J. J. Cassone Bakery, Inc.

406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD J. J. Cassone Bakery, Inc. and Local 3, Bakery, Confectionery and Tobacco Workers Interna- tional Union, AFL-CIO. Cases 2-CA-21004-1 and 2-CA-21004-2 April 8, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 24, 1986, Administrative Law Judge Raymond P. Green issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, J. J. Cassone Bakery, Inc., Port Chester, New York, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(e) of the recommended Order: 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 Cu-. 1951). We have carefully examined the record and find no basis for reversing the findings. At fn. 7 the judge states that there is evidence which "suggests" that employee Fernandez may have told Plant Manager Donald Cassone about a union meeting at the home of Jose Valdovinos. We do not rely on this ambiguous statement in finding a violation. The Respondent contends that the judge incorrectly found that Castillo visited Cejas' home on Friday instead of Saturday Cejas testified that he could not remember if Castillo telephoned on Friday, but he thinks that Castillo visited his house on both days. Castillo testified that he called Cejas on Friday to tell him he was too ill to work. It appears that the judge credited Cejas. In any event, it is clear from either version that Castillo contacted Cejas either in person or by telephone on Friday and told him he was too ill to work. 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), mterest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). The judge provided a discovery procedure for the purpose of deter- minmg or securmg compliance with the recommended Order. We find that discovery is not warranted in the circumstances of this case. See Cherokee Marine Terminal, 287 NLRB No. 53 (Jan. 28, 1988). "(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." Sandra M Grossfeld, Esq., for the General Counsel. Marc L. Silverman, Esq. (Milgrim, Thomajan and Jacobs), of New York, New York, for the Respondent. Ann Schulman, Esq. (Cohn, Glickstein and Lurie), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. These consolidated cases were heard by me in New York, New York, on various days in May and June 1986. The charge in Case 2-CA-21004-1 was filed on 16 April 1985 and an amended charge was filed in that case on 16 May 1985. The charge in Case 2-CA-21004-2 was filed on 23 April 1985. On 28 June 1985 the Regional Direc- tor of Region 2 of the National Labor Relations Board issued an order consolidating cases and consolidated complaint. On 25 October the Acting Regional Director issued an order amending the complaint. In substance the consolidated complaint alleges: 1. That in late March or early April 1985 the Re- spondent, by its supervisor Leopoldo Cejas, interrogated employees concerning their union membership and/or activities. 2. That in March or April 1985 Cejas created the im- pression that employees' union activities were under sur- veillance. 3. That on or about 12 May 1985, the Respondent, by Rocky Cassone Jr., told employees that it would be futile for them to select the Union as their bargaining representative. 4. That on or about 12 May, Rocky Cassone Jr. inter- rogated employees concerning their activities and sup- port for the Union. 5. That on or about 12 May, Rocky Cassone Jr. cre- ated the impression that the employees' union activities were under surveillance. 6. That on or about 23 May 1985 Rocky Cassone Jr. threatened employees that the Company would close its facility if they joined, supported, or assisted the Union. 7.That on or about 23 May, Rocky Cassone Jr. threat- ened employees with unspecified reprisals if they joined or supported the Union. 8. That in April 1985 Respondent, by Johnny Cassone, interrogated employees concerning their membership in and support for the Union. 9. That on 5 April 1985 the Respondent discharged Jose Valdovinos because of his activities on behalf of the Union. 10.That on 15 April 1985 the Respondent discharged Gavin° Castillo because of his activities on behalf of the Union. The Respondent denies all the aforementioned allega- tions. On consideration of the entire record in these proceed- ings, including my observation of the demeanor of the 288 NLRB No. 47 J. J. CASSONE BAKERY 407 witnesses, and after considering the briefs filed by coun- sel, I make the following FINDINGS AND CONCLUSIONS I. JURISDICTION It is agreed by the parties, and I find, that the Re- spondent is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also is agreed and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. A. Background The Respondent operates a bakery in Port Chester, New York, where it bakes breads, rolls, and other items for the wholesale trade. It employs about 200 employees and is owned and managed by the Cassone family. There was at least one previous campaign to organize the production workers of the Respondent by this Union. At an election held on 31 January 1978, in Case 2-RC- 17535, it was certified that a majority of the votes were not cast in favor of the Union.' There was also a prior unfair labor practice proceed- ing against the employer that is reported at 247 NLRB 220 (1980.) In that case, the unfair labor practice charge and the Union's objections to the aforesaid election were held to be without merit and therefore were dismissed. There also appears to have been one other unsuccessful union campaign in 1982 or 1983. There are two alleged discriminatees in this case, both of whom have worked at various times at the Company. Jose Vaidovinos first began working at the Company in 1982, but left in December of that year because of a problem with the Immigration and Naturalization Serv- ice (INS). He returned in February 1983 but left again in February 1984. In March 1984 he came back to work, but stayed for only a short period of time because he went to look for a better job. He returned to work in April 1984 and worked continuously for the Company until his discharge on 5 April 1985. At the time of his discharge, Valdovinos was assigned to work at the BP oven where he, along with one other employee (under the direction of a leadman), put dough on a conveyor belt that fed into the oven. After baking for about 20 minutes, the bread comes out of the oven on a conveyor belt where a group of workers (about 20 to 22) pack the bread for delivery to a store located in Long Island.2 The BP oven at which Valdovinos worked is on for most of the day and is also used by a night crew that leaves about 3 a.m. A portion of the bread baked by the night crew is left on the packing line to be packed by the day- shift packers when they arrive in the morning. Val- dovinos, along with most of the crew assigned to work on or in connection with the BP oven on the day shift, is A previous election was held on 1 February 1977, but that election was nullified by the Regional Director. " The bread baked on the BP oven is designated as the "Allied" ac- count. Another oven, the "Winkler," also makes bread for the Allied ac- count, The first delivery to this account leaves the plant about 9:30 a m. and another delivery leaves about 2 p m. or 2:30 p.m. scheduled to start work at 4 a.m. 3 The overall supervisor of the Allied account is Arturo Campos. The other alleged discriminatee, Gavin° Castillo, first worked at the Company in 1982. In July 1983 he left, but returned in August 1983 to work in the bread depart- ment. The Company asserts that Castillo was fired in December 1983 because he had an argument with his su- pervisor. While denying that he was fired, Castillo con- cedes that he left because of an argument with his super- visor. In April 1984 Castillo was rehired for the cleaning department, which is under the supervision of Leopoldo Cejas. Castillo left again in or about August 1984. When he came back to the United States (from Santo Domin- go), his requests to return to work were initially refused by Donald Cassone, whereupon Castillo enlisted the aid of Cejas to intercede on his behalf to get his job back. In March, Donald Cassone finally agreed to rehire Castillo. Cassone asserts that he reluctantly rehired Castillo be- cause an INA raid had just depleted the work force and because of the insistence of Cejas, the cleaning depart- ment supervisor. Castillo thereafter worked during the day in the cleaning department until his discharge on 15 April 1985. In the evenings, he held another job working for a cleaning contractor that cleaned at General Foods, located in Rye, New York. This other job was obtained by Castillo before he returned to work at the Respond- ent in 1985. 1. The discharge of Jose Valdovinos In March 1985 Jose Valdovinos asked for a raise but was turned down. As a result, he decided to talk to other employees about getting a union. Among the people he spoke to were his brother, Pedro Valdovinos, Gavin° Castillo, Luis Fernandez, and Angel Molleturo. It was from the latter employee that Jose Valdovinos got the Union's phone number and he contacted a Narcisso Matas, who is a union organizer. According to MoIle- turo, at some point after Jose Valdovinos asked for the Union's phone number and before he was fired, Supervi- sor Leopoldo Cejas told him (Molleturo) that he knew that the Union "was a reality"; that Rocky Cassone had told him about it. At some point in late March, Jose Valdovinos ar- ranged with Matas to have a meeting at his home on April 3, 1985. This meeting was attended by Narcisso Matas for the Union along with employees Jose Valdo- vinos, his brother Pedro Valdovinos, and Luis Fernan- dez. Gavin° Castillo, who had told Jose Valdovinos that he would help with the union drive, could not attend the meeting. On 4 April, Jose Valdovinos clocked in at 4:11 a.m.4 According to Pedro VaIdovinos, at some point during that morning he had a conversation with Luis Fernandez who, as noted above, attended the meeting on 3 April. According to Pedro Valdovinos, Fernandez said that he 3 The people who work on or in connection with the Winlder oven are scheduled to begin work at 5 am. 4 In the same department as Jose VaIdovinos, Moise Contreras punched m on 3 April at 4. 11 a.m On the same day, Luis Lopez punched in at 4:15 a.m. The leadman for the BP oven, Raul Mandnjano, punched in at 4:03 a.m. 408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD had been called into the office by Donald Cassone and he was not going to continue with the Union. (Luis Fer- nandez did not testify in this proceeding.) About noon on 4 April, Donald Cassone told Jose Valdovinos to punch out because there was not enough work for Valdovinos to do. Supervisor Arturo Campos protested to Donald Cassone that he needed Valdovinos to continue working. Valdovinos finished out the remain- der of the day. On Friday, 5 April, Jose Valdovinos came a little late and found that his timecard was not in the rack. He states that while waiting, Moise Contreras and Luis Lopez, two coworkers, came in after he did. 5 According to Valdovinos, when Donald Cassone arrived he told him that he was fired because he came in late. 'When Valdovinos protested that everyone came late, Donald Cassone said that he did not care. Jose Valdovinos then went to the cafeteria where he told Campos of his dis- charge. Campos replied, "You must be kidding," and told Valdovinos that he would talk to Donald Cassone about the discharge. Valdovinos then went home. On Monday, 8 April, Jose Valdovinos reported to work and did in fact work until about noon when Donald Cassone came over to the oven, asked him what he was doing there, and told him to leave. Valdovinos asserts that he told Donald Cassone that the real reason he did not want him there was because 'of the Union and that Cassone said, "I don't care." Jose Valdovinos testified that he spoke to Rocky Cas- sone Jr. on or about 22 May 1985 while waiting for his brother Pedro at the parking lot. He states that Cassone came over and called him a "fucking bum." He asserts that Cassone said that Valdovinos called the Union be- cause he had been fired and that he (Valdovinos), replied that he contacted the Union before he was fired. Ac- cording to Valdovinos, Rocky Cassone asked why he called the Union, and when told because he had not re- ceived a raise, Cassone responded that Valdovinos did not get a raise because he was a half hour late every day. According to Valdovinos, C,assone also said that if the Union came in, the Company would close. In relation to the above, Rocky Cassone Jr. recalls that he did have a conversation with Valdovinos at the parking lot on May 23, 1985, and that he may have called him a "fucking bum." He states that during this conversation he described to Valdovinos the procedure by which a union comes into a company. He asserts that he explained that a union needed at least 30 percent of the employees to sign cards in order to get an election, that it would need to get at least 50 percent of the em- ployees to vote for it in an election, that even if the union won an election they would still have to negotiate, and that the Union might have to call a strike if no agreement was reached. Cassone states that he did not threaten to close the plant. He asserts that he told Valdo- vinos that if the Company and the Union could not reach an agreement (assuming that the Union won an election), the Union could call a strike. He states that Valdovinos then said, "Yeah if the Union calls a strike 5 On 5 April 1985 both Moue Contreras and Luiz Lopez punched in at 4. 15 a.m you'll have to close the bakery because you won't have anyone to work." Thus, in denying the alleged threat to close, Cassone attributes the closure remark to Valdo- vinos. 2. The discharge of Gavino Castillo According to Castillo, shortly after Jose Valdovino was discharged he received a group of union authoriza- tion cards from Pedro Valdovinos and agreed to solicit signatures from other employees. He states that he did so, but engaged in such activity in a surreptitious manner. Castillo testified that he spoke to his supervisor, Leopoldo Cejas, and told him that this time the Union was going to win because the employees had "green" cards. (That Castillo told this to C,ejas is not surprising in view of the friendly relationshp between the two men.) Castillo states that Cejas merely responded that he had nothing to do with it. Castillo testified that on Tuesday, 9 April, he forgot to punch out. He states that as he was leaving he saw Donald Cassone, whereupon he turned around and re- turned to the timeclock. According to Donald Cassone he reprimanded Castillo on this account. On Thursday, 11 April, after Castillo reported to work, he told Supervisor Cejas that he was not feeling well and asked if he could go home. Cejas told him to do some tasks but that if he still did not feel well, he could go home. A little later, Castillo left and did not punch out. Although Castillo claims that Cejas gave him permission to leave without punching out, Cejas credibly testified that while he gave Castillo permission to leave, he did not give him permission to leave without punch- ing the timeclock. On Friday, 12 April, Castillo did not go to work. Cas- tillo states that he called Cejas to tell him that he was still sick. Cejas, however, testified that Castillo came to his house at lunchtime to tell him that he was too ill to go to work. (Cejas and Castillo live near each other and both live within walking distance of the plant.) On Saturday, 13 April, Castillo states that he visited the plant and told Cejas that he was ready to return to work and that Cejas told him to come back on Monday. According to Cejas, on Saturday Donald Cassone told him that he had caught Castillo not punching his time- card and that when Castillo returned he would be trans- ferred to the roll department. Cejas asserts that he told this to Castillo on Saturday afternoon; Castillo said that he would not work in rolls and that Donald could shove his job. According to Ceja he told Castillo to go to work on Monday and he would see what could be done.6 According to Castillo, on Monday, 15 April, Donald Cassone was waiting for him as he arrived at work and told him to punch in. He states that he then told this to Cejas who said that Donald must be crazy. According to 6 I note that Castillo had a second job that he worked at after finishing at the Respondent. This was for a cleaning contractor in Rye, New York. The records of the cleaning contractor show that Castillo worked at General Foods on the days that he claims he was too sick to work at Respondent. As this was not known to the Respondent at the time, it played no part in the decision to discharge Castillo. This evidence does not, however, reflect well on Castillo's general credibility. J. J. CASSONE BAKERY 409 I '' Castillo, Cejas spoke to Donald Cassone in English. He states that Cejas said that he told Cassone that Castillo was a good worker, but that Cassone said that he did not want to see Castillo there anymore. Castillo testified that he told Cejas that he wanted the reasons for his dis- charge in writing. Later in the day, when Castillo went to pick up his final check, he was given a letter signed by Donald Cassone, which read: On Tuesday, April 9, 1985, I personally wit- nessed you coming back- to the bakery after work- ing hours and punched out. When questioned your response was you forgot to punch out and that you came back to do so, I then warned you not to do this again, but to call Rocky or myself next time and we will adjust the card in the proper fashion. On Thursday, April 11, 1985, neither Rocky nor I could find you for several hours. At 11 o'clock we consulted Leo Cejas, your manager, as to your whereabouts. Leo's answer was that you were sick and left for home. When Rocky and I reviewed your punch card we found to our dismay that you again neglected to punch out. On Friday, April ,10, 1985 you did not show up for work, and you also did not call to advise us of your absence. Mr. Castillo, in view of the above mentioned facts; your willful neglect to punch out after being warned and your taking a day off without calling, I find it necessary to terminate your employment. Enclosed, you will find your hours. Final pay- check. Donald Cassone's version of the events is that after Castillo failed to punch out on Tuesday (after being warned), and when Castillo did not come to work on Friday without calling in, he decided to discharge him According to Cassone, his decision to discharge Castillo was based in part on the fact that Castillo had previously been discharged. Thus, he states that although the infrac- tions of that week would not ordinarily warrant an em- ployee's discharge, they did in Castillo's case because of his poor past record. Cassone testified that on Monday morning he waited for Castillo in the parking lot and told him that he was fired. He also claims that, at the same time, he told Castillo that if he wanted to work for the Company he would have to work in the roll depart- ment. In this respect, Cassone testified that he wanted to put Castillo in the roll department because that would be a place where Castillo could not wander about. In any event, Cassone states that when he offered to put Castillo in the roll department, the latter said "fuck you" and walked out. Leopold Cejas also testified about the events surround- ing Castillo's discharge. He states that about 6:55 a.m. on Monday, Castillo told him that Donald Cassone told him that he could no longer work in the cleaning department. According to Cejas he told Donald Cassone that he needed Castillo in his department and that he was a good worker. He states that Donald Cassone did not listen to him and did not explain why he wanted Castillo moved to the roll department. As to the contention by Donald Cassone that Castillo did not call in on Friday, Cejas states that Castillo did in fact notify him in person on Friday that he was too sick to work. With respect to the assertion by Donald Cassone that at the same time that he fired Castillo he offered him a job in the roll department, this is a contention that is denied by Castillo. Also, I note that this alleged offer is not contained in the letter of discharge given to Castillo on 15 April. According to Castillo, about 2 weeks after his dis- charge, he asked Cejas who told Donald about his in- volvement in the Union. He states that Cejas replied that Donald Cassone told him that he knew that Castillo was involved in the Union. Cejas also told Castillo that he did not know if this was the reason that Castillo was fired. (Cejas did not deny this conversation.) 3. Other alleged 8(a)(1) conduct Pedro Valdovinos testified he went to a meeting with union agent Narcisso Mates on 11 May. He states that on the following day, 12 May, Rocky Cassone Jr. asked how the meeting went. As to this allegation of "impres- sion of surveillance," Rocky Cassone Jr. concedes that he did ask about the meeting but that he knew of the meeting because Pedro Valdovinos told him about it a week before. In fact, as Matas testified that there were only two people at the meeting, himself and Pedro Val- dovinos, it seems to me very probable that it was Pedro Valdovinos who told Rocky Cassone about the meeting. The General Counsel also presented the testimony of Angel Molluturo in support of an allegation that Johnny Cassone unlawfully interrogated employees. My opinion, however, is that on this point Molluturo's testimony was too vague to support this allegation even assuming that Johnny Cassone was a supervisor within the meaning of Section 2(11) of the Act. II. ANALYSIS The evidence concerning the discharge of Jose Valdo- vinos is sufficient in my opinion to establish that he was discharged because of his union activities. Thus, the timing of his discharge is, by itself, suggestive of an an- lawful motive inasmuch as Valdovinos' discharge oc- curred just 2 days after the union meeting that was held at his home. Regarding knowledge of union activities, Angel Molluturo testified, without 'contradiction, that sometime between the time he gave Valdovinos the Union's phone number and the time Valdovinos was fired, he (Molluturo) told Supervisor Leopoldo Cejas that there was union activity. What is more, Molluturo testified that Cejas replied that he was aware of the union activity because Rocky Cassone Jr. told him about it.7 7 There is evidence in this record that suggests that Luis Fernandez may have told Donald Cassone about the union meeting at the home of Jose Valdovinos. In this regard, the evidence shows that on the morning of 4 April, Fernandez told Pedro Valdovinos that he had been called into the office by Donald Cassone and that he (Fernandez) was not going to continue with the Union. 410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Employer's defense regarding the discharge of Valdovinos is not very persuasive. It claims that Jose Valdovinos was constantly late in that he not only punched in after his scheduled starting time (4 a.m.), but that he took additional time changing into his uniform after punching in. Yet the evidence in this case shows that if Valdovinos was continuously late, it also shows that this pattern of arriving at times from 5 to 10 minutes late had gone on for a long period of time before his dis- charge and had not resulted in any prior disciplinary ac- tions. Moreover, the evidence shows that other employ- ees who worked on the Allied account (such as Moise Contreras and Luis Lopez), also came late with the same degree of frequency as Jose VaIdovinos and had never received any disciplinary action on that account. 8 The record shows that for at least a 3-year period prior to Jose Valdovinos' firing, discharges were rare events (numbering about seven), and that no employees were discharged because of latenesses. Regarding the rule re- quiring employees to change into their work clothes before punching in, Rocky Cassone Jr. conceded that this rule had not been enforced. The Respondent asserts that because Valdovinos was assigned to put dough into the BP oven, his unavailabil- ity at the beginning of the shift would cause a backup and a delay in the work of all the other people working on that oven, including the 20 to 22 packers. The evi7 deuce, however, shows that as the night crew leaves a good deal of baked bread on the outgoing line, there is therefore, bread for the packers to begin working on as soon as they arrive at work. Also, there is nothing par- ticularly unique about Valdovinos' work or the -work of the packers, each being readily interchangeable. Thus, Supervisor Campos testified that if Valdovinos or one of the other workers who put dough into the oven was late or absent, he could simply assign a packer to that task. Finally, I find it significant that the decision to dis- charge Valdovinos was made by Donald Cassone with- out even consulting Supervisor Arturo Campos, who ap- pears to have been as surprised by the discharge as Val- dovinos. I am also persuaded that the Respondent discharged Gavin° Castillo for unlawful reasons. Here too the timing of the discharge, soon after he began to distribute union cards, is evidence of discriminatory intent. Also in- dicative of such intent is the evidence that the decision to discharge Castillo was made by Donald Cassone not only without consulting Castillo's individual supervisor, Leopoldo Cejas, but was implemented by Cassone after Cejas told Cassone that Castillo was a good worker and that he was needed in the cleaning department. I am relatively certain that Castillo, despite his asser- tions, was not given permission to leave on 9 April with- out punching out his timecard. I also believe that he was not sick on the days he took off because the evidence shows that he worked at another job on those days. Nev- ertheless, in the latter case, this fact was not known to the Respondent when it discharged Castillo and it there- fore could not have been a basis for its motivation. As to 8 In fact, on 4 and 5 April both of these employees arrived after Jose Valdovinos. Castillo's failure to punch out, I do not accept Respond- ent's assertion that this in any way prompted his dis- charge. Nor do I credit Donald Cassone's assertion that one of the reasons for Castillo's discharge was his failure to call in on Friday to notify the Company that he was sick. In fact, according to Cejas, Castillo did notify him on Friday that he was still too sick to come to work. The Employer asserted that Castillo's conduct during the week ending 12 April (twice failing to punch out and his failure to call in about his illness), coupled with his past record, made him unfit for employment. Yet this as- sertion, to my mind, is contradicted on its face by Donald Cassone's claim, during the hearing, that at the same moment that he was firing Castillo, he offered him a job in the roll department. 8 Concerning knowledge of Castillo's-union activities, I note that Cejas did not deny Castillo's testimony that Castillo told him about the union campaign prior to his discharge. Nor did he deny the testimony that he told Castillo 2 weeks after the lat- ter's discharge that Donald Cassone had told him that he (Cassone) knew that Castillo was involved in the Union. Regarding the other alleged 8(a)(1) conduct, I make the following conclusions. 1.I will recommend the dismissal of the allegation that in late March or early April Supervisor Cejas interrogat- ed employee Molluturo or gave the impression that the employees' union activities were being kept under sur- veillance. In this respect the testimony of Molluturo did not reveal any interrogation at all. It merely was that Cejas said that he knew the Union was a reality and that Rocky Cassone had told him about it. 2. I do not conclude that Rocky Cassone Jr. violated the Act in any manner by his remarks to Pedro Valdo- vinos on May 12. As the evidence establishes to my satis- faction that Pedro Valdovinos very likely told Rocky Cassone of a union meeting to be held on 11 May, I cannot conclude that Cassone's inquiry on 12 May about how the meeting went would constitute giving employ- ees the impression that their union activities were under surveillance. Nor did I hear evidence to support the complaint's allegation that on 12 May Rocky Cassone Jr. engaged in unlawful interrogation, or that he told em- ployees that it would be futile for them to select the Union as their bargaining representative. 3. In my opinion the evidence given by Mollutoro was too vague and uncertain regarding the contention that Johnny Cassone unlawfully interrogated employees about their union activities. 4. I conclude that Rocky Cassone Jr. did tell Jose Val- dovinos that the Company would close down if the Union came in. In this regard I found Valdovinos to be an honest witness whose testimony, in my opinion, was reliable. As Valdovinos at the time of this statement had been unlawfully discharged, he retained his status as an employee and therefore the coercive statement was made to an employee. As such I conclude that the Employer's statement violated Section 8(a)(1) of the Act. 9 On this point I credit Castillo's assertion that he was not offered other employment at the Respondent at or after the time he was dis- charged on 15 April. In this regard I npte the conspicuous absence of any reference to such an offer in the discharge letter of 15 April. J. J. CASSONE BAKERY 411 CONCLUSIONS OF LAW 1.Respondent J. J. Cassone Bakery, Inc. is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 3, Bakery, Confectionery and Tobacco Work- ers International Union, AFL-CIO is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By threatening to close the plant if the Union became the employees' collective-bargaining representa- tive, the • espondent violated Section 8(a)(1) of the Act. 4. By discharging Jose Valdovinos and Gavino Cas- tillo because of their activities on behalf of the Union, the Respondent has violated Section 8(a)(1) and (3) of the Act. 5.The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except to the extent found, the other allegations of the complaint are dismissed. REMEDY Having found that the Respondent has violated the Act in certain respects, I will recommend that it cease and desist and take certain affirmative action to effectu- ate the policies of the Act. Regarding Jose Valdovinos and Gavino Castillo it is recommended that Respondent offer them full and imme- diate reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and to make them whole for any loss of earnings they may have suffered by reason of the discrimination practiced against them, such earnings to be computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 1716 (1982). Additionally, in accordance with Sterling Sugars, 261 NLRB 472 (1982), I will recommend that Respondent remove from its files any reference to the discharges of Valdovinos and Castillo and to notify them in writing that this has been done and that evidence of same will not be used as a basis for future personnel actions against them. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edl° ORDER The Respondent, J. J. Cassone Bakery, Inc., Port Chester, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to close its plant if the Union were to become the employees' bargaining representative. 10 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. (b) Discharging employees because of their union membership, activities, or support. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Jose Valdovinos and Gavino Castillo immedi- ate and full reinstatement to their former job or, if those jobs no longer exist, to a substantially equivalent posi- tion, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make they whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (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) Post at its place of business in Portchester, New York, copies of the attached notice marked "Appen- dix."" Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places Where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. " 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 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. The Act gives employees the following rights. To engage in self-organization To form, join, or assist any union To bargain collectively through repre,sentaive of their choice 412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To engage in activities together for the purposes of collective bargaining or other mutual aid or pro- tection To refrain from the exercise of any or all such activities. WE WILL NOT threaten to close the plant if the Union were to become the employees' bargaining representa- tive. WE WILL NOT discharge employees because of their union membership, activities, or support. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer reinstatement to Jose Valdovinos and Gavino Castillo and make them whole for any loss of earnings they may have suffered because we discharged these employees respectively on 5 and 15 April 1985. J. J. CASSONE BAKERY, INC.