Pride Candy and Tobacco Co.

National Labor Relations Board - Board Decisions

Aug 14, 1969

178 N.L.R.B. 67 (N.L.R.B. 1969)

PRIDE CANDY AND TOBACCO CO 67
Pride Candy and Tobacco Company and Richard
Ernst Case 29-CA-1500
August 14, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On May 8, 1969, Trial Examiner Thomas S
Wilson issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision
Thereafter, the Respondent filed exceptions to the
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
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 the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondent, Pride Candy and Tobacco Company,
Bayshore, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified
1 In place of the present paragraph 1(a),
substitute the following
" (a) Discouraging appeals to the
collective-bargaining representative having as their
purpose the submission, presentation, and processing
of grievances or otherwise policing the terms of a
collective-bargaining agreement by discharging,
refusing to reinstate, or in any other manner
discriminating against any of its employees in regard
to their hire or tenure of employment, or any term
or condition of employment "
2 Replace the period at the end of the present
paragraph 1(c) of the Trial Examiner's
Recommended Order, and at the end of the last
indented paragraph of the notice attached to the
Trial Examiner's Decision, with a comma and add
except to the extent that such right may be
affected by an agreement requiring membership in
a labor organization as a condition of
employment as authorized in Section 8(a)(3) of
the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959
3 Add the following as paragraph 2(b), and
reletter the following paragraphs accordingly
"(b) Notify the above-named employee if
presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces "
4 Add the following as the second indented
paragraph of the Appendix
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the
United States of his right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge
from the Armed Forces
5 Add the following paragraph as the third
indented paragraph of the notice attached to the
Trial Examiner's Decision
WE 'WILL NOT discourage appeals to the
collective-bargaining representative having as their
purpose the submission, presentation and
processing of grievances or otherwise policing the
terms of a collective-bargaining agreement by
discharging, refusing to reinstate, or in any other
manner discriminating against any of our
employees in regard to their hire or tenure of
employment, or any terms or conditions of
employment
TRIAL EXAMINER'S DECISION
The Respondent excepts to the Trial Examiners credibility findings It
is the Board s established policy however not to overrule a Trial
Examiners resolutions with respect to credibility unless as is not the case
here the preponderance of all the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products Inc 91 NLRB
544 enfd 188 F 2d 362 (C A 3)
'In its exceptions to the Trial Examiners Decision the Respondent
contends for the first time that the Board should defer to an alleged
settlement of a grievance concerning the discharge of the Charging Party
The record clearly indicates that the conferences asserted as a settlement
did not meet the standards set forth in Spielberg Manufacturing Company
112 NLRB 1080 Accordingly apart from any other considerations we
find no merit in this contention
STATEMENT OF THE CASE
THOMAS S WILSON, Trial Examiner Upon a charge
duly filed on October 28, 1968, by Richard Ernst, an
individual, hereinafter referred to by the name or as the
Charging Party, the General Counsel of the National
Labor Relations Board, hereinafter referred to as the
General Counsel' and the Board, respectively, by the
This term specifically includes the attorney appearing for the General
Counsel at the hearing
178 NLRB No 16
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for Region 29, Brooklyn , New York,
issued its complaint dated December 31, 1968, against
Pride Candy and Tobacco Company hereinafter referred
to as the Respondent The complaint alleged that
Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(l) and (3) and 2 (6) and (7) of the Labor
Management Relations Act, 1947, as amended, herein
referred to as the Act
Respondent duly filed an answer admitting certain
allegations of the complaint , but denying the commission
of any unfair labor practices
Pursuant to notice , a hearing thereon was held before
me in Brooklyn, New York , on February 20, 1969 All
parties appeared at the hearing , were represented by
counsel , and were afforded full opportunity to be heard, to
produce and cross-examine witnesses , and to introduce
evidence material and pertinent to the issues At the
conclusion of the hearing oral argument was waived A
brief was received from General Counsel on March 12,
1969 No brief was received from Respondent
Upon the entire record in the case and from my
observation of the yitnesses , I make the following
f FINDINGS OF FACT o,
I ITHE Bt j iNESS OF RESPONDENT
Pride Candy and Toba co Company is , and has been at
all times material _her-" a corporation duly organized
under, and existing by virtue of, the laws of the State of
New York At all times material herein, Respondent has
maintained its principal office and place of business at 137
Fourth Avenue , in the town of Bayshore , County of
Suffolk, State of New York , herein called the Bayshore
warehouse , where it is engaged in the sale and distribution
at wholesale of candy and tobacco products and other
related products During the past year , which period is
representative of q s annual operations generally,
Respondent , in the course and conduct of its business,
purchased and caused to be transported and delivered to
its Bayshore warehouse , candy , tobacco products, and
other goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000
were transported and delivered to its Bayshore warehouse
in interstate commerce directly from States of the United
States other than the State of New York
The complaint alleged , the answer admitted , and I find
that Respondent is and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2 (2), (6), and (7) of the Act
II THE UNION INVOLVED
Confectionery and Tobacco Drivers and
Warehousemen, Local 805, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is and has been at all
times material herein a labor organization admitting to
membership employees of Respondent
III THE UNFAIR LABOR PRACTICES
A The Facts
Robert Schwartz has been in the candy and cigarette
business since the age of 10 when he began working on the
delivery truck for a company owned by his father When
his father sold the business, Schwartz became the driver of
delivery truck for the purchaser During his last year of
employment as such driver, Schwartz had Richard Ernst
on the truck with him as his assistant
In December 1967 Schwartz founded Respondent of
which he is the president and owner At that time Ernst
became Respondent's delivery driver
On March 21, 1968, Respondent recognized the Union
as the collective-bargaining agent for its employees and
executed the contract between the Union and the
Employers Association of which Respondent was a
member The contract, which contained a union-security
clause, was by its terms to expire on September 21, 1968
Prior to that the Union notified Respondent that the
contract would remain in full force and effect until the
succeeding contract negotiations were completed 2
During the summer of 1968 Respondent appears to
have operated its business with Schwartz and his wife,
also his secretary, handling the orders by telephone and
making up such orders, two route salesmen, Schwartz'
cousin, a high school student, assisting with the making up
of orders, a warehouseman, and Ernst making deliveries 5
days a week and in his spare time also making up orders
Schwartz himself described Respondent's relationship
with Ernst as follows
A Mr Ernst, when he was working for me on the
truck, was a very satisfactory worker, never had a
problem And the first six months I'd say, working on
the truck as a driver we didn't have any problem either
He was well liked There was really no great problems
at all It's just in the last couple of morths when he
seen this fellow, Teddy, work, he felt that Teddy
shouldn't be helping me at all, the heck with the
customers, he wanted his overtime
Also, according to Schwartz, the trouble at the
Respondent's began when Respondent hired a new
replacement salesman whose prior employer had informed
Schwartz prior to hiring that this salesman was "a union
instigator " According to Schwartz
THEWITNESS I don't know I think it's because I had
another salesman working for me that was giving Ernst
some information, I think, on Union contracts and
what he's entitled to, and he wanted Ernst to get
everything he had coming to him, and there was a few
little things that I don't think I was giving him that he
[Ernst] wanted
On September 16, Monday, Schwartz asked Ernst to
make Respondent's Saturday deliveries and Ernst agreed
to do so '
On that same day Ernst for the first time say"Teddy"
in the f plant making up an order and learned in
conversation that he was the manager of a neighboring
7-11 Store and had been purchasing supplies from
Respondent for several months
On the afternoon of September 17 Ernst returned to the
warehouse after making some deliveries expecting to find
some 14 to 17 further deliveries to make There were
none Maureen Schwartz told him that there were no
more deliveries to be made that day and asked that he
drop off a bill on his way home Bob Schwartz was not at
the warehouse Maureen stated that Bob was making the
deliveries When he arrived at home Ernst telephoned the
The succeeding contract was actually executed by Respondent on
October 23 1968
'Saturdays had been Ernst s day off The Saturday deliveries apparently
had been made by a nonunion driver named Phil
'Teddy s last name was never given
PRIDE CANDY AND TOBACCO CO. 69
plant telling Maureen that he did not see how it was
possible for Bob to have made the deliveries as he did not
have a truck or a car available to him and asked to have
Bob call him back. When Bob Schwartz called back he
told Ernst that Teddy had made the other deliveries that
day, that he was breaking Teddy in as a salesman, and
that Teddy had -only made those deliveries to help him
out that day because we were running behind." Ernst
complained that he did not want a nonunion man making
deliveries because this was cutting into Ernst's pay.
Schwartz stated that "this was not going to be a normal
practice, that he had only done the one day and it would
not be repeated." Ernst replied that "if it would not be
repeated, it was all right but that otherwise I will have to
call the Union and complain about it."
Then on Thursday, September 19, Ernst returned to the
warehouse about 2 p.m. after completing his deliveries and
was put to making up orders. He discovered that orders
already made up were placed in two separate piles. He
inquired as to why there were two separate piles and was
told by Bob Schwartz that he, Schwartz, was going to
deliver one pile himself. Soon thereafter Teddy came into
the warehouse. Thereupon Ernst told Schwartz that he
realized that Teddy was going to deliver the second pile of
orders in his own Ford Econoline truck because Schwartz
had neither truck nor car in which to make the deliveries.
Schwartz said that ".if he [Schwartz] wanted Teddy to
deliver them, Teddy would deliver them, that this was his
company and he would do as he liked." Ernst threatened
that he "would call the Union because he did not want
this man taking my work away from me." Schwartz
replied that, if Ernst called the Union, " I am going to
fire you." Ernst said that he was going to call the Union.
Ernst left the warehouse and called the union hall but
was unsuccessful in getting Business Agent Ornstein as he
was out of the office. Ernst returned to the warehouse and
proceeded to make the deliveries of both piles of orders.
On Friday, September 20, Ernst succeeded in reaching
Ornstein by telephone and explained his problem. Ornstein
said that the negotiations of the new contract were on and
that he would take care of the problem as soon as
possible.
Subsequently on Friday, September 20, Schwartz
informed Ernst that he did not want Ernst working on
Saturday as he was going to make the deliveries himself
using the truck. Ernst answered that he had found out
that Schwartz did not drive the truck on Saturdays but
had a person by the name of Phil driving the truck and
making the deliveries which Ernst complained was not
right or in accord with the union contract and that Ernst
should be making the deliveries. Ernst threatened that he
would call the Union if Schwartz insisted on Phil's
making the deliveries. Schwartz replied that "this was his
company, he would run it, that the Union contract meant
nothing to him, it was nothing but a piece of paper." He
also stated he had no intention of abiding by the contract
and again threatened to fire Ernst if Ernst telephoned the
Union.
When Ernst reported for work on Monday, September
23, Schwartz told him that he, Schwartz, realized that
Ernst had called the Union and said he thought Ernst was
a "wise guy" for calling them and that he, Schwartz, was
going to fire Ernst. Ernst replied that, according to the
union contract, Schwartz would have to give him 2 weeks
written notice if he wanted to discharge him and would
also have to give the Union 2 weeks written notice with
the statement of the causes of the discharge in accordance
with the contract. Schwartz replied, "Well, we'll see."
With that exchange completed, Ernst went about his
business of making deliveries.
Sometime on the afternoon of September 27,5
Schwartz, who testified that he was out making a special
delivery of a telephone order, came upon Ernst sitting
reading a newspaper and drinking a cup of coffee in
Respondent's truck parked on Mattatuck Road. Schwartz
stopped and asked Ernst what he was doing. The answer
was that Ernst was taking the remainder of his lunch
hour. Schwartz asked if he had any more deliveries to
make. Ernst replied that he had two more.
Schwartz thereupon left and proceeded to the nearest
telephone where he called the Union and reported that
" This fellow is costing me a lot of money" and that he
had caught Ernst "goofing off." According to Schwartz,
the union official told him to send the Union a letter
notifying it of Ernst's suspension and to suspend him as of
Friday night.
When Ernst finished his two deliveries he returned to
the warehouse and was informed by Schwartz that he had
been ; "suspended" for 1 week. When Ernst inquired as to
the cause of the suspension, Schwartz stated, "You were
parked there and you were goofing off on the job." Ernst
asked what a suspension meant and asked to see the union
contract. Schwartz told Ernst, " I called the Union and
told them I was going to suspend you." Ernst agreed to
accept the suspension in accordance with the terms of the
contract.
On the day of September 27 Respondent wrote the
Union as follows:
This is to inform you that we are suspending Richard
Ernst, truck driver, as of Friday, September 27, 1968 at
6 p.m. This was done as per Mr. Daniel Ornstein's
instructions by phone on Sept. 27, 1968 at 4:30 P.M.
On Monday, September 30, Ernst got in touch with
Ornstein by telephone and explained what had happened.
At Ornstein's request Ernst attended a union meeting that
night and saw Ernst personally about the matter. Ornstein
told him to call back on October 3.
On October 3 Respondent sent the following letter to
the Union:
Please be advised that we have this day, Wed.
October 3, 1968, discharged Richard Ernst, driver for
lack of business.
Schwartz testified that the Union had instructed him to
use the excuse of " lack of work" in making the discharge
of Ernst. There is no proof in this record, other than the
fact that Respondent had at some time unspecified lost
one customer, that Respondent's business had fallen off.
When Ernst got in touch with Ornstein on October 3,
as requested, Ornstein told him that Schwartz had
explained to him that he was only a small business man,
could not afford to pay a union driver or to pay overtime,
and that he was going back to making deliveries himself
and wanted to lay Ernst off because he could not afford a
union driver. According to what he was told by Ornstein,
Schwartz had offered to pay Ernst 1 week's salary if Ernst
would agree. Ernst agreed on the condition that Schwartz
could not afford a union driver. Ernst subsequently
received 1 week's pay from Schwartz.
Within 2 or 3 weeks thereafter, however, Ernst
discovered that Schwartz had hired a full-time driver to
make the deliveries previously made by Ernst. There is no
question but that Schwartz was not making the deliveries
himself.
'Ernst testified that it was about 3:30 p.m. whereas Schwartz testified
that it was 4:20 p.m.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ernst has never been reinstated.
B. Conclusions
As found above, Schwartz himself testified, after saying
that Ernst was a "very satisfactory worker, never had a
problem," that "it's just in the last few months when he
seen this fellow, Teddy, work, he [Ernst] felt that Teddy
shouldn't be helping me at all, the heck with the
customers, he wanted his overtime."
This testimony confirms perfectly that given by Ernst.
The reference in the Schwartz testimony is to the identical
event which Ernst testified triggered his trouble at
Respondent's, namely, the September 16 employment of
Teddy with Ernst's prompt attempt to police the
collective-bargaining agreement together with Ernst's
threat to call in the Union, a development which Schwartz
admittedly did not want and resented. Despite having
executed the agreement, that contract was to Schwartz
"nothing but a piece of paper." Admittedly Schwartz
intended and desired to handle his employment problems
by himself without let or hinderance from the Union or
from the collective-bargaining agreement. When Ernst
carried out his threat and the Union did enter the picture,
Schwartz referred to Ernst as a "wise guy." Eleven days
after the problem arose in this manner this "very
satisfactory employee" was suspended and then
discharged. It is quite clear from all the facts that the
Ernst's threat, and subsequent fulfillment of that threat,
constituted a part, at least a substantial part, of the
motivation behind the discharge of Ernst on September
27.6
I make the above findings upon a consideration of only
the undenied testimony of both Ernst and Schwartz. The
Schwartz' denial that he ever made a threat to discharge
Ernst if he went to the Union with the existing problem
has thus played no part in the above determination. In
fact, if made, this threat to discharge would only be
corroborative of the admitted reaction of Schwartz to the
Ernst's grievance over his own loss of work, the
employment of nonunion drivers, and the alleged
violations of the collective-bargaining agreement.
However, as the threat to discharge is the sole disputed
testimony in this record and is material on the question of
motivation, this conflict in testimony should be resolved
although it is not determinative of the question of
motivation. Ernst impressed me as a witness candidly
telling the truth whether favorable or not. On the other
hand, Schwartz impressed me as a witness telling the truth
most of the time but seeking ways, means, and/or excuses
to obliterate the rather patent discrimination he had
practiced upon Ernst. In short I credit Ernst and find that
Schwartz did make the threat to fire in order to keep the
problem out of the hands of the Union as Schwartz
desired. This was a clear violation of Section 8(a)(1) of
the Act.
In addition Schwartz came up with a number of
matters which he contended "caused" the discharge of
Ernst: (1) the afternoon lunch hour on September 27; (2)
alleged shortages in deliveries ; (3) alleged stealing of two
one-half cartons of cigarettes; (4) Respondent's inability to
afford a full-time driver; and (5) "lack of work."
Examination proves each of these to be unproven or
`Despite the verbiage used by Schwartz on September 27 and in the
letter dated September 27, 1 am convinced and, therefore, find that
Respondent discharged Ernst on September 27 although paying him until
October 3 when the discharge was finalized in words.
untrue.
There was no denial of the fact that it was normal
practice for the driver to split his lunch hour, half in the
morning and half in the afternoon. In fact it is undenied
that Ernst learned this practice from Schwartz. Such was
normal, unobjectionable procedure-until Schwartz chose
to use it as an excuse to "suspend" Ernst on September
27.
Unfortunately shortages in deliveries is also a normal
occurrence. The causes for such shortages are almost
without number. Among them, of course, would be
carelessness in making up the orders, merchandise lost
enroute due to careless tying up the packages, and/or
thefts by the drivers. Allegedly these shortages, according
to Schwartz, increased about the time of Teddy's
employment. Actually there is no evidence proving that
they did or did not, in fact, increase. As shown below,
Schwartz apparently did not intend to impute dishonesty
to Ernst. It is undenied, in any event, that Respondent
trusted Ernst sufficently to have him make bank deposits
for and on behalf of Respondent running into the
thousands of dollars.
Then there was an incident testified to by Schwartz
that, after the employment of Teddy, when one Jerome
(Jerry) Seidenberg told Schwartz that he, Jerry, had seen
Ernst take two one-half cartons of cigarettes in the plant.
Schwartz' testimony, of course, was rank hearsay because
Jerry did not testify. Both Schwartz and Ernst testified,
without objection except from this Trial Examiner, to
almost diametrically oppose conversations each had
allegedly had with Jerry thereafter. In the first place such
hearsay testimony is not probative on the question of the
honesty of Ernst. But this conflict arising from this
hearsay testimony appears to have been resolved in
Ernst's favor by the fact that Jerry failed to testify, that
Maureen Schwartz and Teddy also failed to corroborate
the Schwartz' hearsay testimony even though both
allegedly had been present during the Schwartz-Jerry
conversation as well as the fact that following these
alleged conversations, Jerry suddenly ceased working for
Schwartz. And finally Schwartz himself disposed of
whatever question existed when he testified, "I had no
reason to believe he, [Ernst] was dishonest. He was honest
to the best of my knowledge ...."
Schwartz' next reason for the discharge, Respondent's
alleged inability to pay for a driver, was proved patently
false when Respondent hired a replacement promptly after
discharging Ernst.'
Finally the "lack of work" excuse given by
Respondent in its letter of October 3 to the Union was
also proved false by the prompt employment of a driver
after the discharge of Ernst.
As the Board took occasion to remind me not too long
ago,' the law is now well settled that even a rank-and-file
employee is engaging in protected concerted activities
when he attempts to police or enforce the terms of the
collective-bargaining agreement then in force between his
bargaining representative and his employer and that said
employer violates Section 8(a)(1) and (3) if it discharges
that employee for engaging in such protected concerted
'Schwartz also was not telling the truth when he allegedly told the Union
that he , Schwartz , was going to make the deliveries thereafter himself. But
this testimony is also rank hearsay because Ornstein to whom the
statement was allegedly made prior to October 3 did not testify.
'N.L.R.B. v. Interboro Contractors , Inc., 388 F.2d 495 (C.A. 2), enfg.
157 NLRB 1295.
PRIDE CANDY AND TOBACCO CO.
activities.' This is exactly what occurred in the instant
case.
I am convinced, and therefore, conclude that on
September 27, 1967, the Respondent discharged Richard
;Ernst because of his union membership and activities and
because of his efforts to police the collective-bargaining
agreement existing by and between Respondent and the
Union as well as because of his threat and its fulfillment
to take Respondent's alleged violations of that agreement
to the Union. Such discharge is in violation of Section
8(a)(3) and (I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations
described in section 1, above, have a close, intimate, 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.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I will recommend that Respondent
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent discriminated in regard
to the hire and tenure of employment of Richard Ernst by
discharging him on September 27, 1968, because of his
membership in and activities on behalf of the Union and
particularly for his action in calling in the Union to police
the existing collective-bargaining agreement between
Respondent and the Union despite Respondent 's objection
thereto, I will recommend that Respondent offer to
Richard Ernst immediate and full reinstatement to his
former or substantially equivalent position , without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay he may have
suffered by reason of said discrimination against him by
payment to him of a sum of money equal to that which he
would have earned from the date of the discrimination
against him to the date of his reinstatement , less his net
earnings during such period (excluding the period between
September 27 and October 3, 1968 ), in accordance with
the formula set forth in F. W. Woolworth Company, 90
NLRB 289, with interest thereon at 6 percent per annum.
Because of the variety of the unfair labor practices
engaged in by Respondent , I sense an opposition by
Respondent to the policies of the Act in general, and
hence I deem it necessary to order Respondent to cease
and desist from in any manner infringing upon the rights
guaranteed its employees in Section 7 of the Act.
Upon the foregoing findings of fact and upon the entire
record , I make the following:
CONCLUSIONS OF LAW
1. Confectionery and Tobacco Drivers and
Warehousemen, Local 805, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
71
2. By discriminating in regard to the hire and tenure of
employment of Richard Ernst by discharging him . on
September 27, 1968, because of his membership in and
activities on behalf of the Union and particularly because
he threatened to, and did, call in the Union to police the
collective-bargaining agreement existing by and between
Respondent and the Union, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
3. By threatening Richard Ernst with discharge if he
should call the collective-bargaining agent of the
employees in to police its collective-bargaining agreement
with Respondent, Respondent has engaged in interference,
restraint, and coercion in order to discourage its
employees from engaging in union membership and
activities in violation of 8(a)(1) of the Act_
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, I
recommend that Pride Candy and Tobacco Company,
Bayshore, County of Suffolk, State of New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating in regard to
the hire and tenure of employment or of any term or
condition of employment of its employees because of their
membership in or activities on behalf of the Union herein
or of any other labor organization of their choice.
(b) Threatening any of its employees with discharge in
the event such employee should call upon his bargaining
representative to police the collective-bargaining
agreement by and between Respondent and that
representative in violation of Section 8(a)(l) of the Act.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed them by the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Richard Ernst immediate and unconditional
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
earnings he may have suffered by reason of the
discrimination against him in the manner set forth in the
section of this Decision entitled 66 The Remedy," with
interest thereon at 6 percent per annum.
(b) 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 amount of backpay due
under the terms of this Recommended Order.
(c) Post at its plant in Bayshore, New York, copies of
the attached notice marked 66 Appendix."' ° Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive 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 other material.
"In the event that this Recommended Order is adopted by the Board,
'Price Brothers Company, 175 NLRB No. 47 the words "a Decision and Order" shall be substituted for the words
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
IT. IS FURTHER RECOMMENDED that, unless Respondent
notifies said Regional Director within 20 days from the
receipt hereof that it will take the action here
recommended, the Board issue an order directing
Respondent to take the action here recommended.
" the Recommended Order of a Trial Examiner" in the notice. In the
further event that the Board 's Order is 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."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director,
in writing , within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL offer Richard Ernst his former or
substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and WE WILL
pay him for any loss of pay he may have suffered
because of our dicrimination against him together
with interest ; thereon at 6 percent per annum.
WE WILL NOT threaten any of our employees with
discharge in the event that they call in their chosen
bargaining representative to police the
collective-bargaining agreement by and between
ourselves and that bargaining representative.
WE WILL NOT in any manner interfere with, restrain,,
or coerce our employees in the exercise of the right to
self-organization, to form labor organizations, to join
or assist the Charging Party herein, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purposes of collective
bargaining or other mutual aid or protection or to
refrain therefrom.
Dated By
PRIDE CANDY AND
TOBACCO COMPANY
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
Fourth Floor, Brooklyn, New York 11201, Telephone
212-596-5387.