Vee Cee Provisions

758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vee Cee Provisions, Inc. and Thomas Oteri and John Lewis and Judith B. Chomsky. Cases 4- CA-10564-1 and 4-CA-10564-2 June 19, 1981 DECISION AND ORDER On February 9, 1981, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administra- tive Law Judge's Decision. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Vee Cee Provi- sions, Inc., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. t The Respondent had excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to, credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge: This case was heard before me at Philadelphia, Pennsylvania, on August 25 and 26, 1980, pursuant to consolidated complaint duly issued and timely amended, and on the basis of charges and amended charges' filed on October 16, December 5, and December 26, 1979.2 The com- plaint alleges violations of Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act, all of which Respondent denies. A the hearing I requested briefs on the issue of whether or not an individual may file an 8(a)(S) charge. The General Counsel included a short argument on the point in her brief, arguing the affirmative. Re- spondent neither raised this issue as a defense nor argued it. For almost 40 years the National Labor Relations Board has held, as provided in its Rules and Regulations then and now (see Sec. 102.9), that "any person" may make a charge, Wilson & Company, Inc., 31 NLRB 440, 442, fn. 2 (1941). Moreover, the Board has recently issued bargaining orders in cases where an individual filed the underlying charge, see P. J Gear d Sons. Inc., 252 NLRB 147 (1980); ABCO Engineering Corp., 201 NLRB 686 (1973). 1 am satisfied that there is no procedural impediment to find- ing a violation of Sec. 8(aXS) in this case if the evidence warrants it. 2 All dates herein are 1979 unless otherwise noted. 256 NLRB No. 125 Upon the entire record, 3 my observations of the wit- nesses' demeanor as they testified before me, and after consideration of the post-trial briefs submitted, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION The complaint alleges, Respondent admits, and I find that Respondent, a processor and wholesaler of ham products at its Philadelphia, Pennsylvania, location, meets the Board's direct outflow standard for the asser- tion of jurisdiction and is an employer engaged in com- merce within the meaning of the Act. II. THE LABOR ORGANIZATION Amalgamated Food Employees Union, Local 196 af- filiated with United Food and Commercial Workers In- ternational Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. Ill. rHE A.I.EGED UNFAIR LABOR PRACTICES4 At all times material herein, Respondent and the Union have been parties to a collective-bargaining agree- ment effective from February 1, 1977, to January 31, 1980, and covering Respondent's employees in the unit described below: All production and maintenance employees em- ployed by Respondent excluding all executive and clerical employees, time-keepers, supervisors and non-working foremen. The contract provides that these employees were to receive cost-of-living wage adjustments the first pay period beginning on or after January I and July 1, 1979. It also provided for a regular scheduled pay increase ef- fective February 1, 1979. The employees received nei- ther the January 1 nor February I raises. About the third week in February, employee John Lewis, shop steward Linwood Jernigan, and five other employees met with Biagio DeMento, Respondent's president, at the beginning of the workday. Lewis acted as spokesman for the group, who were complaining about Respondent's failure to institute the scheduled pay adjustments. In response to Lewis, DeMento asked I Certain errors in the transcript are hereby noted and corrected. I am aware of numerous other errors in the transcript, but inasmuch as they do not materially alter the probative evidence, no appropriate mo- tions to correct them were filed, and neither my notes nor memory en- ables me to supply an accurate correction thereof, the foregoing will have to suffice. I The facts set forth herein are based on a composite of the credited aspects of the testimony of all witnesses, the exhibits, and careful consid- eration of the logical consistency and inherent probability of the facts found. Much of this recitation rests on credible uncontroverted testimo- ny. Although I may not, in the course of this decision, advert to all of the record testimony or documentary evidence, it has been carefully weighed and considered and to the extent that testimony or other evi- dence not mentioned herein might appear to contradict the findings of fact, that evidence has not been disregarded but has been rejected as in- credible, lacking in probative worth, surplusage, or irrelevant. VEE CEE P'ROVISIONS 759 Lewis if he were satisfied with his job. Lewis answered, "No," and DeMento said, "You're fired." In response to this statement, the other employees said that if DeMento fired Lewis he would have to fire all of them. Faced with this united front, DeMento smiled and explained he had been having problems with his expartner and the Company was in financial difficulties. He asked the em- ployees to give him a break. He then returned to his office, and the employees to work. Not mollified, the employees discussed the raise issue with union officers who promised to discuss it with De- Mento, did so, and reported back to the employees. Upon the Union's request that they agree to defer the January raise to May I and the February raise to Octo- ber 1, the employees voted to so do. When the raise promised by Respondent for May I did not materialize, Lewis met with representatives of the Workers Law Rights Project (apparently a legal aid group) and, with their assistance, drew up a petition stat- ing that the employees wanted their wage increase. After receiving a number of employee signatures thereon, Lewis presented the petition to DeMento at a meeting in early July set up among Respondent, the Union, and em- ployees for that purpose. 5 DeMento asked Lewis if the employees wanted the raise. Receiving an affirmative answer, DeMento cursed Lewis and ordered him out of his office. Lewis refused to leave on the ground he was there on business. Union Secretary Smith intervened on Lewis' behalf, stating that Lewis did not have to leave and had a right to be there to discuss the business at hand. DeMento then looked at the petition, said, "Okay, now you have a raise," and, "Get the [expletive deleted] out of my office." Lewis insisted there was other busi- ness to discuss. DeMento's response was to raise his voice, curse, and again invite Lewis to get out of his office. The union officials escorted Lewis out at this point and the meeting terminated. The employees re- ceived a raise the following week. 6 Commencing in July, Lewis circulated a grievance among employees for this signature. The grievance complains of Respondent's failure to pay cost-of-living or regular increases, and various other contract related mat- ters. It was signed by 30 employees, with Lewis' signa- ture the first. Lewis presented this document to De- Mento in September, and sent a copy to the Union. De- Mento took the grievance, did not read it, and tore it up. Later in September, prior to September 24, DeMento entered the boning room, stated that if he had to give a raise he would lay off 20 men in order to reach Lewis, whom he characterized as the troublemaker who caused 6 I credit Lewis' account of this meeting fully. Any testimony to the contrary is discredited. 6 Contrary to Respondent's argument, DeMento was not told by the Union that this petition was no good. Apart from the fact Lewis was more thorough in his testimony and more credible in demeanor than De- Mento, the testimony of DeMento that Respondent relies on relates to a different petition in September wherein employees asked the Union to waive a scheduled raise. 7 The grievance is dated July I 1, but it is not clear how long or exact- ly when the solicitation of signatures was carried on. I conclude from the sequence of events related that this solicitation happened after the early July meeting with DeMento. all the trouble at the facility. 8 The trouble he referred to was obviously the controversy over the wage increases. The employees, with Lewis as their spokesman, were concertedly exercising their protected right to insist on the contractual wage increase, and DeMento's threat to lay off employees if compelled to give the raises they were entitled to and contending for interfered with, re- strained, and coerced the employees in the exercise of their Section 7 rights thereby violating Section 8(a)(1) of the Act. The employees thereafter, still prior to September 24, met at the plant and discussed another petition to get their July raise, which had not then been given as sched- uled. Before this plan could be put into action, another petition intervened. Union shop steward Linwood Jernigan asked De- Mento if Respondent might possibly go out of business. I am persuaded that, from the surrounding circumstances of DeMento's threatened layoff and the later events with respect to a petition, this occurred in September, prob- ably about the same time employees were talking with Lewis about a new petition for the July raise. In any event, DeMento told Jernigan that it looked like he would have to close for economic reasons. Asked what could be done to stave off closure, DeMento advised that all they, the employees, could do was go to the Union and tell the Union why the employees wanted to waive a wage increase.' Jernigan and James Amaker, who is packing superintendent and a statutory supervi- sor,L prepared a petition for employees to sign which set forth their willingness to forgo a raise in order to assist Respondent's operation until its economic status improved. The petition was then left in Respondent's office at Jernigan's suggestion because the wetness in the plant outside the office made it impossible to write. This testimony is uncontroverted, but I have reservations on its credibility because it appears the employees were able to secure signatures on their raise without resorting to the use of management's office. Both DeMento and Clark deny any part in persuading employees to sign this petition. t Jernigan purports to support this denial, but his testimony is of little weight because there is no showing, and credible evidence to g Johnson. Garcia, and l.ewis are in substantial accord on the content of DeMento's statements. with some understandable variations on the exact words used by him. I found Levwis the most convincing witness to w'hat transpired, except that I do not credit his addition on cross-exami- nation that DeMento threatened to close the plant I regard this latter in- sertion as an interpretation of what DeMento meant, rather than what he said Neither Garcia nor Johnson, both of whom impressed me as consci- entious witnesses honestly testifying as best they recalled, mentioned an' threat of closure. I do not believe they would have forgotten such a seri- ous threat if it occurred 9 It is not clear whether this statement as made to Jernigan alone, or in the company of others. In either case it was a direct communication to employees, conceded by Respondent's 'vice president, Clark. ' DeMento calls Amaker the packing superintendent. Clark testified that Amaker is a supervisor who runs the packing line, supervises em- ployees, assigns them work, instructs them on their duties, disciplines em- ployees after discussions with Clark. and makes effective recommenda- tions on disciplinary matters These authorities possessed by Amaker are more than sufficient to make him a supervisor within the meaning of Sec 2(11) of the Act. I I do not credit these general denials because they are controverted h more detailed and believable testimony of employees. VEE CEE PROVISIONS 759~~~~~~~~~~~~~~~~- i 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the contrary, that Jernigan was present when every em- ployee who signed did so, or when every employee who did not sign was shown the petition. After the petition was placed in DeMento's office on September 24,12 em- ployees were notified by employee Dawkins that De- Mento wanted to see them in the office one at a time. I find that Allen Johnson, William Garcia, and Benny Levin are probably mistaken on the date each was called into the office and confronted with the Jernigan-Amaker petition, but I credit their believable testimony over the general denials of Respondent's witnesses with respect to what happened in the office. Allen Johnson credibly tes- tified he was called into the office where DeMento showed him the petition without comment. Johnson signed and left. I do not credit Johnson that he saw Gar- cia's signature thereon because Garcia convincingly testi- fied he did not sign. William Garcia further credibly tes- tified that he was called to the office by DeMento's nephew who worked in Garcia's place until his return from the office. Garcia was met in the office by Clark and DeMento. DeMento told Garcia he liked him and his work but would have to lay off employees if they wanted a raise. He then said the petition was for employ- ees who agreed with DeMento to sign. Garcia refused to sign, stating he wanted the raise. Benny Levin was also called into DeMento's office where he was told by De- Mento the steward had signed the document stating he was satisfied with the wages. Levin refused to sign. On some undetermined date between September 24 and October 5, DeMento called union officials to advise them of the Jernigan-Amaker petition. They responded that the petition was worthless, and DeMento should forget it. DeMento tore it up. I find that Respondent did deal directly with its em- ployees in disregard of their collective-bargaining agent in an effort to avoid paying the wage increases required by the collective-bargaining agreement by bringing em- ployee pressure to bear on the Union. The actions of its agent Amaker in the preparation of the petition, and De- Mento's actions in (1) suggesting employees waive the wage increase to avoid a layoff, which suggestion was the genesis of the petition; (2) causing employees to be called from work to review the petition; (3) showing them the petition as they arrived; and (4) soliciting em- ployees to sign it13 all require a conclusion that Re- spondent violated Section 8(a)(5) and (1) of the Act by attempting to negotiate wages directly with its employ- ees,' 4 and thereby press the Union to acquiesce thereto. That Respondent's efforts were unsuccessful in securing a wage increase waiver does not diminish the gravity of the violation. 'l Lewis credibly asserts this date, and Respondent's post-trial brief agrees that the petition was signed on Monday (September 24) following the Friday (September 21) that was Oteri's last day of work. I do not credit Oteri's testimony that he saw a document being signed by employ- ees in the office on his last day, but find he was confused and actually saw it on September 24 when he went in to pick up his check. L3 In the case of Garcia, DeMento improperly threatened him by pos- iting a layoff if employees wanted the raise. This threat was neither al- leged as a violation of the Act nor fairly litigated as such. 14 Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678, 683-684 (1944); ,4iCO Engineering Corp., 201 NLRB 686, 689 (1973). After the Union's rejection of the Jernigan-Amaker pe- tition, Clark and Jernigan met with Union Secretary Smith and the Union's lawyer for the purpose of discuss- ing a layoff. ' It appears from Clark's testimony that the presence of the Union was largely pro forma because he testified that he told them who would be kept, and the Union only objected on one employee, Cosmo Gamble. Considerable testimony by Clark and Jernigan was ad- duced by leading questions, and consequently is some- what lacking in evidentiary weight. The substance of their composite testimony is that those to be laid off were selected on the basis of seniority and ability. The problem with this position is that Respondent's records show that 15 of the 19 employees selected for layoff had seniority superior to employees retained, and Respondent has not proffered or adduced any persuasive evidence that the abilities of those laid off were inferior to those of the employees who were not laid off. Of the 14 em- ployeest 6 alleged to have been unlawfully laid off on October 5, only 2 had less seniority than anyone re- tained. None of these 14 were shown to be unsatisfactory workmen or to be deficient in required skills, nor were any of those retained shown to possess superior skills or a record of superior work performance. In addition to the 14 named as alleged discriminatees, Respondent also laid off Ollie Melvin, James Varevici, Antonio Santo, John Mastrak, and Henry Tomaszek.' 8 Although the collective-bargaining agreement prescribes that layoff and recall be accomplished in order of employee senior- ity if the senior employees have the "skill, training and ability to perform remaining available work," I cannot infer from the evidence presented that this method was indeed followed, nor is there any good reason shown that I should presume it was. In short, Respondent's tes- timonial evidence and records establish nothing more than that some employees were laid off, and Respond- ent's contention that the selection was based on seniority and ability finally rests only on its ipse dixit. Clark testified that the layoff was caused by a switch to boned hams which did not require as much labor. Clark avers the switch to boned hams had its genesis in the summer of 1979 when Respondent sent a foreman to Iowa to develop an arrangement with an Iowa firm to provide boned hams. He further states that after these ar- rangements were made they were discussed with the Union at the same time as Respondent advised the Union whom it was laying off. DeMento's version is that the Company was losing money and therefore went to boned hams after its representative went to Iowa in the "late part of '78 or early part, I don't know," but that Re- ' No date is given for this meeting, but it is logically probable that it took place after the Union rejected the petition, and Clark says it was a week or so before the layoff of October 5. Neither Smith nor the lawyer testified. '6 John Lewis, Benny Levin, Mariano Lugo, Bill Bland, William Garcia, Edward Mahoney, Norman Watson, Alvin Swindle, Cosmo Gamble, Louis Perkins, David Jones, Michael Smith, Allen Johnson, and Ronald Cooper. " Louis Perkins and David Jones. 18 Tomaszek, who along with Lewis and 13 employees who were not laid off had the oldest employee seniority date of October 24, 1977, in common, was recalled to work on October 27, 1979. John Lewis was re- called on January 31, 1980, but refused to return to work. VEE CEE PROVISIONS 761 spondent found there was still no profit in hams, and therefore went out of the "ham deal" and has been making more roast beef instead of ham since the layoff of October 5. DeMento gave the specific reason for the layoff as "losing money," and points to a loss of $25 or $30,000 in the month preceding the layoff. He was very vague and never fixed an approximate date that he decid- ed to have a layoff. I do not believe that DeMento, as the owner of the Company, was unable to give at least some approximate time for such a decision, and conclude that he was evading the question. John Lewis credibly testified that boned hams were brought to the plant for about 8 to 10 weeks commenc- ing around September or October 1978, and that no more boned hams came in after that period or before the October 5 layoff. Respondent's claim in its answer to the complaint that it "had been purchasing boned products for a period of time prior to September 1979 . . . and no longer re- quired its boning operation" is bereft of credible eviden- tiary support and rejected. I credit neither DeMento's nor Clark's explanation of the reasons for the layoff. Their testimony impressed me as unconvincing and un- coordinated efforts to manufacture nonexistent reasons. In addition to the testimony of Clark and DeMento, Respondent proffered financial statements for 1978 and 1979 prepared by certified public accountants. These statements show a loss of $104,592.23 for the year ending December 1, 1978, and a profit for the 43-week period ending September 28, 1979, of $74,420.24. For the year ending November 30, 1979, Respondent's financial state- ment shows a profit of $34,355. Respondent did, as De- Mento claims, lose $27,305.48 on its September 1979 op- erations, and its records reflect that its total sales dropped in both September and October 1979, but also show that sales rebounded in November and December 1979 to approximate July and August levels. As may be expected, the parties argue the records to opposing con- clusions. I am persuaded that the records do not, as Re- spondent suggests they do, establish that the layoff of October 5 was economically motivated. However, I find it revealing that Respondent's considerable losses in 1978 gave rise to no layoffs. Viewing the evidence in its entirety including Re- spondent's overt hostility to employee action designed to secure scheduled wage increases, which hostility was clearly and openly exhibited as early as February and long before Respondent experienced the September losses it now relies on as the cause of the layoff, I am persuaded that the General Counsel has set forth a prima facie case that the motivating factor in Respondent's de- cision to lay off its employees was the employees' contin- ued union and protected concerted activity designed to secure the raises due them, together with the Union's re- fusal to entertain the petition to waive wage increases. Respondent has failed to adduce evidence sufficient to show legitimate and substantial business justifications for the layoff of October 5,19 or that there would have been 'O N.L.R.B. v. Great Dane Trailers Inc., 388 US 26 (1967). a layoff in the absence of the employees' protected con- duct. 20 Accordingly, I find that the General Counsel has shown by a preponderance of the evidence that the layoff of October 5 violated Section 8(a)(3) and (1) and that the 14 employees alleged in the complaint were in fact discriminatorily laid off. Moreover, I find that it is also reasonable to conclude that John Lewis was singled out for his leading role in the employees' protected ac- tivity, and the layoff of the other employees was utilized to mask his discriminatory selection, as DeMento had earlier threatened. In the midst of the foregoing sequence of events in- volving employees' requests for their raises, Respond- ent's replies thereto, and the October 5 layoff, Thomas Oteri was discharged.2' Oteri was hired as a ham boner on May 14, 1979, by DeMento, his longtime acquaint- ance. Oteri, although a butcher in a retail store, had no previous packinghouse experience and I credit DeMento that Oteri was hired at the probationary rate of $7 per hour and agreed with this rate when he was hired. The union contract provides for a probationary period of 90 days. Oteri was injured on the job on or about June 20 and was disabled until August 27. During this period he received disability compensation. After his return to work, probably in early September, Oteri complained to the Union that he was not receiving the contractual rate of $8.09, the journeyman rate. Union Steward Jernigan and Union Secretary Smith took the matter to Clark and discussed it. Thereafter, apparently because Smith did not know how Oteri was performing and wanted to assess his abilities as a journeyman in connection with in- vestigation of his complaint, Smith and Jernigan ob- served Oteri at work. Smith's reaction to Oteri's per- formance was merely to shake his head at Jernigan in a negative fashion and leave. This visit of Smith to the plant took place during the week ending September 22. At or about 3:30 p.m., after Smith had left the plant, DeMento called Oteri into his office and told him Friday, September 21, was his last day. Oteri asked De- Mento to reconsider. DeMento responded that he would discuss it with Clark, who was also present. During this meeting, Clark interjected that he had given Oteri a job and now Oteri had stabbed him in the back, On September 24, Oteri went in to get his pay. De- Mento and Clark were present. DeMento asked Clark if he thought Oteri should be rehired. Clark answered that Oteri was not even worth $7 an hour. Oteri then left the office. DeMento testified Oteri was laid off because he was low in seniority and Respondent was losing money. Clark avers it was because sales were down. I do not credit these contentions because there is no evidence whatsoever to support a conclusion that the layoff of one man was necessitated 2 weeks before the large October 5 layoff in order to alleviate any economic problems Re- spondent might have. Nor do I credit DeMento's testi- mony that Oteri had never complained about wages. 2" See right Line, a Dviiln of WiRghil inc. Inc. 251 NI RB 1083 ( IS0). 21 Although the parties speak of it as a layoff, I am satisfied it was a final termination without any prospect of recall in view of the final re- mark t s to Oteri by Clark and DeMento which are related in this decision. VEE CE PROVISIONS 761 _ _ _ _ 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oteri's wage complaint was the reason for Smith's visit to Respondent on the day Oteri was told he was being let go, and I am satisfied this was the topic of Smith and Jernigan's conversation with Respondent. Jernigan credi- bly testified that he had earlier talked to Clark about Oteri's wage complaint, and he and Smith again talked to Clark about the wages on the day Oteri was advised of his separation. The reasons for layoff advanced by DeMento do not hold water, and are found to be pretexts designed to con- ceal the real reason. Unlawful motivation is inferrable from false reasons where it is reasonable to conclude that the motive sought to be concealed is unlawful. 2 2 Such an inference is warranted in the circumstances of Oteri's case, but it is unnecessary to rely solely on inference. Oteri's complaint to and through the Union that he was not being paid the proper contractual wage was clearly statutorily protected activity. That he may not have been correct in his complaint does not alter its protected nature. 23 The record reflects that DeMento had earlier reacted angrily to wage increase claims of other employ- ees. The timing of the separation of Oteri on the same day the Union presented his claim to Respondent is per- suasive evidence of cause and effect, and the precipitate nature of Respondent's action, combined with its asser- tion of false reasons for that action, completes the pic- ture. I conclude and find that Respondent discharged Thomas Oteri because he sought assistance from the Union in pressing his wage claim, and thereby violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's oper- ations described in section , above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the findings of fact set forth herein- above, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following unit constitutes a unit appropriate for collective bargaining: All production and maintenance employees em- ployed by Respondent excluding all executive and clerical employees, time-keepers, supervisors and non-working foremen. 22 Stewarr-Warner Corporation, 253 NLRB 136 (1980). 23 "An employee has a right to urge a grievance in any case, not only in the situation where it is finally decided his position was correct." Robert Martin Construction Cob. Inc., 214 NLRB 429, 430 (1974) 4. At all times material herein, the Union has been the exclusive collective-bargaining representative of all em- ployees in the above-described unit. 5. By threatening employees with layoff because they engaged in union and protected concerted activities, Re- spondent violated Section 8(a)(l) of the Act. 6. By discharging Thomas Oteri because he sought as- sistance from the Union in processing his wage claim, Respondent violated Section 8(a)(3) and (1) of the Act. 7. By laying off the following employees2 4 because they engaged in union and protected concerted activities, Respondent violated Section 8(a)(3) and (1) of the Act: John Lewis Benny Levin Mariano Lugo Bill Bland William Garcia Edward Mahoney Norman Watson Alvin Swindle Cosmo Gamble Louis Perkins David Jones Michael Smith Allen Johnson Ronald Cooper 8. By attempting to bargain directly with its employees regarding wages without notice to or consulting the Union, in an effort to pressure the Union to agree to waive contractual wage increases, Respondent refused to bargain collectively with the Union as the exclusive bar- gaining representative of all the employees in the unit de- scribed hereinabove and thereby violated Section 8(a)(5) and (1) of the Act. 9. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In addition to the usual cease-and-desist and posting requirements, my recommended order will require Re- spondent to offer unconditional reinstatement 25 to the following named employees to their former jobs or, if their former jobs no longer exist, to substantially equiva- lent positions, and make them and John Lewis whole for all wages lost as a result of the discrimination practiced against them, such backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950); and Florida Steel Corpo- ration, 231 NLRB 651 (1977):26 Thomas Oteri Benny Levin Mariano Lugo Bill Bland William Garcia Edward Mahoney Alvin Swindle Cosmo Gamble Louis Perkins David Jones Michael Smith Allen Johnson 24 The complaint alleges only the 14 employees as discriminatorily laid off on October 5, and makes no claim there are other employees who are situated similarly to the 14 named in the complaint. The remedial order herein will therefore only apply to the 14 named herein. Camay Drilling Company, 254 NLRB 239. 240 (1981). 2" The adequacy of any reinstatement offers previously made is a matter properly to be resolved in compliance proceedings with the ex- ception of the offer to John Lewis which has been stipulated as made January 31. 1980, and rejected by Lewis The General Counsel concedes Lewis' right to reinstatement was waived by his rejection of Respond- ent's recall offer of that date 2h See, generally, Isis Plumbing & Hearing Co., 138 NI.RB 716 (1962) VEE CEE PROVISIONS 763 Norman Watson Ronald Cooper I shall also recommend the issuance of an appropriate bargaining order for the violation of Section 8(a)(5) found. Pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER2 7 The Respondent, Vee Cee Provisions, Inc., Philadel- phia, Pennsylvania, its agents, officers, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with layoff because they engage in union or other protected concerted activities. (b) Discharging or laying off employees, or otherwise discriminating in any manner with respect to their tenure of employment or any term or condition of their employ- ment because they seek union assistance in processing wage claims or engage in other union or protected con- certed activities. (c) Bargaining or attempting to bargain directly with employees regarding wages or other terms and condi- tions of employment without prior notice to or consulta- tion with the Union. (d) 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 designed to ef- fectuate the purposes of the Act: (a) Upon request, bargain collectively in good faith with Amalgamated Food Employees Union, Local 196, affiliated with United Food and Commercial Workers In- ternational Union, AFL-CIO, as the exclusive bargaining agent of all employees in the unit described below and embody in a signed agreement any understanding reached. All production and maintenance employees em- ployed by Respondent, excluding all executive and clerical employees, time-keepers, supervisors and non-working foremen. (b) Offer the employees named below immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them and John Lewis whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." William Garcia Edward Mahoney Norman Watson Michael Smith Allen Johnson Ronald Cooper (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its Philadelphia, Pennsylvania, facility copies of the attached notice marked "Appendix. "' 2 Copies of said notice, on forms provided by the Regional Director for Region 4, after being signed by Respond- ent's authorized agent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced. or cov- ered by other material. (e) Notify the Regional Director for Region 4. in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. '1 II, hc H c rtlt thi ()Ordcr ,1 cnrlcel h :a JLldJ1gn11Cll if 1. 'll',cd Slates (Conrt of Appcal, rh sord In th s I tic imce adill ".l ir '1'scd h\ ()rdecr of the Nilrlral I ah r Rlationvr 1iard" hrIl .ALI . 'Toscd I'rsI -u .ilt (10 J.gillri[t I t tie Lu ntd d SJIta s ('urt iof pprca.lIr , 111 Ail ()rdefr i Ihi Na.i-i]; l I 1 ;i r R.Il-rlr s I1o.ridl APPENDIX NoIIr I To ENit'I OI its Pos i) BY ORI)I R (1 I 1 NA IIONA I LABOR R I IONS B(o.\RI) An Agency of the United Stales Government We hereby notify our employees thai: WI: wnIl i oTr discharge or layoff or otherwise discriminate against our employces because they seek union assistance in processing wage claims or enlgage in other union or protected concerted activi- ties. W'l. vii I NOI threaten employees \with layoff or discharge because they engage in union or other protected concerted activities. Wi: w.lli NOt discuss wages, layoffs, contract terms, or working conditions ith our employees without first discussing them with the Union. W'1- \i 111 NO' in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise or the rights guaranteed them by Sec- tion 7 of the Act. Wi wvl I offer the following employees immedi- ate and full reinstatement to their former jobs or, if their former jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges. and make them ad John l.ewis hole for any loss of pay they may have suffered as a result of our discrimi- nation against them, with interest computed there- on: Thomas Oteri Benny Levin Mariano Lugo Bill Bland Alvin Swindle Cosmo Gamble Louis Perkins David Jones 27 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Regulations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections hereto shall be deemed waived for all purposes. VEE~~ A CE .ROVISONS_7. ._ . x, .... 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Benny Levin Mariano Lugo Bill Bland William Garcia Edward Mahoney Norman Watson Alvin Swindle Cosmo Gamble Louis Perkins David Jones Michael Smith Allen Johnson Ronald Cooper Thomas Oteri national Union, AFL-CIO, as the exclusive bargain- ing representative of all the employees in the unit described below and embody in a signed agreement any understanding reached. The bargaining unit is: All production and maintenance employees em- ployed by us, excluding all executive and clerical employees, time-keepers, supervisors and non- working foremen. VEE CEE PROVISIONS, INC. Wl WILL bargain, upon request, with Amalga- mated Food Employees Union, Local 196, affiliated with United Food and Commercial Workers Inter-