Daylight Grocery Co.

National Labor Relations Board - Board Decisions

Jun 26, 1964

147 N.L.R.B. 733 (N.L.R.B. 1964)

DAYLIGHT GROCERY COMPANY 733
Members and job applicants may communicate directly with the Board 's Regional
Office, 120 Delaware Avenue , Buffalo, New York, Telephone No. Ti. 6-1782 , if they
have any question concerning this notice or compliance with its provisions.
Daylight Grocery Company and Meat Cutters , Packinghouse and
Allied Food Workers, District Union 433, affiliated with Amal-
gamated Meat Cutters and Butcher Workmen of North Amer-
ica, AFL-CIO and Employee Committee , Party to the Con-
tract. Case No. 12-CA-27344. June 26, 19641
DECISION AND ORDER
On April 1, 1964, Trial Examiner Sidney Sherman issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, Day-
1 Respondent' s motion for oral argument is denied because , in our opinion , the record,
exceptions , and brief adequately set forth the issues and positions of the parties.
2 We agree with the Trial Examiner 's finding that effective demands for recognition were
made by the Union on the Respondent at the meetings held on September 3, 23, and 25,
1963. At that time the Respondent had in its possession copies of 34 authorization cards
and was offered 4 additional cards by the union representative . Even accepting the Re-
spondent 's contention regarding the composition of the bargaining unit, the 38 proffered
authorizations were enough to give the Union a majority status on those dates . Accord-
ingly , it is unnecessary to consider whether the Union had obtained a majority status on
August 14 when it presented the original 34 authorizations to the Respondent.
147 NLRB No. 100.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
light Grocery Company, Jacksonville, Florida, its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.'
Paragraph 1(1) of the Trial Examiner's Recommended Order is amended to read:
(1) In any other manner interfering with, restraining, or coercing employees in the
exercise of their right to self-organization, to form, join, or assist -Meat Cutters,
Packinghouse and Allied Food Workers, District Unionl^433, affiliated with Amalga-
mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of their, own choos-
ing, and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities
The last indented paragraph of the Appendix attached to the Trial Examiner's Decision is
amended to read
WE WILL NOT in any other manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form, join, or assist Meat Cutters,
Packinghouse and Allied Food Workers, District Union 433, affiliated with Amalga-
mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such activities.
TRIAL EXAMINER'S DECISION
The original charge herein was served upon the Respondent on September 6,
1963, and the complaint issued on December 13, 1963.1 The case was heard in
Jacksonville, Florida, from February 3 through 6, 1964. A brief was filed by
Respondent after the hearing. The issues litigated were whether Respondent violated
the Act by (1) refusing to bargain with the Union, (2) interrogation, threats, and
inducements directed at employee union activities, (3) discrimination against em-
ployees because of such activities, (4) contributing assistance and support to a labor
organization designated as the Employee Committee, and (5) requesting employees
to furnish to Respondent copies of affidavits given by them to a Board agent.
Upon the entire record,2 and upon my observation of the witnesses, I adopt the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Daylight Grocery Company, herein called Respondent, is a Florida corporation,
and is engaged in the operation of retail food stores in the Jacksonville, Florida,
area. Respondent conceded, and I find, that during a recent 12-month period
Respondent's gross receipts totaled more than $500,000 and it purchased from points
outside Florida goods valued in excess of $50,000. It is found that Respondent is
engaged in commerce within the meaning of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
i All events hereinafter related occurred in 1963, unless otherwise stated.
2 The transcript of testimony taken herein is hereby ordered corrected as follows:
Page 24, line 10, insert "if" after "that". Page 24, line 12, change "chance" to
"point". Page 57, line 1, period after "contract", and change " since" to "Since".
Page 57, lines 3 to 5, change the sentence to read: "He said he would check with his
client and see If he would sit down for contract, and he never called." (The fore
going change Is based on a stipulation of the parties which Is hereby received in evi-
dence as Trial Examiner's Exhibit No. 1.) Page 143, line 18, change "Saturday" to
"Sunday". Page 357, line 25, change "cases" to "caves". Page 358, line 14, change
"Christman" to "Westheimer". Page 365, line 9, change "Christman" to "Westheimer".
Page 422, line 11, change "You" to ".He". Page' 433, line 6, strike "do not". Page 446,
line 13, substitute "recognition" for "admission" Page 470, line 13, change "a scab"
to "another". Page 496, line 25, change "September" to "December". Page 513,
line 24, substitute "unit" for "union". Page 522, line 7, substitute "unit" for, "union".
DAYLIGHT GROCERY COMPANY
II. THE LABOR ORGANIZATION INVOLVED
735
The Respondent stipulated, and I find, that Meat Cutters, Packinghouse and Allied
Food Workers, District Union 433, affiliated with Amaglamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, herein called the Union, is a labor
organization within the meaning of the Act.3
I find further, upon the entire record, that the Employee Committee, herein called
the Committee, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The amended complaint alleges that Respondent violated the relevant provisions
of the Act by (1) refusing since August 14 to bargain with the Union as the rep-
resentative of its meat department employees in its nine Jacksonville stores, (2) inter-
rogation of employees, (3) threats of reprisal for union activities, (4) grants of benefit
to discourage union activities, (5) prohibiting the wearing of union buttons and
discharging employees for wearing such buttons, (6) the discriminatory transfer of an
employee, (7) soliciting from employees copies of affidavits given by them to the
Board, and (8) contributing assistance and support to the Committee. The answer
in substance denies any violation.
A. Sequence of events
Respondent operates in Jacksonville nine retail food stores, each of which con-
tains a grocery and a meat department. In the summer of 1963 Respondent em-
ployed about 70 employees, of whom about 60 were colored, in the 9 meat depart-
ments.4 Early in July, the Union -made contact with employee Pope, and through
him obtained signatures from 39 employees on union authorization cards. On
August 14, the Union transmitted to the Respondent photostatic copies of these
cards, together with a letter asserting that the Union represented a majority of the
meat department employees, offering to submit the signed cards to a neutral third
party for authentication, and requesting that Respondent fix a date for such a card
check and for negotiating an agreement.
On August 19, Respondent, by its counsel, replied that it did not believe that the
Union represented a majority of Respondent's employees in an appropriate unit, that
it questioned the appropriateness of the unit described in the Union's letter, and that
it declined to recognize the Union until certified by the Board.
Thereafter, late in August, Pope wore a union button while at work, and, when
questioned by Cohen, Respondent's vice president, explained that the button signified
that-he was attempting to organize Respondent's employees for the Union. There-
upon Cohen summoned to the scene -Respondent's general manager, Christman, who
ordered Pope to remove the button, and declared that he was not to wear a button
until such time as Respondent's employees were organized, that they would never be
organized, that Respondent had "many ways of beating the union," and that em-
ployees would be discharged if they wore a union button. The next day Pope was
transferred to the grocery department of another store, and, when he there resumed
wearing his union button, he was again told by Christman that there would be no
union, that Respondent had many ways of beating the Union, and that Pope would
be well-advised to abandon his union activity. Pope then removed his button but
was wearing it again by September 4, when he was told by Japour, a representative
of management, that he was being discharged for wearing the button.5 About the
same time Respondent discharged 18 other employees, admittedly for the same rea-
son as in the case of Pope. All 19 picketed Respondent's stores until September 26,
when, after conferences between Respondent and the Union, they were reinstated
with backpay.
In the meantime, on September 1, at its annual employee party, Respondent an-
nounced that it was giving each employee a bonus of $150, which was in addition to
the usual profit-sharing bonus which had theretofore been distributed in July and
3 While the Employee Committee did not join in Respondent's stipulation, as the record
shows that the Union was seeking here to represent Respondent's employees for the pur-
pose of collective bargaining, a finding that the Union is a-labor organization is amply
warranted.
4 There were in addition about 100 grocery employees, most of whom were colored.,
6 The foregoing findings as to the various "button" incidents are based on Pope's un-
contradicted testimony, which 'I credit.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December of each year. On September 3, a union official, Ackerman, met with Re-
spondent's counsel, and engaged in a discussion of the Union's objectives. There is
conflicting testimony, which will be considered later, as to whether Ackerman at that
time renewed the Union's request for recognition. On September 4, Respondent
held a meeting of all its colored meat and grocery employees to. determine the rea-
son for the employees' "unrest." At this meeting the Committee was formed to meet
with management and discuss employee relations, and on September 5 Respondent
negotiated with the Committee a number of improvements in the working conditions
of all its store employees, including substantial wage increases, and Respondent has
since met with the Committee on about six occasions to discuss working conditions.
B. Discussion
1. Interrogation
The complaint alleges, and the answer denies, interrogation by Japour, an ad-
mitted supervisor, during August 1963.
Brooks, a union adherent, testified that about August 16 Japour asked him what
he had been signing, and that, when Brooks entered a disclaimer, Japour retorted
that he was looking at Brooks' name on a union card. Shortly thereafter, Japour
renewed the discussion and remarked that if the Union did not "go through, things
could be rough."
According to Young, about August 17, Japour told her that he had a list of names
from the Union and a card with her signature, offering to show it to her; but she
falsely denied signing any card, apprehending that she might be discharged for hav-
ing done so.
Japour admitted that he asked Young if she had signed a card, but denied any
interrogation of other employees. As to Young, he stated that his purpose was to
verify the information in the Union's August 14 letter that she had signed a union
cards However, while this purpose might have validated his inquiry,7 if he had
observed the safeguards of the Blue Flash case,8 in view of his failure to do so, it is
necessary to find his interrogation unlawful, particularly in the context of the other
unfair labor practices found below.
While Japour denied the interrogation and threat imputed to him by Brooks, I
credit Brooks on the basis of demeanor and in view of the circumstantiality of his
testimony, and find, for the same reasons as in the case of Young, that such interro-
gation violated Section 8 (a)( I) of the Act .9
2. Threats
I have already credited Brooks' testimony regarding the statement by Japour about
August 16, that, if the Union did not prevail, "things could be rough." As this im-
plied that the Respondent would visit reprisals on the employees for their union
activities, once the Union had departed from the scene, I find that by such threat
Respondent violated Section 8(a)(1) of the Act.
As already related, Christman warned Pope, late in August, that employees would
be discharged for wearing union buttons. Moreover, Christman's conversation with
Pope the following day contained a veiled threat of reprisal against Pope if he did
not abandon his union activities. By the foregoing conduct, Respondent violated
Section 8(a)(1).
Furthermore, as Christman's repeated statements that the Respondent had many
ways of beating the Union and the employees would never be organized were calcu-
lated to impress upon Pope the futility of his union activities, such statements vio-
lated Section 8(a)(1).
6 Japour explained that he had seen only a copy of the Union's letter, which had been
sent to his home, and which listed Young as a card signer, but was not accompanied by
any copies of signed cards
7 As he admitted that he had couched his remarks in the form of an inquiry, I so find,
notwithstanding Young's testimony that he merely professed to have her card
8 Blue Flash. Express, Inc., 109 NLRB 591. Accord: Larry Foul Oldsmobile Co., Inc.,
138 NLRB 697, enfd. as modified 316 F. 2d 595 (C.A 7), where the Board found unlawful
the interrogation of employees regarding their having signed union cards, copies of which
had already been submitted to the respondent by the union, as in the instant case.
I In view of the foregoing findings, it would be redundant to consider whether certain
testimony of Whipple, similar to that of Young, but disputed by Japour, also supports a
violation finding.
DAYLIGHT GROCERY COMPANY 737
Employee Simon testified, without specific contradiction, and I find, that at the
employee party given by Respondent 'on September 1, Christman declared that if
"outsiders came in" Respondent would close its stores. In view of. the context, I
find that this threat was directed at the Union, and violated Section 8(a)(1) of
the Act.
3. Inducements
The complaint alleges that in September Respondent violated Section 8(a) (1) by
paying bonuses and granting wage increases to induce the employees to reject the
Union.
As to the bonuses , it is undisputed that , as related above, Respondent on Septem-
ber 1 gave each employee a bonus of $150, which was over and above the usual
profit-sharing bonus distributed in December and July of each year. Christman
testified that in October 1962, Respondent's president, Edwards, had promised the
employees that he would increase their share of the profits under the existing profit-
sharing plan if they would dispense with the current method of computing such
share and leave the amount to his discretion, and that during the first week of
August 1963, Edwards decided, in view of an increase in Respondent's current profits,
to pay an extra bonus on September 1. Moreover, according to Christman, it had
been the Respondent 's practice in prior years to announce in September some new
fringe benefit or make a nominal cash disbursement, not exceeding $25.
However, three employees (Harris, Simon, and Whipple) testified that they had
at the most only, a few days' prior notice of the Respondent's intention to pay the
$150 bonus on September 1, 1963, and they denied that during the entire period of
their employment, ranging up to 5 years, they had received any cash bonus on or
about September 1. Even Cowart, a witness for Respondent, who had been in its
employ for 23 years, professed inability to recall whether she had in prior years re-
ceived any .bonus about September 1.
Moreover, according to Whipple, in announcing the bonus, Christman stated that
it would continue to be paid in future years, but "some outsiders" were bothering the
employees, and "if they kept up" the bonus would be discontinued. This was corro-
borated by Harris, Simon, and Pope. Christman's version of these remarks was
that on that occasion he stated , much as he had during prior years, when profit -sharing
was discussed , that profits would be shared "as long as we were one happy family,"
but that "if we were no longer one happy family, everything would come from the
union ," and Respondent could not promise what would be given . There was no
corroboration of this testimony.'°
Even if it be assumed that Christman 's own version did not transcend the limits
of free speech, that would not avail the Respondent here, as I credit, in any event,
the mutually corroborative testimony of the employee witnesses , which imputed to
Christman a clear threat that profit sharing would cease or be diminished if the
employees persisted in their union activities. In view of this finding, it is not nec-
essary to consider whether the extra bonus payment on September 1 was in fact
decided upon by management prior to its learning of the employees' union activities
and without regard to such activities. In view of Christman's attempt to impress
upon the employees that continuation of the bonus depended upon abstention from
union activities, I find that such bonus was utilized by Respondent as a means of
weaning the employees away from the Union, and that Respondent thereby violated
Section 8(a)(1).
It is undisputed that on September 5 Respondent negotiated with the Committee
certain improvements in working conditions, including substantial wage increases. In
view of my findings below as to the circumstances under which the Committee was
formed, there can be little doubt that such concessions were granted to entrench the
Committee as the bargaining representative of the employees, at the expense of the
Union. Accordingly, I find that by these, as well as other, concessions made to
the Committee, Respondent violated Section 8 (a) (1).
4. The ban on union buttons and its enforcement
It is not disputed that Respondent on various occasions forbade individual em-
ployees to wear union buttons while at work, and early in September discharged 19
employees for wearing such buttons. Christman admitted that the buttons were not
offensive in any way and that customers had not complained about them. Respond-
"Edwards did not testify , although Respondent 's counsel was put on notice that an
adverse inference might be drawn therefrom.
756-236-65-vol. 147-48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's brief does not attempt to justify the foregoing conduct but asserts only that the
discharged employees were reinstated with backpay. However, that does not suffice
to render the issue moot, as the best assurance against any repetition of such conduct
is a cease-and-desist order. Accordingly, I find that the Respondent violated Sec-
tion 8(a) (1) by forbidding its employees to wear union buttons at work, and that
it violated Section 8(a)(3) and (1) by discharging employees for wearing
such buttons."
5. Discriminatory transfer
As related above, Pope, the most active union adherent, was transferred about
September 1 from the meat department of one of Respondent's stores to the grocery
department of another store. It does not appear that such transfer involved any
change in pay. The day before this transfer, Pope had explained to Vice President
Cohen that the union button he was wearing signified that he was attempting to recruit
union adherents, and Christman had forced Pope to remove the button, threatening
to discharge all employees who wore union buttons, ad vowing to defeat the Union's
organizational efforts.
In explaining the transfer, Christman cited, at first, (1) the fact that Nash, under
whom Pope worked, indicated dissatisfaction with Pope's work, and (2) Christman's
belief that Pope was discontented because of his frequent past transfers. When
asked whether he expected still another transfer to remedy such discontent, Christ-
man apparently abandoned any reliance on the foregoing matters and for the first
time took the position that he transferred Pope on that occasion because he felt he
had humiliated Pope in front of other employees by forcing him to remove his union
button, and he wished to spare Pope the further embarrassment of having to continue
to work with those who had witnessed his humiliation.
In view of the foregoing shifting explanations given by Christman, and the abundant,
virtually uncontroverted proof of Respondent's union animus, including the discharge
of Pope and others, only a few days after his transfer, for wearing union buttons,
I find that the transfer of Pope to grocery work 12 was in reprisal for his union activity,
and presumably in the expectation that he would be less effective in proselytizing
for the Union among the meat department employees in a different store, particularly
in view of his 'confinement to grocery work there. Accordingly, I find that by
Pope's transfer Respondent violated Section 8(a)(3) and (1).13
6. Soliciting copies of Board affidavits
It is undisputed that in the fall of 1963 Japour, a supervisor, requested various em-
ployees to furnish him with copies of the affidavits they had given a Board agent
in connection with the General Counsel's investigation of the instant charges. I find
that Respondent thereby violated Section 8 (a) (1).14
7. Assistance to the Committee
It appears that prior to the events herein related, the employees had been
represented in their dealings with Respondent by a committee, which had, however,
been dormant for about a year before the advent of the Union. On September 4,
about 2 weeks after it had rejected the Union's bargaining request, Respondent called
a meeting of its colored employees to ascertain the reason for their "unrest." This
meeting was attended by the grocery,15 as well as the meat department, employees.
At this meeting, after a discussion of employee grievances, the suggestion was made
that the employees again set up a committee as a vehicle for dealing with management
concerning such grievances. According to Black, who became chairman of the new
Committee, he was the one who made the suggestion, and Christman corroborated
this testimony. However, employees Wilcox and Brooks testified that it was Re-
spondent's president, Edwards, and not Black, who first suggested the formation of
the new Committee. Edwards, himself, was not called to rebut this testimony,
although Respondent's counsel was put on notice at the hearing that an adverse infer-
ence might be drawn from the failure to call Edwards. In view of the foregoing. I
infer that Edwards' testimony would not have been favorable to Respondent, and I
"Kimble Glass Company, 113 NLRB 577, enfd 230 F. 2d 484 (C A. 6) ; Floridan Hotel
of Tampa, Inc., 137 NLRB 1484, and cases there cited.
12 Pope had never before been assigned by Respondent to grocery work.
13 General Counsel does not seek an order that Pope be reassigned to work in the meat
department, presumably because, as Christman testified, he has already been so reassigned.
14 W. T. Grant Company, 144 NLRB 1179.
15 Another union was attempting at the time to organize Respondent's grocery employees.
DAYLIGHT GROCERY COMPANY 739
credit the testimony of Wilcox and Brooks that it was Edwards who first proposed
the formation of the Committee. Christman admitted, in any event, that it was
Edwards who recommended to the employees that the Committee consist of two
representatives, from each store, to be elected by the employees, which recommenda-
tion was promptly adopted. Christman admitted further that during the foregoing
meeting he invited the Committee to meet with the Respondent to discuss the em-
ployees' problems, thereby in effect recognizing it as the representative of the employ-
ees. In addition, it is not disputed that Respondent on September 5, at its own
expense, provided a meeting place for the members of the Committee, where they
conferred all that day concerning the demands to be submitted to management, and
that they were•paid for the time so spent. Most of the foregoing demands, including a
substantial wage increase, were admittedly granted on September 5, the same day that
they were submitted. Since then, Respondent has met with the Committee about six
times to discuss working conditions.
Respondent's 'brief contains only the following regarding the issue of assistance to
the Committee:
As to the Respondent dealing with the Employee Committee, we submit that the
Respondent did not unlawfully sponsor or dominate this Employee Committee.
General Counsel does not contend that Respondent dominated the Committee and
seeks no disestablishment order. As for the foregoing denial that Respondent had
sponsored the Committee, I have already credited the employee testimony that it was
Edwards' suggestion that precipitated the formation of the Committee, and there
is no dispute that the structure of the Committee was based on Edwards' recommenda-
tion, and that it was organized in a climate of assurances by management that the
Committee would be recognized as the employees' representative.
I find, therefore, that, by suggesting and encouraging representation of the em-
ployees by the Committee in preference to an outside union, by giving financial
assistance to the Committee; by recognizing and negotiating with it., and by granting
concessions to the employees as a result of such negotiations , the Respondent violated
Section 8(a)(2) ,and (1)of the'Act.ls
8. The refusal to' bargain
a. The , appropriate, unit.
The complaint alleges, and the answer admits, that the following unit is appropriate
for purposes of collective bargaining: All meat department employees in Respond-
ent's stores in Jacksonville, Florida, excluding all other employees, - guards,- and
supervisors as defined in the Act. '
The Union's letter of August 14 in substance requested recognition in the fore-
going unit , except that it specified the inclusion of those regular part-time employees
who worked 20 hours or more per week in the meat department. At the hearing the
Respondent contended that those regular part-time employees who worked less than
20 hours per week should also be included if they worked a sufficient number of hours
per week to warrant their inclusion in the unit under the Board's policy relating to the
eligibility of part-time employees generally. The General Counsel, on the other
hand, insisted on excluding all part-time employees who worked less than 20 hours
per week, contending that in prehearing discussions Respondent had agreed to such
exclusion and that it should not now be allowed to alter its position.
However, the General Counsel concedes that, absent such alleged prior agree-
ment, the inclusion of part-time employees working less than 20 hours, as proposed by
Respondent, would be proper.17 As it does not appear that General Counsel was
prejudiced by any change in Respondent 's position , 18 I see no reason why Respondent
may not now seek to include regular part -time employees who, while spending less
than 20 hours a week in meat department work, are so employed a sufficient num-
ber of hours to establish their community of interest with the other meat department
employees. Accordingly, I find to be appropriate a unit consisting of all Respondent's
meat department employees in its Jacksonville , Florida, stores , including regular
part-time employees, but excluding guards and supervisors as defined in the Act.
. 16 Guard Services , Inc., 134 NLRB 1753 ; General Finishers Corporation, 133 NLRB 999,
1010-1011; Air Control Products, Inc.; 139 NLRB 607, 621-623.
See footnote 23, below.
Ss While General Counsel alleged that he had, in.reliance on the alleged prior agreement,
refrained from introducing in evidence 'a card signed by an employee who spent less than
20 hours in unit work , he had ample opportunity to introduce that card after Respondent
announced its new unit position but made no effort to do so.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The Union's majority status
As already related, on August 14 the Union submitted to Respondent 39 signed
cards. At the hearing it was agreed that 5 of these cards should not be counted be-
cause they were signed by employees not in the bargaining unit,19 so that the Union's
valid card showing in its August 14 letter was in fact 34 . In addition , the General
Counsel would properly count toward the Union 's majority on that date the card of
Stephens , which was signed on that date , although some hours after the Union's
demand letter was mailed , and not referred to in that letter.20 The parties agreed
at the hearing on the inclusion in the unit of 63 persons as of August 14,21 but
disagreed as to 10 others .22 The General Counsel would exclude all 10 on the
ground that 3 of them are supervisors and the other 7 are employed principally in
grocery work, and the extent of their (part-time ) employment in meat department
work is insufficient to warrant their inclusion in the unit 23
Even if the 3 alleged supervisors are excluded , the maximum number remaining
in the unit would be 70 employees , and the maximum number of valid cards would be
35, 1 short of a majority . As to the 7 part-time employees , I am satisfied that as to
5 (H. Jackson , M. Jackson , Willis, Reed, and Lewis ) the evidence preponderates in
favor of a finding that they work in the meat department 20 or more hours , which,
as even the General Counsel concedes , would warrant including them in the unit 24
The remaining two-Hargrove and Sapp-represent difficult, borderline cases 25 In
any event , when the issue is as close as it is here, turning on debatable questions
of fact and law, there is no gainsaying the Respondent 's contention that it had reason
to doubt the Union's August 14 claim. Moreover , it should be noted that, while it is
proper to count Stephens ' card toward the Union 's majority , even though it was signed
after the Union's letter was mailed but before it reached the Respondent, it is
relevant to consider , in appraising the Respondent 's good faith, that it was informed
by the Union 's letter only of its claim to have 34 (valid ) signed cards . Accordingly,
even if both Sapp and Hargrove , as well as the 3 alleged supervisors are deemed
ineligible to vote , leaving 68 in the unit , the Respondent would still have had reason
to believe , on the basis of the Union's own representations, that it had only 34 cards,
and hence no majority on August 14. In view of this, no useful purpose would be
served by resolving the issue of the Union's majority status on August 14, particularly
in view of my findings below that it did acquire such status shortly thereafter.
It is undisputed that , in addition to the 34 valid cards submitted on August 14, the
Union, by August 25, had obtained 4 more signed cards, or a total of 38, which
concededly represented a majority of the employees in the unit, even -if this number
19 See General Counsel's Exhibit No 2.
See Rea Costruction Company, 137 NLRB 1769.
See General Counsel's Exhibit No. 3.
22 See General Counsel's Exhibit No. 4.
22 In determining the eligibility of these "dual-function" employees , the governing case is
Berea Publishing Co., 140 NLRB 516. In that case , the Board , reversing prior decisions,
held that in the future the eligibility of such employees would be determined by the same
rules as are applicable to regular part-time employees generally.
24 Of these five , the General Counsel offered contrary testimony only with regard to Lewis
(by McKinnon ) and Reed (by Pope ). However , I do not credit such uncorroborated testi-
mony in the face of the mutually corroborative testimony to the contrary by Respondent's
witnesses . Moreover , for reasons which sufficiently appear in the record , I would not deem
reliable , in any event, any uncorroborated testimony by McKinnon
25 Sapp testified credibly that during the 5 weeks (July 25 to August 30 ') of his employ-
ment, he worked in the meat department for 23 hours 1 week and fors hours during each
of the other weeks . Whether this would or would not suffice to establish his community of
interest with the meat department employees is a question on which there is little authority.
As to Hargrove , while her testimony was somewhat vague, she insisted that she worked in
the meat department at least from 9 to 4 on Fridays , and 9 to 12 on Saturdays , or a total
of 10 hours . I deem this testimony by the employee , herself, more reliable than that of
her two fellow employees , called by the General,Counsel It is undisputed that , in addition,
Hargrove relieved another employee in the meat department for 2 weeks during the vaca-
tion period. The Board has held to be eligible a regular part-time employee who worked
6 to 12 hours a week. Gulf States Telephone Co., 118 NLRB 1039 , 1042. See also
S. G. Tilden, Incorporated, 129 NLRB 1096 , 1097, including in the unit part -time me-
chanics, some of whom worked only 1 day a week . These cases would seem to support the
Respondent ' s contention for the inclusion of Hargrove.
DAYLIGHT GROCERY COMPANY 741
is fixed at 74,26 as claimed by Respondent. Accordingly, I find that at least on and
after August 25, the Union represented a majority of the employees in the appropriate
unit.
c. The demands and refusals
(1) On August 19 and September 3
As already noted, on August 14 the Union requested recognition on the basis of
its then card showing and on August 19 this request was rejected by Respondent's
counsel on the ground, inter alia, that Respondent doubted the Union's majority
status.' For reasons already stated, no finding has been made as to the Union's
majority on that date. In any event, as it is found below that Respondent on sub-
sequent occasions unlawfully refused to bargain with the Union, there is no need to
consider further whether there was such a refusal on August 19.
On August 27, Ackerman, the Union's agent, called the office of the law firm
which had replied to the Union's August 14 letter on behalf of Respondent, and,
upon being referred by one of the members of that firm to Reinstine,27 Ackerman
arranged a meeting for September 3. At that meeting, according to Ackerman, after
informing Reinstine that since August 14 he had secured additional signed cards,
which he was prepared to submit for verification, he asked if Reinstine would "sit
down and negotiate a contract," whereupon Reinstine promised to check with his
client but never again contacted Ackerman. Reinstine took the stand at the hearing
and denied categorically that there was any demand by Ackerman for recognition or
negotiation of a contract or any offer to him to submit additional cards. According
to Reinstine, Ackerman's remarks related principally to "what he was going to do to
Daylight Grocery if the union didn't come in," which Reinstine somewhat reluctantly
admitted he construed as a threat "based on the fact that he wanted recognition for
the union." Even more significant was Reinstine' s admission under cross-examination
that Ackerman might, in fact, have asked him to set a date for contract negotiations,
thereby contradicting the witness' prior categorical denial of any demand by Acker-
man for negotiations.
In view of Reinstine's final, reluctant admission at the hearing that Ackerman
might have asked for recognition, I do not credit his prior denials on this point nor
his denial that Ackerman offered to submit additional cards 28
26 This number comprises the 73 employees claimed by Respondent to have been in the
unit on August 14, plus 1 employee (Ellis Simon) who was transferred to the unit on
August 19 and signed a card that day.
In its brief Respondent contends that the four new cards should not be counted because
General iCounsel failed to prove that the signatories belonged in the meat department unit.
However, this contention overlooks the fact that the parties stipulated to the inclusion in
the unit of three of these four employees (see General Counsel's Exhibit No. 3), and that
as to the fourth-Ellis Simon-the record shows that on August 19 he was transferred to
the meat department of one of Respondent's stores, working there full time until late in
December. Accordingly, this contention is rejected.
2, He was Respondent's trial counsel at the hearing.
28 In his brief, while referring to his denial at the hearing of Ackerman's testimony,
Reinstine apparently concedes tacitly the veracity of Ackerman's testimony as follows:
. . . We submit that these statements by Mr. Ackerman do not constitute a legal or
proper demand or request. The Union when it made its letter request for recognition
on August 14, submitted authorization cards of 34 employees to the Respondent. By
submitting these 34 cards the Union chose the mode of proving its' majority status.
However, at the meeting on September 3, Mr. Ackerman merely offered four- cards
without once again submitting the 34 cards previously submitted to the Respondent on
August 14. Without a new submission of the 34 cards it was impossible for Respond-
ent to know whether the 34 employees' cards submitted on August 14 were still valid
on September 3, and whether there was an appropriate unit. If Mr. Ackerman had, in
fact, made a new demand or request for recognition, it was his duty to have submitted
the 34 cards previously submitted-to Respondent on August 14, since he, as representa-
tive of the Union , had chosen the mode of proving the Union's majority. This Mr.
Ackerman did not do, and, therefore, not only his statements but his actions do not
establish a new demand or request for recognition.
Thus, Reinstine seems to have abandoned any contention that there was no demand for
recogntion and no offer of cards on September 3, retreating to the position that such de-
mand was defective because Ackerman did not again submit the original 34 cards on
September 3, in addition to the 4 new cards..
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As already noted,29 Respondent's brief contends that Ackerman's September de-
mand was defective because he did not resubmit the 34 old cards, as well as the 4 new
cards. No authority is cited for this proposition and I am aware of none. Clearly,
a mere resubmission of the old cards would have proved nothing that Respondent
did not already know. It may be that Respondent's contention here is that Ackerman
should have had the 34 old cards reexecuted on September 3. Such a contention
assumes that signed cards automatically lose their evidentiary value after a few
weeks or months, even though, as here, there is no evidence or contention that the
signatories have changed their mind in the interim. I do not believe that is the law.
Respondent also contends in its brief that Ackerman's demand was ineffective be-
cause Reinstine had no authority to "accept" any request for recognition. In sup-
port of this, the brief cites Reinstine's testimony that he was not authorized to grant
or reject any request for recognition, but would have had to submit any such matter
to his client. However, this testimony impliedly acknowledges that Reinstine had
the power to receive Ackerman's request and transmit it to his client. Moreover, it
is clear that, by authorizing its legal counsel to reply to the Union's August 14 de-
mand, Respondent clothed its counsel at least with apparent authority to act as its
intermediary in its dealings with the Union, and Ackerman was therefore justified
in making his request for recognition through Reinstine, for submission to Respond-
ent. Accordingly, I find that a proper demand was made on September 3.30
It is inferrable from Respondent's failure to give Ackerman any answer to his
September 3 request either that Reinstine did not advise Respondent of the new
bargaining demand, buttressed by the alleged acquisition of new cards, or that he
did so advise Respondent and it decided to reject such demand. In either case, Re-
spondent would be chargeable with a refusal to bargain, since in the former case
Reinstine's conduct, in taking no action on Ackerman's demand, would be imputable
to Respondent. Moreover, the negative reaction of Reinstine, or Respondent, or
both to the Union's claim of additional cards indicates that at this point at least
Respondent or those acting for it had no genuine interest in ascertaining whether
the Union did or did not represent a majority of the meat department employees,
but was concerned rather to find "ways of beating the Union." This is clear not
only from Christman's remarks along that line to Pope late in August, together with
his repeated assertions to the effect that the Union would never achieve recognition,
but also from (1) its discrimination against Pope and others early in September for
wearing union buttons, (2) the stressing to employees on September 1 that adherence
to the Union would jeopardize their profit-sharing benefits, (3) the threat on Sep-
tember 1 to close the stores if the Union's campaign succeeded as well as other
similar threats related above, and (4) the unlawful assistance rendered the Employee
Committee, including the hasty recognition of the Committee and the precipitate
grant to it of substantial concessions. As the foregoing conduct was manifestly de-
signed to undermine the Union, the conclusion is inescapable that action on Acker-
man's September 3 demand was withheld, not because of any honest doubt of the
Union's majority status, but in order to gain time within which to destroy such
status. It is accordingly found that the Respondent on September 3 unlawfully re-
fused to bargain with the Union for reasons unrelated to any good-faith doubt of
the Union's majority status,31 and that Respondent has thereby violated Section
8(a)(5) and (1) of the Act.
(2) On September 23 and 25
As already related, Respondent early in September discharged 19 employees for
wearing union buttons. On September 23 and 25 Ackerman met with Christman to
'2 See preceding footnote.
30 While it has been found that the unit in which bargaining was requested by the Union
on August 14, and presumably thereafter, improperly excluded regular part-time employees
who spent less than 20 hours a week in meat department work, Respondent does not now
contend that this fact invalidated such bargaining request or that Respondent refused to
recognize the Union for that reason. In any event, as it has been found that only 2 of
the 74 employees in question spent less than 20 hours in meat department work, and their
inclusion in the unit would not affect the Union's majority status as of August 25, it is
found that the foregoing defect was not so substantial as to invalidate the Union's bar-
gaining request for purposes of determining whether there was a refusal to bargain after
that date Galloway Manufacturing Corporation, 136 NLRB 405, 408-409, and cases
there cited.
31 This finding is reinforced by the testimony of Ackerman, which I credit below, as to
the reason given him by Christman on September 25 for not recognizing the Union.
DAYLIGHT GROCERY COMPANY 743
discuss the reinstatement of these employees. According to Ackerman, at both
these meetings he proposed that, in addition to reinstating discharged employees,
the Respondent grant recognition to the Union, and on September 25, Christman
replied, ". . . if they could avoid recognition of our union, they would prefer not to
recognize our union or have any dealings with our union." When asked whether
Ackerman had on the foregoing occasion proposed to him recognition of the Union,
Christman gave the curious answer, "Not to my knowledge." While such a guarded
answer might be justified where the witness is asked concerning matters that might
have occurred outside of his presence, no such justification exists here where the
question related to a matter necessarily within the witness' own knowledge. In view
of this, and as I was favorably impressed by Ackerman's demeanor, I credit him and
find that on September 23 and 25 Respondent again rejected specific requests for
recognition, and the only reason assigned for its action was that it preferred to have
no dealings with the Union, no reference being made to any doubt concerning its
majority status. I find therefore that on September 23 and 25, Respondent again
refused unlawfully to recognize the Union and that such unlawful refusal continued
thereafter.
I find further that by recognizing and negotiating with the Committee on and
after September 5 as the exclusive representative of its meat department employees,
among others, the Respondent further violated Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent violated Section 8(a) (1), (2), (3), and
(5) of the Act, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent, in violation of Section 8(a)(2) and (1)
of the Act, gave unlawful assistance to the Committee by recognizing and contracting
with it. Accordingly, it will be recommended that Respondent be ordered to with-
draw and withhold all recognition from the Committee, and to cease giving effect
to the agreement negotiated with it on September 5, 1963, unless and until the Com-
mittee is certified by the Board as the exclusive representative of Respondent's em-
ployees. However, Respondent will not be required to vary the terms and conditions
of employment established pursuant to such agreement.
CONCLUSIONS OF LAW
1. By interrogation, threats of reprisal, and offers of benefits designed to deter
their employees from adhering to the Union, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act, and has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
2. By promulagting and enforcing, through the transfer and discharge of em-
ployees, a rule against wearing union buttons while at work, Respondent has violated
Section 8 (a) (3) and (1) of the Act.
3. By requesting employees to furnish it with copies of the pretrial statements
given by them to a Board agent, Respondent has violated Section 8(a) (1) of the
Act.
4. By refusing to bargain with the Union, as the representative of its meat depart-
ment employees, Respondent has violated Section 8(a)(5) and (1) of the Act.
5. By interfering with the formation of, and contributing support to, the Com-
mittee, recognizing it as the representative of its employees, and negotiating with it
concerning terms and conditions of employment, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (2) and
(1) of the Act; and by such recognition and negotiation, in derogation of the status
of the Union as the statutory representative of the employees, Respondent has also
violated Section 8(a) (5) and (1) of the Act.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing findings of fact and con-
clusions of law, it is recommended that Respondent, Daylight Grocery Company,
Jacksonville, Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Meat Cutters, Packinghouse and Allied Food
Workers, District Union 433, affiliated with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or in any other labor organization of its
employees, by discharging employees, discriminatorily transferring employees to
different jobs and locations, or in any other manner discriminating against employees
in regard to hire or tenure of employment or any term or condition of employment.
(b) Coercively interrogating employees concerning their union membership and
activities.
(c) Threatening to shut down its stores and take other economic reprisals because
of its employees' union activities.
(d) Telling employees that it will never recognize or bargain with a union.
(e) Offering employees inducements to abandon their union activity.
(f) Forbidding employees to wear union buttons on Respondent's premises and
threatening employees with discharge for wearing such buttons.
(g) Requesting employees to disclose the contents of statements given by them
to Board agents in connection with a proceeding before the Board.
(h) Interfering with the formation of, and contributing financial and other sup-
port to, the Employee Committee or any other labor organization.
(i) Recognizing the Employee Committee as the representative of Respondent's
employees for the purpose of collecitrve bargaining, unless and until such Commit-
tee is certified by the Board as such representative.
(j) Giving any effect to the collective agreement negotiated with the Employee
Committee on September 5, 1963, or to any extension, renewal, or modi-
fication thereof.
(k) Refusing to recognize,or bargain with, the Meat Cutters, Packinghouse and
Allied Food Workers, District Union 433, affiliated with Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-CIO, as the exclusive representa-
tive of all its employees in the meat departments of its stores in the Jacksonville,
Florida, area, including regular part-time employees, but excluding guards and su-
pervisors as defined in the Act.
(1) In,any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form, join, or assist Meat Cutters,
Packinghouse and Allied Food Workers, District Union 433, affiliated with Amal-
gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any
other labor organization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right is affected by the provisos in Section
8(a) (3) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Withdraw and withhold all recognition from the Employee Committee as the
representative of any of its employees for the purpose of dealing with Respondent
concerning' grievances, labor disputes, wages, rates of pay, hours of employment, or
other terms or conditions of employment, unless and until the Board shall certify said
Committee as such representative.
(b) Upon request, bargain collectively with Meat Cutters, Packinghouse and
Allied Food Workers, District Union 433, affiliated with Amalgamated Meat Cutters
and Butcher Workmen,of North America, AFL-CIO, as the exclusive representative
of the employees in the aforesaid appropriate unit, with respect to rates of pay, wages,
hours of employment, or other terms or conditions of employment, and if an under-
standing is reached, embody such understanding in a signed agreement.
(c) Post at its stores in Jacksonville, Florida, copies of the attached notice marked
"Appendix." 32 Copies of said notice, to be furnished by the Regional Director for
321f this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
DAYLIGHT GROCERY COMPANY 745
the Twelfth Region, shall, after being duly signed by the Respondent, be posted
immediately upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, where notices to employees are customarily posted.
Respondent shall take reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the aforesaid Regional Director, in writing, within 20 days from the
date of the receipt of this Decision, what steps Respondent has taken to comply
herewith.33
83-In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the aforesaid Regional Director, in writing, within
10 days from the date of the Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Meat Cutters, Packing-
house and Allied Food Workers, District Union 433, affiliated with Amal-
gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as
the exclusive representative of the employees in the unit, set forth below, with
respect to rates of pay, wages, hours of employment, or other terms or condi-
tions of employment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
All employees in the meat departments of our Jacksonville, Florida,
stores, including regular part-time employees, but excluding guards and
supervisors as defined in the Act.
WE WILL NOT discourage membership in Meat Cutters, Packinghouse and
Allied Food Workers, District Union 433, affiliated with Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO, or in any other
labor organization of our employees, by discharging employees, discriminatorily
transferring employees to different jobs and locations, or in any other manner
discriminating against employees in regard to hire or tenure of employment or
any term or condition of employment.
WE WILL NOT interrogate employees concerning union membership or
activities.
WE WILL NOT threaten to shut down our stores or take other economic re-
prisals because of the union activities of our employees.
WE WILL NOT tell employees that we will never recognize or bargain with the
aforenamed labor organization or any other labor organization.
WE WILL NOT offer employees inducements to abandon their union activities.
WE WILL NOT forbid employees to wear union buttons on company premises
or threaten employees with economic reprisals for failure to remove said
buttons.
WE WILL NOT request employees to disclose the contents of statements given
by them to Board agents in connection with a Board proceeding.
WE WILL NOT interfere with the formation of, or contribute financial or
'other support to, the Employee Committee or any other labor organization, or
recognize such Committee as the representative of our employees for the pur-
pose of collective bargaining, unless and until such Committee is certified by
the Board as such representative.
WE WILL NOT give any effect to the collective agreement negotiated with the
Employee Committee on September 5, 1963, or to any extension, renewal, or
modification thereof.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form, join, or assist
Meat Cutters, Packinghouse and Allied Food Workers, District Union 433,
affiliated with Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, or any other labor organization, to bargain collectively,
through representatives of their own choosing, and to engage in other concerted
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities for the purpose of collective bargaining or other mutual aid or pro-
tection , or to refrain from any or all such activities , except to the extent that
such right may be affected by the provisos in Section 8(a) (3) of the Act.
All our employees are free to become or remain members of any labor organiza-
tion or to refrain from becoming or remaining members thereof.
DAYLIGHT GROCERY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Ross
Building, 112 East Cass Street , Tampa, Florida, Telephone No. 223-4623 , if they
have any question concerning this notice or compliance with its provisions.
National Screen Products Co. and Industrial Carpenters Union,
Local 530, affiliated with International Brotherhood of Car-
penters and Joiners of America , AFL-CIO. Case No. V1-CA-
5280. June 06, 1964
DECISION AND ORDER
On January 31, 1964, Trial Examiner David Karasick issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. The Trial Examiner also found that the Respondent did not
engage in other unfair labor practices alleged in the complaint and
recommended dismissal of these allegations. Thereafter, the Re-
spondent filed exceptions to the Decision and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following addi-
tions and modifications.
The Trial Examiner found, and we agree, that the Respondent dis-
criminatorily discharged employees Rodolfo Garcia and Humberto
147 NLRB No. 85.