The Flavoripe Co., Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1976

222 N.L.R.B. 1144 (N.L.R.B. 1976)

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Flavoripe Co., Inc. and Daniel P . Reiser. Case
6-CA-8097
February 27, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
A hearing in this case was held before me on September
25, 1975, in Pittsburgh, Pennsylvania. At the conclusion of
the hearing oral argument was waived and the parties were
given leave to file briefs which have been received from the
General Counsel and Respondent.
Upon the entire record in this case, including my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
On November 28, 1975, Administrative Law Judge
Davis S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, The Flavoripe Co., Inc.,
Pittsburgh, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
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.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: On June
2, 1975, a complaint issued pursuant to a charge filed on
February 19, 1975, by Daniel P. Reiser, an individual. The
complaint alleges that Respondent discriminatorily dis-
charged Reiser and made threats and promises to employ-
ees in relation to their union activities thereby violating
Section 8(a)(1), (3), and (4) of the Act. In its answer, Re-
spondent denies the commission of any unfair labor prac-
tices.
1. THE BUSINESS OF RESPONDENT
Respondent is a Pennsylvania corporation with its sole
place of business located in Pittsburgh, Pennsylvania. It is
engaged in the manufacture and distribution of syrups, ice
cream toppings, and other restaurant items. During a rep-
resentative 12-month period preceding issuance of the
complaint Respondent shipped goods and materials valued
in excess of $100,000 from its plant to points outside Penn-
sylvania. I find that Respondent is an employer engaged in
commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction here-
in.
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters, Chauffeurs and Helpers Local 249
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter re-
ferred to as Local 249, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Beginning of Organizational Activity at the Plant
On November 13, 1974, Daniel Reiser started to work at
Respondent's plant as a warehouseman. At the time of his
hire Respondent's president, Lewis Averbach, became
aware that Reiser had previously worked as a house paint-
er and had been paid at an hourly rate considerably higher
than the $2 starting rate Respondent was prepared to pay.
Averbach expressed concern that Reiser would not be hap-
py at the salary being paid by Respondent and told him
that he only had need for a temporary help. As a conse-
quence of their discussion Reiser signed a statement which
Averbach added to his employment application setting
forth that Reiser understood that by mutual agreement he
was being hired on a temporary basis.
Shortly after Reiser was hired he discussed with Robert
Gorse, a cousin and fellow employee, the desirability of
obtaining union representation for Respondent's employ-
ees. Before any further step was taken toward organization,
Gorse was laid off,' and thereafter Gorse brought Reiser
authorization cards for Reiser to pass out among the other
employees of Respondent.
There is no contention that Gorse's layoff was discriminatory
222 NLRB No. 181
THE FLAVORIPE CO., INC. 1145
On December 11 and 12, 1974, Reiser distributed Local
249 membership applications to Respondent 's employees
and solicited them to execute the applications . He carried
on this activity openly both during working and nonwork-
ing time at the warehouse . A number of employees signed
cards and returned them to Reiser at the warehouse during
working and nonworking time . Reiser in turn returned the
cards to Local 249. Although other employees also spoke
in favor of union representation, Reiser was the only em-
ployee who solicited signatures on application cards.
On January 28, 1975, Local 249 filed a representation
petition seeking an election among Respondent's employ-
ees. In due course, a date for hearing on the petition was
scheduled for Friday, February 14, 1975. On that day the
parties executed a Stipulation for Certification Upon Con-
sent Election.
B. The Alleged Violations of Section 8(a)(1) of the Act
In early February 1975, Respondent gave a raise to all
employees .2 In the course of announcing the raise, Aver-
bach called employee Pat Rauso into his office. After Av-
erbach told Rauso about the pay raise, Rauso asked Aver-
bach why he had fired a friend of Rauso's. The ensuing
conversation led to a discussion of Local 249. Averbach
told Rauso that he could not work with Local 249 and said
that A & P and other supermarkets and employers had
closed down and had to move out of Pittsburgh because of
Local 249 after it became the representative of their em-
ployees. Averbach said that if Local 249 represented the
employees he was afraid the same thing would happen to
him and there was a good chance he would have to close.
Averbach also said that if Local 249 did not get into the
plant , he would find a good union to represent the ware-
housemen.'
The complaint alleges that these remarks conveyed a
threat that Respondent would go out of business if the
employees chose Local 249 as their representative and a
promise that Respondent would form, support , and/or rec-
ognize an independent union if the employees rejected Lo-
cal 249 . Respondent contends that Averbach's remarks to
Rauso convey no threat or indication of antiunion hostility
and were privileged free speech.
It is true that Averbach's remarks do not convey that he
was opposed to any and all unions, but they do clearly
convey hostility and opposition to organization of
Respondent 's plant by Local 249 , the union then seeking
an election at the plant. The fact that his remarks were
made in a discussion which followed Rauso's question
about his friend does not alter their significance.
Averbach's remarks cannot be dismissed as a mere pre-
diction of the effects he believed unionization would have
on Respondent. As the Court held in N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 618 (1969) to avoid the
proscription of Section 8(a)(1) such a "prediction must be
carefully phrased on the basis of objective fact to convey
an employer's belief as to demonstrably probable conse-
quences beyond his control..... Here Averbach recited
2 The raise is not alleged as a violation of the Act.
3 These findings are based on the uncontradicted testimony of Rauso
no objective facts but spoke in conclusions and drew a
parallel between what he asserted had happened elsewhere
and what he feared would happen at Respondent's plant
without indicating any other similarity between
Respondent's business and the others he named or the spe-
cific circumstances which would lead to plant closure and
removal . Here, as in Gissel, it is reasonable to conclude that
Averbach intended to convey and his listener understood
that if the employees chose representation by Local 249
based on that fact alone Respondent might close its plant
and move .4
Averbach's further statement that he would find a good
union to represent the employees if they rejected Local 249
also violated the Act, for it implied that if the employees
rejected Local 249 Respondent would assist another union
to become their representative without giving them cause
to fear plant closure or removal. Thus Averbach's state-
ment threatened further interference with the right of the
employees to select a representative of their own choosing
and promised by implication that in the event that Respon-
dent were permitted to select the union to represent its
employees the consequences of unionization would not be
as drastic as they would if the employees chose Local 249
to represent them.5
I find that Averbach's remarks to Rauso threatened
plant closure and removal if the employees selected Local
249 as their bargaining representative while promising rec-
ognition and a more favorable response if the employees
permitted Respondent to select their representative, there-
by violating Section 8(a)(1) of the Act.
C. Reiser 's Discharge
1. The facts
There is disputed testimony as to whether in the course
of informing Reiser of the raise given all employees in early
February Averbach talked with Reiser about company
benefits and a change in Reiser 's temporary status. Ac-
cording to Reiser at that time Averbach told him that he
wanted to describe for him some of the benefits employees
received after 6 months of employment , such as hospitali-
zation, life insurance, seven paid holidays , and an extra
day off. Reiser testified that Averbach then asked him if he
was still planning to leave when the painting season started
and that he replied that he was not and was seriously con-
sidering staying on with Respondent . According to Reiser,
Averbach told him that he was happy about it because
Reiser was intelligent and a good worker and Averbach
said that he would like Reiser to stay. Averbach conceded
that at one time he might have told Reiser that he was
intelligent but otherwise denied that the conversation de-
scribed by Reiser ever occurred or that he talked with Reis-
er at all at the time of the raise.
On February 10, after Local 249 filed its petition, Aver-
bach transferred Reiser to a truckdriver's job . As a result
his pay rate was increased by approximately $ 1 an hour to
$3.50 an hour.
4 See also Jimmy-Richard Co., Inc, 210 NLRB 801 (1974).
5 See N. L.R.B. v. A & S Electronic Die Corp and A & S Steel Rule Die
Corp., 423 F.2d 218, 221 (C.A. 2), cert denied 400 U.S. 823 (1970).
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 14 Reiser, Rauso, and two other employees
appeared at -the representation hearing to give support to
the Union if needed. Averbach was present with
Respondent's attorney. Before the hearing opened, the
Stipulation for Certification Upon Consent Election was
agreed to, and the hearing did not take place. Later that
afternoon Reiser returned to the warehouse and worked.
Monday, February 17, 1975, was Reiser's next scheduled
workday. That morning he reported for work as usual. Af-
ter clocking in, he stood in the shipper's office near the
timeclock and carried on a conversation with employees
Larry Golightly and John Evanski about the benefits of
unionization and the election. During this conversation
Averbach passed by and Reiser terminated the conversa-
tion abruptly.
About 10 minutes later Averbach called Reiser into his
office. Bob Freed, another company official, was present.
Averbach concededly spoke to Reiser in a tone of voice
loud-enough for Rauso, who was in an adjacent office, to
hear. According to Reiser, Averbach told him that he did
not want him talking to anyone after he punched in and
that he was taking votes away from Averbach. However,
Averbach testified that he only warned Reiser about de-
taining employees from work and denied mentioning the
Union or votes. After this reprimand Reiser left the ware-
house with his truck and proceeded to make his deliveries.
When Reiser returned to the warehouse that afternoon
about 5 or 5:30, he was called to Averbach's office, where
he found Averbach, Freed, and Don Averbach, a relative
of Lewis Averbach and also a part of management. Lewis
Averbach told Reiser that he had only hired him on a tem-
porary basis, that things were slow, that they were only
sending out half loads on the truck, and that Reiser knew
that he was going to go back to painting. Averbach then
handed Reiser a check and told him that there was a
week's pay in it and that Averbach did not need Reiser any
more. Reiser said nothing and left.
On the next day, Reiser filed a claim for unemployment
compensation, in which he stated as the reason for his se-
paration, "lack of work (laid off)."
There is, in fact, no dispute that business was slow at the
time of Reiser's discharge and that trucks were being sent
out at that time with half loads. In that connection Aver-
bach testified that Respondent's business is seasonal, with
May through August the busiest months, and that business
usually starts to pick up in the middle of March and to
taper off in the middle of September. According to Aver-
bach, at the time of Reiser's hire Averbach only intended
to keep Reiser for 2 or 3 months and in the ordinary course
of events he probably would have terminated Reiser in
mid-January -or possibly earlier, but did not do so on ad-
vice of counsel when that time arrived for fear that he
would be accused of having terminated Reiser because of
Reiser's union activities. Averbach testified that he had
heard of Reiser's union activities in December.
According to Averbach, he changed his mind on Febru-
ary 17 and decided to discharge Reiser immediately be-
cause Averbach and his nephew had reviewed Reiser's em-
ployment application, noted an apparent similarity
between Reiser's printing and some obscene and anti-Se-
mitic graffiti which had appeared on a wall in the ware-
house several weeks earlier, and concluded that Reiser was
responsible for the graffiti. Averbach testified that his be-
lief that Reiser was the author of the graffiti, which was
offensive to him personally, caused him to decide to risk
discharging Reiser immediately. He testified that he did
not mention that belief to Reiser as a reason for his dis-
charge because he felt the reasons he mentioned were suffi-
cient to let Reiser go and because he did not want to get
involved in an emotional discussion with Reiser.
2. Concluding findings
Resolution of the issue raised by Reiser's discharge de-
pends to a large extent on resolution of the credibility is-
sues raised by the testimony of Reiser and Averbach. For a
number of reasons I have concluded that Averbach's testi-
mony cannot be credited.
With respect to the disputed reprimand,of Reiser on the
morning of his discharge, Averbach's version is patently
unworthy of credit. Averbach did not deny that he raised
his voice or was aware of Rauso's proximity. To the con-
trary, he testified that he deliberately raised his voice so
that Rauso would hear, because "I knew what I was going
to tell [Reiser] had nothing to do with anything except the
fact that I did not want him to keep my employees from
doing their proper work" and "I felt that. [Rauso] could
attest to that particular fact if necessary." This testimony is
in marked contrast to later testimony, in conjunction with
his efforts to reconstruct the sequence of events on the last
2 days of Reiser's employment, that at the time they oc-
curred the events leading up to Reiser's discharge were so
insignificant that Averbach could-not recall how they oc-
curred and that he then had no way of knowing he would
be involved in the instant proceeding. Moreover, Averbach
had a witness Freed available in the office with him, and
even after Rauso testified in this proceeding to corroborate
Reiser, Freed was not called to give support to Averbach's
testimony. I have little difficulty concluding that
Averbach's alleged reason for raising his voice was pure
fabrication and that he did angrily reprimand Reiser be-
cause of his belief which he voiced to Reiser that Reiser
was gaining votes for the Union.
Averbach's testimony concerning the sequence of events
leading to Reiser's discharge on February 17 and the al-
leged conclusion that Reiser was the author of offensive
graffiti is equally unworthy of credit. In his testimony Av-
erbach vacillated as to when he and his nephew discovered
the alleged similarity between the printing on Reiser's ap-
plication and the graffiti and as to the timing of the events
which followed. Initially Averbach testified that he and his
nephew made this discovery and that he visited his lawyer
to discuss the matter on the same day that Reiser was dis-
charged. When his attorney then asked whether the discov-
ery and visit to the lawyer were on the same day as the
discharge or on the previous day, adding that he was not
himself sure, Averbach testified that it might have been
either day. In response to a further suggestion by his attor-
ney that his visit to the attorney's office occurred in the
evening, Averbach then testified that he had to have visited
his attorney on the day before Reiser was terminated. Av-
erbach then was asked why he waited until the end of the
THE,FLAVORIPE CO., INC. 1147
next workday to discharge Reiser. He testified that it was
not an easy decision to make, that there were many emo-
tions involved, that it took him a while to get his emotions
separated from the objective facts, and that he gave it con-
siderable thought to make certain that he was making the
proper decision. Subsequently, Averbach reverted to the
possibility that the discovery of Reiser's alleged authorship
of the graffiti, Averbach's visit to his attorney, and the
discharge all occurred on the same day. He testified that
while he still had no clear recollection, that possibility was
"most likely" and adopted that version as his testimony .6
I find it difficult to believe that, if the events had hap-
pened as Averbach testified, he would not have recalled
with greater certainty whether they happened on I day
or on 2 days most likely separated by a weekend. Despite
Averbach's claim that at the time these events seemed in-
significant and he had no way of knowing he would be
involved in this proceeding, if he is to be believed he very
well understood the possible consequences of Reiser's dis-
charge and sought legal advice more than once before dis-
charging him. Moreover, by February 20, he received a
copy of the charge in this case. Certainly then while the
events were still fresh, he had cause to understand their
significance and review them.
Furthermore, even if Averbach's uncertain recollection
were understandable, the readiness with which he supplied
the reason for waiting until the evening of February 17 to
discharge Reiser, after he testified that he visited his lawyer
on the evening of February 16, destroys all confidence in
his testimony, for after portraying himself as a troubled
man with a difficult decision to make who let Reiser work
a full day after learning of his alleged perfidy and visiting
his lawyer so that he could master his emotions and be
objective, Averbach ultimately testified that he returned
from his lawyer's office around 4:30 p.m. and discharged
Reiser shortly thereafter on the same evening. The readi-
ness with which Averbach at the hearing supplied a reason
for something which he later testified was not likely to have
happened undermines all of his testimony as to his mental
operations, his uncommunicated reasons for acting or not
acting, and his claimed intentions.
Averbach's testimony concerning the alleged discovery
of Reiser's authorship of the graffiti adds further cause to
discredit him. As noted, Averbach vacillated as to when he
and his nephew examined Reiser's application and made
their discovery, but ultimately he testified that the discov-
ery occurred on February 17 after Reiser left the plant on
his delivery. According to Averbach in the process of ex-
plaining to his nephew why his lawyer had advised against
terminating Reiser, Averbach took out Reiser's application
to show his nephew the statement- Reiser had signed con-
cerning his temporary employment. Averbach never ex-
plained how the topic of Reiser's possible termination
arose at this particular time or why it was necessary to look
at his application in explaining to his nephew that even
though Reiser was a temporary employee, Respondent's
lawyer had advised against his termination. The timing of
this discussion and the examination of the application in
relation to the reprimand of Reiser only shortly before sug-
gests an obvious cause. Despite the obvious weakness of
Averbach's testimony in this regard,7 his nephew was not
called as a witness to give it support.
Even if one assumes that the discussion and examination
of Reiser's application came about innocently, Averbach's
testimony as to the basis for concluding that Reiser was the
author of the graffiti is also wholly unconvincing. On the
one hand, Reiser's printing was allegedly so striking that
without expert aid Averbach and his nephew reached a
conclusion on which Averbach acted in discharging Reiser.
On the other hand, Averbach did not even compare any
other applications to the graffiti because, according to Av-
erbach, they were in a type of printing which could not be
compared with other printing or writing. The elusive qual-
ity which distinguished Reiser's printing from that of other
employees and labeled him author of the graffiti appears to
have been a distinctive way of printing the letter "n." Aver-
bach testified, "He is a painter, and his `n's' were different
than any that I had ever seen, and it was noticeable imme-
diately, when I looked at his application." Just what the
relevance of Reiser's former occupation as house painter
was to this conclusion is far'from apparent, but whether or
not Reiser's "n's" were different from any Averbach had
ever seen, they are in fact not distinctively identical to
those which appeared in the graffiti on the warehouse wall.
In the context of Averbach's testimony as a whole, exami-
nation of Reiser's application and the photograph of the
graffiti in evidence gives further cause to discredit Aver-
bach.
These glaring deficiencies do not exhaust the examples
which contribute to the discrediting of his testimony, but
they are sufficient to demonstrate why Averbach's testimo-
ny cannot be credited in any material respect.
I find under all the circumstances that Reiser's discharge
was caused by his union activities and specifically that it
was triggered by his attendance at the scheduled represen-
tation hearing on February 14- and his conversation about
the -Union and the election with other employees in the
plant on the morning of February 17. That Respondent
entertained animus against Local 249 is established both
by the findings with respect to Averbach's statements to
Rauso and Averbach's angry accusation on the morning of
Reiser's discharge that Reiser was taking votes away, from
him.' Although Respondent contends that it wanted to ter-
minate Reiser for the reasons it gave him, Averbach con-
ceded that he discharged Reiser for a reason different than
those Averbach stated to Reiser, and the record evidence is
convincing that that reason was a pretext seized upon for
getting rid of Reiser after his appearance at the hearing
and his campaigning in the plant for the Union.
In reaching this conclusion I am mindful that Respon-
dent claims that Averbach was aware of Reiser's union
7 In its brief Respondent refers to Averbach's testimony on this point as
"somewhat confused" and states "it seems likely that the desirability of
continuing Reiser's employment was a subject of discussion." Nowhere is a
reason for that discussion suggested
8 I reject Respondent's contention that Averbach' s reprimand of Reiser
6 Counsel for the General Counsel had in the meantime called attention was not evidence of animus There was no rule against talking or solicitation
to the fact that February 17 was a Monday so that the day before Reiser's in the plant, and as Averbach's statement to Reiser indicates, Averbach's
discharge was a Sunday anger was attributable to the nature of Reiser's conversation.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities for 2 months before his discharge and gave him a
raise and moved him to a driver's job after becoming aware
of his union activity. This contention can be no more con-
vincing than the testimony of Averbach that he knew of
Reiser's union activities from their inception, and the
doubts raised by Averbach's testimony as a whole must
extend to this "concession" as well.' Moreover, even if Av-
erbach was aware of Reiser's union activity from the start,
it does not follow from his prior forbearance and consider-
ate treatment of Reiser that he continued to remain toler-
ant when Reiser displayed continuing adherence to Local
249 following his transfer to driving and the sizeable in-
crease he received as a consequence. In a closer case with a
witness more convincing than Averbach, these facts might
raise doubts. In this case they do not.
Accordingly, I find that Respondent discharged Rieser
because of his attendance at the representation hearing and
his union activities thereby violating Section 8(a)(3) and (1)
of the Act.1o
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that Respondent be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent contends that Reiser should not be awarded
reinstatement and backpay because he was hired as a tem-
porary employee and would have been terminated in Janu-
ary by Respondent except for an exercise of an abundance
of caution . However, I find it impossible to conclude that
Reiser would have been discharged in January . I do not
credit Averbach 's testimony in support of this contention.
In addition , Reiser's testimony as to his conversation with
Averbach in February indicates that Averbach expressed
interest in keeping Reiser as a permanent employee and
spoke to him of company benefits which were of no signifi-
cance to Reiser unless he remained with Respondent.
Reiser's transfer to driving with a substantial increase in
pay brought his earnings much closer to what he had previ-
ously earned as a painter . While Averbach testified that he
had no need for Reiser as a driver and put him on driving
only because he was needed even less in the warehouse, as
Averbach himself conceded , the size of the loads carried on
the trucks had only partial impact on the need for drivers,
and there was useful work for Reiser as a driver . The slack
season was coming to an end, and while Respondent did
9 Averbach sought to bolster his claim of early knowledge of Reiser's
union activities with testimony that he received a notice from the NLRB
probably in late December. However, the representation petition was not
filed until January 28, and there is no indication of any other cause for the
NLRB to have sent any kind of notice to Respondent before it was filed
This testimony was adduced in support of the claim that Respondent want-
ed to terminate Reiser in mid-January but refrained because of knowledge
of his union activities. Quite clearly no NLRB notice contributed to any
decision to retain Reiser, and Averbach's claim further renders all of his
testimony suspect.
not replace Reiser by hiring another driver, the remaining
four drivers were not adequate to Respondent's needs as
business picked up, and it utilized temporary employees
from a manpower service to meet increased needs, I find
both from Reiser's early February conversation with Aver-
bach and his subsequent transfer to driving that but for his
continuing union activity he would not have been termi-
nated by Respondent.
Accordingly, I shall recommend that Respondent be or-
dered to offer Reiser immediate and full reinstatement to
his former job or, if that job is no longer available, to sub-
stantially equivalent employment, without prejudice to his
seniority or other rights and privileges. I shall further rec-
ommend that Respondent be ordered to make him whole
for any loss of earnings he may have suffered as a result of
his discharge by payment to him of the amount he normal-
ly would have earned from February 17, 1975, until the
date of Respondent's offer of reinstatement, less net earn-
ings to which shall be added interest at the rate of 6 percent
per annum in accordance with the formula set forth in F.
W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Flavoripe Co., Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. General Teamsters, Chauffeurs, and Helpers Local
249 a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By threatening that Respondent would close its plant
if Local 249 were selected by the employees as their bar-
gaining representative and by promising that Respondent
would assist in finding another union to represent them
without adverse consequences if the employees rejected
Local 249, Respondent interfered with, restrained, and
coerced employees in the exercise of their protected rights
and has engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(1) and 2(6) and
(7) of the Act.
4. By discharging Daniel P. Reiser because of his activi-'
ties on behalf of Local 249 Respondent has engaged in
unfair labor practices affecting commerce within the mean-
ing of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following recommended:
1° I find it unnecessary to decide whether Reiser's discharge also violated
Sec. 8(a)(4) of the Act, as it is clear that his attendance at the scheduled
representation hearing was in furtherance of his union activities and the
remedy would in any event be the same.
THE FLAVORIPE CO., INC.
ORDER "
Respondent, The Flavoripe Co., Inc., Pittsburgh, Penn-
sylvania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership and activities in General
Teamsters, Chauffeurs and Helpers Local 249 a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organiza-
tion, by discriminating in regard to the hire and tenure of
employment of Respondent's employees or by discriminat-
ing in any other manner in regard to any term or condition
of their employment.
(b) Threatening employees that it will close its plant in
the event they elect to be represented by the above-named
Union.
(c) Promising that it will assist in finding a labor organi-
zation other than the above-named Union to represent its
employees without engaging in reprisals against them if
they reject representation by the above-named Union.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed-in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Daniel P. Reiser immediate and full reinstate-
ment to his former job or, if that job is not available, to
substantially equivalent employment, without prejudice to
his seniority or other rights or privileges and make him
whole for any loss of earnings he may have suffered as a
result of his discharge in the manner set forth in the section
of the Decision entitled "The Remedy."
(b) Preserve and, 'upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records rele-
vant and necessary to a determination of compliance with
paragraph (a) above.
(c) Post at its Pittsburgh, Pennsylvania, place of busi-
ness, copies of the attached notice marked "Appendix." 12
Copies of said notice on forms provided by the Regional
Director for Region 6, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places,-includ-
ing 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.
1149
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
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.
12 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership and activities
in General Teamsters, Chauffeurs and Helpers Local
249 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization by discriminating in
regard to the hire and tenure of employment of our
employees or by discriminating against them in any
other manner in regard to any term or condition of
their employment.
WE WILL NOT threaten our employees that we will
close our plant in the event that they elect the above-
named Union to represent them.
WE WILL NOT promise our employees that if they re-
ject the above-named Union we will assist in finding
another labor organization to represent them without
engaging in any reprisals against them.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed in Section 7 of the Act.
WE WILL offer Daniel P. Reiser immediate and full
reinstatement to his former job or, if that job is no
longer available, to substantially equivalent employ-
ment, without prejudice to his seniority or other rights
and privileges and WE WILL make him whole for any
loss of earnings he may have suffered as a result of his
discharge.
THE FLAVORIPE CO., INC.