Devine Foods, Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1978

235 N.L.R.B. 190 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Devine Foods, Inc. and Retail Clerks Union, Local
298. Case 8-CA-10712
March 17, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On December 15, 1977, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Devine Foods,
Inc., Hubbard, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: On January
4, 1977,1 Retail Clerks Union, Local 298, herein called the
Union or Charging Party, filed a charge against Devine
Foods, Inc., herein called Respondent, the Company or the
store, alleging that it had violated Section 8(aX3) and (1) of
the National Labor Relations Act, as amended. On
February II1, the Acting Regional Director issued a
complaint and notice of hearing alleging that Respondent
had violated Section 8(a)(3) of the Act by the discharge of
Zetts and the reduction of work hours of Petrinjak and
Hackett and that Respondent independently violated
Section 8(a)(1) of the Act by interrogations of and threats
to its employees. Respondent's timely answer admitted the
commerce and jurisdictional facts and the agency status of
James Devine, president of Respondent; Patricia Devine,
his wife and Respondent's vice president; and Phillip
Hickey, an attorney and secretary of Respondent. Respon-
dent denied that Dennis and Edward Devine, sons of
I Unless specifically stated otherwise, the events herein took place during
December 1976 and the first part of 1977.
235 NLRB No. 34
James and Patricia, were agents for Respondent and that
Respondent had violated the Act in any manner.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in Youngstown, Ohio, on May 2 and 3,
1977. Briefs from Respondent and the General Counsel
were received and considered.
Questions to be answered in this case include: (1)
Whether John Zetts was a supervisor or employee and
whether his discharge was motivated by antiunion consid-
erations; (2) whether the reduction in Petrinjak and
Hackett's work hours was motivated solely by business
considerations or was partially retaliatory because of their
union activities; and (3) whether Mrs. Devine and sons
Edward and Dennis and Attorney Hickey violated Section
8(a)(1) of the Act by their questions and remarks. Consid-
ering all of the evidence, I have concluded that Zetts was
not a supervisor and that his discharge and the reduction in
the work hours of Petrinjak and Hackett were caused, at
least in part, by antiunion considerations. I have also
concluded that Mrs. Devine and Attorney Hickey violated
Section 8(a)(1) of the Act by their statements and questions
and that under the particular circumstances of this case,
the remarks of Edward and Dennis Devine violated the
Act.
On the entire record in this case, including the exhibits
and testimony, the contradictions in the testimony, and on
my evaluation of the reliability of the witnesses based on
the evidence, I make the following:
FINDINGS OF FACT
1. COMMERCE FINDINGS AND UNION STATUS
Devine Foods, Inc., is an Ohio corporation engaged in
the operation of a retail grocery store at its sole location in
Hubbard, Ohio. Respondent's annual gross revenues ex-
ceed $500,000 and it receives annually, directly from points
outside the State of Ohio, goods valued in excess of
$10,000.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent admits, and I find, that Retail Clerks Union,
Local 298, is a labor organization within the meaning of
Section 2(5) of the Act.
1. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
James and Patricia Devine are the president and vice
president of Respondent and are the owners of the
corporation. They have eight children, six of whom worked
either part or full time at the store along with their parents
at the material time. The Devine family, augmented by a
cousin and another relative, totaled 10 of the complement
of 28 employees.
Respondent belongs to a group known as the Valu-King
Stores and are serviced by the Tamarkin Company, herein
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DEVINE FOODS, INC.
called Tamarkin, a wholesale grocer. Tamarkin performs
advertising, accounting, and other services besides provid-
ing wholesale groceries to the Valu-King stores.
Prior to the summer of 1975, James Devine operated the
meat department at the store and with one of his daughters
acted as the head and assistant head of that department. At
that time a man named Hudson was the manager of the
grocery department and ran the store's office, taking care
of the store's accounts, accounting, cash, and other
departments. In effect, Hudson was the manager of the
store with James Devine's acquiescence. Some time in the
early 1970's, the Internal Revenue Service audited the store
and assessed a large amount of taxes against the Company
and found substantial fault with the accounting system and
the cash handling methods. The Devines sought assistance
from their attorney, Phillip Hickey, and with the acquies-
cence and, according to Hickey, at the insistence of the
Internal Revenue Service, a new office setup and account-
ing and cash handling methods were installed. The respon-
sibility for auditing and accounts was given to the Tamar-
kin Company which thereafter performed all of those
services for Respondent. Patricia Devine was brought into
the store and taught the cash handling and necessary
accounting methods so that she could prepare initial
reports for the Tamarkin Company to run. She acted as the
chief clerk or head cashier and ran the office section
located in front of the store.
Hudson was then left only the duties of head of the
grocery department which consisted of the responsibility of
ordering groceries and seeing that goods were priced and
shelved. Hudson also dealt with salesmen, set up displays,
etc. Hudson had some illness problems and was absent for
a period of 5 to 6 months during 1974 or 1975 and began to
talk about retiring at the end of 1975. Wishing to replace
Hudson on his retirement with an experienced person, Mr.
and Mrs. Devine sought assistance from their Tamarkin
contacts, and John Zetts was referred to them. Zetts was
hired after an interview by Mrs. Devine and began work in
September 1975 at a rate of $3.90 an hour. After Zetts had
been there I week, Hudson announced he was retiring
immediately and left. Mrs. Devine asked Zetts if he could
take over Hudson's duties and Zetts, having had prior
experience in ordering groceries, said he would do his best.
Zetts was put on a salary basis which converted the $3.90
hourly wage to a guaranteed 40-hour rate and was told he
would be given a trial as the head of the grocery
department.
According to Zett's testimony, he worked varying hours,
ranging from 45 to 60 or more and, on some occasions after
working long hours during 1975 until the summer of 1976,
Mrs. Devine would add 5 or more hours of time and a half
at the $3.90 rate to his weekly paycheck.
In the fall of 1975, the Company had Zetts as head of the
grocery department, James Devine as president and head
of the meat department, John Orwell, a relative of the
Devines, was head of the produce department, and Patricia
Devine was the head cashier and head of the office.
Employee Carmel LaCivita was also listed as a head
cashier. Mr. Devine regularly opened the store at 8 a.m.
and Mrs. Devine came in between 8:30 and 9 a.m. In the
absence of Mr. and Mrs. Devine, daughters Patti Jo or
Mary Devine were in charge of the store according to Zetts
and others.
Zetts testified that his duties consisted of ordering stock,
setting up displays, talking to some of the salesmen who
sold products for the grocery department and to the
Tamarkin sales representatives, and making sure the
shelves were appropriately stocked. He did not hire or fire
or effectively recommend such or disciplinary action. Mrs.
Devine hired and fired employees and would ask Zetts and
other employees if they knew a prospective employee and
their opinion of the person.
Hudson's former duties of taking care of the books and
the cash office were previously taken over by Mrs. Devine
and by Tamarkin. According to a Tamarkin representative,
Tamarkin used its computer to do the retail accounting for
the merchants and provided them with the products and all
the services that were necessary. The accounting services
provided the store with a complete listing of its accounts,
their profit and loss, gross margin reports, productivity
within the store, payroll data, etc. It recommended a
"break-even" figure and, by its sales representatives,
sought to help stores maximize their potential and profits
by suggestions on displays, etc. In addition to groceries,
Tamarkin also provided a meat buying program and
central buying programs for produce, dairy, ice cream, etc.
There were 50 stores in the Valu-King group which used
central advertising by the various media and ran weekly
specials with which the retail salesmen would help the local
stores. Tamarkin serviced 300 or more other merchants
besides the Valu-King group.
In ordering groceries, Zetts would use an MIS machine
which essentially is a portable, battery-operated dicta-
phone. Zetts would walk through the grocery aisles noting
items needed to be replaced and dictate the item code
number and the amount of the item desired until he had
ordered all that he felt the grocery department needed. He
would then dial the access number to the computer on a
telephone, push a button on the MIS machine, and the
machine would repeat the entire order directly into the
computer. Respondent regularly received three shipments
per week from Tamarkin which meant that Zetts ordered
stock three times a week. The computer would sort the
order, arranging it by code number in an ascending order,
and produce both an invoice and gummed labels for the
items to be shipped to the store. The Tamarkin order
employees would attach the labels to cartons and the order
would be assembled. The computer in preparing the order
would search its inventory memory and note where the
Tamarkin inventory was short, that the order was incom-
plete by those specific items on the invoice. Mike Horvath,
who was a full-time grocery department employee, regular-
ly ordered the dairy products in the same manner as
Orwell, the head of the produce department, ordered the
produce and James Devine or one of his daughters ordered
meat. Carmel LaCivita, a long-term employee and cashier,
usually ordered the beer and some other products.
In 1976, the Devines decided to proceed with plans to
enlarge their store. Construction began in the fall and when
it was completed in the spring or summer of 1977, the size
of the store was nearly doubled. There was some construc-
tion through the fall, but the main part of the disruption
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took place after Christmas when sections were moved and
the enlargement of the store was attached physically.
As in most grocery stores, a group of cash registers in
aisles is across the front of the store and there is a small
office, more or less open to the public, where Mrs. Devine
was stationed through most of the day. Occasionally she
worked a cash register when things became busy. There
was a storage room and a produce room in the back of the
store which were small until the remodeling was completed.
Zetts testified that returned beverage bottles, because of
the smallness of the storage room, were usually stored in
aisles and that, just prior to Christmas week, he was
instructed to remove them from the aisles and put them in
the storage room.
In mid-December, part-time stock clerk Donald Hackett
and full-time stock clerk Mike Horvath visited union
headquarters to determine what would be necessary to start
a union at the store. They were informed that they would
have to have a showing of interest by the employees signing
union authorization cards. Hackett and Horvath signed
union authorization cards then and took blank cards with
them. Around December 15 and 16, they circulated the
cards to employees and received signed authorization cards
which they sent to the union headquarters. Most of the
solicitation was done at employees' homes with the
exception of approximately three cards. One of the authori-
zation cards was given to stock clerk Mike Carson who,
according to testimony, is the boyfriend of Mary Jo
Devine. On Friday, December 17, around noontime, a
registered letter from the Union was received at the store.
According to Mrs. Devine, she and her husband read the
letter some time later that afternoon because they were
busy in the early afternoon. The letter requested recogni-
tion and bargaining for a unit of the store employees,
excluding supervisors.
B. Events of December 18-20
When Zetts started working for the store on September
20, 1975, the college students' schedule had been set, based
on the hours they were available to work at the store.
Normally they would bring their college schedules to Mrs.
Devine and either prepare a suggested schedule themselves
or she would prepare one which would last for a semester.
During semester breaks such as Christmas time or in the
summer and on holidays, they would work full time.
Usually they worked when they were free. The scheduling
continued to be done by the students, and Mrs. Devine and
Zetts had nothing to do with it. If the students wanted time
off or needed to rearrange their schedules, they would talk
to Mrs. Devine or have Zetts do so. Testimony was
uniform that while Mrs. Devine worked there, she inter-
viewed and hired all the employees. She stated that she
consulted with Zetts but agreed she also consulted with
other employees concerning recommendations and their
knowledge of anyone she was considering hiring.
When Zetts began at Respondent, he usually put in more
than 50 hours weekly and continued doing so through the
winter and spring of 1976. He said he was paid some
amounts of overtime by Mrs. Devine for the extra hours. In
the spring of 1976, he complained concerning these extra
hours and not being fully compensated, stating that unless
he was paid more he would have to restrict his time to 40
hours weekly. This may be the occasion when, according to
Mrs. Devine, Zetts threatened to resign. Around that time,
the college students became available for full-time summer
employment and Zetts was cut back to 40 or 45 hours
weekly, and he continued on that schedule through the
remainder of his employment.
Part-time employees work mainly in the afternoon, after
school and in the evenings. When they came to work, they
would usually ask Zetts or other full-time grocery depart-
ment clerks what needed to be done in stocking shelves,
setting up displays, etc. Once employees were shown what
to do in pricing, stocking shelves, moving coke bottles, etc.,
it was more or less a routine operation.
On Saturday, December 18, when Zetts reported for
work around 8 a.m., Mrs. Devine, who usually was not
there that early, asked him to come into the office at the
front of the store. She asked what he knew about the letter
and he asked what letter. She said "the letter from the
Retail Clerks." He replied that he knew about it, and she
asked him if he had signed a card. He said he had.
Mrs. Devine denied asking Zetts if he signed a card but
admitted she did ask him if he was aware that there was
union activity going on in the store and said he replied that
he was. She said she asked him if he did not think it was his
duty as the manager to inform her of it, and that such was
one of his responsibilities. She said he replied that he did
not consider himself to be a manager but only an
employee. She told him that she was angry and whether he
was a manager or not was not a decision for him to make
but was the Company's decision. They then discussed
favors the Devines had done for him in the way of
advancing him money, and she told Zetts she was very
disappointed in him. On two other occasions while testify-
ing, Mrs. Devine sought to switch the emphasis and stated
that Zetts said he no longer considered himself a manager.
Later that day, Mrs. Devine told Zetts that, since he was
not the manager, she had prepared a work schedule and he
was to follow it for the next week. The schedule showed
that he was off Sunday and was to come to work Monday
at 10 a.m. This was the first time his name had appeared on
the weekly work schedule.
Part-time cashier Diane Newton testified that on Satur-
day, December 18, Mrs. Devine asked her to come to the
office when she was free. When she went in, Mrs. Devine
asked what she thought about the "problem," and Newton
asked if she meant the Union. Mrs. Devine said yes, and
Ms. Newton replied she thought it was good. Mrs. Devine
told her she was the youngest cashier in the store and that
Mrs. Devine knew that her boyfriend, Mike Horvath, had
talked her into the Union. Ms. Newton replied no, that it
was her own decision and that ended the conversation.
Mrs. Devine denied having any conversation with
Diane Newton concerning the Union and said that since
that time Newton approached her many times concerning
the Union and she refused to discuss union activities with
her. Respondent's counsel sought to emphasize in examin-
ing Ms. Newton that Mrs. Devine had not used the word
"union."
On Sunday, December 19, according to Dennis Petrin-
jak, a part-time stockboy for over 2 years with the
192
DEVINE FOODS, INC.
Company, Mrs. Devine asked if he had signed with them
and he replied that he had nothing to say. When she asked
him why, he said that he just did not want to talk about it,
and that ended the conversation.
Mrs. Devine denied approaching Petrinjak and testi-
fied that she did not approach any employee about the
Union. When asked if she had talked to any of the
employees about the Union, she said she told them she was
not ready to talk to them about it. This testimony is at best
a very vague maneuvering around Petrinjak's testimony.
Petrinjak testified that later that afternoon, Dennis
Devine, the Devines' 19-year-old son, who is apparently a
full-time employee of the store, spoke to him in the
backroom and asked if Petrinjak had signed on with the
Union. Petrinjak replied that he was not going to say
because if he told them he had they might treat him one
way and if he told them he had not they might treat him
another way and he had decided to say nothing. Dennis
Devine said they did not realize what they were doing.
Petrinjak said they were not trying to hurt the business and
thought the Union would be good for the store. Dennis
replied that if Petrinjak could see the books he would know
that the business was not that good.
Dennis Devine testified that he was not familiar with
how his parents felt about the Union and acted on what he
thought. He said his parents felt that bringing the Union
into the store was wrong and he knew that Horvath and
Hackett were pushing the Union. He also said that he
heard from his father, around December 19 or 20, that the
Union was organizing the store and heard people around
the store talking about it after the letter was received.
Dennis Devine worked in the meat department until
after December 20 and shortly after Zetts' discharge was
transferred to the grocery department. He admitted having
a conversation with Petrinjak on Sunday, December 19,
and said the subject of union might have come up but he
did not remember it.
Some time during the succeeding week, Ed Devine, the
Devines' 17-year-old son, talked to Petrinjak about the
Union, telling him he should get out of it, that he did not
want to see him going down the drain, that he did not care
about Horvath or Hackett but did not want to see Petrinjak
get fired. He told Petrinjak that, if they tried to get a union
in, his father would shut down the store. Petrinjak replied
he thought the Union would be good for the store and they
were not trying to hurt it. Ed Devine did not testify.
On Sunday evening, December 19, Mr. and Mrs. Devine
held a Christmas party for the store employees and for
some of their friends from the Tamarkin Company.
Attorney Phillip Hickey was also present that night.
According to testimony, the people who were supporting
the Union, including Horvath, Hackett, Zetts, and Diane
Newton, were seated on one side of the room while other
employees were scattered around the room at various
tables. Mrs. Devine said it was rather an uncomfortable
party.
Attorney Hickey testified that it was at the Christmas
party on Sunday evening that he first learned of the union
activity. He said that Mrs. Devine told him that she had
received a letter from the Union and did not regard it as a
Christmas present nor regard the mailman as Santa Claus.
He said she was rather upset about it and was very
surprised and it came as a shock to her because she
regarded the store as a family operation which had grown
and provided part-time employment for high school kids
and college students and did not think the store was fair
game for union activities. He said that Mrs. Devine felt
that Hackett and Horvath were responsible for the union
activities and that John Zetts was in their company,
pointing out the group sitting at the other side of the room
which she considered to be the group of union supporters.
According to Hickey, Mrs. Devine also told him that Zetts
was active in the Union and according to the union letter
that management was not covered by the Union. Hickey
told her he did not feel that Zetts would be qualified to be
in the Union since he was the grocery department manag-
er. She told him that Zetts had said that he did not feel he
was the manager, and Hickey then discussed with her
preparing a resignation form for Zetts, which he said he
would bring to the store the following morning. Hickey
testified as follows:
We thought that perhaps Mr. Zetts might like to
resign again as manager, since he felt - Mrs. Devine
told me that he had advised her that he wasn't a
manager.
So I prepared a resignation for him to sign in the
event he wanted to resign again. I felt that since he
didn't regard himself as manager, it would be in order
for him to resign since, as the store records were
concerned, and the minutes were concerned, he was the
manager.
I left, when I was at the store previously around 8
o'clock, I had left this and when I came down, I found
that he had not resigned or would not sign it.
Mrs. Devine testified that her recollection of her
conversation with Attorney Hickey was different. She said
that during the Christmas party Hickey approached her
and said that everybody in the room was talking about
union activity and asked if she had received a letter and she
said yes. She said that Hickey again came to her and asked
if he had heard right, that Zetts was saying he was not the
manager, and said she confirmed that and Hickey, on his
own, decided that Zetts should resign if he was not the
manager, and that she told Hickey that she really did not
care. Hickey said he was coming down in the morning but
she did not remember what she said to that.
According to Zetts, when he came in Monday at 10
o'clock, Mr. and Mrs. Devine and their son Jimmy were
there, and Mrs. Devine asked him if he was the manager
and he said, "No, I'm not, your husband is." She asked him
if he was resigning his position and he said, "What
position, I'm the head stock clerk." She walked away and
went to the stockroom. A short time later she said she
would like to see him in the produce room. When he went
in, Mr. and Mrs. Devine and Attorney Hickey were there.
Hickey asked if he knew about the letter from the Union,
and he said that he did. Hickey then asked if he had had
any part of it and he replied, "Yes, I signed because I
thought it would be a good idea." He was then discharged.
According to Hickey, when Zetts came into the produce
room, Hickey told Zetts that they regarded him as a
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager and Zetts said he did not feel like he was. Hickey
said that in the corporate minutes it was set out that Zetts
was a manager. Zetts told him he had never seen the
minutes and would like to do so. He told Zetts that that
was the way it was and asked Zetts to resign, and Zetts
refused. Hickey then turned to the Devines who had been
present during this conversation and said it was up to them
and they replied that they did not want Zetts there, and
Zetts was terminated. Hickey agreed that Zetts was not
given any reason for being terminated. Although in effect
denying that Zetts was discharged because of his part in the
Union, Mrs. Devine agreed that she did not give Zetts any
reason for his discharge.
During an unemployment hearing later in January, Zetts
for the first time heard that Mrs. Devine was accusing him
of sabotaging the store by sending in a small grocery order
for the Christmas week. Hickey testified that when he went
to the store at 8 o'clock Monday morning, he heard, and
had it confirmed, that Zetts had attempted to sabotage the
store by putting in a small grocery order. Later, Hickey
changed his testimony to say he was pretty sure he found
out about it some time that morning before they discharged
Zetts and that Mrs. Devine told him that Zetts had made a
threat of sabotage previously.
In regard to the alleged threat, Respondent offered the
testimony of cashier Carmel LaCivita that, while working
at the store on the Sunday of the Christmas party, Mrs.
Devine called her into the office and said that she had
gotten a letter about the Union and that someone had told
her that Ms. LaCivita was the only one who was against the
Union. Mrs. Devine continued that she could not believe
that all the employees had turned against her. Ms. LaCivita
said she was against the Union and did not know anything
about it, had been contacted concerning the Union several
days ago and did not want anything to do with it. She then
told Mrs. Devine that about 3 weeks before, while in the
backroom, she heard John Zetts talking to a meat depart-
ment employee concerning how he did not like Mrs.
Devine, claiming that she had been picking on him, making
him work a lot of hours for no money and that the Devines
were attempting to keep all the profits for themselves. She
reported that Zetts said he could cripple the store at any
time and the holidays would be the best time to do it.
Concerning Ms. LaCivita's testimony, Mrs. Devine, as
she had with other witnesses, said that she did not
remember the conversation the same way that Carmel
LaCivita had testified. She said she remembered being in
the backroom with Carmel LaCivita, talking to her about
the Christmas party, and that LaCivita said she had
overheard Zetts badmouthing Mrs. Devine, stating that in
the Christmas week coming up he could very badly mess it
up and get even with Mrs. Devine for some of the things
she had done to him. Mrs. Devine denied questioning Ms.
LaCivita about whether she had joined the Union or was
favorably inclined towards it but said that Ms. LaCivita
was just telling her things and she was listening to Ms.
LaCivita. As to Ms. LaCivita's testimony, Mrs. Devine said
she had no reason to believe that Ms. LaCivita was not
truthful.
As to the "short ordering," Mrs. Devine testified that on
Monday one of the full-time grocery clerks told her that
clerk Mike Horvath had said they were not getting any
grocery order that day but would get a very large order of
around 900 pieces on Wednesday. She said she did not do
anything about it because it was not unusual for Tamarkin
to change their order and delivery schedule. Some time
later, she questioned Horvath about it and Horvath said
John Zetts had told him this.
Horvath testified that on either December 17 or 18 John
Zetts told him that there was going to be an order of some
700 to 800 pieces for Wednesday, and on Monday Mrs.
Devine asked him four or five times whether they were
getting a Monday order. He said he did not remember
saying anything about the order for that day but that he
did say they were going to get a 700- or 800-piece order on
Wednesday. A grocery order was received from Tamarkin
on Monday around 11 o'clock, and Horvath helped to
unload it and shelve it.
Horvath testified that on the preceding Saturday while
making out a milk order, which was part of his regular
duties, Jimmy Devine told him that when he was done with
the order to let him see it. Jimmy took the order to Mrs.
Devine, and Horvath went to see her and asked if she
wanted him to show Jimmy how to make out the orders
and she said no. He then asked Mrs. Devine if he was not
to make out the orders anymore, and she said that was
right. Since that time, Horvath has not made out any dairy
orders although that was part of his duties prior to that
time. He was not given any explanation for this abrupt
change.
Zetts testified that on Friday, December 17, Mrs. Devine
said that there had been a change in the order schedule
from Tamarkin for the following week and that there
would only be two orders coming in because of the holiday.
He understood that his order for Monday had to be in on
Friday night and he made the grocery order out at that
point. On that Friday, they unloaded a grocery order to fill
the depleted shelf stock plus specials, and the backroom
was somewhat jammed. He said he understood the sched-
ule to be that his second order for the following week had
to be in by Tuesday at 5 o'clock for delivery on Wednes-
day. Asked why he submitted a small order on Friday for a
Monday delivery, he said Mrs. Devine had said there was
too much stock in the backroom and she wanted to send
some of it back, and space was further hampered because
Mr. Devine had said he wanted the pop bottles out of the
aisles and placed in the stockroom and consequently there
would not be as much room in the back for stock and he
made the order somewhat smaller.
Donald Hackett testified that he was scheduled to work
until 9 p.m. on Monday, December 20, and was stocking
the shelves with the order that had been received that day
when he was sent home at 4 o'clock, after being told that
there was nothing for him to do. Petrinjak, who was also
scheduled to work late that day, was sent home at the same
time.
Mrs.. Devine testified that early Monday morning she
was told by some employees that the shelves were some-
what depleted and she was concerned that no grocery order
was to be received that day. She and her husband became
concerned that the "threatened sabotage" might mean a
low ordering of stock for the shelves or letting the shelves
194
DEVINE FOODS, INC.
become empty, and her husband called Tamarkin to see
what size order they were to receive and when. She testified
that, shortly before they discharged Zetts, her husband was
told by Tamarkin that they were getting a small order of
some 200 pieces that day. Mr. Devine was never called to
testify nor was his absence explained.
According to Mrs. Devine, an order from Tamarkin was
received around 12:30 p.m. She said that then she and her
son walked through the store and wrote down on a yellow
pad what they felt was needed to be ordered. From the
apparent time sequence, this ordering took place prior to
the shelves being stocked with the Monday order, since
Hackett testified that he was stocking the shelves with that
order at 4 o'clock when he was told there was nothing more
to do and to go home.
Ralph Cantini, the Tamarkin controller, testified that he
has known the Devines for some time and that late
Monday they called him, saying they were having trouble
with the MIS machine, and asked if he could come to the
store and help them. Initially he testified that he and Ed
Devine walked through the store and ordered the merchan-
dise, based on what they thought was needed.
Cantini's later testimony was that he and Ed walked
through the store, with Ed writing down the items on a
legal pad, and then they went to the backroom where they
talked to Mr. and Mrs. Devine about the order and he then
used the MIS machine to order the grocery items. He
stated he had called Tamarkin to hold the computer open
so they could phone in a late order. When he completed
dictating the order, he dialed the computer, pressed the
button and started the MIS machine running. After the
machine had completed the run, Cantini called to be sure
that the full order had been received by the computer and
was told the full order had not been received. Cantini went
to the Tamarkin Company where the additional items were
put on punchcards and entered into the computer as a
separate order.
Cantini stated that Christmas week was a short week and
if he had not come in to help the Devines on Monday night
to get their order in for Tuesday, no order would have gone
in until the following week since Tamarkin was planning to
close the warehouse on Friday.
Respondent produced three orders, one of which it
designated as the order that Zetts placed on Friday. This
exhibit, Respondent I(e), has a date of 12-20-76 and
invoice number 25511, and has handwritten on its face
"John Zetts' order." There was no explanation of how or
by whom this was written on the invoice. Respondent's
Exhibit l(f) is also dated 12-20-76 and handwritten on it is
"WC," which, according to testimony, meant "will call."
This invoice with number 25677, according to Cantini, was
that part of the order which the MIS machine transmitted
directly into the computer before the MIS machine's
battery ran down. Respondent's Exhibit 1(g), also dated
12-20-76 and on which there is handwritten "add to WC,"
is invoice number 25656, some 21 invoice numbers prior to
the invoice which, according to Cantini, had been received
by the computer much later since it was put in through
punchcards. There appears to be some duplications on
these invoices. There was no explanation given as to why
an order put into a computer, presumably one to several
hours earlier than a second order, should have a later
invoice number. This enigma gives rise to some suspicions
to the accuracy of the exhibits.
Respondent offered the testimony of Jack Tamarkin,
vice president of operations of the Tamarkin Company,
that normally the Devine stores received three deliveries a
week, on Monday, Thursday, and Friday, and that Christ-
mas week of 1976 was a normal workweek and that there
should have been three deliveries to Devine that week. This
testimony flatly contradicts that of Cantini. Jack Tamarkin
also said that business was not too good the latter part of
the week but that there would have been no problems in
making deliveries to Devine. This testimony seems con-
trary to the experiences of most people regarding the
amount of business just prior to Christmas. He also said
that, since Friday was Christmas Eve, a Friday delivery
would not have done the Devines much good.
C. Reductions in Part-time Work
When the part-time clerks who were scheduled to return
to college in January brought in their schedules for the new
semester (Petrinjak, Patrick, and Hackett), Mrs. Devine
said she had posted a new schedule and everybody's hours
were being reduced because she was not going to discrimi-
nate against anybody. She told Petrinjak she did not want
to see his school schedule anymore. Prior to that time,
Petrinjack, who had worked for the Company for over 2
years, had been working 23 to 25 hours weekly. After Zetts'
discharge, both Dennis Devine, the Devines' 19-year-old
son, and a cousin, John Devine, a high school student who
was restricted to no more than 20 hours of work weekly,
who had both been working in the meat department, were
transferred to the grocery department. Full-time employee
Mike Horvath became ill with mononucleosis and was off
work starting in mid-January until he returned full time the
second week in March. By placing Dennis and John
Devine in the grocery department and reducing their work
hours, despite Horvath's absence, meant that Petrinjak,
who averaged 24 to 25 hours weekly, was cut for the week
of January 11 to 7 hours and thereafter had no more than
17-3/4 hours until the reduction was withdrawn around
March 8. Similarly, Hackett, who usually worked 30 or
more hours weekly, was cut back to 16-1/4 hours in the
week of January 11 and thereafter was above 20 hours on
only two occasions. Patrick, who normally worked more
than 20 hours weekly, was cut back to the same range. The
reduction in hours affected only the three part-time college
employees, two of whom were known by Respondent to be
active union leaders.
Mrs. Devine testified that she had anticipated the
necessity to cut back on employees' work hours and reduce
expenses since she anticipated that the inconvenience to
customers because of the remodeling would cause a
decrease in business, and consequently they would have to
reduce expenses. She said what finally determined the
action was the sales figures and knowing they were below
the "break-even" point. To a leading question of "Did you
explain that you needed people during the day in order to
handle the work because the construction was going on?",
she responded: "I think I explained to whoever asked me,
whichever way I thought they would understand best."
195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elsewhere in the testimony it is noted that due to the
construction, the employees at times had to move shelving,
display cases, and whole departments, and such work could
occur during both day and night. Simultaneously, it was
still necessary to receive, price, and shelve grocery items. It
would seem that with the absence of Horvath because of
his illness and the reduction in hours of three part-time
employees, some work had to suffer since previously these
employees had worked as much as possible to keep the
preconstruction smaller store stocked and ready for busi-
ness. The inescapable conclusion is that employees of other
departments aided in the moving, and possibly in the
grocery department, to keep things moving or that the
addition of John Devine to the grocery department was
sufficient to enable Respondent to keep the department
moving.
However, the advent of the Union, and Mrs. Devine's
telling these college student, part-time employees that they
could not work except the hours given them by Mrs.
Devine and that she did not wish to see their school
schedules, paints a different picture from an economic
cutback.
D. Analysis and Conclusions
The testimony demonstrates that John Zetts never
possessed the authority to hire or fire any employees. All
interviewing, hiring, disciplining, and discharging of em-
ployees was done by Mrs. Devine. The one occasion when
Zetts, among others, complained about the way her son,
Jimmy, was neglecting work, and she reprimanded and
suspended Jimmy, does not demonstrate any authority of
Zetts or even that he made effective recommendations. All
the testimony shows is that he complained and Mrs.
Devine decided to do something.
At the hearing, the term "Manager" was loosely applied
to Zetts without any definition until it was requested. Then
it was stated that Respondent was talking about Zetts as
the manager of the grocery department, rather than as the
manager of the store as the prior testimony had implied. It
is clear that Zetts never possessed the authority or range of
responsibilities that Hudson, the manager who preceded
him, initially had. Hudson had been in charge of the
grocery department and virtually in charge of the store in
that he ran the office, the books, the accounting, the
auditing and apparently the hiring and firing, since these
latter duties were assumed by Mrs. Devine when she
started to work at the store. Because the problems with IRS
resulted from the manner in which Hudson kept the books,
that part of the business was taken away from the manager
of the grocery section and was lodged solely in the Devine
family, with Mrs. Devine or one of her daughters taking
care of that portion of the business. Zetts' only authority
was the ordering of groceries and dealing with salesmen.
His directions to other grocery clerks were basic instruc-
tions which involved no use of independent judgment. The
principal duties of grocery clerks were the unloading of
orders from Tamarkin, pricing and stocking the shelves or
putting up display items and, as some of the employees
testified, they could tell what had to be done merely by
looking around when they came in or by asking one of the
grocery clerks what remained to be done if they did not see
Zetts. The fact that Zetts was referred to as a manager in
the corporate minutes did not serve to give him supervisory
status. One resolution in the corporate minutes stated that
yearly bonuses were to be given to officers and heads of
departments. When a question was asked whether this
bonus was meant to go to the heads of each of the
departments, it was quickly explained that the resolution
meant the bonus was to go only to a person who was an
officer and a head of a department, which meant that only
one person, the president of the Company, James Devine,
or possibly Mrs. Devine as head cashier would have been
eligible for a bonus.
Respondent was asked to distinguish between the status
of the head of the produce department and the head of the
grocery department, since both received a salary and had
clerks working with them. Respondent said Orwell, the
head of the produce department, was not supervisory, but
there was no intelligible answer as to the asserted differ-
ence in status. At the most, Zett's status, as that of Orwell,
was that of a leadman. (See Laborers and Hod Carriers
Local No. 341, affiliated with Laborers' International Union
of North Amrnerica, AFL-CIO (Bannister-Joyce-Leonard), 223
NLRB 917 (1976).)
Respondent attempted to make much of two loans which
Zetts received from the Company, claiming that he filled
out those vouchers and withdrew the money on his own
cognizance. In each instance the voucher, if it can be
termed that, was signed by someone else. It was also agreed
that Zetts had money problems and had made those known
to Mrs. Devine who had agreed to help him. It would
appear that if he did receive this money, it was done with
the previous agreement of the Devines.
Therefore, when Zetts was questioned concerning his
feelings toward the Union, both by Mrs. Devine and
Attorney Hickey, it was not Respondent inquiring of a
managerial employee why he had not reported union
activities in the store, but rather management interrogating
an employee as to the employee's knowledge of union
activities. There is no question but what the Devines knew
of Zetts' union activities and sentiments and that this
entered into their decision to discharge him.
The question of "sabotage" was not raised by the
Devines with Zetts at the time he was discharged. If such a
suspicion really existed and they felt it had some basis in a
short order, then certainly they would have questioned
Zetts about the "short order" to see what they should do. It
defies belief that the Devines would not have accused Zetts
of "sabotage" when they were discharging him if they
believed it had happened. Sabotage was an afterthought.
The entire conversation on Monday morning, until the
discharge, was whether Zetts would resign his position
since he stated that he was not a manager. This was all that
Hickey talked to Zetts about, and it was all that was raised
with Zetts at the time that Hickey and the Devines met
with him.
It is clear that Hickey's testimony was in error about
knowing of "sabotage" at 8 o'clock Monday morning. It is
probably true that Ms. LaCivita reported to Mrs. Devine
that Zetts had said that he could disrupt the Company
during the holiday season and cause them difficulties.
However, the question of whether Zetts was attempting to
196
DEVINE FOODS, INC.
"sabotage" the Company by not ordering sufficient prod-
ucts was not clear on Monday prior to the time that Zetts
was discharged. The order from Tamarkin was not received
by the Company until after II o'clock and was not
completely shelved on Monday when, according to Mrs.
Devine, she and her son began writing down items that
needed to be restocked. Indeed, if the shelves were so
depleted, sending home part-time employees who were
stocking the shelves and had not completed that task
confounds the senses. It was stated that they were unable
to use the MIS machine since Dennis did not have
familiarity with it. At the same time they were making this
claim that they were left without help, they sent home part-
time employees who had used the MIS machine in ordering
groceries and did not call on Horvath who had similar
experience for a period of 6 months when the prior
manager, Hudson, had been ill. Both Hackett and Horvath
were competent to order groceries using the MIS machine,
and Respondent's failure to utilize them for that purpose
was not explained.
It seems clear that Mr. and Mrs. Devine panicked to an
extent when they felt that the order they received on
Monday was not sufficiently large to cover them for part of
that week and they cut themselves off from anyone but
family members or friends from Tamarkin in ordering
stock. Their failure to trust their employees is shown by the
removal of the dairy-ordering duties of Horvath on
Saturday before this "sabotage" idea became known to the
Devines. There is nothing to dispute the fact that Zetts had
planned a small order on Monday to be followed by a large
order to be received on Wednesday so that the shelves
could be completely stocked for the anticipated busiest
time of the Christmas week and to facilitate the space
problem in the storage room.
Respondent's conflicting testimony of Cantini and Jack
Tamarkin as to how many deliveries from Tamarkin there
were to be that week, plus Mrs. Devine's statement that
Tamarkin frequently changed the delivery schedule, lends
credence to Zetts' testimony and undercuts Respondent's
defense, We are left wondering how many orders were
received and when. The conflict in the invoice numbers
leads to speculation as to just what was done on that
Monday evening when to that is added the testimony of
Mrs. Devine that she and her son had gone around and
gotten up a list followed by Cantini's conflicting testimony
that he and Dennis Devine had gone and gotten up the list.
Similarly, we have the aspect of Mrs. Devine's recollection
not being in accord with that of most of the witnesses,
including Respondent's witnesses. It seems that Mrs.
Devine's testimony consists of what she feels should have
happened, rather than what occurred. The memory of a
person of strong conviction can be twisted by time from
what happened to what they feel should or must have
happened. It is clear that the Devine family is convinced
that Zetts tried to "sabotage" the store, but the evidence
offered to prove that is conflicting and insubstantial. In the
same manner, I am sure that Mrs. Devine believes that she
did not question anyone concerning their union activities,
but the pattern is convincing from Zetts through Petrinjak,
Ms. Newton, and Ms. LaCivita that she did so. Although
she may not have used the precise words in the order
attributed, her message to the four employees was clear
that she wanted to know their feelings about the Union and
what they knew about it.
Her sentiments and those of the Devine family were
made known to the employees as Attorney Hickey graphi-
cally described them. I am certain that these sentiments
were clear to her family, including sons Edward and
Dennis, and they acted as they felt they should. It appears
clear that their parents did not dispatch them to interrogate
or threaten employees. The situation, as viewed by the
employees, was that Dennis and Edward were expressing
the family sentiment against unions in their threats and
statements to the employees. When Mr. and Mrs. Devine
were apprised of the actions of their sons, Mrs. Devine said
she rebuked her sons, but nothing was done to apprise the
employees that the sons had not expressed the family
position. In the situation where this was a "family" store
and it was run by the family members, there would be some
feeling that the statements and sentiments were those of the
family and thus they had apparent authority for making
them. While there is some doubt, I feel that without a
disclaimer by the Devines, the employees were left with the
statements and threats being condoned. Therefore I find
that Dennis and Edward Devine were acting within the
scope of apparent authority and that the Company is
responsible for their actions. Accordingly, I find that the
remarks of Dennis and Edward, as detailed supra, violated
Section 8(a)(l) of the Act. Mrs. Devine's and Hickey's
questions of and and statements to Zetts similarly violated
Section 8(a)(1). I credit Petrinjak, Newton, and LaCivita
that they were questioned about their union sentiments by
Mrs. Devine and find that such questioning violated
Section 8(aX 1) of the Act. Discharging Zetts under the
circumstances detailed above, I conclude and find, violates
Section 8(aX3) and (1) of the Act.
As to the work-hour reductions, the original testimony
was that all grocery employees had their time reduced. It is
clear, however, that none of the Devines were in any way
affected by the reduction. The only persons who were
affected were the part-time, college student employees
Petrinjak, Hackett, and Patrick; the first two of whom were
known by Respondent to be union supporters. The abrupt
change of Mrs. Devine in not accomodating their school
schedules and in stating that she no longer wished to see
their school schedules, but would schedule them as she felt
best, could only be attributed to her antiunion sentiment.
Her testimony did not demonstrate what, if any, explana-
tion was offered to them as to why their hours were being
reduced. Under the circumstances of the interrogations
and threats, of Zetts' discharge and of the division between
the family and the prounion employees, the reduction in
hours to these three employees could have only one
meaning and that is that their union activities caused the
retaliation. Where the store was being enlarged and
additional work was needed in moving cases, shelves,
displays, etc., during the time while construction was going
on and where the employer was short two full-time
employees (Zetts and the sick Horvath), the necessity for
reducing the hours of these three employees is not apparent
and, in fact, it would seem that the additional work
involved would have called for at least as much, if not
197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more, worktime for them. Mrs. Devine mentioned the
lowered amount of gross sales as a reason for reducing
personnel, but omitted apparently from the calculation was
the savings in not paying the salaries of Zetts and Horvath.
The direct injury was to the three employees who had their
time cut by some 8 or more hours per week for approxi-
mately 3 months. I find that the reduction in their hours
was, at least partially, a retaliatory measure for the
employees' union activities and, as such, violated Section
8(a)(3) and (1) of the Act.
In summary, I find that Mrs. Devine along with her sons,
Edward and Dennis, and Attorney Hickey engaged in
8(a)( ) activity and that the Company violated Section
8(a)(1) and (3) by the discharge of Zetts and the reduction
of work hours of Petrinjak, Hackett, and Patrick.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section II and
therein found to constitute unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, occurring in
connection with Respondent's business operations as set
forth in section I, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discharged John Zetts on
December 20, 1976, and did not thereafter offer him
reinstatement, and that Respondent reduced for a period of
time the work hours of Dennis Petrinjak, Donald Hackett,
and employee Patrick, I recommend that Respondent offer
[Zetts] immediate and full reinstatement to [his] former
position or, if such position [has] been abolished or
changed in Respondent's operations, then to any substan-
tially similar position, without prejudice to [his] seniority
or other rights and privileges, and that Respondent make
[the above-named employees] whole for any loss of pay
they may have suffered by reason of Respondent's discrim-
inatory actions by payment to Zetts of a sum equal to that
which he would have normally received as wages from
December 20, 1976, the date of his termination, until
Respondent offers him reinstatement, and for Petrinjak,
Hackett, and Patrick, the difference in pay between what
they earned from January to April 1977 and what they
would have earned if their hours had not been reduced, less
any net earnings for the interim. Backpay is to be
computed on a quarterly basis in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and [with
interest thereon as prescribed in] Florida Steel Corporation,
231 NLRB 651 (1977).2 I further recommend that Respon-
2 See, generally, Isis Plumbing d Healing Co., 138 NLRB 716 (1962).
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and the recommended Order herein shall, as provided in Sec.
dent make available to the Board, upon request, payroll
and other records in order to facilitate checking the
amounts of backpay due them and other rights they might
be entitled to receive.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Sections 2(6) and (7) of the Act.
2. Respondent violated Sections 8(a)(3) and (1) of the
Act by its discriminatory termination of John Zetts and the
work reduction of Petrinjak, Hackett, and Patrick because
they engaged in union and concerted activities among
themselves and with other employees for the purposes of
mutual aid and protection.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Unlawfully interrogating employees about their union
activities, sentiments, and their knowledge of the union
sentiments and activities of other employees.
(b) Threatening that unless employees ceased their union
activities, they could lose their jobs or if successful in
organizing the store, Respondent might close its opera-
tions.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in this case
considered as a whole, I hereby issue the following
recommended:
ORDER 3
The Respondent, Devine Foods, Inc., Hubbard, Ohio, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminatorily terminating employees because they
engage in union and concerted activities among themselves
and with other employees for their mutual aid and
protection.
(b) Discriminatorily reducing the work hours of employ-
ees because they engage in union and concerted activities
among themselves and with other employees for their
mutual aid and protection.
(c) Unlawfully interrogating employees about their union
activities, sentiments, and their knowledge of the union
sentiments and activities of other employees.
(d) Threatening that unless employees ceased their union
activities, they could lose their jobs or, if successful in
organizing the store, Respondent might close its opera-
tions.
(e) In any other manner interfering with, restraining or
coercing employees in the exercise of rights under Section 7
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) [Offer John Zetts immediate and full reinstatement to
his former position or, if such job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights previously enjoyed and] [milake
John Zetts, Dennis Petrinjak, Donald Hackett, and [em-
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
198
DEVINE FOODS, INC.
ployee] Patrick whole for the loss of pay they suffered by
reason of Respondent's discrimination against them in
accordance with the recommendations set forth in the
section of this Decision entitled "The Remedy."
(b) Post at its store and office copies of the notice
attached hereto and marked "Appendix." 4 Copies of said
notices, on forms furnished by the Regional Director for
Region 8, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof and maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4 In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing in which the Company, the Union,
and the General Counsel of the National Labor Relations
Board participated and offered evidence, it has been found
that we violated the Act. We have been ordered to post this
notice and to abide by what we say in this notice.
WE WILL offer John Zetts immediate and full
reinstatement to his former job [or, if such job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges previously enjoyed,] and reimburse him for
the pay he lost as a result of our action, with interest.
WE WILL make employees Dennis Petrinjak, Donald
Hackett and Patrick whole for the amount of pay they
lost by the reduction in their work hours, with interest.
WE WILL NOT fire employees for engaging in union
and concerted activities among themselves and with
other employees for their mutual aid and protection.
WE WILL NOT unlawfully interrogate our employees
about their union activities or sentiments or their
knowledge of the union activities or sentiments of other
employees.
WE WILL NOT threaten our employees with loss of
work or closure of the store to inhibit their union
activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed them under Section 7 of the Act.
Our employees are free to become or remain members of
Retail Clerks Union, Local 298.
DEVINE FOODS, INC.
199