Lisanti Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 11, 1977

227 N.L.R.B. 898 (N.L.R.B. 1977)

898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lisanti Foods, Inc. and Robert Homwey and Donald
Conklin. Cases 22-CA-6846 and 22-CA-6995
January 11, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On October 12, 1976, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Lisanti Foods, Inc., West Paterson, New Jersey,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order as
so modified:
1. Substitute the following for paragraph 1(e):
"In any other manner discouraging membership in
a labor organization or interfering with, restraining,
or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act."
2. Substitute the following for paragraphs 2(a)
and (b):
"(a) Offer Eugene Anderson, Donald Conklin,
Joseph Fennelly, Robert Homwey, and John Placen-
tino immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges."
"(b) Make whole the employees listed in paragraph
(a), above, for any loss of pay they may have suffered
by reason of the discrimination against them in the
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
227 NLRB No. 134
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), together with interest
thereon at the rate of 6 percent per annum (Isis
Plumbing & Heating Co., 138 NLRB 716 (1962))."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing the Board has found that in February
and March 1976 we unlawfully refused to reinstate
Eugene Anderson, Donald Conklin, Joseph Fennelly,
Robert Homwey, and John Placentino to their jobs as
drivers. It further found that we unlawfully threat-
ened employees with loss of employment if they
engaged in strikes or other activity protected by the
National Labor Relations Act, solicited cessation of
union membership, activity, and support with prom-
ises of benefit and threats of reprisals, and interrogat-
ed employees as to their union membership, support,
and activities. We intend to abide by the following:
WE WILL NOT discharge or refuse to reinstate or
rehire employees because they join, support,
assist, or affiliate with any union or because they
engage in strikes or other protected concerted
activities under the National Labor Relations Act.
WE WILL NOT question employees whether they
have joined unions or engaged in any union
support or activity.
WE WILL NOT threaten employees with dis-
charge or any other reprisal if they join or support
a union or engage in strikes or other activities
protected by the National Labor Relations Act.
WE WILL NOT ask employees to stop union
activity, membership, or support, or promise them
benefits to do so.
WE WILL NOT threaten employees in connection
with any union matter.
WE WILL NOT in any other manner discourage
membership in a labor organization or interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed by Section 7 of the Act.
WE WILL offer Eugene Anderson, Donald
Conklin, Joseph Fennelly, Robert Homwey, and
John Placentino immediate and full reinstatement
to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges previously enjoyed, and make each
whole for any loss of pay he may have suffered by
LISANTI FOODS 899
reason of the discrimination against him, with
interest at the rate of 6 percent per annum.
LISANTI FOODS, INC.
DECISION
said Paterson plant goods valued in excess of $50,000, of
which goods valued in excess of $50,000 were shipped from
said Paterson plant in interstate commerce directly to
States of the United States other than the State of New
Jersey.
Respondent is and has been at all times material herein
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge: On
March -4, 1976, Robert Ifomwey i filed an unfair labor
practice charge in Case 22-CA-6846, and on April-22,
1976, filed an amended charge, alleging that Lisanti Foods,
Inc., the Respondent, had committed unfair labor practices
within the meaning ofhe-National Labor Relations Act, as
amended (29 U.S.C. 158), and on April 23, 1976, the
Regional Director for Region 26 of the Board issued a
complaint and notice of hearing upon such charge. On May
25, 1976, Donald Conklin filed a similar 'charge against the
Respondent, and' on June 4, 1976, the Regional Director
issued an amended complaint consolidating the cases for
hearing.
The Respondent duly filed answers to the complaint and
to the amended complaint denying the commission of
unfair labor practices.
Upon due notice a hearing was held before me in
Newark, New Jersey, on June 21, 22, and 23 and July 13,
1976. All parties appeared and were afforded full opportu-
nity to participate, to introduce and to meet material
evidence, and to engage in oral argument. Briefs were filed
by the General Counsel and the Respondent on August 16,
1976, and have been considered.
- On the-entire record in the case, the briefs, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
-Respondent, Lisanti Foods, Inc., is and has been at all
times material herein a corporation duly organized under,
and existing by virtue of, the laws of -the State of New
Jersey.
At all times material herein Respondent has maintained
its principal office and place of business at Lackawanna
Avenue and Royal Drive, West Paterson, New Jersey,
herein called the Paterson plant, and is now, and at all times
material herein has been continuously, engaged at said
plant in the sale and distribution of cheese and related food
products. Respondent's Paterson plant is its only facility
involved in this proceeding. -
In the course and - conduct of Respondent's business
operations during the preceding 12 months, said operations
being -representative of its operations at all times material
herein, Respondent caused to be sold and distributed at
I Incorrectly spelled Homwag in the original charge.
2 Eugene Anderson, Donald Conklin, Joseph Fennelly (incorrectly
spelled Finley in the transcript), Robert Homwey, and John Placentino.
3 The testimony and other evidence have left me with the uneasy
impression that - the record does not contain all the facts bearing on the
controversy. What evidence there is, much of it in dispute, is at times
H. THE LABOR ORGANIZATION
Local 560, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is and
has been at all times material herein , a labor organization
within the meaning of Section 2 (5) of the Act.
in. THE UNFAIR LABOR PRACTICES
Summary
The case involves a refusal by the Respondent, allegedly
discriminatorily, to reinstate five truckdrivers 2 after a strike
in February 1976, and related unfairTlabor practices. - - -
In early January 1976, dissatisfied with working condi-
tions, the Respondent's drivers signed cards designating
Local 560 as their bargaining representative. Later in the
month the Respondent assertedly recognized the Union
voluntarily, but negotiations were deferred because of the
unavailability of the union business agent. Later in January
the Respondent allegedly engaged in unfair labor practices
and represented to the employees that the Union had
withdrawn from the plant. On February 26, 1976, having
been unable in the interim to contact the union business
agent as to the -situation, and the working conditions being
basically unchanged, the employees reported in sick on that
day, and went in a body to the union hall to get information
as to the situation. There the business agent told them that
they had engaged in an illegal strike and that they should
return to the Respondent and request reinstatement. When
the employees presented themselves for reinstatement the
next morning, all but three, who were rehired, were told
that the Respondent had made other arrangements to_ take
care of the work. The discriminatees,have since not been
rehired, although several have made further application.
The Respondent denies the commission of unfair labor
practices. It admits the refusal to reinstate. The defense is
that the discriminatees were replaced and there have been
no vacancies. In addition, and alternatively, the Respon-
dent contends that the employees were not rehired because
of their bad working habits, and in some cases, miscon-
duct 3
- The Facts
The Respondent distributes food products and related
items from a warehouse in West Paterson, New Jersey,
using truckdrivers. Through shop rumor the Respondent's
contradictory, vague, confusing, and implausible. The findings represent, as
best I can, a reconstruction of what I conclude probably occurred, based on
the inherent probabilities of events, and the demeanor of the witnesses
msofar as helpful in the process. Testimony contrary to the findings, though
considered, has been rejected.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vice president , Anthony Lisanti, became aware , sometime
prior to January 10, 1976 , of the employees' interest in
union organization.
The January 10 Meeting
On January 10, 1976 , a meeting was held , conducted by
Joseph Lisanti , the Respondent's president , and Vice
President Anthony Lisanti , to discuss working conditions
and the employees ' performance . Such meetings are held
about every 6 months. The employees complained of long
hours of work, principally because of the requirement that
the employees load their trucks . Vice President Anthony
Lisanti proposed a $5 a week raise for all.employees and,a
$50 bonus for each employee who had a perfect attendance
record in a month . The drivers responded that they would
prefer that the money be used to hire a warehouse crew to
assist in loading the trucks . On its part , the Respondent
complained about the performance of employees : absentee-
ism, tardiness, discourtesy to customers, `bad driving
records, and "np-offs." 4 These conditions were apparently
matters of long standing in the ` Respondent 's work force
and more or less typical of all the dnvers. There is no
evidence that up to the time of the instant events any
employee had ever been disciplined-as a consequence, and
the Respondent appears to have tolerated the condition.
During this meeting, the Lisantis told the drivers that if they
had "any - idea about a union coming in, forget it, they
wouldn't come in."
The Demand and Recognition
Around January 12, 1976, Armand Castellitto, business
agent of Local 560, came to the Respondent 's office and
asked to see Vice President Lisanti. Told that he was not in,
Castellitto informed the Respondent's receptionist that
Local 560 represented the drivers , and he left a form for the
Respondent to sign, voluntarily recognizing the union as
bargaining representative.
Upon receiving this information , Lisanti asked each
employee individually whether they had signed with the
union . However, each denied knowing anything about the
union . Nevertheless , according to Lisanti 's testimony, from
that point on he considered Local 560 to be the bargaining
agent of the employees.
On January 15, 1976 , Local 560 filed a petition with the
National Labor Relations Board's Regional Director for
certification as bargaining representative . The testimony of
Salvatore Profaci, identified as the office manager of the
Respondent, is that, pursuant to instructions from Vice
President Lisanti, he then met with Business Agent Castel-
litto and agreed to recognize Local 560 as bargaining agent,
provided that Local 560 withdrew the petition for certifica-
tion.
According to Profaci and Castellito , the two deferred
bargaining negotiations because of Castellitto 's anticipated
absence from town on other business and vacation for a
period of several weeks. There is no evidence that Castellit-
-4 A reference to the loss of $1 ,897 from a truck of John Placentino in
December 1975 and a burglary at the Respondent 's office in June 1975, of
which Anthony Lisanti described himself as "suspicious," implying employ-
to informed the employees that the Respondent had
recognized the union.
The January 24 Meeting
On January 24, 1976, the Respondent held another
meeting of the dnvers. At this meeting Salvatore Profaci
was introduced to the employees as the person who would
handle the labor relations "problems" for. the Respondent
and the employees. This was the first time the drivers had
seen Profaci on the Respondent 's premises , although they
had seen him in the past at Roma Foods, another -food
distributor.
The testimony of the Respondent is that at this meeting
Profaci told the employees that he had contacted the union
and would negotiate with it. Profaci, in an apparent
reiteration of Anthony Lisanti's statements at the January
10 meeting, complained of absenteeism , tardiness, driving
records, and employee conduct toward customers, saying
that such conditions would have to be improved, or "we
would take steps." Profaci further testified that at this
meeting the employees were undecided whether they
wanted the union or whether they wanted better working
conditions. Specifically, according to Profaci, the drivers
indicated that "if there were better working conditions they
would be happy without a union."
However, the credited testimony of the employees is that
at this meeting Profaci deprecated the value of the Union,
stating that the Respondent could not afford the union's
wage rates. With regard to the employees' reiterated
dissatisfaction with working conditions, Profaci said that
the warehouse crew, was a "good idea," but it would take
some time to implement. Finally, he advised them to
"forget about" the Union. There is no indication in the
employees' testimony supporting-Profaci's asserted opinion
as to the employees' uncertainty about desiring a union.
The Withdrawal of the Petition for Certification
In the meantime , on January 22, 1976, Business Agent
Castellitto had requested the Regional Director to with-
draw Local- 560's petition for certification, stating as a
reason therefor that "the Company has agreed to meet with
the Local Union." On January 28, 1976, the Regional
Director,wrote to the parties stating: "This is to advise that
I have approved withdrawal of the above case."
There • is no evidence that Business Agent Castellitto
advised the employees of the withdrawal of the petition.
The January 31 Meeting -
Three days later, on January 31, 1976, the Respondent
held another meeting of the drivers. At this meeting, Profaci
told the drivers that the warehouse crew which the drivers
desired would be installed. He then passed out documents
which he had prepared for the drivers' signatures. These
documents stated that the drivers no longer wished to be
represented by the union and were withdrawing their
authorizations, and contained the drivers' agreement to the
ee involvement . However, there is no evidence to substantiate any such
implication
LISANTI FOODS 901
$5 raise, the $50 bonus, and the establishment of the
warehouse crew. Profaci's testimony is that he was "negoti-
ating" with the men in accordance with his understanding
of their wishes, since "you have to run a business."
Homwey, the spokesman for the men, asked for the
weekend to think it over, but Profaci refused. The men
thereupon unanimously refused to sign the agreement and
the meeting dispersed on an ambiguous note, Profaci telling
the employees that if they did not sign the agreement they
could "leave." 5
After the January 31 meeting, Profaci took driver John
Placentino , who had been on delivery and had missed the
meeting, aside and asked Placentino if he was "with the
Lisantis." Placentino replied that he was "with the guys."
Profaci then said that there was not going to be a union
there and asked-Placentino to leave the premises.
I interpret Profaci's statements to the employees as a
declaration that if they did not sign the agreement they
were to leave the Respondent's employment. Though
several of the employees testified that they were not
threatened by Profaci, I consider his actions to constitute a
threat, however empty: a conclusion I deem reinforced by
the events at the subsequent meeting of February 2.
The February 2 Meeting
On the next work day, Monday, February 2, Profaci and
the Lisantis called the employees into the office one by one.
They told the employees that they (the employees) were
insistent about getting the union in and did not seem
satisfied with the warehouse crew arrangement, which
Anthony Lisanti asserted they had agreed to. Profaci again
presented the January 24 document to the employees, this
time stating that the union was "unnecessary." He then
displayed a letter, on an NLRB letterhead, which he
asserted constituted proof that the union was withdrawing
from the shop. The employees, in what seems to have been
a confused atmosphere, apparently accepted his interpreta-
tion of the letter.6
When the employees indicated some uncertainty and
skepticism, Profaci said, "If you don't like it here you can
leave . If you wish to stay, . . . a hand shake will be
sufficient.... What are you going to do; are you going to
stay on? If not, leave." Profaci told Joseph Fennelly that
there was "not going to be any union" and that if Fennelly
supported the union he was working against the Respon-
dent and could "leave."
None of the employees would sign the agreement. Profaci
reiterated that they could leave or work. All then stated that
they wished to work and the matter concluded with Profaci
shaking hands with each driver, and in his words, "we let
them go back to work."
5 The Respondent's testimony, contrary to the testimony of the drivers, is
that Profaci also told the drivers he would continue to negotiate with the
union. Profaci also denied the employees' testimony that the forms, which he
testified he later destroyed, contained a repudiation of the union. I credit the
testimony of the employees.
6 The only letter in evidence from the NLRB respecting withdrawal of the
petition is the Regional Director's letter of January 28, which is not
susceptible of the interpretation placed on it by Profaci. This is the letter
Profaci testified he displayed. The testimony of Eugene Anderson, to whom
Profaci showed the letter, contrary to Profaci's is that it was not the Regional
Director's January 28 letter. In ordinary circumstances, the testimony of
During this time, the employees were unable to get in
touch with Business Agent Castellitto to learn the situation,
despite repeated efforts to contact him. They were not
advised by Castellitto that the Respondent had recognized
the union, though the Respondent told them that it had,
and they were not told by Castellitto of the withdrawal of
the petition. We have seen that Castellitto advised Profaci
that he would be out of town for a number of weeks on
vacation and other matters. However, the employees were
not so advised.
Being unable to reach Castellitto, and uneasy at the
Respondent's statements and actions concerning the union
and working conditions, on the morning of February 26,
1976, all the employees, except Donald Conklin, called in
sick, and instead of reporting for work went to the union
hall in a body to see Castellitto. When they arrived at the
hall they met Profaci coming out of the building.7 The
drivers asked to see Castellitto and were told to wait in the
street. After about a half hour Castellitto appeared and
castigated the drivers for engaging in an "illegal strike,"
said that they could be fired for it, asked "who's bright idea
was this," and called the drivers "stupid." He told them to
return to the plant to try to get their jobs back. With respect
to Profaci, Castellitto told the employees that he did not
know who Profaci was or why he was at the union hall.
Donald Conklin worked on February 26. At the end of
that day the Lisantis insisted on a commitment from
Conklin as to whether he would be in the following day.
Conklin asked to be allowed to contact the men and advise
the Respondent that night as to what he would do.
However, the Lisantis insisted on an immediate answer and
told Conklin that if he did not come in the following
morning he "would be fired along with the rest of the men."
Conklin did not work the next day, in support of the men.
The Respondent normally requires employees to pick up
their driving assignments the preceding evening. The
employees who called in sick on Thursday morning,
February 26 did not, for a variety of stated reasons, pick up
their driving assignments on that afternoon for Friday
February 27.
February 27; The Requests for Reinstatement
On the following morning, February 27, the drivers
presented themselves at the Respondent's premises for
work but were told that they were not needed and to return
at 4 p.m. for their pay.
When the employees returned at 4 o'clock all but three
were told by Profaci that this was the last "shenanigans
they would pull," that the Respondent had no work for
them, that it had made other arrangements, and if it had a
need for their services it would call them. Three: Vallardi,
Anderson and the employees would seem incredible. However, the affidavit
of Vice President Anthony Lisanti given March 30, 1976, provides corrobo-
ration for their testimony Thus, in his affidavit, Lisanti said that after the
January 24 meeting "we received a letter from the Labor Board in which it
was intended to mean that the union was out of the picture" Lisanti's
testimony as to the meaning of the statement in the affidavit is that "it didn't
mean the union; it meant the Labor Relations Board " Whatever Lisanti now
says he meant, it is clearly not what Profaci said. I credit the employees'
testimony.
7 Profaci and Castellitto testified that Profaci came to Castellitto's office
and advised him of the men's action in not reporting for work.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buckley, and Ostergard, were permitted to go back to
work.8 None of the others have been recalled.
Conclusions
The facts present a picture of a somewhat ambivalent
attitude in the Respondent: a desire to avoid unionization
of its employees on the one hand, and an apparent
eagerness to embrace the Union on the other. Thus, while it
was telling its employees that union organization would be
fruitless, the Respondent was also recognizing the Union
without any showing that it represented any of the
employees. Indeed, Vice President Lisanti's interrogation of
the employees produced no one who would admit to union
membership. What may have motivated the Respondent in
these seemingly contradictory courses of action is not
disclosed by the record, though the history of events after
the asserted recognition suggests that the Respondent did
not anticipate any militant action from the Union thereaf-
ter. The reason for this must be left to speculation.
In any event, the Respondent's attempts to circumvent
the employees' self-organizational efforts prior to February
26 were obviously a factor in producing the frustrated state
of mind which resulted in the "sickout." For while the
employees were concerned at the inaction of Local 560 and
their inability to communicate with it, the Respondent's
demonstrated opposition to a union, its efforts to deal
directly with the employees, and the continuance of existing
working conditions, were contributing factors to the deci-
sion to go to the union hall in an effort to get information as
to the situation. Thus, the sickout was a concerted action
for mutual aid and protection occasioned, at least in part,
by the Respondent's unfair labor practices. The employees
were therefore unfair labor practice strikers and normally
entitled to reinstatement upon application, whether re-
placed or not. Those who were denied reinstatement were
thus subjected to additional unfair practices, unless there
was valid reason for denial of reinstatement other than the
fact that they had been replaced, a possibility adverted to
hereafter.
However, even if the sickout was not a result of unfair
labor practices and constituted an economic strike, it was
lawful concerted action, and the discriminatees were
normally entitled to reinstatement unless the evidence
establishes that there were no positions available for them;
and the burden of such establishment is on the Respondent.
Fleetwood Trailer Co., 389 U.S. 375 (1967).9 _
The Respondent has not established permanent replace-
ment of the drivers or the nonexistence of vacancies.
Indeed, the evidence affirmatively establishes the contrary.
8 Profaci testified that he reinstated these three for several reasons: they
"felt enough about their jobs to discuss with us why they felt they shouldn't
be let go"; Ostergard and Vallardi had been employed for 5 and 7 years,
respectively ; and Buckley owed the Respondent money.
9 ".. , proof [by the General Counsel as to the availability of vacancies ]
is not essential to establish an unfair labor practice It relates tojustification,
and the burden of such proof is on the employer." Fleetwood fn 4.
io Thus, according to Profaci, he used President Joseph Lisanti and Vice
President Lisanti as drivers, borrowed two drivers temporarily from Roma
Foods, hired two umdentified persons through one of Profaci's cousins, and
finally one Pete Canunachio, not otherwise identified. The two persons
secured by Profaci's cousin were replaced by Valardi, Buckley, and
Ostergard. This leaves only one of the seven persons , Cammachio, as a
possible permanent replacement , and there is no evidence as to how long he
Thus, the record indicates that there were nine strikers. Sal
Profaci's testimony is that he dispatched "seven or eight
trucks" on February 26. That left at least one driving
position vacant, which any of the nine drivers could have
filled. Thus each of the strikers was denied reinstatement to
an available job. However, Profaci could identify no more
than seven persons who drove that day, of whom no more
than one could be argued to be a permanent replacement.io
But even if the strikers had been replaced, I find that they
were refused reinstatement because of their concerted
activity and not for any other reason.
Thus, Donald Conklin and Robert Homwey were denied
reinstatement for reasons I find to be discriminatory. On
March 6, 1976, Conklin, who was told by Profaci that he
would be taken back if the Respondent had a place for him
(and concerning whom Profaci testified to the same effect),
applied again without success, and was told by the Lisantis
that they "would never allow a union in the plant." As we
have seen , there were vacancies, and the Respondent
asserts no reason other than a lack of vacancies for not
reinstating Conklin. And a few weeks after February 26
Homwey unsuccessfully asked Lisanti for his job back.
Lisanti, in refusing, told Homwey, in Homwey's words that,
"if we didn't proceed with the union, we probably would
have had our jobs."
Other evidence indicates that it was participation in the
sickout which prompted the refusal to reinstate. Thus,
Union Business Agent Castellitto, scarcely a militant
supporter of the discriminatees, and assuredly not hostile to
the Respondent, testified that after the walkout, Profaci did
not want to take the discriminatees back, "Because of the
walkout." Additionally, according to Castellitto, Profaci
suggested at one point that he would consider reinstating
the men and give them a wage increase, provided "they
forget about the union." Anthony Lisanti testified that the
walkout "put the last straw on the camel's back." In the
context of the other evidence, I interpret these actions as
declarations that participation in the sickout was the
precipitating cause of the Respondent's refusal to reinstate.
In addition, Profaci testified that he did not know whether
he would reinstate the employees if he had a opening."
All these factors lead me to the conclusion and fording
that the Respondent refused to reinstate the discriminatees
because of their concerted activity and not for any other
reason.
That finding essentially disposes of the Respondent's
apparent contention that some of the employees were not
reinstated because of improper conduct. This assertion
cannot apply to Conklin and Fennelly, whom Profaci
remained on the payroll The Respondent has thus not shown that any of the
strikers were permanently replaced, or that there was no position which they
could have filled.
it Thus, his testimony:
Q.
A.
Q.
A.
Q
A.
You would have taken them back if you had an opening?
If I had an opening, I would have to consider that
You would consider it?
I really would
But you don't know whether you would?
That is right. At this time, I really don't know.
However, Profaci went on to testify that he would take back Conklin and
Fennelly if he had work.
LISANTI FOODS
stated he would be willing to reinstate . That leaves
Homwey, Anderson , and Placentmo to whom it could be
applicable . Without detailing the evidence , suffice to say
that I find the Respondent 's contentions as to asserted
misconduct as a ground for not reinstating employees to be
mere afterthoughts , not established by the evidence , insub-
stantial in character , and pretexts- in any event, not
matters which were factors in the denial of reinstatement. I
therefore conclude that the Respondent 's assertions re-
specting misconduct as the reason for, or as a bar to,
reinstatement are not sustained . However, even if it were
found that such things were operative , they were only so in
part, and the substantial motivation and precipitating
factor was the discriminatees ' protected concerted activity.
Under such circumstances , the mere existence of valid
grounds does not dissipate the illegality of conduct not
motivated by them . As the Board said in the case of Charles
Edwin Laffey, d/b/a Consolidated Services, 223 NLRB 845
(1976):
It is well established that a discharge motivated in part
by an employee 's exercise of Section 7 rights is a
violation of the Act even though another valid cause
may also be present.
I therefore conclude from the evidence that the Respon-
dent : ( 1) threatened employees with loss of employment if
they engaged in protected concerted activities ; (2) solicited
cessation of union membership , activity , and support with
promises of benefit and threats of reprisal ; (3) interrogated
employees as to their union membership , support and
activities ; and (4) discharged and refused to reinstate the
discrimmatees , Anderson , Conklin , Fennelly , Homwey,
and Placentino because they engaged in concerted activities
protected by the Act. The Respondent thereby engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case , and pursuant to Section
10(c) of the Act, I issue the following recommended:
ORDER 1 2
Lisanti Foods , Inc., West Paterson , New Jersey, its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
11 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions and Order, and all objections thereto shall be deemed
waived for all purposes
903
(a) Threatening employees with loss of employment if
they engage in strikes or other protected concerted activi-
ties.
(b) Soliciting cessation of union membership, activity,
and support with promises of benefit or threats of reprisals.
(c) Interrogating employees as to their union member-
ship, support, or activities.
(d) Discharging or refusing to reinstate employees be-
cause they engage in strikes or other concerted activities
protected by the Act.
(e) In any other manner discouraging membership in a
labor organization or interfering with , restraining, or
coercing employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Eugene Anderson , Donald Conklin, Joseph
Fennelly , Robert Homwey, and John Placentino immediate
reinstatement to their former positions or, if such positions
are no longer available , to substantially equivalent posi-
tions , without prejudice to their seniority or other rights and
privileges , in accordance with the Board 's customary
remedial policies.
(b) Make Anderson , Conklin , Fennelly, Homwey, and
Placentino whole for any loss of earnings suffered by reason
of the discrimination against them , in accordance with the
Board 's usual remedial policies, including interest.
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay and the rights
of reinstatement due under the terms of this Order.
(d) Post at its place of business copies of the attached
notice marked "Appendix ." 13 Copies of said notice, on
forms provided by the Regional Director for Region 22,
after being duly signed by Respondent's authorized repre-
sentative , shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
mg all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
i3 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order of
the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "