P & T Supermarket

National Labor Relations Board - Board Decisions

Jun 19, 1963

142 N.L.R.B. 1261 (N.L.R.B. 1963)

P & T SUPERMARKET 1261
APPENDIX
,NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner and in order to conduct
our labor relations in compliance with the National Labor Relations Act, we notify
you that:
WE WILL NOT seize or demand surrender of application cards or like material,
pertaining to any labor organization , from any of our employees.
WE WILL NOT demand that you reveal the source of any union material in
your possession.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in any union
activities.
WE WILL remove from their personnel file and destroy all "final notice"
warnings issued to employees on or about May 9 , 1962 , which were issued for
soliciting on company property.
All of our employees are free to become or remain members of any union.
GALE PRODUCTS , Div. OF OUTBOARD MARINE CORP.,
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 , 176 West
Adams Street, Chicago , Illinois , 60603, Telephone No. Central 6-9660, if they have
any question concerning this notice or compliance with its provisions.
Frank M. Thomas and John B . Plecher d/b/a P & T Super-
market and Amalgamated Meatcutters and Butcher Workmen
of North America , Food Employees Local No. 590, AFL-CIO.
Case No. 6-CA-510. June 19, 1963
DECISION AND ORDER
On January 25, 1963, Trial Examiner William J. Brown issued his
-Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondents filed exceptions to the In-
termediate Report with a supporting brief and the General Counsel
filed a brief in support of the Intermediate Report.
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 Rodgers and Fanning].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in this pro-
ceeding, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modification :
142 NLRB No. 138.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In affirming the Trial Examiner, we are not subscribing to the prop-
osition that any act of an employer which removes a source of unrest
leading to union organization, supplies in and of itself the proscribed
motivation which is prerequisite to a finding of a violation of Section
8(a) (3). Our conclusion that Doerfler's discharge was discrimina-
torily motivated is based upon the overwhelming evidence of Respond-
ents' union animus, as revealed by the interrogation and threats as well
as the clearly expressed sentiment that they had to put up with the un
ion trouble which plagued their operation because of one man, Doerfler.
We can see no other valid interpretatioii of Plecher's question to
Thomas the day before Thomas discharged Doerfler : "Why do we
have to put up with all these troubles, all because of one man?" In
assessing the proper weight of this evidence, as it bears on Respond-
ents' motivation in discharging Doerfler, it has to be borne in mind
that the discharge occurred on Saturday morning shortly after
Doerfler had started work for the day. On Friday night Doerfler had
been to a meeting held for employees at Store Manager David Johns'
home, which was held at the suggestion of Plecher in order to find out,
one way or the other, where the employees stood with respect to the
Union. Doerfler was a prounion spokesman at this meeting, and it
can hardly be argued that the Respondents were without knowledge
of Doerfler's active support of the Union.' The foregoing facts, estab-
lished on the record, support the inference, which Ave draw, that
Doerfler's active support of the Union was the "straw that broke the
camel's back," and that Respondents were unwilling to tolerate such
activities on the part of an employee whose higher pay scale and
preferred status were themselves spurs to union organization as they
had ascertained through the unlawful interrogation of employees. Ac-
cordingly, Respondents discharged Doerfler and in so doing discrimi-
nated against him in violation of Section 8(a) (3) and (1).
ORDER2
The Board adopts the Recommended Order of the Trial Examiner.
' Respondents were aware of Doerfler's union sympathies even earlier. Doerfier testified
that he told Thomas that if the Union came in, he would go along with it in view of the
fact that he had been a member of the Union in his former employment at A. & P
2The following provision is hereby added to the notice set forth in the Appendix to the
Intermediate Report:
NOTE -We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The charge herein was filed May 15, 1962, by Amalgamated Meat Cutters and
Butcher Workmen of North America, Food Employees Local No. 590, AFL-CIO,
hereinafter sometimes called the Union. On October 23, 1962, the General Counsel
P & T SUPERMARKET 1263
of the National Labor Relations Board, through the Regional Director for the Sixth
Region, issued the complaint pursuant to Section 10(b) of the National Labor Rela-
tions Act, as amended, hereinafter sometimes called the Act. The complaint alleges
the commission by Frank M. Thomas and John B. Plecher d/b/a P&T Supermarket,
hereinafter sometimes called P & T Supermarket, P & T, or Respondents, of unfair
labor practices as defined in Section 8(a) (1) and (3) of the Act. Specifically P & T
is alleged to have interrogated and threatened employees and to have created the
impression of surveillance of their union activities; P & T is also alleged to have dis-
charged employee Edward Doerfler in order to discourage union membership and
activities among employees. Respondents' duly filed answer denies the commission
of the unfair labor practices alleged, and affirmatively alleges with respect to Doerfler
that his termination was based upon his announced intention of leaving P & T to
return to seasonal summer employment.
Pursuant to due notice, a hearing was held at Pittsburgh, Pennsylvania, November
26 and 27, 1962, before Trial Examiner William J. Brown. All parties participated
in the hearing and were afforded full opportunity to present evidence and argument
on the issues. Upon the conclusion of the General Counsel's case in chief, Respon-
dents moved to dismiss the allegations relating specifically to P & T's failure and
-refusal to reinstate Doerfler to his former position for lack of evidence that Doerfler
ever applied for reinstatement; Respondent also orally moved at that time for dis-
missal of the entire complaint. The Trial Examiner denied Respondents' motions.
Following the hearing, briefs were received from all parties and Respondents by
written motion renewed their position that the complaint should be dismissed. Re-
spondents' several motions are disposed of in accordance with the recommendations
hereinafter set forth.
Upon the entire record in this case,' and upon my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
It appears from the pleadings herein that P & T is a partnership which operates a
-retail food store at 2327 Babcock Boulevard in Pittsburgh, Pennsylvania. It also
appears from the pleadings that Respondents' annual gross sales exceed $1,000,000
and that during the 12-month period preceding the issuance of the complaint, Re-
spondents received goods and materials directly from outside the Commonwealth of
Pennsylvania valued in excess of $10,000. I find that the Respondents are engaged
in commerce within the meaning of Section 2(6) and (7) of the Act and that assertion
of the Board's jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
Respondents' answer disclaimed knowledge as to the complaint's allegation that
-the Union is a labor organization within the meaning of Section 2(5) of the Act. It
clearly appears from the evidence herein that the Union admits to membership em-
ployees of Respondents, participated in a Board-conducted election, seeks to repre-
sent employees throughout the western part of Pennsylvania in the retail food in-
dustry, and negotiates contracts with employers covering wages, hours, and working
conditions. I find that the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and summary of events
Frank Thomas and John Plecher have operated retail food markets for more than
10 years. For 6 or 7 years they have operated at the location involved in the instant
proceeding under the trade name of "P & T Supermarket." Thomas is in general
charge of the business operations, including the grocery and produce departments,
while Plecher runs the meat department. They are, as owners and operators, em-
ployers within the scope of the Act. David Johns, who worked for more than 10
years for the partnership of Thomas and Plecher, has been the store manager of the
P & T Supermarket throughout its existence and up until his resignation on July 31,
i Subsequent to the hearing the Charging Party submitted a motion to correct errors in
transcript; no opposition having been filed to the motion and it appearing that the tran-
script contained the errors specified therein and should be corrected in the manner specified
therein, it is ordered that the transcript be corrected in the manner requested in the
Charging Party's motion, which motion is hereby made part of the record herein
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1962 The-number-of employees-at P& T has varied to some extent but appears to
have been at all material times in excess of 20 but less than 25.
In the summer of 1961, the State legislature enacted a law requiring Sunday
closing on the part of retail establishments having 10 or more employees. The Union,
acting in concert with other interested groups, participated in a vigorous campaign
to secure compliance with or enforcement of the Sunday closing law and its president,
Joseph Sable, delivered a number of radio appeals in this regard. In addition,
representatives of the Union participated in the picketing of stores that were open
on Sunday including P & T Supermarket. Thomas appears to have been one of the
leaders of the opposition of the Sunday closing statute and participated with a group
of 21 supermarkets in the western Pennsylvania area in seeking relief from the
legislation.
The fall of 1961 appears also to have been the time of commencement of union
organization among P & T employees. Into this setting on October 2, 1961, Edward
Doerfler was hired by Thomas as a grocery clerk. Doerfler, on the basis of prior
experience in the trade at A. & P., was hired at a rate above that paid several of the
clerks already working at P & T. For some years preceding his hiring, Doerfier had
operated an ice cream truck in the season, which runs roughly from April through
October each year. There is a conflict in the evidence as to understanding that was
reached at the time of his hire as to the permanency of his employment; there is
similarly a conflict in the evidence as to the events surrounding his termination on
April 14, 1962.
The discharge of Doerfler and the contents and effect of various questions and
utterances of Thomas and Plecher in the period from the fall of 1961 through the time
shortly before a Board-conducted election on April 25, 1962, form the issues in the
present case. General Counsel contends and P & T denies that Doerfler's discharge
was discriminatory within the scope of Section 8(a)(3) and that the several utter-
ances of Thomas and Plecher interfered with, restrained, and coerced employees
in their rights. The April 25 election appears to have been inconclusive, proceedings
therein remained pending as of the time of the hearing in the instant case.
B. The termination of Edward Doerfler
For some 5 years prior to his employment by P & T on October 2, 1961, Doerfler
had regularly operated his ice cream truck in the summer months, roughly April
through October. Although there is evidence tending to indicate that Doerfler on
occasion boasted of his success in the ice cream business his income tax returns tend
to show that his net profit from the venture at no material time exceeded an annual
profit of $1,500.2 In the July preceding his employment he had wrecked his own ice
cream truck and at that time found it necessary to lease a truck from his wholesale
supplier. This latter truck was kept idle at Doerfler's home during the off-season
from October 1961 through the period of Doerfier's employment with P & T.3
The employment of Doerfler by P & T followed upon Doerfler's wife asking Store
Manager Johns as to the possibilities of employment for her husband. Doerfler's wife
was a customer of P & T and there also appears to have been some more or less distant
in-law relationship between Doerfler and Thomas. Doerfler was offered and accepted
employment as a grocery clerk at P & T on October 2, 1961. He testified that at the
time of his hiring he had a full discussion with Thomas about his desire to quit
the ice cream truck entirely and secure full-time employment with P & T. According
to Doerfler, at that time Thomas specifically asked him if 6 months from then he
would be quitting to return to the truck and Doerfler gave Thomas a definite assurance
that he would not take that action in view of his desire for full-time employment.
Although Thomas, throughout his testimony, casually referred to a mutual under-
standing at the time of hiring that Doerfler would return to his ice cream truck when
the season rolled around, when he was specifically asked by counsel for the Charging
Party to state directly whether he asked Doerfler for his intentions at the time of hire
2 Projecting his 1961 earnings of $710 for 3 months ' employment at P & T would result
in annual earnings of $2,840. Even on the basis of half-time (20 hours per week) em-
ployment, he would earn over $1,500 at P & T.
3 The storage of the truck at Doerfler's home appears to have been initially at least re-
garded mainly as a benefit to Goodybar, the wholesaler. Doerfler testified and there is no
contrary evidence that replacement of the box and passing of inspection would be pre-
requisites to operation in the 1962 season , steps which were not undertaken The evi-
dence preponderates in favor of the conclusion that Doerfler did not plan on operating
the truck in 1962 to the exclusion of employment at P & T
P & T SUPERMARKET 1265
he first denied and then said he could not recall putting that question to him at that
time.
Under all the circumstances of the case, including the clear indications that the ice
cream truck had not been as profitable a venture as regular employment at P & T
would be and Doerfler's apparent desire for settled hours of work, I credit Doerfler's
testimony that he had a clear understanding expressed at the time of his hire that
he wanted full-time employment with P & T and had no intention of returning to his
ice cream truck.
As indicated above, the fall of 1961 witnessed a union campaign to secure retail
establishment closing on Sundays; the period also witnessed the commencement of
union activity among employees of P & T. Sometime in the late fall or early winter
of 1961 a labor organization identified only in the record as "Local 424" paid at
least a couple of visits to P & T employees. Doerfler reported these visits to Thomas
and was told on each occasion that he should "be nice to them." About the same time
employee Tod Poslik obtained a number of authorization cards from Union Presi-
dent Sable and commenced their distribution among employees.
Coincidental with the foregoing events P & T had engaged in a large-scale promo-
tional activity incurring substantial advertising and coupon-deal expense but with
unsatisfactory results. In January 1962 a meeting of all employees was called and
they were informed that they would receive an increase in the amount of 5 cents
an hour with the explanation furnished that it was in a lesser amount than might be
anticipated because of the failure of the promotional venture and unsatisfactory
prospects for business. At that time Hans Henning, a butcher with 4 or 5 years' service
with P & T, was told that in view of the poor business prospects and since the meat
department was a particularly sore spot he would be laid off sometime in April.
The evidence indicates that the announcement of the prospective layoff of Henning
was, in view of his substantial seniority, extremely disheartening to the other em-
ployees. It appears that following this meeting Henning obtained some additional
cards from the Union, one of which he handed to Doerfler. Doerfler, however, un-
certain of Henning's real interests in the matter, refused to sign it and in fact tore
it up. About the same time, however, Doerfler informed Thomas that if the Union
came in he would go along with it particularly in view of the fact that he had been a
member of the Union in his former employment at A. & P. When Tod Poslik gave
Doerfler a card on or about February 10 Doerfler signed it.
In the meantime, and in fact commencing with the hiring of Doerfler, there had
been some dissatisfaction on the part of other employees with Doerfler's rate which
was at least 10 cents above theirs. Pender, with seniority over Doerfler, complained
to Store Manager Johns almost from the beginning about the inequity existing be-
tween his rate and Doerfler's. Other employees also appear to have complained.
Business continued unpromising and early in March 1962 Doerfler's hours, to-
gether with others including Poslik and Jay Alt, were cut. However, about that
time Respondents hired additional employees, namely Ruege. Solek, and Marilyn
Asche. It appears that these employees had all had prior service with Respondent
and could be and were utilized primarily in tasks other than those which Doerfier
had performed.4 About March 17 Doerfler asked Thomas about the prospects of
having his hours increased and said that if he could not get more hours of work at
P & T he might have to return to his truck. About this same time Doerfler appears
to have been designated by his fellow workers as the employee to contact the Union
with the cards which had been circulated primarily by Poslik. Doerfler did this and
a week later, on April 7, Union Representative Serke and Secretary Lutty called on
Thomas and demanded recognition.
As might be expected there are two versions of the content of the discussion in
connection with the Union's demand for recognition. Thomas testified that Lutty
and Serke told him that he could have the Union either the easy way or the hard
way, the easy way being by quick recognition and execution of an agreement. Lutty
testified that Thomas, enraged, called them Communists. Thomas, for his part,
stressed his insistence on an election as the main feature of the discussion on that
occasion. While denying that he called the union representatives Communists, he
recalled that he did refer to their insistence upon recognition without an election
as nothing more than a form of communism. In any event, the meeting was not
amicable and no accord was reached on that occasion.
• The Union has contended throughout that the reduction of Doerfier's hours in March
1962 was discriminatory and violative of Section 8(a) (3) and (1). I read the record
however as insufficient to establish discrimination in this reduction. It is, in any event,
not alleged in the complaint as an unfair labor practice.
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Throughout this period, the evidence plainly indicates there was a substantial
amount of pro and con union discussion among employees to the point where it
impaired the efficient operation of the store and apparently was even affecting rela-
tions with customers. There was also widespread employee discussion about the
intraplant inequity created by the higher rate given Doerfler from the beginning of
his employment. Store Manager Johns heard the complaint from several sources,
particularly from employee Pender. About April 11 or 12, Johns revealed to Plecher
that the basic reason for the boys wanting to join a union was because of Pender's
complaint about the preferential rate given Doerfler. Employee William Montileone
also credibly testified that about this time Thomas asked him the reason for the
employees' desire for the Union and he told Thomas that employee Covert and
others were angered by the fact that Doerfler had started at a higher rate than
senior employees were paid. Thomas conceded that Covert and other boys had
talked to him about the inequity arising from Doerfler's higher rate; his justification,
based on Doerfler's prior experience at the trade, was insufficient to allay their un-
rest.
On the night of Friday, April 13, a meeting of all employees, both those for the
Union and those opposed to it, was held at Store Manager David Johns' house
Plecher suggested that the meeting be held because of the apparent necessity of
finding out one way or another where the employees stood with respect to the Union,
in view of the fact that the volume of discussion in the store was impairing opera-
tions. About 12 male employees attended the meeting. The principal topic for
discussion appears to have been whether the employees would go on strike or would
seek a representation election. A number of employees testified that Doerfler did a
substantial amount of the talking at the meeting but the record is somewhat unclear
as to the position he took on the basic issue before the meeting. In any event the
group decided to petition for an election and this was subsequently done on April
16. A few days thereafter a consent election was signed and the election was held
on April 25.
In the meantime, on the morning of Saturday, April 14, shortly after the opening
hour, Doerfler was terminated. His termination came about shortly after he reported
to work when Thomas came over to him and, according to Doerfler, said that rumors
were circulating that he was making more money than Pender and "this is your
last day." David Johns corroborated Doerfler's account of Thomas' statements at
the time of the termination. Thomas' account of his words at the time is to the
effect that he combined a reference to employee dissatisfaction over Doerfier's rate
with reference to the fact that Doerfler was going on the ice cream truck anyway
and he should call it quits at dinnertime.
Respondent contends that there was at all times a clear understanding that Doer-
fler's employment was temporary, pending arrival of the spring 1962 ice cream
season. Pursuant to this theory of the case Respondent has presented the testimony
of several witnesses to utterances allegedly made by Doerfler in recognition of this
design for temporary employment pending the arrival of the spring 1962 ice cream
season . Florence Kaczynski, a P & T employee of 101/2 years' standing, testified
that sometime in January Doerfler said that is was just a matter of time until he
left to make more money because his real money was in the ice cream business and
he would leave when the weather warmed up. Elinor Knab, a P & T cashier with 6
years' service, attributed a similar remark to Doerfler about the same time. And
James McNally, a meat department employee with 61/2 years' service, testified that
in January or February Doerfler said he had to do some work to get his truck ready
because he thinking about going on it during the forthcoming season in view of the
fact that he had made "six, seven or eight thousand" dollars in the preceding sum-
mer. For his part, Doerfler concedes that sometime in March after his hours had
been cut in half he did talk with Thomas about the possibility of getting back to
full-time work, and in the course of that conversation said that if he could not have
full-time work he would probably have to go back on the ice cream truck part-
time. Employees Jay Alt and Thomas Kaczynski testified that on one or two
occasions Doerfler did talk about the possibility of returning part time to the ice
cream truck in view of his limited part time work at P & T. Montileone, a P & T
employee, similarly attributed to Doerfler a statement of intention to work part time
on the truck and part time at P & T as also did Pender and Poslik. I find the evi-
dence to indicate that after his reduction in hours Doerfler voiced his intention to
return part time to his ice cream truck but not to quit his P & T employment.
Particularly in view of the indications in the record that the ice cream business
produced only scanty revenue in return for excessive and undesirable hours of work,
I find that Doefier at no time intended to leave P & T employment in favor of the
ice cream business and at no time expressed an intention to do so. I must, there-
P & T SUPERMARKET 1267
fore reject any theory that there was any voluntary aspect, either of October 1961
or April 1962 vintage, involved in this termination.5
Finding as I do that Doerfler was involuntarily terminated, the question remains
as to Thomas' motivation in effecting his termination. Doerfler appears to have
been active on behalt of the Union's organizing campaign to the extent that he was
the principal speaker at the meeting on the night of April 13 and had previously
been designated by his fellow workers as the one to contact the Union and turn
over the cards to the Union's officials. There is no evidence however that Respondent
was aware of the leading role played by Doerfler in this regard, although Thomas
had been alerted earlier by Doerfler that if the Union came in he would go along
with it.
However, there is no doubt on the record herein but that Respondent was acutely
aware of the discontent among its employees and the fact that it was generated
mainly by the premium rate given Doerfler in recognition of his prior experience.
Thomas conceded that he felt it essential that the trouble and dissatisfaction prevalent
in the store in the spring of 1962 be eliminated and that when he found out that
the basic cause of the dissatisfaction was Doerfier's rate he took the step of terminat-
ing Doerfler because of that dissatisfaction. There can be no doubt but what Thomas
was aware that the dissatisfaction over Doerfler's rate was a strong factor in the
discussions among employees as to the merits of representation by the Union and in
connection with his interrogation into the cause of the dissatisfaction Thomas soon
settled on a line of inquiry designed to elicit the feelings of a number of employees
with respect to the Union. The evidence indicates Thomas' awareness that the
dissatisfaction engendered by Doerfier's rate was one of the reasons foi union orga-
nization and Thomas equated the discontent with the Union campaign.
The crucial event precipitating the discharge appears to have been the action of
Plecher in taking the unusual step a day or two before April 14 of interfering in
Thomas' hegemony to the extent of pointedly asking Thomas, "Why do we have to
put up with all these troubles, all because of one man?"
I conclude that the real reason Thomas terminated Doerfler was to eliminate the
discontent which was productive both of impaired efficiency and of union organiza-
tion. In reaching this conclusion I am influenced greatly by the admitted vehe-
mence of P & T opposition to the Union's recognition request and by Thomas'
several acts of interference and restraint hereinafter set forth. I find the termination
of Doerfler to be an unfair labor practice under Section 8(a)(3) since it was plainly
the intention of Thomas by terminating Doerfler, to put an end to this union activity
of employees. The Radio Officers Union of the Commercial Telegraphers Union,
AFL (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17.
C. Interference, restraint, and coercion
As noted above organizational activity among employees of P & T accelerated in
January 1962 following the employee assembly at which Thomas referred to the
poor prospects for the enterprise and to the need for layoff of an employee of the
meat department. Henning, the employee whose layoff was predicted at the Janu-
ary meeting of employees, contacted the Union. Employee Tod Poslik also obtained
a number of union authorization cards. It may be that Poslik had obtained the
cards somewhat earlier since he refers to a meeting with Union President Sable in
November 1961. In any event, the major distribution of the cards appears to have
occurred following the January meeting and Poslik appears to have been the prin-
cipal solicitor in the store. There is no dispute but that Thomas, and to a lesser
extent Plecher, engaged in considerable discussion with several employees as to the
reasons for their all-too-evident interest in the Union's campaign. There remains
the question as to whether the specific unfair labor practices alleged in the com-
I I have considered but do not attach any substantial significance to Doerfier's statement
on his unemployment compensation application that the reason for his unemployment was
because "Business is slow." Such a statement might have some weight as an admission
against interest in a case where the alleged discrimination was based on an employer
animus directed against the alleged discriminatee. Here, however, the discrimination was
against a situation nurturing union organization as distinguished from an indr dual
fomenting union organization. In any event Doerfler's statement of his under, 'nding
in this regard is not conclusive See Wilbur, Chester, and John Ford, d/b/a Ford Brothers,
73 NLRB 49, enfd. 170 F. 2d 735 (CA. 6). Similarly there does not appear to be any
substance to Respondents' motion to dismiss the allegations of the complaint respecting
Respondents' refusal to reinstate Doerfler. See Root-Carlin, Inc., 92 NLRB 1313.
712-548-64-vol. 142-81
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint: interrogation and' creation of the impression of surveillance by Thomas and
Plecher and five specific threats by Thomas are shown to have been committed.
In appraising the various allegations of interference, restraint, and coercion, it
must be borne in mind that Thomas and Plecher both worked in the store alongside
employees and appear to have been on a basis of intimacy with the help. Thomas
and Plecher also appeared to have been genuinely interested in the personal prob-
lems of employees and their was considerably less of the chasm between rank and
file and management than usually obtains in an employment relationship. Certain
of the allegations of interference relate to utterances on the part of Thomas in the
nature of worsening employment conditions if the Union succeeded in its campaign;
these utterances must be appraised in the light of the Union's active campaign to
require general compliance with the Sunday closing law which would mean, as
Thomas put it, about a 12-percent decrease in the number of working hours.
The complaint's allegations with respect to interrogation are to the effect that in
the period February 13 through April 14, 1962, employees were interrogated by
Thomas and Plecher concerning their membership in and activities on behalf of
the Union. There can be no serious doubt on the evidence herein but that Thomas
did in fact question employees concerning the identity of those who had cards, who
circulated the cards, and the reasons for employee interest in organization. In his
testimony Thomas conceded that he asked at least five employees whether or not
they had signed cards or whether they possessed cards of authorization.
Thomas' account of the reason for his interrogation is that he wanted to pin down
the source or sources of the apparent discontent among employees. His observation
of the situation was that rumors were circulating that Tod Poslik was the one who
was doing most of the solicitation for the Union. In this, as pointed out above,
Thomas was correct in his appraisal of the situation. Employee Jay Alt testified
that sometime in February or March 1962 on two occasions Thomas asked him
whether he had signed a card for the Union. Montileone, who received a card
toward the end of February or the beginning of March from Poslik, credibly testified
that early in April Thomas asked him the reason for employee dissatisfaction and
whether he knew of any employees who had signed a card. In the same conversa-
tion Thomas said, "Before the Union comes in, I'll see you starving."
Anna Marie Meierhof, who appears to have worked mainly in the meat depart-
ment, was, according to her testimony which I credit, taken aside by Plecher one
day and asked why she was for the Union.
The foregoing instances of interrogation do not appear to be necessitated or
justified by any circumstances such as those present in Blue Flash Express Company,
109 NLRB 574. They amount to pointed inquiries by the owners of the business
into individual employees' identification with the Union's organizational campaign.
These interrogations by Thomas and Plecher occurred in a setting of intemperate
outbursts of opposition to the Union and clearly had the inherent capacity to coerce
employees in their organizational rights. They amounted to acts of interference,
restraint, and coercion within the scope of Section 8(a)(1) of the Act.6
The complaint alleges that Thomas threatened employees in the period February
through April 1962 with four particular types of reprisal if they selected the Union
as their bargaining representative. The types of reprisal allegedly threatened consist
of reduction in wages, reduction in available working hours, loss of employment, and
loss of Sunday employment. Several employees, called as witnesses at the hearing,
testified to utterances by Thomas in which Thomas allegedly reported to employees
the disastrous consequences that would follow if the Union became the bargaining
representative. The Respondents' position appears to be that Thomas did no more
than predict to employees the possible adverse consequences of organization in view
of the Union's widely known and extensive opposition to Sunday business in retail
stores like Respondents'.
In view of the Union's militant opposition to Sunday retail business, an opposi-
tion which was well known to Thomas from his leadership in organizing opposition
to the Union's campaign and his personal disappointment over inability to get equal
radio time to answer Union President Sable's appeal, Thomas could well have appre-
hended the advent of the Union would mean, sooner or later, Sunday closing with
a resultant diminution by 12 percent, as he put it, of available working hours.
Lutty testified that he never told Thomas that the Union would insist on Sunday
closing and that in fact, the local's contracts do not require Sunday closing. I find,
e Anderson Air Activities, Inc., 128 NLRB 698, cited by Respondent, is not in point since
it involved interrogation occurring in a climate free of other unfair labor practices.
P & T SUPERMARKET 1269
however, that Thomas could reasonably apprehend that the Union would take a
strong position on the matter and that there would be a substantial probability of
eventual Sunday closing at P & T.
The question, however, is not as to the reasonable anticipations of Thomas but
as to the type of statement he made to employees. I find on the record herein that
Thomas used the Sunday closing probability as a weapon in his campaign against
the Union. Employee Alt testified to a conversation with Thomas shortly before
the April 25 election in which Thomas asked a group of employees why they were
for the Union and then said that if the Union got in Alt was one of the three who
would probably be laid off in view of his lower seniority rating since they would
close on Sunday and employees would bump one another in order of seniority
until the lost Sunday hours were accounted for.
Employee Kaczynski recounted a conversation with Thomas, apparently occurring
about the same time the one mentioned above, in which Thomas said that if the
Union came in they would have to close on Sunday and Kaczynski would lose a lot
of hours because there were people with more seniority. When Kaczynski pro-
tested that there were a number of people with less seniority than he, Thomas said
that they had experience in the handling of produce and Kaczynski would not be
able to bump them with the result that Thomas "still held all the aces."
Montileone reported a conversation with Thomas early in April on a Saturday
night at a time when Montileone had had his Saturday work hours reduced from
12 to 6. At that time Thomas said that if the Union won and the store closed on
Sunday Montileone would be out of Saturday work altogether because he could get
produce people to handle Montileone's Saturday work. Poslik, apparently referring
to the same conversation a week before the election that Alt testified to as related
above, said that Thomas told the group of employees assembled in the store that
Poslik could bump Alt and a butcher could come down and take Poslik's job.
I credit the accounts given by the employees above mentioned and, in accordance
with their credited testimony, I find that Thomas on the occasions mentioned above
threatened employees with loss of employment and a reduction in working hours
if the Union succeeded in organizing. Thomas' statements cannot be regarded as
mere predictions of the probable consequences of unionization particularly in view
of Thomas' reference to the possibility of switching employees around, and to the
fact that he "held all the aces."
The complaint contains an allegation in paragraph 6(f) that in or about March
1962, Thomas threatened to delay or deny the vacations of employees because of
the union activities taking place among them. The practice with respect to vacations
at P & T is that an employee must have a full year's service before he gets vacation
benefits. Although Thomas prefers to have employees take their vacations when
they are due he appears to allow employees to work throughout their vacation period
and receive vacation pay. Knowing most of the employees and their personal situa-
tions fairly intimately and working with them on a day-to-day basis, he credibly
testified that his policy is not to refuse a request for pay in lieu of vacation.
Alt's testimony on this subject is confusing but apparently reflects that sometime
in the spring of 1962 he asked for vacation pay and was told by either Thomas or
Plecher that he would have to wait in view of the fact that the unfair labor practice
charge had been filed. Alt was assured he would get it eventually and subsequently
received his vacation pay. Montileone, however, received his vacation pay in 1962,
before April 25, and apparently had no difficulty in this regard. Thomas for his part
conceded that he determined not to hold up vacation pay because he was afraid it
would be additional unfair labor practice. According to him no one except
Meierhof asked for vacation and he could not permit that because she was needed.?
There do not appear to have been threats of withholding vacation pay and I recom-
mend dismissal of this count of the complaint.
Finally, there is a count of the complaint alleging that in March and April 1962,
Thomas and Plecher created the impression of surveillance of employees union
activities. With reference to this item of the complaint, the General Counsel in
his brief points to the testimony of Meierhof as support for his contention that the
impression of surveillance of activity was created by Respondents informing her
that it had ways of obtaining information about the signing of union cards. The
transcript indicates that Meierhof attributed to Plecher the interrogation referred to
above, as to why she was for the Union. This apparently was followed by a state-
4 Meterhof's testimony regarding Thomas statements on deferring vacation pay was
stricken as hearsay.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment attributing to Plecher the statement that "he had information, that's all."
This is quite plainly too vague and inconsequential to warrant the finding of the
unfair labor practice alleged and I shall recommend dismissal of this count of the
complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Respondents 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
In view of my findings detailed above that Respondents have engaged in unfair
labor practices defined in Section 8(a)(1) and (3) of the Act, I shall recommend
that Respondents be required to cease and desist from such unfair labor practices
and take such affirmative action as is necessary and appropriate to effectuate the
policies of the Act.
In view of the clear indications of the evidence herein, that at the time of the
termination of Edward Doerfler Respondents' volume of business was substantially
diminished below what it had been in the period preceding 1962, it may well be
that the involuntary reinstatement of Doerfler at the present time would require
displacement of employees whose seniority and qualifications would ordinarily re-
quire their retention in preference to Doerfler. I shall therefore, recommend that
Doerfler be placed on a preferential reemployment list and offered eemployment
to his former or a comparable position before any person not presently employed
by Respondents is engaged for hire in such a position, displacing any persons hired
subsequent to April 14, 1962 I shall recommend that Respondents make Doerfler
whole for any loss of earnings he may have suffered from the date of his discrimina-
tory termination to the date of such offer of reinstatement, making due allowance
for any periods in which objective criteria establish that there would not have been
employment for Doerfler and offsetting any net earnings during the intervening
period Backpay is to be computed as set forth in the Board's decision in F. W.
Woolworth Company, 90 NLRB 289, with interest added thereto in the amount
and in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 1
shall recommend the posting of an appropriate notice
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Frank N Thomas and John B. Plecher d/b/ P & T Supermarket are engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2 Amalgamated Meatcutters and Butcher Workmen of North America, Food
Employees Local No 590, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminating in regard to the tenure of employment of Edward Doerfler,
thereby discouraging membership in and activities on behalf of the Union, Respond-
ents have engaged in and are engaging in unfair labor practices within the purview of
Section 8(a)(3) and (1) of the Act.
4. By interrogating employees concerning their membership in and activities on be-
half of the Union, and by threatening employees with the adverse consequences that
would ensue if they selected the Union as their bargaining representative, Respondents
engaged in unfair labor practices in the nature of interference, restraint, and coercion
of employees in the exercise of their rights under Section 7 of the Act, thus committing
unfair labor practices defined in Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce 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 this case, it is recommended that the Respondents, Frank M.
Thomas and John B. Plecher d/b/a P & T Supermarket, their agents, successors,
and assigns , shall:
1. Cease and desist from:
P & T SUPERMARKET 1271
(a) Discouraging membership in or concerted activity on behalf of the Union
by discriminating in any way with respect to hire, tenure, or any term or condition
of employment.
(b) By interrogation of employees concerning their membership in or activities
on behalf of the Union or by threats to employees of adverse economic consequences
if they select the Union as their bargaining representative interfering with, restraining,
or coercing employees in the exercise of their rights to self-organization, to join or as-
sist the Union, 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, or to refrain from any and all such activities, except to the
extent that their rights in this latter regard may be affected by an agreement entered
into pursuant to Section 8(a) (3) of the Act.
2. Take the following affirmative action which I find necessary and appropriate
to effectuate the policies of the Act:
(a) Offer reemployment to Edward Doerfier to his former or a substantially
equivalent position and make him whole for any loss of pay suffered by reason of the
discrimination against him, such offer and such repayment to be in accordance with
the recommendations set forth in the section above 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 necessay to analyze the
amount of backpay due under this Recommended Order.
(c) Post at its establishment in Pittsburgh, Pennsylvania, copies of the attached
notice marked "Appendix." 8 Copies of said notice, to be furnished by the Board's
Regional Director for the Sixth Region, shall, after being signed by Respondents, be
posted by the Respondents immediately upon receipt thereof, and be maintained by
them for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Sixth Region, in writing, within 20 days
from the date of receipt of this Intermediate Report and Recommended Order, what
steps the Respondents have taken to comply herewith.9
It is recommended that insofar as the complaint alleges unfair labor practices
not specifically found herein it be dismissed.
8 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 this 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 "Pursuant to
a Decree of the United States Court of Appeals, Enforcing an Order" for the words
"Pursuant to a Decision and Order "
I If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Sixth Region, in writing, within 10 days
from the date of this Order, what steps the Respondents have 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 membership in or activities on behalf of Amalgamated
Meatcutters and Butcher Workmen of North America, Food Employees Local
No. 590, AFL-CIO, by discriminating against employees in tenure or any
other term or condition of employment.
WE WILL NOT by interrogation or threats or in any like manner interfere with
employees in the exercise of their rights to self-organization , to join or assist
Local No. 590, and to engage in concerted activities for the purpose of collective
bargaining or mutual aid or protection.
WE WILL offer Edward Doerfier reemployment to his former or a substan-
tially equivalent position , without prejudice to his seniority or other rights or
privileges , and we will make him whole for any loss of pay suffered as a result
of our discrimination against him.
All our employees are free to become or remain members of Local No. 590,
or any other labor organization , or to refrain from such membership except as their
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights may be affected by an agreement entered into pursuant to Section 8(a) (3) of
the National Labor Relations Act, as amended.
P & T SUPERMARKET,
Employer.
Dated------------------- By-------------------------------------------
(FRANK N. THOMAS)
-------------------------------------------
(JOHN B . PLECHER)
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, 2107
Clark Building , 701-717 Liberty Avenue , Pittsburgh , Pennsylvania , 15222, Telephone
No. 471-2977 , if they have any question concerning this notice or compliance with
its provisions.
Campco Plastics Company, a Division of Chicago Molded Prod-
ucts Corporation and General Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Local 298, I .B. of T. and
Synthetic Processors ' Union, Local No . 130A, Party to the
Contract. Cases Nos. 13-CA-4879 and 13-CA-4879-2. June 19,
1963
DECISION AND ORDER
On December 27, 1962, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices in violation of Section 8(a) (1), (2), and (3) of the Act and
recommending that it cease and. desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel, the Charging Party, the Respondent,
and the Party to the Contract, all filed exceptions to the Intermediate
Report and briefs in support thereof.'.
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 Rodgers and Leedom].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs, and
1 The Respondent and the Party to the Contract requested oral argument . We hereby
deny their request as, in our opinion , the record , exceptions , and briefs adequately present
the issues and the positions of the parties.
Respondent filed a motion to reopen the record or in the alternative to remand the case
to the Trial Examiner to allow the Respondent to introduce documentary evidence and
testimony not included in the record at the original hearing. The Charging Party and
General Counsel filed memorandums in opposition . No good reason has been offered by
the Respondent for thus reopening the record ; neither the nature nor character of the
evidence to be taken has been alleged . We therefore deny Respondent's motion.
The Party to the Contract filed a motion to dismiss portions of the complaint , namely,
paragraphs numbered VII ( B) and IX. We hereby deny the motion . The findings of vio-
lation by the Trial Examiner are clearly covered in the complaint.
142 NLRB No. 135.