Fas-Chek #4

National Labor Relations Board - Board Decisions

Jan 19, 1977

227 N.L.R.B. 1261 (N.L.R.B. 1977)

FAS-CHEK #4 1261
Spentesta Corporation d/b/a Fas-Chek # 4 and Food
Store Employees Union , Local 347, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Cases 9-CA-9877 and 9-
CA-10188
January 19, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Upon charges filed by Food Store Employees
Union, Local 347, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO,
herein called the Union, and duly served on Spentes-
ta Corporation d/b/a Fas-Chek #4, herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 9, issued an amended consolidated complaint
on April 19, 1976, against Respondent and, on April
23, 1976, an erratum thereto, alleging that Respon-
dent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of
the charges and amended consolidated complaint
and notice of hearing before an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
amended consolidated complaint alleges, in sub-
stance, that, on or about November 19, 1975,
Respondent, by its supervisor and agent, Howard R.
Bowling, interrogated an employee concerning his
sympathy for, membership in, and activity on behalf
of the Union and threatened said employee with
discharge because of such union activities; on or
about November 23, 1975, Respondent interrogated
an employee concerning his sympathy for, member-
ship in, and activity on behalf of the Union; on or
about December 2, 1975, Respondent discriminatori-
ly discharged, and refused, and thereafter continued
to refuse, to reinstate Robert Bonham to his former
position until March 6, 1976, because of his union
sympathy, membership, and activity and in order to
discourage membership in the Union; on or about
December 6, 1975, and continuing to date, certain of
Respondent's employees engaged in a concerted
work stoppage against Respondent which was caused
and prolonged by Respondent's above-described
unfair labor practices; and on or about February 2,
1976, Respondent reinstated employees Floyd Scar-
bro, Phyllis Meador, Faye Butts, Lois Newman, David
Tyler, Paul Jamison, and Ron Cart, but discriminato-
rily reduced their hours of employment from those
227 NLRB No. 197
they had worked prior to said concerted work
stoppage. The amended consolidated complaint al-
leges that Respondent, by the foregoing conduct, has
violated Section 8(a)(1) and (3) of the Act. On April
26, 1976, Respondent filed an amended answer to the
amended consolidated complaint admitting all of the
factual and legal allegations in said complaint.
On September 22, 1976, counsel for the General
Counsel filed directly with the Board a motion for
findings of fact and conclusions of law upon the
pleadings based upon Respondent's admissions in its
amended answer. Subsequently, on October 20, 1976,
the Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why the
General Counsel's motion for findings of facts and
conclusions of law upon the pleadings should not be
granted. Respondent did not file a response to the
Notice To Show Cause.
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
As indicated above, Respondent admits all of the
factual and legal allegations in said complaint and
has not filed a response to the Notice To Show Cause.
The allegations of the motion for findings of fact and
conclusions of law upon the pleadings, therefore,
stand uncontroverted.
In view of the Respondent's admissions in its
amended answer, the uncontroverted allegations of
the amended consolidated complaint are deemed
admitted and are found to be true. Accordingly, we
shall grant the motion for findings of fact and
conclusions of law upon the pleadings.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a West Virginia corporation, is en-
gaged in the retail sale of food and related items at its
place of business located at Malden, West Virginia.
In the course and conduct of its business during the
past 12 months, Respondent had a gross volume of
business in excess of $500,000 and purchased goods
and materials valued in excess of $50,000 directly
from sources outside the State of West Virginia.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 2(6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Food Store Employees Union, Local 347, Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, is a labor orgamzation within
the meaning of Section 2(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead
to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
III. THE UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1) Allegations
I. On or about November 19, 1975, Respondent,
by its supervisor and agent, Howard R. Bowling,
interrogated an employee concerning his sympathy
for, membership in, and activity on behalf of the
Union, and threatened said employee with discharge
because of such union activities.
2. On or about November 23, 1975, Respondent
further interrogated an employee concerning his
sympathy for, membership in, and activity on behalf
of the Union.
B. The 8(a)(3) Violation
1. On or about December 2, 1970, Respondent
discriminatorily discharged Robert Bonham and
refused to reinstate him to his former position until
on or about March 6, 1976, because of his union
sympathy, membership, and activities.
2. On or about December 6, 1975, and continuing
to date, certain of Respondent's employees engaged
in a concerted work stoppage against Respondent
which was caused and prolonged by the unfair labor
practices set forth in section III, A through B, (1),
herein.
3. On or about February 2, 1976, Respondent
reinstated employees Lloyd Scarbro, Phyllis Meador,
Faye Butts, Lois Newman, David Tyler, Paul Jami-
son, and Ron Cart, but discriminatorily reduced their
hours of employment from those they had worked
prior to the concerted work stoppage.
Accordingly, we find that by the conduct found
above Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights
guaranteed them under Section 7 of the Act, and has
discriminated in regard to the hire, tenure, and terms
and conditions of employment of its employees,
thereby discouraging membership in a labor organi-
zation, and thus has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act, we shall
order it to cease and desist therefrom, to cease and
desist from violating the Act in any other manner,
and to take certain affirmative action designed to
effectuate the policies of the Act.
We also have found that Respondent discriminato-
nly discharged employee Robert Bonham on Decem-
ber 2, 1975, and failed and refused to reinstate him to
his former position until March 6, 1976; certain
employees engaged in a concerted work stoppage
which was caused and prolonged by Respondent's
aforesaid conduct; and, although Respondent rein-
stated employees Lloyd Scarbro, Phyllis Meador,
Faye Butts , Lois Newman, David Tyler, Paul Jami-
son, and Ron Cart, it discriminatorily reduced their
hours of employment from those they had worked
prior to the concerted work stoppage. Accordingly,
we shall order that the discriminatorily reduced hours
of employment of the affected employees be in-
creased to the number of hours of employment
worked by them prior to the concerted work stop-
page, and Respondent shall make all discriminatees
whole for any loss of pay suffered because of the
discrimination against them. Backpay shall be com-
puted on the basis set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Spentesta Corporation d/b/a Fas-Chek #4 is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Food Store Employees Union, Local 347,
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By the acts described in section III, above,
Respondent has interfered with, restrained, coerced,
and discriminated against employees in the exercise
FAS-CHEK #4 1263
of the rights guaranteed them in Section 7 of the Act,
and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Spentesta Corporation d/b/a Fas-Chek #4, Malden,
West Virginia, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their
membership in, activities on behalf of, and sympathy
for Food Store Employees Union, Local 347, Amal-
gamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, or any other labor
organization, and threatening to discharge its em-
ployees because of their union activities.
(b) Discouraging membership in the Union, or any
other labor organization, by discriminatorily dis-
charging its employees or by discriminating against
them in any other manner with respect to their hire or
tenure of employment or any other term or condition
of employment.
(c) Reducing the hours of employment of its
employees because of their participation in, or
support of, a concerted work stoppage caused and
prolonged by its unfair labor practices.
(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Increase the number of hours worked by Lloyd
Scarbro, Phyllis Meador, Faye Butts, Lois Newman,
David Tyler, Paul Jamison, and Ron Cart to the
number of hours they had worked prior to the
concerted work stoppage.
(b) Make whole employees Robert Bonham, Lloyd
Scarbro, Phyllis Meador, Faye Butts, Lois Newman,
David Tyler, Paul Jamison, and Ron Cart for losses
suffered by reason of the discrimination against them
as set forth in the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its place of business in Malden, West
Virginia, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms provid-
ed by the Regional Director for Region 9, after being
duly signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
I In the event that 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
WE WILL NOT interrogate our employees con-
cerning their membership in, activities on behalf
of, and sympathy for Food Store Employees
Union, Local 347, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-
CIO, or any other labor organization.
WE WILL NOT threaten to discharge employees
because of their union activities.
WE WILL NOT discharge employees or otherwise
discriminate against them because of their mem-
bership in, or activities on behalf of, the above-
named Union, or any other labor organization.
WE WILL NOT discriminatorily reduce the hours
of employment of our employees because of their
participation in, or support of, a concerted work
stoppage caused and prolonged by our unfair
labor practices.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Section 7
of the National Labor Relations Act.
WE WILL increase the number of hours worked
by Lloyd Scarbro, Phyllis Meador, Faye Butts,
Lois Newman, David Tyler, Paul Jamison, and
Ron Cart to the number of hours they worked
prior to the concerted work stoppage.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole employees Robert Bon- suffered by reason of the discrimination against
ham, Lloyd Scarbro , Phyllis Meador , Faye Butts, them.
Lois Newman , David Tyler, Paul Jamison, and
Ron Cart for any loss of earnings they may have SPENTESTA CORPORATION
D/B/A FAS-CHEK #4