Lenders's Bagel Bakery, 1175 (1966)

DECISION AND ORDER

On March 3, 1966, Trial Examiner William W. Kapell issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action,* as set forth in the attached Trial Examiner's Decision. Ile further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that they be dismissed. Thereafter, the Respondent, the General Counsel, and the Charging Party filed ex,ceptions to the Trial Examiner's Decision 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 powers in connection with this proceeding to a three-member panel [Members Fanning, Brown,, and Zagoria].

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.

The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, -and the entire record in this proceeding, and hereby adopts the Trial Examiner's findings, ,conclusions,' and recommendations with the following modifications.

1 We 'agree with the Trial Examiner 's conclusion that Respondent ' s discharge of Thomas violated Section 8 ( a) (3) of the Act. In this connection, we find that Thomas' union activity was the motivating factor for the discharge . Wolverine Shoe & Tanning Corporation, 152 NLRB 307 ; Tursair Fueling, Inc , 151 NLRB 270.

We further agree, for the reasons stated by the Trial Examiner , that Respondent interfered with Local 171 in violation of Section 8(a) (2) and that the contract between them, dated December 25, 1964, should not be given effect. However, in reaching this conclusion, we do not adopt the Trial Examiner's statement in his 'Conclusions as to Section 8(a) (1) and ( 2) violations,' that 'The unlawful genesis of the contract precludes its validity . . . ' insofar as this may imply any finding that events occurring before December 21, 1964, the cutoff date under Section 10 ( b) of the Act , violated the Act, or any reliance on such events to support our finding of a violation therein 158 NLRB No. 118.

The Trial Examiner concluded that the record failed to establish that Raymond Young was discharged on August 27 and there was insufficient evidence to show that he was denied reemployment because of his union activities. We do not agree. As the Trial Examiner noted with respect to Thomas' unlawful discharge, Respondent's failure.to, retain Young in its employ must be viewed 'in the context of Respondent's violations of Section 8(a) (1) and 12) of the entire record.' The Respondent engaged in extensive and flagrant violations of the Act in its efforts to convince employees to support Local 171. Among other things more fully set forth in the Trial Examiner's Decision, shortly before Christmas in 1964, Samuel Lender told Young that if he and the other employees did not vote in favor of the contract negotiated by Local 171 all employees would lose their jobs. And about a week later, Lender questioned Young about whether he had opposed the contract at the union meeting the night before and threatened that 'If [Young] didn't go along with' Respondent, he,

Young, knew what would happen.

Although Young apparently began soliciting employees on behalf of Local 338 in April 1965,, his disaffection with the leadership of Local 171 became notorious in May 1965 when he and Thomas formally accused Sulkis, Local 171's business agent, of 'not doing his job' and 'Making deals with Management.' At a union meeting held in June 1965 to consider those charges, Respondent's supervisor,

Lugo, who was actively engaged in Respondent's unlawful assistance to Local 171, defended Sulkis and stated that the bringing of charges was not permitting Sulkis to do his job. Respondent was further made aware of Young's opposition to Local 171 by his refusal to sign a checkoff authorization for the union upon request of Lugo in June after the unfair labor practice charges herein were filed. Thus,

Young's attitude toward Local 171 continued to be expressed in the face of Respondent's clearly announced -and longstanding unlawful encouragement of Local 171.

Young had been employed by Respondent for 41/2 years, and it is undisputed that Respondent considered him to be a superior employee. In June 1965, Murray Lender stated that Young was reliable and a good worker. Indeed, Respondent had recently moved to a larger plant, and had previously chosen Young to help train new employees in its expanding work force at the new plant. Nevertheless, it is uncontroverted that rafter the June union meeting, Samuel Lender frequently criticized Young's work although prior thereto such comment was rare.

It is against this background that the events of August 1965, must be viewed. In this context it becomes apparent that Samuel Lender LENDER'S BAGEL BAKERY 1177 initiated the conversation on August 14 in order to rid Respondent of ,an outspoken opponent of its collective-bargaining practices.

Thus, Lender called Young to his office on that date and asked about a rumor that Young was going to California, to which Young replied that he had a job opportunity there and was leaving in 2 weeks.

This conversation occurred on a Saturday, yet the next Monday,

August 16, when Young informed Lender that he did not wish to move to California and would like to reiriain in his job, Lender said a replacement had already been hired and he would have to discuss the matter with his brothers. This replacement, it developed, was totally inexperienced and in no sense capable of performing in place of Young as a dough cutter, apparently an important job in the plant, without extensive training. Further, the replacement worked only part of the first few days thereafter and then was absent because of illness. Despite this, Young's repeated requests to remain on the job were denied and he was terminated on August 27, assertedly because his replacement had been hired, although Respondent was, by its own testimony, in a state of expansion and in need of additional competent personnel.2

On the facts in this case, it is immaterial whether the termination of Young's employment be denominated a discharge, a refusal to accept an attempted rescission of a resignation, or a refusal to rehire.

Whatever it be called, we cannot agree with the Trial Examiner that such termination was not in violation of the Act. Rather, viewed in the entire context of this case, we conclude that Respondent's termination of Young was motivated by its desire to rid itself of an employee who actively opposed the union favored by Respondent.

The Respondent's asserted reason is clearly a pretext since based on the entire record, and in view of Respondent's continuing need for additional personnel throughout this period, it is highly improbable that an employer motivated by nondiscriminatory considerations would reject an opportunity to retain an experienced, competent employee of long standing, even if such retention would have required that Respondent lay off for a brief period a new unskilled employee who had worked less than a week and was absent thereafter because of illness., On the other hand, Respondent's manifest desire to maintain its bargaining relationship with the unlawfully assisted Local 171, its knowledge of Young's active opposition to the incumbent union, and the pretextual nature of Respondent's asserted reason for not retaining him, reveals that Young's activities in opposition to Local 171 were the controlling factors motivating Respondent's 2 Murray Lender stated that at the time of the hearing in November 1965, the employee complement was about 40. He further indicated that the plant had been 'in a rapid phase of expansion' and that 'there really has been no levelling point.' 3 Cf N.L.R.B. v. Melrose Processing Co., 351 F. 2d 693 (C.A. 8), enfg 151 NLRB 1352 actions. Accordingly, we find that Respondent violated . Section' 8('a) (3) by terminating Young and we shall order his reinstatement with appropriate backpay, to be computed in accordance with the provisions of The Remedy section of the Trial Examiner's Decision relating to Robert Thomas.

[The Board adopted Trial Examiner's Recommended Order with the following modifications : 4 [1. Substitute the following as paragraphs 2(b) and (c) [ (b) Offer to Robert Thomas and Raymond Young immediate and full reinstatement to their former or substantially equivalent position 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 Respondent's discrimination against them, in the manner and to the extent set forth in the section of this Decision entitled 'The Remedy.' [(cr Notify Robert Thomas and Raymond Young if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the provisions of the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces.] ' The Appendix attached to the Trial Examiner's Decision shall be modified in accordance with 'the modified Order.

TRIAL EXAMINER'S DECISION STATEMENT OF THE CASES

Cases Nos. 1-CA-5054 and 1-CA-5165,1 proceedings under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, were heard before Trial Examiner William W. Kapell in New Haven, Connecticut , on November 9 and 10, 1965,2 pursuant to due notice. An amended complaint s issued by the Acting Regional Director of Region 1 of the National Labor Relations Board, hereinafter called the Board , alleges that Respondent gave assistance to, and interfered with the administration of, Local No....