Bakers Of Paris, Inc.

BAKERS OF PARIS 991 Bakers of Paris, Inc. and Bakery, Confectionery & Tobacco Workers International Union, Local No. 24, AFL-CIO-CLC. Cases 20-CA-18601 and 20-RC-15679 May 17, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 23, 1985, Administrative Law Judge David G. Heilbrun issued the attached decision. The Respondent filed exceptions and supporting and answering briefs. The General Counsel filed limited cross-exceptions, supporting and answering briefs, and a motion to strike portions of the Re- spondent's 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 briefs and has decided to affirm the judge's rulings,' findings,2 1 The Respondent contests the judge's rulings precluding it from im- peaching the General Counsel's witnesses by using pretrial statements, which the Respondent itself had taken in English with the help of an in- terpreter The judge based his rulings on the inability of a non-English- speaking-and-reading witness to authenticate his affidavits' contents as being his statement Accordingly, the judge ruled that a translated copy in the witnesses' native language would be required for Impeachment purposes The Respondent declined to obtain official translations of its af- fidavits We affirm the judge's ruling, which is in accord with NLRB v. Dora! Building Services, 666 F 2d 432, 435 (9th Cir 1982) The Respondent further excepts to the judge's ruling permitting trans- lation of testimony by two Interpreters who the Respondent contends were biased because of their Involvement in the preparation of the Gen- eral Counsel's case prior to trial Absent a showing of erroneous or im- proper translations or other evidence of interpreter bias, we find that the Respondent has not demonstrated in its exceptions any evidence of bias on the part of the Interpreters which would warrant a finding that it has been prejudiced by the judge's ruling 2 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 The Respondent further asserts that the judge has failed to make spe- cific findings of fact as required by the Administrative Procedure Act We are satisfied that the judge's findings are sufficiently clear and specif- ic In fact, the only finding not specified as to exact time and place is his finding that the Respondent threatened to close the plant in the event of unionization We note that the mutually corroborative testimony of three fully credited witnesses, Chi, Xuan, and Luu, establishes that Wicker stated at the October 14 assembly of employees that the Respondent would close the bakery if the Union were successful Because the judge has found unlawful interrogations, and promises and grants of benefits and his Order remedies those violations, we find it un- necessary to pass on the General Counsel's limited exceptions urging that we find additional instances of such violations We note and correct an apparent inadvertence of the judge concerning the identity of an employee who met with Vice President Wicker in late November, by substituting the name "Nam" for "Nhon" in the seventh paragraph of sec II,F,1 of his decision and conclusions as amplified below and to adopt the judge's recommended Order. We affirm, for the following reasons, the judge's conclusion that the Respondent's unlawful conduct warrants the imposition of a Gissel3 bargaining order to protect the employees' majority selection of a bargaining representative based on authoriza- tion cards.4 As the judge found, immediately on receipt of the Union's representation petition the Respond- ent's top officials embarked on an unlawful course of conduct in an effort to discourage employee support for the Union. Thus, on October 5, Respondent's vice president Wicker, on learning of the employees' organizing activities, unlawfully asked three employees if they had signed cards for the Union, 5 expressed his per- sonal outrage to them, describing such conduct as betrayal or personal disloyalty, and characterized their conduct by means of gestures as a "stab in the back." From then on Wicker conducted a cam- paign designed to undermine the Union's support. At a meeting of the assembled employees on Octo- ber 14, Wicker threatened that unionization of the bakery would lead either to the purchase of high capacity automated baking equipment, which would displace some employees, or to a sale or a complete shutdown of the bakery. And at that same meeting, he unlawfully announced and grant- ed extended work breaks to all the employees. At other times, Wicker promised hourly wage in- creases to some employees conditioned on the Union's election defeat and for similar reasons granted hourly increases to two employees. He also repeated the layoff threat to employees, and a month before the election he discriminatorily dis- 3 NLRB v Gissel Packing Co., 395 U S 575 (1969). 4 The Respondent contests the judge's finding that the Union obtained a majority of valid employee authorizations, arguing that the General Counsel failed to show that the non-English-reading-or-speaking employ- ees understood the import of their signatures on the cards Moreover, it asserts that Fred Phung and Michael Nguyen are supervisors whose so- licitation efforts invalidated eight authorizations in addition to their own Contrary to the Respondent, we find that the record fully supports the judge's finding that Fred and Michael are not supervisors within the meaning of the Act. We also find that the testimony of signatories or so- licitors of at least 17 authorization cards establishes that those 17 card signers knew or were advised of the purpose and significance of their signing the union authorization cards We therefore find that a majority of the unit employees, 17 of 28, had designated the Union to be their col- lective-bargaining representative by September 27, 1983 The 17 are- Toha Dam, Phuong Phuoc Hung, Nhon Nang La, Xuan Duong, Trieu Tan Dao, Chi Van Hoang, Thanh Luu, who authenticated their cards, and Vinh Pham, Nam Hang, Tran Minh, Michael Nguyen, Gia Phung, Wilson Ton, Cuong Luu, Luong Mach, An Than Quan, and Quan Khong Ton, whose cards were authenticated by those who solicited them. (In light of this finding, it is unnecessary for us to determine whether five additional cards were valid ) He also unlawfully interrogated a fourth employee a few days later about whether the employee intended to discuss unionization with an- other employee while the two of them were on the telephone with each other 288 NLRB No. 113 992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD charged the most prominent union proponent, Chi Hoang, who had previously declined an offer of an hourly increase in return for the Union's defeat. A few days later Wicker discriminatorily rescheduled Thanh Luu, another leading union adherent, to an isolated work shift. The Respondent's president Robbe-Jedeau also participated in the unlawful antiunion campaign. In a departure from his practice of not becoming per- sonally involved with the employees, Robbe- Jedeau began to meet with them in the closing weeks of the campaign. In one meeting he repeated Wicker's earlier threat of full automation and re- sulting layoffs in the event of unionization by his pointed reference to highly automated equipment used by unionized bakeries, capable of producing 2000 loaves of bread in an hour, in contrast to the type of semiautomated equipment that the Re- spondent had recently ordered. In Gissel, the Supreme Court indicated, inter alia, that a bargaining order is warranted where an em- ployer's unfair labor practices "have a tendency to undermine majority strength and impede the elec- tion process." 395 U.S. at 614. The unfair labor practices of the Respondent are clearly the type of conduct to which Gissel referred. To begin with, the bulk of the Respondent's unfair labor practices are of a kind whose effect is unlikely to dissipate with time, namely, the threats of plant closure and job displacement, and the dis- charge of one union activist and transfer of another to an isolated shift in retaliation for their union ac- tivities. 6 Further, the threats of closure and job loss were less likely to be discounted or forgotten by the employees because they were made by the Re- spondent's vice president and president, and were directed at and reached every unit employee. The effect of unfair labor practices is increased when the unlawful conduct is committed by top manage- ment officials, who are readily perceived as repre- senting company policy and in positions to carry out their threats, and when that conduct envelopes a significant number of employees. 7 It is also in- creased when the threats begin, as here, on the Employer's acquiring knowledge of the advent of the Union, and then are repeated, again as here, shortly before the election is conducted. 8 Similarly, the impact on the employees of the discriminatory treatment accorded fellow employees Hoang and Luu must be viewed as continuing. 6 The unlawful 6 See, e.g., NLRB v. Sertafilm, Inc , 753 F 2d 313, 319 (3d Cir 1985), Martin City Ready Mix, 264 NLRB 450, 451 (1982). 7 See, e.g., Kona 60 Minute Photo, 277 NLRB 867, 870 (1985); Long Airdox Co , 277 NLRB 1157, 1160 (1985) 8 See, e g, Quality Aluminum Products, 278 NLRB 338 (1986), enfd 813 F.2d 795 (6th Cir 1987) See, e.g., NLRB v. Sertafilm, supra, 753 F 2d at 319 treatment of these two employees graphically dem- onstrated to the other employees the price they might have to pay if they continued to support the Union. The Respondent's efforts to keep the Union out, however, were not limited to threats and discrimi- nation. To the contrary, the Respondent made clear to all its employees its readiness to reward as well as punish them. At the October 14 meeting, Wicker summarily announced and granted the em- ployees extended work breaks in response to one of their complaints. Subsequently, he promised or granted wage increases to some employees in return for their abandoning or eschewing support for the Union. While these increases were not of- fered to all the employees, it is more than likely that their existence became known to the entire unit through dissemination—considering that these and all the other unfair labor practices were com- mitted by Wicker and Robbe-Jedeau, that the unit was small, and that it was composed of a few close-knit ethnic, foreign-language-speaking groups." The promise and grant of wage increases or improved benefits, because of their economic in- ducement, are unfair labor practices which, like their punitive counterparts, have a substantial and lingering effect on employees. 11 Consequently, the benefits offered or provided here support our con- clusion that "the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies . . . is slight . . . ." 1 2 Finally, the Respondent's engagement in post- election unfair labor practices demonstrates the Re- spondent's continuing opposition to unionization of its employees and the lack of any change in its an- tiunion policy, and this 'further diminishes the likeli- hood that a fair rerun election could be conduct- 10 Compare NLRB v. General Stencils, Inc , 472 F.2d 170, 172-173 (2d Cir. 1972), denying enf 195 NLRB 1109 (1972) (cannot infer dissemina- tion of threat made to 1 employee where that employee left shortly thereafter and of 17 employees called by the General Counsel, none testi- fied to having heard about the threat) When, is here, an employer en- gages at the highest levels of management in a full-scale campaign of un- lawful intimidation and reward designed to reach all the employees, and the unit is small and close-knit, we find it reasonable with respect to in- stances of misconduct directed at the few rather than the many to infer dissemination. It is likely that the employees, having been subjected as a group to many of the employer's unfair labor practices, will also circulate among themselves news of unlawful incidents which were directed at but one or a few of them. Thus, the cases relied on below by our colleague are distinguishable and we perceive -no inconsistency between them and the instant case on the issue of dissemination Member Cracraft would not infer dissemination to the unit of the promise or grant of wage increases to some employees See Sears Roe- buck de Puerto Rico, Inc. 284 NLRB 258, 259 fn. 13 (1987), Metz Metal- lurgical Corp, 270 NLRB 889 (1984). This does not affect her decision, however, regarding appropriateness of a Gissel bargaining order " See, e g., Glengarry Contracting Industries, 258 NLRB 1167 at fn. 2 (1981). i2 supra, 395 Us at 614 BAKERS OF PARIS 993 ed." Thus, more than 6 months after the election, during a 2-month recess in the hearing of this case, President Robbe-Jedeau threatened all the employ- ees when, in an address to them, he declared that litigation of this matter would cause wages to be frozen for 2 to 5 years. Then, approximately 2 months later, Wicker and a customer of the Re- spondent named Henry Lam met with employee Gia Phung in Robbe-Jedeau's office and accused Gia of having lied on the witness stand for the General Counsel. Immediately thereafter, Lam spoke privately with Gia and intimated that Gia's job was in jeopardy but that it could be "cleared" if Gia recanted his prior testimony. These further illegal acts of the Respondent, one of which affect- ed all the employees, could only have served to remind them of the Respondent's earlier unfair labor practices and to fix more securely in their minds that they supported the Union at their peril." Accordingly, given the swiftness, severity, and extensiveness of the Respondent's unfair labor practices, we find it highly unlikely that its em- ployees would be willing or able freely to express their choice in another election. We therefore con- clude that simply requiring the Respondent to re- frain from unlawful conduct will not eradicate the lingering effects of the Respondent's violations.I5 Rather, we conclude that the majority employee sentiment previously expressed for the Union through authorization cards would be better pro- tected by a bargaining order and, therefore, we adopt the judge's recommended Order requiring the Respondent to bargain with the Union." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Bakers of Paris, Inc., South San Francisco, California, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. 13 See, e.g , Long Airdox Go, 277 NLRB at 1160. 14 See, e.g. Quality Alununum, 278 NLRB 338. 15 See, e.g. Pacific Southwest Airlines, 201 NLRB 647, 657 (1973), enfd 550 F.2d 1148, 1153 (9th eir 1977). Granite City Journal, 262 NLRB 1153, 1157-1158 (1982) 16 The General Counsel moved to strike from the Respondent's brief Vice President Wicker's averment that the Respondent has retained only 9 of the original 28 unit employees in a unit which has expanded to 37 employees, on the ground that the alleged facts are not in evidence or subject to cross-examination. We grant the General Counsel's motion. We note, in any event, that even accepting as true the Respondent's averment that employee turnover has left the unit with only nine of the employees who voted in the election, there is no assurance that conditions for a fair election now exist See Quality Aluminum Products, supra, Koons Ford of Annapolis, 282 NLRB 506, 509 and fn. 18 (1986), enfd mem. 833 F.2d 310 (4th Qr. 1987). Maxine Auerbach and Jane Lawhon, Esgs., for the Gener- al Counsel. Robert G. Hulteng (Littler, Mendelson, Fast/if& Tichy), of San Francisco, California, for the Respondent. Kenneth N. Silbert, of San Francisco, California, for the Union. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. These consolidated cases were tried at San Francisco, California, on various days during the timespan 30 May through 5 October 1984, The charge in Case 20-CA- 18601 was filed by Bakery, Confectionery & Tobacco Workers International Union, Local No. 24, AFL-CIO- CLC, (the Union), on 27 December 1983, and the com- plaint was issued 31 January, 1984, with an order consoli- dating cases and referring the associated representation proceeding, Case 20-RC-15679, to the Board. The pri- mary issues in the complaint case are whether Bakers of Paris, Inc. (Respondent) (a) unlawfully engaged in vari- ous acts and conduct that interfered with, restrained, and coerced employees in the exercise of their statutory rights, (b) discriminatorily discharged one employee and discriminatorily changed the shift of another, in violation of Section 8(a)(1) and (3) of the National Labor Rela- tions Act, and (c) by allegedly engaging in such unfair labor practices has precluded the holding of a fair rerun election thus warranting the entry of a remedial bargain- ing order. In the representation case proceeding, a petition was tiled by the Union on 29 September 1983, and an election pursuant to Stipulation for Certification upon Consent Election was conducted 9 December 1983. Of approxi- mately 32 eligible voters, 10 votes were cast for the Peti- tioner and 16 against. The six challenged ballots resulting from the election were not sufficient in number to affect its results. The Union filed timely objections, which the Acting Regional Director for Region 20 found, in part, to "involve the same issues" as presented by alleged vio- lations of Section 8(a)(1) of the Act as set forth in the simultaneously issued complaint. On the entire record,' including my observation of the demeanor of witnesses, and after consideration of briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a California corporation, operates with an office and place of business in south San Francis- co, California, where it has been engaged in the whole- sale and retail sale of bakery products. During the calen- dar year ending 31 December 1983, Respondent, in the course and conduct of its business operations at this facil- ity, sold and shipped goods and materials valued in Numerous transcnpt corrections are set forth below in sec II,D,2 of this decision. 994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD excess of $50,000 directly to Safeway Stores, Inc., an en- terprise located within the State of California and that meets direct standards for the assertion of jurisdiction by the National Labor Relations Board. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Case Background Respondent was founded in 1981 as a producer of French breads, croissants, pastries, and other baked goods. Its operation serves customers 7 days of the week. Principal business guidance emanates from Lionel Robbe-Jedeau, president, and Gilles Wicker, vice presi- dent. The latter is specifically in charge of production functions. Soon after its inception Respondent experi- enced labor problems generated with the Teamsters Union, which led to several case filings in Region 20. From an original work force of only a few, Respond- ent has expanded its employment to approximately 40 persons and operates several retail stores in the metropol- itan area. A resultant configuration at the main produc- tion and distribution facility in South San Francisco is that persons of French extraction manage the operation, and persons of Southeast Asian extraction are predomi- nant in the rank-and-file work force that includes several other individuals falling in neither category., Production at material times was departmentalized into breadmaking, a viennoiserie (croissant) line, a section for cakes and pastries, and a packaging department. Oper- ations are concentrated in the night and early morning hours. Employee work shifts shoV■`, much variation of length, frequency, and starting times due to functional in- tegration, traditionally busiest days, and full-time/part- time variations within the work force. Jackie Jegat is production manager, Guy Manceau is manager of bread production, and Christian de Bock is manager of the viennoiserie. These three individuals are stipulated by the parties to be an exempt class, and concededly for all case purposes to be statutory supervisors within the meaning of Section 2(11) of the Act. After contact from interested employees, the Union undertook an organizing effort focused on an appropriate bargaining unit that became officially described as: All production and maintenance employees em- ployed by the Employer at its 360 Swift Avenue, South San Francisco, California facility; excluding all sales employees, office clerical employees, guards and supervisors as defined in the 'Act. Following commencement of this organizing effort in late September 1983 representation case proceedings un- folded typically, with the election agreement approved on 3 November 1983 and a two-part secret-ballot elec- tion at the premises on Friday, 9 December 1983, from 2 to 3 p.m. and reopening from 10 p.m. to midnight. By this time practically all salient events of the litigation had transpired, and emphasis shifted to results of handling the Union's unfair labor practice charge. B. Case Outline As calendar year 1983 passed, Respondent had en- larged on its former structuring of employee relations, and its stepped up internal communications. By mid- August 1983 Jegat was holding small group meetings with employees concerning expansion and bonus plans, as well as description of anticipated new equipment. His written outline of that approximate point in time ex- tended such described topics into more detailed oper- ational matters touching organization, scheduling, and breaks from work, in addition to inviting rank-and-file suggestions on miscellaneous subjects. In this context routine employment dynamics were manifesting, including job or shift change request and in- quiry about advancement or wage increase prospects, as well as daily working conditions. Management's own ac- tions involved switching personnel and establishing a rough outline for an annual 1983 bonus to be budgeted at a total of $50,000, with $30,000 of this to be allocated among the rank-and-file for yearend distribution. Respondent's officials obtained immediate legal advice after the Union's petition was received on Monday, 3 October 1983, and following this there were extensive in- dividual and group communications with employees on the subject and the issues of written campaign materia1.2 Wicker held small meetings of employees on 5 October, and a major one on 14 October. Following approval of the election agreement Respondent used consecutive 2- day timespans on 17-18 November and 1-2 and 7-8 De- cember to hold a series of meetings with scheduled em- ployees comprising about 10-person blocks on each occa- sion. In these sessions Robbe-Jedeau spoke from pre- pared texts, and along with Wicker engaged in some en- larging remarks or response to questions. Interspersed in the overall timespan of 5 October-8 December, individ- ual employee contact also occurred, as specifically de- scribed below, and on the election date of 9 December both Robbe-Jedeau and Wicker took their final opportu- nity to campaign by actions that are, in part, among the alleged violations of the Act. Wicker used a handwritten outline for his general meeting with employees on 14 October. In verbatim form and usage it reads: Hoang Oanh is here to help me to have a better communication for those of you that have some dif- ficulties in understanding and speaking English. This meeting was called by Mary and Me. On Monday October 3 we received a letter from the Union Bakery Local 24 telling us that at least 30% of our employees are asking for a vote that will decide if the Bakers of Paris employees want or don't want to join the union. When employees ask a union to come to organize a business, it means that those employees are unhap- py about the way the company treats them. For the past year; a big part of my job in this company was to improve communication between 2 All dates and named months hereafter are in 1983 unless indicated otherwise. ,- BAKERS OF PARIS 995 employees and management. I started by making weekly meetings with my supervisors. First with Jacky the production manager and the managers of bread and Viennoiserie line. Then meetings with the two supervisors of the packaging Fred and Mi- chael—Then a weekly meeting with Carl the super- visor of the pastry line. In April we started the line meeting that involved you and your direct supervi- sors. Last month we completed the communication efforts with the newsletter. In spite of all these efforts, without any warning or further discussion, some of you called for an [sic] union vote. For me it is a shock and I take it personaly [sic]. I am wondering why you people did this to me. In spite of our differences of opinion regarding union matters, I want you all to know that during this meeting I will [sic] like you to express you sug- gestions. Business is business and we will deal with the union situation as it progresses. We want to get back on the track of communication that we work so hard to built [sic]. I am waiting for a good understanding between us and I am waiting your suggestions. The outline for the first of the November/December 2-day meetings, which are acceptably labeled the "Lionel" meetings because of his principal and uncom- mon involvement with assembled employees, was hand- written by Robbe-Jedeau. To this extent, surplusage omitted, it reads: As you know, the election here at Bakers of Paris will take place on December 9, 1983. That's 3 weeks from tomorrow—the voting hours will be from 2 to 3 pm and from 10 pm to midnight. On that day you will decide whether or not you want to be represented by the union. Your decision is very important for the future of Bakers of Paris. I hope that you will vote against the union by voting NO in the election. A NO vote means that you don't want the union. Between today and the election, I intend to give you the facts about why it's in your best interest to vote against the union. Today we will discuss. . . . Attached further as his discussion outline for the 17-18 November meetings were several typed pages headed "election procedures," "the meaning of collective bar- gaining," and "the effects of a strike," respectively. Robbe-Jedeau's handwritten outline for 1-2 December was considerably more extensive. It is set forth verbatim as Appendix A to this decision. His final handwritten outline, as used 7-8 December, reads as follows: Tonight is the last time we meet before the elec- tion, and I hope that all of you will say "no" to the union on Friday. And I mean that 100% of you, not only a majority will say no to the union. A split vote—even in favor of the company would bring all of us into a battleship. Unity behind the company is in the best interest of all of us. Already in the course of the past few weeks many of you have changed your mind about the union. During the individual meetings you had with Gilles, you expressed your loyalty to this company. And this company tells you tonight through my voice that you don't have to worry. Bakers of Paris will always bring the rice in your house. Let me thank you for your courage, your trust and your long term commitment, because that's the way we're building this business: for life. And that's how long we'd like you to stay with us. Bakers of Paris is a new company and a small one—we specialize in french bread, croissant, and viennoiserie, using the exact methods as practiced in Paris, France. Quality is the key to our success and the main value in this company. 1984 should be a turning point in our development. We are not only going to invest in new equipment in order to achieve greater productivity and better quality. We will also start to freeze our pastries and invest in freezing equipment. Needless to say that we need your loyalty and commitment to implement effec- tively the new changes and to compete against competition. Let me tell you who are some of our competi- tors. The first to come to my mind is Pepsi-Cola with a La Petite Boulangerie, its non union bakery (incidentally they pay people in your job situation $5/hour). Vie de France a new and large French bakery—another non union bakery. And the old in- dustrial sourdough bakeries—those like Parisian, Boudin, etc. with the help of their union have tried to put us out of business. And yOu have to know what they did. First they went picketing our ac- counts, hoping that we would lose them. They failed. So they lied to us, they manipulated the poli- ticians against us—as the result Barbara Boxer, the Congresswoman sent a letter to the St. Francis Hotel, the Fairmont Hotel, etc. asking them to use other bakerie [sic], and of course she suggested Pa- risian, Boudin or Pisano. Here is her letter. [Omit- ted from publication.] If the union wants us out of business they won't do much for you—they will let you down, if you get in trouble as they did for Chi. They probably made him believe he could do anything—and now what? He lost his job, his vote won't count, and the union does not even file the charges of his claim. He is all alone. He's still calling you because he still believes in I don't know what kind of promises— but they all will vanish/disappear on December 10 after the election. Now I hear also that the union is threatening you. I am told that the agents who work here, threaten the many of you that express their support to Bakers of Paris. First you should know that, it is an old union technique used when they believe they going to loose an election. Its easier to threaten than to come up with a good reason to vote for the union. As a matter of fact during our past meetings I haven't heard any of the leaders that we all know 996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD come up with any reason at all. But the main point that I am making here is that threats of violence are not acceptable in this company. And if this happens to you, feel free to let us know—we can help you, and we will. This is a case of immediate discharge. Hopefully it won't happen, because our group will be unified again on Friday, and that you will give a vote of confidence to the company. Any problem we may have should be solved within Bakers of Paris not with a third party involved. Freedom and social peace, is what we're looking for not unionism. And I am very excited to meet with you after the election to talk about you future at Bakers of Paris. Thank you. In this same general timeframe other written campaign materials were also used. During the period of late No- vember to eve of the election the following quoted mate- rials, a letter to all employees, a memorandum to them from Robbe-Jedeau and Wicker, jointly, and an item la- beled "Facts" about the imminent election, respectively, were distributed. I've talked to you already about what could happen with the Union here. As you know, there is no guarantee that we would agree with the Union on a contract. If this should happen, one real possibility is that this Union would demand that all employees go out on strike against Bakers of Paris. By pulling employ- ees out on strike, a union can try to force a compa- ny to agree to its demands. I don't know if this would happen. But if there was a strike at Bakers of Paris, here are the facts about how it could affect all of us: (1) Under California law, you would not be enti- tled to any unemployment insurance benefits during a strike. (2) Bakers of Paris obviously does not pay em- ployees while they are out on strike. (3) Bakers of Paris has an absolute right to keep operating and to hire permanent replacements for any employee who engages in an economic strike. This would mean that if you were permanently re- placed, the Company would be under no obligation to rehire you unless and until a vacancy occurred. (4) As a Union member, you could be fined if you tried to return to work during a strike. The Union would probably exert all the pressure it could to keep you from returning to work during such a strike. I can guarantee you one thing—Bakers of Paris will not be intimidated by strikes and picketing. The Teamsters Union has tried to shut us down with picketing, and we beat them. We are determined to keep Bakers of Paris operating despite a strike or picketing. There is simply no way of knowing whether a strike might occur here at Bakers of Paris if the Union won the election. But why run the risk of possible union strikes and picketing? By voting against the Union on December 9, you can protect yourself and your family from the uncertanties that a union creates. Vote "NO" on December 9! . . . . We are very happy that several employees have now told us that they have changed their minds and are voting against the Union. We felt sure that, as soon as everyone knew the truth about the Union, you would realize that the Union works against your interest. It is now clear that a majority of our employees will be voting against the Union. In fact, we hope very much that every single employee will vote against the Union. It would be better for all of us if there is a 100% vote against the Union. Then we can put this Union thing behind us and work to- gether to make Bakers of Paris more successful. When you vote, remember that the Unions in San Francisco have been trying to put Bakers of Paris out of business. When the Union tries to hurt Bakers of Paris, it tries to hurt all of us. That's why we honestly do not believe that this Union would help any of our employees. This Union has no real interest in the Vietnamese people—it has no Viet- namese officers and not even any Vietnamese mem- bers. As many of you have discovered, this Union is wrong for our Company. We want the support of each and every one of you in the election on Friday. We hope you will join with other employees in voting "NO." . . . . THE FACTS ABOUT FRIDAY'S ELECTION Election Time and Place: [omitted] Election Procedure: The election will be super- vised by the National Labor Relations Board, a fed- eral government agency. No Union representative will be allowed in our building while voting is going on. Voting will be by secret ballot—no one else will know how you vote. Everyone will vote one at a time, in a special private voting booth. A Possible Strike: If the Union wins the election, it will then be possible for the Union to call a strike. We can't say whether this will happen, because we don't know. When the Teamsters Union picketed us before, they made a big mistake, and got in legal trouble. We hope that the Union does not try to force you out on strike. False Union Promises: This Union's promises have proven to be untrue. You simply can't believe Union guarantees. Bakers of Paris has regularly in- creased wages and benefits without the Union. We hope that we can continue to do so. A "NO" VOTE IS A VOTE AGAINST THE UNION PLEASE VOTE "NO" The issues of this case include a single allegedly dis- criminatory discharge and a challenged change of shift assertedly made so as to isolate an active supporter of BAKERS OF PARIS 997 the Union from convenient association with the general production work force. Contact to the Union was origi- nated by employee Thanh Vinh Luu (Luu). He was a relatively long-service employee having workeocLcontinu- ously since December 1981. His employment was com- menced through a community intermediary called South- east Asian Refugee Center (SEARC). Luu was originally hired by Wicker into the packaging department at a $5 hourly rate. He later became aware of an organizational chart displayed in the production area on which his name was titled "assistant dispatcher." After about a year he transferred to the viennoiserie line to mix and roll dough and to bake croissants. Through a knowledgeable coworker, Luu became in- terested by late summer of 1983 in bringing about union organizing at his employer, and he met preliminarily with David York, the Union's business agent. At a second meeting held 25 September at York's house, with various other interested persons accompanying Luu, more extensive plans for a campaign were discussed and authorization cards were made available for immediate signing or distribution. One of those attending was Chi Van Hoang (Chi), who had been employed during 1982 for bread baking work. His starting hourly rate of $6 had been increased to $6.50 in approximately January. Al- though also working at times on the viennoiserie line, Chi was in the bread section as of September. He had re- verted from full-time to part-time status the previous month, working thereafter on Friday, Saturday, and Sunday nights only. Chi involved himself extensively in the organizing campaign, following which from an epi- sode occuring on 5 November he was discharged. Subse- quently, effective on 14 November, Luu was rescheduled from an 8 p.m.-4 a.m. shift to one of the 6:30 a.m.-2:30 p.m. Further issues of the case involve happenings subse- quent to the opening of trial. Following 9 days of hear- ing, in a period slightly exceeding 2 weeks' time from commencement on 30 May 1984, the case recessed for 2 months until mid-August 1984. On resumption the Gen- eral Counsel successfully amended the complaint to allege matters occurring at a meeting of assembled em- ployees called by Robbe-Jedeau on 13 July 1984, and at which Wicker and two translators were present. Re- spondent introduced into evidence a three-page typed text from which Robbe-Jedeau spoke on this date, the translators simultaneously communicating in two lan- guages during his pauses. This text reads: We know that everyone's interested in the hear- ing at the Labor Board. We wanted to bring you up to date on the hearing and what we expect in the future. So far, the two lawyers from the Labor Board, Maxine Auerbach and Jane Lawhon, have been asking employees and former employees to testify. The Labor Board assigned these two women to help the Union. Their job is to try to support the Union's charges against the Company. So the two Labor oard women are not neutral in this case. They are completely, 100% on the side of the Union. On the first day of the hearing, the Union's lawyer showed up two hours late. He then left before the day was over. Since then, he hasn't even bothered to show up. So the two lawyers from the Labor Board are doing all of the work for the Union. When the hearing started, we hoped that it would be over soon. We have always wanted to get this thing settled one way or the other—and get it over quickly. Now we know that it won't be over quickly. Instead of finishing the hearing, one of the Labor Board lawyers, Maxine, said she wanted to go on vacation to Ireland for over a month. So the hearing stopped on June 15, and it won't start again until August 16. When the hearing starts again, the Labor Board lawyers are going to ask a couple more people to testify. Then it will be the Company's turn. Just like the Labor Board, we have the right to ask you to testify. We will ask people only to tell the truth. We know that we will win the case if everyone tells the truth. Our lawyers now tell us that there will not be a decision in this case soon. Their best estimate is that there will not be a final decision for two to five years. That's right—two to five years. Because this case is taking such a long time, it is costing the Company a lot of money in legal fees and other costs. We don't like this at all, but we have no choice. I AM SURE THAT ALL OF YOU WONDER ABOUT SALARY INCREASE. LET ME TELL YOU WHAT THE SITUATION IS, ONE OF THE CHARGES MADE AGAINST THE COM- PANY IS THAT WE USED WAGE INCREASE TO INFLU- ENCE CERTAIN EMPLOYEES TO VOTE AGAINST THE UNION. THE UNION COMPLAINS ABOUT INCREASES OF C50 AN HOUR THAT SOME OF YOU RECEIVED LAST FALL. AND CERTAIN EMPLOYEES TEND TO AGREE WITH IT. THE UNION ALSO CHARGES THAT IT WAS IMPROPER TO GIVE YOU A LARGER BONUS LAST YEAR. BECAUSE OF THESE CHARGES WE ARE NOW VERY CAUTIOUS ABOUT ANY LEGAL PROBLEMS THAT MIGHT BE CAUSED IF WE MAKE CHANGES IN WAGES OR BENEFITS. Our lawyers tell us that the Union could file simi- lar charges against any new changes in our wages or benefits. Apparently, the law says that a compa- ny takes a serious risk when it makes changes during a time that a union is trying to get an elec- tion thrown out. Unfortunately, the Union is still trying to have our election of last December thrown out. So we would run a legal risk if we made changes now. We certainly don't like this rule, but we also don't want to risk more charges and more hearings right now. We hope that this helps you to understand our current situation. We remain totally committed to seeing that the truth comes out in the hearing. That is the most important thing to us. We hope that we will have your support. 998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A final issue of the case, successfully amended into the complaint by the General Counsel after a month-long trial recess during late summer of 1984, concerns experi- ences by employee Gia Tuong Phung (Gia) on 15 and 16 September 1984 when called into Respondent's offices for discussion with Wicker and others. As to this the General Counsel alleges that unlawful interrogation oc- curred in contravention of the Board's rule stated in Johnnie's Poultry Co., 146 NLRB 770 (1964), enf. denied 344 F.2d 617 (8th Cir. 1965), and otherwise Gia was threatened in violation of Section 8(a)(1) during the course of this entire episode. C. Contentions 1. The General Counsel Claiming that a majority of employees in the appropri- ate production and maintenance unit had knowingly se- lected the Union as their collective-bargaining represent- ative, the General Counsel asserts that numerous unfair labor practices committed by Respondent can now only be remedied by a bargaining order under which the elec- tion results of 9 December are immaterial. The identifia- ble allegations respecting Section 8(a)(1) of the Act are categorized as follows: 1. Unlawful interrogation committed at various times in October, November, and December plus unlawful in- terrogation of Gia on 15 and 16 September 1984. 2. Unlawful threats of plant closure and of mechaniza- tion to affect employment and job layoffs, committed at various times in October, November, and December. 3. Unlawful creation of the impression of surveillance of union activities committed on 5 October and in No- vember. 4. Unlawful granting of a longer break period to em- ployees effective 14 October. 5. Unlawful retaliatory enforcement of work rules as committed beginning on 14 October. 6.Unlawful voting instructions to employees and solic- itation of their grievances on 18 November. 7. Unlawful promise of extra large bonuses to employ- ees as committed on 1 and 2 December. 8. Unlawful granting of wage increases and promising wage increases and promotions as committed during the critical period prior to the election. 9. Unlawful telling to employees on 13 July 1984 that wage increases would be withheld through a future period of several years. Respecting 8(a)(3) allegations, the General Counsel contends that Chi was pretextually discharged after miss- ing work under circumstances devoid of any basis for such extreme disciplinary action. The episode in question involved claimed illness that the General Counsel main- tains is both proven and justifying the work absence that ensued, notwithstanding that Chi participated in a social engagement while actually sick. The dynamics of this discharge issue are intricately compressed into a time- span beginning the early afternoon of Saturday, 5 No- vember, and ending slightly over 24 hours later with a meeting between Chi and Wicker in the latter's office. The General Counsel contends that composite evidence on the subject exposes Respondent's action as pretextual and therefore discriminatory, arguing further that with- out a true, second, or "dual" motive the burden-shifting concept of Wright Line, 251 NLRB 1038 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), as approved in NLRB v. Transportation Management Coq., 462 U.S. 393 (1983), is not applicable. The General Counsel also contends that Luu was discriminated against by a shift rescheduling done deliberately to isolate him from most other employ- ees. Anticipating various defenses on the point, the General Counsel contends that a majority of employees in the ap- propriate unit had by 27 September signed authorization cards that in each case reflected the signatory's compre- hended intention to designate the Union as a representa- tive for fundamentally sensed collective-bargaining pur- poses. The General Counsel does not concede invalidity to any of the authorization cards entered in evidence, either as an intrinsic matter or based on circumstances surrounding the signatures, nor does it concede that pres- ence and participation by 'Thanh Quan Phung (Fred) and Michael Nguyen (Michael) at York's house on 25 Sep- tember and their later distribution of cards among some employees lead to any taint of essential authorization cards. This countervailing thought arises from the related issues of whether Fred and Michael, or either of them, are supervisors within the meaning of the Act in their es- tablished capacities with job authority as packaging oper- ations are carried out. The General Counsel's concluding contention is that unfair labor practices of the case are egregious and last- ing in nature, and which warrant imposition of a bargain- ing order within the intendment of NLRB v. Gissel Pack- ing Co., 395 U.S. 575 (1969), rehearing denied 396 U.S. 869. 2. Respondent Respondent's brief traverses each alleged violation of Section 8(a)(1), contending that credible evidence does not establish any unfair labor practice and that all mat- ters in this realm amounted only to vigorous but permis- sible election campaigning or are otherwise not violative as a matter of law. Respondent argues with particular emphasis that the overall testimony of witnesses for the General Counsel is flawed by pervasively insufficient comprehension of what they were being told in various large or small meetings, and that beyond this there is de- monstrable bias and self-serving motivation as to what is advanced in support of alleged 8(a)(1) violations. Specifi- cally, with respect to bonus plans and wage increases granted or promised, Respondent asserts that all action and advice on the subjects was based on legitimate busi- ness considerations consistent with past practice and es- tablished intentions as existing prior to the Union's repre- sentation petition. Respecting 8(a)(3) issues, Respondent contends that Chi was lawfully discharged for dishonesty towards his employer during an episode in which he was feigning ill- ness to deliberately avoid work on a night of other per- sonal priorities. On the issue of Luu's shift change, Re- spondent contends that the position to which he was transferred had opened by necessary accommodation to ' BAKERS OF PARIS 999 another employee, and that Luu alone had the qualifica- tions to perform required duties on the day shift. Re- spondent adds that even beyond this defense the change could not have led to claimed isolation, because Luu re- mained still relatively fully capable of mingling with nu- merous employees from the general work force. Respondent concludes its contentions by arguing that while logically no basis for a bargaining order is present, alternatively the majority of employees in the unit had not signed valid authorization cards because invalidating circumstances voided such a number of them that a nu- merical majority did not remain Claimed invalidation is pointed to in misunderstood purposes of signing, disquali- fying circumstances of the signatory process, and in- volvement in distribution and solicitation of cards by Packaging Line Supervisors Fred and Michael. Here, Respondent relies on Maximum Precision Metal Products, 236 NLRB 1417 (1978), and is otherwise in disagreement with the General Counsel as to specific composition of the appropriate unit D. Methodology 1. In general The nature, length, and litigation density of this case leads to a need for special comment on the decisional process. Over 40 persons testified including 3 of the 4 in- terpreters used during the trial. This particular array re- sulted in an extreme range of semantic quality. Aside from expert or 'specialized witnesses, a high percentage of others with personal knowledge bearing primarily or secondarily on the issues expressed themselves through interpreters in a comfortably appropriate language. Just over a dozen were translated in Vietnamese and eight others testified via Catonese translation. Respondent called two witnesses for whom translation in French was necessary, while its own chief officials testified sophisti- catedly in fluent, albeit imperfect and highly accented, English. Several witnesses chose to testify in English even though not native to them, and employee Luu, while testifying through the second of two Vietnamese interpreters, demonstrated an English fluency of unasses- sable but definite character. The amended-in issue of Respondent holding a general meeting with assembled employees on 13 July 1984 in- volves testimony of oratorical and expansive remarks by Robbe-Jedeau and Wicker, respectively, as to which two interpreters simultaneously translated aloud into both Vi- etnamese and Catonese. Since attending employees Luong Mach (Loung) and Tan Loi (Tan) are bilingual in each of the languages, and the latter has limited compre- hension of English, the situation yields multiple verbal- ized sources of comprehension, which are then subject to the further discipline of formal testimony in only one elected language. However, it must be remembered that the interpreters are themselves merely conduits through whom a slippage of meaning might eventuate during the best intentioned translating process. Furthermore, this variable is not enough of a conundrum, for one need merely look at the syntax of this record as it builds page by page and folio by folio, particularly as to the transla- tions in Asiatic languages, to see that a permeating indi- rection of meaning is often left at the outset of testimony only to be clouded further by cross-examination and other procedural techniques that are brought to bear on the witnesses. Thus, with Tan as an example, the excur- sion from actual English words spoken by Respondent's officials on 13 July 1984 to the record of this proceeding covers several distinct and potentially cross-purposeful phenomena. Finally, the litigation itself is fundamentally subject to integrity of its court reporting process, and while I impugn nothing in this regard it does essentially constitute a still separate variable in the distillation of memory.3 To a lesser extent language barrier also impinges on documentary exhibits of the case, with respect to infor- mal usages as with timecards or more lasting purposes as with postings, written policies, and other pronounce- ments meant to be read for retention. The overall config- uration of evidence is left with occasionally perplexing thrust, and the essential mode of resolution becomes in- fluenced if not improvised by sucn realities. 2. The record On 24 December 1984 the General Counsel filed a 24- page motion to correct the transcript. Subsequently, on 28 January 1985, a joint motion to correct the transcript was filed by the parties. This second document had three components, the first being nearly three full pages of mu- tually agreed-on corrections, and the second being nu- merous deletions from the General Counsel's original motion to correct but embodying a third characteristic of asterisking deletions objectionable to Respondent but that reappear on the General Counsel's simultaneously filed revised motion to correct the transcript dated 28 January 1985. In summary as to the General Counsel's efforts at correcting the transcript, one need look at the original motion to correct in modified form (disregarding unasterisked deletions listed in the joint motion from pages 3-7), the corrections "additiona[lly]" agreed on be- tween the parties, and the two-page tabulation that the revised motion constitutes. On 28 January 1985 Respondent also filed a motion to correct transcript as to page and lines 4643/18-20 only. An order to show cause as to substantive and technical matters relating to transcript corrections issued 1 Febru- ary 1985, and both parties filed timely responses. The General Counsel resisted Respondent's proposed change in a two-page opposition dated 20 February 1985 and Respondent filed a nine-page opposition to various changes proposed by the General Counsel, attaching as Exhibit A a letter of the reporting service dated 15 Octo- ber 1984 covering certain inquiries about the then recent- ly furnished folios.4 On consideration of these described materials, I cor- rect the transcript as follows: 'There were four different reporters during the overall course of trial. 4 As matters outside this record, the reporting service responded on other occasions to inquiry by the General Counsel as to accuracy of tran- scribed passages These letters were respectively dated 8 August, 24 Sep- tember, and 6 and 29 November 1984. 1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1. General Counsel's modified Motion to Correct the Transcript is approved, except that no change is made as to page and line 149/1$, and 2877/15.5 2. General Counsel's Revised Motion to Correct the Transcript is approved as to four unopposed changes at page and line 161/8, 353/17, 361/13, and 832/12. The Revised Motion is further approved in all remaining regards, except that no change is made as to page and line 465/17, 3511/6, 9, 12, and 15, 3996/21, 4610/18, and 4643/19.6 3. Both parties assail the record at page 4643 as to the interrogatory posed in lines 18-20. The vigor of their concern is rooted in how examination at this point might affect a crucial supervisory status issue of the case. After fully reflecting on the par- ticularly highlighted portion of line 19 only, Re- spondent's Motion to Correct Transcript is ap- proved and General Counsel's associated request set forth in the Revised Motion as pertaining to page and line 4643/19 is denied. [In addition to these nil- ings, I corrected the transcript in several respects, sua sponte.] I draw attention to, but attempt no correction of, the folio indices, which are frequently incorrect and particu- larly so as to the page locations of presenting and deal- ing with exhibits. I confirm that Respondents Exhibit 45 is a rejected document, notwithstanding that it remains in a basic exhibit folder after an out-of-record letter dated 6 November 1984 from the reporting service stated it would be "rebound . . . and labeled as a Rejected Ex- hibit." 3. Interpreters Respondent challenged the entitlement of certain inter- preters to legitimately so function, and made an extensive record on the subject. Essentially, the argument ran that earlier involvement with the investigatory process of Case 20-CA-18601 would expectably leave vestiges of suggestibility in the translator's awareness, and that sepa- rate circumstances tended to show there could be a bias favoring the General Counsel's witnesses.7 I adhere to rulings made under which all interpreters were found appropriately qualified, and with regard to both Nhi Le and Bosco Lee I express full satisfaction with their credibility as it manifests in both, (1) a faithful intent to translate as an oath was taken to do, and (2) an actual ability to give effect to the essence of questions 5 An approved change on p 2492 relates to L 13 not L. 11, while the approved change at 2505/21 is duplicative of one appearing in the re- vised motion. 6 In most regards the changes requested in the General Counsel's re- vised motion survive Respondent's reasons in opposition. Most signifi- cantly among the disagreements are those relating to identity of Luu versus Luong Here, the overall case context concernmg an older Viet- namese individual with 20 years' experience as a baker supports the re- quested change As to Respondent's opposition addressing phonetic dis- tinctions about which the reporting service has commented, I impose my own recollection of contested passages taken in overall context. Cf. Rogers Mfg. Co, 197 NLRB 1264 (1972) 7 There has been judicial cognizance of this prospect, as well as stated awareness of the situation where, as often the case here, witnesses have "difficulty" with English or understand "very little" of the language See People v. Aguilar, 35 Cal. 3d 785 (1984) posed and the best expression of answers made. This is an assessment based largely on demeanor factors in which these two (and other) interpreters gave every ap- parent indication of fidelity to their role. 4. Testimony The final and most critical phase of decisional method- ology is the actual sifting of testimony and related con- sideration of documentary evidence. Oral testimony is by far the more significant, for it is abundantly established that with respect to the various instances in which there was communication by agents of this Employer to as- sembled employees with written text as a basis, there also followed, or was interspersed, extemporaneous and collateral remarks, responses, or elaborations. In prefatory phrasing of the order to show cause re- ferred to above, I wrote that the case bore "unique and compelling reasons [for] meticulous integrity" of its tran- script. This eventuated as a futile hope, for the case tran- script exists with a content that is ponderous at best and puzzling at worst. Testimony, and particularly from those witnesses being translated in Asiatic languages, was subject to searching cross-exmination and the challenge of inconsistency when compared with prior statements. Although these and other procedural steps during exami- nation of witnesses are normal entitlements in fulfilment of due process rights, it is also true that there exists in this case a relatively narrow band of experience from which the salient testimony relative to most issues per- tains. The several 8(a)(1) issues of the case involve highly subtle distinctions of word choice and phrasing, which, when coupled with stilted and often abstruse relays of the interpreter, practically shades into total in- comprehensibility as a pure matter of semantics. Facing this situation, I render below 'typical assess- ments of witness credibility, but emphasize that beyond these impressions a general sense of the witnesses' testi- mony is used where literal words of the transcript fail to completely present the authentic comprehension shown as a composite matter from each credited witness. It must be remembered that in this employment setting, given the settled personal and cultural interplays, recol- lection of utterances made is rooted in fleeting moments of auditory experience with this very phenomenon itself colored by imperfectly evolved mechanisms of compre- hension as possessed by the respective individuals at ma- terial points in time. E. Credibility The peculiarities referred to immediately above lead to a need for most exacting assessments of credibility. In this process, lines between demeanor and nondemeanor factors are blurred by the quasiartificiality of an inter- preting process, and the enormous amount of colloquy that interrupted witness presentations. There were nu- merous impressions left from the many witnesses. Tenta- tively, the positive ones include intensity of seeming candor, behavioral reinforcement of assertions, consisten- cy as to essentials of testimony, probabilities of past alert- ness, and palpable assurance of expression. Presumably, the negative impressions include nervous hesitation, indi- BAKERS OF PARIS 1001 rection, self-contradiction, awkward refinements, inher- ent unlikelihood of claimed recollection, and resolute clinging to non sequiturs. All such factors, positive and negative, are ironically subject to what sticks in the plau- sibility net of the factfinder, for in the last analysis a poised and clarion assertion could be just as false as a sweaty, stammered, simplisticism could be true. In the last analysis the testimony of most witnesses was irredu- cibly mercurial, and the evaluations that follow are no more nor less than what I choose to believe from a com- posite experience beside the particular witness. 1. Wicker This witness' testimony is most extensive of the entire case and touches practically every issue that is up for resolution. He led off when called adversely under Sec- tion 611(c), and as later chief witness during Respond- ent's defense testified lengthily on direct and certainly no less so on cross. Wicker chose to testify in English, and aside from vagaries of accent and pronunciation has ex- cellent command of this second language. As a controlling matter I am assuredly satisfied that he has not presented truthful reditions and, on the contrary, in practically every instance where contradictions be- tween individuals arise, he has slanted his testimony in vain hope of distorting the outcome of the case. This evaluation pertains most definitely to the 8(a)(1) issues of the case and to Wicker's involvement in the discharge of Chi. I recognize there is veracity in much of the context and continuity that he described, as well as isolated sub- jects such as his consternation over the assertions of Trieu Tan Dao (Trieu) relative to a supervisory status issue of the case. However, my overall assessment is a near-total discrediting of Wicker, which subsumes into the various factual holdings set forth below in section II,F, of this decision. 2. James Conway This sole expert witness of the case testified as a hand- writing expert to support admissibility of signed authori- zation cards. Although suspiciously facile of delivery, I am satisfied that in the narrow realm of credibility Conway is fully plausible. He is disinterested respecting the litigation and maintained professional aplomb during pointed cross-examination into his comparative assess- ments. Conway is credited in full. 3. Chi A main discriminatee is naturally enough subject to particular scrutiny, for the pecuniary and other interests of such a person can be temptingly a reason to devise testimony. My overriding impression here is that Chi has resolute attachment to truth, and a singularly bright ca- pacity to remember events, remarks, and circumstances. Respondent has exhaustedly set forth all countervailing reasons why Chi should not be given credence, 8 and 8 There is extensive hyperbole in the attack on Chi's credibility, as, for example, in argument made regarding his plans for attending the wedding party, and other testimony characterized as "so riddled with contradic- tions that it is impossible to credit." (R l3r 169.) Here, it is overstatedly contended that Chi depicted himself as still gripped by miserable illness these have been carefully weighed with particular con- cern for areas in which contradictions or unexplainable gaps in memory are present. Notwithstanding some va- lidity to points so made, 8 what is paramount here is that for fundamental reasons of demeanor and collateral har- mony with total circumstances of the case, I credit Chi in full where his testimony has any salient connection to the issue. 4. Gia This witness appeared twice and is about as perplexing a person as any under consideration. In general, I have some doubts about the first phase of his testimony, and believing it is subject to some suggestibility credit him only slightly on overall balance. Gia was initially a wit- ness on 5 June 1984, and his testimony at that time repre- sented a harbinger of things to come. On this first occa- sion his offerings were vacillating, echoing, ambiguous, and unspecific. Were this not to be enough, the presenta- tion was complicated further (as with several other indi- viduals in this same general regard) by some responsive- ness based on limited English language comprehension in supplement to his testimony in Cantonese. His second calling for events on 15 and 16 September 1984 resulted in notably more assured and impressive tes- timony. I do not speculate on why such a variance would arise, but round off the assessment of Gia as a witness by firmly crediting his version of events on which the final amendment to the complaint is based. 5. Hung Phuong (Hung) This witness impressed me sufficiently that his testimo- ny is credited in full. 6. Tolia Dam (Toha) This witness failed to present convincing testimony and was not of seemingly reliable demeanor. I believe his assertions are clouded by external suggestibility and do not rely on his testimony as to any factual holding. 7. Nhon Nang La (Nhon) This was another witness who impressed me to a suffi- cient extent that he is credited in full. 8. Xuan Duong (Xuan) This witness projected with a substantially good ability for accurate recall of experiences. His testimony is fully credited. on the morning of 5 November, yet also determined to show up at the wedding party. The correct understanding of what Respondent distorts in this illustrative instance is that on receiving the party invitation a week in advance, Chi had planned to attend at that earlier point in time, and his explanation that sickness caused him to plan otherwise when the party date actually arrived has been coherently set forth in the record when principles of pluperfect tense grammar are applied to the testimony Re- latedly, Chi also explained that the illness did not seem of such serious- ness to him, as the sufferer that he could not appear for work on the Friday shift. (Tr. 893, 898, 899, 989). 9 When questioned whether he had seen a physician, Chi's testimony reads, "I remember I didn't, but I don't remember exactly." (Tr. 990.) I decline to devine what this quoted response might possibly mean 1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 9. Thanh Van Nguyen (Nguyen) This witness was particularly unimpressive, and gave most normal indications of being unsure of what he was voicing. My general resolution here is to discredit the bulk of his testimony. 10. Trieu I have definite reservations about the ability of this witness to testify usefully. His recollection seems flawed by uncertainty, and I doubt that he has done more than parrot out his perception of what was expected from him Except for any limited specific instance in which he does seem believable, his testimony is otherwise discred- ited. 11. Luu This important witness is entitled to full credibility. He was the unique instance of testimony by Vietnamese translation, but also adding English language embellish- ment to his presentation. Luu is strongly convincing on demeanor grounds and impressed as quite capable of ac- curately retaining and fairly recounting experiences that were drawn out of him relative to issues of the case. The credibility resolution as to Luu is acceptance of his entire renditions. 12. Vinh Pham (Vinh) This witness impressed me as not being able to contain a general bias in favor of the General Counsel's case. The characteristic, however, was not so extreme as to disregard all that he covered. The credibility evaluation on Vinh is highly mixed and shall be delineated in specif- ic instances on 8(a)(1) issues. As to his rebuttal testimony on an 8(a)(3) aspect of the case, I credit him fully as to detailed description of festivities at the wedding party that ties inextricably to the issue of Chi's discharges. 13.Nam Hang (Nam) This witness impressed me more than sufficiently and is credited in full. 14. An My-Dung This witness, now Chi's wife, gave appropriately cred- itable testimony concerning the wedding party and relat- ed events of that day. 15. Ton Khong Quan (Ton) This witness impressed sufficiently that his testimony is credtited in full. 16.Tuong Dinh Do This physician witness testified that Chi had been his patient during the period 1981-1983. Dr. Do maintains San Francisco offices and is formally board-certified in family medicine as he claimed. 10 I detected some inclina- 1° "Directory of Medical Specialists" (21st ed 1983-1984), vol 1, p 328. tion to assist Chi's case, and particularly concerning in- terpretation of his own office records regarding the pa- tient. However, the overall presentation displayed a pro- fessional, essentially truthful ring, and on fundamental points of a retroactive diagnosis and treatment made by Dr. Do, I credit the essentials of his testimony. 17. Cecilia Doherty It is difficult to imagine a more candid-seeming wit- ness, and although not found to be an expert in her field for purposes of opinion testimony, the specialized back- ground she possesses was useful to issues of the case. This is particularly true as to her empirical knowledge concerning the alternative language comprehensions that could be expected in terms of any related ability to call up a description of past verbalisms heard and sketchily understood. To this extent, and it is a vital one in formu- lating factual holdings, I have every confidence in as- signing credible weight to what Doherty explained. 18. York This witness led off Respondent's case as another called adversely under Section 611(c). I find nothing sus- pect about his essentially peripheral testimony and extend it ordinary credibility. 19. Carl Galiano This witness is an experienced American baker and a retired member of the Union. On both counts he is set apart from all other individuals involved in the case. Ga- liano was actually the source of information that im- pelled Luu to originate the prospect of organizing Re- spondent's employees. Galiano was also Respondent's first witness as to contrary versions of what officials said in meetings with assembled employees. He displayed sharply divided loyalties and a decided inclination to slant his testimony on most subjects to suit self-interest. Demeanor factors are extremely unfavorable in Galiano's case, and for these and other reasons I totally reject the essentials of his testimony. 20. Tom Lam This minor witness is credited to whatever extent his testimony pertains. 21. Hoang-Oanh Ton (Hoang-Oanh) This office employee translated Wicker's remarks to the group on 14 October into Vietnamese. I do not find that she made a genuine effort to call up the truth from her memory, if in fact she even effectively retained much of the experience. I am satisfied that she is party-biased for case purposes, and do not credit her testimony in any important regard. 22. Mary Fong Respondent would profit well from this witness if her testimony is believed. I am contrarily convinced, howev- er, that she is highly opportunistic, and was determined to tailor her version of important involvements so as to assist Respondent by artificial assertions. The factor of BAKERS OF PARIS 1003 ' demeanor is crucial in this assessment, particularly as to dissembling behavior during cross-examination. I totally discredit all aspects of Fong's testimony, except for obvi- ously correct continuity and minor aspects that do not conflict with essential factual holdings. 23. Alain de la Crose This witness impressed me in rather a neutral fashion; however, my action is to withhold any significant weight from his testimony on grounds that he simply did not convincingly show sufficient awareness of matters about which he testified. 24. Manceau This witness displayed an institutional bias favoring Respondent and was overly dogmatic in his assertions. The demeanor assessment of IVlanceau is a difficult one, but overall I am persuaded to disregard the relevant thrusts of his testimony. 25. Jegat This witness is the highest on-site supervisor aside from corporate officials. His function is assumed by Wicker on days off and he is deeply involved in business planning and operational tedium. I am impressed with Jegat's candor and the favorable demeanor that he pro- jected while testifying. Overall I find him to be generally credible and give weight to his testimony in such par- ticular regards as is appropriate to the issues. 26. de Bock This witness is crucial to Respondent's defense against allegations of unlawful discrimination regarding the dis- charge of Chi. I find him in roughly the same discredit- able category as Fong, and particularly so when his testi- mony is completely at odds with numerous other wit- nesses of believable nature. There is ample reason for a de Bock to present with bias, and I am well satisfied that this is an influencing factor in his departure from truth or in fanciful inventions of claimed memory. His demeanor was decidedly unimpressive, and my assured assessment is that of rejecting the complete essence of what de Bock described. 27. Robbe-Jedeau This suave executive was evaluated with careful atten- tion because the earnestness and polish of his testimony was consistently well presented. Subjectivity must be a highly influencing factor in such a case, although it is even more significant that Rohbe-Jedeau has been effec- tively contradicted, particularly as to his seriatim denials of unlawful statements. I discredit the main import of what he covered as another of Respondent's important witnesses. 28. Cuong Luu (Cuong) I attach practically no veracity to what this witness presented. His demeanor was notably unimpressive cou- pled with a plain showing of uncertainty as to what little he managed to assert. I discredit Cuong in every signifi- cant regard. 29. Quang Thanh Nguyen (Quang) This witness completed the tandem of two rank-and- file persons, both testifying via translation in an Asiatic language, whereby Respondent would seek to counteract evidence of unlawfulness in various remarks of the em- ployer agents. I find him equally unconvincing as was his counterpart Cuong, and for this reason plus my impres- sions from his demeanor reject Quang's testimony as it would otherwise aid Respondent in defending allegations of the complaint as amended. 30. Cecilia (Taffy) Von Hungen This employee, one excluded from the bargaining unit, testified in corroboration of Respondent's version of events when Gia was interviewed on 15 and 16 Septem- ber 1984. She was assigned note taking for the episode, and was separately questioned on her memory of the verbal exchanges. I am given ample reason from her total role as a- witness to disbelieve the testimony and discount the value of her notes. No weight is accorded the evidence educed from Von Hungen. 31. Michael Much of what the case is about turns on the testimony of this witness. He had become titled as a supervisor of the packaging department in June, and is both a union card signer and arguably a solicitor of other authoriza- tion cards as would taint their validity were he to be held to be a supervisor within the meaning of the Act. In short, Michael's testimony was almost totally unreliable both intrinsically and as to classic matters of viewing his demeanor. Here, as with other persons, the process of cross-examination revealed waffling uncertainties that mark him as a witness of doubtful veracity. I largely dis- credit Michael with respect to the numerous evidentiary aspects on which his claimed supervisory status turns, and equally reject the essence of his testimony on other issues, but particularly so as it conflicts with Chi. 32. Fred This witness is the second person titled supervisor for the packaging line. Much of what applies to Michael's credibility evaluation applies similarly to Fred. I am sat- isfied that he testified mostly from self-interest and had little regard for the actual truth of what he described. Fred, as did Michael, appeared at the York home for the aborning organizational effort and is similarly situated as to an adjudication on the issue of low-level supervisory status and its ramifications. As also with Michael, Fred participated in written evaluations of employees at the request of Wicker, and ostensibly for bonus allotment purposes. The involvement of both these functionaries in the process, and their labored description of input ren- dered, served to cast further doubt both on their true management capacities with Respondent and their per- sonal credibility. Fred's testimony is largely rejected. 1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 33. Steve Duong This first of the rebuttal witnesses testified credibly, but inconsequentially, concerning his recollection of re- marks that he was commissioned to translate in Vietnam- ese on 13 July 1984. My assessment here is that of a well-intentioned individual, but one who is striving to give some meaningful content to his role. What little he did contribute, as occasionally the case with other rebut- tal witnesses, was tediously led forth from his memory, and the upshot here is that I give bare weight to his tes- timony only insofar as it corroborates. 34. Minh Tran (Minh) This witness testified with clear and sufficient candor and is fully credited. 35. Wilson Ton This witness testified on the narrow issue of what was actually said to assembled employees on 13 July 1984, and I find his subtly delineated recollection of remarks to be convincing and worthy of being fully credited. 36. Luong This witness, once named above, gave every appear- ance of mature candor. I find him to be among the more persuasive of the many who testified and thus credited Luong in full. 37. Tan Again the General Counsel had presented a witness in rebuttal only out significantly so as to key happenings of the case. Tan was impressively believable and his testi- mOny is credited in full. 38.Le Van Hoa This individual, the bridegroom at the 5 November wedding party, appeared sufficiently truthful and pos- sessed of accurate recall. I credit his limited testimony. 39.Nam Chung This witness associates to Tom Lam in significance and for what it is worth routinely credited. 40.Beverly Boum This witness displayed superb characteristics of candor, consistency, and impressive demeanor. Her sig- nificance was largely to discredit Galiano, and in this I am amply satisfied that the purpose was achieved. F. Factual Holdings 1. Section 8(a)(1) In an initial episode on 5 October Wicker asked Luong and Tan to enter the locker room with him, a place then also used for employee breaks. Vinh was found to be present and Wicker included him in the assemblage. Then referring to very recent contact from a Labor Board, Wicker asked each of the three employees if they has signed a union authorization card. After inconclusive answers from the individuals, Wicker inferred that any such signings would be like a stab in the back to him and illustrated this notion by assaultive gesturing."- On 12 October Wicker happened to take an incoming telephone call of Luu, who had only been intending to ask Fred for a fresh bread delivery. Wicker preempted the contact to tell him that a few workers had betrayed by trying to unionize. Luu disclaimed any knowledge of the matter, after which Wicker asked Luu if he had been intending to discuss the subject with Fred while on the telephone. The conversation ended uneventfully after this last remark, with Luu simply stating his other pur- pose. After delivering his prepared statement on 14 October Wicker handled questions from certain employees. In the process, one dealt with Respondent's compliance under California law relating to work breaks, and to this Wicker briefly spoke in private with Manceau. He then informed the group that with Manceau's concurrence the daily work breaks were immediately increased from 15 to 30 minutes. Other questions touched on comparative hourly earnings within the work force and Wicker was drawn into further comment. In the course of this he said that union wages were typically high in relation to a new business, and his reaction to unionization would in- volve purchase of higher capacity baking equipment or an ownership change, either of which steps would lead to forced layoff of employees. Following the meeting, production resumed, and toward the end of his shift Chi was in conversation with fellow employee An Thanh Quan (An) by the former's work station. Jegat appeared and ordered An into the breakroom if he was not actually doing his own tasks. A general management rule of the past had forbidden casual talk while working, however, several employees, including Michael and Fred, would commonly so speak with Chi or briefly spell his breadmaking functions. In an office meeting on 23 October arranged with Chi by Wicker, the official listed to some criticism of Re- spondent's policies and then offered a 50-cent hourly pay increase conditioned on lack of success by the Union. Chi disdained the offer and Wicker said that the prospect of automation and a reduced number of employees would result from unionizing the operation. After the first of Lionel's mid-November meetings Wicker personally presented Gia his paycheck in which a 50-cent hourly increase was contained. This action re- lated to the employee's request the prior summer for an increase based on his 2 years of employment and pro- gressively increasing experience as a doughsheeter for several months. The following day the personal delivery of a paycheck was repeated with Vinh, who at that point had worked as the other and senior doughsheeter for ap- proximately 8 months without any change in compensa- tion. In the meeting of 18 November Robbe-Jedeau had remarked that employees should disregard whatever Wicker had previously said about machinery, and should 11 I do,not credit the uncorroborated testimony of Vmh that on this occasion Wicker also made a threat to close the bakery if unionizing were successful BAKERS OF PARIS 1005 simply present management with any unresolved prob- lems in order that they could be handled. Among Wicker's miscellaneous meetings with employ- ees in late November were those with Ton translating re- marks for Nhon and a separate one with Vinh. In the first of these, Wicker sought to draw comment from the two rank-and-file listeners as to the reasons for numerous employees having supported the Union. The meeting with Vinh, fixed as 27 November, opened with miscella- neous personal topics and the furnishing to Vinh of one of the employees letters then being distributed. In further course of this meeting, Wicker stated that if the Union won in the scheduled election Respondent would buy new machinery to do its work with only half the em- ployees. Vinh was also offered a wage increase to $8 per hour if the Umon lost and promised a shop manager's job in the future. In the second set of Lionel's meetings photographic depiction of automated bakery equipment was displayed to employees. It was known from a production meeting earlier in August that certain modernization was planned by Respondent insofar as a new mixer and divider would be installed. The intended machinery was not graphically shown, and the more advanced automated equipment was pointed to by both officials as available technology that Respondent had decided not to obtain even though it was designed for especially high production. Wicker took the opportunity while on this subject to point out how potential use of such extremely modern equipment at Respondent's facility would mean the layoff of many employees." The topic of annual bonuses was also covered in the group meetings of December. Robbe-Jedeau broached the subject as the first employees were to know that their 1983 bonus would generally average 10 percent of regular earnings. As to timing, he said its distribution would occur after the election, and when asked if this benefit was conditioned on the Union not winning his silent response was only with a cryptic smile. Xuan's testimony of being questioned by Wicker on 9 December as to how he would vote is a limited excep- tion to what I otherwise credit. At this point in the chro- nology both Robbe-Jedeau and Wicker had disciplined their remarks, and without corroboration by others I am not convinced that Wicker would single out only one person for such forceful comment on voting when so many others were experiencing only lawful final cam- paigning.13 In the conflict of testimony concerning what Robbe- Jedeau stated in the course of meeting with employees on 13 July 1984, I am persuaded that employees were told they would be without pay increases for 2 to 5 years as the litigation might run in its expected course. This meeting had been arranged with notable effort as to the hiring of translators and creation of artful propaganda emphasizing an employer's dilemma during a protracted organizing campaign. The actual written pronouncement 12 Testimony of Trieu to the effect that further enlarging remarks were made has been discredited. 13 Nguyen's isolated recollection of being instructed to make a "no" vote is among all that I reject from this witness' testimony. on one of the posters so utilized in Respondent's graphic emphasis was to the effect that even though current promises on the subject of wages were forbidden the Employer could not foresee a period of even "1 or 2 years" during which compensation would remain frozen. Wilson Ton, perhaps one of the General Counsel's most convincing witnesses, rendered somewhat equivocal tes- timony that either of Respondent's officials uttered the simple prediction of several years without pay increases because of the Union's presence as a factor. I note that such a statement was admitted by Jegat during his de- scription of Robbe-Jedeau's rhetoric in predicting a 2- to 5-year life for the labor law litigation itself." Gia's fortuitous appearance at the facility on 15 Sep- tember 1984 was used by Wicker as an opportunity to question him closely respecting testimony given in the hearing the previous June. The interrogation used as context in a much earlier report by Gia that he had dis- liked his involvement during the investigatory phase of the unfair practice charge, in which he was figuratively forced into signing an affidavit. After such softening up Gia's experience was continued with the assistance of Vi- etnamese-speaking customer Henry Lam. After finally making a direct accusation that Gia had lied in court, Wicker acquiesced in Lam escorting Gia away for more private discussion. When together only with Gia, Lam intimated that Gia's employment had been jeopardized and that he could return to the Employer's graces by re- canting his formal testimony. The two returned to Wick- er's presence where (ha was annoyingly questioned fur- ther about what was true from his memory and what was false. The upshot was an understanding to continue with the subject on the following day. As so resumed on 16 September 1984, Wicker introduced an incident of recent building damage by a forklift, which Gia could have been operating, and scheduled the reluctant em- ployee for a meeting with Respondent's attorney. This prospect, one couched as a chance for Gia to correct prior testimony, did not actually eventuate. 2. Section 8(a)(3) a. Discharge of Chi The early November part-time work schedule of Chi contemplated three consecutive night-time production shifts of Friday through Sunday for the first weekend of that month. After a typically longer shift on Friday, 4 November (ending midmorning of Saturday, 5 Novem- ber), a bronchial ailment of several days duration wors- ened and Chi went directly to the office of Dr. Do. The waiting room was crowded with patients, and Chi then left for his home where he took to bed with his illness and slept. This followed a home remedy of forceful nose- pinching, and telephone advice from Chi to the Employ- er that he would be unable to work that night as sched- uled. Later in the afternoon Vinh telephoned him to ask why Chi and his then-fiancee An My-Dung were not at 14 The following day Respondent Issued written clarification on the subject of wages, in which persons in an established training period were informed that their previously promised Increases on completion would not be affected by the general rule 1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a wedding party in process for which they had been in- vited. Chi begged off with his friend because of feeling ill, however, Vinh telephoned again around 6 p.m. to urge that Chi come, particularly with so many friends and coworkers present at the San Francisco restaurant used for the event. Chi acceded and went with An My- Dung to the restaurant where they took seats at a table with Luu, Vinh, and Minh along with their wives, and de Bock. Food was served and libations were provided. After this de Bock left with Luu as a guide to city streets, and 15 minutes later Chi and An My-Dung went home for the evening.15 The following morning Michael telephoned Chi with a warning that he should not take off work on many scheduled days, and later Wicker called to ask for a meeting that afternoon. Chi went to Wicker's office and when confronted about the prior evening routinely con- ceded that he had been to the wedding party, explaining that he did so only as a social accommodation to the fact that the honored bridegroom was Vinh's brother-in-law. Wicker accused Chi of lying and said he was fired for what came to be termed dishonesty and breach of neces- sary trust between an employer and its employees. The two debated this action for a while, during which Wicker made telephone calls to both Michael and de Bock, which ostensibly gave him no reason to change his own position on what had been determined. Chi eventually saw Dr. Do on 8 November, at which point the diagnosed bronchitis was abating, but for which continued rest, use of fluids, and medication was prescribed." b. Rescheduling of Luu At a time in late September Minh had requested a schedule change for personal reasons. His weekend job up to then was a specialized one of mixing pastry ingre- dients, baking, and packing as a sideline of the viennoi- serie operation. Minh pressed his request and at a super- visor's meeting in October, Jegat, Manceau, and de Bock -being in attendance, Wicker asked them to search for a way to change Minh's schedule. The result was a pro- posed weekend schedule of 6:30 a.m. to 2:30 p.m. for Luu, who in fact was available only for part-time work because of school attendance. The change was made ef- fective 14 November, and although packaging employees overlapped onto the new shift on their long nights the only regular employee sharing these hours was mainte- nance worker Nam. 15 I emphasize here that de Bock is specifically discredited in his claim of Chi having suggested further revelry that lnight, that he mocked any indication of really being ill, that de Bock had been repeatedly urged to conceal from the Employer that Chi attended this party, and as to other testimony about detailed celebratory rituals of the affair 15 I do not believe Chi's particular claim of having seen Dr Do on 5 November, nor of the doctor's assertion that his medical record note was made contemporaneously with its date Neither of these variances have any significant impact on resolution of any issue in the case 3. Majority a. Unit By stipulation as General Counsel's Exhibit 41, a prin- cipal portion of the composition of this appropriate pro- duction and maintenance unit as it existed about 27 Sep- tember is established. This document lists 23 persons, the bulk of whom have already been referred to in their ca- pacities as witnesses or actors in events of the case. A separate group of seven individuals are identified as in dispute with respect to unit placement, and of them Fred and Michael warrant separate treatment because of the close legal question involved in regard to the issue of their supervisory status. The five persons of relatively more apparent resolution are the following: (1) David Bensi Respondent contends this individual is within the unit and the General Counsel concedes in its brief at page 119 that this may be found. There is only the slightest refer- ence to Bensi in the overall record, which included, without more, a label of "supervisor." No basis exists to do other than deem him as having been an eligible member of the bargaining unit. (2) de la Crose This individual was on salary and titled assistant man- ager of the bread line as of the semimonthly pay period ending 30 September. He had previously managed the viennoiserie line until de Bock arrived in the summer of 1983. As assistant manager to Manceau, de la Crose as- sumed his position on the former's 2 nights off each week. Chi had been overseen by de la Crose, who direct- ed changes in the baking process and criticized any leth- argy. Notwithstanding that Jegat focused his time on bread line operations when Manceau had scheduled nights off, this principal operation of Respondent is shown to have required the authoritative guidance of de la Crose for proper functioning. The weekly regularity of de la Crose as acting bread line manager, coupled with his assured experience in baking procedures, is suffi- cient to hold that he possessed and exercised effective powers in directing this important branch of the work force. I find him to be a supervisor within the meaning of Section 2(11) of the Act at relevant times and thus ex- cluded from the unit. (3) Carl Galiano The General Counsel contends he is managerial, while Respondent casts him only as a cookie maker who also routinely orders production ingredients. Galiano worked a day shift and his own testimony shows no status as a supervisor of others. Although he attended technical production meetings with Wicker his only distinguishing responsibility of ordering special ingredients is totally routine, and particularly so for one of his long experi- ences in the industry. I find nothing in his job duties that remotely suggests the policy formulating and effectuating functions of a managerial employee as defined by the in- tricately evolved case doctrine on this subject, and thus BAKERS OF PARIS 1007 - hold that Galiano is an included employee of the bar- gaining unit. (4) Phuc T. Le This individual is counterpart to de la Crose in the sense that as a salaried assistant manager for the viennoi- serie he fills in for de Bock on two occasions each week. He performs extensive production work himself even when acting as a department manager, and is not shown to have been an approver of timecards under Respond- ent's sometimes structured policy on this subject. Vinh credibly described how Phuc Le authoritatively pre- vailed on employees to work more effectively, and was himself permitted perquisites not available to the rank- and-file. Without Jegat closely monitoring the depart- ment, this important component of Respondent's produc- tion would be without effective management were Phuc Le's role as its acting head not given ordinary business meaning. From such facts as are known I find him also to be a supervisor within the meaning of the Act and ex- cluded from the unit. (5) Luc Manceau This individual, the son of Guy Manceau, is high- school age and worked on a fluctuating part-time basis as a production helper. His mother had also been a part- time employee of Respondent in September and Luc Manceau resided with his parents who have no owner- ship interest in the enterprise, The General Counsel argues that he represents a "special status" individual with ties to management, and has insufficient community of interest with other employees for unit inclusion pur- poses. Respondent contends that he is hourly paid and part time as are many others, besides which he has little job interaction with his father and performs duties highly comparable to other employees. The most significant factor in his case is the admittedly irregular nature of his appearance for work. Given Respondent's considerable utilization of part-time employees, however, I minimize this factor, particularly as it manifested 2 years ago. On close balance, I hold that Luc Manceau is properly in- cludable within the unit. b. Supervisory status Fred had been a packaging department supervisor since approximately 1982. Michael became a second su- pervisor of the department in approximately June 1983 after about a year of employment with Respondent. At material times the packaging department comprised nine individuals, either five or six of whom including those titled supervisor were at work on any given occasion. Both Fred and Michael work through much of the night in rank-and-file packing of the breads and pastries, but toward the end of the shift they carry out the additional duty of loading orders onto delivery trucks. As to supervisory indicia the evidence shows that vari- ous persons who started work in Respondent's packaging operation including Cuong, Carlson Phung, Nhon, Wilson Ton, and Xuan were not truly hired on the ac- tions or effective recommendations of either Fred or Mi- chael. In all such cases the job inductees were merely guided to this prospect of employment, with Wicker as the only authority to make it official. A high degree of ethnic and family interchange affects these dynamics, and both Fred and Michael were either involved or bypassed in the accession process based on fortuitous circum- stances of the moment. The probative evidence shows that Gin and Luu had nearly as much involvement with the introduction of new persons to the bakery as did Fred or Michael. Furthermore, they are each sweepingly discredited on this important indicia of supervisory status, as compared with Xuan who credibly asserted that Wicker hired him and as with Luu who persuasively. described an absence of any apparent hiring powers being possessed by Fred or Michael during his times of convenient observance. The operational roles of Fred and Michael are plainly more significant than other packagers, but it is equally true that this operation exists as one of fully settled rou- tine, lacks the skills requirements of the product depart- ments, and can readily be overseen by other supervisors of the facility. To the extent that employees contact Fred and Michael regarding absences, job changes, and mis- cellaneous request, these do not require any appreciable measure of independent judgment in their handling. Simi- larly, this is so with ordinary job directing and the minis- terial signing of timecards. There is an insufficient show- ing that Fred and Michael have even had any significant role in the release of an employee and, although loosely described involvement with an individual probably named Chiem Phen arose, it did not amount to an effec- tive judgmental action on their part. While Fred and Michael communicate with Wicker on the subject of employees performance, they have no es- tablished role in this regard nor do their opinions carry effective weight in the establishment or modification of wage rates. The fully developed subject of their partici- pation in Wicker's intricate bonus allocation evaluation sheets is noted, however, the entire project was poorly understood by Fred and Michael. As an ordinary busi- ness endeavor it bordered on the whimsical, and aside from doubt whether it had, or was intended to have, any influential meaning in the bonus-apportioning process, I find nothing from this branch of the record to support Respondent's position. In Soil Engineering Co., 269 NLRB 55 (1984), the Board reaffirmed that the burden of disproving employee status rests on the party asserting that persons engaged in important operational roles within an enterprise are statu- tory supervisors. Even though it is true that Fred and Michael meet for purposes of increasing production effi- ciency, the requisite burden has not been shown for these individuals as a general matter. A top-heavy supervisor- employee ratio would obtain were they viewed other- wise. Their actual functioning is harmonious to the "dis- patcher" label, or to what a leadperson would perform. I find both Fred and Michael are not possessed of suffi- ciently discretionary authority respecting any disjunctive aspect of the statutory definition as applying to a valid supervisor. They are included within the unit by reason of not in either case being the claimed supervisor within the meaning of Section 2(11) of the Act and this holding 1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also constitutes them as rank-and-file persons for pur- poses of the union organizing campaign and card signing in support thereof. c. Authorization cards The holding in section II,F,3,b, above dissolves most of the contentions regarding validity of authorization cards. The General Counsel has established through Conway's analysis of its Exhibits 11-24 that such 14 cards of unit employees are valid. These include cards of Fred and Michael themselves, now properly countable toward a majority. Additional cards, those of An and Ton, were authenticated by Chi as the solicitor. A fmal group, those of Hung, Toha, Nhon, Xuan, Trieu, and Luu were authenticated by direct testimony of the signa- tory. There is no evidence concerning circumstances in the signing of cards as would invalidate any of them. In cases of limited reading comprehension, the act was an experiential one on the signer's part that freely expressed their intention to designate the Union for collective-bar- gaining purposes where they worked. Earlier resolutions have determined the composition of the unit about 27 September to be 28 persons inclusive of Fred and Mi- chael. By 27 September the Union possessed valid au- thorization cards from 22 employees of the unit, a con- figuration that clearly establishes its majority status as of that date. G. Analysis 1. Section 8(a)(1) Respondent's actions from 5 October and into Novem- ber constituted coercive interrogation of employees con- cerning the freshly known prospect of unionization. The conduct must be viewed as aggravated in its seriousness because of Wicker's stern personalizing of matters, as though some treacherous social act had occurred. Such dramatization reached a height with his back-stabbing analogy, particularly inasmuch as this was not limited to one occasion and all employees who witnessed the ges- ture recognized the startling implication. The action of similarly increasing work breaks in mid- October and later effecting pay increases reasonably tended to undermine the Union's support. Comparably so, the promises of increased pay without the Union and individual job improvements constitute coercive tactics that illegally address the right of self-organization. As typically so, the most serious conduct established by probative evidence is the various indications of how management would counteract the Union by mechaniza- tion leading to extreme job losses or by outright closing down. The evidence shows these violations to have oc- curred repeatedly and with bewilderingly different em- phasis as communication to employees on the subject adroitly unfolded over the weeks following the petition. Other 8(a)(1) allegations during the critical period are not supported by the evidence. The claimed enthusiasm in discriminatorily reviving work rules turns on the thin- nest sort of episode, and must be viewed in context of Jegat's persuasive testimony that he was constantly in- tending to see that employees only worked when that was in order. Such a subject is also effected by the va- garies of when and whether supervisory persons observe an infraction and, if so, whether they are sufficiently un- distracted as to give it their immediate attention. I de- cline to find an actual unfair labor practice has been committed because of a showing that on one isolated oc- currence an errant employee was chastised. Relatedly, I do not find that utterances of Respond- ent's agents established the elements of creating the im- pression of surveillance of union activities. This area of 8(a)(1) conduct is one in which it is not enough for some vague implication to be made, for as pure doctrine it is actual surveillance of union activities that must be sug- gested as an implication from suspect remarks. Here, the statements of Wicker could be as easily his idle mouth- ings, as they could be the requisite implication that em- ployees were being deliberately watched as the time passed from petition to election. There was in fact no in- dication of actual surveillance, and mere badgering of employees is not actionable. The Board has expressly dis- cussed these distinctions, and particularly those between actual and implied surveillance. See Photo Drive UP, 267 NLRB 329 (1983). I, therefore, also decline to find that this violation is present. Cf. Snyder Tank Corp., 177 NLRB 724, 730 (1969). The allegation concerning voting instructions to em- ployees and solicitation of their grievances is based on no more than a strained interpretation of Robbe-Jedeau's pa- tronizing remarks, and on a generally solicitous aura that Respondent attempted to create for good-will purposes. There is insufficient proof that unfair labor practices in either instance have been committed. In final regard to allegations of 8(a)(1) violations during 1983, the General Counsel maintains that Re- spondent interfered with employee rights by promising an "extra large" bonus at a time near to the election. This allegation also fails because the evidence control- lingly shows that growth and profitability were as much factors in the 1983 bonus to rank-and-file as any manipu- lative use of the subject. An actual bonus distribution had been long in Respondent's plans, and early Decem- ber was a natural time to release the news. Furthermore, Robbe-Jedeau ducked the temptation to link bonuses with a defeat of the Union, and this subject is left as one in which the General Counsel has insufficient probative evidence to prevail. This case also involves the uncommon instances of al- leged 8(a)(1) conduct occurring during the timespan needed to complete the entire trial. By my factual hold- ings respecting the meeting of 13 July 1984 it follows that Respondent threatened its employees with sweeping denial of pay increases for a period that to ordinary wage earners would be tantamount to permanence. The only associated reason for such an announcement was the generation of a legitimate legal proceeding under ap- plicable Federal legislation, and the clear message of the threat was that employees relinquish their right to seek such redress or be punished economically. The final issue relates to events of mid-September 1984, as to which sufficient evidence shows Gia was sub- ject to hostile interrogation and a cleverly voiced threat BAKERS OF PARIS 1009 of the implied variety. The General Counsel has ade- quately identified the several departures from Johnnie's Poultry safeguards, 'while Respondent's reliance on Ross- more House, 269 NLRB 1176 (1984), is unavailing for the distinctions present in the facts. Clearly, the incessant, displeaded questioning of this rank-and-file employee is outside the contemplation of what Rossmore would excuse as noncoercive. 2. Section 8(a)(3) a. CM'S discharge All elements of an inferentially discriminatory termina- tion from employment for the purpose of discouraging engagement in union activities have been established from probative evidence as a whole. Chi was prominent among Vietnamese-speaking employees insofar as indi- vidual solicitations of auithorization cards and talking up of the Union was concerned. Even Wicker had long rec- ognized his assertive personality by singling him out for special discussions both before and after the petition had been filed. As one of the questioners at Wicker's 14 Oc- tober meeting, and having shown resistance to proposed abandonment of the Union, when coaxed to do so by Wicker as the two conversed on 23 October, Chi was necessarily identified by circumstances as a particular ac- tivist in the development felt by Wicker to be so abomi- nable. This background, coupled with the stark arbitrari- ness of Chi's discharge, is sufficient to compel an infer- ence that Respondent viewed him as a vital force in the Union's prospects of holding majority support in this multiethnic work force. If this were not enough, there is evidence that Respondent made it a business to remain alert to just such inclinations, as with Robbe-Jedeau's written reference in December to rank-and-file "leaders" of the Union "that we all know." There is abundant evidence that Respondent routinely tolerated occasional absences from work, and even did so when notification from the employee was inexcusably late or nonexistent. The few past instances of actual ter- mination for cause, remote in time from the eventful period of the fall of 1983 and otherwise highly distin- guishable on their little-known facts, provide no convinc- ing basis to believe that the discharge of Chi had any bona fide rationale. The credited facts of his activities on 5 November are quite limited and understandable. An individual left work from a prior overnight shift feeling ill and displaying re- lated symptoms. After being unable to see a doctor, he was contented with home care until a persistent social entreaty caused him to deviate. He participated in jovial events of a wedding party, but passively so and without consumption of alcohol or average animation. When Wicker learned merely that Chi was among those miss- ing their shifts on 5 November, Chi having earlier re- ported that this would be the case, he plainly seized on the opportunity to rid Respondent of a union activist. In the process he recklessly or deliberately disregarded the true background facts, and compounded heavy-handed action by advancing the rather odd, moralizing charac- terization of Chi having been disloyal. The Supreme Court has significantly noted evidence of how union activities had been taken "personally" by the discharge-deciding supervisor, leading him to become "obviously upset" to the point that pretextual action fol- lowed. In this setting "commonplace" transgressions were handled by uncommon departure from the employ- er's, "usual practice in dealing with rules infractions." NLRB v. Transportation Management Corp., 462 U.S. at 396, 404. These factors, taken in conjunction with timing of the action so as to practically remove Chi from both final weeks of the vigorous campaign against the Union and possibly as an election participant, are influencing in my conclusion that a pretextual discharge was visited on this individual. b. Luu's rescheduling This issue must be viewed in overall context; that being of an employer that by 14 November had em- barked on a course of aggressive unfair labor practices. If anything is clear from depicting this employer's oper- ations it is that a high degree of flexibility and a capacity for internal adjustment is present. It is simply not con- vincing to explain that a prepetition request from Minh for shift change would suddenly be responded to at such a critical time as was done. Respondent's arguments in defense to this issue are singularly weak, for there is reason to assume that protest by Luu would have been futile, and as to opportunity for contact with packagers on his new shift this limited prospect was totally differ- ent from Luu's earlier full presence at times of main product operations. Given Respondent's established moti- vation and timing of this decision, I conclude there is substantially enough evidence here to also infer that Luu's rescheduling was punitive in nature and thus un- lawful. CONCLUSIONS OF LAW 1.Respondent Bakers of Paris, Inc, is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Bakery, Confectionery & Tobacco Workers Interna- tional Union, Local No. 24, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, commencing 5 October 1983, has inter- fered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices in violation of Section 8(a)(1) of the Act and has thus en- gaged in unfair labor practices which have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States tending to lead to labor disputes burdening and obstructing commerce and the free flow thereof by: (a) Coercively interrogating employees regarding their own and other employees' union activities and sympa- thies, and their execution of union membership authoriza- tion cards. (b) 'Threatening its employees with layoff, job reduc- tion following automation, and plant closure if they 1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD engage in union activities or supported the Union, or if the Union became their collective-bargaining representa- tive. (c) Granting employees longer break periods from working time for the purpose of inducing them not to engage in union activities or support the Union. (d) Granting employees wage increases for the purpose of inducing them not to engage in union activities or sup- port the Union. (e) Promising employees wage increases for the pur- pose of inducing them not to engage in union activities or support the Union. (f) Promising employees job promotions for the pur- pose of inducing them not to engage in union activities or support the Union. (g) Threatening employees with the withholding of any wage increases for a period upwards of 2 years in retaliation for services of the National Labor Relations Board having been sought by them or on their behalf. 4. By discharging its employee, Chi Van Hoang, on 6 November because of his union activities and refusing to reinstate him, Respondent has unlawfully discriminated against the employee and has thereby engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 5. By rescheduling its employee, Thanh Luu, on 14 November to a physically and functionally isolated workshift, Respondent has unlawfully discriminated against the employee and has thereby engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 6. All full-time and regular part-time production and maintenance employees employed by Respondent at its South San Francisco, California facility, but excluding all sales employees, office clerical employees, guards and su- pervisors as defined in the Act, constitute a unit appro- priate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 7. Since 27 September 1983, the Union has been and is the exclusive collective-bargaining representative of all employees employed in the above appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 8. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respodnent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action necessary to effectuate the policies of the Act. The Respondent having discriminatorily discharged Chi, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). Because of the Respondent's wide- spread misconduct, demonstrating a general disregard for the employees' fundamental rights, I find it necessary to issue a broad order requiring the Respondent to cease and desist from infringing in any other manner on rights guaranteed employees by Section 7 of the Act.17 Having found that Respondent discriminatorily re- scheduled the workshift of Luu, I consider the manner in which this misconduct may be remedied. The passage of nearly 2 years is a substantial span in Respondent's busi- ness evolution, and I am without current information on operational matters or Luu's specific job status. Under the circumstances, I decline to affirmatively order any current change regarding Luu, but emphasize that should the Regional Director for Region 20 conclude on such compliance undertakings as arise in this case that a con- tinued discriminatory factor is present as to his utiliza- tion, then in that event the unfair labor practice shall be deemed unremedied and Respondent shall be obliged to purge the continued discrimination in keeping with the spirit of this decision or by bargaining with the Union about his status within the larger obligation that my rec- ommended Order shall contain. ■ When the Union filed its petition for an election on 29 September, it had valid authorization cards from a ma- jority of employees in the unit. Cf. Shaller Trucking Corp., 269 NLRB 392, 397 (1984). At no time, however, did it demand bargaining or recognition. The Board has long held that mere filing of a representation petition does not constitute a request for recognition or bargain- ing such as to make an employer's failure to bargain, without more, a violation of Section 8(a)(5) of the Act. Furthermore, the instant complaint does not invoke Sec- tion 8(a)(5) among its allegations. The absence of a spe- cific 8(a)(5) violation, however, does not affect the pro- priety of a bargaining order, when such is required to remedy extensive unfair labor practices that have made it unlikely for a fair rerun election to be held. See Produc- tion Plating Co., 233 NLRB 116 (1977); Naum Bros., 240 NLRB 311 (1979). In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Supreme Court identified two categories of cases in which a bargaining order would be appropriate. These were: (1) "exceptional" cases marked by "outrageous" and "pervasive" unfair labor practices; and (2) "less ex- traordinary" cases marked by "less pervasive" unfair labor practices. In the latter instance of less pervasive but unlawfully extensive conduct, the Court approved use of a bargaining order where the result had been a "tendency to undermine [the union's] majority strength and impede the election process." This leads to the prin- ciple that when an employer's unfair labor practices are less flagrant, after a union had at one time enjoyed ma- jority support among unit employees, the extraordinary remedy of an order to bargain may follow. The Court's guiding language reads: The Board can properly take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the ef- 17 Hickmott Foods, 242 NLRB 1357 (1979) BAKERS OF PARIS 1011 fects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee senti- ment once expressed through cards would, on bal- ance, be better protected by a bargaining order, then such an order should issue. [Gissel, supra at 614-615.] The numerous unfair labor practices engaged in here by Respondent include those judicially termed "hall- mark" violations, which without significant mitigating circumstances do support issuance of a bargaining order. This principle is found in NLRB v. Jamaica Towing, 632 F.2d 208 (2d Cir. 1980), in which the court stated that such "hallmark" violations include closing or threatening to close a plant with loss of employment, the grant of benefits to employees, or the reassignment, demotion, or discharge of union adherents in violation of Section 8(a)(3) of the Act. In such cases the seriousness of this conduct, coupled with the fact that it often represents action taken rather than mere statements, interrogations, or promises, justifies a finding that it is likely to have lasting inhibitive effect on a substantial percentage of the work force. This Respondent literally pounced on its work force just 2 days after the petition was received, and herded employees into various gatherings where they were re- quired to listen while the Union was harangued. Various employees were intimidated into nervous concealment of their true sympathies, and Respondent's nonsupervisory packaging department leaders were induced to falsely distort many background and operational realities of the enterprise. The commencement of this conduct was closely followed by chilling discharge of an authentic rallying figure, and the comparably visible Luu was also then soon banished from the mainstream. Unfair labor practices rapidly spilled over one onto another as Re- spondent adroitly manipulated ordinary fears and feelings by threats and actions involving worker income and job security. The cultural factors often referred to made lingering effects of such conduct even more acute than ordinarily so, and I attached particular significance to Respondent's intermeddling in the adjudicatory process itself by stri- dent criticism of Government lawyers and cornering a witness for confounding accusations. It it is perceived by employees that Respondent seems superior to the legal system itself, there is no likelihood they would be left with any confidence that the more informal election pro- cedures, as typically done on the very premises that the Employer controls, could at all allow them a successful expression of free sentiment on the subject so fiercely op- posed. Finally, I see no mitigating factors as would permit Respondent to escape the teachings of Jamaica Towing. Executive direction of the Employer is rooted in persons of mature experience and facile talent for interpersonal dealings on either a group or individual level. There is formal schooling shown in matters of business adminis- tration, and well-versed counsel was retained at outset of the fray. I recognize the self-serving evidence is present of an intent to stay within the law, and further that much of the propagandizing during Respondent's campaign was of lawful character within the meaning of Section 8(c) of the Act. It is not, however, what Respondent has done properly that controls, but what it has done im- properly. Involvement by its highest officials in interro- gation, threats, promises, discharge, and job discrimina- tion, when the work force is relatively small and has been paternalistically infiltrated in the past, leaves the sit- uation shown here to involve slight, if any, possibility of erasing lingering effects of unfair labor practices even following the passage of years. The same characteristic applies to whether a fair rerun election may be undertak- en with only limited remedies. For these reasons the total case circumstances persuade me that, on balance, a bargaining order must be imposed because the expression of employee sentiment, once established by a majority of signed authorization cards for the Union, becomes here the best determinant of fundamental employee choice. See Granite City Journal, 262 NLRB 1153 (1982); Enter- prise Products Co., 265 NLRB 544 (1982). The Representation Case Respondent contends that the Union's objections to conduct affecting results of election are not sustainable because of constructive abandonment and failure to con- stantly maintain the presence of an attorney or author- ized representative during the complete course of trial. / confirm numerous rulings denying Respondent's formal motions to dismiss in this regard, noting that the attorney signing these objections made sporadic appearances during the hearing, but more importantly that on two oc- casions business representatives of the Union expressed for the record a satisfaction with having their objections considered in terms of evidence educed by the General Counsel in the course of presenting proofs germane to al- legations of the complaint as originally issued. Under the circumstances, I find no basis to conclude that the Union became technically vulnerable to dismissal of its tiled ob- jections. As the conduct recited in certain objections involved the same activities as involved in the Employer's unfair labor practices of the complaint case, I sustain Objec- tions 1-3 and 5-7, while overruluing numbers 4,8, and 9, for insufficiency of the proofs. The result is to order, as done below, that the election held on 9 December 1983, in Case 20-RC-15679 be set aside and that the petition be dismissed. Enterprise Products, supra. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed18 ORDER The Respondent, Bakers of Paris, Inc., South San Francisco, California, its officers, agents, successors, and assigns, shall 18 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 Sep. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from (a) Coercively interrogating its employees regarding their own and other employees' union activities and sym- pathies, including whether any such employees have exe- cuted membership authorization cards for the Union or any other labor organization. (b) Threatening its employees with layoff, job reduc- tion following automation, plant closure, or any other re- taliation if they engage in union activities, become union members, or support the Union or any other labor orga- nization. (c) Granting employees longer break periods from working time for the purpose of inducing them not to engage in union activities or to support the Union, how- ever, nothing in this Order shall be construed as requir- ing Respondent to withdraw preexisting benefits. (d) Granting employees wage increases for the purpose of inducing them not to engage in union activities or to support the Union, however, nothing in this Order shall be construed as requiring Respondent to withdraw pre- existing benefits. (e) Promising employees wage increases for the pur- pose of inducing them not to engage in union activities or to support the Union. (f) Promising employees job promotions for the pur- pose of inducing them not to engage in union activities or to support the Union. (g) Threatening employees with a withholding of any wage increase for a period upwards of 2 years in retalia- tion for services of the National Labor Relations Board having been sought by them or on their behalf. (h) Changing the work hours or other terms and con- ditions of employment of employees because they engage in union activities or support of the Union. (i) Discouraging membership in, or support for, the Union, or for any other labor organization, by discharg- ing employees or otherwise unlawfully discriminating against them in their wages, hours, or other terms and conditions of employment. (j) Refusing to recognize and, on request to bargain with Bakery, Confectionery & Tobacco Workers Inter- national Union, Local No. 24, AFL-CIO-CLC as the exclusive collective-bargaining representative of its em- ployees in the appropriate production and maintenance unit here. (k) 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 Chi Van Hoang immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the remedy section of this decision. (b) Remove from its files any reference to the unlawful discharge and notify Chi Van Hoang in writing that this has been done and that the discharge will not be used against him in any way. (c) Forthwith notify the Union of Respondent's will- ingness, on request, to immediately recognize and bar- gain in good faith with the Union, and specify reasonable times and places where Respondent will engage in such bargaining, effective 5 October 1983, as exclusive collec- tive-bargaining representative of its employees in the fol- lowing appropriate unit concerning rates of pay, wages, hours of employment, or other conditions of employ- ment, and with respect to the working hours and work shift of Thanh Vinh Luu, if still employed at the time of bargaining and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time production and maintenance employees at its South San Francisco, California facility, excluding all sales employees, office clerical employees, guards and supervisors as defined in the Act. (d) 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 and the terms and conditions of em- ployment of employees as of 5 October 1983 and thereaf- ter. (e) Post at its South San Francisco, California facility, copies of the attached notice marked "Appendix B.""Copies of the notice, on forms provided by the Re- gional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places in- cluding 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. (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 the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. In view of the above disposition wherein I have found that a Board-conducted election can no longer be expect- ed to reasonably reflect the uncoerced desire of the unit employees as once expressed, and having recommended that the Board therefore issue a bargaining order to remedy Respondent's unfair labor practices, IT IS ALSO FURTHER ORDERED that the Union's petition for certifica- tion of representative in Case 20-RC-15679 be dismissed. '9 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?' BAKERS OF PARIS 1013 APPENDIX A It has been 2 weeks now since we met, and I want to thank you to be here again. As you know I'm here because it is very important to me and for the success of our company that you vote "no" on December 9. Today I will give you more infor- mation about job security in this company and about union fees and other restrictive rules. I. JOB SECURITY It's time to look into out past, and see what kind of benefits our small company gave you without anyone having to pay union dues. First let me remain [sic] you the commitment we have had with the Vietnamese community: Out of the 40 people working in this commissary, 27 of them—or the majority, are Vietnamese—and let me ask you this, how many jobs did the union provide for you community? Hiring is only part of our commitment. We also train the individuals that we hire. Did you know that besides our French bakers, only 3 of you had experience as bakers before they worked here: There [sic] were Mary, Luong and An. In France it takes a minimum of 4 years to become a baker. This is to say that your training is not over and that in the coming years we still have more to give you in order to achieve what we have started together. And let me ask you this again: Do you think unionized bak- eries hire people without experience? Salary wise, Bakers of Paris has in the past given gen- eral increases once a year in January—in addition you receive a bonus in December. Since January 1982, Bakers of Paris has provided wage increases (including bonus) which average 42% in the bread line, 29% in the pastry line and 17% in the packaging line. Compare that with a 6% increase in the union contract. 3—Average wage in January 1982, in the 3 lines was $5.04. In December 1983 including the coming bonus the average salary in the bread line is $7.20, in the viennoi- serie line $6.51 and $5.90 for the packaging. —Bonus will average about 10% of your salary—let's take an example. If someone has earned about $800 per month for the past 12 months (or $9,600) then this person should get a bonus of about $1,000. Job security is also an area where we have the most outstanding record. No employee has been laid off since we started. Indeed employment has increased by 59% or 13 persons over the past year. Can the union tell you that none of its members has been laid off? In addition this company has chosen to favor employ- ment over automation, and that is, unlike, all other indus- trial bakeries: Let's take an example of what I'm saying. -At the bread line we have a productivity of about 150 loaves per hour and per man. An industrial plant with a fully automated line can produce 2,000 loaves an hour with only one man. We have nothing in common with the industrial unionized bakeries, and we have no inten- tion to use their fully automated lines, and never had. II. UNION DUES, FEES, ASSESSMENT & RESTRICTIVE RULES However, as you know since the month of August, we are going to purchase new equipment, and I would like to tell you what it means to you. First thing there will be NO layoff as the result of our new equipment. Second what we want to achieve is to improve quality and pro- ductivity—at the bread line our goals is [sic] to raise pro- ductivity from 150 loaves per man hour to 200 loaves. Part of this gain in productivity should mean cost saving. This will be returned to you in the form of an increase in salary as we told you last August. Now that I have told you some of the benefits of working at Bakers of Paris, I would like to let you know more about union dues and restrictive rules. A. Dues I understand that the dues are over $240 per year, and you have no choice—you got to pay—and they can be increased by the union. As a matter of fact the union has good reason to want to do so—last year this union had a deficit of $21,000 and they must need more money. B. Fines, Assessment Last year the union collected an extra $30,000 from its members and fees, fines and assessment. And as I told you they still had a deficit. The way you get fine[d], is if you do not obey their rule. Did the union tell you about their rules? If not, what are they hiding from you? Let me just mention a few of them: Union Meeting: You must attend all union meet- ings or you may have to pay a fine. Dues Payments: If you don't pay your dues, the union can force us to fire you. Weekly timesheets: The union can ask you to complete weekly timesheets. If you don't the first time you'll pay $25, second mistake $50, and the third time you get expelled. These are only a few of the rules that you have to live with if the union were to get here. And if you want more information, I'll give you a copy of their bylaws. I understand also that the union may have talked to you about vacations and about 8 hour days. I think there are two things you should know. First, the union can not guarantee you anything in good faith. And remember, unions change their mind. They said they would not allow bread deliveries on Wednesdays and Sundays—well they came back with an- other story. Starting January 1st they will allow the de- liveries 7 days a week. You just can't trust the union. Second, I want you to know that I fully appreciate that there are benefits we don't provide here. We are a new company and a small one. We aren't perfect. But please believe that I have heard what you've been saying. I wish I could talk to you about plans for the future. But the law is very strict in preventing me from making promises Instead I ask you to trust me, as I have been trusting you all the way along. 1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In the past Bakers of Paris has not only provided job security, but also trained you to become a professional baker. And when you look at the freedom you enjoy here, you will find many reasons to vote against the union on December 9 by voting "NO." APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all the parties participated, the Na- ticinal Labor Relations Board has found that Bakers of Paris, Inc. has violated the National Labor Relations Act. We have been ordered to post this notice and to abide by its terms. The National Labor Relations Act gives all employees these rights. To engage in self-organization To form, join, or help unions To bargain collectively through representatives of their own chosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with, re- strains, or coerces you with respect to these rights. More Specifically. WE WILL NOT coercively interrogate you regarding your own or other employees' union activities or sympa- thies or whether any of you have executed union mem- bership application or authorization cards for Bakery, Confectionery & Tobacco Workers International Union, Local No. 24; AFL-CIO-CLC, which in this notice is abbreviated as "the Union," or membership application or authorization cards for any other labor organization. WE WILL NOT threaten you with layoff, plant closure, or changes in your working conditions or wages if you engage in union activities or support the Union. WE WILL NOT grant you longer work breaks from working time as an attempt to weaken or eliminate your support of the Union, however, in making this assurance we are not authorized to withdraw any preexisting bene- fit which you now enjoy. WE WILL NOT grant you wage increases an an attempt to weaken or eliminate your support of the Union, how- ever, in making this assurance we are not authorized to withdraw any preexisting benefit which you now enjoy. WE WILL NOT promise you wage increases in an at- tempt to weaken or eliminate your support of the Union. WE WILL NOT promise any of you job promotions in an attempt to weaken or eliminate your support of the Union. WE WILL NOT withhold, nor will we threaten to with- hold, future wage increases from you which, in the ordi- nary course of business would have been granted at vari- ous future times, including the future timespan of 2 to 5 years, and which in the course of the National Labor Re- lations Board trial was stated during a meeting of em- ployees occurring on 13 July 1984 as the length of time that it could possibly take to conclude this litigation. WE WILL NOT discriminate against you by discharging you or changing your wages, hours, or other terms and conditions of employment because you are members of the Union or because you support the Union, for the purpose of attempting to discourage you from supporting the Union. 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 NOT refuse to recognize and bargain with Bakers, Confectionery & Tobacco Workers International Union, Local No. 24, AFL-CIO-CLC, again called the Union, as your exclusive collective-bargaining represent- ative with respect to pay, wages, hours of employment, and other terms and conditions of employment, includ- ing, if applicable, the working hours and work shift of Thanh Vinh Luu. WE WILL offer Chi Van Hoang immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, discharging, if necessary, any replacement, without prejudice to his seniority or any other rights or privileged previously en- joyed, and WE WILL make him whole for any loss of earnings or other benefits resulting from our discrimina- tory conduct against him, plus interest. WE WILL remove any reference to this discharge of Chi from our files, and notify him in writing that this has been done and that the discharge will not be used in any way as a basis for future personnel action against him. WE WILL, forthwith, notify the Union of our immedi- ate willingness to recognize and bargain collectively with the Union as your exclusive representative, which bargaining will be retroactive to 5 October 1983 in the appropriate bargaining unit as follows: All full-time and regular part-time production and maintenance employees employed by us at our South San Francisco facility, but excluding all sales employees, office clerical employees, guards and su- pervisors as defined in the National Labor Relations Act. BAKERS OF PARIS, INC.