Omega Food Products, Inc.

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and recommendations concerning the alleged violations of Section 8 (b) (1) (A) and (2) of the Act based upon the entire record, including any additional evidence adduced at the reopened hearing, and that, following the service of such Supplemental Intermediate Report upon the parties, the provisions of Section 102.46 of the Board's Rules and Regulations shall be applicable. MEMBERS RoDGFRs and LEEDOM, dissenting : As we have indicated previously in this case, in our opinion, jurisdic- tional issues, or rights, under Sections 10(k) and 8(b) (4) (D) are not properly asserted here as defenses to allegations under Section 8(b) (1) (A) and 8(b) (2). Accordingly, we would not have issued the prior notice, nor would we now remand this proceeding for further hearing. We would, instead, proceed to consider the Section 8(b) (1) (A) and the Section 8(b) (2) allegations on their merits. Omega Food Products, Inc. and Napoleon Guerrero. Case No. 2O-CA-23'0. March 7, 1963 DECISION AND ORDER On November 23, 1962, Trial Examiner A. Norman Somers issued his Intermediate Report 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 Inter- mediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recom- mended that the complaint be dismissed as to such allegations. There- after, the Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. 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 Inter- mediate Report and the entire record in the case, including the excep- tions, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' 1 For the reasons stated in their dissenting opinion in Isis Plumbing & Heating Co, 138 NLRB 716, Members Rodgers and Leedom are convinced that the award of interest in this case exceeds the Board's remedial authority. While adhering to such view, for the pur- pose of this decision they are acceding to the majority Board policy of granting interest ,on moneys due. 141 NLRB No. 15. OMEGA FOOD PRODUCTS, INC. 161 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the modification noted below .2 2 The Appendix attached to the Intermediate Report is hereby modified by adding the following immediately below the signature in the notice: NOTE -We will notify the above-named employee, If presently serving In the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case was heard before Trial Examiner A. Norman Somers in San Francisco, California, on August 7 and 8, 1962, on complaint of the General Counsel 1 and the answer of Omega Food Products, Inc.,2 herein called Respondent. The issues were whether the discharge of Napoleon Guerrero, occurring on May 2, 1962, was moti- vated by Guerrero's union activity in violation of Section 8(a)(3), and whether Re- spondent, by other conduct , further invaded the employees ' protected rights in violation of Section 8(a)(1) of the Act. The parties waived oral argument, but the Gen- eral Counsel and Respondent have filed briefs which have been duly considered. On the entire record and my observation of the witnesses , I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, Omega Food Products, Inc., is a California corporation , situated in Oakland, where it is engaged in processing , preparing, and packaging food products. It purchases and receives in an amount exceeding $50,000 annually, goods and ma- terials from suppliers who receive them directly from out of the State; and it sells and delivers in excess of $50,000 worth of its products annually to a concern whose direct out-of-State shipments exceed $50,000 a year. It is accordingly found that Respondent is engaged in a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act, and to an extent meeting the Board's jurisdictional standards. II. THE LABOR ORGANIZATIONS NAMED IN THE SEQUENCE OF EVENTS International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No 853 (herein referred to as Local 853 or the Union); Cannery Workers' Union Local No. 750 of the same International (to be referred to as the Cannery Workers); and Local 6 of the International Longshoremen and Warehouse- men's Union (hereinafter referred to as Warehousemen's Local 6) are labor or- ganizations within the meaning of the Act III. THE UNFAIR LABOR PRACTICES A. The issues and the opposing contentions The conduct here imputed to Respondent consists of activity of Spyros Vrettos, its president. Ths business as it existed at its original location in San Francicso, and as it continued at Oakland, where the alleged violations occurred , embraces less than a handful of employees, whose contacts with Vrettos, despite the presence also of a foreman , were daily and constant . Vrettos, as is agreed, discharged Napoleon Guerrero on May 2, 1962. Six days preceding this, on April 26, Guerrero led an organizational movement of the employees into Local 853. Preceding the discharge, Vrettos engaged in certain conduct which General Counsel claims independently trenched upon the protected rights of the employees in violation of Section 8(a)( I) of the Act; and additionally evidences an antiunion motivation for the discharge of Guerrero. Disputing the above, Respondent contends that Vrettos' statements were per- missible expressions of preference , and even if out of line under Section 8(a) (1), 1 Issued by him July 6, 1962, on a charge filed by Napoleon Guerrero on May 24, 1962. 2 Named in the complaint as "Omega Foods , Inc.," but corrected at the hearing 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the entire complex of Vrettos' activity and his relation to his employees negatives any suggestion that he would resort to reprisal to effectuate his preference, and that the discharge of Guerrero was the result of misconduct, to which the Act accords no protection. B. The activity of President Vrettos in relation to the employees' efforts to organize 1. The initial organizing activity-at San Francisco 4 The first organizational activity of Respondent's employees occurred when it was located in San Francisco. In the fall of 1960, cards of affiliation with Warehouse- men's Local 6 were signed by the four employees who then comprised the force of regular, full-time employees, and were the unit in the Board election later held on petition filed by that union. Before that election Vrettos called each employee into his office and, in numerous conversations lasting about 15 minutes each, asked them if they had signed cards and why they had done so and, stressing that his was a "small business," asked them whether they would "vote" for him in the election. Despite the unanimity of the original designation, the election resulted in the defeat of Local 6. 2. The second organizational venture-at Oakland 5 a. The conduct Respondent moved to its present location in Oakland sometime in November 1961. On the morning of April 26, 1962, Guerrero called Representative Kenneth Hill of Local 853 in Oakland on the telephone and then visited its headquarters. He brought along in his car the two other employees, who with him comprised the regular full- time force, namely, George Paisopolous, who had participated in the earlier organ- izational venture in San Francisco (supra, footnote 3), and Herman Del Cerro, hired after Respondent moved its plant to Oakland .6 3 The findings are based on the testimony of Guerrero, the Charging Party, and of George Paisopolous, who is still in Respondent's employ. With a single exception to be specifically treated, all incidents as recited by them were undenied, the pattern of Vrettos' testimony being first, a disclaimer of any recollection, and then in response to specific inquiries concerning details, an acknowledgement that he "probably" did or said the things imputed to him. 4 This activity, in view of a vintage going back further than 6 months before the filing of the charge, which occurred on May 24, 1962, is under the limitations proviso of Section 10(b), barred from cognizance as an independent violation of the Act. The evidence was received solely in aid of appraisal of the conduct occurring wit'lin the 6-month limitation period Local Lodge No 1424, International Association of Machinists, AFL-CIO; et al. (Bryan Manufacturing Co) v. N L R.B , 362 U S. 411, 415-416 5 The General Counsel imputes to Vrettos additional antiunion conduct during an inter- mediate period in 1961, while still at San Francisco Relying on testimony to that effect given by Guerrero, he claims that Vrettos exacted from two applicants, successively hired in part on Guerrero's recommendation, a promise that they would not join a union The applicants were Guerrero's brother Manuel, hired the summer of 1961, and Edward Hernandez, hired the fall of that year, after Manuel quit. Manuel was not produced at the hearing. Hernandez (whom later Respondent discharged at a time preceding the organizational movement of 1962 and recalled to work in June 1962, after Guerrero's discharge but on different work from Guerrero's) denied that Vrettos had exacted any such promise from him. On such a controversial matter, I would not deem the General Counsel's affirmative burden met by the uncorroborated, and in one instance specifically disputed, testimony of the highly interested Guerrero. The testimony on this issue has a side aspect, however, bearing somewhat on another phase of this case. For its relevance concerning Vrettos' opinion of Guerrero as an em- ployee, it is noted that he admitted that Guerrero's recommendation was a factor in the hiring of these men and did not deny Guerrero's testimony that he had brought Hernandez to the plant in response to Vrettos' specific request to find him a replacement for Manuel 6 The only other employee was Frank Rodopolus, who figures in a different context. He is a college student working Saturdays and Sundays, and, as he put it, also "some- times . . when I have nothing to do." He was not included in the unit in the 1960 election. We are advised by Respondent's co-counsel, Douglas Hickling, that his inclu- sion in the 1962 election was left unresolved in view of Local 853's withdrawal of the petition after the discharge of Guerrero. OMEGA FOOD PRODUCTS, INC. 163 When Guerrero and Del Cerro first entered the headquarters, Paisopolous, re- luctant to join them, stayed on in Guerrero's car, but they soon came back and spe- cifically requested he come in with them, which he did. There they were offered cards by Representative Hill, Guerrero and Del Cerro signed, but Paisopolous, who on the stand had narrated his several experiences with Vrettos during the earlier organizational occurrence at San Francisco (supra, footnote 3), refused to sign on the ground of anticipated pressures.? Hill then gave him a card and a self-addressed envelope for use if he should decide to sign. Paisopolous in fact did so 2 days later, giving his card to Guerrero, who brought it in personally to Representative Hill. In the session on the morning of April 26, Representative Hill, in response to Guerrero's request for "protection" lest "something happen," assured his visitors of fast action. That day, about 1 o'clock, he visited Vrettos at the plant, telling him he "represented [his] employees." Vrettos asked whether the men had signed cards, and Hill replied that he "couldn't reveal the names," but that he had filed an election petition with the Board, which action he in fact took the following morning. Vrettos said that since Hill had filed a petition, it appeared to him he had "no further choice." Hill explained, "You have a choice. We can have an election or you can sign a con- tract now." Vrettos replied that Local 853's wage scale "would put him out of busi- nesss," and pulling out a card from the Cannery Workers, asked "if he couldn't get the boys in the Cannery local," because it had a "much lower" pay scale. Hill ex- plained that "it wasn't his (Vrettos') choice," and the latter replied that "if the em- ployees have a choice, I should have a choice." After Representative Hill left, Vrettos spent a rather busy day. At the end of the shift, he asked the three employees whether they had signed up with Local 853; and Guerrero, acting as "the spokesman for the entire group," denied that he or his com- panions had done S0.8 On the same afternoon, Vrettos called the Cannery Work- ers and asked Frank Romero, its business agent, to come over, which Romero said he would do the following morning. He also called Douglas Hickling (supra, foot- note 6), a staff member of the labor advisory service of the Distributors Association, an organization which Respondent joined when the employees had affiliated with Warehousemen's Local 6. Hickling testified he had already put in a full day's work, but at Vrettos' urgent importunities to come over, he did so, and conferred with Vrettos from 6:30 to 11 that evening. As Hickling described it, Vrettos showed him the proposed contract, and asked whether he had to sign. Hickling said he would have to deal with that union if it had a majority, but assured Vrettos it was a "fairly good union to do business with." Vrettos complained, however, that under the wage scale of Local 823, "he would be out of business," and said he felt there should be an election. Hickling agreed, saying he "though that the Union would also want [one]," especially since Vrettos had not been shown the cards and the employees had denied to him they had signed. Arrangements for the election were made on May 1. Interveningly, Romero of the Cannery Workers, pursuant to Vrettos' call on April 26, visited the plant the morning of April 27. The occurrence during that visit and other activity by Vrettos thereafter are cited by the General Counsel as separate unfair labor practices and as evidentiary items bearing on the alleged motive for Guerrero's discharge on May 2. Vrettos' possession of a card of the Cannery Workers at the time be spoke to Hill of Local 823 stemmed from an earlier contact, on which Respondent relies in exon- eration for the occurrences on April 27. Cannery Workers had represented the em- ployees of the Estes-Romley Company, the previous owner and occupant of the plant in Oakland. That company and Vrettos signed a contract for the sale of the building to him personally, after which there was a 6 months' interval before Respondent moved in, which, as stated, was sometime in November 1961. During that interval, Romero visited Vrettos, told him of the contractual relation between his union and the Estes-Romley Company, and said he would like to have Respondent "under con- tract" also. After Respondent moved into Oakland, and about 3 months before April 26, Romero visited Vrettos a second time. Vrettos told him that when he 7 He testified, "I told [Hill] I didn't want to sign the card because I know we have a lot of trouble about union." 8 The quoted description of Guerrero as the "spokesman" was given by Constance Serrano, Vrettos' secretary, and by Vrettos. She and Vrettos testified that Guerrero's answer was an outright denial of having signed , while Guerrero testified he avoided reply- ing by saying he had to go home. The difference hardly matters, but the reply attributed to Guerrero by Vrettos and his secretary is more in keeping with the apprehensions of the employees as expressed to Representative Hill. 708-006-64-vol. 141-12 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "got on his feet, he would call [him]." That was Romero's last contact with Vrettos before the latter called him on April 26. On Romero's arrival at the plant about 9 o'clock the following morning, Vrettos told him, as Romero testified, that "he would like to have [him] go out and talk to the boys and see if they wanted to join [his] union." Romero did so in Vrettos' office. First to be seen was Guerrero. He entered after being told by George Rom- ley, a former coowner of Estes-Romley, whom Vrettos hired for the purpose of helping Respondent accommodate itself to the new location, that there was someone there who wanted to talk to him .9 Romley introduced Guerrero to Romero. When the latter began to espouse his union, Guerrero cut him off, saying he wanted Pai- sopolous and Del Cerro there too, and he called them in. Romero then again spoke up for his union. Guerrero asked what its wage scale was. Told it was $2.10 an hour, Guerrero observed that he was already making $2.25. Romero replied they could get raises in the future and offered the men cards for signature. Guerrero then stated, "I don't think the other two boys [will] change, because I sign and they sign for the Teamsters Warehouse, Local 853 . . . . If you want to do something, you talk to my union." While the above was taking place, Vrettos was in the warehouse outside the office. After the group dispersed, Vrettos, through John Castro, his foreman, summoned them to coffee break about 10 minutes before the regular time. They found Vrettos waiting for them in the company of Romero The latter told Vrettos the men wanted the "other" union, whereupon Vrettos espoused the Cannery Workers as a "food union," which would send him someone who knows about food, in contrast with Local 853, which being a "warehouse union," would not do so. The session ended with Romero. as the latter testified, "back[ing] out," since he did not in any event relish being vulnerable on the score of raiding a sister local.10 After this, Vrettos had separate conversations with Paisopolous and Guerrero. On April 28, he asked Paisopolous why he had gotten into the Union. Paisopolous having in fact signed on that day did not dispute the factual premise of the question, and told Vrettos he had himself to blame, because he had not paid the men over- time, to which Vrettos replied it would have been "against the law" to have done so.11 Vrettos' conversation with Guerrero occurred about a day or two before the latter's discharge. About 9.30, Vrettos called him into the warehouse from the production room. Remarking on their friendly social relations, their visits to each other's homes, and his fondness for Guerrero and his family, Vrettos asked, as Guerrero in his own idiom quoted him, "Why you try to hurt me and why you try to kill me by bringing in the union in my factory?" And then, according to Guerrero: I told Mr. Vrettos, "I have to look for something in my life, in my work. You have to pay me good, Mr. Vrettos." I told him. "I buy business or maybe I buy house," and Mr. Vrettos say, "You want good business I give you my truck, because I buy big truck already and I give you credit and you can take mayonnaise from the place and take flour and people and anything you want," and I told him, "I can't do that because I don't know about this business. I have to go in the restaurant before I start a business and I have to bring samples if I have customers. It is all right to go into business, but I have to learn to read English and I have to write English, because I have to know something good about business." And he say, "No, you don't need that." 9 There is no suggestion of a "successor" relation between Estes-Romley Company and Respondent. Respondent moved in with its own equipment and working force from San Francisco. Guerrero identified Romley as a man known as "Georgie," a former owner of the plant, and a "friend" of Vrettos frequently seen on the premises. Vrettos testified the employment of Romley lasted a number of months, which it is inferred included the time when the above occurred 101n accordance with the previously described pattern (supra, footnote 3), Vrettos testified to a total inability to remember that session as other than a regular coffee break dedicated to drinking coffee and unsullied, so far as he could recall, by any talk about "business." After prolonged parrying of questions on specifics, he acknowledged that all of the facts recited in the text "probably" occurred, but he never quite made it into the unbeclouded terrain of actual recollection. 11 The matter of what Respondent's actual policy was in respect to overtime, to which some testimony was devoted at the hearing, is not germane here and is not passed upon Paisopolous' account of the conversation on which the finding in the text is based, was not denied by Vrettos, his testimony being that he did not "recall" whether he had the conversation OMEGA FOOD PRODUCTS, INC. 165 And I say, "I don't like this kind of business," and I told him , "I have to look out for myself, Mr. Vrettos," and he say, "That is true; you look for your- self." He was real excited, you know. "You look for yourself and I will look out for myself." Guerrero added that when Vrettos made this last statement, his face was "very very red" and he pointed his finger at him. Here, as in the instances previously cited, Vrettos did not specifically deny he had a conversation dealing with the subject related by Guerrero. Asked whether he had this conversation, Vrettos, somewhat obliquely, confirmed the occurrence of a talk of that nature by stating that Guerrero was not the first employee he had offered to put up in business. However, we do have here a denial by Vrettos of one specific aspect of the conversation, namely, the part in which he is quoted as having asked Guerrero why he was trying to "hurt" him and to "kill" him. As thus limited to precise phraseology, the denial takes on the attributes of a negative preg- nant. However, Vrettos' singling out of that seemingly minor item for specific denial, in contrast with his asserted lack of recollection of all other conduct of predischarge vintage attributed to him, achieves clarity in relation to an issue involved in the discharge: the event occurred after Guerrero, in response to Vrettos' threat to "punch [him] in the nose" for something he said to Frank Rodopolous, a matter to be dis- cussed in later detail, said he would "kill" Vrettos, then qualified this by saying he would "kill" him through the Union, thereby, as he testified, indicating he had meant it only in the economic sense in which Vrettos had introduced that term to him in the conversation now under consideration. The bearing that Vrettos' own prior use of that expression to Guerrero would have on the discharge issue is not before us yet. We are concerned only with whether Vrettos spoke to Guerrero in the manner attributed to him. On this point, we must consider Vrettos' prior discussions of unionism in terms of injury to his business. This was his theme during the first organizational venture of the employees, at San Francisco, and also in his successive talks with Representative Hill of Local 823, and to Hickling of the Distributors Association. His introducing the discussion with Guerrero by a reference to their friendly social relations would have little meaning except as the counterpoint to complaint about conduct inconsistent with such friend- ship. As to whether he used the term "kill," his apprehension concerning the effects of the wage scale of Local 823 upon his business, as he had voiced them to Repre- sentative Hill and Labor Relations Advisor Hickling , were more in line with the thought embraced by that term than the expression "hurt." On the likelihood of his use of such a sanguinary term, we are afforded some guidance by his explanation of his use of the expression "punch in the nose ." He testified that it was but a figure of speech, which he addresses even to his secretary, as she smilingly confirmed. The term "kill" in reference to activity deemed by him to be a serious threat to his business would thus seem to be in line with his own acknowledged mode of expression. Guerrero's recital of the conversation is credited. b. Legal appraisal of the conduct as interference in violation of Section 8(a) (1) We pause at this time to take count of the legal effect of Respondent 's conduct occurring during the 6 months' limitation period, namely, the one attending the em- ployees' second organizational venture . The test of a violation Section 8 (a)(1) is not the actual subjective effect upon the employees but the normal tendency of such conduct to impede them in the exercise of their free choice. On such an appraisal, each item is considered in the setting of the conduct as a whole . Viewed in that light, Vrettos' interrogation of the employees on April 26 as to whether they had signed up with Local 823 , his giving the business agent of the Cannery Workers the next morning the run of Respondent 's premises to solicit a transfer of their affiliation, followed by his doing so himself in part on employees ' working time in the presence of that agent, his interrogation of Paisopolous on April 28 as to -why he signed up with Local 823, and his complaint to Guerrero that his support of Local 823 was an act imperiling Respondent's business in derogation of their friendly relations, separately and in combination, infringed upon the free exercise of the employees' rights as guaranteed by Section 7 of the Act. An item meriting special treatment is Vrettos' initial interrogation of the employees on April 26, because of a surface similarity to Blue Flash Express, Inc., 109 NLRB 591, in that before then the Union had made a request for recognition. But the justification for the interrogation in Blue Flash derived from the fact that there the union demanded recognition on the basis of a claimed majority designation, with- out offering the employer the alternative of an election , and the employer questioned 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees to obtain the information needed to determine whether, in the circum- stances, he had to accede to the demand, or could insist on an election. Here, on the other hand, Representative Hill went out of his way to disabuse Vrettos of the notion that he had no "choice," and explicity offered him the choice of an election. Additionally, the interrogation here was conducted without the safeguards which, under the doctrine of Blue Flash, is a condition of immunity even where a valid occasion exists for making the inquiry. The Board there noted (p. 592) that the interrogating official of the employer at the time he questioned the employees, "gave them assurances that Respondent would not resort to economic reprisals and advised them that he wished to know whether they had signed union authorization cards in order to enable him to reply to the Union's request for collective bargaining." [Emphasis supplied.] 12 Vrettos did neither, and his actions the next day were hardly calculated to imbue the employees with any belief that he was seeking information to determine whether he was obligated to bargain with Local 853, rather than to destroy all factual foundation for any such obligation. On the evening of the 26th, as Adviser Hickling testified, the choice was definitely made that Respondent would avail itself of the alternative of an election. Never- theless, Vrettos called in Business Agent Romero of the Cannery Workers and specifically invited him to solicit the employees to abandon Local 823 in favor of the Cannery Workers, donating the use of his premises and the employees' working time for that purpose, and that being unavailing, called the employees together during the 10 minutes working period preceding the coffee break to openly solicit the switch in the presence of the Cannery Workers' agent. On that score, I must confess to an ability to follow the reliance placed by learned counsel on Vrettos' asserted "commitment" to Agent Romero to get in touch with him when he "got on his feet." Such a commitment in respect to rights reserved under the Act to the employees was not his to make in the first place, much less so when the employees had already taken the steps they did. Nor would I think that the normally coercive tendency of Re- spondent's conduct, taken as a whole, was here neutralized by general statements by Vrettos at times unspecified in the record and so far as appears from the undenied versions of the specific overtures here considered, not made when they occurred (see Orkin case, supra, footnote 12), that it was up to the employees to make their own choice. On the judicially recognized premise that "action and conduct on some occasions speak leader than words," 13 the employees would be less than impressed with such an assurance where the employer lends the force of his prestige to his own openly declared preference for another union by donating to the latter the use of his office and the employees' working time to solicit an abandonment of their original choice, devoting a portion of the employees' working time in himself soliciting such a change in the presence of the agent of the Union sponsored by him, remon- strating with an employee as to why he signed with the Union to which he has openly declared his hostility, and characterizing another employee's leadership on behalf of that union as action inimical to their friendship because calculated to destroy his business. Relevant to all of this is the background of the employer's action during the employees' first organizational venture in San Francisco, demonstrating his hostility to the employees' organizing on any basis. This would reasonably cause them to view his actions during their second organizational effort as calculated to impede them in the free exercise of their own preferences in regard to union affiliation. I have left for separate consideration the question of the legal effect of Vrettos' offer to Guerrero to help put him up in a business of his own. On that point, I would not doubt Vrettos' word that he had offered to do so with other employees in the past. But in appraising the legal significance of the offer here, one cannot divorce it from its timing and the specific context in which it was made. It came in the wake of Guerrero's response, in answer to Vrettos as to why, in view of their friendly relations, he was trying to "kill" him in his business by bringing in the Union. The fair sense of Guerrero's response is that he wanted to better himself by having Respondent "pay him good," stating by way of example, that some day he might wish to "buy [a] business" or "buy [a] house." Vrettos seized upon the first of these illustrations to propose an alternative mode of achieving economic betterment, in which he would 12 The requirement that the interrogation be "explained to the employees on that basis" has recently been reemphasized by the Board as an essential element of immunity under Blue Flash. S. H. Kress & Co, 137 NLRB 1244. And in Orkin Exterminating Company of South Florida, Inc., 136 NLRB 399, the Board stressed that the assurance against re- prisal must be made at the time of the interrogation 13 N L R B. v The M. H. Ritzwoller Co., 114 F. 2d 432, 436 (CA. 7) ; St. Louis Inde- pendent Packing Co. v. NL.R.B, 291 F. 2d 700, 705 (C.A. 7). OMEGA FOOD PRODUCTS, INC. 167 back Guerrero financially. Such a proposal may well have accorded with Vrettos' naturally generous impulses, but its specific timing to induce Guerrero to forgo a quest for higher wages through representation by the Union was a form of "allure- ment" which, under established doctrine is "no less interference . than [outright] coercion." N.L.R.B. v West Coast Casket Company, Inc., 205 F. 2d 902, 905 (C.A. 9). Accord: N.L.R.B. v. Western Cartridge Company, 134 F. 2d 240, 244 (C.A. 7); N.L.R.B. v. Crown Can Company, 138 F. 2d 263, 267 (C.A. 8). The action is particularly vulnerable when taken in the specific context of a pending employee election. N.L.R.B. v. Bailey Company, 180 F. 2d 278 (C.A. 6); N.L.R.B. v. Frieder & Sons Co., 115 F. 2d 266 (C.A. 3), enfg. 62 NLRB 880. A benefit or the promise thereof which is thus "timed and designed" N.L.R.B. v. West Coast Casket Company, Inc., supra, at p. 905) to bring about a disaffection from the Union is an invasion of the employees' freedom of choice in violation of Section 8(a)( I). That Vrettos' proposal to Guerrero was here made for the purpose of effectuating Guer- rero's abandonment of the Union would seem hardly open to question in the light of the totality of his conduct as previously described and the internal sense of the talk itself, capped as it finally was, with the note of acerbity with which he received Guerrero's rejection of his proposal, "You look for yourself and I will look out for myself." i4 C. The discharge of Guerrero 1. The facts The discharge of Guerrero on May 2, as earlier alluded to, was the culmination ,of an interchange between him and Vrettos, touched off by a remark he had made that day to Frank Rodopolous, the part-time employee (supra, footnote 6). This will be discussed in its proper context. At this time, we briefly review Guerrero's employment record and prior relationship with Vrettos, part of which appears tangen- tially from earlier discussion. Guerrero had been employed for 21/2 years by Respondent as a truckdriver, the highest paid, so far as appears, of the rank-and-file positions. Every indication is that Vrettos had a genuine regard for him as an employee, a matter tangentially ap- pearing in the earlier noted fact (supra, footnote 5) that two employees had been successively hired in part on the basis of Guerrero's recommendation, the second after Vrettos' specific request to Guerrero to find him a suitable person. As appears also in the conversation treated in the previous section, Vrettos and Guerrero enjoyed friendly social relations: they visited at each other's homes, and, as Vrettos told Guerrero and testified at the hearing, he was fond of Guerrero and his family. Much of this relationship can be ascribed also to Vrettos' natural exuberance and emotional generosity. A measure of that, as well as of his enduring regard for Guerrero even after discharging him, appears in the fact that a week after the discharge, Vrettos, on encountering Guerrero at the plant, invited him to join him and the employees in a drinking and song fest, and, having by then replaced Guerrero as a trucker, proposed to reemploy him at a slightly lower paying position (but which he did not carry out after Guerrero refused to admit that he had made the threat to "kill" Vrettos, on which the latter justified the discharge); and shortly after this, he got Guerrero a job with another company, himself paying the first 3 days' wages at it, and transporting Guerrero to the new place of work. Vrettos' lusty personality found its outlet in stormy utterances, such as, by his own admissions, threats to "punch in the nose," and he would appear to have had a tolerance and understanding of temperament exhibited by others. Thus, he had been seemingly unconcerned with Guerrero's argumentative tendencies including, on occasions, tilts with Foreman Castro. In differences with the latter, Vrettos, as he indeed testified, had always sided with Guerrero, so much so that Castro ruefully remarked that Vrettos was "baby[ing]" him. Respondent now cites these traits of Guerrero as contributory reasons for the discharge on May 2 apart from that day's quarrel, and, on that score, relies heavily on the fact that on April 24, before indeed union organization began, Vrettos had handed Guerrero a discharge check but had reconsidered his action. I am satisfied that Guerrero's prior employment history "The conduct would be violative of Section 8(a) (1) even under the recent decision of the Fifth Circuit in N.L R B v. Exchange Parts Company , 304 F. 2d 806 . The court there draws a distinction between an accomplished grant of a benefit, which it deems not to be a violation , and a promise of one, such as here , which it agrees would be a violation The distinction is in any event contrary to Board doctrine , and in the light of its conflict with the views of the other circuit courts, the Board has taken the issue up to the Supreme Court N.L R B. v. Exchange Parts Company, 373 U S 931 cert. granted May 27, 1963. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD played no role in the discharge which occurred on May 2. Vrettos' action on April 24 was his way of dramatizing to Guerrero that he could not always count on Vrettos taking his side. Guerrero had then come to Vrettos complaining about Castro's up- braiding him for delays which Guerrero felt were not his fault because caused by traffic conditions, and when Guerrero persisted in his protest after Vrettos said that this time he would uphold Castro, he called Guerrero's hand by having a check made out for his pay, but withdrew it when Guerrero refused to pick it up. So far as appears, that ended the matter. The incident was part of the give and take of a resilient relationship, colored by moods whose outlets ran from effusive sentimentality to boisterous exchanges, and back for a while to serenity, or as much of that neutral state as their ebullient dispositions could abide. The specific background to the May 2 incident is this: It was a standing bit of byplay, among the employees, including Foreman Castro, to tease each other, on the basis of either their Greek or Latin extraction, with the expression that the "president (prime minister) of Greece is waiting for you" or that "Castro [of Cuba] is looking for you," and in some instances, "Khrushchev." It was a mock announcement, the raffish humor being enjoyed by speaker and person addressed alike, that the latter was facing deportation. On May 2, Paisopolous had received a call from the Greek consulate. This made it the Latin Guerrero's inning for twitting employees of Greek extraction. As it hap- pened, though May 2 then fell in midweek, Rodopolous, who normally worked only on weekends (supra, footnote 6) was able that day to put in some time at work When Rodopolous entered in his work clothes, Guerrero addressed "the President of Greece" tidbit to him. It proved to be his undoing. What would have been and always was taken as a joke by George Paisopolous,15 backfired when addressed to Frank Rodopolous. Frank testified that he took this as a seriously intended threat to report him to the immigration authorities. He left the working premises and complained to Vrettos, who then began the discourse with Guerrero culminating in the discharge.16 Vrettos angrily accused Guerrero of "scare[ing] Frank." Guerrero denied it, saying he had been "joking." Vrettos repeated his accusation and Guerrero repeated his denials. The interchange progressed in mounting crescendo for about 15 to 20 minutes, and culminated in Vrettos' threatening to "punch [Guerrero] in the nose," and Guerrero countering with the threat to "kill" him, which on Vrettos' asking, "You want to kill me9" Guerrero qualified with the statement he would "kill" him "with the Union," by making him pay higher wages. Vrettos asked his secretary to call the police, Representative Hill of Local 853, and his attorney. She ignored the first instruction, unsuccessfully tried to reach Representative Hill, and contacted Hickling of the Distributors Association, whom Vrettos went over to see immediately. Hickling testified that Vrettos asked what he should do and that he replied he could do nothing since in the face of his avowed disfavor of the Union, to discharge Guerrero while an election was pending, would look "suspicious." Vrettos asked how Guerrero could "get away" with a threat to "kill" him Hickling finally asked Vrettos whether he wanted to discharge Guerrero because he supported the Union or because of what he said to him and Frank. Saying, "How can you ask me this question?" Vrettos replied it was for what Guerrero had said to him and Frank, whereupon, as Hickling testified, this being "the sort of a question that I could see all sorts of problems with," he conferred with his superior, and then gave Vrettos the green light to make the discharge. Vrettos did so immediately on his return to the plant. Part of the sequel, Vrettos' inviting Guerrero a week later to drink with him and making him the abortive offer of a lower paying job, and his later procuring a job for him at another establishment, has already been alluded to. Preceding this were two conferences with Hill of Local 853. the first a day after the discharge, each being devoted to the question of a proposed contract and also of restoring Guerrero 15 Paisopolous testified And some time he told me. "Georgie, you going to Greece and you will have a nice time over there." And sometimes I told him, "Why don't you go to the old country " But I am only kidding le Versions of the talks were given by Guerrero and Vrettos, supplemented, to the extent witnessed by them. by employees Paisopolous and Rodopolous Foreman Castro and Serrano In essence, they supplement rather than contradict each other in any vital re- spect The findings in the text are the Trial Examiner's view of the fair reconstruction of the occurrence from a composite of the various versions given after a careful appraisal of all Such portions as conflict with the findings have been rejected as wanting in persuasive weight on the basis of the requisite criteria of consistency with the probabilities, inner consistency, and the quality of its rendition as observed by the Trial Examiner OMEGA FOOD PRODUCTS, INC. 169 to his job. According to Hill's undenied testimony, there seemed to be no problem concerning the latter item, and Vrettos, while protesting that he was "afraid" of Guerrero, said, "If that is what you want, I will put the boy back." At the hearing, the robust and forceful Vrettos, somewhat abashed at the in- congruous picture presented by his protestation to Hill of being "afraid" of the puny Guerrero, in the light of his social relations with him for 21/2 years and his fear-free conduct toward him after the discharge, avowed he was not afraid of him "face to face." The details of the drinkfest after the discharge lend some flavor to the nature of their lingering relationship and Vrettos' true feelings toward Guerrero. Guerrero had come to the plant to give his buddy Paisopolous a lift home, and there he encountered Vrettos. The latter was then at his expansive best. Just before this, according to Paisopolous' undenied testimony, as he was about to check out, Vrettos told him. "I won the case . . . The union does not come here, because I am a small business." On seeing Guerrero, he invited him to join him and the employees in a drink. He sent for some whisky, took out a tape recorder, and asked each in the group, including Guerrero, to sing. They being diffident, he performed vocally on his own. As the party was dispersing, Vrettos told Guerrero he had been a "good driver" but he had now hired another "good driver" in his place, and offered to take him back at a job inside the plant, paying a lower rate. But he wanted Guerrero to confirm that he had threatened to "kill" him. Guerrero refused. When he persisted in his refusal, Vrettos said, "Now tell me the truth, or I will punch you in the nose." Guerrero's reply this time was, "Well, if you got me against the wall with a knife, I have to say, Yes."' This conversation, hardly distinguishable in its language from that of May 2, except for Guerrero's now taking the "punch in the nose" threat from Vrettos in stride, was described by Vrettos as a "natural" and "friendly" interchange.17 Though nothing would seem to have come of the offer, the "natural" and "friendly" relation remained unimpaired. Indeed, the occasion for Vrettos' obtaining a job for Guerrero elsewhere was the latter's coming to him a week later for a letter of ref- erence. Vrettos' final comment to Guerrero as he brought him to the new place was that the Union had not found a job for him but that he had. 2. Appraisal As one reviews the sequence on May 2 touched off by Guerrero's remark to Rodopolous, one is rather struck by their incongruity from the start with normal expectation in the light of prior relations and the specific background of the remark itself. Vrettos admitted that "many times" before and even since the discharge, "all of the boys together," including Rodopolous, would "joke about Khrushchev and Castro and the President of Greece." One would thus have expected him to greet Rodopolous' complaint with surprise, or at once to act to allay his apprehensions by familiarizing him with the background of the remark as the standing joke among the men, which he knew it to be.18 One would have thought he would at least in any event have sought Guerrero's version before angrily accusing him of having "scare[d] Frank"; and Guerro having denied the accusation with what would have been natural for Vrettos to have assumed from the start-an insistence that he had been joking, Vrettos would have expectably contented himself with a reproof, pointing out that Rodopolous did not share his associates' enjoyment of that humor. Vrettos' persistence in his accusation after this to the point of a threat to "punch [Guerrero] in the nose" is what one would hardly have expected against the kind of background here presented, and this brings us to the crucial issue of the threat to "kill" Vrettos evoked from Guerrero in response thereto. The utterance alone by an employee to an employer of a "threat" to "kill" him, is no light matter. Yet Vrettos' own question to Guerrero immediately afterward furnished the occasion for Guerrero's explaining the expression in the economic sense in which Vrettos had himself used it to him a day or two before, when he complained to Guerrero of having brought the Union into the plant, and of Vrettos' understanding it as a figure of speech in parity with what he claimed for his "punch you in the nose" threat. One can thus hardly escape the conviction that Vrettos would 17 He claimed not to recollect the details as testified by Guerrero and Paisopolous (on which the above is based) except that: Probably I told "Why you want to kill me" What happened to vou. Napoleon- Maybe I ask him about it, and maybe he say, "I never tried to kill You; I was joking." or something like that 18 Rodopolous may well have not been privy to this badinage, since he only works part time, is a college student, and, as Paisopolous described him, is "serious " 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD normally have passed this off in view of their prevailing friendship and a consan- guinity of temperament, which would induce a mutual tolerance between them of that kind of expression, at least after subsidence of the flareup. Vrettos' later actions leave little question that he nurtured neither fear of Guerrero nor resentment against him for the term used. The counterpoint in his repeated protestations in his conferences with Representative Hill that he was "afraid" of Guerrero with the statement of his willingness to "put the boy back" rather indicates that he was resorting to the protestation of being "afraid"-which he sheepishly qualified at the hearing-as a ritual suggested to him by the line of demarcation between a valid and invalid discharge as laid down in the final question put to him by Adviser Hickling when he consulted the latter immediately before the discharge. Vrettos' entire conduct from the time that Rodopolous complained to him of Guer- rero's remark is so out of line with what one would normally have expected from Vrettos in the light of his admitted knowledge of the jesting background of the remark to Rodopolous, his fondness for Guerrero, and the recognizable kinship of the two in temperament and mode of expression, that one must perforce look else- where for the explanation of the sequence ushered in by Vrettos' angry confrontation of Guerrero after Rodopolous' complaint. By way of clarification, I believe that Rodopolous' disturbance over Guerrero's remark was genuine, as I do that Vrettos' anger was when told about it The factor introduced by Rodopolous in explanation of his serious view of the remark is that he assumed that Guerrero thereby intended that "perhaps I will go with his side." Although Rodopolous admitted that Guerrero had at no time spoken to him about the Union and it would seem hardly likely that Guerrero then even expected Rodop- olous to take part in the election,19 the assumption on the part of Rodopolous, how- ever erroneous, achieves color of rationality from his possible unfamiliarity with the background of the "President of Greece" remark (supra, footnote 18). But the same can hardly be said for any like assumption on the part of Vrettos, who admittedly was familiar with its jocular connotation and, as he testified, even thought Rodopolous was. Iiis strange reaction to Rodopolous' complaint thus achieves rational comprehensibility as but a manifestation of an existing resentment, triggered off but not caused by Rodopolous' complaint. In determining its nature one cannot ignore as "a persuasive interpreter of [Vrettos'] equivocal conduct," his "manifest interest and purpose" 20 in opposition to the Union, revealed by the activities pre- viously described. The preponderant weight of this last as accounting for Vrettos' explosive reaction would seem manifest from his statements to Representative Hill and Adviser Hickling concerning the apprehended effects on his business if he had to deal with the Union, followed by his conduct patently calculated to prevent having to do so. Whether he would have to turned on the outcome of the election. That Vrettos regarded Guerrero as the key figure in the outcome inferentially appears from his and his secretary's description of Guerrero as the "spokesman" of the employees when Vrettos questioned them about their affiliation on April 26, and Guerrero's again acting as spokesman for them the next morning in Vrettos' office, when he was singled out for the interview held by Romero of the Cannery Workers with the employees at Vrettos' invitation, the substance of which, it is fairly to be inferred, was reported by Romero to Vrettos; and it rather directly appears from the last conversation between Vrettos and Guerrero before May 2, which Vrettos opened with the accusation that Guerrero was trying to "kill [him] by bringing in the union " His resentment of Guerrero for this last is reflected in the grim note on which he ended the conversation after Guerrero rejected the proposal to set him up in business in replacement of the Union as a means of bettering his economic lot. Though this last would seem to have marked the turning point in their relation- ship, I am not inclined to believe that Vrettos was then consciously plotting to get rid of Guerrero, nor would I conclude that his strange reaction to Rodopolous' com- plaint was out of a conscious desire then to lay the groundwork for Guerrero's dis- charge, so much as out of an unreasoning intolerance of Guerrero engendered by his worries over the election and Guerrero's key role in it. What does reasonably appear, however. 's that as soon as *'ie lad, goaded by Vrettos' threat of violence for a matter he had every reason to believe he was blameless and in any event hardly pro- 19 As previously stated ( supra, footnote 6), Rodopolons had not voted in 1960, and it is a fair inference that the matter of his current voting eligibility, referred to by Hickling, n•ao raised by the latter only in the preceding dav's conference 20 Texas & New Orleans Railroad Company v Railway Clerks , 281 U S. 576, 581. OMEGA FOOD PRODUCTS INC. 171 viding provocation for the threat made, blurted out his unfortunate expression, Vrettos shrewedly sensed he had hit upon the solution to his election worries. The above would seem manifest from the instant that he paused to ask Guerrero whether he meant what he had said. His show of nursing a literal interpretation of the expression, in the face of Guerrero's explaining it in the sense in which he had used it to the boy in the last previous talk between them, and in contradictory dis- regard of the figurative meaning which he claims for his own threat, was hardly persuasive to his secretary, who ignored his instructions to call the police, or to his advisor, who, from the latter's account of the interview with Vrettos immediately before the discharge, would seem to have been less than impressed with the gen- uineness of Vrettos' professed concern over the expression used. And Vrettos' protes- tations to Representative Hill of fear of the boy, whom he knew so well, when con- sidered with his simultaneously expressed willingness to take him back and his offer to Guerrero at the office festivities a week later, and indeed his own qualified repudia- tion of that sentiment at the hearing, have the telltale marks of the guidance of Thespis. Motivation is a subjective matter and the assertions of a person concerning them are of necessity tested by what objectively appears from a person's entire conduct. But the probability of a forbidden motive which arises from the objective evidence can still be overcome by testimony to the contrary, which in its general character and manner induces belief. Regrettably, it cannot be said that Vrettos' testimony as a whole was calculated to invest it with a special quality overcoming the probabilities. The reverse is the fact. As appears from previous recitals of his testimony concern- ing his other actions, there was hardly an aspect of them which he met by other than denials of recollection, followed by grudging acknowledgements that "probably" he did engage in the conduct imputed to him, but never owning up to a positive recol- lection. This exposed him, alternatively, to the inference that he was less than candid in his assertions concerning the limits of his recollection, or, on his own confession, that he had too "fugitive [a] recollection" 21 concerning controversial matters to be relied upon. Nor did he enhance his credibility by his assertions that Guerrero's prior employment record contributed to the discharge in the face of the objective evidence preponderantly to the contrary, and indeed his own omission of any reference thereto during his consultation with Adviser Hickling immediately before the discharge, and in his conferences with Representative Hill immediately thereafter. As a final observation, in inquiries concerned with an alleged violation of Section 8(a)(3), "we do not have an either-or issue, where union activity must be the sole cause of the discharge to the exclusion of any other. It is enough if union activity was a contributing factor ... 11 22 in the sense that the discharge would not have occurred but for the resentment of the dischargee's union activity. On the basis of the facts as a whole, it is difficult to see Vrettos' action against Guerrero as other than inspired, at least in substantial contributing part, by his "manifest interest and purpose" in bringing about a result which would obviate his having to deal with the Union. Such overriding considerations of policy as might have been presented by the nature of the very expression used by Guerrero to his employer were elim- inated by Vrettos himself in his own expressed willingness to Representative Hill to take Guerrero back and by his offer to Guerrero a week later in the flush of his elation over the dissipation of the prospect of his having to deal with the Union On the basis of all of the foregoing, it is concluded that Vrettos would not have taken the action he did against Guerrero but for his resentment of the boy's leader- ship in the Union and the utility of such action in achieving what he in fact accom- plished-the deprivation of the Union' s main support and the consequent avoidance of the obligation to deal with it By discharging Guerrero in the circumstances here reviewed, Respondent discriminated in respect to his hire and tenure for the purpose of discouraging membership in or activity in support of the Union, thereby violating Section 8(a)(3) of the Act, and restraining and coercing its employees in violation of Section 8 (a) (1) of the Act. IV. THE REMEDY The usual cease and desist requirement will issue (here of a broad character, since a discharge for union activity goes to the "very heart of the Act." N.L.R.B. v. n Art Metals Construction Company v. N.L R B., 110 F. 2d 148 (C A. 2). 22 Sheidow Bronze Corporation, 135 NLRB 621. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4) ), as well as the conventional remedial requirement in effectuation of the policies of the Act, of an offer to Guerrero of immediate and full reinstatement to his former or substantially equiv- alent position, without prejudice to seniority and other rights and privileges (The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827, 829), and reimbursement for his pay losses under the make-whole formula of F. W. Woolworth Company, 90 NLRB 289, with interest under the principle of Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings, and upon the entire record, I hereby state the following: CONCLUSIONS OF LAW 1. By discharging Napoleon Guerrero because of his activity in support of the Union, Respondent discriminated in respect to his hire and tenure with a purpose of discouraging membership in and support of a labor organization, thereby engaging in an unfair labor practice within the meaning of Section 8(a) (3) of the Act. 2. Thereby and by interfering with, restraining, and coercing employees in the exercise of their rights under Section 7 in the other respects herein specifically found, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a) (1) of the Act. 3. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent did not question applicants for employment concerning their membership in any labor organization or promise or offer them employment on the basis of whether they joined or did not join a labor organization. RECOMMENDED ORDER Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby recommends that the Respondent, Omega Food Products, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Discharging or otherwise discriminating against any employee because of his membership, affiliation, or activity in support of International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local No. 853, or any other labor organization. (b) Supporting or assisting Cannery Workers' Union Local No. 750, or any other labor organization by inviting it or granting it the use of its premises to solicit em- ployees to join that labor organization or to change their union affiliation. (c) Soliciting employees in respect to their choice of labor organization or ques- tioning them concerning whether or why they have joined a labor organization, with a purpose of forcing or in a manner calculated to force them to abandon or change their choice or designation of labor organization, or to otherwise interfere with or restrain them in the exercise of their free choice (d) Promising or offering employees financial or other benefits as inducements to join, assist, or support, or not to join, assist, or support any labor organization. (e) In any other manner interfering with, restraining, or coercing any employees in the exercise of the right to self-organization, to join, assist, or support International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Lo- cal No. 853, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities (except to the extent that such right should become affected by any agreement, if lawfully made under Section 8(a)(3) of the Act with a labor organization designated by a majority of the employees, containing a clause making membership in such labor organization a condition of retention of employment) 2. Take the following affirmative action which it is found will effectuate the policies of the Act- (a) Offer Napoleon Guerrero immediate and full reinstatement to his former or 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 as a result of his discharge, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, time- OMEGA FOOD PRODUCTS, INC. 173 cards, personnel records and reports, and all other data helpful in reviewing compli- ance with the preceding subsection. (c) Post at its plant in Oakland, California, copies of the attached notice marked "Appendix." 23 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twentieth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith.24 It is further recommended that the complaint be dismissed insofar as it alleges that Respondent questioned applicants concerning their membership in a labor organi- zation or promised them employment on the basis of whether they would or would not join a labor organization, and also insofar as it alleges any unfair labor prac- tice, other than as herein specifically found. sa In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order " shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board ' s Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " 24 In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for the Twentieth Region, in writ- ing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discharge or otherwise discriminate against any employee be- cause of membership in or activity in support of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 853, or any other labor organization. WE WILL NOT support or assist Cannery Workers' Union Local No. 750, or any other labor organization by inviting it or granting it the use of our premises to solicit employees to join that labor organization or to change their union affiliation. WE WILL NOT solicit employees in respect to their choice of labor organiza- tion or question them concerning whether or why they have joined a labor or- ganization, with a purpose of forcing or in a manner calculated to force them to abandon or change their choice or designation of labor organization, or to otherwise interfere with or restrain them in the exercise of their free choice. WE WILL NOT promise or offer employees financial or other benefits as induce- ments to join, assist , or support, or not to join, assist, or support, any labor organization. WE WILL NOT in any other manner interfere with , restrain , or coerce any em- ployees in the exercise of the right to self-organization, to join, assist, or support International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Local No. 853 , or any other labor organization, to bargain col- lectively through representatives of their own choosing , and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities (except to the extent that such right should become affected by any agreement, if law- fully made under Section 8(a)(3) of the Act, with a labor organization desig- nated by a majority of the employees , containing a clause making membership in such labor organization a condition of retention of employment). WE WILL offer Napoleon Guerrero immediate and full reinstatement to his former position or a substantially equivalent position , without prejudice to his 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority or other rights and privileges , and we will make him whole for any loss of pay suffered as a result of his discharge. OMEGA FOOD PRODUCTS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Room 703, Market Building, 830 Market Street, San Francisco, California, Telephone No. Yukon 6-3500, Extension 3191 , if they have any question concerning this notice or compliance with its provisions. Barberton Plastics Products , Inc. and International Chemical Workers, AFL-CIO. Case No. 8-CA-2854. March 7, 1963 DECISION AND ORDER On December 20, 1962, Trial Examiner James V. Constantine issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and adopts the findings, conclusions, and, recommendations of the Trial Examiner.' ORDER The Board adopts the Trial Examiner's Recommended Order with the following modifications : 1. The following paragraph shall be substituted for paragraph 1(d) of the Recommended Order : (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to join or assist any labor organization, to bargain collectively through For the reasons stated in their dissenting opinion in the Isis case, Members Rodgers and Leedom are convinced that the award of interest in this case exceeds the Board's remedial authority. While adhering to such view, for the purpose of this decision they are acceding to the majority Board policy of granting interest on moneys due. 141 NLRB No. 23.