Jay's Sparkle Market

National Labor Relations Board - Board Decisions

Jun 19, 1963

142 N.L.R.B. 1332 (N.L.R.B. 1963)

1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS
In most instances an employee's appearance as a General Counsel witness in a
Board complaint proceeding against an employer is in furtherance of activities on
behalf of the Union. In others he may be an unwilling witness under subpena, and
therefore possibly reveal himself as opposed to the Union. Section 8(a) (4) of the
Act makes it illegal to discriminate against an employee because he has "given testi-
mony under this Act." In distinction, Section 8(a)(3) proscribes discrimination
"to encourage or discourage membership in any labor organization." It follows that
before a finding of violation of Section 8(a)(3) can be made something more need
be shown on the record than the mere fact of the employee having given such testi-
mony. Restated: a violation of Section 8(a) (4) is not ipso facto also a violation of
Section 8(a)(3). In the case before me if the fact of Gillikin's having testified at
the November 7 hearing were excised from the record, there would be no affirmative
evidence whatever of any union activities by Gillikin, or, of necessity, of any knowl-
edge by the Respondent of such behavior. I cannot find, therefore, that the evidence
as a whole supports the complaint allegation that there occurred a violation of
Section 8(a) (3) on November 19 when Gillikin was sent home.
I also find that the evidence in its entirety, including those facts which tend to
favor the allegation of illegality urged in the complaint and those which offset the
proposed inference, does not satisfy the burden resting upon the General Counsel
to prove the case with a preponderance of the evidence. The most incriminating
fact appearing is that the Respondent decided to have Gillikin reexamined anew
only 5 days after he testified. While it is true his testimony was relatively innocuous,
he was at that time the beneficiary of the Company's largesse and the officers could
well have felt that his was an act of ingratitude, and therefore deliberately set out to
find a way to cut him off from the Respondent's generosity. It is still true, how-
ever, that he was in fact disabled, that the only medical evidence received shows
that his continued employment, even in so-called light work, would have made
possible permanent or more serious injury to his back, that others were sent for
examination by the company doctor at the same time, and that all this establishes
affirmatively, at least prima facie, a reasonable explanation of the Respondent's
actions. Of greatest significance, in my opinion, on the question of whether an
illegal motive may be inferred, is the total absence of any mention of dissatisfaction
or resentment by company representatives over Gillikin' s appearance as a witness
or any statement which might be construed, even indirectly, as revealing animosity
towards him for such conduct. And I also think it only fair, in this as well as
any unfair labor practice case , to consider the fact that of the many employees in
the plant the only one said to have suffered illegal discrimination at the hands of
the employer was not shown to be a union adherent at all; indeed , so far as this
record shows, he may have been completely indifferent to its success or failure.
I am unable to conclude, in the total circumstances, that the Respondent chose to
have him prove his claim for compensation through the regular channels of work-
men's compensation procedures because he gave testimony under the Act. Accord-
ingly, I shall recommend dismissal of the complaint in its entirety.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions , I recommend that the
complaint herein be dismissed in its entirety.
Jay's Food Center, Inc., d/b/a Jay 's Sparkle Market and Retail
Store Employees Union Local 880, AFL -CIO. Case No. AO-59.
June 19, 1963
ADVISORY OPINION
This is a petition filed on May 14, 1963, by Retail Store Employees
Union Local 880, AFL-CIO, herein called the Petitioner, for an
Advisory Opinion in conformity with Sections 102.98 and 102.99 of
the Board's Rules and Regulations, Series 8, as amended.
142 NLRB No. 142.
JAY'S SPARKLE MARKET 1333
On May 1, 1963, Meat Cutters' District Union No. 427, Amal-
gamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, herein called Meat Cutters, filed a motion for interven-
tion. Thereafter, on May 31, 1963, Philip Fusco, Regional Director
for the Eighth Region of the National Labor Relations Board, here-
in called the Regional Director, filed a motion for intervention setting
forth the jurisdictional facts developed in his investigation of the un-
fair labor practice charges in Cases Nos. 8-CP-47 and 8-CP-48, and
of the representation petitions in Cases Nos. 8-RM-352, 353, both
filed by Jay's Food Center, Inc., d/b/a Jay's Sparkle Market, herein
called the Employer. The motions of the Meat Cutters and the
Regional Director to intervene are hereby granted.
In pertinent part, the petition and interventions allege as follows :
1. The Petitioner is a labor organization affiliated with the Retail
Clerks International Association, AFL-CIO.
2. The Petitioner and Meat Cutters are defendants in an injunc-
tion action pending in the Court of Common Pleas of Lorain County,
Ohio, Case No. 67778, filed by the Employer. The petition in this
court action alleges that the Petitioner and Meat Cutters are peace-
fully picketing and threatening a boycott of the Employer's food
market; and that they have engaged in a conspiracy against the Em-
ployer and have maliciously interfered with the contractual relations
between the Employer and its employees, none of whom is a member
of the Petitioner or the Meat Cutters. Accordingly, the Employer
seeks a temporary and permanent injunction against such picketing.
3. The Employer, an Ohio corporation, is engaged in the retail food
business, operating a supermarket at 3817 Oberlin Avenue, Lorain,
Ohio, since April 1962.
4. All the Employer's sales are made locally within Lorain County,
Ohio. During the last 9 months of 1962 (April through December),
the Employer's gross volume of retail sales exceeded $600,000; while
during the first 4 months of 1963 (January through April), the gross
receipts exceeded $200,000. Although all of the Employer's pur-
chases of supplies and inventories were made locally from wholesalers
within the State of Ohio, a great majority of the products sold by the
Employer originated outside the State of Ohio.
5. On April 29,1963, the Employer filed with the Regional Director
unfair labor practice charges in Cases Nos. 8-CP-47 and 8-CP-48,
alleging that the picketing of the Petitioner and Meat Cutters was
in violation of Section 8 (b) (7) of the Act; and on April 30, 1963,
the Employer filed representation petitions in Cases Nos. 8-RM-352
and 8-RM-353, alleging that the Petitioner and the Meat Cutters
claimed to represent employees of the Employer. Thereafter, on
May 7, 1963, the Employer, without explanation, withdrew the charges
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and petitions, and on May 10, 1963, the Regional Director approved
this withdrawal.
6. As of May 13, 1963, the Court of Common Pleas had made no
findings with respect to the aforementioned commerce data.
On the basis of the above, the Board is of the opinion that:
1. The Employer is a retail enterprise operating a food supermarket
in Lorain, Ohio.
2. The current standard for the assertion of jurisdiction over retail
enterprises which fall within the Board's statutory jurisdiction is a
gross volume of business of at least $500,000 per annum.' As indi-
cated above, during the 1962 calendar year, the Employer' s gross
volume of retail business was in excess of $500,000; while, during the
first 4 months of 1963, the gross volume of business, if projected over
a 1-year period, would exceed $500,000.2 Thus, the Employer's vol-
ume of business meets the dollar-volume test in the Board's standard
for asserting jurisdiction over retail enterprises. Further, its pur-
chases of supplies and inventories originating from outside the State
of Ohio affects commerce under the Act and brings the Employer's
operations within the Board's statutory jurisdiction.'
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that, on the
allegations here present, the Board would assert jurisdiction over the
operations of the Employer with respect to labor disputes cognizable
under Sections 8, 9, and 10 of the Act.
1 Carolina Supplies and Cement Co., 122 NLRB 88; Great Leopard Market Corporation,
Inc., d /b/a King Jack's Foodarama , 140 NLRB 1154 ; City Line Open Hearth , Inc., 141
NLRB 799.
2 See City Line Open Hearth, Inc., supra , and cases cited in footnote 1 therein.
a N.L.R .B. v. Reliance Fuel Oil Corporation, 371 U.S. 224 ( 1963 ) ; City Line Open
Hearth, Inc., supra.
Melville Confections , Inc. and Local 329, United Service Em-
ployees Union, affiliated with Building Service Employees
Union , AFL-CIO. Case No. 13-CA-5142. June 20, 1963
DECISION AND ORDER
On April 12, 1963, Trial Examiner Leo F. Lightner issued his In-
termediate Report 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 Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the In-
termediate Report and a supporting brief; the General Counsel filed
a brief in support of the Intermediate Report.
142 NLRB No. 144.