Warehouse Food Distributing Co.

National Labor Relations Board - Board Decisions

Aug 4, 1980

250 N.L.R.B. 1377 (N.L.R.B. 1980)

WAREHOUSE FOOD DISTRIBUTING COMPANY
Ben J. Mauro d/b/a Warehouse Food Distributing
Company and Amalgamated Food Employees
Union Local 590 a/w United Food and Com-
mercial Workers International Union, AFL-
CIO.' Case 6-CA-12336
August 4, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On April 22, 1980, Administrative Law Judge
Irwin H. Socoloff issued the attached Decision in
this proceeding. Thereafter, General Counsel filed
limited exceptions and a supporting brief. The Re-
spondent filed no exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, 2 findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Ben J. Mauro
d/b/a Warehouse Food Distributing Company,
Conway, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, 3 except the attached
notice is substituted for that of the Administrative
Law Judge.
I The name of the Charging Party, formerly Amalgamated Meatcutters
and Butcher Workmen of North America, Amalgamated Food Employ-
ees Union Local 590, AFL-CIO, is amended to reflect the change result-
ing from the merger of Retail Clerks International Union and Amalga-
mated Meatcutters and Butcher Workmen of North America on June 7.
1979.
a The General Counsel has excepted to the Administrative Law
Judge's refusal to admit evidence concerning the conduct of alleged dis-
criminatee Theresa McDonald's husband at a union meeting. We find it
unnecessary to pass on the propriety of the Administrative Law Judge's
exclusion of this evidence since we agree with the Administrative Law
Judge that Theresa McDonald's discharge was due to either her alleged
complicity in a theft or her performance of her duties in a negligent
manner. The Employer's knowledge or lack of knowledge of the activi-
ties of Theresa McDonald's husband would not affect our agreement
with the Administrative Law Judge that Theresa McDonald was not dis-
criminatorily discharged.
3 Member Jenkins would award interest on the backpay due in accord-
ance with his partial dissent in Olympic Medical Corporation, 250 NLRB
146 (1980).
250 NLRB No. 177
APPENDIX
NOIiCE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Amalgamated Food Employees Union
Local 590, a/w United Food and Commercial
Workers International Union, AFL-CIO, as
the exclusive representative of the employees
in the bargaining unit described below.
WE WILL NOT discharge employees because
they support a union.
WE WILL NOT inform employees that we
will close the store if they select the Union as
their representative; tell employees that they
will have to work harder if they opt for union
representation; threaten to discharge employ-
ees who support the Union or engage in union
activities; interrogate employees concerning
their union activities, desires, and sympathies
and the union activities and sympathies of
their fellow employees; create the impression
that the union activities of our employees are
under surveillance; or solicit employee griev-
ances in order to dissuade employees from
supporting the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed to them by
Section 7 of the Act.
WE WILL, upon request, bargain collectively
concerning rates of pay, wages, hours of em-
ployment, and other terms and conditions of
employment with Amalgamated Food Em-
ployees Union Local 590, a/w United Food
and Commercial Workers International Union,
AFL-CIO, as the exclusive representative of
the employees in the appropriate unit de-
scribed below and, if an agreement is reached,
WE WILL embody it in a signed contract. The
appropriate unit is:
All employees employed by Ben J. Mauro
d/b/a Warehouse Food Distributing Com-
pany, at its Conway, Pennsylvania, facility,
excluding guards, professional employees
and supervisors as defined in the Act.
WE WILL offer Barbara Chaykowski imme-
diate and full reinstatement to her former posi-
tion or, if that position no longer exists, to a
substantially equivalent position, without prej-
1377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
udice to her seniority and other rights and
privileges previously enjoyed.
WE WlI.L make Barbara Chaykowski whole
for any loss of earnings she may have suffered
because of the discrimination against her, plus
interest.
BEN J. MAURO D/B/A WAREHOUSE
FOOD DISTRIBUTING COMPANY
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOI.OFF, Administrative Law Judge: Upon
charges filed on May 4 and June 7 and 29, 1979, by
Amalgamated Meat Cutters and Butcher Workmen of
North America, Amalgamated Food Employees Union
Local 590, AFL-CIO, herein called the Union, against
Ben J. Mauro d/b/a Warehouse Food Distributing Com-
pany, herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Regional Di-
rector for Region 6, issued a complaint dated June 29,
1979, alleging violations by Respondent of Section
8(a)(5), (3), and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended, herein called
the Act. Respondent, by its answer, denied the commis-
sion of any unfair labor practices.
Pursuant to notice, this case came to hearing before
me in Pittsburgh, Pennsylvania, on February 26, 1980, at
which the General Counsel and the Respondent were
represented by counsel and all parties were afforded full
opportunity to be heard, to examine, and cross-examine
witnesses, and to introduce evidence. Thereafter, the
General Counsel filed a brief which has been duly con-
sidered.
Upon the entire record in this case, and from my ob-
servations of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a sole proprietorship, is engaged in the
retail sale of grocery products at its store located in
Conway, Pennsylvania. During the year preceding issu-
ance of the complaint, a representative period, Respond-
ent derived gross revenues in excess of $500,000 from the
operation of the aforesaid store. In that same time
period, it received, at the Conway store, goods and ma-
terial valued in excess of $50,000 which were shipped di-
rectly from points located outside the Commonwealth of
Pennsylvania. I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Union began its organizing campaign at Respond-
ent's store during the first week of March 1979. By May
4, it had acquired signed authorization cards from 21 of
the 40 employees who worked at the store during the
course of the campaign. ' On that date, by telephone and
subsequent telegram, it demanded recognition as bargain-
ing representative of the store employees. Respondent re-
fused to grant recognition absent a union victory at an
election.
In this case, the General Counsel contends, and Re-
spondent denies, that, in the mid-March to mid-May 1979
period, Respondent embarked upon a course of unfair
labor practice activity so serious and pervasive that, inter
alia, imposition of a bargaining order is necessary as a
remedy for that conduct. The alleged unfair labor prac-
tices include threats of store closure should the employ-
ees select the Union as their representative; the discharge
of union supporters because of their union activities; in-
terrogations of employees concerning their union activi-
ties, desires, and sympathies and the union activities and
sympathies of their fellow employees; creating the im-
pression among employees that their union activities
were being surveilled; threats to discharge union sup-
porters; threats to impose more onerous working condi-
tions if the employees opt for union representation and
solicitation of employee grievances and promises of bene-
fits in order to dissuade employees from joining the
Union.
B. The 8(a)(1) Allegations
On March 14, 1979, the Union conducted a meeting of
Respondent's workers at the home of employee Lea
Lane. On the next day, March 15, Store Manager Mary-
anne Parish and Store Supervisor Sam O'Brien met with
Lane and, Lane testified, Parish stated to her that Re-
spondent's owner, Ben Mauro, would close the store.
O'Brien then added that "this is probably due to all this
union activities." Neither Parish nor O'Brien, acknowl-
edged statutory supervisors, testified in this proceeding.
Based upon Lane's credited, uncontradicted testimony I
find that Respondent, by informing Lane that it would
I The parties agree as to the identity and unit inclusion of 37 employ-
ees, as of May 4. In addition, Respondent contends that head cashier
Joyce Cole should be included in the unit. As the complaint alleges, and
the answer admits, that Cole was and is a statutory supervisor, I find that
she is not includable in the bargaining unit. General Counsel contends
that stocker James Russell should be counted as part of the unit, despite
the fact that he was discharged on May 4. Based upon the stipulation of
the parties, I find that Russell worked a full day on May 4, and, then,
was discharged at or about 5:30 p.m., some 8 hours after the Union de-
manded recognition premised upon its professed card majority. I con-
clude that Russell should be counted in the unit as of May 4. General
Counsel further contends that alleged discriminatees Barbara Chaykowski
and Theresa McDonald must be counted as part of the unit. Both were
discharged prior to May 4. As I have found, hereinafter, that Chay-
kowski was, and McDonald was not, discharged in violation of the Act, I
conclude that Chaykowski, but not McDonald, should be counted in the
unit as of the critical date. Likewise, the authorization card signed by the
former, but not the card signed by the latter, may be utilized to deter-
mine the Union's majority status Thus, as of May 4, the Union possessed
20 cards from a 39-employee unit.
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WAREHOUSE FOOD DISTRIBUTING COMPANY
close its store because of employee activities on behalf of
the Union. violated Section 8(a)(1) of the Act.
Lane testified that, some 9 days later, she was ap-
proached by the head cashier, Joyce Cole, who asked
her if she was going to attend a union meeting scheduled
for that night. Cole, an admitted supervisor within the
meaning of the Act, was not called as a witness in this
case. Based upon Lane's credited, uncontradicted testi-
mony I find that Respondent, by the foregoing interroga-
tion of Lane, violated Section 8(a)(1) of the Act.
On April 24, Lane was visited at her work station, a
produce table located in the backroom of the store, by a
union official who chatted with her for several minutes
and, then, left. The record evidence establishes that
backroom employees are regularly so visited by nonem-
ployees, for conversational purposes and that Respond-
ent has not sought to prohibit such conduct.
Lane testified that, on the next day, April 25, she was
told to report to Mauro's office where she met with
Mauro, Parish, and O'Brien. Mauro told Lane that the
union official who had spoken with her on the previous
day had, thus, placed her job in jeopardy. Lane stated
that Mauro might lose many good workers because the
employees did not enjoy sufficient benefits. Parish then
asked Lane to tell her, specifically, the nature of the em-
ployees' problems. Lane responded, stating that the em-
ployees wanted a seniority system, job security, and a
hospitalization plan. At Parish's suggestion, Mauro then
agreed to meet with a small group of employees in order
to discuss those matters. As noted, neither Parish nor
O'Brien testified in this case. Mauro in his testimony did
not contradict Lane's version of the foregoing conversa-
tion. Accordingly, I find that, on April 25, Respondent
violated Section 8(a)(1) of the Act by threatening to dis-
charge Lane because of her union activities. Respondent
further violated the Act by soliciting employee griev-
ances in order to dissuade employees from supporting
the Union.
In early April 1979, Parish approached employee
Cathy Cercone. According to Cercone's credited, uncon-
tradicted testimony, Parish told her that if the employees
thought they worked hard then, "wait until we get the
Union in." Parish added that, if not that, Mauro would
close the store. I find that Respondent, by threatening
employees with store closure, and with more difficult
working conditions, should they opt for union represen-
tation, violated Section 8(a)(1) of the Act.
Cercone further testified that, on May 16, Parish in-
formed her that she, Parish, knew which employees were
heading the union campaign and that she wished she
could get them fired. Based on the above, I find that Re-
spondent violated Section 8 (aX)(1) of the Act by creating
the impression that the union activities of its employees
were being surveilled and by telling employee Cercone
that it wished to discharge union adherents.
On or about May 1, 1979, Parish spoke to employee
Cecelia Powers. According to Powers' credited, uncon-
tradicted testimony, Parish stated that the recently dis-
charged employees, Barbara Chaykowski and Theresa
McDonald, had not been fired because of their union ac-
tivities. Parish added that she, Parish, could rearrange
Powers' work schedule so as to conflict with her person-
al responsibilities and, thus, force Powers to quit her job.
In context, I find Parish's statement a thinly veiled threat
to discharge Powers if she engaged in union activities in
violation of Section 8(a)(1) of the Act.
Employee Theresa Harp testified that, in late February
1980, she told Parish that she had been subpenaed to
appear and testify at the hearing in the instant case.
Parish responded that that meant that she, Harp, was
"against us." Parish then asked Harp if she had signed a
union card, or attended a union meeting, and if employ-
ees LaRue Hince, Wanda Bennett, and Helen Suhy had
attended any union meetings. Based upon Harp's cred-
ited, uncontradicted testimony, I find that Respondent
violated Section 8(a)(l) of the Act by interrogating her
concerning her union activities and sympathies and those
of her fellow employees.
On April 20, 1979, employee Barbara Chaykowski en-
tered Parish's office for the purpose of receiving her
paycheck. In addition to Parish, those present in the
office included the head cashier, Joyce Cole, a secretary,
Lisa Emorick, a price checker, Betty Kantz, and a stock
clerk, Michele Weaver. Chaykowski testified that, when
she asked Parish for her check, the latter stated that, if
Chaykowski signed a union card, she would not receive
any further checks since "Mauro will shut the store
down if the union gets in." Parish then asked the em-
ployee to reveal the identity of the person who had
given her union cards and, further, to tell her, Parish,
whether other new employees had signed cards. When
Weaver stated that "if you sign a union card, Ben Mauro
is going to shut the store down and we're all going to
lose our jobs," Parish concurred, informing Chaykowski
that Mauro had said he would close the store if the em-
ployees brought in the Union. Parish then asked the em-
ployee for the names of card signers and interrogated her
concerning the reasons why the workers desired to have
a union. Chaykowski stated that the employees wanted a
seniority system. Parish next asked Chaykowski whether
she knew about the upcoming union meeting and, if so,
how she found out about it. The employee stated that
everyone in the store was talking about it and Parish
then asked Chaykowski to specify which employees
were discussing that matter. Emorick showed Chay-
kowski a list of the employees working at the store
which contained red check marks next to certain names.
After reading, aloud, the names of those employees who
had been checkmarked on the list, Emorick stated that
they were the employees who had attended the last
union meeting and were known to have signed cards.
Parish asked Emorick if employee Troutman had signed
a card and Emorick said, "yes." Weaver repeated that "I
swear to you he's going to close down the store" if he,
Mauro, has to pay union wages and benefits. When
Chaykowski stated that "the employees worked too hard
for $2.90 per hour," she was asked to leave.
Emorick, like Parish and Cole, was not called as a wit-
ness in this case. Respondent did, however, offer the tes-
timony of Kantz and Weaver concerning the April 20
event. According to Kantz, when Chaykowski entered
the office she asked for her paycheck and Parish gave it
to her and requested that she, Chaykowski, read a paper
1379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enclosed in her pay envelope. Kantz further testified
that, during the 5-to 10-minute period that Chaykowski
was in the office, Parish said nothing else and, further,
Kantz denied that Emorick read from a list of employee
names. On cross-examination, Kantz testified that it was
Weaver, not Parish, who asked Chaykowski if she knew
about the next union meeting. Thereafter, according to
Kantz, Chaykowski remained in the office, silently, while
Weaver and Emorick "just said a little bit about the
union meeting and that was it." Weaver testified that on
April 20 Chaykowski was in Parish's office for 10 to 15
minutes but that Parish said nothing to her about the
union activities at all." Weaver confirmed Chaykowski's
testimony that she, Weaver, stated that the store would
close if the Union came in. In addition, according to
Weaver, it was she, and not Parish, who asked Chay-
kowski if she knew about the next union meeting. While
Weaver denied that Emorick read from a list of names,
she further testified that Emorick" may have stated who
she thought signed union cards."
I found Chaykowski a most forthright and believable
witness and I credit her detailed account of the events of
April 20 as against the vague, sketchy, and evasive testi-
mony of Kantz and Weaver. In addition, based upon de-
meanor observations, I have largely discredited Weaver's
testimony about this and other matters. Accordingly, I
find that on April 20 Respondent, through Parish, violat-
ed Section 8(a)(1) of the Act by threatening to close the
store if the employees selected the Union as their repre-
sentative; interrogating Chaykowski about her union ac-
tivities, desires, and sympathies and the union activities
and sympathies of her fellow employees; and creating the
impression that employee activities on behalf of the
Union were being surveilled.
C. The Discharge of Barbara Chaykowski
Barbara Chaykowski was hired by Respondent on
April 2, 1979, as a cashier, and was discharged some 4
weeks later, on April 30.2 In early April, she acquired
union authorization cards from employee Lea Lane and
distributed them to other new employees. Following the
April 20 confrontation in Parish's office Chaykowski at-
tended a union meeting on April 233 at which she stated
that the county was "very organized and if we staged
one picket outside of Warehouse Foods, the people
would honor the picket line." Respondent learned of
Chaykowski's comment when, according to Weaver's
testimony, she, Weaver, and Emorick, who attended the
union meeting, later reported to Parish both the sub-
stance of employee comments made at the meeting and
the identity of the employees who had made them.
Weaver, in her testimony, specifically recalled that the
Chaykowski statement, about a picket line, was related
to Parish in Weaver's presence by Emorick. Chaykowski
was informed, I week later, by Parish, that her "services
2 There is considerable record evidence bearing upon the question of
whether or not Respondent, as a matter of practice, requires new em-
ployees to undergo a 30-day probationary period. While the record con-
tains sharply conflicting testimony concerning that matter, it is my view
that resolution of the factual question is not necessary to a proper consid-
eration of the merits of the Chaykowski discharge.
I She signed a union authorization card while at that meeting.
were no longer needed." When Chaykowski asked for
the reasons for that action, Parish stated that Chay-
kowski had been caught sitting down on the job and had
been "snotty" to a customer. In addition, Parish told
Chaykowski, she had not been turning her dollar bills so
as to face them all the same way.
According to Chaykowski's uncontradicted testimony,
the matter of her having sat down on the job pertains to
an incident which occurred on April 14. On that day,
Chaykowski informed her supervisor, Jean McGurgan,
that she was not feeling well. McGurgan told her to
work the "express lane" and to "sit down and relax," on
the chair located there, when she was not busy. Thereaf-
ter, when Parish noticed that Chaykowski was sitting
down, Parish stated: "Hey, what the hell do you think
you're doing?" Chaykowski explained that she was not
feeling well and Parish said, "yeah, I know," and walked
away. There were no further discussions concerning the
matter. In any event, the record evidence overwhelming-
ly demonstrates that Respondent's employees, when
working the "express lane," regularly sit down during
slow periods, and do so, without incident, in the plain
view of management officials. Indeed, a chair and stool
are located there for that very purpose. Thus, in my
view, that Chaykowski, on April 14, while working at
the "express lane," sat down on the chair during a slow
period, was not a real reason for her discharge but,
rather, has been advanced by Respondent as a pretext.
Likewise, the fact that Respondent had not, prior to the
discharge, reprimanded Chaykowski for "snottiness" to a
customer (despite the testimony of both McGurgan and
Mauro that they had observed Chaykowski display such
an attitude toward customers, coupled with the fact that,
in their testimony, neither McGurgan nor Mauro could
point to a single instance of such conduct, has led me to
conclude that Chaykowski did not engage in misbehavior
and that Respondent has raised that matter as a further
pretext.
With respect to the manner in which Chaykowski
placed dollar bills in her register, she testified that, on
April 18 or 19, Supervisor Joyce Cole told her that she,
Chaykowski, had not been facing them all in the same
way. Chaykowski explained that she "did not know to
do that" and, thereafter, she complied with Cole's direc-
tive. However, on April 21, following a busy workday
and at a time past the end of her shift, when Supervisor
McGurgan took the money from Chaykowski's register,
the latter, in the presence of McGurgan and employee
Powers, exclaimed: "Oh God, if Joyce wants those
dollar bills the same way, let her do them herself on
Monday because I am so tired and I'm going home."
That comment was delivered, according to Chaykowski
and Powers, in a jocular manner. Thus, the two employ-
ees credibly testified, McGurgan, as well as Chaykowski
and Powers, responded to the remark with laughter.
McGurgan, in her testimony, described the incident as a
serious one. While, at one point in his testimony, Mauro
referred to the foregoing matter as what "disturbed me
most," he did not reprimand Chaykowski about it.
As shown above, Respondent has demonstrated a total
antipathy toward the organizational efforts of its employ-
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WAREHOUSE FO()D DISTRIBUT ING COMP'ANY8
ees and a willingness to oppose those efforts by unlawful
means, including, threats to discharge union adherents.
The April 20 incident, during the course of which Parish
illegally interrogated and threatened Chaykowski, itself
revealed Respondent's belief that Chaykowski was an
ardent union supporter. Thereafter, Respondent learned
of that employee's outspoken comments at a union meet-
ing. Chaykowski was discharged I week later. As dis-
cussed, supra, at least two of the three reasons advanced
to support the discharge are pretextual in nature. In these
circumstances, I am not persuaded that Chaykowski's
jocular comment to McGurgan, for which she was not
reprimanded, adequately explains her discharge without
prior warning which occurred some 2 weeks later. I con-
clude that Chaykowski was discharged in reprisal for her
union activities in violation of Section 8(a)(3) of the Act.
D. The Discharge of Theresa McDonald
Theresa McDonald was hired by Respondent on Janu-
ary 12, 1979, as a cashier, and was discharged, on April
24 of that year, for alleged complicity in a theft. She
signed a union authorization card while attending, in the
company of her husband, the union meeting of April 23.
At that meeting, McDonald's husband stated that the em-
ployees "would fight to get the union in" and that com-
ment was reported to Parish by Weaver.
On April 24, McDonald was working in the area of
her checkout counter when employee M.K., after shop-
ping at the store, proceeded to McDonald's location.
M.K. removed items from a shopping cart and placed
them on the counter. However, she did not remove from
the cart other items of merchandise which she, M.K.,
had placed in a bag and over which she had draped a
sweater. Those items were, thus, not placed on the
counter but, rather, were taken from the store in the cart
along with the items that were checked, paid for, and
then bagged, at McDonald's checkout counter. Despite
store policy requiring the cashier to look into the cart
before ringing out an order, McDonald did not so in-
spect M.K.'s cart. This occurrence was observed by two
other employees who reported the matter, through inter-
mediaries, to Parish.4 Later that day, Parish approached
McDonald and asked her whether, when she checked
M.K. out, there was a bag, and a sweater, in the latter's
cart. McDonald replied that she did not see a cart. Im-
mediately thereafter, McDonald placed a telephone call
to M.K. and told her that she, McDonald, was being
questioned. Subsequently, M.K. confessed to the theft to
Parish, and later, to Mauro and also told them about the
telephone call she had received from McDonald. Parish
and Mauro concluded that McDonald had acted in con-
spiracy with M.K. and, accordingly, discharged her as
well as M.K.
McDonald's union activities were, comparatively, not
remarkable. The incident which gave rise to her dis-
charge was a most serious one. In the circumstances, as
detailed above, Respondent could, and did, reasonably
form the belief that McDonald had acted in complicity
' To the extent that there are minor testimonial variations in the ac-
counts of the witnesses to the event, I have resolved those discrepancies
in favor of the testimony of an observer to the occurrence. Duane Col-
lins, who impressed me as an unbiased and accurate reporter
with M.K. or, at the least, that she had performed her
duties in a most negligent manner. 1, thus, conclude that
the General Counsel has failed to establish that the dis-
charge of McDonald occurred for reasons violative of
the Act.
E. The Obligation To Recognize and Bargain With
the Union
As noted, by May 4, 1979, 20 of the 39 unit employees
had signed cards designating the Union as their collec-
tive-bargaining representative. The record evidence
shows that the cards are authentic, valid designations by
the signatories thereto. I find that, as of May 4, 1979,
when the Union requested, and Respondent declined to
grant, recognition, the Union had been selected as bar-
gaining agent by a majority of the store employees in an
appropriate unit.
Soon after the Union began its organizing campaign,
early in March 1979, Respondent embarked upon an ex-
tensive course and pattern of unfair labor practice con-
duct. Included among its unlawful activities were the dis-
charge of an outspoken union adherent and repeated
threats to close the store if the Union gained representa-
tion rights, unfair labor practices of the most egregious
sort whose effects are demonstrably powerful and long-
lasting. Coupled with that conduct, Respondent, as
shown, supra, engaged in a wide variety of other serious
unfair labor practice activities designed to thwart an ex-
pression of free choice by its employees. The holding of
a free and fair election has thus been rendered unlikely
or impossible and, I conclude, employee choice, as ex-
pressed through cards, will best be protected by the im-
position of a bargaining order.5 I find and conclude that
by refusing, on and after May 4, 1979, to recognize the
Union as the exclusive representative of its employees, in
an appropriate unit, Respondent violated Section 8(a)(5)
of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed 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 dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(5), (3),
and (1) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
I. The Respondent, Ben J. Mauro d/b/a Warehouse
Food Distributing Company, is an employer engaged in
s See .L. LR.B . Gissel Packilng Co, Inc. 395 L S 575 (1969)
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DECISIONS OF NAI()IONAL LABOR RELATIONS BOARD
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, Amalgamated Food Employees
Union Local 590, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees employed by Ben J. Mauro d/b/a
Warehouse Food Distributing Company, at its Conway,
Pennsylvania, facility, excluding guards, professional em-
ployees and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. Since May 4, 1979, the Union has been the exclusive
collective-bargaining representative of the employees in
the aforesaid appropriate unit within the meaning of Sec-
tion 9(a) of the Act.
5. By failing and refusing to bargain in good faith with
the Union as the collective-bargaining representative of
its employees, in the aforesaid appropriate unit, with re-
spect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By discharging Barbara Chaykowski because of her
support for the Union, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
7. By informing employees that it will close the store
if they select the Union as their representative; telling
employees that they will have to work harder if they opt
for union representation; threatening to discharge em-
ployees who support the Union or engage in union activ-
ities; interrogating employees concerning their union ac-
tivities, desires, and sympathies and the union activities
and sympathies of their fellow employees; creating the
impression that the union activities of its employees were
under surveillance and soliciting employee grievances in
order to dissuade employees from supporting the Union,
Respondent has restrained and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the
Act, and thereby engaged in unfair labor practices within
the meaning of Section 8(a)(l) of the Act.
8. Respondent did not violate the Act by its discharge
of Theresa McDonald.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER6
The Respondent, Ben J. Mauro d/b/a Warehouse
Food Distributing Company, Conway, Pennsylvania, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
6 In the event no exceptions are filed as provided by Sec 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
Sec. 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.
(a) Refusing to bargain collectively with Amalgamated
Meat Cutters and Butcher Workmen of North America,
Amalgamated Food Employees Union Local 590, AFL-
CIO, as the exclusive representative of its employees in
the above-described collective-bargaining unit.
(b) Discharging employees because they support a
union.
(c) Informing employees that it will close the store if
the employees select the Union as their representative;
telling employees that they will have to work harder if
they opt for union representation; threatening to dis-
charge employees who support the Union or engage in
union activities; interrogating employees concerning their
union activities, desires, and sympathies, and the union
activities and sympathies of their fellow employees; cre-
ating the impression that the union activities of its em-
ployees are under surveillance and soliciting employee
grievances in order to dissuade employees from support-
ing the Union.
(d) In any other manner, interfering with, restraining,
or coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act:
(a) Upon request, bargain collectively concerning rates
of pay, wages, hours of employment, and other terms
and conditions of employment with Amalgamated Meat
Cutters and Butcher Workmen of North America, Amal-
gamated Food Employees Union Local 590, AFL-CIO,
as the exclusive collective-bargaining representative of
the employees in the appropriate unit described above,
and, if an agreement is reached, embody it in a signed
contract.
(b) Offer to Barbara Chaykowski immediate and full
reinstatement to her former position or, if that position
no longer exists, to a substantially equivalent position,
without prejudice to her seniority and other rights and
privileges previously enjoyed.
(c) Make Barbara Chaykowski whole for any loss of
pay she may have suffered by reason of the Respondent's
discrimination against her by payment to her of a sum of
money equal to that which she normally would have
earned as wages, from the date of the discrimination to
the date of Respondent's offer of reinstatement, less net
earnings during such period, with backpay to be comput-
ed in the manner prescribed in F W. Woolworth Compa-
ny, 90 NLRB 289 (1950), with interest as set forth in
Florida Steel Corporation, 231 NLRB 651 (1977) (see,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962)).
(d) 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 re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its facility located in Conway, Pennsylva-
nia, copies of the attached notice marked "Appendix." 7
7 In the event that this Order is enforced hy a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Continued
1382
WAREHOUSE FOOD DISTRIBUTING COMI'ANY
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by Re-
spondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
Order of The National L abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United Slates Court of Appeals Enforcing an
Order of the National Iabhor Relations Board"
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director for Region 6. in writ-
ing, within 20 days from the date of this Order what
steps Respondent has taken to comply herewith.
I383