King Jack's Foodarama

National Labor Relations Board - Board Decisions

Jan 29, 1965

150 N.L.R.B. 1384 (N.L.R.B. 1965)

1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of _ a Trial Examiner of the National LaborRelations Board , and in order to effectuate the policies of the National Labor Rela-tions Act, as amended , we hereby notify our employees that:
WE WILL NOT grant economic benefits to our employees in order to discourage
membership in or activity on behalf of Airline Supply Technicians Local Union
No. 172, International Brotherhood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization , provided, however, that
nothing in this Decision and Recommended Order requires us to vary or aban-
don any economic benefit which has heretofore been established.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named Union, or any other labor
organization , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain from any or all such
activities.
All our employees are free to become or remain , or refrain from becoming or
remaining , members of any labor organization of their own choosing.
MONTGOMERY WARD & CO., INCORPORATED,
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.
Great Leopard Market Corporation , Inc., d/b/a King Jack's
Foodarama and Amalgamated Food Employees Union Local
196, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO. Cases Was. 4-CA-2814 and 4-CA-
p851. January 29, 1965
DECISION AND ORDER
On October 3, 1963, Trial Examiner John H. Eadie issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Decision. The
Trial Examiner also found that the Respondent had not engaged in
another unfair labor practice alleged in the complaint. Thereafter,
the Respondent filed exceptions to the Decision and a brief in sup-
port thereof; the General Counsel filed cross-exceptions to a portion
of the Trial Examiner's Decision with a supporting brief, and a
brief urging adoption of the remainder of the Trial Examiner's
Decision. Thereafter, while the Board was considering the matter,
150 NLRB No. 134.
KING JACK'S FOODARAMA 1385
a stipulation relating to Respondent's closing of its retail grocery
market involved herein was received from the General Counsel,
Respondent, and the Charging Party.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case, including the Trial Examiner's Decision,
the exceptions, cross-exceptions, briefs, and the stipulation, and
hereby adopts the Trial Examiner's findings, conclusions, and rec-
ommendations, as modified herein.
1. We agree with the Trial Examiner's findings as to Respond-
ent's violations of Section 8(a) (1).1
2. We adopt the Trial Examiner's Section 8 (a) (3) findings,
including his dismissal of the complaint as to Peters. Although the
conduct of Paul and Coopersmith in issuing contradictory orders to
Peters and then discharging her for failing to obey one such order
is open to the suspicion that the assigned reason for the discharge
was pretextual, we are persuaded that Peters' own aggressive atti-
tude in confronting Coopersmith may have prompted him into
impulsively discharging her on the spot.
3. As the Trial Examiner has credited the denials of the strikers
that they had engaged in the name-calling and kicking testified to
by some of the nonstrikers, we need not consider the Trial Exam-
iner's dictum that the strikers' conduct, even if proved, was not
sufficiently serious to warrant denial of reinstatement.
THE REMEDY
After the issuance of the Trial Examiner's Decision, the General
Counsel, Respondent, and Charging Party entered into a stipulation
to the effect that Respondent is no longer in the retail food busi-
ness, having sold the stock and fixtures and leased the premises
involved in this proceeding to an independent operator who did not
assume any of Respondent's liabilities or debts. The transfer to the
new purchaser and lessee became effective February 1, 1964, at
which time, or shortly thereafter, he began operations with most
1 Respondent contends , inter alia, that its interrogation of, and " threats to, Robert
Stanley are not violative of the Act because Stanley was a supervisor . It appears that
Stanley was a truckdriver and that Respondent permitted him some say as to who would
be his helper when a helper was needed. Despite Stanley's testimony that he could hire
his helper , it is apparent that his role in the hiring process was limited to suggesting
someone he would be satisfied with, and that his suggestions were tentative, requiring
approval by someone with more authority.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent's former employees. However, the decision as to
which of these employees were to be hired was left to the new opera-
tor. In these circumstances, we find that Respondent's successor has
no obligation to remedy Respondent's unfair labor practices? Fur-
thermore, since Respondent is no longer engaged in operating retail
food markets, it cannot offer the discriminatees the same or sub-
stantially equivalent employment that they had before the commis-
sion of the unfair labor practices. These changed circumstances
require revision of the recommended remedy proposed by the Trial
Examiner. lVe therefore make no provision in our Order for an
offer of reinstatement, and affirmatively, we provide for restitution
of backpay only to the date on which Respondent may have made
a proper offer of reinstatement to each employee prior to Feb-
ruary 1, 1964, the date when Respondent ceased operating its only
retail food market. Respondent is not obligated to reimburse the
discriminatees and unfair labor practice strikers for any loss of pay
incurred after February 1, 1964.
As it no longer has an establishment where notices may be seen
by its former food market employees, we shall as a substitute for
our usual posting provision require Respondent to mail a copy of
the Appendix to each discriminatee and to each employee employed
by it prior to the discontinuance of its food market operations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts, as its order, the Order rec-
ommended by the Trial Examiner, and orders that the Respondent,
Great Leopard Market Corporation, Inc., d/b/a King Jack's Food-
arama, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, with
the following modifications :
1. Substitute the following for paragraph 2(a)
"Make the following employees whole in the manner set forth in
the section of the Trial Examiner's Decision entitled `The Remedy,'
as modified in The Remedy section of this Decision and Order.
"John Corbin Cathryn Snyder Louise Jenkins
John Dineen ' Margaret M. Woyda Richard Deighan
Robert Stanley Albert Woerner Thelma King"
2. Substitute the following for paragraph 2(c)
"Mail to each of the above-named employees and to each employee
whom it employed at its Chester, Pennsylvania, retail food market
on the date it discontinued its operations there, a copy of the
attached notice marked `Appendix.' Copies of said notice, to be
2 Symns Grocer Co., and Idaho Wholesale Grocery Co., 109 NLRB 346.
KING JACK 'S FOODARAMA 1387
furnished by the Regional Director for Region 4, shall, after being
duly signed by the Respondent's authorized representative, be sent
to each employee at his last known address."
3. Delete paragraph 2(e) and substitute the following':
"IT IS FURTHER ORDERED that the complaint, insofar as it alleges
the discriminatory discharge of Jean Peters, be, and it hereby is,
dismissed."
4. Make the following changes in the Appendix :
(a) The heading is to read: 3
"NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER"
(b) The fourth full paragraph prior to the list of names is to
read :
WE WILL make the following employees whole for any loss of
pay suffered as a result of the discrimination against them :
(c) Delete the Armed Forces notice.
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on December 18, 1962 , and on January 3, February 4, and
April 22, 1963, the General Counsel of the National Labor Relations Board issued
a consolidated complaint dated May 22, 1963, against Great Leopard Market Corpo-
ration, Inc., d/b/a King Jack's Foodarama , herein called the Respondent, alleging
that the Respondent had engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and ( 3) and Section 2(6) and (7) of the National
Labor Relations Act, as amended, herein called the Act. The Respondent filed an
answer on or about June 3, 1963, in which it admitted the jurisdictional allegations
of the complaint but denied the commission of any unfair labor practices.
A hearing was held before Trial Examiner John H. Eadie at Media , Pennsylvania,
from July 8 to 11, 1963, inclusive. After the conclusion of the hearing, the General
Counsel and the Respondent filed briefs with me.
Both from the entire record in the case, and from my observations of the wit-
nesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation with its principal office and place
of business located in Chester, Pennsylvania , where it is engaged in the retail grocery
business.
During the year 1962 , the Respondent made sales of groceries, fruits, vegetables,
and meats in excess of $500 ,000. During the same year, the Respondent purchased
merchandise valued in excess of $50 ,000, which it received directly from points out-
side the Commonwealth of Pennsylvania.
The complaint alleges, the Respondent 's answer admits, and I find that the Respond-
ent is engaged in commerce within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Amalgamated Food Employees Union Local 196, Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO , herein called the Union , is a labor
organization which admits to membership employees of the Respondent.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE UNFAIR LABOR PRACTICES
A. Sequence of events; interference, restraint, and coercion
Jack Coopersmith is the president of the Respondent; his son, William Cooper-
smith, is vice president and general manager; and William Paul is the Respondent's
store manager . At the times mentioned herein, Solomon Benjamin Mishkin and
Phillip Blessington were the produce and meat department managers, respectively.
During the early part of November 1962, Mishkin and Blessington solicited employ-
ees in their departments to sign authorization cards of the Union. By letter dated
December 3, 1962, the Union notified the Respondent that it represented a majority
of the employees and requested a meeting for the purpose of negotiating a contract.
On December 4, Leroy Straub, president of the Union, went to the Respondent's store
and met with Jack Coopersmith.
On December 8 Blessington was called to the office of Jack Coopersmith. He told
Blessington , "Before I'd have a union in here, I'd put a key in the door and give
everything in the store away to charity." Paul and Mishkin were then called to the
office. In substance, Coopersmith told them that he had "heard all about the union";
that he did not see any need for it; and that rather than have the Union in the store,
he would "concession out all the departments." He then said, "Now the three of
you get a backer and I'm going to put you all in business .... It [sic] going to be
concessions .... I want you to go back to the help, what help will stay with you,
and tell them to have nothing to do with the union." Paul ended the meeting by
instructing Blessington and Mishkin to tell the employees under them that if they
joined or voted for the Union, they would be discharged. That same day Blessington
and Mishkin, as directed, told the employees in their departments that if they joined
the Union or engaged in further union activity they would be discharged. It is found
that the threats of reprisal made by Blessington and Mishkin constitute interference,
restraint , and coercion.
After the above-mentioned meeting Jack Coopersmith spoke to Margaret Paul, a
cashier and wife of William Paul, in the presence of employees Louise Jenkins and
Jean Peters. He told her that the Union wanted him to discharge her husband and
said, "The day I let anybody come in here and tell me who I can hire or who I can
fire, I'll put the key in the lock and close it up."
After Straub's visit to the store and during December, Jack Coopersmith on more
than one occasion made announcements to employees and customers over a loud-
speaker. He stated, in substance, that he was going to close the store and make a
"night club" or a "gambling casino" out of it; that the Union was not going to tell
him how to run the store; and that the female employees could be "dancing girls."
On December 15 Coopersmith announced on a loudspeaker that his employees were
"going to go out on strike on December the 18th"; I that he did not care as he would
"just close up the store and move it to Puerto Rico"; that the store had never had a
union and never would have one; and that the "people" should all vote for him as
he was going "to throw these groceries and produce out" and open "a nightclub"
with "dancing girls."
It is found that the above statements of Coopersmith were threats of reprisal because
of the employees' union activity and that such conduct was violative of the Act.
On or about December 5 William Paul had a conversation with employee Albert
Woerner. Paul asked him why the employees in the meat department wanted the
Union. Woerner answered that the employees wanted better working conditions.
When Paul asked him if he had signed a union card, Woerner admitted that he had.
On or about December 11 Paul asked employee Thelma King if she had heard
"any rumors going around the store about a union trying to get in." He also ques-
tioned her as to her "feelings" about a union.
It is found that the above interrogation by Paul constitutes interference, restraint,
and coercion.
Margaret Mary Woyda 2 was employed in the meat department. She signed an
authorization card of the Union on December 1 and during the next week solicited
other employees to sign cards. On December 10 William Paul transferred Woyda
to the yard outside the store where the Respondent was selling Christmas trees. He
told her, "I want you to go home and get boots on .... You're going to be out in
the tree-yard .... I'm sending you out there to mind the trees." The only shelter
for Woyda was a small building "like a little telephone booth" which did not have
1 As will be related hereinafter, the Union held a meeting on the above date
Woyda is at times. referred to in the record as "Mickie "
KING JACK'S FOODARAMA 1389
any heat. About six male employees were working in the yard "putting lights and
fixing the fence." Concerning her first day of work in the yard, Woyda testified with-
out contradiction,
I was out there until maybe 2.30, quarter-to-three, I think. And I had not been
relieved to go to the ladies' room or to eat lunch. So I sent somebody in to ask
them. So finally they relieved me. I went back in and I continued to go back
to the Meat Room where I had my pocketbook and put my lunch. And Bill
Paul said to me, "Where are you going?" I said, "I'm going back to the Meat
Department, to eat; that's where I eat everyday." So he said, "No, you're not;
you're going the hell out of the door," he said. And he said, "I mean out the
door." He said, "I don't want to see your face in here again; only when I tell
you to come in."
The clothes I had on, I couldn't go uptown to eat in a restaurant. So I sat
outside on a piece of stone and ate my lunch ....
It was freezing.
Woyda worked in the tree yard through December 15. An oil stove was put in
the booth for the male employee who worked in the yard at night. Although the
weather was "freezing," Paul came out to the yard with employee Norman Williams
and directed him to remove the stove. Woyda testified credibly,
When I was working inside in that like little telephone booth I was very sick
that day when I came into work. Mr. Paul could see. He.even mentioned that
I didn't feel good when I went to punch in, so later in the day he hadn't sent me
to the lunch, hadn't sent me to the bathroom or nothing, so I kept asking people
to go in, you know, as they would come by on their lunch, I'd say would you go
back to ask him just to send me to the ladies' room, if not lunch.
Well, he made me wait about an hour before he sent somebody out after I told
him I was sick and then he made me come in about an hour earlier the next day.
On December 12 or 13 when employee Barbara Fuller was sent out to the yard
to occupy the booth, the heat was put back. Woyda was assigned to selling trees.
Although three male employees were present, she was required. "to hammer the
stands on" and tie the trees.
On Saturday, December 15, Woyda was notified of her transfer, effective Decem-
ber 17, to a location at "Front and York" in Philadelphia where the Respondent was
selling Christmas material. In this connection Woyda testified credibly,
Well, Saturday when I came in Bill Coopersmith and Bill Paul were talking and
Bill Paul said to Bill Coopersmith, "You tell her" and Bill Coopersmith said no,
he tell me, so then Bill Coopersmith decided to tell me and he said, "You're
going to be transferred to a place that's going to be two degrees warmer than
what it is where you're working now." Then he bust out laughing.
On December 12 Paul notified Mishkin that he was being transferred to, the
Respondent's store at Front and York in Philadelphia. Later that same day Jack
Coopersmith told Mishkin that the reason for his transfer was that the Respondent
was opening its "Christmas tree store" and that the "best man" was always sent to
take charge of that store "for the Christmas holiday." Mishkin's transfer'was effec-
tive December 13.
During the morning of December 13, employee Louise Jenkins, Woyda's mother,
told employee Mary Regish that Mishkin "thinks you sold him down the river."
Regish went to the front of the store and brought back William Coopersmith to the
produce department, telling him, "people around here think I squealed on Ben."
Coopersmith then told the produce employees, "Ben Mishkin is in Philadelphia
because we needed a good worker up there and we picked him." Regish stated, "He's
in Philadelphia because he shot off his big mouth up'in the office Saturday." Cooper-
smith then told the employees that no one had to vote for the Union "unless they
wanted to," and that Regish would be in charge of the produce department "until
Ben got back."
During the morning of December 14 Jenkins had a conversation with Regish. She
advised Jenkins that she and Woyda should go to Jack Coopersmith and tell him that
Woyda was under pressure from her boss, Mishkin, when she signed a union card
and solicited others to sign, and that they both were renouncing the Union as they
needed their jobs. Jenkins replied that she andWoyda were going to stay with the
Union.3 Later that same day Jenkins was transferred to the Philadelphia store by
8 Jenkins signed a union card on November 9, 1962.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Coopersmith. About this same time Jack Coopersmith told Robert Stanley,
the Respondent's truckdriver, "I got rid of the organizer . . . I'm sending Ben up to
the Philadelphia store and Louise Jenkins, Siberia, the point of no return ... I won't
have any trouble with union activity now."
Mishkin, Jenkins, and Woyda were stationed at the Philadelphia store through
December 24. It is undisputed that the store was an old building without a front or
heat. I find that Woyda was transferred to the Christmas tree sales yard and that
later Jenkins and Woyda were transferred to the Philadelphia store in reprisal for
their union membership and activity and that such conduct was violative of Section
8(a)(3) and (1) of the Act.
Employees John Corbin and Albert Woerner were discharged on December 12
and 14, respectively: The employment of Jean Peters was terminated on December 15.
On December 17 Jack Coopersmith had a conversation with Robert Stanley.4 He
asked Stanley if he was a member of the "Teamsters." When Stanley replied that
he was not, Coopersmith said, "Will you go through the picket line if they strike on
me." Stanley answered, "I will not." Coopersmith closed the conversation by stating,
"I'll pick up a scab driver off the street and put him on the truck."
On December 18 approximately 30 employees were called individually to the
Respondent's office where they were questioned by Garland D. Cherry, the Respond-
ent's attorney. Jack and William Coopersmith were present. At the outset Cherry
introduced himself and stated to each employee, "A demand has been made upon
us by a union alleging that they represent the majority of the employees. We do not
know whether they do or they don't, and we would like to ask you certain questions
concerning that, particularly whether or not you have authorized a union to represent
you. If you have any objections to discussing this matter and answering any ques-
tions, you may turn around and walk out of here and no conclusions will be drawn
in any way, one way or the other. If you do answer the questions, it won't make any
difference, either. I leave it entirely up to you." He asked each employee if he or
she had signed an authorization card of the Union and to name the person who had
distributed the card. He asked employee Cathryn Snider why she thought the store
needed the Union, and if she "still wanted a union to come into the store." Referring
to Snider, Jack Coopersmith said, "She's the one, she's the girl that was sent down
by the union to organize the store." Cherry asked substantially the same questions
of employee Thelma King. He also asked her if she had received "any notice about
a union meeting." When he questioned her as to her views on the Union, she com-
plained that female employees who were hired after her received higher wages than
she did. At this point William Coopersmith remarked, "Well, the pieces are falling
in." Cherry asked employee Dorothy Given if she was going to attend the union
meeting. When asked by Cherry, employee John Dineen stated that Blessington had
given him the union card. Cherry then asked him if he had read the card and if
Blessington had forced him to sign it. Cherry also asked Dineen if he was going to
attend "that meeting tonight." After Dineen had given his reason for being in favor
of the Union, Cherry said, "What if I told you everybody in the store was against the
union? What would you do then?" William Coopersmith asked Dineen if the union
card that he had signed was "white or pink." Cherry asked employee Mary Cav-
anaugh if she had "received a letter from the union" and if the union card she had
signed was white or pink.
The Respondent contends that, having doubts about the Union's claimed majority,
it engaged in the above interrogation in an effort to ascertain whether or not the
Union represented a majority of the employees; and that such interrogation was not
violative of the Act since it did not tend to restrain or interfere with the employees
in the exercise of their rights under the Act. This contention is rejected. Taking into
consideration all of the circumstances, I find that this conduct was violative of Section
8(a)(1) of the Act.
Employee Richard Deighan, 18 years of age, came to the United States from Ire-
land during October 1962, and was not a citizen of the United States at the times
mentioned herein. He was hired by the Respondent on December 3, 1962, and
worked in the grocery department. He was one of the employees questioned by
Cherry on December 18. That same day Deighan had a conversation with Paul.
Paul asked him what had been said to him "upstairs." Deighan replied that he had
been asked if he was going to join the Union and that he had answered, "Yes." 6 Paul
* Jack Coopersmith did not appear as a witness at the hearing. Stanley testified
credibly that shortly before November 15, 1962 , he discussed his "arrest record" for
"burglary" with Coopersmith, and that Coopersmith ended the conversation
by saying,
"It doesn't make any difference to me, it's what you do now that counts."
5 Deighan signed a union card on December 14.
KING JACK'S FOODARAMA 1391
then said, "You know, you 're not a citizen . You know if you join this union, you
can be deported ." 6 I find that Paul's threat of reprisal was violative of Section
8(a)(1) of the Act.
The Union held a meeting during the evening of December 18. Some of the
employees spoke at the meeting , telling of their discharges and of the Respondent's
interrogations and threats of reprisal . Although the employees indicated that they
wanted to strike , Straub dissuaded them by pointing out that a meeting between the
Respondent and the Union was scheduled for December 21 and that the Respondent
should have "a fair opportunity to rectify the unfair practices ." It was decided that
the decision of whether or not to strike was to be left to the discretion of the Union's
officers.
On December 19 Jack Coopersmith had a conversation with ' Stanley at the. food
distributing center in Philadelphia . Coopersmith said, "You were at the union meet-
ing, wasn 't you?" When Stanley admitted that he had attended the meeting , Cooper-
smith said, "I'm going to get my buddy [police] Captain Rizzo down here to reopen
your case and put you away." 7 He then said to a salesman who was standing nearby,
"The Meat Cutters are organizing truck drivers now in the union .... They're going
to be out with the rest of the bums selling apples on the corner." Stanley walked
away and Coopersmith followed him to his truck . Then mentioning Deighan, Cooper-
smith said , "Another thing I want to tell you , I'm going to find out how that little
Irish got in the United States in the first place." He then repeated his threat
to have Stanley's arrest case reopened and have him "put away " and stated that he
was going to "pick up a scab driver off the street" and "fire" Stanley.
I find that the above interrogation and threats of reprisal by Coopersmith were
violative of the Act. -
Some few days after December 18 Jack Coopersmith was at the Philadelphia store.
He offered to drive Woyda to her home and she accepted . They stopped to get some-
thing to eat . Speaking to the woman who operated the establishment and in the
presence of Woyda, Coopersmith said, "I bet she [Woyda ] doesn 't know that I know
that her and her mother [Jenkins ] went to that union meeting the other night ....8
I had a full report at my hotel at 12 : 00 o'clock . .. A woman from the union
called up and told me everything that went on at the meeting." 9
By the above remarks Coopersmith gave the impression of surveillance of the
union meeting . Since the Respondent had made threats of reprisal and had engaged
in acts of reprisal because of the employees ' union membership and activity , his state-
ment clearly was calculated to have a coercive effect on Woyda. I find that this
conduct of Coopersmith was violative of Section 8 (a) (1) of the Act.
Deighan attended the union meeting held on December 18. Due to an accident
he, was off from work for 2 days . When he reported for work on December 21, Paul
asked him what he had told "the union man at the meeting." Deighan replied , "I told
him you told me I could be deported if I joined the union ." Paul, then using vulgar
language, called him a "liar." I find that .Paul's interrogation was violative of the
Act.
The Respondent held a Christmas party for its employees on the night of Decem-
ber 24. Jack and William Coopersmith were present . Jack Coopersmith spoke to
the employees . He told them that he was "for unions" but did not - want a union in
his store ; that he had "three schmucks" ( Mishkin , Jenkins, and Woyda) coming to
the party from the Philadelphia store; and that there were "two fellows [Stanley and
Parrish , his helper] sitting in here now in this room that's been arrested for burglary
and if they don't stop with union activities they're going to be put away ." Either
O The above conversation is based upon the credited testimony of Deighan. Paul
claimed that he had not threatened Deighan with deportation and testified:
I advised him that with my experience in some union activity, that sometimes trouble
develops on these occasions, and that inasmuch as he was very new in the country
if he got into any kind of trouble that would be rather hard on him to receive
citizenship if he got into any scraps with the law. That was the only thing that
I ever suggested to him or gave opinions of.
7 As related above, Stanley had been arrested for burglary.
8 Woyda and Jenkins attended the union meeting on December 18.
9 During the morning of December 19 Coopersmith called Mishkin at the Philadelphia
store and made substantially the same statement to him. Since it is undisputed that
Mishkin was a supervisory employee, I make no finding in this connection.
775-692-65-vol 150-89
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jack or William Coopersmith turned and looked at Stanley and Parrish and said,
"There's two sitting in this room now that ought to be put in cement blocks ... and
dropped over the river." 10
It is found that the above threats of reprisal constitute interference, restraint, and
coercion.
About 6:30 a.m. on December 28 the Union commenced to picket the Respondent's
store. On January 7, 1963, the Pennsylvania Common Pleas Court in Media issued
an order enjoining all picketing.
B. The discharge of John Corbin
The Respondent's store "reopened" on November 15, 1962. Prior to that time
the Respondent had in its employ about eight laborers, including James Carey ^ and
John Corbin, who were engaged in construction work. Carey was employed for
about 11 years as a "maintenance man."
Corbin was hired by the Respondent on or about October 29, 1962. He was paid
at the rate of $1.25 per hour. He testified credibly that he was hired by Carey as a
"maintenance" man, and that Carey was a working supervisor who told him and other
laborers what work to do 11
Shortly before November 15 Corbin helped Stanley "hauling trash and lumber
down to the dumps." Stanley asked Jack Coopersmith if he could have Corbin as
a helper on his truck. Coopersmith replied, "No because I'm going to put John
Corbin in steady in the Meat Department."
On or about November 15 Corbin was transferred to the meat department as an
"apprentice." He helped to cut meat and to grind beef, cut up chickens, "took in
orders," received merchandise, cleaned up, and helped to take meat to the display
counters.
Corbin signed a union authorization card on November 29 and later solicited
another employee to sign one. Early in December, Paul came to Corbin and asked
him if anyone had approached him about the Union. Corbin replied, "Yes, . . . while
I was unloading a Memphis truck, ... two men asking me about the union, asked me
would I join the union." Paul then asked him if he had joined the Union. Corbin
answered, "Not at the time, I didn't." Paul then asked him if the two men were
present in the store and if they had spoken to other employees. I find that Paul's
interrogation of Corbin was violative of the Act.
About a week after the above conversation Corbin was transferred back to main-
tenance. Paul told him at the time that he could not use him in the meat department
any longer as "business is slow" and that he should report to Carey.12 When Corbin
asked Blessington about the transfer, Blessington told him that it was "mostly account
of the union'! and that he should not worry about it as it would be "straightened out."
Corbin reported to Carey and helped him make the yard ready for Christmas trees.
Within a day or two Corbin had a conversation with Carey about the Union in the
presence of employee Norman Williams. Concerning this conversation, Corbin tes-
tified as follows:
And he comes up to me and he says, "John, I want to talk to you before you go
home." So I says, "All right." So, quitting time, I was walking up to him, .. .
he says, "John, I hear you joined the union." So I says, "The Union? Who
told you?" . . . He said, "what's this I hear about the union?" And I says,
"I don't know what you mean." So he says, "How come nobody asked me to
join the union?" He says, "Anybody ever approach you to join the union?"
And I told him, I said, "Yeah," and then he started getting kind of personal
asking, so I asked him, "Just what's this? A Coopersmith or something?" And
he says, "No, I just wanted to know why nobody had asked me. 13
Carey also told Corbin at this time that he might have to lay him off.
10 Stanley testified that William Coopersmith made the above statement.
Deighan
testified it was made by Jack Coopersmith. _
11 Mishkin testified that Carey was "head maintenance man" who "was in charge of
the construction crew during the renovation of the building." Carey denied that he had
hired Corbin, and testified that he did not remember if he had "talked to Corbin first"
before he was hired. Carey was paid at the rate of $85 for a week of 5 days.
12 On December 18, 1962, the Respondent placed an ad in the Daily Times of Delaware
County for "Full or part time Boys and Alen for general clerk duties."
's Carey denied that he at any time talked to Corbin or any other employee about the
Union . His denial is not credited.
KING JACK'S FOODARAMA 1393
Immediately after the above conversation, Carey entered the store and went to
where Paul and Jack and William Coopersmith were standing. Carey told them,
"He don 't seem to know anything about the union."
The next morning, December 12, Corbin and the other maintenance employees
worked for a short time and were sent home by Carey, who told them that it was
"too cold" for work and that they should "come back tomorrow." Corbin returned
the following day and was told by Carey that there was no work available for him.
Either on December 13 or 14 Carey told Corbin that he was discharged for the reason
that he was "causing too much paper work" because of advances on his pay.
I credit the above testimony of Corbin. Carey testified to the effect that Corbin
was not transferred back to maintenance, and that insofar as he knew Corbin was
in the meat department until the strike.14
I find that Carey was a supervisory employee within the meaning of the Act.
Accordingly, I find that Carey's interrogation of Corbin concerning the Union was
violative of Section 8 (a) (1) of the Act.
The Respondent contends that Corbin was hired as a temporary employee on con-
struction work and that he was let go when the work ran out 15 Concerning the rea-
son why Corbin was transferred out of the meat department, William Coopersmith
testified as follows:
Mr. Corbin and the other construction workers were transferred inside during
the opening two weeks to give them a hand on lugging. We had no meat refrig-
eration and storage back there and these laborers that were on the construction
work were transferred inside the store to get us over our opening hump , lugging
material around, unloading trucks, or things of that nature and they were then
put back on construction after we got over the opening.
It may be that some of the construction workers were used in the store temporarily
after the opening for unloading trucks and "lugging material around ." But the credi-
ble evidence shows that Corbin was transferred to the meat department as a regular
employee. For example, he cut up chickens, wrapped meat, and helped to grind
hamburger. Since there is no proof that the meat department was overstaffed,16
I am forced to conclude and find that Corbin was transferred out of the meat depart-
ment because of his union membership and activity. It follows and I find that his
discharge on December 12, 1962, was in violation of Section 8(a) (3) and (1) of the
Act.
C. The discharge of Albert Woerner
Woerner was hired during the week ending November 17, 1962, as a meatcutter
at a salary of $85 per week. Later his salary was raised to $95 a week. He signed
a union card on November 29, 1962. His conversation with Paul on or about Decem-
ber 5, during which he admitted signing a union card, has been related and found
above.
On November 24 Woerner became intoxicated during working hours. Blessington
took him to the back of the store where he slept for "about an hour and a half."
Woerner later went to Paul and apologized for being intoxicated. Paul told him not
to let "it happen again." Woerner was not disciplined for the incident.
On or about December 12, Woerner was scheduled to report for work at 9 a.m.
When he did not report , Blessington sent employee Puzzanchera to Woerner's home
to get him . Puzzanchera returned with Woerner about 9 : 45 a.m . Blessington met
Woerner in the front of the store. Woerner called attention to the fact that his time-
card was not in the rack. Blessington told him to go to work and that he would take
care of his time. Woerner put on his frock and went to work.
About 15 minutes later Blessington was called to the office. William Coopersmith
and Paul were present. Coopersmith told Blessington, "Send Al Woerner home and
tell him to get a good night's sleep so he'll be on time for work tomorrow."
Coopersmith also said that he had never had "any trouble with employees until
now"; that they were treating him like "a son-of-a- "; and that he was going
to treat them the same way, "just like the they are." Blessington then went
to Woerner and told him to go home but to report for work the next day.
14 The testimony of William Coopersmith, although he was evasive on this subject, was
that Corbin was "put back on construction after we got over the opening."
'5 Corbin admitted that "at the beginning" of his employment William Coopersmith told
him that he would try to get him a job at Sun Ship when the construction work was
completed.
mBlessington testified without contradiction that "Phil Puzzanchera had been put in
place of John Corbin."
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Woerner reported for work on December 14,17 his timecard again was not
in the rack. Since Blessington was not present , he reported to Paul . Paul told
Woerner that he was discharged for "being late and intoxication ." Woerner waited
for Blessington and told him of his discharge . Blessington then asked Paul why he
had discharged Woerner. Paul said that Woerner did not fit "into the program" and
did not have "the right attitude."
Woerner returned to the store on December 14 in order to get his pay. He met
Jack Coopersmith who told him to return on Saturday and that he would talk to him
then. Woerner returned to the store on Saturday but was told in the office that Jack
Coopersmith was busy. When Woerner left the store employee Norman Williams
followed him and told him to stay away from the store . Woerner asked him who
had sent him . Williams replied that it was none of his business . Woerner then
reentered the store and told Blessington that he had been threatened . At this point
Jack Coopersmith appeared . Blessington explained to him what had occurred.
Coopersmith said that Williams did not work for him and that he did not know
Williams. Blessington replied , "You certainly do; he was back here throwing trash
out twenty minutes ago ." Coopersmith then asked Blessington to see "that Al gets
home safely."
The following week Woerner returned to the store . He told Blessington that
Straub had sent him back to go to work. Blessington put him to work. Paul then
had a conversation with Blessington and Woerner . Paul said that Woerner could
not return to work until he apologized for calling him a "son-of -a- " and for
stating that he (Paul ) had sent Williams out after him .ls Blessington urged Woerner
to apologize . Woerner refused to apologize , saying, "This man owes me an apology."
Blessington then said, "Look, we're not kids; let 's straighten it out ." Paul answered,
"No, sir, this man don't go to work because Roy Straub said so or anybody else ....
Until this man apologizes to me, he does not work."
The above findings are based upon the credited testimony of Blessington and
Woerner. In its brief the Respondent states that Woerner was discharged "because
of his alcoholism ." Paul, who did not impress me as a credible witness, testified
"[Woerner] would come in late in the morning . . . . I would say intoxicated, and
then days when it went a little more than intoxication . . . . It was an every day
occurrence ." Concerning Woerner's termination of employment , Paul was questioned
and testified as follows:
Q. After that , did you have any difficulty with Mr . Woerner drinking?
A. Well, I guess it was the day after Thanksgiving , he had come in and was
still under the influence of liquor, and he was late that morning about a half an
hour late, if my memory is correct , and I think, if I recall correctly , he walked
forward to Mr. Coopersmith to more or less apologize for being late, and I
think he asked him why he was late. He said he celebrated Thanksgiving a little
bit too much ; so there was no reprimand to him because you couldn't talk sensibly
to him at that point.
Mr. Coopersmith did tell him to go home for a few hours and finally he would
sober up and come back.
Q. Did Mr. Woerner leave?
A. He left and he did come back in a couple of hours, .but he was worse than
the first time, he could hardly stand up.
Q. Were you present when he came back?
A. Yes, I was.
Q. And will you tell us what happened when he came back?
A. Well, he became quite abusive with his language at that point.
Q. With whom or to whom9
A. Well, anyone that wanted to listen to him, no particular person.
Q. And what happened after he came back and after he began to use this
language9 Did he go to work?
A. Well, we told him-rather, I think I told him myself that he wasn 't in any
fit condition to work, so he would have to go home until he sobered up.
Q. Did he leave again?
A. Yes, he left again.
17 Woerner's timecard indicates that he did not report for work on December 13. The
record is not clear in this connection , as the testimony of Blessington and Woerner
indicates that Woerner was discharged the day following the one when he was late for work
However , the Respondent does not contend that he was discharged for absenteeism.
's Woerner admitted that he had made this charge against Paul
KING JACK' S FOODARAMA 1395
Q. When did you next see Mr. Woerner?
A. Well, he-I think the next time I saw him was on the picket line.
William Coopersmith testified to the effect that Woerner was not discharged but
quit. As to the reasons for Woerner's termination of employment, Coopersmith
testified as follows:
I don't think that there was a day that he didn't show some effects of alcohol,
in one way, shape or form, or another. In any, event, he came in late several
mornings in a row. And one morning, Mr. Paul said to me, "I've just about had
it with Mr. Woerner, he's late again, and I can't run the store like that."
I said to him, "Well, Bill, if he comes in today at all, just tell him we don't
need his services anymore." In any event, he came in approximately a half hour
later, and bleary-eyed, walked in, I was standing there, his speech was incoherent,
and he was told-we didn't tell him at that time that he would be laid off, he was
told to go home and sleep it off. And a few hours later, in came Mr. Woerner
into the market again, and, at that time, I was engaged in a conversation with the
chief inspector of, I believe, for the Lancaster Department of Underwriters in
Pennsylvania, we were going over our electrical plant, my father was standing
about five feet away and Woerner, was completely out this-time, he kept-he was
visibly and definitely intoxicated, and he just interjected himself in the meeting
that was going on, the discussion between me and the electrical inspector. And I
attempted to pacify him by telling him to take it easy, and so forth and so on.
And then he became so boisterous that my father walked over. And he started
screaming at my father at the top of his lungs.
In any event, my father said to him, "Go home. Sleep the thing off, and when
you get over it come in and see me." And there, again, I believe that Woerner
would have had his job if he had just been halfway decent about it. And we
• didn't see him again after that at any given time, he was never fired. That was
the end of Woerner that morning.
Jeanette Taylor worked as a meatwrapper in the meat department. Concerning
Woerner's drinking, she testified,
Around 9:00 o'clock in the morning, and Mr. Woerner would be there. And I
noticed that he had been drinking because I was working light alongside of him
and could smell it. And then, later during the day, he'd be staggering around
the place and sit down, and sometimes he'd go to sleep back there.
She testified that this occurred "back in the meat room .... Several times, at least two
or three times a week." -
Woerner testified that he was not intoxicated on the morning that he was late for
work; that he thought that he had been drinking the night before; that quite a few
times he drank the night before he was scheduled to work; that on several occasions he
drank during his lunch period; that "once or twice" during work he drank in the "back
room" of the meat department; and that he did not "believe" that he did any drinking
on the premises after Thanksgiving Eve. Blessington testified that "Al was pretty
punctual; in fact, he was generally there when I got there." 10
In its answer the Respondent admits that it terminated the employment of Woerner
on or about December 14. This conflicts with the testimony of Coopersmith and
Paul. Also there are substantial conflicts between the testimony of Coopersmith and
Paul. I do not believe their version of the termination and find that Woerner was dis-
charged on December 14.
According to the Respondent's witnesses, Woerner habitually was under the influ-
ence of alcohol until the day of his termination of employment. Woerner testified that
he did not believe that he drank on the job after November 24. However, Woerner
was somewhat evasive in his testimony with respect to his drinking habits.' I believe
that the truth of the matter is somewhere in between the two extremes.
The record as a whole shows that the Respondent had a number of employees who
engaged in drinking on the job and that the Respondent tolerated this condition.20
Shortly after the Respondent learned that Woerner had signed a union card, Woerner's
behavior became intolerable. Further, Coppersmith's and Paul's statements to
19 The Respondent did not submit in evidence any timecards to support the testimony
of William Coopersmith and Paul to the effect that Woerner was habitually late for work
20 Paul testified that there were "three or four" employees in the meat and grocery
departments who "were in love with the whiskey bottle " William Coopersmith testified
that employee George Herbert, who was hired as a meatcutter during the week ending
February 2, 1963, was discharged on February 7 "for intoxication" and was rehired
about a week later.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blessington indicate that the reason given by Paul at the time of discharge was a pre-
text. Accordingly , I find that the Respondent discharged Woerner on December 14,
1962, because of his union activity.
D. The discharge of lean Peters
Peters was rehired on or about September 1, 1962, at the rate of $1 per hour. Later
her wage rate was raised to $1.15 per hour . She worked in the produce department.
On December 12 Peters signed a union card which she had received from Louise
Jenkins.
Starting about the early part of December the Respondent required its female
employees to go to Paul in order to get the key to the ladies' room . Peters complained
to Jack Coopersmith about this change.
On Saturday , December 15, Peters worked from 9 a.m. until 10 : 45 p.m. As she
and employee Mary Cavanaugh were leaving the store they had a conversation with
William and Jack Coopersmith . Concerning this conversation , Peters testified as
follows:
Mr. Bill Coopersmith said , in a very sarcastic , harsh way of talking, "Did you
put in a good week, girls?" I spoke up and said yes. He said , "Well, you 'd better
get a good rest , then , over the weekend ," he said , "Because you're going to put
in a good , hard week next week." I said , "Oh, you mean the holiday ," because
there had been trees brought in and different things. He said , "I'm not talking
about no holiday," he said , "there's going to be less talking and more work
around here."
Well, my husband had been in to see me and brought the two children at the
scale, and I thought that he meant me talking to them at the scale. I said, "Do
you mean my talking to my husband and the two children at the scale ?" He said,
"I'm not talking about that ." He said, "There's going to be less talking and more
work, like I said."
I said , "You yourself said this was a free country."
Jack Coopersmith then spoke up and said , "As long as she does her job she can
talk all she wants ." But Bill Coopersmith said , "As long as you feel that way,
don't come in temporarily." ... Then I just very quietly said all right.
But, before I went out the door , I heard Mary Cavanaugh say, "Do you want
me in , as usual?" He said, "Yes , you come in , as usual , Mary." And I went
right out the door.
Cavanaugh 's version of the conversation was substantially the same as Peters'.
However, she testified that after William Coopersmith said he wanted "less talk and
more work," Peters replied, "What is this? Russia? Can't you speak?"; that there-
after William Coopersmith and Peters had a conversation for "a few minutes" which
she did not hear because she had gone to the front door; and that she heard Wil-
liam Coopersmith say in a loud voice , "Well, if you feel that way about it, Jean,
make it for good."
William Paul testified that at the time in question Jack Coopersmith was "sing-
ing"; and that as Peters left the store she stated , "It's a hell of an atmosphere, .. .
[I don't] have to put up with it . . . I quit ." Concerning the incident , William
Coopersmith testified as follows:
I stood up near the front of the store as the employees leave and we more
or less engaged in pleasantries . And Jean Peters walked out, or as everyone
walked out , there would be a "goodnight" or some remark made, and as Jean
walked by I said , "Have a pleasant weekend ." And it seemed to just set her
off in a turmoil and she flew up in the air and let loose with a whole stream
of "Who said anything about how hard I worked?" And so forth and so on
And people that were around at the time, some of them were just laughing, I
mean, it was just hard to figure out how one remark that she made led to
another. And the exact substance of the conversation I don't recall , but she
wound it up by insinuating , in some way , shape or form , that she was done,
she didn't need the "lousy job " as she termed it , or whatever it was, and, as
she walked out the door in quite a huff, she slammed the door behind her,
practically knocked Mary Cavanaugh over.
Monday, December 17, was Peters' day off. On December 18 at 1 p.m. she called
the Respondent 's office and spoke to a Miss Mancini . Peters asked if she could
"come back to work." Mancini said that she understood that Peters had "quit."
When Peters denied this, Mancini said that she would talk to William Coopersmith
and call her back . Not hearing from Mancini , Peters called the office at 5 p.m.
KING JACK'S FOODARAMA 1397
She was told to come to the store "right away." When Peters got to the store, she
was sent to the office where she was interrogated by Cherry. When he asked her if
anyone had ever approached her about signing a union card, she replied, "No."
Peters raised the question of whether or not she was still employed by the Respond-
ent. When Cherry asked William Coopersmith if she was still an employee, he told
her to report to him at 10 a.m. the next day and that he would put her in another
department which would mean an advancement for her.
Peters attended the union meeting held on the night of December 18. At the
meeting she complained about her termination of employment and stated that "Jack
Coopersmith should be made to stop talking foul-mouth in front of the female
employees." On December 19 about 8:45 a.m. she called the store and spoke to
Paul. When she asked him if she could report for work, he told her, "Jean, come
in immediately." She arrived at the store at 9 a.m. and put on her uniform. She
asked Paul for a timecard and told him that she had "no schedule." Paul made out
a new timecard for her and said, "You go ahead back to work, I'll see Bill about a
schedule for you " Peters punched in her timecard and went to work. Shortly
thereafter while she was waiting on a customer, William Coopersmith approached
her and asked her who had told her she could start work. Peters replied, "Well,
I called this morning, . . . and Mr. Paul told me I could come in." Coopersmith then
said, "You go back and get your uniform off. I told you to see me at 10:00 o'clock."
Peters punched out her timecard. She waited for about 15 minutes and then went
to Coopersmith after he had ended a conversation with Paul. She said, "Bill, .. .
last night, . . . you gave me the idea that you were going to put me in a different
department and more money .... Do you realize that I live almost nine miles away
from the store? ... And I don't think it's fair, ... for when I'm here and I'm ready
and willing and able to go to work when you should have boys coming in here tak-
ing over my job." 21 Coopersmith told her, in substance, that she had no right try-
ing to tell him what to do and that he would run the store as he pleased. She
answered that if she had to leave the store, she would "go to the Labor Board."
He stated that she could do as she pleased and that she was "to stay away" from his
other employees. At this point Paul broke into the conversation, saying, "I didn't
tell you you could go to work. I told you to see Bill." Peters replied, "Apparently,
Mr. Paul, there was a big misunderstanding." As she was leaving the store Cooper-
smith said, "And don't ever ask me for a reference because you'll never get it."
She retorted, "Well, I'm sorry, for the way I've been treated, I wouldn't ever want
anybody to know I worked in this store."
As to the conversation on December 15, I credit the version of Cavanaugh. It is
to be noted that she testified that Peters and William Coopersmith talked for several
minutes after Peters made the remark about "Russia" and before Coopersmith stated
. make it for good." This does not agree with Peters' version. According to her,
Coopersmith told her, "As long as you feel that way, don't come in temporarily"
immediately after she made the innocuous remark, "You yourself said this was a
free country." I am unable to believe this, and am convinced that in the heat of
argument Peters made some statement such as testified to by William Coopersmith
to the effect that she did not need the "lousy job." The conversations after Decem-
ber 15, set forth above, are based upon the credited testimony of Peters.
From Peters' own testimony it is apparent that she had a chip on her shoulder'
when she appeared at the store on December 19. She did not report to William
Coopersmith at 10 a in. as directed. Instead she called Coopersmith the night
before. After Coopersmith told her to take off her uniform and reminded her that
he had told her to see him at 10 a.m., she still did not wait for the appointed hour.
She went to him and started to complain before giving him an opportunity to explain
what work he had in mind for her. The record shows that he discharged her at this
time.22
The Respondent's motive in the discharge is not free from suspicion, particularly
in view of Jack Coopersmith's statements about the union meeting of December 18.
However, I do not believe that the evidence is sufficient for finding an illegal dis-
charge. Accordingly, I find that Peters' discharge was not violative of the Act.
E. The strike
The strike commenced during the early morning of December 28, 1962, and ended
on January 7, 1963, after a temporary restraining order was secured by the Respond-
21 Peters testified without contradiction that when she arrived at the store "two boys"
were talking to Paul in answer to an advertisement for helpers.
22 Tlie Respondent's answer, contrary to the testimony of William Coopersmith, states
that Peters "was discharged for insolence and insubordination.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent. Each picket carried a sign with a legend which read, "King Jack's Foodarama
is on strike. Joint Council AMC and BW of NA, A.F. of L." Employees John
Dineen , Louise Jenkins, Robert Stanley, Richard Deighan, Cathryn Snyder, Thelma
King, and Margaret Mary Woyda joined the strike. The record conclusively shows
that the strike was caused and prolonged by the Respondent's unfair labor practices.
Accordingly, I find that the strike from its inception was an unfair labor practice strike.
By letter dated January 22, 1963, the Union notified the Respondent as follows:
The striking employees whose names appear below have authorized this Union
to advise you that each will present himself or herself for work.
This offer to return to work on the part of each employee is unconditional and
unqualified.
The effective date of return for the individual employees listed below is subject
to any individual communication received by you indicating that the employee
cannot return immediately but will return on a later specified date under the
same terms and conditions.
The employees are:
Philip Blessington Robert Stanley Thelma King
Ben Mishkin John Corbin Margaret Wojda
Albert Woerner Richard Deighan Mary Cavanaugh
John Dineen Kathryn [sic] Snyder Louise Jenkins
Jean Peters
Will you kindly notify each individual employee of the time and date you wish
them to report for work unless their notification to you as to reporting time meets
with your approval.
All of the employees named above sent identical individual undated letters to the
Respondent, stating that their offer to return to work was "unconditional and unquali-
fied" and that they would report for work at 9 a.m. on Thursday, November 24,
1963.23 The Respondent received all of the above letters on January 23.
On January 24 all of the above employees appeared en masse at the store for work.
They were met at the front of the store by William Coopersmith. He refused to rein-
state them and told them that their applications, except for that of Stanley,24 would
be taken "under consideration." Thereafter and until the date of the hearing herein
the Respondent has not answered any of the above letters, has not reinstated any of
the above employees, nor offered to reinstate any of them to his or her old or sub-
stantially equivalent position.25
The Respondent produced some witnesses who testified to alleged misconduct by
pickets during the strike. Margaret Paul testified that on or about December 31,
1962, "three of the girls had called some names that wasn't too nice" such as "F-
M, s b., and dirty scab"; that the next day Blessington, Mishkin, Snyder, and King
blocked her from returning to the store by "walking back and forth as I was walking
back and forth, just so I wouldn't get through"; and that she reported the two inci-
dents to her husband.
Employee Jeanette Taylor testified that on December 28 when she left the store to
go to lunch, the pickets "kept walking back and forth, back and forth, trying to block
me from going across the street"; that when she went through the picket line on her
return to the store for lunch, Woyda, King, and Snyder called her a "back-stabber
... a scab ...M-F ... and a son-of-a-"; 26 and that she was not bothered by
the pickets thereafter.
Employee David Friel testified that- he did not participate in the strike; 27 as he
went past pickets Mishkin and Deighan who were on "the foot bridge," the latter
called him "a scab"; he told Deighan "to shut up"; when he passed the picket line
23 The letters of Stanley, Dineen, Deighan, and Jenkins give the date as "1/24/63 "
24 William Coopersmith testified, in substance, that the reason why the Respondent
would not consider reinstating Stanley was his "criminal record."
20 Thelma King testified that during February 1963, William Coopersmith offered her a
job "which was all night work" in "the skating rink" , and that she refused the job,
telling him that she did not "want to work all night work." The evidence indicates that
the skating rink referred to was owned by the Coopersmith family but not by the
Respondent.
20 Woyda denied that she or the other pickets engaged in the above conduct Stanley
testified that on the day in question he called Taylor "a scab" ; and that the female
pickets did not say anything to Taylor. I credit the testimony of Woyda and Stanley.
' Friel attended the union meeting held on December 18. He testified that he later
told William Coopersmith "everything that went on" at the meeting.
KING JACK'S FOODARAMA 1399
again some 5 or 10 minutes later, Deighan said, "I heard what you said"; he replied,
"What are you going to do about it?" Deighan then hit him; as he stepped back to
take off his coat, Mishkin held him while Deighan kicked him in the leg; and he
reported the incident to Jack Coopersmith.28
Woyda testified credibly that during the picketing lack Coopersmith stood at the
office window and repeatedly said over a loudspeaker that he "would like to get us
[the pickets] up against the wall, and then go bang, bang, bang ... like Castro";
and at times Carey and Williams blocked the picket line and said, "Somebody's going
to get their head split open tonight on the way home" when the pickets walked by
them. Stanley testified without contradiction that on one occasion while he was on
the picket line, Carey said to him, "I wish you'd start something because I'd like to
kick your "; and one night when Jack Coopersmith returned in his car from
dinner "he come storming in the driveway, almost run me over, I had to jump out
of the way."
Having found that the strike was an unfair labor practice strike, it follows that the
above strikers were entitled to reinstatement upon their unconditional application,
without regard to any replacements that may have been hired, unless they had for-
feited that right by their conduct during the strike. Even if the testimony of the
Respondent's witnesses is accepted at face value and the denials of Woyda, Stanley,
and Deighan are disregarded, I believe that the above conduct does not constitute
violence and/or serious strike misconduct sufficient to prove the identified individual
strikers unfit for reinstatement. Further, the Respondent itself did not have clean
hands in the matter, as disclosed by the evidence concerning the threats and conduct
of Jack Coopersmith, Carey, and Williams.
The Respondent's reason for refusing to reinstate Stanley is rejected. As related
and found above, Stanley's criminal record was known to and condoned by Jack
Coopersmith long before the start of the strike. Accordingly, I find that by refusing
to reinstate the strikers named above the Respondent engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (3) 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire
and tenure of employment of John Corbin and Albert Woerner by discharging
them on December 12 and 14, 1962, respectively, I shall recommend that the
Respondent offer to each of them immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered by
reason of said discrimination by payment to him of a sum of money equal to that
which he would have earned as wages from the date of the discrimination against him
to the date of the offer of reinstatement, less his net earnings during such period, in
accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289,
together with interest on such sum, such interest to be computed in accordance with
the formula prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
It having also been found that the strike of December 28, 1962, was caused by the
Respondent's unfair labor practices, and that on January 24, 1963, Respondent refused
reinstatement to John Dineen, Louise Jenkins, Robert Stanley, Richard Deighan,
Cathryn Snyder, Thelma King, and Margaret Mary Woyda after their unconditional
request for reinstatement, I shall recommend that the Respondent offer reinstate-
ment and reimbursement to each of said strikers in the manner and in the amount
as set forth in the preceding paragraph.
In my opinion, the unfair labor practices committed by the Respond-
ent in the instant case are such as to indicate an attitude of opposition to the
purposes of,the Act generally. In order, therefore, to make effective the interde-
28 Deighan denied that he fought with anyone. I credit his denial.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pendent guarantees of Section 7 of the Act, thereby minimizing industrial strife which
burdens and obstructs commerce , and thus effectuate the policies of the Act, it will
be recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
-- Upon the basis of the foregoing findings of fact , and upon the entire record,
I make the following:
CONCLUSIONS OF LAW
1. Amalgamated Food Employees Union Local 196, Amalgamated Meat Cutters
and Butchers Workmen of North America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. By transferring Louise Jenkins and Margaret Mary Woyda to less desirable jobs,
by discharging John Corbin and Albert Woemer, and by refusing to reinstate the
unfair labor practice strikers, John Dineen, Louise Jenkins, Robert Stanley, Richard
Deighan, Cathryn Snyder, Thelma King, and Margaret Mary Woyda, thereby dis-
criminating in regard to their hire and tenure of employment and thus discouraging
membership in the Union, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (3) and (1) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed to them in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices are. unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I recommend that Great Leopard Market Corporation,
Inc., dlb/a King Jack's Foodarama, its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or any other labor organization of its
employees by discriminatorily transferring employees to less desirable jobs, by dis-
criminatorily discharging or failing and refusing to reinstate any of its employees, or
by discriminating in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of employment.
(b) Interrogating employees concerning their union membership and activities and
making threats of reprisal because of such activity.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to join
or assist the above-named labor organization, 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 rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer Corbin, Woerner, Dineen, Jenkins, Stanley, Deighan, Snyder, King, and
Woyda immediate and full reinstatement to their former or substantially equivalent
-positions, without prejudice to their seniority or other rights or privileges, and make
them whole in the manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
- examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the deter-
mination of the amount of backpay due under this Recommended Order.
(c) Post at its store in Chester, Pennslyvania, copies of the attached notice marked
"Appendix." 29 Copies of said notice, to be furnished by the Regional Director for
29 If 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. If the Board's Order Is enforced by a decree of a United States `Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
KING JACK'S FOODARAMA 1401
Region 4, shall , after being duly signed by the Respondent or its authorized repre-
sentative , be posted by Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that the said notices are not altered , defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 4, in writing , within 20 days from
the date of the receipt of this Decision , what steps it has taken to comply herewith.30
(e) It is also recommended that the complaint be dismissed insofar as it relates
to Jean Peters.
30 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 4, in writing , within 10 days from
the date of this 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 National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in Amalgamated Food Employees
Union, Local 196, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, or any other labor organization of our employees , by trans-
ferring employees to less desirable jobs, by discharging or by failing and refusing
to reinstate any of our employees, or otherwise discriminating in regard to their
hire or tenure of employment , or any term or condition of employment.
WE WILL NOT interrogate employees concerning their union membership and
activities , or threaten them with reprisal because of such activity.
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 labor orga-
nizations, to join or assist the above Union , or any other labor organization, to
bargain collectively through representatives of their own choosing , to engage in
concerted activities for the purposes of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities , except to the extent
that such rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment , as authorized in Section
8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL offer to the following employees immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges , and make them whole for any loss of
pay suffered as a result of the discrimination against them:
John Corbin Louise Jenkins Cathryn Snyder
Albert Woerner Robert Stanley Thelma King
John Dineen . Richard Deighan Margaret Mary Woyda
GREAT LEOPARD MARKET CORPORATION, INC.;
D/B/A KING JACK'S FOODARAMA,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
NOTE-We will notify any of the above -named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
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, 1700
Bankers Securities Building, Walnut and Juniper Streets , Philadelphia, Pennsylvania,
Telephone No. 735-2612, if they have any question concerning this notice or compli-
ance with its provisions.