Lisanti Foods, Inc.Download PDFNational Labor Relations Board - Board DecisionsJan 11, 1977227 N.L.R.B. 898 (N.L.R.B. 1977) Copy Citation 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lisanti Foods, Inc. and Robert Homwey and Donald Conklin. Cases 22-CA-6846 and 22-CA-6995 January 11, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On October 12, 1976, Administrative Law Judge Charles W. Schneider issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Lisanti Foods, Inc., West Paterson, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified: 1. Substitute the following for paragraph 1(e): "In any other manner discouraging membership in a labor organization or interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act." 2. Substitute the following for paragraphs 2(a) and (b): "(a) Offer Eugene Anderson, Donald Conklin, Joseph Fennelly, Robert Homwey, and John Placen- tino immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges." "(b) Make whole the employees listed in paragraph (a), above, for any loss of pay they may have suffered by reason of the discrimination against them in the 1 The Respondent has 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 credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 227 NLRB No. 134 manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest thereon at the rate of 6 percent per annum (Isis Plumbing & Heating Co., 138 NLRB 716 (1962))." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing the Board has found that in February and March 1976 we unlawfully refused to reinstate Eugene Anderson, Donald Conklin, Joseph Fennelly, Robert Homwey, and John Placentino to their jobs as drivers. It further found that we unlawfully threat- ened employees with loss of employment if they engaged in strikes or other activity protected by the National Labor Relations Act, solicited cessation of union membership, activity, and support with prom- ises of benefit and threats of reprisals, and interrogat- ed employees as to their union membership, support, and activities. We intend to abide by the following: WE WILL NOT discharge or refuse to reinstate or rehire employees because they join, support, assist, or affiliate with any union or because they engage in strikes or other protected concerted activities under the National Labor Relations Act. WE WILL NOT question employees whether they have joined unions or engaged in any union support or activity. WE WILL NOT threaten employees with dis- charge or any other reprisal if they join or support a union or engage in strikes or other activities protected by the National Labor Relations Act. WE WILL NOT ask employees to stop union activity, membership, or support, or promise them benefits to do so. WE WILL NOT threaten employees in connection with any union matter. WE WILL NOT in any other manner discourage membership in a labor organization or interfere with, restrain, or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL offer Eugene Anderson, Donald Conklin, Joseph Fennelly, Robert Homwey, and John Placentino immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges previously enjoyed, and make each whole for any loss of pay he may have suffered by LISANTI FOODS 899 reason of the discrimination against him, with interest at the rate of 6 percent per annum. LISANTI FOODS, INC. DECISION said Paterson plant goods valued in excess of $50,000, of which goods valued in excess of $50,000 were shipped from said Paterson plant in interstate commerce directly to States of the United States other than the State of New Jersey. Respondent is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. STATEMENT OF THE CASE CHARLES W. SCHNEIDER, Administrative Law Judge: On March -4, 1976, Robert Ifomwey i filed an unfair labor practice charge in Case 22-CA-6846, and on April-22, 1976, filed an amended charge, alleging that Lisanti Foods, Inc., the Respondent, had committed unfair labor practices within the meaning ofhe-National Labor Relations Act, as amended (29 U.S.C. 158), and on April 23, 1976, the Regional Director for Region 26 of the Board issued a complaint and notice of hearing upon such charge. On May 25, 1976, Donald Conklin filed a similar 'charge against the Respondent, and' on June 4, 1976, the Regional Director issued an amended complaint consolidating the cases for hearing. The Respondent duly filed answers to the complaint and to the amended complaint denying the commission of unfair labor practices. Upon due notice a hearing was held before me in Newark, New Jersey, on June 21, 22, and 23 and July 13, 1976. All parties appeared and were afforded full opportu- nity to participate, to introduce and to meet material evidence, and to engage in oral argument. Briefs were filed by the General Counsel and the Respondent on August 16, 1976, and have been considered. - On the-entire record in the case, the briefs, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION -Respondent, Lisanti Foods, Inc., is and has been at all times material herein a corporation duly organized under, and existing by virtue of, the laws of -the State of New Jersey. At all times material herein Respondent has maintained its principal office and place of business at Lackawanna Avenue and Royal Drive, West Paterson, New Jersey, herein called the Paterson plant, and is now, and at all times material herein has been continuously, engaged at said plant in the sale and distribution of cheese and related food products. Respondent's Paterson plant is its only facility involved in this proceeding. - In the course and - conduct of Respondent's business operations during the preceding 12 months, said operations being -representative of its operations at all times material herein, Respondent caused to be sold and distributed at I Incorrectly spelled Homwag in the original charge. 2 Eugene Anderson, Donald Conklin, Joseph Fennelly (incorrectly spelled Finley in the transcript), Robert Homwey, and John Placentino. 3 The testimony and other evidence have left me with the uneasy impression that - the record does not contain all the facts bearing on the controversy. What evidence there is, much of it in dispute, is at times H. THE LABOR ORGANIZATION Local 560, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is and has been at all times material herein , a labor organization within the meaning of Section 2 (5) of the Act. in. THE UNFAIR LABOR PRACTICES Summary The case involves a refusal by the Respondent, allegedly discriminatorily, to reinstate five truckdrivers 2 after a strike in February 1976, and related unfairTlabor practices. - - - In early January 1976, dissatisfied with working condi- tions, the Respondent's drivers signed cards designating Local 560 as their bargaining representative. Later in the month the Respondent assertedly recognized the Union voluntarily, but negotiations were deferred because of the unavailability of the union business agent. Later in January the Respondent allegedly engaged in unfair labor practices and represented to the employees that the Union had withdrawn from the plant. On February 26, 1976, having been unable in the interim to contact the union business agent as to the -situation, and the working conditions being basically unchanged, the employees reported in sick on that day, and went in a body to the union hall to get information as to the situation. There the business agent told them that they had engaged in an illegal strike and that they should return to the Respondent and request reinstatement. When the employees presented themselves for reinstatement the next morning, all but three, who were rehired, were told that the Respondent had made other arrangements to_ take care of the work. The discriminatees,have since not been rehired, although several have made further application. The Respondent denies the commission of unfair labor practices. It admits the refusal to reinstate. The defense is that the discriminatees were replaced and there have been no vacancies. In addition, and alternatively, the Respon- dent contends that the employees were not rehired because of their bad working habits, and in some cases, miscon- duct 3 - The Facts The Respondent distributes food products and related items from a warehouse in West Paterson, New Jersey, using truckdrivers. Through shop rumor the Respondent's contradictory, vague, confusing, and implausible. The findings represent, as best I can, a reconstruction of what I conclude probably occurred, based on the inherent probabilities of events, and the demeanor of the witnesses msofar as helpful in the process. Testimony contrary to the findings, though considered, has been rejected. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vice president , Anthony Lisanti, became aware , sometime prior to January 10, 1976 , of the employees' interest in union organization. The January 10 Meeting On January 10, 1976 , a meeting was held , conducted by Joseph Lisanti , the Respondent's president , and Vice President Anthony Lisanti , to discuss working conditions and the employees ' performance . Such meetings are held about every 6 months. The employees complained of long hours of work, principally because of the requirement that the employees load their trucks . Vice President Anthony Lisanti proposed a $5 a week raise for all.employees and,a $50 bonus for each employee who had a perfect attendance record in a month . The drivers responded that they would prefer that the money be used to hire a warehouse crew to assist in loading the trucks . On its part , the Respondent complained about the performance of employees : absentee- ism, tardiness, discourtesy to customers, `bad driving records, and "np-offs." 4 These conditions were apparently matters of long standing in the ` Respondent 's work force and more or less typical of all the dnvers. There is no evidence that up to the time of the instant events any employee had ever been disciplined-as a consequence, and the Respondent appears to have tolerated the condition. During this meeting, the Lisantis told the drivers that if they had "any - idea about a union coming in, forget it, they wouldn't come in." The Demand and Recognition Around January 12, 1976, Armand Castellitto, business agent of Local 560, came to the Respondent 's office and asked to see Vice President Lisanti. Told that he was not in, Castellitto informed the Respondent's receptionist that Local 560 represented the drivers , and he left a form for the Respondent to sign, voluntarily recognizing the union as bargaining representative. Upon receiving this information , Lisanti asked each employee individually whether they had signed with the union . However, each denied knowing anything about the union . Nevertheless , according to Lisanti 's testimony, from that point on he considered Local 560 to be the bargaining agent of the employees. On January 15, 1976 , Local 560 filed a petition with the National Labor Relations Board's Regional Director for certification as bargaining representative . The testimony of Salvatore Profaci, identified as the office manager of the Respondent, is that, pursuant to instructions from Vice President Lisanti, he then met with Business Agent Castel- litto and agreed to recognize Local 560 as bargaining agent, provided that Local 560 withdrew the petition for certifica- tion. According to Profaci and Castellito , the two deferred bargaining negotiations because of Castellitto 's anticipated absence from town on other business and vacation for a period of several weeks. There is no evidence that Castellit- -4 A reference to the loss of $1 ,897 from a truck of John Placentino in December 1975 and a burglary at the Respondent 's office in June 1975, of which Anthony Lisanti described himself as "suspicious," implying employ- to informed the employees that the Respondent had recognized the union. The January 24 Meeting On January 24, 1976, the Respondent held another meeting of the dnvers. At this meeting Salvatore Profaci was introduced to the employees as the person who would handle the labor relations "problems" for. the Respondent and the employees. This was the first time the drivers had seen Profaci on the Respondent 's premises , although they had seen him in the past at Roma Foods, another -food distributor. The testimony of the Respondent is that at this meeting Profaci told the employees that he had contacted the union and would negotiate with it. Profaci, in an apparent reiteration of Anthony Lisanti's statements at the January 10 meeting, complained of absenteeism , tardiness, driving records, and employee conduct toward customers, saying that such conditions would have to be improved, or "we would take steps." Profaci further testified that at this meeting the employees were undecided whether they wanted the union or whether they wanted better working conditions. Specifically, according to Profaci, the drivers indicated that "if there were better working conditions they would be happy without a union." However, the credited testimony of the employees is that at this meeting Profaci deprecated the value of the Union, stating that the Respondent could not afford the union's wage rates. With regard to the employees' reiterated dissatisfaction with working conditions, Profaci said that the warehouse crew, was a "good idea," but it would take some time to implement. Finally, he advised them to "forget about" the Union. There is no indication in the employees' testimony supporting-Profaci's asserted opinion as to the employees' uncertainty about desiring a union. The Withdrawal of the Petition for Certification In the meantime , on January 22, 1976, Business Agent Castellitto had requested the Regional Director to with- draw Local- 560's petition for certification, stating as a reason therefor that "the Company has agreed to meet with the Local Union." On January 28, 1976, the Regional Director,wrote to the parties stating: "This is to advise that I have approved withdrawal of the above case." There • is no evidence that Business Agent Castellitto advised the employees of the withdrawal of the petition. The January 31 Meeting - Three days later, on January 31, 1976, the Respondent held another meeting of the drivers. At this meeting, Profaci told the drivers that the warehouse crew which the drivers desired would be installed. He then passed out documents which he had prepared for the drivers' signatures. These documents stated that the drivers no longer wished to be represented by the union and were withdrawing their authorizations, and contained the drivers' agreement to the ee involvement . However, there is no evidence to substantiate any such implication LISANTI FOODS 901 $5 raise, the $50 bonus, and the establishment of the warehouse crew. Profaci's testimony is that he was "negoti- ating" with the men in accordance with his understanding of their wishes, since "you have to run a business." Homwey, the spokesman for the men, asked for the weekend to think it over, but Profaci refused. The men thereupon unanimously refused to sign the agreement and the meeting dispersed on an ambiguous note, Profaci telling the employees that if they did not sign the agreement they could "leave." 5 After the January 31 meeting, Profaci took driver John Placentino , who had been on delivery and had missed the meeting, aside and asked Placentino if he was "with the Lisantis." Placentino replied that he was "with the guys." Profaci then said that there was not going to be a union there and asked-Placentino to leave the premises. I interpret Profaci's statements to the employees as a declaration that if they did not sign the agreement they were to leave the Respondent's employment. Though several of the employees testified that they were not threatened by Profaci, I consider his actions to constitute a threat, however empty: a conclusion I deem reinforced by the events at the subsequent meeting of February 2. The February 2 Meeting On the next work day, Monday, February 2, Profaci and the Lisantis called the employees into the office one by one. They told the employees that they (the employees) were insistent about getting the union in and did not seem satisfied with the warehouse crew arrangement, which Anthony Lisanti asserted they had agreed to. Profaci again presented the January 24 document to the employees, this time stating that the union was "unnecessary." He then displayed a letter, on an NLRB letterhead, which he asserted constituted proof that the union was withdrawing from the shop. The employees, in what seems to have been a confused atmosphere, apparently accepted his interpreta- tion of the letter.6 When the employees indicated some uncertainty and skepticism, Profaci said, "If you don't like it here you can leave . If you wish to stay, . . . a hand shake will be sufficient.... What are you going to do; are you going to stay on? If not, leave." Profaci told Joseph Fennelly that there was "not going to be any union" and that if Fennelly supported the union he was working against the Respon- dent and could "leave." None of the employees would sign the agreement. Profaci reiterated that they could leave or work. All then stated that they wished to work and the matter concluded with Profaci shaking hands with each driver, and in his words, "we let them go back to work." 5 The Respondent's testimony, contrary to the testimony of the drivers, is that Profaci also told the drivers he would continue to negotiate with the union. Profaci also denied the employees' testimony that the forms, which he testified he later destroyed, contained a repudiation of the union. I credit the testimony of the employees. 6 The only letter in evidence from the NLRB respecting withdrawal of the petition is the Regional Director's letter of January 28, which is not susceptible of the interpretation placed on it by Profaci. This is the letter Profaci testified he displayed. The testimony of Eugene Anderson, to whom Profaci showed the letter, contrary to Profaci's is that it was not the Regional Director's January 28 letter. In ordinary circumstances, the testimony of During this time, the employees were unable to get in touch with Business Agent Castellitto to learn the situation, despite repeated efforts to contact him. They were not advised by Castellitto that the Respondent had recognized the union, though the Respondent told them that it had, and they were not told by Castellitto of the withdrawal of the petition. We have seen that Castellitto advised Profaci that he would be out of town for a number of weeks on vacation and other matters. However, the employees were not so advised. Being unable to reach Castellitto, and uneasy at the Respondent's statements and actions concerning the union and working conditions, on the morning of February 26, 1976, all the employees, except Donald Conklin, called in sick, and instead of reporting for work went to the union hall in a body to see Castellitto. When they arrived at the hall they met Profaci coming out of the building.7 The drivers asked to see Castellitto and were told to wait in the street. After about a half hour Castellitto appeared and castigated the drivers for engaging in an "illegal strike," said that they could be fired for it, asked "who's bright idea was this," and called the drivers "stupid." He told them to return to the plant to try to get their jobs back. With respect to Profaci, Castellitto told the employees that he did not know who Profaci was or why he was at the union hall. Donald Conklin worked on February 26. At the end of that day the Lisantis insisted on a commitment from Conklin as to whether he would be in the following day. Conklin asked to be allowed to contact the men and advise the Respondent that night as to what he would do. However, the Lisantis insisted on an immediate answer and told Conklin that if he did not come in the following morning he "would be fired along with the rest of the men." Conklin did not work the next day, in support of the men. The Respondent normally requires employees to pick up their driving assignments the preceding evening. The employees who called in sick on Thursday morning, February 26 did not, for a variety of stated reasons, pick up their driving assignments on that afternoon for Friday February 27. February 27; The Requests for Reinstatement On the following morning, February 27, the drivers presented themselves at the Respondent's premises for work but were told that they were not needed and to return at 4 p.m. for their pay. When the employees returned at 4 o'clock all but three were told by Profaci that this was the last "shenanigans they would pull," that the Respondent had no work for them, that it had made other arrangements, and if it had a need for their services it would call them. Three: Vallardi, Anderson and the employees would seem incredible. However, the affidavit of Vice President Anthony Lisanti given March 30, 1976, provides corrobo- ration for their testimony Thus, in his affidavit, Lisanti said that after the January 24 meeting "we received a letter from the Labor Board in which it was intended to mean that the union was out of the picture" Lisanti's testimony as to the meaning of the statement in the affidavit is that "it didn't mean the union; it meant the Labor Relations Board " Whatever Lisanti now says he meant, it is clearly not what Profaci said. I credit the employees' testimony. 7 Profaci and Castellitto testified that Profaci came to Castellitto's office and advised him of the men's action in not reporting for work. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Buckley, and Ostergard, were permitted to go back to work.8 None of the others have been recalled. Conclusions The facts present a picture of a somewhat ambivalent attitude in the Respondent: a desire to avoid unionization of its employees on the one hand, and an apparent eagerness to embrace the Union on the other. Thus, while it was telling its employees that union organization would be fruitless, the Respondent was also recognizing the Union without any showing that it represented any of the employees. Indeed, Vice President Lisanti's interrogation of the employees produced no one who would admit to union membership. What may have motivated the Respondent in these seemingly contradictory courses of action is not disclosed by the record, though the history of events after the asserted recognition suggests that the Respondent did not anticipate any militant action from the Union thereaf- ter. The reason for this must be left to speculation. In any event, the Respondent's attempts to circumvent the employees' self-organizational efforts prior to February 26 were obviously a factor in producing the frustrated state of mind which resulted in the "sickout." For while the employees were concerned at the inaction of Local 560 and their inability to communicate with it, the Respondent's demonstrated opposition to a union, its efforts to deal directly with the employees, and the continuance of existing working conditions, were contributing factors to the deci- sion to go to the union hall in an effort to get information as to the situation. Thus, the sickout was a concerted action for mutual aid and protection occasioned, at least in part, by the Respondent's unfair labor practices. The employees were therefore unfair labor practice strikers and normally entitled to reinstatement upon application, whether re- placed or not. Those who were denied reinstatement were thus subjected to additional unfair practices, unless there was valid reason for denial of reinstatement other than the fact that they had been replaced, a possibility adverted to hereafter. However, even if the sickout was not a result of unfair labor practices and constituted an economic strike, it was lawful concerted action, and the discriminatees were normally entitled to reinstatement unless the evidence establishes that there were no positions available for them; and the burden of such establishment is on the Respondent. Fleetwood Trailer Co., 389 U.S. 375 (1967).9 _ The Respondent has not established permanent replace- ment of the drivers or the nonexistence of vacancies. Indeed, the evidence affirmatively establishes the contrary. 8 Profaci testified that he reinstated these three for several reasons: they "felt enough about their jobs to discuss with us why they felt they shouldn't be let go"; Ostergard and Vallardi had been employed for 5 and 7 years, respectively ; and Buckley owed the Respondent money. 9 ".. , proof [by the General Counsel as to the availability of vacancies ] is not essential to establish an unfair labor practice It relates tojustification, and the burden of such proof is on the employer." Fleetwood fn 4. io Thus, according to Profaci, he used President Joseph Lisanti and Vice President Lisanti as drivers, borrowed two drivers temporarily from Roma Foods, hired two umdentified persons through one of Profaci's cousins, and finally one Pete Canunachio, not otherwise identified. The two persons secured by Profaci's cousin were replaced by Valardi, Buckley, and Ostergard. This leaves only one of the seven persons , Cammachio, as a possible permanent replacement , and there is no evidence as to how long he Thus, the record indicates that there were nine strikers. Sal Profaci's testimony is that he dispatched "seven or eight trucks" on February 26. That left at least one driving position vacant, which any of the nine drivers could have filled. Thus each of the strikers was denied reinstatement to an available job. However, Profaci could identify no more than seven persons who drove that day, of whom no more than one could be argued to be a permanent replacement.io But even if the strikers had been replaced, I find that they were refused reinstatement because of their concerted activity and not for any other reason. Thus, Donald Conklin and Robert Homwey were denied reinstatement for reasons I find to be discriminatory. On March 6, 1976, Conklin, who was told by Profaci that he would be taken back if the Respondent had a place for him (and concerning whom Profaci testified to the same effect), applied again without success, and was told by the Lisantis that they "would never allow a union in the plant." As we have seen , there were vacancies, and the Respondent asserts no reason other than a lack of vacancies for not reinstating Conklin. And a few weeks after February 26 Homwey unsuccessfully asked Lisanti for his job back. Lisanti, in refusing, told Homwey, in Homwey's words that, "if we didn't proceed with the union, we probably would have had our jobs." Other evidence indicates that it was participation in the sickout which prompted the refusal to reinstate. Thus, Union Business Agent Castellitto, scarcely a militant supporter of the discriminatees, and assuredly not hostile to the Respondent, testified that after the walkout, Profaci did not want to take the discriminatees back, "Because of the walkout." Additionally, according to Castellitto, Profaci suggested at one point that he would consider reinstating the men and give them a wage increase, provided "they forget about the union." Anthony Lisanti testified that the walkout "put the last straw on the camel's back." In the context of the other evidence, I interpret these actions as declarations that participation in the sickout was the precipitating cause of the Respondent's refusal to reinstate. In addition, Profaci testified that he did not know whether he would reinstate the employees if he had a opening." All these factors lead me to the conclusion and fording that the Respondent refused to reinstate the discriminatees because of their concerted activity and not for any other reason. That finding essentially disposes of the Respondent's apparent contention that some of the employees were not reinstated because of improper conduct. This assertion cannot apply to Conklin and Fennelly, whom Profaci remained on the payroll The Respondent has thus not shown that any of the strikers were permanently replaced, or that there was no position which they could have filled. it Thus, his testimony: Q. A. Q. A. Q A. You would have taken them back if you had an opening? If I had an opening, I would have to consider that You would consider it? I really would But you don't know whether you would? That is right. At this time, I really don't know. However, Profaci went on to testify that he would take back Conklin and Fennelly if he had work. LISANTI FOODS stated he would be willing to reinstate . That leaves Homwey, Anderson , and Placentmo to whom it could be applicable . Without detailing the evidence , suffice to say that I find the Respondent 's contentions as to asserted misconduct as a ground for not reinstating employees to be mere afterthoughts , not established by the evidence , insub- stantial in character , and pretexts- in any event, not matters which were factors in the denial of reinstatement. I therefore conclude that the Respondent 's assertions re- specting misconduct as the reason for, or as a bar to, reinstatement are not sustained . However, even if it were found that such things were operative , they were only so in part, and the substantial motivation and precipitating factor was the discriminatees ' protected concerted activity. Under such circumstances , the mere existence of valid grounds does not dissipate the illegality of conduct not motivated by them . As the Board said in the case of Charles Edwin Laffey, d/b/a Consolidated Services, 223 NLRB 845 (1976): It is well established that a discharge motivated in part by an employee 's exercise of Section 7 rights is a violation of the Act even though another valid cause may also be present. I therefore conclude from the evidence that the Respon- dent : ( 1) threatened employees with loss of employment if they engaged in protected concerted activities ; (2) solicited cessation of union membership , activity , and support with promises of benefit and threats of reprisal ; (3) interrogated employees as to their union membership , support and activities ; and (4) discharged and refused to reinstate the discrimmatees , Anderson , Conklin , Fennelly , Homwey, and Placentino because they engaged in concerted activities protected by the Act. The Respondent thereby engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case , and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 1 2 Lisanti Foods , Inc., West Paterson , New Jersey, its officers , agents , successors , and assigns , shall: 1. Cease and desist from: 11 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations 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 thereto shall be deemed waived for all purposes 903 (a) Threatening employees with loss of employment if they engage in strikes or other protected concerted activi- ties. (b) Soliciting cessation of union membership, activity, and support with promises of benefit or threats of reprisals. (c) Interrogating employees as to their union member- ship, support, or activities. (d) Discharging or refusing to reinstate employees be- cause they engage in strikes or other concerted activities protected by the Act. (e) In any other manner discouraging membership in a labor organization or interfering with , restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Eugene Anderson , Donald Conklin, Joseph Fennelly , Robert Homwey, and John Placentino immediate reinstatement to their former positions or, if such positions are no longer available , to substantially equivalent posi- tions , without prejudice to their seniority or other rights and privileges , in accordance with the Board 's customary remedial policies. (b) Make Anderson , Conklin , Fennelly, Homwey, and Placentino whole for any loss of earnings suffered by reason of the discrimination against them , in accordance with the Board 's usual remedial policies, including interest. (c) Preserve and, upon request , make available to the Board or its agents , for examination and copying, all payroll records , social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay and the rights of reinstatement due under the terms of this Order. (d) Post at its place of business copies of the attached notice marked "Appendix ." 13 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's authorized repre- sentative , shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- mg all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. i3 In the event the Board 's Order is enforced by a Judgment of the United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " Copy with citationCopy as parenthetical citation