Avenue Meat Center

National Labor Relations Board - Board Decisions

Aug 4, 1970

184 N.L.R.B. 826 (N.L.R.B. 1970)

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Solomon Johnsky d/b/a Avenue Meat Center and
Food Handlers Union Local 371, Amalgamated
Meat Cutters and Butcher Workmen of North
America , AFL-CIO. Case 1-CA-6282
August 4, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
MCCULLOCH
On December 13, 1968, Trial Examiner Thomas
F. Maher issued his Decision in the above-entitled
case, finding that Respondent had engaged in and
was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action , as set forth in the attached Trial Examiner's
Decision. He further found that Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that
such allegations be dismissed. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer 's Decision and a supporting brief and
Respondent filed a reply brief to the General Coun-
sel's exceptions.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
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
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner but only to the
extent consistent herewith.
The record shows that Respondent, prior to
March 19, 1968, operated a meat market under the
name Majestic Meat Center in Bristol, Connecticut,
and that on or about March 19, 1968, Respondent
purchased from Home Meat Center of Bristol, Inc.
(herein called Home), the furniture, fixtures, equip-
ment, and merchandise inventory as well as the
lease to the store premises. Thereafter, Respondent
continued the operation of the Home meat market
at the same location under the name Avenue Meat
Center.
' It was stipulated at the hearing that the unit consists of -all mcatcutters,
countermen , counterwomen, apprentice meatcutters , apprentice counter-
men, cashiers , part-time countermen, part -time cashiers and part-time hel-
pers of Home Meat Center of Bristol, Inc , excluding office clerical em-
ployees, professional employees, guards , and supervisors or supervisory
The General Counsel contends that Avenue is a
successor to Home and that, as such, is bound by
the collective-bargaining agreement in existence
between Home and the Union at the time Respon-
dent took over Home's operation. The Trial Ex-
aminer found it unnecessary to determine whether
Respondent was a successor to Home, finding
rather that because Home's labor agreement with
the Union encompassed a multiemployer four-store
unit, the contract in question could not be applied
to Respondent 's single-store unit at Avenue.
For the reasons stated hereinafter, we agree with
the General Counsel. The record shows that when
Respondent commenced operations at Home on
March 19, 1968, it performed the same operations
as had Home before, and with a majority of Home's
former employees. The same business facilities are
being used, and the employees, with minor modifi-
cations, were working under the same working con-
ditions and were providing the same services as
heretofore provided by Home. Thus, Respondent's
taking over of the Home operations constituted no
change in the "employing industry." In such cir-
cumstances, Respondent clearly was a successor
employer of the Home Meat Center of Bristol, Inc.,
with respect to the stipulated unit' and as such had
a duty to honor its employees' choice of a bargain-
ing representative.2
For the reasons enunciated in our decision in
William J. Burns International Detective Agency,
Inc.,' we find that Respondent, as the successor em-
ployer in a continuing business entity, had an
obligation to honor the collective -bargaining agree-
ment in effect at the time it took over the employ-
ing enterprise. From the record, it is clear that dur-
ing the course of negotiations with Kass, one of the
former owners of Home, Respondent was advised
that Home's employees were represented by the
Union and that there was a collective-bargaining
agreement in existence at the time covering Home's
employees.
In reaching our conclusion herein, we do not ac-
cept the Trial Examiner's rationale relating to the
multiemployer character of the unit involved in the
collective-bargaining agreement and its inapplica-
bility to Respondent's single-store operation. It is
true that the contract was executed by several
closely interrelated employers, but this record affir-
matively shows that a separate unit of Avenue em-
ployees is appropriate. The record also indicates
that the contract here substantially recognizes the
separate identities of the four stores, and there does
employees as defined in the Act 11
2 Maintenance , Incorporated, 148 NLRB 1299, Valleydale Packers, Inc ,
ofBrtstol, 162 NLRB 1486
3 182 NLRB 348
184 NLRB No. 94
AVENUE MEAT CENTER
not appear to be any administrative impediment to
the application of the basic contract terms dealing
with wages, hours, and conditions of employment
to the employees in that unit. Accordingly, we find
that by refusing to honor the contract between
Home and the Union, Respondent has refused to
bargain in violation of Section 8(a)(5) and (1) of
the Act since on or about March 19, 1968. We
further find that Respondent, independent of its
refusal to honor the contract, violated Section
8(a)(5) and (1) of the Act when Respondent
refused to recognize the Union as the representa-
tive of Respondent's employees.'
Upon the foregoing findings of fact and the entire
record in this case, including the Trial Examiner's
findings of fact, we make the following:
CONCLUSIONS OF LAW
1. Respondent and Home Meat Center of
Bristol , Inc., are employers engaged in commerce
within the meaning of the Act.
2. Food Handlers Union Local 371, Amalga-
mated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, is a labor organization
within the meaning of the Act.
3. All meatcutters, countermen, counterwomen,
apprentice meatcutters, apprentice countermen,
cashiers, part-time countermen, part-time cashiers,
and part-time helpers of Respondent's Avenue
store, excluding office clerical employees, profes-
sional employees, guards, and supervisors or super-
visory employees as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. By failing and refusing on March 21, 1968,
and thereafter, to recognize and bargain with the
Union as the exclusive bargaining representative of
Respondent's employees in the above-described ap-
propriate unit and by failing to honor and adopt
and enforce the existing contract between Home
and the Union, Respondent has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
5. By unilaterally withholding benefits, abolish-
ing the coffeebreaks, discontinuing health and life
insurance arrangements, and eliminating sick leave
and birthday leave, Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. By interrogating employees regarding their
union activity and their relationships with the
827
Union and by telling employees they could either
work for Respondent or belong to the Union,
Respondent engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that Respondent has engaged in
unfair labor practices violative of Section 8(a)(1)
and (5) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Union is the bargaining
representative of Respondent's employees in an ap-
propriate unit and that its request for recognition
and bargaining was unlawfully refused by Respon-
dent, we shall order that Respondent bargain, upon
request,. with the Union and if any understanding is
reached embody such understanding in a signed
agreement.
Having further found that Respondent, in viola-
tion of Section 8(a)(5), failed to honor the collec-
tive-bargaining agreement in effect at the time of its
takeover, we shall further order that, upon request
by the Union, the Respondent shall make restitu-
tion of all contractual benefits which it may have
unlawfully withheld from employees by virtue of its
failure to abide by the provisions of the collective-
bargaining agreement during its scheduled term.
We shall also require that the Respondent make
restitution of benefits which may have been lost by
employees in the appropriate unit by virtue of any
additional unilateral changes it may have instituted
in the terms and conditions of employment existing
at the expiration of the contract. The latter form of
restitution is applicable from the expiration date of
the contract. Whatever monetary restitution
Respondent's employees may be entitled to shall be
computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289, and shall include
interest in the amount and manner set forth in Isis
Plumbing and Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Solomon Johnsky d/b/a Avenue Meat Center,
4 The record clearly shows that when Respondent was approached by the
union representative on March 21 , 1968, Respondent refused to have
anything to do with him and asked "who needs you "
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bristol , Connecticut , his agents , successors , and as- APPENDIX
signs, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their
union membership or activities.
(b) Threatening to discharge employees if they
continue their union membership.
(c) Refusing to bargain collectively, upon
request , with the Union as the exclusive bargaining
representative of its employees in the above-
described unit.
(d) Refusing , as successor of Home, to adopt,
honor , and enforce its contract with the Union.
(e) Interfering with representation of his em-
ployees through labor organizations of their own
choosing.
(f) In any like or related manner interfering
with , restraining , or coercing his employees in the
exercise of their rights to join or assist the Union or
otherwise engage in activities protected by the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Bargain collectively, upon request, with the
Union and, if any understanding is reached, em-
body such understanding in a signed agreement.
(b) Make restitution of all contractual benefits
which Respondent may have unlawfully withheld
from employees, by virtue of his failure to abide by
the provisions of the collective-bargaining agree-
ment in effect at the time of his acquisition of the
employing enterprise involved herein, in the
manner set forth in the portion of this decision enti-
tled "The Remedy."
(c) Make restitution for any benefits which may
have been lost by virtue of any unilateral changes
he may have instituted in the terms and conditions
of employment existing at the expiration of the con-
tract in the manner set forth in the portion of this
decision entitled "The Remedy."
(d) Post at its Avenue Meat Center store in
Bristol , Connecticut, copies of the attached notice
marked "Appendix."5 Copies of said notice, on
forms provided by the Regional Director for Region
1, after being duly signed by Respondent, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by him for 60 consecu-
tive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by him to insure that said notices are not altered,
defaced, or covered by any other material.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL NOT question you concerning your
union membership or union activities.
I WILL NOT threaten you that you will be
discharged unless you quit the Union.
I WILL NOT refuse to bargain collectively
with Food Handlers Union Local 371, Amalga-
mated Meat Cutters and Butcher Workmen of
North America, AFL-CIO.
I WILL NOT in any like or related manner in-
terfere with, restrain, or coerce you in the ex-
ercise of your rights to self-organization, to
form, join, or assist any labor organization, to
bargain collectively concerning terms or condi-
tions of employment through the representa-
tive you select, or to refrain from any of these
activities if you so choose, except to the extent
that these rights may be affected by a contract
validly made under the National Labor Rela-
tions Act, whereby membership in a labor or-
ganization is a condition of employment after
the 30th day following the date of the contract
or the beginning of a person's employment,
whichever is later.
I WILL bargain collectively, upon request,
with this Union as the exclusive representative
of all our employees in the bargaining unit
described below with respect to rates of pay,
wages, hours of employment, and other terms
and conditions of employment, and, if an un-
derstanding is reached, embody such un-
derstanding in a signed agreement. The bar-
gaining unit is:
All meatcutters, countermen, counter-
women, apprentice meatcutters, ap-
prentice countermen, cashiers, part-time
countermen, part-time cashiers and part-
time helpers of my Avenue store, exclud-
ing office clerical employees, professional
employees, guards, and supervisors or su-
pervisory employees as defined in the Act.
I WILL make restitution of all contractual
5 In the event that this Order is enforced by a Judgment of a United Pursuant to a Judgment of the United States Court of Appeals Enforcing an
States Court of Appeals , the words in the notice reading "Posted by Order Order of the National Labor Relations Board
of the National Labor Relations Board " shall be changed to read "Posted
AVENUE MEAT CENTER
benefits which I may have unlawfully withheld
by virtue of my failure to abide by the collec-
tive-bargaining agreement in effect at the time
I acquired control of the sore.
I WILL also make restitution for any benefits
which may have been lost because of any uni-
lateral changes I may have instituted in the
terms and conditions of employment existing at
the expiration of the contract.
You and all of my employees are free to become
or remain, or to refrain from becoming members or
withdrawing membership in any labor organization.
Dated By
SOLOMON JOHNSKY D/B/A
AVENUE MEAT CENTER
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 20th Floor, John F. Kennedy
Federal Building, Cambridge and New Sudbury
Streets, Boston, Massachusetts 02203, Telephone
617-223-3300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER , Trial Examiner: Upon a
charge and an amendment thereto filed on April 2
and 23 , 1968, respectively , by Food Handlers
Union Local 371, Amalgamated Meat Cutters and.
Butcher Workmen of North America , AFL-CIO,
herein referred to as the Union, the Regional
Director for Region 1 of the National Labor Rela-
tions Board , herein called the Board , on May 14,
1968, issued a complaint on behalf of the General
Counsel of the Board against Solomon Johnsky
d/b/a Avenue Meat Center , Respondent herein, al-
leging violations of Section 8(a)(I ), (3), and (5) of
' I have considered the testimony of all witnesses, including those whose
testimony 1 neither accept nor refer to In evaluating the testimony of each
witness I have specifically considered his demeanor and have made my
findings accordingly Apart from considerations of demeanor I have taken
into consideration inconsistencies and conflicting evidence If, in any
specific instance, 1 have failed either to detail resolutions of conflicts or to
have analyzed specific testimony it is for the reason that, in my judgment,
this Decision would only be to that extent encumbered, and no advantage
829
the National Labor Relations Act, as amended (29
U.S.C. Sec. 151, et seq. ), herein called the Act. In
his duly filed answer, Respondent, while admitting
certain allegations of the complaint, denied the
commission of any unfair labor practice.
Pursuant to notice a trial was held before me in
Bristol, Connecticut, where all parties were present,
represented, and afforded a full opportunity to be
heard, present oral arguments, and file briefs with
me. Briefs were filed on July 10, 1968.
Upon consideration of the entire record, includ-
ing the briefs of the parties, and specifically upon
my observation of each witness appearing before
me,' I make the following.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Respondent Solomon Johnsky is an individual
doing business as Avenue Meat Center and main-
tains his principal place of business on Farmington
Avenue, Bristol, Connecticut, where he is engaged
in the retail sale of meats and related products. This
enterprise will be referred to hereafter as Avenue.
Johnsky is also the proprietor of an enterprise
known as Solomon Johnsky doing business as
Majestic Meat Center with its principal place of
business on Park Street, Bristol, Connecticut,
where it too is engaged in the retail sale of meats
and related products. This enterprise will be
referred to hereinafter as Majestic.
In the course and conduct of the operations of
these two enterprises Johnsky exercises active, con-
tinuing , and direct control over each, including the
purchase of goods and supplies, sales to customers,
the hiring of personnel, and the general assumption
of administrative responsibility, including the for-
mulation of a common labor policy.' I accordingly
conclude and find that Avenue and Majestic con-
stitute a single integrated business enterprise for all
purposes herein.'
Prior to March 19, 1968, the premises on
Farmington Avenue, presently known as Avenue,
was one of several stores owned by Phillip Kass,
this particular one being identified as Home Meat
Center of Bristol, Inc.,4 and hereinafter referred to
as Home-Bristol. By bill of sale dated March 18,
Kass sold to Johnsky the furniture, fixtures, equip-
ment, and merchandise inventory of Home-Bristol.
Johnsky credibly testified, however, and there is no
indication to the contrary, that the goodwill or ac-
counts receivable of Home-Bristol comprised no
part of the sale. Thereafter, on March 19, at the
to the understanding of my findings would be served Bishop and Ma/co,
Inc, 159 NLRB 1159, 1161
The uncontradicted testimony of Solomon Johnsky
Overton Markets, Inc, 142 NLRB 615
4 The other affiliated stores were Home Meat Center Inc , located in Me-
riden , Connecticut , Home Meat Center of Wallingford , Inc , and Home
Meat Center of Plainville, Inc
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
premises previously identified as Home -Bristol,
Respondent Solomon Johnsky d/b/a Avenue Meat
Center commenced the new operations as
described above.
Records submitted in evidence disclose the na-
ture and volume of business of both Majestic and
Home -Bristol , the predecessor of Avenue, during
1967, the most recent 12-month period for which
data is available. While there is in the record some
1968 data for Majestic as well as for Avenue under
its new ownership, these figures could only provide
meaningful current business positions for the
respective stores by use of projections. For the
calendar year 1967, however, actual gross revenue
figures are available for Majestic and for Home-
Bristol , the predecessor of Avenue. As there is no
appreciable difference between the operation of
Home-Bristol under Kass and of Avenue under
Johnsky, and because a use of the 1967 Home-
Bristol figures constitute complete fiscal informa-
tion for a definite and current period that would be
applicable to Avenue, I shall rely upon the figures
for the calendar year of 1967 submitted for the
respective stores. These reveal that Home-Bristol,
the predecessor of Avenue, in the course and con-
duct of its business operations, sold and distributed
during 1967 at its Farmington Avenue store meats
and related products the gross value of which was
stipulated by the parties to be $388,156.33. During
the same period Majestic, the store which I have
found to have been operated with Avenue as a sin-
gle integrated business enterprise, in the course and
conduct of its business operations, sold and dis-
tributed meats and related products the gross value
of which, according to submissions to the Internal
Revenue Service, was $148,714.95. Accordingly, in
the year 1967 the aforementioned single integrated
retail business establishment did a total annual
gross volume of business amounting to
$536,871.28. With respect to the origin of the
goods thus sold and distributed Phillip Kass, the
then owner of Home-Bristol, credibly testified that
during the year 1967 Home-Bristol received meats
and related products valued in excess of $50,000
transported to its Farmington Avenue store in in-
terstate commerce indirectly from States of the
United States other than the State of Connecticut.
There is no evidence in the record that since March
18, 1968, Avenue has in any manner changed this
method of purchase of meat products. During the
year 1968, the same annual period, it is stipulated
that Majestic received meats and related products
valued in excess of $50,000 transported to its Park
Street store in interstate commerce indirectly from
States of the United States other than the State of
Connecticut. Upon the foregoing stipulated and
credited evidence I conclude and find that Avenue
and Majestic are a single integrated retail enterprise
and that Solomon Johnsky d/b/a Avenue Meat
Center, one of the components of this operation, is
an employer engaged in commerce within the
meaning of Section 2(5) of the Act.'
II. THE LABOR ORGANIZATION
It is stipulated among the parties and I conclude
and find that Food Handlers Union Local 371,
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ISSUES
1. The unit appropriate for collective bargaining
in retail establishments is found to be a single in-
tegrated business.
2. The applicability of a collective agreement
covering a multistore unit upon the sale of one
store's fixtures and inventory to a presently going
retail operation.
3. The failure to employ employees of a
predecessor as discrimination.
4. Insubordination as grounds for discharge.
5. Withdrawal of benefits provided in contract
with predecessor as interference, restraint, and
coercion.
6. Interrogation and threats as interference,
restraint, and coercion.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For some time Solomon Johnsky owned a corner
meat market, Majestic Meat Center, in Bristol,
Connecticut, which he operated with two em-
ployees, one of whom was his son. For a period in
1967 his wife, Jenny, also worked there, as did his
daughter, Rose. In March 1968, as previously
described, Johnsky added to his holdings, purchas-
ing the equipment and merchandise stock of Home-
Bristol from Phillip Kass, the owner of three other
stores. Neither the goodwill nor the accounts
receivable were part of this transaction.
Home-Bristol was one of four meat markers
owned by Kass and a recently deceased partner.
The markets were located in the neighboring Con-
necticut communities of Bristol, Plainville, Me-
riden, and Wallingford, none being more than 10 or
15 miles distant from the other in Hartford and
New Haven Counties. The employees of these mar-
kets were members of and represented by the
Union which had an exclusive collective agreement
with the several markets, referred to in the contract
as "the Employers," effective until October 3 1,
1968, and including among other provisions union-
security clauses requiring union dues checkoff and
union membership on and after 30 days' employ-
5 Carolina Supplies and Cement Co , 122 NLRB 88, Overton Markets,
inc , supra
AVENUE MEAT CENTER 831
ment as a condition of continuing employment. The
bargaining unit covered by this contract "comprises
the employees of the Employers who are described
by job classification in Appendix No. 2," with the
usual clerical and supervisory exclusions, the ap-
pendix being a list of the job classifications and
wage rates at all four stores. The jobs included were
meatcutter, counterman, counterwoman, ap-
prentice meatcutter, counterman, cashier, and part-
time counterman, cashier, and helper.
Notwithstanding the unit spelled out in the con-
tract there appears in the record a stipulation as to
the appropriate bargaining unit which purports to
clarify paragraph 10 of the complaint. Paragraph
10 originally alleged the appropriate unit as follows:
All meatcutters, countermen, counterwomen,
apprentice meatcutters, apprentice counter-
men, cashiers, part-time countermen, part-time
cashiers, and part-time helpers, excluding of-
fice clerical employees, professional em-
ployees, guards, and supervisory employees, as
defined in the Act constitute a unit appropriate
for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
The "clarifying" stipulation, however, reads in rele-
vant part as follows:
All meatcutters, countermen, counterwomen,
apprentice meatcutters, apprentice counter-
men, cashiers, part-time countermen, part-time
cashiers and part-time helpers of Home Meat
Center of Bristol, Inc., excluding office clerical
employees, professional employees, guards,
and supervisors or supervisory employees as
defined in the Act constitute a unit appropriate
for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
As neither the paragraph as originally alleged nor
the stipulation clarifying it by adding the name
Home Meat Center bear resemblance to the unit
agreed upon by the parties to the contract which
was also stipulated into the record, I shall rely ex-
clusively upon the unit description of the contract
in evidence in my determinations herein. Moreover,
the Union's attorney in a letter advising the union
president of the Home-Bristol sale described the
unit "ours being a multi-employer bargaining."
Contrary to General Counsel's contention the con-
tract contains no provision relating to the closing of
any of the stores or its applicability to such a situa-
tion.
Following the disposal of Home-Bristol, Kass
continued to operate the remaining three markets
under the contract.
B. The Transfer of the Store from Kass to Johnsky
During the negotiations which culminated in the
sale of Home-Bristol, Johnsky was apprised of the
contract with the Union, given a copy of it, and on
several occasions discussed various benefits with
Kass.' During the final negotiations Johnsky asked
Kass to announce to the employees that they were
through and to give each of them the blue termina-
tion slip required by the Connecticut unemploy-
ment office. Kass demurred, stating that under the
union contract he had no basis for terminating
them. Johnsky repeated his request several times
thereafter and each time Kass temporized, and not
until his leavetaking did he inform his employees of
the reasons for disposing of the store and tell them
that Johnsky would be taking over during the next
week. He instructed them "to come to work
Tuesday morning."
C. The Termination of Ellen Michaud and Agnes
Preslopsky
All former employees of Home-Bristol, with two
exceptions, were hired at Avenue. Ellen Michaud
and Agnes Preslopsky had been employed by
Home-Bristol for 2 years and 7 years, respectively.
They reported for work on Tuesday morning,
March 19, and were met by Johnsky, the new
owner. According to Mrs. Michaud, a counter girl
and part-time cashier, Johnsky told her that he was
going to give her a little rest and that she could "go
home for a while." He then asked her and her
husband, employee Edward Michaud, if there were
any hard feelings and each replied that there were
not. Mrs. Michaud then left the premises and has
not since returned to work. Significantly she has
returned to the store on a number of occasions
thereafter "to buy groceries, meats " On of of these
visits Johnsky and Mrs. Michaud discussed the rela-
tive sales merits of various delicatessen items and
Johnsky, at one point stated, "Well Ellen, if you go
along with me we'll grow together." The record,
however, contains no elaboration of this remark,
nor was she ever thereafter employed at the store.
When Agnes Preslopsky, cashier at Home-
Bristol, reported for work on the same Tuesday,
Johnsky met her at the timeclock and told her that
he did not need her. Mrs. Preslopsky remonstrated
with Johnsky, telling him she thought "it was a ratty
thing to do," and left the premises. She has not
since returned.
After their encounters with Johnsky both ladies
then sought out their former employer, Kass, and
each impressed upon him the economic necessity of
receiving termination slips. Although previously
reluctant to accede to Johnsky's request in this
matter, Kass, after receiving a call from an official
of the local unemployment office in behalf of Mrs.
Michaud, gave slips to both her and Agnes Preslop-
sky on March 19.
In his earlier discussions with Kass, and
thereafter, when he met Ellen Michaud and Agnes
Preslopsky on March 19, it was Johnsky's position
G The testimony of Kass and Johnsky I do not accept Johnsky's denial
that he discussed benefits with Kass In any event it is apparent that he was
aware of existing benefits, having admittedly discussed hospitalization with
his own attorney
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they were not his employees but Kass', and
that he had plans of his own for staffing his store
Employee John McGann, a witness called by the
General Counsel, lent support to this, testifying that
Rose Fillen, Johnsky's daughter, took over the
cashier duties which Mrs. Preslopsky had per-
formed with Home-Bristol. Although she had
planned to work until June, Johnsky's daughter
held this job for only 2 weeks, leaving as a con-
sequence of her accelerated pregnancy. She was
replaced on April 7 by Marlene Aldeo who con-
tinues to work at Avenue as a cashier
Johnsky assigned no one to take the place of
Mrs. Michaud, believing that his staff would be
adequate to do the necessary counter work. His
son-in -law, Robert Fillen, helps out on Saturdays,
however, sometimes at the Avenue store and other
times at Majestic. Similarly, his son, Daniel, who
manages the Majestic store, frequently helps out at
the Avenue store for several hours during the even-
ing after he has closed the Majestic store. Mrs.
Johnsky has seldom worked at Avenue nor does she
presently work at Majestic. Prior to the acquisition
of Avenue, during 1967, she had worked at
Majestic as a cashier.
D. The Discharge of Edmond Michaud
Among the Home-Bristol employees whom John-
sky put to work when they reported at Avenue on
March 19 was Edmond Michaud, an experienced
meatcutter and member of the Union. Michaud was
understandably irked at Johnsky for having refused
to hire his wife, Ellen, and on several occasions told
him so. In fact at the very beginning he pointed out
that they needed the money and wanted the matter
of her termination slip for unemployment settled.
It was the practice of the meatcutters preparing
the meat for sale to cut an accumulation and store
in the refrigerator what had been cut. Then as need
for meat arises in the store it is taken from the
refrigerator and placed in the display cases. On a
number of occasions, according to Johnsky, whom I
credit, he asked Michaud to bring the cut meats
from the refrigerator to the display counter for sale.
Michaud, presumably following the practice of his
former employment at Home-Bristol, objected to
this request but compromised by taking the meats
from the refrigerator and placing them on the rear
counter. For this Johnsky reprimanded Michaud
telling him that meats could only be sold from the
showcases and not from the rear counter or from
the refrigerator. The reprimands had no effect on
either Michaud's attitude or his efforts to comply.
He repeated the practice and each time Johnsky
remonstrated. Finally on April 8 during a busy
' This account is the credited testimony of Johnsky who further testified
that he was well aware of Michaud'% union membership and had discussed
the Union with him I do not credit Michaud's contrary testimony to the ef-
fect that his discharge came as a surprise to him and that he knew of no
reason for it except his union activity Neither do I credit for any purpose
the testimony of employee Charles Jardine I found his testimony con-
selling period Johnsky observed that they were
running low on meat on several platters in the dis-
play case and he called from the store area to
Michaud in the backroom to bring out fresh sup-
plies of hamburger and pork chops. Michaud
replied, "Get it yourself," and pointed to the
refrigerator. There were customers and other em-
ployees present who witnessed what Johnsky
referred to as "his embarassment." On the follow-
ing morning Johnsky called Michaud at his home
and told him his services were no longer required
and directed him to report for his pay. Johnsky as-
serted that he discharged Michaud solely for his at-
titude and insubordination.'
E. Johnsky and the Union
During the course of events detailed to this point,
references to the Union frequently appeared. John-
sky, as was his privilege, was opposed to the Union.
When negotiating the purchase of the store with
Kass he obtained a copy of the contract and
discussed with him its contents as it applied to Kass'
employees. Thereafter when he had assumed
ownership of the store Johnsky became more posi-
tive in his attitude.
Several days after he had assumed ownership
Johnsky engaged employee John McGann in con-
versation. He told him that "nothing would
change," that he did not want him to continue in
the Union, that he would not withhold union dues
as had been done previously by Kass, and that if a
union representative appeared he did not want the
employees to pay him. In fact, Johnsky told Mc-
Gann he could either work there or be a member of
the Union.' In a conversation with employee Fran-
cis Bayer on the same day Johnsky repeated what
he had told McGann, giving him the same alterna-
tive of working or quitting the Union.9 Both em-
ployees voluntarily quit, Bayer on the following day
and McGann a month later.
At this point it should be noted that not only had
Home-Bristol had a collective agreement with the
Union but all of its employees, at the time of the
sale to Johnsky, were union members whose dues
were being deducted by Kass pursuant to individual
authorizations and the terms of the agreement.
Against such a backdrop the Union's business
representative, W. Russell Dockins, appeared at the
Avenue store on March 21, introduced himself to
Johnsky as the Union's representative, and asked
him if the former had given him a copy of the con-
tract, to which Johnsky replied, "Yes, he did but
who needs you?" When Dockins persisted by again
referring to the contract and to what he referred to
tradictory on numerous significant respects and he impressed me generally
as a confused and unreliable witness
The credited, undemed testimony of McGann
" The credited, undemed testimony of Bayer Edmond Michaud, whom I
do not credit generally, testified to a similar conversation with Johnsky and
I accept it as further evidence of the fact
AVENUE MEAT CENTER 833
as a "successors and assigns clause,"10 Johnsky told
him he was not interested and to see his attorney.
He closed the encounter by stating that he would
spend $50,000 or $60,000 to keep the Union out.
There has been no further communication
between the Union and Johnsky or their respective
attorneys.
F. Interference, Restraint, and Coercion
Concurrent with the Union's request that John-
sky honor its contract with Kass, he became in-
volved in a number of incidents relating to the
working conditions of his employees which, it is al-
leged, stem from rights derived from the contract
and which further indicate his unwillingness to bar-
gain with the Union.
As previously noted, Johnsky told employee Mc-
Gann that he was opposed to the Union. Several
weeks thereafter, during the midafternoon of
March 30, observing that business was slow and
that McGann and a fellow worker were cleaning up
the store, Johnsky told McGann to go home when
McGann asked to take a coffeebreak. Upon Mc-
Gann's return to work on April 4 Johnsky asked
him if he had gone to the Union. When McGann
replied that he had not Johnsky told him he wanted
to hear no more about the Union.
On the subject of coffeebreaks employee Ed
Michaud complained that although a coffee urn
had been made available to employees they were
not able to take the break but drank the coffee at
their work place. Johnsky, when questioned about
coffeebreak policy, explained that he purchased a
coffee urn for his employees and that they could
have coffee anytime they wanted it."
Michaud testified that he was required to work
on his birthday, whereas previously under the con-
tract he was either given the day off or paid double.
He neither complained of this to Johnsky at the
time nor had he notified Johnsky of the birthday in
advance. Johnsky readily conceded that no con-
sideration was given to Michaud's or anyone else's
birthday, that Michaud never asked for considera-
tion , that he was not aware of when Michaud's
birthday occurred, and that he had no knowledge
of such a prior policy.
The Home-Bristol contract included provisions
for health benefits and group insurance . Some time
after the purchase of the facility by Johnsky, in
April, the employees were notified by Blue Cross
and Connecticut Medical Service that their
coverage was being canceled. Michaud, who
testified concerning this, conceded that he never
complained to Johnsky of the cancellation. Johnsky
testified that a health plan was never in force either
at Avenue or Majestic but that employees were
provided paid sick leave if they called in. His ver-
sion of sick pay was that none was forthcoming
until after the first week of an employee's illness.
Under this arrangement no sick pay has been
granted to employees, none having qualified.
Life insurance had been available to employees
under the Home-Bristol agreement with the Union.
Johnsky testified that he has not maintained a life
insurance program for Avenue employees since as-
suming ownership.
Finally it is alleged that Johnsky interrogated his
employees concerning their union affiliation. El-
sewhere in these findings it is evident that Johnsky
did precisely that, specifically in conversations with
employee John McGann. In addition to this he
readily conceded that when hiring Marlene Aldeo
as a replacement for his daughter whose availability
was curtailed for reasons of health he asked her if
she belonged to a union. Miss Aldeo confirmed this
conversation, adding that when she told him she did
not Johnsky remarked to an unidentified individual
present at the time, "I don't want them here."
G. Contentions
General Counsel has taken a number of positions
in this matter that, when set forth, clarify the con-
clusions which follow. At the outset it is claimed
that Johnsky's is a single integrated business, as
evidenced by common ownership, common control
of personnel, interchange of employees, and identi-
ty of operations. Based upon the evidence support-
ing these contentions I have already found and con-
cluded that Johnsky was an employer over whom
the Board would appropriately assert its jurisdic-
tion, supra. It is further contended that Avenue
Meat Center is the successor of Home-Bristol and
that as a consequence the contract previously in
force applied to Johnsky at Avenue. The result, so
the contentions go, is that the Home-Bristol em-
ployees continue as employees of Johnsky, and the
contract protects them. Accordingly, it is urged,
Johnsky's actions and failures to act which I have
detailed above are in derrogation of an outstanding
agreement and are as much an unlawful refusal to
bargain as was his outright rejection of the business
agent's request.
Under the foregoing theory advanced by General
Counsel, Johnsky's refusal to continue Ellen
Michaud's and Agnes Preslopsky's employment
would constitute unlawful discrimination. Indepen-
10 The clause to which Dockins refers is in the caption of the agreement
wherein the parties to it are identified by name as the Union, the several
stores comprising the overall bargaining unit and "their successors and as-
signs " The agreement contains no specific reference to its application
upon the transfer of a store to a third party
" In answer to a question of counsel for the General Counsel Johnsky
stated that he permitted two uninterrupted I5-minute coffeebreaks per
day Conflicting as it does with the credited testimony of McGann and with
Johnsky's own testimony to the effect that work requirements took
precedence over coffeebreaks , I do not credit his testimony concerning the
15-minute break In this respect it is to be noted that although I have
credited Johnsky generally I do not deem myself obligated to accept such a
portion of his testimony as conflicts with the weight of evidence, it being
not uncommon "to believe some and not all of a witness ' testimony
N L R B v Universal Camera Corp , 179 F 2d 749, 754 (C A 2)
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dently it is urged that Edward Michaud was
discharged for reasons of union membership and
activity and not for insubordination as claimed by
Respondent Johnsky.
H. Conclusions
1. The alleged refusal to bargain
The basic proposition presented by the facts
found in this case reduces to whether a collective
agreement which covers a group of employees in a
multistore bargaining unit may be applied to a
totally different bargaining unit; namely, a single
store of a new employer. With several minor excep-
tions every issue here hinges upon Solomon John-
sky's liability under a contract currently in force
and effect between the Union and Phillip Kass, the
former owner of one of Johnsky's establishments.
Avenue Meat Center is a typical neighborhood
store manned by the proprietor himself, members
of his family, and such additional employees as are
required. Majestic Meat Center is an identical
establishment operating in the same fashion. From
an earlier description of these two stores, the com-
mon ownership, the close family ties which bind
them together, and the interchange of personnel
make it obvious that Johnsky in his capacity as
proprietor of each is a joint employer, if such a
term can generically describe one individual.
Having said this much, even as General Counsel
has urged it to establish the Board's jurisdiction, I
am now called upon to conclude that Johnsky's
operation at Avenue is so separate and distinct as
to constitute it a separate bargaining unit. For that
is the basic import of the contention that the
Union's contract with Home-Bristol follows the fix-
tures and inventory.
Fortunately I need not confront this obvious con-
tradiction. Before reaching that problem we are
faced with the more basic ones of whether Johnsky,
at Avenue, succeeded to the contractural obliga-
tions of Kass, and whether Kass' contract with the
Union could apply to employees of the newly
purchased store
The ideal situation would be one where the
purchaser was truly the successor of a single opera-
tion. That, unfortunately, is not this case. Johnsky
assumed the store lease but bought only the fixtures
and inventory, and not the accounts receivable or
goodwill. Hence it is questionable whether he
would be a successor in the true sense.12 But
passing this unresolved issue we come to the one
that makes the resolution of the others unnecessa-
ry.
Although the contract between Kass and the
Union establishes what the union attorney correctly
described as a multistore unit, it was nevertheless
stipulated, as noted above, supra, that the Home-
" Cf Tallakson Ford, Inc , 171 NLRB 503
13 it is to be noted that these findings do not relate to the character of
Bristol employees alone are an appropriate unit. I
refuse to accept a stipulation so completely at vari-
ance with operative facts and documents, and I
conclude and find the employees in all four stores
to be the appropriate bargaining unit as agreed
upon.
The contract which the Union demanded that
Johnsky accept covered a four-store bargaining
unit. To sanction such a demand would suggest, in
effect, that one segment of a four-store bargaining
unit may properly be converted (even in an
unestablished successorship situation) to a single-
store unit where that single store nonetheless
requires the proven integration with another single
store to establish the Board's jurisdiction over the
matter, in the first instance. Such being the case it
is apparent that Johnsky was being asked by the
Union to assume bargaining obligations for a seg-
ment of a multistore unit. I am aware of no
precedent for the proposition, that an employer
who resists such a bizarre interpretation of a
reasonably clear situation has thereby manifested
bad faith sufficient to brand his refusal as unlawful.
Accordingly I conclude and find that regardless of
successorship considerations the multistore con-
tract between the Union and Kass is not applicable
to Johnsky's single-store unit at Avenue. And in-
deed it is highly questionable whether Avenue
could be such an appropriate unit while at the same
time it is so integrated with Majestic as to justify
the assertion of jurisdiction.
For all of the foregoing I would conclude and
find that no appropriate unit has been properly
established for bargaining purposes. I would there-
fore dismiss so much of the complaint as alleges
that by his refusal to accept the Union's multistore
contract Johnsky refused to bargain in violation of
Section 8(a)(5) of the Act.
As further instances of unlawful refusal to bar-
gain it is alleged, and in fact established by credible
evidence, that Johnsky acted unilaterally in deroga-
tion of the contract in numerous respects, which in-
cluded the withholding of benefits, abolishing of
coffeebreaks, discontinuing of health and life in-
surance arrangements, and the elimination of sick
leave and birthday benefits. These actions by John-
sky relate to his refusal or failure to implement the
terms of a collective agreement, and it is this agree-
ment which I find not applicable to him in the first
instance. I therefore conclude and find that he has
not thereby refused to bargain in violation of the
Act and recommended that so much of the com-
plaint as alleges such conduct to be a further viola-
tion of Section 8(a)(5) be dismissed.13
2. The failure to hire Ellen Michaud and Agnes
Preslopsky
Let it be understood at the outset that Johnsky
certain of this activity as is found hereafter to be in violation of Section
8(a)(l) See infra
AVENUE MEAT CENTER
was under no contractual obligation to permit Ellen
Michaud or Agnes Preslopsky or anyone else to
begin work in his store on March 19, there being no
applicable contract. Accordingly, unless it can be
established that his motives were grounded in union
animus he was perfectly free to hire whom he
chose
Solomon Johnsky was opposed to a union, as was
his privilege, and it was his privilege to say so under
Section 8(c) of the Act. It does not follow, how-
ever, that simply because he chose to put his
daughter to work in place of a union member, and
for overall staffing purposes found it unnecessary to
hire another one, he was thereby expressing his
union antipathy: Nor is their union membership
alone a basis for his elimination of these two,
because every former Home-Bristol employee was a
union member. Something more tangible than this
is required.
I have searched the record and nowhere do I find
any expression by Johnsky of his feelings toward
either Mrs. Michaud or Mrs. Preslopsky with rela-
tion to their union membership. I do find upon
credible evidence that Johnsky reorganized his ex-
panded enterprise to accomodate the use of his
family members in various spots. Thus on occasion
his wife was employed, his daughter was taken on
as cashier, his son-in-law worked on Saturdays, and
his son, the Majestic manager, worked at Avenue at
night. I refuse to view business prudence and family
solidarity as a form of antiunion motivation. I there-
fore conclude and find that neither Ellen Michaud
nor Agnes Preslopsky were refused employment for
reasons of their union membership but rather as a
consequence of a proper management determina-
tion. I would accordingly recommend that so much
of the complaint as alleges discrimination against
these two individuals be dismissed.
3. The discharge of Edmond Michaud
With or without such protection as a collective
agreement might afford him Edmond Michaud's
behavior when he refused to set out meats as
requested, and his retort to Johnsky, "Get it your-
self," was insubordination, pure and simple. It is
one thing to insist, as Michaud did, that the union
contract which he has mistakenly relied upon
delineated certain duties and assignments as outside
his classification. It is something else, however, to
insist upon these rights, even should they have ex-
isted here, by publicly embarassing one's employer
in the process. The union activity in which Michaud
claims to have indulged does not carry with it a
license to be a boor. Because the contract had no
application here and because Michaud had been
previously reprimanded for the same derelictions, I
am persuaded that Johnsky's decision to discharge
him was not motivated by his union membership or
his constant resort to the terms of the contract. On
" Continental Motors, Inc , 145 NLRB 1075
835
the contrary I am fully convinced not only by the
credited findings but by the inherent realities that
Michaud was discharged for refusing to do what he
was told to do and for the insulting remarks that ac-
companied his refusal. I would accordingly con-
clude and find that Michaud's discharge for cause
was fully warranted and overdue. I shall therefore
recommend that so much of the complaint as al-
leges Johnsky's activity in this respect as a violation
of Section 8(a)(3) be dismissed.
4. Interference, restraint, and coercion
Elsewhere in this Decision I have determined that
certain statements and actions of Johnsky did not
constitute evidence of a refusal to bargain, there
being no obligation on his part to do so supra. In
the context of the effect these statements had upon
Johnsky's employees, however, a second look is
required.
I have found that Johnsky interrogated employee
Aldeo concerning her union membership and em-
ployee McGann as to whether he had taken a com-
plaint to the Union. Likewise I have found that, in
conversations with employees McGann and Bayer,
Johnsky told them that they could either work for
him or belong to the Union. Such conduct, the
questioning of employees in a context of threaten-
ing them or others with discharge unless they for-
sake the Union, has the natural consequence of in-
terfering with these employees in the exercise of
their right to remain in the union if they so choose,
and in similar circumstances the Board has so
held. 14 I accordingly conclude that in these respects
Respondent violated Section 8(a)(1) of the Act.
It has also been alleged that Respondent Johnsky
has also unlawfully interfered with, restrained, and
coerced his employees by eliminating birthday
benefits, sick leave benefits, coffeebreaks, and
health and life insurance. Elsewhere in this decision
I have found that Johnsky had no obligation to
grant or continue any of these benefits for the
reason that no operative contractual obligations ex-
isted between him and the Union. Viewing these
same actions or failures to act, as the case may be,
in the light of employee rights guaranteed by the
Act it is clear, of course, that in the absence of an
agreement with the employees or with a union in
their behalf they have no right to any of these
benefits. Such being the case, Johnsky's failure to
provide any or all of the items claimed could not
possibly constitute interference with rights that do
not exist. In any event, certain facts gleaned at the
hearing from either credited evidence or admissions
disclose that (1) coffee privileges, as distinct from
15-minute coffeebreaks, were provided; (2) John-
sky was unaware of the former birthday policy in
force at Home-Bristol, was unaware of Edmond
Michaud's birthday, and Michaud admittedly never
informed him either of the practice or of his
427-835 0 - 74 - 54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
birthday ; and (3 ) sick leave privileges were in fact
granted by Johnsky after 1 week of illness, although
no one appears to have received benefits under the
plan.
Upon consideration of the foregoing I conclude
and find that Johnsky did not unlawfully interfere
with , restrain , or coerce his employees in matters
relating to birthday and sick leave benefits, cof-
feebreaks , and the termination of health and life in-
surance , and I will recommend that as much of the
complaint as alleges these items to constitute viola-
tions of the Act be dismissed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion IV, above, occurring in connection with the
operations described in section I, above, have a
close, intimate , and substantial relationship to
trade, traffic , and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
VI. THE REMEDY
It having been found that Respondent has vio-
lated the Act in certain respects , I will accordingly
recommend that an order issue requiring Respon-
dent to cease and desist therefrom and to take affir-
mative action which will effectuate the policies of
the Act . Insofar as I have found that certain of the
allegations in the complaint have not been sup-
ported by substantial evidence I shall recommend
that so much of the complaint as pertains thereto
be dismissed.
[Recommended Order omitted from publica-
tion. ]