Paul Bunyan Foods

National Labor Relations Board - Board Decisions

Mar 3, 1981

254 N.L.R.B. 1041 (N.L.R.B. 1981)

1041
Vose & chodmm, Inc., d/b/a Bunyrn F&
Mw-t Kloecker.
September
Ladwig
filed exceptions
and
surd
and Order.s
Pursuant l q c )
re la ti or,^
I3oard idopts 'order
xden Voss &
talte
--
' R a p o ~ ~ d e n t apserts
credibilty,
biaa After examination
partiality existed merely b e c a w administrative law r e o ~ v e d
f.c tual wi tness .
Supre~ne stmted N.LR.B.
656. "[TJotal
competence
atablished
j~dge's
preponder.mce
Wall Products, Inc..
(1950), enld. 188 F.M
b&
' adcpting
Sec. Q(aX3)
W m t e r Jenkins beckpay
14;
LADWIG,
c h i ~ g e
1978.'
drltes unless
primary
8(a)(3) (I)
$500,000
$50,000
2(2), (6),
2(5)
UNFAIR
colle&ive-bargaining
em~loyees
(25lcent cost- b
6-
NILRB
PAUL BUNYAN FOODS
Paul
and Am Case 6-CA-
11898
March 3, 1981
DECISION A N D ORDER
On 24, 1980, Administrative Law
Judge Marion C. issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
and a supporting brief, and the
General Counsel filed a brief in response.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs has decided to affirm the rulings, find-
ings,' conclusionsa of the Administrative Law
Judge to adopt his recommended
ORDER
t o Section of the National Labor
Act. as amended. the National Labor Re-
lations as its the recommended
Order of the Administrative Law Judge and
hereby that the Respondent, Good-
man, Inc., d/b/a Paul Bunyan Foods, Erie, Penn-
sylvania, its officers, agents, successors, and assigns,
shall the action set forth in the said recom-
mended Order.
that the Administrative Law Judge's resolutions
of findings of fact, and conclusions of law are the result of
a careful of the entire record, we are satisfied that
this allegation is without merit. There is no basis for finding that bii and
an judge im-
portant conflicts in favor of the General Counsel's As
the Court in v. Pittsburgh Steamship Co., 337
U.S. 659 (1949). rejection of an opposed view cannot of
itself impugn the integrity or of a trier of fact." Further-
more, it is the Board's policy not to overrule an administra-
tive law resolutions with respect to credibility unless the clear
of all of the relevant evidence convinces us that the reso-
lutions an incorrect. Standard Dry 91 NLRB 544
362 (3d Cir. 1951). W e have carefully examined
the record and find no for reversing his findings.
In the Administrative Law Judge's conclusion that Respon-
dent's discharge of Kloecker violated and (I) of the Act, we
do not rely on his finding that Respondent admitted in its answer to the
complaint that it had an antiunion motivation for her discharge.
would provide interest on the award in ac-
cordance with his partial dissent in Olympic Medical Corporation, 250
NLRB (1980).
DECISION
MARION C. Administrative Law Judge: This
case was heard in Erie, Pennsylvania, on April 21, 1980.
The was filed by Margaret Kloecker, an individ-
ual, on December 18, The complaint issued on
August 30, 1979. The case arose when Company Presi-
dent Nathan Goodman, on entering the hospital and
All are in 1978, otherwise indicated.
No. 136
before obtaining a replacement, telephoned, and summa-
rily terminated employee Kloecker as "produce man-
ager" at the Company's West Side store where Good-
man had sought to decertify a union. The issue
is whether President Goodman unlawfully discharged
Kloecker in an effort to eliminate the Union at the store
before turning the management over to his nephew,
thereby violating Section and of the National
Labor Relations Act, as amended.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and the
Company, I make the following:
The Company, a Pennsylvania corporation, is engaged
in the operation of two retail grocery stores in Erie,
Pennsylvania, where it annually derives gross revenues
in excess of and receives goods valued in excess
of directly from outside the State. The Company
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section and (7) of
the Act, and that Retail Store Employees Union, Local
880, Erie Division of the United Food and Commercial
Workers International Union, AFL-CIO-CLC, is a labor
organization within the meaning of Section of the
Act.
11. ALLEGED LABOR PRACTICES
A. Admitted Antiunion Motivation for Discharge
After the Union succeeded in organizing one of the
Company's two Erie Stores in 1975, it failed to reach a
agreement with the Company. In
March 1978, President Goodman informed in
a meeting that they could not receive their
of-living) raises until they decertified the Union. (Case
CA-11544, in which the Union filed a refusal-to-bargain
charge on August 22, and which was consolidated for
hearing with this proceeding, was settled and severed 4
days before the hearing.)
It is undisputed that before employee Margaret
Kloecker was hired in January 1977 President Goodman
told her that he had a union problem and did not want
to hire anyone who was prounion. She responded that
she was not in favor of unions. Thereafter, he repeatedly
told her that he would do anything to keep the Union
out of the store and that he hoped she would help him
keep it out. In August 1978, after a period of inactivity,
the Union scheduled two meetings, and Kloecker attend-
ed both of them, on August 17 and 31. Two days before
the first union meeting, Goodman approached Kloecker
and accused her of arranging the meeting. As she credi-
bly testified, "He said he knew that I had lunch with
Harry St. George, who was the business agent for the
Retail Clerks, and that I had arranged the meeting, and
that I was encouraging all of the other employees to
attend the meeting." She had never met St. George and
she denied having lunch with him or knowing anything
254
abour,
given
Exh. 25cent
effect
how
I~rought
wotry
Ca 10,
c:nter Mayo
from
"hrtd
Ha:
Au-
dis-
ct~arged.
hrd togeth-
el"
h ~ d
added
Augustino's
off~ce
Au-
lCj)),
was
collective~bargaining
I2
ofice
c
#2
$3
$4
$1
50-
ofice
these
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meeting until a notice of the meeting was
posted in the store. Goodman said he could not believe
that the employees would "stick it to him," after he had
them all those raises. (Kloecker's timecard, Resp.
17, shows that her cost-of-living raise went
into on May 15, increasing her wages to $5.25 an
hour.) Goodman added, "I treat you guys well. and this
is you treat me." (Goodman admitted on the stand
that he had been informed that Kloecker was at lunch
with St. George. I discredit his claim that this occurred
"around" October, when he "called her on the carpet"
and "told her to keep her union activities on her over
time." Thereafter, Goodman "very rarely" spoke to her.
President Goodman was in bad health at the time, and
he in his nephew, Bradley Edelman, as store
manager. Edelman testified that he heard talk around the
storr that Kloecker "may have been a union advocate,"
but "I didn't want to get involved, I figured I had
enough problems running the store and I didn't want to
about that; I actually let Mr. Goodman handle all
that at the time."
Sunday, December the day he was scheduled
to the Clinic for tests, Goodman came into
the store, inspected the produce department (as discussed
later), and unsuccessfully attempted to reach Kloecker
by telephone. The next morning, Goodman telephoned
the hospital and talked to Kloecker after she had
arnved for work. As she credibly testified (contrary to
his claim that he merely told her she was fired, that she
enough chances"):
Mr. Goodman . . . told me that he wanted to fire
me, but he didn't want any repercussions, so . . . he
asked me to take my choice, whether I wanted to
be fired, laid off, or quit. And I told him to make
his own choice, and he said he wanted to fire me.
but he didn't want any trouble with the Union, and
he said that I was an instigator, and that I was influ-
encing all of the other employees towards the
Union, and that he was tired of being made a fool
of and then he said, plus . . . your work has been
bad for the last six months, I just didn't want to tell
you.
told her that she would be considered laid off. (From
her demeanor on the stand, she impressed me as being an
hc nest, forthright witness.)
Shortly thereafter, Kloecker reported to Vincent
gustino, a mutual friend of her and Goodman, that she
had been denied unemployment compensation because of
a report from the Company that she had been
As Augustino credibly testified, he discussed
the matter with Goodman who told him that her union
activities and unsatisfactory work were the reasons for
discharging her, that Goodman "honestly felt that she
was the one that instigated the Union . . . the one that
called St. George and that they had done it
(referring to the August meetings, in which a strike
been planned but was later called off). Goodman
that "as long as he was going to pay the bills, he
would keep the Union out." Then, in pres-
ence, Goodman telephoned the unemployment and
said there was some sort of a mix up, "that Margaret was
definitely laid off and not fired." (Goodman, who did not
impress me as being a candid witness, denied telling
gustino that Kloecker was an advocate for the Union
and that that was the reason he fired her.)
Finally, in its September 21, 1979, answer to the com-
plaint (G.C. Exh. the Company admitted that
Kloecker's union support or assistance a reason for
her discharge. Paragraph 12 of the complaint alleged
that the Company discharged Kloecker on December 11
"because the employee . . . joined, supported, or assisted
the Union, and engaged in concerted activities for the
purpose of or other mutual aid or
protection, and in order to discourage employees from
engaging in such activities or other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection." Paragraph 7 of the answer stated,
"Respondent admits the allegations contained in paragraph
of the complaint and further answering says that Mar-
garet Kloecker was discharged for failure to follow com-
pany policy, for low production of her department, and
for improper display of the items sold in her depart-
ment." (Emphasis supplied.)
Thus, in the context of often-repeated hostility toward
the Union, which President Goodman believed employee
Kloecker had helped revive at the store in August, the
Company admitted at the time of the discharge, later to
a mutual friend of Kloecker and Goodman, and finally in
its answer herein, that it had an antiunion motivation for
her discharge.
B. Valuable Employee
The evidence shows that "Produce Manager" Marga-
ret Kloecker had been a valuable employee, building up
the produce business in the West Side store while also
doing part of the clerical work and performing
other duties when needed, such as setting up displays,
unloading trucks, serving as a checkout cashier, and
helping out in the grocery department when "something
went wrong out on the floor."
The West Side store (Paul Bunyan store at 1341
West 26 Street) was located in a poorer section of town,
near a high-volume Erie County Farms produce outlet
where the prices were "extremely low." It is undisputed
that before Kloecker was hired to take charge of the
produce department, the produce sales were about $1,100
or $1,300 a week President Goodman hired her at the
beginning wage of an hour, with the promise of raises
as the produce sales increased. Within a short time,
Goodman increased her wages to an hour, telling her
that the raise was for her improvements in the pro-
duce department, as promised. Thereafter, in addition to
the 25-cent cost-of-living raises Goodman gave her a
cent raise, telling her it was because of her work in the
produce department "and in the other areas of the
store." She worked in the office when needed, and
trained one of the cashiers to do work. Through
improvements and through lower profit margins to
compete more successfully with the nearby produce
outlet, the produce sales increased a "lot of times" to
$3,000 $2.1
f2,128.60
that
departmeat
rhat working
asked
respc'nsibilities
asked S15-a-
office
;a
minimum
the
Augu!gt
17-
12
12:30 p.m.
criticizeli
not
take
Allgustino
backroom
Cioodman
was
store
a:
you
collld
becr~use
sanetimes
(:age.
anothe~
C. shifting
work"
taking
hours,
*
4:00 4:30
ofice
PAUL BUNYAN FOODS 1043
over a week, and averaged 16.06 in 1977 and
in 1978 (Resp. Exh. 57).
Both President Goodman and Store Manager James
Guido gave Kloecker compliments about her work, tell-
ing her they were pleased with the way the produce
was improving and that they were pleased
with her work in general. These compliments continued
throughout 1977 and into 1978. In June 1978, Goodman
told her the girl in the office "was not out"
and her to take over the office duties in addition to
her in the produce department. However,
she him for a week raise to do so, and he
refused. She continued to work in the when
needed, well as performing other duties in the store.
At the time of her discharge, Kloecker was spending a
of time in the produce department, ordering
and displaying the produce, and compiling records at the
end of week. Since her conversation with Goodman
in about her having lunch with the union busi-
ness agent, she was assigned to work fewer than 40
hours a week. Her timecards show that during this
week period, she generally went to work around 7 a.m.,
and worked about 7 hours a day on 4 weekdays and
about 5 hours on Saturday, for an average of 32.9 hours
a week. (The store was open 81 hours a week.) Except
when she began her day's work in the office, she was ex-
pected to be finished with her produce work by or
and be ready to assume other responsibilities
in the store. (One of the cashiers worked the produce on
Tuesday, her weekday off.) From time to time she was
by President Goodman for the back storage
room being orderly. She told him that she could not
care of all of the duties of the produce department,
plus her duties in the office, and in the groceries, in the
amount of time she was assigned to work. However, he
said she should be able to handle it in that amount of
time. (the mutual friend who had an auto sales
business across the street and who visited the store daily)
also talked to Goodman about keeping the
clean. told him that Kloecker "was very capa-
ble," doing a "good job," had "unlimited capacity
for work," was in fact "a workaholic," and "had helped
the tremendously, but she wasn't a good house-
keeper," pointing out the condition of the back room. As
Augustino credibly testified, "I'd say gee Nat, you've got
the girl running in two different directions at the same
time, maybe it would be to your benefit to hire some-
body a lesser rate to clean the room and keep her
where can utilize her," but Goodman responded that
she handle both. After her hours were cut in
August, Store Manager Edelman mentioned to her once
or twice "that the room should be kept in better order,"
and she suggested that someone be brought in to clean it
up she did not have the time, but he refused. He
also criticized her for something in the pro-
duce display, as when a customer would find a bad item
in the This would usually happen when she was on
job in the store.
Defenses
Despite its earlier admissions that Kloecker's union ac-
tivities were a reason for her discharge, the Company
took the position at the hearing that she was fired "solely
for reasons of unqualified performance," and that the
"Respondent could not have cared less" whether she
was involved in union activities.
After weighing all of the evidence and considering the
credibility of the witnesses, I find it clear that by the
time of the hearing, the Company had largely fabricated
an elaborate defense for the discharge.
As found above, the only reason President Goodman
gave at the time for terminating Kloecker-in addition to
her being a union "instigator" who was "influencing all
of the other employees towards the Unionw-was that
her "work has been bad for the last six months, I just
didn't want to tell you." Similarly, Goodman, thereafter,
told their mutual friend, Augustino, that Kloecker's
union activities and "unsatisfactory were the rea-
sons for discharging her. And in its September 21, 1979,
answer, the Company admitted the allegation in the com-
plaint that it discharged her because she supported or as-
sisted the Union, and alleged that she was also dis-
charged "for failure to follow company policy" (evident-
ly referring to punching her timecard), "for low produc-
tion of her department, and for improper display of the
items sold in her department." At the hearing, the Com-
pany added that she failed "to listen to directions so far
as her performance daily and the cleaning up and keep-
ing clean of her work areas, and excessive breaks
and lunch times."
I find that Kloecker's failure to punch in and out is
clearly a pretext for the discharge. The credible evidence
and Kloecker's timecards in evidence show that under
the former manager, Guido, the Company was quite lax
in enforcing the rule that employees must punch in and
out when coming to work and leaving, and at lunch.
Guido, who impressed me as being an honest witness,
gave some examples of the circumstances when he
would write in the at one time or another, for vir-
tually everybody in the store. If Kloecker was "supposed
to be done at and she'll work until and just shot
right out and I'd say I'd fill your card in for you and
I've done this . . . for every employee in that store."
Sometime "she came in when the girl was off and
did the office work, well she'd come in and shoot in the
office and never go back in to punch in . . . because a
lot of girls are scared to go in the back room when the
lights weren't on." However, when Edelman replaced
Guido, Edelman put up a larger sign, requiring that the
timecards be punched on arrival, when going and
coming from lunch, and when leaving. (I discredit, as
fabrications, the testimony by Edelman that the posted
sign states that employees must also punch in and out
"for all breaks" and that he mentioned to Kloecker that
punching in and out "for all breaks" was mandatory, as
well as the testimony by employee Flora Spitzer that the
sign states that you must punch in and out "for your
breaks" and that she does so for both her breaks and
lunch. There is obviously not enough space on the time-
cards for the morning and evening breaks. I also discred-
it, as a further fabrication, the testimony-later retracted
in part-by bookkeeper Mary Haggett that Kloecker was
the only employee who did not properly punch in and
mention
reliularly.
wctre
every
evc:ry
pu~ported after-
thc'ught,
aftc,rthoughts,
brief
wo:-ked."
Cornpany
Gocdman
Imxes
testi-
Mayo
depart-
men], 1 1:15
whe11
goin!;
became
Th,:
]neat
[displiiy]
ofreally
pmdute cooler
requirtd
rnorni~~g
Manager "Nat
kintls
s t ~ f f
nothin&:
"we
:use,
bares
coder.)
:hanged
pr.oduce
"three"
eragger-
impossible,
-
oftice
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out in the 2-year period, 1977 and 1978.) Edelman did
this rule to Kloecker, and the timecards in evi-
dence show that she began to punch in and out more
In the last 6 weeks before her discharge, there
few times when she did not punch her card proper-
ly. On the last week of her employment, she punched in
morning, out and in at lunch each day, and out
evening that she worked. I therefore find that this
reason for her discharge was a mere
based on prior conduct which had been correct-
ed. I further find that the claims that she was discharged
also for excessive breaks and lunchtimes are likewise
as well as the contention in the Company's
"that she received pay for hours which were not
Although not mentioned at the time of her discharge,
later to Augustino, or in the Company's answer, the
contends in its brief that "On the day Mr.
decided to fire her, the display case contained
six which were garbage," as Goodman and, it con-
tents, two "independent witnesses" testified. The
mon y indicates that this is another fabrication.
On Sunday, December 11, before going to the
Clinic, Goodman went to the store and inspected the
produce department in Kloecker's absence. (The
had been unattended since Saturday morning,
Kloecker finished spending 2-1/4 hours setting up
the produce display for the weekend.) His purpose in
to the store is indicated by his testimony "I
wanted to make sure at the time that I left that when
Brad [Edelman] had to finally take the reins the Compa-
ny was put into the best possible order and at that time it
apparent that she had to go."
first witness who testified what Goodman found
was wrapper Flora Spitzer (who was being paid
$5.50 an hour, as compared to the $5.25 an hour paid
Kloecker at the time of discharge). She testified that
Goodman had two employees "pulling stuff out of the
counter," and "there must have been about five
or six boxes trash that was all accumulated in the
[emphasis supplied too.]" (I note that she
is the employee who falsely testified that employees are
to punch their timecards when taking their
and evening breaks.) The next witness was
Meat Jim Nies, who testified that hap-
pened to be there and he just showed me, he had pulled
all of stuff out of the cases and he showed me all
this and what was wrong with it." (He mentioned
about boxfuls of anything found, either in the
display cases or in the cooler.) Next Goodman testified
that went through it and pulled out o f . . . the retail
display if my memory serves me correctly, about six
. . . of produce [emphasis supplied] that was gar-
bage." :He did not mention finding anything spoiled in
the When recalled as rebuttal witnesses, in an
apparent effort to reconcile this conflicting testimony,
Spitzer her claim of "five or six boxes" of trash
in the cooler to "three or four boxes of fruit and
produce that were just rotten" in the cooler, and still
later. to "three" boxes in the display rack and "three"
back in the cooler; whereas Nies changed his testimony
from "all kinds of stuff' in the display cases to "five or
six boxes" from the cooler, and later, to boxes
each from the display cases and the cooler. Kloecker
credibly testified that she was not aware until "today"
about the claim that there were five or six boxes of trash
in the produce department, that "I don't believe" there
were five of six boxes of trash or rotten produce on dis-
play, and that "I just can't imagine leaving three boxes
of bad fruit in the cooler!' Although there was undoubt-
edly some spoiled produce in the department this long
after Kloecker finished the displays on Saturday morn-
ing, I find that the three witnesses were greatly
ating when they gave the conflicting testimony. After
considering all the evidence and circumstances, I find
that Goodman went to the store that morning to find a
pretext for discharging Kloecker. I therefore agree with
the General Counsel that Goodman desired "to get rid of
the union problem before turning the management of his
stores over to Edelman," and that "whatever problems
there were that morning did not cause Kloecker's termi-
nation, as her fate was sealed before Goodman even
reached the store that day."
Contrary to Goodman's statement over the telephone
to Kloecker from the hospital the next morning that
"your work has been bad for the last six months, I just
didn't want to tell you," he claimed at the hearing that
"Margaret wasn't doing a good job for the entire year,"
that he did not lay her off or terminate her at the begin-
ning of 1978 because of "the advice of my counsel. . . .
We had had union activity, and any firing of anybody
. . . got me involved in union problems, so she was kept
on because of her possible union activities. She . . . was
kept on . . . until it got to a point that it was
just .absolutely ridiculous." This testimony was clearly
fabricated. Kloecker had not engaged in any union activ-
ity until August, and Goodman had no reason for sus-
pecting that she did until then. He admitted that "prob-
ably" other employees had been terminated that year,
and it was not until March that Goodman had taken ac-
tions to decertify the Union, precipitating the filing of a
refusal-to-bargain charge. I consider it most unlikely that
he had wanted to discharge her all year when, as found
above, he continued to compliment her for her work into
1978, and sought in June to have her perform even more
duties outside the produce department by doing all of the
clerical work. In its brief, the Company also con-
tends that Goodman believed in January that "since he
was so ill he could not disturb the employee situation as
it then existed since he was not certain that he could
obtain necessary substitutes." However, Goodman's
health was worse in December when he discharged
Kloecker from the hospital, and Store Manager Edelman
admitted that Goodman "called me afterwards to tell me
that he had let her go and I had better make some other
arrangements to run the produce department, which I
did."
To bolster his testimony that Kloecker's work was un-
satisfactory, Goodman made other claims for the first
time at the hearing. He claimed that she "never rotated
the stock," but instead "would work basically off what
just came in and ignored what was in the cooler." (In
fact, as Kloecker credibly testified, this could happen on
1045
9:30
bef
were
time.
wrls
afffiiated)
that
critici:~e
discharged.
Edelman
bi,eaks)
September,
act
the
:iuccessfully
high-volume
succetded
$1,100 !;1,300
$:!,128.60
ic
she
Supc:rvisor
gross
p:rcent
prolluce
$2,128.43 1979),
(Resp. 58),
Kltecker's
8(a)(3)
(1)
8(aX3) (1)
2(6)
fmd
E Woolwrth
(1950),
Corpomtion,
Isis & Ca,
lqc )
&
AFL-CIO-
(b)
Sec.
Sec.
PAUL BUNYAN FOODS
mornings when she worked in the office until or 10
o'clock "and the produce had already arrived and was
sitting in the back room and I was already two or three
hours ind.") He claimed that once she put a piece of
produce in the display case, it stayed there until it was
time to throw it out; it was never reworked. Undoubted-
ly if this true, he would have mentioned it to her at
some He claimed that he did not think that the
cooler cleaned for months, "maybe twice" in the
whole yeiu; whereas Kloecker credibly testified that she
did so on the average of once a month. Goodman
claimed that for months, Grocery Supervisor Michael
Dowd of the Golden Dawn food chain (with which the
Company is had recommended that Kloecker
be discharged for poor performance; however, Dowd
denied that he ever made such a recommendation. Dowd
claimed he recommended that Kloecker be replaced
and reassigned. I consider this unlikely because he did
not her work, he merely made suggestions, and
he offered her a personal recommendation after she was
But even if true, the Company summarily
dischargec. her instead, without offering her any of the
other jobs she had been performing satisfactorily.
Store Manager (who falsely testified that the
employees must punch the clock at the morning and
evening claimed that he told Kloecker, "I'd say
in October, November, right in there, that
she was not running the produce department like we
would like it to run" and that "she would have to clean
up her or get out." To the contrary, I credit
Kloecker's denial that this ever happened.
Finally, the Company contends in its brief that
Kloecker was discharged because "her department
showed intolerable low profits." To the contrary, the
prices on produce had been lowered in order to com-
pete more with the serious competition from
the produce outlet, which was nearby, in
the hopes of raising the sales and eventually the profits.
She in increasing the volume from about
to a week to an average of $2,116.06 in
1977 and in 1978. And this higher volume con-
tinued even after Goodman talked to her about her union
activities August, when her hours of work were re-
duced to ar average of 32.9 hours a week-several hours
of which spent performing other duties in the store,
outside the produce department. Largely ignoring the
competition from the nearby produce outlet, Golden
Dawn Dowd claimed that the produce de-
partment's profit (which was 23.3 percent in 1977
and 23.68 in 1978) was intolerably low, as shown
by the gross profit for 1979, after Kloecker's discharge,
of 31.19 percent. But it is obvious that he was not en-
deavoring to give an accurate picture of the profit situa-
tion. He ignored the fact that with about the same
weekly sales (they dropped slightly from an
average of a week to $2,073.97 in there
was a large increase in the number of man-hours used in
the produce department. Although the sales dipped only
slightly, the sales per man-hour decreased from $60.51 in
1978 to $50.79 in 1979 Exhs. 57 and indicat-
ing that replacement was assigned to work
longer hours in the produce department-permitting
more sufficient time for better looking displays and
better care of the produce-but reducing the net profit.
After considering all of the evidence and circum-
stances, as well as the admissions, shifting defenses, and
clearly fabricated defenses, I reject the Company's con-
tention that its motivating factor in discharging Kloecker
was her "deplorable" work record and had nothing to
do with her union activity. Instead I find that President
Goodman discharged her to eliminate the Union from
the West Side store before turning the management reins
over to his nephew, thereby violating Section and
of the Act.
By discriminatorily discharging Margaret Kloecker on
December 11, 1978, because of her support of the Union
and in order to discourage union membership, the Com-
pany engaged in unfair labor practices affecting com-
merce within the meaning of Section and and
Section and (7) of the Act.
Having found that Respondent has engaged in certain
unfair labor practices, I it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Since Respondent discriminatorily discharged an em-
ployee, I find it necessary to order it to offer her rein-
statement with compensation for loss of pay and other
benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement, less net
interim earnings, in accordance with W.
Company, 90 NLRB 289 plus interest as comput-
ed in Florida Steel 231 NLRB 651 (1977).
See, generally, Plumbing Heating 138 NLRB
716 (1962).
Upon the foregoing findings of fact, conclusions of .
law, and upon the entire record, and pursuant to Section
of the Act, I hereby issue the following recom-
mended:
The Respondent, Voss Goodman, Inc., d/b/a Paul
Bunyan Foods, Erie, Pennsylvania, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for supporting Retail Store Employees
Union, Local 880, Erie Division of the United Food and
Commercial Workers International Union,
CLC, or any other union.
In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
In the event no exceptions are filed as provided by 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1046
1 . aff~rmative
efftctuate
(3) rein-
stalement
exi!;ts, prej-
udize
pal
(1,)
Boiud
cards,
backpay
(4:)
"Appen-
d i ~ . " ~
Regional
pos1.d
no-
ticxi
mat, :rial.
step1
--
that
State, the worde In "Posted
Orde~ the PUFJU-
10 the
Orda
EMPLOYEES
has
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Take the following action necessary to
the policies of the Act:
Offer Margaret Kloecker immediate and full
to her former job or, if her job no longer
to a substantially equivalent position, without
to her seniority or any other rights or privileges
previously enjoyed, and make her whole for any loss of
or other benefits she may have suffered by reason of
the discrimination against her in the manner set forth in
the "Remedy" section of this Decision.
Preserve and, upon request, make available to the
or its agents, for examination and copying, all
payroll records, social security payment records, time-
and personnel records and reports, and all other
records necessary to analyze the amount of due
under the terms of this Order.
Post at its West 26th Street store in Erie, Pennsyl-
vania, copies of the attached notice marked
Copies of the notice, on forms provided by the
Director for Region 6, after being duly signed
by Respondent's authorized representative, shall be
by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the
are not altered, defaced, or covered by any other
(a) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
Respondent has taken to comply herewith.
a I I the event this Order is enforced by a Judgment of the United
Court of Appeals, the notice reading by
of National Labor Relations Board shall read "Posted
ant a Judgment of United States Court of Appeals Enforcing an
of the National Labor Relations Board."
APPENDIX
NOTICE TO
POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act, as amended,
and ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
T o engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT discharge or otherwise discrimi-
nate against you or any other employee for support-
ing Retail Store Employees Union, Local 880, Erie
Division of the United Food and Commercial
Workers International Union. AFL-CIO-CLC, or
any other union.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce you in the exercise
of the rights guaranteed by Section 7 of the Act.
WE WILL offer Margaret Kloecker immediate
and full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other
rights and privileges previously enjoyed, and make
her whole for any loss of pay or other benefits since
her discharge, plus interest.