J. J. Cassone Bakery, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1988

288 N.L.R.B. 406 (N.L.R.B. 1988)

406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
J. J. Cassone Bakery, Inc. and Local 3, Bakery,
Confectionery and Tobacco Workers Interna-
tional Union, AFL-CIO. Cases 2-CA-21004- 1
and 2-CA-21004-2
April 8, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 24, 1986, Administrative Law
Judge Raymond P. Green issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, J. J. Cassone Bakery, Inc., Port Chester,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
Substitute the following for paragraph 2(e) of the
recommended Order:
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cu-. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
At fn. 7 the judge states that there is evidence which "suggests" that
employee Fernandez may have told Plant Manager Donald Cassone
about a union meeting at the home of Jose Valdovinos. We do not rely
on this ambiguous statement in finding a violation.
The Respondent contends that the judge incorrectly found that Castillo
visited Cejas' home on Friday instead of Saturday Cejas testified that he
could not remember if Castillo telephoned on Friday, but he thinks that
Castillo visited his house on both days. Castillo testified that he called
Cejas on Friday to tell him he was too ill to work. It appears that the
judge credited Cejas. In any event, it is clear from either version that
Castillo contacted Cejas either in person or by telephone on Friday and
told him he was too ill to work.
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), mterest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
The judge provided a discovery procedure for the purpose of deter-
minmg or securmg compliance with the recommended Order. We find
that discovery is not warranted in the circumstances of this case. See
Cherokee Marine Terminal, 287 NLRB No. 53 (Jan. 28, 1988).
"(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
Sandra M Grossfeld, Esq., for the General Counsel.
Marc L. Silverman, Esq. (Milgrim, Thomajan and Jacobs),
of New York, New York, for the Respondent.
Ann Schulman, Esq. (Cohn, Glickstein and Lurie), of New
York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge.
These consolidated cases were heard by me in New
York, New York, on various days in May and June 1986.
The charge in Case 2-CA-21004-1 was filed on 16 April
1985 and an amended charge was filed in that case on 16
May 1985. The charge in Case 2-CA-21004-2 was filed
on 23 April 1985. On 28 June 1985 the Regional Direc-
tor of Region 2 of the National Labor Relations Board
issued an order consolidating cases and consolidated
complaint. On 25 October the Acting Regional Director
issued an order amending the complaint.
In substance the consolidated complaint alleges:
1. That in late March or early April 1985 the Re-
spondent, by its supervisor Leopoldo Cejas, interrogated
employees concerning their union membership and/or
activities.
2. That in March or April 1985 Cejas created the im-
pression that employees' union activities were under sur-
veillance.
3. That on or about 12 May 1985, the Respondent, by
Rocky Cassone Jr., told employees that it would be
futile for them to select the Union as their bargaining
representative.
4. That on or about 12 May, Rocky Cassone Jr. inter-
rogated employees concerning their activities and sup-
port for the Union.
5. That on or about 12 May, Rocky Cassone Jr. cre-
ated the impression that the employees' union activities
were under surveillance.
6. That on or about 23 May 1985 Rocky Cassone Jr.
threatened employees that the Company would close its
facility if they joined, supported, or assisted the Union.
7.That on or about 23 May, Rocky Cassone Jr. threat-
ened employees with unspecified reprisals if they joined
or supported the Union.
8. That in April 1985 Respondent, by Johnny Cassone,
interrogated employees concerning their membership in
and support for the Union.
9. That on 5 April 1985 the Respondent discharged
Jose Valdovinos because of his activities on behalf of the
Union.
10.That on 15 April 1985 the Respondent discharged
Gavin° Castillo because of his activities on behalf of the
Union.
The Respondent denies all the aforementioned allega-
tions.
On consideration of the entire record in these proceed-
ings, including my observation of the demeanor of the
288 NLRB No. 47
J. J. CASSONE BAKERY 407
witnesses, and after considering the briefs filed by coun-
sel, I make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is agreed by the parties, and I find, that the Re-
spondent is engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. It also is agreed and
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
A. Background
The Respondent operates a bakery in Port Chester,
New York, where it bakes breads, rolls, and other items
for the wholesale trade. It employs about 200 employees
and is owned and managed by the Cassone family.
There was at least one previous campaign to organize
the production workers of the Respondent by this Union.
At an election held on 31 January 1978, in Case 2-RC-
17535, it was certified that a majority of the votes were
not cast in favor of the Union.'
There was also a prior unfair labor practice proceed-
ing against the employer that is reported at 247 NLRB
220 (1980.) In that case, the unfair labor practice charge
and the Union's objections to the aforesaid election were
held to be without merit and therefore were dismissed.
There also appears to have been one other unsuccessful
union campaign in 1982 or 1983.
There are two alleged discriminatees in this case, both
of whom have worked at various times at the Company.
Jose Vaidovinos first began working at the Company in
1982, but left in December of that year because of a
problem with the Immigration and Naturalization Serv-
ice (INS). He returned in February 1983 but left again in
February 1984. In March 1984 he came back to work,
but stayed for only a short period of time because he
went to look for a better job. He returned to work in
April 1984 and worked continuously for the Company
until his discharge on 5 April 1985. At the time of his
discharge, Valdovinos was assigned to work at the BP
oven where he, along with one other employee (under
the direction of a leadman), put dough on a conveyor
belt that fed into the oven. After baking for about 20
minutes, the bread comes out of the oven on a conveyor
belt where a group of workers (about 20 to 22) pack the
bread for delivery to a store located in Long Island.2
The BP oven at which Valdovinos worked is on for
most of the day and is also used by a night crew that
leaves about 3 a.m. A portion of the bread baked by the
night crew is left on the packing line to be packed by the
day- shift packers when they arrive in the morning. Val-
dovinos, along with most of the crew assigned to work
on or in connection with the BP oven on the day shift, is
A previous election was held on 1 February 1977, but that election
was nullified by the Regional Director.
" The bread baked on the BP oven is designated as the "Allied" ac-
count. Another oven, the "Winkler," also makes bread for the Allied ac-
count, The first delivery to this account leaves the plant about 9:30 a m.
and another delivery leaves about 2 p m. or 2:30 p.m.
scheduled to start work at 4 a.m. 3 The overall supervisor
of the Allied account is Arturo Campos.
The other alleged discriminatee, Gavin° Castillo, first
worked at the Company in 1982. In July 1983 he left, but
returned in August 1983 to work in the bread depart-
ment. The Company asserts that Castillo was fired in
December 1983 because he had an argument with his su-
pervisor. While denying that he was fired, Castillo con-
cedes that he left because of an argument with his super-
visor. In April 1984 Castillo was rehired for the cleaning
department, which is under the supervision of Leopoldo
Cejas. Castillo left again in or about August 1984. When
he came back to the United States (from Santo Domin-
go), his requests to return to work were initially refused
by Donald Cassone, whereupon Castillo enlisted the aid
of Cejas to intercede on his behalf to get his job back. In
March, Donald Cassone finally agreed to rehire Castillo.
Cassone asserts that he reluctantly rehired Castillo be-
cause an INA raid had just depleted the work force and
because of the insistence of Cejas, the cleaning depart-
ment supervisor. Castillo thereafter worked during the
day in the cleaning department until his discharge on 15
April 1985. In the evenings, he held another job working
for a cleaning contractor that cleaned at General Foods,
located in Rye, New York. This other job was obtained
by Castillo before he returned to work at the Respond-
ent in 1985.
1. The discharge of Jose Valdovinos
In March 1985 Jose Valdovinos asked for a raise but
was turned down. As a result, he decided to talk to other
employees about getting a union. Among the people he
spoke to were his brother, Pedro Valdovinos, Gavin°
Castillo, Luis Fernandez, and Angel Molleturo. It was
from the latter employee that Jose Valdovinos got the
Union's phone number and he contacted a Narcisso
Matas, who is a union organizer. According to MoIle-
turo, at some point after Jose Valdovinos asked for the
Union's phone number and before he was fired, Supervi-
sor Leopoldo Cejas told him (Molleturo) that he knew
that the Union "was a reality"; that Rocky Cassone had
told him about it.
At some point in late March, Jose Valdovinos ar-
ranged with Matas to have a meeting at his home on
April 3, 1985. This meeting was attended by Narcisso
Matas for the Union along with employees Jose Valdo-
vinos, his brother Pedro Valdovinos, and Luis Fernan-
dez. Gavin° Castillo, who had told Jose Valdovinos that
he would help with the union drive, could not attend the
meeting.
On 4 April, Jose Valdovinos clocked in at 4:11 a.m.4
According to Pedro VaIdovinos, at some point during
that morning he had a conversation with Luis Fernandez
who, as noted above, attended the meeting on 3 April.
According to Pedro Valdovinos, Fernandez said that he
3 The people who work on or in connection with the Winlder oven
are scheduled to begin work at 5 am.
4 In the same department as Jose VaIdovinos, Moise Contreras
punched m on 3 April at 4 . 11 a.m On the same day, Luis Lopez punched
in at 4:15 a.m. The leadman for the BP oven, Raul Mandnjano, punched
in at 4:03 a.m.
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had been called into the office by Donald Cassone and
he was not going to continue with the Union. (Luis Fer-
nandez did not testify in this proceeding.)
About noon on 4 April, Donald Cassone told Jose
Valdovinos to punch out because there was not enough
work for Valdovinos to do. Supervisor Arturo Campos
protested to Donald Cassone that he needed Valdovinos
to continue working. Valdovinos finished out the remain-
der of the day.
On Friday, 5 April, Jose Valdovinos came a little late
and found that his timecard was not in the rack. He
states that while waiting, Moise Contreras and Luis
Lopez, two coworkers, came in after he did. 5 According
to Valdovinos, when Donald Cassone arrived he told
him that he was fired because he came in late. 'When
Valdovinos protested that everyone came late, Donald
Cassone said that he did not care. Jose Valdovinos then
went to the cafeteria where he told Campos of his dis-
charge. Campos replied, "You must be kidding," and
told Valdovinos that he would talk to Donald Cassone
about the discharge. Valdovinos then went home.
On Monday, 8 April, Jose Valdovinos reported to
work and did in fact work until about noon when
Donald Cassone came over to the oven, asked him what
he was doing there, and told him to leave. Valdovinos
asserts that he told Donald Cassone that the real reason
he did not want him there was because 'of the Union and
that Cassone said, "I don't care."
Jose Valdovinos testified that he spoke to Rocky Cas-
sone Jr. on or about 22 May 1985 while waiting for his
brother Pedro at the parking lot. He states that Cassone
came over and called him a "fucking bum." He asserts
that Cassone said that Valdovinos called the Union be-
cause he had been fired and that he (Valdovinos), replied
that he contacted the Union before he was fired. Ac-
cording to Valdovinos, Rocky Cassone asked why he
called the Union, and when told because he had not re-
ceived a raise, Cassone responded that Valdovinos did
not get a raise because he was a half hour late every day.
According to Valdovinos, C,assone also said that if the
Union came in, the Company would close.
In relation to the above, Rocky Cassone Jr. recalls
that he did have a conversation with Valdovinos at the
parking lot on May 23, 1985, and that he may have
called him a "fucking bum." He states that during this
conversation he described to Valdovinos the procedure
by which a union comes into a company. He asserts that
he explained that a union needed at least 30 percent of
the employees to sign cards in order to get an election,
that it would need to get at least 50 percent of the em-
ployees to vote for it in an election, that even if the
union won an election they would still have to negotiate,
and that the Union might have to call a strike if no
agreement was reached. Cassone states that he did not
threaten to close the plant. He asserts that he told Valdo-
vinos that if the Company and the Union could not
reach an agreement (assuming that the Union won an
election), the Union could call a strike. He states that
Valdovinos then said, "Yeah if the Union calls a strike
5 On 5 April 1985 both Moue Contreras and Luiz Lopez punched in at
4 . 15 a.m
you'll have to close the bakery because you won't have
anyone to work." Thus, in denying the alleged threat to
close, Cassone attributes the closure remark to Valdo-
vinos.
2. The discharge of Gavino Castillo
According to Castillo, shortly after Jose Valdovino
was discharged he received a group of union authoriza-
tion cards from Pedro Valdovinos and agreed to solicit
signatures from other employees. He states that he did
so, but engaged in such activity in a surreptitious
manner. Castillo testified that he spoke to his supervisor,
Leopoldo Cejas, and told him that this time the Union
was going to win because the employees had "green"
cards. (That Castillo told this to C,ejas is not surprising in
view of the friendly relationshp between the two men.)
Castillo states that Cejas merely responded that he had
nothing to do with it.
Castillo testified that on Tuesday, 9 April, he forgot to
punch out. He states that as he was leaving he saw
Donald Cassone, whereupon he turned around and re-
turned to the timeclock. According to Donald Cassone
he reprimanded Castillo on this account.
On Thursday, 11 April, after Castillo reported to
work, he told Supervisor Cejas that he was not feeling
well and asked if he could go home. Cejas told him to
do some tasks but that if he still did not feel well, he
could go home. A little later, Castillo left and did not
punch out. Although Castillo claims that Cejas gave him
permission to leave without punching out, Cejas credibly
testified that while he gave Castillo permission to leave,
he did not give him permission to leave without punch-
ing the timeclock.
On Friday, 12 April, Castillo did not go to work. Cas-
tillo states that he called Cejas to tell him that he was
still sick. Cejas, however, testified that Castillo came to
his house at lunchtime to tell him that he was too ill to
go to work. (Cejas and Castillo live near each other and
both live within walking distance of the plant.)
On Saturday, 13 April, Castillo states that he visited
the plant and told Cejas that he was ready to return to
work and that Cejas told him to come back on Monday.
According to Cejas, on Saturday Donald Cassone told
him that he had caught Castillo not punching his time-
card and that when Castillo returned he would be trans-
ferred to the roll department. Cejas asserts that he told
this to Castillo on Saturday afternoon; Castillo said that
he would not work in rolls and that Donald could shove
his job. According to Ceja he told Castillo to go to work
on Monday and he would see what could be done.6
According to Castillo, on Monday, 15 April, Donald
Cassone was waiting for him as he arrived at work and
told him to punch in. He states that he then told this to
Cejas who said that Donald must be crazy. According to
6 I note that Castillo had a second job that he worked at after finishing
at the Respondent. This was for a cleaning contractor in Rye, New York.
The records of the cleaning contractor show that Castillo worked at
General Foods on the days that he claims he was too sick to work at
Respondent. As this was not known to the Respondent at the time, it
played no part in the decision to discharge Castillo. This evidence does
not, however, reflect well on Castillo's general credibility.
J. J. CASSONE BAKERY 409
I ''
Castillo, Cejas spoke to Donald Cassone in English. He
states that Cejas said that he told Cassone that Castillo
was a good worker, but that Cassone said that he did not
want to see Castillo there anymore. Castillo testified that
he told Cejas that he wanted the reasons for his dis-
charge in writing. Later in the day, when Castillo went
to pick up his final check, he was given a letter signed
by Donald Cassone, which read:
On Tuesday, April 9, 1985, I personally wit-
nessed you coming back- to the bakery after work-
ing hours and punched out. When questioned your
response was you forgot to punch out and that you
came back to do so, I then warned you not to do
this again, but to call Rocky or myself next time
and we will adjust the card in the proper fashion.
On Thursday, April 11, 1985, neither Rocky nor
I could find you for several hours. At 11 o'clock
we consulted Leo Cejas, your manager, as to your
whereabouts. Leo's answer was that you were sick
and left for home. When Rocky and I reviewed
your punch card we found to our dismay that you
again neglected to punch out.
On Friday, April ,10, 1985 you did not show up
for work, and you also did not call to advise us of
your absence.
Mr. Castillo, in view of the above mentioned
facts; your willful neglect to punch out after being
warned and your taking a day off without calling, I
find it necessary to terminate your employment.
Enclosed, you will find your hours. Final pay-
check.
Donald Cassone's version of the events is that after
Castillo failed to punch out on Tuesday (after being
warned), and when Castillo did not come to work on
Friday without calling in, he decided to discharge him
According to Cassone, his decision to discharge Castillo
was based in part on the fact that Castillo had previously
been discharged. Thus, he states that although the infrac-
tions of that week would not ordinarily warrant an em-
ployee's discharge, they did in Castillo's case because of
his poor past record. Cassone testified that on Monday
morning he waited for Castillo in the parking lot and
told him that he was fired. He also claims that, at the
same time, he told Castillo that if he wanted to work for
the Company he would have to work in the roll depart-
ment. In this respect, Cassone testified that he wanted to
put Castillo in the roll department because that would be
a place where Castillo could not wander about. In any
event, Cassone states that when he offered to put Castillo
in the roll department, the latter said "fuck you" and
walked out.
Leopold Cejas also testified about the events surround-
ing Castillo's discharge. He states that about 6:55 a.m. on
Monday, Castillo told him that Donald Cassone told him
that he could no longer work in the cleaning department.
According to Cejas he told Donald Cassone that he
needed Castillo in his department and that he was a good
worker. He states that Donald Cassone did not listen to
him and did not explain why he wanted Castillo moved
to the roll department. As to the contention by Donald
Cassone that Castillo did not call in on Friday, Cejas
states that Castillo did in fact notify him in person on
Friday that he was too sick to work.
With respect to the assertion by Donald Cassone that
at the same time that he fired Castillo he offered him a
job in the roll department, this is a contention that is
denied by Castillo. Also, I note that this alleged offer is
not contained in the letter of discharge given to Castillo
on 15 April.
According to Castillo, about 2 weeks after his dis-
charge, he asked Cejas who told Donald about his in-
volvement in the Union. He states that Cejas replied that
Donald Cassone told him that he knew that Castillo was
involved in the Union. Cejas also told Castillo that he
did not know if this was the reason that Castillo was
fired. (Cejas did not deny this conversation.)
3. Other alleged 8(a)(1) conduct
Pedro Valdovinos testified he went to a meeting with
union agent Narcisso Mates on 11 May. He states that on
the following day, 12 May, Rocky Cassone Jr. asked
how the meeting went. As to this allegation of "impres-
sion of surveillance," Rocky Cassone Jr. concedes that
he did ask about the meeting but that he knew of the
meeting because Pedro Valdovinos told him about it a
week before. In fact, as Matas testified that there were
only two people at the meeting, himself and Pedro Val-
dovinos, it seems to me very probable that it was Pedro
Valdovinos who told Rocky Cassone about the meeting.
The General Counsel also presented the testimony of
Angel Molluturo in support of an allegation that Johnny
Cassone unlawfully interrogated employees. My opinion,
however, is that on this point Molluturo's testimony was
too vague to support this allegation even assuming that
Johnny Cassone was a supervisor within the meaning of
Section 2(11) of the Act.
II. ANALYSIS
The evidence concerning the discharge of Jose Valdo-
vinos is sufficient in my opinion to establish that he was
discharged because of his union activities. Thus, the
timing of his discharge is, by itself, suggestive of an an-
lawful motive inasmuch as Valdovinos' discharge oc-
curred just 2 days after the union meeting that was held
at his home. Regarding knowledge of union activities,
Angel Molluturo testified, without 'contradiction, that
sometime between the time he gave Valdovinos the
Union's phone number and the time Valdovinos was
fired, he (Molluturo) told Supervisor Leopoldo Cejas
that there was union activity. What is more, Molluturo
testified that Cejas replied that he was aware of the
union activity because Rocky Cassone Jr. told him about
it.7
7 There is evidence in this record that suggests that Luis Fernandez
may have told Donald Cassone about the union meeting at the home of
Jose Valdovinos. In this regard, the evidence shows that on the morning
of 4 April, Fernandez told Pedro Valdovinos that he had been called into
the office by Donald Cassone and that he (Fernandez) was not going to
continue with the Union.
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Employer's defense regarding the discharge of
Valdovinos is not very persuasive. It claims that Jose
Valdovinos was constantly late in that he not only
punched in after his scheduled starting time (4 a.m.), but
that he took additional time changing into his uniform
after punching in. Yet the evidence in this case shows
that if Valdovinos was continuously late, it also shows
that this pattern of arriving at times from 5 to 10 minutes
late had gone on for a long period of time before his dis-
charge and had not resulted in any prior disciplinary ac-
tions. Moreover, the evidence shows that other employ-
ees who worked on the Allied account (such as Moise
Contreras and Luis Lopez), also came late with the same
degree of frequency as Jose VaIdovinos and had never
received any disciplinary action on that account. 8 The
record shows that for at least a 3-year period prior to
Jose Valdovinos' firing, discharges were rare events
(numbering about seven), and that no employees were
discharged because of latenesses. Regarding the rule re-
quiring employees to change into their work clothes
before punching in, Rocky Cassone Jr. conceded that
this rule had not been enforced.
The Respondent asserts that because Valdovinos was
assigned to put dough into the BP oven, his unavailabil-
ity at the beginning of the shift would cause a backup
and a delay in the work of all the other people working
on that oven, including the 20 to 22 packers. The evi7
deuce, however, shows that as the night crew leaves a
good deal of baked bread on the outgoing line, there is
therefore, bread for the packers to begin working on as
soon as they arrive at work. Also, there is nothing par-
ticularly unique about Valdovinos' work or the -work of
the packers, each being readily interchangeable. Thus,
Supervisor Campos testified that if Valdovinos or one of
the other workers who put dough into the oven was late
or absent, he could simply assign a packer to that task.
Finally, I find it significant that the decision to dis-
charge Valdovinos was made by Donald Cassone with-
out even consulting Supervisor Arturo Campos, who ap-
pears to have been as surprised by the discharge as Val-
dovinos.
I am also persuaded that the Respondent discharged
Gavin° Castillo for unlawful reasons. Here too the
timing of the discharge, soon after he began to distribute
union cards, is evidence of discriminatory intent. Also in-
dicative of such intent is the evidence that the decision
to discharge Castillo was made by Donald Cassone not
only without consulting Castillo's individual supervisor,
Leopoldo Cejas, but was implemented by Cassone after
Cejas told Cassone that Castillo was a good worker and
that he was needed in the cleaning department.
I am relatively certain that Castillo, despite his asser-
tions, was not given permission to leave on 9 April with-
out punching out his timecard. I also believe that he was
not sick on the days he took off because the evidence
shows that he worked at another job on those days. Nev-
ertheless, in the latter case, this fact was not known to
the Respondent when it discharged Castillo and it there-
fore could not have been a basis for its motivation. As to
8 In fact, on 4 and 5 April both of these employees arrived after Jose
Valdovinos.
Castillo's failure to punch out, I do not accept Respond-
ent's assertion that this in any way prompted his dis-
charge. Nor do I credit Donald Cassone's assertion that
one of the reasons for Castillo's discharge was his failure
to call in on Friday to notify the Company that he was
sick. In fact, according to Cejas, Castillo did notify him
on Friday that he was still too sick to come to work.
The Employer asserted that Castillo's conduct during
the week ending 12 April (twice failing to punch out and
his failure to call in about his illness), coupled with his
past record, made him unfit for employment. Yet this as-
sertion, to my mind, is contradicted on its face by
Donald Cassone's claim, during the hearing, that at the
same moment that he was firing Castillo, he offered him
a job in the roll department. 8 Concerning knowledge of
Castillo's-union activities, I note that Cejas did not deny
Castillo's testimony that Castillo told him about the
union campaign prior to his discharge. Nor did he deny
the testimony that he told Castillo 2 weeks after the lat-
ter's discharge that Donald Cassone had told him that he
(Cassone) knew that Castillo was involved in the Union.
Regarding the other alleged 8(a)(1) conduct, I make
the following conclusions.
1. I will recommend the dismissal of the allegation that
in late March or early April Supervisor Cejas interrogat-
ed employee Molluturo or gave the impression that the
employees' union activities were being kept under sur-
veillance. In this respect the testimony of Molluturo did
not reveal any interrogation at all. It merely was that
Cejas said that he knew the Union was a reality and that
Rocky Cassone had told him about it.
2. I do not conclude that Rocky Cassone Jr. violated
the Act in any manner by his remarks to Pedro Valdo-
vinos on May 12. As the evidence establishes to my satis-
faction that Pedro Valdovinos very likely told Rocky
Cassone of a union meeting to be held on 11 May, I
cannot conclude that Cassone's inquiry on 12 May about
how the meeting went would constitute giving employ-
ees the impression that their union activities were under
surveillance. Nor did I hear evidence to support the
complaint's allegation that on 12 May Rocky Cassone Jr.
engaged in unlawful interrogation, or that he told em-
ployees that it would be futile for them to select the
Union as their bargaining representative.
3. In my opinion the evidence given by Mollutoro was
too vague and uncertain regarding the contention that
Johnny Cassone unlawfully interrogated employees
about their union activities.
4. I conclude that Rocky Cassone Jr. did tell Jose Val-
dovinos that the Company would close down if the
Union came in. In this regard I found Valdovinos to be
an honest witness whose testimony, in my opinion, was
reliable. As Valdovinos at the time of this statement had
been unlawfully discharged, he retained his status as an
employee and therefore the coercive statement was made
to an employee. As such I conclude that the Employer's
statement violated Section 8(a)(1) of the Act.
9 On this point I credit Castillo's assertion that he was not offered
other employment at the Respondent at or after the time he was dis-
charged on 15 April. In this regard I npte the conspicuous absence of any
reference to such an offer in the discharge letter of 15 April.
J. J. CASSONE BAKERY 411
CONCLUSIONS OF LAW
1.Respondent J. J. Cassone Bakery, Inc. is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 3, Bakery, Confectionery and Tobacco Work-
ers International Union, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening to close the plant if the Union
became the employees' collective-bargaining representa-
tive, the • espondent violated Section 8(a)(1) of the Act.
4. By discharging Jose Valdovinos and Gavino Cas-
tillo because of their activities on behalf of the Union,
the Respondent has violated Section 8(a)(1) and (3) of
the Act.
5.The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Except to the extent found, the other allegations of
the complaint are dismissed.
REMEDY
Having found that the Respondent has violated the
Act in certain respects, I will recommend that it cease
and desist and take certain affirmative action to effectu-
ate the policies of the Act.
Regarding Jose Valdovinos and Gavino Castillo it is
recommended that Respondent offer them full and imme-
diate reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and to make them whole
for any loss of earnings they may have suffered by
reason of the discrimination practiced against them, such
earnings to be computed in accordance with the formula
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest thereon to be computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977). See
generally Isis Plumbing Co., 138 NLRB 1716 (1982).
Additionally, in accordance with Sterling Sugars, 261
NLRB 472 (1982), I will recommend that Respondent
remove from its files any reference to the discharges of
Valdovinos and Castillo and to notify them in writing
that this has been done and that evidence of same will
not be used as a basis for future personnel actions against
them.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edl°
ORDER
The Respondent, J. J. Cassone Bakery, Inc., Port
Chester, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening to close its plant if the Union were to
become the employees' bargaining representative.
10 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(b) Discharging employees because of their union
membership, activities, or support.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Jose Valdovinos and Gavino Castillo immedi-
ate and full reinstatement to their former job or, if those
jobs no longer exist, to a substantially equivalent posi-
tion, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make they
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way.
(c) Preserve and, on 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 nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its place of business in Portchester, New
York, copies of the attached notice marked "Appen-
dix."" Copies of the notice, on forms provided by the
Regional Director for Region 2, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places Where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
" If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
The Act gives employees the following rights.
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre,sentaive of
their choice
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To engage in activities together for the purposes
of collective bargaining or other mutual aid or pro-
tection
To refrain from the exercise of any or all such
activities.
WE WILL NOT threaten to close the plant if the Union
were to become the employees' bargaining representa-
tive.
WE WILL NOT discharge employees because of their
union membership, activities, or support.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer reinstatement to Jose Valdovinos and
Gavino Castillo and make them whole for any loss of
earnings they may have suffered because we discharged
these employees respectively on 5 and 15 April 1985.
J. J. CASSONE BAKERY, INC.