Mead's Bakery, Inc.

National Labor Relations Board - Board DecisionsAug 15, 1962

138 N.L.R.B. 141 (N.L.R.B. 1962)

MEAD'S BAKERY, INC. 141 Berry testified that she did speak to Irion and Sharp at or about the time indicated; and that these discussions were part of a series of interviews with each of the tele- phone operators, in which she sought ideas for the improvement of the hotel's telephone service. She denies having mentioned a union to Irion, Sharp, or any of the others. Three other telephone operators who worked on a same shift testified, and I find, that Berry spoke to each of them at or about this time; asked them for suggestions for improvement of the service; and made no mention of any union. One operator, who had been working on another shift, did not recall if she had been interviewed. Irion, who impressed me as a credible witness, gave a plausible explanation of the raising of the subject of unions, even though this may not have been intended by Berry to be raised in this series of conversations Irion had met Ardella Campbell," who had asked Irion to have another hotel telephone operator call her. In the conversation at issue herein, Berry apparently showed an awareness of Campbell's message and, in this context, allegedly mentioned Campbell, proceeding from there to her remark about unions. I was impressed by Sharp as well as by Irion, and I do not believe they would exaggerate; I find that Berry made the remarks attributed to her by them. Because, however, the remarks were less than clear in their meaning and, at most, were isolated in character, I do not find them to constitute interference with, restraint, or coercion of employees in the exercise of the rights guaranteed them in Section 7 of the Act. On the basis of the foregoing factual findings and conclusions, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3 Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and Section 2(6) and (7) of the Act. , RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. 11 Campbell worked full time for the telephone company In the past-hut not for a iiumber of months-she had performed some part-time wort for Respondent Mead 's Bakery , Inc. and American Bakery and Confectionery Workers Local Union No. 173, American Bakery and Confec- tionery Workers International Union , AFL-CIO Mead 's Bakery, Inc. and General Drivers, Chauffeurs and Help- ers, Local Union No. 886 , International Brotherhood of Team- sters, Chauffeurs , Warehousemen and Helpers of America. Cases Nos. 16-011-1611 and 16-CA-1626. August 15, 1962 DECISION AND ORDER On June 15, 1962, Trial Examiner William Seagle issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and :take certain affirmative action, as set forth in the attached Intermediate 138 NLRB No. 16 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report and the entire record in the case, including the exceptions and brief, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges and amended charges dated, respectively, February 2, March 7, and April 4, 1962, a complaint and consolidated complaint dated, respectively, March 23 and April 20, 1962, were issued against Mead's Bakery, Inc., herein called the Respondent, charging it with violation of Section 8(a)(1) and (3) of the Act. The substance of these charges was that the Respondent interrogated employees with respect to their union activities, and threatened to close the plant in the event that it was unionized, and that it discriminatorily laid off and subsequently refused to reinstate two of its employees, Murriel D. Jennings and Jimmy Capps. The Respond- ent, having denied these charges in its answer, a hearing with respect to them was held at Lawton, Oklahoma, on May 15, 1962, before Trial Examiner William Seagle. At the close of the hearing, counsel on both sides waived oral argument but subse- quently filed briefs which I have duly considered Upon the record so made, and based upon by observation of the witnesses, I hereby make the following FINDINGS OF FACT I THE RESPONDENT The Respondent is, and at all material times has been, a Delaware corporation, maintaining its principal office and place of business at 1900 W. Seventh Street in the city of Amarillo, State of Texas. The Respondent operates bakeries located at Amarillo, El Paso, Abilene, and Wichita Falls in the State of Texas; Lawton, Ada, and Oklahoma City in the State of Oklahoma; Albuquerque in the State of New Mexico; and also a bakery in the State of Louisiana At these bakeries and loca- tions, the Respondent has been engaged in the manufacture, sale, and distribution of bread, buns, rolls, sweet goods, and related products The only bakery of the Respondent directly involved in the present proceedings is the one located at Lawton, Oklahoma. During the past calendar year. the Respondent, in the course and conduct of its business operations, purchased, transferred, and delivered to its bakery at Lawton, Oklahoma, flour, yeast, shortening, sugar, and other goods and materials. valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported to said bakery directly from States of the United States other than the State of Oklahoma. II TIIE LABOR ORGANIZATIONS INVOLVED American Bakery and Confectionery Workers Local Union No. 173, American Bakery and Confectionery Workers International Union , AFL-CIO (hereinafter referred to as the Bakers ), and General Drivers , Chauffeurs , and Helpers, Local Union No. 886 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen MEAD'S BAKERY, INC. 143 and Helpers of America (hereinafter referred to as the Teamsters), are labor organi- zations that have sought to organize employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background A number of attempts to organize employees of the Respondent had been made prior to the events leading to the present proceedings but they had been unsuccessful. The Respondent was hostile to the union organization of its employees, and mani- fested this hostility also when the Teamsters and the Bakers attempted to organize its employees in 1961. Gerald D. Speck, one of the three transport route drivers working out of the Lawton plant, encountered this hostility when he was hired on September 9, 1961, by Alan Shackleford, the general manager of the plant. Shackleford asked Speck whether he belonged to the union-meaning the Teamsters-and when Speck told Shackleford that he did not belong to the union, the latter observed that "he didn't want to mess with the union." On October 16, the Teamsters filed a representation petition, and a hearing thereon was scheduled but subsequently the union and the Respondent entered into a con- sent agreement for an election to be held on November 30, 1961. The Teamsters won this election. In the latter part of November 1961, Shackleford asked Speck if the union had done him any good. Speck's reply to this question was: "No, not yet," whereupon Shackleford commented that "he didn't know that the union did anybody any good." Benjamin T. Matthews, another of the route transport drivers working out of the Lawton bakery, also had a number of conversations with Shackleford concerning unions. In April or May 1961, Matthews approached Shackleford about a raise, and pointed out that drivers in Oklahoma City were getting higher wages for the same work. Shackleford's comment on this was that "they had tried to take [sic] this place union three times before." Matthews had another conversation with Shackleford in an alley behind the bakery shortly before the Teamsters filed the representation petition. It was a Saturday morning, and, since the drivers had taken their trucks to the garage, Shackle- ford picked them up, and they had some coffee at a drive-in, after which they drove back to the bakery to turn their money pouches in at the office. Shackleford offered to take Matthews' pouch in but the latter declined his offer, remarking that he had to punch the timeclock anyway. This led Shackleford to declare that now that they had Jimmy Hoffa to help them, they would have to punch the clock. Matthews insisted that the employees were acting within their legal rights in petitioning the union, and Shackleford conceded this to be true but he observed, regretfully, that he should have fired him and Speck when he had seen them drinking coffee at Rusty's for an hour but now it was too late. Despite this rather ominous remark, Matthews declared that he saw no need for an election, since there were only three transport drivers, and they were 100 , percent for the union. Thereupon, Shackleford again assayed the role of prophet. "They tried it before and they will try it again," he declared. In still another conversation with Matthews in the bakery alley about this time, Shackleford also made some disparaging comments concerning the personal appearance of the people who had been trying to put the union across-how badly they needed shaves and haircuts. Early in November 1961, an attempt was also made to get the inside bakery employees at Lawton to join the Bakers. But the representation petition of this union was not filed until January 2, 1962. An agreement for a consent election was entered into on January 11, 1962, and the election was held on January 18, 1962. The Bakers lost this election. The representative of the Respondent at the Lawton plant who was principally active in opposing the unionization of the inside bakery employees was John Isaac Weston, its superintendent. However, in the evening of January 16, which was 2 days prior to the election, Warren Gibson, the comptroller and secretary of the Respondent, who was in overall charge of its labor relations, also gave a talk at the Lawton plant to the employees in which he discussed the Bakers. Gibson summarized his talk by stating that, while he told the employees that they could vote as they saw fit, he "didn't say anything very complimentary about the union naturally. . Although there was nothing unlawful in itself in Shackleford's griping about unions, or perhaps in his attempts at prophecy, or in his reflections on the personal appearance of union representatives, or in Gibson's speech to the employees, the same cannot be said of Shackleford's, as well as Weston's interrogations of employ- ees, since they were accompanied by warnings against supporting the unions and threats of discharge or other reprisals, if they continued to support them. These 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warnings and threats were, moreover, actually carried out in two instances, as will now be shown. B. The layo/J of Murriel D. Jennings The transport route driver at the Lawton plant who was solely instrumental m getting the transport route drivers to sign authorization cards for the Teamsters was Murriel D. Jennings . On October 11, 1961, Jennings called Booher of the Team- sters in 'Oklahoma City, and asked the union representative to mail authorization cards to him. Jennings received the authorization cards right away, and persuaded Speck and Matthews to sign them. He also, of course, signed one of the cards himself. On November 8, 1961, Jennings encountered Shackleford in the plant in the hall between the secretary's office and the latter's office, and Shackleford asked Jennings whether he and the other two drivers had backed out of the union. When Jennings denied this, Shackleford told him that he had a telegram from the Board canceling a scheduled meeting,' and remarked, "As far as I am concerned, it's all over. Now what are you all going to do?" Jennings replied that he "wasn' t going to do any- thing except call the business agent," and ask him about it, which he did. The last day that Jennings worked for the Respondent was November 14, 1961. When he reported for work about 4:30 p.m. on November 15, he failed to find his pouches in their usual place in the windows, and accompanied by Speck and Matthews, went to look for Shackleford whom he finally located at Maw Hand's Grill, a few doors east of the bakery. Shackleford was having coffee with Tubbs, a route supervisor over Jennings ' division. When Jennings asked Shackleford about his pouches, the latter told him: "Yes. We have them here. Mr. Tubbs is going to run your route. From now on it is going to be run out of Wichita Falls, I am going to give you a week's pay. That's more than anybody has ever done for me." Jennings then asked: "Does that mean you are letting me go?" and Shackleford replied: "That's right." At this point in the conversation, apparently Speck inter- posed by saying that if Shackleford was going to lay someone off, it should have been he, since he was the most recent employee. Whereupon Shackleford told Speck that he might be next. A week after his layoff, Jennings went to the plant for the week's pay that Shackle- ford had promised him. When the latter appeared with his paycheck, he told Jen- nings that John A. Bingham, the general manager of Mead's Bakeries , had offered to pay Jennings ' way to Abilene, Texas, if he wanted to see Leo Green, who was in charge there, and might find something for him to do. Jennings replied that he owned his home in Lawton, where his children were attending school, and that he would need a few days to think it over, to which Shackleford agreed. The follow- ing Monday, Shackleford telephoned Jennings in the evening to inquire whether he had decided to go to Abilene. Jennings suggested that he come to the plant the next morning, so that they could first call Green and ascertain how matters stood. When Jennings appeared the following morning, and the telephone call to Green was put through, Shackleford was informed by Green that the run had already been taken care of. The reemployment of Jennings was also discussed late in March after the Teamsters had won the election, and the Respondent, through Gibson, had entered into negotiations with Russell Huckabee, the Union's representative. Gibson told Huckabee that he would take Jennings back if he would waive backpay but Jennings himself testified that he was never offered his job back, and there is nothing to show that even Gibson's qualified offer to Huckabee was ever conveyed to Jennings. The Respondent did not call Shackleford as a witness, either to deny any of his warnings or threatening remarks, or to explain the circumstances of Jennings' layoff. it left this difficult task to Bingham, the general manager of its bakeries, who had no immediate or direct knowledge of these circumstances. Bingham, taking the stand, proceeded to tell a long story about a plan conceived no less than 7 years ago that ultimately resulted, according to him, in the layoff of Jennings. It appears from the testimony of Bingham that in recent years the economics of bread production have dictated an ever-increasing magnitude of operations. Where formerly bread could be transported and distributed only within a 50-mile radius from a plant, it could now be transported and distributed within a 200-mile radius In 1960, new equipment known as Amflow, which greatly reduced the time needed to make dough rise, was perfected and these Amflow units permitted far greater plant utilization. The Respondent's executives planned to expand the plant at Wichita Falls and install there one of three Amflow units that they had acquired, i Although Jennings, in testifying about this conversation, employed the word "meetine." Shackleford must have had in mind the scheduled hearing, which was rendered unnece,sarv by the agreement for a consent election MEAD'S BAKERY, INC. 145 after which they planned to close the Lawton plant altogether and service its cus- tomers from Wichita Falls. Shackleford was instructed to take the first steps leading to the closing of the Lawton plant, and among these steps was the discontinuance of Jennings' route, which was closest to Wichita Falls. But, actually, the decision to close the Lawton plant was not carried out. It seems that the Respondent's com- petitors were also acquiring Amflow equipment, and their competition caused the Amflow unit intended for Wichita Falls to be diverted elsewhere. The Lawton Chamber of Commerce also kept exerting pressure on the Respondent not to close the Lawton plant, and in the end the order to close it was rescinded. This was accomplished by a letter from E. P. Mead to Bingham under date of January 18, 1962, and Jennings' transport route was again operated out of the Lawton plant but not by Jennings. Assuming that Bingham's long story is true in all particulars, the trouble with it is that it does not really explain Jennings' layoff, even if it be assumed, as the Respondent contends, that his route was closest to Wichita Falls. There were three transport route drivers operating out of Wichita Falls, namely Jennings, Matthews, and Speck. Jennings had far greater seniority than either Matthews or Speck. Jen- nings had been working for the Respondent for approximately 2 years and 3 months at the time of his layoff but Matthews had then been working for the Respondent for only about 9 months, and Speck for only 2 months. Yet, it was Jennings rather than either of the other two drivers who was laid off. The fact that his route was closer to Wichita Falls than theirs did not make him the logical choice. A driver does not have a vested interest in a route, which is not like a freehold estate. There was nothing to prevent Shackleford from giving Speck's route to Jennings and letting Speck go. Speck himself recognized this. Moreover, when laid off, Jennings was driving what was known as route No. 3, but before that he had been driving what was known as route No. 1. Change in routes was thus practiced, -and there was no reason why Jennings as the driver with the greatest seniority should not have been shifted to either route No. 1 or route No. 2. Furthermore, the precipitate nature of Jennings' layoff, of which he had absolutely no previous notice, suggests strongly that it was motivated by something other than operational considerations The Respondent argues that it could not give Jennings prior notice of his layoff be- cause if it became known that the Lawton plant was being closed the Respondent's competitors would find it easier to invade its market. The trouble with this argu- ment is that the layoff of a particular driver does not in itself betoken the closing of a plant, since the layoff might very well be due simply to a decline in business. But an even more conclusive answer to the Respondent's argument is that even if Jen- nings could not have been safely told of his layoff in advance, there was nothing to prevent the Respondent from hiring another driver in Wichita Falls to take over Jennings' route as soon as he was laid off. Since the closing of the Lawton plant was planned so long in advance, a replacement for Jennings could also have been readily found long in advance. Instead, no such arrangement had been made, and the Respondent was forced to employ one of its route supervisors-the aforemen- tioned Tubbs-to take over Jennings' route for at least 3 nights. Finally, there is the fact that Jennings was not recalled even after it had been decided to keep the Lawton plant in operation. It was not until more than 2 months later that Gibson even made the qualified offer to the representative of the Teamsters to take Jennings back The prior offer to find Jennings a job out of Abilene, Texas, does not militate much in the Respondent's favor even if it be assumed that a job actually existed there. A job in Abilene would simply have effectively removed Jennings from any further opportunity for promoting the Teamsters. I find that the real reason for Jennings' layoff was this very promotion of the Teamsters C. The layoff of Jimmy Capps Just as Jennings was solely responsible for bringing the Teamsters into the Lawton plant, another employee at the plant, Jimmy Capps, was solely responsible for the presence of the Bakers. A slender youth of 20 or 21, he worked as an oven puller at the plant but he was also attending college, his ambition being to become a pharmacist. Young as he was, he was already married and his wife was expecting a baby. Jimmy Capps' employment at the Lawton bakery was the result of a friendship between him and Weston's son. This friendship had developed when they were freshmen together at the University of Arkansas. Weston's son brought Jimmy home with him at Christmas, and he stayed overnight at the Weston home. After school was over, Capps, who had been married, asked Weston for a job, and Weston gave it to him because of his friendship with his son. Indeed, Weston took Jimmy under his wing, and even sought to protect him on one occasion when he was accused 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of breaking into a coke machine at a service station one night and thrown into jail. Weston talked to the service station man and the police, telling them that he did not think that ",the boy had anything to do with it." When Weston was asked: "You felt like a father to this boy Capps, didn't you?" his answer was: "I sure felt pretty close to him, yes." Jimmy Capps started to work at the Lawton bakery in August 1960. He racked bread for about 6 months, and then was promoted to oven pulling, a more difficult job at which he worked until his layoff. When first employed, he received $1 an hour but he obtained four or five raises-the last one was in September 1961-and at the time of his layoff was receiving $1.45 an hour. When first employed, Capps worked from 8 or 9 a.m. to 4 or 5 p.m., averaging about 50 hours a week. But when he started attending Cameron Junior College in Lawton in September 1961, his work schedule was changed at his request, so that thereafter he worked from 10:30 a.m. to 4 or 5 p.m., still averaging over 40 hours a week. During the first week of November 1961, Capps contacted A. L. Hendricks of the Bakers in Oklahoma City by telephone, and asked for his support in getting a union started in the plant. Hendricks sent Capps union authorization cards, and the latter started to get them signed. There were 42 bakery employees, and Capps obtained 20 signatures to the authorization cards, soliciting the employees both during and after working hours. In all, he talked to 25 employees. On November 16, 1961, which was the day after Jennings' layoff, and not very long after Capps' union activities began, the latter received a telephone call from Weston, who told him that he was coming over to see him. This telephone call was made about 8 p.m., and shortly thereafter Weston arrived with Aldrich, the plant foreman, who, however, remained in the car. When Capps and his wife invited Weston into the house trailer in which they lived, Weston declined the invitation, stating that he wanted to talk to Jimmy privately in his car. Consequently, the latter entered Weston's car and the conversation between them took place there. In this conversation, Weston told Capps that he wanted to talk to him while there was still time and sought to dissuade him from continuing his union activities. Weston described the people who belonged to unions as the sorriest and most dissatisfied lot that he had even seen, and told Capps that the older hands did not even want a union and were only using him. However, Weston did not rely merely on persuasion. He coupled it with both an inducement and a threat He promised to fix Jimmy up with another working schedule when he went to school the following semester but he also remarked to him: "You see what happened to that truck driver now since he tried to start a union " This version of the conversation is based upon the testimony of Jimmy Capps. It is manifestly accurate. Indeed, Weston's own version of the conversation was not much different. Thus, he testified: Q. Tell me just what you and he discussed. A. Well, I asked him if he had heard anything about the boys wanting a union. Q. What did he say? A. He said, "Well, all I know," he said, "somebody told me a dough mixer in Oklahoma City gets $2.13 an hour." He said, "That sounds pretty good to me." Q. Is that all that was said to Jimmy about the Union? A. Oh, no. Q. Tell me what else was said. A. I told him about being misinformed about the dough mixer; that they had never been able to sell these boys here because they had nothing to sell them and that he was lust a boy going to school and I didn't see where a union could help him whatsoever on account of him going to school . I said , "It might be that I couldn't," be possible where maybe I couldn't work him. Q. Did you tell him at that meeting that maybe you could take care of him as far as his school hours where concerned later on? Did you mention that to him? A. I was taking care of him at that time. Q. I know. But did you tell him in the event he had his schedule changed that you would take care of him? A. No. I don't remember that. Q. You don't remember that? A. No. [Emphasis supplied.] Weston was a rather unusual type of witness. He had an air of candor, and he was candid up to a point. He shrank only from extremely damaging admissions. But he could, nevertheless, contradict himself on any given point without the slightest MEAD'S BAKERY, INC. 147 awareness of the contradiction , and without the slightest embarrassment , apparently. So far as his visit to Jimmy Capps' home was concerned, for example, he readily admitted the purpose of his visit, although he had just denied that he knew that Jimmy had started the union at the bakery! He seemed to be entirely unconscious of the implication to be drawn from the furtive nature of his visit, which is that if there was nothing incriminating in anything he had to say to Jimmy Capps, he would have accepted his invitation to enter his home and say it in the presence of his wife. The last day that Jimmy Capps worked for the Respondent was Friday, Novem- ber 24. On that day, Aldrich brought his timesheet down, and when Capps looked as it he noticed that he was not scheduled to work on Sunday as he had expected. He, therefore, asked Aldrich for an explanation but was told to see Weston. When he did, Weston told him that he was being laid off because there was not enough work for everyone, and that he had to save what work there was for the older hands. Capps asked Weston to let him go back to bread racking but Weston told him that he could not do it. Then Capps offered to quit school, so that he could work on an- other shift but Weston repeated that there was not enough work for everyone. Weston did offer, however, to help Capps get a job elsewhere-in a grocery store. Capps did not specifically mention that his wife was expecting a baby but he did emphasize that he had more responsibilities than some of the other employees. When he finally perceived that he would be unable to get Weston to change his mind, he remarked to the latter that he might as well go home, and Weston agreed. Capps then went and told his brother-in-law, Lacefield. who was a bread racker in the plant, about his layoff and his brother-in-law quit in protest, apparently. Capps and his brother-in-law left the plant together about 20 minutes before the scheduled end of the shift. Subsequent to his layoff, Capps visited the Lawton plant on two occasions. On the first of these visits, which occurred a few weeks after his layoff, he talked to one of the bakery employees, Leroy Kerbo, who had worked at the plant for 8 years and operated a dividing machine. They talked about the union for 10 minutes. A week later Capps went to the plant again but he was seen by Aldrich who ordered him to leave. "You are not needed here," Aldrich told him. Capps visits to the plant apparently disturbed Weston, and, shortly after Capps' second visit, having to go out-of-town-he was leaving for El Paso, Texas, for a week-he decided to pay a visit to Kerbo's home to make sure that the union agitation had really blown over. Actually, however, as in the case of his visit to Capps, Weston interviewed Kerbo in his car in front of the latter's house. The testimony of Weston and Kerbo are in fairly close agreement as to the substance of their conversation. Weston wanted to know why the boys were unhappy and why they had listened to Jimmy Capps.2 There was some discussion of why the employees were discontented but in the end Weston felt satisfied that there would be no further trouble with the union , and-departed. In attempting to explain the reason for Capps ' layoff on the witness stand, Weston repeated what he had told him in person but he put it much more dramatically, and developed it much more elaborately. He testified that production had been reduced by the transfer of Jennings' transport route to Wichita Falls, and that a price war on brown-and-serve rolls had developed. Some of the employees started complain- ing that Weston was starving them to death, and he finally decided to lay off Jimmy Capps and another employee, Clarence Dalrymple, who worked in the wrapping room and helped to load transports. According to Weston, he selected Jimmy be- cause "he was the youngest man up there doing the job that he was doing,3 pulling bread. But I had set up certain hours for him and he had told me that it didn't matter to him one way or the other what the union done, because he wouldn't be here after May." Weston also knew, he testified further, that Jimmy was getting help from his brother-in-law and sister-in-law, and "he had less family than others." Actually, there was no truth in Weston's testimony that Capps was the employee with the least seniority and responsibilities. There were three other employees who had less seniority than he did. These three were Elmer Brown, who had been employed in June or July 1961 as a bread racker, and who had then been made an 2At one point Weston was asked: "Did you also tell Mr. Kerbo, `I don't see why you want to follow Jimmy for he is just a young schoolboy and he was going to quit anyway,' did you tell him that?" and his reply was' "Well, now I could have I don't know " 8 When Weston testified that Jimmy Capps was the "youngest" man, he was not speak- ing of his age but of his seniority in the plant . Thus at another point in his testimony when Weston was asked: "And you let him go because he had less seniority than other people ," his reply was: "That's right." 682353-63-vol. 138-11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD oven puller; James Oche, who had been employed 4 or 5 months after Capps, and whose job was racking bread; and Wayne Lacefield, Capps' brother-in-law, who had been employed in August 1961, approximately a year after him. Moreover, Oche and Lacefield, unlike Jimmy Capps, were both single men and, while Brown was a married man, he was, according to Weston's own testimony, so hopelessly stupid and incompetent that he finally had to be fired about 5 weeks after Jimmy Capps had been laid off. Weston himself called Brown a handicap and a deadbeat, and declared: "He wasn't crippled. He let on like he was crippled and then he didn't have nothing up here in his head." Needless to say Weston did nothing to recall Jimmy Capps after Elmer Brown had been fired. There is equally no truth in Weston's testimony that Jimmy Capps had told him that he would quit the bakery the following May to go to school. Jimmy mentioned it only as a possibility, and, as he testified, when he was faced with the actuality of his layoff, he offered even to work as a bread racker on another shift, and to quit school, so that he could do so. Considering his family circumstances at the time, this is hardly surprising. Weston also attempted to make much of the supposed fact that Jimmy Capps was only a part-time employee. But this can hardly be said to be true of an employee who was working over 40 hours a week, which is generally regarded as a normal workweek. Jimmy Capps was, to be sure, an employee for whom a special arrangement had been made. But the very willingness of Weston to make this arrangement was only another example of the favored treatment which he had always received. It is this past favoritism that stands in such sharp contrast to the discriminatory treatment which he was accorded after he commenced his union activities. His case presents, indeed, one of the typical syndromes in the field of discriminatory discharges-that of the highly favored employee who suddenly falls out of favor when he listens to the siren voice of the union organizer. Both the direct and circumstantial evidence fully justifies the conclusion that his discharge, too, was discriminatory. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE I find that the activities of the Respondent set forth in section III of this report, occurring in connection with the operations of the Respondent described in section I, thereof, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The scope of the Respondent's unfair labor practices seems sufficiently extensive to justify a broad form of cease-and-desist order, and I shall recommend an order designed not only to prevent the repetition of the specific unfair labor practices in which the Respondent has engaged but also to effectuate all the guarantees of Section 7 of the Act. So far as affirmative relief is concerned, I shall recommend that the Respondent make whole Murriel D. Jennings and Jimmy Capps for any loss of pay each of them may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period, said backpay to be com- puted on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company, 90 NLRB 289. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The unions are labor organizations within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees with respect to their union affiliations and activities, and by attempting to restrain their union activities by threats or by warnings of reprisals, the Respondent has violated Section 8(a) (1) of the Act. 4. By laying off Murriel D. Jennings and Jimmy Capps and by failing to reinstate them, although work became available for them, the Respondent in effect discharged these employees, and discriminated with respect to the hire and tenure of their employment in violation of Section 8(a)(3) and (1) of the Act. MEAD'S BAKERY, INC. 149 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Mead's Bakery, Inc., its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Coercively interrogating employees with respect to their union affiliations and activities , or attempting to restrain their union activities by threats or by warn- ings of reprisal. (b) Discouraging membership in American Bakery and Confectionery Workers Local Union No. 173, American Bakery and Confectionery Workers International Union, AFL-CIO, and in General Drivers, Chauffeurs and Helpers, Local Union No. 886, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, by discharg- ing or in any other manner discriminating against employees with respect to their hire or tenure of employment or any term or condition of their employment. (c) In any other manner interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Offer to Murriel D. Jennings and Jimmy Capps immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him in the manner and to the extent set forth in the section entitled "The Remedy." (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 for the deter- mination of the amount of backpay due under this Recommended Order. (c) Post at its plant in the city of Lawton, State of Oklahoma, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice to be furnished to the Respondent by the Regional Director for the Sixteenth Region, shall, after being signed by the president of Respondent and the general manager of the Lawton plant, be posted immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that the copies of the said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply with its requirements .5 It is further recommended that, unless within 20 days from the date of the receipt of this Intermediate Report , the Respondent notifies the said Regional Director that it will comply with the foregoing recommendations, the Board issue an order re- quiring the Respondent to take the aforesaid action. ' In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations 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 "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 5In the event that this Recommended Order be 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 Pursuant to the Recommendations of a Trial Examiner of the National Labor Rela- tions Board , and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT coercively interrogate our employees with reference to their union affiliations or activities, or attempt to restrain their union activities by threats or warnings of reprisal. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in American Bakery and Confectionery Workers Local Union No. 173, American Bakery and Confectionery Workers International Union , AFL-CIO, and in General Drivers, Chauffeurs and Helpers, Local Union No. 886, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , or any other labor organization of our employees , by discriminating in regard to the hire or tenure of their employment or any term or condition of their employment. WE WILL NOT in any other manner interfere with , restrain , or coerce our employees in the exercise of their right to self -organization , to form , join, or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all of such activities. WE WILL offer to Murriel D. Jennings and Jimmy Capps immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay they may have suffered as a result of our discrimination against them. All our employees are free to become , remain , or refrain from becoming or re- maining members of any labor organization. MEAD'S BAKERY, INC., Employer. Dated------------------- By------------------------------------------- (President) ------------------------------------------- (General Manager of Lawton plant) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act 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, Room 2093-Federal Center, 300 West Vickery, Fort Worth 4, Texas, Telephone Number, Edison 5-5341, Extension 284, if they have any question concerning this notice or compliance with its provisions. Florida All-Bound Box Company and Local Union 2653, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case No. 12-CA-2243. August 15, 1962 DECISION AND ORDER On May 31, 1962, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Leedom and Brown]. 138 NLRB No. 18.