Davis Supermarkets

National Labor Relations Board - Board Decisions

Feb 27, 1992

306 N.L.R.B. 426 (N.L.R.B. 1992)

426
306 NLRB No. 86
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent’s request for oral argument is denied as the
record, the exceptions, and briefs adequately present the issues and
the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 In finding that the Respondent unlawfully rendered assistance to
the Steelworkers by urging its employees to join the Steelworkers
and by permitting the Steelworkers to utilize its facility, the judge
inadvertently stated that the Respondent violated Sec. 8(a)(5) of the
Act. The complaint alleges, and it is clear from his discussion, that
the judge intended to find that the Respondent violated Sec. 8(a)(2).
4 All subsequent dates are in 1986 unless indicated otherwise.
Davis Supermarkets, Inc. and United Food and
Commercial Workers International Union,
Local Union 23, AFL–CIO–CLC. Cases 6–CA–
19076, 6–CA–19159, 6–CA–19428, and 6–CA–
19388
February 27, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On March 28, 1990, Administrative Law Judge John
H. West issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions3 as modified and to adopt the remedy and
recommended Order as modified.
1. The judge found that the Respondent unlawfully
discharged six employees on April 19, 1986.4 The Re-
spondent excepts to the judge’s finding that the Com-
pany had knowledge of the employees’ union activity.
In agreeing with the judge’s finding that the discharges
were part of a scheme to thwart the employees’ orga-
nizing drive, we also rely on ACTIV Industries, 277
NLRB 356 fn. 3 (1985), in which the Board stated:
[W]e emphasize that it is the Respondent’s mass
discharge, and not its selection of employees for
the discharge, that is unlawful. Accordingly, the
General Counsel was not required to show a cor-
relation between each employee’s union activity
and his or her discharge. Pyro Mining Co., 230
NLRB 782 fn. 2 (1977); see Birch Run Welding
& Fabricating v. NLRB, 761 F.2d 1175, 1180 (6th
Cir. 1985). Instead, the General Counsel’s burden
was to establish that the mass discharge was or-
dered to discourage union activity or in retaliation
for the protected activity of some.
2. The complaint in Case 6–CA–19159 alleges that
the Respondent ‘‘discriminatorily refused to permit the
Union to picket and handbill on its Hempfield Town-
ship, Pennsylvania property, while permitting other or-
ganizations access to its property for purposes of solic-
iting its customers and related activities.’’ For the fol-
lowing reasons, we find merit to the complaint allega-
tion.
On May 23, the Union established a picket line at
the Respondent’s Hempfield store to protest the Re-
spondent’s unfair labor practices. The pickets, sta-
tioned on the sidewalk in front of the store, carried
signs and distributed handbills to the Respondent’s
customers. The Respondent’s president, Robert Davis,
told the pickets they were not allowed on the sidewalk
and threatened to call the police. On May 24, as a re-
sult of an injunction against the picketing obtained by
the Respondent, the pickets were advised they could
not picket on the sidewalk in front of the store. The
pickets moved to the two parking lot entrances.
On the same day that the Respondent refused to
allow the pickets to remain in front of the store, it per-
mitted a charitable organization to set up a table on the
sidewalk and sell raffle tickets for a car, which was
parked in the lot in front of the store. Several employ-
ees testified that they have seen church and school or-
ganizations in front of the store selling items to the
Respondent’s customers.
The Respondent asserts in its brief that the car raffle
was only an isolated incident. The record evidence,
however, is that the Respondent has allowed other or-
ganizations to solicit customers on the sidewalk imme-
diately in front of the store. This testimony was not re-
futed by the Respondent at the hearing.
The judge found that the Respondent was enforcing
its property rights selectively. The judge also, citing
Jean Country, 291 NLRB 11 (1988), found that the
Union’s Section 7 right outweighed the private prop-
erty rights of the Respondent. The judge concluded
that, by forcing the handbillers and pickets to leave the
sidewalk, the Respondent violated Section 8(a)(1) of
the Act.
We agree with the judge that the Respondent vio-
lated the Act by denying access to the Union, but we
reach that conclusion solely because of the Respond-
ent’s disparate treatment of protected union activity.
Although the Supreme Court in Lechmere v. NLRB,
111 S.Ct. 1305 (1992), rejected the Board’s holding in
Jean Country, the Lechmere decision does not disturb
the Court’s statement in NLRB v. Babcock & Wilcox,
351 U.S. 105, 112 (1956), that ‘‘an employer may val-
idly post his property . . . if [it] does not discriminate
against the union by allowing other distribution.’’ See
also Sears, Roebuck & Co. v. San Diego County Dis-
427DAVIS SUPERMARKETS
5 In addition to unrebutted testimony that the Respondent had per-
mitted church and school organizations access to its property, we
also rely on the fact that the Respondent permitted the Steelworkers
to utilize its facility for union organizing purposes. See fn. 3, supra.
6 There is no evidence that the Respondent has a policy barring
access to its premises by outside organizations. In Lechmere, by con-
trast, the Court observed that the respondent had established and
consistently enforced a policy several years prior to the union’s or-
ganizing efforts prohibiting solicitation or handbill distribution of
any kind on its property.
7 We therefore find it unnecessary to engage in an accommodation
analysis of the Sec. 7 and property rights. The judge’s conclusions
of law and recommended Order and notice accurately reflect the dis-
criminatory nature of the violation we have found.
8 If it takes this action within 7 days, the Board will not find a
violation. Loehmann’s Plaza, supra at 667.
9 Under Loehmann’s Plaza, supra, the Respondent’s filing of the
lawsuit and maintenance of the lawsuit up until the time the General
Counsel issued a complaint did not constitute a violation of the Act,
since no evidence has been presented that the Respondent’s purpose
in pursuing the lawsuit prior to the time the General Counsel issued
his complaint was other than to protect, or at least to have adju-
dicated, its property rights.
In order to place the Union in the position it would have been in
absent the Respondent’s unlawful conduct, we shall order the Re-
spondent to make the Union whole for all legal expenses, plus inter-
est, incurred in defending against the Respondent’s lawsuit after the
July 25 issuance of the complaint in this proceeding.
We also agree with the judge that the Respondent violated Sec.
8(a)(1) by threatening to have persons engaged in handbilling on be-
half of the Union arrested and causing the state police to visit the
store.
trict Council of Carpenters, 436 U.S. 180, 205 (1978).
Here there is sufficient evidence that both before and
during the time that the Union sought to picket in front
of the Respondent’s store, the Respondent allowed
other organizations unlimited access to its property for
sales and solicitations.5 At the same time, the Re-
spondent has denied the Union the use of the same
premises for handbilling and picketing purposes.6
Under these circumstances, we find the Respondent’s
conduct constituted unlawful disparate treatment of
protected union activity in violation of Section 8(a)(1)
of the Act.7
3. As previously noted, the Union engaged in pick-
eting and handbilling on May 23 on Respondent’s
property. On that same day, the Respondent filed a
civil trespass complaint against the Union in the Court
of Common Pleas of Westmoreland County, Pennsyl-
vania. On May 28, the court enjoined the Union from
picketing except for three pickets who were allowed at
each entrance to the store parking lot. The Union
ceased picketing, and in June the Union filed an unfair
labor practice charge. On July 25, the General Counsel
issued a complaint alleging that the Respondent vio-
lated Section 8(a)(1) by denying the Union access to
the premises and by maintaining a civil trespass suit
enjoining the Union from picketing.
On July 22, the Union again picketed at the parking
lot entrances. The Respondent threatened to have the
pickets arrested and caused the Pennsylvania State Po-
lice to come to the store premises. On August 2, a
sheriff’s deputy handed the pickets a document indi-
cating they were no longer allowed in the parking lot.
On October 3, the General Counsel issued a complaint
in Case 6–CA–19428 alleging that the Respondent,
since on or about July 2, violated the Act by threat-
ening to have persons engaged in handbilling arrested;
causing the police to come to the store; and, through
the assistance of the county sheriff, enforcing the in-
junction the Respondent had previously obtained.
On November 24, the Court of Common Pleas
issued a decision dismissing the Union’s claim that the
court’s action was preempted by the Board’s pro-
ceedings. On November 26, the court, granting the Re-
spondent’s motion, ordered the Union and four former
employees to show cause why they should not be held
in contempt for allegedly violating the terms of the
court’s May 28 order.
We agree with the judge that the Respondent vio-
lated Section 8(a)(1) of the Act by maintaining its civil
trespass suit against the Union, but we do so solely for
the reasons stated in our recent decision in Loehmann’s
Plaza, 305 NLRB 663 (1991). In that case, the Board
held that once a complaint issues alleging the unlawful
exclusion of employees or union representatives from
an employer’s property, any state court lawsuit con-
cerning the question is preempted by the Board’s pro-
ceedings and the continued pursuit of such a lawsuit
violates Section 8(a)(1). As we stated in Loehmann’s
Plaza, a respondent has an affirmative duty to take ac-
tion to stay the state court proceeding following
issuance of the Board complaint.8 There is no evidence
that the Respondent took any action to stay the court
proceeding. On the contrary, the Respondent sought a
contempt citation against the Union and the individ-
uals.
We find that the Respondent violated Section 8(a)(1)
by continuing to maintain the lawsuit, enforcing the in-
junction through the assistance of the county sheriff,
and filing and maintaining a motion for an order to
show cause and for civil contempt against the Union
and four employees and seeking to enforce by fines
and other penalties the aforementioned injunction after
the General Counsel issued a complaint alleging that
the Respondent unlawfully denied the Union access to
its premises.9
4. The judge found that the Union represented a ma-
jority of unit employees at the Hempfield store when
the Union requested bargaining. The Respondent
excepts. The Respondent argues that the judge erred by
excluding 23 employees and that including them in the
unit would negate the Union’s majority status. For the
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 On May 13, there were 108 employees in the bargaining unit.
The judge found there were 107, but he inadvertently excluded em-
ployees Christner and Vallozzi, who were still employed on May 13,
and included Michele Benson, who did not begin work until May
21. On May 24, there were 109 employees in the unit—Vallozzi had
ceased working on May 16; Benson began work on May 21 and
Hart on May 19. The judge found that the Union represented a ma-
jority (58 of 109) on May 24.
The Union’s request for bargaining was made on May 13, but it
was a continuing demand, still viable as of May 24; and, particularly
in the context of the Respondent’s unfair labor practices, it did not
have to be renewed. See Jimmy-Richard Co., 210 NLRB 802, 807–
808 (1974); Ed’s Foodland of Springfield, 159 NLRB 1256, 1262–
1263 (1966).
11 See Otasco, Inc., 278 NLRB 376 (1986). We find it unnecessary
to determine the unit placement of the five Greensburg employees
who were not Steelworkers members. It is unclear from the record,
including the questions framed by examining counsel, whether wit-
nesses’ use of the term ‘‘Steelworker members’’ was meant to refer
to employees covered by the Steelworkers collective-bargaining
agreement and whether the witnesses regarded nonmembers as indi-
viduals not covered by the agreement. We also find it unnecessary
to determine the unit placement of Thomas Howard. Even assuming
that these six individuals should be included in the unit, the Union
still would have represented a majority on May 24.
12 The judge found that Sheridan’s work pattern ‘‘corresponds’’ to
that of a college student and excluded him from the unit.
13 See Crest Wine & Spirits, 168 NLRB 754 (1967).
14 283 NLRB 1173 (1987).
following reasons, we agree with the judge’s finding of
majority status.10
The judge excluded from the Hempfield unit 11 em-
ployees employed at the Respondent’s Greensburg
store who were members of the Steelworkers, which
represented a bargaining unit at the Greensburg facil-
ity. Although these employees worked for certain peri-
ods of time at the Hempfield store, where they per-
formed the same work as they performed at Greens-
burg, they remained under the primary supervision of
their Greensburg store supervisors and spent the major-
ity of their working hours at the Greensburg store.
These employees are in the Greensburg unit the Steel-
workers represent and they are expressly covered by
the existing collective-bargaining agreement between
the Respondent and the Steelworkers. Under these cir-
cumstances, we agree with the judge that these em-
ployees should not be included in the Hempfield unit
represented by the United Food and Commercial
Workers Union.11
The judge excluded five college students and Tim
Sheridan from the unit.12 These employees worked al-
most exclusively during time periods traditionally asso-
ciated with summer vacation and holidays. Their em-
ployment at other times during the school year was
sporadic and intermittent, at best. We agree with the
judge that, based on Board precedent, these employees
should be excluded from the unit.13
AMENDED REMEDY
To remedy the Respondent’s violation of Section
8(a)(1) in maintaining a civil trespass suit against the
Union after the Board issued a complaint, we shall
order the Respondent to make the Union whole for all
legal expenses, with interest as computed in New Hori-
zons for the Retarded,14 incurred after the July 25,
1986 issuance of the complaint in this proceeding in
the defense of the Respondent’s suit against the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Davis
Supermarkets, Inc., Hempfield Township, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(s) and reletter
the subsequent paragraph.
‘‘(s) Refusing to recognize and bargain with United
Food and Commercial Workers International Union,
Local Union 23, AFL–CIO–CLC, as the exclusive bar-
gaining representative of the employees in the appro-
priate unit.’’
2. Insert the following paragraph as 2(d) and reletter
the subsequent paragraphs.
‘‘(d) Reimburse the Union for all legal expenses,
plus interest, incurred after the July 25, 1986 issuance
of the complaint in Case 6–CA–19159 in the defense
of the Respondent’s lawsuit against the Union.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate an employee regarding the
employee’s union membership, activities, and sym-
pathies and the union membership, activities, and sym-
pathies of fellow employees.
429DAVIS SUPERMARKETS
WE WILL NOT create an impression among our em-
ployees that their union activities are under surveil-
lance by us.
WE WILL NOT solicit employee complaints and
grievances thereby promising our employees increased
benefits and improved terms and conditions of employ-
ment.
WE WILL NOT threaten employees with store closure
if they select the Union as their collective-bargaining
representative.
WE WILL NOT threaten employees with unspecified
reprisals if they support the Union.
WE WILL NOT threaten employees that their union
organizational activity is futile.
WE WILL NOT threaten employees by accusing them
of disloyalty for supporting the Union.
WE WILL NOT make verbal announcements and,
through the assistance of the Pennsylvania State Police,
discriminatorily refuse to permit the Union to picket
and handbill on our Hempfield Township, Pennsyl-
vania property while permitting other organizations ac-
cess to our property for purposes of soliciting our cus-
tomers and related activities.
WE WILL NOT maintain a civil trespass suit against
the Union in the Court of Common Pleas of West-
moreland County, Pennsylvania, which enjoins the
Union from picketing on our Hempfield Township
premises.
WE WILL NOT threaten to have persons engaged in
handbilling on behalf of the Union arrested.
WE WILL NOT cause the Pennsylvania State Police
to visit our above-described facility.
WE WILL NOT enforce, through the assistance of the
Westmoreland County, Pennsylvania sheriff, the in-
junction we obtained as a result of the above-described
civil trespass suit.
WE WILL NOT file and maintain a motion for an
Order to Show Cause and for Civil Contempt against
the Union and our employees and seek to enforce, by
fines and other penalties, the aforementioned injunc-
tion.
WE WILL NOT urge our employees to join the United
Steelworkers of America, AFL–CIO–CLC and permit
the Steelworkers to utilize our facility, thereby ren-
dering aid and assistance to the Steelworkers.
WE WILL NOT change the work schedule of an em-
ployee thereby causing the employee’s termination.
WE WILL NOT impose onerous terms and conditions
of employment on an employee thereby causing the
employee’s termination.
WE WILL NOT unlawfully lay off our employees and
refuse to recall the employees in retaliation for their
exercising rights protected by the National Labor Rela-
tions Act.
WE WILL NOT unlawfully discharge an employee
and refuse to recall that employee in retaliation for his
exercising rights protected by the National Labor Rela-
tions Board.
WE WILL NOT refuse to recognize and bargain with
United Food and Commercial Workers International
Union, Local Union 23, AFL–CIO–CLC, as the exclu-
sive bargaining representative of the employees in the
unit described below.
WE WILL NOT in any manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL offer Deborah Defibaugh, Charlene Garris,
Lance Good, Jennifer Hilty, Sharlane Shotts, Sonja
Welsh, Larry Miller, Charles Miscovich, and Linda
Kunkle immediate and full reinstatement to their
former positions or, if such positions no longer exist,
to substantially equivalent positions, without prejudice
to their seniority or other rights or privileges and make
them whole for any loss of pay they may have suffered
by reason of our discrimination against them with
backpay and interest thereon.
WE WILL remove and expunge from the personnel
files of Deborah Defibaugh, Charlene Garris, Lance
Good, Jennifer Hilty, Sharlane Shotts, Sonja Welsh,
Larry Miller, Charles Miscovich, and Linda Kunkle all
documents which relate to our actions which have been
found to be unfair labor practices, and make whatever
record changes are necessary to negate the effect of
these documents and our unlawful actions.
WE WILL reimburse the Union for all legal expenses,
plus interest, incurred after the July 25, 1986 issuance
of the complaint in the instant proceeding in the de-
fense of the lawsuit we brought against the Union.
WE WILL, on request, recognize and bargain collec-
tively with United Food and Commercial Workers
International Union, Local 23, AFL–CIO–CLC as the
exclusive representative of all employees in the appro-
priate unit with respect to rates of pay, wages, hours,
and other terms and conditions of employment and, if
an understanding is reached, embody such under-
standing in a signed agreement. The appropriate bar-
gaining unit is:
All full-time and regular part-time employees em-
ployed by Davis Supermarkets, Inc. at its Hemp-
field Township, Pennsylvania, location; excluding
confidential employees, students employed pursu-
ant to cooperative education programs and guards,
professional employees and supervisors as defined
in the Act.
DAVIS SUPERMARKETS, INC.
Barton A. Meyers, Esq. and Patricia J. Scott, Esq., for the
General Counsel.
Peter J. Ennis, Esq., John C. Pekar, Esq., and Stuart A. Wil-
liams, Esq. (Eckert, Seamans, Cherin & Mellott), of Pitts-
burgh, Pennsylvania, for the Respondent.
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1986 unless stated otherwise.
2 The charge in Case 6–CA–19076 was filed on April 29 and
amended on June 12. The charge in Case 6–CA–19159 was filed on
June 2. The charge in Case 6–CA–19428 was filed on August 18.
And the charge in Case 6–CA–19388 was filed on August 4 and
amended on August 13.
3 The complaint in Case 6–CA–19076 was issued on June 13. The
complaint in Case 6–CA– 19159 was issued on July 25. The com-
plaint in Case 6–CA–19428 was issued on October 3 and amended
on January 12, 1987. And the complaint in Case 6–CA–19388 was
issued on October 24 and amended on May 6, 1987, and on Decem-
ber 18, 1987.
4 The unit set forth in the above-described complaint dated Decem-
ber 18, 1987, consists of the following employees:
All full-time and regular part-time employees employed by Re-
spondent at its Hempfield Township, Pennsylvania, location; ex-
cluding confidential employees, students employed pursuant to
cooperative education programs and guards, professional em-
ployees and supervisors as defined in the Act.
5 Charlene Garris, Jennifer Hilty, Charelene Shotts, Sonja Welsh,
Deborah Defibaugh, and Lance Good.
6 Roy Biedrycki, Defibaugh, Randy Harshall, and Shotts.
7 It is alleged in complaint Case 6–CA–19388, by amendment
dated December 18, 1987, that from on or about May 31 to on or
about June 14, a majority of the unit designated and selected the
Union as their representative for the purposes of collective bar-
gaining.
8 General Counsel’s unopposed motion, dated June 7, 1989, to cor-
rect the transcript is granted. [Omitted from publication.]
Mr. Ronald Kean and James R. Reehl, Esq., of Pittsburgh,
Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On charges
filed by the United Food and Commercial Workers Inter-
national Union, Local Union 23, AFL–CIO–CLC (the Union
or UFCW), beginning on April 29, 1986,1 and as subse-
quently amended and supplemented,2 complaints in the
above-numbered proceedings were issued beginning on June
13, with the final amended complaint issued on December
18, 1987.3 The complaints allege, collectively, that Davis Su-
permarkets, Inc. (Respondent) violated Section 8(a)(1), (2),
(3), and (5) of the National Labor Relations Act (Act) by (1)
interrogating its employees regarding their union member-
ship, activities, and sympathies and the union membership,
activities, and sympathies of their fellow employees, (2) cre-
ating an impression among its employees that their union ac-
tivities were under surveillance by Respondent, (3) soliciting
employee complaints and grievances thereby promising its
employees increased benefits and improved terms and condi-
tions of employment, (4) threatening employees with store
closure if they selected the Union as their collective-bargain-
ing representative, (5) urging its employees to join the
United Steelworkers of America, AFL–CIO–CLC (Steel-
workers) and by permitting the Steelworkers to utilize Re-
spondent’s facility, rendered aid and assistance to the Steel-
workers, (6) changing the work schedule of employee
Charles Miscovich thereby causing his termination, (7) im-
posing onerous terms and conditions of employment upon
employee Linda Kunkle thereby causing her termination, (8)
failing and refusing to recognize or bargain with the Union
as the exclusive collective-bargaining representative of the
involved unit,4 (9) threatening employees with unspecified
reprisals if they supported the Union, (10) informing employ-
ees that their recall rights depended upon their refraining
from activity on behalf of the Union, (11) threatening em-
ployees that their union organizational activity was futile,
(12) threatening employees by accusing them of disloyalty
for supporting the Union, (13) laying off six named employ-
ees and refusing to recall the employees,5 (14) discharging
employee Larry Miller and refusing to recall him, (15) refus-
ing to recall its employee Charlene Shotts to her former or
substantially equivalent position of employment, (16) making
verbal announcements and through the assistance of the
Pennsylvania State Police discriminatorily refusing to permit
the Union to picket and handbill on Respondent’s Hempfield
Township, Pennsylvania property while permitting other or-
ganizations access to its property for purposes of soliciting
its customers and related activities, (17) maintaining a civil
trespass suit against the Union in the Court of Common
Pleas of Westmoreland County, Pennsylvania, Civil Division
No. 3622 of 1986, which enjoins the Union from picketing
on Respondent’s Hempfield Township premises, (18) threat-
ening to have persons engaged in handbilling on behalf of
the Union arrested, (19) causing the Pennsylvania State Po-
lice to visit Respondent’s above-described facility, (20) en-
forcing, through the assistance of the Westmoreland County
Sheriff, the injunction it obtained as the result of the above-
described civil trespass suit, and (21) filing and maintaining
a motion for an Order to Show Cause and for Civil Con-
tempt against the Union and four named employees6 and
seeking to enforce, by fines and other penalties, the afore-
mentioned injunction.
It is asserted that the alleged unfair labor practices are so
serious and substantial in character that the possibility of
erasing the effects of these unfair labor practices and of con-
ducting a fair election by the use of traditional remedies is
slight, and the employees’ sentiments regarding representa-
tion, having been expressed through representation cards,
would, on balance, be protected better by issuance of a bar-
gaining order than by traditional remedies alone.7
Respondent denies that it committed any unfair labor prac-
tices.
A hearing on these consolidated cases was held before me
in Greensburg, Pennsylvania, on October 31, November 1–
4 and 7–9, 1988, and January 9–12, 1989. On the entire
record8 in this proceeding, including the demeanor of the
witnesses, and after due consideration of the briefs filed by
General Counsel and the Respondent in June 1989, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Pennsylvania corporation with its principal
office and place of business located in Greensburg and with
a place of business located in Hempfield Township, Pennsyl-
vania, is engaged in the retail sale of groceries. The com-
plaints allege, the Respondent admits, and I find that at all
times material herein, Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and UFCW and the Steelworkers have
431DAVIS SUPERMARKETS
9 The number of employees at the facility will be treated more
fully below. The Greensburg store is approximately 65,000 square
feet and, according to Respondent’s witnesses, it has between 150
and 175 employees. The two stores are 3 miles apart. Jim Davis,
who is the president of Respondent, testified that between 12 and
24 employees have worked at both stores since the Hempfield store
opened. By letter dated July 10, 1984, Respondent, at the UFCW’s
behest, provided it with the name and home address of each of its
Hempfield employees (R. Exh. 19). Respondent also operated a store
at Mount Pleasant, Pennsylvania, and a store at Frostburg, Maryland.
The employees at those stores were represented by the Steelworkers
and another Local of the UFCW, respectively. According to the tes-
timony of Jim Davis, neither the Mount Pleasant nor the Frostburg
stores was closed because of labor costs.
10 Porter testified that he also asked Shotts to attend this meeting.
Shotts corroborated Porter.
11 Porter testified that he told Welsh and Curry that by signing the
cards they could have Local 23 represent them at collective bar-
gaining if they reached a majority; and that he did not threaten or
pressure them to sign the cards. He sponsored Curry’s UFCW au-
thorization card (G.C. Exh. 27) dated March 26, testifying that she
read the card, filled it out and signed it in his presence. Porter also
testified that he told Curry that if the UFCW had a majority of the
cards it could demand recognition from the Respondent, and if it
was denied, other avenues could be pursued, such as an election. As
indicated below, Porter obtained a number of UFCW authorization
cards. Regarding these, he testified that he never told an employee
(1) that the only purpose of the authorization card was to obtain an
election, (2) that they should not read the card, or (3) that they
should ignore what was written on the card. Also he asserted that
he never threatened or promised anything in return for signing a
UFCW authorization card. Included in the printed portion of the card
is the following: ‘‘I hereby authorize the United Food & Commer-
cial Workers, Local Union 23, AFL–CIO–CLC, to represent me for
the purpose of collective bargaining.’’
12 Welsh testified that during a break or while she was out of the
store after work, she would put the UFCW authorization cards in a
plain piece of paper and hand them to the employees and she told
them to read them and if they wanted the Union to sign them and
hand them back to Porter or her.
13 Since Defibaugh was laid off on April 19, apparently this prac-
tice began sometime in March.
14 Hilty also testified that it could have been around April 7.
been labor organizations within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Facts
Respondent is a family owned corporation which at the
time of the hearing herein operated a total of two grocery
stores in Pennsylvania. The Hempfield facility was opened
by Respondent in 1984. It is approximately 45,000 square
feet and in 1986 there were, according to the testimony of
Respondent’s witnesses, about 120 to 150 employees on the
payroll at this facility.9
Donald Porter, who at the time worked at a Shop and Save
grocery store and was a volunteer organizer for the UFCW,
started the involved organizing campaign by contacting Patty
Pomaibo in the meat department of Respondent’s Hempfield
store in March. She gave him the names of Welsh and Shotts
and their telephone numbers.
Welsh, who worked in the delicatessen (deli) department
of Respondent’s Hempfield store from April 1984 to April
1986, received a phone call at home in March 1986 from
Porter. He asked her to attend a meeting at a McDonalds res-
taurant on March 24 regarding an attempt to organize Re-
spondent’s Hempfield store employees. Welsh went but she
did not see Porter that evening.10 The following day he
called her and asked her to talk to other employees about the
Union and to attend a meeting the next day at his house.
Welsh went with fellow employee Shari Curry and she and
Welsh signed UFCW authorization cards at this meeting
General Counsel’s Exhibits 27 and 13, respectively, dated
March 26. Regarding the card, Welsh testified that she read
it before signing it; and that Porter did not tell her that the
only purpose of the card was to obtain an election.11 Porter
gave Welsh and Curry some UFCW authorization cards and
told them what to tell other of Respondent’s employees when
they tried to get them to sign the cards. He emphasized that
they should make sure the employees read the cards. Also,
he asked them to get a list of names of Respondent’s em-
ployees who might be interested. Welsh subsequently pro-
vided such a list.
According to Welsh’s testimony, on March 25 her imme-
diate supervisor, Sandy Reich, asked her if she heard any-
thing about a union meeting that was supposed to take place
at McDonalds the night before. Welsh assertedly said that
she had heard about it but it did not have anything to do
with her. Welsh testified that this conversation took place by
the stove in the kitchen in the deli department; and that Rich
seemed to be a good friend.
Subsequently, Welsh talked with other employees about
the UFCW and she distributed authorization cards to the fol-
lowing of Respondent’s Hempfield employees: Anita
Mattucci, Good, Cathy Vesco, Judy Barbrow, Ken Buhl,
Shotts, Mary Olshefsky, Pam Barnes, Gail (Welsh could not
recall her last name but remembered that she was from the
post office) and Patty (from the meat department).12 Welsh
received Mattucci’s signed UFCW authorization card from
her in the deli (G.C. Exh. 14). Barbrow also gave Welsh her
signed UFCW authorization card (G.C. Exh. 15). And Welsh
received signed UFCW authorization cards from Shotts, who
also gave Welsh Olshefsky’s card, and Good, who also gave
Vesco’s card to Welsh. Welsh testified that she did not be-
lieve that anyone in management saw her distribute or collect
the cards and she never discussed the Union with anyone in
management.
In the beginning of April, John Shumaker, a baker at Re-
spondent’s Greensburg store, came to the Hempfield store to
bake. Defibaugh was told that he was coming to Hempfield
so that she could go on daylight. Janet Barbour, who was a
cake decorator at Greensburg, came to the Hempfield store
about once a week beginning in early April or in March.
This practice was discontinued, according to Defibaugh, after
about a month.13
Hilty, who worked at Respondent’s Hempfield store from
February 19 until April, testified that another employee at the
store, Curry, gave her a UFCW authorization card which
Hilty signed. Assertedly, Curry told her to read the card. The
date on the card is as follows: ‘‘April 1986.’’ Hilty testified
that she signed the card in early April14 and that she read
it prior to signing it.
On April 7 Porter entered Respondent’s Hempfield store,
went to the meat department and spoke with Garris. She had
been employed at Respondent’s Hempfield store since Feb-
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Porter testified that one time when he was in the Respondent’s
Hempfield store Mowery, who was the store manager, came up to
him and asked him if he needed any help and he said ‘‘no’’; that
Mowery followed him while he was in the store and eventually
Mowery said: ‘‘Well maybe you might need some help getting your
ass the hell out of this store. I know what you are up to. Local 23
is trying to get into this store and the Davis’ would do anything to
prevent this even if it meant kicking your ass.’’ At one point on
cross-examination, Porter testified that he believed that this occurred
sometime after he met with certain of Respondent’s employees on
May 6, as described below. At another point he testified that he had
no idea of the date when this occurred. And finally, on redirect Por-
ter, after refreshing his recollection with his affidavit to the National
Labor Relations Board (Board), testified that this occurred early in
the campaign in either April or May.
16 About 1 year before she signed the UFCW authorization card,
she asked Dick Shibilsky, who assertedly was her manager in the
meat department, and Jeff Toffolo what they thought about getting
a union into the store. Allegedly they said, ‘‘Don’t even think about
getting a union in the store. We don’t want a union in here. Don’t
even talk to anybody about it or you won’t be employed here any-
more.’’ At that time Shotts had the Steelworkers in mind but she
did not find any support among her fellow employees. Regarding
Shibilsky and Toffolo, Shotts testified that Shibilsky ordered meat,
prepared meat to be wrapped, cut meat, and checked the meat inven-
tory in the case when he decided which meats had to be stocked;
that Toffolo cut meat, ordered meat, ground meat, made hot sau-
sages, made out the schedules (according to Shott’s testimony, some-
time early in 1985 Shibilsky told Toffolo that he should handle the
scheduling), hired employees for the meat department, handled em-
ployee problems in the meat department, and handled the day-to-day
direction of the employees in the meat department; and that the two
attended the regular department managers’ meetings on a rotating
basis, and neither to her knowledge punched a timeclock.
Toffolo testified that he did not recall having a conversation with
Shotts about the possibility of a union organizing the Hempfield
store.
17 Reich testified that it was her policy to have employees discuss
switching assignments with her before they made the switch. While
Rich has issued written warnings to employees, she never issued
written warnings to Hilty or Smith.
18 Reich testified that she did receive customer complaints about
Hilty’s attitude.
19 Reich testified that she had fired an employee in the past with-
out consulting with anyone else.
20 Garris testified that she did not engage in any other union activ-
ity and she did not discuss the UFCW with anyone in management.
ruary 10. Porter asked her to meet him after work.15 Garris
testified that Jim Davis’ second-floor office was located
across from the meat department on the other side of the
store; and that someone in the office could see the meat de-
partment through one-way glass. Garris did not know if there
was someone in the office at the time. She and Porter even-
tually met on April 16.
Shotts signed her UFCW authorization card on April 9,
after reading it (G.C. Exh. 60). Welsh gave her the card.
Shotts returned the card to Welsh along with a card Shotts
solicited from Olshefsky, dated April 3 (G.C. Exh. 61).16
Shotts testified that she told Olshefsky to read the UFCW au-
thorization card before signing it and that it was ‘‘for getting
a union in.’’ Shotts also asked employee Melanie Valozzi if
she was interested in signing a UFCW authorization card.
Valozzi declined.
On April 14, Respondent’s employee Jody Cusano signed
a UFCW authorization card (G.C. Exh. 28). Porter testified
that he told Cusano that she would be authorizing the Union
to represent her in collective bargaining; and that she read
the card, filled it out, and signed it in his presence.
Hilty’s last day of work at Respondent’s Hempfield store
was April 15. She testified that on Tuesday, April 15, she
filled in for someone else who was sick; that she was off the
next 2 days; that she was supposed to work on Friday, April
18, but she was sick; that she called in and spoke to
Mattucci who said that she would speak to another employee
about filling in for her; that later she telephoned her depart-
ment, the delicatessen, but there was no answer; that subse-
quently her supervisor, Sandy Reich, telephoned her and told
her that she had been taken off the schedule because she sup-
posedly had said something to a customer; that Reich refused
to tell her what it was she said; that Reich said that it had
nothing to do with calling off sick; that Reich said that she
‘‘was not going all out for it’’; and that Reich said that she
would give her a reference in the future if she needed it. As-
sertedly, when she was hired in February, Hilty was told that
there would be a 30-day probationary period. After signing
the UFCW authorization card, Hilty did not wear anything
which would indicate that she supported the Union and she
did not attend union meetings. On cross-examination, Hilty
testified that she did not remember any conversation with
Reich around the first of April about Hilty’s performance;
that Reich never indicated to her that she called off to many
days; that Reich never told her about a customer who wanted
fresh cut meat and not the meat in the counter near closing
time; and that Reich never told her that certain meats and
cheeses were left unwrapped and the counter was not cleaned
the way Reich expected it to be cleaned.
Louise Elda, who is a manager at the Hempfield store,
Toffolo, Sandy Reich, Mowery, and Jim Davis testified that
they did not know that Hilty signed a UFCW authorization
card or supported the UFCW or engaged in union activities
on behalf of UFCW prior to the end of April 1986.
Sandy Reich testified that Hilty did fairly well for up to
6 weeks after she was hired. Subsequently, according to
Reich’s testimony, Hilty’s work deteriorated in that she left
things undone and she left the counter area messy and dirty.
Assertedly, Reich discussed these problems with Hilty. Also,
Hilty, according to Reich, had a problem with calling in sick.
Assertedly, Reich also discussed this with Hilty. Reich termi-
nated Darla Smith at the same time. Reich could not remem-
ber if Hilty and Smith had switched assignments or if both
of them had called off.17 Reich testified that she was un-
happy with their performance at the beginning of the week
and she decided at the end of the week that she was going
to terminate the two of them.18 Allegedly, Smith was a slow
learner. Reich testified that she did not discuss these termi-
nations with any other manager in the store, including
Mowery and Jim Davis.19
Garris signed a UFCW authorization card on April 16 at
her home and gave it to Porter (G.C. Exh. 23). She read the
card before signing it. Porter testified that he told her by
signing the card she was authorizing Local 23 to represent
her in collective bargaining. She told coworker Shotts, either
the next day or the following day, that she had signed an au-
thorization card.20
Defibaugh, who worked in Respondent’s Hempfield store
from April 1984 until April 19, signed a UFCW authoriza-
tion card on April 16. Defibaugh testified that she read the
433DAVIS SUPERMARKETS
21 Her duties consisted of baking from 3 until about 8 a.m. Then
she would order frozen product and cakes from Respondent’s
Greensburg store. Basically, the same amount of product was used
every week, except for increases during holidays and the summer.
Defibaugh decided how much product had to be ordered. She
checked off what she needed on a printed list. When she was not
working, Good did the ordering. Good testified that a lot of times
he and Defibaugh did the ordering together with one of them taking
the inventory and the other one writing the items down. If an order
came in that day from Greensburg, Defibaugh and Good would put
the frozen food away in the freezer. Starting at about 5 a.m. the em-
ployees who worked in the bakery would start to arrive at work.
Each employee would have a set job. Once a week, toward the end
of her workday, she would make up the work schedule for the ap-
proximately 15 bakery employees for the following week, ‘‘a very
routine matter.’’ Mowery or Elda would tell her how many total
hours she could schedule for the following week. Each employee in
the bakery department worked basically the same hours, except
around holidays and Sundays would be rotated. Defibaugh also
would attempt to accommodate requests from employees regarding
days off, etc. Mowery only reviewed the schedule she made up
around holidays. If she believed she needed more hours she had to
ask Mowery or Elda. If she believed that she needed more help in
the bakery she would tell Garlits or Mowery and they would have
someone temporarily transferred into the bakery. Defibaugh inter-
viewed a couple of applicants and she recommended whether they
should be hired. She participated in one interview with Elda, and she
conducted the other interview by herself. Regarding the former, both
agreed that the applicant should not be hired. With respect to the
latter, she recommended that the applicant be hired and she was not.
Once, in January or February 1986, Defibaugh was told by Mowery
to write up a bakery employee for not doing her job. Also,
Defibaugh complained to Mowery about an employee who was tak-
ing to much time off. This was the extent of Defibaugh’s discipli-
nary actions. She did not have authority to change the assignment
of bakery employees. Usually she discussed such matters with Bak-
ery Manager Garlits. While she talked to outside salesmen, she could
not order any new product but rather she referred the salesmen to
Garlits. Additionally, she did not select the bakery items to go on
special for the week but rather Garlits told her which items to put
on special. Other than what Mowery told her about how the bakery
was doing financially, she had no access to financial information re-
garding the bakery department. Defibaugh testified that she had
overall responsibility for the bakery department at the Hempfield
store.
Good testified that around the end of 1985 Defibaugh told him and
John Dick that she was made bakery manager ; that he did not recall
Defibaugh giving directions to bakery workers; that she did the
scheduling in the department; and that when he called off he spoke
with whoever answered the telephone. Elda, Toffolo, and Mowery
included Defibaugh in naming the managers at the Hempfield store.
22 James Blaser, who worked for the Respondent since 1984, testi-
fied that the affidavit he gave to the Board in 1987 correctly indi-
cates that he works in Hempfield on Wednesdays for 4 or 5 hours
to replace managers who attend the managers meetings in Greens-
burg. Elda testified that between January and August 1986 there
were no weekly or monthly meetings of all managers; that during
this period of time she did attend meetings where more than one
manager was present but such meetings were rare. Toffolo testified
that between January and August 1986 there were no regularly
scheduled weekly or monthly meetings of the store managers; and
that he did attend meetings, perhaps once a month where there was
more than one manager present. He testified that such meetings oc-
curred ‘‘[v]ery rarely’’; and that the meetings he attended related to
ads and only Jim Davis was present. Sandy Reich testified that while
in 1985 there were no weekly or monthly meetings of managers, she
did attend meetings during this period when more than one manager
was present; that such meetings occurred once a week or every 2
weeks and advertising and competition were discussed; that the
meetings were held in the Hempfield store and Jim Davis and
Mowery were present; that sometimes there were managers from
other departments at these meetings; and that she did not remember
Defibaugh ever attending these meetings. Mowery testified that there
were no weekly or monthly meetings scheduled for all managers to
attend during this period of time; that between January 1986 and the
Friday of Memorial Day weekend, he attended a total of 10 meetings
at which other managers in the store were present; that these meet-
ings concerned advertising; that Jim Davis and Sandy Reich also at-
tended all of the meetings; that other department heads who some-
times attended these meetings included John Panichella, who is the
produce manager at the Greensburg store (Allen Barber, the produce
manager at Hempfield, did not attend), Jeff Toffolo was at one met-
ing and Elda was at one meeting; and that Garlits would represent
the bakery department at these meetings. In comparing the duties of
Defibaugh and Civiccio, an admitted supervisor, Mowery testified
that she made out the schedule for the cashiers and packers, the front
end people, she granted requests for days off, she did not purchase
anything for the store, and she did not hire but she did advertise for
job applicants, conduct initial interviews, and refer applicants to
Mowery with her comments on the individual. Also, when Mowery
and Elda were not present Civiccio would be responsible for the
whole store.
card before signing it and no one told her not to read it or
to disregard what was written on the card. She gave her
signed card to Porter, who came to her house. Defibaugh
spoke about the Union with employees Good, John Dick,
Steve Napolean, and Buhl, indicating that if they wanted the
Union to represent them they could sign a card. Buhl subse-
quently told her that he had been offered a comanager’s job
in the store so he was not going to sign a UFCW authoriza-
tion card. Defibaugh was hired at the involved store as a
baker. In September 1984 the bakery manager in the depart-
ment was let go. Defibaugh assumed his responsibilities but
she did not receive any title or additional pay. She mentioned
this to Jim Davis and Pat Garlits, who is the manager of the
bakery department and who worked out of the Greensburg
store, in November 1984. They agreed to give her the title
and a 30-cent-an-hour raise. So while the other employees in
the bakery were making $3.70 an hour, she was making $4
an hour.21 Defibaugh never held meetings of the bakery em-
ployees, she did not receive a salary but rather was paid on
an hourly basis and she punched a timeclock. She testified
that she never attended the regular management meetings22
and she did not believe that the managers who did punched
a timeclock.
On April 16 Defibaugh attended a meeting in Mowery’s
office. Garlits and Shumaker were there also. Mowery and
Garlits asked Shumaker how the employees in the Hempfield
store bakery were doing. Shumaker indicated that Barbrow
was slow at her job; that Tami Roadman was not doing her
job; and that Good had a bad attitude. Defibaugh indicated
that Barbrow was nervous about doing the cake decorating
in front of a window where customers could see her, and that
Good did not have a bad attitude but he thought he should
be paid more for the job he was doing. Good testified that
Defibaugh told him about the meeting and the fact that
Shumaker said something about him having an attitude prob-
lem. Good had never been warned by anyone in management
about having an attitude problem.
On April 17 Respondent’s employee Gail Horsley signed
a UFCW authorization card (G.C. Exh. 30). Porter testified
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 As noted above, Welsh gave Vesco the card but Good returned
the Vesco card to Welsh.
24 Subsequently Defibaugh testified that at this meeting Mowery
and she settled on what to do regarding Roadman but they did not
settle anything about Barbrow.
25 As noted above, Napolean was one of the employees Defibaugh
spoke to, indicating that if they wanted the UFCW to represent them
they could sign a UFCW authorization card. And as noted below,
Napolean was one of the individuals who photographed picketers.
26 Regarding her union activities, Defibaugh testified that before
she was laid off she did not (1) distribute union literature, (2) wear
any union buttons, or (3) wear anything which would identify her
as a UFCW supporter. Regarding customer complaints concerning
the Hempfield bakery, she testified that they did have cakes coming
down from Greensburg and in the transportation the decorations
were damaged; that she complained to Greensburg that the frozen
donuts they sent down had thawed and been refrozen; that she com-
plained to Garlits about the fact that there was a surplus of stale
cookies, which were being saved to make cookie dough; and that the
surplus existed because she was told by Jim Davis not to allow the
shelves to be empty.
that he told Horsley that she would be authorizing the Union
to represent her in collective bargaining; and that she read
the card, filled it out, and signed it in his presence.
Good, who worked in the bakery department at Respond-
ent’s Hempfield store since 1984, signed a UFCW authoriza-
tion card on April 17 (G.C. Exh. 58). He read it before sign-
ing it. He also solicited the card of another bakery employee,
Vesco, dated April 17 (G.C. Exh. 59).23 Good testified that
he told Vesco that if a majority of the employees at the store
signed UFCW cards, than the Union could bargain for them,
and if not, there could be a possible election. He also testi-
fied that Shumaker was in the area when he handed the cards
to Welsh but he did not know if Shumaker saw what was
going on; that the employees in the bakery talked about the
Union in Shumaker’s presence but Shumaker never partici-
pated in the conversations; that Defibaugh ‘‘talked pro union
a lot’’; and that he never wore any insignia that indicated
that he supported the UFCW.
According to her testimony, on April 17 Shotts asked
Mowery if she could take a leave of absence during the sum-
mer months since her children were getting out of school for
the summer and she could not afford a baby sitter. Assert-
edly, Mowery said that he would speak to Jim Davis.
Jim Davis told Shotts on April 18 that he could not grant
her request since he could not grant a leave of absence to
everyone who wanted one.
Defibaugh received a telephone call from Garlits on the
morning of April 18. He told her to take Good, Barbrow, and
Roadman off the schedule. Defibaugh went to Mowery and
told him that she thought that it was too many people to lay
off at one time. Mowery said that Roadman would be laid
off, and that he was surprised about Good but he had been
told that Good was being laid off because of his attitude.
Mowery indicated that Good had never been warned or writ-
ten up about his attitude. Mowery said to leave Barbrow on
the schedule and the following week they would let her go,
and to leave Roadman on the schedule until Tuesday so that
she could be told about being laid off.24 Later that afternoon,
Defibaugh went to Greensburg to speak to Garlits about the
layoffs. Garlits said that he was surprised about Good be-
cause no one had ever told him that Good had a bad attitude.
Garlits also said that ‘‘they said to . . . take those three peo-
ple off the schedule, that he was told that they were to be
taken off.’’ Defibaugh testified that Garlits did not say who
directed him to take this action other than specifying ‘‘they.’’
Assertedly, around 8 a.m. on April 19 Defibaugh asked
Elda why they were letting Good go. Defibaugh testified that
Elda said:
Well I guess I can tell you. Jim wants him laid off, not
fired. That they heard the union was getting close to the
number they needed for an election and they were get-
ting rid of the troublemakers and people with attitude
problems.
Defibaugh also testified that the only ‘‘Jim’’ Elda could have
been referring to was Jim Davis; that when Elda asked her
if she knew about the Union, she said ‘‘no’’; and that she
was friendly with Elda.
Elda, Toffolo, Sandy Reich, Mowery, and Jim Davis testi-
fied that they did not know that Good signed a UFCW au-
thorization card, supported the UFCW or engaged in union
activity on behalf of the UFCW up to the time he was laid
off. Elda testified that at no time prior to Good’s discharge
did she have a conversation with Defibaugh about the dis-
charge.
According to Defibaugh’s testimony, after she talked to
Elda on April 19, Defibaugh told Good that he was being
laid off.
Good testified that Defibaugh told him the following: ‘‘I
can’t believe I have to do this but they told me to get rid
of you’’; that Defibaugh told him that he wasn’t fired but
that he was laid off; and that the reason Davis had to get
rid of him was that he assertedly had an attitude problem.
Around 9:30 a.m. on April 19 Defibaugh spoke with
Mowery indicating that she had told Good about the layoff.
She testified that Mowery understood that she felt bad about
letting Good go because he always did his job, and that no
one could understand why he was being let go.
Later that morning Defibaugh went to Mowery to discuss
the employees scheduling. Mowery was talking with
Napolean, who stocked shelves, and Mowery would not let
Defibaugh into his office so she asked him to call her when
he finished talking with Napolean.25
About 1 p.m. on April 19, as she was getting ready to
leave work, Defibaugh received a telephone call from Elda
who told her that Mowery wanted to see her before she left.
Mowery, with Elda present, told Defibaugh that business was
slow and that they were going to try to combine the two
stores and make it one unit and that was the reason that she
was being laid off. Defibaugh testified that she told Mowery
that she did not believe that they would lay off somebody
with more seniority than other employees in the bakery de-
partment, especially when some of these other employees
caused problems and did not do their work. Also, she told
Mowery that in the springtime business starts picking up and
it did not seem like the right time to be laying people off.26
Elda, Toffolo, Sandy Reich, Mowery, and Jim Davis testi-
fied that they did not know that Defibaugh signed a UFCW
authorization card, supported the UFCW, or engaged in
union activity on behalf of the UFCW before she was laid
off.
435DAVIS SUPERMARKETS
27 Welsh, who was primarily the deli cook, testified that she was
never criticized about her work performance, she never received a
verbal or written warning, and she was never suspended. Welsh did
not recall any discussions with Sandy Reich regarding problems with
the preparation of food in the deli and she did not recall Reich indi-
cating that customers were complaining.
When she checked the schedule that morning, the names of Darla
Smith and Hilty were not on it. Welsh testified that Hilty missed a
lot of work and Reich was upset with her because it was difficult
to get someone to replace her. Pauline Wigfield, from Respondent’s
Greensburg store, was on the schedule. Welsh testified that before
she was laid off she was not aware of anyone from the Greensburg
store working in the Hempfield deli. When she later returned to the
store to shop, Welsh noted that at first Wigfield was doing her job
and than Mattucci, who signed a UFCW authorization card and gave
it to Welsh, did Welsh’s job.
28 More specifically, Jim Davis told her that customers complained
that the chicken noodle soup was too salty and that the pieces of
potato in the potato salad were not uniform in size. Reich testified
that there might be two such complaints a month and Welsh made
an attempt to conform to the requests Reich made. When Jim Davis
told her to let Welsh go he indicated that Welsh was not preparing
the food the way it should be prepared and he had given Welsh long
enough to do it correctly. Reich testified that she disagreed with Jim
Davis’ assessment and told him so at that time. She told Davis that
Welsh was carrying most of the workload herself and she tried very
hard to complete her jobs as quickly as she could, she was a good
employee, she never called off work, she never complained, and she
tried very hard to do everything that Reich asked her to do.
29 Reich testified that prior to Jim Davis telling her to let Welsh
go, she had heard nothing about a consolidation or a merger plan
between the Greensburg and Hempfield stores, and she was not
questioned about which employees she thought she could do without.
Reich testified that Ann Howard, Eileen Hribal (Orange), Robin
Myers, Carol Pyle, Sandra Wilkinson, and Wigfield worked in the
deli departments at both of Respondent’s stores. Howard, Wilkinson
and Wigfield, along with Reich, did the cooking after Welsh left.
30 Reich testified that before this she had heard nothing about the
Union and while she discussed Welsh with Jim Davis after she left,
Reich did not tell Davis about Welsh’s comment regarding the
Union. Also, Reich testified that when Jim Davis said that Welsh
was not following the recipes she told him that she did not agree
with him. Between April 19 and Memorial Day 1986, Reich asked
Jim Davis every time she had the opportunity, to bring Welsh back.
Reich testified that she told Jim Davis that she wanted Welsh back
and that Welsh was a good employee and given the opportunity
Welsh could do what she was supposed to do.
When she arrived home on April 19, Defibaugh tele-
phoned Garlits and asked him why she was being laid off.
She testified that he said that he did not know.
Later that afternoon, Shumaker called Defibaugh at home
indicating that he had been told to work on Sunday, April
20 and that Garlits said that she had walked off the job.
Mowery testified that he first learned of Defibaugh’s lay-
off when Jim Davis telephoned him and told him that he was
going to consolidate the bakeries at the Greensburg and
Hempfield stores and he should lay off Defibaugh; that he
was not aware at that time that there were other layoffs in
the bakery department; that this was the first he heard of a
consolidation involving a layoff of Defibaugh; that Jim Davis
said we are merging the bakeries, tell Defibaugh we are
going to lay her off; that Jim Davis did not tell him how the
merger was going to come about, what it would mean,
whether it would involve other departments, or how to re-
place Defibaugh regarding her nonmanager functions; and
that normally department managers handle layoffs.
Jim Davis testified that he made the decision to let
Defibaugh and Good go; and that he did it ‘‘[b]ecause we
had problems in the bakery.’’
On April 19, after she had returned home from work,
Welsh was telephoned by Sandy Reich who asked Welsh to
come back to the store. Reich told Welsh that she was being
laid off. Welsh testified that when she asked Reich why,
Reich said, ‘‘I really don’t have a reason. I can’t tell you.
When you are a manager, you are kind of like a puppet, you
do whatever they tell you to. I really don’t want to do this,
but I have to do it.’’ Reich also told Welsh that if she need-
ed a recommendation for a job she would give Welsh the
highest recommendation and if she could get Welsh back,
she would. When Welsh asked Reich if it had anything to
do with the Union, Reich assertedly answered, ‘‘I really can’t
tell you.’’ Welsh could not recall Reich saying anything
about the consolidation of the Greensburg and Hempfield
delicatessens. Welsh testified that she was the most senior of
the 10 employees in the deli department.27 She also testified
that up to the time of her layoff, she had not worn any union
button identifying her as a UFCW supporter and she never
wore any other insignia which would indicate that she sup-
ported the Union. Also, she had not distributed any union
material other than the cards.
Elda, Toffolo, Sandy Reich, Mowery, and Jim Davis testi-
fied that they did not know that Welsh signed a UFCW au-
thorization card, supported the UFCW, or engaged in union
activity on behalf of the UFCW before she was laid off.
Sandy Reich testified that she and Welsh prepared food in
the deli kitchen until about October 1985; that to her knowl-
edge there were no complaints about the food prepared in the
deli kitchen up to that point in time; that in October 1985
she assumed more responsibility and ceased cooking in the
deli kitchen; that thereafter Welsh did about 95 percent of
the cooking; that in November 1985 she began receiving nu-
merous complaints that customers were upset that items were
not of the same consistency as at the Greensburg store;28 that
she told Welsh that she was laying her off because Respond-
ent was consolidating the Greensburg and Hempfield stores
and people from Greensburg would be coming to the Hemp-
field store to do part of the cooking;29 that Welsh said that
she did not believe the reason Reich gave; that Welsh asked
her if it had anything to do with the Union and she told
Welsh that she did not know what she was talking about;30
and that she did not ask Welsh anything about the Union or
about her union activities.
Jim Davis testified that he decided to let Welsh go because
Respondent was having problems in the deli with the food
being prepared; and that he later agreed to let Reich recall
Welsh.
On April 19 Garris was told to telephone her supervisor,
Toffolo, later since the schedule was not yet posted when she
left work. When she telephoned Toffolo, he said that Davis
was having some money problems and they had to lay off
some people, including her. When she asked if the layoff
was temporary or permanent he told her to call back on
Monday. She did not. Garris had the least seniority of the
people who worked in the meat department. Garris testified
that Shotts was also laid off at that time; that prior to that
time there were no employees from Respondent’s Greens-
burg store who worked in the Hempfield meat department;
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 Toffolo also testified that he has the authority to hire people for
the meat department but he usually clears it with Jim Davis or Vir-
ginia Brady, the personnel supervisor at the Greensburg store.
32 There is no documentation to demonstrate that she was not
doing her work properly or adequately. Toffolo testified that Garris
had completed her 90-day probationary period and she was pricing
meat wrong on a regular basis. Assertedly, he had talked to her three
or four times about the problem.
33 Toffolo testified that he punched out a tape himself from the
computer which showed, on a weekly basis, his sales for the meat
department; and that from the end of March through the first few
weeks of April the meat department had too many hours. With the
departure of Garris and Shotts, the meat department employee hours
were reduced by about 20 to 25 hours because some of Garris’ and
Shotts’ hours were redistributed among other employees in the meat
department.
34 In an affidavit she gave to the Board on May 16, Defibaugh in-
dicated that when she telephoned Jim Davis at Hempfield and asked
him why she was laid off, he told her to call Garlits because he
knew. She then told Davis that she had just talked to Garlits and
he did not know the reason. It was then that Davis said that he was
having difficulty hearing her.
and that at the time, a coworker had given 2 weeks notice
that she was quitting. While Garris conceded that she has
priced meat incorrectly and that possibly Toffolo may have
discussed this with her, she asserted that Toffolo would also
have discussed this with the other women in the meat depart-
ment since they all priced the meat.
Elda, Toffolo, Sandy Reich, Mowery, and Jim Davis testi-
fied that they did not know that Garris signed a UFCW au-
thorization card or supported the UFCW or engaged in union
activities on behalf of UFCW prior to the end of April 1986.
Toffolo testified that Respondent was having a slow period
in the meat department at the Hempfield store and he did not
have enough payroll hours to go around; that he decided that
he would have to let two people go;31 that he chose Garris
because she was the newest hire in the department and she
was having a tough time catching on to the system;32 that
Garris was not laid off but rather she was discharged; that
he did not believe that the Respondent kept the type of
records at that time as to the alleged slowness; that he told
Jim Davis that he, Toffolo, had to cut back on his work
force;33 and that part of the reason was that the meat depart-
ment had become more efficient because the systems were
becoming more streamlined throughout.
Shotts testified that Toffolo told her on April 19 that he
heard that she wanted a leave of absence; that he then asked
her if she would consider a layoff and she said that she
would have to talk to her husband; that Toffolo said that he
had to know then because he was ‘‘getting rid’’ of two fe-
male employees in the meat department; that she said that
the only way she would consider a layoff would be if she
would be able to come back to work, and he said that there
would be no problem with that; that after work that day she
returned to the store at the behest of Toffolo to meet with
Mowery, Shibilsky, Toffolo, and Elda; that Mowery told her
that instead of giving her a leave of absence it was decided
to give her a layoff which would help her over the summer
to get extra money; that Mowery said that she was a good
worker and it would be no problem for her to come back to
work when her children went back to school at the end of
the summer; that the layoff was to start immediately; and
that before her layoff she did not wear any union buttons or
insignia which would indicate that she supported the UFCW,
and she did not discuss the union drive with anyone in man-
agement.
Elda, Toffolo, Sandy Reich, Mowery, and Jim Davis testi-
fied that they did not know that Shotts signed a UFCW au-
thorization card, supported the UFCW or engaged in union
activities on behalf of the UFCW before she was laid off.
Toffolo testified that he told Shotts that he could let her
go so she could collect unemployment; that Shotts said that
she would check it out with her husband and get back to
him; that when she got back with him she said that it sound-
ed like a good idea; that when she and he met with Mowery
regarding this matter, Shotts asked if it would be permanent
‘‘and we told her that there was no guarantee of a job being
here at some later point in time’’; and that Shotts was not
laid off but rather she was ‘‘discharged’’; and that after the
terminations in the meat department some employees in Re-
spondent’s Greensburg store came to work in his department.
Mowery testified that he was present with Jim Davis when
Shotts asked him if she could take a leave of absence so she
could be home with her children because her husband was
called back to his job; that Davis told her that he could not
do it; that subsequently Toffolo told him that he had to ‘‘lay
off’’ two people from the meat department and Shotts agreed
to be laid off; that he and Toffolo met with Shotts and he
and Toffolo explained that she would be granted a ‘‘lay off’’
but under no circumstances would she be guaranteed her job
back anytime she wanted and there would have to be a need
for her to come back; and that as she was leaving, Shotts
said that if the meat department needed help or the store
needed help, they should feel free to call her.
On April 21 Defibaugh telephoned Garlits and asked him
if he had found out why she had been laid off. When he said
‘‘no,’’ she told him that she was going to call Jim Davis.
Defibaugh telephoned Jim Davis at the Hempfield store.
She told him who she was and asked him why she was being
laid off. Defibaugh testified that Davis said that he could not
hear her since the phone was not any good, and he asked her
to give him her telephone number and he would get to an-
other phone and call her right back. He did not. Defibaugh
did not have to repeat the telephone number more than once
to Davis. Defibaugh then telephoned both the Hempfield and
Greensburg stores and was told each time that Jim Davis was
at the other store.34 Around noon Garlits telephoned her and
first asked her if she knew why she had been laid off. When
she said no, he said that business was slow and apparently
they are going to consolidate the two stores and they are just
laying some people off right now. She told him that she did
not believe that and that he should tell Jim Davis that she
did not believe it. Garlits agreed with her that he could not
understand why she was being laid off. He told her that he
would give her a reference.
On or about the evening of April 23, Shotts telephoned
Shibilsky at home. She had received a telephone call from
Pomaibo who wanted to know what was going on since as-
sertedly 12 employees left the Hempfield store on April 19.
Shotts said that she did not know what was happening. Sub-
sequently, she received a telephone call from Defibaugh who
asked her if she would sign a deposition since a number of
Respondent’s employees were laid off assertedly because
they signed union authorization cards. She refused, indicating
437DAVIS SUPERMARKETS
35 While Harshall testified that he gave his UFCW card back to
Porter in the parking lot in front of Respondent’s Hempfield store,
the affidavit he gave to the Board indicates that he gave the card
to Porter at his, Harshall’s, house. Harshall testified that the affidavit
was wrong. Also, assertedly the affidavit is wrong where it indicates
that on April 23 he gave Porter cards he, Harshall, solicited since
he did not obtain signatures on the cards until April 25. Harshall ob-
tain the cards from Porter in the parking lot in front of Respondent’s
Hempfield store and he returned the signed cards to Porter at his,
Harshall’s, house.
36 Roy Biedrycki, Scott Bunner, Robert Jupena, Edward Homchak,
and Michael Streussing. G.C. Exhs. 63–67, respectively.
37 A copy of the charge was sent by the Board to the Davis Hemp-
field store by letter dated April 29, G.C. Exh. 1(b). The receipt at-
tached thereto indicates that it was received at the store on April 30.
38 According to the testimony of Miller, while he spoke with Por-
ter on an unspecified date in the parking lot of Respondent’s Hemp-
field store when he was off duty, Mowery approached and told Por-
ter to leave the employees alone. Miller testified that he began meet-
ing with Porter in Respondent’s parking lot a couple of weeks before
he signed the UFCW authorization card. In his affidavit to the
Board, Miller indicated, as here pertinent, ‘‘I do not know if any
management officials saw me talking to Porter.’’ Miller gave the af-
fidavit on May 16.
39 Miller testified that Corsaro was a high school friend. Miller
was not sure whether Corsaro signed an authorization card on April
30 in his trailer. In his affidavit to the Board, Miller mistakenly indi-
cated that he signed the UFCW authorization card on April 20. Also,
Miller apparently could not recall Corsaro’s name when he gave the
affidavit. And he could not explain why he indicated in the affidavit
that he told Kevin that he had signed the card when this assertedly
occurred in Kevin’s trailer in his presence.
Porter testified that he told Miller that by signing the card he was
authorizing the Union to represent him in collective bargaining.
Also, Miller and Porter testified that one point Mowery saw him,
Porter, talking to Miller in the parking lot of Respondent’s Hemp-
field store and Mowery came out of the store and told Porter to
leave the employees alone.
40 She started in the produce department, became a cashier in Oc-
tober 1984 and was moved into the office in January or February
Continued
that that was not the reason for her layoff. Shotts asked
Shibilsky if she got laid off because she signed a Union card.
He said, ‘‘[n]o, I don’t know anything about what is going
on.’’ Assertedly, he also said that she should not sign the
deposition or she would never get her job back.
Harshall, who worked for Respondent at its Hempfield
store on its night crew stocking shelves from January 1985
until July 1986, signed a UFCW authorization card on April
23 (G.C. Exh. 62). He testified that he read the card before
signing it and that when Porter gave it to him he just said
it was to have Local 23 represent the employees at the store
and that it would benefit the employees with respect to better
working conditions ‘‘and stuff like that.’’35
On April 25 Harshall solicited the signatures on five
UFCW authorization cards during a meeting of some of the
night crew before their shift began.36 Harshall testified that
he told the employees that they should sign the cards if they
wanted Local 23 to represent them at the store, and that all
of the involved employees read the cards before signing
them. Each of the involved employees gave his signed card
back to Harshall at that time and he subsequently gave them
to Porter. Harshall did not believe that anyone in manage-
ment saw the gathering.
On April 29 Respondent’s employee Terry Jackson signed
a UFCW authorization card. Porter testified that he told Jack-
son that by signing the card he would be authorizing Local
23 to represent him in collective bargaining; and that Jackson
filled the card out and signed it in his presence.
Margaret Black, who had worked as a cashier at Respond-
ent’s Hempfield store from September 1984 to July 1986,
signed a UFCW authorization card (G.C. Exh. 20) on April
29. She testified that she read the card before signing it; that
she was never told to ignore what was written on the card
or not to read it; and that she signed the card in her house
and gave it to Porter.
Respondent’s employee John Dick signed a UFCW author-
ization card on April 29. (G.C. Exh. 39.) Porter testified that
he told Dick that he would be authorizing the Union to rep-
resent him for the purposes of collective bargaining; and that
Dick signed the card in his presence. In answering Dick’s
questions, Porter told him that he did not become a member
of Local 23 merely by signing the card and that regarding
dues he could not make a commitment with respect to how
much they would be if Respondent ever had a contract with
the Union.
On April 29 UFCW filed a charge (G.C. Exh. 1(a)) against
Davis in Case 6–CA–19076 alleging as follows:
Since on or about April 19, 1986, the above-named
Employer by its officers, agents and representatives,
terminated the employment of various employees be-
cause of their membership in and activities on behalf of
the United Food & Commercial Workers Union, Local
23, AFL–CIO & CLC, a labor organization, because
they engaged in concerted activities with other employ-
ees of said employer for the purpose of collective bar-
gaining and other mutual aid and protection and in
order to discourage membership in said labor organiza-
tion. At all times since said date, and for the aforesaid
reasons, the said employer has refused, and does now
refuse, to employ the above mentioned employees.37
Larry Miller, who worked for Respondent at its Hempfield
store as a bagger and stockboy from September 1985 to May
14, signed a UFCW authorization card on April 30 (G.C.
Exh. 22).38 He testified that he signed the card at a meeting
at Kevin Corsaro’s house with Porter present; that he gave
the signed card to Porter; and that he read the card before
signing it.39
On April 30 Harshall solicited a signature on a UFCW au-
thorization card from David Biedrycki (G.C. Exh. 68). He
was not at work on April 25 when Harshall solicited the
aforementioned signatures. Harshall testified that he asked
David Biedrycki if he wanted Local 23 to represent the em-
ployees at the store and Biedrycki signed the card after read-
ing it.
Elda testified that she did not know about the organizing
drive until sometime in May when Respondent received
something from the Board; that she was aware that a number
of employees were laid off in April; that she never had any
conversation with any of the managers concerning the lay-
offs; that she was surprised about the layoffs; that she did
not know about the layoffs before they occurred; and that
next to Mowery, she was the number two person in the store.
Kunkle, who was employed at Respondent’s Hempfield
store from April 1984 to July 25, 1986,40 attended a meeting
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1985. In the office, she handled the Lotto machine, the telephone,
check cashing, customer complaints, the money in the store, the
vault, and the closing of the store. Also, she testified that ‘‘she was
the head of the cashiers watching the front of the store.’’ Kunkle
had also worked for Respondent beginning in 1961 for 4 years.
41 He left in May 1987.
42 Pekar, at the outset of the meeting, asked him if it was true that
he had signed a card and he wanted to revoke it. Werry was not
sure if Pekar first read a statement which, among other things, indi-
cated that Werry did not have to participate in the meeting and no
action would be taken against him. Mowery told him about the
meeting after Werry told employee Luwanna Shoemaker that he was
interested in revoking his card. Werry testified that the fact that a
number of people had been discharged and there were a number of
delays in the election were factors he considered in deciding to re-
voke his card and that he worried about job security if he did not
attempt to revoke his UFCW card. Werry signed a petition to revoke
his UFCW authorization card on July 24. R. Exh. 4.
43 Subsequently Werry testified that at some point in time Miller
did say ‘‘[i]f you don’t sign this card, you are going to lose your
job.’’
44 As here pertinent, the card reads:
on May 1 in the back of the deli department. Other employ-
ees attending included Black, Bonnie Tompkins, Laura Em-
manuel, Tom Grozik, and other employees who she could
not remember. Bob Davis and perhaps Mowery were there.
Kunkle testified that Bob Davis said that he wanted all ‘‘of
us’’ to be one big happy family and to sign the Steelworkers
cards; that Davis said that the employees would be happy
with the decision to sign the Steelworkers cards; that Davis
said that he was going to bring employees from the Greens-
burg store down to the Hempfield store to train them; that
when she asked Davis why, he said it was because the store
was different and he wanted each employee to know each
others job so that they could ‘‘go from store to store if need
be’’; that Tompkins asked Davis what the Steelworkers had
to offer the employees and Davis got very irate and started
hollering to just sign the cards ‘‘we are here to make money
and not get on the issues’’; that the employees then went to
Mowery’s office where Kathy Donahue and a man who
Kunkle believed was an official with the Steelworkers hand-
ed out Steelworkers contracts and authorization cards; that
after they had been in the room for about 5 minutes, Bob
Davis put his head in the door and said’’ to make sure that
‘‘we signed the cards [and] that we will all be happy’’; that
she signed the Steelworkers authorization card; and that sub-
sequently she signed a ‘‘paper’’ retracting her Steelworkers
authorization card.
Black testified that Bob Davis held a meeting of employ-
ees on May 1; that Civiccio told her to attend; that other em-
ployees present included Debbie Grieco, Napolean, and An-
gelo and Mike from the night crew; that Bob Davis said that
he would like everybody to be under one big umbrella and
be one big happy family; that Bob Davis said that joining
the Steelworkers would be in the employees’ best interest
and there were a couple of people upstairs that represented
the Steelworkers and they were there to talk to the employ-
ees; that Bob Davis said that he would be very upset if the
employees did not join the Steelworkers; that Davis said that
he wanted them to sign the green cards; that Davis did not
ask anybody if there was anything he could do for them; that
the employees did not ask Davis questions in the meeting
held downstairs; that Donahue and Don Miller of Respond-
ent’s Greensburg store told the assembled employees that
they represented the Steelworkers; that the Steelworkers con-
tract was given to the employees to read; that questions were
asked at the meeting held upstairs; that she did not sign the
authorization card; and that Kunkle did not attend the same
meeting on May 1.
Also, on May 1 Kunkle’s immediate supervisor, Civiccio,
said, according to Kunkle’s testimony, that Davis would
close the store for a month and rehire all new people if Local
23 got in. Kunkle testified that no one other than she and
Civiccio were present during this conversation which took
place in the office in the front of the store. Kunkle described
this conversation as a friendly chat.
Kunkle testified that after the May 1 employees meeting,
employees who normally worked in Respondent’s Greens-
burg store began to work in the Hempfield store. In her posi-
tion she was only aware of two or three Greensburg cashiers,
one bagger and Kim Reich, who worked in systems putting
prices in the computer. She testified that before this she was
not aware of any such transfers of Greensburg employees.
Black testified that after the above-described May 1 employ-
ees meeting with Bob Davis, certain of Respondent’s em-
ployee in the Greensburg store began working in the Hemp-
field store; and that the transfers involved at least one cash-
ier, two or three people in the deli, two or three people in
the bakery, one person in the meat department, and one in
the produce department.
Ruben Lee Werry started as a bagger at Respondent’s
Hempfield store in April.41 He signed a UFCW authorization
card on May 1 after reading it (G.C. Exh. 4), and he testified
that no one ever told him that the only thing the card would
be used for was to obtain an election. On cross-examination,
Werry testified that he was not active in the campaign; that
he thought fellow employee Larry Miller, who was a former
employee of Respondent, solicited his card; that he was not
told anything by any union representative about his job secu-
rity if he did not sign the card; that a statement he gave to
Respondent’s counsel on December 18 (R. Exh. 3) indicates
that
[p]rior to receiving the card, Miller told me that I
would be out of a job if I did not sign the card because
it was Davis’ policy to terminate students at the time
of graduation. Miller told me that if the union was [in],
I could keep my job. Miller also said that the only pur-
pose of the card was to get an election;
that one of Respondent’s attorneys, John Pekar, who met
with Werry, said that this attempt to try to revoke the author-
ization card ‘‘might work’’;42 that Miller did not make the
statement about possibly being out of a job when he gave
him the card;43 that about a week before he signed the card
he heard rumors about what would happen when he finished
school; that he did not recall when he testified herein wheth-
er Miller said anything about an election at the time the card
was signed; that he believed that when the card was given
to him nothing was said by Miller other than if he wanted
the Union to go ahead and sign the card; and that he gave
a statement to counsel for General Counsel the day before
he testified herein, which statement indicates (a) no one told
him not to read the card or ignore what was written on it,44
439DAVIS SUPERMARKETS
AUTHORIZATION FOR REPRESENTATION I hereby au-
thorize the United Food & Commercial Workers, Local 23,
AFL-CIO, CLC, to represent me for the purpose of collective
bargaining.
45 Robert Davis also testified that he held a meeting later in May
for the high school students who were going to graduate, encour-
aging them to further their education.
46 Kaskie testified that the card was already signed and all of the
‘‘important stuff’’ was already completed; and that she did not have
any contact with William’s parents when he signed the card.
47 Kaskie corroborated Porter.
(b) no one threatened or pressured him to sign, and (c) no
one told him that the purpose of the card was to obtain an
election.
Respondent’s employee Kevin Corsaro signed a union au-
thorization card on May 1. (G.C. Exh. 42.) Porter testified
that he gave Corsaro the card in Respondent’s Hempfield
parking lot and that he explained to Corsaro that he would
be authorizing the Union to represent him in collective bar-
gaining. Corsaro went into the store for about 5 minutes and
when he returned the card was filled out and signed. He gave
the card to Porter.
Robert Davis, who has been chairman of the board of Re-
spondent since 1981, testified that he goes to the Hempfield
store about once a week when he is in town; that usually he
is there for about 20 or 30 minutes; that he conducted a
meeting with Hempfield employees on May 1;45 that on May
1 he saw Sam Picallo, who was a Steelworkers representative
who dealt with Davis in the early 1980s at the Greensburg
store; that Picallo told him that he was having a problem
with the transfer of employees from Greensburg, that he was
allowed to be in the Hempfield store and that he was not
going to make a problem; that Picallo asked if it would be
alright to speak to some of the employees at the Hempfield
store; that Picallo did not ask to speak to just the Greensburg
employees; that Picallo asked him to call some of the em-
ployees together; that he called some of the employees to-
gether and said: ‘‘This is Mr. Picallo from the Steelworkers
. . . he has a few questions to talk to you about and it is
okay to talk to him’’; that the 12 employees he gathered
went with Picallo; that he thought they went upstairs but he
was not sure; that he then left the store; that he did not see
Donahue and Don Miller with Picallo; that he did not recall
talking to the 12 employees other than to introduce Picallo;
that he said nothing about signing a card or about being one
big happy family; and that he did not know that UFCW was
trying to organize the Hempfield store until the 1986 Memo-
rial Day weekend, which is treated below.
Picallo testified that he is an organizer for the Steel-
workers; that his boss, Jim Poole, had received some calls
from some of the employees of Respondent who were con-
cerned about transfers; that Poole told him the involved em-
ployees would be permanently working at the other store of
Respondent and Poole thought that it was a violation of the
labor agreement between the Steelworkers and Respondent
since these employees would be working in a nonunion store,
‘‘they would be considered scabbing or whatever’’; that
Poole asked him if he would take a ride up to the store and
see what was going on; that he went to the Hempfield store,
the Greensburg store, and back to the Hempfield store; that
Jim Davis agreed that some Steelworkers dues paying mem-
bers at the Greensburg store were working at the Hempfield
store; that he went down to the Hempfield store ‘‘to try to
secure some cards for organizing that store’’; that he saw
Robert Davis at the Hempfield store; that before this he had
been to the Hempfield store talking to employees trying to
get them to sign up to belong to the Steelworkers; that he
had succeeded in getting some authorization cards signed;
that he had asked Donahue and Don Miller, both of whom
were in the Steelworkers at the Greensburg store, to get
Steelworker authorization cards signed; that he talked with
Robert Davis,
I said Bob I said I got some complaints on transfers.
I am here and I am talking to these people which I feel
I have a right to do. I said I hope nobody gets in a jam
because they are talking to me because I didn’t know
any of the managers of the store or anybody. I want to
question the employes on transfers. I said I would ap-
preciate it if you would let these people know that that
is what I am here for;
that he did not meet with the employees as a group but rath-
er he met with them individually; that he had asked Donahue
and Miller to meet him at the Hempfield store on that day
to try to get employees to sign Steelworker authorization
cards; that he did not recall whether Donahue and Miller
were standing with him when he spoke with Robert Davis
but he did not believe that the two were standing there; that
he did not go upstairs and he did not know whether Donahue
and Miller went upstairs to try and get employees to sign
Steelworker authorization cards; and that subsequently he
made five or six trips to the Hempfield store within the next
month or two.
On May 2 Porter, accompanied by Robin Kaskie, who was
employed as an organizer by the UFCW and who was as-
signed to this organizing drive in the first half of April, ob-
tained a UFCW authorization card from Respondent’s em-
ployee Paul Williams (G.C. Exh. 32). Porter testified that
Williams had partially filled out the card when they met with
him and when Kaskie gave him a pen he filled out the re-
mainder of the card; and that he told Williams he would be
authorizing the UFCW to represent him in collective bar-
gaining. On cross-examination, Porter testified that Kaskie
told Williams that the reason for signing the card was to au-
thorize the UFCW to represent him in collective bargaining.
Kaskie testified that she gave Williams a pen to fill out a
portion of the card which was not already filled out, namely,
the Employer’s name and address, and his hire date, depart-
ment, and hourly rate;46 and that she explained to Williams
that collective bargaining meant getting a contract for wages,
benefits, and work conditions.
Pam Barnes, an employee of Respondent, signed a UFCW
authorization card on May 2 (G.C. Exh. 31). Porter testified
that when he met with Pam Barnes and her husband Porter
was accompanied by Kaskie; that he told Barnes that she
would be authorizing the Union to represent her in collective
bargaining; and that that she read the card, filled it out and
signed it in their presence.47
Respondent’s employee Mary Kissell signed a UFCW au-
thorization card on May 2 (G.C. Exh. 40). Porter testified
that he and Kaskie met Kissell at a restaurant in Greensburg;
that Kissell was told that she would be authorizing the Union
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 Kaskie testified that she put a star in the upper left corner of
the card to note that Kissell was ‘‘real gung ho’’ and Kaskie thought
Kissell might be a ‘‘key.’’
49 Respondent stipulated to the authenticity and validity of the fol-
lowing six UFCW authorization cards: a card signed by Ingeborg
Kunz on May 16, one signed by Craig Steiner on May 1, Sam Grace
on May 7, Joe Phillips on May 6, Marjory Sullenberger on May 10,
and Staci O’Brien on May 10. G.C. Exhs. 5–10, respectively.
50 About 1 month after he signed the UFCW card, Kula signed a
Steelworkers authorization card. He did not recall ever signing a
form for UFCW revoking his Steelworkers card.
51 She testified that she left Respondent’s employ because a new
manager had her doing a lot of different things in the store and very
rarely did she work on her cash register; and that while she was
angry then and when she testified herein, she was not angry enough
to perjure herself herein.
52 Sarsfield testified that when she was given the card to sign she
did not believe that the solicitor said anything but later she heard
from employees in the store that the purpose of the card was to get
an election. She met with Pekar on January 26, 1987. Regarding this
meeting, Sarsfield testified that she did not believe that she had a
choice but rather she had to meet with Pekar; that she was afraid
when she went upstairs to meet with Pekar; that she did sign a state-
ment, R. Exh. 6, which indicated that she could refuse to participate
and no action would be taken against her; and that Pekar drafted a
statement but she refused to sign it.
53 According to Porter, the meeting was attended by Black, Eman-
uel, Lisa Crivella, Tompkins, Theresa Colosimo, Defibaugh, and ei-
ther Kunkle or Welsh. Kaskie testified that she, Porter, Kunkle,
Black, Brian Marchetti, Thompkins, Emanuel, Colosimo, Missy
Moore, and Crivella were there.
54 Emanuel, Crivella, Tompkins, and Colosimo. (G.C. Exhs. 33,
34, 36, 37, respectively.) Kaskie corroborated Porter’s testimony re-
garding these cards.
55 Subsequently he testified that he asked both of them if they un-
derstood the reason for signing the card and they said that Jeff
Ritison had told them. Both Marchetti’s and Moore’s card had ‘‘5-
5-86 from Jeff at Don’s house’’ written on the front. Porter ex-
to represent her for purposes of collective bargaining; and
that Kissell filled the card out and signed it in his presence.48
On May 2 UFCW filed a petition for election covering
Davis’ Hempfield employees (Jt. Exh. 12).
Kunkle signed a UFCW authorization card on May 3,
General Counsel’s Exhibit 16. She testified that she read the
card before signing it; that she was never told not to read
the card before signing it; and that she gave the card to Por-
ter after signing it.
Defibaugh obtained a signature on a UFCW authorization
card from Cheryl Goodlin on May 3, 1986 (G.C. Exh. 25).
Defibaugh testified that she gave the card to Goodlin who
read it and signed it in her presence and then returned it to
her; and that regarding the card, she told Goodlin that the
Union would represent her if she wanted to sign it.
Defibaugh gave the signed card to Kaskie.
On May 3, according to her testimony, Shotts told
Mowery that her husband was laid off the day before and she
wanted to come back to work. Assertedly, Mowery said that
Bob and Jim Davis were out of town at a convention and
he would have to speak to them and get back to her on May
8.
Toffolo testified that a few weeks after she left, Shotts
asked him if she could come back to work and he told her
that there was nothing available at that time.
Corinne Greaves, who is a cashier at Respondent’s Hemp-
field store, signed an authorization card on May 4. (G.C.
Exh. 44.) Kaskie testified that she explained to Greaves what
collective bargaining meant at one of the employee meetings
at the Mountain View Hotel, and that Greaves filled the card
out in Kaskie’s presence.
Miscovich, who was a bagger at Respondent’s Hempfield
store, signed a UFCW authorization card on May 5 at a 7-
Eleven store up the road from Respondent’s Hempfield store.
(G.C. Exh. 3.)49 Prior to this he had no involvement with the
UFCW and after this he did not engage in an union activity,
except picketing.
John Kula, a meat clerk at Respondent’s Hempfield store
began working for Respondent in 1984. On May 5 he signed
a UFCW authorization card which he read prior to signing
(G.C. Exh. 12). Kula testified that he was not told that the
only purpose of the card was for obtaining an election. When
Shotts gave him the card, she merely said to read it before
he signed it.50
Respondent’s employee Scott Graham signed a union au-
thorization card on May 5. (G.C. Exh. 41.) Porter testified
that he told Scott the he would be authorizing the Union to
represent him in collective bargaining; and that Scott filled
out the card and signed it in his presence.
Valozzi, an employee of Respondent, signed a union au-
thorization card on May 5. (G.C. Exh. 43.) Porter testified
that he told her that she would be authorizing the Union to
represent her in collective bargaining; and that she filled out
the card and signed it in his presence.
Counsel for General Counsel sponsored General Counsel’s
Exhibit 56 which purports to be a UFCW authorization card
signed by Tammy Traister on May 5. For purposes of com-
parison, an employment application signed by this individual
was also introduced (G.C. Exh. 57).
Wendy Sarsfield was employed as a cashier at Respond-
ent’s Hempfield store from September 1985 to May 1988.51
She signed a UFCW authorization card on May 6 (G.C. Exh.
11). With respect to signing the card, she testified that she
read the card prior to signing it; that she was not told that
the card was only for the purpose of obtaining an election;52
that she was not told to disregard the language on the card;
and that she was not threatened in any way.
Defibaugh obtained a signature on a UFCW authorization
card from Angela Sherrow on May 6 (G.C. Exh. 26).
Defibaugh testified that Sherrow read the card and signed it
in her presence; and that she told Sherrow that the card was
to have the Union represent her. Defibaugh gave the signed
card to Kaskie.
On May 6, Porter and Kaskie held a meeting of certain of
Respondent’s employees at Black’s house.53 Certain of the
employees who attended the meeting signed UFCW author-
ization cards while they were at the meeting.54 Porter testi-
fied that the employees present were told that by signing the
union authorization cards they were authorizing Local 23 to
represent them in collective bargaining. Moore and Marchetti
arrived at the meeting after it had started. Moore gave the
union representatives her union authorization card which she
had already signed and which was dated May 5. (G.C. Exh.
35.) Marchetti also gave Porter his union authorization card
which was already signed and dated May 5. (G.C. Exh. 38.)
Porter believed that he explained to Moore and Marchetti
that by signing the cards they were authorizing the union to
represent them in collective bargaining.55
441DAVIS SUPERMARKETS
plained that Kaskie gave the two cards, at his trailer, to Ritison, who
was a former employee of Respondent, to give to Marchetti and
Moore. Kaskie testified that she explained to Moore that the purpose
of the card was for collective bargaining to get the employees a con-
tract or wages and benefits and working conditions; and that Ritison
passed out cards and he must have given them to Marchetti and
Moore who brought cards to Black’s house, which cards were al-
ready filled out. Kaskie did not give them the cards at Blacks. She
had no idea why she wrote ‘‘5-5-86 from Jeff at Don’s house’’ on
the reverse side of Moore’s card.
Kaskie also testified that the employees present asked about revok-
ing the Steelworkers cards, indicating that they felt like they were
forced to sign them; and that at the meetings the employees were
told that there would be an initiation fee. Marchetti, Tompkins,
Emanuel, Crivella and Kunkle signed letters dated May 6 revoking
their Steelworkers authorization cards, C.P. Exhs. 1–5, respectively.
56 The reverse side of the card has the following notation: ‘‘5-06-
86 from Brian M. at Peggy’s RK.’’ Apparently this notation refers
to the above-described meeting at Black’s house.
57 While she was in the Hempfield store shopping, Shotts saw em-
ployees she did not recognize. Pomaibo told her that one was Lisa
who was from the Greensburg store and another was Bonnie, who
Shotts did not believe was from the Greensburg store but rather re-
cently hired. Prior to Shotts’ layoff, an employee from the Greens-
burg store came to the Hempfield store to help set up a fish case
in the meat department. According to Shotts’ testimony, the Greens-
burg employee stayed at the store for a couple of hours at a time
and her visits ended before the involved organizing drive.
58 At the time she testified herein, Shotts had not been recalled by
Respondent.
59 The following employees signed and returned the authorization
cards to Kunkle: Becky Mascolo, Jean Ann Bennett, and Chris
Goodman. G.C. Exhs. 17, 18, 19, respectively.
60 Kunkle testified that when she solicited these cards none of Re-
spondent’s managers were around.
61 Miscovich testified that Bob Davis held meetings with the em-
ployees before May but he, Miscovich, could not remember when
the meetings took place or who was present. He did remember that
the meetings dealt with work procedures.
Counsel for General Counsel sponsored General Counsel’s
Exhibit 49 which purports to be a UFCW authorization card
signed by Jennifer Thomas on May 6, and General Counsel’s
Exhibit 53 which purports to be a UFCW authorization card
signed by John Rusnica on May 6.56 For purposes of com-
parison, W-4 forms and employment applications signed by
these individuals were also introduced (G.C. Exhs. 50–52,
54–55, respectively).
According to her testimony, when she did not receive a
telephone call from Mowery on May 8, Shotts telephoned
him, asking him if he had heard anything about her returning
to work. Shotts testified that Mowery said that he had spoken
to Jim Davis and he said that it would not be a good time
for her to come back to work then and Respondent did not
really need her; that Mowery said that it was because of the
union situation with the Steelworkers; that she told Mowery
that Davis has employees coming down from the Greensburg
store taking her job57 and they were hiring people, and she
had been told that she could come back; and that Mowery
said that he could not say anything until the union business
was settled.58
Mowery testified that he was not aware that Shotts ever
wanted to come back to work at the store.
Kunkle obtained the signatures on three UFCW authoriza-
tion cards. All are dated May 10.59 Kunkle told each of the
employees that the card was to get Local 23 to represent
them. When the employees gave them back to her she gave
them to Porter.60 She also attended UFCW meetings which
were held at a specified restaurant and at Black’s home.
Pomaibo, who is employed by Respondent at its Hemp-
field facility, signed a UFCW authorization card on May 12
(G.C. Exh. 45). Kaskie testified that Pomaibo attended one
of the Union’s meetings at the Mountain View Inn and
signed the card afterwards; that during the meeting collective
bargaining was explained and it was indicated that the card
could be used for a recognition demand or election; and that
she witnessed Pomaibo sign the card.
On or about May 12, according to the testimony of
Miscovich, Bob and Jim Davis called a meeting at the store.
Assertedly eight employees went upstairs to the store man-
ager’s office where they were told by Bob Davis that he
knew that all of the employees there had signed UFCW au-
thorization cards and he wanted to know what the problem
was and why had they signed the cards. Also, assertedly Bob
Davis said that if there was any kind of a problem, if there
was anything he could help the employes with, they should
just ask. Miscovich remembered that Buhl and a Linda from
the office were there but he could not recall who the other
five employees were. According to Miscovich, Bob Davis
also spoke about how he helped people get a job.61
On May 12 or 13, Kunkle had a conversation with
Mowery in the office in the front of the store, during which
Mowery assertedly said that Davis would close the store and
rehire all new people if Local 23 got in. Kunkle could not
recall whether she or Mowery brought up the topic of the
Union. She testified that she and Mowery were friendly; and
that neither he nor any other of Respondent’s managers ever
asked her about her role in the union campaign. Kunkle be-
lieved that she might have mentioned Mowery’s and
Civiccio’s statements about the store closing to the other
women who worked in the front office at the time; Bennett
and Mascolo. But she was sure that she did not mention
these statements to other employees before she solicited au-
thorization cards for the Union.
Mowery testified that Kunkle brought up the Union asking
him what he thought about it; and that he told Kunkle that
the Union did not bother him in that Respondent had a union
at its Mount Pleasant store where Mowery formerly worked,
and he also belonged to a union when he worked for
Volkswagon.
Kaskie testified that on May 13 she, Ron Kean, who was
Kaskie’s boss, and Tom McNutt, who is a UFCW business
agent, went to Respondent’s Hempfield store and met with
Bob Davis in the store’s snack bar or cafeteria. Kean told
Davis that they were demanding recognition because they
represented a majority of the employees and Bob Davis said,
‘‘No,’’ he could not do that.
When Larry Miller punched in on May 14 he allegedly
was told by Elda to attend an employee meeting being held
upstairs in the store. Miller testified that he did not know the
last names of other employees present, namely, Ed, Scott,
Tami, Glena, Lina, and Cheryl. According to Miller’s testi-
mony, Bob Davis spoke about the people from the Union
talking to the employees. Davis assertedly indicated that
those people were trying to push things down the employees
throats; that those people were pushing the employees around
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
62 On cross-examination, Miller, when asked about his testimony
on direct that he purchased the material that he was eating, initially
testified ‘‘Yes, mostly [sic] likely we did.’’ Later, he testified, ‘‘We
did purchase it.’’ Also, Miller testified that he told Mowery that he,
Miller, bought the item in question. Two days after the firing, when
he gave his affidavit to the Board, Miller did not have the Board
agent include in the affidavit a statement that he, Miller, did buy the
corn curls. And he testified herein that he did not tell the Board
agent that he told Mowery that he bought the items in question. Fi-
nally, on redirect he testified that he told Mowery ‘‘[t]hat I could
very well bought them or somebody else would have bought them.
And we shared our items in the back room, in receiving. And I did
not steal.’’ Miller did not give to Mowery and Mowery did not ask
for a receipt for the items which were consumed 2 or 3 days before
this meeting.
63 The night crew included Harshall, Scott Bunner, Rob Japena,
Roy and Dave Biedrycki, Graham, and John Hart.
64 The picket signs read:
Davis Market
Unfair
We want the public to know that
this company has committed unfair
labor practices designed to deny
employees their rights under
the NLRB.
Please do not patronize.
United Food and Commercial Workers
Union, Local 23 AFL–CIO
There is some indication that an ‘‘A’’ is in the sign but this is not
clear. The sign measured about 24 inches by 18 inches. And the
word ‘‘Unfair’’ was about 2 inches high and the remainder of the
letters in the sign were about 1-inch high, except ‘‘Please don’t pa-
tronize’’ which was about 1.5-inches high.
saying that they could help us; that nobody could help the
employees except Davis and his family; and that he had
heard terrible rumors about people speaking to the employees
in the parking lot. Miller testified that Davis also spoke
about how he helped certain employees like Cheryl with her
schedule because she attended college; and that Davis did not
ask the employees during this meeting to sign a card for the
Steelworkers.
Later during his shift on May 14, Miller was told by Elda
to go upstairs to the office to meet with Mowery. Elda ac-
companied Miller to the office and remained there during the
meeting. Miller was told by Mowery that he had observed
him clowning around and eating and drinking in the receiv-
ing area. Mowery had a box with a number of items which
were opened. Miller testified that he told Mowery that he did
not steal the items:
that a lot of times . . . we have a soda machine in the
receiving area and we would buy things on break. They
might be laying around back there and we would eat
them or whatever, share them with fellow employees.62
Mowery told Miller that he was fired. According to Miller,
the two other employees with him at the time, B. J. Campana
and Corsaro, were not discharged.
Elda, Toffolo, Sandy Reich, Mowery, and Jim Davis testi-
fied that they did not know that Miller signed a UFCW au-
thorization card or supported UFCW or engaged in union ac-
tivities on behalf of the UFCW prior to mid-May 1986.
Mowery asked Elda to sit in when he spoke to Miller. She
testified that when Mowery asked Miller if he consumed any
of the items without paying for them, Miller admitted to it;
that she was not present when Mowery spoke with Campana
before he spoke to Miller; and that Campana was not fired.
Mowery testified that the store was experiencing a pilferage
problem in the stockroom of the warehouse; that the store
had experienced pilferage problems in the past; that a lot of
empty soda cans and opened packages of chips, cookies and
peanuts were found in the stock room; that two employees
worked in the room as pullers, namely, Miller and Campana;
that he talked to Campana who denied eating or drinking any
of the involved items; that no one else was present when he
spoke to Campana; that Elda was present, at his request,
when he spoke to Miller; that he asked Miller if he had eaten
the contents of the packages he had in front of him or drank
any of the soda; that Miller said yes he did; that he told Mil-
ler that he had no choice and he had to fire him; that he did
not first ask Miller if he had paid for what he consumed or
if he just took them; and that store policy requires that the
employee keep a receipt for goods while he or she is con-
suming them but there is no requirement that the employee
keep the receipt for some indefinite period of time; that it
is the policy that anytime there is going to be a reprimand
of an employee, another person should be present; that that
day Campana was at the store before Elda; that she came in
at 4 p.m.; that he spoke to Miller 30 to 45 minutes after he
spoke with Campana; that ‘‘it had to be one of them . . .
[and] Miller admitted to it’’; that Miller did not indicate that
either he or someone else paid for the goods consumed; that
at that time there was a night crew on duty at the Hempfield
store overnight; that they had access to the involved store-
room; that Miller was not the first person discharged for pil-
fering at the Hempfield store; that before Miller was dis-
charged three other employees were discharged for pilferage;
and that after Miller was discharged, two night crews were
discharged for the same reason.63
On May 15 while Kunkle was in the office in the front
of the store she heard Bob Davis tell a cashier that he was
very upset that his employees would go behind his back to
go to Local 23.
Black testified that around May 15 Bob Davis approached
her register. Assertedly it was a very slow day and there was
no one else around her register. Black testified that Bob
Davis told her that he was very unhappy and upset that some
of his people were going behind his back to join with Local
23; that she told Davis that Respondent’s Hempfield employ-
ees were unhappy with the fact that Greensburg employees
were being transferred to the Hempfield store; that Davis
said that he wanted his Greensburg people to train us as to
the operation of his Greensburg store; that Davis said that his
door was always open anytime we wanted to talk and we
were welcome to come in; that Davis said that he took care
of his own; that Davis said that he would not have Local 23
in his store; and that at the time Kunkle was in the front of-
fice about 10 feet from her, Black’s, register.
On May 23, Helen Aalborn, who is employed by Respond-
ent at its Hempfield facility, signed a UFCW authorization
card (G.C. Exh. 46). Kaskie testified that Aalborn read, filled
out and signed the card in her presence; and that she told
Aalborn what collective bargaining meant.
The Union began picketing at Respondent’s Hempfield
store on May 23. Kaskie arrived at the store at about 8 a.m.
She testified that the pickets had unfair labor practice signs64
443DAVIS SUPERMARKETS
65 Kaskie estimated that at most there were 12 picketers in front
of the store; and that some of them moved away from the doors.
She recalled some of the picketers, namely Defibaugh, Shotts, and
Good.
66 Black corroborated Kunkle, adding that Buhl also took their
photographs. A couple of weeks after she picketed, Black’s hours
were reduced and she was given a steady 7 a.m. to 1 p.m. shift. Be-
fore that she worked during the evening with her hours fluctuating.
Her total hours per week varied between 36 and 39. After picketing
they were reduced to 26 to 30 hours. They remained at the lower
level for about a month. Black testified that Jim Davis never talked
to her after she walked the picket line.
67 Assertedly, four stood by the side of the entrance door and four
stood by the side of the exit door. Defibaugh testified that the pick-
ets were not in front of the doors but rather were usually off to the
side; and that while she was there she never saw anyone unable to
get into or out of the store because of a picket. She conceded that
occasionally it did get congested in the area when people stopped
to talk to the picketers.
68 One or two people were involved in selling the raffle tickets.
Harshall testified that on Memorial Day he saw the pickets and also
two people selling raffle tickets for a car at a card table set up on
the sidewalk in front of the store. He also testified that occasionally
there were people in front of the store selling tickets for different
things.
69 The complaint, as here pertinent, alleges as follows:
‘‘6. Commencing at about 8:00 a.m. on May 23, 1986, ap-
proximately six (6) individuals holding signs bearing the name
of the Union Defendant entered onto the property of Plaintiff
and remained positioned at the main entrance of Plaintiff’s
Hempfield Township store.
7. Defendants were requested and directed by Plaintiff to leave
the premises but refused to do so.
8. Defendants continue to persist in their unlawful conduct of
trespass.
9. The trespass by Defendants places in jeopardy Plaintiff’s
good will and business relationships.’’
and they handed out handbills which spoke to the alleged un-
fair labor practices of Respondent; that she and the other
pickets stationed themselves on the sidewalk in front of the
store;65 that the two entrances to the parking lot of this store
are wide enough to accommodate one car entering and one
car exiting at the same time; that when the pickets took up
their position on the sidewalk in front of the store, Bob
Davis came out of the store and told them that they were not
allowed to be there and he was going to call the police; that
she informed Bob Davis that she had already telephoned the
State Police to tell them what the picketers were going to be
doing; that the State Police did arrive later that day; that that
same day there was an older man selling raffle tickets for a
car which was parked in the lot in front of the store; and
that Napolean, Steve Davis, and Buhl took photographs of
the picketers.
On May 24 the picketers were advised that as a result of
a legal action they could not picket on the sidewalk in the
front of the store. Kaskie testified that on May 24 her boss,
Kean, showed her the injunction and told her that the pick-
eters had to get off the sidewalk; that neither the Davises nor
the police told the picketers to get off the sidewalk on May
24; that three picketers were allowed at both of the two en-
trances to the involved parking lot and two picketers were
allowed to handbill in the parking lot up to the third row of
cars in the lot nearest the store; that the people handbilling
in the lot were not allowed to wear signs and the people who
wore signs at the entrances to the parking lot were not al-
lowed to handbill; and that the picketers by the entrances to
the parking lot stood in grassy areas.
Welsh picketed at Respondent’s Hempfield store during
the Memorial Day weekend in 1986. She was stationed by
an entrance to Respondent’s parking lot passing out informa-
tion on what Respondent was doing and she saw the Davis’
come and go. She picketed for some time after that whenever
she could.
Kunkle engaged in informational picketing at Respond-
ent’s Hempfield store on May 23, 24, and 25 with Black and
some UFCW officials. While she was picketing, mostly at
the driveway entrance to the parking lot, she saw Bob and
Jim Davis and Mowery. Kunkle testified that Mowery di-
rected Napolean to take pictures of her and Black while they
picketed.66
Defibaugh also engaged in picketing at Respondent’s
Hempfield store over the 1986 Memorial Day weekend, May
23–25. She arrived at the site at 8 a.m. on May 23. Regard-
ing the picketing, she testified that there were eight people
on the sidewalk near the front doors;67 that they carried signs
which read ‘‘Unfair Labor Practices. Do Not Patronize This
Store, Davis Supermarket. Local 23, UFCW’’; that the pick-
eters distributed handbills which covered unfair labor prac-
tices and people being laid off; that the Hempfield store is
located on Highway 136 and Janice drive; that there is a
parking lot in front of the store with a driveway on both of
the aforementioned streets; that the involved store is the only
business located on this property; that at various times during
the picketing various managers, including Bob Davis,
Mowery, and Elda entered and left the store; that Napolean
took pictures of the picketers; that on May 23 some organi-
zation had a table set up on the sidewalk by the front door
and they were selling raffle tickets for a car which was
parked nearby;68 that usually around holidays there were
church groups or school organizations in front of the store
selling tickets and other things; and that a public relations
representative from the Pennsylvania State Police appeared at
the store and he spoke to Respondent’s management on May
23.
Davis filed a complaint in Equity in the Court of Common
Pleas of Westmoreland County, Pennsylvania, on May 23
wherein it sought to have the UFCW temporarily and perpet-
ually enjoined from entering onto Davis’ premises located at
Route 136 and Janyce Drive, Hempfield Township. (Jt. Exh.
1.)69 On May 24 the court entered an order which indicates
that the order was entered by agreement of the parties; that
the UFCW agrees that during the term of the order picketing
of Davis’ store would be limited to (1) two pickets stationed
at each entrance to the premises who would remain off
Davis’ property and carry informational signs but not pass
out leaflets or stop cars and (2) two female pickets who shall
be allowed on Davis’ premises to handbill but shall approach
no closer to the store building than the third row of painted
parking stalls closest to the building. (Jt. Exh. 2.) The order
remained in effect until May 28.
Elda testified that on the first day of picketing there were
at least 8 to 12 pickets on the sidewalk by the front door;
that there were many in the parking lot; that the ones in the
parking lot handbilled customers; that customers complained
to her; that she saw Jim and Bob Davis on the sidewalk talk-
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
70 Subsequently Toffolo testified that the person saying this was a
‘‘she.’’
71 She described the individual as being a very large man, 6 feet
5 inches, and weighing about 250 pounds. She could not remember
the color of his hair or what he was wearing.
72 The order states that Defendants are hereby enjoined. The De-
fendants in the case were UFCW, Local 23, and its officers, rep-
resentatives, agents, and employees, individually and or acting in
concert with UFCW, Local 23.
ing to the customers or the pickets and that Mowery was out
on the sidewalk also.
Toffolo testified that during the picketing over Memorial
Day weekend he was called to the front of the store to assist
in getting some shopping carts off the sidewalk and bring
them into the store. He testified that the picketers ‘‘were sort
of in the way of the doorway. You would have to swing
wide, with three or four shopping carts, like a matter of con-
stantly having to move people to get around them’’; that
there were between 12 and 15 picketers on the sidewalk in
front of the store, 3 or 4 out in the parking lot and several
at each entrance to the parking lot; that one of the picketers
spoke to Bob Davis and ‘‘[h]e said, I’m going to get you,
Bob Davis’’;70 and that he heard the picketers tell customers
to not shop there because ‘‘[t]his guy’s a criminal’’ and they
should shop somewhere else like the Giant Eagle.
Reich testified that one of the picketers who was standing
by the front of the store said, ‘‘Get out of here bitch’’ to her,
which scared her half to death;71 and that she saw Welsh on
the picket line over the Memorial Day weekend.
Robert Davis testified that the picketers blocked the front
of the store and customers had to squeeze around them; that
the picketers were telling people not to shop here but to go
to Giant Eagle; that he went out and spoke to the customers
assuring them that the picketers would not harm them; and
that he saw a lot of the leaflets on the ground and he picked
them up.
Mowery testified that the picketing by UFCW was the first
he heard of a union organizing campaign being carried on by
Local 23; and that he did not know that UFCW had filed a
petition with the Board concerning the involved employees.
Jim Davis also testified that prior to the picketing over the
Memorial Day weekend he was not aware of any union ac-
tivity by Respondent’s employees in support of Local 23 or
of an organizing campaign. In early May both Mowery and
Jim Davis saw UFCW’s petition for an election, which was
forwarded to Respondent by the Board.
On May 24, Nancy Matson, who is employed by Respond-
ent at its Hempfield store, signed a union authorization card.
Kaskie testified that she explained to Matson what the card
was for and told her that if she was interested in union rep-
resentation she should sign the card; and that Matson signed
the card in her presence. Kaskie also testified that with re-
spect to the cards she witnessed, she never told any of the
signers not to read the card, she never told the signers to ig-
nore what was written on the card, she never told the signers
that the sole purpose of the cared was to obtain an election,
she never threatened employees in order to obtain a signature
on a card, and she never promised employees anything to ob-
tain a signature on an authorization card.
Elda testified that there was a management meeting on
May 24, the second day of the picketing, at which it was in-
dicated that the picketers were only allowed at the entrances
to the parking lot with two of the picketers in the parking
lot. Toffolo testified that on the second day of picketing in
May there was a meeting of the managers at the Hempfield
store; that there was no discussion of which employees did
or did not support the Union; that they were told not to
speak to the pickets; and that he did not recall Elda being
at the meeting. Mowery testified that the managers were told
at this meeting that they should make sure that the rules were
being followed and any violations of the rules should be
noted and reported to Jim Davis. Mowery saw Kunkle pick-
eting over the Memorial Day weekend.
When Kunkle went to work on May 25 after picketing,
she was sent to the produce department to wrap strawberries
by Elda, who, as noted above, is the assistant store manager.
As she left the store to go home, she asked Elda why she
was sent to produce and Elda told her that she was replacing
somebody. When Kunkle asked who the person was Elda as-
sertedly did not reply.
Elda testified that she did refer Kunkle to the produce de-
partment to wrap strawberries because Kunkle had experi-
ence in the produce department, someone had called off in
the produce department, and while she, Elda, does not nor-
mally get involved in produce department matters, there were
no other managers in the store at that time on Sunday.
On May 28 the above-described Pennsylvania court en-
tered an order enjoining UFCW72 from picketing Davis’
place of business except for three pickets who may be sta-
tioned at each entrance to the parking lot of the premises,
off the property of Davis, which pickets may carry informa-
tional signs and pass out leaflets but shall not physically im-
pede or stop the movement of the traffic to and from the
parking lot. (Jt. Exh. 4.)
Also, on May 28, Davis’ attorney, in a letter (Jt. Exh. 3)
to Robert Davis, stated:
As you recall, we tentatively agreed, on a trial
basis,that notwithstanding the Order of the court, we
would permit two pickets in the parking lot and two
pickets at each entrance. The two pickets at each en-
trance will do nothing but carry signs, and the two
pickets in the parking lot, three rows from the drive-
way, may merely pass leaflets as long as they behave
themselves!
I believe this is an excellent result, and in the event
the parking lot people need to be removed, we have an
order to do so.
On June 2 UFCW filed a charge in Case 6–CA–19159
(G.C. Exh. 1(j)) alleging as follows:
Since on or about May 23, 1986, the above-named
Employer [Respondent], by its officers, agents and rep-
resentatives, restrained and coerced its employees in
their exercise of the rights guaranteed by Section 7 of
the Act, by demanding that employees cease picketing
and other concerted activities in the store parking lot.
On June 3 a Board hearing was held on UFCW’s petition
for an election in Case 6–RC–9693 (Jt. Exh. 12).
Shortly after he signed the UFCW authorization card,
Miscovich’s work schedule changed in that while his normal
schedule called for him to work in the store during the day-
445DAVIS SUPERMARKETS
73 R. Exh. 8 is a note Welsh wrote to Reich indicating that she
could not come back to work ‘‘[m]ostly because I can’t trust your
employer.’’ (Emphasis in original.) Welsh testified that she was con-
cerned that Respondent just needed people for a holiday or two and
that she was going to have to leave her other job.
74 Kunkle testified that Mowery did not telephone her prior to
going to the meat department to ask her if she minded the assign-
ment. Rather, she noted the change when she saw the schedule.
Kunkle testified that Pomaibo did not take her vacation until July
25.
75 Kunkle testified that normally meat wrappers wrap meat, price
it, take it out and fill up the counters and wait on customers at the
counter. This was corroborated by Garris, who also testified that it
would take 3 weeks to train a person to price and to stock in the
meat department. On the other hand, Garris testified that a person
could learn how to put meat in the case and straighten up the case
in a day. Garris also testified that wrapping was the hardest part of
the job for her to learn because it took her a couple of months to
develop ‘‘the flick of the wrist.’’
76 Opening is described as opening the vault, giving each cashier
their drawer, opening the machines and opening the computer. Clos-
ing is described as closing the computer, all of the registers, count-
ing the money in the vault and making deposits. Previously, Grieco
ran the lottery machine in the office one time for about 30 minutes.
77 About six times a day Kunkle would do nothing for periods of
up to 10 and sometimes 15 minutes waiting for meat to wrap. Garris
testified that while she experienced periods of inactivity, she gen-
erally spent the time straightening up the cases. Garris also testified
that she had never seen a wrapper just stand around for a period of
Continued
time so that he could work at a gas station at night, his
schedule was changed so that he was slated to work a couple
of evenings. His immediate supervisor, Civiccio, who is the
front end manager, had originally told him that there would
be no problem with scheduling him to work during the day.
And Mowery, the Hempfield store manager, asked him if he
had a night job and Miscovich told Mowery that he,
Miscovich, pumped gas at night. When his schedule was
changed, Miscovich asked Civiccio why she was scheduling
him for evenings and assertedly she replied that she sched-
uled him for days and Mowery changed the schedule and
was scheduling him for a couple of evenings. When
Miscovich asked Mowery about the schedule changes
Mowery assertedly acted as if he did not know that
Miscovich worked a second job at night. Allegedly, Mowery
told Miscovich that if he could not follow the schedule than
‘‘you can’t work.’’ At first Miscovich telephoned Respond-
ent indicating that he would not be able to work that
evening. Assertedly he kept telling Mowery that he knew
that he, Miscovich, had to work evenings and after a few
weeks Miscovich just did not go in to work after a fellow
employee told him that he was not on the schedule.
Elda, Toffolo, Sandy Reich, Robert Davis, Mowery, and
Jim Davis testified that they did not know that Miscovich
signed a UFCW authorization card, or supported the UFCW
or engaged in union activities on behalf of UFCW prior to
June 1986. Mowery testified that in May 1986 there were
complaints from customers that there were not enough pack-
ers on duty at night; that there were a lot of high school
graduations and high school students were studying for
finals; that he told Civiccio to schedule more night time
packers; that Civiccio told him that Chuck had another job
at a gas station; that he told her to schedule him when she
needed him; that she did schedule him to pack bags at night;
that after the schedule was posted, Miscovich told him that
he could not work at night because he had this other job; and
that he told Miscovich that whenever he is scheduled to work
that is when he is expected to work.
On June 27 the Board issued a Decision and Direction of
Election (Jt. Exh. 13). It was concluded therein that the fol-
lowing unit was appropriate for purposes of collective bar-
gaining:
All full-time and regular part-time employees employed
by the Employer at its Hempfield Township, Pennsyl-
vania, location; excluding confidential employees, stu-
dents employed pursuant to cooperative education pro-
grams and guards, professional employees and super-
visors as defined in the Act.
According to Welsh, sometime during the week before
July 4, Sandy Reich telephoned Welsh at home and offered
Welsh her job back. Welsh asked if she would be able to
keep her job or if she would be laid off in a while. When
Reich said that she could not guarantee anything, Welsh indi-
cated that she had to turn the job down.73
Reich testified that in mid-June Jim Davis told her that he
trusted her judgement and that she could bring Welsh back;
that when she asked Welsh to come back Welsh told her that
she could not because she did not feel comfortable with Re-
spondent’s management; and that she told Welsh that she,
Reich, was sorry to hear that but she understood and she
wished Welsh well.
When Kunkle returned from vacation on July 5 she was
assigned to work in the meat department. She asked Mowery
what was going on. Assertedly, Mowery told her that Jim
Davis wanted her back in the meat department since there
were people going on vacation and she knew how to wrap.74
Kunkle told Mowery that she thought the transfer was unfair.
She testified that she probably asked Mowery if the transfer
was permanent or temporary but she did not remember what
Mowery said in this regard. Kunkle testified that when she
asked Mowery if she would be going back to the front of-
fice, Mowery did not reply. Kunkle had never worked in the
meat department before but she indicated that the wrapping
procedure and machine are the same. She was told to just
stand there and wrap meat.75 Her job in the front office was
assertedly taken by Grieco, who was a cashier and who had
no experience opening and closing.76
On one occasion while Kunkle worked in the meat depart-
ment she spoke with the wrapper who stood across from her,
Bonnie Duncan. Jim Davis approached and told Duncan that
she was not allowed to talk to Kunkle other than regarding
meat. Assertedly, Duncan looked at Davis and laughed.
Kunkle testified that Respondent, before that, did not have a
rule about talking between employees.
On another occasion, 3 or 4 days after she started in the
meat department, Kunkle was putting out hot dogs in the
meat counter and Jim Davis told her that she was not al-
lowed to be out in front; she had to stay in the back and
wrap. Consequently, since Kunkle wrapped faster than the
butchers could cut, she would just sit there when she was
finished her wrapping.77 On one occasion she indicated to
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
time waiting for meat to wrap. All of the people she worked with,
however, were permanent; none were temporary.
78 Garris, who worked in the meat department for about 10 weeks,
testified that there was blood in the meat department but that the
meat department was ‘‘not really’’ dirty. Garris enjoyed working in
the meat department and preferred it to any other area in the store.
79 Black corroborated Kunkle, adding that there were 30 to 40 peo-
ple in the room. Sandy Reich testified that she attended a meeting
of employees in mid-July regarding the upcoming union election;
that she never directed any employees from the deli to attend any
other employee meetings held by Jim Davis between January 1 and
May 30; and that the meeting she attended was held in a small up-
stairs office which would only hold about 10 people. Reich testified
that she was not directed to bring the employees in her department
with her to the meeting. Mowery testified that he attended a meeting
of employes in July; that Jim Davis presided at the meeting telling
employees about the upcoming Union election; that there were about
10 employees present; and that he was called away from the meet-
ing. Mowery also testified that during the 2- to 3-month period he
did not hear Jim Davis state how he felt about Local 23, the union
campaign or the election.
80 Defibaugh estimated that the driveway off Route 136 is two car
widths wide; and that the driveway off Janice Drive is a little wider.
There is no sidewalk out by the driveway off Route 136. The pick-
eters stood in the grassy area by the driveway.
the other wrapper that she had to find something to do dur-
ing the slack periods and the other wrapper, Pomaibo, gave
her some meat to put out. Kunkle saw Jim Davis get
Mowery. Both men came back to the meat department and
spoke to Pomaibo who, in turn, told Kunkle that she was not
allowed to put meat out front and that she should go back
to wrapping. Kunkle asserted that working in the back as a
wrapper limited her contact with other employees and cus-
tomers.
While Kunkle normally worked 36 or 38 hours in the front
office, she was only allowed to work from 8 a.m. to 1 p.m.
and her total hours a week were reduced to about 20. She
could not recall whether she complained to Mowery about
the reduction in her hours. Kunkle described the working
conditions in the meat department as smelly, dirty and
bloody.78
Elda testified that she took no part in the decision to trans-
fer Kunkle to the meat department; and that Kunkle per-
formed satisfactorily in the office.
Regarding Kunkle’s transfer to the meat department,
Toffolo testified that it was in the summer and he was hav-
ing a problem with coverage due to vacations that were com-
ing up and he needed some temporary help; that he asked
Mowery for help; that Mowery told him to put Kunkle on
the schedule since she had experience wrapping; that it
turned out that Kunkle was probably better than anyone in
the meat department at wrapping; that it takes 3 to 6 months
minimum to train an employee to perform all the functions
in the meat department; that Kunkle never complained to
him about (a) conditions in the meat department, (b) not hav-
ing enough to do, and (c) the number of hours being sched-
uled; and that Kunkle did not request a transfer.
Mowery testified that Toffolo came up to him and said
that he needed someone to cover vacations in the meat de-
partment; that Toffolo did not give him a specific duration
but he was sure it was only couple of weeks; that he was
using a lot of employee hours to run the store and he did
not want to hire someone; that he contacted Kunkle and
asked her if she would go back to the meat department as
a wrapper to cover vacations; that she agreed to do it; that
Kunkle never complained to him about anything while she
was in the meat department; that Kunkle’s job was not given
to Grieco since although Grieco started working in the office
about the same time as Kunkle went back to the meat depart-
ment, Grieco was replacing Mascola who gave her notice on
June 19 that she was going to leave on June 27; that the
managers in the office took over Kunkle’s office duties; and
that Kunkle was not replaced in the office by Karen McFar-
land until after she, Kunkle, quit in late July or early August.
Harshall was terminated on July 14. He was told he was
being terminated for taking and eating food and not paying
for it. He testified that Respondent has a rule that employees
must pay for any food before they consume it. Harshall did
not attend any union organizing meetings before his termi-
nation.
Between July 14 and 19 Kunkle attended a meeting of em-
ployees in the upstairs lunchroom in the Hempfield store.
Jim Davis, Mowery, and Elda were present. Bob Davis may
have been present, according to Kunkle. Kunkle estimated
that there were about 50 people in the room. During the
meeting, Jim Davis said that he did not want his employees
to be intimidated by bullies or ring leaders of Local 23. Ac-
cording to Kunkle, Jim Davis was looking at her and Black
when he made this statement.79
Jim Davis testified that a week or two before the election
was to be held, which was the end of July, he held 3 meet-
ings with Respondent’s Hempfield employees on the same
day; that at each meeting he told the employees that the elec-
tion was upcoming; that he asked the employees to come and
vote indicating that it was important to Respondent that they
voted and they could choose whatever it was that they want-
ed; and that there were 30 to 40 employees at each of the
3 meetings.
On July 22 the Union’s picket line went back up. Kaskie
testified that at first the picketers were allowed in the parking
lot up until some time in August when they were told they
could no longer be in the lot; that sometime in July Steve
Davis told her that he was going to have the police come
and a State Police representative who came to the store told
her that he was called; that between July 22 and the time
they were prohibited from distributing handbills in the park-
ing lot, between 2000 and 2500 handbills were distributed by
the pickets; that from the time they were limited to the en-
trances to the parking lots, August to November or Thanks-
giving, the pickets distributed a total of about 100 handbills;
and that the picketing continued from July to November.
Defibaugh picketed at Respondent’s Hempfield store on
July 22. She testified that 3 pickets were located at both of
the 2 aforementioned driveways80 and 2 pickets were al-
lowed to handbill in the parking lot from the eighth row
from the front of the store to the street; that no one picketed
on the sidewalk in front of the store; that the police came
and they indicated that they had been called by Respondent;
that, she estimated, for every 50 handbills they were able to
distribute in the parking lot, they only distributed 1 handbill
at the driveways; and that people pulling into the entrances
would not stop, especially if there was a car behind them.
Harshall also picketed Respondent’s Hempfield store on
July 22 and on almost every day thereafter when there was
picketing. He testified that for every 10 handbills handed out
in the parking lot, only one was handed out at the entrances
447DAVIS SUPERMARKETS
81 Harshall corroborated Defibaugh’s testimony on this point.
to the parking lot; that on the first day of handbilling, which
occurred within 2 or 3 days of July 22, Steve Davis told the
people passing out handbills in the parking lot that they
should get out of the lot or he would call the police and have
the people who were handing out handbills arrested; that
Steve Davis was in charge of the specialty food in the store,
‘‘[h]e was considered a manager’’; and that when Steve
Davis brought the specialty foods to the store, he would tell
the clerks to put it on the shelves without going through the
clerks’ supervisor. On cross-examination, Harshall testified
that Steve Davis is in the Hempfield store about once a week
for 30 minutes to 1 hour.
Toffolo testified that after the picket line went up he had
to cut back the hours of the employees in the meat depart-
ment somewhat but he did not terminate anyone.
On July 25 Kunkle quit. She testified that she could not
take the harassment any longer. Two other of Respondent’s
employees who were friends with her, Tompkins and Eman-
uel, told her that they were afraid to talk with her because
they might be fired.
On July 25 the Board issued a complaint in Case 6–CA–
19159 alleging that since on or about June 2 Respondent
Davis has maintained a civil trespass suit against the Union
in the Court of Common Pleas of Westmoreland County,
Pennsylvania, Civil Division, No. 3622 of 1986, which en-
joins the Union from picketing on Respondent’s Hempfield
Township premises; and that Respondent engaged in this
conduct to discourage its emoployees from joining, sup-
porting or assisting the Union and engaging in concerted ac-
tivities for the purposes of colective bargaining or other mu-
tual aid and protection.
On August 2, according to the testimony of Harshall, a
sheriff’s deputy handed the pickets a document which indi-
cated that they were no longer allowed on in the parking lot.
Subsequently, Harshall testified that this may have been the
time that the deputy said that if they stayed in the parking
lot they could be arrested. The pickets then took up stations
at the entrances to the parking lot.
On October 25, 1988, Kula was interviewed by P. F.
Kilker, who is an attorney with the firm which represents
Respondent herein. Kula signed a statement which indicated
that he had been assured that he would not be subject to any
reprisals for anything he did or did not say and that he could
terminate the interview at any time. (R. Exh. 7.)
On November 24, the Court of Common Pleas of West-
moreland County, Pennsylvania, in Davis Supermarkets, Inc.,
Civil Action No. 3622 of 1986, issued a decision. As here
pertinent, it reads in part as follows:
On May 23, 1986 discharged former employees of
the store, and other representatives of the Defendant
Union, began picketing and handbilling activities at the
supermarket for purposes of informing the consumer
public that the employer was engaged in unfair labor
practices. The number of pickets and their activities ef-
fectively impeded access to the store by customers.
. . . .
On May 28, 1986, following the evidentiary hearing,
the Court issued an order limiting the pickets to three
in number, as well as prohibiting picketing on the em-
ployer’s private property.
Following the issuance of the Court’s Order on May
28, 1986, the Defendant Union filed an unfair labor
practice charge against the Plaintiff with the National
Labor Relations Board. Acording to Defendant’s brief,
this was done on June 2, 1986. Acording to Defend-
ant’s brief, on July 25, 1986 the NLRB issued a com-
plaint charging the employer with engaging in unfair
labor practices. The Defendant’s brief indicates that the
charge was that the Plaintiff violated Section 8(a)(1) of
the National Labor Relations Act by denying the De-
fendant the right to peacefully picket the employer’s
premises for the purpose of informing the public of the
employer’s unfair labor practices. These charges are
presently pending.
On July 29, 1986 the Defendants filed Preliminary
Objections with the Court in which the claim is made
that the Court’s action is preempted by the NLRB
and/or that the Court failed to take into account the
proper accomodation principles with respect to the loca-
tion of the pickets, pursuant to Federal Labor Law.
. . . . This Court has no knowledge of any pro-
ceedings before the National Labor Relations Board
other than as represented by counsel for the Defendants.
If the effect of Federal Law is to preempt this Court’s
action, then such preemption should be pursued through
the Federal system.
With regard to the claim that this Court failed to take
into account the proper accomodation principles with
respect to the location of the pickets, in Sears Roebuck
& Co. v. San Diego District Council of Carpenters, 436
U.S. 180 (1978), the Supreme Court noted that the
union has a heavy burden in establishing a right to
enter private property for trespassory union activity. In
this case the evidence showed that the only store at that
location is that of the Plaintiff and that the property is
not quasi public as would be the case in a multiple ten-
ant shopping center. The Defendants have not been en-
joined from peacefully disseminating information by
handbills, placards, or other means at the two entrances
to the parking lot. The Defendants have not met thier
burden of establishing that it is necessary to go upon
Plaintiff’s property in order to effectively communicate
their messages.
Accordingly, the Preliminary Objections must be dis-
missed.
Around Thanksgiving 1986 Kaskie assertedly was in-
formed that some pickets who were former employees were
allowed back up on the sidewalk in the front of the store.
Kaskie sent Defibaugh, Hershell, Shotts, and Roy Biedrycki.
A day or two later the pickets gave Kaskie notices they re-
ceived which assertedly indicated that they were in contempt.
The pickets were then moved to the entrances to the parking
lot.
On November 24, the Monday before Thanksgiving,
Defibaugh was picketing at Respondent’s Hempfield store.
She testified that Kaskie came to the site and told her that
people who had been laid off were now allowed to go back
up on the sidewalk in front of the store and picket;81 that
when she picketed on the sidewalk by the front door of the
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
82 Harshall corroborated this testimony.
83 The others were Harshall, Shotts, and Roy Biedrycki. Harshall
corroborated Defibaugh’s testimony.
84 The motion, which is dated November 25, alleges that Roy
Biedrycki, Defibaugh, Harshall, and Shotts, representatives, agents
and employees of defendant union and acting individually or in con-
cert with defendant union, failed and refused to comply with and
have disregarded the provisions of the Order of Court of May 28
by entering onto Plaintiffs property located at Route 136 and Janyce
Drive, Hempfield, and distributing handbills at the doors of Plain-
tiff’s facility, by exceeding the number of pickets (three) permitted
at each entrance to the Plaintiff’s property (emphasis added); by
parking their cars on Plaintiff’s property and thereby depriving cus-
tomers of the use of such parking spaces; and by harassing store em-
ployees and customers. Davis asked the court to enter an order di-
recting the defendants to show cause why, among other things, they
should not be fined an amount equal to the cost of Plaintiff’s loses
incurred as a result of defendant’s failure to comply with the order
of the court. The court left this language out of its show cause order
but included all of the other language included by Davis in the pray-
er portion of its motion.
Defendant’s response to the motion (Jt. Exh. 11) indicates that em-
ployees and former empoyees of Davis who were unlawfully dis-
charged have been instructed by counsel for the Union that they
have the right to peacfully distribute handbills and literature on the
sidewalk area in front of the store publicizing the nature of their ap-
peal directly to customers entering or leaving the store; that defend-
ants deny that they have harassed employees or customers of the
store; that defendants admit that they have stationed, at any one
time, no more than two persons on the sidewalk area in front of the
plaintiff’s store, for the express and limited purpose of distributing
literature and handbills to customers and prospective customers
aproaching the store facility; that defendants admit that on occassion
they have parked their cars on plaintiff’s property and are willing
to remove the same assuming plaintiff directs a request to said em-
ployees to do so; that picket signs are displayed on the bodies of
pickets who are stationed at the entrances and exits of the employ-
er’s premises, not exceeding three in number at any one entrance or
exit; and that since the order of said court, by the admission of
plaintiff’s counsel and its representatives, does not apply to employ-
ees or former employees of plaintiff, the conduct by these individ-
uals does not constitute a deliberate and willful violation of the
court’s order.
85 Jt. Exh. 9.
86 He also worked at the Hempfield store just before the hearing
herein.
store, Jim Davis came out and asked her what she was doing
there; that the following day she again picketed by the front
door of the store, along with others who had been laid off
‘‘probably like . . . Shotz [sic], Randy Hersel [sic], . . .
Good [sic] . . . . [and] . . . a few others’’; that they were
allowed to have three people at each entrance to the parking
lot; and that when one group was leaving for the day and
another group was coming in and there was, therefore, six
people there at the time, someone from the store would come
out and take pictures.82
While Defibaugh picketed on November 26 at the entrance
to the parking lot she was given a paper by the Sheriff’s de-
partment which, according to Defibaugh, indicated that she
and others83 were in contempt of court and were no longer
supposed to be in the parking lot. After that they picketed
only at the entrances to the parking lot.
The above-described Pennsylvania court, upon consider-
ation of Davis’ Motion for Rule to Show Cause,84 entered
an Order (Jt. Exh. 10) on November 26 granting the motion
and ordering UFCW and Roy Bierdycki, Defibaugh,
Harshall, and Shotts to show cause why they should not be
held in contempt for violation of that court’s above-described
order of May 28.
On November 23, 1987, the Superior Court of Pennsyl-
vania issued a decision in Davis Supermarkets, Inc., No.
1736 Pittsburgh, 1986,85 which reads, in part as follows:
On May 23, 1986, appellants, employees and dis-
charged former employees of the store, in conjunction
with the United Food and Commercail Workers, Local
23 (‘‘Union’’), began peaceful picketing and distrib-
uting handbills at the store, alleging that Davis was en-
gaged in unfair labor practices.
On May 27, 1986, Davis filed a compalint in equity,
alleging that the Union had trespassed and continued to
trespass on its property, and seeking a preliminary and
permanent injunction.
The Superior Court ruled that the order appealed from, the
dismissal of Appellant’s preliminary objections, neither effec-
tively ended the litigation nor ended the entire case. There-
fore, the order was not final and the court ruled that it did
not have jurisdiction to consider the merits of appellant’s ap-
peal in the posture presented there.
Blaser started with Respondent as a security guard at its
Mount Pleasant store in 1984. When that store was sold, he
helped the night stock crews at the Greensburg and Hemp-
field stores on a part-time basis, recommending changes to
get it more organized. He did not discipline employees but
rather reported them to their manager. As noted above, one
of Blaser’s duties is to relieve the Hempfield store manager
when he attends the managers meeting, along with other
managers at the Hempfield store, on Wednesday mornings in
Greensburg. Also, if a member of the night crew was ill, he
would fill in for a while. This happened rarely. In 1986
Blaser received minimum wage and no fringe benefits.
Neil Vario, who has worked as a bagger at Respondent’s
Greensburg store for the last 14 years, testified that in 1986
he worked for 3 or 4 months or longer at the Hempfield
store. While he worked there, he punched the timeclock at
the Hempfield store but he used the same timeclock number
he used at Respondent’s Greensburg store. Vario is a mem-
ber of the Steelworkers and he did not notice any difference
in his pay when he worked at Hempfield.86 He testified that
he did not know whether Steelworkers’ dues were deducted
from his paycheck while he worked at the Hempfield store.
Wigfield was hired by Respondent at its Greensburg store
in 1975. She worked in the deli and her supervisor was
Donahue. In 1984 she trained employees and waited on the
counter in the deli department when the Hempfield store first
opened. She testified that there came a time when the
amount of time she spent at the Hempfield store decreased.
While she worked at Hempfield she punched a timeclock at
the Greensburgh store. In the spring of 1986 her hours at
Hempfield increased but she claimed that she did not know
the reason. She claimed that she did not know how long she
had been a member of the Steelworkers, and was not sure
if she was a member of the Steelworkers in 1986. She re-
corded her Hempfield hours with her Greensburg supervisor
up to a point in time when she began punching a timeclock
449DAVIS SUPERMARKETS
87 At the time of the hearing she was spending 6 to 8 hours, 1
day a week at Hempfield.
88 In fact he ordered a $5000 compressor without first discussing
it with the Davis’. Normally though he would make a recommenda-
tion before the purchase is made. And in dealing with contractors,
he would get an estimate if it involved more than a couple of hun-
dred dollars and Jim or Bob Davis would make the decision.
89 Before the produce is unloaded at Greensburg, the bills are re-
viewed by Respondent’s produce manager.
at Hempfield. She claimed that she could not recall when she
began punching a timeclock at Hempfield. On cross-exam-
ination, she answered ‘‘Yes’’ to each of the following ques-
tions: ‘‘is it your testimony that from 1984 even until today,
you are spending some part of your work week at Hemp-
field,’’ ‘‘[s]ometime it is a day and sometime it is more than
a day,’’ and ‘‘[s]ometimes it is 3 or 4 days.’’87
Wilbur Albright has worked for Respondent since 1981 or
1982 generally as a heating, refrigeration, and air condi-
tioning maintenance man. He works at whichever store needs
maintenance or repair work. Normally he reports to Greens-
burg at the beginning of his workday. He keeps his own
hours in a book and then transfers them to a timecard, and
he reports to Jim and Bob Davis. He is paid an hourly wage
and he is not a member of the Steelworkers.He testified that
he makes purchases of equipment of up to $1000 on his own
authority.88 He decides how many hours he will work. And
he decides, depending on the problems, whether he would be
working at Greensburg or Hempfield. Jim Davis does play
a role in deciding the priority of Albright’s work. Between
1984 and 1986 Albright worked basically 40 hours a week
spending about a third of this time at Hempfield with the re-
mainder of the time being spent at Greensburg.
Ann Howard was hired by Respondent at its Greensburg
store in 1977. She worked in the deli department. In 1984
she began working at the Hempfield store periodically for a
month when it opened. Subsequently she worked at Hemp-
field two or three times a week helping in the deli and train-
ing new employees. During one summer she worked at
Hempfield for all of July and August. She could not recall
if it was in 1986. She testified that in 1986 she worked in
Hempfield 2 or 3 days a week between 6 and 8 hours a day.
Up to some point in time she punched a timeclock at Greens-
burg even on days she worked in Hempfield. She could not
recall when she began punching a timeclock at Hempfield.
Howard has been a member of the Steelworkers for over 10
years and she is not paid a different wage when she works
at Hempfield. At the time of the hearing herein she put in
6 to 8 hours maybe twice a week at Hempfield, and her total
work week consists of 38 to 40 hours.
Stanley White was hired by Respondent in April 1986 to
drive a truck used to pickup produce from a broker in Pitts-
burgh, Pennsylvania, and transport it to Respondent’s
Greensburg89 and Hempfield stores. The truck is parked at
the Greensburg store. White’s supervisor works at the
Greensburg store but he is also in charge of the produce de-
partment at the Hempfield store. White testified that he only
has slight contact with the employees in the Hempfield store
aside from his conversations with Allen Barber, who is in
charge of produce at Hempfield; and that he never does any
work at Hempfield other than unload the truck. White is a
member of the Steelworkers at the Greensburg store. Dues
are deducted from his paycheck and his wage is determined
in accordance with the collective-bargaining agreement be-
tween Respondent and the Steelworkers.
Shumaker was hired by Respondent in 1980 to work in its
Greensburg store. He worked at that location until 1986. He
is a member of the Steelworkers and has been since before
1986. In March or April 1986 his supervisor, Garlits, told
him to go to the Hempfield store to retrain the employees
who were working there on how to bake from scratch.
Shumaker testified that Garlits said that he would be there
temporarily until the training process was over. When he ar-
rived, he took over the ordering of products in the depart-
ment. He testified that he was at the Hempfield store when
Defibaugh and Good were laid off; that he did not even
know that Defibaugh had the title of manager; that no one
was named a new manager at Hempfield after she left; that
he stayed at Hempfield for 1 year and 6 months; that he
never heard her refer to herself or anyone refer to her as bak-
ery manager; that he never referred to Defibaugh as bakery
manager; that when he went to Hempfield he was under the
impression that he would be in charge because he was going
to be doing the training; and that he viewed Defibaugh as
an employee working under him. There was no change in his
wages or benefits while he worked at Hempfield and during
that period he continued to have dues deducted from his pay-
check for the Steelworkers.
Janet Barbour was hired by Respondent in 1971 to work
in the Greensburg store. She worked as a bakery icer at Re-
spondent’s Mount Pleasant store for 1 month before it
closed. In January 1986 Garlits assigned her temporarily to
work at the Hempfield store until she got someone trained
to do her job. In the first 3 months of 1986 she worked 4
or 5 hours a week at Hempfield and the remainder at Greens-
burg. Later in 1986 she worked 3 days a week at Hempfield
and 3 days a week at Greensburg. This went on for about
9 months. In February 1987 she worked 5 days a week at
Hempfield. Barbour had more than one conversation with
Garlits about the work at Hempfield being temporary because
she liked working at Greensburg. While she continued to
train employees in icing, no one liked the job. At the time
of the hearing herein Barbour worked 34 hours at the
Greensburg store each week and 6 hours at the Hempfield
store. Sometime in March or April 1987 she punched a time-
clock at the Hempfield store. Before that she punched the
timeclock at the Greensburg store and gave her Hempfield
hours to her manager, Garlits. Barbour is a member of the
Steelworkers and she was a member when she worked at
Hempfield. Dues were deducted from her pay check and
there was no change in her wages or benefits while she
worked at Hempfield. From January 1986 up until the time
of the hearing Barbour had spent at least 1 day a week doing
the icing at Hempfield.
Brian Mull was hired by Respondent in the middle of May
1986. He was a sophomore in high school at the time. After
working a total of 2 days over two consecutive weekends in
May, Mull was told by Allan Barber, his supervisor in the
produce department at the Hempfield store, that he would not
be working until school was let out for the summer because
Barber wanted to train him during the daytime. Mull was
never a member of the students cooperative education pro-
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
90 He got out of school in early June and he cut grass up to and
after he began working at the Hempfield store.
91 Subsequently she testified that she worked 2 days and had a
total of 8 to 10 hours.
92 She also helped start up Respondent’s stores at Mount Pleasant,
Pennsylvania, and Frostburg, Maryland.
gram. Mull checked the schedule for the produce department
and he began working again the first week in July.90
Vicky Smartnik (Cramer in 1986) was hired by the Re-
spondent in 1984 at its Greensburg store to work in the
health and beauty aids department. She was assigned to work
in the Hempfield store by her supervisor at Greensburg,
Carol Millstein, a few months after she started working for
Respondent. At Hempfield, she was stock clerk in the gen-
eral merchandise and beauty aids department. She reported to
the Hempfield store manager. When she first started at
Hempfield, she worked 1 or 2 days a week for 2 or 3
hours.91 Even when she worked at Hempfield, she punched
her timecard at Greensburg, both in and out, and she re-
mained on the clock at Greensburg even though she spent
part of the day at Hempfield. Her routine did not change up
to the time she quit in December 1988. She took her direc-
tion from Millstein and no manager at Hempfield told her
what to do. If she needed something while working at Hemp-
field, she would go to the manager at Hempfield. One other
Greensburg employee worked in her department at Hemp-
field, Stacy Wano. Also, a Hempfield employee, Sherry
Ianni, worked in the health and beauty aids department.
Smartnick testified that she did not really have any contact
with the other employees at Hempfield. Also she testified
that she did not have contact with the other employees who
worked at Greensburg. She was not a member of the Steel-
workers at Greensburg.
Pattie Hutton was hired in 1980 by Respondent to work
as a cashier at its Greensburg store. She was assigned to
work at the Hempfield store as a grocery price coordinator
before it opened. She reported to the store manager at Hemp-
field. Approximately six other employees held the same job.
Some of these employees, like her, worked part of the time
at Hempfield and part of the time at Greensburg. After the
initial startup period at Hempfield,92 she usually worked at
that store 1 or 2 days a week for 4 to 8 hours. Since about
February 1986 she worked at Hempfield once every week or
every other week. The Greensburg manager or one of the
Davis’ would tell her to go to the Hempfield store. When she
worked in Hempfield she took her breaks in the snack room
or the deli, the same as other employees. She never punched
a timecard at Hempfield but rather she punched in and out
at Greensburg even on those days when she worked for some
hours at Hempfield. She was not a member of the Steel-
workers. An affidavit she gave to the Board contains the fol-
lowing:
During my time at Hempfield I had the authority to di-
rect the employees there in how to do the job and they
were expected to listen to me. I never had anyone ques-
tion this authority.
Hutton testified that with respect to direction, she just really
explains to the employees if they have a question; and that
she never disciplined or fired anyone.
Hribal (formerly Orange) was hired by Respondent in
1976 to work in the deli department at its Greensburg store.
She was assigned to work at the Hempfield store in the sea-
food department when it first opened. She reported to
Toffolo. She also worked in the deli department at Hemp-
field under Reich. At Hempfield she took her breaks in the
restaurant in the deli where other employees also took their
breaks. She testified that she worked at Hempfield until
1988, every week, two or three times a week. An affidavit
she gave to the Board contains the following:
Later on, I believe by sometime in 1985 I usually
went to Hempfield one day per week. I worked there
for about one or two hours checking seafood and mak-
ing sure they were following what was being done at
Greensburg.
. . . .
I recall that about the time that Sonja Welsh in the
deli and others at Hempfield were laid off I was work-
ing only with the seafood area because they had moved
a department within a store and needed my help setting
it up properly. For three or four weeks while I was
doing this I worked 15 to 29 hours per week at Hemp-
field. After that relocation was done instead of going
back to my old pattern of coming to Hempfield only
one or two hours per week to check on seafood I was
scheduled for six hours one day per week to check on
seafood and work as a clerk in the deli the rest of the
day. That pattern has continued [to the time she gave
the affidavit, March 5, 1987].
She is a member of the Steelworkers and while she worked
at Hempfield she punched her timecard at Greensburg.
Stacy Woodmancy (formerly Wano) was hired by Re-
spondent in 1984. She stocked shelves in the general mer-
chandise departments at the Mount Pleasant and Greensburg
stores at the time. She was assigned to work at the Hemp-
field store before it opened and she continued to work there
after it opened. One other employee worked in the general
merchandise department at Hempfield, Vicky Kramer. When
Woodmancy took her breaks, she took them in the same area
as the other Hempfield employees; in the deli. In late 1985
and in 1986 she worked at the Hempfield store 3 days a
week for 12 hours a week. She continued to do this at the
time of the hearing. She was assigned to work at Hempfield
by Millstein, who is the supervisor of health and beauty aids
and general merchandise at Greensburg. There is no such su-
pervisor at the Hempfield store. She would tell the store
manager at Hempfield when she arrived to do work in that
store and if there was any stock in the back the manager
would tell her. Her affidavit to the Board indicates that
Millstein told her that as soon as she could get someone
trained for every day at Hempfield,she could return to
Greensburg. The problem was that the employees who she
trained would quit. In June 1986 she suggested to Millstein
that they give up on the idea of training someone at Hemp-
field and she would continue to work 12 hours a week at
Hempfield. Millstein agreed. Throughout the time she
worked at Hempfield she punched in and out at Greensburg
returning to the Greensburg store after 10 p.m. from Hemp-
field to punch out. Millstein scheduled Woodmancy’s days at
451DAVIS SUPERMARKETS
Hempfield. Woodmancy has never been a member of the
Steelworkers at the Greensburg store.
Kim Gallantine (formerly Reich) was hired by Respondent
in February 1985 at the Greensburg store to work in the gro-
cery department where she does price changes, and checks
invoice and retail pricing. Her job title is systems. About 1
year later, Jim Davis assigned her to work in the Hempfield
store full time for one month doing the same thing. Such as-
signment could have occurred as late as July. When she
worked at Hempfield during this 1-month period she reported
to Mowery and punched her timecard at Hempfield. One
other employee, Crivella, was assigned to do the same work
at Hempfield. Others also helped out from time to time. She
took her breaks in the deli. After the first month, Gallantine
worked at Hempfield 2 days a week. Her store manager at
Greensburg scheduled her hours at Hempfield. She receives
her instructions on what to do at Hempfield from her store
manager at Greensburg or Jim Davis and she punches the
timeclock at Greensburg. If she has a problem at Hempfield,
she speaks to the manager at Hempfield. Prior to February
1986 Patty Hutton was doing the job Gallantine took over at
Hempfield. Gallantine’s March 5, 1987, affidavit to the
Board contains the following:
Until recently I went to oversee what those employees
were doing and did none of the actual work. Recently
an employee who was new to the job, Karen Davis, had
been doing it and since she is still learning, I help her
out by assisting with the work. In overseeing the
Hempfield store I can tell the employees there to make
changes or whatever needs to be done
Gallantine then testified ‘‘I can’t remember . . . going there
and not working. I am not their boss. I work with them.’’
She does not have the authority to discipline employees if
they do not follow her instructions. She is not a member of
the Steelworkers. Also she testified that Hempfield employ-
ees Crivella, Werry, Karen Davis, and LeeWanna Shumaker
have worked at the Greensburg store. She testified that about
once a month one of the aforementioned Hempfield employ-
ees works at Greensburg; and that this does not occur on a
regular basis.
Thomas Howard was hired by Respondent in 1979. Since
1984 he has stocked frozen food at the Hempfield store.
More specifically, he spends 80 percent of his time stocking,
10 percent ordering, and 10 percent checking in trucks. He
orders the frozen food using a telex ordering machine and
the tags on the shelves. How much he orders is based on his
experience and he does not check with anyone else before
placing the orders. He orders three times a week and the cost
of the orders is between $2000 and $3000. He sees salesmen
and he recommends new products to Jim Davis and Mowery.
He reports to Mowery and he meets with Mowery regarding
the frozen food ads. He can advise Jim Davis and Mowery
regarding how much shelf space a particular item should
have. No one else works in the frozen food department ex-
cept when he asks Mowery, during busy periods, to give him
a bagger to help him stock. When this occurs, he directs the
person what to stock. If he has a problem with the employee,
he tells Mowery not to send the employee again. On the av-
erage, Howard works 44 hours a week. He does not punch
a timeclock and he is paid a salary. He testified that he has
never hired anyone; that he has never recommended that any-
one be hired; that he does not have the authority to hire; that
he has never interviewed prospective employees; that he has
never transferred employees from one department to another;
that he has never recommended a transfer; that he does not
have the authority to transfer or recommend transfers; that he
does not have the authority to suspend or issue disciplinary
warnings or recommend that it be done; that he does not
have the authority to lay off, or recall, or make recommenda-
tions with respect thereto; and that he does not have the au-
thority to promote or recommend promotion.
Attached hereto as Appendix B is a stipulation, received
as Joint Exhibit 14 with a one-page addendum, which stipu-
lation lists the employees who are or are not in dispute as
to whether they are in the involved unit.
III. DISCUSSION AND CONCLUSIONS
Before treating the merits, certain posthearing motions
must be handled. Respondent filed a reply brief on July 31,
1989. This occasioned a motion to strike by General Coun-
sel, filed August 8, 1989, on the grounds that the Board’s
Rules and Regulations neither provide for such a filing nor
did I grant special leave for such a filing. Respondent then
filed a motion on August 10, 1989, requesting that its reply
brief be treated as a motion or, in the alternative, that it be
granted special leave for the filing of its reply brief. And
General Counsel then filed a statement in opposition on Au-
gust 14, 1989, pointing out that Respondent’s aforementioned
reply brief was filed approximately 2 months after the briefs
in this matter were filed and requesting that if Respondent
is granted leave to file the aforementioned reply brief, Gen-
eral Counsel also be granted leave to file a reply brief. As
noted by General Counsel, the Board’s Rules do not provide
for the filing of reply briefs. Also, special leave was neither
sought nor granted before such brief was filed. Accordingly,
General Counsel’s motion to strike be, and it is hereby,
granted. In my opinion, this is not the type of case which
requires the filing of reply briefs. Consequently, Respond-
ent’s above-described August 10, 1989 motion be, and it is
hereby, denied.
With respect to the alleged unlawful interrogation, General
Counsel, on brief, contends that Sandy Reich’s asking Welsh
if she heard anything about the union meeting which was
supposed to be held at McDonalds was unlawful because at
that time Welsh was not an open supporter of the Union nor
was there any public action to suggest the presence of a
union. Assertedly, Reich’s inquiry, conducted in a back-
ground void of any evidence of open union activity, would
by its very nature instill fear of possible discrimination. Gen-
eral Counsel argues that if the interrogation were truly not
coercive Welsh would not have found it necessary to ‘‘exon-
erate herself by deceiving her manager.’’ Respondent, on
brief, contends that Reich, in connection with Welsh’s termi-
nation, denied any such contact with Welsh; and that even
assuming that Welsh testified credibly, there is no violation
of Section 8(a)(1) of the Act since (1) the language carries
no hint of coercion or interference, (2) the meeting occurred
at Welsh’s normal work station in the deli kitchen, (3) Welsh
testified that she had a very good relationship with Reich and
Reich was her friend and she, Welsh, could talk to Reich
about anything, and (4) the alleged exchange lasted only for
a moment and Reich did not press Welsh for an answer. On
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
93 What either Welsh or Reich said or did not say during the ter-
mination conversation, in my opinion, would not necessarily be in-
consistent with Welsh’s testimony regarding this interrogation.
94 The assertion by some of Respondent’s witnesses that they were
not aware of a organizing campaign before the picketing and
handbilling must be considered in the light of this interrogation and
the fact that Davis received the above-described April 29 charge on
April 30 and the above-described petition for an election.
95 It is noted that Miscovich testified that Buhl attended this meet-
ing. As noted above, when Defibaugh asked Buhl to sign a UFCW
authorization card, he informed her that he would not since he had
been offered a comanager’s job at Respondent’s Hempfield store. No
UFCW authorization card for Buhl was introduced herein. It appears,
therefore, that he did not sign a card. Apparently, this would mean
that the statement that all of the employees there had signed cards
would be inaccurate. It is not clear, however, what Buhls, position
was at that time. Was he there as a comanager, notwithstanding
Miscovich’s characterization of him as an employee? Did Robert
Davis mistakenly believe that he had signed a card? Or was Robert
Davis intentionally misleading the employees assembled? In view of
this, there is not sufficient evidence to discredit this testimony of
Miscovich.
the last point, if the conversation occurred as described by
Welsh, Reich did not need to press Welsh for an answer
since Reich obtained an answer at the outset of the conversa-
tion. In my opinion, the conversation occurred exactly as de-
scribed by Welsh. Reich did not specifically testify about this
allegation. Rather, as pointed out by Respondent on brief,
Reich testified that before her termination conversation with
Welsh she heard nothing about the Union. Welsh impressed
me as being a credible witness and Reich did not.93 Consid-
ering the factors described in Rossmore House, 269 NLRB
1176 (1984), and Sunnyvale Medical Clinic, 277 NLRB 1217
(1985), namely, the background, the nature of the informa-
tion sought, the identity of the questioner, the place and the
method of the questioning and the totality of the cir-
cumstances, it is my opinion that the interrogation was coer-
cive. At this point in time Welsh was not an open and active
union supporter. Her less than candid response, as pointed
out by General Counsel, itself is an indication of the coercive
nature of the interrogation. As will be discussed below, this
was not the only instance where Respondent violated the
Act. On March 25 Respondent’s management had notice that
a union organizing drive was in progress.94 In asking Welsh
about the meeting Respondent violated Section 8(a)(1) of the
Act.
Regarding the allegation that Respondent created the im-
pression among its employees that their union activities were
under surveillance by Respondent, General Counsel, on brief,
cites Miscovich’s testimony about a meeting of employees
on or about May 12 where Bob Davis assertedly said that
he knew that all the employees there had signed UFCW au-
thorization cards. General Counsel submits that pursuant to
relevant Board law, Romal Iron Works Corp., 285 NLRB
1178 (1987), such a statement constitutes a patent violation
of Section 8(a)(1) of the Act, especially in view of the fact
that at that time neither Miscovich nor Kunkle were open
supporters of the Union. Respondent, on brief, points out that
Robert Davis only recalled two meetings of employees and
the meeting in question was not one of them. Respondent
goes on to argue that this allegation fits a pattern, namely,
an uncorroborated incident totally out of character with the
undisputed nature and scope of Robert Davis’ duties at
Hempfield. Miscovich’s testimony is credited. Miscovich im-
pressed me as being a credible witness. While Respondent’s
witnesses attempted to downplay the role of Robert Davis
during this organizing campaign, the record, when considered
as a whole, demonstrates that Robert Davis was a lot more
active than Respondent would have one believe. This is just
one instance. Others will be treated below. When Robert
Davis told the employees assembled that he knew they
signed authorization cards,95 Respondent created the impres-
sion of surveillance and thereby violated Section 8(a)(1) of
the Act.
As noted above, it is alleged that Respondent unlawfully
solicited employee complaints and grievances thereby prom-
ising its employees increased benefits and improved terms
and conditions of employment. General Counsel, on brief,
citing Penn Color, 261 NLRB 345, 406 (1982), contends that
this occurred during Robert Davis’ conversation with Black
on May 15 when he told her that his door was always open
and anytime the employees wanted to talk they were wel-
come to come in, and that he, Davis, took care of his own.
Also, it is asserted that this occurred on May 12 when Rob-
ert Davis told Miscovich and other employees assembled that
if there was any kind of a problem, if there was anything he
could help the employees with, they should just ask. Regard-
ing the former, Respondent, on brief, asserts that Black’s tes-
timony is uncorroborated. Contrary to Respondent’s asser-
tions, Kunkle did overhear a portion of the May 15 conversa-
tion between Robert Davis and Black. Kunkle and Black
were testifying about the same conversation. Kunkle did not,
however, overhear that portion of the conversation with
which we are now concerned. Nonetheless, Black’s testi-
mony is credited. It is very specific. And Black impressed
me as being a credible witness. On the other hand, Robert
Davis did not specifically deny that he made either this state-
ment or the above-described statement to Miscovich’s group
about helping the employees with their problems. As noted
above, Miscovich impressed me as being a credible witness.
Respondent violated Section 8(a)(1) of the Act when it,
through Robert Davis, engaged in the conduct described
above.
With respect to the allegation that Respondent threatened
its employees with store closure if they selected the Union
as their collective-bargaining representative, General Coun-
sel, on brief, contends that on at least three occasions Re-
spondent, by various agents, threatened employees with clo-
sure if the Union became their bargaining representative. As-
sertedly Kunkle was the employee involved in two of the
threats and Black was told by Mowery on May 26 that Re-
spondent would close the store. No record cite is provided
by General Counsel for the alleged May 26 threat. And in
reviewing the record I could not find the involved testimony.
General Counsel points out that in NLRB v. Gissel Packing
Co., 395 U.S. 575, 618 (1969), the Court held that an em-
ployer may actually render a prediction of the probable con-
sequences of the unionization so long as the prediction is
carefully couched in terms to convey to the employee an em-
ployer’s belief of the probable consequences of the unioniza-
tion as based on objective facts rendering the closure beyond
the employer’s control. It is contended by General Counsel
that the involved statements were not couched in prediction
type language but were affirmative declarations of a predeter-
453DAVIS SUPERMARKETS
96 Kunkle’s mistake about Black attending the same meeting on
May 1 does not, in my opinion, undermine her credibility.
mined course of action; and that when the employee was told
that Respondent would reopen and hire all new employees,
she was being told that Respondent would be ridding itself
of the Union and all those who supported the Union. Re-
spondent argues, on brief, that Kunkle’s testimony on this
point is patently false; that the only two threats of store clo-
sure were allegedly made by two different supervisors to the
same employee, in the same words, in the same location of
the store, and in the absence of a single corroborating wit-
ness; and that Mowery’s testimony contains the far more
plausible version of the exchange between himself and
Kunkle. Kunkle’s testimony that Manager Civiccio told her
that Davis would close the store for a month and rehire all
new people if Local 23 got in was not denied by Civiccio.
Absent a challenge, one would be hard pressed not to credit
Kunkle’s testimony regarding the Civiccio statement. And
Kunkle impressed me as being a credible witness. Kunkle, at
that time, worked in the office in the front of the store.
Civiccio also worked in the front of the store. It would not
be unlikely, therefore, that she and Mowery, who was the
store manager, would be in the office in the front of the
store. The fact that similar words were used in the threats
could mean nothing more than those making the threats were
repeating something previously said to or by them. Mowery
did not impress me as being a credible witness. In his
version, he assertedly told Kunkle that ‘‘it didn’t matter . . .
[to him] whether there was or wasn’t a union.’’ Mowery did
not deny Porter’s testimony that once when Porter was in the
Hempfield store, Mowery followed him and eventually
Mowery told Porter, after asking Porter if he needed help:
Well Maybe you might need some help getting your ass
the hell out of this store. I know what you are up to.
Local 23 is trying to get into this store and the Davis’
would do anything to prevent this even if it meant kick-
ing your ass.
Does this sound like someone who did not care whether
there was or was not a union at the Hempfield store? For
this and for other reasons, I do not credit the testimony of
Mowery. In threatening to close the Hempfield facility, Re-
spondent violated Section 8(a)(1) of the Act. Air Products &
Chemicals, 263 NLRB 341 (1982).
It is alleged that Respondent violated the Act by urging its
employees to join the Steelworkers and by permitting the
Steelworkers to utilize Respondent’s facility, Respondent ren-
dered aid and assistance to the Steelworkers. On brief, Gen-
eral Counsel contends that Robert Davis, on two separate oc-
casions directed a group of employees to meet with rep-
resentatives of the Steelworkers and to sign Steelworkers au-
thorization cards; that when one of the employees attending
one of these meetings asked what the Steelworkers had to
offer, Robert Davis ordered the employees to sign the cards,
saying that the Company was there to make money and not
to argue the issues; and that Robert Davis’ reaction to the
employee’s inquiry underscored the unlawful nature of the
assistance to the Steelworkers. Respondent, on brief, argues
that ‘‘[e]ven . . . Kunkle testified that Robert Davis advised
the employees that the purpose of Piccolo’s visit pertained to
cross-training of Greensburg and Hempfield employees. [Tr.
269.]’’ On the cited page of the transcript, Kunkle testified
that Robert Davis said that he was going to bring employees
from the Greensburg store to the Hempfield store to train
them. Kunkle did not testify on page 269 of the transcript
that Robert Davis spoke about Piccolo’s visit, told the assem-
bled employees the purpose of Piccolo’s visit or said that the
purpose pertained to the cross-training of Greensburg em-
ployees. Respondent also asserts on brief that:
Piccolo’s clear testimony was that neither Robert Davis
nor anyone from . . . [Respondent] assisted him or the
Steelworkers in organizing the Hempfield store. This
conclusion is confirmed by the lack of any employee
interest in the Steelworkers.
Taking the last point first, it is noted that on May 1 Kunkle,
after being told by Robert Davis to sign the Steelworkers au-
thorization card, did just that. She later retracted her author-
ization. Regarding the first point of Respondent’s above-de-
scribed assertion, Piccolo did not impress me as being a
credible witness. He testified that he had asked Donahue and
Don Miller to meet him at the Hempfield store to help him
obtain Steelworkers authorization cards on the day he spoke
with Robert Davis; and that he went to the Hempfield store
to obtain Steelworker authorization cards. Nonetheless, ac-
cording to his own testimony, he told Robert Davis that he
was at the store to question employees on transfers. Piccolo
testified that he lied to Robert Davis. Piccolo testified that
he was concerned about members of the Steelworkers work-
ing at the nonunion Hempfield store. Robert Davis, however,
does not testify that he asks Greensburg employees at the
Hempfield store to talk to Piccolo. Rather, Robert Davis just
assembles a group of employees, according to his testimony.
As noted above, Robert Davis’ role in Respondent’s effort
against the organizing drive, in my opinion, was quite dif-
ferent than he would lead one to believe. As I have already
indicated, Kunkle and Black impressed me as being credible
witnesses.96 They were very specific and their testimony was
logical. On the other hand, Robert Davis’ testimony on this
point was not logical. Kunkle’s and Black’s testimony is
credited. The testimony of Piccolo and Robert Davis is not
credited. Respondent violated Section 8(a)(5) and (1) of the
Act as alleged.
Next, it is alleged that Respondent changed the work
schedule of Miscovich thereby causing his termination. As
noted above, Miscovich is credited regarding the May 12
meeting at which Robert Davis told the employees assem-
bled, including Miscovich, that he knew that they had signed
UFCW authorization cards. General Counsel, on brief, con-
tends that for months Civiccio, who scheduled his hours,
honored his request to work the dayshift because of his sec-
ond job; that Civiccio told him that Mowery was altering the
schedule; and that where an employer because of an employ-
ee’s union activities alters the schedule of that employee for
the specific purpose of discomforting the employee with the
knowledge that such discomfort will force the employee to
leave his present employment it will be held to have unlaw-
fully constructively discharged the employee, Bennett Pack-
aging Co., 285 NLRB 602 (1987). Respondent argues, on
brief, that Mowery explained that extra employees were
needed to work evening hours to cover the period surround-
ing high school exams and graduations, and customers had
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
97 Respondent also cites two portions of Miscovich’s affidavit to
the Board in its attempt to discredit him. At one point Respondent
asserts that the affidavit ‘‘revealed that his second job began just
weeks before the scheduled change in April 1986.’’ Miscovich testi-
fied that when he gave the affidavit he was not sure when he started
the second job but subsequently his mother found his first paycheck
from the second job, which paycheck indicated that he started in Oc-
tober 1985. The other portion cited by Respondent refers to the me-
chanics involved when Miscovich did not appear for work. It is triv-
ial, and it does not undermine Miscovich’s credibility. It could, for
the most part, merely hinge on the difference between figurative and
literal.
98 The work schedule sheets (G.C. Exh. 78) do not indicate, on
their face that employees used as baggers were given time off for
high school graduations and to prepare for final exams before mid-
May.
99 It is contended by General Counsel that the record contains
abundant evidence of Respondent’s animus toward Local 23; and
that Respondent’s attitude toward Kunkle was demonstrated by Jim
Davis on July 15 when he told assembled employees that he did not
want them intimidated by ‘‘bullies and ringleaders’’ while staring di-
rectly at Kunkle and Black.
100 After working in the front office it is understandable how
Kunkle could be repulsed by the odor and the blood. The fact that
Garris preferred working in the meat department over any other de-
complained about having to bag their own groceries.97
Miscovich’s schedule change occurred in mid-May. Mowery
asserts that the change occurred in response to customer
complaints which obviously had to occur before the schedule
changes occurred in mid-May. In other words, it is
Mowery’s position that high school students in that area are
graduating and getting ready to take final exams before mid-
May. Other than Mowery’s assertion, there is no evidence of
record on this point. Mowery did not impress me as being
a credible witness. Civiccio, who is the front end manager
in charge of the cashiers and baggers, did not testify herein.
When Miscovich asked her why he was being scheduled for
evenings she, according to his testimony, said that she sched-
uled him for days and Mowery changed the schedule.
Miscovich did not testify that Civiccio told him that he was
needed to work evenings because of the high school gradua-
tions and final exams. Miscovich was the first witness to tes-
tify in the involved hearing. As noted, Civiccio did not sub-
sequently testify that Miscovich had to work evenings be-
cause of the shortage of high school students, and that she
told Miscovich this was the reason.98 In forcing Miscovich
to leave, Respondent unlawfully constructively discharged
Miscovich and it violated Section 8(a)(3) and (1) of the Act.
It is alleged that Respondent imposed onerous terms and
conditions of employment on Kunkle thereby causing her ter-
mination. On brief, General Counsel contends that to sustain
a charge that an employee was unlawfully constructively dis-
charged, it must be established that the burdens imposed on
the employee caused and were intended to cause a change
in the working conditions so different or unpleasant as to
force the employee to resign, and that the burdens were im-
posed because of the employee’s union or other protected
concerted activity, FOP Medical Computer Systems, 284
NLRB 1232 (1987), and South Nassau Hospital, 274 NLRB
1181 (1985); that as an office clerk, Kunkle dealt mainly
with paperwork and was entrusted with a lot of responsi-
bility; that in reassigning Kunkle to the meat department Re-
spondent departed from its previous practice of obtaining
Kunkle’s consent to any reassignment; that Kunkle had never
worked in the meat department before; that when viewed in
the context of Kunkle’s prior work experience and duties in
the office, it becomes quite clear that the transfer was suffi-
ciently odious to render her departure a foreseeable con-
sequence; that there is a marked difference in the level of
skill and responsibility involved between an office clerical
and a meat clerk; that it is conceivable that such a transfer
would be deemed a demotion by any reasonable person; that
the duties Kunkle was permitted to perform as a meat clerk
were more restricted than even the other meat clerks since
she was instructed to just wrap meat; that to suggest that
Kunkle was temporarily assigned to the meat department to
fill in for vacations is contrary to Respondent’s previous as-
sertions that it could run the meat department with less hours
because of increased efficiency; that Kunkle’s selection does
not logically follow since she was removed from the skilled
office position at a time when the office itself was experi-
encing personnel shortages necessitating the training of a
cashier for office work; that by this time Shotts, a fully
trained meat clerk, had requested to return to work; that
while Kunkle worked in the office she had access to and
constant contact with a large segment of Respondent’s em-
ployees, and as a meat clerk she had virtually no access or
contact with the public and access only to the meat depart-
ment employees; that due to Respondent’s instructions that
no one could talk to her except about meat, even the access
to meat department employees was rendered useless;99 that
Kunkle’s hours were reduced; and that it was no surprise that
after 2 weeks of enduring this treatment with no foreseeable
conclusion, Kunkle terminated her employment on July 26.
Respondent, on brief, contends that Kunkle’s transfer to the
meat department was motivated by legitimate business con-
siderations; that Kunkle possessed experience on the produce
wrapping machine which is identical in operation to the meat
wrapping machine; that Mowery obtained Kunkle’s consent
to fill in at the meat department; that while Kunkle portrayed
the meat department as an isolated area, fellow employee
Garris testified that employee and customer contact in the
meat department was frequent; that while Kunkle painted a
picture of an unappealing, bloody work area, Garris testified
that she found the working conditions in the meat department
to be pleasant; that Kunkle’s contention that she resigned due
to her reduction in work hours must be rejected since her
hours coincided with the needs of the meat department and
Kunkle never complained to any supervisor that she needed
additional hours; that Duncan was not called as a witness to
testify that Jim Davis told her not to talk to Kunkle; that
General Counsel has failed to demonstrate that Kunkle’s
working conditions were made so difficult or unpleasant as
to force her resignation, or that any change was related to
Kunkle’s union activities; and that absent a discriminatory
motive, a mere reduction of hours does not support a finding
of constructive discharge. As noted above, Mowery did not
impress me as being a credible witness. Kunkle, on the other
hand, did impress me as being a truthful person. Mowery did
not ask Kunkle if she was willing to work in the meat de-
partment before the assignment. This reassignment was in-
voluntary. It resulted in Kunkle being paid substantially less.
It resulted in Kunkle going from an office setting to a meat
department setting after she had participated in the picketing
of Respondent’s store.100 It resulted in her coworkers in the
455DAVIS SUPERMARKETS
partment in the store is taken into consideration when weighing her
assessment of working in the meat department.
101 While Duncan did not testify, Jim Davis did testify. It is noted
that he did not deny telling Duncan that she could only discuss meat
with Kunkle.
102 Mowery testified that Toffolo did not give him an exact dura-
tion but he, Mowery, was sure it was only going to be a couple of
weeks. Kunkle’s testimony is credited that when she asked Mowery
if she was going back to the front office, he did not reply.
103 Pomaibo actually gave her the task once and Garris testified
that this was a task that an employee could learn in a day.
104 Subsequently Mowery said that he could not say anything until
the union business was settled. Apparently this was in reference to
his earlier referral to the union situation with the Steelworkers. There
is no basis in Mowery’s statement to conclude otherwise.
meat department not being able to talk to her unless it related
to meat.101 It resulted in her working at a job of which she
did not know the duration since Mowery himself did not
know the duration for sure.102 It resulted in her performing
a monotonous job and not being allowed to even put meat
in the meat counter, a task which two employees in the meat
department thought she should be able to perform.103 And
during this period Jim Davis, as noted by General Counsel,
told a group of employees that they should not be intimi-
dated by ‘‘bullies and ringleaders’’ while staring directly at
Kunkle and Black. In my opinion, it has been established
that the burdens imposed on Kunkle were intended to cause
a change in working conditions so different or unpleasant as
to force Kunkle to resign. On July 26 Kunkle did just that.
Respondent succeeded in forcing Kunkle to resign and at the
same time it succeeded in violating Section 8(a)(3) and (1)
of the Act.
It is alleged that Respondent threatened employees with
unspecified reprisals if they supported the Union. General
Counsel argues that when Robert Davis told a group of em-
ployees on May 1 that he would be very upset if they did
not join the Steelworkers, he effectively issued a warning to
sign Steelworker cards, not Local 23 cards, or incur the re-
sult of his wrath in the form of unspecified reprisals; that
Davis told the gathering of employees that he wanted them
to be one big happy family, and it was in their best interest
to join the Steelworkers; and that in this context it is abun-
dantly clear that Davis was threatening employees with un-
identified retaliatory action if they refused to act in their best
interest and consequently made him very upset. Respondent,
on brief, contends that Robert Davis only recalled two meet-
ings with the Hempfield employees during the time period
involved herein and neither one involved what is described
above. Black’s testimony regarding the May 1 employee
meeting is credited. Robert Davis made the statements al-
leged. And, as alleged, they amounted to a threat of unspec-
ified reprisals if the employees did not support the Steel-
workers but rather supported Local 23. By uttering this
threat, Respondent violated Section 8(a)(1) of the Act.
It is alleged that Respondent informed employees that their
recall rights depended upon their refraining from activity on
behalf of the Union. General Counsel, on brief, contends that
Mowery’s statement to Shotts, when she sought to be re-
called, that nothing could be done with regard to her recall
because of the union situation unlawfully created an impres-
sion that her recall was conditioned on abandonment of the
Union; that such statements are held to be independently vio-
lative of Section 8(a)(1) of the Act, Garmen Construction
Co., 287 NLRB 88 (1988); and that in addition to exposing
the layoff as unlawfully motivated, it is an unlawful inter-
ference with Section 7 rights. Respondent asserts that
Mowery told Shotts that there was no need for her services
pending resolution of a matter involving the Steelworkers;
and that the reference was to the transfers being investigated
by Picallo. As noted above, Mowery testified that he was not
even aware that Shotts ever wanted to come back to work
at the store. He is not credited. Nonetheless, Shotts’ own tes-
timony is that Mowery said that it was because of the union
situation with the Steelworkers.104 In view of this it cannot,
in my opinion, be concluded that Mowery unlawfully created
the impression that Shotts’ recall rights were conditioned
upon abandonment of the UFCW. Accordingly, this allega-
tion in the complaint will be dismissed.
The next allegation is that Respondent threatened employ-
ees that their union organization activity was futile. General
Counsel, on brief, points out that like threats, statements by
an employer which indicate that organization is futile have
long been held to unlawfully interfere with employees’ Sec-
tion 7 rights, Holding Co., 231 NLRB 383, 288 (1977),
Sertafilm, Inc., 267 NLRB 682 (1983), and Kona 60 Minute
Photo, 277 NLRB 867 (1985). It is contended by General
Counsel that on May 14 Robert Davis told Larry Miller and
other assembled employees that the Union could not help
them, and no one could except he and his family; that by
making this statement Davis made it abundantly clear that
even if the Union were supported by the employees, such
support would be futile; that Robert Davis also threatened
the futility of supporting the UFCW when on May 15 he told
Black that he ‘‘would not have Local 23 in his store’’; and
that Robert Davis’ unqualified statement to Black expresses
the unequivocal refusal of Respondent to recognize and/or
bargain with the Union under any circumstances and thus es-
tablishes to employees the sheer futility of organization. Re-
spondent, on brief, argues that the cross-examination of Mil-
ler showed that neither Local 23 nor any other union was
discussed by Robert Davis during the May 14 meeting; that
none of the other employees named by Miller as attending
the meeting corroborated his version of the meeting or even
its existence; and that, regarding Black’s testimony about her
May 15 conversation with Robert Davis, ‘‘[i]t is highly im-
probable that Robert Davis intimidated employees, in assem-
bly-line fashion, during one of his infrequent visits to Hemp-
field.’’ It is my opinion that Black testified credibly on this
issue. There was a conversation between Black and Robert
Davis on May 15. Notwithstanding Respondent’s assertions
to the contrary, Kunkle did overhear a part of this conversa-
tion. She did not overhear the part involved in this allega-
tion, but Black is credited regarding the full content of the
conversation. By his own admission, Robert Davis did things
regarding the Hempfield employees without first seeking the
counsel of those who would be knowledgeable with respect
to what could be done. In my opinion, on May 15 he did
tell Black that he would not have Local 23 in his store. Also,
Miller’s testimony that Robert Davis on May 14 told some
employees that nobody could help the employees except
Davis and his family is credited. Robert Davis does not spe-
cifically deny that this meeting occurred. With respect to
what was said at this meeting, Robert Davis did not impress
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
105 As noted above, Hilty’s card is dated ‘‘April 1986.’’
106 Donahue is the deli supervisor at Greensburg. Assertedly, this
demonstrates the implausibility of propositions that she was a dual-
function employee or present at Hempfield for any other reason than
to garner support for the Steelworkers.
me as being a man who was that cautious about what he said
or did during this period. He had built this business up over
a period of years and understandably he took pride in this.
Apparently, Robert Davis viewed what was occurring as a
threat to his business and he reacted, at least in some in-
stances as noted above, without first seeking counsel from
those knowledgeable in such matters. Indications of futility
inherently undermine employee Section 7 rights and are,
therefore, a violation of Section 8(a)(1) of the Act.
It is alleged that Respondent threatened employees by ac-
cusing them of disloyalty for supporting the Union. General
Counsel, on brief, argues that it is well established that
where an employer equates engaging in protected concerted
activities with disloyalty to the employer, it has violated Sec-
tion 8(a)(1) of the Act, Downtown Toyota, 276 NLRB 999
(1985), and Viracon, Inc., 256 NLRB 245 (1981); and that
on May 15 when Robert Davis told Black, as overheard by
Kunkle, that he was unhappy that some of his employees
were going behind his back to join Local 23, he unlawfully
equated disloyalty with seeking representation. As noted
above, Respondent, in effect, contends that it highly improb-
able that such conversation occurred. Both Kunkle and Black
testified about this statement. Their testimony is credited. As
noted above, it is my opinion that Robert Davis overreacted
in his response to the attempt to organize ‘‘his’’ employees.
Accordingly, Respondent violated Section 8(a)(1) of the Act.
Allegedly that Respondent unlawfully laid off Garris,
Hilty, Shotts, Welsh, Defibaugh, and Good, on or about
April 19 and refused to recall them. On brief, General Coun-
sel argues that it is undisputed that all of the April 19 alleged
discriminatees had at least signed UFCW authorization cards
prior to their discharge; that Welsh and Shotts solicited
UFCW cards and support from employees while on the Em-
ployer’s premises; that Welsh was unlawfully interrogated by
her immediate supervisor concerning the Union just one
month before her discharge; that Shotts had previously dis-
cussed the possibility of becoming represented by a union
with her supervisor; that Good had been openly critical of
Respondent’s wage rates; that Hilty had signed her authoriza-
tion card and returned it to another employee while at work
at Respondent’s premises just one week prior to her dis-
charge;105 that Garris initially spoke with Porter while on
duty at the seafood counter directly across from and in plain
view of the manager’s office window, and at that time Por-
ter’s involvement in the campaign was known to Respond-
ent; that supervisor Elda told Defibaugh on April 19 that
‘‘they heard the union was getting close to the number they
needed for an election and they were getting rid of the trou-
blemakers and the people with attitude problems’’; that the
discharges of Shotts, Welsh, Good, Hilty, and Garris were
part of an overall scheme to thwart Local 23’s organizing
drive; that Respondent’s animus toward Local 23 is abun-
dantly clear from the numerous threats, other various viola-
tions of Section 8(a)(1), and the Respondent’s unlawful sup-
port and assistance to the Steelworkers’ belated effort to or-
ganize the Hempfield store; that the Board has held that
proof of an employer’s knowledge of union activity may be
established by circumstantial evidence, including the timing
of the discharges, the pretextual or summary nature of the
discharges, and the shifting or contradictory explanations of
the discharges, BMD Sportswear Corp., 283 NLRB 142
(1987), Culmtech Ltd., 283 NLRB 163 (1987), and Dutch
Boy, Inc., 262 NLRB 4 (1982); that an analysis of General
Counsel’s Exhibit 69 and the testimony, together with Joint
Exhibit 15, which lists the employees’ department, estab-
lishes that departments other than bakery and deli began to
see an influx of ‘‘Greensburg people’’ beginning as early as
the payroll week ending April 26; that such ‘‘Greensburg
people’’ include Linda Hummel, a cashier, Robin Ross, night
crew, and Don Miller, James Weaver, and Lisa Warmick, all
of whom worked in the meat department; that while Jim
Davis may have talked of a consolidation in the past, he took
no action until late April when Respondent believed that the
Union was getting close to the number needed for an elec-
tion; that the increased appearance of ‘‘Greensburg people’’
who are represented by the Steelworkers coincided neatly
with respondent’s May 1 efforts to thwart Local 23 in favor
of the Steelworkers; that two of ‘‘Greensburg people’’ alleg-
edly working at Hempfield were officers of the Steelworkers,
Donahue and Don Miller;106 that it is absurd to believe that
the decision to consolidate by Jim Davis just happened to
occur at the very same time two supervisors, independently
of each other, determined to lay off personnel for economic
reasons and at the same time discharge others for cause; that
the complete lack of any documentary evidence of either the
decision to consolidate or its implementation underscores the
implausibility of the scheme as a legitimate business deci-
sion; that it is improbable that, as testified to by Reich and
Mowery, a decision to consolidate was reached without con-
sulting with the supervisors who would implement such a de-
cision; that Defibaugh was not a supervisor in that the evi-
dence lacks any indicia that she responsibly directs the work
of others, exercised independent judgment, or had the author-
ity to effectively recommend any change in an employee’s
status; that contrary to the other layoffs which were occur-
ring at the time, Defibaugh’s was not handled by her depart-
mental supervisor; that her departmental supervisor did not
even know the reason for her layoff until some time after it
occurred; and that a failure to consult with a supervisor is
an indication that pretextual reasons are being advanced for
a discharge to shroud an employer’s unlawful motivation in
legitimacy, Virginia Apparel Corp., 264 NLRB 207 (1982).
Regarding these alleged violations of Section 8(a)(3) and
(1) of the Act, Respondent contends that it had no knowl-
edge of the union activity by any employee prior to May
1986; that Reich denied participating in any conversation
concerning any union prior to the date Welsh was let go; that
Welsh was let go by Davis because beginning in November
1985 an unacceptable number of complaints were received
concerning food prepared by Welsh; that notwithstanding the
fact that during the Memorial Day weekend Welsh picketed
the Hempfield store on behalf of Local 23, she was later
asked by Respondent to return to work; that she declined as-
sertedly because Davis could not guarantee ‘‘permanent’’
employment; that the facts show that Hilty’s termination was
a performance-related termination of a short-term em-
457DAVIS SUPERMARKETS
107 Respondent also asserts that on its face, Hilty’s authorization
card, which for a date indicates only ‘‘April 1986,’’ raises serious
questions whether it was even signed prior to Reich’s decision to
terminate Hilty.
ployee;107 that an incident involving both Hilty and Smith
triggered the decision by Reich to terminate both employees;
that General Counsel’s proof as to Respondent’s knowledge
of Garris’ union activity is preposterous in that Garris had
no way of knowing what manager, if any was in the office
behind the one-way glass across the store at the time she
spoke to Porter; that the record is clear that it was the com-
bination of a decline in business in the meat department and
Garris’ performance problems—not any union activity—
which caused Garris’ termination; that Toffolo testified
credibly that there was simply not enough work to go
around, and faced with the inevitable termination of employ-
ees, Toffolo concluded that Garris should be let go; that
Garris was the least senior meat department employee, and
she admitted that she had mispriced meat, a deficiency which
Toffolo counseled her to correct; that Toffolo directed Garris
to call him in a few days concerning the possibility of being
recalled and Garris’ failure to follow through on this direc-
tion, rather than any anti-union motivation, caused the per-
manent discontinuance of her employment; that Shotts initi-
ated the idea of taking a leave of absence from work on
April 17; that instead of a leave of absence Shotts was, with
her consent, let go with the understanding that she could col-
lect unemployment compensation and there was no guarantee
that work would be available if she later decided to return
to work; that the Hempfield bakery experienced a number of
problems in its conversion from a frozen baking operation to
a scratch baking operation; that on April 16 Shumaker stated
at a meeting attended by Mowery, Garlits, and Defibaugh
that Good’s attitude was poor and in view of all this James
Davis made the decision to terminate Good; that Elda denied
the above-described comment she allegedly made to
Defibaugh on April 19 regarding Respondent getting rid of
all trouble makers and people with attitude problems; that
Defibaugh’s version of these events—that she never told
Good, a personal friend, about a comment directly linking his
termination to his union activity—defies belief; that the
plainest indication of Defibaugh’s supervisory status was her
action prior to the April 19 bakery department layoff when
upon learning that three employees were to be let go, she
sought to persuade first store manager Mowery and later
Garlits that some or all of these employees should be re-
tained; that as a direct result of Defibaugh’s efforts,
Barbrow’s scheduled termination did not occur; that such ef-
fective recommendation concerning a ‘‘termination’’ decision
is a clear indication of supervisory status, Big Bear Super
Markets, 169 NLRB 94 (1968); that Defibaugh exercised sig-
nificant control over the assignment of work within the bak-
ery department; that she alone decided how many hours per
week to schedule each employee, which employees would re-
ceive days off on Sundays, holidays, and other special re-
quests, and which requests for specific work shifts would be
honored, and she assigned overtime work, Food Mart, 162
NLRB 1420 (1967), Food Marts, Inc., 200 NLRB 18 (1972)
(allocation of hours), Gerbes Super Market, 213 NLRB 803
(1974) (granting permission to leave work early), and Kroger
Co., 228 NLRB 149 (1977) (scheduling); that other indicia
of supervisory status include the fact that, where a particular
individual would be found not to be a supervisor, employees
would otherwise be without a supervisor, Lukes Supermarket,
228 NLRB 763 (1977), Defibaugh received a higher rate of
pay than the other employees, she ordered product using her
discretion with respect to seasonal and holiday periods, and
she held the title of manager; that because Defibaugh was at
all relevant times a supervisor within the meaning of the Act,
the allegations must be dismissed with respect to her on that
basis alone; that notwithstanding Defibaugh’s supervisory
status, Respondent’s termination of her would have still been
proper in that Davis had no knowledge of Defibaugh’s union
activity prior to her termination and the reason for
Defibaugh’s termination was entirely performance related;
and that Defibaugh’s shortcomings were being magnified by
the conversion to a scratch bakery at Hempfield, a skill
which she did not possess, and under the circumstances,
James Davis made the pure business judgement to terminate
Defibaugh and consolidate bakery operations.
Taking the last-named discriminatee first, Good,
Defibaugh is credited regarding what Elda said on April 19,
namely, that Respondent was concerned that the Union was
getting close to the number it needed for an election and Re-
spondent was going to get rid of all the ‘‘troublemakers and
people with attitude problems.’’ Elda, the assistant store
manager, Mowery’s right-hand person, was in a position to
know. While technically Defibaugh was not a supervisor, as
discussed below, Elda viewed her as a manager because
Defibaugh held the title of manager. Elda is not credited; she
did make the statement. The statement explains why Re-
spondent did what it did on or about April 19. This conclu-
sion is bolstered by the fact there is a complete lack of docu-
mentary evidence regarding the alleged consolidation and
any performance problems on the part of any of the involved
employees. By all accounts Good was a good employee. Be-
fore this he had been rehired by Respondent after he volun-
tarily left. The only bad thing said about him was said by
Shumaker, viz, that he had a bad attitude. Shumaker was
present when Good discussed the Union. And Shumaker was
present when Good gave signed UFCW authorization cards
to Welsh to turn into the Union. Defibaugh said that Good
did not have a bad attitude but he thought he should be paid
more for the job he was doing. Garlits and Mowery both
were surprised indicating that they were not previously aware
that Good had a bad attitude. As noted above, Respondent,
on brief, asserts that the bakery department was having prob-
lems and Shumaker said that Good had a bad attitude so Jim
Davis decided to terminate Good. There is no indication that
Jim Davis discussed Good’s alleged bad attitude with Garlits,
Mowery or Defibaugh. There is no indication by Jim Davis
of exactly what the problems were in the bakery department
and how Good was responsible for the alleged problems.
Mowery did not deny that he told Defibaugh that no one
could understand why Good was being laid off. Respondent
violated Section 8(a)(3) and (1) of the Act when it laid off
Good because he engaged in union activity.
At the time Jim Davis decided to lay off Good, apparently
he did not decide to lay off Defibaugh because Garlits origi-
nally said only Good, Barbrow and Roadman. Respondent,
on brief, asserts that Defibaugh’s termination was entirely
performance related. It would seem, therefore, that if
Defibaugh’s layoff was entirely performance related she must
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
108 Respondent argues that Shumaker is an employee and should
be included in the involved unit.
109 Regarding Respondent’s assertion that as a direct result of
Defibaugh’s efforts on April 19, Barbrow’s scheduled termination
did not occur, it is noted that all that was achieved on April 19 was
that Mowery said that Barbrow would be left on the schedule and
the following week she would be let go. Defibaugh was laid off on
April 19. If Respondent changed its position on Barbrow, Defibaugh
was not even there when it did and she played no role in Respond-
ent’s changing its position.
have performed poorly between the time Jim Davis told
Garlits to layoff Good, Barbrow, and Roadman, and when
she was laid off. What did she do? She expressed her dis-
agreement with the layoffs speaking not only to Elda and
Mowery but going to Greensburg to speak to Garlits. Elda
made a damaging admission to her. What else happened?
Defibaugh tried to see Mowery but he was meeting with
Napolean and he would not let her in the office. One of the
employees who Defibaugh spoke to about signing a UFCW
authorization card was Napolean. There is nothing in this
record which demonstrates that there was any legitimate per-
formance problem with Defibaugh either before or after
Garlits spoke to her about laying off Good, Barbrow, and
Roadman. Shumaker said nothing derogatory about her per-
formance. Indeed it appears that he was surprised about her
layoff. He did not deny that Garlits told him that she,
Defibaugh, walked off the job. Mowery testified that Jim
Davis told him to lay off Defibaugh because the bakeries
were being consolidated. When James Davis testified, he tes-
tified that he made the decision to lay off Defibaugh and
Good ‘‘[b]ecause we had problems in the bakery.’’ On April
19 and the morning of April 21 Garlits told Defibaugh he
did not know why she was laid off. Finally, around noon,
after Jim Davis managed to avoid a telephone conversation
with Defibaugh, Garlits told Defibaugh that business was
slow, Respondent was going to consolidate and they were
laying off some people. But, as noted above, Jim Davis testi-
fied herein that Defibaugh was laid off because there were
problems in the bakery. Which is it? It is neither. Garlits said
on April 21, after indicating that it was the consolidation,
that he could not understand why Defibaugh was laid off.
Respondent argues that Defibaugh is a supervisor.
Defibaugh may have had the title of manager but, contrary
to Respondent’s assertions, she was not a supervisor within
the meaning of the Act. From before she began her tenure
as ‘‘manager’’ of the Hempfield bakery until she ceased
working for respondent, little changed regarding Defibaugh’s
position. It would appear that if she had not asked for the
title she would not have been given it. She performed most
of the same functions before she had the title as she did once
she obtained the title. She did receive 30 cents an hour more
in her paycheck but she still punched a timeclock unlike the
other actual supervisors in the store. Shumaker, who was
brought into the Hempfield bakery from Greensburg did not
even know Defibaugh had the title of ‘‘manager.’’ He testi-
fied that while he and Defibaugh were there, he, not she, was
in charge;108 that he never heard her refer to herself or any-
one refer to her as bakery manager; that he never referred
to her as bakery manager; that he viewed Defibaugh as an
employee working under him; and that after Defibaugh left,
no one was given the title manager. Considering the record,
Defibaugh did not have the authority to effectively rec-
ommend hiring, transferring, suspending, laying off, recall-
ing, promoting, discharging, assigning, rewarding, or dis-
ciplining.109 Respondent violated Section 8(a)(3) and (1) of
the Act when it laid off Defibaugh because she engaged in
union activity.
Just as Jim Davis decided the bakery layoffs on his own,
so too he alone decided to lay off Welsh from the deli de-
partment. Again, he claims that the layoff was performance
related. But the deli department manager, Sandy Reich, dis-
agreed asserting that Welsh’s performance did not warrant
the layoff. While Jim Davis disagreed with Reich on April
19, assertedly he reversed his position in mid-June telling
Reich that he trusted her judgement, at least in June, and she
could bring Welsh back. According to her own testimony,
Reich told Welsh that she was being laid off because Re-
spondent was consolidating the Greensburg and Hempfield
stores. Jim Davis testified that he decided to let Welsh go
because there were problems in the deli with the food being
prepared. Welsh testified that she was never criticized about
her work performance, she never received a verbal or a writ-
ten warning and she was never suspended. Respondent does
not assert that Welsh was ever suspended. Respondent did
not introduce any written warning regarding Welsh’s per-
formance so it would appear that Welsh was being truthful
on that point. Reich does not specifically deny that on April
19 she told Welsh ‘‘[w]hen you are a manager you are kind
of like as puppet, you do whatever they tell you to do. I real-
ly don’t want to do this, but I have to do it.’’ If as Reich
now asserts, there were numerous complaints which she had
already discussed with Welsh, and which, according to Jim
Davis were the reason for the layoff, why did Reich tell
Welsh that she was being laid off because of the consolida-
tion? Reich did not receive the alleged complaints directly
from customers. Rather Jim Davis allegedly told her that
there were complaints. Mowery, who is the store manager,
and Elda, who is the assistant store manager did not tell
Reich that there were complaints. Interestingly, Jim Davis,
who was dividing his time between the Greensburg,
Frostburg, and Hempfield stores was the person who assert-
edly received these complaints. And what were the specific
complaints? Assertedly the pieces of potato in the potato
salad were not uniform in size and the chicken noodle soup
was too salty. Reich testified that Welsh made an attempt to
conform to the requests that Reich made. Regarding the
soup, that would mean that Welsh would reduce the amount
of salt. Regarding the potato salad, Reich testified that the
problem arose because Welsh did not use the available ma-
chine to cut the potatoes but rather cut them by hand, which
was faster. If Reich spoke to Welsh about this, why would
Welsh not thereafter use only the machine to cut the pota-
toes? Again, Reich testified that Welsh made an attempt to
conform to the requests made. If this is true, was the ma-
chine to blame for cutting the potatoes for the potato salad
a different size. Would Welsh have intentionally disregarded
Reich’s instructions when Welsh would have had to know
that the proof of the consistency of the potatoes would be
in the potato salad which would be in the counter for all to
view. Welsh is credited. She was never told about any prob-
lems regarding her performance. Welsh asked Reich on April
19 if her layoff had anything to do with the Union. It is my
opinion that it had everything to do with the Union. Welsh
459DAVIS SUPERMARKETS
110 The testimony that another employee in the meat department
had just given 2 weeks’ notice was not refuted.
was laid of because of her union activity and once again Re-
spondent violated Section 8(a)(3) and (1) of the Act.
Obviously, I do not find Sandy Reich to be credible wit-
ness. As here pertinent, she also testified about a termination
she made in the deli department. Assertedly, she made the
decision to terminate Hilty, along with Smith, on her own
without discussing it with Jim Davis or Mowery. Reich testi-
fied that she previously discussed with Hilty the fact that she
left things undone, left the counter area messy and dirty and
called in sick too often. Welsh testified that Hilty missed a
lot of work and Reich was upset with her because it was dif-
ficult to get someone to replace her. Hilty testified that Reich
never indicated to her that she called in to many days. There
is no documentary evidence of any kind of a warning to
Hilty regarding calling in sick. Reich testified that she was
unhappy with Hilty’s performance, along with Smith’s, at the
beginning of the week and Reich decided at the end of the
week that she was going to terminate Hilty and Smith. Reich
testified that she did receive customer complaints about
Hilty’s attitude. According to Hilty, this was the reason
Reich gave for terminating her. Also, according to Hilty,
Reich refused to tell her what the customer said. As noted
above, Elda told Defibaugh at 8 a.m. on April 19 that Re-
spondent was getting rid of the trouble makers and people
with attitude problems because Respondent believed that the
Union was getting close to the number it needed for an elec-
tion. Hilty is credited. It appears that she may have had an
attitude problem with respect to calling in sick. But before
April 18 it did not result in her even receiving a written
warning. Some time that week, Respondent decided who the
troublemakers and people with attitude problems were. Hilty
was included in that group. But Reich could not tell her that
this was the reason for her layoff. Reich did not tell Hilty
her calling off sick was the reason. Hilty testified that Reich
specifically told her that calling off sick was not the reason
for the layoff. Hilty is credited. As noted above, Reich testi-
fied that she was unhappy with their performance at the be-
ginning of the week and she decided at the end of the week
that she was going to terminate them. What did Hilty do at
the beginning of the week? Reich testified that she could not
remember if Hilty and Smith had switched assignments or if
both of them had called off. Hilty did not call off at the be-
ginning of the week. Rather, Hilty filled in for someone else
at the beginning of the week. Reich testified that it was her
policy to have employees discuss switching assignments with
her before they made the switch. There is no evidence that
Hilty and Smith switched assignments at the beginning of the
week. Hilty worked for someone else who called in sick. So
there was no violation of Reich’s policy at the beginning of
the week. In my opinion, the timing, shifting reasons, and the
summary nature of this layoff demonstrates that it was part
of Respondent’s scheme to rid itself of employees who were
troublemakers or had attitude problems during this orga-
nizing campaign. Respondent wanted to send a message to
the employes that week with the layoffs. It did. In my opin-
ion, but for the union organizing campaign, Hilty would not
have been laid off at that point in time. Respondent violated
Section 8(a)(3) and (1) of the Act.
As noted above, there were also layoffs or discharges in
the meat department on April 19, Shotts and Garris. Assert-
edly, Toffolo, who usually clears hiring for the meat depart-
ment with Jim Davis or Brady, decided himself to lay off
two employees because allegedly he did not have enough
payroll hours to go around. According to Toffolo, he told
Jim Davis that he, Toffolo, had to cut back on his work
force. But according to Toffolo, department hours were only
reduced by 20 to 25 hours with the departure of the two em-
ployees because their hours were redistributed among other
employees in the meat department. And after Shotts and
Garris left, some employees from Respondent’s Greensburg
store came to work in the meat department at the Hempfield
store. This was a part of Respondent’s scheme to rid itself
of troublemakers and people with attitude problems. Shotts
was a likely candidate because she wanted to be able to take
some time off but she wanted to be able to return to work.
Also, in April 1985 Shotts asked Toffolo and Shibilsky about
getting a union in the store. At the time she was told that
she should not talk to anyone about it or she would not be
employed at Respondent’s store anymore. Toffolo’s testi-
mony that he did not recall this conversation is not credited.
As noted above, Shotts signed a UFCW authorization card
and she spoke to other employees about signing UFCW au-
thorization cards. Toffolo was correct when he testified that
Shotts was discharged. She was not discharged because she
did not ask again to come back after Mowery told her he
could not take her back at that time because of the of the
union situation with the Steelworkers. Shotts was discharged
because Respondent, notwithstanding what Shotts was told,
never had any intention of taking her back. What she asked
for and what she received were two different things. Re-
spondent violated Section 8(a)(3) and (1) of the Act on April
19 when it discharged Shotts and when it refused to recall
her.
Toffolo told Garris that Respondent was having some
money problems and they had to lay off some people. As
noted above, according to Toffolo, Garris’ layoff, along with
Shotts’, reduced the department hours by a total of only 20
to 25 hours since their hours were redistributed among the
other employees in the meat department. In view of this, was
there a need to lay off two people or would one person have
been enough? Shotts had volunteered, under the impression
that she would be able to return at some time. If it had been
lawful, would not Shotts layoff have been enough?110 Garris
completed her 90-day probationary period. Toffolo, however
asserts that she was pricing meat wrong on a ‘‘regular
basis.’’ Garris testified that all of the women in the meat de-
partment price meat, and, therefore, Toffolo would have had
to speak to them all. General Counsel, on brief, contends that
since there is no identifying mark on the meat to indicate
who priced it and there is frequent interchange of clerks pric-
ing the meat, the purported performance problem, mispricing
meat, is not easily attributable, if at all, to one specific indi-
vidual. Toffolo alleged that Garris had a tough time catching
on to the system. If that was the case, why was not some-
thing done during her 3-month probationary period? As
noted above, there is no documentary evidence whatsoever
regarding any shortcomings in Garris’ performance. Garris
had the least seniority and if there was actually a need for
a layoff and it was done strictly on a department seniority
basis, Garris would have been the logical choice. But it has
not been demonstrated that there was a need to lay off
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
111 This does not accurately reflect the record.
Garris. During the union campaign Porter spoke to Garris in
the store. And Mowery did not dispute the fact that he not
only knew who Porter was but he had words with Porter in
the store. It is not clear, however, when this occurred. None-
theless, when all of the factors are considered, including the
timing of the layoff, the failure to demonstrate that there was
an actual need for this layoff, the questionable nature of the
alleged performance problems, and the fact that Respondent
engaged in numerous anti-union actions, in my opinion Re-
spondent violated Section 8(a)(3) and (1) of the Act in laying
off Garris.
It is alleged herein that Respondent acted unlawfully in
discharging Larry Miller and refusing to recall him. General
Counsel, on brief, contends that subsequent to the April 19
discharges, Respondent, in furtherance of its grand design to
quash support for Local 23, discharged Larry Miller on May
14; that Mowery saw Miller speaking to Porter in the parking
lot of the Hempfield store; that Miller discussed the Union
with other high school students; that while Respondent al-
leged that it had a pilferage problem in the ‘‘breakroom
area,’’ it targeted only Larry Miller and Campana for inves-
tigation; that all employees had access to the area and the
entire night crew of six to eight employees worked in the
area virtually unsupervised; that about 2 months after Mil-
ler’s discharge, the full night crew was discharged for pre-
cisely this reason; that while only Mowery met with
Campana and while Mowery accepted Campana’s denial
without investigation, Miller met with Mowery and Elda was
present as part of Respondent’s practice to have two super-
visors present during a meeting when disciplinary action is
anticipated or already decided; that during the interview
Mowery did not ask Miller if he had purchased the items be-
fore consuming them; that employees are allowed to pur-
chase items from the floor as well as from vending machines
as long as they maintain the sales receipt while they are con-
suming the item; that while Mowery said that he had ob-
served Miller a few days prior to the interview ‘‘clowning
around’’ and eating and drinking in the receiving area,
Mowery did not confront Miller at that time when he was
required to have in his possession a sales receipt; that instead
Mowery waited a few days when it was highly unlikely Mil-
ler could establish that he had purchased the items; that it
appears that Respondent actually avoided any true investiga-
tion; and that given the summary nature of Miller’s discharge
and the complete lack of foundation for the conclusion that
he had consumed the items without purchasing them, it must
be concluded that Respondent terminated Miller because of
his support for Local 23. Respondent, on brief, argues that
Miller failed to mention in the affidavit he gave to the Board
shortly after his termination, that he was ever observed by
management talking to Porter; that Porter himself recalled no
such occasion when he was observed by management;111 that
even if Mowery had observed Miller and Porter together, that
fact would be insufficient to establish knowledge on the part
of the employer; that any inference of knowledge from a
group meeting with Robert Davis is similarly flawed since
neither Local 23 nor any other union was discussed; that
none of the five other employees named by Miller as attend-
ing the meeting corroborated Miller’s version of the meeting
or even its existence; that the sole reason that Miller’s em-
ployment was terminated was that he admitted in the pres-
ence of Mowery and Elda that he had eaten merchandise
without paying for it; that this violated a well-established
store policy that required that all items consumed on the
premises be purchased and the receipts retained; and that
Miller’s defense, namely, that he in fact paid for the mer-
chandise, was never mentioned in his Board affidavit and is
plainly fabricated.
According to his own testimony, Mowery did not first ask
Miller, a high school student at the time, if he had paid for
what he had consumed or just took the items. Rather,
Mowery asked Miller if he had eaten the contents of the
packages he, Mowery, had in front of him or drank any of
the soda. When Miller said yes Mowery told him that he was
fired. Elda’s testimony that Mowery asked Miller if he con-
sumed any of the items ‘‘without paying for them’’ is not
credited. It conflicts with Mowery’s testimony. Miller testi-
fied that he told Mowery at the time that he did not steal
the items. His testimony is credited. He may not have indi-
cated specifically that he or someone else paid for the items
but I believe that he told Mowery that he did not steal the
items. There were employees other than Campana who could
have consumed the involved items. Yet Mowery did not
question them. And Mowery did not ask Miller if he or
someone else paid for whatever was consumed. Mowery only
asked Miller if he had consumed any of the involved items
before telling him that he was fired. Mowery does not assert
that Miller consumed all of the involved items. In my opin-
ion Mowery was not really interested in finding out who
consumed all of the involved items. Rather, with his rush to
judgement, Mowery, in my opinion, was looking for any jus-
tification, even if it was without merit, to fire Miller. Re-
spondent violated Section 8(a)(3) and (1) of the Act in termi-
nating Miller.
Since the Board requires the application of the analysis in
Wright Line, 251 NLRB 1083 (1980), notwithstanding the
fact that all of the above-described discharges, which in-
cludes the permanent layoffs, were purely pretextual, it is
concluded that the reasons advanced by Respondent either
did not exist or were not in fact relied on, thereby leaving
intact the inference of wrongful motive established by Gen-
eral Counsel. Limestone Apparel Corp., 255 NLRB 722
(1981).
There are a number of complaint allegations regarding the
picketing and handbilling. More specifically, it is alleged that
Respondent violated the Act (a) in making verbal announce-
ments and through the assistance of the Pennsylvania State
Police discriminatorily refusing to permit the Union to picket
and handbill on Respondent’s Hempfield Township property
while permitting other organizations access to its property for
purposes of soliciting its customers and related activities, (b)
in maintaining a civil trespass suit against the Union in the
Court of Common Pleas of Westmoreland County, Penn-
sylvania, which enjoins the Union from picketing on Re-
spondent’s Hempfield Township premises, (c) in threatening
to have persons engaged in handbilling on behalf of the
Union arrested, (d) in causing the Pennsylvania State Police
to visit Respondent’s above-described facility, (e) in enforc-
ing, through the assistance of the Westmoreland County
Sheriff, the injunction it obtained as a result of the above-
described civil trespass suit, and (f) in filing and maintaining
a motion for an Order to Show Cause and for Civil Con-
461DAVIS SUPERMARKETS
tempt against the Union and four named employees and
seeking to enforce by fines and other penalties, the afore-
mentioned injunctions.
On brief, General Counsel argues that under Fairmont
Hotel, 282 NLRB 139 (1986), wherein an employer attempts
to restrict picketing, handbilling and related activities on its
premises, the Board is required to weigh the relative
strengths of the Union’s Section 7 rights against Respond-
ent’s property rights to determine whether Respondent’s con-
duct violated the Act; that the picket signs and handbills (1)
assert the Union’s protest of the unfair labor practices com-
mitted by Respondent in an effort to subvert the Union’s or-
ganizing campaign and curtail employee exercise of their
rights and (2) are intertwined with an aspect of the Union’s
organizing campaign, an activity long recognized to be at the
core of Section 7; that the picketing and handbilling were
performed in large part by Respondent’s own employees or
by former employees whose alleged unlawful discharges
stand at the very heart of the unfair labor practices which
were the immediate focus of the picketing; that the situs of
the picketing and the situs of the dispute in this case are
identical; that the intended audience for the unfair labor prac-
tice aspect of the picketing and handbilling was the potential
customers of the store and the picketing was intended to
exert economic pressure on the Respondent by reaching that
audience at the store itself; that the manner in which the
union message was communicated did not diminish the
strength of its Section 7 right since the picketing was carried
out in a manner which was not unduly disruptive of Re-
spondent’s business in that the number of pickets was limited
and they refrained from obstructing or blocking ingress or
egress by customers and any one else and any other mis-
conduct; that the Respondent’s property interest in limiting
access to the front of its store is relatively weak since (1)
the property is open to the public and public access is wel-
comed and encouraged and (2) Respondent has permitted
public and charitable organizations to solicit in front of the
store; that since Respondent has permitted church groups and
fraternal organizations to solicit in front of the involved
store, it apparently was enforcing its property rights selec-
tively, Medina Super Duper, 286 NLRB 728 (1987); that be-
cause the rights asserted by the Union outweigh Respond-
ent’s property right to exclude picketing and handbilling
from in front of its store, the availability of reasonable alter-
native means by which the union could have communicated
its message is not determinative; that accordingly, Respond-
ent violated the Act by each of the actions it took to prevent
or restrain picketing and handbilling activities on its prop-
erty; that the above-described civil lawsuit was filed and
maintained solely on the grounds of trespass and while Re-
spondent may now seek to urge that other concerns such as
disruption or harassment were also involved, all of the plead-
ings filed by Respondent in that case deal solely with the
trespass issue; that the issues involved in that lawsuit were
primarily Federal in nature and at least from the time the
Union filed its unfair labor practice charge in Case 6–CA–
19159 on June 2, the Board’s jurisdiction under the Act pre-
empted that of the State court under the principles set forth
by the United States Supreme Court in Sears, Roebuck & Co.
v. Carpenters, 436 U.S. 180 (1978); and that since Respond-
ent’s suit is preempted by Federal law, it follows that Bill
Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983), on
which Respondent may seek to rely, is inapplicable to the in-
stant case and thus the filing and maintenance of the suit is
properly subject to a finding of violation of Section 8(a)(1)
of the Act.
Respondent, on brief, contends that the injunctions were
not related solely to acts of trespass by Local 23 but rather,
the preliminary injunction bars the blocking of ingress and
egress and the threatening or harassing of customers, conduct
assertedly documented on this record, and the permanent in-
junction also bars the blocking of ingress and egress while
allowing picketers and handbillers at the parking lot en-
trances; that it is undisputed that Davis initiated State court
proceedings prior to the filing of any unfair labor practice
charge concerning restrictions on access to its property,
which is precisely the situation which existed in Sears Roe-
buck, supra; that in Sears Roebuck, where the union picketed
on the premises of a single freestanding store, the Court held,
at 207, that where the party seeking relief in State court has
no right to invoke the Board’s jurisdiction, and the party that
does have that right fails to do so, the jurisdiction of the
State court is proper; that Davis was absolutely privileged to
enjoin Local 23’s unlawful conduct, Peddie Buildings, 203
NLRB 265, 272 (1973), cited in Bill Johnson’s Restaurants,
supra; that the Employer’s access to the courts is worse than
illusory if an employer which has obtained a valid State
court injunction commits an unfair labor practice by seeking
to enforce it; that because it is improper under the Act for
the General Counsel to enforce an asserted claim of exclu-
sive jurisdiction solely through the threat of an unfair labor
practice proceeding, the portions of the complaints dealing
with access to the Employer’s property must be dismissed on
this ground alone; that notwithstanding the State court in-
junction, Local 23 consented to restrictions on its activities
on Davis’ property substantially greater than those which the
General Counsel will now contend to be proper; that counsel
for Local 23 agreed that only two individuals would be per-
mitted on the employer’s property to handbill customers, pro-
vided that these individuals conducted themselves properly;
that the fact that Local 23’s representatives ultimately failed
to conduct themselves properly, and thus forfeited access to
the parking lot does not alter the fact that Local 23 was and
is bound by its agreement with Davis; that under Jean Coun-
try, 291 NLRB 11 (1988), it is apparent that Davis’ property
rights are quite strong since Hempfield is a free-standing
structure which does not share the property with any other
tenants, and the protest of alleged unfair labor practices is an
important Section 7 right; that accordingly, this case turns on
the availability of reasonable alternative means; that General
Counsel presented no testimony whatever that picketers and
handbillers were in any danger by virtue of their activities
at the entrances to the supermarket parking lot; that General
Counsel did not (and cannot) produce evidence that Local 23
was burdened or put to additional expense by virtue of the
location of the picketing and the handbilling just off the
store’s property at the entrances to the parking lot; that the
record is devoid of evidence that Local 23’s efforts were un-
lawfully hampered by confinement of its picketing and
handbilling efforts to the entrances to the parking lot; that
under circumstances virtually identical to those found in this
case, the Board has found that reasonable alternative means
existed for the exercise of Section 7 rights, L&L Shop Rite,
285 NLRB 1036 (1987) (picketing and handbilling were re-
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stricted to a ‘‘grassy area’’ and public sidewalk); that as the
Board in L&L Shop Rite made clear, General Counsel’s ap-
parent sole reliance on the lesser number of handbills distrib-
uted from the parking lot entrances will not carry the burden
of showing no reasonable alternative means; that here pick-
eting and handbilling continued on a daily basis for at least
4 months and under L&L Shop Rite, this ‘‘indicates that the
Union itself regarded picketing and handbilling at this loca-
tion to be worthwhile’’; that Local 23 forfeited whatever
right it may have had to the property by its flagrant mis-
conduct, which included blocking customer ingress and
egress intimidating customers and employees, profane lan-
guage, threats and obscene gestures and littering; that while
it may be argued that Davis denied Local 23 access to its
property while granting access to other groups, on this record
no such finding can be made since credible testimony exists
concerning only one such incident, namely a church raffle
conducted over the Memorial Day weekend; that isolated ac-
cess granted to charitable groups does not compel access for
nonemployee union organizers, Central Solano County Hos-
pital Foundation, 255 NLRB 468 (1981); that the sole indi-
vidual conducting the church raffle was seated behind a card
table away from the supermarket door; and that given these
qualitative and quantitative distinctions, Davis’ denial of ac-
cess to Local 23 was lawful.
On October 16, 1989, Respondent filed a motion to dis-
miss certain of the alleged violations, pointing out that on
June 15, 1989, after the briefs were filed, the Board issued
its Decision and Order in Giant Food Stores, 295 NLRB 330
(1989), wherein it held that an employer’s maintenance of a
State court lawsuit enjoining picketing after the filing of an
unfair labor practice charge by a union is lawful. In its reply,
filed October 23, 1989, General Counsel points out that on
August 8, 1989, a Motion for Reconsideration of the Board’s
Decision and Order and a memorandum in support was filed
by General Counsel in Giant Food, supra. That motion was
still pending. Additionally General Counsel argues that the
case is ‘‘inconsistent with Board precedent, flawed in its rea-
soning and should not be applied in the instant case.’’ For
the reasons specified below, Respondent’s motion is denied.
On February 1, 1990, Respondent filed a motion to dis-
miss certain of the involved allegations citing Tecumseh
Foodland, 294 NLRB 486 (1989), and asserting that the
Board’s Decision and Order therein was unavailable to
Counsel for Respondent at the time briefs were filed herein.
In Tecumseh the Board found that Respondent was not re-
quired to surrender access to its property without limitation
to nonemployee picketers and handbillers whose numbers
and location would tend to impede the access of patrons to
its store. In its response in opposition to the motion, General
Counsel, after renewing its objection to respondent’s repeated
practice of filing additional argument and other briefing ma-
terials without justification or regard for the Board’s Rules
and Regulations, notes that while the Board Decision and
Order in Tecumseh may not have been available at the time
briefs were filed, it certainly was available well before the
filing of Respondent’s previous, October 1989 motion to dis-
miss. General Counsel contends that the decision in Tecum-
seh is far from dispositive of the issues in the instant case
in Respondent’s favor and in many ways supports a finding
of violation since in Tecumseh the Board found that (1) the
message the Union seeks to convey by its picketing and
handbilling is directed at a diverse population consisting of
Respondent’s customers, a group which is not readily identi-
fiable, and that audience could not reasonably be reached by
direct personal contact, by telephone or mail, nor could the
Union reasonably be required to undertake the burden and
expense of a media campaign in these circumstances, and (2)
the detailed information presented on handbills can not ade-
quately be contained on a picket sign alone and thus, in the
absence of reasonable effective alternate means of commu-
nication, ‘‘a proper balancing of the parties rights here would
permit the Union to distribute its handbills in some manner
and at some place on Respondent’s property.’’ Tecumseh,
supra. General Counsel points out that the circumstances
cited by the Board in Tecumseh are markedly different from
those which exist in the instant case in that while in Tecum-
seh the entrance area to the store was narrow and pickets sta-
tioned themselves inside the entrance as well as on both
sides, herein, by contrast, the area was wide and pickets re-
mained at the sides and outside the immediate entryway. Ad-
ditionally, General Counsel contends that while the Board in
Tecumseh placed great emphasis on the fact that there was
no evidence that the facility ‘‘allowed anyone onto its prop-
erty other than for the purpose of shopping . . . nor was
there evidence of usage of the property by any other group
or organization, the property in fact appears to have been
protected against all solicitations,’’ herein, by contrast, the
record clearly demonstrates that the Respondent routinely al-
lowed public, charitable, and fraternal organizations to solicit
on its premises, thus demonstrating that, as alleged, Respond-
ent discriminatorily enforced a ban on all union solicitations
while permitting other organizations access for that purpose;
that the union representative in charge of the picketing over
the Memorial Day weekend indicated her willingness to ac-
commodate Respondent’s interests and when asked by a po-
lice representative, as a courtesy, to relocate the pickets she
immediately complied; that unlike Tecumseh where the
Union neither offered nor sought any alternate arrangements
which would have allowed it to continue some handbilling
presence on the Employer’s property, herein the parties did
reach a temporary agreement permitting pickets at each road-
way entrance and two female handbillers in the parking lot;
that thereafter Respondent continued to seek, and in fact ob-
tained, an injunction totally barring all pickets from Re-
spondent’s property and only then informally agreed to allow
the two handbillers in the parking lot at its sufferance; that
the Union, upon its resumption of handbilling, did abide by
this informal arrangement only to have Respondent, after
several weeks of peaceful activity, seek and obtain total en-
forcement of the injunction completely barring all activities
on its property; and that herein, unlike Tecumseh the parties
had developed and the Union was following a handbilling ar-
rangement precisely of the sort which the Board in Tecumseh
indicates would have met the Jean Country, supra, balancing
list and sanctioned the handbilling as protected Section 7 ac-
tivity, only to have Respondent unilaterally void the accom-
modation by enforcing and maintaining the no trespass in-
junction. For the reasons specified by General Counsel in the
reply, this motion is denied.
Contrary to Respondent’s assertion on brief, there is cred-
ible testimony by at least two witnesses, Defibaugh and
Harshall, that Respondent allows other organizations to so-
licit its customers on the sidewalk immediately in front of
463DAVIS SUPERMARKETS
112 As noted above, the Superior Court of Pennsylvania described
the involved conduct as peaceful picketing and distributing handbills
at the store, and the Court of Common Pleas of Westmoreland
County, Pennsylvania, concluded that ‘‘[t]he number of pickets and
their activities effectively impeded access to the store by cus-
tomers.’’ Also, as noted above, Davis’ May 23 complaint in the tres-
pass action alleges that approximately six individuals holding signs
bearing the name of the union defendant entered onto the property
of Plaintiff and remained positioned at the main entrance of Plain-
tiff’s Hempfield store. It is not clear exactly what evidence the Court
of Common Pleas relied on to reach the above-described conclusion.
The credible evidence of record herein does not demonstrate that the
picketers and handbillers acted in an obstructive manner.
113 The Board pointed out that ‘‘[i]n confirming the right of em-
ployees to picket their employer in front of his premises, we do not
pass on whether outside organizers would have the same right.’’
114 The Supreme Court has insisted on rules distinguishing be-
tween the picketing rights of employees and of nonemployees in
measuring intrusion on private property. As noted by the Court in
Continued
the store. None of Respondent’s witnesses deny this. Accord-
ingly, as asserted by General Counsel, Respondent was en-
forcing its property rights selectively.
Did the Union interfere with customer ingress or egress or
with deliveries to the store? Regarding the latter, there is no
evidence of such interference on the record. With respect to
the former, Toffolo testified that the picketers ‘‘were sort of
in the way of the doorway. You would have to swing wide,
with three or four shopping carts, like a matter of constantly
having to move people to get around them.’’ Robert Davis
testified that the picketers blocked the front of the store and
customers had to squeeze around them. As noted above,
however, I did not find Toffolo or Robert Davis to be cred-
ible witnesses. Toffolo’s testimony on this point is equivocal.
And Robert Davis’ testimony that the picketers and
handbillers blocked the front of the store and customers had
to squeeze around them is not credited. Robert Davis was the
only witness to testify that picketers actually blocked the
front of the store. Regarding what assertedly happened in
front of the store during the picketing, Toffolo at one point
testified that a man threatened to get Robert Davis. At an-
other point Toffolo testified that the threat was uttered by a
woman. Toffolo’s testimony on this point is not credited. As
noted above, Toffolo also gave uncorroborated testimony that
he heard picketers tell customers not to shop here because
this guy is a criminal. Toffolo’s testimony on this point also
is not credited. Robert Davis was less than candid about a
number of matters treated above. Consequently, his
uncorroborated assertion that he saw a lot of leaflets on the
ground and he picked them up can be given little weight
even though it is not refuted. Also, as noted above, I did not
find Sandy Reich to be a credible witness. Consequently, her
assertion about being called a ‘‘bitch’’ can be given little
weight. Even if her testimony was credited on this point,
while the alleged utterance was not acceptable conduct, it
certainly, in and of itself, was not sufficient to change what
otherwise would be described as peaceful picketing and
handbilling. In my opinion, it was not demonstrated on this
record that the pickets and handbillers acted in an obstructive
manner or otherwise conducted themselves in any way but
a peaceful manner.112
As noted above, Respondent, on brief, concedes that the
Union’s Section 7 right, at the situs of the dispute, is an im-
portant right. Since Respondent is the sole occupant of the
property, its property rights are greater than an employer in
some type of a shopping center. But Respondent weakened
its property rights by allowing other organizations on its
property to solicit. With respect to alternative means, the
Board in Sentry Markets, 296 NLRB 40 (1989), agreed with
the administrative law judge therein, in a situation similar to
the one at hand regarding alternatives, that handbilling on
public property near the entrance to the parking lot is not a
reasonable alternative because General Counsel has shown
that handbilling at that location was ineffective and unsafe.
In Sentry Markets, the Board concluded:
Accommodating the private property and Section 7
rights pursuant to our analysis in Jean Country, we find
that the Respondent’s property interest would suffer
some impairment if access were granted to the Union.
This impairment, however, would not be substantial in
light of the unobtrusive manner in which the Union
handbilled and the fact that Respondent essentially
opened up its premises to the public. By contrast, in the
absence of reasonable alternative means of communica-
tion, the Union’s Section 7 right would be ‘‘severely
impaired—substantially ‘destroyed’ within the meaning
of Babcock & Wilcox [351 U.S. 105 (1956)]—’’ with-
out entry onto the respondent’s property. Jean Country,
above at 16. . . . Therefore, under the facts of this
case we agree with the judge that the Section 7 right
outweighed the private property right, and that the
Union was entitled to handbill at the storefront side-
walk near Respondent’s customer doors.
In my opinion, a similar conclusion should be reached
herein, especially when one considers the discrimination, the
fact that some of the picketers and handbillers were employ-
ees of Respondent, that some of these employees were pro-
testing their own discharges, and that the activity has long
been recognized to be at the core of Section 7. Respondent’s
conduct, namely forcing the handbillers and picketers to
leave the sidewalk in front of the store violated Section
8(a)(1) of the Act.
Did Respondent violate the Act by maintaining a trespass
suit, enforcing an injunction, and maintaining a motion to
show cause and for civil contempt, and seeking to enforce
fines? As noted above, respondent cites the board’s decision
in Giant Food Stores, supra, wherein the Board held that an
Employer’s maintenance of a State court lawsuit enjoining
picketing after the filing of an unfair labor practice charge
by a Union is lawful.
In Peddie Buildings, supra, the Board pointed out that
‘‘[t]he Act gives employees the right to picket their own em-
ployer at a primary location. This right is embodied in Sec-
tion 7, and given emphasis in Section 13.’’ Also, therein the
Board stated, ‘‘[i]n view of the employees’ obvious right of
access to their employer’s premises for work purposes, we
believe that Section 7 gave them a parallel right of access
for purposes of otherwise legitimate picketing.’’113
Some of the picketers and handbillers who were stationed
in front of the Davis Hempfield store on May 23 engaged
in protesting unfair labor practices and organizing were em-
ployees of Respondent.114 In filing its above-described May
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956) ‘‘[t]he
distinction is one of substance.’’
115 As noted above, the complaint speaks to and the involved
courts treated this strictly as a trespass action.
116 Respondent’s trespass action was filed long before the Board
decided Giant Food and, therefore, Respondent could not have been
relying on Giant Food.
117 One must wonder if these assertions, which were not even
mentioned in the decision of the Court of Common Pleas, were noth-
ing more than a belated attempted manipulation to have the afore-
mentioned language in Sears, Roebuck, a case which the Court of
Common Pleas cited in its decision, apply to the situation at hand.
23 complaint, Respondent alleged that ‘‘Defendants continue
to persist in their unlawful conduct of trespass.’’115
Nonetheless, even though the employees had a statutory
right to legitimately picket in front of Respondent’s store and
Respondent did not differentiate between them and the non-
employee pickets, Respondent’s filing of the trespass action,
in and of itself was not a violation of the Act. Clyde Taylor
Co., 127 NLRB 103 (1960).
But maintaining the trespass action after the Union filed
a charge and a complaint was issued by the Board is another
matter. As noted above, the Union pointed out to the Court
of Common Pleas before its November 24 decision that the
matter was preempted by the Board. Also as noted above,
Respondent cites Giant Food, supra, for the proposition that
the employer’s maintenance of a state court lawsuit enjoining
picketing after the filing of an unfair labor practice charge
by a union is lawful.116 But the Board did not treat the
threshold issue in Giant Food, namely, whether the Board’s
jurisdiction preempts the Respondent’s suit. American Pacific
Concrete Pipe, 292 NLRB 1261 (1989). Also, Giant Food
did not involve discrimination in the selective enforcement of
property rights, unlawfully discharged employees partici-
pating by protesting unfair labor practices or numerous unfair
labor practices against employees.
In San Diego Unions v. Garmon, 359 U.S. 236 (1959), the
Court stated at 244:
When it is clear or may fairly be assumed that the
activities which a State purports to regulate are pro-
tected by § 7 of the National Labor Relations Act, or
constitute an unfair labor practice under § 8, due regard
for the federal enactment requires that state jurisdiction
must yield. To leave the States free to regulate conduct
so plainly within the central aim of federal regulation
involves too great a danger of conflict between power
asserted by Congress and requirements imposed by
State law. Nor has it mattered whether States have
acted through laws of broad general application rather
than laws specifically directed toward the governance
of industrial relations. Regardless of the mode adopted,
to allow the States to control conduct which is the sub-
ject of national regulation would create potential frus-
tration of national purposes.
And, supra at 245 the Court states:
When an activity is arguably subject to § 7 or § 8 of
the Act, the States as well as the federal courts must
defer to the exclusive competence of the National
Labor Relations Board if the danger of state inter-
ference with national policy is to be averted.
The Board’s regulation of Section 7 protected activity is not
limited to a finding of a violation. In NLRB v. Nash-Finch
Co., 404 U.S. 138 (1971), the Court, at 144, concluded that
at the Board’s request, a Federal District Court may enjoin
the enforcement of a state-court injunction against organiza-
tional picketing and handbilling ‘‘where [as in the case, the
Board’s] federal power pre-empts the field.’’ Compare Cap-
itol Service v. NLRB, 347 U.S. 501 (1954).
As pointed out in Garner v. Teamsters, 346 U.S. 485, 488
(1953),
This is not an instance of injurious conduct which
the National Labor Relations Board is without express
power to prevent and which therefore either is ‘‘gov-
ernable by the State or it is ungoverned.’’ In such cases
we have declined to find an implied exclusion of state
powers. International Union v. Wisconsin Board, 336
U.S. 245, 254. Nor is this a case of mass picketing,
threatening of employees, obstructing streets and high-
ways, or picketing homes. We have held that the state
still may exercise ‘‘its historic powers over such tradi-
tional local matters as public safety and order and the
use of streets and highways.’’ Allen-Bradley Local v.
Wisconsin Board, 315 U.S. 740, 749. Nothing suggests
that the activity enjoined threatened a probable breach
of the state’s peace or would call for extraordinary po-
lice measures by state . . . authority. Nor is there any
suggestion that . . . [the] plea of federal jurisdiction
and preemption was frivolous and dilatory, or that the
Federal Board would decline to exercise its powers
once its jurisdiction was invoked.
The Court in Garner went on to conclude, supra, at 500, 501
that
when the federal power constitutionally is exerted for
the protection of the public or private interests, or both,
it becomes the supreme law of the land and cannot be
curtailed, circumvented or extended by a state proce-
dure.
The Court in Sears Roebuck, supra at 204, points out that
it has held that state jurisdiction to enforce its laws prohib-
iting violence, defamation, the intentional infliction of emo-
tional distress, or obstruction of access to property is not pre-
empted by the Act. As noted above, the Court of Common
Pleas of Westmoreland County in its November 24 decision
concluded ‘‘[t]he number of pickets and their activities effec-
tively impeded access to the store by customers.’’ The court
did not specifically speak to Toffolo’s assertion about a
threat by a picket to get Robert Davis (violence), or
Toffolo’s assertion that pickets said ‘‘this guy is a criminal’’
(defamation), or Reich’s assertion that one of the pickets said
‘‘[g]et out of here bitch,’’ which scared her half to death (in-
fliction of emotional distress). Either the court did not have
these assertions before it for consideration or it did not be-
lieve that it was necessary to cover them in its Decision or
it did not rely on them. As noted above, I am not relying
on them.117 Moreover, in my opinion, what happened here
on May 23 cannot be found to be an obstruction of access
to property. Consequently, preemption was not precluded.
465DAVIS SUPERMARKETS
118 It is not necessary to specifically find whether the violation oc-
curred after the union filed a charge or the Board issued the com-
plaint. As noted in Sears Roebuck, supra, there is a difference of
opinion on when the Board’s jurisdiction preempts. But there should
be no question but that when the involved complaint was issued
State jurisdiction was preempted.
119 Defibaugh, Garris, Good, Hilty, Shotts, Welsh, Miller,
Miscovich, and Kunkle. As noted above, in my opinion Defibaugh
was not a supervisor.
120 Mark Alcorn, Marty Fox, Michelle Kallock, Brian Kirkendall,
Jerry Marshell, and V. Piccar.
The controversy presented to the State court is the same
controversy that was presented to the Board on this point.
Therefore, Davis’ suit is preempted by Federal law. Nash-
Fince Co. and Capitol Service.
Since Davis’ suit is preempted by Federal law, it appears
that Bill Johnson’s Restaurants does not apply to the instant
case in that the Court therein, at footnote 5, stated that the
principals enunciated therein would not apply ‘‘with a suit
that is claimed to be beyond the jurisdiction of the state
courts because of federal-law pre-emption.’’
Where a retaliatory state court suit is preempted by the
Act or other Federal law, the principals set forth in Bill
Johnsons’ Restaurants do not apply. As indicated in Nash-
Finch Co. and Capitol Service, the Board can enjoin the
prosecution of such lawsuits without inquiry into the reason-
ableness of their legal or factual basis.
Respondent had a retaliatory motive in maintaining the in-
volved state suit. As noted above, Defibaugh and Harshall
testified that during the picketing in November when one
group was leaving for the day and another group was coming
in and there was, therefore, six people there at the time,
someone from the store would come out and take pictures.
None of the Respondent’s witnesses denied this. And as
noted above, I find Defibaugh and Harshall to be credible
witnesses. This testimony is credited.
As set forth above, Davis, in its November 25 motion to
show cause alleged, among other things, that individual em-
ployees and the Union disregarded the provision of the in-
junction by exceeding the number of pickets (three) per-
mitted at each entrance to the Davis property. If Davis was
using photographs Defibaugh and Harshall testified about, as
covered in the next preceding paragraph, than it was fabri-
cating evidence. If it did not use the photographs for this
purpose, than it was not made clear on this record why Re-
spondent would make a point of taking such photographs.
Regarding another allegation in Davis’ November 25 motion
for a Rule to Show Cause, it is noted that while Davis al-
leges that Defendants violated the court’s order by parking
their cars on Plaintiff’s property, nowhere in its order did the
court specifically speak to such a practice let alone specifi-
cally prohibit it. And finally, regarding Davis’ allegation that
the individually named employees should be held in con-
tempt for distributing handbills at the door of Davis’ facility,
as noted above, the law treats employees and nonemployees
differently, and the Union’s response to the motion seem-
ingly points out that Davis’ counsel and its representatives
were aware of this. Nonetheless, Davis, in its motion, prayed
that the court should enter an order directing Defendants, in-
cluding the above-named individual employees, to show
cause why they should not be fined an amount equal to the
cost of plaintiff’s losses incurred as a result of defendant’s
failure to comply with the order of the court.
The picketing and handbilling which occurred on May 23
was, as described by the Superior Court of Pennsylvania, was
peaceful. There was no reason for Respondent to file the
lawsuit other than to limit or eliminate the effectiveness of
the handbilling and picketing, some of which was done by
its own employees, which employees, as found above, were
previously unlawfully discharged by Respondent. Respondent
had engaged in numerous unfair labor practices and this was
another part of its bad-faith scheme to defeat union organiza-
tion. By maintaining the trespass suit Davis violated the
Act.118 This covers all aspects of the suit, including enforc-
ing the injunction and moving for a finding of civil con-
tempt.
Additionally, Davis, through its supervisors and/or agents,
by threatening to have persons engaged in handbilling and
picketing arrested and causing the Pennsylvania State Police
to visit Davis’ Hempfield store, violated the Act. Peddie
Buildings, supra.
The amended complaint in Case 6–CA–19388 alleges that
from on or about May 31, to on or about June 14, a majority
of the above-described unit designated and selected Local 23
as their representative for purposes of collective bargaining;
that at all times since on or about May 31, Local 23 by vir-
tue of Section 9(a) of the act, has been, and is, the exclusive
representative of the unit; that on or about May 13, Local
23 requested Respondent to recognize it as the exclusive col-
lective-bargaining representative of the employer in the unit
and to bargain with it as the exclusive collective-bargaining
representative of the employees in the unit; that since on or
about May 31, Respondent has failed and refused, to recog-
nize or bargain with the Union as the exclusive collective-
bargaining representative of the unit; and that the involved
unfair labor practices are so serious and substantial in char-
acter that the possibility of erasing the effects of the unfair
labor practices and of conducting a fair election by the use
of traditional remedies is slight, and the employees’ senti-
ments regarding representation, having been expressed
through authorization cards would, on balance, be protected
better by the issuance of a bargaining order than by tradi-
tional remedies alone.
The parties stipulated that the employees listed on the first
three pages of Joint Exhibit 14, attached hereto as Appendix
B, are in the unit subject to starting and ending dates. The
list contains 107 names, including Miscovich. Page 3 of Joint
Exhibit 14 also includes the nine employees who were un-
lawfully terminated, as described above. Miscovich is also
included in this list.119 Consequently, there is no dispute re-
garding 106 employees, subject to starting and ending dates,
and, in view of my conclusions regarding the 9 unlawful ter-
minations, there are 115 employees in the unit. On brief, the
parties agree that six individuals on the list should be ex-
cluded by virtue of their starting and ending dates.120 The
parties submitted separate lists in their briefs and to some ex-
tent they are not the same. More specifically, while they
agree on six individuals and while General Counsel agrees
that Jerry Marshell, who worked to May 11, should be ex-
cluded, no reason is given for not excluding Alfred Petril,
who also worked to May 11. Respondent is correct; Petril
should be excluded. Although Cathy Christner and Melanie
Valozzi were employed at Respondent’s Hempfield store on
May 13, they were not employed at the store on May 31 and,
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
121 One of the two signed a UFCW authorization card.
122 Albright and Blaser, who are treated above, are the only other
Greensburg employees who are not members of the Steelworkers.
therefore, they will be excluded.121 Accordingly, a total of
97 employees were in the involved unit pursuant to this stip-
ulation. And adding the 9 unlawfully terminated employes
makes it 106.
Twenty seven of the disputed employees, see the adden-
dum to Joint Exhibit 14 attached hereto as Appendix B, also
work at Respondent’s Greensburg store. On brief, General
Counsel argues that regarding at least nine of these individ-
uals, virtually no basis at all exists in the record to support
Respondent’s contention that they should be included. More
specifically, General Counsel argues that Cathy Donahue
never worked at the Hempfield store and two witnesses testi-
fied herein that she was the manager of the deli department
at the Greensburg store during the time in question; that Pat-
rick Fetter only worked at Greensburg 1 week in June and
several weeks in August; that Donald Miller only worked at
Hempfield during one 8-hour period in May; that Robin
Myers, Augie Plevelich, and Carol Pyle worked exclusively
at Greensburg with the exception of a few weeks in May
when they spent time at Hempfield; that the record does not
show that Sandra Wilkenson and Lisa Warrick worked at the
Hempfield store; that George Struhala only worked at the
Hempfield store sporadically; and that none of the nine
worked for any significant period or at any regular or perma-
nent basis at Hempfield. With respect to Wilbur Albright,
General Counsel argues that he, along with James Blaser,
performs singular functions for Respondent which are unre-
lated to any bargaining unit activity; that he shares virtually
no community of interest with any unit employees, his work
duties, namely repair and maintenance tasks, are distinct
from unit employees as is his scheduling, method of pay-
ment, and authority; and that the majority of his time is spent
at the Greensburg store although he punches no timeclock at
either location. Regarding Blaser, General Counsel contends
that this trouble shooter for Respondent, who sets his own
schedule, does not punch a timeclock and is paid an hourly
wage with no other benefits, has little contact with unit em-
ployees and shares virtually no community of interest with
them. Also, General Counsel points out that the majority of
Blaser’s hours are spent at Greensburg.
Regarding Stanley White, General Counsel argues that al-
though he is more regularly employed, he also lacks any
contact or community of interest with the Hempfield employ-
ees; that White’s only contact with the Hempfield store oc-
curs during that portion of his work day when he delivers
and unloads a portion of his load to that store and during
these periods he rarely, if ever, has contact with any other
employees but works solely on his own; that White is a
member of the Steelworkers and is governed by the terms
and conditions of the collective-bargaining agreement be-
tween that Union and Respondent; that White’s job and du-
ties are totally distinct and different from that of any Hemp-
field employee and he is supervised solely by the produce
manager at the Greensburg store; and that White’s contact
with Hempfield is so limited that there is no basis for even
applying a dual function analysis to him.
With respect to Neil Vario and John Shumaker, General
Counsel contends that after having worked exclusively at the
Greensburg store for a number of years, in late April 1986,
they were transferred to the Hempfield store and worked
there exclusively; that in the case of Vario, this assignment
lasted for a period of approximately 4 months and in
Shumaker’s case for over 1 year; that both men were told
at the time of their transfer and repeatedly thereafter, that
these moves were only temporary and they would be re-
turned to the Greensburg facility as soon as possible; and
that in both cases this took place and they have since re-
turned to working exclusively at Greensburg, and both re-
mained members of the Steelworkers at Greensburg during
the time they were assigned to Hempfield.
General Counsel points out that Janet Barbour, who spent
time at both of Respondent’s facilities, was also told that her
assignment was temporary and she too would ultimately be
returned to work exclusively at Greensburg; and that she too
was a member of the Steelworkers unit at the Greensburg
during the time she worked at Hempfield.
It is contended by General Counsel that the other Greens-
burg employees who worked at Hempfield did not share a
sufficient community of interest with the Hempfield unit to
be included on that basis; that most of these employees spent
the great majority of their time at Greensburg and in many
cases did not even punch a timeclock at Hempfield when
they worked there; that most were assigned to Hempfield on
an irregular basis, either to fill in for absent employees or
on an ad hoc basis with no advance scheduling or are as-
signed to Hempfield as needed to assist and train new em-
ployees; that in most cases these Greensburg employees are
primarily supervised by management officials at the Greens-
burg store and do not report or take directions from any
Hempfield supervisor; that all of these employees, except
Vicki Cramer, Patti Hutton, Kim Reich Gallentine, and Stacy
Wano are members of the Steelworkers;122 and that in these
circumstances, the Board has found that a collective-bar-
gaining agreement bars dual function employees who are in-
cluded in the unit from inclusion in any other bargaining unit
sought by the petitioning union, Otasco, Inc., 278 NLRB 376
(1986).
Respondent, on brief, contends that dual function employ-
ees, that is employees who do bargaining unit work and also
nonbargaining unit work for the same employer, need not
spend 50 percent or more of their time doing bargaining unit
work; that under Fleming Industries, 282 NLRB 1030
(1987), certain of the dual function employees should not be
excluded from the unit solely because they are represented
by the Steelworkers; that regarding the employees who are
not in the Steelworkers, Albright, at least with respect to the
less specialized maintenance tasks, he performed the same
duties as other Hempfield unit employees; that Kim Reich
Gallantine, around February 1986 began working about 12
hours a week at the Hempfield store as a grocery price coor-
dinator and she reported to Hempfield store manager
Mowery; that Patti Hutton was assigned to work at Hemp-
field prior to the store’s opening and she worked as a gro-
cery price coordinator at Hempfield, working 8 to 16 hours
a week and reporting to Mowery while in Hempfield; that
Vicki Cramer Smartnick in late 1984 or early 1985 was as-
signed to work at the Hempfield store where she worked 3
days a week, 4 to 5 hours a day, and she reported to Mowery
and Elda; and that Stacy Wano Woodmancy was assigned to
467DAVIS SUPERMARKETS
123 Jamie Boice, Valarie Kollar, and John Kula. Kula signed a
UFCW authorization card on May 5.
work at the Hempfield store prior to the store’s opening and
she continues to work at the Hempfield store 3 days a week
for a total of about 12 hours, reporting to Mowery and Elda.
For the reasons specified by General Counsel on brief, as
summarized above, none of the employees who are also em-
ployed at the Greensburg store, which employees are listed
on the last page of Appendix B hereto, should be included
in the involved unit. Regarding the five disputed college stu-
dents set forth in Appendix B hereto, General Counsel, on
brief, contends that the evidence of record indicates that
these five individuals worked virtually exclusively during the
spring and summer months traditionally associated with the
college vacation period and/or for a limited period during the
end of the year holidays; that this pattern persisted in both
1985 and 1986, after which none of these individuals contin-
ued to be employed with Respondent; that the Board has
held that students who work only during the vacation periods
are excluded from the unit, Century Moving & Storage, 251
NLRB 671, 681 (1980), Berinson Liquor Mart, 223 NLRB
1115 (1979); that accordingly none of the five college stu-
dents are eligible for inclusion in the involved unit. Respond-
ent, on brief, contends that the test for inclusion in the unit
is whether the circumstances of their employment give them
a community of interest with the other employees with re-
spect to wages, hours and working conditions, Gruber’s Star
Market, 201 NLRB 612, 613 (1973); and that the five col-
lege students did share a community of interest in that each
of the five worked for two or more summers and two of the
five returned to employment following the summer of 1986.
The case Respondent cites deals with high school students
who worked a substantial number of hours weekly. There the
contention was that they work as stockboys and ‘‘come and
go all of the time,’’ and leave Respondent’s employ after
graduation. Here, the contention is that the involved students
work during vacations and do not regularly work on a part-
time basis during the remainder of the year. Since this is the
case herein, under the cases cited by General Counsel these
college students are excluded from the unit.
With respect to the students enrolled in high school coop-
erative employment programs, General Counsel, on brief, ar-
gues that the unit determination in the aforementioned Deci-
sion and Direction of Election specifically excludes ‘‘stu-
dents employed pursuant to cooperative education pro-
grams’’; that as indicated in Appendix B, five such students
were employed in 1986; that since the last two named on the
list apparently did not continue their employment beyond the
period of the program, it appears to be undisputed that they
should be excluded; that while the program ended June 10,
three of these individuals continued to be employed for sub-
stantial periods thereafter;123 that there is no evidence that
the three were converted into regular employees; and that if
it is deemed appropriate to include them in the bargaining
unit, such inclusion cannot have taken place earlier than June
10. Respondent, on brief, contends that the three should be
included in the unit after June 10. I agree.
Regarding the seven employees listed in Appendix B here-
to under ‘‘OTHERS IN DISPUTE,’’ General Counsel contends
that Thomas Howard’s terms and conditions of employment
in addition to containing elements of supervisory and/or
managerial status are so different from those of other bar-
gaining unit employees, that he lacks any significant commu-
nity of interest with employees in the bargaining unit and,
therefore, he should be excluded; that Thomas is a salaried
employee unlike all those in the bargaining unit, does not
punch a timecard, and has the discretion to set his own
schedule within the limits established by the needs of his job;
that Howard has complete control over the ordering of frozen
food, consults with Mowery and James Davis concerning ad-
vertising, and the ordering and display of products, requests
assistance from Mowery and directs the assistant; and that
his position is a unique one which casts him in a
quasimanagerial and supervisory position aligned with man-
agement and lacking any significant community of interest
with the employees in the bargaining unit. Respondent, on
brief, contends that Howard at no time acted as a supervisor
within the meaning of Section 2(11) of the Act; that Howard
did not have the authority to assign or transfer employees,
hire, suspend or discipline, lay off or recall, or promote em-
ployees; and that Howard exercised far less discretion and
authority than Defibaugh, whom General Counsel seeks to
include in the unit.
Contrary to Respondent’s assertions, just because
Defibaugh has been included in the unit does not mean that
Howard must be included. Among other things, Defibaugh
was paid an hourly wage. She punched a timeclock. She did
not consult with Mowery and Jim Davis about advertising.
There is a great deal of difference in the two positions. In
my opinion, General Counsel is correct, namely, Howard’s
terms and conditions of employment in addition to con-
taining elements of supervisory and or managerial status are
so different from those of any other bargaining unit em-
ployee that he lacks any significant community of interest
with employees in the bargaining unit and, therefore, should
be excluded.
Anthony Ianni, who works as a bagger and stockboy at
Respondent’s Hempfield facility, quit during the week ending
April 19. On July 16 Ianni filled out an application for em-
ployment with Respondent (G.C. Exh. 77). On brief, General
Counsel contends that the uncontroverted facts demonstrate
that during the critical period under consideration herein,
when the Union achieved majority status, Ianni simply was
not an employee of Respondent, and thus must be excluded
from consideration as a member of the bargaining unit. I
agree.
Terry Jackson was employed continuously as a bagger at
the Hempfield store throughout the period involved and no
reason is given for excluding him from the unit. Accordingly,
he will be included in the involved unit. Laura Marchetti ap-
parently left Respondent’s employment during the week end-
ing March 8 since there is no evidence that she was em-
ployed by Respondent beyond that date. Accordingly, she
will not be included in the unit.
With respect to Brian Mull, General Counsel, on brief,
contends that since Mull only worked 4 hours on each of two
weekends in May and thereafter did not work again for Re-
spondent until July of that year when he began employment
on a part-time basis, during the critical period herein he was
not eligible or available for employment and thus should not
be included in the unit. Respondent, on brief, contends that
it is fundamental Board law that laid off employees who
have a reasonable expectation of reemployment in the fore-
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
seeable future are to be included in the unit, Marley Co., 131
NLRB 866 (1961); that factors to be considered include the
circumstances of the layoff and the content of the commu-
nication to the employee at the time of the layoff, Sol-Jack
Co., 286 NLRB 1173 (1987); and that applying these prin-
ciples to this case, it is plain that Mull must be included in
the unit. Since Mull had a reasonable expectancy of employ-
ment within the foreseeable or near future, he will be in-
cluded in the unit.
Tim Sheridan worked as a bagger at Respondent’s Hemp-
field store. Respondent’s Exhibit 16 shows that he worked
part time for 3 weeks in January, 1 week in March, and from
the end of May to the end of August. On brief, General
Counsel argues that Sheridan was enrolled as a student and
unavailable for work, other than during school breaks; and
that, accordingly, Sheridan should be excluded from the unit,
Century Moving & Storage, supra. Respondent, on brief,
contends that because General Counsel has shown no reason
to exclude Sheridan, he should be included in the unit. Sheri-
dan’s employment history with the Respondent corresponds
to the college students treated above. Students who only
work during vacation periods are excluded from the unit.
This appears to apply to Sheridan. Consequently, he will be
excluded.
On brief, General Counsel argues that Dick Shibilsky was
a supervisory employee in the meat department; that he, un-
like bargaining unit employees, did not punch a timeclock
and like admitted supervisor Toffolo was responsible for or-
dering meat and other products for the meat department; that
he had the authority to direct employees in their work, inter-
view prospective employees and to effectively recommend
the hire of new employees; and that apparently Shibilsky was
a supervisory person and thus ineligible for inclusion in the
unit. Respondent does not treat the status of Shibilsky on
brief. Shibilsky’s terms and conditions of employment appear
to be those of a supervisor or manager. Clearly they are dif-
ferent from those of the employees in the bargaining unit.
Shibilsky does not enjoy a community of interest with the
employees in the bargaining unit. He must be excluded.
With the addition of Jackson and Mull, there were 108 in
the unit until July 10 and then with the addition of the 3 stu-
dents who formerly were in the cooperative program there
were 111 employees in the unit.
General Counsel introduced 60 UFCW authorization cards.
Kula was a cooperative program student when he signed his
card on May 5. Also, Valozzi signed her card on May 5. As
noted above, Kula is not included in the unit until July 10
when the aforementioned program ended. Also, as noted
above, Valozzi has been excluded because she left Respond-
ent’s employ on May 16.
Regarding Hilty’s card, General Counsel, on brief, argues
that notwithstanding the fact that her card only has the month
and the year, Hilty testified that she signed the card in April,
shortly before she was discharged on April 19; that this was
well in advance of the UFCW’s demand and the critical time
period; and that the Board has held that such a discrepancy
does not destroy the card’s validity where testimony supports
the conclusion that it was signed and timely dated, Burger
King, 258 NLRB 1293 (1981), and J. P. Stevens & Co., 247
NLRB 420 (1980). Respondent, on brief, contends that al-
though Hilty testified that she signed the card in early April,
there is no way for General Counsel to prove the card was
signed before Hilty was terminated. As noted above, it is
concluded herein that she was unlawfully terminated. Hilty’s
uncontroverted testimony that she signed the card in early
April is credited. Since this was before the demand date, I
find Hilty’s card to be valid.
General Counsel, on brief, argues, with respect to Rubin
Weery’s card, that he testified on direct examination that he
read the card before signing it, he was not coerced to sign
it and he was never told that the sole purpose of the card
was to obtain an election; that on cross-examination, after
being confronted with a statement he gave the Respondent,
Weery testified that notwithstanding the statement, when he
signed the card nothing was said other than if he wanted the
Union, he should go ahead and sign the card; that the state-
ment was given in a coercive climate and cannot be credited
over Weery’s present recollection; that the petition Weery
signed in July seeking to revoke his card is ineffective since
such attempted revocation took place long after (a) the
Union’s demand for recognition, (b) when the Union had ob-
tained a majority, and (c) Respondent began its unfair labor
practices; and that in these circumstances, any revocation is
ineffective to undercut the validity of the card, Photo Drive
Up, 267 NLRB 329, 364 (1983), and Warehouse Groceries
Management, 254 NLRB 252, 254 (1981). Respondent, on
brief, contends that Werry testified that the solicitor and al-
leged discriminatee Larry Miller threatened that he would be
‘‘out of a job’’ if he did not sign the card; and that this type
of union coercion plainly invalidates Werry’s card, NLRB v.
Sanford Home for Adults, 669 F.2d 35 (2d Cir. 1981). Ulti-
mately, Werry testified that when the card was given to him
by Miller he said nothing other than if you want the Union,
than go ahead and sign the card. Because it was not dem-
onstrated that Werry was coerced when he signed the card,
it will be counted. In view of Respondent’s campaign of co-
ercive unlawful activity, there was no effective revocation of
this card.
Regarding Wendy Sarsfield’s card, General Counsel argues
that when she was confronted on cross-examination by a
statement purporting to reflect an interview with Respond-
ent’s attorney in January 1987, Sarsfield testified that she
had been given no choice about meeting with the attorney
and she felt coerced at the time of the meeting, had refused
to sign the statement and refused during her testimony to
adopt any portion of it which would have been relevant to
the issue of the authenticity or validity of her Union card.
Respondent, on brief, contends that Sarsfield testified that the
individual who solicited her card misrepresented to her that
the sole purpose was to obtain an election; and that such a
misrepresentation renders Sarsfield’s card invalid, W&W Tool
& Die Mfg. Co., 225 NLRB 1000 (1976). Sarsfield testified
that she was not told when she signed the card that the card
was only for the purpose of obtaining an election. When she
signed the card she was not relying on what she later heard
from employees in the store. In the circumstances, her card
will be counted.
With respect to those employees who signed a UFCW au-
thorization card and also a Steelworkers authorization card,
General Counsel argues, on brief, that such Steelworker
cards were never introduced herein; that the record amply
demonstrates that Respondent was embarked on a coercive
and unlawful campaign to subvert the organizing efforts of
Local 23 by soliciting support and signatures for the Steel-
469DAVIS SUPERMARKETS
124 As noted above, I am not counting Valozzi’s card for while she
signed it on May 5, she left Respondent’s employment on May 16.
Also, Kula’s card, signed May 5, is not counted for May 13 because
he was not technically in the unit until July 10. And finally, since
3 of the 60 cards introduced by General Counsel are dated after May
13, they will not be counted in determining the total on May 13.
With these 3, the Union had 58 cards as of May 24.
workers; and that in these circumstances the references ap-
pearing in the record to employees signing Steelworker cards
can form no basis for undercutting the validity of the cards
signed on behalf of Local 23. Respondent, on brief, contends
that in the absence of a revocation of either card, it is well-
settled that both cards are invalid because neither unambig-
uously shows the individual’s choice of union representation,
if any, Windsor Place Corp., 276 NLRB 445, 449 (1985),
and Crest Containers Corp., 223 NLRB 739 (1976). Re-
spondent limited its contentions to Shotts, arguing that she
testified that she signed a Steelworker’s authorization card
about one month after she signed a UFCW authorization
card. In support of this assertion, Respondent cites page 177
of the transcript herein. Contrary to the assertion of Respond-
ent, the transcript cite refers not to the testimony of Shotts
but rather to the testimony of Kula. As noted above, he is
not included in the unit until July 10 when the cooperative
program ended. Consequently, his UFCW authorization card,
dated May 5, will not be counted in determining whether the
Union had a majority when it demanded recognition on May
13. It does not appear that Shotts ever signed a Steelworkers
authorization card. Regarding the other employees who
signed Steelworker authorization cards, it is noted that a
number of them signed letters revoking such authorizations
(C.P. Exhs. 1–5). Moreover, in view of the coercive unlawful
campaign waged by Respondent, any authorizations signed
for the Steelworkers will be given no consideration herein.
As noted above, the cards of Jennifer Thomas, John
Rusnica, and Tammy Traister were placed in evidence with
uncontroverted examples of their handwriting for comparison
purposes. An examination of these documents demonstrates
that in all three instances the UFCW authorization cards are
authentic.
The conflicting testimony of Porter and Kaskie about
which portions of his card Paul Williams filled out in their
presence is not sufficient to invalidate the card; it will be
counted in determining whether the Union had a majority.
As concluded above, there were 108 in the unit, including
Jackson and Mull. And after July 10 the three students who
up to that point were in the cooperative program should be
added. In view of the fact that John Hart did not start at Re-
spondent’s Hempfield store until May 19, there were 107 in
the unit on May 13 when Local 23 made its demand for rec-
ognition with 55 authorization cards.124 Consequently, the
Union had a majority on May 13. And that majority contin-
ued well beyond the end of May.
General Counsel, on brief, argues that a bargaining order
is the appropriate remedy in this case since the Union
achieved the support of a majority of the employees in the
bargaining unit based on authorization cards; that Respondent
engaged in a clear course of conduct calculated to undermine
and destroy support for the Union among employees com-
mencing in April when it first learned of the Union’s orga-
nizing campaign; that the unlawful conduct included interro-
gation, threats of reprisals, and threats of plant closure, long
recognized as a hallmark violation sufficient to support the
issuance of a remedial bargaining order; that Robert Davis,
Respondent’s Board Chairman and owner engaged in sub-
stantial efforts to undermine Local 23 by assisting the Steel-
workers in soliciting support among the employees at Hemp-
field and compounding this violation by overtly coercing em-
ployees to obtain their support for that labor organization;
that Respondent committed egregious and repeated violations
of Section 8(a)(3) of the Act by the summary discharges of
nine Union supporters and card signers; that there really is
no room for speculation that the passage of time would in-
sure a fair election; that the effect of such severe misconduct
is persistent and ongoing; and that a bargaining order is the
only appropriate remedy in this case. Respondent, on brief,
contends that since Local 23 never represented a majority of
the involved employees, no bargaining order may issue.
The Supreme Court in NLRB v. Gissel Packing Co., 395
U.S. 575 (1969), affirmed the Board’s authority to issue a
bargaining order where a union majority is established by
cards and the nature and the extent of the employer’s unfair
labor practices render unlikely a free choice by the employ-
ees in a Board election.
Respondent commenced its course of unfair labor practices
immediately upon learning of the union campaign. The unfair
labor practices were committed by a number of Respondent’s
admitted supervisors including its president and its chairman
of the board. Respondent’s actions were directed at numerous
of its employees, some of whom are high school students.
Respondent unlawfully interrogated, created the impression
of surveillance, solicited employee complaints and griev-
ances, threatened to close the store, coerced its employees to
join the Steelworkers, changed terms and conditions of em-
ployment, changed a work schedule to force a constructive
discharge, threatened reprisals, and discharged a number of
employees. The effect of this conduct was to instill a strong
fear of union representation. Simply requiring Respondent to
refrain from repeating such conduct will not erase the effect
of this fear of union representation and will not enable the
employees to participate in a free and uncoerced election. In
my opinion, a mere cease-and-desist order would not deter
the recurrence of unfair labor practices which were com-
mitted by its top management officials who are still in charge
of the Company. In view of the degree and pervasiveness of
the unfair labor practices, the holding of a fair election is no
longer possible. Respondent, by its conduct, has forfeited the
right to an election. A bargaining order is necessary and ap-
propriate to protect the majority sentiment expressed through
authorization cards and otherwise to remedy the violations
committed.
By refusing to recognize and bargain with the Union, as
requested and instead engaging in the course of unlawful
conduct which undermined the Union’s majority status and
prevented the holding of a fair election, Respondent violated
Section 8(a)(5) of the Act. Trading Port, 219 NLRB 298
(1975). Its bargaining obligation arose on May 13, 1986, the
date of the Union’s demand inasmuch as the Union by then
had achieved majority status and Respondent commenced its
clear course of unlawful conduct even before that date. It is
obvious that Respondent intended by its unlawful conduct to
dissipate the Union’s majority status. In view of the nature
of Respondent’s unfair labor practices, it is my opinion that
Respondent also violated Section 8(a)(5) of the Act by refus-
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
125 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 231 NLRB 651 (1977).
ing to recognize and bargain with the Union as the represent-
ative of the majority of its employees while simultaneously
engaging in unlawful conduct in an attempt to undermine the
Union’s majority status and prevent the holding of a fair
election.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Charging Party and the Steelworkers are labor or-
ganizations within the meaning of Section 2(5) of the Act.
3. By engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to the provisions of
Section 8(a)(1) of the Act:
(a) Interrogating an employee regarding the employee’s
union membership, activities, and sympathies and the union
membership, activities, and sympathies of fellow employees.
(b) Creating an impression among its employees that their
union activities were under surveillance by Respondent.
(c) Soliciting employee complaints and grievances thereby
promising its employees increased benefits and improved
terms and conditions of employment.
(d) Threatening employees with store closure if they se-
lected the Union as their collective-bargaining representative.
(e) Threatening employees with unspecified reprisals if
they supported the Union.
(f) Threatening employees that their union organizational
activity was futile.
(g) Threatening employees by accusing them of disloyalty
for supporting the Union.
(h) Making verbal announcements and, through the assist-
ance of the Pennsylvania State Police, discriminatorily refus-
ing to permit the Union to picket and handbill on Respond-
ent’s Hempfield Township, Pennsylvania property while per-
mitting other organizations access to its property for pur-
poses of soliciting its customers and related activities.
(i) Maintaining a civil trespass suit against the Union in
the Court of Common Pleas of Westmoreland County, Penn-
sylvania, which enjoins the Union from picketing on Re-
spondent’s Hempfield Township premises.
(j) Threatening to have persons engaged in handbilling on
behalf of the union arrested.
(k) Causing the Pennsylvania State Police to visit Re-
spondent’s above-described facility.
(l) Enforcing, through the assistance of the Westmoreland
County Sheriff, the injunction it obtained as a result of the
above-described civil trespass suit.
(m) Filing and maintaining a motion for an Order to Show
Cause and for Civil Contempt against the Union and four-
named employees and seeking to enforce by fines and other
penalties, the aforementioned injunction.
4. By urging its employees to join the United Steelworkers
of America, AFL–CIO–CLC and by permitting the Steel-
workers to utilize Respondent’s facility, thereby rendered aid
and assistance to the Steelworkers, Respondent committed an
unfair labor practice contrary to the provisions of Section
8(a)(2) of the Act.
5. By engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to the provisions of
Section 8(a)(1) and (3) of the Act:
(a) Changing the work schedule of employee Charles
Miscovich thereby causing his termination.
(b) Imposing onerous terms and conditions of employment
on employee Linda Kunkle thereby causing her termination.
(c) Laying off six named employees and refusing to recall
said employees.
(d) Discharging employee Larry Miller and refusing to re-
call him.
6. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time employees employed
by Davis Supermarkets, Inc. at its Hempfield Township,
Pennsylvania, location, excluding confidential employ-
ees, students employed pursuant to cooperative edu-
cation programs and guards, professional employees
and supervisors as defined in the Act
7. Since on or about May 13, 1986, and at all material
times thereafter, the Union represented a majority of the em-
ployees in the above appropriate unit, and has been the ex-
clusive representative of all the employees for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act; and the Respondent was on that date, and has
been since, legally obligated to recognize and bargain with
the Union as such.
8. By refusing to recognize and bargain collectively with
the Union in regard to employees in the appropriate unit on
or about and since May 13, 1986, Respondent has committed
unfair labor practices prohibited by Section 8(a)(5) of the
Act.
9. The above-described labor practices affect commerce
within the contemplation of Section 2(6) and (7) of the Act.
10. Respondent has not committed any other unfair labor
practices alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Respondent will be directed to offer Deborah Defibaugh,
Charlene Garris, Lance Good, Jennifer Hilty, Sharlene
Shotts, Sonja Welsh, Larry Miller, Charles Miscovich, and
Linda Kunkle reinstatement to their former positions and to
make them whole for any loss of earnings they may have
suffered by reason of the above-described unlawful actions
by making payments to them of a sum of money equal to
that which they normally would have earned had Respondent
not engaged in the above-described unlawful action, with
backpay and with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987),125 Respondent will be
directed (a) to preserve and make available to the Board, on
request, all payroll records and reports, and all other records
necessary and useful to determine the amount of backpay due
in compliance with this Decision and Order, and (b) to ex-
punge from the personnel files of Deborah Defibaugh,
Charlene Garris, Lance Good, Jennifer Hilty, Sharlene
471DAVIS SUPERMARKETS
126 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
127 If this 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 read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Shotts, Sonja Welsh, Larry Miller, Charles Miscovich, and
Linda Kunkle all documents related to those of Respondent’s
actions which were determined above to be unlawful labor
practices.
In view of the degree and pervasiveness of the unfair labor
practices, a broad cease-and-desist order shall be rec-
ommended precluding Respondent from ‘‘in any manner’’
interfering with, coercing, or restraining employees in the ex-
ercise of their rights guaranteed by Section 7 of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended126
ORDER
The Respondent, Davis Supermarkets, Inc., Hempton
Township, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating an employee regarding the employee’s
union membership, activities, and sympathies and the union
membership, activities, and sympathies of fellow employees.
(b) Creating an impression among its employees that their
union activities were under surveillance by Respondent.
(c) Soliciting employee complaints and grievances thereby
promising its employees increased benefits and improved
terms and conditions of employment.
(d) Threatening employees with store closure if they se-
lected the Union as their collective-bargaining representative.
(e) Threatening employees with unspecified reprisals if
they supported the Union.
(f) Threatening employees that their union organizational
activity was was futile.
(g) Threatening employees by accusing them of disloyalty
for supporting the Union.
(h) Making verbal announcements and, through the assist-
ance of the Pennsylvania State Police, discriminatorily refus-
ing to permit the Union to picket and handbill on Respond-
ent’s Hempfield Township, Pennsylvania property while per-
mitting other organizations access to its property for pur-
poses of soliciting its customers and related activities.
(i) Maintaining a civil trespass suit against the Union in
the Court of Common Pleas of Westmoreland County, Penn-
sylvania, which enjoins the Union from picketing on Re-
spondent’s Hempfield Township premises.
(j) Threatening to have persons engaged in handbilling on
behalf of the Union arrested.
(k) Causing the Pennsylvania State Police to visit Re-
spondent’s above-described facility.
(l) Enforcing, through the assistance of the Westmoreland
County Sheriff, the injunction it obtained as a result of the
above-described civil trespass suit.
(m) Filing and maintaining a motion for an Order to Show
Cause and for Civil Contempt against the Union and four-
named employees and seeking to enforce by fines and other
penalties, the aforementioned injunction.
(n) Urging its employees to join the United Steelworkers
of America, AFL–CIO–CLC and permitting the Steelworkers
to utilize Respondent’s facility, thereby rendering aid and as-
sistance to the Steelworkers.
(o) Changing the work schedule of employee Charles
Miscovich thereby causing his termination.
(p) Imposing onerous terms and conditions of employment
on employee Linda Kunkle thereby causing her termination.
(q) Laying off six named employees and refusing to recall
the employees.
(r) Discharging employee Larry Miller and refusing to re-
call him.
(s) In any manner interfering with, restraining, or coercing
its employees in the exercise of their rights under Section 7
of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Deborah Defibaugh, Charlene Garris, Lance
Good, Jennifer Hilty, Sharlane Shotts, Sonja Welsh, Larry
Miller, Charles Miscovich, and Linda Kunkle immediate and
full reinstatement to their former positions, or if such posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or privi-
leges and make them whole for any loss of pay they may
have suffered by reason of Respondent’s discrimination
against them with backpay and interest thereon to be com-
puted in the manner set forth above.
(b) Remove and expunge from the personnel files of
Deborah Defibaugh, Charlene Garris, Lance Good, Jennifer
Hilty, Sharlene Shotts, Sonja Welsh, Larry Miller, Charles
Miscovich, and Linda Kunkle all documents which relate to
Respondent’s actions which have been found to be unfair
labor practices, and make whatever record changes are nec-
essary to negate the effect of these documents and Respond-
ent’s unlawful actions.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payroll records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this rec-
ommended Order.
(d) On request, bargain collectively with United Food and
Commercial Workers International Union, Local 23, AFL–
CIO–CLC as the exclusive representative of all employees in
the aforesaid appropriate unit with respect to rates of pay,
wages hours, and other terms and conditions of employment,
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(e) Post at its Hempfield Township, Pennsylvania, copies
of the attached notice marked ‘‘Appendix A.’’127 Copies of
the notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that all allegations of unfair labor
practices not found herein are dismissed.
APPENDIX B
(1) PROPOSED STIPULATION THESE EMPLOYEES
ARE IN UNIT SUBJECT TO START AND
ENDING DATES
1. Ahlborn, Helen
2. Alcorn, Mark to 5/2/86
3. Alonzo, Mindy
4. Barbrow, Judy
5. Barnes, Pam
6. Biedrycki, Dave to 7/14/86
7. Biedrycki, Roy to 7/14/86
8. Bennett, Jean
9. Benson, Michele from 5/21/86
10. Bittner, Tracey
11. Black, Margaret to 7/19/86
12. Buhl, Ken
13. Bunner, Scott to 7/14/86
14. Campana, B. J.
15. Chellman, Regina
16. Christner, Cathy to 5/30/86
17. Clark, Ed
18. Colosimo, Theresa
19. Corsaro, Kevin
20. Crivella, Lisa
21. Curry, Shari
22. Cusano, Jody
23. Davis, Karen
24. Davis, Sandy
25. DeMann, Mike
26. Dick, Carol
27. Dick, John
28. Dreistadt, Bev
29. Duncan, Bonnie
30. Emanuel, Laura
31. Faust, Robbie
32. Fox, Marty from 6/22/86
33. Giallonardo, Mark
34. Godzik, Thomas
35. Goodlin, Cheryl
36. Goodman, Chris
37. Grace, Sam
38. Graham, Scott to 7/14/86
39. Gray, Tom
40. Greaves, Corrine
41. Greico, Debbie
42. Grindle, Debbie
43. Harshall, Randy to 7/14/86
44. Hart, Brian
45. Harte, John from 5/19/86 to 7/14/86
46. Hobaugh, Doug
47. Homchak, Ed to 7/14/86
48. Horsley, Gail
49. Ianni, Sharon
50. Jeffrey, Jennifer
51. Jupena, Robert to 7/14/86
52. Kallok, Michelle to 5/2/86
53. Kellner, Sandra from 4/28/86
54. Kimmel, Cathy
55. Kirkendall, Brian from 6/22/86
56. Kissell, Mary
57. Kitzer, Chris
58. Kunz, Inga
59. Lowry, Trach to 6/28/86
60. Mancuso, Michele
61. Marchetti, Brian
62. Marchell, Jerry to 5/11/86
63. Mascolo, Becky to 6/26/86
64. Mathias, Dolores
65. Mattucci, Anita
66. Matusek, Joan
67. McFarlene, Karen
68. Meister, Andrew
69. Merenda, Jerry
70. Miscovich, Charles (def. to 6/2 longer if found 8(3))
71. Moore, Missy
72. Najewicz, Scott
73. Napolean, Steve
74. Naviglia, Ron
75. O’Brien, Staci
76. O’Neal, Todd
77. Olshefsky, Mary Ann
78. Petril, Alfred to 5/11/86
79. Petrillo, Bob
80. Phillips, Joe
81. Piccar, V. from 6/29/86 to 9/2/86
82. Pomaibo, Patty
83. Rosetti, A.
84. Rusnica, John
85. Sarsfield, Wendy
86. Seigal, Laura from 5/12/86
87. Sherrow, Angie to 7/3/86
88. Shoemaker, Luana
89. Shola, Chari
90. Showalter, Tammie
91. Steiner, Craig to 10/10/86
92. Streussing, Mike to 7/14/86
93. Sullenberger, Marjory
94. Sweltlen, Bob
95. Temple, Melissa
96. Thomas, Jennifer
97. Tillary, Debbie from 4/26/86 to 6/28/86
98. Thompkins, Bonnie
99. Torrance, Sherri
100. Traister, Tammy
101. Valozzi, Melanie to 5/16/86
102. Vesco, Cathy
103. Wansor, Lynna
104. Watson, Scott
105. Werry, Lee
106. Williams, Paul
107. Matson, Nancy
473DAVIS SUPERMARKETS
(2) The following employees are considered in unit to date
of termination if lawful and if found unlawful termination
then throughout the relevant period (4/86 to 7/14/86).
Defibaugh, Debra * to 4/19/86
Garris, Charlene 4/19/86
Good, Lance 4/19/86
Hilty, Jennifer 4/19/86
Shotts, Charelene 4/19/86
Welsh, Sonja 4/19/86
Miller, Larry 5/14/86
Miscovich, Charles 6/2/86
Kunkel, Linda 7/26/86
* So long as not found a supervisor.
EMPLOYEES WHO ALSO WORK AT GREENSBURG
1. Wilbur Albright 14. Robin Myers
2. Janet Barbour 15. Augie Plevelich
3. James Blaser 16. Carol Pyle
4. Antonette Coletri 17. Kim Reich (Ballentine)
5. Vicki Cramer 18. Robin Ross
6. Cathy Donaughe 19. John Shumaker
7. Patrick Fetter 20. George Struhala
8. Ann Howard 21. Neil Vario
9. Eileen Hribal 22. James Weaver
(Orange) 23. Stanley White
10. Linda Hummel 24. Pauline Wigfield
11. Patti Hutton 25. Lisa Warrick
12. Brenda Kulyk 26. Sandra Wilkinson
13. Don Miller 27. Stacy Wano
COLLEGE STUDENTS EMPLOYED AT HEMPFIELD,
ELIGIBILITY IN DISPUTE
1. Lisa Arendas 4. Dave Vrable
2. Kristin Nath 5. Angela Wimberly
3. Aimee Panichella
STUDENTS IN COOPERATIVE EMPLOYMENT PROGRAM
THROUGH LOCAL HIGH SCHOOLS ELIGIBILITY IN DISPUTE
1. Jamie Boice 4. Tammy Matve
2. Valarie Kollar 5. Jamie Skewis
3. John Kula
OTHERS IN DISPUTE
1. Thomas Howard 5. Brian Mull
2. Anthony Ianni 6. Tim Sheridan
3. Terry Jackson 7. Dick Shibilsky
4. Laura Marchetti
ADDENDUM TO J–14
THOSE WHO ARE ALSO EMPLOYED AT GREENSBURG
A. Members of the United Steelworkers of America
1. Janet Barbour 11. Ausie Plevelich
2. Antonette Coletri 12. Carol Pyle
3. Cathy Donaughe 13. Robin Ross
4. Patrick Fetter 14. John Shumaker
5. Ann Howard 15. George Struhala
6. Eileen Hribal 16. Neil Vario
(Orange) 17. James Weaver
7. Linda Hummel 18. Stanley White
8. Brenda Kulyk 19. Pauline Wigfield
9. Don Miller 20. Lisa Warrick
10. Robin Myers 21. Sandra Wilkinson
B. Not Members of the United Steelworkers of America
1. Wilbur Albright 4. Patti Hutton
2. James Blaser 5. Kim Reich (Ballentine)
3. Vicki Cramer 6. Stacy Wano