Pepe's Inwood Packing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 26, 1973

206 N.L.R.B. 642 (N.L.R.B. 1973)

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pepe's Inwood Packing Co., Inc. and Local 220, Food
Packing, Cannery and ' Miscellaneous Workers'
Union of the Amalgamated Meat Cutters and Butch-
er Workmen of North America , AFL-CIO. Cases
29-CA-3136 and 29-RC-2113
October 26, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY -
On May 24, 1973, Administrative Law Judge Harry
H. Kuskin issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel 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, but only to the extent
consistent herewith.
Respondent is engaged in processing, packing, sell-
ing, and distributing Italian food products. On Octo-
ber 30, 1972, six of Respondent's women employees
began an economic strike. Respondent continued to
operate with three striker replacements. On Novem-
ber 13, 1972, the six strikers, including Annie Louise
McBride and Betty Thomas, made unconditional of-
fers to return to work. Respondent reinstated Annie
Louise McBride and Thomas on November 24. The
Administrative Law Judge found that, as Respondent
normally had a complement of five workers, there
were two job vacancies on November 13, and that the
11-day delay in reinstating Annie McBride and
Thomas was discriminatory inasmuch as Respondent
failed to show that the delay was due to "legitimate
and substantial business justifications." We do not
agree.
1. Respondent's operations are seasonal. The busy
season lasts from about June to October. Certain raw
vegetables which Respondent uses in its processing
i 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 credibility unless
the clear preponderance of all the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3, 1957). We have carefully examined the record
and find no basis for reversing his findings.
operations are no longer available after the first frost
in October, which necessitates curtailment of opera-
tions. This was the situation in November 1972. When
the strikers applied for reinstatement, Respondent
told them that it had no work for them. There is no
evidence that Respondent was telling an untruth
when it made this statement to the strikers. In fact,
Respondent did not hire any new employees between
November 13 and 24, when it recalled Annie Louise
McBride and Thomas. Moreover, in his bill of partic-
ulars, the General Counsel stated that the discrimina-
tion against the strikers consisted in hiring new
employees rather than recalling strikers. As indicated
above, Respondent did not hire any new employees
between November 13 and 24. Under these circum-
stances, we find, contrary to the Administrative Law
Judge, that Respondent did not discriminate against
strikers Annie Louise McBride and Betty Thomas by
reinstating them on November 24, 1972, rather than
on November 13, 1972.
2. On January 10, 1973, and March 9, 1973, striker
replacements left their jobs creating two job vacan-
cies. Striker Susie McBride was never recalled to fill
either of these vacancies. Striker Vazquez was rein-
stated on February 6, 1973. The Administrative Law
Judge found that the failure to reinstate Susie Mc-
Bride when job vacancies occurred was discriminato-
ry and directed her reinstatement. We agree.
In determining the amount of backpay due Susie
McBride, the Administrative Law Judge concluded
that Respondent followed a seniority system in recall-
ing the striker employees, and that as Susie McBride
had more'seniority than Vazquez she would have been
recalled to work on January 10, when the first vacan-
cy occurred. Accordingly, he recommended that Susie
McBride receive backpay from January 10, 1973, to
the date when she was offered reinstatement. Respon-
dent has excepted to the backpay formula as to Susie
McBride. We find merit in this exception. The evi-
dence does not support a finding that Respondent
follow a practice of relying on seniority in reinstating
striker employees. Moreover, the General Counsel in
his bill of particulars specifically stated that he was
not claiming that Respondent had a duty to recognize
seniority in reinstating strikers. Hence, there is no
adequate. basis for the Administrative Law Judge's
conclusion that, in the absence of discrimination, Re-
spondent would have reinstated Susie McBride ahead
of Vazquez. As the latter was actually reinstated on
February 6, the next vacancy occurred on March 9,
which was the date when Respondent unlawfully
failed to recall Susie McBride to work. We therefore
find that backpay is due her beginning on that date .2
2 The Administrative Law Judge found that Vazquez was not entitled to
206 NLRB No. 77
PEPE'S INWOOD PACKING CO. 643
AMENDED CONCLUSIONS OF LAW
Delete conclusion of Law 3 and substitute the fol-
lowing:
"3. By failing to act on the unconditional requests
of strikers Susie McBride and Margarita Vazquez for
reinstatement and to offer reinstatement to them be-
fore hiring a new employee as of January 10, 1973, to
fill a job vacancy created by the departure of a striker
replacement, and by failing on March 9, 1973, to act
on the same unconditional request of Susie McBride
(Vazquez having, been reinstated in the interim peri-
od) and to offer reinstatement to her before hiring a
new employee to fill a job vacancy created by the
departure of another striker replacement, Respondent
has discriminated in regard to the hire and tenure of
employment of its employees and has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that Pepe's Inwood Packing
Co., Inc., Brooklyn, New York, its officers, agents,
successors, and assigns, shall take action set forth in
said recommended Order, as so modified.
1. Delete paragraph 2(b) and reletter the succeed-
ing paragraphs accordingly.
2. Substitute the attached Notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that Case 29-RC-2113 be,
and it hereby is, severed from this proceeding and
transferred to the Regional Director for Region 29 for
further proceedings consistent with the recommenda-
tion of the Administrative Law Judge.
the Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or any
other labor organization, by failing to reinstate,
or delaying unreasonably in reinstating, to ex-
isting vacancies economic strikers who have
made unconditional request for reinstatement to
their jobs.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed in Section 7
of the Act.
WE WILL offer Susie McBride immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent po-
sition, without prejudice to her seniority or other
rights and privileges, and make her whole for any
loss of pay suffered by her as a result of our
discrimination against her.
PEPE'S INWOOD PACKING
Co., INC.
(Employer)
Dated By
(Representative) (Title)
This is, an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor, Brook-
lyn, New York 11241, Telephone 212-590 -L3535.
DECISION
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 in, or ac-
tivities in behalf of, Local 220, Food Packing,
Cannery and Miscellaneous Workers' Union of
backpay inasmuch as the violation against her was technical and did not
result in any loss of backpay. The General Counsel has not excepted to this
finding. Accordingly , we adopt it pro forma.
STATEMENT OF THE CASE
HARRY H. KUSKIN, Administrative Law Judge: This con-
solidated representation and complaint proceeding was
heard at Brooklyn, New York, on March 19, 20, 21, and 22,
1973. The representation proceeding, in Case 29-RC-2113,
was initiated on November 8, 1972, by a petition filed by
Local 220, Food Packing, Cannery and Miscellaneous
Workers Union of the Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, herein
called the Petitioner, or the Charging Party, or the Union,
for a unit, in substance, of all the employees of Pepe's In-
wood Packing Co., Inc., herein called Respondent-Employ-
er or Respondent, excluding guards, professional
employees, and supervisors as defined in the Act. After a
hearing was held on the petition but before a decision there-
on, the Petitioner, Respondent-Employer, and Furniture,
Flour, Grocery Teamsters and Chauffeurs, Local 138, affili-
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein
called the Intervenor, entered into an agreement for consent
election, -with the approval of the Regional Director for
Region 29 of the Board. Pursuant thereto, an election was
held on December 8, 1972. The results of the election were
inconclusive in that 5 votes were cast for the Petitioner, 4
votes were cast for the Intervenor, and the remaining bal-
lots, those of Michael Fragola, Caesar Fragola, Susie Mc-
Bride,' and Tempie Pope were challenged. No disposition
has yet been made of the last three mentioned challenged
ballots because of the following: On November 16, 1972,
the, Union or the Petitioner in this representation proceed-
ing,,filed a charge in Case 29-CA-3136 herein, alleging that
Respondent had, since November 13, 1972, discriminatorily
refused to reinstate six of its employees, including Susie
McBride referred to above,' in violation of Section 8(a)(3)
and (1) of the Act. In the light of this, the Regional Director
for Region 29 of the Board, after investigation, issued on
February 26, 1973, his report on challenged ballots, order
consolidating cases, and notice of hearing, in which he (1)
sustained the challenge to the ballot of Michael Fragola
because his father, Rocco Fragola, is one of the principals
of, and has substantial stock interests in, Respondent-Em-
ployer, a closely held corporation; (2) pointed out that the
issues involved in Case 29-CA-3136, in which a complaint
had issued on January 30, 1973, are related to the issues
raised by the challenges to the ballots cast by Susie McBride
and Tempie Pope; (3) implied that the challenge to the
ballot of Caesar Fragola raises an issue as to his supervisory
status which requires a formal hearing; and (4) ordered
Cases 29-CA-3139 and 29-RC-2113 consolidated for the
purpose of hearing with respect to the issues raised by the
complaint in Case 29-CA-3139, and by the challenges to
the ballots of Susie McBride, Tempie Pope, and Caesar
Fragola. The complaint, as amended at the hearing herein,
alleges, in substance, that the violations of Section 8(a)(3)
and (1) of the Act consisted of (a) refusing on or about
November 13, 1972, to reinstate economic strikers Betty
Thomas, Annie LouiseMcBride, Susie McBride, Margarita
Vazquez, Stattie Stallworth, and Zoraida Gonzalez after
they had made an unconditional offer to return to work; (b)
engaging in unreasonable delay in failing to reinstate Annie
Louise McBride and Betty Thomas until November 24,
1972; and (c) failing and refusing to offer first to Susie
McBride, Margarita Vazquez, and Zoraida Gonzalez, in
order of seniority, a position of employment which had,
prior to the commencement of the economic strike on Octo-
ber 30, 1972, been held by one of them, and instead hiring
a new employee, Adminda Sanchez, on or about January 9,
1973-all the foregoing because these six employees en-
gaged in the aforesaid-strike and because they engaged in
other protected concerted activities . In its answer to the
complaint, Respondent denies that it has violated the Act
in any respect alleged herein; and it asserts further as a first
affirmative defense that the Union and the six above-named
economic strikers "did make threats of reprisal and to use
1
The five others in this group of alleged discrmunatees are Margarita
Vazquez, Zoraida Gonzalez , Stattie Stallworth , Annie Louise McBride, and
Betty Thomas.
force and violence upon" employee Cherie Hunter and Ola
Poole in order to coerce them to leave Respondent's employ
and join the Union, thereby violating Section 8(b)(1)(A) of
the Act.
Upon the entire'record, including my observation of the
witnesses, including their demeanor while on the witness
stand, and after due consideration of the brief of the Gener-
al Counsel,2 I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The,complaint, as amended, alleges, and Respondent
does not deny, that Respondent is a New York corporation
with its principal office and place of business at 94 Walton
Street, Brooklyn, New York, where it has, at all times mate-
rial herein, been engaged in the processing, packing, sale,
and distribution of Italian food products, and related prod-
ucts; and that Joseph Fragola, Inc., herein called Fragola,
is also a New York corporation with its principal office and
place of business at the same address where it has, at such
times , been engaged in the importation, sale, and distribu-
tion of Italian food products and related products. Howev-
er, Respondent does deny the further allegations of the
complaint, as amended, that (1) Fragola and it have, at all
material time's herein, been affiliated businesses with com-
mon officers, ownership, directors, and operators, and con-
stitute a single integrated enterprise; and (2) during the past
year, these two corporate entities shipped products valued
in excess of $50,000 outside the State of New York and
therefore constitute an employer engaged in commerce
within the Act's meaning.
As to (1) above, Respondent stipulated that all the stock
of both corporate entities are held by Rocco Fragola, Pas-
quale Fragola (his brother), and Sebastian Interrante; that
their interests in each entity are 44 percent, 44 percent, and
12 percent, respectively; and that they comprise all the offi-
cers of both corporations, with Pasquale Fragola being the
president of Fragola, and the vice president of Respondent;
with Sebastian Interrante being the president'of Respon-
dent and the vice president of Fragola; and with Rocco
Fragola being the secretary of both entities. Although the
record shows that the directors of Fragola are the above
three individuals and its attorney, Peter Grandy, there is no
record evidence as to who the directors of Respondent are.'
As to the background and the physical layout at their
present location of these two corporations, the record shows
that Fragola was a functioning entity-at the time, more than
4 years ago, that the two brothers and Interrante acquired
Respondent. Fragola was then located at 349 Messarole
Street, Brooklyn, and Respondent was located about 20
miles distant at 47 Mott Avenue, Inwood, Long Island. In
early 1972, Fragola purchased the premises fronting on both
Walton Street and Wallabout Street in Brooklyn in order to
2 Respondent did not file a brief in this proceeding although it, like the
General Counsel, was afforded an opportunity to do so.
3 In this connection, Rocco Fragola, the only officer of Respondent who
was a witness herein, testified that, "I never knew I have any [directors], and
looking through the minutes, I don't find we ever had directors." This testi-
mony did not impress me as worthy of credit.
PEPE'S INWOOD PACKING CO. 1 645
house the business of both corporations. During May 1972,
Fragola moved into the premises, locating its operations
consisting of officers and a warehouse on the Walton Street
side. About 1 month later, Respondent moved into the
Wallabout Street side, at which time a fire-retardant wall
with two fire doors was constructed so as to divide the
processing and packing function performed by Respondent
from the warehousing function performed by Fragola, but
still affording ready access from one side to the other by
means of these two fire doors. Thus, while the employees of
Respondent usually enter and leave from the Wallabout
Street side, known as 291 Wallabout Street, and the ware-
house employees of Fragola enter the warehouse through a
door on the Walton Street side, Respondent's employees
were directed to, and did, use the entrance on Walton Street
during the heretofore mentioned economic strike involving
Respondent. There is a second door on the Walton Street
side which leads to the respective principal offices of Re-
spondent and Fragola. The address on this door is 94 Wal-
ton Street and both corporations use that mailing address.
Located in the office area, in addition to the respective
offices of each entity, are the office help of Fragola,4 the
respective files, books of account, and telephones 5 of each
entity, and the fire-proof safe which serves both entities as
a depository for records and important documents.
As to the extent of interchange of services and activity,
Rocco Fragola testified herein, in substance, as follows: (1)
By arrangement among the three stockholders and owners
of both corporations, he has full responsibility for running
the business of Respondent, and Pasquale Fragola, the pres-
ident of Fragola and the vice president of Respondent, has
identical responsibility with respect to Fragola; but when
"something serious" arises in their respective operations, the
other stockholders are consulted. Thus, he admittedly did
such consulting about the union developments affecting
Respondent, discussed hereinafter. (2) He also has regular
responsibilities relating to Fragola. In this connection, he
spends most of each Thursday on the road soliciting busi-
ness for Fragola from its customers, and the rest soliciting
business for Respondent; 6 in addition, during the off-sea-
son for Respondent, which lasts from sometime in October
to about June, he spends about 1 day a week on office work
for Respondent and about one-half day a week on office
work for Fragola; and, during the busy season for Respon-
dent, which extends over the other months -of the year, he
spends about 2 hours a week on office work for both corpo-
rations. (3) He usually, does all of Respondent's bookkeep-
ing, but during the period from September 1972 through
January 1973, all of Respondent's bookkeeping was done by
an office employee of Fragola. (4) If the telephone of Re-
spondent is unanswered by someone in the processing and
packing area after three rings, the office personnel of Frago-
la are required to answer the telephone and page the one
who is wanted over the intercom system. (5) Office person-
nel of Fragola are also required to type such correspon-
4 Respondent employs no office help.
S Respondent has a connecting telephone in the packing area on the Walla-
bout Street side.
6 Fragola also employs several salesmen` on a regular basis, and Respon-
dent uses the services of a broker
deuce, etc., of Respondent as he deems necessary. (6)- On
occasions, Fragola has made customer deliveries for Re-
spondent. (7) Respondent occasionally uses the forklift be-
longing to Fragola. (8) Each entity will avail itself, in
emergencies, of the services of an employee of the other
entity, the length of time of such service usually being short.
(9) Respondent purchases some of the supplies used in its
manufacturing operations from Fragola; among these
items, which he estimated were valued at about $12,000
during 1972, were olives, salt, tuna fish, anchovies, peppero-
ni peppers, and Roncini peppers. (11) In turn, Fragola car-
ries products manufactured by Respondent in its inventory
for sale by its salesmen. (11) Fragola pays his salary for
services rendered by him to both entities. (12) No charges
are made to Respondent by Fragola for any services ren-
dered by'Fragola's employees. (13) Pasquale Fragola is in
the packing area of Respondent once or twice allay for brief
periods? (14) Both entities use the services of the same
accountant and the same bank.
It is well established that the Board will treat separate
corporations or entities as a single integrated enterprise
where the firms, despite their nominal separation, are highly
integrated with respect to ownership and operation.8 As to
the degree of common ownership and common manage-
ment, it is apparent from the above that the same three
individuals, i.e., Rocco Fragola, Pasquale Fragola, and, Se-
bastian Interrante, own all the stock in each corporation,
the extent of their respective ,stockholdings being the same
in each corporation, and that they hold all the offices in the
two corporations, with Rocco Fragola being the secretary of
both corporations and the other two holding the presidency
in one corporation and the vice presidency in the other,
thus, assuring all three of of them dominant roles in both
corporations .9 And while Rocco Fragola testified that he
handles labor relations for Respondent, and that Pasquale
Fragola handles such matters for Fragola, I note that this
testimony does not square with his other testimony hereto-
fore mentioned: (1) that when "something serious" arises in
their respective operations, either of them will consult with
the other stockholders; and (2) that he kept his brother,
Pasquale, posted concerning the Union's organizational ef-
fort among Respondent's employees, the strike by its em-
ployees, and the representation proceeding. Noteworthy,
too, in evaluating his above testimony is the following ad-
mission by him to the hearing officer at the hearing in the
representation case herein, where he appeared in
Respondent's behalf. Thus, when asked, "Does the manage-
ment of both corporations, do they jointly decide labor
relations?" he replied, "Oh, yes, surely." In all these circum-
stances, I do not credit Rocco Fragola's testimony that the
labor relations of each corporation is handled separately
7 As described by employee Stallworth, "he walks in, looks and says good
morning and then walks out "
B Sakrete of Northern California, Inc. v. N L R. B., 322 F.2d (C.A 9), enfg.
140 NLRB 765, cert denied 379 U.S 961. See also Wenatchee Thrifty Drugs,
Inc, 151 NLRB 752; and Darlington Manufacturing Company, 139 NLRB
241.
9 As already noted, all three are directors of Fragola, but there is no record
evidence as to who are the directors of Respondent. If, as Rocco Fragola
seemed to suggest, no directors were ever elected by Respondent, it would
follow, and I find, that the corporate officers were at all time's filling the roles
normally belonging to'corporate directors.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i
and find, instead, on the basis of his other above testimony
and his admission in the representation proceeding, that
both corporations have a joint or common labor policy.
In addition to the aforesaid common ownershipand con-
trol of these two entities, there exists also considerable inter-
relation of operations. I rely, in this connection, on the
following: (1) the sharing by both entities of the same build-
ing for their respective operations 10 (2) the interchange of
personnel between both entities, which is not extensive or
for lengthy periods of time; (3) the constant business deal-
ings between them, in which Respondent buys some-of its
supplies for its manufacturing operations from Fragola, and
Fragola, in turn, buys packaged goods from Respondent
and then sells such goods from its inventory to its custom-
ers; (4) the fact that Rocco Fragola divides his time between
both corporations; (5) the fact that he is paid by Fragola-for
his services to both corporations; and (6) the fact that Re-
spondent has ready access to, and uses Fragola's secretarial
help, without charge, for its correspondence and its book-
keeping as the need arises, and the regular service by such
secretarial help in answering Respondent's telephone, also
without charge.
It follows from the above that Respondent and Fragola
are, despite their nominal separation, highly integrated with
respect to ownership and operation, and further that both
corporations constitute a single employer for jurisdictional
purposes. And it suffices therefore to bring Respondent
within the Board's discretionary jurisdictional requirements
that, as stipulated by Respondent, Fragola has, during the
past year, which is a representative period, preserved, pack-
aged, sold, and distributed products valued at in excess of
$50,000, of which in excess of $50,000 worth was shipped by
it directly outside the State of New York.
Apart from all the foregoing, I am persuaded, and find,
that Respondent itself meets the Board's jurisdictional re-
quirements. Thus, record evidence establishes, and I find,
that, during the year 1972, Respondent sold and shipped
directly outside the State of New York to its customers
products, manufactured by it, worth about $43,000; and
also sold, within the State of New York, such products
valued at about $47,000 to Fragola,ll which, as stipulated
above, is itself engaged in interstate commerce. It follows
therefrom that the value of Respondent's combined direct
and indirect outflow of products across State lines exceeds
$50,000,12 thereby bringing Respondent within the ambit of
the Board's discretionary jurisdiction.13 And this is so not-
withstanding Respondent's contention herein, which I find
to be lacking in ment, that only so much commerce data, as
preceded November 16, 1972, the date of the charge here-
10 The extent of this sharing is illustrated by the facts that an alarm system
owned by Fragola and an electric meter in the name of Fragola serve both
entities, with Respondent reimbursing Fragola for the use of the alarm sys-
tem and paying a monthly charge for utilities In addition, Respondent pays
rent to Fragola for its part of the premises.
11 The invoices relating to all the above sales are in evidence as G.C Exh.
10 A to 10 DD, inclusive. Respondent claims that since it discounted these
invoices, only the discounted figures are of consequence here. As discounted,
these figures are about $36,000 and $39,000, respectively.
12 I find it unnecessary to decide whether, as Respondent contended at the
hearing, the discounted figures are controlling, since both sets of figures
exceeded $50,000 in value.
13 See AAA Air Duct Cleaning Co., 169 NLRB 994.
in,14 may be relied upon if jurisdiction, is to be predicated
on its business during that year. Accordingly, I conclude,
and find, that, whether considered as a-single employer with
Fragola for jurisdictional purposes, or whether considered
separately on the basis of its own commerce facts, Respon-
dent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint, as amended, alleges, and Respondent
does not deny, and I find, that Local 220, Food Packing,
Cannery and Miscellaneous Workers Union of the Amalga-
mated Meat Cutters and Butcher Workmen of North Amer-
ica, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Some Background Facts
As already noted, Respondent is engaged in the pro-
cessing, packing, sale, and distribution of Italian food prod-
ucts. The record shows that the principal raw vegetables
processed by Respondent are peppers and egg plants. The
peppers, which come in various types, are first cored. They
may then either be stuffed with ingredients which vary from
bread-type stuffing to fish, etc., or they may be left as is.
Thereafter, they are placed into glass jars in a prescribed
geometric fashion, and oil or vinegar is added according to
Respondent's applicable formula. As to the egg plants, pro-
cessing consists of peeling them, cutting them into pieces,
packing them into glass jars and then filling the jars with oil
or vinegar as prescribed by Respondent.) Employees also
process lupini, a type of noodle, which is first filled with
ingredients and then packed into glass jars. These filled jars
are thereafter placed upon a belt and fed to a machine
which caps and seals them. Thereupon, they are labeled and
packaged into cartons.
When Respondent started in business around 1969, it had
in its employ two or three women and one man, Harry
Esepa. Sometime thereafter it hired Caesar Fragola, the
brother of Rocco and Pasquale Fragola. The women consti-
tuted the main work force in the processing and placing in
glass jars of the fresh vegetables and other items, such as
lupin. After a while, Respondent enlarged its staff of female
employees so that it hada complement of four to five wom-
en who worked throughout the year. This complement was
further enlarged to about seven or eight women during
Respondent's busy season which encompassed the summer
months, and extended into October for as long as the raw
vegetables were obtainable from its sources in New Jersey."'
According to the uncontradicted testimony of Rocco Fra-
gola, the longest period of employment of women hired
during the busy season to supplement the regular comple-
ment was 12 weeks, and, in no instance, has any such hire
14 As already found, the complaint herein issued on January 30, 1973.
15 Sometimes the egg plants, after being sliced, are put into barrels, pickled,
and stored
16 Apparently, Respondent has other sources for its raw vegetables during
the rest of the year.
PEPE'S INWOOD PACKING CO. 647
returned to Respondent 's employ.
B. The Work Complement After the Move to
the Present Location
When Respondent moved to its present location in June
1972,17 only four members of its work force transferred to
the new location, namely Caesar Fragola, Harry Esepa,
Betty Thomas, and Rose Zarra. Of these, only Caesar Fra-
gola and Betty Thomas were in Respondent's employ dur-
ing times material herein. On June 27, Respondent hired
Susie McBride and Annie Louise McBride, her cousin. With
the arrival of the seasonal peak in August, Respondent hired
five women, of whom only Stattie Stallworth and Ramona
Valentine stayed on beyond the end of August. During
September, the complement was further increased by the
hiring of Margarita Vazquez, Tempie Pope and Zoraida
Gonzalez."S Of these, it is stipulated that Annie Louise Mc-
Bride, Stallworth, Vazquez, Thomas, Gonzalez, and Valen-
tine were actually working in the plant as of the week ending
October 24, along with Hermilindo Roman (a part-time
employee). At a time not shown in the record, Respondent
hired Peter Zertuchie to work in its stockroom and to drive
its truck and make deliveries. It is also stipulated that he was
part of the work force during that same week. The record
shows further that Caesar Fragola and Michael Fragola
whose ballots were challenged in the representation case
herein, and Rocco Fragola, the secretary of Respondent
and the one in overall charge of the processing,operation,
completed the list of personnel during that payroll period.
With regard to Susie McBride, one of the alleged discrimi-
natees herein, the record shows that her last working day for
Respondent was October 19 and that, on October 20, she
was laid off. Whether she was temporarily laid off, as the
General Counsel contends, or permanently severed, as Re-
spondent urges, is one of the issued to be determined herein-
after. With regard to Tempie Pope, the record shows that
she was laid off on October 20; however, she, unlike Susie
McBride, has never sought further employment with Re-
spondent.
As to the nature of the hiring of Stallworth, Valentine,
Vasquez, Pope, and Gonzalez, all of whom were hired dur-
ing Respondent's busy season, it was Rocco Fragola's testi-
mony that, when be hired them, he explained that the
business was seasonal in nature but did not tell them that
he was hiring them on a temporary basis. In addition, he
testified that, at the end of July or the beginning of August,
he told a group of girls, including Stallworth, Thomas, and
the two McBrides that "this type of work is seasonal; during
the egg plant season we have a lot of girls; and when things
taper we don't have enough work." Also bearing upon the
nature of their hiring is the uncontroverted testimony of
Stallworth that, during October, Rocco Fragola, spoke to
the employees in the working area and said that work would
be slow and he might have to lay some of the girls off, and,
if work picks up, he might hire them back . Since it is appar-
ent from my findings heretofore that Respondent was con-
17 All dates hereinafter are in 1972, unless otherwise indicated.
18 The record shows that they were hired in the order shown above and
began work on September 11, 15, and 26, respectively
siderably understaffed when it moved to its present location
in June; i.e., of the two women who transferred to this
location out of a staff of four or five only one (Thomas)
stayed on, it follows therefrom, and I find, that Rocco Fra-
gola was faced with the necessity of recruiting with an eye
to building up a staff of regulars of whom it had had four
to five theretofore. Indeed, Rocco Fragola admitted that he
did not tell any of the new recruits when he hired them that
they were being given temporary employment. In'these cir-
cumstances, I find credible Stallworth's above attribution to
Rocco Fragola, and find that he did tell the employees
sometime during October, which was the month of the com-
mencement of the critical developments herein, in effect
that those who were to be laid off because of the seasonal
nature of the business would have the expectancy of being
recalled if, and when, work picked up.
C. The Critical Developments
1. The organizational and union activity up to the
time the strike began and the Union's
overture to Respondent
In early October, the women, after talking among them-
selves, decided that they wanted to be represented by a
union, and one of them was designated to get in touch with
Harold Wilkerson, who was then vice president of the
Union.19 Wilkerson was so notified and he thereupon met
with several of the women at the homes of Susie McBride
and of Annie Louise McBride. As of October 26, six women
had signed cards as follows: Tempie Pope signed on Octo-
ber 12; Susie McBride signed at some time between October
20, when she was separated, and October 26; Annie Louise
McBride and Vazquez signed on October 25; and Gonzalez
and Stallworth signed on October 26. On Friday, October
27, after work, Wilkerson met with all six women at Annie
Louise McBride's home. During the ensuing discussion,
Wilkerson advised them not to go to work on the following
Monday, October 30, until they "all go there, and talk to the
boss. They would ring the bell and talk to the boss that
Monday." The women agreed to follow Wilkerson' s advice.
On Monday, October 30, at 8 a.m., Wilkerson went to
Respondent's premises , entering at 94 Walton Street, and
asked for Rocco Fragola. He was told by Frank Tagliente,
the warehouse manager of Fragola, that Rocco Fragola
should be in soon. About a half hour later, while outside the
premises , he was told by Pasquale Fragola that Rocco Fra-
gola would not be in that day; and, at or about 4 p.m., he
was given a telephone number by Caesar Fragola and told
that Rocco Fragola wanted to be called at that number. In
the meantime, the two McBrides, Vazquez, Stallworth,
Thomas, and Gonzalez did not go to work on October 30.
They were in front of the premises that morning and began
their strike which was accompanied by picketing with signs
calling attention to the strike and the name of the Union.
Tempie Pope did not picket that day; she did, however,
picket on some subsequent days.
Wilkerson made the telephone call to Rocco Fragola
from Annie Louise McBride's home at or about 4 p.m. that
19 Wilkerson became president of the Union on December 8.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day. Wilkerson, whose union connections were already
known to Rocco Fragola, told Rocco Fragola that the wom-
en employed by Respondent wanted a union, and he sug-
gested that both of them get together the next morning to
try to adjust the matter. Rocco Fragola replied that he
would be at the premises the next morning. Apparently, no
particular office or spot on the premises was designated;
and, although Wilkerson was outside on_ the Wallabout
Street side of Respondent's premises, and Rocco Fragola
was inside the same premises at 8 a.m., and thereafter, on
October 31, neither of them sought the other out and, as a
result, no meeting took place that day. There were a couple
of chance meetings between them outside the premises, on
the Walton Street side, during the strike. According to
Wilkerson's credible testimony, on one such occasion, he
remarked that this was ridiculous and that there was no
reason why the labor dispute could not be resolved by
them; whereupon, Rocco Fragola answered that it was a
little late at this stage, and that they should have come to
him a week or so before that.
2. The separation of Susie McBride and
Tempie Pope on October 20
Although organizational activity had already com-
menced at Respondent's facility by the time Susie McBride
and Tempie Pope were separated, there is no basis herein
for finding that Respondent then had knowledge of this
development. Indeed, the complaint, as amended, does not
allege, and the General Counsel does not here contend, that
either Susie McBride's or Pope's separation contravened the
Act. The issue with respect to them at this juncture is thus
only whether they were severed permanently, or laid off
subject to being recalled by Respondent at a later date. I
shall not consider their respective situations.
It is apparent from my earlier findings that Susie Mc-
Bride's employment, like that of her cousin, Annie Louise
McBride, dated from June 27, and that the only female
employee with greater seniority than she had was Betty
Thomas. It is admitted that she was a satisfactory employee.
In the early part of October, she told Rocco Fragola that she
,had had an operation and that it was then difficult for her
to work the full 5-day schedule, and asked whether she
could work part-time. Rocco Fragola agreed. The record
shows, in this regard, that she did not, work a full schedule
during any week in October. Thus, the worked 27-1/2 hours
on 4 days during the weekly payroll period ending Thurs-
day, October 5; 16 hours on 2 days during the 'weekly pay-
roll period ending October 12; and 23 hours on 2 or 4 days
during the weekly payroll period ending October 19.
On October 20, Susie McBride did not report for work.
Although Annie Louise McBride did come to work, she said
nothing to Rocco Fragola about her cousins absence. Later
that day, when Rocco Fragola gave Annie Louise McBride
her weekly paycheck, he also handed her Susie `McBrid&s
weekly paycheck and asked her to relay a message to Susie
McBride from him. According to Annie Louise McBride,
Rocco' lµragola told her to tell Susie -McBride that-it was
slow andwhen he needed her he would call her.4n contrast.
thereto, Rocco Fragola testified that'he-told" her to tell Susie'
McBride'tha,tlse would. not`beineedin hrr-.trymere. n view Stallworth, and Thomas
of Susie McBride's testimony that she was told by her cous-
in that Rocco Fragola's meassage was that when he was
ready for her he would let her know; in view of my finding
heretofore that, sometime during October, Rocco Fragola
told a group of employees, in effect, that those who were -to
be laid off because of the seasonal nature of the business
would have the expectancy of being recalled if and when
work picked up; and, as Rocco Fragola, when asked by me
for the names of the employees who were considered by him
to be regulars as of the time of the strike, included Susie
McBride among the six individuals named,20 I find Annie
Louise McBride's testimony more reliable than that of Roc-
co Fragola, and I credit her. Accordingly, I find further that
Susie McBride became a temporarily laid-off employee as
of October 20.
With regard to Pope, there is also a conflict in the testimo-
ny given by her and Rocco Fragola as to what was said by
the latter at the time of the separation. According to Pope,
Rocco Fragola asked her on October 20 if she would mind
taking a few days off and that he would call her during the
next week, giving as the reason that work was getting slow
and that he had to tell a few more of the girls to be off for
a few days; whereupon, she agreed to do so. According to
Rocco Fragola's version, he told Pope that he could not
continue to employ her, explaining to her that, because of
the early frost, the egg plants are not coming in anymore
and Respondent does not have the work. In view of the fact
that I have discredited Rocco Fragola's testimony with re-
spect to the separation of Susie McBride, and as Rocco
Fragola testified, in substance, that he had in mind treating
both employees alike in this regard, I find here, too, as in
the case of Susie McBride, that Tempie Pope became a
temporarily laid-off employee on October 20.
3. Respondent's hirings up to and
including November 13
The strike and picketing lasted from October 13 until
about November 22. Respondent continued to operate dur-
ing the strike, which was admittedly an economic strike,
with new hires. Thus, it hired Annabelle Giles, Griselda
Walters, and Cherie Hunter on November 3. Of these,
Hunter worked through November 10; Walters worked
from November 3 to 10 and again from November 20, 1972,
through January 7, 1973; and Giles worked from November
3, 1972, through February 20, 1973. Ola Poole was hired on
November 6 and worked only on November 7. Christine
Johnson was hired thereafter and has been working for
Respondent since November 13. All the foregoing per-
formed the same functions of preparing food stuffs and then
packing them as had those who were on strike.
4. Sixstrikers,make unconditional application
for remstatement; as a body
On Monday, November 13, about 8 a.m., six of
Respondent's employees, namely, the two McBrides, Gon-
zalez, Vazquez, Stallworth and Thomas, all of whom had
20 The others `named were Annie Louise McBride, Vazquez , Gonzalez,
PEPE'S INWOOD PACKING CO. 649
been engaging in picketing during the first two weeks of the
strike, decided to apply for reinstatement to their jobs. They
rang the doorbell at the Wallabout Street entrance to
Respondent's premises and spoke to Rocco Fragola who
appeared at the door. Credible testimony 21 establishes that
(1) the six strikers, with one or more of them doing the
speaking, informed Rocco Fragola that all six of them were
ready to come back to work, and that Rocco Fragola an-
swered that he had to talk to someone first and invited them'
to return at 2 p.m. for an answer; (2) the six strikers returned
at 2 p.m. and were invited to return at 4:30 p.m., being told
by Rocco Fragola that he had not gotten in touch with his
lawyer 'as yet, he had never been confronted by such a
situation before, and, if he took some of them back, he
would not take all of them back; (3) the strikers returned at
4:30 p.m. but were again put off by Rocco Fragola, this time
until 8 o'clock the following morning, the reason given
being that he still had not talked to his lawyer and could not
do anything; and (4) the six strikers returned at 8 o'clock the
following morning and were told by Rocco Fragola that he
could do nothing about their reinstatement request because
"we're going to a hearing" referring to 29-RC-2113, the
representation proceeding herein.22 In all these circum-
stances, I conclude, and find, that the two McBrides,
Vazquez, Gonzalez, Stallworth, and Thomas made abortive
unconditional applications for reinstatement to Respondent
on November 13 23
5. Respondent's personnel actions and additional
hirings after November 13
On November 24, about 2 days after the strike at the
facility ended, Respondent reinstated Thomas and Annie
Louise McBride, two of the former strikers. This was fol-
lowed by the reinstatement of two more former strikers;
namely, Stallworth and Vazquez, on December 4, 1972, and
February 6, 1973, respectively. Neither Gonzalez nor Susie
McBride, who, like the four employees above, also made
unconditional applications for reinstatement, had been
reinstated as of the time of the instant hearing. Further, of
those reinstated, only Thomas is no longer in Respondent's
employ. Her last working day was December 21. Respon-
dent also hired Adminda Sanchez in January 1973, and
Sarah Poe on March 9, 1973. The latter was still working for
Respondent as a food preparer and packer at the time of the
instant hearing; the former worked only from about Janu-
ary 10 to 30, 1973.
It is apparent from all the foregoing, and I find, that,
except for the period of the strike when Respondent operat-
ed its facility for the most part with three women in the jobs
of food preparers and packers, (Walters, Giles, and John-
son),24 Respondent staffed up thereafter with the objective
of having, as it did on the eve of the strike, a complement
21 In those instances where Rocco Fragola's testimony is in conflict with
the largely mutually corroborative testimony of the two McBrides, Vazquez,
Gonzalez, and Stallworth, I credit the latter as more reliable.
22 The petition in that proceeding was filed on November 8.
23 Although Tempie Pope had joined in the economic strike, it appears that
she did not apply for reinstatement.
24 As already noted, although Hunter had, like than, been hired on No-
vember 3, she worked only until November I&
of five food preparers and packers, demonstrating thereby
that five was its normal complement in this category, except
during its peak season. Thus, from November 24 until De-
cember 4, due to the reinstatement of Thomas and McBride,
it had five such employees; from December 4 through 21,
it had six such employees by reason of the reinstatement of
Stallworth; it again had a complement of five such employ-
ees from December 22, 1972, to January 7, 1973, due to the
fact that Thomas left Respondent's employ on December
21; it had a complement of four such employees on January
8 and 9, 1973, due to the fact that Walters left Respondent's
employ on January 7; it returned to a roster of five such
employees from January 10 to 30, 1973, with the hiring of
a new employee, Adminda Sanchez, who worked only dur-
ing this period; it reverted to a complement of four thereaf-
ter until February 6, 1973, when it reinstated Vazquez and
had a complement of five such employees; its complement
was then reduced to four or February 21 when Giles left
Respondent's employ; and it was again increased to five on
March 9 with the hiring of a new employee, Sarah Poe. So
far as appears this complement of five women food prepar-
ers and packers was still intact at the time of the instant
hearing.
6. The allegations of Section 8(a)(3) and (1)
In its brief, the General Counsel contends that the viola-
tions of Section 8(a)(3) and (1) of the Act herein consisted
of (1) Respondent's unreasonable delay in offering rein-
statement to Thomas and Annie Louise McBride on No-
vember 24, 11 days after their unconditional offer to return
to work; (2) Respondent's hiring of Sanchez in January
1973, before offering reinstatement to Susie McBride,
Vazquez, and Gonzalez, all three of whom had also made
an unconditional offer to return to work at the same time
as Thomas and Annie Louise McBride; and (3)
Respondent's hiring of Sarah Poe in March 1973 without
offering reinstatement to Susie McBride and Gonzalez.25
It cannot be gainsaid that, absent special considerations,
an employer's reinstatement obligation accrues to striking
employees at the time when they made an unconditional
application to return to work, and that, as to any available
jobs at that time for which they are qualified, the obligation
is to be satisfied to them by the employer in the order of
their entitlement, without unreasonable delay.26 Additional-
ly, it is well settled that, as to the remaining applicants, their
job does not depend on its availability at the precise mo-
ment of application. In the latter connection, the Board said
the following in Laidlaw Corporation, 171 NLRB 1366, p.
1369:
But, as we have noted previously, the Supreme Court
in Fleetwood and Great Dane has now held that the
right to the job does not dependon its availability at
as As already noted, Vasquez had been reinstated by Respondent by that
time.
Although the complaint , as amended , contained no allegation, as to (3)
above, this matter was litigated herein. In fact, the parties stipulated that
Respondent began to use the services of Poe on-Ivlarch 9, 1973, and that she
has been working as a packing employee ever since that'date,'performing
,substantially the same duties as the other packing employees.
za See Coca Cola 'Boetling Works, Inc., 186 NLRR 100, t and 2.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the precise moment of application, and that strikers
retain their status as employees who are entitled to rein-
statement absent substantial business justification,\ and
regardless of union animus. (the cases referred to above
are more fully described elsewhere in the decision as
N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375, and
N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26)
The underlying principle in both Fleetwood and Great
Dane, supra, is that certain employer conduct, standing
alone, is so inherently destructive of employee rights
that evidence of specific -antiunion motivation is not
needed. (footnote omitted) Specifically in Fleetwood,
the Court found that hiring new employees in the face
of outstanding applications for reinstatement from
striking employees is presumptively a violation of the
Act, irrespective of intent unless the employer sustains
his burden by showing legitimate and substantial rea-
sons for his failure to hire the strikers. A similar parallel
exists here which requires application of the same prin-
ciple. When job vacancies arose as the result of the
departure of permanent replacements, Respondent
could not lawfully ignore outstanding applications for,
reinstatement from strikers and hire new applicants
absent legitimate and substantial business reasons,
(footnote omitted) irrespective of intent.
Respondent, as already noted, asserts, in effect, in its
answer, as its justification for its conduct with regard to the
reinstatement of the six strikers, that "on or about and
between November 3, 1972 and November 10, 1972, Local
220, and the, former employees of respondent named in
paragraph 10 of the Complaint (the reference being to all six
strikers referred to herein), did make threats of reprisal and
to use force and violence upon Cherie Hunter and Ola
Poole" in order to restrain or coerce them to leave
Respondent's employ and join the Union, thereby violating
Section 8(b)(1)(A) of the Act.27 In addition, Respondent
adduced other evidence at the hearing of claimed threats by
strikers to engage in violence against other striker replace-
ments, and of other claimed misconduct. I shall detail the
relevant evidence at this point.
a. The claimed threats to Hunter
Rocco Fragola testified, during direct examination by
counsel for Respondent, that, on or about November 10,
after work, he saw Susie McBride push Hunter against his
car. He testified that, just prior thereto, there had been an
encounter at the same place between striker Gonzalez and
striker replacement Giles which he and Susie McBride and
other strikers had witnessed.28 However, during cross-exam-
ination by counsel for the General Counsel, he altered his
testimony to say that the alleged victim was striker replace-
ment Johnson and he could not remember that he had
testified, during direct examination, that it was Hunter;
thereafter, he again swore that it was Johnson; and finally,
on redirect examination by counsel for Respondent, he
27 So far as appears, no charge to this effect has ever been filed against the
Union
28 The details thereof are discussed at a later point
again testified that it was Hunter. In addition, Stallworth
testified, during cross-examination by counsel for Respon-
dent, that Susie McBride pushed a striker replacement
(whom she could not identify), as the latter tried to enter
Respondent's premises. In this state of the record, including
Susie McBride's denial that she ever pushed Johnson or
Hunter or any other individual during the strike, I conclude,
and find, that Respondent has failed to establish by a pre-
ponderance of the evidence that Hunter was ever threatened
or pushed by Susie McBride during the strike.
b. The claimed threats to Poole
November 7 was the first and only day that Poole worked
for Respondent as a food preparer and packer. After she
checked out that day, Rocco Fragola undertook to drive
striker replacements Giles, Johnson, and her to the Broad-
way subway station about 3 or 4 blocks away from
Respondent's facility. Rocco Fragola testified that the fol-
lowing then occurred: As he started to drive off with these
three women as passengers in his automobile, one, John,29
who is the assistant to Wilkerson, got strikers into a red
Chevrolet automobile and began to follow him. After trying
to avoid his pursuers without success, he pulled up at the
police station in the neighborhood and went into the station.
Poole would not remain in his automobile and followed him
into the station. As he was unable to get any police protec-
tion, he left the station. At this, Poole proceeded on her own
on foot to the subway station andhe left the scene , without
being followed by John's automobile, which was being
blocked by traffic in the immediate area.
Poole gave the following account of what happened to her
when she arrived at the subway station and proceeded down
the stairs to the subway: She was confronted near the ticket
booth by the two unknown Spanish boys. Without identify-
ing at whose bidding they were there, they said that they
were told to beat her up, that "they had something going on
at [Respondent's] job and they didn't want no one in there";
that they (the boys) were not going to do anything to her
that day but that they were telling her, "don't come back."
Thereupon, the boys left and Poole proceeded on her way.
In light of all the foregoing, including the fact that Poole
admitted that she was not threatened at the time she left the
plant, that the automobile which was behind the automobile
of Rocco Fragola in which she was a passenger was not so
close as to be tailgating, that she did not look and did not
see anyone in the other vehicle, and that the boys did not
tell her who told them to follow her or beat her up, I con-
clude, and find, that the record falls short of establishing
that any of the six strikers herein made threats of reprisal
and threats to use force and violence upon her.
c. The car following incident
on or about November 9
On the occasion in question, according to Rocco Fragola,
he was driving some of the striker replacements home or to
an elevated subway station, when he was followed by a car
driven by John and carrying a group of strikers. He tried,
29 His full name is not shown in the record.
PEPE'S INWOOD PACKING CO. 651
without success, to avoid the car following him by circling
around several blocks. Whereupon, he pulled up alongside
a police patrol car. After explaining to the policemen what
was happening, they detained John's car and directed him
to proceed, which he did, without further incident. ,
It is noteworthy that Rocco Fragola failed to identify any
of the strikers involved in this episode; in addition, he made
no mention of any threats of reprisal or threats to use force
or violence upon the striker replacements. Accordingly, I
find no basis for making any findings adverse to any of the
six strikers herein because of this incident.
d. The incident at or near the gasoline station
on or about November 10, and the car following
episode thereafter
Walters, one of the striker replacements, who impressed
me as a credible witness, testified as follows: On this occa-
sion, striker replacements Giles, Hunter, and she left work
and were on their way on foot to the subway. Walking
behind them, at a distance of about 3, 4 or 5 feet, were
Gonzalez and Annie Louise McBride. At one point, she and
her two companions walked into a store and Gonzalez and
Annie Louise McBride did the same. Thereupon, one of her
group said he had to return to the facility to see Roco
-Fragola, and they did so. When they resumed their walk to
the station, Gonzalez and Annie Louise McBride were be-
hind them again. Shortly thereafter, Rocco Fragola came
along in his car and urged them to get into his car, saying
that they were being followed. Rocco Fragola's car was also
being followed by a car. She did not get into Rocco
Fragola's car as she was to meet her husband in the vicinity.
The next thing that occurred was that Giles and Gonzalez
were "trying to fight," but they were separated by an uni-
dentified individual. Gonzalez had a metal instrument in
her hand, which she (Walters) thought was a crowbar. She
did not see Gonzalez pick up the metal object but they were
then near a gasoline station where a tire was being fixed by
someone. However, she did see Giles pick up a tire iron. She
did not know who picked up a metal object first, or who
spoke first, or what was said. About the time that Giles and
Hunter were entering Rocco Fragola's car, Gonzalez ap-
proached her and said that she did not want to hurt her, that
"there's a strike on and not to come back." No threats were
uttered by Gonzalez. She, thereupon, left the scene before
Giles and Hunter did.
According to Rocco Fragola, when he came upon the
scene, the following occurred: A heated exchange was in
progress between Giles and Gonzalez, the content of which
exchange he did not know. Gonzalez then picked up a lug
wrench', and raised it over her head, but someone at the
gasoline station restrained her. At this puncture, Giles
reached for an iron. Whereupon, he grabbed Giles and put
her into his car. Before he was able to drive away, however,
Gonzalez "banged" on a window of his car with the lug
wrench. About this time, John, who had come to the scene
with his car and some strikers, herded the strikers, including
Gonzalez and Annie Louise McBride, into his car and fol-
lowed him quite a few miles to the elevated subway sta-
tion.'" There, Giles and Hunter got out of his car and went
30 At this point on its route, the subway operates above ground.
into the station. Gonzalez still had the lug wrench in her
hand and started to run up the stairs. He pulled the lug
wrench from Gonzalez but she continued to run after Giles
and Hunter. While this was going on, the two McBrides,
Thomas and Pope were standing there looking a little fright-
ened. However, they all ran up the stairs when John said,
"go get them." As to all the foregoing, Gonzalez testified
that she did not recall ever having any argument or just
words with Giles. In addition, she denied that she ever
picked up a metal object in Giles' presence, or that she was
ever present with her at or near a gas station, or that she ever
chased Giles up or down any elevated subway station with
a metal object in her hand.
Contrary to Gonzalez' above denials, I am satisfied, and
find, on the basis of Walters' credited testimony and the
corroborating testimony of Rocco Fragola, that an episode
did occur, in the vicinity of a gasoline station, in which
Gonzalez and Giles were threatening each other with metal
objects. And as Rocco Fragola's testimony to the effect that
Gonzalez was the aggressor in this encounter was consistent
with the probabilities of the situation, I credit him in this
regard. Further, since his testimony as to what happened
from the time he started to leave the scene of Gonzalez'
assault upon Giles until the time he left the subway station
impressed me as being an accurate reflection of what, in
fact, occurred, I find, notwithstanding Gonzalez' denials,
that, as he was leaving with Giles and Hunter in his car,
Gonzalez was "banging" on the window of his car with the
lug wrench; and that, after he brought Giles and Hunter to
the station, Gonzalez got out of John's car, which was fol-
lowing his car, and started to run up the stairs after Giles
and Hunter with the lug wrench in her hand; and further,
that he managed to wrest the lug wrench from her at that
moment. In all these circumstances and on the entire rec-
ord, I find that the assault by Gonzalez upon Giles with the
lug wrench and her subsequent pursuit of Giles therewith
until checked by Rocco Fragola, together with her "bang-
ing" of the lug wrench on Rocco Fragola's car, was miscon-
duct of such a serious nature as to lose for her the protection
of the Act 31
e. The car following episode during
the week of November' 15
Caesar Fragola testified that, on this occasion, he had
three or four striker replacements in his car and was on the
way to the subway station. Trailing him was a car driven by
John with some strikers, including Gonzalez and Susie Mc-
Bride, in it. He testified further to the following develop-
ments: After being followed for a while, he stopped at a
comer where a group of policemen were standing and asked
for protection. Thereupon, the policemen detained John's
car and allowed him to proceed. About a minute later,
John's car was again behind him. Upon reaching the sta-
tion, he discharged his passengers. At this, the strikers began
to yell threats at the striker replacements, and Gonzalez
grabbed one of his passengers but she extricated herself and
31 See American Beauty Baking Company, 171 NLRB 700; Firestone Tire &
Rubber Company v. N.LR.B., 449 F.2d 511 (C.A. 5, 1971).
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
started to run upstairs to the elevated subway station. He
saw nothing further at that time.
In regard to the alleged threats to the striker replace-
ments, it is noteworthy that Caesar Fragola could not tell
specifically what words were spoken by the strikers, nor did
he identify which striker or strikers uttered these alleged
threats. And as to the act of grabbing a striker replacement,
which he attributed to Gonzalez, he could not identify the
alleged victim. Under these circumstances, I make no affir-
mative findings predicated on the above testimony of Cae-
sar Fragola.
The record also falls short of establishing that any threats
were made by any of the strikers to striker replacements in
the elevated subway station. Thus, Annie Louise McBride
testified, under cross-examination by counsel for Respon-
dent, that Gonzalez, some of the strikers, and she did follow
the striker replacements up the stairs, that Gonzalez told
them that they were taking the strikers' jobs away and not
to come back to work for Respondent. Gonzalez also gave
testimony, under cross-examination by Respondent's coun-
sel, in this regard. According to her, she asked striker re-
placements Giles and Johnson, "please don't" cross the
picket line, and they answered that "they don't care. They're
coming back." In addition, she denied putting any hands on
them or threatening them. I note, too, that there is no coun-
tervailing testimony by Johnson or Giles, neither of whom
was called as a witness in this proceeding.
f. The car following incident on or
about the week of November 22
In view of Caesar Fragola's testimony that he was driving
some striker replacements away from the plant on this occa-
sion, and that, although he was followed by John's car with
strikers in it, nothing eventuated as he was able to outma-
neuver John's car, it is clear, and I find, that this episode
also falls short of warranting any findings adverse to any of
the strikers.
g. The incident of the punctured tires
There is testimony by Rocco Fragola that one evening,
the date not being fixed in the records, he attempted to drive
some striker replacements home but was unable to do so
because two of the tires on his car had been punctured; and
that one of the tires on Caesar Fragola's car, which car he
could have used, had also been punctured. On this state of
the record, and as neither Rocco nor Caesar Fragola identi-
fied any of the strikers as the wrongdoers, I conclude, and
find, here too, that there is no warrant for making any
findings adverse to any of the strikers.
It. The remarks attributed to Gonzalez
during an alleged conversation
with an unnamed locksmith
Rocco Fragola testified that he overheard Gonzalez say
to a locksmith who was fixing the locks at the facility, which
had been stuffed with wood, "no sense in your fixing these
locks, they are going to be broken tomorrow." Although
admitting that she could have been on "the other side" when
there was a locksmith on the premises, she testified further
that she had no recollection of ever having made such a
remark. As the locksmith was not called as a witness by
Respondent, and as it is apparent from my findings hereto-
fore that Rocco Fragola was not consistently truthful in his
testimony, I perceive no sufficient basis for making any
findings adverse to Gonzales based on this uncorroborated
testimony of Rocco Fragola.
7. Analysis and conclusions as to the
8(a)(3) and (1) allegations
As it is apparent from my findings heretofore that, on
November 24, about 2 days after the strike was over, Re-
spondent staffed up from a complement of three food pre-
parers and packers 32 to a complement of five such
employees; and as I have found further that Respondent's
normal complement of food preparers and packers during
the poststrike period material herein was five, thereby the
size of its complement of such employees on the eve of the
strike, it follows, and I find, that there were two available
jobs for which the strikers were qualified, from the time of
their unconditional application for reinstatement on No-
vember 13, until November 24, when they were filled by the
reinstatement of Thomas and Annie Louise McBride.3 Ac-
cordingly, since Respondent's obligation to reinstate them
to the existing vacancies accrued on November 13, when
they, along with the other four strikers, made their uncondi-
tional request for reinstatement, and as Respondent failed
to adduce any evidence to show that the delay of I 1 days
in acting upon this obligation was due to legitimate and
substantial business justifications, I find further that it en-
gaged in unreasonable delay in effecting their reinstatement
and that such conduct contravened Section 8(a)(3) and (1)
of the Act 34
I come now to the other four strikers who made uncondi-
tional applications for reinstatement. There is no reinstate-
ment issue before me with respect to Stallworth as she
returned to her job with Respondent on December 4, and
the complaint, as amended, does not allege, nor is it con-
tended here, that Respondent's personnel action as to her
was belated and therefore discriminatory. As to Gonzalez,
since I have found that she engaged in such serious miscon-
duct during the strike as to lose the protection of the Act,
I find further that the allegations of the complaint, as
amended, that Respondent discriminated against her have
not been sustained. However, as to Susie McBride and
Vazquez, I find that (1) by failing to act on their uncondi-
tional requests for reinstatement and to offer reinstatement
to theca before hiring a new employee as of January 10,
1973, to fill a job vacancy created by the departure of a
striker replacement (Walters on January 7, 1972); and (2) by
failing again to act on the unconditional request of Susie
McBride (Vazquez having been reinstated in the interim
32 Although the General Counsel does not so state in haec verbs, he, in
effect, concedes throughout his brief herein that the three incumbent employ-
ees were permanent replacements.
33 The General Counsel does not here contend that Respondent acted
improperly by selecting them for reinstatement. Furthermore , their selection
was consistent with their semorsty standing, as detailed hereinafter.
34 See Coca-Cola Bottling Works, Inc., supra.
PEPE'S INWOOD PACKING CO. 653
period) and to offer reinstatement to her before hiring a new
employee on March 9 , 1973, to fill a vacancy created by the
departure of another striker replacement (Giles on Febru-
ary 20), Respondent has also violated Section 8 (a)(3) and (1)
of the Act.`?
Upon the basis of the entire record relating to Case 29-
CA-3136, 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 meaning
of Section 2(5) of the Act.
3. By failing to act promptly on the unconditional re-
quests for reinstatement of Betty Thomas and Annie Louise
McBride at a time when jobs were available for them, there-
by causing an unreasonable delay in their reinstatement; by
failing to act on the unconditional requests of strikers Susie
McBride and Margarita Vazquez for reinstatement and to
offer reinstatement to them before hiring a new employee
as of January 10, 1973, to fill a job vacancy created by the
departure of a striker replacement; and by failing again to
act on the same unconditional request of Susie McBride
(Vazquez having been reinstated in the interim period) and
to offer reinstatement to her before hiring a new employee
to fill a job vacancy created by the departure of another
striker replacement, Respondent has discriminated in re-
gard to the hire and tenure of employment of its employees
and has engaged in, and is engaging, in unfair labor practic-
es within the meaning of Section 8(a)(3) and (1) of the Act.
4. Respondent has not discriminated against Zoraida
Gonzalez in violation of Section 8(a)(3) and (1) of the Act.
IV. FINDINGS AS TO THE REMAINING THREE
CHALLENGED BALLOTS IN CASE
29-RC-2113
A. The Challenged Ballots of Susie McBride
and Tempie Pope
I have found heretofore that Susie McBride and Tempie
Pope were temporarily laid-off employees on October 20
and that they thereafter joined in the economic strike. In
this connection, it is clear that their employee status as of
December 8, the day of the election in Case 29-RC-2113,
is to be determined by applying the applicable criteria for
determining the eligibility of economic strikers to vote, un-
der Section 9(c)(3) of the Act, in elections held within 1 year
of the commencement of a strike, which criteria were set
forth initially in Pacific Tile and Porcelain Company, 137
NLRB 1358, and were recently stated by the Board in Q-T
Tool Company, Inc., 199 NLRB 500. In the latter case, the
Board said, in relevant part:
There (i.e., in Pacific Tile and Poreclain), the Board
stated that an economic striker is presumed to continue
in that status and thus is eligible to vote under Section
35 See the Fleetwood, Great Dane, and Laidlaw cases referred to in the text,
supra. See also Brooks Research & Manufacturing, Inc., 202 NLRB 634.
9(c)(3) of the Act. In order to rebut the presumption of
eligibility the party challenging must affirmatively
show by objective (underscoring in text) evidence that
the economic striker has abandoned his interest in his
struck job. The Board noted that the nature of the
evidence which might rebut the presumption would be
determined on a case-by-case basis, but it cautioned
that "acceptance, of other employment, even without
informing the new employer that only temporary em-
ployment is sought, will not of itself be evidence of
abandonment of the struck job so as to render the
economic striker ineligible to vote."
I am satisfied that the application of these criteria to the
instant situation dictates a result favoring eligibility. This is
so because the presumption that Susie McBride and Tempie
Pope, who were temporarily laid-off employees at the time
of the strike's inception and on the day of the election, were
eligible to vote in that election has not been rebutted by
Respondent-Employer by an affirmative showing by objec-
tive evidence that they have abandoned their interest in
further employment by it. Accordingly, I conclude, and
find, that Susie McBride and Tempie Pope were eligible to
vote in the election held on December 8.
B. The challenged ballot of Caesar Fragola
The ballot of Caesar Fragola was challenged by the Peti-
tioner on two grounds; namely, that he is a supervisor with-
in the meaning of the Act, and/or that, as a brother of
Rocco Fragola, he enjoys a special status with Respondent.
Respondent-Employer denies that either ground has validi-
ty.
Respondent's employee complement consisted, for a
good part of each year, of about five women and two or
three men. During the rest of the year, i.e., from about July
to October, which coincided with Respondent's busy sea-
son, the complement of women was increased to about
eight. The women did the food preparing and packing as a
general rule, whereas the other functions in the facility were
handled by the men. At all times material herein, Respon-
dent employed three men in the facility; namely, Michael
Fragola, Peter Zertuchie, and Caesar Fragola. As to Mi-
chael Fragola, the Regional Director found in his report on
challenged ballots that he was a student, who worked as a
general helper on a full-time basis during the summer of
1972 and on a part-time basis thereafter. As to the others,
the record shows that Zertuchie spent 1 day or so a week
making deliveries by truck and the rest of the week inside
the facility moving and storing stock, and being generally
useful; and that Caesar Fragola divided his time between
working along with the others inside the plant and also
doing machinery maintenance. Caesar was the senior
among all these employyees, having been hired by Respon-
dent in 1969 or 1970.3
Rocco Fragola had the primary responsibility for over-
seeing these operations. However, he spent considerable
time away from the production area. Thus, as already
found, he was away from the facility every Thursday attend-
ing to his selling duties; he spent 2 or 3 hours a week during
36 His tenure ended before the instant hearing.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the peak season, and about a day and a half a week, in all,
during the rest of the'year, in the office, which is separate
and apart from the production area; and credible testimony
adduced by the General Counsel establishes that he was not
always present at the facility when production began at 8
o'clock in the morning, arriving at times about 9 o'clock or
later . During Rocco Fragola's absences, the employees
looked to Caesar Fragola for guidance. Although Rocco
Fragola admitted only that Caesar Fragola "was in charge"
of the facility on Thursdays, and Caesar Fragola similarly
admitted that, in addition to his regular duties on that day,
it was his responsibility to see that "there was no impedi-
ment in the production process . . . in the packing room,"
it is apparent from other credible testimony, and I find
further, that Caesar Fragola was in charge at those other
times when Rocco Fragola was not in the production area.
During all these periods, Caesar Fragola would answer any
questions by employees as to their work; would see to it that
the women were kept busy and would tell them what vegeta-
ble to prepare and pack next; '37 would take care that the
women did not-run out of the raw vegetable which was
being packed, that they had such other raw materials as
were needed, and that they had knives and that these knives
were kept sharpened; would make the assignments when the
women arrived on Thursdays and on those mornings when
Rocco Fragola was not there`; would change their assign-
ments, if a need therefor was indicated; and would oversee
the work of Zertuchie and Michael Fragola directing them
to bring into the packing area whatever supplies were need-
ed. I note, too, that Caesar Fragola acknowledged that Roc-
co Fragola would speak to him, at times, about the need for
greater production, and that he would complain to Rocco
Fragola about employee derelictions of duty. Noteworthy
in -this connection, too, is the fact that Caesar Fragola's
hourly rate of pay was $3.12 1/2, whereas that of the women
was $1.95 to $2.
To implement its contention that Caesar Fragola was not
a supervisor within the Act's meaning, Respondent points
to the facts that he did not have the authority to hire or
discharge employees, and had never hired or discharged an
employee, and that he had the same employee and vacation
benefits as the other employees in the unit. However, not-
withstanding all the foregoing, I deem controlling my other
findings herein which establish, I find further, that, for con-
siderably more than a day each week on a regular basis,
Caesar Fragola responsibly directed the employees at the
facility, exercising his independent judgment in the course
thereof. It follows, therefore, and I conclude, and find, that
Caesar Fragola was, at all times material herein, a supervi-
sor within the meaning of Section 2(11) of the Act.38 Ac-
cordingly, I find also that he was not eligible to vote in the
37 While it is true that Rocco Fragola maintained a chart in the work area
for his use, and for Caesar Fragola's use , in his absence , with detailed instruc-
tions as to what was to be done, i .e., the product that had to be packed on
a given day , the size of the glass and the cap, Caesar Fragola testified that,
"if there was an unusual decision to be made [he] tried to make it," e.g , he
would decide on alternate action to be taken when a machine broke down.
38 Although, as heretofore found, Caesar Fragola is a brother of Rocco
Fragola, the record reveals nothing in support of the Petitioner's alternative
contention that he enjoyed a special status with Respondent because of such
relationship . I find, therefore , that this contention is lacking in merit.
election held on December 8.
Recommendation Respecting the Three Challenged
Ballots in Case 29-RC-2113
I have just found that Susie McBride and Tempie Pope,
whose ballots were,challenged in the election in the above
case where eligible to vote, and that Caesar Fragola„whose
ballot was also challenged, was not eligible to vote. As the
ballots of Susie McBride and Tempie Pope are determina-
tive of the election results, I shall, in accordance with the
order consolidating cases herein of the Regional Director
for Region 29, sever Case 29-RC-2113 and transfer it to
him, along with my recommendation that he overrule the
challenges to the ballots of Susie McBride and Tempie
Pope, and sustain the challenge to the ballot of Caesar
Fragola; and, further, that he open and count the ballots of
Susie McBride and Temple Pope and issue either a Certifi-
cation of Representative to the Petitioner or a Certification
of Results of Election, depending upon the results of the
revised tally, including these two valid ballots.
The Remedy Respecting the Unfair
Labor Practices Found
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and (1)
of the Act, I shall recommend that Respondent cease and
desist therefrom and that it affirmatively take such action
as will dissipate the effects of its unfair labor practices.
Having found that Respondent unlawfully delayed the
reinstatement of strikers Betty Thomas and Annie Louise
McBride, I shall also recommend , in order to compensate
them for any loss of earnings they have experienced as a
result of this conduct, that Respondent make each of them
whole by payment to each of a sum of money that she would
have earned as wages from November 18, 1972, 5 days after
her request for reinstatement, to November 24, 1972, the
date upon which she was actively employed.
Having also found that Respondent discriminated
against Susie McBride and Margarita Vazquez by failing to
offer them reinstatement before hiring a new employee as
of January 10, 1973, to fill a job vacancy created by the
departure of a striker replacement; and that Respondent
further discriminated against Susie McBride (Vazquez hav-
ing been reinstated in the interim period) by failing to offer
her reinstatement thereafter on March 9, 1973, before hiring
a second new employee, I shall also recommend that Re-
spondent remedy these violations in the following way for
the reasons indicated hereinafter: As Vazquez has already
been reinstated by Respondent, I shall recommend that
Respondent offer immediate and full reinstatement only to
Susie McBride,' without prejudice to her seniority or other
rights and privileges. As to backpay entitlement, since there
was only one vacancy on January 10, 1973, when Susie
McBride and Vazquez were discriminated against, and
since Vazquez was reinstated about a month later, a ques-
tion is presented here as to the date upon which each of
them would have been recalled in accordance with a nondis-
criminatory system employed by Respondent in compara-
ble situation;. The record indicates that as to those strikers,
I
PEPE'S INWOOD PACKING CO.
including Vazquez, who were recalled after the termination
of the strike, Respondent employed a seniority system; i.e.,
all, except Susie McBride who was not recalled, were re-
called on a seniority basis 39 Accordingly, had Respondent
employed such a method of recall in the case of Susie Mc-
Bride, she would have been the one recalled on January 10,
1973, when that single job vacancy occurred. In view of this,
and as an objective formula based upon seniority appears
quite appropriate in the circumstances, I shall recommend
the application of that objective formula here, thereby mak-
ing backpay for Susie McBride, in compensation for the loss
of earnings she has experienced as a result of the discrimina-
tion against her, begin on January 10, 1973, and continue
thereafter until the date on which a valid offer of reinstate-
ment is made to her by Respondent. However, with respect
to Vazquez, since it appears that she was in no way preju-
diced insofar as her reinstatement was concerned, in that
her recall was not in violation of Respondent's seniority
system, there is no warrant for awarding backpay to her for
the period between January 10, 1973, and February 6, 1973,
the date on which she was actually reinstated 40
Loss of earnings as referred to above shall consist of a
sum of money equal to that which the discriminatee would
have earned as wages during the period set forth above as
to her, less her net earnings during such period, with back-
pay and interest thereon to be computed in the manner
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing and Heating Co., Inc., 138
NLRB 716.
Upon the bas'.s of the foregoing findings of fact and con-
clusions of law, and upon the entire record in the case, I
hereby issue the following recommended:
39 Thus, as to Betty Thomas and Annie Louise McBride, who were rein-
stated on November 24 and were the first ones reinstated , the record shows
that Thomas had the most seniority, having transferred from the former
location of Respondent to the present location, and that Annie Louise Mc-
Bride was hired at the present location on June 27, 1972 (Susie McBride was
also hired on that date). Next to be reinstated was Stallworth who was hired
in August 1972. And the last one to be reinstated was Vazquez, who was hired
on September 11, 1972.
40 I recognize that the consequence of the above is that no affirmative order
is recommended here against Respondent because of the discrimination
against Vazquez found herein . However, the result is warranted , I find,
because the violation of the Act in this instance was, in all the circumstances,
a technical one.
ORDER41
655
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities in behalf
of, Local 220, Food Packing, Cannery and Miscellaneous
Workers Union of the Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or any
other labor organization, by failing to reinstate, or delaying
unreasonably in reinstating, to existing vacancies economic
strikers who have made unconditional requests for rein-
statement to their jobs.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Offer to Susie McBride immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position without prejudice to her
seniority or other rights and privileges, and make her whole
for any loss of earnings she has suffered, in the manner set
forth in the section hereof entitled "The Remedy."
(b) Make whole Betty Thomas and Annie Louise Mc-
Bride for any loss of earnings each has suffered, in the
manner set forth in the aforesaid Remedy section.
(c) Preserve and, upon request, make available to the
National Labor Relations Board or its agent, for examina-
tion and copying, all payroll records, social security records,
timecards, personnel records and reports, and all other rec-
ords necessary or useful to determine or compute the
amount of backpay due, as herein provided.
(d) Post at its facility in Brooklyn, New York, copies of
the attached notice marked "Appendix." 42 Copies of said
notice, on forms provided by the Regional Director for
Region 29, of ter being signed by a representative of Respon-
dent, shall be posted by Respondent immediately upon re-
ceipt thereof and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(e) Notify the said Regional Director, in writing, within
20 days from the date of the receipt of this Decision, what
steps Respondent has taken to comply herewith.
4' 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.
42 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."