Breakfast Productions, Inc

BREAKFAST PRODUCTIONS Breakfast Productions, Inc and Bakery, Confection- ery and Tobacco Workers International Union of America, Local 3, AFL-CIO Cases 29-CA- 12716, 29-CA-12788, and 29-CA-12837 March 31, 1989 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government DECISION AND ORDER BY MEMBERS JOHANSEN, HIGGINS, AND DEVANEY On October 31, 1988, Administrative Law Judge James F Morton issued the attached decision The Respondent filed exceptions and a supporting 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 i and brief and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, Breakfast Productions, Inc, Brooklyn, New York, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 2(a) "(a) Offer Erwing Rendon immediate and full re instatement 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 bene- fits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision" 2 Substitute the attached notice for that of the administrative law judge 607 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT coercively interrogate you as to your support for Bakery, Confectionery and To- bacco Workers International Union of North America, Local 3, AFL-CIO WE WILL NOT threaten to close our bakery in order to discourage you from supporting the above-named Union WE WILL NOT discharge any employee to dis- courage support of this Union WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Erwing Rendon immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge , less any net interim earnings, plus interest WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way BREAKFAST PRODUCTIONS, INC Amy S Krieger Esq for the General Counsel Martin Gringer Esq (Kaufman Frank Naness Schneider & Rosensweig PA), of Melville, New York for the Respondent Ann Schulman Esq (Cohn Ghckstein & Luria), of New York City, New York, for the Charging Party Union DECISION ' We note that no exceptions have been filed regarding the discharge of Emme Loy and Carlos Menjivar 2 The Respondent has excepted to some of the judge s credibility find rags 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 3 We have modified the judge s recommended Order to include the full reinstatement language traditionally provided by the Board JAMES F MORTON, Administrative Law Judge Each of the complaints that issued in this case alleges that Breakfast Productions Inc (Respondent) has committed unfair labor practices violative of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) More particularly the three complaints altogether allege that Respondent has discriminated against its employees by discharging three' of them , by promulgating and enforc i At the hearing the General Counsel amended the complaints in Case 29-CA-12716 to withdraw the allegation that a fourth individual Mano Zepeda, had been unlawfully discharged 293 NLRB No 70 608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing work rules and by instituting certain recordkeeping procedures-all in order to discourage employees from joining or supporting Bakery, Confectionery and Tobac co Workers International Union, Local 3 AFL-CIO (the Union) Respondent is also alleged to have coercively in terrogated employees as to their support for the Union, promised them benefits in order to induce them to forgo supporting the Union, committed other acts that inter fered with restrained or coerced its employees respect ing rights protected by Section 7 of the Act Respondent, by its answers to those complaints, denied the allegations described above Its answers aver that one of the alleged discriminatees is a supervisor as defined in the Act and thus not protected by Section 8(a)(3) Re spondent amended its answer to aver that the other two alleged discriminatees are not employees within the meaning of the Act inasmuch as they are aliens unau thorized to work in this country within the definition of the Immigration Reform and Control Act of 1986 Re spondent further contends that it has made valid rein statement offers to these two individuals The General Counsel, in its brief has asserted that the provisions of the Immigration Reform and Control Act should not be construed to bar the reinstatement rights of any of the alleged discriminatees and the General Counsel disputes Respondents contention that valid reinstatement offers have been made This case was heard on March 7, 8, 9, and 11 and on May 16 17 and 18 1988, in New York City On the entire record including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent I make the following I JURISDICTION AND LABOR ORGANIZATION The pleadings establish that Respondent is a nonretail business and that its operations meet the Board s jurisdic tional standard for nonretail concerns The pleadings fur ther establish that the Union is a labor organization as defined in Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background Respondent a New York corporation has been in business as a wholesale bakery for about 5 years It is owned by two brothers David and Stephen Dew David is its president and Stephen is its secretary treasurer Respondents bakery operates 24 hours everyday of the year In 1986, it had approximately 20 employees who were unrepresented for purposes of collective bar gaining All dates are for 1986 unless stated otherwise In June or July, the employees signed and delivered to the Dews a letter asking for increased pay for overtime work sick leave benefits, and other benefits David Dew then met with them and informed them that the rank and file employees will get a week s vacation each year, 6 days' sick leave, and other benefits He also announced then that management employees will be given unlimited sick leave, compensatory time of for holidays worked, and extra pay for hours worked each week in excess of 50 B The Complaint in Case 29-CA-12716 1 The issues This complaint, as amended at hearing, alleges that Respondent discharged employee Erwing Rendon be cause he joined the Union The complaint further alleges that Respondents supervisor, Wellington Toala, unlaw fully interrogated employees regarding their sympathies for the Union 2 Erwing Rendon Respondent contends that Rendon was a supervisor as defined in the Act The evidence respecting that matter is in conflict and is discussed in detail below The cir cumstances of his discharge are not in material dispute On October 30, Rendon signed an authorization card for the Union On November 3 Supervisor Wellington Toala informed Stephen Dew that the Union was trying to organize Respondents employees On the next day David and Stephen Dew asked Rendon to tell them what he knew of the Union s organizational efforts Rendon denied any knowledge of them David Dew then told him that he was discharged because he was not acting in the best interests of Respondent Rendon began working for Respondent in December 1983 as a porter on the night shift, working 6 days a week He was laid off at one point On his return in August 1984, Stephen Dew taught him to mix the vari ous doughs used to make croissants danish pastries, scones, and other products The conflicting accounts whether Rendon was a su pervisor are now set out Stephen Dew s account is as follows As the day su pervisor, Rendon was responsible for mixing the doughs Stephen Dew and Respondents general manager, Rich and Farkas each spends about 50 percent of his time in the bakery overseeing the work Rendon received $363 a week compared to weekly earnings from $225 by the porters to $300 by some production workers Rendon re viewed the production schedules each morning with Farkas and together they would estimate how many of the baked items would be produced Farkas revised that estimate as the day progressed The records regarding production were kept in a desk drawer, to which only the Dews Farkas and Supervisor Toala had keys Rendon attended a monthly management meeting These meetings were concerned usually with problems in the bakery Rendon had the responsibility to make sure that everyone was busy and to check on quality Rendon assigned work to employees, evaluated their perform ances trained production people recommended the hiring of employees Julio Alvarez and Emme Loy in that he had told Dew of them, and Dew told him to bring them in so that he could see them Rendon also recommended that two employees be terminated and they were, without any kind of independent investiga tion by Dew Rendon also recommended the promo tions of two others who were effected without any in dependent investigation and also recommended that an other be given a raise In July David Dew announced to all the employees that Rendon was the day supervisor BREAKFAST PRODUCTIONS 609 That was done at the same time that the position of gen eral manager was established and which was then filled by Farkas David Dew did not, in his direct examination, refer to Rendon s status as a supervisor On cross examination, he related that, while Respondent retained copies of type written notices that it posted in order to inform employ ees that other individuals had been designated as super visors, it did not keep a copy of a notice, written in longhand, advising employees that Rendon had been pro moted to day supervisor Rendon s testimony is as follows He had never been told by any management official that he was a supervi sor, or that he was responsible for the production or training employees He never had recommended the hiring of any employee or the firing of any employee, and never attended any management meeting He merely introduced Alvarez and Loy to Stephen Dew, who inter viewed them before hiring them Rendon never was asked his opinion as to Loy s work never fired or rec ommended the firing of any employee and never excer cised any supervisory function Emme Loy testified and his testimony corroborated Rendon s account concerning how he was hired by Rendon The evidence proffered by Respondent to establish that Rendon was a supervisor consisted, for the most part, of testimony conclusional in character and which was adduced by way of leading questions I am not per suaded by it and credit instead the accounts of Rendon and Loy Moreover the circumstantial evidence, includ ing the fact that the ratio of supervisors to employees, who are essentially unskilled and perform repetitive tasks would appear to be out of line if Stephen Dew Richard Farber Wellington Toala Erwing Rendon, Mario Zapeda and at least one other individual were all supervisors The credited evidence discloses that Rendon s respon sibilities did not even rise to the level of the individual who was found, in an analogous fact situation , not to be a supervisor within the meaning of the Act See Auto West Toyota 284 NLRB 659 (1987) I therefore find that Rendon possessed none of the su pervisory indicia set out in Section 2(11) of the Act As the evidence is clear that Respondent discharged him be cause he did not disclose to it the information it sought regarding the Union s campaign, I find that Rendon was discharged because of his sympathies for the Union and in order to discourage support for the Union 3 Alleged unlawful interrogation The complaint in Case 29-CA-12716 alleges that Re spondent by Supervisor Wellington Toala unlawfully in terrogated its employees on or about November 3 The complaint in Case 29-CA-12837 alleges that on or about November 14 Toala unlawfully interrogated employees while in Respondents truck At the hearing the Gen eral Counsel offered testimony, set out below, regarding one instance of interrogation by Toala Carlos Menjivar one of the alleged discriminatees whose status is discussed separately below testified that Toala asked him on a Friday in November if another employee, Emme Loy was distributing union cards Menjivar testified further that Toala also asked him then for the names of employees who had signed union cards Menjivar related also that Toala asked him twice if he had signed a card for the Union and that when he said he had not, Toala stated that he did not believe him and that the Union was no good Menjivar testified that he then said to Toala that he did not want to talk to him about the Union Toala did not testify I credit Menjivar s uncontroverted account and I find that Toala had interrogated Menjivar respecting his sym pathy for the Union This questioning was unlawful as Menjivar had not openly declared himself as a union sup porter, as the questioning did not seek information of a general nature but was very specific, and as Menjivar did not want to discuss the subject In that regard, see Angel ica Healthcare Service 284 NLRB 844 (1987) C The Complaint in Case 29-CA-12788 The issues presented by the amended pleadings in this case are whether Respondent, in order to discourage its employees from supporting the Union, (a) threatened to discontinue its operations , (b) threatened other reprisals, (c) instituted and maintained recordkeeping procedures as to disciplinary measures taken, (d) required Emme Loy to produce a doctors note in order to be excused from work , and (e) discharged Loy 1 Alleged threats Emme Loy began working for Respondent in August as a porter In October, he became a production worker He and all the other production employees attended a meeting held by the Dews about 10 days after Rendon had been discharged According to Loy s testimony, David Dew told these employees then that if the Union came into the bakery he could close the bakery as he had enough money to live on Loy further testified that Dew also stated that they should tear up any union cards given them and that the Union was not for illegals a reference to employees who were undocumented aliens Carlos Menjivar, another production employee there, testified for the General Counsel respecting this meeting He related not only the statements made by David Dew as recounted by Loy, but he also testified that various promises of benefits were made Regarding these prom ices, I have already noted that Dew had held a meeting in June or July, before the advent of the Union and promised the rank and file employees various benefits that they had asked for in a letter they signed Stephen Dew testified that a meeting was held with the production employees on the day after Rendon was discharged He further testified that David Dew in formed the employees at that meeting that Rendon was discharged because he was not being a good supervisor Stephen testified that his brother also stated that it would not be a good thing for the Union to come in as Re spondent was a small company that could go out of busi ness as it could not afford all the benefits that the Union would demand Stephen denied that David had said that he could close the bakery or that he had enough to live on for the rest of his life 610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD David Dew testified as to various issues in these cases, but he did not give an account regarding what transpired at the meeting with production employees in the bakery office shortly after Rendon was discharged I credit Loy s testimony respecting the meeting in No vember It was corroborated by Menjivar I do not accept Menjivar's account that Dew also discussed van ous benefits there The complaint does not allege that Respondent made any promise of benefit to them Menji var did not seem to be endeavoring to embellish his testa mony Rather, I am satisfied that he was recalling as part of that meeting, statements that had been made at a similar meeting held before the advent of the Union at Respondents bakery In making this credibility resolu tion, I note also that David Dew did not challenge Loy s account and that David Dew was the one whom Loy testified had made the threat It is axiomatic that, by that threat to close, Respondent violated Section 8(a)(1) of the Act 2 The recordkeeping After the unfair labor practice charge in Case 29-CA- 12716 was filed, Respondent retained labor counsel who advised it to establish and maintain a procedure for re cording disciplinary actions taken against its employees The General Counsel contends that Respondent thereby interfered with restrained, or coerced its employees There is no evidence that this procedure was set up or was operated to discriminate against employees on the basis of their support for the Union Rather, the proce dure applies uniformly to all employees Were Respond ent to have instituted a rule subjecting employees to dis cipline in order to discourage them from supporting this Union, that would have violated the Act Cf United Technologies Corp, 274 NLRB 1069 (1985) However the setting up by Respondent of a recordkeeping procedure, without more is clearly insufficient to support a finding that its existence interferes with, restrains, or coerces em ployees in the exercise by them of their rights under Sec tion 7 of the Act 3 Requiring Loy to furnish a doctor s note and his discharge The General Counsel contends that Respondent for unlawful discriminatory resasons required its employee Emme Loy, to furnish a doctor s note on December 15 before it would excuse his absence from work on the preceding days Loy was one of two employees who made the initial contact with the Union He also distributed authorization cards to his coworkers, all before December 15 As re counted above, Respondent's supervisor Toala, had asked Menjivar whether Loy was distributing union cards Respondent had no definite policy respecting the pro duction of doctors notes in order that absences due to illness would be excused Loy telephoned Stephen Dew in late November to tell him that he could not work because he was very sick Stephen Dew testified that he told Loy to call back later that day to let him know if he would be able to work the next day Loy s testimony is that Dew simply told him to come in to work when he feels fine I credit Dew s ver sion as it is more likely that Respondent would need to know before a shift began whether it would be adequate ly staffed, and particularly so in Loy s case, as he made the doughs one of the initial baking processes Dew recounted that Loy did call him that afternoon in late November and advised that he would not be able to work the next day but that he would be in on the day after that About a week later, on December 7, Loy was not at work at 6 am, when his shift started Loy had overslept He reported for work 2 hours late Dew told Loy that he is to call in before his shift began if he is unable to report to work A week later, December 14, Loy was not at work when his shift began He called in 1 1/2 hours later to say that his wife was ill and that he was taking her to a doctors office When Loy reported for work the next day, Stephen Dew told him that he wanted a note from the doctor who treated his wife and when Loy produced it he could go to work Loy left He did not call in or return to the bakery until December 22 He arrived that day hours after his shift started Stephen Dew sent him to his brothers office There, David Dew gave him the paycheck due him Loy then left Stephen Dew testified that he has asked employees to produce doctor s notes to excuse an absence only when he has reason to suspect that the employee was not being candid with him The General Counsel has proffered evidence that Loy was active on behalf of the Union and that Respondent was aware since about November 3 of his activities for the Union as its supervisor, Toala, had questioned Mend var specifically then regarding Loy s distributing union cards That evidence supports the General Counsel's contention that Respondent discriminated against Loy There is however considerable evidence that at least neutralizes the impact of the evidence relied on by the General Counsel Thus, long after Respondent was aware of Loy s activities for the Union Respondent was more than accommodating to him On two occasions he failed to report for work when his shift started out de spite the essential nature of his job Respondent readily excused him When he called in late again on December 15, he was finally asked to present objective proof of the validity of his excuse He never did furnish it The element of timing is missing in the General Coun sel s effort to demonstrate that Respondent discriminated against Loy There is nothing to indicate that Respond ent seized on some pretext Rather, the evidence is clear that Respondent had ample reason to finally ask Loy to document his excuses There is no showing of disparate treatment However, his final status may be characterized-a dis charge or a suspension pending his production of a doc tor's note-it is eminently clear that Respondent did not unlawfully discriminate against Loy It is, of course un lawful for an employer to adopt a discriminatory policy in order to retaliate against employees because they en gaged in activities protected by the Act Cf Saint Jean BREAKFAST PRODUCTIONS Des Pres Restaurant, 279 NLRB 109 (1986) It is quite an other matter, however, for an employer such as Re spondent here to want verification when its employee offers excuses on three consecutive weekends In Clark Equipment Co 278 NLRB 498, 519-520 (1986) the Board found that an employee has been lawfully dis charged for poor attendance when among other factors, there was no evidence of disparate treatment In the in stant case, there is also insufficient evidence of unlawful motivation I therefore find that the evidence fails to es tablish that Respondent unlawfully discharged Loy or that it unlawfully required him to furnish a doctor's note D The Complaint in Case 29-CA-12837 1 Issues The allegation of unlawful interrogation by Respond ent s supervisor Wellington Toala which is set out in this complaint, was discussed above The other allega tions of this complaint are that Respondent, to discour age support for the Union, threatened its employees, promised them benefits, promulgated and enforced a rule against their talking while at work, and that it discharged Carlos Menjivar after having engaged in other discrimi natory conduct towards him Respondent's answer has placed these allegations at issue 2 Alleged threats and promises The General Counsel relies on the testimony of Carlos Menjivar to support the allegation that David and Ste phen Dew unlawfully promised benefits to and threat ened employees about November 5 As set out above, I have already accepted Emme Loy s testimony respecting threats made by David Dew at a meeting he held with the production employees and I have already discounted Menjivar s testimony regarding unlawful promises made them Based on those earlier findings, I conclude that the General Counsel has not sustained the burden of show ing that Respondent unlawfully promised benefits to its employees It is surplusage to restate the earlier finding as to the unlawful threat 3 Alleged discriminatory rule against talking The General Counsel offered the testimony of Carlos Menjivar as to this allegation His testimony was vague and adduced by way of patently leading questions Men jivar finally stated that Stephen Dew would not let him talk while working, but allowed the other employees to talk Stephen Dew testified that he had told employees to stop talking when they occasionally became too loud There is no evidence that a general rule against talking was promulgated or maintained by Respondent At best there was an isolated instance or two of employees talk ing too much and being told in effect to be attentive to work I find that the evidence is insufficient to support these allegations 4 Alleged threats by General Manager Farkas Paragraph 12 of this complaint states that Respond ent s general manager Farkas, unlawfully threatened em 611 ployees with discharge and other reprisals in the lunch area of Respondents premises on December 25 The General Counsels brief makes no reference to this alle gation and the record is devoid of evidence therein I therefore find no merit in it 5 Alleged discrimination against Menjivar including his discharge a Issues This complaint alleges that Respondent, in order to discourage support among its employees for the Union, directed Menjivar to sign a warning,slip, placed discipli nary warnings in his personnel file, subjected him to closer supervision and discharged him Respondent s answer denies these assertions b Background Menjivar began working for Respondent in September 1985 In September 1986, before the Union began its or ganizational effort, Menjivar had been discharged be cause he left work after having been refused permission to do so He was reinstated several days later after re questing a supervisor to intercede for him He was told then that he would be fired if he made any more mis takes ' On October 31, Menjivar signed a union card He tes tified that he also passed out several union cards to co workers As recounted earlier Supervisor Toala ques tioned him on a Friday in November about the distribu tion of union cards, Toala reported to Stephen Dew on November 3 that the Union was attempting to organize c The testimony as to alleged violations On November 11, Menjivar failed to report to work and also failed to call in to explain his absence Respond ent prepared a notice addressed to Menjivar reciting past instances of similar failings, and warning him that his next failure would result in his discharge Menjivar was directed to sign that notice Respondent put it in his per sonnel file Stephen Dew testified that Respondent adopted the practice of maintaining disciplinary records along these lines based on its attorneys advice Respond ent s brief notes that in view of the potential areas of litigation before the Board, EEOC, other agencies and the civil courts, it is essential today for employers to maintain documentary evidence of disciplinary actions taken with respect to employees On November 23, Menjivar was suspended for part of the day because of mistakes he made in sheeting out dough There is no allegation that the suspension was un lawful Respondent's general manager prepared a memo randum therein that was placed in Menjivar s file pursu ant to advice given by Respondents attorney, as outlined above On December 3, Menjivar was late for work and a note to that effect was placed in his personnel file On December 29, Menjivar complained to Stephen Dew that flour got into one of his eyes while at work and that his eye bothered him Dew told him to have a doctor examine it and to bring back the doctor s bill and 612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a note as the injury occurred while Menjivar was at work Menjivar left He did not report for work the next day December 30 Instead he called in but after his shift had started working He reported that his eye still both ered him Dew told him that he had to see a doctor Menjivar reported for work on December 31 He did not have a doctor s note and was sent home He called just before his shift was scheduled to begin work on January 1 and reported that his eye still bothered him Dew asked him to come in as he was short of help Menjivar arrived 45 minutes later Dew testified that Menivar s speech was blurred and that he smelled of liquor Mend var testified that Dew told him that he had been drink ing When Menjivar reported for work the next day he told David Dew that he was unable to get a note from his doctor because the office was closed when he went there Menjivar testified at the hearing that he had not seen a doctor up to that point He was again sent home He did see a doctor on January 2 He brought in a note from the doctor Respondent paid the doctor s bill He was given a written warning, which he signed and which related that he had not called in when he was out ill and that he had been drunk when he had reported for work Menjivar testified that he was closely watched by Ste phen Dew several times each day when he was making croissants Menjivar was discharged on January 19 He had used a serrated steel knife to clean costly plastic molds instead of using a plastic scraper These molds were custom made in Germany and cost about $1000 each Stephen Dew told him to stop using the steel blade and to use the plastic scraper Menjivar said he would comply Shortly afterwards, Dew observed that Menjivar was again using the steel knife to clean the mold Dew discharged him telling him that that was "the last straw Analysis Menjivar s activities on behalf of the Union were not extensive For that matter his testimony thereon was not too persuasive For example, he related that he gave a union card to one of the employees whom Loy had iden tified as one of the employees who first went to the Unions office In any event there is no evidence that Respondent seized on any pretext for disciplining or dis charging Menjivar If anything it seems to have demon strated considerable reserve in dealing with him I there fore find that the General Counsel has failed to establish that Menjivar was in any way unlawfully discriminated against by Respondent 5 The IRCA issue Respondent contends that Loy and Menjivar, as un documented aliens cannot be found to be employees protected by the Act It relies on the rationale of a court decision since reversed in which an undocumented alien was held not to be an employee covered by the Fair Labor Standards Act See Patel v Quality Inn South, 660 F Supp 1528 (N D Ala 1987) revd 846 F 2d 700 (11th Cir 1988) The General Counsel contends that Loy and Menjivar were protected by the Act The General Coun sel developed extensive testimony from them to demon strate that they make a prima facie showing of eligibil ity for adjustment (from their status as undocumented aliens) to a temporary resident status under the Immi gration Reform and Control Act of 1986 (IRCA) From a logical standpoint, it may have been appropri ate to have first discussed this issue before determining whether Loy or Menjivar had been unlawfully discrimi nated against In a sense then the findings here that they were not discriminated against under the Act does not render the IRCA question moot as it may be inferred from these findings that Loy and Menjivar were employ ees protected by the Act The General Counsel has conceded that Loy and Men jivar are undocumented aliens It appears that many of the individuals on Respondents payroll may also be un documented aliens In view of the General Counsel s concessions as to the status of Loy and Menjivar, and as she initially developed the evidence regarding their rest dency status it was unnecessary to consider whether Re spondent had the right to explore an individuals status under IRCA Consideration of such a question presents significant policy issues, some of which are touched below At the hearing, Respondent challenged the testa mony offered by the General Counsel as to the validity of some of the documentation offered to demonstrate that prima facie Loy and Menjivar applied for tempo rary permits under IRCA Obviously more policy con siderations must be evaluated respecting how far the Board will inquire into such documentation For that matter, it may well be appropriate to defer inquiry of an IRCA issue to the compliance stage of an unfair labor practice case or to a collateral hearing in a representa tion proceeding It may be appropriate also to defer en tirely to the Immigration and Naturalization Service (INS) respecting an individuals residency status insofar as it might affect his or her standing under the Act For the reasons set out below deferral to INS may be the best solution In Sure Tan Inc 277 NLRB 302 (1985) the Board re cited the earlier findings in that case that undocumented aliens were employees protected by the Act That case preceded IRCA Nonetheless there appears to be noth ing in IRCA s legislative history to indicate that the Act no longer protects undocumented aliens The Eleventh Circuit in Patel v Quality Inn South, stated that IRCA s legislative history strongly suggests that Congress be lieved that undocumented aliens would continue to be protected the court set out the following excerpt from H R Rep No 1000, 99th Cong, 2d Sess (1986) It is not the intention of the Committee that the em ployer sanctions provisions of the bill be used to un dermine or diminish in any way labor protections in existing law or to limit the powers of federal or state labor relations boards labor standards agen cies or labor arbitrators to remedy unfair labor practices committed against undocumented employ ees for exercising [sic] their rights before such agen cies or for engaging in activities protected by exist ing law In particular the employer sanctions provi lions are not intended [sic] to limit in any way the BREAKFAST PRODUCTIONS 613 scope of the term employee in Section 2(3) of the National Labor Relations Act (NLRA), as amend ed, or of the rights and protections stated in sec tions 7 and 8 of that Act As the Supreme Court ob served in Sure Tan Inc v NLRB, application of the NLRA helps to assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of illegal alien employees who are not subject to the standard terms of employment It is clear that Loy and Menjivar were employees pro tected by the Act and that nothing in IRCA changed that Perhaps a more difficult question would have been presented if they were found to have been unlawfully discharged It may then have been necessary to reach an accommodation between IRCA's objectives and the pole cies of the Act For a discussion of the attendant prob lems and a suggested resolution, see Fjeland, The Nation al Labor Relations Act and Undocumented Workmen, 62 Wash L Rev 595-612 (1987) It is unnecessary, however, to attempt an accommoda tion now as neither Loy nor Menjivar were discrimina tonly discharged For the same reason, and also as the IRCA issue is intertwined with the evidence bearing on the question of whether valid reinstatement offers had been made to Loy and Menjivar, it is unnecessary to decide that question CONCLUSIONS OF LAW 1 Respondent is an employer within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization as defined in Sec tion 2(5) of the Act 3 Respondent has engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act by (a) Coercively interrogating its employees as to their support for the Union (b) Threatening to close its facility in order to discour age its employees from supporting the Union (c) Committing the acts described in paragraph 4 below 4 Respondent has engaged in unfair labor practices proscribed by Section 8(a)(3) of the Act by discharging employee Erwing Rendon in order to discourage its em ployees from supporting the Union 5 Respondent has not engaged in any other unfair labor practice REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re spondent to cease and desist therefrom and to take cer tam affirmative action designed to effectuate the policies of the Act Respondent shall be required to offer Erwing Rendon immediate and full reinstatement to his former job or if it no longer exists, to a substantially equivalent job, with out prejudice to his seniority and other rights and privi leges, and to make him whole for any loss of earnings and other compensation he may have suffered by reason of his unlawful discharge as found here Backpay shall be computed in accordance with the manner described in F W Woolworth Co, 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) On these findings of fact and conclusions of law and on the entire record , I issue the following recommend ed2 ORDER The Respondent Breakfast Productions, Inc, Brook lyn, New York, its officers, agents, successors, and as signs, shall 1 Cease and desist from (a) Coercively interrogating its employees regarding their support for Bakery, Confectionery and Tobacco Workers International Union of America, Local 3, AFL- CIO (b) Threatening to close its facility in order to discour age employees from joining the Union (c) Discharging any of its employees because they sup ported the Union (d) In any like or related manner interfering with, re straining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Erwing Rendon full reinstatement to his job and make him whole for all earnings in accordance with the manner set forth in the remedy section above (b) Expunge from its files all references to Rendon s discnminatonly discharge, notify him that this has been done and notify him also that evidence of that unlawful conduct will not be a reason for future personnel action against him (c) Preserve and, on request, make available to the Board or its agents for examination and copying all pay roll records social security payment records, timecards, personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) Post at Respondents Brooklyn New York place of business copies of the attached notice marked Appen dix 3 Copies of the notice on forms provided by the Regional Director for Region 29 after being signed by the Respondents authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus tomarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered de faced or covered by any other material 2 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 3 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 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director in writing within 20 IT IS FURTHER RECOMMENDED that the allegations in days from the date of this Order what steps the Re the complaints that were not found to have merit are dis spondent has taken to comply missed