Shop Rite Foods, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1963

141 N.L.R.B. 1013 (N.L.R.B. 1963)

SHOP RITE FOODS, INC. 1013
APPENDIX A
EASTERN CAMERA & PHOTO CORP__ 68 W. Columbia St., Hempstead, N.Y.
Subsidiaries
Eastern Camera Exchange Lynbrook Corp_ 6 Hempstead Ave., Lynbrook, N.Y.
Eastern Camera Exchange Long Beach
Corp------------------------------ 20 W. Park Ave., Long Beach, N.Y.
Roosevelt Shopping Center,
Garden City, N.Y.
Eastern Camera Exchange Freeport Corp__ 106 S. Main St., Freeport, N.Y.
Mid-Island Shopping Plaza,
Hicksville, N.Y.
Eastern Camera Exchange Huntington
Corp------------------------------ 354 New York Ave., Huntington, N.Y.
18 Deer Park Ave., Babylon, N.Y.
Eastern Camera Exchange North Shore
Corp------------------------------ 933 Port Washington Blvd.
Port Washington, N.Y.
Eastern Camera Exchange Bayshore Corp_ 58 W. Main St., Bayshore, N.Y.
Eastern Camera Exchange Levittown
Corp------------------------------ 3000 Hempstead Turnpike,
Hempstead, N.Y.
Eastern Camera Exchange Hicksville
Corp------------------------------ S W. Marie St., Hicksville, N.Y.
Ankay Camera Corp------------------ 4046 Main St., Flushing, N.Y.
Lucan Camera Corp------------------- 1980 Northern Blvd., Manhasset, N.Y.
Eastern Camera Exchange Washington
Corp------------------------------ 68 W. Columbia St., Hempstead, N.Y.
Shop Rite Foods , Inc. and United Packinghouse, Food and Allied
Workers, AFL-CIO. Case No. 16-CA-1681. March 29, 1963
DECISION AND ORDER
On December 20, 1962, Trial Examiner Abraham H. Mailer 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. Thereafter , the Respondent filed exceptions to 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 [Members Rodgers , Fanning, and Brown].
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 Intermedi-
ate Report and the entire record in the case, ' including the exceptions,'
'As the record and exceptions adequately present the issues and the positions of the
parties, the Respondent 's request for oral argument is denied.
I The Respondent ' s exceptions to the Intermediate Report are in large part directed to
credibility resolutions of the Trial Examiner . We will not overrule the Trial Examiner's
resolutions as to credibility unless a clear preponderance of all relevant evidence con-
vinces us that they are incorrect. Such a conclusion is not warranted here. Standard
Dry/ Wall Products , Inc., 91 NLRB 544, enfd . 188 F . 2d 362 (C.A. 3).
141 NLRB No. 88.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner except as modified herein.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner 3 with the following amendments :
(1) The phrase "except as permitted by the proviso to Section
8 (a) (3) of the Act," shall be deleted from paragraph 1(a) thereof 4
(2) The phrase "except to the extent that such right is affected by
the proviso to Section 8 (a) (3) of the Act," shall be deleted from
paragraph 1(d) thereof.
(3) The foregoing phrases concerning the proviso to Section 8 (a) (3)
shall also be deleted from the Appendix.
(4) The NOTE contained in the Appendix concerning notification
to employees if presently serving in the Armed Forces shall be deleted
and the following paragraph substituted therefor :
NoTE.-We will notify the above-named employees if presently
serving in the Armed Forces of the United States of their rights
to full reinstatement upon application 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.
3 For the reasons set forth in his dissent in Isis Plumbing d Heating Co., 138 NLRB
716, Member Rodgers would not grant interest on backpay, and does not approve such an
award here.
4 Texas has a right-to-work law.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge filed on June 13 and 26, 1962, respectively,
by United Packinghouse, Food and Allied Workers, AFL-CIO, herein referred to
as the Union, the Regional Director for the Sixteenth Region of the National Labor
Relations Board, herein called the Board, issued a complaint on behalf of the General
Counsel of the Board on August 13, 1962, against Shop Rite Foods, Inc., herein
called the Respondent, alleging violations of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called
the Act. In substance, the complaint alleged instances of interference with, restraint,
and coercion of Respondent's employees in the exercise of rights guaranteed by
Section 7 of the Act and the discriminatory discharge of employees Dell Wayne
Ivey and Matt West. In its duly filed answer, Respondent denied the commission of
any unfair labor practice.
Pursuant to notice, a hearing was held before Trial Examiner Abraham H. Mailer
at Lubbock, Texas, on August 21 and 22, 1962. The General Counsel and the
Respondent were represented and were afforded full opportunity to be heard, to
introduce relevant evidence, to present oral argument, and to file briefs. Briefs
were filed by the counsel for the General Counsel and by the Respondent.
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of each of the witnesses,' I make the following:
1 Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his de-
meanor as I observed it at the time the' testimony was given. Cf. Retail Clerks Inter-
-national Association , AFL-CIO, Local $ 19, National Food Stores, Inc., 134 NLRB 1680,
SHOP RITE FOODS, INC.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
1015
The Respondent maintains its principal office and place of business in the city
of Albuquerque, New Mexico, and various other places of business and facilities in
the States of New Mexico and Texas, and is engaged at said locations in the operation
of retail grocery stores and warehouses. The Respondent's warehouse located at
Lubbock, Texas, herein referred to as the Warehouse, is the only facility involved
in the instant proceeding. During the past year, Respondent in the course and conduct
of its business operations, sold and distributed products, the gross value of which
exceeded $500,000. During the same period of time, Respondent shipped and
transported products valued in excess of $50,000 from its stores and warehouses, in
interstate commerce directly to States of the United States other than the State of
Texas. During the same period of time, Respondent received goods valued in
excess of $50,000, transported to its stores and warehouses in interstate commerce
directly from States of the United States other than the State of Texas. In view
of the foregoing, I find and conclude that the Respondent is engaging in commerce
within the meaning of the Act and that it will effectuate the policies of the Act for
the Board to assert jurisdiction here.
II. THE LABOR ORGANIZATION INVOLVED
United Packinghouse, Food and Allied Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ISSUES
1. Whether the Respondent discriminatorily discharged Dell Wayne Ivey and
discriminatorily laid off Matt West and thereafter failed and refused to reinstate them
in violation of Section 8(a)(3) and (1) of the Act.
2. Whether the Respondent interfered with, restrained, or coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act, in violation of
Section 8 (a) (1) of the Act.
IV. THE UNFAIR LABOR PRACTICES
A. Background- the Union 's organizational campaign
In the latter part of May 1962, employee Matt West got in touch with Marion
Ramon of the United Packinghouse, Food and Allied Workers, AFL-CIO, and
obtained from him union cards which he undertook to have signed by the Respond-
ent's employees. West solicited and obtained the assistance of employee Dell Wayne
Ivey in this endeavor. Ivey was not given any cards. Instead, West instructed Ivey
to send the employees to him so that he could explain the facts of the Union to them
and get them to sign up. On June 4 West spoke to Ramon about arranging a meeting
for Respondent's employees who were interested in the Union. A meeting was
scheduled to be held on June 8 at Carpenters Union Hall in Lubbock, Texas. The
meeting was held as scheduled, and approximately 14 of Respondent's employees
attended. West spoke at the meeting. Ivey did not speak at the meeting, but was
active in the organizational campaign, speaking to fellow employees and encouraging
them to sign union cards. West and Ivey were the only two employees of the Re-
spondent who were active in the Union' s organizational campaign.
The Respondent became aware of the campaign shortly after its inception. Two
employees came to the office of Warehouse Superintendent William B. "Frenchy"
Rematore and told him that West had given them union cards .2 On June 7, Respond-
ent distributed a letter to all of its warehouse employees, in which it extolled the
economic benefits with which it had provided its employees, and castigated unions
and the persons seeking to establish a union at the Respondent's plant. The letter,
which specifically mentioned the forthcoming meeting of June 8, was signed by
Rematore, his two superiors, Charlie Pearson and Paul Dolezal, Respondent's five
foremen, and Dispatcher Robert E. Hogue. After the meeting, Warehouse Super-
footnote 3: Bryan Brothers Packing Company, 129 NLRB 285. To the extent that I In-
dicate that I do not rely upon or reject in part or entirely the testimony of any given
witness, it is my intent thereby to Indicate that such part or whole of the testimony, as
the case may be, Is discredited by me. Cf. Jackson Maintenance Corporation , 126 NLRB
115, 117, footnote 1, enfd . 283 F. 2d 569 (C.A. 2).
2 It was stipulated that Rematore is a supervisor within the meaning of the Act.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intendent Rematore was informed by some employees as to the identity of the
employees who had attended. Rematore admitted that he knew prior to June 11
that West was the instigator of the Union's organizational campaign and that Ivey
was a member.
B. The discriminatory discharge and layoff
1. Dell Wayne Ivey
Dell Wayne Ivey had been employed by Respondent continuously since 1958. He
had been hired as a boxcar unloader and was promoted to towmotor 3 operator, a
position which he had held for 21/2 to 3 years before his discharge. His performance
was admittedly above average. He could unload a boxcar faster than the other
towmotor operators and did a better job. As a result, in September or October
1961, he received a merit increase from $1.65 to $1.70 per hour. At that time,
Respondent had been paying towmotor operators a maximum of $1.65 per hour.
Later, Respondent set up a new wage scale for all warehouse employees. All ware-
house employees, Ivey included, who had been with Respondent for more than a year
were paid a maximum of $1.75 per hour. On both of these occasions, Warehouse
Superintendent Rematore congratulated Ivey on his performance as a towmotor
operator?
On June 11, the Monday following the June 8 meeting of the Union, Ivey was
discharged. The following are the events leading to the discharge. On the morning
of Saturday, June 9, Warehouse Superintendent Rematore came upon West and
Ivey as they were unloading a boxcar. Rematore said that he did not want any
union activity around the plant or any union cards being signed up there, and that
he would fire anybody who had anything to do with the Union. West replied that
under the law a person could not be fired for union activity; that the employer would
have to have a reason. Rematore then said that he could make a reason if he had
to; that four men (not involved in the instant case) had previously been fired for
union activity .5
Respondent objected to the admission of testimony regarding the foregoing incident
on the ground that the incident is not alleged in the complaint and no violation of
Section 8(a)(1) is predicated upon that incident. I overruled the objection and
received the evidence solely as bearing on the question whether Ivey and West were
discharged for union activity. It is considered now for that purpose only.
On Monday, June 11, Ivey came to work at 7:30 and started up his towmotor.
He heard a clicking noise. Believing that there was something wrong with the
towmotor, he drove it to his supervisor Milton McCrady-a distance of about one
block. Foreman McCrady and Ivey examined the towmotor and saw that there
was a coil wire coming out of the distributor which was jumping fire. Ivey had
previously called Foreman McCrady's attention to this condition, but it had not
been repaired. Ivey then checked the oil in the motor. It barely showed at the end
of the stick. Ivey told McCrady that he did not understand why there should be
no oil in the motor, since the towmotor had been serviced only 2 days earlier, at
which time the oil should have been changed.6 McCrady then told Ivey to return
to the place where the towmotor had been parked over night to see whether the oil
had leaked out of the towmotor. Ivey did so, but found no oil on the floor.
Prior to Ivey's coming to work that morning, Warehouse Superintendent Rematore
had been checking the assembly lines near the place where the towmotors were
8 A towmotor is also known as a forklift.
' Ivey's testimony corroborated by Rematore.
5 The credited testimony of Ivey and West. Warehouse Superintendent Rematore denied
that this incident ever occurred. I do not credit his denial. To substantiate his denial,
Rematore testified that the discharge of the four men referred to above occurred before he
was employed by the Respondent and that he did not learn about it until after Tune 18.
It is admitted that the discharge of the four men referred to occurred before Rematore
was employed by the Respondent. However, it does not follow that Rematore could not
have known about it prior to June 9, when the foregoing conversation occurred. Sig-
nificant is the fact that as early as June 7, the Respondent was sufficiently. concerned
with the Union's organizational campaign to issue its letter to all warehouse employees
indicating its opposition to the Union. It is not unlikely that the Respondent's attitude
toward unions and its past experience with unions was discussed among the members of
Respondent 's hierarchy at Lubbock , of which Rematore was a member.
9 It was Respondent's practice to have its towmotors serviced every 2 weeks by Asso-
ciated Supply. Among other things, the oil was changed when the towmotor was serviced.
The towmotor assigned to Ivey.had• been serviced the Thursday before.
SHOP RITE FOODS, INC. 1017
parked. He observed that one of the towmotors with a loading platform on it was
parked in such a way as partially to block the door. He waited to see who would
drive the towmotor so that he could speak to the driver about having left his tow-
motor in that position . He saw Ivey mount the towmotor , start it up and drive off
without checking the oil . He immediately followed in order to speak with Ivey
and came upon him when he was discussing the condition of the towmotor with
Foreman McCrady. When Warehouse Superintendent Rematore learned of the
lack of oil in the towmotor , he directed McCrady to call Associated Supply to come
down and check the motor . Mechanics from Associated Supply checked the tow-
motor and discovered that the breather under the towmotor had become clogged,
as a result of which the oil was lost through the exhaust .7 Rematore admitted that
the clogging of the breather was due to no fault on the part of Ivey, but should have
been discovered and corrected by Associated Supply when it checked and serviced
the towmotor.
At about 11 a.m., Warehouse Superintendent Rematore called Ivey into his office
and discharged him. The stated reason for the discharge was that Ivey had disobeyed
Rematore 's instructions to check the oil in his towmotor every morning and in
driving it without oil in it. Rematore testified that there was another reason for
the discharge , viz, he wanted to make an example of Ivey and thereby impressed
upon the other towmotor operators the necessity of checking the oil daily. Ivey
wanted to tell Rematore his side of the story , but, as Rematore testified, "I had
made up my mind that I was going to fire him and I didn't think anything he was
going to tell me at that time was going to change my mind."
After lunch that day, employee West went to Warehouse Superintendent Rema-
tore's office and said "Frenchy , you got a lot of men-a lot of good men out there
in the warehouse like Dell Wayne Ivey and I don't want to see them get fired and
I'll go out and collect every man's union card and I will put them right on your
desk if that will save their jobs." Rematore replied that he did not care what West
did with his union cards and that he had fired Ivey because he had not checked the
oil in his towmotor and had operated the towmotor with very little or no oil in it.
The towmotor assigned to Ivey was only about 2 years old . It was his practice
to check the oil about once a week , and he found that it never used any oil. Rematore
admitted that Ivey's towmotor had been in continuous operation since June 11 and
had revealed no damage . The towmotor operators had never been instructed to
check the oil in the towmotor every morning before operating them . Warehouse
Superintendent Rematore testified that in a meeting in November 1961 he had so
specifically directed the towmotor operators . However , Ivey and employee Charles
T. Hunnicutt , another towmotor operator, testified credibly that they had attended
the November 1961 meeting and had not been so instructed or directed by Rematore.
Employee Lester Duquette, another towmotor operator , testified credibly that he was
not instructed by Rematore or by any other superior to check the oil in his towmotor
daily until after Ivey's discharge . In view of the foregoing , I find that Warehouse
Superintendent Rematore had not instructed the towmotor operators to check the
oil every morning before operating their towmotors.
Concluding Findings as to Ivey 's Discharge
As previously noted , Ivey had a good record. His performance as a tow-
motor operator was admittedly above average. He had received one merit in-
crease of pay and one general increase , and on both occasions was complimented by
Warehouse Superintendent Rematore for working faster than any other towmotor
operator . I find that Ivey did not violate any instructions by failing to check the oil
in his towmotor on the morning of June 11, nor was he negligent in operating the
towmotor from the place where it had been parked to Foreman McCrady's station
without first checking the oil.
The second reason assigned for Ivey's discharge , i.e., to impress upon the other
towmotor operators the necessity of checking the oil daily, is also open to question.
Warehouse Superintendent Rematore admitted that he had never checked , prior to
this incident , to see if the instructions which he ^ allegedly gave in November 1961
were being carried out ; that the Ivey incident was the first that had ever come to
his attention. In these circumstances , he did not know when he discharged Ivey
whether it was necessary to make an example of him. Thus, it appears that the second
reason assigned by Rematore is an attempted after -the-fact justification for his action.
Moreover , Ivey's discharge judged in the light of other events presents • a clear
case of disparate treatment which can be attributed only to his membership in the
7 The undisputed testimony of Rematore.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. Around the first of the year Douglas Hawkins, a truckdriver for Respondent,
fell asleep while driving his truck and collided with a police car and another vehicle.
His negligence cost the Respondent approximately $4,000 in damages. Hawkins
was not discharged. Instead, he was demoted to lift operator. His hourly rate of
pay was not decreased; only the hours he worked were cut from between 52 and 60
hours a week to between 47 and 52.
Similarly, two employees who had engaged in scuffling with each other in the
warehouse were not discharged, although their conduct violated company rules.
Instead, Rematore called them into his office and warned them that any further
occurrences of that kind would be met with dismissal. No such warning was ever
issued to Ivey.
In the light of the foregoing, I find and conclude that the stated reason for Ivey's
discharge was merely a pretense-a shield for the motivating cause which was his
union membership and activity. Respondent was anxious to thwart the Union's
organizational campaign, even if it meant sacrificing a superior employee to achieve
that objective.
2. Matt West
Matt West was employed by the Respondent on April 20, 1962, as a boxcar un-
loader. As previously noted, he was the instigator of the Union's organizational
campaign. He was laid off on June 18, called back to work on June 20, worked
June 21, and was then laid off indefinitely. Later, when West failed to respond to
Respondent's offer to come back to talk things over with regard to future employ-
ment, his employment was terminated.
When West was employed by the Respondent on April 20, 1962, his employment
was of a temporary nature. On the second day of his employment, West told
Warehouse Superintendent Rematore that he was quitting due to the fact that he
had been offered a better job. West pointed out to Rematore that while the new
job which he had been offered was only temporary, it would pay considerably more
money than he was being paid by the Respondent. Rematore assured him that his
work was satisfactory and that if he stayed on with the Respondent he would have
a permanent jobs
Approximately a month after West began to work for the Respondent, he sustained
a back injury while working. This made him less productive than he had been before
he was injured. However, Warehouse Superintendent Rematore admittedly never
told West prior to his layoff that his work was slow. On June 18, 1962, Warehouse
Superintendent Rematore called West into his office and told him that there had
been a labor cutback at the plant; that West and another boxcar unloader, Clifford
Ellis, who had been hired a day after West reported to work, would be laid off;
and that he would call Ellis back to work before he would call West, as West was
slower than Ellis due to the former's back injury. On the same day, Respondent hired
two new employees: R. G. Methiney and Jack Gist. Methiney was hired as an
order filler, having had previous experience as such with another concern. Gist
was hired as a boxcar unloader, the same classification held by West .9
On June 20, 2 days after his layoff, West returned to Respondent's office to pick
up his check. Warehouse Superintendent Rematore met him and told him that work
had picked up; that he had already called Clifford Ellis back to work; and that he
was going to put West back. He said "I want you to understand that it will be
temporary."
West returned to work the next day. At the end of the day, he was again called
to Warehouse Superintendent Rematore's office and was told that he was being laid
off again. Rematore told him that the work had slacked off again and that this time
his layoff would be indefinite-he would not be called back. Rematore also told
him he could draw his unemployment compensation if he wanted-that the Respond-
ent would not oppose it. Ellis admittedly, was not laid off.
a The credited testimony of West. Rematore's version of the foregoing differed only
slightly from West's version, except in one material respect: Rematore denied that he had
made a commitment to West that his employment would be permanent. Based upon my
observation of the demeanor of the witnesses when testifying, I credit the testimony of
West and do not credit that of Warehouse Superintendent Rematore. Moreover, it is not
reasonable to believe that West would have rejected a higher paying job elsewhere unless
he were assured that his employment at the Respondent's warehouse was permanent.
Gist was a college student who had previously worked for the Respondent while not
attending school. He continued to work for the Respondent until the middle of August
19 &2.
SHOP RITE FOODS, INC. 1019
After a charge had been filed on behalf of West,'° Warehouse Superintendent
Rematore made a strenuous effort to get in touch with him. On or about July 6,11
Warehouse Superintendent Rematore accompanied by Dispatcher Hogue drove to
West's home. They made three calls at West's home that evening, but West was not at
home. After the third attempt, Rematore drove Hogue home. He then made
three further attempts that evening to see West, but found nobody at home. Finally,
he went across the backyard to one of the neighbors and left the oral message that
the Shop Rite job was open again and that if West wanted to talk to him about it
to get in touch with him. The next morning, Warehouse Superintendent Rematore
accompanied by Foreman Blackmon drove to West's home. West was not at
home, and Rematore spoke to his wife. He told her that if West was interested
in coming back to work to get in touch with him and to discuss it with him; that
he had a job there but, knowing that he had laid West off before and taken him back,
he did not know whether West was still interested in coming back. He admitted that
he did not tell Mrs. West that if West came back to work it would be on a permanent
basis. On the following Monday, Warehouse Superintendent Rematore reported to
Mr. Pearson, his superior, the efforts he had made to get in touch with West. West
testified credibly that his wife told him that Rematore had asked him to come back
work on a temporary basis. He did not communicate with anyone at the Respondent's
warehouse because he was not interested in going back to work on a temporary
basis with the prospect of being laid off again . At that time, he was already working
on another job.
Concluding Findings as to West's Layoff
I find and conclude that West was laid off because of his union activities. West
was the leader of the Union' s organizational campaign, and this fact was well known
to the Respondent long before his layoff. In addition, Warehouse Superintendent
Rematore had threatened to fire anybody active in the Union. Respondent's con-
tention that West's layoff was occasioned by business fluctuations is not borne out
by the record. On the very day that West was laid off for the first time, Respondent
hired two new employees, one of whom had the same job classification as did West.
In the light of the foregoing , Respondent's reinstatement of West as a temporary
employee for 1 day and then laying him off indefinitely was merely a stratagem to
change West's status from that of a permanent employee to a temporary one.
These findings are not affected by Warehouse Superintendent Rematore's alleged
offer of reinstatement made after the filing of the charge. "El Imparcial," Inc., 92
NLRB 1795, 1800. Rematore's offer was not a definite offer of reinstatement. By
his own admission, he merely indicated that West's job was open and invited West
to discuss the matter with him. As such, the alleged offer "was simply in the nature
of a preliminary `sounding out' of . . . [West's] willingness to return to the Respond-
ent's employ, and, in any event, was not a clear and definite offer of reinstatement"
(Barr Packing Company, 82 NLRB 1, 4).12 In view of all the foregoing I find that
West was discriminatorily laid off because of his union activity and was not offered
reinstatement to his former position.
C. Interference, restraint, and coercion
1. Interrogation by Warehouse Superintendent Rematore
On June 16, Lester Duquette, a towmotor operator, returned to work for the Re-
spondent after an illness of more than 5 weeks . Because of his illness , Duquette had
been unable to pay various obligations which he had incurred, and his creditors had
written to the Respondent about the matter . Warehouse Superintendent Rematore
called Duquette into his office on June 18 and discussed Duquette 's financial diffi-
culties with him . Rematore promised to work out some plan by which payments on
10 First amended charge filed June 26, 1962.
n Rematore was unable to fix the precise date other than that it was on a Friday.
I have fixed the time by relating it to other events appearing in the record.
12 The foregoing discussion is based on Rematore 's testimony as to the message which
he left with West's wife. West understood the message as an offer of temporary employ-
ment in which he was not interested . If the offer was one for temporary employment (as
distinguished from an invitation to discuss the matter with Rematore), it was neverthe-
less an ineffective offer of reinstatement to a permanent job which I have found that West
had held prior to his discriminatory layoff . S. S. Coachman and Sons , Inc., 99 NLRB
670, 671.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
account could be made regularly on the various indebtednesses.13 Rematore then asked
Duquette if he was familiar with what was taking place about the Union. -Duquette
answered that he had heard about it from a truckdriver just before he came back to
work. Rematore then asked Duquette how he was going to go. Duquette replied
that he was more or less afraid of the Union because it would not be strong enough
but that he wanted to see how the other fellows felt. Duquette then asked Rematore
whether the Company would stand for it if the Warehouse went union, and Rematore
replied that the Respondent would not accept it. He added that he felt that the
Company was paying good enough wages as it was and he did not think there would
be any need for a union. Rematore also said that he had checked around and found
out that Matt West had been working with the Union and that he and the Company did
not like for men to work there who were working for the Union.14
2. Robert E. Hogue
On June 7, employee Hunnicutt was engaged in a conversation with Dispatcher
Hogue. An unidentified order filler came by and, referring to Respondent's letter of
June 7 advising the warehouse employees of its opposition to the Union, asked "Did
you all get your letter?" The order filler then left. Dispatcher Hogue said "Well, I
can't say anything but you had better think it over." Before he left, Dispatcher Hogue
said, "You had better think it over; I know what would happen, Mr. Wilcox [president
of Respondent] doesn't much like the warehouse anyway and he would shut it down."
Hunnicutt testified that he understood that Dispatcher Hogue was referring to the
Union-if the Warehouse should become unionized.15
Concluding Findings as to Interference, Restraint, and Coercion
I find and conclude that Warehouse Superintendent Rematore's interrogation of
employee Duquette constituted restraint and interference within the meaning of
Section 8(a)( I) of the Act. Moreover, the interrogation was accompanied by state-
ments to the effect that the Respondent did not want the Union to come in and
would not accept the Union; that if the Union came in the Respondent would close
its warehouse; and that the Company did not like for a person to work for it who was
working for the Union. I, therefore, find and conclude that by such interrogation
Respondent interfered with and restrained its employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section 8(a)( I) of the Act.
With respect to Dispatcher Hogue's threat that President Wilcox would close the
Warehouse if it went union, it is not clear from the record whether Hogue was a super-
visor within the meaning of the Act. Hogue was a salaried employee and operated
out of Respondent's office. He acted as final checker, described by Warehouse Super-
intendent Rematore as a position of trust and confidence. He directed the work of
towmotor operators 16 and assigned the time for truckdrivers to come to work.
Rematore expected Hogue, in common with the foremen, to report to him instances
where employees did not carry out orders. Neither Hogue nor any foreman had
authority to hire, discharge, or discipline. However, they did make recommendations
which were acted upon in the following manner: Warehouse Superintendent Rematore
would discuss the matter with the person who made the complaint-the employee's
past work record, honesty, and work quality. Rematore would then call in the em-
ployee and listen to his side. After these discussions, he would make up his mind as to
whether he should follow the recommendation. With regard to Hogue, Rematore
had told employee Hunnicutt that he respected Hogue's judgment. On that occasion,-
Rematore reprimanded Hunnicutt on a complaint made by Hogue.
is About a week later, Rematore called Duquette into his office and told him that he had.
arranged to have Duquette earn $15 additionally each week by working half an hour over-
time each day, and that he had worked out a plan under which Duquette would make
small payments to each creditor regularly.
14 The credited testimony, of Duquette. Rematore admitted that unions generally were
discussed, but denied uttering any threat that the plant would close if it went union.
Based upon my observation of the demeanor of the witnesses when testifying, I have
credited Duquette's testimony and do not credit Rematore. Moreover, it is significant that
Duquette had no apparent motive to attribute falsely any unlawful conduct to Rematore.
To the contrary, Rematore had made it possible for him to extricate himself from his
financial difficulties by giving him overtime work.
15 The credited testimony of Hunnicutt. Dispatcher Hogue did not testify.
16 However, Hunnicutt testified that he considered Foreman McCrady, rather than Dis-
patcher Hogue, as his supervisor.
SHOP RITE FOODS, INC. 1021
However, it is unnecessary to determine whether Dispatcher Hogue was a super-
visor within the meaning of the Act. Even if he was not, his statement to Hunnicutt
that Respondent's president would close the Warehouse (if it should become union-
ized)> is• rievertheless chargeable to the Respondent. The Respondent had put Hogue
in a position to be identified with management in the eyes of the employees and to,
translate to them the policies and desires of management. Thus, he attended weekly
meetings of Respondent's hierarchy at the Warehouse, a fact which was known to-
employee Hunnicutt. Cf. Harrison Sheet Steel Co., 94 NLRB 81, 82, enfd. 194 F. 2d
407 (C.A. 7); Solo Cup Company, 114 NLRB 121, 122, enfd. 237 F. 2d 521, 524
(C.A. 8). In addition, he was one of the signers of the June 7 letter issued by Re-
spondent to the warehouse employees. All the other signers were members of Re-
spondent's hierarchy. By issuing that letter over Hogue's signature, Respondent
held Hogue out to the employees as a person who was acquainted with Respondent's
policies and desires with regard to the Union and the effect of unionization on the
Warehouse. I therefore find and conclude that Respondent is responsible for
Dispatcher Hogue's statement to Hunnicutt. Cf. Sioux City Brewing Company,
82 NLRB 1061, 1063, footnote 7; and cases cited above. The utterance of the threat
constituted interference with and restraint by Respondent of its employees in the
exercise of the rights guaranteed in Section 7 of the Act, in violation of Section
8 (a)( I) of the Act, and I so find.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section N, 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.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (3) and (1) of the Act, I shall recommend that it cease
and desist therefrom and that it take certain affirmative action designed to effectuate
the policies of the Act.
Since I have found that on June 11, 1962, the Respondent discriminatorily dis-
charged Dell Wayne Ivey, and on June 18, 1962, the Respondent discriminatorily
laid off Matt West,17 I shall recommend that the Respondent. be required to offer
each of them immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights, and make
them whole for any loss of earnings they may have suffered because of the discrim-
ination against them with backpay computed in the customary manner.18 The back-
pay obligation shall include interest at the rate of 6 percent. Isis Plumbing &
Heating Co., 138 NLRB 716. I shall further recommend that the Board order the
Respondent to preserve and make available to the Board, or its agents on request,
payroll and other records to facilitate the computation of the backpay due and the
right of employment.
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act, I shall recommend
that it cease and desist from infringing in any manner upon the rights guaranteed
in Section 7 of the Act.
CONCLUSIONS OF LAW
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. The operations of Respondent occur in commerce within the meaning of
Section 2(6) and,, (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminatorily discharging Dell Wayne Ivey and by discriminatorily laying
off Matt.West, Respondent has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
4. By the foregoing conduct and by Warehouse Superintendent Rematore's in-
terrogation of employee Duquette and by Dispatcher Hogue's threat to employee
17I have found that West was discriminatorily laid off on June 18, 1962 . Respondent's
action in calling him back to work on a temporary basis for 1 day on June 21 did not
constitute reinstatement, although the money earned by him that day will, of course, be
considered in determining the amount of backpay to which West is entitled. _
1s F. W. Woolworth Company, 90 NLRB 289.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hunnicutt that the Warehouse would be closed if it were unionized, Respondent has
interfered with, restrained, and coerced its employees in the exercise of their rights
guaranteed them by 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 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon the
entire record in the case, Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in the United Packinghouse, Food and Allied
Workers, AFL-CIO, or in any other labor organization of its employees by dis-
charging, laying off, or in any other manner discriminating against employees in
regard to hire and tenure of employment or any term or condition of employment,
except as permitted by the proviso to Section 8(a)(3) of the Act.
(b) Interrogating employees with respect to their attitude toward a union.
(c) Threatening to close the Warehouse if a majority of the employees select the
Union to represent them.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their choosing, and
to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all such activities, except
to the extent that such right is affected by the proviso to Section 8(a)(3) of the
Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer to Dell Wayne Ivey and Matt West immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole for any loss they may
have suffered by reason of the Respondent's discrimination against them in the
manner set forth in the section of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all records necessary for the determination of the amount of
backpay due.
(c) Post at its plant at Lubbock, Texas, copies of the attached notice marked
"Appendix." 19 Copies of such notice, to be furnished by the Regional Director
for the Sixteenth Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by the Respondent immediately upon receipt thereof
in conspicuous places, including all places where notices to employees are customarily
posted, and maintained by it for a period of 60 consecutive days. 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, in writing , within 20 days from the date of
the receipt of this Intermediate Report, what steps the Respondent has taken to comply
herewith?9
191f these recommendations are adopted by the Board the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
In the notice . If the Board's Order is enforced by a decree of the United States Court of
Appeals, the notice will be further amended by the substitution of the words "A Decree of
the United States Court of Appeals, Enforcing an Order" for the words "A Decision
and Order."
° If these recommendations are adopted by the Board this provision shall be modified
to read: "Notify the Regional Director for the Sixteenth Region, 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 Labor Management
Relations Act, we hereby notify our employees that:
SOUTHERN MAID PAPER COMPANY 1023
WE WILL NOT discourage membership in the United Packinghouse , Food and
Allied Workers, AFL-CIO, or in any other labor organization of our employees,
by discharging or in any other manner discriminating against our employees in
regard to hire or tenure of employment or any term or condition of employment,
except as permitted by the proviso of Section 8 (a)(3) of the Act.
WE WILL NOT interrogate our employees as to their attitude toward a union.
WE WILL NOT threaten to close the warehouse if a majority of the employees
select the Union to represent them.
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 a labor
organization , to join or assist any labor organization, to bargain collectively
through representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion , or to refrain from any and all such activities , except to the extent that such
right may be affected by the proviso to Section 8(a) (3) of the Act.
WE WILL offer Dell Wayne Ivey and Matt West immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
their seniority or other rights and privileges and make them whole for any loss
of pay they may have suffered as a result of our discrimination against them.
SHOP RITE FOODS, INC.,
Employer.
Dated-_: ----------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement on applica-
tion in accordance with the Selective Service Act after discharge.
This notice must be 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, Sixth
Floor, Meacham Building , 110 West Fifth Street, Fort Worth 2, Texas, Telephone
No. Edison 5-4211, Extension 2131, if they have any question concerning this notice
or compliance with its provisions.
Southern Maid Paper Company and International Brotherhood
of Pulp , Sulphite & Paper Mill Workers of America, AFL-
CIO. Case No. 15-CA-92116. April 1, 1963
DECISION AND ORDER
On January 11, 1963, Trial Examiner James T. Barker 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 Intermediate
Report. He further found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and recom-
mended that such allegations be dismissed. Thereafter, both the Gen-
eral Counsel and the Respondent filed exceptions to the Intermediate
Report and supporting briefs.
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
141 NLRB No. 89„