977)." World Generator Co., 242 NLRB 1295, 1309 fn. 52 (1979). x ......... ......... 1. Concededly in unit 10-5 through 10-9 (Jt. Exh. 2). ........ 2. Card (signing date of which is otherwise clearly established) language is clear and its representation- al purpose was understood. Valid as Union bar- gaining agent designation in accordance with its terms. See Jeffrey, supra; Hitchiner, supra. ........ 3. Since 10-9 discharge unlawful , found in unit with valid union card for all of 10-9 as well as 10-10 and from 10-2 on. RESP. APPENDIX B-Continued n o Effective Employ- Card Date of ee Count Count Name Card No. No. (1980) 19 10 Reynolds, Paula........ 10-16 Finding: In Finding: Count Respondent &/or General Unit? Card? Counsel Contention(s) Yes No Yes No Basis and Comments Resp. 1. Alleged dtscriminatee ......... x.......... . ........ x .. ..... ......... 1. Concededly in unit 10-5 through 10-10 (Jt. Exh. 2. "Election only" card .......... 2). 2. Reynolds' credited testimony establishes that she signed the union card after participating in organi- zational discussions, "read[ing] every word" on the card-the representational designation language of which is clear and unambiguous-carefully consid- ering it and talking it over with her roommate O'Dell (supra). .............................. .......................... ........ ........ ........ 3. Since Reynolds was unlawfully terminated in vio- lation of the Act, she continued to be an employee and unit member as well as a valid union card- signer, during the period here material, regardless of whether or not "replaced." 20 - Rodriguez, Ismael .... - - ................................... x....... .. .......... - ........ Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). 21 - Salazar, Jaime ........... - - ................................ ...... x............ ......... - ....... - ....... Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). ................................ GC ............ ........ .......... .......... 22 - Schumann - Possible replacement for x ............ ......... - ........ - ....... Schumann entered Respondent's employ on 9-8-80, ("Schuman") Reynolds (supra). after an interview about a week earlier , as a baker Robert. at $5 per hour. ............................... .......................................... .......... ....... ........ ....... The General Counsel contends he was a "possible replacement" for Reynolds, a $5.50-per-hour baker's assistant who had been terminated on 8-23- 80. Unlike Reynolds, who was a baker's assistant, .............................. .......................................... ......... ........ ....... ....... Schumann was a somewhat experienced (Air Force) baker (G.C. Exh. 7, p. 1) although Re- spondent's baker Worthman characterizes him as a mere baker's assistant. While it may have been- particularly in view of Caccavo's testimony that replacements were promptly hired for Reynolds- that Schumann replaced Reynolds; nevertheless, .............................. ........................................ .......... ........ ........ ...... the evidence is not sufficiently clear , in my view, to support a finding to that effect without resort to speculation, reasonable as that might be. I accord- ingly find the General Counsel 's contention that Schumann was Reynolds' ......................... ......................................... ......... ........ ....... ...... replacement not established by substantial evi- dence. Schumann is therefore included in the unit. RESP. .......... ......... ....... . 23 11 Shafie, Taber ........ 10-3 1. Authenticity ...................... x..... ...... .......... x ......... .......... 1. Concededly in unit 10-5 through 10-10 (Jt. Exh. 2. Card misrepresented .......... 2). 3. Card obtained after 10-10.. w w APPENDIX B-Continued Employ- Union Effective Finding: In Finding: Count ee Count Card C Name Date of Respondent &/or General Unit? Card? Basis and Comments No ount Card Counsel Contention(s) . No. (1980) Yes No Yes No Resp. GC ............ ........ ......... 24 - Soto, Vincent............ - Supervisor ............................. ............ x..... .. -........ ........ 2. Credited evidence establishes that on 10-3 Bhatti supplied Shafie with a union card at Shafie's re- quest and that, after Bhatti explained its advan- tages, Shafie filled it out and signed it in Bhatti's ........ presence, returning it to Bhatti, who in turn gave it to Marin for delivery to the Union. While Shafie's subscripton on the card (G.C. Exh. 13 (13)) does not match the signature on the bottom of his Form W-4 (G.C. ........ Exh. 25), it clearly corresponds to the printing of his name on the top line of his Form W-4; and, in the absence of any evidence negating the credited testimony of Bhatti that Shafie signed that card in Bhatti's presence, I find the card adequately au- thenticated as executed by Shafie on 10-3 without misrepresentation. . Supervisor. Respondent personnel manager Troxel's testimony as well as the parties' stipulation (Jt. Exh. 1) show Soto promoted in July 1980 (and thereafter) to "Assistant Packing Supervisor" at weekly salary, and his (was well as other corrobo- rating) credited testimony and documentation clearly establish him as a supervisor , with authority over subordinates, within the meaning of Section 2(11) of Act at the times here material. (On com- parative testimonial demeanor observations, as well as based on a mass of credited testimonial as well as documentary (e.g., G.C. Exhs. 3 and 4) evi- dence, I discredit Respondent's witness Anderson's and Caccavo's suggestions to the contrary.) GC 25 - Toms, Vivian............ - Supervisor ............................... ........... x.......... - ....... -........ It is stipulated that Toms, who was hired as an "office clerical" on 7-21 at $5 per hour, was promoted to "packing supervisor" on 10- 13 at $225 ........ ....... per week (It. Exh. 1). Respondent's personnel jacket for Toms shows that from 7-21 to 10-13 she was "office (later ofc. supervisor)" and that on 10- 13 she became "packing supervisor" (G.C. Exh. 19). Respondent's personnel manager Troxel testi- fied that Respondent's payroll records for the weeks APPENDIX B-Continued Union Effective Finding.- In Finding: Count Employ- Card Date of Respondent &/or General Unit? Card? B d C ee Count Count Name Card Counsel Contention(s) omments asis an No. No. (1980) Yes No Yes No Resp. ending 9-27, 10-3, and 10-10 list Toms under "Mgr. or supervisors, office personnel." In view of the fact that Toms was an office clerical or super- visory employee from 7-21 to 10-13, when she became a packing supervisor (concededly, accord- ing to Troxel, with authority over subordinates in both of those capacities, as corroborated by clerical employee Goodman (supra) who served under her), she is not properly to be regarded within the unit in any of those capacities at the times here material. 26 - Torres, Eliud ........... 27 12 Vera, Humberto .... 28 White, John ............ - - .......................................... x ......... . RESP. - ........ - ........ Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). 8-12 Alleged discriminatee ............ x ........... ......... - ....... -........ 1 Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). 2. Alleged defense invalid. As unlawfully terminated employee, found in unit with valid union card 10-5 through 10-10. GC - Supervisor; possible re- placement for Reynolds (supra). RESP. ............ x .......... - ........ - ........ Supervisory as of 9-22 as stipulated (Jt. Exh. 1) and confirmed by Respondent's personnel records, and credited testimony of Ramrattan and Bhatti. His personnel file jacket (G.C. Exh. 37) shows him as "Ass't Baking Supervisor (Trainee)" as of 9-22-80 (even though he was not then carried in "payroll" book under alleged supervisory category nomen- clature series), and his next evaluation (10-18), without any new entry on his personnel jacket, shows "POSITION Asst Supe" (G.C. Exh. 38), signed by Baking Supervisor Bodek, for whom he substituted with authority over subordinates. As supervisory employee, he is not in unit, and ques- tion as to whether he replaced Reynolds is moot. 29 13 Worthman, Armald .. 10-3 Replacement for Reynolds x............ (supra) "without conced- ing that there was a Reynolds replacement" (Jt. Exh. 1, sub "Worth- man"). x .......... 1. Concededly in unit 10-5 through 10-10 (Jt. Exh. 2). ........ 2. "Replacement" contention not made in good faith in view of proviso attached thereto. U APPENDIX B-Continued Employ- Union Effective Finding: In Finding: Count ee Count Card Name Date of Respondent &/or General Unit? Card? Basis and Comments No Count Card Counsel Contention(s) . No. (1980) Yes No Yes No Resp. 3. Reynolds, a baker's assistant at $5.50 per hour on the morning (6 a.m.-2 p.m.) shift, was terminated (unlawfully) on 8-23. Worthman, who had previ- ously worked for Respondent, was recalled or rehired, on 9-2, as a baker, at $7.50 per hour on the afternoon (2-10 p.m.) shift. Unlike Reynolds, who is not a baker and does not even prepare or mix batch, Worthman is a highly experienced journey- man baker, rated by Ramrattan as the best there and by Bhatti as equal to himself, and by Personnel Manager Troxel as an experienced" and "excel- lent" baker-clearly in no way comparable to Reynolds. It is accordingly found that Worthman was not a replacement for Reynolds and is properly to be included in the unit. Total Employees in Unit: 23. WELL-BRED LOAF, INC. 337 APPENDIX C NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT violate these rights of yours. WE WILL NOT, in violation of the Act, interrogate you about your or other employees ' union membership, ac- tivities, support, sympathies, or desires. WE WILL NOT, in violation of the Act, warn you to refrain from union membership , activities, or support. WE WILL NOT threaten you with discharge, termina- tion, layoff, furlough, suspension, or job loss or decrease for union membership, activities, or support. WE WILL NOT terminate the employment of, dis- charge, layoff, suspend, or refuse to reinstate, rehire, or reemploy you because you seek to bargain collectively with us, or because you join or apply for membership in, affiliate with, designate as bargaining representative, or act on behalf of or in sympathy with any labor organiza- tion, or because you exercise or seek to exercise any right under the National Labor Relations Act. WE WILL NOT discharge or otherwise discriminate against you for filing charges or giving testimony under the National Labor Relations Act. WE WILL NOT in any other manner interfere with, re- strain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL offer the following persons immediate, full, and unconditional reinstatement to their former or sub- stantially equivalent jobs and seniority with us, and WE WILL pay them for any wages and benefits lost by them because of their discharge or layoff by us in 1980, plus interest. (Regarding those who have already been prop- erly offered but who have declined to accept such rein- statement, WE WILL make them whole for any wages and benefits lost by them because of the discharge or layoff, plus interest.) The employees are: Mohammed Bhatti Ramkissoon Ramrattan Carmen Marin Paula Reynolds Leesa O'Dell Humberto Vega WE WILL at once eliminate from our records all indi- cations that any of the above employees were discharged or laid off for any deficiency in work performance, or for union membership or activity; WE WILL NOT 30 report to any employer, prospective employer, employ- ment agency, or credit or character inquiry; and WE WILL NOT use such terminations or layoffs as a basis for future personnel actions against the employees; and WE WILL so notify our employees in writing. WE WILL, on request, recognize and bargain collec- tively with Bakery, Confectionary & Tobacco Workers International Union of America, Local 3, AFL-CIO as the exclusive bargaining representative or our employees in the following appropriate unit, and embody in a signed agreement any understanding reached: All full-time and regular part-time production and maintenance employees including bakers, packers, porters, and shippers employed by us at our facility at 432 East 91st Street, New York, New York, but excluding office personnel, sales personnel, truck drivers, guards, all other employees, and supervisors as defined in Section 2(11) of the Act. THE WELL-BRED LOAF, INC.