Fas-Chek #4Download PDFNational Labor Relations Board - Board DecisionsJan 19, 1977227 N.L.R.B. 1261 (N.L.R.B. 1977) Copy Citation 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 Copy with citationCopy as parenthetical citation