Ontario Foods, Inc.

National Labor Relations Board - Board Decisions

Oct 14, 1963

144 N.L.R.B. 1057 (N.L.R.B. 1963)

ONTARIO FOODS, INC. 1057
Accordingly, I find that Local 798 is properly chargeable with remedying the unfair
labor practices here involved.
As stated above (footnote 3, supra ) the parties stipulated to the correctness of the
matters set forth in the backpay specification . Pursuant thereto , I find that the indi-
viduals named below are entitled , in accordance with the terms of the Board's
Decision and Order of November 16, 1961 , to the amounts set opposite their names
and that it is the obligation of Local 798, as the alter ego of Local 600, to reimburse
these individuals in the amounts indicated.
Name: Amount
Rufus Richardson--------------------------------------- $783.75
Archie O. Dixon--------------------------------------- 881.14
Narvel Brewer----------------------------------------- 1,041.75
J. C. Brewer------------------------------------------- 1,041.75
Don Prentiss------------------------------------------- 1,512.69
DeWitt Prentiss----------------------------------------- 1,390.35
Jessie Lovelace----------------------------------------- 146.25
George C . West---------------------------------------- 83.25
Morris Lovelace-------------------- -------------------- 48.00
V. Lee Perry ------------------------------------------- 60.25
Edward M . Elliot--------------------------------------- 9 83.25
It is recommended that the Board adopt the foregoing findings and conclusions
and order the Respondent, Local 798, to pay the individuals listed above the amounts
set opposite their names.
6 The summary in the backpay specification shows $83 29 as due Elliot ; however, the
correct total is as shown above.
Ontario Foods, Inc. and Amalgamated Meatcutters and Butcher
Workmen of North America , AFL-CIO, Local No. 7. Case No.
9-CA-92770. October 14, 1963
DECISION AND ORDER
On July 15, 1963, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that
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 Intermediate
Report. He further found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and
recommended dismissal as to them. Thereafter, the General Counsel
and the Respondent filed exceptions to the Intermediate Report and
supporting briefs.
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 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
144 NLRB No. 102.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations with the following exceptions and
additions.
1. The Trial Examiner found, and we agree, that the Respondent
interrogated its employees, threatened them, and created an impres-
sion of surveillance in violation of Section 8 (a) (1) of the Act. The
General Counsel excepts to the failure of the Trial Examiner to find
that certain additional incidents, set forth in the Intermediate Report,
were also violative of Section 8(a) (1). One such incident involved
a conversation between Supervisor Lockwood and employee Feyer-
abend who had been laid off by Lockwood in the first week of Sep-
tember 1962 for .the asserted reason that she was incompetent. A few
days later, Lockwood told her that she could return to work, that
she had not been laid off for incompetence but because of the pending
election and the suspicion that she was "the head or something of it,"
and that Lockwood realized he had made a mistake in this respect.
Another incident involved Supervisor Moore, who told employee Hall,
when he was interviewing Hall for a job, that the Respondent's oper-
ation was nonunion, and that he wanted to know what Hall's feelings
were in the matter. We find that the Respondent, by this conduct
of Lockwood and Moore, further violated Section 8(a) (1) of the Act.
The Trial Examiner found that certain individual !merit increases
which the Respondent gave to a few meatcutters during the Union's
organizational campaign were not shown to have been given for un-
lawful reasons, as alleged by the complaint. The General Counsel,
in his brief, urges that these increases were given for the purpose
of discouraging union activity, and, therefore, constituted a further
violation of Section 8 (a) (1) of the Act. Although this matter is
not free from doubt, we find it unnecessary to resolve the issue, because
a finding of an additional violation of Section 8 (a) (1) would in any
event be cumulative.
2. Beginning October 21, 1962, and for the next few weeks, the
Respondent reduced the working hours of employees Stanchfield,
Leach, Hill, and Stephens. The Trial Examiner found that the Re-
spondent had knowledge that all four had signed union cards, and fur-
ther, that the Respondent had threatened to discharge or take other
retaliatory action against prounion employees. The Respondent's
contention that the reduction in hours was motivated by economic
necessity was rejected by the Trial Examiner on the grounds that the
Respondent's business had increased during this period, and a number
of additional employees had been hired, including employees in the
same categories as those whose hours had been reduced.
Stanchfield, who was considered by the Respondent to be 'a "union
agitator," had her working hours reduced several times. When, during
ONTARIO FOODS, INC. 1059
the week of the election, she had been reduced to 1 day a week, she
walked out. The Trial Examiner found, and we agree, that Stanch-
field did not quit work voluntarily, but was constructively discharged,
in violation of Section 8(a) (3) and (1) of the Act. By November 25,
the remaining three employees whose hours had been reduced were
restored to a full 40-hour week. The Trial Examiner nevertheless
found, and we agree, that the Respondent discriminatorily reduced
the hours of Leach, whom it considered, like Stanchfield, to be a
"union agitator," in further violation of Section 8(a) (3) and (1) of
the Act.
The Trial Examiner concluded, however, that the Respondent did
not violate the Act by its reduction in the hours of Hill and Stephens,
who did not testify at the hearing, on the grounds that (1) the record
did not show any direct threats made by the Respondent to them,
and (2) their hours were reduced to a "very minor" extent as compared
with Stanchfield and Leach. The General Counsel has excepted to
these conclusions of the Trial Examiner and the consequent dismissal
of the complaint as to them. We find merit in these exceptions. We
are satisfied that the General Counsel established a prima facie case
of unlawful discrimination as to all four employees on the basis of
the evidence showing, as the Trial Examiner found, that the Respond-
ent had knowledge that all four had signed cards, and that it had
threatened to retaliate against employees engaged in union activity.
Moreover, the Respondent's sole defense to the allegation in the com-
plaint that it had discriminatorily reduced the hours of all four of
these employees-that it had done so for economic reasons-was found
without merit by the Trial Examiner. We agree with this finding of
the Trial Examiner. We do not agree, however, with the two grounds
on which the Trial Examiner relied for finding no discrimination as to
Hill and Stephens as (1) the Respondent had made threats to retaliate
against all union adherents, and (2) the difference in degree of the
Respondent's discrimination does not warrant a different conclusion
as to those treated less severely In other words, as the operative fac-
tors which prompted the discrimination were the same as to all four
employees, we find no basis for differentiating among them. In con-
clusion, as the record shows that the Respondent reduced the hours of
four known union adherents, in accord with its antiunion threats, and
there is no credible evidence to show a lawful reason for such reduc-
tion, we find that the Respondent discriminated against all four be-
cause of their union activities, in violation of Section 8 (a) (3) and (1)
of the Act. We shall accordingly amend the Trial Examiner's recom-
mended order to provide that the Respondent shall make whole Hill
and Stephens as well as Stanchfield and Leach.
727-083-64-vol. 144 68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
Amend paragraph numbered 2 (a) to include the names of Clari Hill
and Edna Stephens following that of Betty Stanchfield.
The "Notice to All Employees" appended to the Intermediate Report
is amended by adding the names of Clari Hill and Edna Stephens,
after that of Betty Stanchfield, in the fourth indented paragraph.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A hearing before Trial Examiner Thomas A. Ricci was held in the above-entitled
proceeding at Cincinnati, Ohio, on April 10 and 11, 1963, on complaint of the
General Counsel against Ontario Foods, Inc., herein called the Respondent or the
Company. The issues litigated are whether the Respondent has violated Section
8(a)(1) and (3) of the Act. After the close of the hearing briefs were filed by
all those parties.
Upon the entire record, and from my observation of the witnesses, I make the
following findings:
1. THE BUSINESS OF THE RESPONDENT
Ontario Foods, Inc., is an Ohio corporation which owns and operates a retail food
store in Cincinnati, Ohio. During the past calendar year, a representative period, its
gross sales at this store exceeded $500,000. During the same period the Respond-
ent's direct inflow of goods and products, in interstate commerce, were valued in
excess of $50,000 and were shipped to its Cincinnati store from points outside the
State of Ohio. I find that the Respondent is engaged in commerce within the meaning
of Section 2(2) of the Act, and that it will effectuate the policies of the Act to
exercise jurisdiction herein.
IT. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO,
Local No. 7, herein called the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues presented
In September of 1962, the Union instituted an organizational campaign among the
employees of the Respondent's meat department. It filed a representation petition
requesting an election, and on October 24, 1962, the parties executed a stipulation
for a consent election. An election under Board auspices was conducted on
November 15, 1962, and the Union failed to win a majority of the valid votes cast.
The complaint alleges that during the period preceding the election management
representatives engaged in conduct which improperly interfered with the employees'
freedom of choice, and illegally restrained and coerced them in their exercise of
self-organizational rights. It also alleges that sometime in October the Respondent
reduced the hours of work of four of the employees for the purpose of discouraging
their continued adherence to the Union. A final allegation of the complaint is that
the Respondent discharged a meat wrapper on November 15, the day of the election,
in order to curb her prounion actions. The Respondent denies having committed
any unfair labor practices.
The first issue to be decided is whether Lawrence Lockwood and Kenneth Moore
were, as alleged by the General Counsel, supervisors within the meaning of the Act
at the time of the events. The second question is whether the reduction in hours
of four employees was in fact illegally motivated. The final question is whether
Betty Stanchfield was in effect discharged by the Respondent because of her union
activities; the Respondent contends, to the contrary, that she voluntarily quit her
employment for reasons apart from any misconduct by the Respondent.
ONTARIO FOODS, INC. 1061
B. The supervisory status of Lockwood and Moore
Milton Kantor, the president of the Company, explained the management
hierarchy over the meat department as starting with himself at the top, Mead, the
store manager, beneath him, and then Harold Samler, whom he called the meat
supervisor. Kantor went on to say that Lockwood and Moore, hired at the end
of August, about 3 months after the new store was opened, were meatcutters who,
unlike all other meatcutters, are designated "top," or "head," or "first," meatcutters.
Six employees were called by the General Counsel to testify about the authority
exercised by Lockwood and Moore over the approximately 21 employees of the
meat department. Their detailed testimony was direct, clear, consistent, and
completely credible on its face. Neither Lockwood nor Moore was produced as a
witness.' As the testimony of these employees respecting the activities of Lockwood
and Moore is totally uncontradicted, and as in my opinion their demeanor on the
stand gave me no cause to doubt their veracity, I find that the following incidents
related by them in fact occurred.
Emmi Feyerabend, a meat wrapper, said that early in September Lockwood told
her he must lay her off because he thought she was not doing a good enough job.
She doubted his reason but he told her nothing more and she went home. A few
days later, when she returned for her final pay, Lockwood saw her in the store and
told her she could return to work. He explained she had not really been incompetent
but that because of the election in the offing "they had suspected me to be the head
or something of it." Lockwood ended by saying that he realized he had made an
error in this respect. Feyerabend returned to work.
Leach, a meatcutter, said that a few weeks after he started work at the rate of $105
per week, Lockwood told him he, Lockwood, had "gotten" Leach a raise, and was
trying "to get all of them a raise." Lockwood then raised Leach's wage to $114.50
per week. Hall, also a meatcutter, said that about the same time he, too, was raised
from $105 to $114.50 a week. He first learned of the raise when Lockwood said
to him and to Don Brandenburg, another cutter, that he thought they were doing
their job "right," and that they deserved a raise. Hall left the Respondent's employ
at the end of December 1962. He said it was Lockwood who laid him off: "He said
he was laying me off on account of the payroll in the meat department was too high "
Feyerabend also testified that when she wanted a change in her scheduled hours for
personal reasons she requested permission of Lockwood, who granted it to her.
Both Leach and Stanchfield said that Lockwood gave them orders, from time to
time, as to what work to do. And employee Evans said it was Lockwood whom he
saw prepare the work schedules for the meat department employees which were
posted weekly.
As to Kenneth Moore, Evans testified that when he first applied for work in the
store in September he approached Kantor who referred him to Moore, with the
statement that "Kenny Moore does the hiring in the meat department." Evans
proceeded to Moore who told him there was an opening and what the starting salary
was. Moore also added it was a nonunion shop, and Evans agreed to work never-
theless. Moore then told Evans that so long as the wages were agreeable to him
he should go home for a white shirt and return to start work. Evans did so. Hall
also approached Moore when he sought a job in September. To him Moore said
he could not use him then and there but that he might be able to do so later. Within
a few days Moore telephoned Hall at home and told him that if he still wanted a
job he should report for work the following Monday. Hall did so. Moore told
Hall also that this was a nonunion place and added he wanted to know "where did my
[Hall's] sympathies lie." Although a union member, Hall agreed to go along with
the store. Leach and Singleton, another employee, both explained that Moore gave
them orders in the course of the day's work.
There are other objective facts indicating that both Lockwood and Moore were
supervisors within the meaning of the Act. Of the 21 employees in the meat depart-
ment Lockwood was the highest paid, at $175 per week; Moore's rate was $150. At
one point Kantor testified that the next highest paid employee in the department
received $114 per week. He then added that there was one other who received $135.
The record as a whole shows convincingly that virtually all rank-and-file employees
punch timecards; Lockwood and Moore did not.
As already stated Lockwood and Moore did not testify. Kantor, as a witness,
insisted that neither of these two men had or has power to hire or discharge employees,
or to make any recommendations either in that respect, or with respect to altering
'Moore left the Respondent's employ after the events which gave rise to this proceed-
ing. Lockwood is still employed.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment in the department . According to him , the only persons
who exercise any supervisory authority in the meat department are himself and
Samler, who appears clearly to be essentially the company meat buyer , in addition to
Mead, the store manager. Referring to both Lockwood and Moore interchangeably
with the phrase "head meatcutter," "top meatcutter ," and "first meatcutter ," Kantor
made clear that both men held exactly the same positions of responsibility , whatever
it may be. Asked to define Lockwood's responsibility, Kantor said: "The same as any
,Jiead meat man, the responsibility to see that the meat cases were filled up in the
morning, it would be his responsibility to see that the meat department was running
an orderly business ." He summed up Moore's responsibility as: "His responsibilities
were with seeing that the department was ready for business at all times."
Kantor's testimony as a whole reveals a studied attempt to belittle the responsibilities
of Lockwood and Moore , for at many points his words were evasive, general, and
subtle. Thus, he spoke of their duties as: "Sees that product is ready to be put
in the cases ," "do the innumerable things that have to be done ," "seeing that the orders
that are left for the day, follows them out," "exercises it [this authority ] over himself,
over people that are working in the department with him." As Kantor held firm to the
conclusionary phrases that these men did no more than see to it that the showcases
were adequately supplied, he was again -and again asked to state precisely what persons
decided which of the many employees in the department were to do the various
chores. His equivocal response was: "Their hours would have to make the decision."
Affirmatively , the burden of the Respondent 's contrary contention that Lockwood
and Moore are not supervisors is that Samler , the meat buyer , is the person who
supervises the employees . Samler testified and said that he is in charge not only
of this meat department but also of those in two other stores of the Respondent;
he said that as a merchandiser he "overlooks " all the operations . The other stores
are at Toledo , 135 miles away , and at Springfield , 100 miles distant . Samler spends
on an average of 2 days per week in the Toledo store and one-half day weekly in
Springfield . He also visits the various packinghouses at different locations to make
the purchases ; among his duties is included the responsibility to "shop" the competitor
stores, to compare prices of other retailers . Briefly, on direct examination by the
Respondent 's counsel , he explained his supervision of the various meat departments
by saying : "I would talk to the gentlemen in the department every day in all stores,
I would tell them about the market , that is it in general;" He did not explain how he
could reach the employees in all the stores every day when clearly , at best, he
visits any one store only several days a week.
On cross-examination Samler said he never hired anyone; he said he did make
recommendations but was unable to remember the name of a single person as to
whom he made a recommendation either as to hiring or discharge . He insisted he
discussed personnel matters relating to the department with President Kantor, but
again, although repeatedly asked , was unable to recall the name of a single person
of whom he spoke with the president . Indeed , his examination presents page after
page of evasive , conclusionary , general , and illusive phrases. Prodded. for definitive
statements his answers repeatedly were: "it could be," "it's possible," "that's also
possible."
Whatever Samler 's position in this store may be, I am satisfied upon the basis
of the concrete testimony that both Lockwood and Moore were supervisors within
the meaning of the Act, and I so find . Samler said he spends "possibly" 50 percent
of his time buying. With 21/2 days weekly in other stores , his day-to-day super-
vision of the meat department in the Cincinnati store must be very slight at best
Kantor is the ultimate chief of the entire operation over a complement that was 100
at the time of these events and is now 125 . Mead is the store manager , but the record
shows that each of the other departments-produce , dairy , frozen foods , night stock,
day stock-has a person in charge in addition to the store manager and each of
whom , by admission of the Respondent , exercises at least effective authority to make
recommendations on hiring or raises . I cannot ignore the direct and credible testi-
mony that Lockwood nand Moore in fact hired employees , told them that they are ones
who give the raises , and direct them in the day-today operations of all 21 members
of the department.
When the parties executed a stipulation for consent election , back in October of
1962 , there was an agreement on the question of eligibility which included Lockwood
and Moore by name. I consider this but one of the many factors pertinent to the
issue; it is of course not binding upon the Board now, and the affirmative evidence
as to the position of these two men now appearing clear by the testimony , dictates a
contrary conclusion.
ONTARIO FOODS, INC. 1063
C. Interference , restraint, and coercion
The employee witnesses for the General Counsel who described the work duties
and authority of Lockwood and Moore also gave direct, clear , and credible testimony
respecting a number of statements made by these two men concerning the union
activities of the meat department employees as a whole. This testimony too stands
entirely uncontradicted . I have no reason to discredit it and I therefore find that the
following conversations in fact occurred.
The record in its entirety shows that for the most part cards authorizing the Union
were signed sometime about the beginning of September . In mid-September Lock-
wood asked employee Evans whether he had signed a union card ; he also asked who
had given the cards to Evans. Evans refused to say. Lockwood then moved over
to employee Allen and asked if he had signed the card and Allen also denied having
done so. On one occasion Lockwood said to Evans that "there was 13 names on
there and he knew all of them."
One day before the election Lockwood called employee Hall to his desk and showed
him a paper on which there appeared the names of all the employees in the meat de-
partment ; they were blocked so that a number were above a middle line and another
group below. Lockwood told Hall that the names below were those who he thought
favored the Union and he showed Hall his name below the line . Lockwood asked
Hall did the employee want his name moved up above the line to be included among
those who, Lockwood thought were going to vote against the Union , and Hall told
him to do that. Among the names which Hall saw below the line were those of
Betty Stanchfield and Leonard Leach.
On another occasion Lockwood told Hall that he knew who the union "agitators"
were and he named Leach and Stanchfield as two of them . Hall also testified that
Lockwood , when speaking of the list of names on his desk said that "the people
down below wasn 't going to be with the Company very long if the Union didn 't get in."
More precisely , Hall quoted Lockwood as saying, "If the Union got in the employees
had it made, they was home free , but if the Union lost there was no sense in us coming
in and putting our aprons on in the morning." Shortly after the employees signed
the union cards, Lockwood asked Betty Stanchfield if she had signed a union
card and added that "he had seen them , and he said that if the Union didn't
get in we would be without a job."
On one occasion Lockwood gathered all or most of the meat department employees
and told them "that he didn 't feel like he would get any of us to quit by being nasty
so he would try a different approach . He explained to us that before they realized
that we had signed union cards they had been talking about giving us insurance and
so-forth on our benefits , but he realized none of us knew any of the plans to make
things better for us , that none of us knew anything about it, but that until the union
matter was settled that they would not talk about it anymore."
Lockwood also asked Patricia Singleton if she had signed a union card . He also
asked her some time later whether she had decided how she was going to vote in
the election . Stanchfield testified that shortly after the cards were signed Lockwood
"made the rounds in every department and asked each one of us if we had signed it."
Singleton also recalled Lockwood calling Betty Stanchfield "a union fanatic." Finally,
Lockwood said to Singleton : "if the people that voted for the Union , when they
found out , they would eventually one way or the other get let go."
As to Moore , Leach testified that about 1 week before the election Moore stopped
him and asked did he not think the store would be better off without a union.
Leach answered • "We would get more benefits and our raises would come through a
lot better ." Moore went on to say: "If the Union was to get in the store that it was
going to make it kind of rough in the store there , he said if the Union doesn't get
in of course there's going to be a lot of them going to be discharged , and said you
would be better off voting, you know, our way and to go along with the Company."
And finally Leach also testified that one day Lockwood, in the presence of a number
of meat department butchers , let off steam by saying aloud that "if the Union didn't
get in there would be a lot of them without jobs."
With the foregoing as facts established by uncontroverted and credible testimony,
I find that by each of the following statements of Supervisors Lockwood and Moore
the Respondent illegally interfered with the employees ' right to self-organization
and violated Section 8 ( a) (1) of the Act:
(1) Lockwood 's interrogation of Evans, Allen , Stanchfield , and Singleton as to
whether they had signed union cards; his questioning of Evans as to who had given
him the cards ; his statement to Hall that he knew who the union adherents and agita-
tors were; his statement to Hall and Stanchfield that if the Union lost in the forth-
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coming election the employees who had favored it would not remain with the
Company "very long," or "would be without a job," or "would eventually one way or
another be let go."
(2) Moore's statement to Leach that if the Union prevailed "it was going to make
it kind of rough in the store" and that if the Union lost "there's going to be a lot of
them going to be discharged."
It is a separate allegation of the complaint that the Respondent raised the wage
rate of certain employees for the purpose of discouraging their union activities.
Two or three of the butchers were hired at $105 per week and a few weeks later,
sometime in October, received increases to $114.50. By this time organizational
activities had progressed to the point where a petition had been filed and the Company
was in process of entering upon a stipulation for a consent election. Other than the
coincidental fact that the Company was then aware of the union activities, there
is no substantial, direct evidence indicating that the purpose of these raises was to
combat the union campaign. The employees were not told of any such reason; rather,
what references the supervisors made to the possible relationship between the union
activities and employee benefits were that such activities operated as a temporary
freeze upon earnings. Indeed, the General Counsel, in his brief, requests a further
unfair labor practices finding based upon the fact that when a meat wrapper, Singleton,
asked President Kantor for a raise during this same period, he said that wages were
"frozen" because of the signing of union cards. There could as well have been
other, proper explanations for these raises to the butchers; the store had recently been
opened, the staff was rapidly being expanded, and generally things appeared to have
been in a state of flux. I do not believe that the record as a whole supports the charge
that the purpose of these particular changes in wage rates, or their necessary effect,
was to discourage the union activities of the employees.
D. Illegal discrimination in October
The Cincinnati store, in which these employees work, was opened on June 1,
1962. From that date on its volume has increased progressively. At the time of these
events, about October, there were a total of 100 employees; by the time of the hearing
it had increased to 125. The employees worked, for the most part, a 5-day week of
about 40 hours; the store is open 7 days and for 98 hours weekly. Some employees
work a 44-hour week, and there is a variable amount of overtime performed.
For each week a work schedule is posted the previous Saturday. For the week
ending October 21, the work schedule sets out only 3 workdays for four employees-
Leach, Stanchfield, Hill, and Stephens. The record is not clear as to precisely when
each of these employees appeared again on the work schedule for a full 5-day week.
It does show that Leach, the meatcutter, was restored to a full 5-day schedule for
the week ending November 25. As to Stanchfield, her name continued to appear for
only 3 days throughout the schedule posted for the 4 following weeks, and ending
with the workweek of November 11. For the workweek ending November 18, she
was scheduled for only 1 day and on that day she quit.
The following chart, culled from the oral testimony of the president of the Com-
pany, by agreement of the parties reflecting certain data from the Company's payroll
records, shows the number of hours worked in the successive weeks by each of the
four employees involved:
Week ending- Leach Stanchfield Hill Stephens
October 7-------------------------------------- 44 40 40
42
October 14------------------------------------ 44 40 48 40
October 21------------------------------------- 24 24
24 26
October 28 ------------------------------------- 24 24 29 30
November 4------------------------------------ 24 17 38
24
November 11----------------------------------- 30 6 40 40
November 18----------------------------------- 24 3 40 40
Although scheduled for 3 days, Stanchfield worked only 17 hours on the week
ending November 4 because she could not find transportation home late at night. The
following week she was home sick during 2 of the 3 days for which she was scheduled
to work; she reported this fact to the Respondent from her home. For the next week,
ending November 18, she was scheduled for only 1 day of work, November 15, the
day that the election took place. She started as scheduled but a few hours later
left the store without telling anyone her reason.
ONTARIO FOODS, INC. 1065
It is an allegation of the complaint that the Respondent's decision to reduce the
number of days of work for each of these four employees when it posted the schedule
for the week of October 21, was made for the purpose of discouraging the union
activities of all four. It is also a separate and distinct allegation of the complaint
that the successive reduction of work scheduled for Stanchfield, culminating with
only 8 hours for the full week of November 18, was motivated by a desire to dis-
courage her union activities and that therefore, when she left on November 15, her
separation from employment constituted a constructive discharge chargeable to the
Respondent. In defense, the Respondent asserts that the initial reduction in days of
work for these four was based on economic considerations, and that the selection of
these persons from among the approximately 21 in the meat department was based
on individual and nondiscriminatory factors.
Stanchfield and Leach favored the Union; they were at the union meeting and
they signed authorization cards. Lockwood, effectively in charge of the meat depart-
ment on day-to-day operations, told Hall that he knew who the union adherents
were; he said that in his opinion Leach and Stanchfield were the "agitators" for
the Union; and with Singleton he referred to Stanchfield as "a union fanatic." When
Lockwood showed Hall the alignment of names as he had arranged them on his work-
sheet on the subject, he had both Leach and Stanchfield below the line, among those
whom Lockwood believed to be ready to vote in favor of the Union. Both Lockwood
and Moore told employees that it was the intention of the Respondent to discharge
prounion sympathizers. And Moore said that it was going to be "rough" in the
store as a consequence of union activities. More than once Lockwood said to the
employees that they might as well be prepared to hang up their aprons if the
Respondent were presented with an opportunity to get rid of them with impunity.
All this, viewed against the context of illegal interrogation in which Lockwood
freely engaged, and the other statements of coercion and restraint set out above,
presents a picture of latent intent to hurt the employees in their conditions of employ-
ment in consequence of their union activities.
The Respondent's defense assertion that this reduction in hours was entirely caused
by economic considerations is not supported by the record as a whole. The volume
of business was mounting steadily and the complement of employees was growing
apace with the volume. For the 8-week period September through October the
meat department grossed, in the successive weeks: $20,668; $19,074; $20,266;
$24,431; $24,936; $25,626; $23,847; and $26,960. Kantor conceded that during
September and October employees were being hired. Indeed, within the week or
two before this action a number of employees, both among the meatcutters, such as
Leach, and among the meatwrappers, like the three women involved, were added to
the payroll. Bernie Brown, Joe Riggs, and others unnamed were hired as butchers;
Flinchbaugh, Brewer, and Feyerabend, meatwrappers who appeared as witnesses,
were hired at the very end of September.
Likewise, the more specific contention that the ratio between gross sales of the
meat department and payroll of that department had to be reduced and brought
down to the level then achieved at the Respondent's Toledo store, also fails of
supporting proof. Records of the Ontario store for September, October, and
November show that such ratio remained virtually constant throughout the entire
period, notwithstanding the purported improvement sought by the reduction in hours
in October. And, despite President Kantor's statement as a witness that the records
of his Toledo store would support the claim of more favorable experience at Toledo,
such pertinent records were not produced. The only Toledo store records offered
in evidence relate to the month of November, starting 3 weeks after the hours of
these employees were reduced, as scheduled for the week ending October 21. More-
over, the hiring of additional meat department employees, and the wage increases
given to butchers during this very period, appear completely inconsistent with the
present assertion that the payroll at that time had to be reduced.
I am satisfied on the record as a whole that the Respondent reduced the work
hours of Leach and Stanchfield, who has been branded as among the union "agitators,"
from 5 days to 3 days per week in mid-October for the purpose of discouraging
their union activities, and I find that the Respondent thereby discriminated against
them in violation of Section 8(a) (3) of the Act, as alleged in the complaint.
Hill and Stephens, although still in the Company's employ, did not appear at the
hearing to testify. An intent to discriminate illegally against them in mid-October
would not be based upon definite and direct testimony relating to them. They fa-
vored the Union, were present at the union meeting, and were seen by other em-
ployees to sign union cards. That the Respondent was aware of their particular
participation in union activities would be a finding that must rest upon general
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inference . Moreover , the changes in their work schedules were very minor con-
trasted to the treatment of Leach and Stanchfield. Hill really lost work only 2 weeks,
performing 16 hours less than the usual 40 for the week ending October 21, and 11
less than the usual the following week. The very week thereafter she did 38 hours,
virtually the same as a full 5 -day week. Stephens also lost only 14 hours the first
week of the incident , 10 the one after that, and again 16 hours the third week. Both
of these girls were immediately restored to their regular 40-hour week. As the
testimony relating to the illegally coercive statements and threats reflected in the
record touches upon Hill and Stephens wholly tangentially and in a very weak sense,
I do not feel that, upon the basis of the testimony as a whole, I can find that the
preponderance of the evidence supports the complaint allegation as to them. I shall
therefore recommend that the complaint be dismissed to the extent that it alleges
illegal discrimination against Hill and Stephens.
E. The discharge of Stanchfield
Stanchfield was out sick during the week ending November 11; she therefore
worked only 1 of the 3 days for which she was scheduled. Her husband reported
her illness to the Company by telephone . She came to the store the following Tuesday
for her regular paycheck, and saw the posted schedule for the current week. For
the first time , each of the employees of the meat department was listed by name
with a designation reflecting the particular work he or she was to do. Notwithstand-
ing having been a meatwrapper throughout her employment, Stanchfield's name
appeared at the bottom of the list with no classified designation . Moreover, of all
the names hers alone was written in red, and she was scheduled to work only on
November 15. It does not appear that any other employee was so reduced in hours.
She arrived on that day and started on time. Three or four hours later she simply
stopped work, took her clothing and left the store. All she said to anyone was that
she was quitting . Sometime later she was restored to work on a full-time basis. At
the hearing she explained her action by saying she simply felt she no longer had a job.
The Respondent does not deny that at the time of the event Stanchfield was given
no reason as to why she was scheduled for only 1 day of work that week, and at
the bearing no definite explanation was advanced . In its brief the Respondent says
that because Stanchfield had worked only 1 day the week before, and because the
week preceding that one she had been unable to fill all her scheduled hours due to
transportation problems getting home late at night, it was management 's intention
to discuss a more regular and complete schedule with her, and it was for this reason
alone that a provisional 1-day assignment had been set out for her. There is no
explanation of why her name was written in red, why she was left unclassified, or
why she was not told all of this was only an arrangement of the moment. The
Company knew her absences the week before were due to illness, and on the earlier
occasions , when she told Supervisor Lockwood of her transportation difficulties, he
gave her permission to leave early.
I think it clear the progressive diminution of work permitted to Stanchfield was
a planned technique aimed at bringing about what would appear as a voluntary
separation but in reality was to be a purposeful final removal of the employee from
the store. When Leach was reduced to 3 days a week the month before, Lockwood
made the statement that "if Leach could live on 3 days' salary, he would cut him
to one." Included in the evidence revealing the Respondent 's strong antiunion animus
is Lockwood 's reference to Stanchfield as a "union fanatic." The Company 's intent
to punish prounion employees by discharging them at the proper moment had already
several times been announced . Stanchfield left the store shortly after the election,
which the Union lost, had been completed. There is indication in the record that
she may have known the results before leaving, although this point is not clear. In
any event , the supervisors had warned her that the moment of danger in employment
would come in the event the Union should not win . In these circumstances, it
was reasonable for her to believe-what with the reduction of her hours almost to
the vanishing point and the dreaded loss of the election-that it was futile for her
to attempt to continue in a post in which she clearly was not wanted . And when,
a few days later, she returned for her final pay, Supervisor Moore told her he had
told Kantor that he, Moore , "didn 't agree with the way they were treating me
[Stanchfield ] like a dog."
I find that Stanchfield 's separation from employment on November 15, 1962,
constituted a constructive discharge chargeable to the Respondent , and brought about
for the purpose of discouraging her union activities , and thereby the Respondent
violated Section 8 (a) (3) of the Act.
ONTARIO FOODS, INC. 1067
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection 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 thereof.
V. THE REMEDY
As usual, in view of the unfair labor practices that have been committed, the
Respondent must be required to take appropriate remedial action in order to dissipate
the coercive effects of its illegal actions. I shall therefore recommend that the
Respondent be ordered to make whole Leonard Leach and Betty Stanchfield for any
loss of earnings they may have suffered in consequence of the discrimination in
employment against them, with interest on any moneys due at 6 percent per annum.
Inasmuch as subsequent to the illegal discrimination both of these employees have
been restored to regular employment, there is no occasion for any reinstatement
provision. The extent of the Respondent's restraining and coercive attitude towards
the employees, coupled with the discriminatory action in denying work partially to
two of them and in the discharge of Stanchfield, warrant an inference that there is
danger of the commission of other unfair labor practices in the future. I shall there-
fore recommend that the Respondent also be ordered to cease and desist from in any
other manner violating the proscriptions of the statute.
CONCLUSIONS OF LAW
1. Ontario Foods, Inc., is an employer within the meaning of Section 2(2) of the
Act.
2. Amalgamated Meatcutters and Butcher Workmen of North America, AFL-
CIO, Local No. 7, is a labor organization within the meaning of Section 2(5) of the
Act.
3 By reducing the work hours of Leonard Leach and Betty Stanchfield and by
discharging Betty Stanchfield, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
4. By the foregoing conduct, by interrogating employees concerning their union
activities, by telling employees that the Company has knowledge of the identity of
union adherents and thereby creating the impression of surveillance over union
activities, and by threatening employees with discharge or other loss of employment in
consequence of their union activities, the Respondent has interfered with, restrained,
and coerced employees in their rights guaranteed in Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
5. 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 Ontario Foods, Inc., Cincinnati, Ohio,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against its employees because of
their exercise of the right to self-organization, to join labor organizations, or to engage
in concerted activities.
(b) Interrogating employees concerning their union activities, telling employees
that the Company has knowledge of the identity of union adherents and ,thereby creat-
ing the impression of surveillance over union activities, or threatening employees
with discharge or other loss of employment in consequence of their union activities.
(c) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form labor organizations, to join
or assist Amalgamated Meatcutters and Butcher Workmen of North America, AFL-
CIO, Local No. 7, 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 bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act, or to refrain from any or all such activities except to the
extent that such right 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.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is designed to effectuate the policies
of the Act:
(a) Make whole Leonard Leach and Betty Stanchfield for any loss of pay they
may have suffered by reason of the discrimination against them, in the manner set
forth in the section of this Intermediate Report 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 records necessary to analyze the amount
of backpay due under the terms of this Order.
(c) Post at its store in Cincinnati, Ohio, copies of the attached notice marked
"Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the
Ninth Region, shall, after being duly signed by the Respondent's representative, be
posted by Respondent immediately upon receipt thereof, and be maintained 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
by the Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Ninth Region, in writing, within 20 days
from the receipt of this Intermediate Report and Recommended Order, what steps the
Respondent has taken to comply herewith.3
It is further ordered that the complaint be, and it hereby is, dismissed as to the
allegation of unlawful discrimination with respect to Clari Hill and Edna Stephens.
2 If this Recommended Order be 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 be 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."
3In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, 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, we hereby notify our employees that:
WE WILL NOT discourage concerted activities by any of our employees
or their membership in Amalgamated Meatcutters and Butcher Workmen
of North America, AFL-CIO, Local No. 7, or in any other labor organization,
by discharging or in any other manner discriminating against any employee in
regard to their hire or tenure of employment, or any other term or condition of
employment, except as authorized by Section 8 (a) (3) of the National Labor
Relations Act.
WE WILL NOT interrogate our employees concerning their union activities, tell
them that the Company has knowledge of the identity of union adherents and
thereby create the impression of surveillance over their union activities, or
threaten employees with discharge or other loss of employment in consequence of
their union activities.
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 any labor organization, to join or assist Amalgamated Meatcutters and
Butcher Workmen of North America, AFL-CIO, Local No. 7, to bargain col-
lectively through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a labor organiza-
tion, as a condition of employment, as authorized by Section 8(a)(3) of the
National Labor Relations Act.
WE WILL make whole Leonard Leach and Betty Stanchfield for any loss
of pay they may have suffered as a result of the discrimination against them.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of any labor organization except to the extent that this right
NORTHWESTERN PUBLISHING COMPANY 1069
may be affected by an agreement executed in conformity with Section 8(a) (3) of the
Act.
ONTARIO FOODS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from 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, Transit
Building, Fourth and Vine Streets, Cincinnati 2, Ohio , Telephone No. Dunbar 1-1420,
if they have any question concerning this notice or compliance with its provisions.
Northwestern Publishing Company and Chauffeurs , Teamsters
and Helpers , Local No . 26, affiliated with the International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case No. 13-CA-5083. October 14, 1963
DECISION AND ORDER
On February 14, 1963, Trial Examiner George A. Downing issued
his Intermediate 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 Inter-
mediate Report. He also found that the Respondent had not engaged
in other unfair labor practices and recommended dismissal of the
complaint as to them. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief and the General Coun-
sel filed a brief in support of the Intermediate Report.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case,l and adopts the findings, conclusions, and recommendations
of the Trial Examiner to the extent consistent herewith.2
Northwestern Publishing Company, the Respondent herein, is a
publisher of a newspaper in Danville, Illinois. In January 1962,$
Chauffeurs, Teamsters and Helpers, Local No. 26, the Union herein,
petitioned for an election in a unit of the Respondent's newspaper
delivery drivers .4 Following a hearing, the Regional Director, in April,
1 The Respondent ' s request for oral argument is denied , as the record , the exceptions,
and the briefs adequately present the issues and the positions of the parties.
2 We hereby correct the following inadvertent error in the Intermediate Report: the
election in the prior representation proceeding, Case No. 13-RC-8319, was held on May 9,
not May 19, 1962.
All dates herein are in 1962, unless otherwise stated.
*,Case No. 13-RC-5319, not published in NLRB volumes.
144 NLRB No. 98.