Federal Yeast Corp.

National Labor Relations Board - Board Decisions

Nov 19, 1976

226 N.L.R.B. 1046 (N.L.R.B. 1976)

1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federal Yeast Corporation and Shirley Ann Kelly
Bakery Products , Inc. and Judith Ann Katsianos.
Cases 5-CA-7555-2 and 5-CA-7602
November 19, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On June 30, 1976, Administrative Law Judge Da-
vid S. Davidson issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions I of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charge in Case 5-CA-7555-2 was filed on September 29,
1975, by Shirley Ann Kelly, an individual. The charge in
Case 5-CA-7602 was filed on October 24, 1975, by Judith
Ann Katsianos, an individual. A consolidated complaint
and notice of hearing issued on February 10, 1976. The
complaint alleges that Respondent Federal Yeast Corpora-
tion discriminated against Shirley Ann Kelly and that Re-
spondent Bakery Products, Inc., discriminated against Ju-
dith Ann Katsianos by withholding wage increases from
them because of union membership or activities thereby
violating Section 8(a)(3) of the Act. The complaint alleges
that Respondent Bakery Products, Inc., further discrimi-
nated against Judith Ann Katsianos by terminating her
employment because of her union activities and her filing
of an earlier charge thereby violating Section 8(a)(3) and
(4) of the Act. The complaint alleges some additional viola-
tions of Section 8(a)(1) of the Act against both Respon-
dents. In their answer, Respondents deny the commission
of any unfair labor practices.
A hearing was held before me in Baltimore, Maryland,
on March 25 and 26, 1976. At the conclusion of the hearing
oral argument was waived. Briefs have been received from
the General Counsel and Respondents.
Upon the entire record in this case including my obser-
vation of the witnesses and their demeanor I make the fol-
lowing:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondents Federal Yeast Corporation
and Bakery Products, Inc., Baltimore, Maryland,
their officers, agents, successors, and assigns, all
take the action set forth in the said recommended
Order.
1 The Respondents have excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect io credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 While the Administrative Law Judge correctly found that Katsianos was
discriminatorily denied a wage increase in violation of Sec 8(a)(3) and (1),
we do not concur with his finding that, according to Bakery Products' wage
policy, she was entitled to a wage increase on July 1, 1975 The Administra-
tive Law Judge relied on Katsianos' testimony in determining when she was
entitled to a wage increase, but we find that her testimony on this issue is
ambiguous and will not support the conclusion reached At the hearing
Katsianos was asked if she knew the wage policy of Federal Yeast and/or
Bakery Products She then testified-without specifying if she was describ-
ing the policy of Federal Yeast, or Bakery Products, or both-that wage
increases were given yearly and made effective in July. Since the record
does not otherwise disclose when Katsianos would have been entitled to a
raise, that determination should be made at the compliance stage of the
proceeding
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Federal Yeast Corporation and Bakery Products, Inc.,
are Maryland corporations engaged in business in Balti-
more, Maryland. Federal Yeast manufactures and distrib-
utes bakers yeast. Bakery Products manufactures and dis-
tributes bakery mixes. Although it appears from the record
that there is a close relationship between the two corpora-
tions and that in Baltimore they occupy adjacent struc-
tures, there is no allegation in this case that they constitute
a single employer within the meaning of the Act. It is con-
ceded that each of the corporations during a representative
12-month period preceding the issuance of the complaint
sold and shipped products valued in excess of $50,000 to
purchasers located outside the State of Maryland and pur-
chased and received products valued in excess of $50,000
from suppliers located outside the State of Maryland. Re-
spondents concede that they are employers engaged in
commerce within the meaning of the Act, and I find that it
will effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Brewery, Yeast, Soft-Drink Workers and Driver-Sales-
men, Amusement and Vending Servicemen and Allied
226 NLRB No. 162
FEDERAL YEAST CORP
Workers Teamsters Local Union 333, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, hereinafter referred to
as the Union, is a labor organization within the meaning of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The representation election
Federal Yeast employs between 200 and 210 employees
at its Baltimore facility. Bakery Products employs approx-
imately 12 employees at its Baltimore facility. Both corpo-
rations have their corporate offices in Philadelphia. For
more than 20 years the Union has represented the produc-
tion and maintenance employees of Federal Yeast Corpo-
ration.'
By letter dated May 14, 1975,2 which was received on
May 16, the Union requested recognition as the collective-
bargaining representative of the employees of Federal
Yeast and Bakery Products in a unit of all office clerical
employees, including all clerks, payroll, accounts payable,
and accounting, keypunchers, data processing, bookkeep-
ers, purchasing agents, secretaries, and lab technicians. On
June 10 the mediation service for the State of Maryland
conducted a secret-ballot election to determine if the em-
ployees in the unit described wished to be represented by
the Union. The notice of election listed the names of 26
employees in the bargaining unit, 3 of whom were employ-
ees of Bakery Products and the rest employees of Federal
Yeast. The election resulted in a vote of 11 for the Union,
12 against, and 3 challenged ballots.
On June 13, the Union filed unfair labor practice
charges with the state agency alleging that specified com-
pany actions had deprived the employees of a free and
impartial election. On August 5, the director of the state
mediation service notified the Union that, after investiga-
tion, his agency had concluded that the Union's allegations
were not substantiated and that the complaint must be dis-
missed. The Union filed no appeal, and on September l 1 a
certification of the results of the election issued.
2. The employment history of Kelly and Katsianos
Shirley Ann Kelly was hired by Federal Yeast in Febru-
ary 1969 as a swing girl 3 at a salary of $75 a week. Thereaf-
ter she was promoted to a secretary's job with an increase
in salary. She then became accounts payable clerk and re-
mained in that position until her separation in November
1975, by mutual agreement .4 As accounts payable clerk her
i Although it is unclear from the record whether the production and
maintenance employees of Bakery Products are included in this bargaining
unit , it appears that the terms of the union contract have also been applied
to them in at least some respects
2
Unless otherwise indicated all dates referred to occurred in 1975I
A swing girl was expected to learn all the jobs in the accounting office
and to be able to fill in for anyone who was absent
Although some evidence was taken as to the circumstances of her sepa-
ration , it is not in issue in this case.
1047
function was to code invoices, to send them for IBM pro-
cessing and check preparation, to mail the checks, and to
maintain daily disbursement sheets Kelly received raises
once a year up to 1975 and was paid $155 a week at the
time she left her job.
In October 1970, Judith Ann Katsianos started to work
as a part-time employee for Bakery Products at a salary of
$90 a week, filling in for another office clerical employee
who was then working there. About 6 months later, she
started to work as a part-time employee for Federal Yeast
at a salary of $100 a week, replacing anyone who was sick
or on vacation. In May 1973, she became a full-time swing
girl for Federal Yeast at a salary of $120 a week. Shortly
thereafter she became secretary to Federal Yeast Treasurer
Roy Gushwa and remained in that position until October
1973. She then was transferred at her request to the pro-
duction office of Federal Yeast where she performed secre-
tarial duties at a salary of $130 a week. In July 1974, at her
request Katsianos transferred to an open job in Bakery
Products at a salary of $150 a week.5
In her new job Katsianos ordered from suppliers various
raw materials used by Bakery Products such as flour,
sugar, and dextrose used in the preparation of bakery mix-
es. She maintained a running inventory of all raw materials
on the basis of information supplied her by production
personnel. Katsianos also typed all correspondence for
Bakery Products and answered the telephone. At the end
of each month she typed a monthly poundage report which
went to Bakery Products' Philadelphia office and to Feder-
al Yeast. Until mid-May 1975, Katsianos was directly su-
pervised by Lab Director Bruno Hebert, and after that by
newly hired Director of Operations Gordon Parker. Partic-
ularly during the earlier period Katsianos also took direc-
tion from Bakery Products vice president, William Borer,
who was then in charge of Baltimore operations. Borer
visited the Baltimore plant on occasion and maintained
telephonic contact with Katsianos from his office in Phila-
delphia, Pennsylvania, on an almost daily basis. He super-
vised Katsianos' purchasing activities directly until Parker
was hired.
At time of her transfer to Bakery Products Borer told
Katsianos that her salary would be increased to $175 after
3 months if she learned the job.' However, Katsianos was
not given that raise at the end of 3 months and effective
January 1, 1974, after she had inquired about the promised
raise, she was given a $10 raise to $160 a week which she
received for the remainder of her employment at Bakery
Products.'
3. The union activity of Kelly and Katsianos
Around May 1, 1975, Kelly was approached by several
coworkers who expressed discontent with management and
with the insurance coverage afforded clerical employees.
As a consequence, Kelly contacted the Union and ob-
5 Katsianos testified that she was slated to receive an increase of about 5 5
percent at that time if she had remained in the Federal Yeast job
6 Katsianos so testified without contradiction
r There is no contention that Katsianos failed to learn the job or perform
it adequately
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained blank authorization cards which she brought with
her to work. She told other clericals that she had the cards
and they should see her if they wanted to sign a card. She
also distributed cards to other employees. In a short period
she obtained signatures on 17 cards from employees of
both Respondents. During the course of the ensuing cam-
paign, Kelly wore a button indicating her support for the
Union and served as the Union's observer at the June 10
election.
Katsianos signed a card at Kelly's request, handed out a
card to another Bakery Products employee, and talked to
Federal Yeast employees about the Union. Katsianos did
not wear a union button at work, but she had lunch with a
union representative on two separate occasions, and she
was observed by company representatives on one of those
occasions, as set forth below.
4. Alleged preelection threats by William Borer
In the latter part of May 1975, about 2 weeks before the
election, Borer and Katsianos had a telephone conversa-
tion in which the union organizing campaign was dis-
cussed. Borer asked Katsianos what was going on in Balti-
more and said that he had heard that a union was trying to
get in . Borer told her that, if the Union got in, it would
work to his advantage also. Borer said that employees
would no longer be able to get off at 11 o'clock to go to the
movies with their girlfriends, and that if the Company got
a full 8 hours' worth of work out of employees it could start
eliminating some jobs. In this conversation Borer men-
tioned that the workday would be governed by contract
and that union contracts required an 8-hour day.' Katsia-
nos asked Borer if he was threatening her, and he said that
he was not but that he was just stating a fact. Borer also
said that there would be no wage increases unless they
were provided in the union contract and that there would
be no merit or similar raises.9
5. Alleged preelection interrogation by Roy Gushwa
About 2 weeks before the election Federal Yeast treasur-
er, Roy Gushwa, called Katsianos into his office and asked
her why she thought that the girls wanted a union. Katsia-
s At that time the office employees worked a 7-hour day
Katsfanos so testified Borer agreed that the conversation occurred and
that there was discussion of the length of the workweek He testified that he
told Katsianos that he felt that in some cases a union set up some ground
rules and by having a contract employees' efficiency increased because
union contracts generally required a full 8-hour day Borer denied that he
said that jobs would be eliminated if the employees selected a union or that
he elaborated further on what union contracts normally require Borer gen-
erally denied telling any employee that raises would be denied, hours of
employment changed , or jobs eliminated if the employees selected the
Union as their bargaining representative I have credited Katsianos as to
this conversation Although Katsianos at one point with regard to another
conversation contradicted her affidavit , her testimony in general impressed
me as candid and forthright and in several instances tracked very closely
with that of other management officials Borer 's testimony was more sum-
mary and tended to characterize what he told Katsianos rather than to state
what he had told her in the words he used when speaking to her For these
reasons as well as those set forth below with respect to another more critical
conflict between Katsianos and Borer , I have credited her version of this
conversation
nos told him that it was for more money and better insur-
ance . Gushwa replied that they were working on better
insurance for the clerical employees and that such things
took time. Katsianos asked him why everyone had not
been notified and said that there seemed to be a lack of
communication with employees about the improvements
that were being made and a lack of communication be-
tween Bakery Products and Federal Yeast. Katsianos sug-
gested that they should have a general employee meeting
once in a while so that the employees could state their
gripes and management could tell them what was going on.
Gushwa said he thought that it was a good idea, and that
afternoon at or about 2:30 there was a general meeting of
the office employees.10
At the meeting all the employees who were eligible to
vote in the election were present. Gushwa, Federal Yeast
industrial relations manager, Frank Wilson, and two ac-
counting supervisors also were there. Employees asked
questions, and the company officials provided answers. A
number of questions were asked about benefits and sala-
ries, their comparison to those of other companies, and the
desire of employees to participate more in determination of
office policy. During the meeting Katsianos stated that she
did not care for the insurance provided employees, and she
asked who there was above Borer to whom she could go if
she asked him for a raise and he refused it. Katsianos said
that she wanted a written office policy and that no one
seemed to know what the policy was for Bakery Products.
Kelly asked Gushwa or Wilson to explain Federal Yeast
policy on wage increases, and a number of other employees
also stated complaints and asked questions.
In response to questions about fringe benefits, Gushwa
and Wilson indicated that, since Wilson started to work for
Federal Yeast in January 1975, they had been working on
a completely new benefit package but that at that point
because of the union situation all determination of such
things was suspended. In response to questions about wage
and merit increases, Gushwa replied that they had been in
the process of compiling recommended changes and that
those had been suspended for the same reason. Gushwa
told the employees that he thought that the merit system
had been clearly spelled out before and that it was their
supervisors who determined who was to receive the merit
increases Gushwa told the employees that Federal Yeast
did not like the old system that the Company had followed
under which it had given all increases on a single date and
that they had started compiling recommendations for new
merit increases based on a different procedure.
6. The alleged creation of the impression of surveillance
On or about June 4, 1975, Katsianos, Kelly, and Union
Representative Bryan Griffin met for lunch at the Coach
10 These findings are based on the uncontradicted testimony of Katsia-
nos Although Katsianos also initially testified that Gushwa asked her how
she felt about the Union personally, after being shown a contradictory state-
ment in an affidavit which she gave during the investigation of this case she
stated that her affidavit was correct and Gushwa did not ask her about her
personal views Gushwa conceded that he spoke with Katsianos to try to
determine the extent of the office employees' complaints and irritations and
that he called the employee meeting to attempt to determine what the comp-
laints were after Katsianos suggested it
FEDERAL YEAST CORP. 1049
House restaurant, a popular restaurant about a mile from
the plant and one of the few acceptable restaurants in the
area. While there Katsianos noticed Borer and Gordon
Parker sitting at another table, and Borer and Parker
waved in their direction.
Later that afternoon Katsianos spoke with Gushwa in
the Federal Yeast office and told him that she understood
that Borer was angry at her because she had lunch with a
union representative and that she would like to explain
why. She then told Gushwa that she had listened to the
Company's side and that she wanted to hear what the
Union had to offer the employees. Gushwa said nothing in
reply.
According to Katsianos, Borer who was present at the
Baltimore plant that day and the next "seemed to be very
angry at me, and he wouldn't speak to me the rest of the
afternoon," but on the next day she approached Borer.
Katsianos said that she understood that Borer was angry
with her for having lunch with the union representative
and she asked him to let her explain. Borer replied that he
was not at liberty to discuss it with her then.]
7. Company preelection literature
No employee meetings were held by either company
other than the one which Gushwa called after Katsianos'
suggestion . During the week before the election Gushwa
sent two memoranda to the bargaining unit employees.
One dated June 3 enclosed an article from a trade journal
entitled "What bakers can say in resisting unions." The
memorandum stated that the article was being circulated
to answer partially some of the questions which had been
raised in the employee meeting. It appealed to employees
to use their own intelligence and "independent" material
such as that attached in considering how to vote and to ask
themselves what each side, Union and Company, had to
gain by their decision. The memo closed with an appeal for
employees to ask someone with experience with unions
what to consider before voting.
The second memorandum dated June 6 was directed at
answering union literature . It set forth figures to show that
the wages among the clericals had risen faster over the past
5 years than had those of the production and maintenance
employees who were represented by the Union and that the
bargaining unit employees had an average weekly rate
comparable to that for similar employees in the area work-
ing a longer workweek.
It appealed for employees to use good judgment when
they voted. Neither memorandum appealed directly to em-
ployees to vote against the Union, but the memoranda and
the enclosure made it clear that the Company preferred a
no vote.
11 Katsianos so testified Borer agreed that she approached him, that she
sought to explain why she had lunch with Griffin, and that he told her that
he did not want to talk about it According to Borer , Katsianos insisted on
telling him that the only reason she had lunch with Griffin was to find out
if her sister , who was a part- time employee , would have to join the Union
According to Katsianos, she told Borer that she had heard the Company's
side and went to lunch with Griffin to hear the Union's side
8. The September 12 wage increases
On September 12, 1975, the day after certification of the
results of the election, Federal Yeast granted wage increas-
es retroactive to June 30 to 13 employees in the clerical
unit. Seven other employees in the unit were given increas-
es at other times during 1975, four in January and March,
before the Union's demand for recognition,] and three in
July, August, and on September 1.13 Six employees in the
clerical unit received no increases on September 12 or on
any earlier date after January 1, 1975. They were Carolyn
McAlpin, Shirley Kelly, Jean Scarpulla, Joyce Bassetti,
William Parrett, and Judith Katsianos.14 Of this group,
only Scarpulla was given a later increase effective in either
December 1975 or January 1976. Of those who received
increases some supported the Union and wore union but-
tons at work during the campaign.
9. The facts relating to Katsianos ' failure to receive an
increase and her termination
a. Early discussion and implementation of organizational
changes in Bakery Products
According to Borer, before Gordon Parker was hired to
direct the Baltimore operations of Bakery Products, he
needed a person in the Baltimore office who was available
and through whom he could communicate in order to give
direction or get questions answered concerning the Bakery
Products business. That person was Katsianos. Borer testi-
fied that the need for such a person changed after Parker
was employed.
When Borer interviewed Parker in April before Parker
started work, they discussed organizational changes to take
place in Bakery Products after Parker took over. They de-
cided that laboratory employee George McCulloch should
be terminated on Parker's arrival on the Job and, according
to Borer and Parker, they also discussed eventual elimina-
tion of Katsianos'job. They testified that shortly thereafter
a definite decision was made that Katsianos should be ter-
minated.15 Parker testified that he wanted to implement
both changes immediately but that Borer indicated that he
thought it was wiser to eliminate first one position and then
the other so that Parker could assume the responsibilities
of the eliminated jobs gradually rather than all at once.
They decided to wait to eliminate Katsianos' fob.
Upon his arrival at Bakery Products around May 14 Par-
ker learned that McCulloch had scheduled a vacation and
with Borer's approval waited until around the middle of
June after McCulloch's vacation to eliminate McCulloch's
job and to assume his responsibilities.
On the day after McCulloch's termination Parker spoke
13 Of this group, one was secretary to Federal Yeast Executive Vice Presi-
dent Cutchins and three were laboratory employees
13 The record does not indicate whether these increases were granted be-
fore or after September 12 and only shows their effective dates
14 In this group all but Katsianos were employees of Federal Yeast Par-
rett, however, appeared on a different payroll from the other Federal Yeast
employees, and his pay was apparently set by company officials in Philadel-
phia The pay of the others who received no increases was determined in
Baltimore
15 Parker placed this decision in late April Borer placed it in June
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Katsianos, lab technician Loverde, and Production
Supervisor Ziemski in a group. Parker told them that he
foresaw that no one else would be let go, that they were a
team, and that if the business grew they would hire new
employees and not lay off the old employees. 16
In July, Laboratory Director Bruno Hebert informed
Parker that he was leaving Bakery Products effective Au-
gust 1 to assume another job. Thereafter, Parker, with the
assistance of newly promoted Supervisor Loverde, as-
sumed Hebert's duties along with those of McCulloch's
Neither McCulloch nor Hebert was replaced. At some
point thereafter, according to Borer, employee Ted Grey
also quit.
According to Borer, after he and Parker had jointly de-
cided that Katseanos' fob should be eliminated, the deter-
mination as to the time and circumstances of her termina-
tibn was left to Parker's discretion. According to Parker,
however, after Borer had expressed the view that both Mc-
Culloch and Katsianos should not be terminated at the
same time , Parker told Borer he would leave the decision to
Borer as to the time sequence to be followed.
b. Katsianos' complaint to Borer about her failure to receive
a wage increase
Around September 15 Katsianos became aware that
clerical employees of Federal Yeast had received wage in-
creases and she became upset over her failure to receive a
raise at the same time.
Shortly after Katsianos learned of the increases 17 she
stopped Borer as he walked by her desk and she asked him
why she had not received a raise Borer replied that she had
taken a stand against him with the Union and that he was
going to take a stand against her. Katsianos asked what
company policy was in regard to her raise, and he replied
that company policy was his "say-so" and that to her he
said "no." He added that as long as he was in charge she
would never receive another raise.18
16 Katsianos so testified . Parker testified that he did not remember telling
the employees that there would be no additional discharges but he testified
that he did ask those who remained to function as and become a team
Loverde who became a supervisor in July testified as a witness for Bakery
Products but was not questioned about this meeting It seems clear that the
purpose of this meeting was to reassure the remaining employees of Bakery
Products following the termination of McCulloch and to boost their morale
I find it likely that in that process Parker sought to allay any fears in the
fashion described by Katsianos, and I have credited her testimony in this
regard
7 Katsianos placed this conversation on September 18 Others testified
that events which clearly followed this conversation occurred on earlier
dates The exact dates of these events are not critical as the sequence in
which they occurred is clear
is Katsianos so testified Borer denied telling Katsianos that she was not
given a wage increase because of her union activity He testified that he
merely told her she was not going to get an increase because he had decided
that she wasn ' t going to get one Katsianos testified that she believed Parker
overheard their conversation, that she asked Parker if he had overheard the
conversation, and that Parker replied that he understood some pretty strong
language was used Parker was not asked about this conversation between
him and Katsianos, but he denied that he overheard the conversation be-
tween Katsianos and Borer I credit this denial of Parker and find nothing
in his response to Katsianos ' question to him which is inconsistent with that
denial However , I have credited Katsianos rather than Borer as to their
conversation As set forth below, on the following morning Katsianos went
to Federal Yeast's executive vice president, Cutchins, and at that time con-
c. The decision to terminate Katsianos
Later the same day Parker drove Borer to the motel
where Borer was staying while in Baltimore . Borer asked
Parker if he had heard what Katsianos asked him, and
Parker said that he had not. Borer then told Parker that
Katsianos had asked for a raise, and Parker asked what
Borer had said. Borer replied, "Well what can I tell her?
I'm not going to give her a raise because we are going
to eliminate the job . . . . I think at this point in time you
better make a decision when you are going to make this
termination." Parker asked, "Well, do you want it today or
tomorrow or next week? . . . What about the end of the
month?" Borer replied, "Fine let's do it. Let's do it the end
of the month." 19 According to Parker, the decision was
thus made to terminate Katsianos on September 30.
d. Borer's and Katsianos' conversations with Cutchins
On the following morning Borer visited Federal Yeast's
executive vice president, Cutchins, and told him that he
and Parker had been contemplating some organizational
changes in Bakery Products and were planning to termi-
nate Katsianos by abolishing her job 2°
Later that morning Katsianos also went to see Cutchins
and told him of her conversation with Borer the previous
day, repeating to Cutchins Borer's statements which linked
the denial of an increase to her union activities. Cutchins
told her that he had been told to stay out of the operations
of Bakery Products and that he could not get involved in
the matter. However, he added that he did not think that
the reason Borer gave her was the real reason that she did
not get a raise. Cutchins told her that there was another
reason but that she was not being told. Katsianos asked
him if he knew the reason, and Cutchins said he did not.
Katsianos then told Cutchins that she would go to the La-
bor Board and he commented that that was her right as an
mdivedual.zt
According to Cutchins, although he believed he knew
why Katsianos did not receive a wage increase as a result
of his conversation with Borer earlier that morning, he told
her he did not know because Borer had not said that her
impending termination was the reason she had not received
the increase and because he had no authority to speak for
Bakery Products.
On that day or within the next few days, Cutchins told
cededly told him the same version of her conversation with Borer that she
gave in her testimony Katsianos did not impress me as one who in calculat-
ed fashion would almost immediately go to a high official of Bakery Prod-
ucts ' sister company and invent a contrived story about her superior I find
her statement to Cutchins the next day corroborative of her testimony as to
her conversation with Borer and confirmatory of my overall impression that
Katsianos testified in general with more forthrightness , candor , and detail
than Borer The fact that Borer later upon Cutchms' inquiry denied the
statement that Katsianos attributed to him does not detract from this con-
clusion
iS Parker so testified Borer did not testify as to this conversation, but in
testimony which preceded that of Parker stated that the determination as to
when the earlier decision to eliminate Katsianos ' Job should be implemented
had been left to Parker's discretion
20 Cutchins so testified Borer was not questioned about this conversation
21 The testimony of Katsianos and Cutchms is in general harmony as to
this conversation
FEDERAL YEAST CORP.
Federal Yeast's industrial relations manager, Wilson, that
Borer planned to eliminate Katsianos' fob and, at Borer's
suggestion, Parker told Bakery Products supervisors, Lov-
erde and Ziemski, of that plan. Katsianos however was not
given any advance notice of her impending termination
e. The filing of a charge by Katsianos
On September 29 when Kelly filed the charge in Case 5-
CA-7555-2, Katsianos filed a similar charge against Fed-
eral Yeast in the mistaken impression that Bakery Products
was a subsidiary of Federal Yeast. That charge was re-
ceived at the Federal Yeast office on October 1.
When Cutchins learned that the charge had been re-
ceived he called Parker and asked him whether Bakery
Products had made a decision on Katsianos. Parker said
that it had. Cutchins asked Parker not to do anything until
they had time to look at the matter and to get their reason-
ing together. Cutchins then called Parker, Gushwa, and
Wilson into his office and spoke to Borer by telephone in
Philadelphia while they were present. Borer said that since
Cutchins was on the scene Bakery Products would do
whatever he felt was best. Wilson, Parker, Cutchins, and
Gushwa then discussed the matter at some length and de-
cided that since they had planned to terminate Katsianos
for organizational reasons before the charge was filed they
would proceed with the plans despite the filing of the
charge. 2
I. The termination of Katsianos
Around 2:30 that afternoon Parker called Katsianos into
Gushwa's office. Wilson was also present Parker told Kat-
sianos that he had some unpleasant business to attend to
and that her job was being eliminated effective immedi-
ately. Parker told her that there had been a change in per-
sonnel and that he had been hired to run Bakery Products
as efficiently as possible. Katsianos asked if the decision
was his or Borer's, and Parker said that it had been in
process for some time, that he had fought against it, but
that he could no longer fight it and had been given orders
from higher up to let her go. Upon Katsianos' inquiry,
Parker identified Borer specifically as the person higher up
who ordered her terminated. She asked why no letter of
recommendation had been prepared for her and also asked
for a slip for unemployment compensation. Wilson told her
no slip was needed and that he would verify that her job
had been eliminated. Katsianos told Parker that it looked
funny to her that her job was eliminated on the same day
that her charge was received. Parker told her that the
charge had nothing to do with her termination and that it
had been pending for a long time. Katsianos asked why her
22 Cutchins and Wilson both testified to this effect Gushwa testified that
the extent of his knowledge of the reasons for Katsianos ' termination was
that Parker had discussed with him in May the impact of the probable
release of Katsianos to Federal Yeast , and Gushwa did not mention this
meeting in his testimony Wilson testified that Parker mentioned that he had
planned to terminate Katsianos on the previous day but had not done so
because of a visitor at the plant Parker also testified that he had planned to
terminate Katsianos on September 30 but that he could not recall the reason
for the delay
1051
bonds and her retirement fund check was not ready, and
they told her that they would be sent to her and that she
would receive a month's severance pay. Katsianos accused
Parker of firing her for union activity, and Parker said that
her union activity had nothing to do with it.23
According to Parker, before he terminated Katsianos he
considered the possibility of transferring her back to Fed-
eral Yeast and asked Gushwa in late September if there
was a position in Federal Yeast for Katsianos. He testified
that Gushwa indicated to him that Federal Yeast had no
opening at her salary level. However, Cutchins and Borer
testified that to their knowledge no consideration was giv-
en to the possibility of bringing Katsianos back to Federal
Yeast at the time they spoke about the elimination of Kat-
sianos' job, and Gushwa testified that he had no occasion
to discuss Bakery Products' decision to terminate Katsia-
nos between May and October 1.
After Katsianos' termination, no one was hired to re-
place her. The responsibility for the telephone was given to
Production Manager Ziemski, and he placed orders with
suppliers under Parker's direction: Some of the recordkeep-
ing was also assumed by Ziemski, some was handled by
Federal Yeast through its computer, and some was elimi-
nated. Parker and Loverde also assisted Ziemski in per-
forming Katsianos' former duties.24
10. The facts relating to Kelly's failure to receive a wage
increase
a Federal Yeast's wage policy
For a period of years before 1975 Federal Yeast made an
annual review of the wages of its clerical employees and
gave them increases effective July 1 of each year. Vice
President Cutchins testified that the policy was to give in-
creases if merited based on an evaluation of performance,
attendance, and attitude. However, virtually all employees
received annual increases, the employees had been told
that increases were based on cost-of-living as well as mer-
it;25 and they had begun to consider the annual increases
as automatic.
After Gushwa started to work at Federal Yeast in 1972,
he established a set of guidelines for evaluating jobs and
determining an appropriate wage classification for them.
In conjunction with these guidelines a schedule of rates for
various classifications was established with three steps
based on length of service and a maximum for each class.
The rate schedule was revised once after it was initially
established to reflect the results of a later area wage survey
by the Chamber of Commerce. An evaluation for purposes
23 Katsianos so testified Parker and Wilson testified to more abbreviated
versions of the meeting but did not contradict Katsianos in any respect
2° Before Parker was hired, Katsianos ordered supplies under the general
direction of Borer Because Borer was not at the Baltimore facility much of
the time, Katsianos exercised considerable discretion in choosing between
possible suppliers After Parker arrived, he replaced Borer in directing Kat-
sfanos in ordering supplies, and Katsianos' discretion in choosing suppliers
was. limited to times when Parker was away from the plant Otherwise,
however, from the time Parker was hired until Katsfanos was terminated her
duties remained the same as they were before Parker took charge of the
plant
25 Kelly's testimony that Gushwa had told employees that increases were
based on cost-of-living increases and merit was uncontradicted.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of deternuning the class to which each job was assigned
was normally conducted only once per job and was not a
part of the annual evaluation for purposes of determining
whether an increase should be given. A description of the
system of job evaluation was communicated to employees
shortly after it was adopted.
In early 1975 as an outgrowth of internal company dis-
cussions Federal Yeast decided to change its policy relat-
ing to annual wage reviews so that in the future increases
would be based entirely on merit and there would not be a
single annual review geared to a July 1 increase. It was
decided that each employee should be given an evaluation
on an individual basis whenever his department head
deemed it warranted. It was contemplated that such evalu-
ations could occur more than once a year and that they
could result in denials as well as grants of increases.
The change in policy and procedure was implemented
before the union organizing campaign started among the
clerical employees, and several employees 26 were given in-
creases pursuant to it in January and March 1975.
At the employee meeting called by Gushwa 2 weeks be-
fore the election the change in policy as to the time and
nature of wage reviews was described to employees, and it
appears that at least some employees had been told about
the change before the union organizing campaign started.27
When Federal Yeast received the Union's demand for
recognition, on advice of counsel Cutchins suspended the
grant of further increases pursuant to this policy until he
received certification of the results of the election from the
state agency, and Gushwa informed the employees at the
preelection meeting that there would be no increases dur-
ing that period.
b. Application of the wage policy to Kelly
The day after Federal Yeast received the certification of
the results of the election, it granted increases retroactive
to July 1 to most but not all of the employees in the clerical
unit as set forth above. The decision with respect to wheth-
er Kelly should be given an increase was the responsibility
of Gushwa who acted after receiving a recommendation
from her immediate supervisors, Mentzer and Rowlands.
Gushwa testified that he decided not to grant Kelly an
increase at that time because in his opinion she did not
merit an increase due to her deportment on the job, atti-
tude, and insubordination. Gushwa testified that most of
the time she performed the duties of her job satisfactorily
but that there were times when her performance on the job
was also a little less than what was wanted.
Mentzer testified that he made recommendations with
respect to three employees under his supervision at that
time and recommended against merit increases for Kelly as
26 Cutchins' secretary and three laboratory employees were included in
the bargaining unit in which the election was conducted and were governed
by the same policy
27 Cutchins testified that it had been left to the department heads to in-
form employees of the policy change While Gushwa's testimony is less than
clear as to when he first communicated the change to employees and Basset-
tl testified that she first heard of it at the preelection employee meeting,
Kelly testified that she believed that before the employees contacted the
Union Gushwa had said that increases would no longer be given automati-
cally at one time
well as for Jean Scarpulla. He testified that his recommen-
dation with respect to Kelly was based on concern about
her attitude and work habits.28
c. Kelly's meeting with Gushwa in September
After Kelly learned that others had received wage in-
creases she sought to find out why she was not given a
raise . As a consequence , she, Rowlands, Mentzer, and
Gushwa met . Kelly asked Gushwa why she did not get a
raise, and Gushwa told her that he did not believe she
merited an increase at that time because of her attitude and
her lack of attentiveness to her duties. Gushwa also told
her that if she would address her job as they thought she
should they would consider a merit increase for her at a
later time . In connection with her attitude Gushwa and
Mentzer referred to disagreements and the relationship
that had arisen between herself and Mentzer and her atti-
tude toward other supervisors. Mentzer also told her that
she abused the telephone and talked entirely too much in
the office with other individuals 29 Before this meeting Kel-
ly had never been warned that she might be denied a merit
increase because of her attitude or any other reason.
d. Evidence relating to the reasons advanced for denying
Kelly an increase
According to Gushwa, during the period before the
union demand for recognition Kelly's work performance
was acceptable but at times her attitude was not accept-
able. Gushwa testified that Kelly's personnel folder dis-
closed that she had problems even before he joined Federal
Yeast. It indicated that on one occasion in 1971 Kelly was
denied permission to leave work 20 minutes early and
thereupon went to the ladies room until quitting time for
which she was reprimanded.30 Her file disclosed further
that a few months later in 1971 she was given a $22 weekly
increase apparently at the time she became a swing clerk.
The file memo stated that she had performed the special
billing function in an outstanding manner eliminating
many previous errors and that the increase although excep-
tionally large would place her in line with other personnel.
It also stated, "Although, we have had problems with atti-
tude, we feel we have eliminated this and we can motivate
her into becoming a valuable asset to the Company." 31
zs Wilson also testified that he gathered some information for Gushwa at
that time and that among other things he told Gushwa that Kelly's salary
was in excess of the Company's job rate for her category However, there is
insufficient evidence to determine whether that was in fact the case. No
other witness mentioned that fact as a reason for denying Kelly an increase,
and Gushwa's statements , set forth below, holding forth to Kelly the possi-
bility of an increase at a later time would appear inconsistent with any claim
that Kelly's salary already exceeded the maximum I find that the decision
not to give Kelly an increase was not based on any claim that her salary
exceeded the maximum for her classification
29 These findings are based on a composite of the testimony of Kelly and
Gushwa which was not in essential conflict
10 A file memo further indicated that she and a fellow employee , who had
been denied permission to leave early at the same time , shortly thereafter
both called in sick on the same day and that the coincidence was viewed
with suspicion . Insofar as appears the suspicions were never communicated
to Kelly
31 Kelly had never been shown this document
FEDERAL YEAST CORP 1053
Gushwa testified to other specific incidents after his ar-
rival at Federal Yeast as indicative of Kelly's attitude be-
fore the union organizing campaign. On one occasion in
1972, Gushwa testified Kelly gave him an ultimatum that
either the current assistant treasurer would have to go or
that she would leave. According to Gushwa it was worked
out so that neither left at that time although the assistant
treasurer later left.32 A second incident described by Gush-
wa occurred in 1974 and arose from the assignment of re-
sponsibility for the cleaning of a large coffeepot each day
to various clerical employees. According to Gushwa, Kelly
took exception to the assignment because she did not drink
coffee and she posted a list, a proposed cleanup list, on
which she included supervisors. Gushwa testified that he
regarded this action as blatantly insubordinate.33 Gushwa
also testified that on numerous occasions he received re-
ports from supervisors about open abuse that Kelly gave
them for the benefit of the whole office.
Following the election in July, Kelly was out from work
on one occasion for 2 or 3 days due to illness. Upon her
return , Supervisors Rowland and Mentzer told her that
they had found her desk in an unacceptable state, and
Gushwa also spoke to her about it and accused her of slop-
py and unacceptable recordkeeping. According to Gush-
wa, they were concerned about the fact that they found
that Kelly was very far behind in her work when it became
necessary for Mentzer to check on something in her desk
during her absence. However, he conceded that at the end
of each month, when Kelly was required to prepare a clos-
ing balance sheet, she always did so in timely fashion.
When Gushwa and Mentzer spoke to her, they attributed
her deficiencies to inattentiveness to her work duties and
spending too much time on personal matters. Kelly testi-
fied that Gushwa said something to her to the effect that he
hoped "it" did not stem from the situation, which she took
as a reference to her union activity, but Gushwa did not
indicate otherwise what he was referring to
On July 1, Kelly was informed that Mentzer was her
supervisor, and Kelly conceded that thereafter company
officials talked to her about her attitude on several occa-
sions and that she in turn complained about the complaints
about her attitude. According to Kelly, she understood the
complaints about her attitude to refer to her relationship
with Mentzer which both she and Mentzer testified was
strained. She testified that nothing else was ever mentioned
to her in connection with her attitude.34
Following the denial of an increase to Kelly in Septem-
ber, Kelly was reprimanded for spending too much time
away from her desk in conversation with another employee
32 Kelly conceded that she gave Gushwa such an ultimatum, but testified
that she did so after she was induced by the assistant treasurer to transfer to
another fob on the promise of an increase which did not materialize
33 Kelly denied responsibility for conceiving of, typing, or posting the list,
and testified that she was not accused of responsibility for it until November
1975, after the wage increase had been denied her
34 Gushwa testified that her attitude toward supervision generally was a
matter of concern. In addition, testimony was adduced that Kelly frequent-
ly expressed dissatisfaction with company policy and with the Company as
a place to work Kelly conceded that she was dissatisfied with certain com-
pany policies and had voiced some of that dissatisfaction Gushwa did not
testify that he took that dissatisfaction into consideration in reaching the
opinion that Kelly's attitude was unsatisfactory
at the water cooler. Although Kelly defended her actions at
the time on the ground that the conversation was work
related, she conceded that in part it was not. This repri-
mand led to a final agreement between Kelly and Gushwa
that she be separated by mutual agreement with a letter of
recommendation from Gushwa. The letter of recommenda-
tion gave her unreserved praise. However, a statement pre-
pared at the same time, which was signed by Gushwa and
agreed to by Mentzer and Kelly, purported to summarize
the discussions leading to her separation and stated:
It is Mrs. Kelly's position that much of the friction
and apparent hostility which I have, on several occa-
sions, discussed with her results from her personal
conflict with Mr. Mentzer. Both Mrs. Kelly and I
agreed that certain people simply cannot get along.
She stated that condition exists between Mr. Mentzer
and her.
B. Concluding Findings
1. The alleged violations of Section 8(a)(1)
(a) The General Counsel contends that Borer in his May
telephone conversation with Katsianos violated Section
8(a)(1) of the Act by stating that raises would be denied,
hours of employment would be changed, and jobs would
be eliminated if the employees elected to be represented by
the Union. Respondent contends that no threat of reprisal
was expressed or implied in Borer's statements to Katsia-
nos which were made in the context of a description of
provisions usually found in a collective-bargaining agree-
ment.
The question is whether Borer's remarks to Katsianos
merely predicted the reasonable consequences of unioniza-
tion or went beyond such predictions to convey that privi-
leges would be lost by employees as a result of initiative
taken by the Company. To some extent Borer's remarks
were ambiguous for, while he asserted that there would be
an 8-hour workday and no merit increases, he also asserted
that these matters would be governed by contract and thus
by inference would depend on the outcome of negotiations
with the employees' representative. But there was no such
ambiguity in his remark that employees would no longer be
able to get off from work to go to movies with their girl-
friends. The threat of the loss of this privilege, perhaps
trivial in its own right, nonetheless was symbolic of a
change in attitude on the part of Borer in dealing with the
employees in the event they elected union representation. I
find not only that this remark constituted a threat but also
that it tended to resolve the ambiguity in Borer 's other
remarks to convey that in any ensuing negotiations the
companies would seek to eliminate the 7-hour day and to
discontinue merit increases , conditions it had provided in
the absence of any union, if the employees voted for repre-
sentation. I find therefore that Borer's remarks to Katsia-
nos violated Section 8(a)(1) of the Act.
(b) The General Counsel contends that Gushwa in the
latter part of May violated Section 8(a)(1) by questioning
Katsianos about the reasons employees wanted the Union
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and thereby conveying the impression that she was being
asked to reveal a confidence shared only by the employees
among themselves. The harm in Gushwa's questioning of
Katsianos hes not in the fact that he asked Katsianos to
betray a confidence but in the fact that his question solic-
ited from Katsianos a statement of employee grievances
and implied that something would be done to deal with the
problems which led the employees to seek union organiza-
tion. The evidence shows that, when Katsianos told Gush-
wa what the underlying problems were, Gushwa told her
that the Company was working on them. When Katsianos
criticized the Company's failure to communicate to the em-
ployees what it was doing and suggested an employee
meeting, Gushwa responded with alacrity, and the meeting
was held on the same day. Not only does the record fail to
show that the Company had previously communicated
with employees about their dissatisfactions or about Re-
spondents' efforts to develop a new insurance program, but
the inference is clear from the conversation between Gush-
wa and Katsianos that Respondents had not done so.35 To
be sure, Respondents took the position that because of the
impending election it could not implement new benefits or
announce any details of the new benefit package it was
working on, but the message conveyed was that changes
previously unknown to the employees were in the works
and would be implemented once the election was over.
Thus, without making specific promises, Gushwa implied
to Katsianos and then to the employees as a group that
their desires which led them to seek union representation
would be taken care of. In these circumstances, Gushwa's
questioning of Katsianos about the reasons employees
wanted union representation was an improper interference
with employees' freedom of choice in violation of Section
8(a)(1).1
(c) The General Counsel contends that Borer and Gush-
wa by their conduct on June 4 and 5 in connection with
Borer's and Parker's observance of Katsianos and Kelly
with Union Representative Griffin at the Coach House res-
taurant created the impression of surveillance of their
union activity. The General Counsel relies in support of
this contention on the failure of Gushwa and Borer to dis-
abuse Katsianos of her understanding that Borer was an-
gry with her because of what he had seen.
There is no contention that there was actual surveillance
of Katsianos' and Kelly's union activities, and indeed the
facts make it clear that the noontime restaurant encounter
was accidental and not the product of any design to spy on
union activity. To establish the creation of the impression
of surveillance it is necessary to show that an employer
agent by his statements has given an employee cause to
believe that the employer has learned of employee union
activities through unlawful surveillance rather than in the
course of innocent observation.37 Here Katsianos knew the
circumstances under which Borer and Parker had seen her
35 Although not entirely clear, it appears from Kelly's testimony that em-
ploZees had been told previously of plans with respect to merit increases
3 Ring Metals Company, 198 NLRB 1020, 1021 (1972)
37 Cook United, Inc, d/b/a Cook's Discount Store 208 NLRB 134 (1974),
Walnut Creek Psychiatric Hospital, d/b/a Walnut Creek Hospital, 208 NLRB
656 (1974)
with Griffin, and it was she rather than Gushwa and Borer
who took the initiative in discussing the matter. The failure
of Gushwa and Borer to contradict her assertions that Bor-
er was angry with her does not alter the fact that Katsianos
knew that her meeting with Griffin had been observed in-
nocently. I find no basis for concluding that the conduct of
Gushwa and Borer created the impression of surveillance
of her union activities.
(d) The General Counsel contends that Borer' s state-
ments to Katsianos on or about September 15 as to the
reason she was denied a wage increase independently vio-
lated Section 8(a)(1) of the Act. I agree . I have found above
that Borer made the statement attributed to him by Katsia-
nos when she asked him why she did not receive an in-
crease. Whether or not the reason asserted by Borer was
the actual reason for denying Katsianos the increase, Borer
clearly conveyed to Katsianos that her union activities
were the cause and that they would bar any further in-
crease for her as long as he was in charge. Such statements
are clear violations of Section 8(a)(1).38
2 The termination of Katsianos and her failure to receive
a wage increase
The General Counsel contends that Bakery Products de-
med Katsianos a wage increase because of her union activ-
ities and terminated her because of those activities and her
filing of the charge. Respondent contends that Katsianos
was terminated simply because of a reorganization of Bak-
ery Products' work force for business reasons and that she
was not given a wage increase in the light of the decision to
eliminate her job. Since Katsianos' termination is central to
both issues, it will be considered first.
The General Counsel contends that the claim that Katsi-
anos' fob was eliminated in the course of a business reorga-
nization is a pretext and relies on the facts that no attempt
was made to relocate Katsianos who was an experienced
and versatile employee; Katsianos was terminated on the
same day that her charge was received; Katsianos was dis-
charged on the first day of a monthly pay period; almost 6
months had elapsed since the arrival of Parker had alleg-
edly led to the decision that her job should be eliminated;
the Bakery Products' employees were told in June when
McCulloch was terminated that no other employee would
be released; Katsianos received no prior notice that her job
was to be eliminated; and her job function did not change
in any significant respect between the time of Parker's ar-
rival and her discharge.
Acceptance of the General Counsel's contention would
not only require discrediting the testimony of Borer and
Parker as to the reasons for Katsianos' discharge but would
also require discrediting Cutchins, Wilson, Loverde, and
Gushwa as to their conversations with Borer and Parker
about Katsianos before October 1 when the charge filed by
Katsianos was received. Even though I have some doubts
as to all the details of those conversations, I am not pre-
pared to discredit all these witnesses en masse and find that
38 A further allegation in the complaint that Borer had threatened the
husband of an employee that she would never receive another wage increase
if she continued her union activity was withdrawn by the General Counsel
at the hearing
FEDERAL YEAST CORP. 1055
their testimony as to internal conversations among the su-
pervision of Bakery Products and Federal Yeast was total-
ly contrived.
Indeed, as set forth above, I have accepted their testi-
mony as to the sequence and much of the substance of
their conversations. I have found that a firm decision to
terminate Katsianos was made shortly after she spoke with
Borer about her failure to receive a wage increase and be-
fore she filed or threatened to file a charge. I thus conclude
that the filing of the charge was not a cause of her termina-
tion.
The question of the relationship of Katsianos' union ac-
tivities to her termination is less easily resolved. Although
there is evidence that the elimination of Katsianos'job was
discussed when Parker first was interviewed for his job and
there is testimony that a decision to eliminate her job was
made shortly thereafter, it is conceded that no decision had
been made before September as to when Katsianos' job
should be eliminated. To the contrary, even under the ver-
sion of Parker and Borer, when Parker wanted to eliminate
Katsianos' job immediately, Borer suggested that they go
more slowly and eliminate jobs one at a time. There is
reason to believe that any decision in April or June to elim-
inate Katsianos' job was even less firm than depicted by
Borer and Parker Thus, when McCulloch was terminated,
Parker sought to bolster employee morale telling the em-
ployees there would be no more terminations, urging that
they work as a team, and holding out the prospect of in-
creased employment with increased business. Whatever the
original plan when Parker came to the Company, it did not
contemplate separation of Bruno Hebert, and when he left
on August I without being replaced it was necessary for
Parker and the others to assume his duties as well as those
of the employees whose jobs he intended to eliminate. By
mid-September, no move had been made to implement any
decision to eliminate Katsianos' job, and no move was
made until after Katsianos questioned Borer about a raise.
It was, according to Parker, that question which led to the
decision to terminate Katsianos in 2 weeks and, contrary to
Borer's testimony that the decision to implement elimina-
tion of Katsfanos' fob was left to Parker's discretion, it was
Borer who raised the matter and effectively made the deci-
sion on the afternoon that Katsianos asked him about the
raise. Even if Parker's testimony is accepted on its face, it is
clear that it was Borer's conversation with Katsianos about
the wage increase which triggered the decision to terminate
her at the end of 2 weeks.
The content of that conversation gives strong support to
the inference that it was Katsianos' union activities which
led Borer to exercise the discretion that was supposedly
Parker's and to decide to terminate Katsianos within 2
weeks. Thus, when Katsianos asked why she had not been
given a raise along with most of the Federal Yeast employ-
ees, Borer made no mention of the fact that her job itself
was in jeopardy or even of a more neutral reason asserted
by Parker and Borer in their testimony that time for her
annual review had not arrived Rather Borer replied that
she had taken a stand against him with the Union, that he
was going to take a stand against her, and that as long as
he was in charge she would never receive another raise.
That spontaneous response to Katsianos' question which
she asked as Borer walked by her desk demonstrates a har-
bored resentment against Katsianos for her earlier union
activities and is more truly indicative of the motivation of
Borer than any statements he may have made thereafter to
other company officials in implementing her termination.39
Indeed what followed appears to reflect as much a plan to
build a case to cover a retaliatory decision as a plan to
carry out a long deferred commitment to eliminate a job in
the undetermined future.
Thus, when Borer spoke to Parker later that afternoon,
in addition to taking the initiative away from Parker, Borer
spoke only of Katsianos' inquiry about her raise as a rea-
son for eliminating her position There was no discussion
of the state of Bakery Products' operations, of the experi-
ence of Parker and the others in taking over the duties of
McCulloch, Hebert, and possibly Grey,40 or of the capacity
of the shrinking staff to adjust at that point to the assump-
tion of additional duties. Were this a normal implementa-
tion of an earlier decision which had been left to Parker to
effectuate, one would not only expect the initiative for im-
plementation to have come from Parker but would also
expect the considerations leading to implementation to
cover more than the fact that Katsianos had inquired
about a wage increase.' I have concluded that what made
Katsianos' continued employment untenable to Borer was
not that she had asked about an increase, that inquiry
could have been handled by the same assertion as that
made at the hearing that she was not due an increase at
that time as she had received one less than a year before.42
What made her continued employment untenable was that
Borer had lowered his guard in replying to Katsianos and
had revealed to her his feelings about her union activities. I
am persuaded that, having so candidly disclosed these feel-
ings, Borer determined that it was necessary to get rid of
Katsianos promptly in view of the impact which his state-
ment to her would have upon her attitude if she were to
remain. What happened after Borer made that determina-
tion may be consistent with either view of the motivation
for her discharge, but in the light of what preceded the
determination, the ensuing events take on the color of an
attempt to put a good front on a decision reached for inde-
fensible reasons. If there was a business reason for Borer to
inform Cutchms of the decision almost immediately,
Cutchins did not mention it in his description of their
meeting, and indeed as Cutchins indicated to Katsianos
later that morning he had been instructed to stay out of
Bakery Products' affairs. Similarly, it may have been good
policy to inform Loverde and Ziemski of what was soon to
be expected of them, but the failure to give Katsianos, who
would be most drastically affected of all, any notice of her
39I have considered in this connection Borer's testimony that he had
belonged to a union in the past, had lived with unions and without them,
and did not really care how the election came out Past union activity and
membership as an employee gives little indication of one's view as a mem-
ber of management I have not credited Borer's testimony as to his indiffer-
ence
40 Borer in his testimony indicated that Grey also had left
41 Although Borer told Parker that Katsianos had asked for an increase,
he did not contradict her testimony that what she asked him was why she
had not received an increase
42 Even in Borer's version, he did not mention to Katsianos that a review
of her wages was not then due
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impending termination raises further questions as to the
motive for it, particularly in the light of the concurrent
failure of Borer to make any effort to relocate Katsianos in
Federal Yeast to which Katsianos initially had transferred
from Bakery Products, and from which she had later re-
turned.43
In reaching this conclusion, I am mindful of the fact that
elimination of Katsianos' job had been under consider-
ation and that even absent her conversation with Borer in
September and the operation of any antiunion hostility
Parker might have recommended this elimination of her
job at any time after September 15. However, I have con-
cluded that Borer took action when he did because of his
hostility of her union activity. In these circumstances, it is
impossible to say when, if ever, Parker might otherwise
have moved to eliminate Katsianos' job. I conclude under
all the circumstances that Katsianos was terminated be-
cause of her union activities in violation of Section 8(a)(3)
and (1) of the Act.
The question remains whether Katsianos was denied a
wage increase in September for the same reason as she was
terminated. Apart from Borer's statement to Katsianos
when she asked why she had not received an increase, there
is testimony concerning the past practice and the wage pol-
icy of Bakery Products.
Katsianos testified that it was her understanding that
Bakery Products gave its employees annual raises, that it
reviewed their salaries in June, and that it gave raises
which were usually effective on July 1. She testified with-
out contradiction that, in 1973 and 1974, Bakery Products
had given 5.5-percent raises.
Borer testified that he reviewed the employees under his
jurisdiction at least once a year; that increases were to a
large degree based on merit; but that he also believed that
a yearly review was due anyone for cost-of-living increases
if for no other reason, with the larger increases based on
merit. According to Borer, Bakery Products' wage policy
was not determined by Federal Yeast officials or related to
Federal Yeast increases in any way, and there was no es-
tablished date for the annual review of Bakery Products
employees' wages. Borer also testified that he did not re-
view the wages of all Bakery Products employees at one
time but he reviewed each employee when he felt his job
performance warranted it, sometimes more than once a
year. According to Borer Katsianos was not due for a wage
increase in September 1975.44
In the absence of a clearly defined wage policy, it is
always difficult to determine whether a wage increase
would have been granted but for union activity and, even
43 In this regard, Borer's testimony makes it clear that he made no effort
to preserve employment for Katsianos While Parker testified that he asked
Gushwa about a job for Katsianos, neither Gushwa nor Cutchins indicated
any awareness of that inquiry Although I have not generally discredited
Parker as I have Borer where his testimony was in conflict with that of
Katsianos, the testimony of Cutchins and Gushwa raises substantial doubts
as to the credibility of Parker's testimony about a possible transfer and
raises a further question as to his testimony concerning conversations be-
tween him and Borer which were not susceptible to challenge by any other
witness
44 Parker testified that Katsianos was not given a wage increase "basically
because the job was going to be eliminated, and time for review was not
until November according to the annual records"
where a statement such as Borer's is made, the possibility
remains that a wage increase would not have been granted
at that time in any event. However, given such a statement,
the burden must be on Respondents to show that Katsia-
nos would not have received an increase at that time with-
out regard to her union activities. Katsianos' testimony
that annual increases were given on July 1 in the previous
2 years was uncontradicted as was her testimony that the
increase she received the previous January was the out-
growth of an only partially fulfilled promise at the time of
her transfer to the Bakery Products job. Given Borer's
statements to Katsianos, the record of the two previous
years, the fact that the other two Bakery Products employ-
ees in the clerical unit were given increases effective in July
and August, and the fact that Borer based increases on cost
of living as well as merit, I conclude that Borer's testimony
that Katsianos was not due for an increase and that there
was in effect no fixed time for reviewing her salary insuffi-
cient to overcome the inference that Katsianos was denied
an increase because of her union activity as stated to her
by Borer. I find accordingly that she was denied an in-
crease in violation of Section 8(aX3) and (1) of the Act.
3. The failure of Kelly to receive a wage increase
The General Counsel contends that Federal Yeast de-
nied Kelly a wage increase because of her union activities.
In support thereof the General Counsel argues that Kelly
was a strong supporter of the Union, that her union activi-
ty was known to Federal Yeast, that Federal Yeast dis-
played animus toward the Union, and that the evidence
offered to support Federal Yeast's claim of Kelly's defi-
ciencies was shy of specifics and insubstantial. Respondent
contends that Kelly was denied an increase for good cause.
While denial of an increase to a strong union supporter
soon after an election necessarily raises suspicion, I find
that the suspicion cannot be elevated to a conclusion in
this case. Kelly was not the only employee denied an in-
crease by Federal Yeast in September. No claim of dis-
crimination is made with respect to the others who did not
receive increases, and still others who received increases
were known union supporters. Despite the General
Counsel's claim that the evidence of Kelly's deficiencies
was lacking in specifics and insubstantial, the central piece,
Kelly's attitude, was described in some detail and in signif-
icant respects conceded by Kelly both in her testimony and
in the statement she agreed to in November when she left
Federal Yeast. While Kelly attributed most of her difficul-
ty to the specific assignment of Mentzer to supervise her in
July, there is no indication or claim that that assignment
was designed to provoke an untenable situation. To be
sure, Kelly had been given past increases despite her atti-
tude, and some of the relatively few incidents described in
the record reach back in time. But the evidence as a whole
leaves little doubt that manifestations of unsatisfactory at-
titude, which may have been tolerable in the past, in-
creased in 1975 and were at least sufficiently strong that
one cannot conclude that they were used as a pretext to
explain denial of an increase for improper reasons. Al-
though there is some indication that Kelly's dissatisfaction
with company policy was viewed as part of her attitude, no
FEDERAL YEAST CORP.
contention has been made that attitude was used here as a
code word to signify Kelly's concerted or union activities.
On the record before me I cannot conclude that an infer-
ence that Kelly was denied an increase because of her
union activities outweighs an inference that she was denied
an increase in September for the reasons assigned by Gush-
wa. In these circumstances, I find that the General Counsel
has failed to establish that Kelly was denied an increase in
violation of Section 8(a)(3) of the Act.
IV. THE REMEDY
Having found that Respondents have engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that they be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that Respondent Bakery Products de-
nied Judith Ann Katsianos a wage increase and discharged
her in violation of Section 8(a)(3) of the Act, I shall recom-
mend that Respondent Bakery Products be ordered to of-
fer her immediate and full reinstatement to her former job
or, if that job is no longer available, to substantially equiv-
alent employment, without prejudice to her seniority or
other rights and privileges. I shall further recommend that
Respondent be ordered to make her whole for any loss of
earnings she may have suffered as a result of the discrimi-
nation against her by payment to her of the amounts she
normally would have earned from July 1, 1975,45 until the
date of Respondent's offer of reinstatement, less net earn-
ings to which shall be added interest at the rate of 6 percent
per annum, in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Federal Yeast Corporation and Bakery Products,
Inc., are employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. Brewery, Yeast, Soft-Drink Workers and Driver-
Salesmen , Amusement and Vending Servicemen and Al-
lied Workers Teamsters Local Union 333, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By threatening that Respondents would change their
hours of employment, deny wage increases, eliminate jobs,
and withdraw other privileges if the Union were selected
by the employees as their bargaining representative, and by
telling an employee that she was denied a wage increase
because of her union activities, Respondent Bakery Prod-
ucts interfered with, restrained, and coerced employees in
45 From July I, 1975, until October 31, Katsianos is entitled to the differ-
ence between what she would have earned if not discriminatorily denied an
increase and what she was paid by Bakery Products, including her severance
pay Upon reinstatement Katsianos is entitled to the wage rate she would
have received absent discrimination against her
1057
the exercise of their protected rights and has engaged in
unfair labor practices affecting commerce within the mean-
ing of Sections 8(a)(1) and 2(6) and (7) of the Act.
4. By interrogating employees concerning their reasons
for wanting union representation Respondent Federal
Yeast interfered with, restrained, and coerced employees in
the exercise of their protected rights and has engaged in
unfair labor practices affecting commerce within the mean-
ing of Sections 8(a)(1) and 2(6) and (7) of the Act.
5. By denying a wage increase to Judith Ann Katsianos
and discharging her because of her activities on behalf of
the Union, Respondent Bakery Products has engaged in
unfair labor practices affecting commerce within the mean-
ing of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 46
A. Respondent, Bakery Products, Inc., Baltimore,
Maryland, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership and activities in Brewery,
Yeast, Soft-Drink Workers and Driver-Salesmen, Amuse-
ment and Vending Servicemen and Allied Workers Team-
sters Local Union 333, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, by
discriminating in regard to the grant of wage increases, or
the hire and tenure of employment of its employees or by
discriminating in any other manner in regard to any term
or condition of their employment.
(b) Threatening employees that it will change the hours
of employment, deny wage increases, eliminate jobs, or
withdraw other privileges in the event they elect to be rep-
resented by the above-named Union or any other labor
organization.
(c) Telling any employee that he has been denied a wage
increase because of union activities.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Judith Ann Katsianos immediate and full rein-
statement to her former job or, if that job is not available,
to substantially equivalent employment, without prejudice
to her seniority or other rights or privileges and make her
whole for any loss of earnings she may have suffered as a
result of discrimination against her in the manner set forth
in the section of the Decision entitled "The Remedy."
46 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records rele-
vant and necessary to a determination of compliance with
paragraph (a) above.
(c) Post at its Baltimore, Maryland, place of business,
copies of the attached notice marked "Appendix A." 41
Copies of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by Respon-
dent's representative, shall be posted by it immediately
upon receipt thereof and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
B. Respondent Federal Yeast Corporation, Baltimore,
Maryland, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees concerning their reasons for
wanting union representation.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its Baltimore, Maryland, place of business,
copies of the attached notice marked "Appendix B." 48
Copies of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by Respon-
dent's representative, shall be posted by it immediately
upon receipt thereof and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
47 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
48 See In 47, supra
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership and activities
in Brewery, Yeast, Soft-Drink Workers and Driver-
Salesmen, Amusement and Vending Servicemen and
Allied Workers Teamsters Local Union 333, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any
other labor organization, by discriminating in regard
to the grant of wage increases or the hire and tenure of
employment of our employees or by discriminating
against them in any other manner in regard to any
term or condition of their employment.
WE WILL NOT threaten our employees that we will
change their hours of employment, deny them wage
increases, eliminate their jobs, or withdraw other privi-
leges if they elect the above-named Union or any
other labor organization to represent them.
WE WILL NOT tell any employee that he has been
denied a wage increase because of union activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed in Section 7 of the Act.
WE WILL offer Judith Ann Katsianos immediate and
full reinstatement to her former job or, if that job is no
longer available, to substantially equivalent employ-
ment, without prejudice to her seniority or other rights
and privileges, and WE WILL make her whole for any
loss of earnings she may have suffered as a result of
the discrimination against her.
BAKERY PRODUCTS, INC.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question our employees about their
reasons for wanting a union to represent them.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the Act.
FEDERAL YEAST CORPORATION