Big Town Super Mart, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 1964

148 N.L.R.B. 595 (N.L.R.B. 1964)

BIG TOWN SUPER MART, INC. 595
gional Director for Region 10, shall , after being duly signed by the Respondent's
representative , be posted by it immediately upon , receipt thereof, and maintained
by it for 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(c) Notify the Regional Director , in writing , within 20 days of receipt of this
Recommended Order, what steps it has taken to comply therewith.5
8 Should this Recommended Oider be adopted by the Board, this provision shall read
Instead: "Notify said Regional Director, in wilting, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL bargain collectively. upon reauest, with International Brotherhood
of Electrical Workers, AFL-CIO, as the exclusive bargaining representative of
all employees in the bargaining unit described below concerning grievances,
labor disputes , wages, rates of pay, hours of employment , and other conditions
of work, and , if an understanding is reached , embody it in a signed agreement.
The bargaining unit is:
All employees at, and working out of, the Employer's establishment at
Barnesville , Georgia, including linemen, groundmen , truckdrivers, meter
reader, utility man, janitor, and the work-order clerk , but excluding the
engineering foreman , office clerical employees, guards, the power use
advisor, the manager , and all other supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of International Brotherhood of Elec-
trical Workers , AFL-CIO, to negotiate for or represent the employees in the
said appropriate unit as the exclusive bargaining agent.
LAMAR ELECTRIC MEMBERSHIP CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 528
Peachtree -Seventh Building , 50 Seventh Street NE ., Atlanta, Georgia, Telephone
No. Trinity 6-3311 , Extension 5357, if they have any question concerning this
notice or compliance with its provisions.
Big Town Super Mart , Inc. and Retail Store Employees Union
Local 880, Retail Clerks International Association , AFL-CIO.
Case No. 8-CA-3310. August 28, 1964
DECISION AND ORDER
On May 26, 1964, Trial Examiner Leo F. Lightner issued his De-
cision in the above- entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
148 NLRB No. 71.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.
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 Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief,' and the entire record
in this case. The Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified herein.
We agree with the Trial Examiner that Respondent violated Sec-
tion 8 (a) (1) and (3) of the Act. However, in agreeing that an in-
dependent violation of Section 8(a) (1) occurred when Manager
Brown advised Miles on October 4, 1963, that he and the Respondent
knew about the union meetings and that she was crazy for going along
with the Union, we do not adopt the Trial Examiner's rationale. It is
clear these remarks created an impression of surveillance, and under
well-established Board law such conduct is coercive and in violation
of Section 8 (a) (1) 2 And Brown's further statement to Miles that she
"was crazy for going along with the Union," carried an unmistakable
threat of economic retaliation, which was fulfilled by the discrimina-
tory firing of Miles approximately 2 hours later. Thus, this latter
portion of Brown's comments, when viewed in the full context in which
they occurred, constituted interference and coercion within the mean-
ing of Section 8 (a) (1) .1
Accordingly, we do not agree with the Trial Examiner's statement
that it can properly be argued that standing alone the above remarks
of Brown are protected by the free speech proviso of Section 8(c).
Statements which are themselves coercive are not protected, by Sec-
tion 8 (c) merely because they may be given as personal opinion .4
,ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner, and orders that the Respondent, its
i Because in our opinion the record , exceptions , and brief adequately set forth the issues
and positions of the parties , the Respondent ' s request for oral argument is denied
2 Wonder State Manufacturing Company, 141 NLRB 1217, 1226, and cases cited therein.9
See Eastern Die Company, 142 NLRB 601 , footnote 2.
' See Monroe Auto Equipment Company, 146 NLRB 1267, at footnote 23 of Trial
Examiner 's Decision.
BIG TOWN SUPER MART, INC. 597
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order as amended and modified
herein :
1. Insert after paragraph 1(a) the following new paragraph:
"(b) Leading employees to believe that it knows of their union ac-
tivities or otherwise creating the impression of surveillance of union
activities." -
2. Reletter paragraphs (b) and (c) as (c) and (d,), respectively.
3. Insert after paragraph 2(b) the following new paragraph:
"(c) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
4. Reletter paragraphs 2(c), (d), and (e) as 2(d), (e), and (f),
respectively.
5. It is further amended by adding after the first. indented para-
graph in the Appendix the following :
WE WILL NOT lead our employees to believe that we have knowl-
edge of their union activities, or otherwise create the impression
that union activities of our employees are under surveillance.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Cleveland,
Ohio, on January 20 and 21, 1963, on the complaint of General Counsel , as amended,
and the answer of Big Town Super Mart, Inc.,' herein referred to as Respondent .2
The issues litigated were whether the Respondent violated Section 8(a)(3) and (1)
and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as
amended , 61 Stat . 136, herein called the Act. Briefs filed by the General Counsel,
Respondent , and Charging Party have been carefully considered . During the hear-
ing I reserved rulings on several motions , including Respondent's motions to dis-
miss the complaint . These motions are disposed of in accordance with findings
and conclusions herein set forth.
Upon the entire record , and from my observation of the witnesses , I make the
following: - -
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation , maintaining a retail self-service department
store and place of business , and its principal office , in North Ridgeville , Ohio. Re-
spondent annually sells and distributes goods and products valued in excess of
$500,000 . Respondent annually receives goods and products valued in excess of
$50,000, delivered to its place of business in North Ridgeville directly from points
outside the State of Ohio . The complaint alleges, the answer admits, and I find
that Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
1 At the outset of the hearing the complaint was amended by deletion of Republic Dis-
tributing , Inc., in the caption and the striking of all references to Republic from the com-
plaint Accordingly , the caption is amended to correctly reflect the identity of Respondent.
2 The original charge was filed on October 8, 1963. An amended charge was filed on
November 12, 1963. The complaint herein issued on November 14, 1963.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union Local 880, Retail Clerks International Association,
AFL-CIO, herein called the Union , is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The principal issues raised by the pleadings, as amended, and litigated at the
hearing are whether: (a) the Respondent interfered with, restrained , and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act, in viola-
tion of Section 8(a)(1), in October 1963, by interrogation and threats;3 (b) the
layoffs of Patricia Seals and Virginia Miles on October 4 and Judith Standen on
October 6, 1963, were discriminatorily motivated and were unfair labor practices
in violation of Section 8(a) (3) and (1) of the Act; (c) Judith Kerr and Betty Vonya
ceased work concertedly and became unfair labor practice strikers on October 4,
1963; and (d) Respondent failed and refused to reinstate the discriminatees and
unfair labor practice strikers upon unconditional offers to return to work. It is un-
disputed that Patricia Seals accepted Respondent's offer of recall and returned to work
on October 14, 1963. Respondent generally denied the commission of any unfair
labor practices.
B. Background and sequence of events
Except as noted there is no dispute as to the sequence of events herein set forth.
The principal events herein occurred between October 3 and 15, 1963. Morris
Rapoport, president, general manager, and owner of Respondent, and Richard Jack
Brown, manager of Respondent's store , are admittedly supervisors within the mean-
ing of Section 2 (11) of the Act.
Respondent's store is located in North Ridgeville.4 Respondent sells a general line
of merchandise, including, hardware, housewares, soft goods, jewelry, photographic
supplies, and seasonable items such as fertilizers, lawnmowers, and Christmas decora-
tions . The jewelery and photographic department is at the southerly end of the
store, where the entrance is also located. The balance of the merchandise is on
shelves and gondolas. The operation is self-service, similar to a grocery super-
market, with two checkout counters and cash registers at the northerly end of the
store. The office adjacent to the checkout registers is elevated about 18 feet, enclos-
ing an 8 - by 10-foot area, with the sides enclosed approximately 5 feet above the
elevated floor. The office is occupied by Rapoport, Brown, -and a secretary, June
Meade.
During the period from June 1963 to and including October 4, 1963, Respondent
employed eight salesgirls, whose names, duties, and dates of hire were: Patricia
Seals, worked full time in the jewelry and photographic department, was hired in
January 1962; Joan Hoffman, worked part time in the jewelry and photographic
department and part time as a cashier-clerk in the store, was hired in June or July
1962; Harriet Murray, who was hired while Hoffman was ill in the summer of 1963,
also performed the same duties as Hoffman; Virginia Miles, cashier-clerk, hired
August 24, 1962; Catherine Eichelberger, cashier-clerk, - hired December 1961;
Judith Kerr, cashier-clerk, hired June 1963; Judith Standen, cashier-clerk, hired
May 1963; 5 and, Betty Vonya, cashier-clerk, hired June 11, 1963.
Benjamin B. Krzys, union representative, related that the Union commenced
making home calls on Respondent's employees for the purpose of organizing, com-
mencing October 1, 1963. Krzys and Elwood Heabler, another union representa-
tive, went to' the home of June' Meade, Rapaport's secretary, on Wednesday,
'October 2, in an effort to obtain her signature to an authorization card. Krzys
introduced himself to Meads and gave her one of his business cards, which identified
him as a business representative of the Unions
3 The allegations of paragraph 10(c) relative to promises' of benefit were dismissed for
want of evidence.
4 I have taken official notice of the fact that North Ridgeville is a suburban community
located some 5 miles from Elyria, Ohio, and some 20 miles southwest of Cleveland, Ohio.
s The record is corrected to reflect that Standen's year of hire was 1963, not 1953. Re-
spondent was not In business, at this location, in 1953.
e Meade did not appear as a witness
BIG TOWN SUPER MART, INC. 599
On Thursday, October 3, 1963, Judith Standen, who signed a union card that day,
called Patricia Seals at Respondent's store, and advised Seals that some of her friends
from out of town were there and wanted to see her and to bring Kerr and Vonya with
her.7 As a result of Standen's telephone call, an organizational meeting was held,
after 9, on the evening of October 3, 1963, at the home of Seals and Miles, an apart-
ment approximately 1 mile from Respondent's store. Employees present were Seals,
Miles, Kerr, Vonya, and Standen, all of whom either signed or had signed union cards.
Krzys was also present.
Respondent's store is open 7 days a week. One-half of the employees worked an
early shift from 10 a.m. to 6 p.m. one week and worked a later shift from 12:30 p.m.
to 9 p.m. the following week. Since one-half of the employees were off every other
Sunday, it is inferred that the store was open only from 10 a.m. to 6 p in. on Sunday.
On the alternate week, when an employee was not off on Sunday, the employees
were given 1 day during the week off, however all eight employees normally worked
every Saturday. It is patent, from the evidence, that Seals, Miles, Kerr, and Vonya
worked on the same shift, on and immediately prior to October 4. It is undisputed
they were the four working on the evening of October 4 when the following events
transpired. Accordingly, it is inferred that Standen, Eichelberger, Hoffman, and
Murray, on and prior to October 4, worked. the opposite shift.
On October 4, 1963, about 8 p.m., Seals and Miles were laid off. About 8:15
the same evening, being advised of the layoff, Kerr and Vonya, under circumstances
considered below, summarily left Respondent's store. On Sunday, October 6, Stan-
den's employment was terminated, under circumstances considered infra. A picket
line was established on October 10, 1963, and Eichelberger ceased work and joined
the picket line on October 15. '
C. Interference, restraint, and coercion
Respondent's payroll week commenced on Friday and terminated on Thursday.
Payday, for the preceding week, was Friday. Paychecks were distributed by Manager
Brown between 2 and 4 p.m.
It is undisputed that by prior arrangement, because she was moving, Catherine
Eichelberger was absent from work on Friday, October 4, 1963, and Saturday,
October 5, 1963. However, Eichelberger went to Respondent's store about 6 p.m.
on October 4, 1963, to obtain her paycheck, and while there had a conversation
with Rapoport. Eichelberger credibly related that Rapoport advised her that another
party had told him that Eichelberger was the one that called the Union out to the
store. Rapoport inquired if this report was true and whether Eichelberger had
anything to do with it. Eichelberger denied the accuracy of the report .8
Virginia Miles related that she was on the late shift on Friday, October 4, 1963.
She credibly related that, sometime between 6 and 7 p.m., she had a conversation
with Manager Brown who advised her that he knew about the union meeting the
prior evening and that Rapoport also knew all about it. Miles asserted that Brown
told her that she was crazy for going along with the Union. Brown also advised
Miles that he knew that "we were going to Carries Villa for a steak dinner" with the
union representatives .9
D. The events of October 4, 1963
About 8 p.m., October 4, 1963, Miles was operating a checkout register when she
was advised, by Judith Kerr, that Kerr was to take over her register and Miles was
to go to Rapoport's office. Shortly after she arrived in Rapoport's office, her sister,
Seals, came in. Rapoport advised Miles and Seals that business was slow, that he
had had their checks made out (for the 1 day), and that he had to let them go.
7 It is undisputed that Seals and Miles were sisters and lived in the same apartment.
Manager Brown testified there were three places where an employee could receive a tele-
phone call at the store.. These were (1) at the jewelry counter, ( 2) in the main office,
or (3) in the backroom. Inferentially, it was only one telephone line
8 Rapoport's denial that he talked to Eichelberger on October 4 about the Union is not
credited . Rapoport acknowledged that Eichelberger did receive her paycheck from him
on October 4 about 6 p in
9 Manager Brown appeared as the witness for Respondent and denied having any con-
versation with Miles on October 4, as testified to by Miles. He also denied having any
knowledge of the union activities of Respondent's employees on October 4. Brown was
unconvincing and unimpressive as a witness and his denials are not credited.
600 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
Miles related that 9 o'clock is the normal quitting time. Miles credibly testified that
Rapoport did not mention any possible recall.io
Betty Vonya and Judith Kerr were operating the two checkout registers at the time
Miles and Seals were fired. They had both attended the union meeting at the home of
Miles and Seals the prior evening, and had signed union cards. Miles related that
she advised Kerr that she and Seals had been fired. Vonya related that she heard
Seals relate that she and Miles had been fired." Vonya asserted that about 15 minutes
later she advised Kerr, "Judy, I think we should go now." Vonya related that Kerr
agreed. Thereupon, they locked their registers and went to obtain their pocketbooks.
Rapoport related that he was in his office, with Brown, when Stock Manager Wack
advised Rapoport that there was no one at the registers, at which customers were
waiting to be checked out. Rapoport walked over and opened one register and, there-
after, -Brown opened the other register. Shortly thereafter he saw Kerr and Vonya
with their purses. Rapoport asserted that Kerr stated, "If you do not tell us why the
girls-why they left or were fired-we are leaving." Rapoport asserted that he
responded, "Goodiiiight ladies." Thereupon Kerr and Vonya left the store. The time
was approximately 8:15 p.m.
E. The events of October 6
About 10 a.m., on Sunday, -October 6, upon their arrival for work, Rapoport took
Standen and Eichelberger into the office.12 He expressed surprise to see them, assert-
ing that he did not expect to see them at work that morning. Rapoport then inquired
if Eichelberger knew about Seals and Miles. Eichelberger responded that she did
but that she could not believe that Rapoport had let them go. Rapoport then advised
Eichelberger that Kerr and Vonya had approached him on the night of October 4
and asked him why he had let Seals and Miles go. Rapoport advised Eichelberger
that his only reply was "goodnight girls." Eichelberger acknowledged that Rapoport
asked her why she had not appeared for work on Saturday; since she had heard that
he had laid off Seals and Miles. Eichelberger, who had Friday and Saturday off
for the purpose of moving pursuant to a prior arrangement with Rapoport, advised
Rapoport that she "did not believe it" when she heard about the two girls being laid
off. The testimony of Standen and Rapoport relative to these events is not at variance
with the testimony of Eichelberger.
Standen and Eichelberger were leaving Rapoport's office to start work when
Standen asked Rapoport if she could talk to him. Standen and Rapoport returned
to Rapoport's office.13 Standen asserted that Rapoport asked her what she wanted to
talk about. She then advised that she thought he was being unfair to Seals and Miles
by firing them, and asserted that she was as involved as they were. Standen related
that Rapoport asked her what she knew about the Union and she advised him that she
knew the employees obtained better pay, less hours, and hospitalization and gave him
a general idea of what she knew. Standen asserted that she then advised Rapoport
that she knew he would ask her questions, that she would not lie, and that she would
not hurt anyone else. Standen acknowledged that her babysitter problem was dis-
'cussed on Sunday morning, that she explained to Rapoport that Seals and Miles would
not allow their sister to babysit because Rapoport had fired them, and Seals felt that
it would be helping Rapoport if Standen worked. Standen acknowledged asking
Rapoport if he thought it was sensible that her husband should stay home and babysit
when he was making more money than she was. Standen denied having missed con-
siderable time from work in the past because of babysitting problems asserting that
she had missed 2 days at the most, one of them being October 5.14 Standen credibly
10 Rapoport's assertion that he did advise these girls that he would recall them later is
not credited
11I find the discrepancy as to whether it was Seals or Miles who made this statement
of no consequence
12 Roth were absent on October 5
,13 Standen had not reported for work on Saturday, October 5 Rapoport testified that
Standen had called him on Saturday and explained that she was having difficulty obtaining
a babysitter. Rapoport related that-Standen explained that her babysitter had been a
younger sister of Seals and Miles. Standen advised Rapoport that Seals and Miles felt
that since they no longer had jobs they would not help Standen keep her job by having
the younger sister babysit for her. Rapoport asserted that be asked Standen about her
husband who had been a babysitter on occasions while Standen was employed. Standen
responded that her husband was not there and that she had not been able to obtain
anyone else' -
14 Respondent did not produce any evidence to the contrary
BIG TOWN SUPER MART, INC. 601
testified that Rapoport asked her if she wanted'to leave. Standen responded that
it was up to Rapoport . Rapoport thereupon said "goodbye." Standen got her
pocketbook and left . Standen denied that she had quit.
Rapoport acknowledged that Standen advised him "there may be things that you
might want to ask me that I would not care to answer honestly." Rapoport's as-
sertion that Standen then stated , "... and besides I'm having babysitter problems,
so perhaps I'd better not work here anymore," is not credited . Similarly, Rapoport's
testimony that Standen advised him that she thought it was best that she leave, and
that this terminated the conversation , is not credited . I also do not credit Rapoport's
denial that Standen advised him on October 6 that she thought he was being un-
fair in firing Seals and Miles because Standen was just as much involved . Rapoport's
assertion that Standen had quit is not credited.15
F. Events of October 7
Krzys, union representative , was advised of the layoff of Seals and Miles on Octo-
ber 5. A meeting of union representatives and employees was held about- noon
on Monday , October 7 , at Marshall 's Drugstore in the North Ridgeville Shopping
Center Miles, Kerr , Vonya, and Standen were the employees present . The union
representatives were Heabler , McDonald , Madzelonka, Shibley, and Krzys.
McDonald , secretary and treasurer of Local 880 , Madzelonka , and Shibley then
met with Rapoport . They advised Rapoport that they desired to have a card check
and advised him that a majority of his employees, had signed union cards.
McDonald requested that all of the employees be reinstated . '6 McDonald asserted
that he asked Rapoport why the employees were fired and Rapoport did not give
him a reason . McDonald then inquired if they were fired for union activity and
Rapoport denied that this was the reason for the discharges . McDonald asserted
that Rapoport admitted that he did hear rumors that there was to be an organizing
drive and did know something about the Union.17
At the suggestion of Rapoport , McDonald called Rapoport 's attorney , Bennet
Kleinman , who is secretary of Respondent 's corporation . Kleinman advised
McDonald that the matter had been turned over to his associate , Arnson.
The content of a subsequent telephone conversation between McDonald and
Arnson is in dispute . 18 McDonald asserted that he demanded that all the girls be
taken back to work , then they would have the card check or an election when the
Board decided . McDonald asserted that Arnson advised him that they would put
two girls back (Seals and Miles) and he figured the rest had walked off the job.
McDonald related that he responded that they , Kerr and Vonya , walked off in
protest of the firing of Miles and Seals. McDonald denied that his offer to have
the girls return to work was conditioned upon union recognition . I credit McDonald.
Arnson related he received a request from McDonald for recognition of the Union.
Arnson , asserting he was unfamiliar with the situation , advised McDonp ld that he
would call Rapoport. Arnson related that, during his second conversation with
McDonald, he explained to McDonald that Rapoport would not recognize the Union
based on a card check and desired an election . Arnson acknowledged that
McDonald inquired why Rapoport fired five employees . Arnson responded that two
of the employees were temporarily laid off , two left voluntarily , and that Standen
had quit . Arnson admitted that McDonald advised him that the Union intended
to file , a petition for an election and unfair labor practice charges. Arnson 's denial
that McDonald made an unconditional offer on behalf of the employees to return
is Rapoport 's assertion that Standen said , "I don't think I ought to work here any
longer because you may ask me some questions which I don't care to answer, beside which
I'm having babysitter problems , and I think I ought to leave ," stands in sharp contrast
to Rapoport's denial of knowledge of union activities, shoplifting, or other personal scan-
dal in the store, which might lay the predicate for Standen's assertion that she did not
want to answer questions . Rapoport admitted that he did not inquire what Standen
meant by the comment that he might ask her questions.
11 In view of the fact that the unfair labor practice charge, filed October 8 , 1963, lists
all five girls , Standen , Seals , Vonya , Miles, and Kerr , I find McDonald 's assertion that he
stated that he knew of two girls getting fired and other girls walking out constituted no
more than a mental lapse on McDonald's part
17 Rapoport 's denial of having made this admission of knowledge is not credited.
18 While McDonald placed the time of the conversation as approximately October 10,
Arnson asserted that it was on October 7. In view of the content of the conversation and
the fact that the Union did . file a petition for an election and unfair labor practice
charges on October 8, 1 find October 7 to be the date of the conversation.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work I find implausible . If "the subject was never brought up," as Arnson
testified , a portion of his cross -examination of McDonald would be incongruous.19
G. Subsequent events
It is undisputed that a picket line was established on October 10 and picketing
was still continuing at the time of the hearing herein, in January 1964. Miles,
Standen, and Vonya appeared on the picket line on October 10 and thereafter. The
degree of participation and picketing by Kerr, who did not appear as a witness, is
obscure.
It appears undisputed that there was a further telephone conversation between
Arnson and McDonald. Arnson related that when he was advised of the picketing
on October 11, he called McDonald and inquired what could be done to have the
pickets removed. According to Arnson, McDonald responded, "It is very simple all
you will have to do is recognize the Union." Arnson then related that McDonald
asserted that the Union would not agree to a consent election and insisted that' the
Respondent recognize the Union on the basis of a card check. In view of the fact
that the Union had previously filed a petition for election, with the Board, on Octo-
ber 8 (Case No. 8-RC-5340), I find the assertion of Arnson that the Union would
not agree to an election incredible.
Krzys, union representative, related that after the picketing started, on several
occasions, he had conversations with Rapoport during which he inquired why
Rapoport did not put the girls back to work, then let the Union have the election. since
it was costing both the Respondent and the Union money. Krzys asserted that
Rapoport responded that he was willing to have the election but he was not going
to take the girls back. Krzys called Rapoport's attention to the fact that unfair
labor practice charges were pending and that the Union could not agree to an elec-
tion unless all of the girls were recalled 20
le Arnson cross-examined McDonald relative to the contents of the telephone call, as
follows:
Q. Do you recall insofar as the girls coming back to work, you demanded union
recognition ?
A. I said we would be' recognized, yes.
Q And this had to be done before anything else would happen , including the girls
going back to work'
A. No, sir, I said to put the girls back to work and we would have a card check, or
election when the Board decides.
Q. Do you recall I said I'd put the girls back?
A. On your basis of putting 'two girls back to work , and I said the whole group
and then we 'll have an election when the Board decides.
Q. Do you recall your talking to me about Judy Standen'
A. I don't know all of their names to tell you the truth . I don't remember. I
talked to you as a group , the girls that were let go
Q. Do you recall, if you talked to me about Judy Standen , yes or no?
A. No, I don't
Q. Are you testifying that you did or you do not remember'
A. I do not remember their names You are asking me I don't remember.
Q. Do you recall as far as you were concerned , Judy Standen walked off and you
did not care whether she was rehired or not'
A. I know none of them by names Believe me that I could not name them
Thereafter , Arnson , as a witness testified as follows:
Q Well, then, on either of those dates (Arnson had testified to telephone con-
versations on October 7 and 111 , did Mr. McDonald make an offer to you to return
the employees I have just named to their jobs , or to if I may quote, "to their former
or substantially equivalent position of employment"?
A. 1%Ir .McDonald at no time during any of our three conversations made any such
offer , either directly , indirectly, or remotely or any fashion . The subject was never
brought up.
20 Rapoport acknowledged having conversations in a period of "4 or 5 weeks ," a halt
dozen times , either directly in front of the store or in Marshall's Drugstore, with Krzys.
He also had conversations with McDonald on either October 11 or 12. Rapoport asserted
that the gist of these conversations was the same as that which occurred in his office on
October 7. Rapoport asserted that both McDonald and Krzys insisted that Respondent
accept a card check and grant recognition, while Respondent insisted that an election by
secret ballot should be held Rapoport denied that any of the employees , or anyone on their
behalf, made an unconditional offer to return to work. I do not credit Rapoport.
BIG TOWN SUPER MART, INC. 603
It is undisputed that on October 11, 1963, Respondent sent letters of recall to Seals
and Miles, requesting them to report to work on Monday, October 14, 1963. Seals
did report and has been employed ever since. However, Miles did not report but
continued picketing with the others. Miles asserted that Vonya and Kerr had walked
out when she was fired and Rapoport had refused to reinstate them and it was for that
reason she refused to report. I so find.
It is also undisputed that Eichelberger last worked on Monday, October 14, 1963,
and that commencing Tuesday, October 15, she joined the picket line and has been
picketing ever since. -
H. Respondent's ^ defenses
Respondent sought to establish an economic defense for the layoff of Seals and
Miles. Rapoport described Respondent's business cycles: the period preceding and
leading up to Christmas is the peak period; January, February, and March are a slow
period in terms of sales, during which restocking takes place; when the weather breaks
in March or April the sale of garden supplies and other items picks up, reaching a
peak in June; while Christmas items are ordered throughout the summer they try
to delay delivery until October as they are still busy with heavy bulk items such as
fertilizer, grass seeds, lawnmowers, etc.; when the weather breaks in October, his
Christmas sales begin. Rapoport asserted that he had been at his present location for
4 years, in October 1963, and that "we have shown a steady improvement since we
opened the store 4 years ago." Rapoport asserted that his sales were down at the end
of September and the first few days of October. He then asserted that he meant that
they were down from the previous September (1962). Thereafter, Rapoport was
self-contradictory in denying that sales in September 1963, were "down from the
previous September." Rapoport asserted, "We had, as I pointed out in prior state-
ments, made much of the fact that we had been showing a steady increase for the
4 years prior. We more than likely were not down this past September, a few months
ago, this past September, as opposed to September 1962, but increasewise, we had
shown a deficit for that period of time because of the fact that the weather would
not lend itself to the things that are sold at that time." Rapoport then admitted that
it was possible that the amount of sales in September 1963 was not less than the
amount of sales in September 1962. Respondent did not produce any records. The
assertion that business conditions were responsible for the layoff must be rejected,
particularly since Rapoport, having acknowledged that he had examined the figures
3 weeks prior to testifying, related that he could not give an estimate of the relative
volume, or total volume, of business in the comparative months.
Rapoport acknowledged that he had never previously laid off a salesgirl in his
4 years of operation because of business conditions, which be had described as peaks
and valleys, or for any other reason. He acknowledged that he had eight girls em-
ployed as cashier-clerks from June 1963 forward, and seven for an indefinite period
prior thereto. Rapoport acknowledged that during the period preceding October 4,
none of the girls were given time off on Saturday, which he described as his busiest
day. Rapoport admitted he had not had as few as five cashier-clerks on any Saturday
in the preceding 2 years 21
Rapoport asserted that he decided to lay off Seals and Miles a week or 10 days prior
to Friday. October 4. Rapoport acknowledged that in the intervening period he did
not discuss the contemplated layoffs with Manager Brown. Brown asserted that the
first time he learned of the layoff of Seals and Miles was subsequent to the actual
layoff Rapoport thereafter asserted that he made the decision to lay off Seals, and
Miles late on the afternoon of Friday, October 4 I do not credit Rapoport's assertion
that his decision to lay off these individuals preceded October 4 or Brown's claim of
ignorance prior to the layoff.
Rapoport related that his pay period ends on Thursday and the employes are
normally paid the following day, Friday. Miles and Seals received their paychecks
from Manager Brown between 2 and 4 p in. on Friday, October 4. Rapoport acknowl-
edged that when the girls received their paychecks they were not told that they were
to be laid off later the same day. It appears that it was 6 p.m. or later when Rapoport
instructed his secretary, Meade, to write out checks for 1 day's pay for Seals and Miles.
Next considered are the reasons advanced by Respondent for the discharge of
Seals and Miles, as distinguished from the other employees. It is undisputed that Seals
was Respondent's second oldest employee, Eichelberger being the only cashier-clerk
with more seniority. It is also undisputed that Seals during her entire tenure from
January 1962 to October 4, 1963, worked exclusively in the jewelry and photo de-
partment. Hoffman and Murray, both of whom worked part time, at various times, in
the jewelry and photo department also acted as cashier-clerks and worked on the
2 'By agreement , Elchelberger was not scheduled to work on Saturday , October 5.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
front check-out cash registers. Rapoport's explanation of his reason for selecting
Seals for a layoff was, "I felt that I had to let starting with the jewelry counter, I
had to start somewhere." Rapoport in answer to a question of whether business
was down in the photo department as distinguished from the balance of the store
responded, "Throughout the store." He then asserted, "We don't keep records on the
business done in the photo and jewelry department." However, he admitted that there
is a separate register in the photo and jewelry department.22
Rapoport explained his reason for the selection of Miles, his fourth oldest employee
in terms of seniority, for layoff. Miles was hired because she was Seals' sister.
Rapoport asserted that he told Seals he hired Miles against his better judgment because
of a problem arose with one he would probably have the same problem with both 23
Accordingly, Rapoport asserted he let Miles go because he felt they would have an
unhappy situation having let her sister go.
Rapoport asserted that when he laid off Seals and Miles on October 4 that he
intended to recall them and so informed them. I have found supra, section D, that
Miles and Seals understood they were fired and there was no mention of recall,
In Respondent's letter of recall of October 11 to Seals and Miles, Rapoport as-
serted: "We now find that business conditions having improved and the busy Christ-
mas Season approaching, we now have need of your services, if available." Rapo-
port was asked if the letter meant that business conditions had improved between
October 4, the date of the layoff, and October 11. He admitted that it was still un-
seasonably warm, and that he "guessed" that he had worded the letter poorly, that
what he actually meant was that the Christmas merchandise was coming in and
this was the reason for the recall. Rapoport could not recall the comparative fig-
ures for business during the week of October 4 as compared to the week of Octo-
ber 11. Rapoport admitted that he knew he would need his full complement of
employees when the Christmas merchandise arrived, inferentially for marking, stock-
ing, etc. He asserted that he had ordered this merchandise in June, July, and August
but denied that he knew when deliveries would be made.
While Rapoport asserted the principal reason for his sudden decision to lay off
Miles and Seals was slow business conditions, he was self-contradictory in relating
the conditions existing 15 minutes after the discharges on October 4 when Kerr
and Vonya walked out in protest. Rapoport related that business is customarily
good between 7:30 and 9 p.m. on Friday evenings. He related that there were
between 24 and 30 customers waiting at the cash registers to be checked out at the
time Kerr and Vonya left the cash registers. Rapoport acknowledged that Octo-
ber 4 was a "good night" in terms of business. In spite of the fact that business
was good Rapoport saw fit to discharge Seals who was the only one available at that
time to work in the jewelry and photo department, other than Brown and Rapoport.24
Rapoport explained further his reasons for sending the recall letters of Octo-
ber 11 to Seals and Miles. Rapoport asserted that he tried to call Seals and Miles
at home on Friday night, October 4, after closing time, between 9 and 9:30 p.m.
(inferentially to replace Kerr and Vonya), and asserted that there was no answer.25
m Rapoport avoided answering whether it was Seals or someone else who worked the
majority of the time in the photo department. The record establishes that Seals worked
there full time. Prior to an illness in the summer of 1963. Hoffman had relieved Seals
when Seals was off, or aided when two girls were needed During Hoffman's illness,
Murray replaced Hoffman in the photo department, and continued to work there after
Hoffman returned. Rapoport could not estimate bow much time Hoffman spent in the
photo department during a week, then estimated that she spent one-half to two-thirds of
her time'In that department
23Tbis assertion of Rapoport stands in sharp contrast with his hiring of Sturdivant,
the sister of another employee, the morning following the layoffs of Seals and Miles,
Saturday, October 5 -
u While Rapoport asserted that Murray was on duty, I find this assertion in error.
Eichelberger credibly testified that Hoffman and Murray worked on her shift on and prior
to October 4. The record establishes that Seals, Miles. Kerr, and Vonya were on the late
shift on October 4 It is reasonable to infer that the other girls, including Standen, were
scheduled for the earlier shift. with Eichelberger having the day off.
25 Miles credibly testified that she and Seals went home shortly after 8 p.m. and advised
their mother that they had been fired Miles related that her mother was babysitting,
watching her sister's little boy. Miles and Seals left about 8,30 p.m. and returned about
9 :30 p in , their mother was at home during their entire absence and did not advise them of
any. telephone call.
BIG TOWN SUPER MART, INC. 605
Rapoport acknowledged that he hired Sturdivant on-Saturday morning and made no
effort to reach Seals and Miles on either Saturday or Sunday. On Monday morning,
October 7, Rapoport called the Ohio State Employment Service in Elyria, and the
same day hired Marilyn Bittner and Lynn Simmons. Rapoport was self-contradic-
tory in asserting that he did attempt to telephone Seals and Miles on Monday morn-
ing, October 7, also stating that he did not call them on Monday because one of the
employees had advised him that they had gone back to Pennsylvania. Rapoport
explained that having failed to contact Seals and Miles by -telephone he sent the
letter of October 11. He asserted his reason for the letter was that he had heard
that they had gone to Pennsylvania and wanted to be satisfied that either they were
coming back to work or not coming back to work. In contrast, it is undisputed
that Miles was on the picket line in front of the store on October 10, the day be-
fore the letters were dispatched. It is also undisputed that Rapoport was present, in
fact outside his store, while Miles was on the picket line from approximately 2
until 8 p.m. on October 10. In fact, Rapoport acknowledged that he left his store
to got to Marshall's Drugstore for lunch and did see the pickets. He then denied
knowing that Miles was on the picket line.
1. Concluding findings
At the outset of the case, and thereafter, Respondent moved for a dismissal on
the ground that "the rules and regulations as promulgated by the Board under the
applicable sections of the Administrative Procedures Act is in violation of the due
process provisions of the Fifth Amendment." In essence Respondent's argument is
that one "Board agent" is an investigator and prosecutor while another "Board agent"
acts as judge and jury. Obviously Respondent's contention ignores the separation of
functions embodied in the 1947 amendments (otherwise known as the Taft-Hartley
Act). In an early case the Supreme Court held that the Act (Wagner Act) is not
unconstitutional with respect to its procedural provisions 26 The Board has fre-
quently stated its position that it must assume the constitutionality of the Act which
it is called upon to administer in the absence of a binding court decision to the con-
trary. Truck Drivers Union Local No. 413, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, et al. (The Patton
Warehouse, Inc.), 140 NLRB 1474, 1476. Accordingly, Respondent's contention
is rejected.
I have found supra, section C, that on Friday, October 4, 1963, Rapoport inter-
rogated Eichelberger relative to her union activities. Under all the circumstances,
I find that the interrogation reasonably tended to restrain and interfere with the
employees in the exercise of rights guaranteed by Section 7 of the Act. Accord-
ingly, the interrogation constituted interference, restraint, and coercion and was
violative of Section 8 (a) (1) of the Act.
I have found supra, section C, that Manager Brown advised Miles on Friday
October 4, 1963, between 6 and 7 p.m., that he knew about the union meeting the
prior evening, that Rapoport knew about it, and that Brown advised Miles that she
was crazy for going along with the Union. General Counsel contends that this
statement constituted a threat to an employee of the loss of her job or other economic
reprisals. The language used does not embody an "express" threat. It may prop-
erly be urged that, standing alone, it is a statement of view, argument, or opinion,
protected by Section 8(c) of the Act. However, since the discharge of Miles fol-
lowed within 2 hours, I find the statement contained an "implied" threat. The state-
ment does not stand isolated from the other events herein. There is adequate
authority for the proposition that a threat, to discourage activity protected by Sec-
tion 7, constitutes interference, restraint, and coercion and is violative of Section
8 (a)( I) of the Act. I find accordingly.
Remaining for resolution are the questions of whether the discharges of Seals,
Miles, and Standen were discriminatorily motivated, and whether, in fact, Kerr,
Vonya, and Eichelberger were unfair labor practice strikers.
The discharges here were on the day following the holding of the union meeting
at the home of the dischargees, Seals and Miles. When Seals and Miles were given
their weekly paycheck, between 2 and 4 p.m. on the day of discharge, they admit-
tedly were not told of the pending layoff. The abrupt discharges followed, by less
than 2 hours, Rapoport's interrogation of Eichelberger and Brown's threat to Miles.
21 N.L R B . v. Jones & Laughlin Steel Corporation , 301 U.S. 1. See also N.L R B ,v
Donnelly Garment Company, 3,30 U.S. 219.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The discharge , at 8 p .m. on Friday , was allegedly due to poor business . In con-
trast, Rapoport admitted that Friday evening was the best evening in the week. He
asserted there were 24 to 30 customers waiting at the cash registers , at 8:15 p.m.,
when Kerr and Vonya walked out.
Saturday was Respondent 's best day , and for 2 years preceding Respondent never
had as few as five cashier-clerks . Knowing Eichelberger had been granted (an un-
usual) Saturday off, the day following, Rapoport did not request her to report when
he talked to her 2 hours before the discharges . It is thus reasonable to infer that at
6 p.m. on the day of the discharges Rapoport had not decided to effectuate the
discharges.
Rapoport acknowledged that in the 1963 Christmas season Respondent employed
eight girls. In addition, Rapoport's wife, his secretary, Meade, Rapoport, and Brown
supplemented the sales force. Rapoport knew that he would require such a work
force at the time of the layoffs, yet he did not advise Seals and Miles at the time
of layoff that they would be recalled. Neither did he recall them when Kerr and
Vonya left him shorthanded. Rapoport admitted he did not call them on Saturday
or Sunday.
Rapoport acknowledged that he considered Seals and Miles to be good employees.
Rapoport gave no specific reason for selecting for discharge employees who had been
"good employees" since January 1962 and August 1962, respectively, rather than
employees hired in May and June 1963.
I have found no merit in Respondent 's alleged economic defense. In fact, said
defense is constituted,of nothing more than the self -serving declarations of Rapoport,
whose testimony standing alone is replete with self-contradictions and evasions and
whose demeanor I find unimpressive.
The Supreme Court in Universal Camera Corporation v. N.L.R.B., 340 U.S.
474, 477, defines the "evidence" required by Section 10(e) of the Act as:
Such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion. Accordingly, it must do more than create a suspicion of the fact
to be established . it must be enough to justify, if the trial were to a jury,
a refusal to direct the verdict when the conclusions sought to be drawn from it is
one of the fact for the jury.
The abruptness of a discharge, and its timing, have been found to be persuasive
evidence as to motivation. N.L.R.B. v. Montgomery Ward & Co, Inc., 242 F. 2d
497, 502 (C.A. 2); N.L.R.B. v. Southern Desk Company, 246 F. 2d 53, 54 (C.A. 4).
The Board has found a discharge discriminatorily motivated by reason of the
unconvincing character of the reasons adduced to support the discharge, including
the timing of the discharge. Pacemaker Corporation, 120 NLRB 987, 991. See also
United Fireworks Mfg. Co., 118 NLRB 883, 888.
In numerous cases the Board and courts have held that direct knowledge of any
employee 's union activities is not a sine qua non for finding that an employee had been
discharged because of such activities, but may be inferred from the record as a whole.
The small number of employees and the abruptness and timing of the discharge are
among the factors considered. Wiese Plow Welding Co., Inc., 123 NLRB 616.
The discharge of Standen, 2 days later, after she was unable to report on Satur-
day because of babysitter problems encountered by reason of the layoff of Seals
and Miles, falls in the same category. Respondent seeks to establish that Standen
"quit" because of babysitter problems. Undisputed is the fact that these events
took place on Sunday morning and Standen had reported for work. What might have
happened on succeeding days, is, at best, conjectural. Standen had previously re-
solved babysitter problems, and missed only 2 days' work in a period of months as a
result of such problems. When Rapoport bid her "good-bye" she had adequate rea-
son to interpret the statement as a discharge. Rapoport had just related that he told
Kerr and Vonya "Goodnight, ladies." When the picket line was established, 4 days
later, she did appear on the picket line. Unlikely conduct for a person who quit.
In view of the above facts, and upon the entire record as a whole, I believe and hold
that Respondent's purported reasons for discharging Seals, Miles, and Standen. were
in fact pretextuous and the real reason and "moving cause" was the known union and
concerted activities of said employees and said discharges constituted discrimination
with respect to their hire and tenure of employment to discourage membership
in the Union in violation of Section 8(a) (3) and (1) of the Act.
I have found supra, section G, that on October 11, 1963, Respondent sent recall
letters to Seals and Miles requesting that they report for work on Monday, October 14.
Seals reported as requested . Miles remained on the picket line because of the refusal
of Respondent to reinstate Kerr and Vonya, as requested by McDonald on March 7.
BIG TOWN SUPER MART, INC. 607
I so find. General Counsel urges that Miles did not waive any right to reinstate-
ment 27 or any right to backpay from October 14, 1963 , forward 28
Having found that the discharges of Seals and Miles were unfair labor practices,
it follows, and I find , that Judith Kerr and Betty Vonya were unfair labor practice
strikers when they left their employment on Friday , October 4 , and that Catherine
Eichelberger became an unfair labor practice striker when she joined the picket line
on October 15, 1963. It is obvious from the facts found supra, that Kerr, Vonya,
and, subsequently , Eichelberger were engaged in concerted activity which constituted
lawful strike activity protected by Section 7 of the Act . New French Benzol Clean-
ers and Laundry , Inc., 139 NLRB 1176, 1180.
As the strike was an unfair labor practice strike, the striking employees were unfair
labor practice strikers who, under established law, were entitled to reinstatement to
their jobs upon their unconditional offer to return to work, regardless of whether or
not they had been replaced . Southland Cork Company, 146 NLRB 906.
I have found supra, section F, that on Monday , October 7, McDonald made an
unconditional offer of reemployment on behalf of all of the employees . I have also
found that on several occasions, dates unspecified , over a period of several weeks,
immediately following, Krzys requested Rapoport to reemploy all of the strikers,
including Eichelberger , unconditionally . While I have found that a request for the
reinstatement of Eichelberger was in fact made by Krzys, sometime on or after Octo-
ber 15, any effort to set the precise date would be wholly conjectural . Accordingly,
such determination is left to the compliance stage of these proceedings . I find that
Respondent 's failure and refusal to rehire, reinstate , or reemploy said unfair labor
practice strikers constituted discrimination and was violative of Section 8(a)(3) and
(1) of the Act.
In arriving at my findings of credibility herein , I have considered all of the testi-
mony, the demeanor of the witnesses , the interest of each witness in the outcome of
the litigation , or lack of such interest , the adverse testimony of other witnesses,
candor or lack thereof , self-contradictions , the failure to document self-serving
declarations without explanation , and the failure to refute testimony.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section . I, above, have a
close, intimate , and substantial relation to trade , traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent discriminatorily discharged Patricia Seals and
Virginia Miles on October 4, 1963, and Judith Standen on October 6, 1963, and
discriminatorily refused reinstatement to Judith Kerr and Betty Vonya on October 7,
1963, and discriminatorily refused reinstatement to Catherine Eichelberger on an un-
determined date on or after October 15, 1963. It has also been found that Patricia
Seals was reinstated ' on October 14, 1963, and that Virginia Miles became an unfair
labor practice striker on that date. Accordingly, - I recommend that Respondent
offer to each of the individuals named, except Seals, immediate and full reinstate-
ment to her former or substantially equivalent position , without prejudice to seniority
or any other rights and privileges enjoyed at the time of the discharge , or refusal to
reinstate, dismissing , if necessary , other employees hired on or since October 4, 1963.
It is further recommended that Respondent make whole each named discriminatee,
including Seals, for any loss of pay suffered by them by reason of the discrimination
against each . Said loss of pay shall be based upon earnings which each would
normally have earned from the date of discharge , or refusal . of reinstatement, less
the respective net earnings of each during said period . Said backpay shall be com-
puted on a uuarterly basis in the manner established by the Board in F . W. Woolworth
Company, 90 NLRB 289. Interest on backnav shall be computed in the manner
set forth in Isis Plumbing & Heating Co., Inc., 138 NLRB 716.
aT Citing Southern Fruit Distributors , Inc, 109 NLRB 376.
28 Citing The W T. Rawleigh Company, 90 NLRB 1924.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also recommended that the Respondent be ordered to make available to the
Board , upon request, payroll and other records to facilitate checking of the amount
of earnings due.
- In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall there-
fore recommend that the Respondent be ordered to cease and desist from in any man-
ner infringing upon rights guaranteed to its employees by Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following: - -
CONCLUSIONS OF LAW -
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail Store Employees Union Local 880, Retail Clerks International Asso-
ciation, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
3. By engaging in the conduct set forth in the section entitled "Interference,
Restraint, and Coercion," to the extension therein found, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discriminating with respect to the hire and tenure of employment, and terms
and conditions of employment, of Patricia Seals, Virginia Miles, Judith Kerr, Betty
Vonya, Judith Standen, and Catherine Eichelberger, thereby discouraging the free
exercise of the rights guaranteed by Section 7 of the Act, and discouraging member-
ship in and activities for the above -named labor organization , Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) and ( 1) of the Act.
5. The strike beginning on October 4, 1963 , was at all times an unfair labor prac-
tice strike.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record of the case, I recommend that the Respondent, Big Town Super
Mart, Inc., its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Retail Store Employees Union Local 880,
Retail Clerks International Association, AFL-CIO, or any other labor organiza-
tion of their employees , by discharging or refusing to reinstate employees , or in any
other manner discriminating against them in regard to their hire and tenure of em-
ployment or any term or condition of employment.
(b) Interrogating any of its employees concerning their organizational activities,
or threatening said, employees with loss of their jobs or other economic reprisals,
in a manner violative of the provisions of Section 8(a) (1) of the Act.
(c) In any other manner interfering with , restraining , or coercing employees in
the exercise of the right to self-organization , to form labor organizations , to join
or assist the above-named Union, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor orga-
nization as a condition of employment , as authorized in 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 it is found will effectuate the
policies of the Act:
(a) Offer to Virginia Miles, Judith Kerr, Betty Vonya, Judith Standen, and
Catherine Eichelberger immediate and full reinstatement to their former or sub-
stantially equivalent positions , without prejudice to their seniority or other rights or
privileges previously enjoyed, and make them whole for any loss of pay they may
have suffered by reason of Respondent's discrimination against them in accordance
with the recommendations set forth in the section of the Decision entitled "The
Remedy."
(b) Make Patricia Seals whole for any loss of pay she may have suffered by rea-
son of Respondent's discrimination against her in accordance with the recommenda-
tions -set forth in the section of the Decision entitled "The Remedy."
BIG TOWN SUPER MART, INC. 609,
(c) Preserve and upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
the amounts of backpay due and the rights of employment under the terms of the
Recommended Order herein.
_(d) Post at its store in North Ridgeville, Ohio, copies of the attached notice
marked "Appendix" 29 Copies of said notice, to be furnished by the Regional
Director for Region 8, shall, after being signed by Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, including each of
Respondent's bulletin boards. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in writing, within 20 days from
the date of the receipt of this Trial Examiner's Decision, what steps the Respondent
has taken to comply with the foregoing Recommended Order.
It is further recommended that unless within 20 days from the date of the receipt
of this Trial Examiner's Decision, the Respondent shall notify the said Regional
Director, in writing, that it will comply with the foregoing Recommended Order,30
the National Labor Relations Board issue an Order requiring Respondent to take
the aforesaid action.
9 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order "
30 In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply therewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf of , Retail
Store Employees Union Local 880, Retail Clerks International Association,
AFL-CIO, or any other labor organization of our employees , by discharging em-
ployees, or refusing to reemploy or recall employees engaging in an unfair labor
practice strike, or in any other manner discriminating against them in regard to
their hire or tenure of employment or any term or condition of employment.
WE WILL NOT interrogate any of our employees concerning their organiza-
tional activities , or threaten economic retaliation if any employee engages in
organizational activities , in a manner violative of the provisions of Section
8(a)(1) of the Act.
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their rights to self-organization , to join or assist the
aforementioned 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 , or to re-
frain from any and 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 employment , as authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer to Virginia Miles, Judith Kerr, Betty Vonya, Judith Standen,
and Catherine Eichelberger , immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to their seniority or other
rights and privileges , and make them whole for any loss of salary or pay suffered
as a result of the discrimination against them.
WE WILL make whole Patricia Seals for any loss of pay she may have suffered
by reason of the discrimination against her.
760-577-65-vol. 148-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, to remain , or to refrain from becoming or
remaining , members of a labor organization of their own choosing.
BIG TOWN SUPER MART, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States ,of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if they
have any question concerning this notice or compliance with its provisions.
Primrose Super Market of Salem , Inc. and Local 1435, Retail
Clerks International Association , AFL-CIO. Case No. 1-CA-
4282. August 08, 1964
DECISION AND ORDER
On May 13, 1964, Trial Examiner W. Gerard Ryan issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Decision. Thereafter, the Respondent filed exceptions
to the Decision, and both Respondent and the General Counsel filed
briefs with the Board.
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 [Chairman McCulloch and Members
Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and, the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
i In adopting the Trial Examiner 's findings, we correct the following inadvertent errors
which appear in the Decision . The Respondent 's principal office is located in Haverhill,
Massachusetts , rather than Salem, Massachusetts. Primrose Super Market of Newbury-
port, Inc., located in Newburyport , is added to the list of Respondent ' s discount markets
appearing in the section entitled "The Appropriate Unit. " The figures setting forth the
number of transfers between the various stores refer only to transfers in which the Salem
store is involved ( footnote 5).
148 NLRB No. 66.