Vee Cee Provisions

National Labor Relations Board - Board Decisions

Jun 19, 1981

256 N.L.R.B. 758 (N.L.R.B. 1981)

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