DiVincenti Brothers, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1965

156 N.L.R.B. 153 (N.L.R.B. 1965)

DIVINCENTI BROTHERS , INC. 153
supply, and no common products or customers. It is also undisputed
that the Employer's manager actively operates the establishment, pur-
chases supplies, establishes wage rates, and hires and discharges
employees, independently of Feltenstein and F. & F. In addition, the
record does not establish the existence of common labor policies, prac-
tices, or benefits.
Upon consideration of the foregoing, we conclude that the Employer
and F. & F. are not integrated enterprises and do not constitute a
single employer within the meaning of the Act and that it would not
effectuate the purposes of the Act to assert jurisdiction herein.
[The Board dismissed the petition.]
DiVincenti Brothers, Inc. and United Packinghouse , Food & Al-
lied Workers, AFL-CIO . Case No. 15--CA-2610. December 17,
1965
DECISION AND ORDER
On October 13, 1965, Trial Examiner Boyd Leedom issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices alleged
in the complaint and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, as hereinafter modified.'
THE REMEDY
Having found that the Respondent had engaged in unfair labor
practices violative of Section 8(a) (1), (3 ), and (5 ) of the Act, the
1 We hereby correct the following inadvertent errors in the Trial Examiner 's Decision:
the Trial Examiner 's finding that the Respondent refused to bargain in good faith with
the Union subsequent to December 8, 1965, should read January 8 , 1965; Williams , rather
than Davia, credibly testified as to Sam DiVincenti 's remarks about a week before the
strike concerning Respondent 's reaction to union activity ; and the Respondent discharged
five, rather than aim, employees on February 22, 1905.
156 NLRB No. 22.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner recommended that it take certain affirmative action
designed to effectuate the policies of the Act, but inadvertently omit-
ted to state what this affirmative action included. Having found that
the Respondent discriminated against Oscar Williams, James Davis,
Louis Carney, Joe Temple, Joseph Green, and George Johnson by
reducing their hours of employment on or about January 8; 1965, we
shall order the Respondent to make these employees whole by reim-
bursing them for any loss of pay which flowed from the reduction in
their hours of work during the period from January 8, 1965, to Feb-
ruary 22, 1965, the date these employees went on strike. Having fur-
ther found that the Respondent refused to reinstate these six employ-
ees, who were unfair labor practice strikers, although they made an
unconditional offer to return to work on March 2, 1965, we shall order
them made whole from March 2, 1965, to the date the Respondent
offers them reinstatement. We shall also order that all the foregoing
be computed in accordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289, with interest at the rate of 6 percent
per annum, as provided in Isis Plumbing ct Heating Co., 138 NLRB
716.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, DiVincenti Brothers, Inc.,
Baton Rouge, Louisiana, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was tried before Trial Examiner Boyd Leedom in Baton Rouge, Louisiana,
on July 26, 1965. The complaint , dated May 28, was issued on an original charge
filed March 3, and an amended charge filed April 13, all in 1965. The issues raised by
the complaint and Respondent 's answer are whether Respondent violated Sections
8(a)(1), (3 ), and (5) of the National Labor Relations Act, as amended.
Thus the questions to be decided are (1 ) whether Respondent failed to bargain in
good faith , with the Union , United Packinghouse , Food & Allied Workers, AFL-CIO,
for an agreement covering the wages , hours, and working conditions of Respondent's
employees ; ( 2) whether Respondent unilaterally and unlawfully changed the work-
ing conditions of the employees without prior bargaining , or notice to the Union,
thereby discriminating against the employees because of their union activity; and
(3) whether Respondent discharged certain of its employees because of their union
activity.
On the entire record and the briefs filed in behalf of the General Counsel and the
Respondent , and from my observation of the demeanor of the witnesses as they
testified , I make the following findings of fact and conclusion of law; and for the
reasons hereinafter appearing, conclude and determine that Respondent did violate
the Act as alleged in the complaint.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I find that the allegations of the complaint as to the nature and volume of business
done by the Respondent ( a wholesale dealer and distributor of fruits , vegetables, and
DIVINCENTI BROTHERS, INC. 155
other produce in Baton Rouge, Louisiana) are true; said allegations are admitted by
Respondent; and I therefore conclude that within the meaning of the Act Respondent
is an employer engaged in commerce.
I also find and conclude that the Union named above is a labor organization, within
the meaning of the Act, a matter also conceded by Respondent.
I find and conclude, further, either on the basis of stipulation of the parties or
uncontroverted evidence, as appeared from the record, that:
(1) On January 8, 1965, and thereafter, the Union represented a majority of the
employees of Respondent in an appropriate unit consisting of the truckdrivers, ware-
housemen, and laborers.
(2) That on said date Respondent recognized the Union as the exclusive bargain-
ing representative of the employees in said unit.
(3) That pursuant to the previous demand of the Union for a contract covering
wages, hours, and working conditions of the employees, Respondent and the Union
on January 8, 1965, discussed, generally, terms and conditions of such contract, and
agreed that Respondent would, through its counsel, submit to the Union a draft
including the provisions covered in the discussion.
Respondent's Failure to Bargain
There is no dispute that:
(a) On January 11, 1965, Respondent, through counsel, confirming the oral
understanding, advised the Union in writing (General Counsel's Exhibit No. 3)
that Respondent recognized the Union and that "sometime this coming week" an
agreement containing the provisions discussed on January 8, would be submitted.
(b) No contract had been received by the Union on January 26, and on or about
that date, Vicknair, union representative, telephoned counsel for Respondent inform-
ing him that certain of Respondent's employees had complained of discriminatory
action against them.
(c) The next day by letter dated January 27 (General Counsel's Exhibit No. 4),
counsel for Respondent advised the Union that they would try to get the contract to
them "before the week is out" and inquired for specific information concerning the
alleged discrimination against employees.
(d) On February 12, 1965, the Union had received from Respondent neither the
tentative contract nor any other form of proposal for an agreement and, submitted
to Respondent the Union's own draft of proposed agreement, advising in the letter
of transmittal that the "members of the Union are -insisting that a contract be signed
by Monday, February 22" (General Counsel's Exhibit No. 5). This was received
in due course by mail from New Orleans to Baton Rouge.
(e) The Union received no response and got no reaction from Respondent until
several of the employees failed to report for work in the early morning of February 22,
the deadline set in the Union's letter.
(f) Later in the day, February 22, Respondent declined to meet with the Union
through any representative authorized to bargain, for the stated reason that the
early morning work stoppage had created such problems, it was impossible for any
such representative to leave the business. (The Union had sought a meeting after
the work stoppage, on the 22d, for the purpose of working out the difficulties and
reaching an agreement on the contract , and counsel for Respondent had adjusted his
time to meet with the Union and did meet with Vicknair but had no authority to
bargain.)
(g) When Respondent failed to meet to bargain on the '22d, a later date for a
meeting was finally set through the efforts of Vicknair and counsel for Respondent.
It was held on March 1. Vicknair sought to discuss terms of the contract, and also
to get the union adherents, employees of Respondent who had been discharged as
hereafter appears, back on the payroll. Respondent declined to discuss terms of the
contract and, as it later developed, made no concession concerning the discharged
employees except to consider "rehiring" them as additional people might be needed
or as "new people" quit.
(h) Respondent made no other effort to reach an agreement with the Union.
On the basis of the foregoing uncontroverted facts, I find and conclude that
Respondent purposely avoided bargaining, and at no time on or subsequent to
December 8, 1965 (when it voluntarily recognized the Union), did it have any good-
faith intention of making a collective-bargaining agreement with the Union; and that
from and after said date Respondent violated Section 8(a) (5) of the Act by failing
and refusing to bargain in good faith. This finding and conclusion is amply sup-
ported by additional evidence hereinafter referred to. "
The only incident, in all of the foregoing, that tends to indicate an intention on
Respondent's part to bargain in good faith, is the voluntary recognition of the Union.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This circumstance , however, I do not attribute to good-faith dealing with the Union,
but rather to necessity, in the sense that there was no other reasonable course to
pursue inasmuch as the Union held cards authorizing it to represent 9 of Respondent's
10 employees. I infer that Respondent voluntarily recognized the Union on advise
of counsel who insofar as I could observe during the conduct of the hearing, and
insofar as the evidence reveals, represented Respondent capably and well, and sought
to steer it along a proper course.
Joe DiVincenti, the treasurer and general manager of Respondent, is a person of
strong views and forceful action who, as the record in this case reveals, controlled
and made policy for Respondent company. He is the only one of the brothers, who
own and operate the Company, to testify in this proceeding. On direct examination
to the question, "Do you have all general manager functions of the business?" He
answered "A whole lot more besides that." His counsel prefaced the next question
with the comment "That is sufficient." DiVincenti had previously testified that he
hired personnel, laid off personnel, discharged personnel, sold, took orders, dis-
patched trucks, saw that the trucks were maintained, checked on his drivers to see that
they were doing as good a job as possible, and checked in the men as they came off
their routes. He was a busy, effective, hard working man who with the help of his
brothers had built up a business characterized by one of the employees witnesses as
the biggest ( in its line I assume the witness meant) in the city of Baton Rouge. I
infer from all the evidence, that one of his extra duties, not enumerated by the
witness, but included in his designation of "a whole lot more besides," was to keep a
union out of his establishment. '
I credit the testimony of the witness Oscar Williams, employee, that Mike DiVin-
centi (who was associated with his brother Joe in the ownership, management, and
operation of Respondent) told the witness during the course of the dispute involved
herein "We got rid of you all the other time" (referring to a previous effort of the
Teamsters Union to organize Respondent's employees) and that "The other time we
got you all away from here and . . . if it hadn't been for Mr. Sam, Sam DiVincenti,
you wouldn't have come back, and ... this time you are not coming back."
Davis testified credibly that Sam DiVincenti, also associated with Joe in the man-
agement and operation of Respondent's business, said to the witness on Respondent's
premises about a week before the employees went on strike "I tell you all, just between
you and I. . . . Mr. Joe ain't going to give in to no union. He ain't going to let
nobody tell him how to run his business ... if I was you all, I'd just forget about it,
because you ain't going to get a nickel more than what you are getting already."
The testimony of this witness as to these two conversations with the DiVincenti
brothers is not refuted in the record.
When Joe DiVincenti was questioned on cross-examination concerning his attitude
toward the Union's effort to organize the business he answered "I would say they
would limit me to operate the way ... it takes to operate a produce business, because
it is a seasonal business, and a lot of times it is either too wet where produce is suppose
to come from, or is too cold or is too dry, and to combat that, with the close profit
that we have to work with, and taking everything into consideration, I think it would
mean that it would, in other words, hog tie a man that is trying to run a produce
company."
From the foregoing statement, revealing his attitude about unions, and his conduct
as revealed in the whole record and as hereinbefore set forth, I conclude that he, the
dominant figure in the operation of Respondent's business, had no intention at any
time to deal with a union in the operation of the business. Considering that dealing
with a union was completely outside his experience and concept of managing a
business, the course in which he guided Respondent during this dispute was the
rational course, the one to be expected from him. Judging his conduct from the
confines of his own experience and concept, the course he pursued even though it
collided sharply with the provisions of the National Labor Relations Act, was not as
reprehensible as it was unwise. His own convictions in the field of labor relations
seem to insulate him from any real awareness of, and, therefore, any concern for,
the conflicting national policy.
Joe DiVincenti sought to excuse one of his final failures to bargain, on the absence
of his attorney, or one of them. This was his failure to respond to the Union's letter
of February 12, enclosing a proposed contract, and setting the February 22 deadline.
His attorney, or one of them, was out of town. But DiVincenti's reliance on such
absence is too shaky a reed to sustain him. If he had wanted to act in good faith, a
contact with another member of his attorney's law firm, or with his own employee,
Oscar Williams, known to DiVincenti to be shop steward, would certainly have
forestalled the work stoppage of which he later so bitterly complained.
DIVINCENTI BROTHERS, INC. 157
The Unilateral Changes in Working Conditions
At a time after Respondent became aware that the majority of its employees were
union adherents it began to change the work assignments and shorten the hours of
some of the employees, all of whom had authorized the Union to represent them for
bargaining purposes. Respondent does not deny that such changes were made, but
sought, through the testimony of Joe DiVincenti, to establish that the changes were
unrelated to union activity and were made primarily due to a seasonable slump in
Respondent's business; and also, with respect to two of the employees involved,
made changes because Respondent had been advised that one of the two was pilfering
from the truck he drove, and that the other had been caught sleeping in this truck
contrary to rules.
The evidence does not support the validity of any of these reasons offered by the
Respondent and I reject them. I find and conclude from the testimony of the
employee witnesses whose hours and job assignments were affected and whose testi-
mony I credit and also from General Counsel's Exhibit No. 7, that the changes made
were substantial, of the kind that under the law should have been discussed with the
employees' bargaining representative before they were put in effect, and that they
were imposed because of the union activity of the employees. Thus I find that the
changes made without notice or discussion, or bargaining with the Union, violated
Section 8(a) (5) of the Act.
Some of these changes may have occurred before January 8, 1965, on which date
Respondent recognized the Union as the bargaining representative of its employees;
but they continued to be made following that date. The effect was being felt just
prior to January 26 about which time complaint was made by the employees to the
union representative, Vicknair who in turn complained to counsel for Respondent.
Even if Respondent had been in a period of slack employment at the time the
changes were made, such circumstance was no legal excuse for not consulting the
Union concerning the changes. It is well established that unilateral action with
respect to wages, hours, and working conditions, even though grounded on economic
considerations, is in derogation of an employer's obligation to bargain with the Union
representing its employees for collective-bargaining purposes. Fleming Manufactur-
ing Company, Inc., 119 NLRB 452, 464-465, footnotes 14 and 15. But the evidence
in the case does not support a finding that there was a significant slump in overall
employment during the period the changes were made.
I find that Respondent, after acquiring knowledge of the Union activity of the
employees involved, and because of such activity, made these unilateral changes in
their work assignments and hours:
Employee Joseph Green was taken off his out-of-town truck route and, was given
an in-town route, and after the change, was required to work I day less per week
than previously. This resulted in a cut in working hours and pay reflected in his
weekly paychecks. As shown by General Counsel's Exhibit No. 7 his paycheck for
the week ending January 7, 1965, was $89.87 and for the succeeding weeks was
$75.79, $70.65, $64.83, $63.75, $66.31; and $39.91 for the weekending February 18,
1965.
Some of the changes came precipitously. I credit the testimony of the employee
Oscar Williams that one morning during the period of unrest over the Union's desire
for a contract "Mr. Joseph came out of his office and he said, `I'm going to make
some changes around this place.... Joseph Green was loading, you know was stack-
ing produce in his truck, and he told Joseph Green to get off the truck and he told
Joseph Moore to get up there and Joseph Moore finished loading that truck. The
next truck was loaded, and he put a younger man on that truck, and then the route
that I had, he put a still younger man on that one." This witness was taken off his
out-of-town route, and even prior to that time but after January 8 when the Respond-
ent recognized the Union, his hours had been cut. Normally he worked 65 to 70
hours a week and after January 8 they were cut down to as low as 45 hours for
some weeks. These changes in his work assignments were reflected in his weekly
paychecks as follows: for the week ending January 7, 1965, his check was for $92.
For the successive weeks following they were for $83.08, $83.44, $80.15, $66.44,
$37.50; and $36.35 for the week ending February 18, 1965.
The changes made with respect to employees Williams and Green illustrate the
kind of change made with respect to the other union adherents, James Davis, Louis
Carney (although he was not taken off his truck), Joe Temple, and George Johnson,
all without any notice or discussion with any of the employees involved, or with
their union representative. All of these changes I find, as previously indicated, to be
in violation of Section 8(a) (5) of the Act.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Respondent's interjection into the case of the suggestion that the assignment
of one of the employee's was changed because of a report he was pilfering, and
another's because he was sleeping in his truck, has little legal significance because of
Respondent's parenthetical treatment, the record does not show that there is any
substance to the contention that either of these reasons was a factor in the changes
made in work assignments. The inconsistency in Joe DiVincenti's pretrial statement
and his testimony, as revealed in the record on this subject, though somewhat subtle,
weakens his own story in this respect substantially.
The Unlawful Discharges
It is implicit in the record that certain of Respondent's employees who had joined
the Union, had agreed among themselves, that if Respondent had not entered into
good-faith bargaining with them by February 22, a date previously suggested as a
deadline, they would refuse to go to work on that date. They were to report at
1:30 or 2 o'clock in the morning in the ordinary course of their employment. Five
of the six employees with whom we are here concerned, that is Oscar Williams,
Joseph Green, James Davis, Louis Carney, and Joe Temple, all drove to work that
morning, but instead of entering the building and punching the timeclock, they
remained outside in their automobile in front of Respondent's place of business. The
sixth employee, George Johnson, did not report to work that morning because of
illness.
Soon after they arrived at Respondent's premises , Oscar Williams, acting as spokes-
man for the group, went inside the building to talk to Joe DiVincenti. While there
is variation in the testimony of the witnesses concerning the exact conversation that
then took place, such conflict has no substantial bearing on its legal effect. I find and
conclude that the testimony of Oscar Williams, who impressed me as an intelligent,
forthright person, provides a substantially accurate story of what transpired between
Joe DiVincenti and Williams. Thus, I find that Williams advised DiVincenti that
the employees wanted to know if DiVincenti was going' to negotiate with them on a
contract. DiVincenti rejected the proposal conveying to Williams an idea that he
sought to phrase in DiVincenti's language when he testified that DiVincenti said
"I'm not giving anybody nothing ... I didn't sign nothing. I didn't have nothing to
do with it. I ain't signing nothing ... you can tell them that."
Williams then left the office, advised his coworkers of DiVincenti's reaction and,
accompanied by Louis Carney, went to a telephone and telephoned Union Representa-
tive Vicknair. I credit the testimony of Williams that after the telephone conversa-
tion with Vicknair, and within a half hour or so after his first conversation with Joe
DiVincenti, he went again inside the premises , accompanied by Louis Carney, and
advised DiVincenti that the employees would go to work if DiVincenti would agree
to hold a meeting at 1 o'clock that day. Again DiVincenti rejected the idea of bar-
gaining in language that cannot be precisely recalled or restated but the substance
of which I find to be fairly accurately stated by Williams when he testified that
.DiVincenti said, "Don 't talk to me, talk to my lawyer . as far as I am concerned
you are no longer with DiVincenti ... you are fired, you are through now."
The foregoing is an adoption essentially of the employees' versions of what occurred.
Throughout the testimony of Joe DiVincenti, appears the suggestion that when the
employees approached him through Williams in the early morning of February 22,
they demanded a contract , and that his position was that 2 o'clock in the morning
was a bad time for either signing a contract or negotiating one. I find nothing in the
record however to support any finding that the employees or the Union through
Williams, on this morning were demanding either a contract or immediate bargaining,
but rather sought an indication from DiVincenti that he would at some future,
early, reasonable time engage in bargaining.
The record also reveals, and I find, that after Williams had first contacted DiVincenti
in behalf of the employees, Joe DiVincenti went out to the automobile, and asked
each of the employees hereinbefore named excepting Williams and Carney, who were
making the telephone call, whether they were coming to work. Each indicated that
unless they were advised by a union representative that they should, they would not.
Thereupon in language that, again, cannot be precisely restated or determined,
DiVincenti discharged James Davis, Joseph Green, and Joe Temple. Even the
employees' testimony varied as to the language DiVincenti used when he discharged
them. Davis testified that "he told us if we didn't come to work then that we no
longer had a iob." Temple testified "he said as of now you can consider yourself not
working for DiVincenti no more." And Green testified that DiVincenti said to him
"You consider yourself fired from DiVincenti."
DIVINCENTI BROTHERS. INC. 159
I credit the testimony of these three witnesses, and while I cannot find that
DiVincenti used the precise language each attributed to him in each case, I do find
and conclude that DiVincenti used language that clearly conveyed to each of these=
three knowledge that each no longer had employment with Respondent. -
DiVincenti's own testimony varies from that of the employee witnesses as to what
he said to them. He testified on direct examination "I called out each man individually
and asked them if they was coming back to work, if they wasn't coming back to work
I was going to have to get somebody to replace them." His later failure, however,.,
to reinstate the men when they applied for reinstatement as hereinafter related, and
his own testimony on cross-examination, quite effectively clears up any question as to
whether he discharged them. On cross-examination he was asked "You didn't tell
them that they were fired with the Company?" He answered "Fired? Nope. I didn't
use that term at all; I never use that term." Question: "Discharged, then?" And his.
answer: "I told them that if they didn't come back to work I was going to put some-
body to replace them. Of course, you can draw your own conclusions from that..
It means the same thing no matter what way you put it. In other words, there is only
one definition to that." In the light of all of DiVincenti's other conduct, as revealed'.
by the record, and particularly his refusal to reinstate the men later, I interpret.
DiVincenti's sly answer, quoted above, to be an admission that he intended to dis-
charge the men because he recognized no difference between a discharge and a layoff
with possible reinstatement.
The employee Louis Carney was with Oscar Williams when the contact was made.
with Joe DiVincenti following the telephone call to Vicknair. I credit his testimony
that DiVincenti then asked Carney if he was going to "punch in" for work. When
Carney indicated he was not going to work if DiVincenti was not going to negotiate
for a contract, Carney testified that DiVincenti said "since you are not going to punch
in you are no longer affiliated with DiVincenti Brothers." I credit this testimony, and
from it find and conclude that DiVincenti discharged him as of that time.
I also find and conclude that DiVincenti discharged Oscar Williams at the same
time and in the same conversation when, as hereinbefore set out he said to Williams
.you are fired, you are through now."'
The early morning refusal to work by five of the employees assumed the character-
istics of a strike the next day when the employees picketed Respondent's place of
business. The employee George Johnson was not present on the morning of Febru-
ary 22, to be discharged, because he was home ill. On the morning of February 23,
however, even though he testified he was still sick, he went down to Respondent's place
of business to find out for himself what was going on. He had been informed of the
incident of the morning of February 22 because it was from his home that Oscar
Williams had made the telephone call to Vicknair. When he went to the premises on
the 23rd he was walking with the pickets and observed Joe DiVincenti standing in
the door. I credit his testimony that DiVincenti said to him "I thought you were
supposed to be in bed sick" and that the witness advised that he still was not well
but "just like anybody else, when you hear that you are fired ... you come to see what
is going on ... I am interested in my job, I want to see what is going on about the
job." Then, he testified, DiVincenti smiled, laughed, and went back in the plant and
nothing more was said. Probably all the circumstances revealed in the evidence,
bearing on the question as to whether DiVincenti discharged Johnson, would justify a
finding of discharge. I do not make it, however, not only because of a lack of direct
evidence of a discharge, but because a finding of a discharge of Johnson would add
nothing to the remedy to which he is entitled by reason of Respondent's clear failure
to reinstate him at a later date, as hereinafter appears.
I find and conclude from the whole record, and from the evidence hereinbefore set
forth, that the work stoppage or strike of the employees in the early morning of
February 22, was occasioned and brought about by the unfair labor practices of the
Respondent, that is Respondent's failure and refusal to bargain in good faith for a con-
tract, and the discriminatory action taken against the employees by reason of their
union activity. It follows that the Respondent had no lawful right to permanently
replace the discharged employees.
The Refusal to Reinstate
When on March 1 Respondent met with the Union, it is probable that every inter-
ested person there, excepting Joe DiVincenti, left the meeting assuming that the dis-
charged employees would be reinstated. They were all advised to report to DiVin-
centi respecting their jobs. The next day, March 2, the six employees reported in a
group. Joe DiVincenti said he would see them singly, and did. Each. employee was
dealt with in essentially the same manner by DiVincenti, that is, there was discussion
about what had gone before, and he dismissed each employee by taking his name and
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
address and advising that if he needed anyone he would call. He never called any
for employment or for any other reason,, and none of the six had been reinstated or
rehired at the time of the hearing. The record reveals that there were 10 men in the
unit at the time of the strike, and that the 6 men here involved were immediately
replaced.
On the basis of the entire record, and especially the evidence hereinbefore discussed,
I find and conclude that Respondent violated Section 8(a) (3) of the Act when it dis-
charged six employees hereinbefore named, and again when it failed and refused to
reinstate them; and that in violating these sections and Section 8(a) (5) as herein-
before found, Respondent also violated Section 8(a) (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in, and is engaging in unfair labor
practices violative of Section 8(a)(1), (3), and (5) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirmative action, set forth below,
designed to effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the basis of the.foregoing findings of fact and conclusions of law and upon the
entire record in this case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that the Respondent, DiVincenti Brothers, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the exclusive bargaining
representative of all of its employees in the previously described appropriate unit.
(b) Discriminating against any of its employees in regard to their hire or other
tenure and condition of employment, thereby discouraging membership in the Union
or any other labor organization.
(c) Threatening its employees with loss of, or denying them, employment oppor-
tunities and benefits because of their choice of a bargaining representative, and in any
other manner interfering with, restraining, or coercing its employees in the right to
self-organization, to form labor organizations, to join or assist the Union, or any
other labor organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities except
to the extent that such right may be affected by an agreement requiring membership in
a labor organization as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Upon request bargain collectively with the Union as the exclusive representa-
tive of its employees in the previously described appropriate unit, with respect to rates
of pay, wages, hours of work, and other conditions of employment and, if any under-
standing is reached embody such understanding in a signed agreement.
(b) Offer Oscar Williams, James Davis, Louis Carney, Joe R. Temple, Joseph
Green, and George Johnson immediate reinstatement to the positions they held on
January 8, 1965, when Respondent's discriminatory action against them because of
their union activity, adversely affected their employment, without prejudice to all
their rights and privileges, and make them whole for any loss of pay they may have
suffered as a result of the discrimination against them, in the manner hereinbefore set
forth.
(c) Notify the above-named employees if presently serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the National Labor Relations
Board or its agents all records necessary for the computation of backpay which may
be due under this Recommended Order.
(e) Post at its plant at Baton Rouge, Louisiana, copies of the attached notice
marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director
IIn 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 event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order," shall be substituted for the words "a Decision
and Order."
DIVINCENTI BROTHERS , INC. 161
for Region 15, shall, after being signed by a representative of the Respondent, be
posted immediately upon receipt thereof, and be maintained for a period of 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 covered by any material.
(f) Notify the Regional Director for Region 15, in writing, within 20 days from
the receipt of this Decision , what steps have been taken to comply herewith.2
-'In the event that this Recommended Order be adopted by the Board, this provision
shall read : "Notify the said Regional Director , in writing, within 10 days from the date
of this Order , what steps the Respondent has taken to comply heiewith."
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 National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL upon request, bargain collectively with the United Packinghouse,
Food & Allied Workers, AFL-CIO, as the exclusive representative of all our
employees in the unit described below, with respect to rates of pay, wages, hours
or other conditions of employment , and if an understanding is reached , embody
such understanding in a signed agreement . The bargaining unit is:
All our employees employed at our Baton Rouge, Louisiana , place of
business , including truckdrivers , warehousemen , and laborers , excluding
office clerical employees, salesmen , guards, and supervisors as defined in the
Act.
WE WILL offer immediate and full reinstatement to Oscar Williams, James
Davis, Louis Carney, Joe Temple, Joseph Green, and George Johnson and make
them whole for any loss of pay they may have suffered because of the discrimina-
tion against them.
WE WILL NOT discourage membership in United Packinghouse, Food & Allied
Workers, AFL-CIO, by discharging any of our employees because of their con-
certed or union activities , or in any other manner discriminate in regard to their
hire or tenure, or any term or condition of employment.
WE WILL NOT threaten any of our employees with loss of employment oppor-
tunities and benefits because of their choice of a bargaining representative, or
in any other manner interfere with, restrain , or coerce our employees in the
exercise of their right to self -organization , to form , join, or assist the above-named
union , or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection or to refrain
from any or all such activities.
All of our employees are free to become, remain , or refrain from becoming or
remaining , members of the above-named or any other labor organization . We will
not discriminate in regard to hire or tenure of employment , or any term or condition
of employment , against any employee because of membership on behalf of any labor
organization.
DIVINCENTI BROTHERS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military and
Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone
No. 527-6391.