Hot Bagels and Donuts of Staten Island, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1977

227 N.L.R.B. 1597 (N.L.R.B. 1977)

HOT BAGELS AND DONUTS 1597
Hot Bagels and Donuts of Staten Island , Inc. and
Bakery and Confectionary Workers Union of
America, Local 3, AFL-CIO and Local 868, an
affiliate of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Party to the Contract . Case 29-CA-4734
January 27, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On September 14, 1976, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in this
proceeding. Thereafter, Respondent and General
Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith, and to adopt his recom-
mended Order as modified herein.
Respondent entered into a collective-bargaining
contract with Teamsters Local 868, in 1974, at a time
when Local 868 did not represent an uncoerced
majority of Respondent's employees. The Adminis-
trative Law Judge concluded that Respondent's
action did not violate Section 8(a)(2) of the Act. We
disagree . Although the Local 868 contract has admit-
tedly not been asserted as a bar to any representation
petition, the contract by its terms runs to 1977 and
could conceivably be asserted as a bar to a represen-
tation petition in the future. In order to avoid this
possibility and in order to avoid relitigation of the
issue in some subsequent Board proceeding, we shall
grant a remedial order requiring Respondent to
withdraw and withhold recognition from Local 868
and refrain from giving any effect 2 to the 1974
contract.3
Respondent's contention that Section 10(b) pre-
cludes the finding of an 8(a)(2) violation is without
merit . The record clearly shows that the existence of
the contract with Local 868 was concealed from
Respondent's employees and that none of the con-
1 The Respondent has excepted to certain credibility fmdmgs made by
the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to 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 (C A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 Nothing herein shall be construed as requiring the Respondent to
rescind any benefits enjoyed by its employees
227 NLRB No. 234
tract's terms were ever put into effect. In these
circumstances, the 10(b) period did not commence
running until the aggrieved employees were put on
notice of the facts constituting the unfair labor
practice.4
We agree with the Administrative Law Judge that
Jack Brentano was not a supervisor within the
meaning of the Act, and that his discharge violates
Section 8(a)(3). Our dissenting colleague relies on
certain factors, which when viewed in isolation may
lead one to conclude that Brentano exercises some
supervisory authority. However, the finding of wheth-
er the supervisory power in fact exists can only be
ascertained as a result of an analysis of all of the facts
of each case.
The credited testimony reveals that Brentano had
never been informed that he had the authority to hire,
fire, or discipline employees. The Administrative Law
Judge found and we agree that, although Brentano is
supposed to have been in charge of the night
operations, the evidence fails to indicate that this
encompassed any exercise of independent judgment
and discretion with respect to the direction of
employees, or any action or conduct that affected
their employment status. Thus, the order sheet was
prepared by the office and was posted over the oven
at night. The baker could easily determine how much
he was to produce for that night and the finishers
needed no instructions as to how to glaze donuts or
fill jelly donuts.
Furthermore, Respondent's president, Kalkstein,
was in constant communication with the bakery and
instructed Brentano on how to handle any problems.
Brentano credibly testified that Kalkstein visits the
bakery several times during the course of the evening,
and spends as much as 45 minutes during a visit.
In view of the simplicity of the work performed by
the employees and the availability of Respondent's
president during that night shift, we find that Brenta-
no's alleged authority and responsibility was illusory,
and that he is not a supervisor within the meaning of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
3 For the reasons stated by the Admimstrative Law Judge, Member
Walther would not find that Respondent violated Sec . 8(a)(2) with respect to
the 1974 contract with Local 868.
4 See Local Lodge No 1424, International Association of Machinists, AFL-
CIO, et al [Bryan Mfg Co.] v. N.L. R. B., 362 U.S 411, 429, fn. 19 (1960),
Wisconsin River Valley District Council of the United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc ), 211 NLRB
222,226-227(1974)
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modified below and hereby orders that the Respon-
dent, Hot Bagels and Donuts of Staten Island, Inc.,
New York, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Insert the following as paragraph 1(a) and
reletter the subsequent paragraphs accordingly:
"(a) Recognizing Local 868, an affiliate of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
collective-bargaining representative of Respondent's
employees unless and until such time as that labor
organization is duly certified pursuant to a Board-
conducted election, and giving effect to the 1974
collective-bargaining agreement with Local 868 cov-
ering said employees provided, however, that this is
not to be construed as requiring the rescission of any
employee benefits."
2. Insert the following as paragraph 2(a) and
reletter the subsequent paragraphs accordingly:
"(a) Withdraw and withhold recognition from
Local 868 unless and until such time as it is duly
certified pursuant to a Board-conducted election, and
refrain from giving any effect to the 1974 collective-
bargaining agreement entered into with Local 868
provided, however, that this is not to be construed as
requiring the rescission of any employee benefits."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER WALTHER, dissenting in part:
I do not agree with my colleagues' conclusion that
Brentano is not a supervisor within the meaning of
the Act.
Brentano's own testimony shows that he was hired
as working "manager" of the night shift. Hisjob was
to oversee production and make sure that everything
ran smoothly during the nighttime operations. In
addition to his assigned task of apportioning baked
goods to the various truck delivery routes, Brentano
was required to fill in for any jobs that were not being
performed, make sure that the retail outlet was
adequately supplied with baked goods, and see that
these goods were put out. No one else was in
authority during the night shift. Moreover, in contrast
with the other nighttime employees, Brentano was
salaried and received a substantially higher wage.5
Brentano testified that employees asked him if they
could take time off during the night, the retail sales
clerks reported to him if their receipts were over or
under the register total, and he interviewed prospec-
tive employees. Carlos Rivera, one of the discrimina-
tees herein, identified Brentano as being in charge of
the night-shift operation.
Brentano would have us believe that Respondent's
nighttime operations ran themselves and that when-
ever a matter arose that required the exercise of
independent judgment, Marvin Kalkstein, Respon-
dent's president, was consulted. Yet Nelson Velez,
Brentano's counterpart on the day shift, was unques-
tionably a supervisor and was admitted to be such.6
If Brentano were not a supervisor, Respondent's
operations would be without any immediate supervi-
sion during the night shift. This fact is highly
persuasive of the fact that Brentano enjoyed supervi-
sory status.7 Also, Brentano was more highly paid
than the other nighttime employees and was salaried,
two other facts that strongly suggest supervisory
status.8
These facts, together with Brentano's authority over
and responsibility for Respondent's entire night-shift
operation, require a conclusion that Brentano is a
supervisory within the meaning of the Act.
Accordingly, I would not find that Respondent's
discharge of Brentano, a supervisor, violated Section
8(a)(3) of the Act.
5 Brentano received $330 for a nummum 72-hour workweek . The regular
employees received $2 50 an hour for a 6 -day, 12-hour a day workweek.
s Apart from the fact that bagels are not manufactured at night, there
appears to be no real difference between Respondent's daytime and
nighttime operations
r Custom Bronze & Aluminum Corp, 197 NLRB 397,398 (1972); National
Electric Coil Division of McGraw-Edison Company, 180 NLRB 961, 963
(1970)
8 /lbni Steel Fabricators, Inc, 197 NLRB 303 (1972).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing during which all parties were given an
opportunity to present evidence and argument, it has
been determined that we have violated the law by
committing an unfair labor practice. In order to
remedy such conduct we are being required to post
this notice. We intend to comply with this require-
ment and to abide by the following commitments.
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a freely
chosen representative
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT recognize Local 868 unless and
until it is certified pursuant to a Board-conducted
HOT BAGELS AND DONUTS 1599
election, or give effect to our 1974 collective-
bargaining agreement with that Union.
WE WILL NOT do anything which interferes with
these rights.
WE WILL NOT threaten to inflict nor will we
inflict upon our employees bodily injury because
of their support of or activities on behalf of a
union.
WE WILL NOT coercively interrogate our em-
ployees concerning their sympathies or their
union activities.
WE WILL NOT threaten our employees with
discharge, with the partial or complete closing of
our business, or with any other reprisals in order
to discourage their union activities.
WE WILL NOT coercively solicit our employees
to abandon their union activities and to disavow
any sympathies they may have for a union.
WE WILL NOT promise our employees to im-
prove working conditions in order to discourage
their union sympathies and activities.
WE WILL NOT discharge employees or discrimi-
nate against them in any other manner with
regard to their hire or tenure of employment or
any term or condition of their employment
because of their participation in organizational
activities on behalf of Bakery and Confectionary
Workers Union of America, Local 3, AFL-CIO,
or any other labor organizations or because of
their support and sympathies on behalf of that
Union or any other union.
WE WILL offer to Carlos Rivera, Augustine
Bultron, Carlos Suarez, Jack Brentano, and Frank
Sorensen immediate and full reinstatement to
their former positions or, if those positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges.
WE WILL further make these workers whole for
any loss they may have suffered by reason of the
discrimination practiced against them.
HOT BAGELS AND
DONUTS OF STATEN
ISLAND, INC.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS , Administrative Law Judge: A hearing
in this proceeding was held on April 12, 13, and 14 and May
4, 1976 , at Brooklyn , New York , based upon a charge and
an amended charge , filed , respectively , on November 25
and December 11, 1975, against Hot Bagels and Donuts of
Staten Island , Inc., by Bakery and Confectionary Workers
Union of America , Local 3, AFL-CIO, herein called Local
3, and a complaint and an amended complaint issued by
the Regional Director on January 27 and March 18, 1976,
respectively. Briefs were submitted by Respondent and the
General Counsel on June 1, 1976. The complaint, as
amended , alleges that Respondent violated Section 8(a)(1),
(2), and (3) of the Act by coercively interrogating its
employees concerning their membership in and activity on
behalf of Local 3; by threatening to discharge its employ-
ees, close its plant , reduce the number of workdays , inflict
bodily injury, and other reprisals if they became members
and retained membership in Local 3 , or gave assistance to
it; by soliciting its employees to abandon membership in
and support of Local 3, and by inflicting bodily injury and
harm upon its employees because of their membership in
and activities on behalf of Local 3; by discharging its
employees Carlos Rivera, Carlos Suarez, Augustine Bul-
tron , Jack Brentano , and Frank Sorensen ; and by extend-
mg recognition to Local 868 , an affiliate of the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, herein called Local 868, as
collective-bargaining representative of its employees, and
entering into an agreement with Local 868 when at no time
Local 868 represented an uncoerced majority of its employ-
ees. Respondent denied the substantive allegations of the
complaint.
On the entire record in this case, including my observa-
tion of the witnesses, and their demeanor, and consider-
ation of the oral argument , and the posthearing briefs, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATIONS INVOLVED
Hot Bagels and Donuts of Staten Island, Inc., herein
Respondent, is a New York corporation engaged in the
manufacture, sale, and distribution of bagels, donuts, and
related products in the city of New York, and maintains its
principal office and place of business at 4295 Amboy Road
in the Borough of Richmond, city and State of New York.
During the year ending December 31, 1975, a period
representative of Respondent 's operations, Respondent in
the course and conduct of its business operations caused to
be manufactured, sold, and distributed at its Amboy Store
products valued in excess of $50,000, of which products
valued in excess of $50,000 were furnished to, among
others, Waldbaums , Inc., and Hills Supermarkets, Inc.,
each of which enterprises annually purchases goods valued
in excess of $50,000 from firms located outside of the State
wherein said enterprises are located. Respondent is an
employer engaged in commerce within the meaning of the
Act, and it will effectuate the policies of the Act to assert
jurisdiction herein.
Local 3 and Local 868 are labor organizations within the
meaning of Section 2(5) of the Act.
U. THE UNFAIR LABOR PRACTICES
A. Introductory Statement
Respondent has engaged in the production of bagels,
donuts, pies, cookies, etc., for approximately 10 years. It
has maintained a bakery and a retail outlet on Amboy
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Road in the Borough of Richmond . During 1975, it
maintained two retail stores and a wholesale route whereby
it supplied supermarkets with bagels and donuts. The
president of Respondent and its chief executive officer is
Marvin Kalkstem, who maintained a separate office for
himself, and for the bookkeeping end of the operation a few
miles from the Amboy bakery and retail outlet . Respon-
dent's operations ran on a 24 -hour day including both its
retail outlets and its bakery. Raw bagels were manufactured
during the daytime by a machine operated by unskilled
labor, and were baked both in the daytime and at night.
Donuts were also fried during both shifts . Most employees
appear to have worked a 12-hour shift. Among the
employees were bagel makers , who manufactured the raw
bagel , the bakers , the finishers , i.e., those who dressed the
final product with frosting, etc., and sales clerks . Respon-
dent also maintained eight delivery routes , and therefore
employed eight drivers . Respondent 's employment comple-
ment through the period of September-November 1975
reached a peak of 50 employees. The drivers were employed
during the early morning hours when they made their
deliveries to the supermarkets . Although the record is not
entirely clear, it would appear that the remainder of the
baking and sales force were equally divided between the
day shift and the night shift. Also, although it is not entirely
clear, according to the testimony of Kalkstein, at least some
employees were employed on a three -shift basis . They were
not identified. Although there is some variance in hours for
some employees, the day shift prior to November 1975
appears to have commenced at 7 a .m. and ended at 7 p.m.
Kalkstein testified that each shift was supervised by a
manager . He stated that the day manager was Nelson Velez
and the night manager , prior to his termination on
November 21, 1975, was Jack Brentano , one of the alleged
discriminatees herein . Velez is alleged in the complaint to
be a supervisor within the meaning of the Act. Respondent
denied the supervisory status of Velez in its answer.
However , it adduced testimony for the purpose of demon-
strating that both Velez and Brentano were supervisors
within the meaning of the Act performing essentially
identical functions on the day and evening shifts. The
complaint also alleged, and Respondent denied in its
answer , that Salvatore Graziano is a supervisor within the
meaning of the Act and, like Velez, responsible for certain
alleged coercive conduct . Graziano is alleged to be the
supervisor of seven or eight truckdrivers.
On November 6, 1974, Respondent executed a bargain-
ing agreement with Local 868 covering a unit of bakers,
apprentice bakers , porters , maintenance men, drivers and
warehousemen , and sales clerks . The parties stipulated to
the identity of the 19 employees encompassed within that
bargaining unit which included at that time 6 bakers , 8 sales
clerks , and 5 maintenance -utility employees . Kalkstein,
when called as a witness on behalf of the General Counsel,
testified that the collective -bargaining agreement entered
into with Local 868 was a result of a request by his brother-
in-law who was at that time an official of Local 868, and
that no representative of Local 868 demonstrated to him,
nor offered to demonstrate to him , evidence that a majority
of, or any of, Kalkstein's employees desired representation
by Local 868 . Kalkstein testified that in effect he executed
the contract, threw it in the drawer, and did not look at it
again until the events which gave rise to this case.
Furthermore , no terms of the contract were consciously
applied . Kalkstein conceded that at no time did any of his
employees ever indicate to him any interest in representa-
tion by Local 868. Of the 19 employees employed on
November 6, 1974, within the bargaining unit encompassed
by the contract , 12 testified that at no time did they request
representation by Local 868, nor had they ever even heard
of Local 868.1
Organizing efforts on behalf of Local 3 commenced in
May 1975 but did not get beyond the embryonic stage.
Interest was revived and activity commenced again in
November 1975. Carlos Rivera, one of the original employ-
ees who inquired of union representation of Local 3 in May,
obtained union authorization cards from Local 3 represen-
tatives and solicited signatures for these cards on Novem-
ber 12, 1975. A meeting for November 19 was scheduled
between representatives of Local 3 and the employees
through Rivera's efforts on the date that the cards were
signed. However, on November 18, 1975, Rivera, a bagel
baker on the night shift, was terminated for alleged
drunkenness on the job. The General Counsel contends
that this occurred after Respondent's agent, Kalkstein,
became aware of Rivera 's activity while eavesdropping on a
telephone conversation between Rivera and another em-
ployee. Also terminated at the time of, or shortly after,
Rivera's termination were two other individuals, Suarez
and Bultron, helpers of Rivera on the night shift who
traveled to and from work with him and who signed
authorization cards. Brentano was admittedly discharged
on November 21 because of his activities on behalf of the
organizing effort of Local 3, but it is argued by the
Employer that its action is privileged because of the
supervisory status held by Brentano.
Frank Sorensen, a donut finisher, was terminated by the
Employer on November 24, 1975, after an alleged assault
and battery upon him by the day manager , Nelson Velez, in
retaliation for Sorensen 's continuing support of Local 3.
Respondent 's position is that Sorensen was the aggressor in
a personal clash with Velez, that no assault or battery had
occurred, and that Sorensen had refused to work his
assigned hours because of an unfounded fear of attack by
Velez. With respect to the termination of Suarez and
Bultron , Respondent's position is that they were terminated
because they failed to appear for work on November 18 and
19.
B. The Supervisory Issue
Before resolving the basic issues raised by the complaint,
the issue of the supervisory status of Velez, Salvatore
Graziano, and Jack Brentano must be resolved. Salvatore
Graziano was called as a witness on behalf of Respondent.
Respondent adduced testimony which established that
Graziano holds the position of supervisor of the truckdri-
vers and exercises supervision over the eight routes which
Most of those employees have been terminated at unspecified dates
subsequent to November 6, 1974
HOT BAGELS AND DONUTS 1601
are serviced by the truckdrivers. He had been employed for
approximately 9 months by Respondent. By his own
testimony he is responsible for, and exercises the responsi-
bility of, hiring truckdrivers. Accordingly, I find that he
holds the position of a supervisor within the meaning of the
Act, and, therefore, is an agent of Respondent. With respect
to Nelson Velez, although Respondent had denied his
supervisory status in his answer to the complaint, during
the course of the hearing and in its brief its argument with
respect to the defense of the discharge of Jack Brentano is
that Brentano and Velez occupy the positions of manager
on the day and night shifts and are both supervisory
employees within the meaning of the Act. According to the
testimony of Kalkstein, both Velez and Brentano are
directly responsible to him and responsible for the work
performed on their respective shifts. He testified that both
had the authority to hire and fire and discipline employees
and had exercised that authority. Velez testified that he was
the manager of the day shift, and had occupied that
position all through 1975, and had been employed by
Respondent for approximately 5 years. Both Sorensen and
Brentano testified that during periods of their employment
when they were employed during the day shift they were
subject to the direction and control of Velez who had the
independent discretion to assign work to them and change
their particular job functions. Velez effectively recommend-
ed the hire of his friend at that time, Carlos Rivera, to the
day shift in 1974, and his rehire to the night shift in the fall
of 1975 together with Rivera's two friends, Bultron and
Suarez . Thus, three people were hired on the night shift
despite the fact that Brentano was supposed to have had the
authority and responsibility for hiring on the night shift.
Not only do employees recognize Velez as being their
supervisor and the person to whom they owe responsibility,
but Velez himself in his testimony refers to the employees
on his shift as "my employees." Accordingly, based upon
the testimony of Kalkstein and Velez, as well as the
testimony of General Counsel's witnesses, I find that Velez
during all times material herein held the position of
supervisor within the meaning of the Act.
With respect to the alleged supervisory status of Jack
Brentano, Respondent 's argument that he is a supervisor
within the meaning of the Act and not entitled to the
protection of the Act has some appeal. Although Brentano
refused to concede that he was a night manager, it is clear
from his description of his interview for reemployment in
July 1975 that he was being hired back as a working
manager or night manager. (Brentano was originally
employed in August 1973 as a truckdriver and thereafter
handled a multitude of jobs). Carlos Rivera in his testimony
identified Brentano as the night manager who was in charge
of the entire nighttime operation at the Amboy Road
Location. There was no one else in authority during the
night shift operations there which entailed the baking of
bagels, frying of donuts, and selling of these baked goods,
as well as other related products. However, closer examina-
tion of the testimony reveals that much of his authority and
responsibility was illusory. Although Kalkstein testified
that during the first phase of Brentano's employment he
worked himself up to manager of the retail store, such
responsibility entailed the checking of registers, accounting
for receipts, keeping the retail store supplied with paper
goods and baked goods, and taking an accounting of
employees who were present or absent . Kalkstein testified
that Brentano exercised the authority at that time to hire
and fire retail clerks , whereas Brentano denied that he had
the authority or exercised that authority. In any event, he
was laid off some time in May 1975. According to
Brentano, Kalkstein at that time told them that it was
because of lack of work. Kalkstein testified that before
Brentano's layoff in May 1975 he was first transferred to
the main plant from his managerial position at a retail store
because of certain problems. At first Kalkstein testified that
he could not recall the specific problem, but later on cross-
examination he attributed it to personality conflicts be-
tween Brentano and other employees . The inference in
Kalkstein's testimony is that Brentano was laid off because
of these problems. In any event Kalkstein testified that
business was picking up in July and , on Brentano's request,
Brentano was reemployed as a truckdriver for a couple of
days. Shortly thereafter Kalkstein told Brentano to forget
about being a truckdriver and that he wanted him to take
over the position of night manager inasmuch as Respon-
dent was commencing its wholesale operations for the first
time and thus expanding its work. Thus, according to
Kalkstein, after a couple of days as a truckdriver Kalkstein
was ready to promote Brentano to a full supervisory and
managerial position on the night shift despite past personal-
ity problems allegedly exhibited by Brentano. It is simply
unworthy of belief that Kalkstein would have put Brentano
into a situation of complete independence and control if he
had such problems with Brentano in the past.
According to Kalkstein , Brentano's duties as a night
manager involved: "Taking care of and watching over the
retail store," watching the moneys and putting together all
the routes of the truckdrivers, "sort of like, oversee that all
routes got out, all orders are put together right." He was
also, according to Kalkstein, responsible for all baking and
for ascertaining that every driver got his load. However, the
functions performed by the employees in baking bagels and
frying donuts appear to be highly repetitive and routine
work. Kalkstein himself conceded when testifying with
respect to the replacement of Rivera, Bultron, and Suarez
that the jobs are not very skilled, and it took a short part of
a morning for himself to train those replacements. In
testifying further as to what he meant by being in charge of
the night shift, Kalkstein explained that Brentano's duties
included setting up the drivers' routes. However, this
merely involved taking an order sheet that had been
prepared by the office which indicated the quantity and
variety of baked goods to be delivered to the various routes
and apportioning, in physical locations in the bakery, the
proper amounts of baked goods in the appropriate location.
The drivers would then appear, pick up the goods to be
delivered from that location, and leave, having had no
contact with Brentano.
As for the production, the amount and variety of baked
goods to be produced that night was prepared, as was the
order sheet, by the office and left for Brentano or any other
person to read on the day shift. Velez determined the
production. At night the order sheet was posted over the
oven . The baker merely had to refer to the order sheet or
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production sheet to determine just how much he was to
produce for that night. The finishers needed no instructions
as to how to glaze donuts or fill jelly donuts and thus
Brentano 's testimony that everybody knew his job and
needed no direction or supervision is highly credible.
Brentano testified that he had never been informed that
he had the authority to hire, fire, or discipline employees.
Kalkstein, who lived a short distance from the plant, was in
constant communication with the bakery, inquiring wheth-
er there was any problems. If there were problems,
Kalkstein was there to instruct Brentano on how to handle
the situation. In addition, Kalkstein himself appeared at the
bakery several times during the course of the evening
spending as much as 45 minutes during a visit. With respect
to the retail clerks, they came in, reported directly to their
cash register, noted the amount of money in the register at
the end of their shift, and deposited their moneys with an
accounting of the register receipts into a drop safe.
Brentano's contact with them would occur in the event they
asked him to assist them with their arithmetic in making up
their final receipts. Although Brentano did have keys to the
registers and to the drop safe, as well as to the bakery, so
did another nonsupervisory employee, Jack Graziano.
Brentano was expected to and did fill in on all jobs which
were short of help, including janitor work, sales work,
baking, and finishing. He was paid a salary substantially
higher than the hourly rates paid the employees. However,
he did have more experience, was expected to fill in for
missing employees, and thus had a greater versatility and
work substantially longer hours. When the driver failed to
show up, it was his responsibility to drive a truck, which
often occurred beyond his normal shift hours for which he
was not compensated. Tlus testimony is uncontroverted.
The machines in the bakery had labels or attachments
which indicated service numbers which Brentano could call
in the case of a breakdown. In emergency situations, he
could spend Respondent's money in purchasing supplies or
making repairs upon consultation with Kalkstem.
There is no evidence that Brentano had the authority to,
or exercised the authority to, grant wage increases or
recommend wage increases, or reassign employees from
one job to another job.
Kalkstein testified to several instances where Brentano,
as night manager, hired and fired employees. Kalkstein and
Jack Graziano, Salvatore Graziano's son, a witness called
by Respondent, testified that Brentano hired Jack Grazi-
ano. I credit Brentano's denial inasmuch as Jack Graziano
was hired at a period of time to work in the job function on
the day shift, which was under the direct supervision of
Velez. Jack Graziano's testimony that Velez was working
on the night shift at that time is completely contradictory to
Velez' testimony, as well as Brentano's that he held the
position of daytime manager during the entire period of
1975 during which time Graziano was hired and did the
hiring. Kalkstem testified, when questioned as to specifical-
ly when Brentano hired or fired an employee, that Brentano
hired Mike Marshall and Michael Cane, and that he fired
Marshall thereafter. According to Brentano, Mike Marshall
came in and applied for a job of porter. Brentano merely
relayed the request to Kalkstem and Kalkstein told him,
"put him to work." Kalkstein did not deny the circumstanc-
es as testified to by Brentano, whom I credit. Similarly, as
to the dicharge of Marshall, Brentano testified that Mar-
shall was terminated at a point in time when he , Brentano,
was on his vacation and absent from the plant, and that
Marshall was fired directly by Kalkstein who caught him
stealing hams out of the refrigerator, and that Brentano was
informed of this afterwards in a conversation between
himself and Kalkstein. Kalkstein did not deny the specifics
of this event, and I therefore credit Brentano. I further
credit Brentano's testimony that he had nothing to do with
the hiring of Cane. I do not view Kalkstein's testimony in
this regard any more reliable than his testimony with
respect to Brentano 's participation in the hiring and firing
of Marshall, or the hiring of Jack Graziano.
Brentano did concede that on one occasion he participat-
ed in what might be called the meting out of discipline to an
employee whom he had suspected of stealing receipts from
one of the retail stores, which receipts Brentano had left in
one of the delivery vans. At the time of the incident,
Brentano telephoned Kalkstein and told him of his suspi-
cion, whereupon Kalkstein became upset and told Brenta-
no he was responsible and he better find the money.
Brentano stated that he then made a search of the area and
found the money at a base of a tree near the suspected
employee's car. Brentano testified that he confronted the
employee, accused him, and thereupon punched him in the
eye. The employee ran away and filed a complaint with the
police and never returned.
Although Brentano is supposed to have been in charge of
the nighttime operations of Respondent, the evidence fails
to indicate that this encompassed any exercise of indepen-
dent judgment and discretion with respect to the direction
of employees, or any action or conduct that affected their
employment status. Outstanding instructions were initiated
from the main office where Kalkstein operated, and the
jobs and tasks performed by the employees were routine
and repetitive in nature. An employee who acts as a mere
conduit for instructions and orders originating from higher
authority without adding any independent judgment or
discretion on his part does not attain the status of a
supervisory employee within the meaning of the Act. Mid-
State Fruit, Inc., 186 NLRB 51 (1970); St. Louis Bagel
Bakers, Inc., 224 NLRB 307 (1976). The mere fact that
there is no supervisor present on the shift is not anomalous
in view of the simplicity of the work performed by the
employees which requires no necessity for the presence of a
supervisor. F. Strause & Son, Inc. 200 NLRB 812, 813-14
(1972). Even where an employee has been clothed with
some ostensible authority, and is salaried, and may even
have the authority to purchase supplies, the Board has
found that employee not to be a supervisor within the
meaning of the Act, if the performance of his duties were of
a mere mechanical nature . Amcon International, Inc., 205
NLRB 1182 (1973). The Board has found also that such
employees who have been exercised, sporadically, the
authority to hire an unskilled helper, that where the
employee does not have the general authority to hire, such
exercise is insufficient to convert the employee's status to
that of supervision where he exercises no independent
judgment and merely relays instructions from higher
authority, and where higher authority frequently visits the
HOT BAGELS AND DONUTS
worksite. Cast-a-Stone-Products, Company, 198 NLRB 484
(1972). In this case, I cannot find that Brentano has even
exercised, on a sporadic basis, the authority to hire the
employees. The credible evidence indicates otherwise. The
situation wherein Brentano punched another employee
could possibly be characterized as exercising the authority
to discipline and conceivably cause the discharge of an
employee, but that situation arose out of an unusual
emotionally charged situation. I do not construe it to be
evidence of a general authority to discipline or discharge
employees. But, in any event, at most crediting the evidence
adduced as to the instances of hiring, I conclude that the
sporadic exercise of such authority is insufficient to warrant
the conclusion that Brentano possessed the general authori-
ty to hire and fire employees. I therefore conclude that at all
times material herein Jack Brentano was not a supervisor
within the meaning of the Act.
C. The Discharge of Carlos Rivera, Augustine
Bultron, and Carlos Suarez
Rivera was originally employed in August 1974 upon the
recommendation of his then friend and neighbor Nelson
Velez, as a helper to Velez. He was employed until
approximately May 1975 when, at that time, he testified he
was laid off by Kalkstein after he made a request for a wage
increase . Kalkstein testified under direct examination that
Rivera was laid off initially in May 1975 because of
tardiness caused by problems at home. Velez corroborated
this, testifying that he drove Rivera to work and Rivera was
invariably unable to get up in time in the morning. Velez
testified after a while he became disgusted and stopped
driving Rivera to work. Rivera testified that he obtained his
own automobile and moved away from the neighborhood
which was the cause for the two of them not driving
together. Kalkstem, on cross-examination, embellished his
testimony by stating that tardiness was not the only reason
for Rivera's original layoff, but it was because of a
continuing addiction to alcohol, exhibited on the job, which
caused his tardiness. This testimony occurred in the context
of close cross-examination as to the subsequent reasons
advanced by Kalkstein for the discharge of Rivera; i.e.,
drunkenness on the job. It was plainly apparent that
Kalkstein was attempting to bolster the argument for the
subsequent discharge by adding another reason for the
initial discharge of Rivera as that of drunkenness.
Rivera was employed in early November 1975 on the
night shift. He was rehired upon the effective recommenda-
tion of Velez. This time he was employed as a bagel baker
instead of a mere helper. Supposedly, according to the
testimony of Velez and Kalkstein, he was rehired upon his
entreaties and explanation that his family problems had
evaporated and he would no longer exhibit drunkenness
and tardiness. Kalkstein testified elsewhere that he consid-
ered the position of a bagel baker to be that of a responsible
one; i.e., if the night production were not baked, drivers
could not deliver the product on time, which of course
would be highly detrimental to the employer. I find it very
difficult to believe that Respondent would have rehired
Rivera had his previously record been so bad in light of
Velez' testimony that he had became completely disguested
with Rivera the first time around and terminated their
1603
carpool arrangement. Therefore, I credit Rivera's testimony
that there was no severe problem even as to tardiness or
drunkenness and that his rehire was not conditioned on a
discussion of his assurance of his rehabilitation. Rivera then
worked until his final termination on November 18, 1975.
Rivera's original activity on behalf of Local 3 com-
menced in May 1975 when he and another employee
contacted Local 3 Representative Morris Amster. At that
time Rivera and coworker Freddie Dinlde visited Amster's
office and obtained union authorization cards. The orga-
nizing effort lapsed until November 1975. After he was
rehired, Rivera and another employee again met with
Amster and requested that he meet with the employees at
the plant on November 19, according to the testimony of
Amster. Rivera testified that after he returned to work in
November 1975 he commenced talking to employees
encouraging them to join and/or support Local 3. He asked
a half dozen employees to sign cards which they did on
November 12, 1976. Cardsigners were Jack Brentano,
Frank Sorensen, Carlos Suarez, Augustine Bultron, Jack
Graziano, and his brother, Ronnie Graziano. This, in part,
is corroborated by the testimony of Jack Graziano a witness
called on behalf of Respondent who identified the card he
signed on November 12. Although one of two of the cards
may raise some doubt on their face as to when they were
signed inasmuch as the date is written over and changed,
Jack Graziano's testimony establishes the veracity of
Rivera on this point. Rivera testified that he arranged for a
meeting with Amster and other Local 3 representatives
after he obtained the authorization cards for December 19
at 10 p.m. at the plant.
Rivera testified that on November 18, between 8:30 and 9
o'clock at night, he received a call from Dinkle and they
discussed the coming meeting with the Union scheduled for
November 19. Brentano testified that Rivera mentioned to
him in the plant at or about the same time that the Union
was scheduled to appear at the plant the next day. Brentano
had accompanied Rivera when Rivera went to various
employees on the night shift and when Rivera asked them
to sign union representation cards. Brentano testified that
after 20 minutes he received a telephone call from Kalk-
stein, wherein Kalkstein stated: "What's all this bull shit
going on? . . . I just heard a conversation between Rivera
and the Union." Brentano inquired how this came about
and Kalkstein responded. "Never mine . . . do you want
the honors or do you want me to do the honors." Brentano
asked what he meant and Kalkstein stated: "Do you want
me to let Carlos Rivera go or do you want to let him go?"
Brentano stated that he hesitated and Kalkstein inquired:
"Are you still there?" Brentano said yes. Then, according to
Brentano, Kalkstein further instructed him: "Don't tell him
its about the Union. Tell him its because he was on -
alcohol and drugs." Brentano responded: "Okay, I'll take
care of it." Brentano, testified that Kalkstein told him he
should let Rivera finish the bagel production and then let
him go at the end of the shift which would have been about
4 or 5 a.m. The call with Kalkstein, according to Brentano,
occurred about 9:30 to 10 p.m. Brentano testified that, after
going through a period of anxiety as to what he should do,
he told Rivera about the Kalkstein telephone conversation
and that Rivera's conversation in regard to a union must
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been overheard. Rivera then stated that there's no way
that he would finish the production. He asked Brentano to
call Kalkstein. Brentano refused and then called Kalkstein
and handed the telephone over to Rivera. According to
Rivera, he asked Kalkstein "what's going on" and that he
heard that he was supposed to be fired. Kalkstein then,
according to Rivera and Brentano, asked to speak to
Brentano and then castigated Brentano for telling Rivera
about the earlier telephone conversation, stating that
maybe Brentano ought to be fired, and also told Brentano
to discharge all the Puerto Ricans on the oven. Bultron and
Suarez were hired as Rivera's helpers on the oven by Velez
when Rivera was rehired in early November. Rivera
testified that he got back on the phone at that point and
Kalkstein stated: "I heard you're the Union instigator and
you're trying to get a Union in the place." Rivera acknowl-
edged that as a fact and Kalkstein allegedly stated: "Well
the first thing I'm going to tell you, I cannot have a Union
because I cannot afford the wages . . . if I'm going to have
a Union here I might as well close up and go back to
retailing." According to Rivera his response to that was:
"Well all I want to know, am I fired or not?" That evening
Bultron had not appeared for work, but Suarez had.
Ordinarily, Bultron, Suarez, and Rivera drive to and from
work together. Brentano testified that Suarez asked him if
he were also fired and Brentano said yes, that Kalkstein
told him to fire "all of you." Rivera and Suarez then left the
plant.
It appears that, according to the uncontradicted testimo-
ny of Brentano, there is a telephone hookup between the
Amboy plant and Kalkstein's office a mile and a half away
such that, when a call comes to the Amboy plant, the phone
also rings at the office and it is thus possible to eavesdrop
on telephone calls to the Amboy plant.
According to Brentano, later on in the evening of
November 18, Kalkstein called him and asked him if
everything was all right and if he could handle the rest of
the production by himself and if Rivera and Suarez had left.
Brentano testified that the following day, November 19,
he reported for work early at 5 p.m. in order to prepare for
work with no crew. Pursuant to Kalkstem's request that
morning he went into his office to bring Kalkstein a tea and
a danish pastry and engaged in a conversation with
Kalkstein wherein Kalkstein stated: "Now maybe every-
thing will be better down there, that we got rid of this
Union bullshit. I'm going to make a clean sweep and we're
just going to straighten up the place." Kalkstein then told
Brentano that he had hired two replacements to work that
very night and he was attempting to obtain a porter. As
indicated earlier, Rivera was the bagel maker, Suarez was a
porter, and Bultron served as a kettle man. That evening
Suarez and Bultron appeared for work and Brentano told
them all three were fired. They then left without speaking to
Kalkstein.
Kalkstein, Velez, and Salvatore Graziano all testified that
on the evening of November 18 Rivera was so intoxicated
he could hardly stay on his feet. Velez testified that Rivera
kept splashing water into his face in an attempt to stay
awake and that he was "more than drunk." Kalkstein
testified that Rivera's production was terrible and that it
constituted "garbage." Salvatore Graziano testified that
Rivera was "falling all over himself." Velez testified that
Rivera staggered and banged his head on the oven . In sum,
if this testimony is to be believed, Rivera was completely
incapacitated. I find this testimony totally incredible and
plainly contrived . Salvatore Graziano and Kalkstein testi-
fied that Kalkstein appeared at the plant that night. Rivera
and Brentano contradict this testimony, as does Jack
Graziano. Jack Graziano was very precise and positive
when he detailed his position in the shop and testified that
he was absolutely certain he could observe anyone who
entered the plant that evening, and that Kalkstein did not
appear at the plant. Velez was present, but Salvatore
Graziano testified that he was not certain that Velez was
present.
Velez testified, contrary to Brentano, that he was sum-
moned by Brentano to do something about Rivera. If he is
to believed that Brentano was in charge, this does not make
sense . Velez stated that he arrived at 7:30 or 8 p.m. and saw
Kalkstein there , and that he, Velez , remained until 10 or 11
p.m. He later testified that Kalkstein arrived at 9 or 9:15
p.m. Salvatore Graziano testified that he left at 9 p.m. and
that he saw Kalkstein there between 8 and 9 p .m. Kalkstein
testified that he arrived between 9 and 9 : 30 p.m. Respon-
dent's witnesses testified that, except for Velez, they all
merely observed Rivera staggering about . Velez, however,
testified that he asked Rivera what the problem was and
Rivera said he had problems at home . Rivera denied that.
No one assisted Rivera or relieved him of his duties , or even
inquired if he were able to continue to work. He was
permitted to finish his shift. Upon cross- examination
Kalkstein attempted to explain why neither Velez nor Jack
Graziano nor Brentano was instructed to take over the
production of bagels and Rivera summarily dismissed at
that point. In so attempting to explain , Kalkstein testified
that despite the fact that Rivera was producing garbage in
his business, garbage is a "saleable" product and that
garbage is produced on many nights . I find such an
explanation completely at odds with his previous testimony
as to the importance of competence in the bagel maker. I
find that his testimony is the result of a vain effort to
contrive some sort of explanation of otherwise obviously
illogical behavior . I therefore credit Rivera and Brentano to
the effect that drinking to a moderate extent was engaged in
on the job in the past, and that, although on the night of
November 18 Rivera may have consumed several beers, he
was not intoxicated . In view of the complete lack of candor
exhibited by Kalkstein, I credit the testimony of Brentano
and Rivera to the effect that Kalkstein admitted to them
that he was discharging Rivera because of Rivera 's union
activity.
With respect to the discharge of Suarez and Bultron, I
credit Brentano 's testimony that Kalkstein ordered their
termination as part of his effort to make a "clean sweep"
and purge the plant of union activity . Suarez and Bultron
were closely associated with Rivera . They were almost
immediately replaced . Even Kalkstein conceded that he
prepared notices of termination the next day, and hired two
replacements immediately. His defense that Suarez and
Bultron did not appear for work is incredible in view of his
precipitous action in terminating them . He made absolutely
no effort to communicate with these two employees.
HOT BAGELS AND DONUTS 1605
On the evening of November 19, Local 3 Representative
Amster, accompanied by three of his colleagues, Boyle,
Martos, and Thau, arrived at the Amboy plant just as
Kalkstein was getting out of his car. Amster testified that he
engaged in a conversation with Kalkstein wherein he stated
to Kalkstein that he represented Kalkstein's employees,
particularly the three employees that were terminated the
evening before, and requested their reinstatement. Accord-
ing to Amster, Kalkstein responded that there were several
other Locals that had contacted him, and "wanted to
organize his shop." According to Amster, Kalkstein stated
that he had a contract with another local, whereupon
Amster responded: "You don't have any contract with
those Locals." According to Amster, Kalkstein retorted:
"Well, I once had a contract with one of the Locals." He
identified Local 868. According to Amster, Kalkstein stated
that he had hired replacements but that he would meet with
the Union and discuss the whole thing the next day. Amster
and Kalkstein both testified that Amster requested permis-
sion to speak to the employees in the shop which was
granted, and he and Martos went to talk to employees while
they were at work. Amster testified without contradiction
that Kalkstein came in and followed them and watched.
According to Kalkstein's version of the conversation,
Amster did request the reinstatement of Rivera and
Kalkstein refused, stating that he could not because of
Rivera's tardiness and drinking but that he did not wish to
engage in any further conversation because it was getting
late and getting dark outside and there were new employees
waiting on the inside for him. These new employees were
the replacements he had already hired for two of three
dischargees. Kalkstein testified that Amster claimed that he
represented the majority of the employees and had union
authorization cards in his hand. Kalkstein testified that he
did agree to meet again with Amster the following day. He
did not specifically deny that he made a reference to Local
868 nor did he specifically deny any specific aspect of
Amster's version of the conversation. Based on my observa-
tion of Amster as a detached, objective, and straightfor-
ward witness as opposed to Kalkstein's inconsistent and
contrived testimony found elsewhere herein, I credit
Amster.
Velez testified that when he reported for work on his shift
the morning of November 19 he saw Brentano with a
"package of cards" that everybody was signing in the plant
and that Brentano asked him whether he was interested in
joining the Union. With a great deal of verve and
enthusiasm Velez expressed on the witness stand how he
told Brentano he was opposed to union representation.
Velez testified that immediately thereafter: "I called all my
employees on the day time and told them that if they
wanted to sign for the Union that I wasn't and they told me
they weren't interested in signing anything." On cross-
examination he explained that: "I walked to my depart-
ment and I asked the - I asked the guys in my department
if they were interested in a Union, if they wanted to sign.
They said no." The daytime employees he questioned were
Jean Figueroa , David Figueroa , and John (Pancho) Salami.
He then testified on cross-examination that he told them
that if they were interested to go see Jack Brentano . At first
Brentano testified that he did not solicit Velez to sign a
union card, but on rebuttal Brentano testified that he did
ask Velez to sign a card on November 13 at the bakery and
that Velez refused, stating that he had had trouble with
unions in the past and got fired on his last job and wanted
no union of any kind.
Frank Sorensen who had been employed by Respondent
since he was about 16 years old in 1972 and at the time of
his termination on November 24, 1976, a donut finisher
testified he signed a union authorization card on November
12 with the other employees in the backroom or baking
area . Tuesdays were Sorensen 's day off so he did not appear
for work on November 18. On November 19 he reported for
work about 2:50. He was told by Jack Graziano that Rivera
had been fired. Sorensen testified that he was called to the
back supply room by Marvin Kalkstein where they were
alone. Sorensen testified that Kalkstein stated to him that
he had fired Carlos Rivera for two reasons, first, because he
wanted to try and organize a union, and second, because of
alcohol and drugs. According to Sorensen, Kalkstein told
him that if the Union came in he would have to lock the
door the next day because they could not afford the pay
scale . Sorensen testified that Kalkstein inquired of him
whether he knew anything about the Union. Sorensen
responded: "No." Sorensen then returned to work. Upon
recapitulation of this testimony in the form of a leading
question to Kalkstein on direct examination, he denied the
conversation. Jack Graziano testified that on the evening of
November 19, when the "union guys" were outside and
waiting to talk to employees on the inside, Jack Brentano
had requested them to go inside and talk to the union
representatives. His father, Sal Graziano, came in at 10 or
10:30 near the end of the shift and questioned Jack: "You
know what's going on here?" Jack who characterized
himself as a "very nervous guy" stated that something
inside him "clicked" and he became extremely upset and
lost control of himself. He testified that he did not like
being pressured. On direct examination the thrust of this
testimony was that he felt he was being pressured by
prounion supporters. However, he conceded that the union
representatives did not talk to him and though he originally
stated he could not do his work the entire incident occurred
toward the end of the shift when he was about finished. In
any event, when Jack Graziano "flipped out" he stated that
his father gave him a couple of raps and "told me to get
lost." Jack testified that he felt a certain social pressure to
sign a union representation card in the first place and also
his brother signed one first and he always "sticks with my
brother." However, he never recanted his union support
either to the union representatives nor to Rivera nor to
Brentano . This contradicts the testimony of Sal Graziano
that Jack recanted directly to Brentano and Brentano kept
"bugging" Jack to reaffirm his support. On cross-examina-
tion as to his basis for telling his father that he was upset
and being pressured, Jack Graziano testified that he did not
send a retraction of his support to Local 3 but that: "I think
I gave it to Marvin whereupon:
Q. Was he [Kalkstein] the one who asked you to
write a retraction?
A. Well, they asked me why, you know why the
card.
Q. I'm sorry?
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. They had asked me why I signed the card.
Q. Yes?
A. And I said, "Look, I didn' t mean to sign the
card. If it means that I have to sign something to retract
the card I will."
Whereupon Jack Graziano stated that he wrote out a
retraction and gave it to Kalkstein and that his father
helped him in composing a written retraction of union
support. Neither Sal Graziano nor Kalkstem contradicted
this testimony. It is fairly clear from the testimony of
Graziano that the pressure he felt was not, as he tended to
indicate on his direct examination as pressure from fellow
employees or union supporters to support the Union, but
rather pressure he felt from the interrogation of his father as
to what was going on and further interrogation by his father
and/or Kalkstein as to why he signed the union card. Sal
Graziano's version of the incident is to the effect that Jack
Graziano was harassed by Brentano is inconsistent with the
testimony of Jack Graziano and not worthy of belief. In
light of the testimony of Jack Graziano as to being
questioned as to his reasons for signing a union card and
the testimony of Velez that he questioned his employees as
to whether they wanted to sign a union card, it appears to
be a part of a pattern of conduct that Kalkstem himself
interrogated Sorensen. Kalkstein did not deny interrogating
Jack Graziano. Therefore, I discredit his denial and credit
Sorensen's testimony with respect to the conversation of the
November 19 in which he was interrogated and threatened.
Sal Graziano testified that on or about November 20
Brentano asked him to sign a union authorization card and
Graziano accused him of being "crazy" and that as a
supervisor he could be fired for such activity. According to
Graziano, Brentano immediately became overwhelmed
with self-doubt and repentance and feared discharge by
Kalkstein. According to Graziano, he reassured Brentano
that he, Graziano, would intercede with Kalkstein. This
occurred, said Graziano, on the same day that attorney
Siegel made a visit to Kalkstein which would have to have
been on November 20. Velez testified that after Brentano
solicited his card on November 19 in the same conversation
he told Brentano that he could not engage in union activity
because he was a manager and that in almost identical
fashion as narrated by Graziano, Brentano immediately
repeated he feared for his job whereupon Velez in an
identical manner again promised to intercede with Kalk-
stein on his behalf. Kalkstem testified that it was on
Thursday, November 20, he received identical telephone
calls from Graziano and Velez telling him about Brentano's
activity and his immediate repentance and his desire to
"make amends and apologize." Kalkstem testified that he
responded to both that his door was open to Brentano. He
stated that Brentano came to his office that afternoon and
apologized and turned over to him a packet of Local 3
authorization cards. Kalkstein testified that Brentano
apologized, saying he realized that as a manager it was
wrong for him to have engaged in union activity and he
needed his job and would Kalkstein retain him. According
to Kalkstem, he responded to Brentano that he would allow
him to continue working "as long as you do your job."
Brentano denied these conversations. He denied he ever
solicited Sal Graziano to sign a union authorization card.
As indicated earlier he stated that he did solicit Velez to
sign a union card on November 13.
According to Brentano, on November 20, about 4:30
a.m. in the presence of drivers and the salesgirl, Salvatore
Graziano came out into the plant "raving mad," and
screamed that Kalkstein was about to "lock the door"
because of the union organizing effort, but that he,
Salvatore Graziano, talked Kalkstem out of it, and that he
and Kalkstem were going to put a stop to the union
"bullshit." Graziano then summoned Brentano to a meet-
mg in Kalkstem's office to be held later on that day.
Shortly, on that afternoon of the same day a meeting did
take place at which were present Salvatore Graziano,
Nelson Velez, Kalkstein , Brentano , and an attorney by the
name of Marty Siegel, who Kalkstein testified was present
on other business. Brentano testified without contradiction
that he asked if Sorensen were also invited to the meeting
and Graziano responded: "No that p-k's for the Union,
he going to get it." All participants at the meeting were
asked by Siegel to sign statements to the effect that Rivera
was intoxicated on the night of November 18. Siegel asked
Brentano if this were not true. Brentano nodded his head
and signed such a statement. Brentano testified that he did
so for fear of losing his job. This is understandable in view
of Kalkstein's rage directed to him on the evening of
November 18 when Brentano breached Kalkstein's order to
refrain from informing Rivera of his discharge until the
shift ended. At that time Kalkstein threatened Brentano:
"Maybe, you're the one I should fire." During the course of
the meeting, a secretary announced that the Local 3
representatives had amved. Brentano testified that Kalk-
stein ordered Siegel to "get rid of the b-s." Siegel excused
himself, returned, and told the group that he told the
visitors that Kalkstein was absent, and then instructed
Kalkstein to send registered letters of discharge to Suarez,
Bultron, and Rivera. Siegel did not testify. Salvatore
Graziano testified that the meeting was not planned and
was purely accidental and he did not invite Brentano.
Kalkstein testified that Brentano came in that afternoon to
his office for the purpose of apologizing for his union
activity ; Siegel happened to be there on other business and
that the subject of Rivera came up spontaneously; and he
was on an errand when Local 3 representatives arrived
pursuant to his invitation extended to them the night
before. Despite Velez and Salvatore Graziano's account of
Siegel's preparation of statements, Kalkstein denied knowl-
edge of any statements prepared by Siegel. Velez testified
that he happened to be at the meeting fortuitously and that
he did sign a statement by Siegel. His testimony as to this
event is confused, inconsistent, and worthless.
Following this meeting, Brentano spoke to the union
representatives outside and recanted his statement to
Siegel. He was later that day questioned by Kalkstein as to
what he was doing talking to union representatives and why
he was spending so much time with them. Brentano
responded that it was his business as to what he did and
whom he associated with during his nonworking hours.
Kalkstem did not contradict him but testified that his mind
was "blank" on that point. By this time it had become clear
to Salvatore Graziano that Brentano's loyalty was with the
Union. I do not credit Salvatore Graziano nor Velez that
HOT BAGELS AND DONUTS 1607
Brentano had earlier spontaneously disavowed his support
of the Union. Their testimony appeared rehearsed and
contrived . There is no logical bases for either of them to
have suddenly befriended Brentano and urged Kalkstein to
forgive him , nor was there any logical basis for Brentano to
suddenly spontaneously make identical disclosures and
engage in confidence with either Velez or Salvatore
Graziano . From my observation of him as a witness, that
would have been completely out of character . With respect
to Velez and Salvatore Graziano , they both expressed an
intense dislike for union representation from the very tone
of their voices while testifying, as well as in their explicit
testimony . Graziano was upset because he blamed Brenta-
no for encouraging his son to support the Union . He openly
testified to this . Yet Salvatore Graziano suddenly is
supposed to have become solicitous over Brentano 's alleged
managerial blunder . Neither of the individuals , Velez nor
Salvatore Graziano , appeared to impress me as the type of
individuals who are sophisticated enough to have known
that there may be an issue to the protection of nighttime
supervisors under the Act. Graziano testified that after it
became apparent that Brentano continued to support the
Union he urged Kalkstein to discharge Brentano whom he
now viewed as a disloyal ingrate who was not "sincere" in
his abandonment of the Union. This realization, he
testified , followed the incident with his son , Jack Graziano,
where Jack had engaged in a temper tantrum . Graziano
testified that Brentano kept hectoring Jack who had
recanted his union support , that Jack could not do his work,
and that Jack threatened to quit after an argument with
Brentano. Kalkstein testified that indeed Graziano had
called and told him that this had occurred and urged that
Brentano be discharged.
Respondent witness, Jack Graziano , failed to support his
father's testimony . He had not recanted his support of the
Union, either to Jack Brentano or to any other employee, or
to any agent of the Union . Although initially testifying that
his work was interrupted as his father testified , he later
testified on cross-examination that his emotional break-
down occurred at the end of his shift after most of his work
was completed . However , there was no reason for Brentano
to hector Jack Graziano . It was his father who told him "to
get lost" or quit if he could not cope with the situation. Jack
Graziano testified that "everybody" was talking to him. He
did not testify that any argument occurred between himself
and Brentano . In this regard, both Velez' and Graziano's
testimony lacked candor.
The area which is uncontroverted is that Kalkstein
followed through on Graziano 's urging, and discharged
Brentano because he felt Brentano's support of the Union
was divisive. This is admitted by Kalkstein. This occurred
after Brentano 's reluctance to train Rivera's replacement,
and the telephone call from Salvatore Graziano demanding
Brentano 's discharge . Respondent concedes that Brenta-
no's activity on behalf of the Union was the cause of his
discharge . Respondent in its brief urges also that Brentano
was a supervisor and that an additional reason for his
discharge was his refusal to perform the duties of a
supervisor . That is more argument than fact . The testimony
of Kalkstein does not indicate that Brentano was dis-
charged because he refused to perform any duties . Clearly,
the emphasis for the discharge was his participation in
union activities . I also find that an additional reason for
Brentano's discharge was his failure to adhere to the false
statements as to Rivera's discharge, and the announcement
of this behavior by openly associating with union represen-
tatives , thus resisting Kalkstein to incorporate him as a tool
in making a "clean sweep."
D. The Discharge of Sorensen
Sorensen testified that on November 20, about 11 a.m. he
received a telephone call while at home from Salvatore
Graziano , and was told by Graziano that Kalkstem had
told him that he wanted to close down the business because
of the union activity on behalf of Local 3 , but that he,
Salvatore Graziano , had talked Kalkstein out of it, and that
Graziano had "papers" that employees had signed disavow-
mg the Union as support . Salvatore further told Sorensen
that all employees executed a disavowal , and he asked
Sorensen to also execute one. Sorensen testified that he
refused , whereupon Graziano stated : "Well, you'll be the
only one ." Sorensen stated that he responded : "That's all
right."
Sorensen testified further to an incident which occurred
at 2:30 p .m., the same day, dust as he drove up to the plant
prior to starting his 3 p .m. shift . He observed Siegel talking
to the Local 3 union representatives and stating that
Kalkstein was not in the plant . The union representatives
asked Sorensen if he still supported the Union, and
Sorensen testified that he told them that he did . Sorensen
further testified that , as they were talking , Salvatore
Graziano came out of the plant and got into his car which
was nearby , and, while moving it, shouted out: "I don't
want no Union scum near my car ." Sorensen testified he
thereupon pointed to Graziano and identified him to the
union agents as the person who telephoned him that
morning . Sorensen testified that at that point Graziano
pointed to him and said : "You, you're going to be the first
f-g one to go." Sorensen said he responded : "Don't worry
about me! " Graziano proceeded to close a garage door
while exclaiming : "Unions, that's why this city is in so
much f-g trouble ." Sorensen then proceeded to give a
written account of his conversation concerning Rivera with
Kalkstein to the union agents . Graziano admitted that he
observed Sorensen talking to union agents, and while he
was about to move his car that he did shout to Sorensen:
"Get the scum off my car," in reference to the union agents
whom he stated were leaning on his car as they talked to
Sorensen. Graziano stated that he moved his car a few feet,
and, while doing so, Sorensen pointed to him and stated:
"He's the first one to go ." Graziano denied telephoning
Sorensen and soliciting a union disavowal . Brentano, who
was present , corroborates Sorensen . Amster testified that
Sorensen pointed out Graziano as the individual who
telephoned him and Graziano shouted : "Don't point your
finger at me, because you're the next to go" and Sorensen
retorted: "You'd probably go before me."
Graziano's version as to this incident is not worthy of
belief. There was no reason for Sorensen to have threatened
Graziano with termination . It is not consistent with
anything that happened up to that point . It is, however,
logically consistent that Sorensen pointed to Graziano for a
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason ; i.e., identification . I, therefore , conclude that this is
what happened , and that, having been identified by
Sorensen as the person who interrogated him by phone and
solicited a union disavowal , Graziano became indignant
and threatened Sorensen with termination . Graziano's
denial of solicitation of union disclaimer is not credited. On
the contrary Graziano 's testimony conflicts with his own
son's testimony.
Later , about 4 p.m., Thursday , November 20, Kalkstein
approached Sorensen at the plant and, according to
Sorensen 's uncontroverted testimony , stated to him: "I
don't hold any of this Union garbage against you," and told
Jack Graziano , who was standing nearby, to make out a
new work schedule which eliminated the 12 -hour shift, and
institute an 8-hour shift . Kalkstein informed Sorensen that
this would be his new schedule . Prior to the union activity
Sorensen had made repeated requests to Kalkstein to
shorten the workday, but Kalkstein had always deferred. It
is apparent that with the advent of union organizational
activity and the events that have transpired up to this point
that this sudden promise and immediate activation of a
shorter workday was made in hopes of dissuading Sorensen
from further union activities.
On Friday, November 21, shortly after Sorensen reported
for work , there occurred a confrontation between Velez and
Sorensen . According to Sorensen , Velez accosted him,
shouted obscenities and reproached him for supporting a
union , and then punched him in the face and neck.
Sorensen testified that he tried to escape , but that Velez
ordered employee Memos Santos, who did not testify, to
close the door stating : "This guy ain't going no where."
Thereafter, according to Sorensen , Velez vehemently pro-
tested his union antipathy and punctuated his remarks with
physical blows . Another employee , John Salemis , who also
did not testify , intervened according to Sorensen , and Velez
relented stating : "This ain't the end of it."
Shortly thereafter Sorensen , whose face was reddened,
was questioned by Kalkstein in the plant . Sorensen conced-
ed that he told Kalkstein that Velez gave him a beating but
that he was all right and did not want Kalkstein to say
anything to Velez . However, later that day Sorensen told
his father-in-law about the incident and as a result Sorensen
summoned the police. According to Sorensen , Kalkstein
told the police that he had his nonworking hours at home
distrubed for three nights in a row because of the union
activity, and although he knew that Velez was "a maniac"
Velez was also a good worker whom he did not wish to fire.
Sorensen testified that he told Kalkstein at that point that
he was the only one left who supported the Union , and that
Kalkstein promised him that he had no intention of firing
him. Sorensen then went home . The next day, Saturday,
Sorensen saw a doctor and did not report to work pursuant
to his doctor's advice and with the approval of Kalkstein.
He returned to work on Monday and told Kalkstein that he
still supported the Union , but, according to Sorensen,
Kalkstein responded : "Well, I can 't afford a Union. If the
Union comes in here we'll all have to close up." Sorensen
testified that in response he referred to his paycheck , asking
Kalkstein : "Is this good pay?" and Kalkstein answered:
"Well if you don't think you making enough quit and go
somewhere else." Sorensen then walked away.
Sorensen testified that he returned to work on Monday,
November 24, at his new starting time of 5 o'clock and was
shown his new schedule by Kalkstein in the presence of
Jack Graziano . The new schedule reduced Sorensen's
workweek to five days of 8 hours each , with a day off on
Tuesday, Saturday , and Thanksgiving . Although Sorensen
testified that he wanted to work less hours during the day,
he had not requested a cut in the workweek which result in
a net loss in pay. According to Kalkstein , when Sorensen
protested , Kalkstein treated his reaction as fickle and that
he thought he was giving Sorensen what he had long
wanted.
On the evening of November 24 Velez reappeared in the
plant. Velez testified that he went there to buy donuts.
Sorensen , upon seeing him, called the police and thereafter
attempted to detain Velez until the police arrived. Accord-
ing to Sorensen, Velez came in, raged , and threatened to kill
Sorensen and pursued him out into the street until Velez'
wife interceded . The police arrived after Velez had left.
Sorensen talked to Kalkstein on November 25 on the
telephone and stated that in the conversation Kalkstein
blamed him for the confrontation and told him that Velez
would kill him if he ever spoke to Velez again and further
stated : "With all this Union garbage going on I can't be
worried about you and Nelson fighting . I have to let you
go." Accordingly, Sorensen testified that he was terminat-
ed.
Velez testified that indeed a confrontation between
himself and Sorensen had occurred. He denied that any
blows were exchanged but testified that only a shouting
match ensued after Sorensen unsuccessfully attempted to
get Velez to support the Union, and chided Velez with
unspecified racial slurs . Velez testified that the second
incident merely involved Sorensen 's attempt to keep Velez
from leaving the store by standing in his way until the
police arrived and telling Velez that "you're going to sleep
in jail tonight." Velez testified that he merely stated to
Sorensen : "I said to go to the side , I want to go to my house
tranquilly." He denies any pursuit and any threat to
Sorensen.
Salvatore Graziano testified that he had observed Velez
and Sorensen shouting at one another and that no blows
occurred. He testified that he watched to see if any violence
occurred because: "Nelson sometimes loses his temper.,,
On the witness stand he quickly realized the import ofPthat
testimony and, in an obvious attempt to moderate it,
testified that Velez has no history of violence that: "He only
sounds loud ." It is quite apparent from Velez' demeanor
and the testimony of Graziano that Velez is a man of very
strong emotions and prone to outbursts, and there was
good reason to fear violence.
Kalkstein testified that he saw no bruises on Sorensen,
that he did not call Velez "a maniac." He did concede that
Sorensen was flushed , he was so "shook-up" that he needed
to go home , and he permitted him to do so. Kalkstein also
agreed to let Sorensen take a couple of days off and did not
raise any questions that this was pursuant to his doctor's
advice , and that he assured Sorensen that he need not fear
for his job, telling him: "Look, may the best man win, what
ever happens , happens . If the majority of the people want
Local 3 we will have Local 3." 1 find that statement
HOT BAGELS AND DONUTS 1609
completely disingenuous in view of his statement to Amster
and his avoidance of further meetings with the union
representative , and in view of the interrogation and
solicitation of a union disavowal by himself and his
supervisors.
As to the second incident , Kalkstein testified that
Sorensen called him at home and said that he had been
threatened by Velez and feared for his life. Kalkstein
testified that he called Velez who denied the incident with
respect to pursuit , assault , and threats , and, therefore,
Kalkstein telephoned Sorensen and assured him that Velez
was not going to kill him and further accused Sorensen of
instigating the confrontation with racial slurs. It should be
noted that this was an abrupt change in the behavior of
Kalkstein . Up to this point he deferred to Sorensen 's desire
to leave work and reacted in a manner that he believed
something more than a mere exchange of insults took place.
Also it should be noted that at this point the only racial slur
that appeared to have occurred , according to Velez'
testimony , is an allegation that Sorensen accused the Puerto
Ricans of being antiunion . Such conduct and statements by
Sorensen would have been nonsensical in view of the
support of Bultron , Suarez, and Rivera , and indeed the
instigation of union activity by Rivera . I find Velez'
account to be utterly unbelievable . Kalkstein testified that
he did not tell Sorensen that he had no right to threaten
Velez with jail and told him: "To keep his mouth shut."
Kalkstein testified that Sorensen said he could not keep his
mouth shut , and that he feared for his life , and that he,
Kalkstein told him he could not tolerate Sorensen 's leaving
the plant because of such fear . Kalkstein testified that at
that point Sorensen voluntarily quit . On cross-examination,
Kalkstein reaffirmed that Sorensen quit for two reasons;
i.e., fear for his safety and that he could not keep his mouth
shut . In his affidavit given during the investigation of this
case , Kalkstein testified that Sorensen quit because he
refused to cease making racial slurs and getting involved in
shouting matches . Kalkstein weakly explained on the
witness stand that he did not mention the fear of safety in
his affidavit "because it didn 't come up" in the interview.
This is absurd on its face . Other inconsistencies in Kalk-
stein's testimony , and his affidavit, need not be labored
upon herein . It is clear to me that this his testimony here, as
elsewhere , was plainly contrived and unbelievable.
Although a case of battery did proceed to criminal court
trial and was dismissed , it was Sorensen's uncontroverted
testimony that Respondent's attorney defended Velez and
that a witness (De Leo) testified in criminal court on behalf
of Velez as to the incident even though he was not present. I
do not find the dismissal in criminal court dispositive
inasmuch as a different degree of proof is required for
successful criminal prosecution . I find it inconceivable that
Sorensen would have reacted so strongly to a mere shouting
match so as to swear out a criminal complaint , miss work,
and consult a physician . I find that Velez did in fact
threaten to inflict bodily injury , and did inflict bodily injury
on Sorensen because of his union activity , and that
Kalkstein terminated Sorensen because of his adherence to
Local 3 , and because his supervisor, Velez , could not
tolerate such adherence.
E. The 8(a)(2) Allegations
The General Counsel contends that Respondent violated
the Act by entering into a contract with Local 868 in 1974,
at a time when Local 868 did not represent an uncoerced
majority of employees in the unit covered by that contract.
The uncontested evidence submitted by the General
Counsel demonstrates that at the time of execution of the
contract between Respondent and Local 868 that Union
did not represent such a majority . The General Counsel
does not argue that a violation arose upon extension of
recognition at any time within 6 months of the charge or
thereafter ; and no evidence was submitted as to the lack of
majority status during that period of time . Respondent
contends that the 8 (a)(2) allegation is barred by Section (10)
of the Act as untimely . Respondent relies on Local Lodge
No. 1424, International Association of Machinists, AFL-CIO
[Bryan Manufacturing Co.] v. N.L.R.B., 362 U.S. 411
(1960). The General Counsel argues that Section 10(b) is
not applicable and inasmuch as the violation has been
concealed and realized upon the following Board cases:
Wisconsin River Valley District Council of the United
Brotherhood of Carpenters and Joiners ofAmerica, AFL-CIO
(Skippy Enterprises, Inc.), 211 NLRB 222, 226-227 (1974);
Southeastern Michigan Gas Company, 198 NLRB 1221, 1222
(1972); Russell-Newman Mfg. Co., Inc., 167 NLRB 1112-15
(1967). In those Board cases violations alleged therein
involved some positive action by Respondent such as the
levying of an illegal fine, or the discontinuance of wages in
fringe benefits which ultimately became known after a
lapse of time. Some action occurred . In arguing conceal-
ment , the General Counsel points out that the contract was
signed , thrown into a draw , and never implemented in any
respect nor referred to until this case arose . The contract
was nothing more than a forgotten piece of paper. No
employee was ever aware of it , and the majority of the
employees in the unit at that time never heard of Local 868.
However, it appears to me that the ultimate concealment
argument advanced by the General Counsel is also an
argument that no violation took place in 1974 inasmuch as
there was no real contract nor was there real recognition,
nor even any pretense made as to such to employees. As to
resurrection , all evidence of hostility of Respondent sub-
mitted by the General Counsel carried the message that
Respondent was antiunion not merely antilocal 3 , except
for the confrontation between Kalkstein and Morris
Amster following Rivera's discharge . Even on that occasion
Kalkstein made an ambiguous half-hearted reference to a
contract, but agreed to talk subsequently to Amster.
Although Kalkstein reneged on his promise to meet again,
there is no further reference by Kalkstein to a contract with
Local 868 . Sorensen testified that after his discharge he was
told by Jack Graziano that Kalkstein had "just got a Union
in," and had "just signed a contract ." However, Jack
Graziano is not an agent of Respondent , and his statement
does not bind Respondent. In any event it is ambiguous, for
it could mean that a new contract was executed with a third
Union . Neither Jack Graziano nor any other employee
testified to any statements made by Kalkstein , or any agent
of Respondent as to recognition tendered by Respondent of
any Union.
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adolf Whost, the secretary-treasurer of Local 3 until
March 1, 1976, testified that on November 26, 1975, he had
a cryptic telephone conversation with John Burke, Jr., an
officer of Local 868 wherein Burke asserted that a contract
existed between Respondent and Local 868 since 1974. No
representative of Local 868 appeared at the hearing. No
representation petition appears to have been filed by Local
3, and thus Respondent has not raised the 1974 contract as
a bar to any representation petition. There is no evidence
that Local 3 was refused recognition at a time when it
represented a majority of Respondent's employees. There is
no evidence that Local 3 attempted to enforce the 1974
contract, nor that Local 3 held itself out to employees as
their representative.
Under the circumstances, I conclude that since Respon-
dent has not extended recognition to Local 868, and the
evidence fails to establish that it even represented to its
employees that at any time it had extended recognition and
executed a contract with Local 868 in 1974, or at any time
later, there is no basis for the issuance of an order
compelling withdrawal of a noneffectuated recognition and
disavowal of a meaningless secret piece of paper. Had
evidence been adduced to the effect that Respondent
misrepresented to its employees that a contract existed
which made their efforts to seek representation for Local 3
futile, perhaps there would be basis for a finding of an
8(aXl) violation. But such is not the state of the record. I
accordingly conclude that the finding of a violation of
Section 8(a)(2) with a remedial order is not warranted.
The 8(aXl) Allegations
For the reasons discussed above, I find that Respondent
discharged Carlos Rivera because of his organizational
activities on behalf of Local 3; and discharged Augustine
Bultron and Carlos Suarez because of their association with
Rivera and support of his organizational efforts. I do not
consider the fact that they were not called to testify to
detract from such a finding. Testimony of all discnminatees
is not essential to support a Board finding of discriminatory
discharge where the circumstances are the same giving rise
to the discharge of other discriminatees who did testify, and
there is nothing that could be added to the record by the
nontestifying discriminatees. Cf. Riley Stoker Corporation,
223 NLRB 1146 (1976).
Inasmuch as I have found Jack Brentano to have held a
nonsupervisory position at the time of his discharge, and
inasmuch as Respondent has conceded that his efforts on
behalf of Local 3 motivated its conduct toward him, I find
that Respondent violated Section 8(a)(3) of the Act by
discharging him.
Finally, I find that the Respondent violated Section
8(aX3) of the Act by discharging Frank Sorensen for the
reasons recited above.
violations of Section 8(a)(1) of the Act as alleged in the
complaint:
1. The November 18, 1975, conversation between
Kalkstein and Rivera wherein Kalkstein coercively interro-
gated Rivera concerning his organizational activities on
behalf of Local 3, and threatened him with discharge, and
cessation of baking operations.
2. The November 25, 1975, conversation between
Kalkstein and Sorensen wherein Kalkstein stated that
Rivera was discharged in part for union activities, thus
implying a threat of discharge to other employees who
supported Local 3, and that he would have to close down
the business the next day if Local 3 were unsuccessful.
3. The November 20, 1975, threat of plant closure in the
event of successful organizational efforts by Local 3 made
to employees by Salvatore Graziano.
4. The November 20, 1975, solicitation by Salvatore
Graziano of Sorensen to abandon his support of Local 3,
and his threats of reprisal to Sorensen.
5. The November 20, 1975, Kalkstein interrogation of
Brentano concerning his sympathy and support of Local 3.
6. The November 20, 1975, promise and granting of an
8-hour workday by Kalkstem to Sorensen to discourage his
continued support of Local 3.
7. The November 19 and 20 interrogation by Salvatore
Graziano and Kalkstein of Jack Graziano as to why he
signed the Local 3 union authorization representation
cards, and the solicitation of his disavowal of his support of
Local 3.
8. The November 21, 1975, Sal Graziano threat to
discharge to Brentano because of his support of Local 3.
9. The November 21, 1975, threat to assault and the
assault and battery by Velez upon Sorensen.
10. The November 22, 1975, Kalkstein threat to Soren-
sen of plant closure.
11. The November 24, 1975, promise of a 5-day
workweek and day off for Thanksgiving by Kalkstein to
Sorensen.
12. The November 24, 1975, threat of assault and the
assault and battery by Velez upon Sorensen.
13. The November 25, 1975, threat to Sorensen by
Kalkstem that Velez would kill him if Sorensen would ever
speak to Velez again.
There is also uncontroverted testimony by Brentano that
Kalkstein on November 20, 1975, admitted that he,
Kalkstein, informed the police to check Rivera's driver's
license which resulted in the issuance of a police summons
to Rivera, an unlicensed driver, for operating a motor
vehicle without a license . Although this is further evidence
of an animosity exhibited by Kalkstein toward Rivera for
his activity on behalf of Local 3, it was not alleged in the
complaint, but rather raised in the brief submitted by
counsel for the General Counsel. I do not conclude that this
allegation was fully litigated, and therefore make no finding
thereon.
The 8(aX3) Allegations
In addition to the 8(aXl) violations arising from the
discriminatory discharges found herein, I find that Respon-
dent interfered with the rights of its employees guaranteed
under Section 7 of the Act by the following independent
The Remedy
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order that
Respondent cease and desist therefrom and take certain
HOT BAGELS AND DONUTS 1611
affirmative action designed to effectuate the policies of the
Act.
The Respondent having discriminatorily discharged
Carlos Rivera, Augustine Bultron, and Carlos Suarez on
November 18, 1975, and Jack Brentano on November 21,
1975, and Frank Sorensen on November 25, 1975, it is
recommended that Respondent be ordered to offer them
immediate and full reinstatement to their former jobs, or, if
the former jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges. It is further recommended that Respondent
be ordered to reimburse them for any loss of pay they may
have suffered as result of its discriminatory action against
them in the manner set forth in F. W. Woolworth Company,
90 NLRB 289, 291-293 (1950), together with 6-percent
interest per annum thereon in accordance with Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
On the basis of the foregoing findings and conclusions,
and on the entire record, I recommend pursuant to Section
10(c) of the Act, the issuance of the following:
ORDER?
The Respondent, Hot Bagels and Donuts of Staten
Island, Inc., New York, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to inflict or inflicting upon its employees
bodily injury because of their support of or activities on
behalf of a Union.
(b) Coercively interrogating its employees concerning
their union activities or union sympathies.
(c) Threatening its employees with discharge, partial or
complete business cessation , or other reprisals in order to
discourage their union activities.
(d) Coercively soliciting its employees to abandon their
union activities and to disavow any sympathies for a union
that they may have had.
(e) Promising its employees improvements in working
conditions in order to discourage their union activities and
sympathies.
(f) Discharging employees or discriminating in any other
manner with regard to their hire or tenure of employment
r 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.
or the terms and conditions of their employment, because
of their participation in union organizational activities or
because of their support and sympathies on behalf of a
union.
(g) Interfering with, restraining, or coercing employees in
any other manner with respect to the exercise of their rights
which Section 7 of the statute guarantees.
2. Take the following affirmative action which will
effectuate the policies of the Act as amended:
(a) Offer Carlos Rivera, Augustine Bultron, Carlos
Suarez, Jack Brentano, and Frank Sorensen immediate and
full reinstatement to their former positions, or, if those
positions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other rights and
privileges and make them whole for any loss of pay they
may have suffered by reason of the discrimination prac-
ticed against them, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve until compliance with any order for rein-
statement and backpay made by the Board in this proceed-
ing, and, upon request, make available to the Board and its
agents, for examination and copying, all payroll records,
social security records, timecards, personnel records and
reports and all other documents relevant and necessary to
reach a determination with respect to the amounts of
backpay due Rivera, Bultron, Suarez, Brentano, and
Sorensen pursuant to this recommended Order.
(c) Post at all of its places of business in the State of New
York copies of the attached notice marked "Appendix." 8
Copies of the notice, prepared both in Spanish and English,
on forms provided by the Regional Director for Region 29,
shall be posted, immediately upon their receipt, after being
duly signed by Respondent's representative. They shall
remain posted 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.
(d) Notify the Regional Director for Region 29, in writing
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
8 In the event that 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."