Barker's East Main Corp.

National Labor Relations Board - Board Decisions

Mar 23, 1962

136 N.L.R.B. 494 (N.L.R.B. 1962)

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that as of the time of the hearing he was still not a member
of the Respondent Local, but that Respondent had later referred him
to a job.
[The Board dismissed the complaint.]
CHAIRMAN MCCLLLOC}I and ME-ATBER BROWN took no part in the
consideration of the above Supplemental Decision and Order.
Barker's East Main Corporation and Barker 's Supermarket,
Inc. and Retail Employees ' Union , Local 919, R .C.I.A., AFL-
CIO. Cases Nos. 1-CA-3284, 1-CA-3378, and 1-CA-3404. March
23, 1962
DECISION AND ORDER
On September 27, 1961, Trial Examiner Thomas F. Maher issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent' had engaged in certain unfair labor practices alleged
in the complaint, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices alleged in the complaint, and recommended that these allegations
be dismissed. Thereafter, the General Counsel and the Charging
Party filed exceptions to the Intermediate Report. The General Coun-
sel filed a supporting brief. No exceptions were filed by the
Respondent .2
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions , and recommendations of
the Trial Examiner with the following modifications :
The dismissal of the complaint as to John Dubb : We predicate our
dismissal of the complaint as to John Dubb solely upon the Trial Ex-
'As in the Intermediate Report, Respondents are collectively referred to in singular.
2 On December 21, 1961 , and while the matter was under consideration , the General
Counsel filed with the Board a motion to reopen and remand the proceeding for further
hearing before a Trial Examiner for the purpose of taking oral testimony of James
D'Agostino , Jr, and Dominic D'Agostino on matters set forth in their affidavits attached
to the General Counsel's motion. This motion was granted on January 9, 1962 . There-
after, on March 12, 1962, the General Counsel moved the Board to vacate its order of
January 9 , 1962 There being no objection to this motion , it was granted by the Board
on March 16, 1962.
136 NLRB No. 50.
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 495
aminer's finding that John Dubb was not discharged by the Respond-
ent, but voluntarily resigned on September 6, 1960, for the stated
reason that he was returning to school. We therefore deem it un-
necessary to pass upon the Trial Examiner's other ground for the dis-
missal, namely, that there was no operative charge as to Dubb filed
within the 6-month period required by Section 10 (b).
The rejection of the pretrial affidavits of Craig Olsen: While we
agree with the Trial Examiner's ultimate conclusion that the pretrial
affidavits of Craig Olsen, captain of the checkout boys, are not ad-
missible in evidence as "admissions against interest," we base our re-
jection of these affidavits solely on the Trial Examiner's finding that
Olsen was neither a supervisor nor the Respondent's agent within the
meaning of the Act. As his pretrial affidavits, offered to show alleged
discriminatory motivation on the part of the Respondent in terminat-
ing the employment of Tompkins and Bartholomew, do not constitute
admissions against Respondent's interest, they have no independent
testimonial value, are not admissible in evidence to prove what they
assert, and can be used only to impeach Olsen by showing inconsisten-
cies between his testimony and pretrial statements.' We deem it un-
necessary, therefore, to pass upon the Trial Examiner's other grounds
for the inadmissibility of Olsen's pretrial affidavits.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent Barker's East
Main Corporation and Barker 's Supermarket , Inc., Meriden, Con-
necticut , their officers , agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in Retail Employees ' Union, Local
919, R .C.I.A., AFL-CIO, by discharging or in any other manner dis-
criminating against its employees in regard to hire and tenure of em-
ployment or any term or condition of employment.
(b) Threatening its employees with loss of employment because of
their union membership or activities.
(c) Telling its employees and applicants for employment that it is
against Respondent 's policy to employ individuals who favor a union.
(d) Unlawfully interrogating its employees concerning their union
membership or activity , or conditioning their further employment
upon withdrawal from Retail Employees ' Union, Local 919, R .C.I.A.,
AFL-CIO.
S Sealtest Southern Dairies Division, National Dairy Products Corporation, 126 NLRB
1223 ; G & H Construction Company, 130 NLRB 923, N.L R B v. Quest-Shon Mark
Brassiere Co, Inc, 185 F. 2d 285, 289 (CA. 2)
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Engaging in surveillance of its employees' union activities.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the said Union or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment in conformity with Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Ronald Bridgett immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority or other rights and privileges previously enjoyed.
(b) Make whole Ronald Bridgett for any loss of pay he may have
suffered by reason of the discrimination against him.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secur-
ity payment records, timecards, personnel records and reports, and all
records necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its supermarkets in Meriden, Connecticut, copies of the
notice attached to the Intermediate Report marked "Appendix." A
Copies of said notice, to be furnished by the Regional Director for the
First Region, shall, after being duly signed by Respondent's repre-
sentative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
IT IS FURTHER ORDERED that so much of the complaint in this pro-
ceeding as alleged that the Respondent by discrimination as to the hire
and tenure of employment of Richard Tompkins, John White, Rus-
sell Bridgett, George Bartholomew, Real Charpentier, and John Dubb
4 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order " In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 497
violated Section 8 (a) (3) of the Act, and that so much of the complaint
as alleged that Respondent by the statements of its supervisor , Walter
Michalik , violated Section 8(a) (1) of the Act, be dismissed.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge in Case No. 1-CA-3284, filed on September 7, 1960, and two
amended charges filed thereafter on October 12, 1960, and March 15, 1961, upon a
charge and amended charge in Case No. 1-CA-3378 filed respectively on Decem-
ber 23, 1960, and January 9, 1961, and upon a charge in Case No. 1-CA-3404 filed
on February 8, 1961, by Retail Employees' Union, Local 919, R.C.I.A., AFL-CIO,
herein referred to as the Union, the General Counsel of the National Labor Relations
Board issued a complaint on March 10, 1961, with an amendment thereto on
March 21, 1961, against Barker's East Main Corporation and Barker's Supermarket,
Inc., herein referred to, collectively, as Respondent, alleging violations of Section
8(a)'(l) and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec.
151 et seq.), herein called the Act. In its duly filed answer Respondent admitted, in
certain instances to be discussed in detail hereafter, the commission of acts alleged
to be unfair labor practices, and as to certain other allegations denied the commission
of unfair labor practices.
Pursuant to notice a hearing was held before me at Meriden, Connecticut, on
March 27, 28, 29, and 30, and July 25, 1961. All parties were represented at the
hearing and were afforded full opportunity to be heard, to introduce relevant evidence,
to present oral argument, and to file briefs with me. Briefs were filed by Respondent
and General Counsel on September 8, 1961.1
Upon consideration of the entire record and the briefs of the parties and upon
my observation of the witnesses,2 I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Barker's East Main Corporation and Barker's Supermarket, Inc., are affiliated cor-
porations with principal office and two stores located in Meriden, Connecticut, where
they are engaged in the retail sale and distribution of groceries, foodstuffs, and related
products. While so engaged Respondent corporations have at all times herein
mentioned caused to be purchased in and transported in interstate commerce from
and through various States of the United States other than the State of Connecticut,
groceries, foodstuffs, and related products for resale and distribution in its stores. In
the course and the conduct of its operations groceries, foodstuffs, and related prod-
ucts sold and distributed annually exceed the gross value of $500,000. Respondent
admits and I find that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Employees' Union, Local 919, R.C.I.A., AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUES
1. The alleged supervisory status of Craig Olsen.
2. The effect of Section 10(b) upon an incident occurring more than 6 months
before the filing of the charge.
3. The adequacy of reinstatement under a settlement agreement.
'Briefs filed with the Board in an interlocutory appeal taken from a ruling of the
Trial Examiner have also been incorporated in the record and appear as General Counsel's
Exhibits Nos 7(i), (j), (k), and (I)
2 Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his demeanor
as I observed it at the time the testimony was given Cf Bryan Brothers Packing Com-
pany, 129 NLRB 285. To the extent that I indicate hereafter that I reject in part or
entirely the testimony of any given witness, it is my intent thereby to indicate that such
part or whole of the testimony, as the case may be, is discredited by me. Jackson Mainte-
nance Corporation , 126 NLRB 115, 117, footnote 1.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The quantum of evidence of mistreatment sufficient to establish a discrimina-
tory constructive discharge.
5. The admissibility of pretrial statements as admissions against Respondent.
6. The effect upon a settlement agreement of unfair labor practices occurring
after its execution.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
This case presents for independent consideration two virtually unrelated aspects:
(a) The legal effect of certain settlement and postsettlement procedures followed by
the parties, including the Regional Director, in Case No. 1-CA-3284; and (b) the
factual determinations which relate to violations alleged in the complaints based upon
subsequent charges in Cases Nos. 1-CA-3378 and 1-CA-3404 and in an amend-
ment to the original charge in Case No. 1-CA-3284.
With respect to the first of these independent considerations several significant
legal problems appear, namely, the legal effect upon an executed settlement agree-
ment of allegations of unlawful conduct occurring both contemporaneously with the
conduct disposed of by the settlement agreement as well as thereafter; and the
effect of Section 10(b) of the Act upon subject matter first added by amended
charge after more than 6 months had elapsed from the date the conduct occurred.
While it is my studied conclusion that Section 10(b) does preclude findings of
illegality as to the employment status of John Dubb and although portions of Case
No. 1-CA-3284 have been affirmatively complied with, it must be noted that the
issue of adequate reinstatement remains in issue, as do the allegations of additional
unlawful conduct. In the interest of clarity, however, I shall set forth all the facts
of the case as I find them and with reference to such findings dispose of the legal
issues presented. In this manner disagreement with my disposition of any portion
of the case on legal or technical grounds will not impede a contrary disposition of
the case by requiring that further findings of fact be made. The pertinent facts
follow.
B. Facts
1. The nature of Respondent's operations
Supermarkets operated by Respondent bear striking resemblance to the common
variety familiar to everyone. Accordingly, as to the market on Colony Street,
Meriden, Connecticut, and the newer one on East Main Street, it is sufficient to
note, as did witnesses at the hearing, that the operations of the stores and the duties
of the employees correspond in essential detail to those observed by anyone who has
had (as most have) occasion to patronize these modern-day versions of the general
store. Thus it may be established at the outset that such terms as are referred
to hereafter, for example, "checkout counters," "customer parcel pickup," "frozen
food and dairy shelves," "loading docks," etc., have no unique meaning when applied
to Respondent's markets or to its employees, but are the usual accoutrements and
terminology of everyday grocery marketing.
Of particular significance to the issues raised by this proceeding, however, is the
complement employed to operate these markets. Prominently included are "grocery"
or "stock boys" who, as the term suggests, replenish stock on the shelves, "check-
out boys" whose principal function it is to pack or bag the items purchased by in-
dividual customers, "parcel pickup boys" who are stationed at the pickup area out-
side the store to load bags of groceries into customers' cars, and "checkout clerks"
who tally customer purchases and accept payment for them. While the afore-
mentioned do not exhaust the personnel classifications employed in these or other
supermarkets, reference to and consideration of the duties of the various other areas
involved, such as meat and produce personnel, office and clerical staffs, is not
essential to the general understanding of the running of the business and of the
peculiar series of events that occurred at Respondent's stores.
In the conduct of its normal operations certain practices are observed which bear
significance to the issues raised herein. Thus grocery items, including dairy prod-
ucts and frozen foods, are delivered by truck, and either carried or hand-trucked
to storage space in the basement of the market where they are unpacked, individually
marked with their selling price, and thereafter stacked on shelves in the market,
as required. An exception to the marking routine is observed in the case of dairy
products, frozen foods, and bagged items such as flour, sugar, and dogfood. These,
because of the likelihood of breakage or the large volume of cumbersome packages
involved, are price-marked as they are placed on the display shelves. All other
items are required to be marked off the selling floor, thus reducing the frequency of
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 499
marking carts in the middle of the aisle where they could cause damage to customer
clothing or create a traffic obstruction.
In addition to their usual duties the aforementioned employees are expected to
perform a modicum of maintenance designed to keep the markets respectable in
appearance. This includes the frequent sweeping of the aisles, cleaning of the check-
out counters, and removal of trash and garbage from the markets generally, and in
particular from the luncheonette which constitutes a separate department of the
East Main Street Market.
The supermarkets are open weekdays from 9 a.m. to 9 p m., the early shift of
employees being required to report to work at 8:30 a.m. Work shifts are sched-
uled, generally, on an early and late basis, with part-time employees assigned the
later hours. Each employee is given 1 day off, and by State law no part-time
employee, so designated, is permitted to work in excess of 40 hours per week.
Employees are required to punch a timeclock upon arrival and departure and are
permitted coffee breaks on working time.
The Colony Street store is under the management of Harlan Beal, assisted by
Gerald Campbell. The East Main Street store, the larger and more modern of the
two, is managed by James D'Agostino. While there does not appear to be an
assistant manager at this store, this would be attributable to the fact that the
principal offices of the operation are located here where both Joseph and Earl Barker,
the active heads of the Company, spend most of their time.
In addition to the foregoing supervisors the record discloses Joan Waller to be
supervisor of the checkout girls, 16 in number, at the East Main Street store, and
Michael Valariay and Walter Michalik to be department heads and supervisors with-
in the meaning of the Act.
The supervisory status of Respondent's other employees bears, with one excep-
tion, no relevance to any issue herein. The exception, Craig Olsen, is stipulated by
the parties to have been captain of checkout or bag boys and of the parcel pickup
boys at the East Main Street store during the relevant times herein. He has since
been reassigned to the Colony Street store as a checkout clerk. It appears that
as captain of the boys Olsen was responsible for the proper functioning of the
bagging and parcel pickup operations and that in the performance of these duties
he assigned boys to one or the other of the stations as the volume of business re-
quired. In addition Olsen transmitted orders to these boys from Manager D'Agos-
tino and the Barkers, and scheduled them their coffee breaks. Olsen does not
appear from the record to have either discharge or hiring authority or the authority
to recommend such, and although the several boys testifying did state that they
considered him as their boss they continued in their testimony to state that they
went to him only for work-break permissions and directions as to where they
were to work. They consulted either D'Agostino or the Barkers in all other
instances requiring managerial approval. It also appears that Olsen, when not
fully occupied in his duties as captain of the boys, busied himself by bagging
groceries with the other boys, working at the parcel pickup station, or retrieving
and aligning the empty grocery carts as they accmumulated about the store and
its exits 3
From the foregoing synthesis of Olsen's duties, gleaned from the testimony of
General Counsel's own witnesses, it is difficult to accept General Counsel's vigorous
argument that this individual is a supervisor within the meaning of the Act .4 It is
quite true, of course, that many of these young boys looked upon Olsen as their
boss; but we cannot, contrary to counsel's suggestion in his brief, accept these
adolescent impressions as legal determinants of supervisory status. I do not for a
moment doubt the sincerity of their impressions but it cannot be gainsaid that a
commanding voice or a hard look may well be misunderstood by a young employee
on his first job in the grownup world as the voice of authority. This is not a test
for which I can find support in the cases. Rather, Craig Olsen's duties classify him
as a "strawboss" with all the lack of supervisory authority that attends such a classi-
fication.5 Indeed a review of the cases decided by the Board wherein it has variously
considered the supervisory status of supermarket employees reveals no instance
3 The credited testimony of John White and Ronald Crodsicl:i
4In this respect I would note General Counsel's failure to claim supervisory status for
another employee, John Dubb, an alleged discriminatee herein, who for a significant period
before his termination directed the activities of employees in the basement stockroom
(infra).
5 Cf. N L.R.B T Swift & Company d/b/a New England Processing Unit, 292 F 2d 561,
footnote 2, decided July 21, 1961 (C.A. 1).
641795-63-vol. 136-33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where a position as low in the chain of command as was Olsen's job of grocery bag
packing supervisor, has ever been suggested as one that should be excluded from
a bargaining unit as supervisory.6 Nor do I find in these facts support for the propo-
sition that Olsen's position was of such stature that he would be deemed a representa-
tive of Respondent. I have considered the authorities cited to me in support of this
position 7 but, like the Board in its consideration of similar facts in the recent Cabi-
nets, Inc., Subsidiary of Air Control Products, Inc., 130 NLRB 1378, footnote 1, find
them distinguishable from the situation herein. Accordingly, upon the foregoing
findings and upon the authority of the Board's prior determinations, I conclude that
Craig Olsen is not a supervisor within the meaning of the Act and did not otherwise
represent Respondent herein.
2. Respondent's resistance to its employees' organizing efforts
Organization among Respondent's employees began with the efforts of Union
Organizer Robert J. Ryan on April 25, 1960. On this occasion Ryan met with sev-
eral of the employees in the home of employee Gagne, where one of the employees
had arranged the attendance of one of Respondent's supervisors, John Valariay, under
an assumed name. Organizing continued throughout the summer and fall, with a
number of the employees soliciting union memberships both on and off the company
property. A petition for a representation election was filed on October 31, 1960, in
Case No. 1-RC-6252 and the election scheduled for December 23. The petition
was thereafter withdrawn by the Union for reasons not disclosed in the record. No
election has since been held.
In addition to Supervisor Valariay's prearranged intrusion into the organizing con-
ference referred to above, Respondent, through its officers and supervisors, ad-
mittedly engaged in incidents relating to its employees' organizational efforts. Thus
on June 21, 1960, Store Manager D'Agostino told an employee that he would be
fired if he signed any union card; on September 2, Earl Barker told an employee
that it was store policy not to have an employee who wanted a union; on the same
day Joseph Barker told another employee it would consider rehiring him if he
withdrew from the Union; and on the same day both Barkers and Store Managers
D'Agostino and Beal interrogated employees concerning their union affiliations and
activities and about the activities of other employees; on this date D'Agostino likewise
told an employee that he would make a deal with the employee if he told him what
other employees had signed union cards, and he told another employee he would
be fired if he did not tell him what other employees had signed union cards; and on
the same date Store Manager Beal told an employee that he was being discharged
because he had joined the Union or because of his union activities. On September 3,
Store Manager D'Agostino again interrogated an employee concerning his union
affiliations and activities; and on the same day and again on September 6, D'Agostino
threatened an employee that he would be discharged if he did not withdraw from
the Union.
Concurrent with .the foregoing incidents Respondent discharged employees Rich-
ard D. Tompkins, Real Charpentier, John E. White, Russell Bridgett, and Ronald
D. Brigett on September 2, 1960, and George Bartholomew on September 6. Tomp-
kins, Charpentier, White, and Bartholomew were thereafter rehired on September
21. Respondent again discharged Tompkins on September 27, 1960, and White on
September 29. Thereafter, pursuant to a settlement agreement to be considered in
detail hereafter and relating to all six of the dischargees as well as to the instances
of interference, restraint, and coercion noted above, Respondent posted appropriate
notices and rehired those who had not previously been taken back, namely Russell
Bridgett, on October 31, and Ronald Bridgett rehired on November 2, together with
White and Tompkins, who had each been discharged a second time. These dis-
charges thus remedied by reinstatement under the agreement, Respondent concedes,
were effected for the reason that the employees concerned had joined or assisted
G See, for example, The Great Atlantic & Pacific Tea Company, Case No. 1-RC-6409,
132 NLRB 799; The Great Atlantic & Pacific Tea Company, Inc., 132 NLRB 744; Quality
Food Markets, Inc, 126 NLRB 349, 350, 356; Food Haven, Inc., 126 NLRB 666; Winn-
Dixie Stores, Inc., 124 NLRB 908, 912; ACF-Wrigley Stores, Inc, 124 NLRB 200;
Providence Public Market Company, 79 NLRB 1482.
7 'Wagner Iron Works, 104 NLRB 445, 462; Solo Cup Company, 114 NLRB 121, 122-123,
enfd. 237 F. 2d 521 (C.A. 8) ; Mississippi Products, Inc., 103 NLRB 1388, 1393, enfd
213 F. 2d 670, 673 (C.A. 5)
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 501
the Union or had engaged in other concerted activities for the purpose of self-
organization.8
3. The resignation of John Dubb
In addition to the foregoing conduct, any illegal implications attaching thereto
Respondent claiming to be expunged by the subsequent settlement agreement (infra),
it is also alleged that during the same period, employee John Dubb was discrimina-
torily discharged on September 6, 1960, and that on ,that same date he was told by
Supervisor Walter Michalik that he would be receiving more wages if he had not
supported the Union.9
John Dubb was fast hired on May 1, 1959, as a part-time stockboy as he was com-
pleting his second year of high school. He worked full time during the summer of
1959 and on his return to school reverted to part-time status, in which status he con-
tinued until the summer of 1961. Then, as a full-time employee, he was transferred
to the East Main Street Market which was about to be opened. Until the store was
opened employee Dubb was placed in charge of newly hired employees assigned to
unpacking and storing merchandise.1° When the market was opened Dubb was then
assigned to the frozen food and dairy department. It appears from Dubb's own
testimony that he at this time had designs on the managership of the frozen food
department of the East Main Street store, "thought [he] was entitled to it," and had
discussed the matter with Earl Barker.il After the store had been opened for a short
time, in mid-August, the managership was given to Walter Michalik in preference to
Dubb. As a consequence Bubb, both disappointed at his own loss and unhappy
at Michalik's promotion, by his own admission, complained to other employees of his
misfortune 12 and became party to growing friction between himself and Michalik.
Dubb appears to have derived no consolation from the fact that the selection of
managership was based upon Michalik's availability as a full-time employee, whereas
Dubb had already made it known that he was returning to school in the fall.13 In-
stead on August 20, he left on his vacation, stating to Joseph Barker on the day that
he left that this would be his last working day. On the mid-afternoon of Tuesday,
September 6, back from vacation, he reported to ,the market; but instead of punching
the timeclock and donning a tie and jacket as would have been customary for an
employee returning to work, he went to the office for his check, suggesting to em-
ployee D'Allesantro, en route, that he planned to quit and return to school. He also
8 The foregoing enumerated incidents are the subject matter of a settlement agreement
in Case No. 1-,CA-3254 executed by Respondent and General Counsel on October 31, 1960
My findings with respect to them are based upon the allegations in paragraphs 9, 10,
and 11 and 13(a) through 13(k) of the consolidated complaint issued against Respondent
on March 10, 1961, based upon charges filed in Case No 1-CA-3284, and upon the answer
thereto contained in Respondent's answer dated March 27, 1961, which, as supplemented
by stipulation at the hearing, constitutes an admission of the facts thus alleged. The sub-
stance of the amendment to the complaint dated March 28, 1960, being matters pertaining
to one John Dubb, not previously referred to in Case No. 1-CA-3284, are not deemed
admitted by Respondent's answer , were not part of the stipulation of fact at the hearing,
and accordingly are not included in my findings at this point. Cf footnote 16, infra.
9 These allegations form the subject matter of an amendment to complaint issued March
21, 1961, and although alleged to have occurred in early September 1960 were not made
the subject of any formal charge until March 15, 1961, upon the filing of the second
amended charge in the previously settled Case No. 1-CA-3284. See infra.
10 Unlike the claim made with respect to Craig Olsen ( 8upra ), there is no claim that
by virtue of his strawboss activities Dubb was a supervisor within the meaning of the
Act, or otherwise represented Respondent 's interests.
'1 Upon my observation of this witness as he testified, and after considering the contra-
dictions in his testimony, illustrated by self-contradiction on this very subject matter of
his desire for a managership , I do not credit his testimony except as it is corroborated
by the testimony of credible witnesses or constitutes an admission contrary to his interest
herein. As Dubb, particularly on cross-examination , makes such admissions I shall base
my findings upon them without crediting him generally.
'9 Corroborated by the credited testimony of employees Nelson and D'Allesantro.
'8 The testimony of employees Nelson and D'Allesantro. When questioned about his
intent to return to school in the fall Dubb became so evasive both in manner and in re-
corded answer as to make his answers meaningless . Suffice it to say he never denied
having expressed , during the summer , an intent to return to school in the fall.
Neither do I credit Dubb's gratuitous statement that he did not want the managership
until he was finished high school.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stopped in the frozen foods department on the way and conversed with Department
Manager Michalik, who expressed the hope that there would be no hard feelings
over his selection for the managership.14 Upon receiving his paycheck for the period
he had worked prior to his vacation Dubb was also given -a termination slip (blue
slip), a copy of which was to be presented to the State unemployment office. On this
slip, which Dubb took without objection, it stated as reason for termination, accord-
ing to him, "that I was returning to school." Dubb did return to school on the
following day, September 7, as he had previously indicated that he would. On the
basis of the foregoing evidence I find that John Dubb was not discharged but resigned
his employment.
4. The return of the discharged employees
It is alleged in the complaint that the six employees whom Respondent dis-
charged, namely Real Charpentier, Russell Bridgett, John White, Ronald Bridgett,
Richard Tompkins, and George Bartholomew, were not reinstated to their former
or substantially equivalent positions, as required by the October 31 settlement
agreement
Real Charpentier and Russell Bridgett: Nothing appears in the record with re-
spect to the adequacy or inadequacy of the reinstatement of either Real Charpentier
or Russell Bridgett. Although each was alleged to have been improperly reinstated
no formal charge was ever filed with the Board in their behalf, nor was Charpentier,
a present employee, called to testify as to the manner in which his reinstatement on
and after November 2, 1960, was discriminatory. Moreover, Russell Bridgett, who
was reinstated to work "mostly on the checkouts," i.e., "bagging," was never ques-
tioned as to the adequacy of his reinstatement. Upon such a state of the record there
are no facts to support allegations of discrimination with respect to the reinstatement
of employees Charpentier and Russell Bridgett.
Ronald Bridgett, Tompkins, and Bartholomew: These three employees are like-
wise included among those whose reinstatement was alleged to be inadequate. Be-
cause, however, they are also the subject of other alleged misconduct I shall defer
comment upon the nature of their reinstatement until a later point. Employee John
White, therefore, is the only one of the six dischargees whose claim of improper
reinstatement remains for consideration at this juncture.
John White: When first hired on July 17, 1960, at ,the newly opened East Main
Street store employee White was assigned to stockboy duties. Upon his reinstate-
ment in September after his discharge he was assigned to the checkout counter as a
bagboy. From this job he was again discharged and subsequently reinstated on
November 2 to an assignment claimed by counsel for the General Counsel to be
menial . This is the only reinstatement in issue at this time.15
When White returned to work on November 2, he reported to Supervisor Michalik.
To quote White, whose testimony I credit:
He asked me what I did before, I said that I worked on check-out and he told
me to go back there.
White, however, did not tell Michalik that he had worked as a stockboy prior to his
September 2 discharge, feeling that Michalik should have known of his assignment
of 2 months previous.
In addition to his duty of packing grocery bags he would be "occasionally" assigned
to cleaning up the luncheonette, garbage disposal included. That this was an adjunct
to the job of checkout boy is corroborated by employee Ronald Grodsicki, a General
Counsel witness who also described the duties of Craig Olsen, whom I have found
to be a "strawboss." Grodsicki, it would appear, and contrary to the general con-
tention of General Counsel, considered the job of checkout boy to be preferable
to stockboy, having requested to be relieved of the latter assignment. That the job
of checkout boy was comparable to the stockboy assignment was further attested to
14 At this point, upon Michalik's credited denial and my refusal to credit Dubb except
as qualified above, I specifically find that Michalik did not state to Dubb, as Dubb testified,
that lie "shouldn't have joined the Union, that [he] would be making a dollar and a half
an hour," or that Michalak made any statement reasonably to be construed as conveying
such a thought. I likewise specifically reject Dubb's testimony that he thereafter had a
conversation with Earl Barker wherein Barker accused him of "knifing him in the back"
and then discharged him.
15 As white's both discharges were the subject of the settlement agreement of October 31,
1960, neither those discharges nor the intervening reinstatement , also encompassed by the
agreement and conceded as a fact in Respondent 's answer and admission in the record,
are in issue at this time.
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 503
by White who stated that he did not care whether he was "on stock or check-out,"
that he was satisfied with the time schedule assigned him, and that he never had
or made any complaint as to either his job or his schedule.
From the foregoing it would appear, therefore, and I so find, that the job of stock-
boy, as performed by John White and Ronald Grodsicki, was not established as being
either superior or inferior to the checkout assignment in any recognizable respect,
nor did White have any preference for one over the other, and did not consider him-
self demeaned by assignment to the checkout counter.
5. The resignation of Richard Tompkins
Richard Tompkins, aged 17, the stockboy discharged on two occasions for reasons
pleaded and stipulated to be his union and concerted activities,16 returned to work on
November 2, 1960, as a checkout boy at the East Main Street store. This assign-
ment and the manner in which he was allegedly treated thereafter until his resignation
on December 29, form the basis of the allegation that Tompkins was not reinstated to
his former or substantially equivalent position and that his resignation on Decem-
ber 29 was motivated by the treatment he was receiving and therefore constituted
what is referred to as -a "constructive discharge" for reasons connected with his
union and other concerted activities. It becomes necessary, therefore, to evaluate
the nature of Tompkins' several assignments prior to and after his discharges as well
as the alleged mistreatment he claims to have received.
As previously indicated, the job of stockboy involves the replenishing of the store
shelves with groceries and other foodstuffs, and includes such subsidiary assign-
ments as unloading trucks, unpacking cased canned goods, price marking individual
items, and performing normal store cleanup work. The checkout job, on the other
hand, involves the packing and the bagging of customer purchases after they have
been paid for. In addition, checkout boys are assigned to such cleaning of the
checkout area and the store generally as is required. And finally, the parcel pickup
job involves outdoor work, loading customers' cars with the bags of groceries previ-
ously packed by the checkout boys on the inside. These two latter jobs are inter-
changeable, assignments from one to the other being controlled by the volume of busi-
ness at a given time
Counsel for the General Counsel makes two points: (1) that the stockboy job is
different from the other two, an obvious observation; and (2) that "the job of stocking
shelves and marking prices is inside work and it obviously requires more mental
capacity and imagination than the perfunctory and menial job of a boy who simply
packs a customer's groceries and puts them in an automobile." Thus, he concludes,
"as a stockboy and price marker Tompkins worked inside and generally was able to
exercise a higher degree of imagination and ability The work was less routine
and boring. It also requires a greater knowledge of Respondent's marketing system
and prices " 17
Without intending to reduce a comparative analysis of these jobs to the ludicrous,
it is still necessary to draw conclusions which should appear obvious to anyone who
has even patronized a grocery market. This I shall do in relation to the evaluation
made by the foregoing quoted contentions of counsel:
(a) That the job of stockboy is inside work and thereby preferable when compared
with the outside character of parcel pickup work assumes the conclusion that outside
work is inferior to inside work, particularly in the winter or in the rain. Such an
assumption would hold true, it would seem, only as it applies to individuals who
prefer inside work to outside. Otherwise the assumption appears to cast a reflection
of inferiority upon the occupations of a substantial number of the community who
work out of doors. I do not accept it
(b) That stocking shelves and marking prices "obviously requires more mental
capacity and imagination" than the jobs of bagboy or parcel pickup is indeed a diffi-
1e The testimony reads, in part
TRIAL EXAMTNF.R' You do admit, according to paragranh 11 that you discharged
these employees for the reason that they joined or assisted the Union or engaged in
other concerted activities9
Mr MARSHALL, But we deny that we failed to reinstate and we further answer
that they were reinstated
TRIAL EXArMTNFn• All right now, the allegations of discriminatory discharge of
these individuals, except Dubb, is therefore admitted on the record as well as in the
answer
"These contentions appear in a brief submitted by counsel for the General Counsel
and appear in the record as General Counsel's Exhibit No 7-J, p 9
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cult hyperbole to justify . The imagination , for example , required in unloading a
truck or placing canned soup on the proper grocery shelf is not extensive , nor is the
mental capacity required to correctly stamp the selling price on the top (or the
bottom ) of such a can . Indeed the extent of mental capacity required would seem
to bean ability to read and comprehend the figures and names of grocery items on a
price list.
(c) That the job of packing groceries and putting them in automobiles is, by com-
parison, "perfunctory and menial" completely ignores a degree of "mental capacity
and imagination" needed to insure that eggs , for example , are not packed beneath
canned goods or fish next to paper napkins and that the public whom such employees
meet are politely and efficiently dealt with that the Employer 's goodwill be maintained.
(d) To suggest that the job of stockboy is less routine and boring gives meat to
the expression that "it is easy to be a hill in a flat country." Upon my personal
observation of, and past experience with, such occupations , I would suggest that com-
parison as to routineness and boredom fails.
(e) And finally the suggestion that the job of stockboy requires a greater knowl-
edge of Respondent 's marketing system and prices exaggerates the dignity of the job
out of all proportion to its real character . As noted above , an ability to read, lift
reasonably heavy articles , and stamp prices on cans and packages is the essence of
this job 18 A knowledge of Respondent 's marketing system extends , 'I am sure, far
beyond these menial requirements.
In sum, therefore , an analysis of the job of stockboy does not conform with the
General Counsel 's appraisal , nor does it suggest the job to be anything but one of
three equally unskilled, albeit highly necessary , jobs in the operation of the modern-
day grocery market. Upon the facts presented , therefore , and my analysis of them,
together with my observation of the several jobs, and upon the credited testimony
of employees White and Grodsicki that one of the jobs was no better or worse
than the other , I conclude and find that the jobs of checkout boy and parcel pickup
to which employee Tompkins was assigned during his last 6 weeks of employment
were substantially equivalent to the job of stockboy to which he had previously been
assigned.
Quite apart from Tompkins' complaint that the different jobs given him on his
reinstatement did not constitute equivalent employment , it is also claimed in his
behalf that the conditions under which he worked during the period were such as
to cause his resignation on December 28, thus inflicting further discrimination against
him for his union and organizing activities and giving proof of the inadequacy of the
reinstatement . After Tompkins resumed his work on November 2, he was assigned
to the late shift , 12.30 to 9:30 p.m , a time schedule which General Counsel claims
to be evidence of Respondent 's reprisal against Tompkins . During the week of his
return Tompkins objected to the schedule assigned him and requested a change. He
was thereupon reassigned to the more favorable schedule of 9 a.m. to 6 p.m. As
part of his duties Tompkins was required to wash down the checkout counters when
work was slack , to sweep out the store , and to empty trash from the luncheonette.
These , according to employee Grodsicki and Respondent 's official , Joseph Barker,
both of whom I credit, were usual assignments for all of the boys Tompkins, how-
ever , considered them disagreeable
In addition to the foregoing assignments Tompkins was also assigned to the
parcel pickup station . On cold days he would occasionally leave his station and
come inside where he would, on his own initiative , begin to bag groceries at the
checkout counter. On such occasions Respondent 's Earl Barker would reprimand
him for leaving his work, and on several occasions , for coming into the checkout
area without removing his wet raincoat . Tompkins . in fact, considered Barker's
treatment of him , particularly during the last month of his employment , to be harsh
Thus Barker would "always yell and he was crabby ," he was sarcastic toward Tomp-
kins and constantly reminded him, when on parcel pickup, "don 't forget to say thank
you to the customers."
A number of unpleasant incidents were interspersed through this period of general
dissatisfaction Thus, according to Tompkins , when he was taking his break at the
lunch counter the following incident occurred:
I was sitting down having a cup of coffee, Earl came by and asked me what
I was looking at, I said , "nothing," I went upstairs and I went back out to work
ie According to employee White a knowledge of pricing was unnecessary because most
of the goods to be placed on the shelves had usually been price -marked by someone in the
storage area.
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 505
and he called my name on the loudspeaker and had me come to the office. He
said, "Who do you think is paying you," I said, "You are," he told me he wanted
me to wipe that grin off my face and if I couldn't wipe the grin off my face then
he would have somebody wipe it off for me, and that I couldn't sit at the lunch
counter or have any more breaks.19
Later on the same day, according to Tompkins, Barker told him to keep his hands
out of his pockets and keep busy,20 and during the week prior to his resignation, he
was reprimanded by Barker for having failed to get permission before leaving his
work for the restroom. Tompkins admitted, however, that Barker's frequent repri-
mands did not include an occasion when Tompkins smashed a plate glass door. On
this particular occasion, Barker was not "too disturbed."
During this same period, a longstanding (since September 1960, at least) atmos-
phere of smouldering antagonism between Tompkins and one Dominic D'Agostino,
ignited. D'Agostino, a muscular fellow worker and the brother of the store man-
ager, engaged in an argument over the loss of a glove.21 The heated argument,
brought on in great measure by Tompkins' goading of D'Agostino,22 was about to
develop into a combat situation when employee Judith Beebe intervened and cooler
heads prevailed. Tompkins immediately complained of the altercation to Store
Manager D'Agostino and employee Beebe also reported it to Joseph Barker who
thereupon reprimanded Dominic for his conduct.
Tompkins testified that conditions generated by the foregoing incidents and atti-
tudes became such as to make continued employment unbearable and accordingly,
on December 28, he resigned, telling Joseph Barker that he had another lob,23 but
making no reference to the conditions he was allegedly experiencing.
Other circumstances in addition to those suggested by Tompkins' testimony appear
to have materially influenced his decision to resign. Thus Tompkins concedes, and
the credited testimony of employee Ruth Kelly confirms, that he stated he would
quit if the Union lost the Board election scheduled for December 23.24 The petition
was withdrawn on December 21, and Tompkins worked only 3 days thereafter.
Thus it appears as a conceded fact, and I so find, that Tompkins' resignation was
inspired, at least in part, by his unwillingness to remain after the Union had failed
to achieve success.
Upon cross-examination, Tompkins also conceded the accuracy of the company
time records which attested to a chronic habit of tardiness (anywhere from three-
quarters of an hour to 11/2 hours) and repeated absences without notifying the
Company-a failure that occurred "about four or five times." This situation, the
several "incidents" noted above, and Tompkins' expressed attitude of annoyance
at correction clearly indicates to me a pattern of conduct on Tompkins' part that
would be readily conducive to managerial irritation. I accordingly conclude and
find that the so-called "yelling," "badgering," and "crabby treatment" given Tomp-
kins was actually induced by Tompkins himself. Under such circumstances, there-
fore, and upon consideration of Tompkins' own admission that he publicly announced
his intent to resign if the Union failed, I find that he had decided to quit independent
of any mistreatment he thought he was receiving, that he admittedly had another
job, and that such mistreatment as he claimed to have been receiving, apart from
its not being a determinant of his resignation, was primarily the result of his own
poor workmanship and unsatisfactory attitude.
19 On my observation of Tompkins as a witness I do no credit him Because his personal
complaints are the basis, in part, of the allegations herein, I must necessarily quote him
and use his statements as descriptive of Respondent's alleged mistreatment In so doing
I do not mean to suggest the validity of such complaints, in fact, but merely present
them as the basis suggested above, and as evidence of what I find to be Tompkins' fancied
or contrived grievances against his superiors
21 Respondent 's Joseph Barker credibly testified that it was standard practice to permit
parcel pickup boys to come in out of the cold to warm up occasionally and that Tompkins
was never excluded from this practice
21 There was a suggestion in the record that Dominic D'Agostino has some sort of super-
visory authority by virtue of a statement of the store manager to Tompkins that in the
manager's absence brother Dominic was Tompkins' boss I do not concede that this
establishment of a "conduit of authority" for emergency situations would dignify a fight
between two 17-year-old boys as an expression of management policy
22 The credited testimony of employee Judith Beebe
23 This admission is confirmed by Joseph Barker's credited testimony Tompkins testi-
fied, however, that he told others in the office merely that he was looking for another job.
24 Case No 1-RC-6252.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The resignation of George Bartholomew
George Bartholomew resigned his job as checkout boy at the East Main Street
store on December 29, 1960 , the day following the resignation of Tompkins, and
under similar circumstances . Bartholomew was first hired as a part-time checkout
boy at the Colony Street store in November 1959, and was among those discharged
in September 1960 and returned to work thereafter , pursuant to settlement agree-
ment on September 21. Bartholomew had previously been working interchangeably
as stockboy and checkout boy, full time. Upon his return he was assigned to the
newer East Main Street store, which he did not consider as good a store to work at
because it was busier . At this new assignment Bartholomew was put to work as a
checkout boy, where he worked interchangeably as parcel pickup boy.
Bartholomew 's assignment on September 21, and the manner in which he was
allegedly treated thereafter until his resignation on December 29, form the basis of
the allegation that he, like Tompkins , was not reinstated to his former or substan-
tially equivalent position and that his resignation on December 29 was also moti-
vated by the treatment he had been receiving , and therefore , as in Tompkins' case,
constituted a "constructive discharge " for discriminatory reasons. As in Tompkins'
case, therefore , it becomes necessary to evaluate Bartholomew 's assignments and to
consider the alleged mistreatment claimed by him in the light of evidence presented
by credible witnesses.
With respect to the assignment of Bartholomew to the position of checkout boy
and the allegation of its inferiority , the previous analysis of the two jobs and the
job of parcel pickup is equally applicable to the claim that is being reiterated with
respect to Bartholomew 's reinstatement . Upon this analysis , therefore , I conclude
and find that, however different the jobs may be, they are substantially equivalent.
The treatment Bartholomew claims he received following his return to work on
September 21 paralleled that claimed by Tompkins and discussed in detail above.
Thus, according to Bartholomew , he was subjected to a constant barrage of scolding
and yelling by Earl Barker , who, it appears, was never too friendly disposed toward
the boy 25
From the date of his return Bartholomew was particularly disturbed by the work
schedule given him. Whereas he worked from 8 a m. to 5 p m., at the Colony Street
store, 5 days a week with Saturdays off, prior to his discharge, on his return he was
assigned to a 9 a.m. to 7 . 30 p m schedule with a long lunch period. Unlike Tomp-
kins who asked for and received a more agreeable work schedule Bartholomew
made no such request nor did he ever ask that his job assignment be changed.26
Despite Bartholomew 's failure to object to the assignments given him he nonetheless
considered certain aspects of his work distasteful and so stated at the bearing.27
Among the allegedly disagreeable chores assigned Bartholomew were the removal
of garbage and trash from the luncheonette two or three times a week , washing
the checkout counters and front walls of the store with other checkout boys , sweep-
ing the floors alone on Monday nights and with other employees on other nights.28
Sometime between ,the beginning of October and mid-November Bartholomew had
two encounters with Earl Barker that added to his alleged dissatisfaction with his
25 While of necessity I must set forth in some detail Bartholomew's numerous complaints
and I must recount the several incidents and alleged threats to which he claims exposure,
I do not credit his testimony except where it is corroborated by credible witnesses or
amounts to admissions contrary to his interest
I observed Bartholomew throughout his attendance at the hearing and as a witness
before me His manner and appearance were not such as +o inspire confidence in his
testimony and suggests the probability that much of the scolding directed to him had
warrant In his testimony I find him to be evasive and contradictory in many matters
Thus, for example , he was asked if he had a conversation with an employee , Lesiak, to
which he replied, "I think so, yes," and then proceeded to elaborate on the conversation
in answer to subsequent questions Similarly, when asked if upon his resignation lie told
management he had another job, he stated, "I think I did ," and thereafter described this
as the reason he gave Contradictions are illustrated by such items as his complaint that
he was required to sweep the floor alone on Monday and Tuesday nights, only to admit
thereafter on cross-examination that Tuesday was his day off
21 The credited testimony of Joseph Barker
"In thus presenting Bartholomew's complaints with his working conditions I do not
suggest their validity but merely as the bases for the mistreatment alleged and as evidence
of what I find to he Bartholomew's fancied or contrived grievances against his employer
=8 Bartholomew conceded that as Monday was the slowest day at the market the floors
were not so dirty as to require group sweeping, as occurred on other evenings
BARKER'S EAST 1\ZAIN CORP. & BARKER'S SUPERMARKET 507
work and indicated to him Barker's animosity towards him. On the first occasion,
at some undetermined date after his return in September 1960, someone wrote on
the men's room wall and Earl Barker blamed Bartholomew for it. When Bartholo-
mew protested that he was not responsible Barker told him to clean it up anyway.
Sometime later it was discovered that someone had sprayed shaving cream about
the men's room and Barker told Bartholomew on this occasion that "he thought"
he did it. Bartholomew protested his innocence of this but, as in the case of the
wall writing, he was nevertheless instructed to clean it up. Although cleanup work
is among duties of both stockboys and checkout boys 29 Bartholomew, at the hearing,
considered the two foregoing cleaning assignments distasteful and a mistreatment of
him.
Bartholomew also cited as an incident of mistreatment Store Manager D'Agostino's
reluctance, on November 15, to permit him to leave work for reasons of illness, sug-
gesting that he did not look sick; whereupon an argument ensued and D'Agostino's
display of temper nearly resulted in a fight before Bartholomew actually left the
premises. In this respect it would appear there was justification for D'Agostino's
irritation and I so find, inasmuch as Bartholomew's attendance was irregular, he
being frequently late and admitting to absences on many occasions, stating, "I didn't
call Barker's quite a few times when I stayed out," estimating the number of such in-
stances as 8 or 10.
On December 21, a week prior to his resignation, Bartholomew was told by Craig
Olsen, an employee previously found to be a strawboss, that under Earl Barker's
orders Bartholomew, for reasons not disclosed by Bartholomew in his testimony,
was not to be permitted work breaks in the future. Bartholomew's reaction to these
relayed instructions was a statement to Olsen ",to have Earl come and tell me
himself." 30 He saw Barker and thereafter, under Barker's orders, because of the
established frequency at which he took breaks, Bartholomew was required to punch
out and take them on his own time.
Finally, on December 29, the day following Tompkins' resignation, Bartholomew
appeared in the luncheonette of the market prior to punching in and was approached
by Dominic D'Agostino who threatened him bodily harm for having reported
D'Agostino to management. It appears from the record that Dominic D'Agostino
was, as previously described, a typical bully who performed at his best when
engaged with boys smaller and less strong than himself, Bartholomew, as did
Tompkins, appears to have been sufficiently undersized to accommodate Dominic's
limitations and as a result was constantly being "picked on" by him Bartholomew
reported Dominic's actions and threats to Joseph Barker who promised him action.
That Barker followed through in this respect is evident from Dominic's actions at
the luncheonette when he again threatened Bartholomew, on the morning of Decem-
ber 29 in question, this time for having caused him trouble with the management. It
was at this ,time and for this reason, as well as for the foregoing recounted instances
of alleged disagreeable work assignments and mistreatment, that Bartholomew
reported to the office and resigned his job. He concedes, however, that when he
resigned he told both Earl and Joseph Barker, in the presence of a number of em-
ployees, that he had a job at the 1-2-3 Car Wash, a fact confirmed by the owner of
that establishment who testified that Bartholomew began work with him on January
3, 1961.
The circumstances suggested by Barthlomew's testimony as the basis for his de-
cision to resign do not, I find, comport with other aspects of his testimony nor with
the testimony of other credited witnesses. Thus, the cleaning jobs assigned him were
standard for all personnel, as was the interchange of duties as parcel pickup boy
which on one occasion he refused to accept.
Furthermore, with respect to the alleged angry attitude displayed toward him by
management officials, it should be noted that even by his own admission Bartholomew
was frequently absent without notice and tardy, as well. Such work habits as Bar-
tholomew,thus appears to have developed are certainly not the type that would earn
him merit awards, and understandably are conducive to ill-will toward him on the
part of his superiors.
Accordingly, I conclude and find .that the so-called mistreatment Bartholomew was
receiving during the last months of his employment and .the restrictions placed upon
him were actually induced by his own attitudes and work habits. Under such cir-
"e The credited testimony of Joseph Barker, employees Dennis, Gagne, White, and
Grodsicki
so The reaction of Bartholomew conforms with his admitted refusal, 2 weeks earlier, to
obey Store Manager D'Agostino's order that he work at the parcel pickup station
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cumstances, therefore, I find that Bartholomew had decided to quit independently
of any mistreatment he thought he was receiving, that he admittedly had another
job, and that such mistreatment as he claims to have been receiving, apart from its
not being a determinant of his resignation, was primarily the result of his own un-
satisfactory attitude and poor work habits.
7. The discharge of Ronald Bridgett
Ronald Bridgett, first hired in 1955 at the age of 17, was among those rehired
pursuant to an agreement on November 2, 1960, following a discharge for reasons
pleased and stipulated to be his union and concerted activities. It is alleged that
his reinstatement was not to his former or substantially equivalent position and that
the treatment thereafter afforded him constituted further discrimination against him
as did his ultimate discharge.
When first discharged Bridgett had been working at the Colony Street market
as a part-time stockboy with duties including the marking of goods in the storage
area of the market and the replenishing of shelves. Upon his return he continued
as a part-time employee at Colony Street, and was assigned to the checkout counter
for ,the first day. On the following day, however, and for 2 weeks thereafter,
Bridgett, upon orders of Assistant Manager Campbell, spent most of his time keeping
an outside storage shed in order, including the sorting and packing of soft drink
bottles and picking up of cardboard.31 Following a complaint to Union Representa-
tive Ryan with respect to this assignment, and presumably after consultation between
Ryan and Respondent, Bridgett was reassigned to his previous job of grocery boy.
Bridgett was initially one of the Union's prime movers. Prior to his first discharge
he had been suggested by Union Representative Ryan as union shop steward for the
Colony Street store and this information was given by Bridgett to Assistant Manager
Campbell. Although he testified at length concerning Bridgett's work shortcomings,
Campbell failed to deny this knowledge attributed to him. He likewise failed to deny
another statement made in August 1960 when the organizing efforts were getting
underway, a statement which I consider determinative of Respondent's motivation
at the time and of Campbell's interpretation of it respecting Bridgett. Thus, when
Bridgett told Campbell he was to be selected as shop steward Campbell replied that
he should be careful what he said as Respondent "didn't want a Union."
As previously noted, it was store policy that groceries, excepting bagged items,
frozen foods, and dairy products, not be price marked in the aisles Bridgett con-
cedes that he had been specifically told not to mark goods in the aisles, and it is on
this policy and its alleged effects that Bridgett's fortunes hang.
On the evening of January 20, 1961, Assistant Manager Campbell had occasion
to observe employee Bridgett as he was performing his stock clerk duties. Campbell
thus described the incident:
Approximately 7:00 o'clock I walked down the dairy aisle and I saw a truck
with frozen foods on it, also I noted a set of stamps on the truck and Ronald
Bridgett was loading the frozen foods, I looked down and saw three cases were
opened, I asked him if he was marking goods in the aisle, I saw a stamp laying
on top of the frozen foods, I asked him again, he didn't say anything, I told
him to take the truck out back and I told him that he had been warned pre-
viously on this certain matter and he was dismissed; he said to me, "Does that
mean I am fired," and I said "yes," he punched out and went home.
Ronald Bridgett corrobroated Campbell's testimony in this particular with one ex-
ception, namely, that at the time this incident occurred he twice denied to Camp-
bell that he was pricing goods (i.e. canned goods) in the aisle; a denial which he
repeated at the hearing and which statement I credit.32 Ronald Bridgett, as di-
rected by Campbell, punched out, and although never given a discharge slip, his
personnel records reflect his discharge as of that date.
a The credited testimony of Ronald Bridgett I do not credit Campbell in this or
other matters except as his testimony is corroborated by the testimony of credible wit-
nesses or constitutes admissions contrary to Respondent's Interests See, for example,
footnote 35, infra.
I likewise credit Raoul and Dennis Gagne who testified that this type of work is per-
formed generally by all the boys
"To the extent that Campbell's account of this incident varies from Bridgett's I credit
Bridgett and do not accept Campbell's statement that Bridgett had failed to deny the
accusation at the time.
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 509
The record is replete with testimony dealing with store policy and practice con-
cerning the pricing of groceries in the aisle, and with Ronald Bridgett's short-
comings in that and other respects, including a number of warnings given him for
violation of the rule in the past. Particularly in view of the general knowledge of
the marking policy,33 regardless of whether or not notices were posted concerning
it, it cannot be said that Bridgett was singled out for the enforcement of this rule.
Such warnings, therefore, as he may have received cannot be viewed as evidence of
mistreatment but simply as enforcement of an existing rule known to everyone in
the store.
Nor has it been established, on the other hand, that this was the reason for
Ronald Bridgett's discharge. Thus it will be noted that in his description of the
incident, Campbell, who took full responsibility for the discharge,34 testified only
that he saw a set of stamps, three open cases of unmarked canned goods, and a
stamp lying on top of the frozen foods. In fact Campbell conceded upon cross-
examination that he did not see Bridgett marking prices in the aisle, and that it was
possible that the stamping equipment on Bridgett's cart was there for the purpose of
price-marking eggs, a permissive operation which Bridgett credibly testified he was
preparing to perform. It is clear, therefore, from both the credited testimony of
Bridgett and the admissions of Assistant Manager Campbell, that Bridgett was not
pricing goods in violation of the store rule when Campbell discharged him allegedly
for that reason on January 20.35
C. Analysis and conclusions
The substance of the findings I have made herein present for consideration, gen-
erally, the experiences of a number of juveniles in their first encounter with the
obligations and realities of the grown-up world, viewed against a backdrop of what
is claimed in their behalf to be their rights of self-organization. The record is re-
plete, for example, with testimony of employees seeking to explain how they were
treated poorly and imposed upon. Much of the complaint of overwork and rigid
supervision, as gleaned from the testimony and after observing these employees at the
hearing, impresses me that they have a most peculiar understanding of their working
responsibilities that can only be corrected by more work. Counsel for the General
Counsel, however, suggests to me a more relaxed approach. Thus in his brief he
states:
It must be remembered we are dealing with youths and not adults. One must
view and judge the case from the vantage point of a youth. Common sense
dictates that an adult-with the attendant responsibilities-will be less sus-
ceptible to pressure. Can it be said that Respondents were not aware of this?
It is common knowledge that the youth of today will view with more alarm
any invasion of their position-the right to be a youth.
In assessing Respondent's actions, however, and fairly evaluating the charges leveled
against it I am cognizant of the fact that a considerable expenditure of public time
and money has gone into the trial and resolution of this case. I have no intention,
therefore, of dignifying the antics and disrespectful attitudes of irresponsible
adolescents more than is necessary to reach what I deem to be sound legal con-
clusions. In this respect I can only be guided by the established rules of law that
require proof that actual and not fancied discrimination has been visited upon the
complainant, be he adult or child.
1. John Dubb
John Dubb's alleged discriminatory discharge and Supervisor Michalik's alleged
statement to him that he would have been receiving more money had he not supported
"The credited testimony of Raoul and Dennis Gagne.
s* In view of Campbell's conceded supervisory status and his admission that he took
full responsibility for discharging Ronald Bridgett for the reason stated, I find it un-
necessary to resolve conflicting testimony as to whether the discharge occurred in the
presence of either Joseph or Earl Barker, or any other supervisor.
35 As it appears from such admission and credited testimony, therefore, that the rule
with respect to pricing, the existence of posted notices setting forth this rule, and
Bridgett's alleged shortcoming with respect to the observance of the rule are not related
to Bridgett's discharge, particularly as Campbell admits he saw no violation of the rule,
I find it unnecessary to consider further any testimony with respect to Bridgett's trans-
gressions of rules respecting the pricing of groceries in the aisles during store time
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union were, by his own admission , first brought to the attention of the Charging
Party within a week after it occurred . Thus Dubb testified that:
[Union Organizer Ryan] got in touch with me and asked me if I wanted to sign
an affidavit, I believe it was, so I could be reinstated to my job, and he said that
he might be able to get back my job if I was willing to put in this complaint and
I said that I didn ',t want to, I was afraid of trouble , my parents didn't want
me to have anything to do with it, so I just let it go at that.
It appears , therefore , that information respecting incidents alleged to have occurred
on September 6, which could well have been included in charges filed with the Board
on September 7 or thereafter on October 12, 1960 , was withheld until it became the
subject matter of a further amended charge filed on March 15, 1961 , more than 6
months after either the alleged incidents or the filing of the original charge and its
first amendment . Because the filing of this charge was thus delayed beyond the
6-month permissive filing period , the provisions of Section 10(b) of the Act 36
are controlling and the holding of the Supreme Court in the Bryan Manufacturing
case applies. 37
It is suggested in support of an exception to the rule in the Bryan case that because
certain conduct alleged herein would, if proven, justify the setting aside of a pre-
viously executed settlement agreement , any charge of further violations would thereby
be permitted . Courier Post Publishing Company d/b/a Radio Station KHMO, 102
NLRB 26, cited as authority for this proposition , does not sanction such a "buckshot"
approach . First, it must be noted that the facts surrounding Dubb's alleged discharge
do not constitute newly found evidence , but were known to the Charging Party on
the day after Dubb 's resignation . Nor is the incident in .the category of events which
grew out of the subject matter of the settlement agreement although occurring after
its execution . Indeed, Dubb's alleged discrimination occurred , and was known by the
Charging Party to have occurred , even before the filing of the original charge
which gave rise to the settlement agreement. Relating these circumstances to the
Courier Post case the following language of the Board is significant ( 102 NLRB
at 28):
It is well established that where , after the execution of a settlement agreement,
unfair labor practices occur which violate that agreement , the Board will go
behind the agreement and litigate the presettlement as well as the postsettlement
violations , for the reason that it is a "salutary policy to protect parties to a
settlement agreement against violations of the agreement." [Footnote omitted.]
Where alleged Postsettlement violations are brought to its attention , the Board
is not precluded by Section 10(b) of the Act from processing the unfair labor
practices alleged in the presettlement charge, notwithstanding such violations
occurred more than 6 months before the filing of the postsettlement charge.
[Emphasis supplied.]
From the foregoing one thing is clear and it is that to be excepted from Section 10(b)
applications , the incidents must have occurred after the filing of the original charge.
As Dubb's termination and all the circumstances surrounding it were known to the
Charging Party almost immediately thereafter , and thus well before the filing of the
original charge, the holding of the Courier Post case, applying as it does to subse-
quently committed acts, has no applicability here.
Nor is the delayed filing of the charge here excused simply because Dubb's parents
would object . N.L.R.B . v. Indian & Michigan Electric Company , 318 U S 9, 17-18,
permits anyone to file a charge regardless of status as labor organization or em-
ployee. But nothing contained in that case or in those relying upon it 38 would limit
the filing of charges to those instances where prior authority , or as here, parental
permission , had first been obtained . Accordingly , I would recommend that the com-
plaint herein be dismissed as to Dubb for lack of an operative charge filed within the
period permitted by Section 10(b) of the Act.
Upon consideration of Dubb's alleged discrimination on its merits I have found
upon the credible evidence before me that he resigned his job for the stated reason
38 The pertinent language of Section 10(b) reads as follows
Provided , That no complaint shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the charge with the Board and the
service of a copy thereof upon the poison against whom such charge is made .
37Local Lodge No 1424y, International Association of Machinists , AFL-CIO, et at
(Bryan Manufacturing Co ) v N L .R.B , 362 U S 411 Cf : Peyton Packing Co , Inc,
129 NLRB 1358
38 See , for example , Duro Test Corporation , 81 NLRB 976 , 977, footnote 5.
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 511
that he was returning to school, a fact which he accomplished. As there is, there-
fore, no evidence of a discharge , discriminatory or otherwise , I recommend that so
much of the complaint as alleges Dubb's discharge be dismissed in the event my
previous recommendation has not been acted upon. Likewise, as there is no credible
evidence that Supervisor Michalik told Dubb he would have been earning more
money had he not supported the Union I shall recommend that so much of the com-
plaint (paragraph 13(l)) as alleges a violation of Section 8 (a)'(1) in that respect
be dismissed.
2. The reinstatement and the resignation of Tompkins and Bartholomew
a. The substantial equivalence of the jobs
It is claimed by General Counsel that both Richard Tompkins and George Bar-
tholomew were reinstated to something less than their previous jobs when each was
assigned to the checkout counter and parcel pickup rather than to their previous
assignment of grocery or stock boy.
As previously considered in some detail , all three jobs are comparable, carry the
same rate of pay, require no previous experience , and are considered interchange-
able.39 As do most unskilled jobs, they have their distasteful aspects; thus the stock-
boy lifts heavy cases of food, unloads trucks (out of doors, presumably), and sweeps
floors; the checkout boy must keep his area clean and remove trash when required;
while the parcel pickup boy faces the rigors of working out of doors. A review of
the requirements of these jobs, my observation of them as a frequent habitue of an
average supermarket,40 and a review of the credible evidence set forth above, respect-
ing Tompkins ' and Bartholomew 's assignments to these jobs , buttressed by a failure
of proof that these two quit because they were assigned these jobs, persuades me, and
I so conclude, that the jobs of checkout boy and parcel pickup boy are the substantial
equivalent of grocery or stock boy so as to constitute in the cases at hand equivalent
reinstatement.41
b. The alleged mistreatment and resignations
With respect to the further allegations that these two individuals and each of them
suffered such mistreatment and worked under such conditions as to make continued
employment unbearable, I have already detailed the facts as I found them upon the
testimony of credited witnesses . Because General Counsel sets much store on these
incidents, a review of them is essential.
(1) Richard Tompkins
Tompkins was supposedly given an unsatisfactory schedule upon his return to work.
It is to be noted, however, that when he objected he was given a schedule of his choos-
ing. The vice in such a situation would be to impose upon him a schedule at which
he could not work. But that is not this case . For unless it can be argued that one
schedule is per se better (or worse) than another, Tompkins got precisely the assign-
ment he requested. Similarly, he objects that he was required to work out of doors
in the cold (a job he shared with other noncomplaining parcel pickup boys ), that he
was reprimanded for coming inside wearing a dripping raincoat , that he was con-
stantly reminded to say "thank you" to customers , that Earl Barker "yelled" at him
constantly, and objected to his "looking at" him and grinning at him . I do not believe
that I do Tompkins an injustice by suggesting that upon my observation of him at the
hearing, the reprimands directed to him were not misplaced . The foregoing is
particularly so upon consideration of Tompkins' record of tardiness and unreported
absence from work and his conceded absence from his work station without permis-
sion. And as a final element of mistreatment it is to be noted that the bullying tac-
tics of Dominic D'Agostino is offered as a further incident of Respondent 's mistreat-
ment despite Tompkins' own admission that when he reported the incident to manage-
ment, D'Agostino was promptly reprimanded . What this whole incident amounts
to, as I view the credible evidence , is a running fight between two adolescents, cul-
minating in a full-dress encounter as a result of Tompkins ' goading of his more
muscular opponent . I am not disposed to dignify such an occurrence as an element
of management policy any more than I am disposed to view an enforcement of
normal order and discipline as mistreatment . On the contrary I conclude and find
39 The credited testimony of Joseph Barker.
40Employee Joan Waller credibly testified that the markets involved herein are of the
usual variety in operation throughout the country.
41 Mayrata Company, 132 NLRB 1628
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that these and such other cited actions as were taken with respect to Tompkins by
Respondent's supervisors during the period in question was not mistreatment but
was warranted enforcement of routine order and discipline.
2. George Bartholomew
Bartholomew's situation presents little that has not already been considered as to
Tompkins. Thus Bartholomew was assigned a schedule not to his liking but, unlike
Tompkins, did not request a reassignment and therefore received none. Like Tomp-
kins, Bartholomew was constantly scolded by Earl Barker whom he considered un-
friendly to him. And like Tompkins, Bartholomew appears to have merited the
reprimands directed to him. Thus Bartholomew was frequently late, absent without
notice 8 or 10 times, took excessive work breaks, refused on one occasion to accept
a work assignment, and insisted on another occasion that a reprimand relayed to
him by a fellow employee be given to him directly.
Bartholomew's aversion to work likewise parallels Tompkins'. Thus he claimed
mistreatment in being required to do cleanup and trash disposal work and objected
on two occasions to removing the effects of vandalism in the men's room. In
this respect, while I am in complete sympathy with his feelings upon being unjustly
accused of the deeds, it is to be noted that he protested his innocenceand his prot-
estations appear to have been accepted. I fail to see what claim he would have,
however, to thereafter refusing to perform the cleanup work requested of him. Cer-
tainly a cleaning job was to be done-cleaning was among Bartholomew's general
assignments-and Bartholomew was there on the scene . It would be ridiculous to
expect Earl Barker to search elsewhere for an employee more willing to perform
work for which Bartholomew was being paid and was capable of doing. And
finally, as in the case of Tompkins , I am not disposed to accept Dominic D 'Agostino's
bullying tactics as a representation of management policy, particularly in the face
of management's disavowal and attempted correction of it.
In sum , therefore , I conclude and find that such action as was taken against Bar-
tholomew by Respondent 's supervisors during the period in question was not mis-
treatment but, as in the case of Tompkins, the warranted enforcement of routine
order and discipline.
c. The alleged motive of reprisal
It is General Counsel 's contention not only that the assignments of Tompkins and
Bartholomew were not the substantial equivalent of their former positions and that
the Respondent 's relations with them constituted mistreatment , but that Respondent's
actions in these respects stemmed from its antiunion conduct previously disposed of
by settlement agreement in Case No. 1-CA-3284, and from statements made by
Respondent and its supervisors during the period following the execution of that
agreement . Specifically , General Counsel relies upon testimony of employee Russell
Bridgett and statements of employee Craig Olsen.42
Russell Bridgett testified to a conversation with employee Olsen in January 1961,
in which he represented Olsen as stating that "we finally got them (Tompkins and
Bartholomew ) to quit," "we gave them all the rotten jobs and they quit ," "that's
what you get for joining the Union ." Olsen , although called as a witness by General
Counsel immediately thereafter , was given no opportunity to affirm this conversa-
tion . But in any event, based upon my observation of him as a witness , I do not
credit Russell Bridgett 's testimony , and reject it as evidence of Respondent 's motives
with respect to Tompkins and Bridgett.
When Craig Olsen was called as a witness by General Counsel it was not for the
purpose of testifying concerning conversations or conduct attributed to him, but
for the sole purpose of identifying and acknowledging a number of sworn state-
ments previously given to representatives of the General Counsel during the course
of their investigation of this case. In answer to questions put to him by counsel,
Olsen acknowledged his signature on four pretrial statements given between Octo-
ber 6, 1960 , and February 15, 1961 , and testified that he swore to these statements
when he gave them. I do not credit his answer 43 For the reason that it had not
*a In addition to these two Henry Gagne testified in answer to a leading question, and
again after reading a pretrial statement given by him, that Earl Barker told him not to
talk to union people, including Tompkins and Bartholomew. Because of the strained and
halting character of his testimony and upon my observation of his demeanor as he testified,
I do not credit Gagne and reject his testimony as evidence of Respondent's antiunion
motivation with respect to Tompkins and Bartholomew during the period in question.
431 interpret Olsen' s answer to the effect that he "swore to these statements when [he]
gave them," to be tantamount to his avowal of their truth. Although, for reasons to be
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 513
been established that Olsen was a supervisor I rejected these documents as evidence
of Respondent's admissions, if such they could be construed. Indeed from the
standpoint of weight of evidence, and prescinding from any valid objection based
upon inadmissibility of evidence, I have inspected these rejected documents and
would note, without intending in any way to rely upon them, that all that Olsen
stated with respect to the mistreatment of Tompkins and Bartholomew and with
respect to his alleged statement to Russell Bridgett, which I did not credit, was, "I
may have told Russell Bridgett shortly after Tompkins and Bartholomew quit that
`we finally got them to quit by giving them dirty jobs.' Those fellows quit a few
days before I started at Colony Street store. It's quite possible I made such a state-
ment to Russell although I'm certain that I did not mention that the dirty jobs had
anything to do with their belonging to the Union." [Emphasis added.] Apart from
all considerations of admissibility of such a document on any ground, therefore, this
is indeed a far cry from evidence of the incidents themselves, little less of dis-
crimination for "belonging to the Union."
Upon review of the record and upon full consideration of the admissibility issue,
I conclude that the documents in question were inadmissible not only (1) because
they do not constitute the sort of admission properly acceptable, but (2) because
the manner in which their admission was sought violates .the basic right of Respond-
ent to defend itself.
It is the General Counsel's position that Craig Olsen, an alleged representative of
management, had made certain statements prior to the hearing contrary to Respond-
ent's interest that would properly be admissible as an admission. Apart from my
informal view of the documents that would suggest they admit nothing, it must be
noted that I have already found that Olsen is neither a supervisor nor a representa-
tive of Respondent and therefore General Counsel's major premise fails. That is to
say, Olsen has not been proven to have any supervisory or representative status
higher than a "strawboss."
Assuming for purposes of decision, however, that Olsen was a supervisor or agent,
as claimed by General Counsel, the question remains whether this be the legal
variety of admission that may be thus inserted into the record. The rule on this
subject is clearly set forth by Judge Wyzanski in U.S. v. United Shoe Machinery
Corp., 89 F. Supp. 349, at 381, thus:
It has sometimes erroneously been said that extrajudicial admissions are re-
ceivable against a party as an exception to the hearsay rule and that the reason
for the exception is either because in that party's eyes the statement must at
one time have seemed trustworthy or because it is only fair to put upon that
party the burden of explaining his own declaration. But the masters of the law
of evidence now agree that this is not the correct rationale (citing Wigmore,
Evidence, 3ded. § 1048).
Where the natural person has an agent who makes a statement to a third
person, the statement is the principal's if the agent was authorized to make the
statement or was authorized to make on the principal's behalf true statements
concerning the subject matter. Restatement, Agency § 286.
As there is nothing in the record to suggest that Respondent ever authorized Olsen,
whether he be deemed supervisory, agent, or neither, to make any statement in
Respondent's behalf, I accordingly reject Olsen's statements for this further reason 44
described hereafter, these statements are not in evidence, I have inspected them and
found that they contradict each other in certain respects, contradict certain admissions
of Tompkins and Bartholomew which I have accepted, and contradict the testimony of
credited witnesses. I accordingly reject Olsen's testimonial affirmation that his earlier
statements were true
1A See also: N.L.R B v. Quest-Shon Mark Brassiere Co., Inc, 185 F. 2d 285, 289
(CA. 2) ; Page Boy Company, Inc, 107 NLRB 126; Cabinets, Inc, Subsidiary of Air
Control Products, Inc., 130 NLRB 1378; Sealtest Southern Dairies Division, National
Dairy Products Corporation, 126 NLRB 1223, 1225.
General Counsel relies upon the following cases in support of the proposition that a
bare pretrial statement is admissible as an admission against a party's interest: Founda-
tion Company, 120 NLRB 1453; County Electric Co., Inc, et at., 116 NLRB 1080, 1082;
Grove Shepherd Wilson i Kruge, Inc, et al., 109 NLRB 209, 212; Ebasco Services incor-
porated, 107 NLRB 617, 619, 635. In each of these cases the pretrial statements were
not sought to be placed in evidence without reference to any testimony of the affiant, as
was sought with Olsen's statements herein, but in rebuttal to testimony already given by
the respective affiants The holding of the cases comports, therefore, with Wigmore,
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Practical and equitable considerations provide further basis for my refusal to
accept Olsen's statements. Numerous acts and statements were attributed to Olsen
by other General Counsel witnesses. Olsen was available to testify, to affirm, to
deny, or to explain. Instead, his direct testimony was limited to avowing his pretrial
statement and Respondent was powerless to cross-examine him on anything except
the mechanics by which the statements were procured. This, I believe, deprives
Respondent of the valuable right to adequately confront and cross-examine witnesses
appearing against it. And indeed if permitted to become standard practice would
reduce the hearing of cases to a submission of files and pretrial statements. As I
am aware of nothing in the law of evidence that would permit curtailment of basic
rights in this fashion I reject Olsen's statements for this further reason.
In the absence, therefore, of credible evidence to support the allegation, I find
that neither Tompkins' nor Bartholomew's resignations were connected in any way
with their union or concerted activity.
d. Summary
Upon the foregoing considerations based upon the credited evidence before me I
conclude and find that neither Richard Tompkins nor George Bartholomew was
reinstated to a job substantially inferior to the one either had previously occupied;
that neither of them was deliberately mistreated by representatives of management
but that such reprimands and assignments as were given them constituted routine
operations of the business equitably distributed among the employees and promul-
gated in the interest of normal order and discipline; that Tompkins did not resign
because of any of the foregoing but upon his own admitted prearrangement, because
the organization of the employees did not succeed; that Bartholomew did not resign
because of any of the foregoing but because he had obtained other employment; and
finally, assuming the reasons suggested by General Counsel for the resignations of
these two individuals to be true, there is no credible evidence to support a finding
that such action, if taken, was motivated by a desire on Respondent's part to visit
reprisal upon them for their union or concerted activity. Accordingly, I recommend
that so much of the complaint as alleges a discrimination against either Richard
Tompkins or George Bartholomew be dismissed.
3. The adequacy of the reinstatement of Charpentier, Russell Bridgett, and White
As previously noted, there is no evidence whatever that either Charpentier or
Russell Bridgett was reinstated to anything other than the job from which he was
originally discharged. Charpentier was not called to testify and Bridgett was ques-
tioned only in passing about his assignment 45 Accordingly, unless I am to conclude
that any assignment of a stockboy to checkout or parcel pickup is demeaning, I
must necessarily recommend the dismissal of the complaint as to these two. Having
concluded that there is no critical distinction among these jobs, I therefore recom-
mend dismissal as to Charpentier and Russell Bridgett.46
With respect to White's reinstatement, having already concluded that there is no
critical distinction among the jobs in question, and having found that White ad-
mittedly had no preference for one job over either of the others, I recommend that
the complaint be dismissed as to him.
4. The discrimination against Ronald Bridgett
The salient fact in Ronald Bridgett's discharge is that although he was, according
to Respondent, discharged for disobeying the store rule which prohibited pricing of
food products in the store aisle , the responsible supervisor who discharged him
conceded that he did not know for certain that Bridgett had actually been guilty of
this offense at that time. The transparency of this action is evident. I have no
Evidence, section 1018, to the effect that prior statements of a witness are admissible to
contradict his testimony. In view of this critical distinction General Counsel's reliance
upon these cases Is misplaced.
Bridgett did testify he "worked mostly on checkouts, once in a while on the stock"
46 I do not deem the absence of reference to either Charpentler or Russell Bridgett In a
formal charge In these proceedings to be Independent grounds for dismissal of the com-
plaint with respect to them The Instant charges are, In my judgment, broad enough to
encompass the allegations in the complaint. Mrs. Owen E . Brennan, Sr., et al d/b/a
Brennan's French Restaurant, 129 NLRB 52; Hudson Pulp & Paper Corporation, 121
NLRB 1446, footnote 1.
BARKER'S EAST MAIN CORP. & BARKER'S SUPERMARKET 515
hesitancy, therefore, in concluding as I do that Bridgett was not discharged, as
claimed , for pricing groceries in the aisle.
It remains to be determined, then, why Bridgett was summarily fired. Bridgett
was one of the Union's prime movers, a fact known to Assistant Store Manager
Campbell, who was also aware that Bridgett was to be selected as union steward
and warned him against it, stating that Respondent did not want a union. Under
such circumstances it is reasonable to infer that Campbell , whose job included en-
forcing the rule against pricing in the aisle, used the contrived circumstances of
apparent pricing by Bridgett to discharge him for his strong union connections. This,
coupled with the credited testimony of Respondent's own witness, employee Dorothy
Winkle, that no one had ever previously been discharged or even warned for pricing
food products in the aisle, persuades me that the reason used by Assistant Manager
Campbell and thereafter adopted by Respondent was but a pretext for the true reason,
namely, Ronald Bridgett's union and concerted activities 47
As a discharge in such context constitutes discrimination for reasons of union
membership and activities and also constitutes interference , restraint , and coercion
against Respondent's employees, I conclude and find that Respondent has thereby
violated Section 8(a)(3) and (1), respectively, of the Act.
5. The status of the settlement agreement
It has previously been found that Case No. 1-CA-3284 was settled by agreement
between General Counsel and Respondent dated October 31, 1960. This disposed
of all allegations in that case excepting only those involving John Dubb (supra,
footnote 8). Respondent, pursuant to the agreement , posted appropriate notices
respecting the alleged acts of interference , restraint , and coercion admitted herein,
and effected reinstatements of employees as previously considered.
Having found as I have that Respondent has discriminated against Ronald Bridgett
whose rights of employment had been previously established by the terms of this
agreement , it is now incumbent upon me to assess the status of that agreement, and
the letter of the Regional Director stating that the case was closed "so long as the
present status of compliance continues."
"It is well established that where, after the execution of a settlement agreement,
unfair labor practices occur which violate that agreement , the Board will go behind
the agreement and litigate the presettlement as well as the postsettlement viola-
tions." 48 Indeed, the very language of the agreement itself provides that "contingent
upon the compliance with the terms and provisions hereof, no further action shall
be taken in the above case." Having concluded that Respondent has violated the
agreement by the postagreement discrimination against Ronald Bridgett , it follows
that under its own terms the agreement had been abrogated insofar as it applies to
Ronald Bridgett, and I so find . 49 Furthermore, because it is so well established that
a violation of Section 8(a) (3) goes to the very heart of the Act and in itself con-
stitutes an aggravated form of interference, restraint , and coercion , and because
danger of such violations in the future is to be anticipated from the course of Re-
spondent 's conduct in the past ,50 I find that the settlement agreement has also been
violated with respect to the violations of Section 8(a)(1) set forth in detail earlier
in this report, regardless of the fact that remedy had been presumably achieved by
the posting of notices.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the operation of Respondent described in section I above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
I have found that Respondent, by its discharge of Ronald Bridgett, discriminated
against him in violation of Section 8(a),(3) of the Act and thereby interfered with,
restrained, and coerced him and Respondent's other employees in violation of Sec-
tion 8 (a)(1) of the Act. I shall therefore recommend that Respondent offer to
47 Jimmie Green Chevrolet, 133 NLRB 44
4s Courier Post Publishing Company, d /b/a Radio Station KHMO , 102 NLRB 26, 28.
49 Jackson Manufacturing Co, 129 NLRB 460, wherein it was established that no post-
settlement violations had occurred, has no application to the facts of this case
60 N.L R.B. v. Express Publishing Company, 312 U S 426, 436.
641795-63-vol. 136-34
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ronald Bridgett immediate and full reinstatement to his former or substantially
equivalent position 51 without prejudice to his seniority or other rights and privileges.
I shall also recommend that Respondent make whole Ronald Bridgett for any loss of
earnings that he may have suffered because of the discrimination against him, with
backpay computed in the customary manner.52 I shall further recommend that the
Board order Respondent to preserve and make available to the Board upon request
payroll and other records to facilitate the checking of the amount of backpay due
and the rights of employment. In this respect I would note that I make no finding
with respect to evidence proffered by Respondent that Bridgett was offered reinstate-
ment subsequent to his discharge and that he refused same . Such matters are more
properly addressed to the compliance stage of this proceeding.
Since it has been found that Respondent's unlawful conduct also constituted a
violation of a previously executed settlement agreement it will be recommended that
so much of the agreement as has not been effectively complied with be remedied
herein. Thus, although the incident enumerated herein as constituting interference,
restraint, and coercion have already been the subject of an effective posting, I shall,
nevertheless, recommend that Respondent be required to cease and desist from such
conduct and to again post appropriate notices pertaining thereto. This I deem essen-
tial because conduct herein, namely Ronald Bridgett's discharge, is itself a violation
of Section 8 (a)( 1 ) and is of such gravity as to suggest a danger of repetition of the
variety of interference, restraint, and coercion previously indulged in.53 Because,
however, I have specifically found upon credible evidence that certain acts alleged
in the complaint did not occur and that the settlement agreement had not in such
respects been violated, because the settlement agreement has in certain monetary
respects been complied with, and because I have found that with respect to employees
White, Charpentier, Tompkins, Bartholomew, and Russell Bridgett adequate rein-
statement has been effected, I shall recommend that no order with respect thereto
shall be issued against Respondent, effective compliance having been established on
the record.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminating in regard to the tenure of employment of its employee Ronald
Bridgett, thereby discouraging membership in the Union, Respondent has engaged in
and is engaging in an unfair labor practice within the meaning of Section 8(a) (3) of
the Act.
4. By the aforesaid discrimination and by thus abrogating an agreement executed
in settlement of previously alleged unfair labor practices Respondent has interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed them
by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not, as alleged in the complaint, violated Section 8(a) (3)
with respect to John Dubb, John White, Richard Tompkins, George Bartholomew,
or Russell Bridgett.
7. Respondent has not, as alleged in the complaint, violated Section 8(a)(1)
by any action or statement of Walter Michalik.
[Recommendations omitted from publication.]
51 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
52F. W Woolworth Company, 90 NLRB 289.
53 N L.R B. v. Express Publishing Company, supra.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
TOWN & COUNTRY DAIRY 517
WE WILL NOT discourage membership in Retail Employees' Union, Local 919,
R.C.I.A., AFL-CIO, by discharging or in any other manner discriminating
against our employees in respect to hire or tenure of employment, or any term
or condition of employment.
WE WILL NOT threaten our employees with loss of employment because of
their union membership or activities.
WE WILL NOT tell our employees or applicants for employment that it is
against our policy to employ individuals who favor a union.
WE WILL NOT interrogate our employees concerning their union member-
ship or activities, or condition their further employment upon withdrawal
from the above-named union.
WE WILL NOT engage in surveillance of our employees' union activities.
WE WILL offer Ronald Bridgett immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and any
other rights and privileges.
WE WILL make whole Ronald Bridgett for any loss of pay he may have
suffered as a result of the discrimination against him.
All our employees are free to 'become or to -remain members of the -above Union.
BARKER'S EAST MAIN CORPORATION,
BARKER'S SUPERMARKET, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Town & Country Dairy and General Teamsters , Chauffeurs,
Warehousemen and Helpers Local Union No. 697, affiliated
with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case No. 6-CA-2289.
March 23, 1962
DECISION AND ORDER
On December 21, 1961, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and is engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the General Counsel filed a brief in sup-
port of the Intermediate Report and the Respondent filed exceptions
and a statement in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, the briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
136 NLRB No. 48.