Fassetts Bakery

National Labor Relations Board - Board DecisionsJun 18, 1964

147 N.L.R.B. 515 (N.L.R.B. 1964)

FASSETTS BAKERY 515 MEMBER LEEDoM, dissenting in part: Because I adhere to my position in the dissenting opinion in Gale Products, Div. of Outboard Marine Corp., supra, :I would find, con- trary to my colleagues, that the Respondent Employer and the Re- spondent Union did not violate Section 8(a) (1) and 8(b) (1) (A) of the Act, respectively, by maintaining, in effect, a contract provision prohibiting the distribution of union literature during nonworking times and in nonworking areas. I would, therefore, dismiss these al- legations of the complaint. In view of the foregoing, I would also, unlike my colleagues, not find 8(a) (1) in the Respondent's maintain- ing, in effect, shop rule 23 relating to the distribution of literature. However, because shop rule 22 relates to solicitation which is not covered by the existing agreement, I join my colleagues in finding :8(a) (1) in the maintaining of that rule; and, like them, I would not require a remedial order in this respect since this rule was rescinded on October 23, 1963. CHAIRMAN MCCUI.LOCH took no part in the consideration of the -above Decision and Order. Estate of Nathan Gladstone d/b/a Fassetts Bakery and New England Joint Board , Retail, Wholesale and Department Store Union, AFL-CIO. Case No. 1-CA-4319. June 18, 1961 DECISION AND ORDER On March 30, 1964, Trial Examiner Laurence A. Knapp issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices .and recommending that it cease and desist therefrom and take affirm- ative action, as set forth in the attached Trial Examiner's Decision. 'Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings made by. the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in this case, and hereby-adopts the findings, conclusions, and recommendations of the Trial Examiner. 147.NLRB No. 54. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent, Estate of.Nathan Gladstone d/b/a Fassetts Bakery, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Ex- aminer's Recommended Order. TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE This case was heard before Trial Examiner Laurence A. Knapp at Burlington, Vermont, on January 8 and 9, 1964 ,1 pursuant to a charge, complaint, and' answer duly filed . At issue are ( 1) whether Respondent discharged an employee , Russell Wescott , for union activity , and (2 ) whether in this . and other ways Respondent in- terfered with , restrained , and coerced its employees in the exercise of their statutory right to engage in union activity . Upon the entire record,2 including my observa- tions of the witnesses , and after full consideration ' of the briefs of the parties, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT; AND THE UNION INVOLVED As alleged in the complaint and admitted in the answer, Respondent Estate of Nathan Gladstone (of which Ruth Gladstone is executrix and the Howard Bank and Arthur Gladstone are executors), owns and operates at Burlington, Vermont, a bakery enterprise known as Fassetts Bakery, which annually receives from points. outside Vermont raw materials having a value in excess of $50,000. In the conduct of this enterprise, Respondent is engaged in operations in commerce and affecting commerce within the meaning of Section 2(6) and (7) of the Act. Principal bakery goods made and distributed by Respondent are bread, doughnuts, muffins,. "toastees," etc. New England Joint Board, Retail, Wholesale and Department Store Union, AFL-- CIO, hereinafter sometimes called the "Union," is a labor organization within the. meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES Respondent's managerial staff consists of Ruth Gladstone as the chief executive,. Alman Atkins, coordinator of operations serving as a general assistant to Ruth Glad- stone, and Bertrand Gelinas, in charge of bakery goods production. There are no, other supervisors having managerial status intermediate Gelinas and the bakery production workers? These production employees numbered some 38 at the time of the hearing. In the fall of 1962 Gelinas selected Russell Wescott, an employee of several years'- service, for a "key man" role, namely, that of relief man for the departmental or product keymen (and apparently for nonkeymen as occasion requires) during their vacation periods and other absences. Gelinas and other witnesses for Respondent characterized Wescott as one of Respondent's best production men and it is clear that his selection by Gelinas for the relief position was an advancement flowing from this recognition of his talent. Wescott's period of training for the relief position ended about April 1, 1963,. whereupon Gelinas gave him a wage raise of 5 cents per hour, putting his hourly- wage at $1.50, and told him that he would receive another raise, unspecified in amount, in a matter of months. About June 1 Wescott requested a further wage 1 Unless otherwise noted all dates used hereinafter refer to 1963. 2 The "Motion To Amend Transcript" filed by counsel for the General Counsel, dated' January 27, 1964, to which Respondent has filed no opposition, Is hereby granted. 3 Included in the production employees are some five regular "key men" for certain product lines and a "night foreman," all of whom were permitted to vote in recent Board- supervised elections and who otherwise appear from the record to lack true supervisory- status or authority. FASSETTS BAKERY 517 raise from Gelinas, reminding Gelinas of the latter's April representation in this regard. Gelinas declined Wescott's request, telling Wescott to wait a while and not "to be boggy" or something to that effect. Dating from the time of this incident, as later detailed, there developed in Wescott's attitude toward Gelinas a coolness and uncordiality not previously existing. About July 1, what was a second effort to organize Respondent's employees into the Union was begun,4 this time at the initiative and under the leadership of Wescott. As his first step, Wescott arranged an appointment with Frank Dumas, Regional Di- rector of the Union for Vermont, at which he inquired when another election was feasible and sought other information of this general character. Dumas advised Wescott that an election was not possible under Board policies until about Novem- ber 1963, -but apart from offering such advice as this refrained from manifesting any active interest in another organizational effort. About 2 weeks later, around July 15, Wescott- arranged another meeting with Dumas, to which Wescott also brought,em- ployee Leonard Brown. At this meeting Wescott and Brown inquired in greater depth concerning the benefits which union membership or representation might yield, and concerning the signature of cards and other procedural steps. Dumas gave respon- sive information to these inquiries on this occasion. He did likewise, some 2 weeks later, to a larger group of some 8 to 9 interested employees whom Wescott and Brown had convened for this purpose at Brown's home. At a third such gathering about August 15, similarly convened but attended this time by some 10 to 12 in- terested employees, Dumas again performed in the advisory role he had occupied on the preceding occasions. Toward the end of this meeting, however, he was re- quested to take charge of an organizational campaign. Before responding, he re- minded the employees of the unsuccessful drive in 1962, but on a show of hands affirming the sincere organizing purpose of those in attendance, he agreed to "follow through" with them. About September 1 or 2, Wescott obtained some 35 to 36 union membership cards from Dumas; gave some 6 to Brown, and, as a result of employee solicitations -promptly- carried out by Wescott, Brown, and an employee named Leadbeater, some 32 employees signed cards which Wescott delivered to Dumas. This entire activity was completed in the space of a few days. Some of the employee solicitations took place at Respondent's plant. Dating from some point prior to the discharge of Wescott on September 18, the label "Russell Wescott-Leonard Brown Club" came into use among the employees to describe the union organization in process of crea- tion, and the movement's two leaders. About 8:40 on the evening of Wednesday, September 18 (the end of the weekly pay period) Gelinas discharged Wescott. Gelinas offered no explanation and Wescott demanded none until the next morning, at which time Gelinas listed to Wescott various reasons for his discharge. That afternoon Gelinas gave a some- what similar explanation to Dumas 5 Wescott's testimony was uncontradicted (save as I indicate otherwise) concern- ing the reasons given him by Gelinas and the circumstances surrounding his efforts to ascertain them. My corresponding findings follow. Gelinas had discharged Wescott on Wednesday night by way of telling him that he. would not be needed "one week from tonight" and that- when he came in for -his pay on the following Friday, he would receive a week's pay and his vacation pay.6 Because , Wescott testified, he was too shocked to think of anything to say he did not then ask Gelinas why he was being discharged. Before leaving the plant that evening he did, however, inform Dumas of his termination. Under the impres- sion that he was to work out his week's notice, Wescott reported at the plant the next morning, but about 9 a.m., an hour early, in order to query Gelinas. He sought Gelinas out and, telling Gelinas he had not understood him, asked Gelinas to repeat what he had said the previous evening, which Gelinas did. Wescott then asked Gelinas what was the reason for his discharge, but Gelinas declined to explain at that moment on the ground that he was too busy. Thereupon Wescott told Gelinas that since Gelinas would not tell him the reason he would see somebody else, and, accordingly, immediately sought and obtained an interview with Atkins. Atkins * An organizing effort put on by the Union in 1962 ended in a Board-conducted election which the Union lost. 5 Two or three' days later the Union filed with the Board an election petition and, on September 29 filed the charges in this case. The election was held on December 5, 1963, with the outcome not indicated in the record. o Wednesday, the day of the discharge, was the end of the weekly pay period with Friday apparently the payday. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disclaimed any knowledge of Wescott's discharge , expressed surprise on the ground that Gelinas had always characterized Wescott as one of his best men , and agreed to find out from Gelinas and inform Wescott why he had been discharged. While with Atkins, Wescott referred to a lot of "union talk going on at the plant and his doing a lot" of it, of which Atkins stated he was unaware. According to Atkins' direct testimony, a little later he called Gelinas to his office, asked him "what is the story" on the Wescott discharge, and was told that Wescott's disrespectful attitude and resulting disruption of morale was the reason. Later, however, while under cross-examination, and ensuing interrogation by the Examiner, Atkins stated that he had known since the preceding Monday that Wescott was to be discharged and what the reasons were. (In short, Atkins deliberately gave a false impression concerning his knowledge of the matter, both to Wescott and in his testimony on direct examination.) At 10 o'clock that morning Wescott started work as usual but Gelinas, coming by, told him this was not what he had had in mind . Wescott explained that he had endeavored to learn from Gelinas earlier that morning what Gelinas had meant. Gelinas then took Wescott into a nearby office where Wescott asked Gelinas what was the matter. Gelinas replied it's been "building up all summer" and when Wescott asked Gelinas what it was that he had done, Gelinas said, "You talk too much for one thing." Wescott then asked Gelinas what had he talked about, and Gelinas said,. "You know." Wescott asserted he did not know and pointed to the absence of any "signs" against talking, at which point Gelinas gave as an additional reason Wescott's. failure, on two different occasions, to come in to work in a relief capacity when requested to do so by the respective. employees seeking to be relieved. After Wescott offered some explanation and defended the propriety of his action in these instances, Gelinas then repeated that Wescott talked too much; that he had to let Wescott go; that "it is my job and I have to set an example." When Wescott asked what he meant by an example, Gelinas replied, "There are a couple of fellows I have to straighten out here," and, without identifying the "fellows," repeated that "it is just my job," that he had to do it. In response to Wescott's query as to what he was to do, Gelinas offered to give Wescott one of the "finest" recommendations, in writing or otherwise, and suggested that if Wescott came back in a month or so Gelinas might hire him back. Wescott then remarked about having a famliy to support, and Gelinas said, "Don't go away mad; let's shake hands and see what happens." Wescott shook Gelinas' hand and left. The foregoing findings are based upon the unoontradicted testimony of Wescott; Gelinas did not testify concerning what he told Wescott in this conversation. That same afternoon, in a meeting sought by Dumas of the Union, Gelinas gave substantially similar explanations to Dumas.? Respondent's Explanation of the Wescott Discharge at the Hearing Respondent contends that it discharged Wescott for good reasons about to be stated; and that no discriminatory cause could have been at work because it was not until September 19, the day after the discharge, that Gelinas (and Ruth Gladstone and Atkins) learned of the union activity of Wescott and the other employees. For reasons which will be apparent, Respondent's key witness was Gelinas, who testified that two rather different forms of misconduct by Wescott led him to his discharge decision. As his first basis, Gelinas testified that Wescott was "disrespectful" to him through- out the summer, that the result was to upset him emotionally and to disrupt the morale of the workers, and that he "had to let [Wescott] go" when he "could not take any more." Asked what Wescott did that was disrespectful, Gelinas referred to Wescott's "actions" and "attitude" and in the course of his subsequent testimony offered the following specifications: It seemed that if I talked to him he would always try to ignore me. Every time I would go by he started this famous "hurry" business and that went on all summer. A. He just, the way he talked when I asked him something; just the way he answered to me and time and again and this made me think that he was not satisfied withhis work and that he was not pleased with his owrk [work] and I ° Other developments at or surrounding the meeting with Dumas are dealt with later in this Decision. FASSETTS BAKERY 519 was trying to be nice to him, trying to make conversation with him which he didn't seem to want to make conversation with me. I tried to talk to him. He would just say yes or no and move away from me and I was quite disturbed because I had duties to perfomr [perform] and it seemed to hurt me in my work, * * * * * * * ... his remarks that he would make as I went by. Laying aside Wescott's "remarks" as Gelinas went by (the "hurry" expression Gelinas referred to and with which I deal below), it is clear that what Gelinas had in mind in characterizing Wescott as "disrespectful" was a change in Wescott's dis- position toward Gelinas. Wescott and other employees also testified on this subject and the net result of their testimony and that of Gelinas, reasonably construed, is that, dating from Gelinas' refusal to grant Wescott a wage increase in June,. there appeared in Wescott's attitudinal reaction toward Gelinas when they were in each other's presence, elements of coolness and unresponsiveness-an uncordiality-not theretofore present. To make my finding on this delicate matter as clear and precise as words at my command permit, it should be pointed out that, on the evidence be- fore me, there were no insulting, intemperate, offensive, or insubordinate remarks or actions by Wescott toward Gelinas, or about him to anyone else at any time. The quality of shading in Wescott's change of attitude was more delicate, resembling rather the displeasure, unspoken but nevertheless negatively manifested, of one believing himself wronged .8 Nevertheless, Wescott was not totally uncommunicative or unfriendly. There were occasions, as I find, when he greeted Gelinas and Gelinas did not respond, as well as vice versa. The net of this situation, as I read all the evidence arid observed the two personalities while testifying on this matter, is that both acted like two sulky children, with Wescott having started the process and Gelinas, in turn, following suit. I turn now to the particular remarks of Wescott-the "hurry, hurry business" mentioned in Gelinas' testimony set forth above. An understanding of this matter requires a review of the fuller and clarifying evidence found in the earlier testimony of employee witnesses called by counsel for the General Counsel, to which Gelinas was alluding elliptically in his brief testimonial to this "'hurry' business." Sometime about midsummer of 1963 it became established that Respondent's employees (under some law not identified as the record) were entitled to time and one-half for weekly hours worked in excess of 44, whereupon Respondent had re- duced the regular working hours from 48 to 44. As a result of this overtime develop- ment, there arose an expression "hurry, hurry" which, with variations,9 various employees were wont to call out from time to time while at work. From the entire body of employee evidence on this matter it is clear that whatever had been the connective link between this expression and the overtime matter was soon lost; that the expression, as its use continued, was one the employees had settled on as suitable for mere exuberant "kidding" and "joking" among themselves; that they voiced the expression indiscriminately whether Gelinas was absent or present; that it did not reflect criticism or disparagement of Respondent or Gelinas; that Wescott was only one of a goodly number of employees who were accustomed to voice it; that it was still being used at the time of the hearing; and that neither Gelinas nor any other official of Respondent ever complained about or sought to stop use of the expression. Moreover, during Gelinas' cross-examination and later question- ing by the Examiner, it developed that after the expression came into use he had, suspecting that the expression was somehow aimed at him, asked various employees what it meant, had been told that it was only a "kidding" expression, and had been disabused of the idea that it was an invidious expression of which he was the butt. As the other main basis for his discharge of Wescott, Gelinas referred to two occasions of alleged failure on Wescott's part to fulfill • requests that he come in for relief duty; once about the first of April and the other somewhat earlier. But in any rational view these incidents could not have genuinely formed any basis whatever for Gelinas' determination to discharge Wescott. They were remote in time; they occurred 2 months or more before June, from which time Gelinas dated his basic 8 What I am endeavoring accurately to express is suggested by the testimony of em- ployee Burns that "you could pretty-near see" the "feeling". prevailing between Wescott and Gelinas , and that of employee Burke that he assumed some "feeling" was there. 9 "Hurry up,11 '144 hours," "better days are coming," "hurry up, you'll go faster," were among these variations. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "trouble" with Wescott; Gelinas issued no reprimand to Wescott when they occurred; and Gelinas definitively installed Wescott in the superior , relief position , with a wage raise, simultaneously with one of these incidents and after the other.10 In addition to its main witness, Gelinas, Respondent adduced evidence from Ruth Gladstone concerning Wescott's discharge. Ruth Gladstone testified that Gelinas complained to her in May that something was the matter with Wescott, and that Gelinas came to her upon many occasions in June, July, and August complaining of Wescott's behavior and that it was affecting his health, his sleep, and his control of the employees ; and that when she suggested early in the summer that Gelinas -discharge Wescott, Gelinas declined for the reason (as Gelinas also testified) that Wescott , as relief man, had to be kept on until the vacations were over and because of the possibility that during this period Wescott might change for the better. How- ever, on Monday, September 16, she testified Gelinas came to her and, advising her that he could "not take it any more," proposed (subject to her concurrence, which she gave) that he discharge Wescott on Wednesday, the end of a pay period, even though the vacations .were not over. She approved of Gelinas' proposal.11 On cross-examination , Ruth Gladstone described the employee "morale problem" -created by Wescott's conduct during the summer as having reached "very serious pro- portions," but testified that she never talked the matter over with Wescott, or proposed to Gelinas that he do so , at any time. In this same connection, Gelinas explained his failure ever to caution Wescott or even to speak to him regarding his misbehavior on the ground that he feared any such initiative on his part would merely aggravate Wescott into leaving, a risk he did not wish to run in view of his continuing dependence on Wescott for "vacations " relief assignments . But as Ruth Gladstone testified and I find, .Gelinas discharged Wescott before this "vacations" period was over.12 On the question of Respondent 's knowledge of the union organizing -activity of Wescott and the employees generally, Respondent's proof, offered by the testimony -of Gelinas, Atkins, and Ruth Gladstone, is that their first information on this subject reached them on the morning of September 19, through Wescott's volunteered state- ment to Atkins that there had been a lot of union.talk going on among the employees at the plant and that he had done much of it. Gelinas who proposed, and Ruth -Gladstone who concurred in, the decision to discharge Wescott testified that union activity had nothing to do with Wescott's discharge, and at no time made any con- trary direct admission. On these basic and.dominant fact issues, I -turn to a con- sideration of the evidence offered-by the General Counsel. 10 Gelinas did not claim that Wescott's conduct on these occasions constituted dis- obedience or dereliction of duty. Rather , in his discussion with Dumas , he cited them only as instances when Wescott was "noncooperative." I might also point out that Wescott testified, without contradiction, that he had already completed regular shift assignments when called by the corresponding employees who sought relief , and that Gelinas had instructed him during this period that he would be notified by Gelinas him- self when he was to assume particular relief assignments and that he should not do what other employees requested , whereas in each,of the two instances Gelinas cited , the calls to Wescott had come directly'from other employees. Moreover, Wescott apparently came in, albeit 45 minutes late , on one occasion. In the other , occurring at about 5 a.m. when Mrs. Wescott was at work, Wescott had no one available to stay with his small children, an explanation which he made at the time to the calling employee who, in turn , passed it -on to Gelinas. u In the course of her testimony , Ruth Gladstone described an occasion upon which Wescott made remarks she regarded in the surrounding circumstances as manifesting dis- respect for Gelinas (who was not present). But since Gelinas made no reference what- ever to this incident , I regard Ruth Gladstone 's reference to it as in the nature-of a "make weight" one. I, 'therefore, do not' assess her testimony and the quite different version 'Wescott gave of this incident on rebuttal. rs It is appropriate to find at this juncture also, as I do, that there is nothing to indicate any change, intensification, added momentum, or other variation in Wescott's attitude or -conduct vis-a-vis Gelinas which created any mounting crescendo reaching a peak in Sep- tember insofar as some of the testimony of Gelinas or Ruth Gladstone might be susceptible -of a contrary interpretation. On the contrary, the main thrust of their testimony is that Wescott posed the same problem for the same reasons from about the first of June onward. Furthermore, no evidence specific in character teas offered showing any deterioration -in -employee morale or in what way or degree Gelinas' health suffered. FASSETTS BAKERY 521 General Counsel 's Evidence and Respondent 's Testimony Responsive Thereto Through evidence concerning a chain of events and circumstances involving Gelinas, counsel for the General Counsel sought to establish Respondent 's prior knowledge of the union activities of Wescott and the other employees , and a con- comitant antiunion reaction of Gelinas . The corresponding testimony of these wit- nesses, and that of Gelinas in response , will now be summarized . John Leadbeater, one of Respondent's "key men" and an employee for some 10 years , testified that in a conversation he 'had with Gelinas a few days before Labor Day, Gelinas said Wescott was no longer friendly, asked Leadbeater what was wrong with Wescott, and added that he thought Wescott was "cooking up something." On his direct and initially during his cross-examination , Gelinas denied having discussed Wescott with Leadbeater , but promptly reversed himself during the pertinent cross-examination to admit that he had asked Leadbeater on some occasion what was wrong with Wescott.13 On a subsequent occasion about 1 to 2 weeks prior to Wescott's discharge , Gelinas left Leadbeater in an angry mood after overruling Leadbeater 's expressed concern that the dough he was processing ( the texture of which was Gelinas ' responsibility) was too soft . On what employee Burns fixes as about the same day, Burns testified that Gelinas came up "shook up and mad," and told Burns he was having trouble with Leadbeater , that Leadbeater was giving him a rough time, that there was nothing wrong with the dough, that "John Leadbeater must belong to the Russell Wescott-Leonard Brown Club." With Burns saying nothing, Gelinas then left. Gelinas was not interrogated concerning this conversation during his direct examina- tion . During cross-examination , he denied that he had used the word "club" as Burns had testified. Douglas Burke, a keyman , testified to a conversation he had with Gelinas about 6 a.m. of the day upon which, in the evening, Gelinas discharged Wescott. Ac- cording to Burke, Gelinas called him from his work into the locker room and said he had to make a change , that he could not put up with "this business" any longer, that he saw no other way to straighten out "this business ," that he hated to let Wescott go because Wescott was one of the best employees he had , and that he did not know why things had gone the way they had that summer. Then, according to Burke, Gelinas added that Wescott had been causing a lot of trouble and asked Burke "You know what I mean?" In response to this query , Burke replied , "I have been approached . Some of the boys don't trust me this summer and due to what hap- pened in the '62 election I don 't think the office trusts me. I think so far as I am concerned to hell with all of them." Following this response from Burke , Gelinas did not assert that Burke had misunderstood him. Rather , he kept repeating what he had previously said to Burke, who , in leaving to return to work, told Gelinas if "that" was what he thought he had to do then "that is what he had to do." On direct examination , Gelinas was not questioned ' concerning Burke's testimony con- cerning this incident but was merely asked whether he had had any discussions with Burke concerning Burke's union activities (about which there had been no previous testimony ), which he denied . During , his cross-examination , however, Gelinas admitted having had the locker-room conversation with Burke but asserted that it did not pertain in any way to union activities or to Wescott. On the day after Wescott's discharge , an employee named Whalon requested Gelinas to drive him to _ the plant, which Gelinas did, the drive taking place around 11:20 to 11 : 35 a.m. While en route , according to Whalon , Gelinas said that "this shit" going on at the bakery was "no good for the company ," that Whalon would be a keyman and that it would be no good for ' him, that the employees would no longer be dealing directly . with the company officials, that Ruth Gladstone could have closed the plant when her husband had died, that .if "they" (which Whalon took to mean "the union" ) let Whalon's brother-in -law Rooney go, Rooney , a bachelor, had nothing to lose but if "they" let Whalon go, Whalon had a lot to lose as a family man. In ending his remarks , according to Whalon , Gelinas told Whalon not to say anything to anybody because he, Gelinas , was not supposed to talk to Whalon. On direct examination , Gelinas was merely asked whether he had sought to "influence Whalon ," which he denied . In his cross -examination , he admitted having had this conversation with Whalon and that it dealt with the Union , that he had asked Whalon whether he knew about the employees organizing , and that when Whalon said he- knew, he told Whalon to take his pick , it was his privilege : Then, somewhat con- 13 The question put to Gelinas Was what his discussion with Leadbeater was about, a. question he did not answer. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tradictorily, he testified he thought that Whalon had brought the union subject up and that this was why he had told Whalon he was not supposed to be talking about the Union. Employee Burke testified that about a week after his locker-room conversation with Gelinas, that is, about September 25, Gelinas stopped by and said: "Doug, you don't know what I'm going through. The office blames me for the whole business. They boys are all against me," and then added "I don't know who doesn't belong to the club." Gelinas was not questioned on direct regarding this testimony. On cross, he contradicted, albeit somewhat qualifiedly, Burke's testimony that he had }made a reference to the "club." 14 Employee Floyd Martel testified that about October 1, Gelinas approached him at his work and said, "You know that if this thing:-goes through you and Walter will lose a lot of hours. . . I hope and pray it doesn't, I will keep my fingers crossed." He then stated that the only ones who would gain any advantage were young employees recently employed, and as he left declared to Martel: "This whole thing was started by a couple of soreheads." 15 On his direct examination, Gelinas was merely asked whether he had talked to Martel concerning the "union election," or had attempted to influence Martel in that regard, which he denied. On cross- -examination, Gelinas confirmed having had "this" conversation with Martel, and, while unable to recall what it was about, nevertheless denied that it was about the Union, or about the employees' organizational movement, or about the prospective election. On about October 12, a Saturday, Harold Daudelin, an employee of some 14 years' service, went to see Gelinas at his home, at Gelinas' previous request. The -following occurred according to Daudelin. Gelinas took Daudelin to a downstairs room equipped with a bar where, following the early departure of Mrs. Gelinas, they became alone in the house. Gelinas opened up the conversation by saying that "this thing" about Wescott had come up, that "it" had struck him so hard that he did not know what to do with himself, that he had-to fight back and did not know how to do it, and, somewhere in these remarks, that he had had to get rid of Wescott. Gelinas then produced 'a list of employees eligible to vote in an election, put a $100 bill on the bar, and said, "this business" or "this thing coming in" was no good, and that there would be a loss of men, hours, and wages because the Company would have to cut down on hours and "all the extra help." Gelinas then went through the entire employee list he had produced. He identified those he was sure of, and asked Daudelin to speak to others Gelinas identified by name as ones he was not sure of and -talk them out of it. Gelinas stated that maybe if Daudelin -could help, Ruth Gladstone would give him more money (a 25-cent raise) and 'invited Daudelin, successively, to feel the $100 bill and to put it in his pocket and -do with it what he wished. In the course of the conversation, Gelinas, who con- tinually referred to employees as "for" or "against" the Company, also said that as to "those employees" or "these people" who are against us, we always find means and ways of getting rid of them sooner or later." Daudelin gave Gelinas no assur- ances of help, refused to take any money, and left.16 Gelinas testified at length concerning this incident. On direct, in denying that he "went to" Daudelin and in asserting (without further explanation) that Daudelin "come to the house," he left an implication that Daudelin, rather than he, had initiated their get-together; he did not "believe" he had discussed "any union activity" with Daudelin and denied that he had sought to influence Daudelin to vote for or against the union; and then, when asked to describe the incident, stated that "we talk[ed] about the union," that he told Daudelin "sometimes people give money away to have somebody do something for them but I am not going to do that. I want to talk to you man to man. I want to know what is going on." Further on direct, he admitted that he produced the employee list and discussed with Daudelin how some of the employees listed would vote, making corresponding marks on the list, but denied making any attempt to influence Daudelin's decision. Also on direct, he denied that he offered Daudelin a $100 bill. On cross-examination. Gelinas admitted that he "called" Daudelin "in" because he wanted to "know what was going on," that the discussion dealt with "union "Asked If Burke was telling the truth in his testimony, Gelinas (who had previously denied using the word "club") first responded "no" and later "I don't believe he was." 18 In regard to the word "couple" so attributed to Gelinas, it was in fact, as previously found, a couple of employees-Wescott and Brown-who took the primary lead in the organizing movement. 1O Daudelin further testified, without contradiction, that 2 days after this conversation at Gelinas' house, Gelinas approached Daudelin at work and said , "I'm sorry . • •. I lost my head last Saturday when I saw you." FASSETTS BAKERY 523 matters," that he went down the employee list with Daudelin, and that he had a $100 bill in his pocket but did not produce it. Under further interrogation by the Examiner Gelinas was unable to explain where and when he obtained the $100 bill ,and how long he had been carrying it around. In the course of his unenlightening responses, he ventured the possibility that the bill was part of the Christmas club .payout he had received, but this possibility vanished when it appeared that he re- ceived the Christmas club money in November. Concluding Analysis and Findings Relative to the Discharge of Wescott The shape of this case is such as to call for disposition at the outset of the question, purely factual in character, whether Gelinas did or did not know of Wescott's union -activities at the time he discharged him. If he did not, the General Counsel's case on this charge of the complaint must fall. If he did, and I thus become obliged to -discredit his testimony on so important a point, then, with this key defense collapsing and Gelinas' credibility thereby rendered severely impugned, Respondent's entire case .respecting Wescott's discharge, which rests in all essential respects on the testimony ,of Gelinas, becomes gravely suspect. The testimony of employees Leadbeater, Bums, Burke, Whalon, and Daudelin concerning Gelinas' conversations with and remarks to them in the days closely preceding and following Wescott's discharge suffices, if believed, to show that Gelinas •discharged Wescott, not only with knowledge of Wescott's union activities, but be- cause of them. In the light of the sort of responsive testimony Gelinas gave after -these employees had given their accounts, their-testimony is or must be considered to be uncontradicted in essential particulars, and, indeed, in considerable degree con- -firmed. Hence, with important conflicts of testimony absent, no occasion presents itself on this score to question the employees' credibility. Moreover, I observed with care .the employees and Gelinas while they were testifying, and was impressed favorably by the demeanor of the employee witnesses, while unfavorably impressed by that of Gelinas, particularly in the sense that Gelinas appeared to be testifying under some emotional strain and tension not evidenced by the employee witnesses.17 Finally, while Gelinas testified many times, in more or less generalized terms, that .be had in no way attempted to influence any of the employees and had otherwise complied with instructions he had received to steer clear of any interference with -employee union activity, the credibility of these broad pro meas was taxed to the breaking point by the number of gravely incriminating statements and conduct he either did not or could not, in the main, refute. Accordingly, I credit the testimony of the employee witnesses summarized above and, in connection with Wescott's discharge, find that (1) a few days before Labor Day Gelinas told Leadbeater that he thought Wescott was "cooking something up," a remark Gelinas did not deny making, (2) a week or so prior to Wescott's discharge, . Gelinas, angered by what he considered Leadbeater's unjustified criticism of him, ascribed to Leadbeater membership in the "Russell Wescott-Leonard Brown Club," a term which the evidence shows, and I find, could only refer and did refer to the budding union organization and to its two initiating employee leaders, (3) on the day of and prior to Wescott's discharge, Gelinas (in effect but not in so many words) told employee Burke that he was going to discharge Wescott because of his union activity,ia (4) on the morning following Wescott's discharge, and only an hour or so after his explanatory conversation with Wescott, Gelinas -referred to the employees' ,organizing activity as this "shit" going on in the bakery, (5) a week subsequent to Wescott's discharge Gelinas, in depicting to Burke the unhappy position this "busi- ness" had put him in with the "office" on the one hand and "the boys" on the other, declared to Burke that he did not know what employees did not "belong to the club," ,obviously meaning the Union, (6) about October 1 Gelinas told employee Martel that this "thing," meaning the Union, was started by "a couple of soreheads," thereby 17 I attribute to the distracting effects such strain can produce in a -witness, the fact that on two occasions in succession Gelinas gave, unintentionally I am sure, incriminating answers to questions put to him by Respondent's counsel which, upon counsel's exclama- tions of dubiety, Gelinas then corrected. 33 That Gelinas meant the union activity among the employees in using the term "this business" to describe to Burke the "trouble" he was going to straighten out by discharging Wescott, is clear from Burke's responses concerning the Union .and related matters when Gelinas. presumably concerned lest his masked terminology confuse Burke, asked Burke "You know what I mean?" As previously noted, Gelinas (not on direct but on cross-examination) denied that this conversation dealt with union activities or Wescott. But he did not testify either on direct or cross as to what it did pertain to. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pointing as his earlier statements and the evidence generally indicate , to Wescott for certain and to Brown most probably,19 and (7 ) on October 12, in a lengthy session with Daudelin, Gelinas clearly implied to Daudelin that he • had discharged Wescott because of his union activities . It is true that, in telling Daudelin that he had "had to get rid of Wescott," Gelinas did not say why. But his unspoken antiunion motivation , I find , was implicit when he opened the conversation , arranged by him and devoted entirely to his declared antiunion feelings and determination to "fight back," with the remark that "this thing" about Wescott "had come up." "This thing," "this business ," and the like were the pet phrases Gelinas had used all along as he described the union organizing movement among the employees . See Angwell Curtain Company, Incorporated, 192 F. 2d 899, 903 (C.A. 7). 20 Gelinas ' remarks to Burns and to Burke are sufficient to establish his predischarge knowledge of the union movement and Wescott 's prominence in it. While these findings thus dispose of this issue, I further find that such predischarge knowledge was manifested by Gelinas in the explanation he later gave to Daudelin as to his motivation in dis- charging Wescott ; through some remarks considered in the light of the surrounding circumstances , which Gelinas made to Dumas on the afternoon following Wescott's discharge ; 21 and by certain other of Gelinas ' postdischarge remarks strongly sug- gestive of his predischarge knowledge.22 The employee evidence I have credited on the issue of knowledge is replete with proof of Gelinas ' strong antiunion motivation , including as I have found , Gelinas' revelation to Burke that he had decided to discharge Wescott on this account. In the circumstances I find that Gelinas was motivated by antiunion considerations in discharging Wescott, and that Respondent thereby violated - Section 8(a) (3) and 8(a)(1) of theAct2$ 19 Gelinas' certainty that this conversation did not deal in any way with the union matter stands in strange contrast to his inability to remember what its subject was and cannot overcome the force of Martel's otherwise uncontradicted testimony. 1 After the November 1962 election Gelinas told employee Leadbeater that he would do something to "stop it" if the union matter reared its head again. While in different cir- cumstances such a remote remark might have little probative value, the facts of this case show that be had ' not been shaken from this earlier held position by any instruction he had received, then or' later, to steer clear of any such employee activity. 21 In prolonged conference with Union Representative Dumas concerning the Wescott discharge, Gelinas admitted, as I read Dumas' (uneon tradicted) testimony, that he was aware of the considerable talk going on among the employees at the plant during the organizing period, but did not know what the talk was about. However, this is a small plant with a relative handful of employees ; various of them had served with Gelinas for a good many years ; Gelinas' relationships with them were on what might be called a first-name basis ; and he was in constant contact with them and had them under constant observation in the daily performance of his supervisory work. In these circumstances an entirely reasonable inference arises that the organizing movement came to Gelinas' atten- tion in one way or another in the appreciable period it was underway prior to Wescott's discharge. See N.L.R.B. v. Abbott Worsted Mills, Inc., 127 F. 2d.438, 440 (C.A. 1). 22'When about 11:30 a.m. on September 19, Gelinas described to Whalon this "shit" going-on among the employees, he was then returning to the plant after a visit to his home. Hence, only a relatively brief time had elapsed between his alleged initial informa- tion from Atkins (not earlier than about 9:30 a.m, that morning) about the "union talk" Wescott had mentioned to Atkins, and his conversation with Whalon, and he had spent part of this time at home. In the circumstances, Gelinas scarcely could have been able in this brief interval to verify, if verification was necessary for him, whether what Wescott had told Atkins was true. Hence, in treating the prevalence of this "slit" going on as a fact definitely known to him when he deplored it to Whalon, he either had un- questioningly accepted Atkins' allegedly hearsay report as true, or he had previously known the facts. The latter is far more in line with the probabilities. And his oblique reference on October 1 to Wescott, as one of the two "soreheads" re- sponsible for his troubles, conforms to his predischarge characterizations of Wescott in the :same troublemaking terms, a circumstance suggesting that his ,nowledge concerning the identity of the two "soreheads" predated Wescott's discharge. I thus consider the nondiscriminatory reasons Gelinas assigned for the discharge as pretexts, a conclusion fortified by Gelinas' offer to give Wescott the "finest recommenda- tion" and his suggestion that he might rehire Wescott soon. But assuming that his re- sentment over Wescott's "disrespectful" attitude and conduct (as I have previously de- fined it) entered into his decision, most certainly his antiunion objective did also. That a discharge rested on a compound of lawful and unlawful causes is discriminatory and violates the Act is too well-settled to require citation of authority. FASSETTS BAKERY 525 Concluding Findings Concerning the Independent-Section 8(a) (1) Violations Alleged The complaint-al - leges that apart from Wescott's .discharge, Respondent violated the rights of its employees to .freedom in self-organization as guaranteed in Section 7 ,of-the Act through-the,following^conduct-of Gelinas: 1. An implication in Gelinas' remarks Ito employee Burke on -September 18 that he had to discharge Wescott -because of :the latter's union activities. I have found that this, and more, was the true -purport and intent of Gelinas' remarks on this occasion. A declaration of purpose to discharge an employee,for union activities is the plainest form of restraint and coercion prohibited by the ,Act. Respondent violated Section 8(a)( I) in-this instance. 2. Gelinas'-remark to -employee Martel about October 1, that he and another employee would lose "a lot of hours if this thing" goes through. .I find that -this statement -was made and that the .eventuality Gelinas meant ;was the Union's designation by a -majority of the employees. Denominating a loss.of work as the result of the-exercise of Section 7 rights is an unlawful threat, warning, or caution violative of Section,8(a)(1) .absent=exceptional circumstances not present in.this case. Accordingly, I find this conduct violative of Section 8(a)(1). 3. Gelinas' statement to Daudelin on October 12, with reference to "this thing coming in," that,the "Company would-have to cut down on hours." I''find'thaf Gelinas made this statement, and for the reasons above stated it was.,a form of threatened loss of work violative of Section 8 (a) (1).24 III. THE REMEDY The unfair labor practices found above call, for the customary cease and desist order, which in the light of Respondent's strong reaction, through Gelinas, to ,the exercise by its employees of their Section 7 rights should be broad enough to en- compass any further interference with-those rights. Affirmatively •I shall recommend that Respondent be required to offer to reinstate Russell Wescott and ;make him whole according to -the formula set forth.in -F. W. Woolworth Company, .90 NLRB 289, Isis ,Plumbing & Heating Co., 138 NLRB 716, and also that Respondent post an appropriate notice: CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section'7 of the Act, as.found above, Respondent-has engaged in unfair labor practices within the meaning of :Section 8(a) (1) of the Act. 2. By discharging Russell Wescott under the circumstances found -above, -Re- spondent has engaged in unfair labor ;practices within the meaning of Section 8(a) (3) and (1) of the Act. .RECOMMENDED ;ORDER On the foregoing findings of fact-and-conclusions of law, and.on the record as a whole, I recommend, pursuant -to 'Section 10(c)-of--the Act, that the Respondent, Estate of Nathan Gladstone d/b/a Fassetts Bakery, :its officers, agents, successors, and assigns ,:shall: . 1. Cease.and.desist;from: (a) Threatening any reduction of working time with respect to the activities of.any of its employees in, or on behalf of, any labor organization. (b) Discriminating •against,any_en}ployee-because of-activity -in,- or-on-behalf.of, any labor organization. (c) In any other manner interfering with, restraining, or coercing-any employee in the exercise of his right to engage in union activity or in concerted activity-for mutual aid or protection. 24Testimony.adduced by the General Counsel concerning ,other similar-statements and conduct by Gelinas not charged as violations In the complaint _was in varying degrees contested -by Respondent (e.g., Gelinas' (1) -apparent-offer. of-a bribe to Daudelin,. and (2) his.'statement to employee Whalon on September 19 that Whalon,would-be a.keyman but- the Union would -be. no, good for him-and he might lose,his job). But in the,absence of any clear indication by counsel for the General Counsel at the hearing that he .was relying upon these items of testimony as proof of additional unfair labor practices, these matters cannot be regarded as having been fully "litigated" on clear notice to Respondent, so as to warrant corresponding unfair labor practice findings. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Russell Wescott immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other (rights and privileges , and make him whole in the manner described in the portion of the Trial Examiner 's Decision entitled "The Remedy" for any loss of earnings suffered, by reason of the discrimination against him. (b) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, time- cards, personnel records and reports , and all other records necessary to analyze the amount of backpay due under the terms hereof. (c) Post at it place of business in Burlington, Vermont, copies of the attached notice marked "Appendix." 25 Copies of such notice , to be furnished by the Regional Director for the First Region , shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to its employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the First Region, in writing, within 20 days from the date of the receipt of this Order what steps the Respondent has taken to comply herewith.26 zs In the event that this Recommended Order is- 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 notice. In the further event that the Board's Order be 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 " rs In the event that this Recommended Order Is adopted by the Board, this provision 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 herewith." APPENDIX NOTICE To ALL EMPLOYEES As recommended by a Trial Examiner of the National Labor Relations Board we are posting this notice to inform our employees of the rights guaranteed them in the National Labor Relations Act: ALL OUR EMPLOYEES have the right to engage in union activities and to act together in matters concerning their employment. WE WILL NOT discharge any of our employees , and WE WILL NOT threaten to reduce working time or to take any other action against or to the disadvantage of any of our employees, if, or because, he or they engage in union activities. WE WILL reinstate Russell Wescott and give him backpay for wages he lost as a result of our discharging him. ESTATE OF NATHAN GLADSTONE D/B/A FASSETTS BAKERY, Employer. Dated------------------- By--------------------------------------- -(Representative) (Title) NoTE.-We will notify Russell Wescott if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training 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 questions concerning this notice or com- pliance with its provisions.