Fab's Famous Foods Co.

National Labor Relations Board - Board Decisions

May 25, 1965

152 N.L.R.B. 826 (N.L.R.B. 1965)

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Dean Orr immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of pay suffered as a
result of the discrimination against him.
All our employees are free to become and remain , or to refrain from becoming
or remaining, members of the above-named Union or any other union, except to the
extent that this right may be affected by an agreement in conformity with Section
8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
JOSEPH ANTELL, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above- named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele-
phone No. 523-8100, if they have any question concerning this notice or compliance
with its provisions.
Marbro Food Service, Inc., d/b/a Fab's Famous Foods Company
and International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Local No. 537. Case
No. 07-CA-166. May 25,1965
DECISION AND ORDER
On March 11, 1965, Trial Examiner Herman Marx issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. With respect to certain other unfair labor practice allegations,
the Trial Examiner recommended they be dismissed. Thereafter,
counsel for the General Counsel and the Respondent filed exceptions
to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was colnmltted. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the except ions and brief, and the entire record
ui this case, and adopts the findings, conclusions, and recommendations
of the Trial Examiner.
152 NLRB No. 97.
FAB'S FAMOUS FOODS COMPANY 827
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
Respondent, Marbro Food Service, Inc., d/b/a Fab's Famous Foods
Company, Denver, Colorado, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
The complaint alleges that the Respondent , Marbro Food Service , Inc., d/b/a
Fab's Famous Foods Company, herein called the Company , has violated Section
8(a)(3) of the National Labor Relations Act, as amended (29 U.S .C. Sec. 151, et
seq.; also referred to herein as the Act ), by assigning employees to less desirable
work shifts and by discharging five employees because they engaged in activities on
behalf of a labor organization , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local No . 357, herein called the Union;
and, by the foregoing conduct , by interrogating employees regarding their union
activity and interest, and by warning employees of loss of employment and promis-
ing them benefits, in order to influence their vote in a union representation election,
has abridged rights guaranteed employees by Section 7 of the Act , thus violating
Section 8 (a) (1) of the statute.
The Respondent has filed an answer , in material substance , asserting that the
National Labor Relations Board has no jurisdiction over the subject matter of this
proceeding , and denying the commission of the unfair labor practices alleged in the
complaint.
Pursuant to notice duly served upon each of the other parties by the General
Counsel of the Board , a hearing upon the issues in this proceeding has been held
before Trial Exammer Herman Marx at Denver , Colorado. The General Counsel
and the Respondent appeared at the hearing through, and were represented there by,
respective counsel . All parties were afforded a full opportunity to be heard , examine
and cross-examine witnesses , adduce evidence, file briefs , and submit oral argument.
I have read and considered the respective briefs of the General Counsel and
Respondent filed with me since the close of the hearing.'
Upon the entire record, and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. NATURE OF THE COMPANY' S BUSINESS ; JURISDICTION OF THE BOARD
The Company is a Colorado corporation , maintains its principal office and place
of business in Denver, Colorado, is there engaged in the business of producing, sell-
ing, and distributing sandwiches and bakery products for resale , and is, and has been
at all material times, an employer within the meaning of Section 2(2) of the Act.
During the year preceding the issuance of the complaint , the Company, in the
course and conduct of its business operations , sold and delivered goods valued in
excess of $50,000 to a commercial enterprise named Automatic Catering , Inc., trans-
acting such business entirely within the State of Colorado. Each year, Automatic
Catering , Inc., has gross receipts in excess of $500 ,000 from selling goods, including
the products it purchases from the Company; and annually receives at its place of
business in Colorado products valued in excess of $50,000, which are shipped directly
to it from points outside the said State . By reason of the Company's sales to Auto-
matic Catering , Inc., and the interstate shipments of products to that enterprise, the
Company is, and has been at all times material to the issues , engaged in interstate
commerce , and in operations affecting such commerce , within the meaning of Sec-
i The complaint was issued on June 26 , 1964 , and is based upon a charge filed by the
Union with the Board on May 4 , 1964, and an amendment theieof filed on June 3, 1964.
Copies of the charge , the amendment , and the complaint have been
the Respondent
duly served upon
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 2 ( 6) and (7) of the Act. Hence , I find, contrary to the Respondent , that the
National Labor Relations Board has jurisdiction over the subject matter of this
proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material to the issues , a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The Company's production operations are subject to overall supervision by its
general manager, Lucien Sebeo, who also has the title of controller. Its work force
includes three route drivers who deliver its products to customers; bakery person-
nel; and about a dozen sandwich department employees who prepare the sandwich
products and work under the supervision of one Clementina Verdicchio. The latter
and Sebeo, as the Respondent concedes in its answer, are, and have been at all mate-
rial times, supervisors within the meaning of Section 2(11) of the Act.
The bakery and sandwich products made by the Company are sold by it, at whole-
sale, to a variety of enterprises, including concessionaires, drugstores, cafes, and coin
vending machine operators who sell the products by means of their machines. The
Company's principal customer is Automatic Catering, Inc., an operator of such
machines, which is, at least to some extent, under the same general management as
the Respondent, for the latter's president, Gerald Marcove, is also vice president of
Automatic Catering, Inc., and Sebeo is "business manager" of that concern.
The sandwich crew works into the night, and approximately 50 percent of the
sandwiches they make, and most of the Company's daily bakery output, are deliv-
ered nightly by truck, driven by an employee of the Company to Automatic Catering's
place of business in Denver. The products are deposited there at specified locations
for subsequent handling and distribution shortly thereafter by Automatic Catering
drivers, about nine in number, who begin work during the early morning hours, the
starting time varying with the driver and his route requirements. Each driver serves
a regular route, distributing pastries and sandwiches to coin vending machines at
locations such as warehouses and factories. The time of departure varies with the
driver's work and route schedule, one or more leaving as early as 12 30 or 1 a.m.
and "probably two" as late as 4:30 a.m.
In or about the early part of February 1964,3 there was some talk among some of
the Respondent's employees about union affiliation, and one of its drivers, Stuart
Greene, undertook to communicate with the Union about the matter. He did so,
and as a result, a representative of the Union came to the loading dock at the rear
of the plant one day about noon and secured from six or seven employees, including
Greene, signed cards which, according to the sense of the evidence, authorized the
Union to seek a representation election.
During the early part of February, also, following Greene's initial contact with the
Union, its representative called a member of the sandwich crew, Marie Vale, at her
home and inquired whether the crew would be interested in union affiliation, and
the upshot of the conversation was that Vale made inquiries about the matter among
members of the crew, and that six of them, including Evelyn Boone, Frieda Hansen,
Janice June Smith, and Vale, went to the Union's headquarters "around the middle
of February" and signed cards there "to authorize an election."
On February 14 the Union filed a representation petition (Case No. 27-RC-2587)
with the Board's Denver Regional Office, and a hearing on the petition was set for
March 6. Following the hearing, the Regional Director for Region 27 (Denver, Col-
orado), on March 30, 1964, issued his decision and directed an election among all
production and maintenance employees at the Company's Denver plant, "including
9 E g., N L R B v Reliance Fuel Oil Corporation, 371 U S 224. As the sales to Auto-
matic Catering, Inc., are nonretall in character, the jurisdictional criteria laid down in
Siemons Mailing Service, 122 NLRB 81, are applicable Also, contrary to the Respond-
ent, I find no merit in a claim it makes to the effect that the Board lacks jurisdiction
because the Union had previously filed and withdrawn charges covering substantially the
same subject matter (except for the alleged discharge of one employee) as the charges
upon which the complaint is based. See N L R.B. v. Zimnon Coal Co, 336 F. 2d 516
(C A 6).
'All dater, mentioned herein, unless otherwise indicated, occurred In 1964.
FAB'S FAMOUS FOODS COMPANY 829
route drivers and sandwich employees ." An election was held on April 30, 1964,
with the result that a majority of the unchallenged ballots were cast against the
Union.4
In essence , the General Counsel imputes to the Respondent a course of misconduct
during the pendency of the representation proceeding , consisting of interrogation of
employees , warnings of loss of employment , promises of benefit , a discriminatory
change in the sandwich department 's shift hours, and the discharge of Stuart Greene,
and of four sandwich department employees , Marie Vale, Janice June Smith , Frieda
Hansen , and Evelyn Boone, for the purpose of discouraging activity or interest in
the Union , and of influencing the result of the election . At the close of the General
Counsel's case at the hearing , the allegations that Hansen was unlawfully discharged
were dismissed for insufficient evidence , upon the Respondent 's motion.5 Findings
regarding the remaining allegations of misconduct follow below.
B. The discharge of Stuart Greene
Stuart Greene has been a post office employee for about 17 years, and during
much of that period has held a second lob such as the one with the Company, per-
forming such work during hours when he was not on duty as a postal worker. He
has worked for the Company during two periods, starting initially in September
1962; was laid off in February 1963 because of an economic reduction in force, and
was reemployed by the Company in September 1963. His employment by the Com-
pany came to an end on March 6, 1964, under circumstances to be described later.
His work as a route driver entailed the delivery of bakery products and sandwiches to
customers.
His post office shift has been, at all times material here, from 2:30 p in. to 11 p.m.,
and his shift hours for the Company began at 5:30 a in. and lasted until the com-
pletion of his delivery and related chores at about 12.30 or 1 p.m. The Company
paid him a weekly salary of $65 for his work as a driver.
Greene, as indicated above, took the initiative in interesting the Union to under-
take organization of the employees, and, with about a half dozen other employees,
met with a representative of the Union early in February on the plant loading dock
and signed cards as previously described. Among those who signed were the two
other drivers, Joe Reddinger and Charles Schmidt, who was also the supervisor of
the other route drivers, giving them their orders in such matters, for example, as
changes in routes.6
In February, apparently soon after the filing of the representation petition, the
Company received a letter from the Union, " announcing the organization" (of
employees, presumably), as Sebeo described it in his testimony, and during the
course of the following week, Sebeo asked Greene at the plant whether he was
"happy," and whether he "want(ed)" the Union. Greene replied that he had "signed
an authorization card along with several others for an election," but did not "know
how much it would benefit me." Reddinger appeared on the scene at that point and
Sebeo asked him whether he had signed a card. Receiving an affirmative reply,
Sebeo asked who had "called the union," but received no reply. Schmidt was pres-
4 The representation petition, notice of hearing thereon, decision and direction of
election, and ballot tally were offered at the hearing by the Respondent in connection
with its position that the withdrawal of charges pending at the time of the election
constitutes a bar to this proceeding. As that contention lacks validity, the proffered
documents were, upon the General Counsel's objection, excluded, together with the prior
charges and some correspondence between the Respondent's counsel and the Regional
Director However, upon my study of the record, I find that the relevant documents in
the representation proceeding have some pertinence to the issues in this case, at least
as part of the sequence of events and as background. Thus I vacate the exclusion of the
representation petition, notice of hearing thereon, decision and direction of election, and
tally of ballots (Respondent's Exhibits Nos. 10, 11, and 12) ; receive them in evidence;
and also take official notice of Case No. 27-RC-2587 for the purpose of making findings
pertinent to, and based upon, these documents.
5 The General Counsel's request, in his brief, that the ruling be reconsidered is denied.
The General Counsel remarked at the hearing that he does not "allege that (Schmidt)
Is a supervisor," but the record nevertheless establishes, without dispute, that Schmidt
has a supervisory status. In fact, the Respondent contended in the representation pro-
ceeding, and the Regional Director found in his decision and direction of election, that
Schmidt is a supervisor within the meaning of the Act. (Respondent's Exhibit No. 11,
footnote 4 )
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent during the conversation , but Sebeo did not speak to him about unionization
in the presence of Greene and Reddinger . According to Sebeo's testimony, he had
spoken to Schmidt about the letter previously , asking him if he knew anything
about the matter, and Schmidt had "said he was surprised ," and "didn 't know any-
thing about it himself." 7
On March 6, upon Greene's return to the plant from his delivery route, Schmidt
told him that he "was fired," and to call Marcove . It is undisputed that Greene
thereupon telephoned Marcove , but there is conflict as to the course the conversation
took.
Greene's version is, in substance , that Marcove told him that the Company was
"making some changes that were more of an economy move," offered him a "mid-
night doughnut delivery route that paid $ 1.25 an hour ( and) lasted approximately
two hours ," and said that the Company "had better things" in store for him, and
would let him know about that later; and that he replied that the offer was unac-
ceptable. Marcove, on the other hand , testified that he ' told Greene that for reasons
of economy the Company had decided to expand Greene's duties "to an 8-hour job,"
consisting of his "6-hour route" and 2 hours of work in the bakery (or, in other
words, according to Marcove , a shift from 5:30 a.m. to 2 p.m.); that he also gave
Greene the option of adding to the "8-hour job," if he so desired, "another couple of
hours" making nightly deliveries of sandwiches and bakery products to Automatic
Catering "between . the completion (of the sandwiches under a projected new
production schedule for the sandwich crew) and the hour of midnight"; and that
Greene rejected the proposals.
Explaining the reason for his alleged proposals , Marcove gave testimony to the
effect that the Company had customarily delivered sandwiches and bakery prod-
ucts to Automatic Catering by truck during a period between some point after mid-
night and 2 or 2:30 am , using a bakery employee named Carriger to make the
deliveries ; that Carriger , in addition to 2 "productive" hours in the bakery was given
4 additional "non-productive " hours there because it needed him for the deliveries
and it was difficult to find a person to do only that work at so late an hour ; that there
had been many instances of late delivery to Automatic Catering because sandwiches
were not ready in time, thus delaying drivers of Automatic Catering in deliveries to
their customers; that therefore the Company decided to start the work of the sand-
wich crew 31/2 hours earlier ( 3:30 p . m. instead of 7 p . m.); that the management felt
that it "needn't be concerned" about finding someone to meet the earlier delivery
schedule, and thus decided to "lay off" the bakery employee who had been making
the Automatic Catering deliveries and had 4 hours of "non-productive" work, and
to add the 2 "productive" bakery hours to Greene 's route schedule . According to
Marcove, also , having made these decisions , he instructed Schmidt, on March 6, to
notify Greene of the "new arrangement " for him, and was informed by Schmidt later
that day that that had been done , and that Greene "didn't want the additional two
hours" (of bakery work).
There is no doubt that Greene's employment ended on March 6 , nor that he was
replaced as a route driver by Carriger, who also continued to work daily for 2 hours
in the bakery, performing what Marcove terms "productive " work. The ultimate
issue as regards Greene's termination is its cause , and on that question a determina-
tion of what passed between Marcove and Greene is important , for the Respondent,
resting obviously on Marcove 's account , claims, as it alleges in its answer, that
7 Sebeo admittedly interrogated Greene and Reddinger about unionization , quoting bim-
self as asking Greene what he had heard "about the union," as inquiring in - similar
vein of Reddinger , and as receiving information from both that they had signed cards.
However , I have based findings as to the discussion on Greene 's testimony , as he appeared
to me in both demeanor and text to be a more dependable witness than Sebeo or Red-
dinger. Sebeo was evasive at various points, as , for example , when he was asked whether
the employees had told him what kind of cards they had signed , and he gave the un-
responsive reply that a "gentleman was there at the plant sometime , I think, a week
or two weeks earlier to my visit " He then interrupted a question of similar purport
as the prior one with a similarly evasive reply . Then , asked what "kind of card did
(he) understand it was ," he stated , with a reluctant demeanor , that he "understood it
was something connected to my question regarding union." Sebeo was a perceptive
witness, with a calculating demeanor , and I am convinced that his unresponsiveness was
not due to any lack of understanding but to a disposition to dodge a question which, in
his view, could re"ult in evidence that he knew more about the course of union activity
among the employees than would otherwise appear
FAB'S FAMOUS FOODS COMPANY 831
Greene "voluntarily terminated " his employment , while the General Counsel, invok-
ing Greene 's version , contends, in substance , that the offer as described by Greene
was tantamount to a discharge , and that it was motivated by Greene 's union activity
As a preliminary to determining the nature of Marcove 's offer to Greene, I note
my view, based on the record as a whole, that the "midnight doughnut delivery route"
mentioned in Greene's version is his label for the nightly deliveries to Automatic
Catering, to which Marcove referred. With that in mind, it is evident that both ver-
sions quote Marcove, in substance, as offering the nightly Automatic Catering delivery
work to Greene, the basic difference between the two accounts being that Greene
depicts that as the only offer made him, whereas Marcove pictures himself as offering
Greene the "8-hour job," with an option of adding to that work the task of making
the deliveries to Automatic Catering.
I am unable to accept Marcove 's version , for he was not, in my judgment, as
candid as he should have been. This is exemplified by testimony he gave in connec-
tion with the alleged option. The Automatic Catering deliveries, according to his
account of his offer, were to entail a "couple of hours" of work nightly between the
completion of the sandwiches under the new production schedule and midnight, but
at a subsequent point he testified that what he had in mind for Greene was that the
latter was to make the deliveries "perhaps" from 11:30 p.m to 1:30 a.m. The dis-
crepancy is far more meaningful than may appear on the surface The premidnight
deliveries would obviously conflict with Greene's post office shift which ended at
11 p.m., and there would thus be reason to doubt that a proposal entailing such a
conflict had been made in good faith. Soon after he described the alleged option, it
became evident from testimony Marcove gave that he was aware, at least in a sub-
stantial sense , of Greene 's post office shift hours 8 From his testimony as a whole,
particularly in the light of his demeanor when interrogation focused upon his knowl-
edge of Greene 's post office hours, it appears to me that at one point or another after
describing his alleged offer he realized that he had committed a possible gaffe, and
that this led him to the shift in the Automatic Catering delivery hours he claims he
contemplated for Greene. This course evidences a disposition by Marcove to shape
his testimony to his convenience , and reflects on his credibility.
What caps the matter , in my view , is a consideration of both versions in the light
of the undisputed evidence that Schmidt told Greene that he "was fired" shortly
before the latter called Marcove, as suggested by Schmidt.° This evidence is in
harmony with Greene's version of his conversation with Marcove, for one may
clearly infer from his account that both he and Marcove were proceeding on the
implied premise that he had already been informed of his discharge , and the thrust of
Marcove's remarks was to offer Greene a 2-hour "midnight " route in place of what
he had had , coupled with an intimation that he could or would be given a "better"
8 Although Marcove claims that he did not know Greene's post office hours "specifically,"
it is evident from other testimony he gave , somewhat grudgingly in demeanor , it appeared
to me, that he was substantially aware of the shift hours . He described two successive
post office shifts , the first beginning at 0.30 a in and the second beginning 8 hours later
and lasting for 8 hours Using Marcove's figures, the second shift would end in the
neighborhood of 11 p in , the actual time depending on how much time was allowed for a
meal during each shift-a matter not developed in the record Marcove admittedly
knew that Greene worked on the second shift
9 Greene quotes Schmidt at two points , under direct examination , as telling him that
he was discharged . Following the first , the Respondent's counsel interrupted Greene's
testimony to register an objection "on the grounds of hearsay ," but did not move to
strike what Greene had already said. At the second point, the testimony was given
without objection . Assuming, for discussion purposes , that a timely objection to the
evidence of Schmidt 's statement would have been well taken, in the absence of an
appropriate objection or motion to strike, such hearsay "is to be considered and given
its natural probative effect as if it were in law admissible ." Diaz v. U.S., 223 U.S. 442,
450. In any case, quite apart from that , Greene's testimony quoting Schmidt is clearly
evidential in view of Schmidt 's supervisory status, as found in the decision and direction
of election , which notes , incidentally , that Schmidt , as supervisor of the drivers , has made
"effective recommendations as to both hiring and firing " Moreover , it is evident from
Marcove's own testimony that Schmidt spoke to Greene at Marcove 's direction , albeit the
latter claims that Schmidt 's instruction was to inform Greene of the "new arrange-
ment." Taking into account Schmidt 's supervisory status , and the undisputed evidence
of what he told Greene , one is not obliged to accept Marcove's version of his private
instructions to Schmidt . In short, what Schmidt said to Greene is imputable to the
Respondent.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job at a later date. In contrast , the offer Marcove claims he made expressly con-
templates that Greene retain his "6 -hour route ," and is thus in utter disharmony with
the uncontroverted evidence that Schmidt told Greene that he had been discharged.
The fact that Carriger has the "8-hour job" Marcove claims he offered Greene does
not enhance the credibility of Marcove 's version , for taking into account the indica-
tion that the discharge decision was actually made prior to Marcove 's conversation
with Greene , and the earmarks of tailoring in Marcove 's testimony , previously men-
tioned, there is at least as much reason to believe that Marcove has shaped his version
of the offer he made to conform to the "8-hour job" Carriger now performs as there
is to conclude that that was the offer actually made. In short, I credit Greene's ver-
sion of his conversation with Marcove
Putting aside for later discussion , the question whether the "midnight" route offer
was made in good faith , it is obvious that Greene 's rejection of the offer did not con-
stitute a voluntary termination . He was told by Schmidt that he had been discharged,
and the fact of his dismissal from employment he had held was implicit in his conver-
sation with Marcove. Thus, I find that the Company discharged him on March 6.
As for the Company's motivation , Marcove disclaims any discriminatory purpose,
stating that he had no knowledge of the identity of any members of the Union, of any
card signatories , or of the "most active" among adherents of the organization, but
these disclaimers are not decisive , especially in view of the lack of candor in his
testimony , previously described . Discharge motivations are often concealed and
necessarily determined on the basis of circumstantial evidence . Going beyond
Marcove's self-serving disclaimers to the total record, one finds a set of circumstances
that point to an unlawful motive for the dismissal.
The starting point for that conclusion is that Greene was the initiator of the Union's
effort to organize the employees . Significantly , in the course of Sebeo's interrogation
of Greene and Reddinger , the general manager sought to find out who had "called
the Union ." There is no indication that such a question was put by the management
to any other employee , and bearing in mind that the very name of the Union suggests
that it is in large measure an organization of drivers , the evidence of Sebeo's inter-
rogation warrants an inference that he suspected that one of the drivers had instigated
the Union 's interest . And it is a striking fact that Greene , the instigator , although
the subject of "nice compliments " by customers , as Marcove testified, and regarded
by the latter as having "done a fine job," was suddenly and without any prior notice
discharged during the pendency of the representation petition ( actually on the very
day set for the hearing on the petition ), and little more than about a week after
Sebeo had sought to find out from Greene and Reddinger who had set in motion the
Union's interest.
These factors point to a discriminatory motive in the absence of a plausible expla-
nation by the Respondent of Greene 's discharge . But there is no such explanation,
nor, for that matter, even a concession that Greene was discharged . Upon examina-
tion of Marcove 's relevant testimony , one finds a tenuous effort to relate Greene's
termination to a decision to advance the sandwich crew's hours and the Automatic
Catering delivery time , resulting in an alleged decision to lay off Carriger on the
claimed assumption that someone else could readily be found to make the deliveries
during the earlier period , and to offer Carriger 's 2 "productive" bakery hours to
Greene to add to his "6-hour route ," leading, in turn, so Marcove claims in effect, to
the offer and its rejection , and thus to Greene's voluntary termination . The alleged
link between the time changes and Greene 's termination not only appears to me to
be tortured , but the claim founders on the evidence that Greene did not quit , but was
discharged , that the discharge decision was made before Marcove spoke to Greene,
and that there was no offer of an "8-hour job," but only of the Automatic Catering
delivery task , involving some 2 hours of work about or toward midnight.
What is more , I am unable to escape the conclusion that that offer was made in bad
faith and with no belief that it would be accepted , for apart from the fact that the
weekly compensation at $1.25 an hour for about 2 hours of work nightly in making
the Automatic Catering deliveries would be but a small fraction of the $65 per week
Greene had been earning from his delivery route, the Automatic Catering work
would very likely conflict with Greene 's post office shift, and I am persuaded that
Marcove was aware of that and anticipated rejection of the offer for that reason.
I am persuaded , too, that the offer was made to put a gloss of economic motivation
upon Greene 's termination and to place him in the position of rejecting an opportunity
for continuing in the Company 's employ in order to provide it with color for a claim
that Greene had "voluntarily terminated " his employment. The very fact that the
Respondent 's explanation of Greene 's termination does not weather scrutiny points
not only to concealment of the real reason for the discharge, but supports a conclusion
that the Respondent has sought to conceal its motive because it is unlawful.
FAB'S FAMOUS FOODS COMPANY 833
For the reasons stated , I find , in sum, that the Company discharged Greene because
of his union activity ; and that it thereby discriminated against him in violation of
Section 8(a)(3) of the Act, and abridged rights guaranteed employees by Section 7
of the Act, thus violating Section 8(a) (1) of the statute.
C. The allegations of unlawful interrogation, warnings, and promises
The coercive thrust in Sebeo's interrogation of Greene and Reddinger is manifest.
This is especially true of the effort to find out who had "called the Union," in the
light of the subsequent discharge of Greene, the employee who had done so. Thus
I find that the Company interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act, thus violating Section 8(a) (1)
of the statute, as a result of Sebeo's inquiry of Greene whether he "want(ed)" the
Union; the former's question of Reddinger whether he had signed a card, and the
inquiry of the two drivers as to who had "called the Union."
Sebeo also spoke to members of the sandwich crew on the subject of unionization,
doing so in April shortly after various of the sandwich makers had been to a union
meeting, and not long before the date set for the election. On the occasion in ques-
tion, Sebeo summoned three "new" members of the crew, Dolores Valdez, Julia
Trujillo, and Betty Azel, to the office he uses when at the plant. Verdicchio was also
present.
Trujillo and Sebeo give materially differing versions of what took place. Trujillo's,
in substance, is that Sebeo asked each of the three employees, in turn, whether she
had gone to the union meeting, receiving an affirmative response from Valdez, and a
negative one from the others, Trujillo telling him that she had planned to go, but did
not have transportation; that he asked Valdez whether she had decided how to vote
in the election, and she said she had not; that Sebeo then told her that he would not
try to influence her vote, but that if the Union "did go through," the plant "probably
... would close down"; that Valdez then left the office, at Sebeo's direction, Trujillo
and Azel remaining at his request; that he asked Azel whether she had decided how
she would vote, and she replied in the negative; that he asked Trujillo why she had
wanted to go to the meeting, and she replied that she had heard good and bad points
about the Union, and wished to reach her own decision about the organization; that
Sebeo then said he would not try to influence the employees in their vote, but that
he did not care for the Union; and that "if the union did not go through," the employ-
ees would continue to receive paychecks and would not "have to worry about having
a job," but that "if the union did go through the place would probably close down for
business," and if the closing did not take place, "the girls with seniority would be
working there."
Sebeo's version is, in substance, that he told the three employees that there would
be an election; that they should "make their own decision" as to how to vote; that "if
the union demands were too heavy and heavy enough that the company couldn't
afford it financially, to stand that kind of demand, the employer might consider to
reduce the operation ... and eventually close the operation , as he could at that time,
maybe buy the same product cheaper from the outside."
Trujillo's account is, in my view, the more credible of the two for a number of
reasons. First , she is no longer in the Company 's employ, and there is no indication
that she is affiliated with the Union or has any interest in the results in this proceeding.
In contrast, Sebeo's interest is obvious. Second, the likelihood that he questioned the
three women in the vein Trujillo describes is enhanced by the evidence that not long
after the representation petition was filed he sought to find out from Greene and
Reddinger who had initiated the Union's interest. Actually, his testimony contains
no denial , in specific terms at least, that he interrogated the women as to their attend-
ance at the meeting and whether they had reached a voting decision. Third, Sebeo's
testimony is silent on the subject of Valdez' departure from the office before the
others, and I have no doubt that he did send her from the room. Trujillo's description
of that incident adds circumstantial detail to her account and contributes to its
plausibility. It is fair to conclude that the reason he separated the three women was
that Valdez had admitted attending the union meeting in response to Sebeo's question-
ing in that regard , thus indicating a favorable disposition toward the Union, and Sebeo
decided it would be easier to influence the voting attitudes of Trujillo and Azel, who
had not been at the meeting, in Valdez' absence . Finally, Sebeo evidenced a disposi-
tion to evade pertinent inquiry, as when he gave patently unresponsive replies to
interrogation seeking to determine whether Greene and Reddinger had told him, on
the occasion when he questioned them , what kind of card each had signed for the
Union. I credit Trujillo 's account of the interview.
789-730-66-vol. 152-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In appraising the legality of the interrogation of the three women , and of Sebeo's
remarks on the subject of job retention and plant closing , I am unable to regard his
remarks to the women to the effect that he did not wish to influence their votes as
anything but a nominal , lip-serving profession of neutrality . The statements about
continuing paychecks, job security, and plant closing were coercive warnings that
employees would be denied employment in the event the Union won the election, and
particularly in the context of these remarks, the inhibiting nature of the efforts by
Sebeo to find out whether the women had attended the meeting, and had reached a
voting decision, is evident. Thus I find that the Company abridged the Section 7
rights of employees, thereby violating Section 8(a)(1) of the Act, as a result of each
of Sebeo's questions on the subject of attendance at the union meeting , and whether
the women had decided how they would vote; and his remarks to the effect that pay-
checks would continue and there would be no "worry about having a job" in the event
of rejection of the Union, but that if it were chosen as bargaining representative by
the employees the plant would probably close, and if it did not, "the girls with
seniority would be working there."
There is evidence that Verdicchio, too, interrogated members of the sandwich
crew on the subject of unionization , and made statements to some designed to influ-
ence their choice in the election . One incident of interrogation occurred in Febru-
ary, following Sebeo's receipt of the letter from the Union (and very likely close
to the date when Sebeo questioned Greene and Reddinger). On the occasion in
question, Verdicchio, in substance, asked the sandwich crew as a group, during their
lunch period, if there had been any contract between any of them and the Union.
None replied affirmatively, and some or all answered in the negative 10
Verdicchio, also like Sebeo, interrogated members of the sandwich crew about
attendance at a union meeting in April ( whether the one about which Sebeo inquired
does not appear), asking one such employee, Irene Sanchez, as the latter testified with-
out contradiction, whether she had been to such a meeting. Sanchez stated that she
had attended, and Verdicchio inquired why she had not been informed about it, to
which Sanchez replied that many employers discharge employees for mentioning
unionization. Verdicchio retorted that Sanchez' failure to inform her of the meeting
was "a pretty rotten deal." In addition, as Verdicchio herself testified, she asked the
sandwich crew as a group on one occasion in April whether they had been to a union
meeting held 2 days earlier. (It is evident, by the way, not only from Sanchez'
testimony, but from Verdicchio's, that the latter resented the failure of sandwich
makers to tell her about their attendance at a meeting . According to Verdicchio, the
omission reflected a lack of confidence in her and hurt her feelings.)
There is no dispute that Verdicchio spoke to members of the sandwich crew on
various occasions on the subject of the consequences of union membership or repre-
sentation , but the record reflects some question as to the course her remarks took.
According to Vale, describing one such incident , one evening early in March, while
the sandwich crew was at work, Verdicchio interrupted a telephone conversation she
had been having, came over to Vale, told her that Sebeo had "just told me" (on the
telephone , apparently ) that "after this union business was dropped ( Vale) was to get
a raise"; and then returned to the telephone to resume the conversation.
Hansen quotes Verdicchio in somewhat similar vein , testifying, in substance, that
during the middle of March, Verdicchio told her that when "it (the unionization
effort, from the context ) was discontinued one way or another" the senior sandwich
makers might be given an increase.
10 Findings as to the interrogation are based on the testimony of Boone , Smith , Hansen,
and Vale, who are in substantial accord as to the interrogation , although differing some-
what in phrasing Vale and Hansen quote Verdicchio as inquiring whether any of the
girls had gone to the Union , whereas Boone and Smith quote Verdicchio as asking whether
the Union had been in contact with any of the girls. The differences are not significant.
This , in my view , is also true of a version by Irene Sanchez , a sandwich maker, who
describes Verdicchio as asking "if anyone had gone to the girls and spoken to them about
trying to get a union in " Verdicehio admittedly interrogated the group , but quotes
herself as asking if "they knew anything about any union." That difference , too, is not
of great moment , but I think it likely that the interrogation was somewhat more pointed
than a generalized inquiry about "any union" or "a union ," and that she sought informa-
tion about any contact between any of the girls and "the union" involved here, as one
may infer from the versions of four of the five sandwich makers who described the in-
cident Verdicchio , it may be noted in that connection , was aware that Sebeo had
received a letter from the Union
FAB'S FAMOUS FOODS COMPANY 835
Sanchez testified that about a week after Verdicchio asked her about the union
meeting, Verdicchio told the sandwich crew as a group that the Company "would
close the place down if the union got in"; and that she had spoken to Sebeo about a
wage increase for the crew, but that because "of the union meeting we had attended,"
she did not know whether the increase would be granted.
According to Hansen's testimony, during the latter part of April, about the time
a notice of the election was posted in the plant, Verdicchio summoned her to the
plant office for a private conversation, and disclaiming any intention to influence the
employees' votes, told her that it would cost each employee $50 to join the Union;
that if the plant were unionized, the Company "would go bankrupt and close the
doors," and Hansen should "consider (her) job"; that she had sought for a long time
to persuade Sebeo to increase the wages of the sandwich crew, but that "with this
union coming up she didn't know whether he would still consider it or not."
Sanchez, too, testified that Verdicchio summoned her to the office for a private talk
during the latter part of April. According to Sanchez, Verdicchio told her that it
would cost her "$50 to join the union plus $5 or $6 a month for dues," and that the
Company "would close the place down if the union got in."
Verdicchio entered a blanket denial that she had had any conversation with any of
the employees about a wage increase during the period "when the union was cam-
paigning in the plant," adding that she had done so "before this." The denial, how-
ever, is entangled in substantial self-contradiction. At one point, she made the quite
implausible claim that she knew "nothing about the union" before the election, and,
subsequently, responding to a question whether she knew of "the union activity con-
cerning the election" during the month preceding it, she testified: "I didn't know
about the election. I knew that somebody was asking for the union when Lucien
(Sebeo) told me, but I didn't mean-I didn't talk to the girls about anything at that
time." But it is evident from other parts of her testimony that she was aware that an
election was scheduled, for she admittedly saw the posted notice pertaining to it, and,
indeed, giving her version of the office conversation she concedes she had with
Sanchez she quotes herself as telling Sanchez that "T didn't have a right to vote"-an
obvious reference to her preclusion as a supervisor from voting in the election.
Moreover, she also testified that after she "found out they went to the (union) meet-
ing" in April, she "told them (employees she does not identify, except Sanchez) that
we weren't making $1.90 (an hour) and the Company would have to close if they
expected those kind of wages." 11 Verdicchio admittedly had no knowledge of "what
the union (wage) demand would be," but, passing that aspect and the question
whether, if one assumes her credibility, even the terms in which she quotes herself
were coercive and unlawful, it is evidence that her version of what she told employees,
including Sanchez, is much at odds with her denial that she had any discussion with
any employee during the organizational campaign, about either the subject of a wage
increase or that of a plant shutdown, and with her claim that she "didn't know about
the election." I have no doubt that she did make remarks to various employees on
the subjects mentioned and that some of her statements, at least, were tied to the
election; and her testimony looking in another direction does much, in my judgment,
to impair her credibility.
That is not to say, however, that this automatically invests all of the testimony on
such subjects offered by the General Counsel with reliability. Specifically, I have
much doubt, to say the least, about the reliability of disputed aspects of Sanchez'
evidence. I have accepted her testimony that Verdicchio interrogated her in April
about attendance at a union meeting because her relevant account is undisputed, and
gains corroborative weight from the fact that Verdicchio herself testified that she
asked the entire sandwich crew whether they had been at such a meeting. But under
cross-examination, asked whether she had "something specific in mind" in the remark
she made to the effect that employees were discharged for manifesting an interest in
unionization, Sanchez testified that the Company had discharged an employee for
that reason, and then identified Hansen as the individual. Hansen's termination,
however, did not occur until about a month after the colloquy between Verdicchio
and Sanchez, and it is thus evident that the latter could not have had it in mind in
making the remark in question to Verdicchio. The use of Hansen's name and termi-
nation were, I am convinced, a defensive improvisation by the witness. I note, also,
that on the subject of a plant shutdown, under direct examination, she quotes
Verdicchio as saying in identical language on two separate occasions that "they would
close the plant down if the union got in ." The sum of the matter is that although this
11 Verdicchio claims that she had heard Marcove say that the Company could "never
pay [$]1.90 for making sandwiches and if the union went through they would have to
close the place" If Marcove did in fact make such a remark, the basis for his as-
sumption that such a rate would be sought by the Union does not appear.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony finds some corroborative support in the evidence that Verdicchio, as well
as Sebeo, made statements of similar support to other employees, Sanchez' testimony
imputing remarks to Verdicchio with respect to a wage increase and a plant shutdown
is not, in my judgment, a more dependable basis for conclusions regarding these
matters than Verdicchio's, and thus I base no findings respecting them on Sanchez'
testimony.
I take a different view, however, of the relevant testimony of Vale and Hansen.
The version of each as to what Verdicchio told her is circumstantially detailed in
contrast to Verdicchio's self-contradictions and her claim that she told "the girls,"
who, except for Sanchez, are unidentified, that the Company could not afford to pay
an hourly rate of $1.90 to the sandwich crew and "would have to close if they
expected those kind of wages." Moreover, the remarks Vale and Hansen separately
impute to Verdicchio were of a piece with the statements made by her superior,
Sebeo, to Valdez, Trujillo, and Azel, and were, like Sebeo's remarks, I am persuaded,
the expression of a policy by the management of using the carrot of express or inti-
mated promises of wage benefits, and the stick of warnings of loss of employment as
a result of a plant shutdown or of a reduction in force, in order to wean the employees
away from support of the Union.
The sum of the matter is that I credit the relevant testimony of Vale and Hansen,
and find that the Company abridged the Section 7 rights of employees, thus violating
Section 8(a) (1) of the Act, as a result of each statement by Verdicchio on the subject
of increased wages, as set forth in the credited testimony; and of the supervisor's
statement to Hansen that in the event of unionization, the Company would go bank-
rupt and shut the plant, and that Hansen should consider her job. I find, too, against
background of the Company's other unfair labor practices, that it interfered with the
free exercise of Section 7 rights by the employees, thereby violating Section 8(a)( I),
as a result of Verdicchio's inquiry of the sandwich crew as to whether there had been
any contact between any of them and the Union; and of the interrogation of Sanchez,
and of the crew as a group, on the subject of attendance at a union meeting.122
D. The change in shift hours; the alleged discharge of Evelyn Boone,
Marie Vale, and Janice June Smith
For about a year prior to some point in March 1964, the sandwich crew's shift
started at 7 p.m., and they customarily worked until the completion of their duties,
usually at 2 or 3 a.m. From time to time during the period that these shift hours
were in effect, members of the Company's management, including Marcove, discussed
the subject of starting the sandwich crew's shift at an earlier time, and, in or about
September 1963, Sebeo asked the crew as a group if they "would come in earlier."
They declined and, so far as appears, the subject was not mentioned again to any of
the employees until the second week in March 1964.
During the course of the shift that began on March 10, Verdicchio informed the
sandwich crew at the plant that effective with the next shift their starting time would
be 3:30 p.m. The change went into effect on March 11, and was still in effect at
the time of the hearing in this proceeding. Since the change, the deliveries to Auto-
matic Catering's premises have been made about 9 or 9.30 p.m., leaving the Respond-
ent's plant about a half hour earlier. Also, the change in the sandwich crew's starting
time led, under circumstances that will presently appear, to the end of the employ-
ment of Vale, Boone, and Smith.
Vale, who entered the Company's employ in August 1962, requires a night shift
such as that then in effect because she has a handicapped child who needs special
care, and who she cannot feasibly leave until after an older child comes home from
school about 4:30 p.m. and is available to attend the younger one. Verdicchio has
been aware almost from the inception of Vale's employment that the latter has a
handicapped child who requires special attention. Learning of the projected hours
change on the night of March 10, Vale told Verdicchio that she would not be able to
report for work at the new time because of her child's situation.
12 Hansen quotes Verdicchio on the occasion of the February interrogation as also
telling the sandwich crew that the Company "would not have the union in ; before they
could consider the union they would close the door." I deem it unnecessary to determine
whether Verdicchio's account of what took place may be treated as a denial that she
made the foregoing remarks, nor do I make any findings regarding them, noting, in that
connection, that in view of the dates set forth in the complaint for alleged threats by
Verdicchio of a plant shutdown, it does not appear that the complaint alleges that the
claimed remarks violated Section 8(a) (1). Moreover, findings regarding them would
neither add to, nor detract from, the remedy to be recommended below.
FAB'S FAMOUS FOODS COMPANY 837
About 1:30 p.m., on March 11, Verdicchio telephoned Vale at the latter's home
and told her, in substance, that Sebeo had said that paychecks would be mailed to
those that were not "there at 3 o'clock" (or, in other words, as I construe the state-
ment, that members of the sandwich crew who did not report for work at the new
scheduled starting time would be terminated). Vale replied that if she were to be
laid off, Sebeo had "better have my check waiting for me when I come in." She then
telephoned the plant to ask Sebeo whether an exception could be made in her case,
but was told that he was not there. She telephoned again repeatedly during the next
2 hours, with the same result. She also made efforts, apparently that same afternoon,
to secure a "baby sitter," telephoning about four or five prospects, but was unable
to find anyone willing to attend a handicapped child. She did not call an agency;
testifying in that regard that she could not afford agency rates.
She spoke to Marcove on the telephone the next day and asked whether she would
be allowed to report at 4:30 or 5 p.m., and Marcove replied that he could not make
an exception because it would be unfair to the other sandwich employees, and they
would also seek a change. Vale has not worked for the Company since.
Boone and Smith are sisters. The former entered the Company's employ early in
January 1964, and her sister during the following month.
Boone is married and has young children. Her husband works during the day,
and when she entered the Company's employ she told Verdicchio that she had to work
on a night shift because she had no one at home with whom she could leave the chil-
dren until her husband, who worked during the day, came home.
Smith is 18 and unmarried, lives at some distance from her sister, and depended
upon the latter, who drove to work, for her transportation there. There was no public
transportation that Smith could take from the vicinity of her home to that of the
plant, and what she usually did was to use an available bus as far as a given bus stop
where her sister would meet her and then give her automobile transportation to the
plant. Her sister usually drove her home in the early morning hours after completion
of their work, although occasionally she would have a ride as far as Boone's house,
and somebody else (not clearly identified in the record) would drive her home from
there.13
According to Boone, as "several of the girls," including herself, were about to leave
the plant following completion of their work in the early morning of March 11,
Verdicchio told them that they were to report at 3.30 p.m. "from now on, at least
until this union thing was over." Hansen testified to much the same effect, stating
that as she was leaving Verdicchio told "us . . . that we were to report in at 3:30"
under a new time schedule; that members of the crew asked Verdicchio how long the
schedule would last; and that she replied that she did not know, and that she had
received the order for the new starting time "from the head office . . . and it would
continue until the union business was straightened out." According to Hansen,
"there were several that said they couldn't report that early." Verdicchio does not
expressly deny making the statements quoted by Boone and Hansen, but says that
the told members of the sandwich crew that the hours were changed because "we
were trying to get these sandwiches out." A determination whether Verdicchio
expressed herself to the effect imputed to her by Boone and Hansen will be made
at a later point.
Boone and her sister worked under the new schedule on March I1 and 12, but
Boone called Verdicchio early in the afternoon of March 13 and told the supervisor
that she would not work under the new reporting time because one of her children
usually came from from school about 3:30 p.m , using bus transportation, and she
did not wish to permit the child to walk alone from the bus stop to the house.
Verdicchio said that Boone's attitude was understandable, and that she "could not
continue herself" under the new schedule. According to Boone, during the course of
the conversation, Verdicchio remarked that "maybe it (the hours change) was his
way of getting the older girls to quit," and that the "old hours" would not be resumed
until the union thing was settled " In her testimony, Verdicchio denies, in substance,
that she discussed the hours' change with Boone individually, or made the quoted
remark about the "older girls." The credibility issue thus presented will be resolved
at a later point.
"According to Marcove, public bus transportation involving a change of buses is avail-
able between the area where Smith resides and a point close to the plant, but it is evident
from other testimony he gave that he does not in fact know about the availability of
such service "after 7.18 p m." or, in other words, for the period late at night when
Smith would be going home, whether under the new schedule or the old. I have based
findings as to the unavailability of adequate transportation on Smith's testimony, which
I credit.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither Boone nor Smith has worked for. the Company since March _12, and there
is no dispute that both discontinued their employment because of the change in hours.
Several days later, Verdicchio asked Hansen, who is married and has children,
whether she was going to quit also, and the latter replied in the negative, stating that
she would not do so " as long as I could get someone to look after my boys."
At the time of the decision to change the hours, Verdicchio was admittedly aware
that "a lot of these girls had baby sitting problems and other problems with young
children," her knowledge stemming , as she conceded, from disclosures made to her
by such employees when they began their employment.
Pointing to this evidence, the General Counsel maintains , in substance , that the
Company was aware that various of the women would find it difficult because of
domestic considerations to report for work at 3:30 p.m., and changed the reporting
time with a view to compelling them to quit and thus thwart the Union's organiza-
tional effort; and that Vale, Boone, and Smith did not quit voluntarily, but were
compelled to quit and thus were "constructively discharged."
The Company, on the other hand, disclaims any unlawful motive, contending, in
effect , that Vale, Boone, and Smith quit voluntarily. Much like Marcove, Sebeo
testified that a "problem" of late deliveries to Automatic Catering and the difficulty
of finding someone available solely for "a 2 to 21/2 hour job" making deliveries to
Automatic Catering in the vicinity of midnight or 1 a.m. led the management to
advance the sandwich crew's starting time to 3:30 p.m. To this, Sebeo added a claim
to the effect that the Company felt that "an early afternoon job" would make it easier
to recruit help for the sandwich crew.
Dealing first with the last of the alleged reasons, one may question the, accuracy of
the term "early afternoon job" as a description for work that begins at 3:30 p.m. and
ends about midnight, but, in any case, the claimed reason appears to me to be an
afterthought. Marcove, who testified before Sebeo, said nothing about it, although
describing at some length the management's alleged reasons for the hours' change.
It is noteworthy, too, that there is no concrete evidence that the midafternoon starting
time has in any way been a recruitment aid, and, what is more, it seems but common-
sense to believe that a reporting time so close to the end of the conventional school-
day would very likely be an impediment at least to the recruitment of women with
children of school age, especially if one takes into account the time such a woman
might need to travel from her home to work. Actually, there is not only a dearth of
evidence pointing to the reasonableness of a belief that the new starting time would
be an aid to recruitment, but the hard fact is that the hours' change had the effect of
discouraging three of the crew from continuing in their employment. I am convinced,
in sum, that the claim in question is nothing but a makeweight improvisation, and I
do not credit it.
As is evident from the Respondent's case, it places primary emphasis on the need
for timely deliveries to Automatic Catering in justifying the change in the sandwich
crew's hours, claiming in that regard, in substance, that late deliveries to Automatic
Catering frequently delayed two of that firm's drivers, Marvin Smith and Roland
Hodges, in starting on their routes and meeting their delivery schedules. Marcove
testified, in effect, that prior to the hours' change, the Company's deliveries to Auto-
matic Catering were made after midnight, "many times" between 2 and 2:30 a.m.,
resulting in a "problem" of delay for Smith and Hodges and in complaints from
vending machine "locations" they served. Sebeo, claiming in effect that the deliveries
to Automatic Catering were usually made between 1 and 1:30 am ,14 testified that
he had "complaints from the drivers," and that he "would say" Smith was one and
another was Hodges.
The Respondent also presented testimony by Smith and Hodges regarding the
deliveries to Automatic Catering. Smith stated that he usually reported for work
between I and 1:30 a.m., and that he would have to wait for arrival of the products
"probably once or twice a week . . anywhere from 20 minutes to an hour " Hodges
gave testimony to the effect that reporting for work about 2 a.m. in the period before
the sandwich crew's hours were changed, he would 'lave to wait for the arrival of the
products on Monday and Friday in most weeks
From the sense of the testimony of Marcove and Sebeo, it is apparent that they
make no claim of knowledge of frequent untimely deliveries to Automatic Catering
on the basis of personal observation there, but, rather, that the condition came to the
attention of the management as a result of complaints by Smith and Hodges, and
from vending machine "locations." The credibility of Smith and Hodges, and of the
testimony bearing on complaints, is thus of obvious importance.
14 Sebeo testified that he "would say" the products were picked up at the Company's
plant between 12.30 and 1 a.m. ; and that the driving time to Automatic Catering was
about 30 minutes.
FAB'S FAMOUS FOODS COMPANY 839
With that as a background , I find substantial earmarks of implausibility and
exaggeration , and much that does not hang together, in the testimony of the 'Respond-
ent's witnesses. If one is to believe Sebeo, the products generally arrived at Auto-
matic Catering between about 1 and 1:30 a.m., and Hodges was one of the most
regular ones ( drivers ) who used to complain"; but this does not quite jibe with testi-
mony by Hodges that his usual reporting time was approximtaely 3 a.m. until some
point in the latter part of 1963 or early in January 1964 (or in March 1964, as
Hodges also testified ) when it was changed to 2 a.m ., which has been his reporting
time since. Significantly, too, Sebeo's portrayal of Hodges as a "regular" complainant
to him is much at odds with Hodges' testimony that his complaints were made to
"Bill Tiggert and Allan Marcove." (Tiggert was supervisor of Automatic Catering's
drivers until his discharge in April 1964, and Allan Marcove is a brother of Gerald
Marcove, and active in the management of Automatic Catering.)
To compound the matter , Hodges' testimony contains such material self-contradic-
tion as to demonstrate either a materially faulty recollection or simply a disregard
for facts. The sense of his testimony is that with an accretion of business leading him
to move up his reporting time from 3 to 2 a.m., he experienced frequent delays in his
work because of late deliveries to Automatic Catering, but he all but swept the
underpinning of this claim away at one point when he was asked "how long" he has
been reporting at 2 a.m. and replied, "Since the change of sandwich deliveries was
set up" or, in other words, since the point in March when the Company, with the
change in the sandwich crew's hours, began to make the deliveries to Automatic
Catering about 9 p.m. This, of course, is utterly at variance with the Respondent's
claim that the change in the sandwich crew's hours was designed, in part, to eliminate
the "problem" of late deliveries encountered by Hodges when he changed his report-
ing time to 2 a.m. From my observation of Hodges' demeanor soon after he gave
the testimony just described, I have little doubt that he realized the contradiction to
which the testimony had led, for with some visible discomfort, in response to some
interrogation, he shifted his estimate of when he began to report at 2 a.m., stating,
"Oh, gee, it must must have been around January 1, 1964."
Singularly, too, having testified that the deliveries would be late twice in most
weeks, he subsequently proceeded to give testimony to the effect that the usual
delivery time was "(a)nywhere from 10 to midnight, I reckon," but shortly thereafter
he reverted to his prior claim, going so far as to say that the late deliveries would be
made "around 3.00 "
The conflict between Sebeo and Hodges regarding complaints is not all that is short
in the Respondent's case on the subject. Tiggert, who was called by the General
Counsel, gave testimony to the effect that he had had complaints from drivers regard-
ing late deliveries on only three or four occasions over a period of several years
preceding his termination in April 1964, and only one in the preceding 4 months; that
on the latter occasion, he looked into the matter and learned that the Respondent's
driver had been delayed because of illness; 15 and that two of the complaints came
from Smith and one from Hodges. Both drivers, who testified after Tiggert, do not
materially dispute the latter's testimony regarding complaints to him. Smith stated
that he complained to Tiggert "probably two or three different times," adding "I
found out it didn't do no good, so I just quit"; and testified at a subsequent point that
he "probably complained about every time it (later delivery) happened' to Allan
Marcove or Sebeo during "routine" calls to the Automatic Catering office while on
his delivery route. Hodges testified that he complained to Tiggert "a couple of times,
I think," but claims he told Allan Marcove "every time" the deliveries to Automatic
Catering were late
But Allan Marcove did not testify, and Hodges' claims of late deliveries are so
heavily burdened with self-contradiction and implausibility as to lead me to dis-
believe them. The obvious corollary of that is that his unsupported claim that he
complained to Allan Marcove "every time" (twice in most weeks, according to
Hodges) the deliveries were late is not a reliable basis for findings.
Nor am I able to repose any greater confidence in the claims of Gerald Marcove,
Sebeo, and Smith regarding late deliveries and complaints about them, although their
testimony appears to have, in varying degree, a smoother and more plausible cast
re In effect contradicting Gerald Dlarcove, who, as indicated earlier, testified that at the
time of Greene's termination and for some time prior thereto it was Carriger who made
the deliveries to Automatic Catering, Tiggert gave testimony to the effect that the
deliveries were made during that period by one Ed Shield (who, it is undisputed, had
been making them in a prior period, and has been doing so since the sandwich crew's
hours were changed). The conflict is subsidiary, and as its resolution would not, in my
judgment, materially aid a determination of any of the larger issues, I deem it unneces-
sary to resolve it
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than that of Hodges . As is evident , neither Smith nor Hodges ever complained to
Gerald Marcove about late deliveries , and there is no claim that any other driver
did. The sum of what there is in Marcove 's testimony regarding complaints is a
vague generalization that "the office would receive " complaints from drivers, and an
affirmation , in response to a leading question , that "Automatic Catering had received
(an) appreciable number of compliants from locations (not identified ) as to late
service." These generalizations , as well as the claims made by Smith and Sebeo,
break down in the light of a number of factors , apart from the clearly visible short-
comings in Hodges' testimony , and its conflict with that of Sebeo , previously
mentioned.
For one thing , as Marcove admitted , Automatic Catering is obligated to pay its
drivers for daily and weekly overtime hours, and there is no " appreciable difference"
between their earnings prior to the advance in the time of deliveries to Automatic
Catering , and what they have been since. The claims of frequent delays in Smith's
departure for his route do not, in my view, credibly fit with the evidence that his
earnings remained substantially constant . In that connection , I find quite uncon-
vincing Marcove 's plainly speculative generalization that late deliveries to Automatic
Catering would "not necessarily " delay Smith and Hodges in the completion of their
routes, because they "work a little faster and perhaps less efficiently with this loss
of starting time."
For another matter, Tiggert's testimony that he received only one complaint about
late deliveries in 1964 prior to his termination in April is undisputed , and taking into
account the fact of his discharge and the possibility that he may harbor resentment
against the Company , I nevertheless find credible , and accept , his testimony that over
a period of several years he received only three or four such complaints , for his evi-
dence in that regard finds substantial support in the testimony of the Respondent's
witnesses , Smith and Hodges. It does not seem plausible that so relatively few com-
plaints by drivers would be made to Tiggert if it were true, as Sebeo claims, that the
"problem" of untimely deliveries to Automatic Catering existed as far back as "the
first part . of 1963," although "minor" then , according to Sebeo; grew "bigger
and bigger" as 1963 progressed , leading to frequent discussions about the matter
during the year between Marcove and Sebeo; became serious in the fall of 1963; and
remained so until the sandwich crew's hours were changed . Moreover , the very fact
that the sandwich crew rejected Sebeo's request in September 1963 that they start at
an earlier time (not specified in the record ), and that nothing was done to change
their shift hours for some 6 or 7 months contributes weight to a conclusion that the
"problem" was far less serious than the Respondent would lead one to believe.
Summarizing the matter , a basic improbability runs through the Respondent's case
on the subject of the hours ' change, and that is that the common management of the
Company and Automatic Catering would permit a material impediment to the latter's
operations to exist for as long as 6 or 7 months , despite numerous and repeated com-
plaints by the drivers affected, when all that was required was what Marcove himself
termed the "relatively simple" correction of advancing the sandwich crew's hours. I
do not believe that businessmen such as Marcove and Sebeo appeared to me to be
would allow as serious a condition , such as they describe , to exist for long. On the
other hand, I have no doubt that there were some instances of late delivery to Auto-
matic Catering, as one may infer from the credible evidence that there were about
three or four complaints to Tiggert , and that Sebeo suggested an earlier starting time
in September 1963. The state of the record , reflecting as it does a lack of candor by
the Company on the subject of its deliveries to Automatic Catering , a matter of which
the Company obviously has special knowledge , precludes a reasonably sound approxi-
mation here of the volume or frequency of late deliveries ,16 but the factors discussed
above, including the shortcomings in the testimony of the Respondent 's witnesses on
the subject , the Company 's obvious acquiescence in the sandwich crew's rejection
of the September 1963 suggestion that the starting time be advanced , the substantial
constancy in the Automatic Catering drivers' earnings , and the small number of
complaints made by Smith and Hodges to Tiggert , lead me to conclude , and I find,
ie Tiggert testified that the deliveries were made about midnight, and "could vary as
much as an hour , I would say, from 11 :30 to 12:30 ." However, it is evident that he has
no first-hand knowledge that this was the usual practice , because, as he conceded, he
"seldom" began work before 1 a.m., and he frequently did not report to Automatic
Catering 's premises , but "went directly into the field" to attend to problems of the
route drivers under his supervision . I note , also, in passing , that Tiggert 's estimate of
the delivery time does not refer to a-period, not relevant here , when the sandwich crew
began work at 8 p .m.; and that It may be inferred from the record as a whole that
because of the nature and extent of Automatic Catering 's routes in that period , deliveries
to its premises as late as 2:30 a.m., or perhaps 3 a.m., were timely.
FAB'S FAMOUS FOODS COMPANY 841
that the late deliveries were relatively few and sporadic compared to the Respondent's
claims that its witnesses have greatly exaggerated the extent of untimely deliveries,
and that the "problem" as Marcove and Sebeo describe it did not exist.11 I am
persuaded, too, for reasons that follow below, that Marcove and Sebeo have resorted
to the claimed "problem" in order to give a gloss of legality to a decision to advance
the sandwich crew's reporting time for an unlawful end.
To begin with, whatever the extent of the "problem" of late deliveries, it existed
much before the Union came on the scene seeking an election; yet one may search
the record in vain for a plausible explanation why the change was made in March,
during the pendency of the representation proceeding, which could (and did) result
in the election sought, rather than, say, September 1963 when the sandwich crew
rejected the suggestion of an earlier start. The timing of the change gives support
to the General Counsel's position that it was put into effect with a view to compelling
some of the employees to quit in order to thwart the Union's organizational effort.
Moreover, even if one assumes, as Marcove claims, that deliveries were made to
Automatic Catering as late as 2:30 a.m., one may pertinently ask why the crew's
hours were advanced to 3.30 p m., a time that by rational standards would be likely
to create problems for women with children of school age, when a starting time of,
say, 4.30 p.m. (as Vale, in fact, suggested for herself) would have been reasonably
adequate to resolve the late delivery problem Marcove describes. The Respondent
does not plausibly explain its choice of 3:30 p.m. Sebeo's excuse that the Company
wished to convert the sandwich crew's work into an "early afternoon job" is not
entitled to credence, for reasons previously noted. Nor am I able to place any
greater reliance on his assertion that a factor in the decision to make the hours'
change was the difficulty of finding someone to make the deliveries to Automatic
Catering in the neighborhood of midnight or 1 a.m. Like so much of the Respond-
ent's case, this claim is entangled in implausibility and contradiction It first appears
in the case in Marcove's testimony, and, as described previously, is harnessed there
to an attempt to make it appear that Greene quit voluntarily by rejecting both the
"8-hour job" and the option of making the Automatic Catering deliveries, whereas
the evidence impels a conclusion that the Company had already decided to discharge
him, and that the offer of the task of making the deliveries was not made in good
faith. Moreover, Marcove's testimony would lead one to believe that the decision
to change the sandwich crew's hours had already been made at the time of his con-
versation with Greene on March 6, and, according to Marcove and Sebeo, it was
they who made the decision, but Verdicchio, on the other hand, testified that she
and Sebeo, although discussing the matter previously, decided on the change on
March 10, the day before it was put into effect. In short, the motives for the change
Marcove and Sebeo ascribe to themselves are so enveloped in a lack of candor that
I am unable to accept their descriptions of their motives or to find in them a credible
explanation for the selection of 3:30 p.m. Bearing in mind Verdicchio's admitted
knowledge of Vale's difficulty that "a lot" of the women in the crew had "baby sit-
ting problems," the very fact that the Company chose 3.30 as the new starting time
in the setting of the representation proceeding supports a conclusion, in the absence
of a credible explanation of the choice by the Respondent, that its purpose was to
induce some members of the crew to quit.
The direction of that purpose emerges in the evidence that Verdicchio told mem-
bers of the sandwich crew as they were about to leave the plant on the morning of
March 11 that they were to report at 3:30 p.m. "at least until this union thing is over,"
to quote Boone, or as Hansen, probably referring to the same statement, described it,
"until the union business was straightened out"; and that Verdicchio told Boone on
March 13 that "maybe it (the new starting time) was his way of getting the older
girls to quit," and that the "old hours" would not be resumed "until the union thing
was settled." Needless to say, this evidence should be approached with caution
because Boone and Hansen cannot be regarded as disinterested witnesses. More-
over, upon surface consideration, there could well be reason to doubt, if no more,
that a supervisor would blurt out the truth of a concealed motivation. However,
upon my observation of the witnesses concerned, I conclude that Boone and Han-
sen are telling the truth. Verdicchio appears to me to have an unusually naive
conception of labor-management relations, as evidenced by her resentment that the
crew did not confide in her regarding their attendance at a union meeting. It seems
17 Bearing in mind that the bakery products were prepared in the daytime, and that
Automatic Catering took only about 50 percent of the sandwich output, I note, in addi-
tion to what has been said, that the Respondent does not plausibly explain why the
sandwich crew, working a shift between 7 p in. and 2 or 3 am, could not hare had the
sandwiches intended for Automatic Catering ready in time for delivery there by midnight
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to me, also, that she views herself as something of a protective shepherdess in rela-
tion to the sandwich crew, manifesting the attitude , for example , when she prof-
fered the explanation for interrogating the crew about unionization that she did so
"after they [day-shift employees ] started blaming my girls " My impression of her
is that she would be quite capable of disclosing to her "girls ," in a somewhat maternal,
reassuring vein, without a full awareness of the possible consequences , that the
"union business " had caused a temporary change in hours. In addition , there is
much in her testimony on other material subjects, as already indicated, that I am
unable to credit . Taking all factors into account, I credit the relevant testimony of
Boone and Hansen.18
The Respondent takes the position that there is no evidence that it was aware of
any prounion activity or interest of any number of the sandwich crew at the time
of the hours ' change, and thus, so the argument runs, the record will not support a
finding that the Company had an antiunion motive for the change or violated the
Act as a consequence of the termination of the employment of Vale, Boone, and
Smith It is true that the record does not establish that the Company had knowl-
edge of the union activity or sentiment of any specific sandwich employee, but to say
that that precludes a finding that the management had an unlawful motive for the
change is to misconceive the direction of the evidence which, upon the basis of the
findings made above, amply warrants an inference that the underlying purpose of
the change in the crew 's starting time was to weight the Company's chances of pre-
venting selection of the Union as bargaining representative As matters stood on
March 11, the representation proceeding had been pending for almost a month, and
there can be no doubt that the Company had good reason to visualize at least the
possibility of an early election . The management , I am persuaded , believed or sus-
pected that the "older girls ," or some of them, were a focus of prounion sentiment,
and changed the starting time to 3:30 p.m. because it believed that that would incon-
venience "older girls" and induce them to quit ; and that their replacement by new
help would advance the Company's chances of preventing selection of the Union as
the employees ' bargaining representative . Verdicchio intimated as much to Boone
on March 13 when the supervisor said that "maybe it [the new starting time] was his
[Sebeo's , as I infer] way of getting the older girls to quit ." The conclusion that such
was the Company 's aim in no way hinges on proof of knowledge as to the union
activity or sentiment of any particular employee ; nor does it matter that Vale, as it
turned out , was the only "older girl" who was forced to quit. The Company must
accept responsibility for the consequences of the change, whether it affected "older
girls" or new ones such as Boone and Smith , and I have no doubt , and find, that the
change had the effect of forcing them to quit, and that this was as much as to dis-
charge them.
I find, in sum , that by changing the starting time of the sandwich crew to 3:30
p.m , and by thus causing the termination of the employment of Evelyn Boone, Marie
Vale, and Janice June Smith , the Company discriminated with respect to the terms,
conditions , and tenure of employment of employees in order to discourage member-
ship in the Union , thus violating Section 8 ( a)(3) of the Act ; and interfered with,
restrained , and coerced employees in the exercise of rights guaranteed them by Sec-
tion 7 of the Act, thereby violating Section 8 ( a)(1) of the statute.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(1) and ( 3) of the Act , I shall recommend below that it cease and
desist therefrom and take certain affirmative action designed to effectuate the poli-
cies of the Act.
Is Sanchez claims, and Verdicchio denies, that on the occn.ion of their private office
conversation , previously described , the supervisor said that the hours of the sandwich
crew "had been changed on account of the union " For reasons previously stated, I do
not regard Sanchez' version of that conversation of preponderant weight and base no
findings on it.
FAB'S FAMOUS FOODS COMPANY 843
Because of the nature , range, and scope of the unfair labor practices found above,
and in order to make effective the interdependent guarantees of Section 7 of the
Act, I shall recommend an order below which will have the effect of requiring the
Respondent to refrain in the future from abridging any of the rights guaranteed
employees by said Section 7.19
Having found that the Respondent has unlawfully discharged Stuart Greene, Marie
Vale, Janice June Smith , and Evelyn Boone in violation of Section 8(a) (3) and (1)
of the Act , I shall recommend that the Respondent offer each of these individuals
immediate and full reinstatement to his or her former or substantially equivalent
position ,20 without prejudice to his or her seniority and other rights and privileges,
and make such individual whole for any loss of pay he or she may have suffered by
reason of the said discharge by payment to such individual of a sum of money equal
to the amount of wages he or she would have earned , but for the discharge , between
the date thereof, as found above , and the date of a proper offer of reinstatement to
such individual as aforesaid , together with interest thereon at the rate of 6 percent
per annum ; and that the loss of pay and interest be computed in accordance with
the formula and method prescribed by the National Labor Relations Board in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing and Heating Co ., 138 NLRB
716, to which the parties hereto are expressly referred.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding , I make the following.
CONCLUSIONS OF LAW
I The said Company is, and has been at all material times, an employer within
the meaning of Section 2(2) of the Act.
2. The said Union is, and has been at all material times, a labor organization within
the meaning of Section 2(5) of the Act.
3. By discharging Stuart Greene , Marie Vale , Janice June Smith, and Evelyn
Boone, and by changing the starting time of employees , as found above, the said
Company has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (3) of the Act.
4. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act , as found above , the said Company
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 ( a) (1) of the Act.
5 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding, and pursuant to Section 10(c) of the National
Labor Relations Act , as amended , I recommend that the Respondent , Marbro Food
Service, Inc., d /b/a Fab's Famous Foods Company , its officers , agents, successors,
and assigns , shall
I Cease and desist from:
(a) Discouraging membership of any of its employees in International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , Local No.
537, or in any other labor organization , by discharging , or otherwise denying employ-
ment to, any employee, or in any other manner discriminating against an employee
in regard to his hire , tenure of employment , or any term or condition of employment.
(b) Threatening , warning, or otherwise informing any employee that it will dis-
continue any operation , go out of business , deny employment to any employee, or
withhold any wage increase , if employees choose or support a labor organization as
their bargaining representative , or engage in any union activity.
10 N LR B v Entwistle Mfg Co., 120 F . 2d 532 ( CA. 4); May Department Stores,
d/b/a Famous-Barr Company v N.L R B ., 326 US 376; Bethlehem Steel Company v.
A7.LRB , 120F 2d641 (CADC).
n In accordance with the Board ' s past interpretation , the expression "former or a
substantially equivalent position " is intended to mean "former position wherever possible,
but if such position Is no longer in existence , then to it substantially equivalent position."
The Chase National Bank of the City of New Poil, San Juan , Puerto Rico , Branch, 65
NLRB 827
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Interrogating any employee as to any employee 's interest in, or activity in,
with, or on behalf of, any labor organization , in a manner constituting interference,
restraint , or coercion in violation of Section 8(a) (1) of the Act.
(d) Offering or promising any employee any wage increase , or any other benefit
or reward , or any improvement in any term or condition of employment , in order
to influence any employee in the choice or rejection of a bargaining representative.
(e) In any other manner interfering with, restraining , or coercing employees in
the exercise of their right to self-organization , to form, join, or assist any labor organ-
ization, to bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining or other mutual
aid of protection , or to refrain from any or all such activities , except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section 8(a)(3) of the
Act.
2 Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Offer to Stuart Greene, Marie Vale , Janice June Smith , and Evelyn Boone
immediate and full reinstatement to their respective former or substantially equiva-
lent positions , without prejudice to their seniority and other rights and privileges, and
make each of them whole in the manner and according to the method set forth in
section V, above, entitled "The Remedy."
(b) Forthwith establish 7 p.m. as the starting time of all sandwich department
employees who were in the Company 's employ on March 10, 1964.
(c) Preserve , until compliance with any order for reinstatement or backpay made
by the National Labor Relations Board in this proceeding is effectuated , and, upon
request, make available to the Board and its agents , for examination and copying,
all payroll records , social security payment records, timecards , personnel records and
reports, and all other records relevant to a determination of the amount of backpay
due, and to reinstatement and related rights provided in such Order
(d) Post at its place of business in Denver, Colorado , copies of the said attached
notice marked "Appendix A." 21 Copies of said notice , to be furnished by the
Regional Director of Region 27 of the National Labor Relations Board, shall, after
being signed by a duly authorized representative of the Company, be posted by it
immediately upon receipt thereof , and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the said Company to
insure that said notices are not altered , defaced , or covered by any other material.
(e) Notify the said Regional Director, in writing , within 20 days from the date of
receipt of this Decision , what steps the Respondent has taken to comply therewith.22
(f) Notify each of the individuals required to be reinstated , as above, if such
individual is now serving in the Armed Forces of the United States, of his right to full
reinstatement , upon application , in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended , after discharge
from the Armed Forces.
-"In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner " in the said notice In the additional event that the Board 's Order
is enforced by a decree of a United States Court of Appeals , the words "a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"a Decision and Order "
22 In the event that this Recommended Order be adopted by the Board , paragraph 2(e)
thereof shall be modified to read. "Notify said Regional Director , in writing , within
10 days from the date of this Order , what steps the Respondent has taken to comply
therewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership of any of our employees in International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America,
Local No. 537 , or in any other labor organization by discharging or otherwise
denying employment to any employee , or in any other manner discriminating
AETNA BEARING COMPANY, ETC. 845
against any employee in regard to his hire, tenure of employment, or any term
or condition of employment, except as authorized by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL NOT threaten, warn, or otherwise inform any employee that we will
discontinue any operation, go out of business, deny employment to any employee,
or withhold any wage increase if employees choose or support a labor organiza-
tion as their bargaining representative, or engage in any union activity.
WE WILL NOT interrogate any employee as to any employee's interest in, or
activity in, with, or on behalf of, any labor organization, in a manner constitut-
ing interference, restraint, or coercion in violation of Section 8(a) (1) of the Act.
WE WILL NOT offer or promise any employee any wage increase, or any other
benefit or reward, or any improvement in any term or condition of employment,
in order to influence any employee in the choice or rejection of a bargaining
representative.
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees in the exercise of their right to self-organization, to form, join, or assist any
labor organization, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act.
THE starting time of all sandwich department employees who were in our
employ on March 10, 1964, is 7 p.m.
WE WILL offer Stuart Greene, Marie Vale, Janice June Smith, and Evelyn
Boone immediate and full reinstatement to their respective former or substan-
tially equivalent positions, without prejudice to their seniority and other rights
and privileges, and reimburse each of them for any loss of pay such individual
may have suffered by reason of the fact that we discriminated against such
person.
WE WILL notify any of the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Mili-
tary Training and Service Act of 1948, as amended, after discharge from the
Armed Forces.
MARBRO FOOD SERVICE, INC., d/b/a FAB'S FAMOUS FOODS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date of posting, and must not
be altered, defaced, or covered by any other material.
Information regarding the provisions of this notice and compliance with its provi-
sions may be secured from the Regional Office of the National Labor Relations
Board, 17th and Champa Streets, 609 Railway Exchange Building, Denver, Colorado,
Telephone No. 297-3551.
Aetna Bearing Company, a Textron Division and Local 151,
United Electrical , Radio and Machine Workers of America
(UE). Case No.13-CA-6253. May 25,1965
DECISION AND ORDER
On December 8, 1964, Trial Examiner W. Gerard Ryan issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
152 NLRB No. 85.