Royal Baking Co., Inc.

National Labor Relations Board - Board DecisionsJun 27, 1969

177 N.L.R.B. 129 (N.L.R.B. 1969)

ROYAL BAKING COMPANY, INC. Royal Baking Company, Inc. and Local No. 249, American Bakery and Confectionery Workers International Union , AFL-CIO. Case 12-CA-4195 June 27, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On April 16, 1969, Trial Examiner James M. Fitzpatrick issued his Decision in the above-entitled proceeding , finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner ' s Decision and a brief in support of its exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. 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 Trial Examiner ' s Decision , the exceptions , brief, and the entire record in this case, and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order the Order recommended by the Trial Examiner, and orders that the Respondent, Royal Baking Company , Inc., its officers , agents, successors , and assigns , shall take the action set forth in the Trial Examiner 's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK , Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended (the Act), was tried before me at Miami , Florida, December 3 and 4 , 1968, on a complaint issued October 23, 1968 , pursuant to an initial charge filed April 15, 1968, and amended October 10, 1968, and Respondent' s answer to the complaint. The issues are whether Royal Baking Company, Inc. (Respondent or Company) fired employee Robert E. Burke because of union activity in violation of Section 8(a)(3) of the Act, and interrogated employees regarding union sympathies and activities and solicited employees to join a rival union in violation of Section 8 (a)(1) of the Act. A preliminary issue is whether one Paul Rathbone, alleged to have engaged in some of the solicitation, was a 129 supervisor whose conduct is attributable to Respondent. Upon the entire record , including my observation of the witnesses and consideration of the briefs of General Counsel and Respondent , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATIONS INVOLVED The Company, a Florida corporation, which operates a bakery at Miami, Florida, where it engages in the baking and wholesale distribution of bread, cake , and related products, and where it annually receives goods and materials valued at over $50,000 from points outside the State of Florida, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The charges herein were filed by Local No. 249, American Bakery and Confectionery Workers International Union, AFL-CIO (Bakery Union). Also involved is General Sales Drivers and Allied Employees Union, Local No. 198, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters). I find Bakery Union and Teamsters to be labor organizations within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts - The Production Departments At times material to the complaint the Company employed a total of about 240 employees, of which about 105 were engaged in the production of baked goods. The baked goods produced were of two types , sweet goods and nonsweet goods . Nonsweet goods included bread and bread-like products such as rolls . Sweet goods included cake and in general other baked products using large amounts of sugar and were produced in the sweet good department. The Company contends that bread and rolls were produced in one department . The General Counsel contends that rolls were produced in a department separate from the bread department . In any event it is clear that the nonsweet goods including both bread and rolls were under the overall supervision of Production Manager John Hatcher and Assistant Production Manager Vernon Parrish . Whether or not rolls and bread were formally in separate departments , it at least appears that there was some physical and organizational separation between the production of the two items. Although the production processes for bread and rolls were substantially similar, different machines were used for each . The facilities and personnel for each were physically separated by a wall-like partition . Different employees worked on the bread producing machinery than worked on the roll producing machinery. B. Supervisory Status of Paul Rathbone The Company employed from 35 to 38 employees in roll production , divided into two approximately equal shifts . According to the Company these were supervised only by Production Manager Hatcher and Assistant Production Manager Parrish . The General Counsel alleges, and Respondent denies, that one Paul Rathbone also exercised supervisory authority as to employees in roll production. 177 NLRB No. 23 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is undisputed that , among other things , Rathbone's duties in roll production included : frequent "setting up" the machinery to operate in accordance with daily production schedules ; training and instructing new employees , a frequent requirement because of rapid turnover in employees ; and, on occasion , in the event of absenteeism and the unavailability of another substitute, operation of any of the machines . Respondent asserts he was at most a leadman with only routine authority. General Counsel offered evidence that he exercised additional supervisory authority . Rathbone himself did not testify . About 3 or 4 months prior to the hearing, and subsequent to the events covered in the complaint, he had left the Company ' s employ. In April 1968 , according to the testimony of Production Manager Hatcher, only he and his assistant Parrish exercised supervision over the production of bread and rolls, there being no supervisors subordinate to Parrish. All other employees were either rank -and-file employees or leadmen with no authority to hire , fire, lay off, or discipline or to make recommendations for layoffs or pay raises . Specifically with regard to Rathbone, he recalled no instance when Rathbone complained about the work of other employees. Rathbone, he testified , spent 80 to 90 percent of his time working with about five other persons in setting up machines to produce the various types and quantities of rolls called for on the daily production schedule furnished by Hatcher , and the balance of his time training new employees. Subsequent to the time covered in the complaint and about 6 or 7 weeks before Rathbone left the Company, one Francis Fitzgerald , who since January 1968 had been a leadman in bread production, was formally named foreman over both bread and roll production subordinate to Parrish and Hatcher . It does not appear that he formally replaced anyone who previously had the title of foreman . Fitzgerald testified that thereafter he was Rathbone' s immediate supervisor , and when Rathbone left he assumed certain of his duties involving the training of new employees. It is clear that in April 1968 the only formally designated supervisors over the employees on the two shifts in roll production were Hatcher who supervised the entire plant and Parrish who supervised production of both sweet and nonsweet goods . If in reality this was all the supervision that existed , it was indeed thin. The situation was a natural one, then , particularly in view of the substantial turnover in employees, for older, experienced employees such as Rathbone to exercise some degree of supervision, even though informally. I am therefore unable to conclude from the testimony of Hatcher and Fitzgerald that Hatcher and Parrish (who did not testify) were the only persons who exercised any supervisory authority over employees in roll production. From the testimony of a number of rank-and-file employees in roll production it is obvious that they at least considered Rathbone their foreman . Thus Wilbur Alard , a dough mixer , testified that Rathbone was his foreman and , among other things , gave him orders, supervised the work , instructed him in the operation of his machine, and told him when he could take his breaks. Charlie Woodard , an oven man , in his testimony also described him as the foreman of the day shift in the roll department who directed other employees as to what to do and what not to do, what position to take, and when to take breaks, and who designated a relief man when they took breaks . According to Woodard , he also excused employees for illness , and on occasion meted out punishment by giving a day off without pay. Francis J. Twamley, who operated a pan-o-mat machine, also confirmed that Rathbone disciplined employees on the spot by sending them home early. He also stated that he assigned work to employees according to their ability to perform and that , when employees were absent, he assigned others to substitute for the absent employee or filled in himself. Twamley also related that, in a conversation with Hatcher when he was first assigned to roll production in late 1966, he was told that he would be working for Rathbone who would be his foreman , assign him work , and direct him what to do. Hatcher could not recall the conversation but admitted that, ". . . something like that could have gone on, yes, because frequently I do this." Robert E. Burke , a dough mixer and the discriminatee named in the complaint , also testified that Rathbone told people what to do , assigned them work, and disciplined employees by sending them home. There is no dispute about the fact that Rathbone did not punch a timeclock as did rank -and-file employees, that he received a salary rather than hourly wages, and that he kept his clothes in a locker located in a locked room for which he had a key, apart from the location of the lockers of ordinary employees. Considering all the evidence regarding Rathbone's status , I credit the testimony of employees Alard, Woodard, Twamley, and Burke as to particular ways in which he exercised supervisory authority. I do not credit the testimony of Hatcher or Fitzgerald to the effect that supervision was exercised only by Hatcher and Parrish. As noted hereinafter , I did not find Hatcher to be a believable witness . Fitzgerald during the pertinent time period was in bread production and was not present in roll production to the same extent as the ordinary roll employees who testified. Parrish did not testify. I find that in roll production Rathbone assigned work to other employees on the basis of ability to perform, directed them as to what to do and what not to do, assigned substitutes in case of absences and relief men during breaktime , and directed employees when to take breaks. The exercise of these supervisory duties was consistent with his function of instructing new employees in the proper performance of their work. See Henry Colder Company, 163 NLRB 105. It is also consistent with what I infer , from the size of this plant employing 105 production workers and with 240 employees in all, to have been the necessary and frequent absence of Hatcher and Parrish from the site of roll production. See The Bama Company, 145 NLRB 1141. In so finding I am not unmindful that a well-trained rank -and-file employee operating from a daily production schedule provided by Hatcher may have required a minimum of supervision. Nevertheless, on the record before me I find Rathbone did exercise supervision at least to the extent above indicated and in so doing he did lay off, assign , discipline, and responsibly direct employees in a manner requiring the use of independent judgment . The Board has frequently held that the exercise of such functions indicates supervisory status and concomitant employer responsibility for such supervisor's conduct toward other employees . Florence Printing Co., 145 NLRB 141; Ertel Manufacturing Corp., 147 NLRB 312; J. P. Stevens and Co., Inc., 163 NLRB 217; Bama Co., supra; Henry Colder Company, supra. Accordingly, I reject Respondent ' s defense that it bears no legal responsibility for Rathbone ' s conduct. During the hearing at the request of Respondent, I took judicial notice of the Decision and Direction of Election issued December 2, 1968 , in Case 12-RC-3070 involving ROYAL BAKING COMPANY, INC. the Respondent, the Teamsters , and the Bakery Union. Respondent argues that the findings in that decision foreclose a conclusion here that Paul Rathbone was a supervisor. That decision refers to only two production departments , sweet goods and bread, making no mention of any roll department. While no leadmen are mentioned by name , the decision indicates employment of eight leadmen in the bread department , four in sweet goods, and three in shipping , and finds all of them nonsupervisors. On the other hand, the General Counsel here emphasizes that Rathbone was not mentioned by name in that decision , that the findings there were based upon a different record than the present one, and in any event referred to circumstances existing at the time of the representation case hearing on November 12, 1968, a time later than the period alleged in the complaint herein to be material .' Finally, the General Counsel argues that the Decision and Direction of Election in Case 12-RC-3070 is not binding upon the Trial Examiner in the present unfair labor practice proceeding. The record before me contains evidence from company witnesses that roll production made up part of the bread department and was not a separate department. On the other hand, witnesses for the General Counsel who were rank -and-file employees in roll production testified that it was a separate department . I do not view these two lines of evidence as being necessarily contradictory . It may well be that on paper the Company had only one department for nonsweet goods. But I am convinced from the testimony of rank-and -file employees that they considered roll production where they worked separate from bread production in significant regards, and that to them it was a separate department . It seems to me that it doesn't make any difference to the disposition of this case whether technically on the organization chart of the Company roll production was or was not a department separate from bread production. The supervisory status of Paul Rathbone does not depend upon the existence of a separate roll department. I cannot see therefore how the finding in the Decision and Direction of Election based on another record in Case 12-RC-3070 to the effect that there was a single bread department has any persuasive value in the present matter. The decision regarding leadmen on the other hand lends support to the Company's position that Paul Rathbone was not a supervisor . Of course none of the leadmen were named in the decision , and the findings there, as pointed out by the General Counsel, refer to a point of time later than the events covered by the complaint before me. In any case , the Decision and Direction of Election in Case 12-RC-3070 is not binding upon me in this proceeding. Southern Airways Company, 124 NLRB 749, 750; Leonard Niederriter Company, Inc., 130 NLRB 113, 115, fn. 2. And since the record before me contains specific evidence as to what Rathbone did and did not do, I base my findings as to his supervisory status upon the evidence in this record. On December 13, 1968, subsequent to the close of the hearing in the present matter , the General Counsel riled with the Trial Examiner a motion to take judicial notice of the first page of the transcript in the representation proceeding (Case 12-RC-3070). Notice having been given to the other parties herein , and no opposition having been indicated , I hereby grant such motion and take judicial notice of page I of the transcript in Case 12-RC-3070 which indicates that hearing was held November 12, 1968. C. Alleged 8(a)(1) Conduct 131 1. Soliciting by Paul Rathbone for Teamsters The complaint alleges that about April 15, 1968, the Company in the person of Paul Rathbone violated Section 8(a)(1) of the Act by soliciting employees to join another labor organization (the Teamsters), and advising them not to join the Bakery Union. In support of this allegation the General Counsel offered the uncontradicted testimony of two witnesses , Wilbur Alard and Charlie Woodard. In the spring of 1968 when the Bakery Union organizing campaign was in progress, Alard worked as a mixer in roll production. His sister, Mirna Alard, was employed in packing in roll production. Alard identified her signature on an application card for membership in the Teamsters, dated April 16, 1968. According to him at about that time he observed Paul Rathbone come out of the plant office carrying a clipboard to which several such Teamsters cards were attached. Rathbone then proceeded to where Mirna Alard and several other employees were working and solicited their signatures on the Teamsters cards. Wilbur Alard did not hear their conversation but he saw his sister sign one of the cards. Shortly thereafter she told him she had signed a union card. Mirna Alard did not testify. Charlie Woodard, an oven man employed by Respondent, testified that in late April 1968 he and three other employees in roll production were also approached by Rathbone in the plant. He had Teamsters membership application cards on his clipboard and said to the group, "I hear that the boys want to get a union into the plant and that if they want to they ought to get a good one. I have some cards here to sign and get the best one here. The other one ain't no good." One of the group took a card, the others demurred. Rathbone then moved over to the wrapping machine where he talked with the women employees, a couple of whom took Teamsters cards. He then proceeded to the location of the egg washing machine where another employee took a card. Based on the uncontradicted testimony of Alard and Woodard, whom I credit, I find that in April 1968, during the Bakery Union 's organizing campaign , Paul Rathbone, whom I have already found to have been a supervisor of Respondent, circulated among employees in roll production soliciting membership applications in the Teamsters while advising employees that the Bakery Union was no good. In these circumstances I find such advice coercive. 2. Soliciting by John A. Hatcher for Teamsters The complaint also alleges that about April 20, 1968, Production Manager John A. Hatcher solicited employees to join the Teamsters and advised them not to join the Bakery Union. In support of this allegation the General Counsel offered the testimony of Roberto Quintero, an employee of the Company from late 1967 until October 1968. According to Quintero, in April 1968 Hatcher appeared in the plant coffeeroom used by both employees and supervisors with some union cards, one of which he handed to an employee named John Pappas. Pappas put the card between his T-shirt and apron. About 2-1/2 hours later he again saw Pappas with the card, which Quintero then saw was a Teamster card, and Pappas confirmed that Hatcher had given him the card in the coffeeroom. Teamster cards were distinguishable from Bakery Union cards in that they were large while the 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bakery Union cards were small. When Quintero saw Pappas the second time , he was still carrying the card between his T-shirt and his apron. Hatcher denied that he had solicited any signatures for cards. However, Quintero on the stand appeared to be an accurate reporter of detailed facts which he himself observed. I credit Quintero. I do not credit the denial of Hatcher for reasons stated elsewhere in this Decision. I find that in April 1968, during the Bakery Union organizing campaign , Hatcher had in his possession Teamsters membership application cards for distribution to the employees and that he did distribute one of them to employee John Pappas. Cesar Castanela worked as a shipping clerk in the Company' s warehouse located across the street and about a block away from the bakery. The shipping department in which he worked furnished the supplies and materials used by the various production departments in the bakery. Each department daily prepared a requisition of supplies and materials for the following day. These then normally passed into the hands of Production Manager Hatcher or one of his two production assistants in the shipping office located in the bakery building . Arranged along one wall separating this office from an open area in the plant were rows of message boxes, each with a slot opening on the office side and a sliding door on the plant side. These boxes were used for transmitting intracompany communications . On the outside each box was designated with the name of the intended recipient of the communications. One such box was designated for communications directed to the shipping department where Castanela worked . Each day requisitions would be placed in the shipping department ' s box through the slot from inside the shipping office by someone in that office or sometimes by someone from the department requesting the supplies. As a daily routine Castanela picked up the requisition through the opening from the outside of the box. One day in mid-April 1968 Castanela picked up the day's requisitions through the outside opening of this box. As usual the requisitions were stapled together . With them were two or three loose Teamsters membership application cards . He concluded that they all had come from Production Manager Hatcher . He took the requisitions and cards back to the warehouse where he signed one of the cards himself and distributed the others to his coworkers in the shipping department . Castanela testified that the boxes were not locked and that the cards could have been placed there by anyone from inside the office or for that matter from outside the office. Hatcher denied that he placed the cards in the box. For reasons stated elsewhere in this Decision I do not credit Hatcher ' s denial. It is undisputed that the cards were placed in the box and that they were received by Castanela , the normal recipient of all communications routed through the box, and through him by other employees in the shipping department . The remaining question is whether the Company bears responsibility for their being placed there. Bearing in mind the other evidence in the record indicating that the Company preferred the Teamsters to the Bakery Union, that Hatcher as well as Rathbone solicited employees to sign Teamster membership application cards, that Castanela's Teamsters card was dated April 18, 1968, 3 days after Hatcher himself had signed a Teamsters card (as set forth hereinafter ), that the box was the normal mode for transmitting company communications to Castanela, and the absence of any evidence affirmatively indicating that unauthorized persons actually put communications in the box, I am of the view that a preponderance of the evidence establishes that Hatcher or some other company official delivered the Teamsters cards to Castanela by this means, and I so find. 3. Interrogation regarding union activity During the time of the events covered by the complaint, the Company's night-shift supervisor was Jimmy Agognistis, familiarly known around the plant as Jimmy A. William Henry Bates , an employee of the Company from about March 20, 1968, until about August 1968, testified without contradiction that in about the third week of April 1968 he came to see Jimmy A. in the shipping department in order to request a favor, namely that Jimmy A. sign some parole papers assuring future employment to Bates' brother-in-law so that he could be released from prison . Bates opened the conversation by asking Jimmy A. if he would do him a favor. Without waiting to hear what the favor was, Jimmy A. asked Bates if he was in the Union . He then asked Bates what favor he wanted and, after hearing it , told Bates he would see what he could do. He also told Bates that one favor deserved another and that he should keep himself on the right side of the fence . Jimmy A . did sign the paper, and, a couple of weeks later when Bates ' brother-in-law was released from prison, he was hired by the Company. Jimmy A. did not testify. Based on the uncontradicted testimony of Bates, I find that in the third week of April 1968 Jimmy Agognistis interrogated him as to whether he belonged to the Union, and used the occasion to endeavor to influence him against the Bakery Union by trading one favor for another. I infer from the fact that the Bakery Union was at that time engaged in organizing among the employees and : the fact established elsewhere in the record that the Company disapproved of the Bakery Union that Jimmy A.'s admonition to Bates to keep on the right side of the fence meant not to support the Bakery Union. In the context of Jimmy A.' s position as a supervisor vis-a-vis Bates' position as an ordinary employee, and also in the light of the nature of the favor which Bates asked, I conclude that Jimmy A.'s interrogation as well as his admonition were coercive. D. Alleged Discriminatory Discharge of Robert E. Burke The complaint alleges that on April 10, 1968, the Company discharged Robert E. Burke because of his activity on behalf of the Bakery Union. The Company admits the discharge but claims it fired Burke for cause. Burke began working for the Company in 1963. He subsequently left the Company's employ. About a year and a half prior to his discharge on April 10, 1968, he had returned to the Company and worked as a dough mixer in roll production until the time of his discharge. The Company had no complaints about the quality of his work as a mixer. However, Production Manager Hatcher testified that Burke was deficient in the cleanup of his equipment , in his adherence to safety regulations, and in tardiness. Hatcher claimed that in the 11-week period prior to his discharge Burke was late as many as 23 times, and on occasion as much as 2 hours late . Hatcher stated that he talked to him five or six times about it and twice told him that he would have to replace him if he did not come in on time . Burke admitted he had a history of ROYAL BAKING COMPANY, INC. 133 tardiness for which he had been reprimanded. Until his discharge, however, no disciplinary action of any kind was taken against him. Some 2 or 3 weeks before his discharge on April 10, 1968, Burke signed a membership application in the Bakery Union. He then became very active in organizing among other employees in the plant, obtaining employee signatures on between 85 and 100 Bakery Union membership application cards prior to his discharge. It is fair to say that he was the focal point of inplant organization for the Bakery Union. According to Hatcher, Bakery Union cards as well as Teamsters cards were all over the plant. He had as many as half a dozen Bakery Union cards on his desk. Burke did most of his union soliciting in the coffeeroom used by both employees and supervisors. Bearing in mind that company officials preferred the rival Teamsters to the Bakery Union and that Burke had signed up for the Bakery Union a large portion of the 105 production workers in the plant, I find in all the circumstances that the Company had knowledge of his union activity. This finding is further supported by Burke's uncontradicted testimony that on April 10, 1968, prior to his discharge, Rathbone approached him at his work station saying, "We're still friends." When Burke asked, "What are you talking about?" Rathbone replied, "Well, the same thing happened to me one time." Burke then said, "What are you talking about, the Union?" to which Rathbone replied, "Well, they've got your name and a few others." The events immediately surrounding Burke's discharge are as follows. April 9, the day before his discharge, was a day which ordinarily Burke would have had off. He was however told to come to work at 9 a.m. on that day. He showed up at his station about 15 minutes late. According to Hatcher, the balance of the crew had begun and were well along with the setup work necessary for the scheduled production, and he, Hatcher, had gone to the warehouse for some needed supplies. As he returned he saw Burke sitting in the coffeeroom drinking coffee while the others of the crew were at work. Hatcher admitted this angered him, yet he said nothing to Burke at that time. Hatcher went back to the work area. About 15 minutes later Burke came into the work area. By then most of the heavy work had been done and all of the setup had been done. Hatcher remonstrated with Burke for not coming back to the work area, then told him to take the day off. He did not discharge him on the spot. The next day Burke reported on time and worked his entire shift. Hatcher reported to the Company 's general manager on his troubles with Burke, and asked and received his permission to let Burke go. At the end of his shift on April 10 Hatcher discharged Burke, accusing him of having lost interest in the job, of not cleaning up, and of coming in late. According to Burke this was the first time he had ever been criticized for not cleaning up properly. The Company, according to Hatcher, has no set practice for the discharge of employees for lateness or misconduct. In the past year only one other employee had been discharged for lateness. Production department employees had no fixed and invariable time to begin work. The starting times varied from day to day depending upon the nature and quantity of the goods scheduled for baking. The baking schedules in turn varied depending upon what contracts the Company received each day. As noted above, April 9 would have been Burke's day off, but he was told to come in specially at 9 a.m., a time somewhat earlier than usual . Charlie Woodard testified that the starting time on the second shift in roll production was anywhere from 9 a.m. to 10 a.m. but that no special time was standard. Tardiness among production employees was quite common. Frequently no reprimand whatever was given for tardiness, and in general no disciplinary action was taken. Woodard testified for example that on the day of the hearing he was 15 minutes late for work but had received no reprimand as a result of it. In sum, it appears that starting times varied constantly and that some tardiness was generally tolerated. Although Hatcher denied that he had discharged Burke because of his union activities, stating that he did not know Burke was active in the Union, I do not credit him. His testimony was at times vague and uncertain. On cross-examination he testified he did not favor the Teamsters over the Bakery Union although other evidence indicated he had solicited on behalf of the Teamsters. He testified he had never seen anything but blank Teamster cards and that he had never signed a Teamsters card himself, yet the General Counsel produced a Teamsters card dated April 15, 1968, bearing a signature which Hatcher agreed looked liked his signature, which he refused to deny was his signature, but which he said he could not remember signing. I have no doubt that Burke was a faulty employee, particularly in regard to tardiness. But in this plant, given the varying starting times, tardiness was not a serious matter, certainly not something for which employees were usually discharged. It may be argued that Burke was flagrantly tardy. But it seems to me, if Burke was late 23 times in the 11-week period before his discharge, sometimes as much as 2 hours late, and that he had been spoken to five or six times because of it, he would have been discharged long before April 10 if in fact tardiness was the reason for his discharge. I do not think it was. I think the tardiness, the alleged loss of interest in his job, and his claimed untidiness and unsafe practices were in reality pretexts. I note that on April 9 Hatcher did not fire him on the spot, but merely sent him home. The next day, after he had slept on it, Hatcher was not instructed to fire Burke, he asked permission of the general manager to fire him. I also note that Burke had been with the Company for some time , that the production manager approved of the way he mixed his dough, that he had not previously been reprimanded for failure to clean up or for violation of safety rules , and that the incident which angered Hatcher and led him to reprimand and then discharge Burke was seeing him in the coffeeroom rather than at his work station. The coffeeroom was the location for most of Burke's prounion activity. In view of company, and in particular Hatcher's, knowledge of Bakery Union organizing in the plant, Burke's considerable activity on behalf of the Bakery Union, and the activity of Hatcher and Rathbone on behalf of the rival Teamsters Union, I find that the motivation for Burke's discharge was his union activity and not his deficiencies as an employee. Accordingly, I find the Company unlawfully discriminated against Burke in discharging him. Respondent defends in part on the ground that Burke was not a credible witness, with particular reliance on his answers to questions on cross-examination regarding prior criminal convictions. However, the above findings do not necessarily depend upon Burke's testimony. Even discrediting Burke, my findings would be the same. His testimony was pertinent to establish the extent of his union activity and the comments to him by Rathbone on the day of his discharge. But other evidence, particularly the testimony of Wilbur Alard, establishes the substantial 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nature of Burke's union activity. And in the circumstances of this case , even without relying upon Rathbone's comment to Burke on the day of his discharge indicating the Company's discriminatory motivation, I would find that such motivation existed. There is ample evidence in the record that the Company preferred the Teamsters to the Bakery Union, and sufficient evidence to infer that the Company knew about Burke's union activity. In spite of his past troubles with the law, in this proceeding Burke appeared to be a believable witness. He testified in a forthright manner about the matters on which he was questioned, even though some of these were personally embarrassing to him. On some matters he was somewhat vague , but this appeared to be not from evasiveness or an unwillingness to tell the truth but rather from the difficulty of recalling events long passed. On September 22, 1965, he was convicted and sentenced to 30 days in the county jail as a result of charges of trespass, vagrancy , lewd, wanton and lascivious person, and resisting arrest.' He was also charged with making a false affidavit, which he explained was because he had in his possession his brother ' s driver' s license . But he was found not guilty on the charge of making a false affidavit. Since that was the only charge which could relate to his credibility, the convictions of September 22, 1965, have no bearing upon his quality as a witness . About a month later on October 26, 1965, he was charged with prowling, drunkenness, and giving false information to the police. To these charges he pleaded guilty and was given a 30-day suspended sentence on each . Burke was not too clear in his testimony on what happened , but he said he thought the principal charge was drunkenness , and that he thought he probably had been asked by the police if he had previously been arrested and he thought he probably had answered no. These events occurred during a hiatus in his employment with the Company, and there is no evidence the Company knew about them. The only evidence in the record regarding them comes from Burke ' s own testimony on cross-examination . Respondent did not offer in evidence any official record of any convictions. From his appearance Burke is now a young man . In 1965 he was even younger. Putting his 1965 difficulties with the law into perspective they indicate a propensity for rowdiness rather than an inclination to depart from the truth. Considering his testimony as a whole , and particularly his demeanor as a witness, I am persuaded that in this proceeding he was truthful. Accordingly I credit him. In sum , I find that a preponderance of the evidence demonstrates that in April 1968 the Company in the person of Paul Rathbone, a supervisor, and John A. Hatcher, its production manager, solicited employees to join the Teamsters rather than the Bakery Union which Rathbone characterized as no good , and in so doing violated Section 8(a)(1) of the Act. I further find that in the person of Jimmy Agognistis the Company about the same time coercively interrogated an employee concerning union activities and admonished him to not support, and promised and then conferred on him a benefit if he would not support , the Bakery Union, and in so doing violated Section 8(a)(1) of the Act. I further find that by its discharge of Robert E. Burke on April 10, 1968, and its refusal thereafter to reinstate him, the Company violated Section 8 (a)(3) of the Act. 'It is not clear from the record whether this 30-day sentence was served or was suspended. Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY It having been found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, including that it offer Robert E. Burke immediate, full, and unconditional reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights, privileges, or working conditions, and make him whole for any loss of earnings suffered by reason of the discrimination against him by paying him a sum of money equal to the amount he would have earned from the date of the discrimination against him to the date Respondent offers him reinstatement as aforesaid, less his net earnings during that period in accordance with the Board 's formula stated in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum , as set forth in Isis Plumbing & Heating Co., 138 NLRB 716, make records available to Board agents in connection with compliance with the Board's order, and post appropriate notices. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Bakery Union and the Teamsters are labor organizations within the meaning of Section 2(5) of the Act. 3. By conduct set forth in section II, above, which has been found to constitute unfair labor practices, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act, and discriminated against employees to discourage membership in the Bakery Union. Respondent thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Royal Baking Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Soliciting employee applications for membership in General Sales Drivers and Allied Employees Union, Local No. 198, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. ROYAL BAKING COMPANY, INC. 135 (b) Coercively interrogating its employees concerning their union activities. (c) Coercively advising its employees not to support the Bakery Union. (d) Promising any benefit or conferring any benefit on employees on the condition that they not support the Bakery Union. (e) Discouraging membership in Local No. 249, American Bakery and Confectionery Workers International Union, AFL-CIO, or any other labor organization of its employees, by discriminatorily discharging, refusing to reinstate, or in any other manner discriminating against any employee in regard to his hire, tenure, or other term or condition of employment. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to Robert E. Burke immediate, full, and unconditional reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights, privileges, or working conditions, and make him whole for any loss of earnings he may have suffered, in the manner set forth in the section hereto entitled "The Remedy." (b) Notify Robert E. Burke if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant in Miami, Florida, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by its authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT solicit employee applications for membership in the Teamsters or any other labor organization. WE WILL NOT coercively interrogate our employees concerning their union activities. WE WILL NOT coercively advise our employees not to support the Bakery Union. WE WILL NOT promise any benefit or confer any benefit on employees on the condition that they not support the Bakery Union. WE WILL NOT fire or otherwise discriminate against any employee because he joins, assists, or supports a union. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. WE WILL offer Robert E. Burke his old job back, with full seniority, and we will make up the pay he lost, together with 6 percent interest. WE WILL notify Robert E. Burke if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board ' s Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing , within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " Dated By ROYAL BAKING COMPANY, INC. (Employer) (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 813-228-7711, Extension 227.