Ranger Bakers, Inc.

National Labor Relations Board - Board Decisions

Feb 11, 1976

222 N.L.R.B. 828 (N.L.R.B. 1976)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Silvercup Bakers , a Division of Ranger Bakers, Inc.
and Lennox Clarke and Miguel A. Lamourt. Cases
29-CA-4204 and 29-CA-4223
February 11, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On November 11, 1975, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the Charging Party,
Lennox Clarke, filed a brief in support of the Admin-
istrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Silvercup Bakers, A Di-
vision of Ranger Bakers, Inc., its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd. 188'F.2d 362 (CA. 3, 1951 ) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
gaging in conduct, more fully detailed herein, which inter-
fered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act, in-
cluding the discharge of its employee Lennox Clarke on or
about December 12, 1974.'
All parties appeared and were afforded full opportunity
to be heard and present evidence and argument. At the
close of the hearing, counsel for the General Counsel pre-
sented oral argument. Posthearing briefs have been re-
ceived from Counsel for the Respondent and from counsel
for the Charging Party, Lennox Clarke, which have been
duly considered. Upon the entire record, including my ob-
servation of the demeanor of the witnesses,z I make the
following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF THE RESPONDENT
Respondent, a New York corporation, has at all times
material herein maintained its principal office and place of
business in Long Island City, New York, where it is en-
gaged in the manufacture, sale, and distribution of bakery
products. In a representative annual period, Respondent,
in the course and conduct of its business operations, causes
to be transported and delivered to its Long Island City
plant, flour, sugar, and other goods and materials valued in
excess of $50,000, which goods and materials were trans-
ported and delivered to its plant in interstate commerce
directly from States of the United States other than the
State of New York.
I find, as the Respondent admits, that it is, and has been
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Tl-e complaint alleges, the answer admits, and I find that
at all times material herein, Local 50 , Bakery and Confec-
tionary Workers Union, AFL-CIO (herein Local 50 or the
Union), is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For many years prior to 1974, Respondent's predecessor
recognized the Union as the collective-bargaining repre-
sentative of its production and maintenance employees. At
the time of the events here at issue, there were approxi-
mately 200 such employees employed at the Long Island
City facility.
ROBERT COHN, Administrative Law Judge : This consoli-
dated proceeding , heard before me in Brooklyn, New
York, on September 3 through 5, 1975, presents the ques-
tion whether Silvercup Bakers, a Division of Ranger Bak-
ers, Inc . (herein called Silvercup , the Company , or Respon-
dent), violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (herein the Act), by en-
1 All dates hereinafter refer to the calendar year 1974, unless otherwise
indicated.
The original charge in Case 29-CA-4204 was filed January 28, 1975; the
original charge in Case 29-CA-4223 was filed February 18, 1975. The Order
Consolidating Cases, Complaint and Notice of Hearing issued May 30,
1975.
2 Cf. Bishop and Malco, Inc, d/b/a Walker 's, 159 NLRB 1159, 1161
(1966)
222 NLRB No. 129
SILVERCUP BAKERS 829
The record reflects that commencing in the spring of
1974 a small group of such employees, being generally dis-
satisfied with the manner in which the Union was repre-
senting them and policing the collective-bargaining agree-
ment with the Company, formed an ad hoc committee
which they denominated Bakers for a Democratic Union
(BDU). This committee, in which the two Charging Parties
and one, Willie Williams, were prominent, called the em-
ployees' attention to asserted derelictions of the Union's
officials, both orally and by distribution of leaflets.' For
example, the Union was taken to task for not informing the
membership of certain company practices which were eco-
nomically detrimental to the employees such as allowing
the Company "not to pay retroactive backpay or sick pay
when they were supposed to," and not protecting the work-
ers' jobs when companies represented by the Union (which
was an amalgamated local) threatened to close down and
move out of New York City .4 In October, when Respon-
dent took over the Long Island City facility from the previ-
ous operator, the Union solicited a petition to the workers
requesting that they waive some of their rights under the
collective-bargaining agreement in an apparent effort to
facilitate the takeover; BDU and particularly Lennox
Clarke, one of the alleged discriminatees herein, protested
this conduct and urged employees not to sign the petition.
In addition, BDU was successful in March of running and
electing Willie Williams as shop chairman at Respondent's
plant (Lennox Clarke was his campaign manager). In the
fall, Clarke ran unsuccessfully for president of Local 50.
It is the theory of the General Counsel that the conduct
of these employees who were prominent in the activities of
BDU constituted a thorn and a threat to the existing, gen-
erally cooperative contractual relationship of the Respon-
dent and Union, resulting in threatening and intimidatory
remarks and conduct of Respondent's supervisors in viola-
tion of Section 8(a)(1) of the Act, and in the eventual dis-
charge of Lennox Clarke on December 12, in violation of
Section 8(a)(3) of the Act. Respondent generally denies en-
gaging in any wrongful or unlawful conduct, and affirma-
tively contends that Clarke was discharged for cause.
Since the conduct of one Joseph' Szabo, head of
Respondent's maintenance department, is intimately con-
nected with the issues, it is necessary at the outset to re-
solve the question of his supervisory status. Counsel for the
General Counsel and the Charging Party contend that Sza-
bo was at all times material a 2(11) supervisor; Respondent
urges that he was simply a leadman in the maintenance
department, and was not possessed of such authority.
B. The Supervisory Status of Joseph Szabo
Szabo has been the plant engineer for 7 years. As such,
he is head of the maintenance department at the
Respondent's plant, which department is charged with the
repair and maintenance of the bakery machinery. At the
time of the events herein, there were approximately 15 em-
ployees in that department.
3 See, e g, G.C. Exh 4 and 5.
4SeeGC.Exh 5
It is clear from the record that Szabo is generally in
charge of the day-to-day operations of the department, and
directs the employees therein in their jobs. He is directly
responsible to the plant superintendent, Frank Marinelli,
who has charge of the whole facility numbering, as afore-
said, 200 employees. There is concededly no other admit-
ted supervisor in charge of maintenance department per-
sonnel so that if Szabo is held not to be a Section 2(11)
supervisor, there is no person possessing that authority be-
tween those employees and Marinelli. Indeed, Szabo has
an "assistant" who presumably acts in Szabo's stead during
the latter's absence. This assistant is paid an hourly rate of
20 cents more per hour than the first mechanic, and Szabo
receives 20 cents more per hour than the assistant.
In the course of his duties, Szabo prepares the weekly
work schedule of the other employees in the maintenance
department (subject to the approval of Marinelli), and
checks their timecards, although, on occasions, Szabo testi-
fied that this assistant performed that job. As head of the
maintenance department, Szabo attends weekly or month-
ly meetings called by Superintendent Marinelli, which
meetings are attended by heads of other departments such
as the sanitation department. Should an employee in the
maintenance department desire time off, Szabo would be
the person who would grant or refuse such request al-
though Szabo testified that he would secure Marinelli's ap-
proval unless the latter is away from the plant. This testi-
mony is refuted by then employee Willie Williams who
stated that most of the times he made such a request of
Szabo, the latter gave an answer at the time of making such
request 5 Williams also testified that on those occasions
when there is overtime to be worked by employees in the
maintenance department, Szabo is the person who assigns
those employees who are to work such overtime.
Section 2(11) defines "supervisor" as follows:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connec-
tion with the foregoing the exercise of such authority
is not of a merely routine or clerical nature, but re-
quires the use of independent judgment.
In N.L.R.B. v. Southern Bleachery & Print Works, Inc.,6
the Court of Appeals for the Fourth Circuit stated:
It is a question of fact in every case as to whether the
individual is merely a superior workman or lead man
who exercises the control of a skilled worker over less
capable employees, or is a supervisor who shares the
power of management.'
Based upon all of the foregoing, I find, contrary to the
contentions of the Respondent, that Szabo did at all times
material herein possess and exercise that degree of authori-
ty requiring the use of independent judgment over employ-
s To the extent that their testimony conflicts on this and other matters
discussed infra, I credit Williams, who impressed me as being the more
credible witness
6 257 F.2d 235, 239 (1958).
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees in the maintenance department such as to constitute
him a supervisor within the meaning of the Act, and there-
fore Respondent is responsible for his acts and conduct
hereinafter considered.?
C. Alleged Interference, Restraint, and Coercion
The complaint alleges that in December, Respondent, by
its agents and supervisor Joseph Szabo, warned its employ-
ees to refrain from giving assistance or support to the
Union, and threatened its employees with reprisals if they
continued to support the Union.
The record reflects that at a union meeting in November,
the membership was very disturbed because a number of
the employees were not receiving sick benefits and possibly
other benefits which were due them under the contract.
There was a vote taken at the meeting which authorized a
strike if such benefits were-not forthcoming.8 In early De-
cember, Willie Williams, the shop chairman, had a conver-
sation with Szabo in the maintenance department. Szabo
asked Williams what the employees were trying to prove by
a strike-that they were only making trouble for them-
selves. Williams responded that the employees were only
trying to get the money that was owed them by the Compa-
ny. Szabo responded that nothing would happen because
the Company would not pay and the Union would not do
anything about it. During that conversation Szabo referred
to Williams, Clarke, Lamourt,- and several others as being
"troublemakers."
Later, around the middle of December, Williams spoke
to Szabo again concerning a change in the work schedule,
and also mentioned Clarke who had been discharged on
December 12. At that time Szabo again mentioned the
names of employees above referred to and told Williams
that he was "going to get himself in some serious trouble."
I find, based upon the foregoing credited testimony of
Williams,9 that in December Respondent impliedly threat-
ened its employees with reprisals should they actively pur-
sue their right to engage in union or concerted activities
under Section 7 of the Act, in violation of Section 8(a)(1) of
the Act.
The complaint alleges that in January 1975, Respondent,
by Joseph Szabo, created the impression of keeping the
meeting places and activities of the Union under surveil-
lance, and also assaulted and threatened employees with
further assault if they continued to seek to be represented
by the Union for purposes of adjustment of grievances, or
if they continued to give assistance or support to the
Union.
On Saturday, January 4, 1975, in the lunchroom, Joseph
Szabo came up to Miguel Lamourt and advised that he had
seen Lamourt's name "up there in the office." Lamourt
7 See, e.g., F Strauss i Son, Inc, 200 NLRB 812, 816 (1973) (Blake);
Rochester Cadet Cleaners, Inc, 205 NLRB 773; 780-781 (1973) (where 18
workers in the department would be without immediate responsible supervi-
sor if employee were not held to be a supervisor); Monroe Manufacturing
Company, Inc, 200 NLRB 62, 66-67 (1973) (Cox); Pacific Southwest Air-
lines, 201 NLRB 647, 649-650 (1973)
s
However, no strike occurred
9 Szabo's denial that he had any conversation with Williams, in which the
names of the aforementioned employees were brought up, is not credited.
acknowledged that his name was probably in the office
because he (Lamourt) was scheduled to go on vacation the
following week . Szabo responded , however, that he was not
talking about a vacation-he was talking about how Lam-
ourt was an agitator and trying to "put the company out of
business . . . and put another union on the company." 10
Lamourt responded that if Szabo continued to accuse
Lamourt of being an agitator and trying to put the Compa-
ny out of business , he intended to file charges with the
Union against Szabo.
On Monday , January 6, Lamourt went into New York
City to the Union 's office and there spoke to a man (the
business agent was not present), explaining what Szabo
had said to him. Subsequently , on January 8, Lamourt was
washing out the men's room at the plant when Szabo came
up to him and grabbed him on the shoulder and started
shaking him. Szabo said that he wanted to speak with Lam-
ourt in his office and grabbed ,Lamourt 's hand and led him
to the office . After the two men were inside the office,
Szabo asked Lamourt why he placed the charges against
him with the Union. The latter replied that it was because
Szabo accused him of being an agitator and trying to "put
on another union ." Szabo then threatened Lamourt that if
he did not drop the charges, he (Szabo) intended to "beat
[him] outside the company." 11
I find, based upon all of the foregoing , that in January,
Respondent , by its agent and supervisor Joseph Szabo, cre-
ated the impression of keeping under surveillance the con-
certed activities of its employees , assaulted and threatened
to assault an employee if he continued to engage in con-
certed activities protected by Section 7 of the Act, all in
violation of Section 8(a)(1) of the Act.
D. The Discharge on December 12 of Lennox Clarke
This employee commenced work for Respondent in No-
vember 1971. He worked continuously from that time until
September 1974 as a "catcher" of rye bread from the num-
ber 4 oven . That is to say, his job was to receive the bread
after it was baked in that oven . In September, Respondent
discontinued the baking of rye bread (for economic rea-
sons), and thereafter until his discharge on January 12,
Clarke was shifted from job to job, of which more anon.
Clarkejoined the Union in January 1972 and remained a
member thereof until his discharge . 12 It appears that at
least as of December 1972, Clarke commenced taking an
active interest in union affairs particularly as they affected
the working conditions of the employees at Silvercup. Thus
he became a reporter for the Union 's newspaper, and, in
December 1972, wrote an article respecting the problems
that ensue from the Company's failure to pay wages on
time, and the fact that some of the employees' paychecks
"bounced." Shortly thereafter, Marinelli remonstrated
10 Credited testimony of Lamourt . Szabo could not recall any such inci-
dent in the lunchroom on or about this date . During the course of-this
conversation, Szabo listed as other agitators the names of Lennox Clarke, a
person named Dixon, and another named Nick.
"Credited testimony of Lamourt. Szabo acknowledged that on a day in
January 1975 , he saw Lamourt in the lunchroom and "took him into [his]
office" However , he did not further explain what occurred in the office
12 The contract between the Union and the Company contained a union-
security clause making union membership a condition of employment
SILVERCUP BAKERS 831
Clarke for this kind of reporting and said that it embar-
rassed the Company. Clarke retorted that the employees
could not take "embarrassment" to the supermarket and to
the landlord.
In the spring of 1974, Clarke and an exemployee of Sil-
vercup drafted a_petition to the Internal Revenue Service
for the purpose of requesting the latter to be more sympa-
thetic with the Company's financial troubles so as to pro-
tect the jobs of the employees (G.C: Exh. 3). Also in the
spring of 1974, as above noted, the BDU came into exis-
tence, and Clarke was the campaign manager for Willie
Williams who ran on their slate for shop chairman. Wil-
liams won by one vote in- the first election, but the Union
determined that there had to be a rerun election, which was
held about a month later. In that-election, Williams won by
a landslide majority. As previously noted, in the fall of
1974, Clarke determined to run for president of the Union
on the BDU slate, and did so. Leaflets were distributed in
the plant in this connection.13
As noted above, in September the Company discontin-
ued making rye bread, which had- the effect of leaving
Clarke without a job. Whereupon, Marinelli placed him at
the roll operation which involved Clarke's feeding the rolls
into -the oven. However, he was transferred after about 3
weeks to the bake shop (a different department) as a help-
er, because he apparently was unable to maintain produc-
tion. After a couple of weeks in the bake shop Clarke was
transferred back to the roll operation because, as Marinelli
testified, the foreman in that department did not want
Clarke as an employee.
About this time, Clarke complained to Willie Williams,
the shop chairman, concerning the transfers contending
that he had sufficient seniority to entitle him to a regular,
steady job. Williams spoke to Marinelli about placing
Clarke on a permanent job rather than being shifted
around. Marinelli responded that "Clarke was going to
have to work where they put him or they would have to get
rid of him because they couldn't have everybody going
around picking their own jobs." 14
On December 8, Clarke was working at the rolls oven
when there occurred a "Jam up" on the conveyor belt. It
required about 15 minutes for Clarke to -clear the conveyor
belt, during which time he was unable to feed the oven.
This resulted in some of the workers down the production
line losing some breaktime and required the Company to
work 15 minutes overtime that day. Gian Dhaliwal,
Clarke's foreman on this, operation, testified that he assist-
ed Clarke in clearing the conveyor belt, and told Clarke
that he was feeding the oven too slowly, and that other
employees were complaining about that. Subsequently-a
day or two later-Dhaliwal reported the incident to Mari-
nelli.
On December 11, Marinelli addressed a letter to the
Union concerning the December 8 incident, as follows:
Due to Mr. Klarke not keeping up feeding of roll
oven, production fell behind 10 minutes making it
necessary for the company to pay additional 15 min-
utes of overtime on crew of 7 men.
This act also caused the product to be over proofed.
Mr. Klarke has been previously warned verbally of his
wrongdoing. Due to the above we find it necessary to
bring this serious matter to your attention. Should
there be a recurrence of this in the future it will mean
immediate dismissal.
A copy of the foregoing letter was delivered by hand to
Clarke by a representative of the Union (a Mr. Rohne)
while Clarke was at work on December 12. Clarke testified,
without contradiction, that he did not read the letter at the
time Rohne handed it to him because he was busy at his
job; consequently; he placed the unread letter in his pocket
without knowledge of its contents.
Subsequently that day (December 12), the incident arose
which resulted in Clarke's discharge. It appears that Clarke
had placed an undetermined number of rolls in the oven
before they had risen sufficiently, i.e., they were "too
small." It is the proper procedure when an oven feeder
notices that the rolls or bread to be fed into the oven is not
of proper "proof," to stop the oven and call his supervisor.
According to Clarke's testimony, this is what he did on this
occasion, i.e., he stopped the oven and sent another em-
ployee (Bernard Lucus) to call the supervisor, Mike Fono.
Neither Lucus nor Fono was called as a witness at the
hearing by any party, although it was not shown that either
was unavailable; however, Respondent did call as its wit-
ness one Vigo Hass who was on the scene,in Respondent's
plant on this occasion. Hass, an employee of Durkee
Foods, was present in the plant to demonstrate one of his
products.15 While there Hass was watching the rolls being
put in the oven and testified that in his opinion they were
not ready. Hass testified that he asked the employee
(whom he did not know to be Clarke at that time) not to
continue, and Clarke responded that he would have to see
his supervisor. Accordingly , Hass walked to the other end
of the plant and informed Marinelli that in his opinion the
rolls were not ready for the oven. Marinelli then proceeded
to Clarke's work station. When he arrived, Fono was al-
ready there, and the oven feeding operation had stopped.
However, according to Marinelli, the incident caused 700
dozen rolls to be damaged.
Whereupon, Marinelli directed Clarke to come - to
Marinelli's office where the latter summoned John Mor-
gan, plant manager, and two union representatives, Tut-
tone and Convertino. Marinelli advised Morgan that he
felt Clarke was deliberately causing damage and Morgan
approved Clarke's dismissal. There was no dialogue be-
tween Clarke and any of the other men present at the meet-
ing.
Gentlemen:
Re. Mr. L. Klarke clock #I 106-Oven Feeder
13 See, e.g. , G.C. Exh. 4.
14 Testimony of Williams.
Analysis and Concluding Findings as to the Discharge of
Lennox Clarke
As previously noted, Respondent 's defense to this aspect
15 Respondent was a customer of Durkee.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the case is that Clarke was discharged by Marinelli for
cause, i.e., that Marinelli believed that the- damage which
resulted from the December 12 incident was deliberately
caused by Clarke since the latter was angered by the writ-
ten warning which he had received concerning the Decem-
ber 8 incident.16 Respondent further argues that there is
insubstantial evidence on the record to support the theory
of the General Counsel that any other of Clarke's activities
as a member of a dissident group (BDU) entered into the
decision to discharge him. I disagree, and find that, based
upon a consideration of all the evidence in the record, a
compelling reason for the discharge was because Clarke
engaged in concerted activities protected by Section 7 of
the Act; therefore, his discharge was in violation of Section
8(a)(1) of the Act.
Thus, it is firmly established in the record that in 1974
Clarke was active, along with a small group of other em-
ployees, in activities which had as their purpose the protec-
tion of employee rights "vouchsafed to them under the col-
lective-bargaining agreement between the Company and
the Union. It appears that most of such activities were di-
rected primarily to the union hierarchy, accusing it of
being derelict in standing up for the employee-members'
rights under the contract. The fact that the complaints
were primarily directed to the Union, however, did not
make the Respondent an uninterested observer since the
failure of the Union to enforce the agreement as respects
the employee's benefits was obviously to the advantage of
the Company. The record further reflects that such activity
of the dissident group became particularly disturbing in the
fall of 1974 when the Respondent succeeded to the Long
Island City facility. Thus, it is apparent that the Respon-
dent was seeking concessions in the form of postponement
or waiver of some provisions of the collective-bargaining
agreement which it would assume should it become the
employer of the employees at the plant. Representatives of
the Union, being acquiescent in the Respondent's desires,
helped to circulate petitions among the employee-members
in support thereof. But Clarke and his group vigorously
protested giving up the benefits and openly urged the em-
ployees not to sign the petitions. It is certainly a reasonable
inference that such conduct not only rankled the represen-
tatives of the Union, but also greatly displeased the offi-
cials of Respondent.
But Respondent argues that these matters had no part in
the decision to discharge Clarke since (1) Marinelli denied
any knowledge of such activities, and (2) Clarke's conduct
provided ample cause for his discharge. With respect to (1),
I find it highly unlikely that a superintendent who kept as
close contact with the work and the employees as did Mari-
nelli would fail to be aware of Clarke's concerted activity
above described. Indeed, Williams credibly testified that
around the first of November, Marinelli came up to him
and stated, "Look what I found on my desk," and it was a
leaflet. Marinelli continued the conversation, wondering
out loud "what the guys were doing or trying to do." 17
A second conversation between the two men occurred in
December when Marinelli came up to Williams in the
16 Respondent's brief, p. 13.
17 Marinelli's denial of this conversation is not credited
lunchroom where there were leaflets on the table. Marinelli
picked up one of them and asked what kind of (expletive
deleted) is this, inquiring whether the guys were trying to
close the plant down or something. Based upon all of the
foregoing, I find that at least during the fall of 1974 Mari-
nelli was well aware of the conduct and activities of the
dissident group of which Clarke was a prominent member.
As respects (2), Respondent's defense that Clarke was
deliberately causing damage to the Respondent's product
does not withstand scrutiny." In the first place, Marinelli
testified that he assumed that Clarke had received the
warning notice set forth in the December 11 letter, and this
provoked him (Clarke) to engage in the conduct above de-
scribed on December 12 which resulted in his discharge.
But at no time on December 12 prior to the discharge did
Marinelli bother to inquire of Clarke or the Union's repre-
sentative whether the warning notice had been conveyed to
him. Nor did Respondent call Rohne as a witness to refute
Clarke's testimony that he was unaware of the warning
notice until after the incident occurred on December 12.
Thus Clarke's testimony in this respect stands uncontra-
dicted on the record. Moreover, the record shows that
Marinelli decided to discharge Clarke (subject to Morgan's
confirmation) without bothering to ascertain Clarke's ver-
sion of the incident or indeed, even Clarke's supervisor
Fono's version. All of this evidence tends to support the
conclusion that Respondent was looking for an infraction
that might ostensibly justify discharging Clarke.19
Furthermore, while the complaint does not allege as dis-
criminatorily motivated the changing about of Clarke fol-
lowing the September shutdown of the rye bread opera-
tion-and I make no finding thereon-it is significant to
view the facts pertaining thereto. Thus, it will be recalled
that Clarke was originally assigned to the rolls oven follow-
ing the discontinuance. There he was directed to feed the
oven, which was a new job for him since on the rye bread
operation he had been only a "catcher" of the bread. He
apparently did not perform that job to the satisfaction of
Respondent, and was thereafter, transferred to the bake
shop as a helper. The record shows that this job did not
carry as high a wage rate as the former job, and it is there-
fore not unexpected that Clarke would desire to return to a
job in which he would at least make his former earnings,
particularly since he had substantial seniority in the plant.
Whereupon, Respondent not only denied any grievance
that Clarke made through shop chairman Williams, but
reassigned Clarke to the same rolls operation from which it
had previously removed him for inefficiency. This is not
the type of conduct which, in my view, Respondent would
is It is apparent from the record that deliberateness as distinguished from
mere negligence was required to be established, since there is no evidence
that any employee was ever terminated for damage to the Company's prod-
uct occasioned by the latter The record shows that one employee' s classifi-
cation was changed after he negligently, on two occasions, caused damage
to the bread (G.C. Exh. 7), another employee was warned, after several
instances of negligent damage, that he would be discharged at the next
occurrence (G C Exh. 9).
19 See, e g., United States Rubber Company v N L.R B, 384 F.2d 660, 663
(C A 5, 1967), The May Department Stores Company, d/b/a The May Com-
pany, 220 NLRB No. 168 (1975)
SILVERCUP BAKERS 833
have normally followed had it been seriously interested in
attempting to retain Clarke as an employee 20
Finally, in reaching my conclusion that Respondent's as-
serted reason for Clarke's discharge was pretextual, I have
given some weight to the testimony of Williams that Szabo
told him that Clarke's name was among those "in the of-
fice" for creating dissention in the plant 21
In view of all of the foregoing, I conclude and therefore
find that the discharge of Clarke on December 12 was be-
cause he engaged in concerted activities protected by Sec-
tion 7 of the Act, in violation of Section 8(a)(1) of the
Act 22
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth above, occur-
ring in connection with its interstate operations, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action which
is necessary to effectuate the policies of the Act.
Having found that the Respondent unlawfully dis-
charged Lennox Clarke for engaging in protected concert-
ed activities, I shall recommend that the Respondent be
ordered to offer him immediate and full reinstatement to
his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges. The
Respondent shall also be ordered to reimburse Clarke for
any loss of pay he may have suffered by reason of his
unlawful discharge by paying to him a sum of money equal
to the amount he would have normally earned as wages
from December 12, 1974, to the date of the Respondent's
offer of reinstatement, less his net earnings during that pe-
riod. Backpay shall be computed as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
20 There is no evidence in the record that Respondent was in any way
displeased with Clarke's proficiency as an employee during the whole period
of his employment from November 1971 until September 1974.
2i See also testimony of Lamourt , above set forth , on this point.
22 N.L R.B v. Interboro Contractors, Inc., 157 NLRB 1295, 1298 ( 1966),
enforced 388 F.2d 495 (C A. 2, 1967). In view of the fact that the remedy
would be the same, I find it unnecessary to determine whether the discharge
also violated Section 8 (a)(3) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the basis of the entire record , the findings of fact,
the conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER23
Respondent, Silvercup Bakers, a Division of Ranger
Bakers, Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with reprisals for engaging in
conduct which has as its purpose the implementation of the
provisions of a collective-bargaining agreement.
(b) Creating the impression of keeping under surveil-
lance the activities of employees who were seeking to im-
plement the provisions of a collective-bargaining agree-
ment.
(c) Assaulting or threatening to assault its employees if
they continue to engage in conduct which has as its pur-
pose the implementation of a collective-bargaining agree-
ment.
(d) Discharging employees for engaging in conduct
which has as its purpose the implementation of a collec-
tive-bargaining agreement.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights protected by
Section 7 of the Act 24
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer Lennox Clarke immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay he may have suffered by reason
of the unlawful discharge, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary and relevant to an analysis of the amount of backpay
due under the terms of this Order.
(c) Post at its Long Island City, New York, plant, copies
of the attached notice marked "Appendix." 25 Copies of
said notice, on forms provided by the Regional Director
23 In the event no exceptions are filed as provided by Sec. 102 46 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.
24 The serious and pervasive nature of the unfair labor practices commit-
ted, including an assault upon an employee and an unlawful termination,
indicate a hostility to the purposes of the Act and require, in my view, a
broad order. See Entwistle Manufacturing Company, 23 NLRB 1058, en-
forced as modified 120 F.2d 532 (C A. 4)
25 In the event the Board's Order is enforced by a Judgment of the
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 "
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Region 29 of the Board, after being duly signed by
Respondent's authorized representative, shall be posted by
it immediately after receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced or covered by any other material.
(d) Notify the said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps Re-
spondent has taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all parties had the opportunity to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act, and has
ordered us to post this Notice and abide by the following:
WE WILL NOT threaten our employees with reprisals
for engaging in actions or conduct which have as their
purpose the implementation, support, or maintenance
of the provisions of a collective-bargaining agreement.
WE WILL NOT assault or threaten to assault employ-
ees who engage in acts or conduct which have as their
purpose the implementation, support, or maintenance
of the provisions of a collective-bargaining agreement.
WE WILL NOT create the impression that we are keep-
ing under surveillance the activities of employees who
are engaged in acts and conduct which have as their
purpose the implementation, support, and mainte-
nance of the provisions of a collective-bargaining
agreement.
WE WILL NOT discharge any employee because he
engages in acts or conduct which have as their purpose
the implementation, maintenance, or support of the
provisions of a collective-bargaining agreement.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights under Section 7 of the Act.
WE WILL offer to Lennox Clarke immediate and full
reinstatement to his former job or, if that job no lon-
ger exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges, and WE WILL make him whole for any loss of pay
he may have suffered by reason of his unlawful termi-
nation.
SILVERCUP BAKERS, A DIVISION
OF RANGER BAKERS, INC.