Food Cart Market

National Labor Relations Board - Board Decisions

Nov 20, 1987

286 N.L.R.B. 1016 (N.L.R.B. 1987)

1016 FOOD CART MARKET
Manuel and Joseph Hoffer t/a Food Cart Market
and United Food and Commercial Workers
Union Local 1357, a/w United Food and Com-
mercial Workers International Union . Case 4-
CA-14393
20 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 18 January 1985 Administrative Law Judge
Nancy M. Sherman issued the attached decision.
The Respondent' filed exceptions and a supporting
brief and the General Counsel filed a brief in sup-
port of the judge's decision and in opposition to
the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions, to modify the remedy,3 and to adopt
the recommended Order.4
The judge found that the Respondent violated
Section 8(a)(1) of the Act by threatening to dis-
charge employees for union activities, threatening
to cut employees' wages and hours if the Union
became their collective-bargaining representative,
and interrogating an employee about union activi-
ty. The judge further found that the Respondent
violated Section 8(a)(3) and (1) of the Act by ter-
minating or laying off employees Winifred Gaines,
Barbara Lambus, and Juanita Cosby. In addition,
the judge concluded that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to
recognize the Union as the exclusive bargaining
representative of its employees at a time when the
Union enjoyed majority support. To remedy the
i We use the term "the Respondent" to refer collectively to the
charged entity and its principals
2 The Respondent has excepted to some of the ,fudge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
8 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to I January 1987 (the effective date of the 1986
amendment to 26 US C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
4 We have revised the judge's recommended notice to conform with
the recommended Order by including a provision relating to the expunc-
tion remedy
violations, the judge recommended that a bargain-
ing order be issued.
We have carefully reviewed the Respondent's
exceptions and find them meritorious only with re-
spect to whether employee Julio Feliciano's card
should be counted in assessing the Union's majority
support on 18 April 1984, the date of the Union's
bargaining demand. 5 For the reasons set forth
below, we reverse the judge's finding that Feli-
ciano's card should be counted. As we agree with
the judge, however, that the other 15 proffered au-
thorization cards are valid, we adopt the judge's
conclusion that the General Counsel has estab-
lished the requisite majority support in the stipulat-
ed appropriate unit on the critical date-i.e., 15
cards in a unit of 29 employees as of 18 April 1984.
In light of our agreement with the judge's conclu-
sions that the Respondent violated the Act as oth-
erwise alleged, we further adopt the judge's finding
that the issuance of a bargaining order is appropri-
ate in this case.
1. The record establishes that Feliciano's testimo-
ny is confusing, contradictory, and partially unin-
telligible. Feliciano, whose native language is Span-
ish but who testified in English, displayed difficulty
understanding many of the questions addressed to
him and evinced only a limited ability to read Eng-
lish. Where cardsigners have no facility in reading
the printed language on an authorization card, the
Board considers evidence as to how the message
on the card was translated or otherwise explained
to the employee.6 On direct examination, Feliciano
stated several times that he signed only one author-
ization card. When shown an affidavit given to a
Board agent that apparently revealed he executed
two cards, Feliciano continued to insist he signed
only one. Feliciano ultimately authenticated his sig-
nature on two cards offered into evidence by the
General Counsel, one dated "11-24" (no year indi-
cated) and the other dated "3-19-84." Although
Feliciano first testified that he filled out and signed
the "11-24" card, he later testified that he did not
know who filled out or gave him that card and
could not recall anyone explaining to him what the
card meant. Regarding the "3-19-84" card, Feli-
ciano originally testified that he did not know who
completed the card. He subsequently altered that
testimony by stating that employee Caraballo gave
S Although we adopt the judge's finding that Ruiz' card is valid and
should be counted , we disavow the judge 's superfluous statements re-
garding the improbability that Ruiz signed the card without receiving an
explanation of its purpose and the unlikelihood that Caraballo would
have misrepresented that purpose We rely instead on the affirmative evi-
dence presented by the parties
e Maximum Precision Metal Products, 236 NLRB 1417, 1425 (1978)
286 NLRB No. 95
FOOD CART MARKET 1017
him the card and filled in the blanks.7 Feliciano
also testified that he did not read the cards," did
not know what they meant when he signed them,
and that there was no mention of the Union at the
time his signatures were solicited.9 There is no evi-
dence that the cards were at any time translated
into Spanish for Feliciano or that their contents
were explained to him. Feliciano testified, "I didn't
know what it [the card] was for, but he [Caraballo]
told me to sign that it was good for us [sic]." It
was only after considerable prodding that Feliciano
testified that he signed a union card because he was
told "about a couple of benefits" and "because we
wanted the Union to represent us." Given the nu-
merous inconsistencies in Feliciano's testimony, and
the confusing context in which portions of his testi-
mony were elicited, we conclude that it is ques-
tionable whether Feliciano understood the meaning
and purpose of an authorization card when his sig-
natures were solicited. In light of such unreliable
testimony, we conclude that Feliciano's card
cannot be counted towards establishing the Union's
majority support.
2. Regarding the terminations of employees
Gaines and Cosby, our dissenting colleague, the
Chairman, would find that the General Counsel
failed to prove that the Respondent had knowledge
of the employees' union activities. We disagree, as
explained below, and find instead that the General
Counsel has established a prima facie case that
Gaines' and Cosby's terminations were motivated
by their activities on behalf of the Union. We also
find that the judge properly discredited the nondis-
criminatory grounds asserted by the Respondent as
justification for the discharges and conclude that
the Respondent did not establish that the dis-
charges would have occurred even in the absence
of the employees' union activities.10
9 We note that although Caraballo testified under subpoena for the
General Counsel regarding card solicitation activities , he was not asked
to corroborate Feliciano's testimony that he solicited Feliciano 's card.
a Feliciano testified that he did not read the card he obtained from
Caraballo "because he [Caraballo ] filled out the information on it and he
just told me to sign it " Feliciano further stated that he recalled telling
the Board agent who took his affidavit that he did not read the cards.
After reading his affidavit silently, Feliciano again testified that he did
not read the cards Finally , the General Counsel asked Feliciano to read
into the record the statement in his affidavit that said "I read the card
before I signed it " When asked , "[I]s that what the document says?" Fe-
liciano responded , "Yes I remember that " Given the context in which
the final question was asked and answered, we cannot conclude that Feli-
ciano in fact read the cards before he signed them It is not clear from
Feliciano 's ultimate response whether he recalled reading the cards or
whether he simply recalled including a cei tam statement in his affidavit
9 The judge asked Feliciano whether Caraballo mentioned the Union
at all while allegedly soliciting his card Feliciano responded , "No, not at
all " Feliciano confirmed this response during one of several subsequent
recross-examinations
10 Wright Line, 251 NLRB 1083, 1089 (1980), enfd 662 F2d 899 (1st
Cir 1981), cert denied 455 U S. 989 (1982), approved by the Supreme
Court in NLRB v Transportation Management Corp, 462 U S 393 (1983)
As set forth fully in the judge's decision, in late
October 198311 Gaines and Cosby discussed the
need for union representation. Gaines, a cashier in
the Respondent's employ since June 1981, contact-
ed a union organizer, and on 2 November Cosby, a
cashier since June 1978, met with a union repre-
sentative and signed an authorization card. Also on
2 November, Gaines signed an authorization card
handed to her by Cosby outside the Respondent's
market. Gaines thereafter arranged a union meeting
at her home on 11 November, attended by six em-
ployees including Gaines, Cosby, and discriminatee
Lambus. The judge found that between October
and her termination on 18 November, Gaines spoke
with 12 employees about the Union, 8 of whom
signed authorization cards. Although the record
shows that Gaines communicated with some of the
employees by telephone following her discharge,
the record reveals that three of the cards solicited
by Gaines were signed prior to her termination.
Cosby, in addition to the union activities set forth
above, spoke with seven employees regarding
unionization (five of whom signed cards) and solic-
ited an authorization card from Lambus. Our dis-
senting colleague agrees that Lambus, an active
union supporter, was unlawfully terminated the
same day that Cosby was laid off,-Le., 19 April
1984, 1 day following the Union's demand for rec-
ognition.
The record is replete with evidence of union
animus, a factor in the General Counsel's prima
facie case, which the dissent does not dispute. For
instance, within days after employees held a union
meeting in one of their homes in late March 1984,
Owner Joseph Hoffer unlawfully threatened to fire
"anybody caught having a union meeting in their
house, or anything to do with the Union." About
the same time, Hoffer coercively interrogated an
employee regarding his attendance at a union meet-
ing and again threatened to fire employees who
supported the Union. Moreover, in April 1984,
Hoffer threatened to reduce wages and work hours
if employees supported the Union.
We are particularly persuaded by the relation-
ship between the Respondent's threats and actual
events at issue here. Thus, Gaines was fired the
day after having had a union meeting at her home,
and Cosby and Lambus were terminated the day
after the Union demanded recognition. We take
issue with our dissenting colleague's statement that
there is no evidence that the Respondent learned of
the Union's organizing campaign before its admit-
ted knowledge in early 1984. We infer instead from
our analysis of all the evidence that the Respond-
I I All dates are 1983 unless otherwise indicated
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent indeed had knowledge of its employees' interest
in the Union as early as November when Gaines
was fired. To find otherwise would be to ignore
pertinent evidence. For example, the Respondent
has failed to explain adequately why Gaines was
fired 1 week after hosting a union meeting in her
home . On the contrary, the Respondent has pre-
sented shifting defenses regarding Gaines' termina-
tion, all of which were properly found by the
judge to be mere pretext rather than grounds actu-
ally relied on.12 Judging from the Respondent's
obvious hostility toward the Union, it would
appear that the Respondent terminated Gaines in
an effort to thwart its employees' incipient organi-
zational campaign by making an example of one of
the initial active union supporters. The Respondent
in essence admitted it fired Gaines for her union
activities when it informed discriminatee Lambus
on 19 April 1984 that Lambus was being laid off
because she and Gaines "started this whole union
thing." And there is nothing in the record to sug-
gest that this remark was based on information ob-
tained after Gaines' discharge. Thus, like the judge,
we find that Gaines was terminated because of her
union activity.
Following Gaines' discharge it appears that for
the next several weeks the organizational campaign
was dormant. The resumption of the employees'
union activities in mid-January 1984 prompted the
Respondent to take further actions aimed at re-
straining its employees in the exercise of their right
to organize. Again, those employees most active
and open in their support of the Union were target-
ed, resulting in the termination/layoff of Lambus
and Cosby. Our dissenting colleague does not dis-
pute that Lambus was unlawfully terminated imme-
diately following the Union's recognition demand,
but would nevertheless find no prima facie case
that Cosby's layoff the same day was unlawful.
Cosby, however, was an active union supporter at
all times that Gaines and Lambus were active, the
three were among the most active employee orga-
nizers and , in time, all were eliminated from the
Respondent's employ. We find such facts establish
more than the mere "suspicion" on which our dis-
senting colleague claims we rely. Furthermore, we
note that the judge discredited the Respondent's
denial of knowledge of Cosby's union activities,
noting the shifting testimony of Hoffer, the owner,
about when he first had knowledge of the Union's
campaign , and we note his attempt to conceal the
12 At the time of her discharge she was told she was the least senior
employee, and that another employee , whom Gaines protested had less
seniority, would also be released . The evidence indicates both statements
were false.
extent of his knowledge of the union movement
and its supporters.
With respect to our dissenting colleague's posi-
tion that assuming the Respondent had knowledge
of Cosby's union activities her termination would
nonetheless be lawful in light of her repeated re-
quests for a layoff, we agree with the judge that
the Respondent has failed to explain why Cosby
was laid off the day after the Union made its rec-
ognition demand rather than on an earlier date
closer to her most recent layoff request. That re-
quest, the judge found, occurred about 1 month
before Cosby's actual layoff. In the absence of an
acceptable explanation for the timing of the Re-
spondent's actions regarding Cosby, we give con-
siderable weight to the fact that the only interven-
ing event between Cosby' s last layoff request and
her actual layoff was the Union's recognition
demand.
In sum, we conclude, that the circumstances sur-
rounding the terminations of Gaines and Cosby are
sufficient to establish, through inference, that the
Respondent was aware of their union activities and
fired them for that reason.13 In this regard we rely
particularly, as set forth above, on the extent of the
union activities of Gaines, Cosby,14 and Lambus;
the Respondent's evident union animus ; the abrupt-
ness of Gaines' termination 1 week after she hosted
a union meeting in her home; and the layoff of
Cosby and Lambus 1 day following the Union's
demand for recognition. In inferring knowledge,
we rely also on evidence establishing that the Re-
spondent employed a small nonsupervisory work
force of about 29 employees in a building of only
6500 square feet, and that the Respondent's enter-
prise was operated informally as a "family busi-
ness," with Hoffer regularly working in the store
with his employees. Just as our dissenting colleague
argues that there is no indication in the record that
the employees' organizing activities took place
openly on the Respondent's premises, there is no
evidence that the employees, including Gaines and
Cosby, made any effort to hide their extensive
union activities, including card solicitations, from
management. Finally, Hoffer, as set forth above,
evidently was informed of off-premises organiza-
tional activity and engaged in unlawful interroga-
tion regarding the union activities of his employees.
" s Cf D & D Distribution Co v NLRB, 801 F 2d 636 (3d Cir 1986),
NLRB v Long Island Airport Limousine Service, 468 F 2d 292, 295 (2d
Cir 1972), Glenoaks Convalescent Hospital, 273 NLRB 488, 491 (1984)
14 We disagree strongly with our dissenting colleague's characteriza-
tion of Cosby's union activities as "minimal " As set forth above, Cosby
was vocal in her support of the Union and actively solicited employee
support
FOOD CART MARKET 1019
Accordingly, we find that the General Counsel
has satisfied her burden of establishing that the Re-
spondent had knowledge of the union activities of
discriminatees Gaines, Lambus, and Cosby and we
affirm the judge's finding their discharges were un-
lawful.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Manuel and
Joseph Hoffer t/a Food Cart Market, Philadelphia,
Pennsylvania, its officers, agents, successors, and
assigns , shall take the action set forth in the Order,
except that the attached notice is substituted for
that of the administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
I agree with my colleagues that the Respondent
violated Section 8(a)(1) through Joseph Hoffer's
various threats to and interrogation of employees. I
also agree with their conclusions that employee
Lambus was unlawfully discharged and that em-
ployee Feliciano's authorization card should not be
counted in determining whether the Union gained
majority status. I cannot agree, however, with the
majority's findings that the Respondent unlawfully
terminated employees Gaines and Cosby. Further,
because I would not include these two employees
in the bargaining unit or count their authorization
cards toward the Union's majority, I find that the
Union has not established majority support and I
dissent from the granting of a bargaining order. I
Employee Gaines began working for the Re-
spondent as a cashier about June 1981. In late Oc-
tober 1983 Gaines and alleged discriminatee Juanita
Cosby began discussing the need for union repre-
sentation. Gains contacted a union organizer and
on 2 November 1983 signed a union authorization
card. On 11 November 1983 it union meeting was
held at Gaines' house at which six employees were
present. On arriving for work on 18 November
1983, Gaines was informed by Joseph Hoffer that
he was going to have to let her go because work
was slow.
The standard used by the Board in determining
whether an employer discriminated against an em-
ployee because of the employee's union activities is
set forth in Wright Line.2 In satisfying the burden
i Gourmet Foods, 270 NLRB 578 (1984) Without the cards of Gaines
and Cosby, there are only 13 cards in a unit of 27 employees Even if
Cosby is included in the unit and her card counted on 18 April, the day
the Union made its demand for recognition and the day before Cosby
was fired, the Union would still have failed to establish majority status
because there would be only 14 cards in a unit of 28 employees
8 251 NLRB 1083, 1089 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert
denied 455 U S 989 (1982)
of establishing a prima facie case under Wright
Line, the General Counsel must show that employ-
ees engaged in prounion activity, that the employer
had knowledge of the activity, and that the em-
ployer was hostile towards it. In the instant case,
the judge, rather than applying the above stand-
ards, merely recounted Gaines' union activity3 and
then proceeded to analyze the Respondent's prof-
fered justification for Gaines' discharge. Finding
"peculiarities in the lawful reasons which Respond-
ents have tendered" for the termination, the judge
concluded that Gaines' discharge was unlawful. I
disagree, because I believe that the General Coun-
sel failed to prove an essential element of her prima
facie case, i.e., knowledge.
The judge made no finding that the Respondent
had any direct, actual knowledge of Gaines' union
activities prior to her termination. Although
knowledge may be established by inference,4 I find
that here there is insufficient evidence that the Re-
spondent was aware prior to Gaines' termination of
the existence of union meetings and authorization
card solicitation or of the identity of employees
leading the union campaign. In fact, no evidence
was offered to rebut Hoffer's testimony that the
Respondent first learned of its employees' interest
in the union in early 1984. There is no indication
that the employees' organizing activities took place
openly on the Respondent's premises. On the con-
trary, the employees' organizing activity centered
on union meetings conducted at their homes. Fur-
ther, the employees' union activities became most
prominent in January, some 6 weeks after Gaines'
discharge. Although the timing of Gaines' termina-
tion may be suspicious, occurring 1 week after
Gaines hosted a union meeting at her home, suspi-
cion is not a substitute for proof by a preponder-
ance of the evidence.5 The fact remains that the
General Counsel presented no credible proof that
the Respondent had knowledge of Gaines' union
activity on or before 18 November, the day of her
discharge.6 Accordingly, I would dismiss this com-
plaint allegation.
3 In addition to the union activity outlined above , the judge found that
on various dates between October and 18 November 1983, Gaines talked
to 12 employees about the benefits of unionization and the need to sign
authorization cards There is no evidence to support the conclusion that
Gaines talked to all 12 employees before her termination A review of
Gaines' testimony reveals that she conversed with some of the identified
employees by telephone following her discharge
4 Cf NLRB v Link-Belt Co, 311 US 584 (1941), NLRB v Proler
International Corp, 635 F2d 351, 356 (5th Cir 1981), Alumbaugh Coal
Co v. NLRB, 635 F 2d 1380, 1384 (8th Cir 1980)
5 Complas Industries, 255 NLRB 1416, 1419 (1981), Leyendecker Paving,
247 NLRB 28, 35 (1980)
6 Although Hoffer indicated to employee Lambus in April 1984 that he
believed she and Gaines "started this whole union thing," Hoffer's subse-
quent knowledge of Gaines ' union activities is irrelevant to the issue of
whether the requisite knowledge existed at the time of the alleged unlaw-
ful action
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cosby began working for the Respondent as a
cashier in June 1978, and engaged in only minimal
union activities during her tenure there. Cosby
signed a union authorization card on 2 November
1983, attended the union meeting held at Gaines'
house on 11 November 1983, solicited union cards
in early November 1983 from Gaines and employee
Lambus, and spoke with several employees about
unionization. There is no evidence that any of the
outlined activities were engaged in at the Respond-
ent's store. Further, there is no indication that
Cosby engaged in any union activities between the
end of November 1983 and her layoff in April
1984.
Cosby admitted requesting on several occasions
in 1983 that Hoffer place her on layoff status.
There is no dipute that Cosby repeated the request
in 1984. In fact, the judge credited the testimony of
Grocery Manager Joseph Menna that between
February and April, Cosby informed Hoffer in
Menna's presence that she would like to be laid off.
About 1 month later, Cosby told Menna that she
would be better off being laid off than working
only a few hours a day. Menna, who testified that
business was slow at the time, informed the Re-
spondent of Cosby's comment. Meat Department
Manager John Matthews, whose testimony the
judge also credited, stated that about March,
Cosby mentioned she wanted to be laid off for the
summer.7 Cosby had previously been granted two
leaves of absence on her request. On 19 April, the
day after the Union requested recognition from the
Respondent, Hoffer telephoned Cosby at home and
informed her that he was granting her layoff re-
quest.
Although the timing of Cosby's layoff is suspi-
cious in light of the Union's bargaining demand the
previous day, as I stated above, suspicion is no sub-
stitute for proof. Accordingly, I would find that
the General Counsel has failed to establish that the
Respondent's actions with respect to Cosby were
unlawful. In particular, as with Gaines, the General
Counsel failed to prove that the Respondent had
knowledge of Cosby's union activities, which is an
essential element of the General Counsel 's prima
facie case. The fact that there is no proof of actual
knowledge is not in dispute. The judge inferred
knowledge from her findings that Cosby engaged
in the union activities outlined above and from the
size of the facility, informal manner in which the
Respondent's business was operated, and instances
of union animus displayed by Hoffer. At no time
was Hoffer's union animus directed at Cosby, how-
ever, and none of Hoffer's comments revealed any
' Neither Menna nor Matthews was alleged to be a supervisor within
the meaning of Sec 2(11) of the Act
indication that Hoffer had any knowledge of
Cosby's union involvement. More importantly,
there is no evidence that Cosby's union activities
occurred in the Respondent's store, or that Cosby
engaged in any union activities within the 5 months
preceding her layoff. Thus, I cannot agree that
knowledge can be inferred from the above facts
and circumstances.
Assuming arguendo the existence of the requisite
knowledge, my conclusion that the Respondent did
not violate the Act by laying off Cosby is not al-
tered. There has been no justification presented for
discrediting the Respondent's claimed reliance on
Cosby's repeated requests for a layoff. According-
ly, in light of Cosby's minimal union activity, the
remoteness in time of that activity vis-a-vis the al-
leged unlawful layoff, the lack of evidence of
knowledge, and Cosby's repeated requests for a
layoff, I would find that the General Counsel has
failed to establish that the Respondent laid off
Cosby because of her union activities, and would
dismiss this aspect of the complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten to discharge you for
your union activity.
WE WILL NOT threaten to cut your wages and
hours if the Union becomes your representative.
WE WILL NOT coercively question you about
your union meetings , support, or activities.
WE WILL NOT lay off or discharge you, or other-
wise discriminate against you, for supporting
United Food and Commercial Workers Union
Local 1357, a/w United Food and Commercial
Workers International Union, or any other labor
organization.
FOOD CART MARKET 1021
WE WILL NOT refuse to bargain collectively and
in good faith with United Food and Commercial
Workers Local 1357 as the exclusive representative
of our employees in the appropriate unit set forth
below:
All full-time and regular part-time employees;
excluding guards and supervisors as defined in
the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Winifred Gaines, Barbara
Lambus, and Juanita Cosby immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings
and other benefits resulting from their discharge,
less any net interim earnings, plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to her dis-
charge and that the discharge will not be used
against her in any way.
WE WILL recognize and, on request, bargain
with United Food and Commercial Workers Local
1357 as the exclusive representative of all employ-
ees in the bargaining unit described above with re-
spect to rates of pay, wages, hours, and other terms
and conditions of employment and, if an under-
standing is reached, embody such understanding in
a signed agreement.
spondent violated Section 8(a)(3) and (1) of the Act by
terminating three employees because they supported the
United Food and Commercial Workers Union Local
1357, a/w United Food and Commercial Workers Inter-
national Union (the Union). Also, the complaint alleges
that a majority of Respondents' employees in an appro-
priate unit designated the Union to represent them, Re-
spondents' refusal to honor the Union's bargaining
demand violated Section 8(a)(5) and (1) of the Act, and
Respondents' alleged violations of Section 8(a)(1) and (3)
call for issuance of a bargaining order.
On the entire record, including the witnesses' demean-
or, and after due consideration of the brief filed by coun-
sel for the General Counsel (the General Counsel) and
relied on by the Union, and the brief filed by Respond-
ents, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondents are partners who operate a retail food
market in Philadelphia , Pennsylvania . During the year
preceding the issuance of the complaint, Respondents'
gross revenues from this market exceeded $500,000, and
Respondents purchased and received goods valued in
excess of $2000 from points directly outside Pennsylva-
nia. I find that, as Respondents admit , Respondents are
engaged in commerce within the meaning of the Act,
and that exercise of jurisdiction over their operations
will effectuate the policies of the Act.
The Union is a labor organization within the meaning
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Allegedly Unlawful Termination of Winifred
Gaines
MANUEL AND JOSEPH HOFFER T/A FOOD
CART MARKET
Margarita Navarro-Rivera, Esq., for the General Counsel.
Kenneth M Jarin, Esq and Richard E. Geschke, Jr. Esq.,
of Philadelphia, Pennsylvania, for the Respondents.
Michael N. Katz, Esq., Mr. Wendell W. Young IV, and
Samuel L. Spear, Esq., of Philadelphia, Pennsylvania,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN , Administrative Law Judge This
case was heard before me in Philadelphia , Pennsylvania,
on October 10 and 11 , 1984, pursuant to a charge filed
on May 1 , 1984, and a complaint issued on July 30, 1984.
The complaint alleges that Respondents Manuel and
Joseph Hoffer t/a Food Cart Market violated Section
8(a)(1) of the National Labor Relations Act (the Act) by
creating the impression that their employees ' union ac-
tivities were under surveillance ; by threatening to fire
employees and reduce their wages and hours if they sup-
ported a union ; and by interrogating an employee about
his union activity . The complaint further alleges that Re-
Winifred Gaines began working for Respondents about
June 1981 She was a food checker and a cashier. She
checked customers out, made change, wrote addresses
for grocery deliveries, and helped stock shelves. At the
time of her termination, she was a part-time worker who
worked 4 days a week and went to school 2 of those
days. On (lays when she went to school, she worked
from I to 4:30 p.m. The other 2 days, she worked from 1
to 6 p m.
In late October 1983, Gaines and alleged discriminatee
Juanita Cosby began to discuss bringing a union into Re-
spondents' store. Gaines got in touch with Dorothy Ma-
lampy and Wendell W. Young IV, both of them organiz-
ers for the Union At Cosby's behest, Gaines signed a
union card on November 2, 1983.
On November 11, 1983, Malampy conducted a union
meeting at Gaines' home. Employees Gaines, Cosby,
Barbara Lambus (an alleged discriminatee), Scott Jones,
Mary Pyfer, and Josue Caraballo were present. On vari-
ous dates between late October 1983 and Gaines' termi-
nation on November 18, 1983, she talked about the
Union, and about signing union cards, with employees
Cosby, Lambus, Juan Rivera, Raymond Johnson, Rickey
Lewis, Michael Pressley, Jones, Robinson Ruiz, Eduardo
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ruiz , Josephine Morrow, Myrtle Whittemore, and Juani-
ta L. Gullins (also referred to in the record as Loraine
Gullen). All but the last four of these employees eventu-
ally signed union cards.-
On November 18, 1983, Gaines arrived at the store
about 15 minutes before the scheduled 1 p.m. start of her
workday. Respondent Manuel Hoffer told her that Re-
spondent Joseph Hoffer (Manuel's brother) wanted to
talk to her. Joseph Hoffer told her that he was going to
have to let her go. She asked why. He said that work
was slow. She said that she was not the last one hired.
He said that she was. She said that he had hired a lot of
people after her, and that Gullins, another part-time
cashier who like Gaines worked afternoons only, had
been hired after Gaines. He said that he was going to
have to let Gullins go, too. Hoffer said that Gaines could
collect unemployment compensation, and that all she had
to do was to tell the unemployment compensation au-
thorities that there was a work shortage. When applying
for workmen's compensation, she stated on the form that
she had been separated for union activities (which
Joseph Hoffer had not told her) and because of a work
shortage. Respondents did not oppose her application.
As of late April 1984, Respondents' employees included
Gullins, who so far as the record shows never engaged
in any union activity.
A few days after Gaines' termination, Malampy held a
second union meeting at Gaines' house. The only ones
who attended were Gaines, Jones, and Malampy. After
Gaines' termination , she had telephone conversations
about the Union with Cosby, Lambus, Pyfer, and
Morrow.
B. The March 1984 Union Meetings,- Alleged
Interference, Restraint, and Coercion
In late February 1984,' Malampy left the Union's
employ. Organizer Young was given the records of the
Union's program at Respondents' store. After reviewing
the records and the authorization cards which the Union
had already procured, Young telephoned employee
Lambus, who had signed a card at the November 11,
1983, meeting at Gaines' home. Young and Lambus ar-
ranged for a meeting at a Roy Rogers restaurant on
March 19, 1984. This meeting was attended by Young
and by employees Jones, Caraballo, Julio Feliciano, and
Josef C. Grover, Sr. On March 23 or 24, a meeting was
held at employee Grover's home. Present were Young,
Grover, Lambus, and Jones.
After this meeting, Respondent Joseph Hoffer initiated
a conversation with Lambus in the meat room by saying
that someone had called him on the telephone and said
that she had had a union meeting at her house. She
truthfully denied this. He said that anyone who was
caught having a union meeting at his house, or having
anything to do with the Union, would be fired automati-
cally on the spot.2
i All dates hereafter are 1984 unless otherwise stated
2 My findings in this paragraph are based on Lambus' testimony,
which for demeanor reasons I credit over Hoffer's denial. Hoffer testified
that before her April 18 discharge he had heard reports, which he did
not believe, that she was involved with the Union Cf infra fn 4
A couple of days after the meeting at Grover's house,
Hoffer told Grover that Hoffer had something to talk to
him about. Hoffer asked whether Grover had had a
union meeting at his house. Grover untruthfully replied
no. Hoffer said that one of the neighbors had called and
told hirri that a union meeting had been held at Grover's
house, and who had attended the meeting. Grover again
untruthfully denied that a meeting had been held at his
house. Hoffer asked Grover whether he had signed a
card. Grover replied no, although he had in fact signed a
card shortly after Christmas 1983 and another one on
March 19, 1984. Hoffer said that if it was true that a
meeting; had been held at Grover's house and if Lambus
or Jones was there, Hoffer was going to get rid of
them.3
C. The Union's Bargaining Demand
On Wednesday, April 18, 1984, Union Representatives
James Harrison, Roland Priest, and Young came to Re-
spondents' store. Harrison asked Respondent Joseph
Hoffer to recognize the Union, and said that a majority
of the employees had signed authorization cards. Hoffer
said that he could not recognize the Union, and that the
store probably was not financially able to support a
union and would eventually have to close. Harrison said,
"Well, we appreciate that, we can sit down and talk
about ii." Hoffer said that he did not have the time right
then. Harrison requested a meeting later on. Hoffer
agreed to come to the Union's office on Wednesday,
April 25. All parties stipulated that on that day, April 18,
the Union demanded recognition.
D. The Allegedly Unlawful Termination of Juanita
Cosby
Before Respondents opened their store, Juanita Cosby
had worked as a cashier at another store managed by
Joseph Hoffer. Because he regarded her as a very effi-
cient cashier, when Respondents were opening up their
own store he got in touch with her and offered her a
cashier's job, which she accepted. She began to work
there in June 1978.
Cosby signed a union card on November 2, 1983, at
Malampy's behest. Cosby attended the union meeting at
Gaines' house on November 11, 1983. Cosby gave out
cards to Lambus and Gaines. Also, Cosby talked about
the Union to these two employees, to employees Patrick
Briscoe, Caraballo, and Jones (all of whom signed cards),
and to employees Whittemore and Morrow (neither of
whom signed a card).
3 My lindings as to this conversation are based on Grover's testimony
Although Grover testified that Hoffer "always" talked with him in the
back of the store, Grover's preheanng affidavit states that this March 26
conversation occurred while he was bringing the carts up front More-
over, Grover, a reluctant witness who at the time of the hearing was still
in Respondents' employ, testified that he had no present recollection of
any reference by Hoffer to Lambus or Jones However, after reading
Grover's prehearing affidavit, Grover testified that this affidavit attrib-
uted to Hoffer the statement about Lambus and Jones set forth in the
text, and that Hoffer " must have" made such a statement because when
Grover gave his affidavit " it was fresh in my mind " For demeanor rea-
sons I credit Grover, and do not accept Hoffer' s denial
FOOD CART MARKET 1023
Cosby worked her usual shift on Wednesday, April 18,
1984, the day that the Union asked Joseph Hoffer for
recognition . She was scheduled to work on Thursday,
April 19. As she was getting ready to go to work that
morning , Hoffer telephoned her and said, "[Y]ou wanted
to be laid off, I am going to lay you off."' He told her
that she could sign up for unemployment compensation.
She did so, and told the unemployment compensation au-
thorities that she had been laid off for lack of work. Re-
spondents did not oppose the application, and she col-
lected unemployment compensation.
My findings in the foregoing paragraph are based on
Cosby's testimony. Hoffer testified that "I believe" she
was laid off on April 18; and that he asked her whether
she still wanted to be laid off (see infra fri. 18), she said
yes, and he then said, "All right, you can go down to
sign up for unemployment compensation and I will okay
it." Union Representative Young credibly testified that at
7:30 or 8 a.m. on the day after he and other union repre-
sentatives made their oral bargaining demand, which
demand was stipulated to have been made on April 18,
Cosby telephoned him that Hoffer had just laid her off
by telephone. In view of this testimony by Young, Re-
spondents' failure to produce Cosby's time and payroll
records, and demeanor considerations, I credit her testi-
mony that she was not laid off until early in the morning
of April 19. Also, for demeanor reasons, I credit her ver-
sion of her termination interview, including her denial
that she said she wanted to be laid off.
E. The Allegedly Unlawful Termination of Barbara
Lambus
Barbara Lambus began to work for Respondents no
later than March 1982. She attended the November 11,
1983 union meeting at Gaines' home, and signed a card
there. In addition, she arranged for (but did not attend)
the union meeting on March 19, 1984, and attended the
meeting at employee Grover's house on March 24, 1984.
Also, between late November 1983 and late January
1984, she distributed blank union cards to other employ-
ees and urged them to sign the cards. Six employees re-
turned signed cards to her. Lambus probably got more
cards signed than any other employee did
On April 19, 1984, Lambus reported to work at 9 a.m.
Respondent Manuel Hoffer told her that Respondent
Joseph Hoffer did not want her to clock in until she
talked to him. Joseph Hoffer came in at noon. He and
Lambus went into the produce room, which is all the
way in the back of the store. He told her that he was
going to have to lay her off. She asked why. He said be-
cause she and "Winnie" (Gaines' first name is Winifred)
had "started this whole union thing."4
Respondents' counsel stated at the outset of the hear-
ing that Lambus was terminated for poor work perform-
ance. However, as discussed infra, part II,F, Respondent
4 My finding in this sentence is based on Lambus' testimony Hoffer's
version is rather similar . He testified that Lambus said "something" about
the Union , "she said she knows who is responsible for the whole thing,
but she is not going to tell me when I told hex that I was going to
have to let her go, she started hollering , why and she said something
that set me off, and I got a little angry , and I said , well, it is you and this
Winne Gaines that started this whole thing "
Joseph Hoffer told employee Grover a few days after
Lambus' termination that she had been discharged be-
cause Hoffer had caught her stealing some meats out the
back. After Grover had so testified, Respondents' coun-
sel stated that Lambus was discharged because she stole
meat.5 Thereafter, Respondent Joseph Hoffer testified
that Lambus' "work performance was fair, but her work
performance was not what my concern was," and that
he discharged her because he suspected her of stealing
meat . Hoffer admitted, in effect, that when terminating
Lambus, he told her that she was being terminated for
starting the Union (see supra fn. 4). He testified that the
reason he did not tell her that she was being terminated
because he thought she had been stealing meat was that
he did not want to be involved in any kind of lawsuit.
Lambus had a practice of carrying with her to work a
pocketbook about 12 or 14 inches long and 8 inches
high.6 About mid-October 1983, Hoffer saw 12 cans of
shrimp lying beside her pocketbook. He asked her what
they were doing there. She said that she was going to
take some of them home. He said, "okay." Ten minutes
later, she told him that all the shrimp were put back on
the shelf, and he could check with employee Pyfer about
it. Thereafter, Hoffer told Lambus that she would have
to check her pocketbook in the office. She did this for 1
day, and then resumed carrying her pocketbook as she
had before. There is no evidence that she ever again re-
ceived any instructions about her pocketbook.
Hoffer testified that about a month later (about mid-
November 1983), Respondents' meat department manag-
er, who is James Matthews (not contended to be a super-
visor), told Hoffer to watch Lambus because she had
been buying a lot of lunchmeat, and that Hoffer agreed
with Matthews that "we would try to keep some sort of
a watch out for her." Joseph Hoffer went on to testify
that thereafter Matthews reported that Lambus had got a
lot of lunchmeat; that the cashiers told Hoffer that
Lambus had not checked anything through them; and
that Respondent Manuel Hoffer said that she had not
asked him to put anything on her bill.7 Matthews, who
was called by Respondents as a witness, testified that
about January or February 1984 he told Joseph Hoffer
that he thought some "shady dealings" were going on in
the back room, where Lambus and other meatwrappers
worked;" that Matthews mentioned no particular names;
5 More specifically, counsel gave an affirmative answer to my inquiry
whether he was contending that Lambus was discharged in whole or in
part because she stole meat Counsel went on to state that he believed he
had previously said that poor work performance was not the complete
picture, and that stealing from work is encompassed by that position.
Counsel's "complete picture" reservation had been tendered in connec-
tion with Cosby As noted infra, Respondent Joseph Hoffer testified that
Lambus had not been discharged for poor work performance, and that
she was discharged for suspected stealing
6 This finding is based on the testimony of meat department manager
James Matthews, a witness called by Respondents I regard as grossly ex-
aggerated Joseph Hoffer's testimony that her pocketbook was 2-1/2 feet
by 4 feet
' Joseph Hoffer's testimony summarized in these two sentences was re-
ceived only to show that these reports were made to him, and not to
show the truth of the reports
a Johnson's union card states that he was a meatwrapper Rivera's
union card states that he was a meatpacker
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and that Hoffer told him to keep his eyes open. Mat-
thews impressed me as an honest witness. In view of his
credible contradiction of Hoffer's testimony as to the
date of these discussions and whether Lambus' name was
mentioned, and because Respondent Joseph Hoffer's tes-
timony summarized in this paragraph is uncorroborated
by Respondent Manuel Hoffer (who did not testify) or
any other witness, I discredit such testimony by Joseph
Hoffer.
Joseph Hoffer went on to testify that about a month
before Lambus' April 19, 1984 termination he saw lying
near her pocketbook a package of center-cut pork chops
bearing a $5.16 price tag. Still according to Hoffer, he
left the area, came back about 2 minutes later, and found
that the package was no longer there. He went on to tes-
tify that the package was not in the meat case, and that it
could not have been sold because no customers were in
the store.
Hoffer testified on direct examination that he waited
about a month, until Thursday, April 19 (the day after
the Union's bargaining demand), to terminate Lambus
because, "I didn't know how to go about really terminat-
ing her, I wanted to catch her red-handed if it was possi-
ble, but I could never seem to catch her, and I couldn't
see holding onto her any longer, because I didn't know
how bad the situation really was." On cross-examination,
he testified that "nothing in particular" caused him to
select April 19 as the discharge date; and that the fact
that the Union demanded recognition on April 18 was
"just coincidental, I had made up my mind several days
ago to let her go." He went on to testify that he allowed
her to work for these several days because he had been
made aware through counsel that discharging her would
cause him a problem "because of the Union affiliation,"
and that he "was mulling over in my mind what I should
do with her . . . but I just couldn't tolerate her any
more." Then, he testified that he did not retain counsel
until after her discharge.
F. Alleged Further Interference, Restraint, and
Coercion
their April 25 appointment. The letter went on to state
that the Union represented a majority, requested recogni-
tion as the representative of all employees except super-
visors or guards, and stated that pending the scheduled
April 25 meeting the Union had filed a representation pe-
tition with the Board. Respondents received this letter
on April 19. On April 24, the Union received a hand-car-
ried letter from Respondents' counsel bearing that same
date. The letter stated that "we have serious doubts" of
the Union's majority, that "we will await receipt of the
[representation] petition," and that Hoffer would be
unable to attend the scheduled April 25 meeting.
III. THE UNION'S ALLEGED MAJORITY
A. The Number of Employees in the Unit
The parties stipulated to the appropriateness of the
unit described in detail infra in Conclusion of Law 3.
The parties are in agreement as to the inclusion of 27
employees in the unit as of April 18, 1984, the date of
the bargaining demand.9 Cardsigners Juanita Cosby and
Winifred Gaines were admittedly in the unit before their
termination. In view of my finding, supra, that Cosby
was not terminated until April 19, 1984, she is included
in the unit as of April 18. In view of my finding infra
that Gaines was terminated in November 1983 for union
activity, she, too, will be included in the
unit.10Accordingly, as of the critical date the unit con-
sisted of 29 employees.
B. The Number of Authentic and Operative Cards
Cards bearing the at least purported signatures of 16 of
these 29 employees , and bearing various dates between
November 2, 1983, and March 19, 1984 , were received
into evidence . Some of these cards , the old-style cards,
read as follows:
UNITED FOOD & COMMERCIAL WORKERS
UNION LOCAL 1357
Affiliated with
A day or two after the termination of Lambus and
Cosby, Respondent Joseph Hoffer told employee Grover
that Cosby had asked to be laid off, and Hoffer had de-
cided to lay her off because work was slow. Hoffer fur-
ther said that he had fired Lambus because he caught her
stealing some meats out the back. Hoffer went on to say
that if the Union came in the employees would be cut
from a full week to a half week, and their pay would be
cut, "because the Union would cut them."
My findings as to what was said during this conversa-
tion are based on Grover's testimony. Hoffer testified
that Grover asked him what would happen if the Union
came in, and he replied that to the best of his knowledge
Respondents would have to pay everyone a minimum
wage until a contract was agreed to. For demeanor rea-
sons , I credit Grover.
G. Aftermath
On April 18, immediately after visiting Joseph Hoffer,
the Union sent him a letter, by certified mail, confirming
UNITED FOOD & COMMERCIAL WORKERS
INTERNATIONAL UNION
Affiliated with AFL-CIO-CLC
AUTHORIZATION FOR REPRESENTATION
I hereby authorize the United Food & Commer-
cial Workers Union Local 1357, AFL-CIO-CLC,
to represent me for the purpose of collective bar-
gaining.
9 These are Patrick Briscoe, Josue Caraballo, Steven Custer, Julius Da-
vidson, Sidney Eisenstem, Julio Feliciano, Josef C Grover Sr, Harlan E
Grubb, Juanita L Gullins, Raymond Johnson, Scott Jones, Eugene Ko-
shanowicz, Barbara Lambus, Rickey Lewis, James J Matthews , Joseph
Menna, Alice Mikkelsen, Josephine Morrow, Angel Ocasio, Joseph E Pa-
chella, Michael Pressley, Mary L Pyfer, Juan Rivera , Domingo Ruiz, Rob-
inson Ruiz, John P Smith, Myrtle Whittemore As discussed infra, cards
were signed by the 14 employees whose names are italicized
i0 Justak Bros. & Co, 253 NLRB 1054, 1069 (1981), enfd . 664 F2d
1074 (7th Cir 1981)
FOOD CART MARKET 1025
(Signature) (Date)
10 employees listed in the attached footnote." Of these
10, 6 (Caraballo, Cosby, Gaines, Grover, Jones, and
Lambus) testified that they read and signed their cards.12
Lambus credibly testified that the remaining four (John-
(Print Name) (Home Phone) son, Ocasio, Pressley, and Pyfer) read and signed their
(Home Address) (City) (State) (Zip)
(Employer's Name) (Address)
(Hire Date) (Type Work Performed) (Department)
(Hourly Rate) (Day Off)
Day Shift - Night Shift --
Full Time Part Time
Would you participate in an organizing commit-
tee? Yes - No
Others, herein called the new-style cards , read as
follows:
UNITED FOOD AND COMMERCIAL
WORKERS UNION LOCAL 1357
(Affiliated with the UFCWIU , and the AFL-CIO)
AUTHORIZATION FOR REPRESENTATION
Desiring to enjoy the rights and benefits of collec-
tive bargaining , I the undersigned , employee of the
Firm's Name
Store Address Store No.
Employed As Dept.
Home Address
City State -- Zip Code
Home Phone - Date of Hire
Day-off
Full-time- Part-time
I understand and agree that my execution of this
authorization card will enable the Union to secure
recognition from my Employer as my sole and ex-
clusive collective bargaining representative without
the need for any election conducted by the National
Labor Relations Board , or any other agency. By the
execution of this card, I agree that the Union may
act as my bargaining representative , and I will au-
thorize it to seek recognition from my employer on
the basis of my authorization card.
Date (Signature of Employee)
Print Name
Respondent has never questioned before me that either
card unambiguously designates the Union as the signato-
ry's bargaining representative. Further, Respondent's
posthearing brief does not question the authenticity and
operative effect of the cards bearing the signatures of the
cards in her presence. All 10 of these cards will be
counted.
Respondents' posthearing brief challenges the old-style
card of Rivera, and the new-style card of Lewis, on the
basis of the testimony of Lambus, who solicited both
cards, that she herself filled out all the blanks in Rivera's
card except for the signature , and that she herself filled
out the blanks in Lewis' card calling for the name of the
store, its address, and his job. Lambus testified that in
her presence Rivera signed his card and Lewis read his
card, filled out the rest of it, and signed it. Lambus credi-
bly testified that she obtained most signed cards in Janu-
ary 1984 and that Lewis inserted the January 17, 1984
date on his card. An entry on the back of the card indi-
cates that Malampy received it on January 24, 1984. Al-
though Lambus further testified that Rivera inserted the
"11-26" date on his card, that date was entered with a
pen different from that used in the signature on the card
as well as from the pen used in the entries admittedly
made by her, and as to both pen and character markedly
resembles the "11-26" entry on the back of the card,
which entry indicates that Malampy received it on that
date. As previously noted, Malampy left the Union's
employ in late February 1984; Lambus began to solicit
cards after the union meeting on November 11, 1983; and
she was discharged on April 19, 1984. Both cards are
date-stamped by the Regional Office as having been re-
ceived on April 23, 1984. Respondent maintains in its
files a withholding form for each employee, which is
supposed to be signed by that employee. Respondent
makes no contention that the employee signatures on Ri-
vera's and Lewis' withholding forms differ from the sig-
natures on the cards authenticated by Lambus. I credit
Lambus' uncontradicted testimony about Lewis' card,
and her testimony about Rivera's card except for her tes-
timony that the date was entered by her. Further, I find
that these two cards were signed on about the dates they
bear, and will count both of them.
Respondents' posthearing brief challenges the new-
style cards bearing the purported signatures of Custer
and Briscoe, on the ground that they did not fill out
11 Caraballo, Cosby, Gaines, Grover, Johnson, Jones, Lambus, Ocasto,
Pressley, Pyfer The employees whose names are italicized signed old-
style cards As to all these cards, except those signed by Johnson , Ocasto,
and Pressley , there is direct evidence that they were signed about the
dates that they bear (November 2, 1983, to March 19, 1984) Johnson's
and Ocasio 's cards are dated November 25 and 24, 1983, respectively,
and contain entries indicating that Union Representative Malampy re-
ceived them on such dates Pressley's card is dated January 20 or 21,
1984, and contains an entry indicating that Malampy received it on Janu-
ary 28, 1984 All three were solicited and authenticated by Lambus, who
began her card solicitation after the union meeting on November 11,
1983, got most of her cards signed in January 1984; and was discharged
on April 19, 1984 Malampy left the Union 's employ in February 1984.
All 10 of these cards are stamped by the Regional Office as having been
received on April 23, 1984
12 Jones did not in terms testify that he read his card However, he did
testify that he had filled out all the blanks and that he solicited cards
from others
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their cards in the presence of the authenticating witness.
Lambus credibly testified that she gave a blank card to
Custer and he returned a completely filled-out new-style
card to her about 2 hours later. Moreover, the purported
signature on that card resembles the signature that (ac-
cording to Union Representative Young's credible testi-
mony) Custer affixed in his presence to a statement on
April 19, 1984. Jones credibly testified that he gave a
blank card to Briscoe, and that Briscoe later returned a
completely filled-in new-style signed card to Jones. Re-
spondent makes no claim that the signature on that card
differs from the signature on Briscoe's withholding form.
Both of them contain entries indicating that the Union
received them a few days after the January 17, 1984 date
that they bear, and both of them were date-stamped by
the Regional Office on April 23, 1984. Lambus began to
solicit cards after the November 11, 1983 union meeting,
obtained most signed cards in January 1984, and was dis-
charged on April 19, 1984. I find that the cards were re-
turned to Lambus and Jones, respectively, about the date
that they bear, and will count both of them. Clothing &
Textile Workers v. NLRB, 419 F.2d 1207, 1209 (D.C. Cir.
1969), cert. denied 397 U.S. 988 (1970); Continental
Kitchen Corp., 246 NLRB 610, 616 (1979); Photo Drive
Up, 267 NLRB 329, 363 (1983); Ultra-Sonic De-Burring,
Inc., 233 NLRB 1060, 1067 fn. 11 (1977), enfd. 593 F.2d
123 (9th Cir. 1979); Stride Rite Corp., 228 NLRB 224,
234-235 (1977).
Respondent's posthearing brief contends that the cards
signed by Feliciano should not be counted because he al-
legedly did not know what they meant. Feliciano authen-
ticated his own signature on two cards, an old-style card
dated "11-24" and a new-style card dated "3/19/84." He
testified that this second date is not in his handwriting
and the "11-24" date may not be in his handwriting
either. However, Union Representative Young testified
that Feliciano signed a card on March 19, 1984. More-
over, the card dated "3/19/84," which the Regional
Office date-stamped April 23, 1984, contains on the re-
verse side a notation "3/19/84, WY IV" (Young's full
name is Wendell Young IV), and the card dated "11-24"
is stamped, on the reverse side, "Attention: Dot Ma-
lampy." Although Feliciano testified in English, his
mother tongue is Spanish and he evinced only a limited
ability to read English. However, he testified that he
filled out these cards because employee Caraballo told
him that it would be good for Feliciano to sign the card,
and because he wanted the Union to represent him. A
Feliciano card will be counted. World Generator Co., 242
NLRB 1295, 1309 fn. 52 (1979); Local 707, Teamsters
Local 707 (Claremont Polychemical Corp.), 196 NLRB
613, 624-625 (1972).
Robinson Ruiz' native language is Spanish, and there is
no evidence that he can understand English. He was
given an old-style card by Caraballo, whose native lan-
guage is Spanish but who speaks fairly good English and
can to some extent read it. Caraballo testified that he
told Ruiz in Spanish that signing the card would mean
that he was going to be represented by the Union, that
he would get sick pay, that he might get a raise , and that
he did not have to pay anything if he signed the card.
Caraballo further testified that Ruiz "thought about it a
little while" and then filled out and signed the card. Still
according to Caraballo, he showed Ruiz what blank on
the card called for his name and what blanks called for
other information. In response to a question by me at the
conclusion of direct examination , Caraballo testified that
all the blanks on the card were physically filled in by
Ruiz.
After Caraballo's attention had been drawn on cross-
examination to the fact that the card appears on its face
to bear two different kinds of printing as well as some
handwriting,1 3 Caraballo tacitly conceded that he had
not seen Ruiz fill in the entire card. On the basis of this
testimony by Caraballo, Respondent asks me to discredit
his testimony that he translated the card to Ruiz and that
Ruiz signed the card. However, Respondent does not
contend that the signature on the card differs from the
signature on Ruiz' withholding authorization. Moreover,
it is improbable that Ruiz signed the card without receiv-
ing some explanation of its purpose, nor do I perceive
any reason why Caraballo would have misrepresented
that purpose. Accordingly, and for demeanor reasons, I
credit Caraballo's testimony as to what he told Ruiz re-
garding the card. Further, I find that such statements did
not render the card inoperative. Chefs Pantry, Inc., 247
NLRB 77, 79 (1980), enfd. 654 F.2d 458 (6th Cir . 1981);
Windsor Industries, 265 NLRB 1009, 1020 (1982), enfd.
and remanded in part 730 F.2d 860 (2d Cir. 1984). The
card contains entries, which indicate that Malampy re-
ceived it on November 26, 1983,14 and the Regional
Office date-stamped it April 23, 1984. Ruiz' card will be
counted.
C. Conclusion
For the foregoing reasons, I find that on the day of
the Union's April 18, 1984, bargaining demand, 16 of the
29 employees in the bargaining unit had signed operative
union authorization cards.
IV. ANALYSIS AND CONCLUSIONS
A. The Alleged Independent 8 (a)(1) Violations
I agree with the General Counsel that Respondents
violated Section 8(a)(1) of the Act when Respondent
Joseph Hoffer told employee Lambus that anyone who
was caught having a union meeting at his house, or
having anything to do with the Union, would be fired
automatically on the spot; and when he told employee
Grover that if a meeting had been held at his home, and
if Lambus or Jones were there, Hoffer was going to get
rid of them.15 Also, I agree with the General Counsel
13 The handprinting in the blanks calling for Respondent's name and
address and for the employee's job and department bears a marked re-
semblance to similar entries on the cards of Lambus , the cards of Ocasio
and Rivera, which entries she admittedly made, the first card signed by
Feliciano, and the card signed by Johnson and solicited by Lambus.
14 The card is dated "11-26" in a pen and character , which markedly
resemble that entry . There is no other probative evidence about who
dated it
is The complaint does not allege that Respondents violated the Act
when Joseph Hoffer told Lambus , during her April 1984 discharge inter-
view, that she and Gaines had been fired for starting the Union.
FOOD CART MARKET 1027
that Respondent violated Section 8(a)(1) when Respond-
ent Joseph Hoffer told Grover, in late April 1984, that
the employees' wages and hours would be cut if the
Union came in. In addition, I agree with the General
Counsel that Respondents violated Section 8(a)(1) when
Joseph Hoffer asked employee Grover whether he had
had a union meeting at his house. In finding that Hoffer
thereby engaged in unlawful interrogation, I note that
Hoffer immediately thereafter threatened to discharge
employees if they had attended such a meeting, that
Grover untruthfully denied that such a meeting had been
held, that Hoffer was seeking information useful for dis-
crimination, that Respondents terminated employees for
union activities, which included attendance at union
meetings, and that such questioning served no legitimate
purpose. 16
However, I do not agree with the General Counsel
that Respondents, through Respondent Joseph Hoffer,
gave employees Lambus and Grover the impression of
surveillance. Hoffer did not imply to either of them that
Respondents had asked anyone to keep an eye on the
identity of employees who had union meetings at their
houses or attended such meetings, or that Respondents
had encouraged anyone to observe and report such em-
ployee activity. Moreover, the fact that Lambus had not
in fact held a union meeting at her house would likely
lead her to discount the significance of alleged reports to
Hoffer, which allegedly contained such inaccuracies.
B. Allegedly Discriminatory Terminations
Alleged discriminatees Gaines and Cosby were the
two employees who first began to discuss the possibility
of unionizing Respondents' store and the first two who
signed union cards. Gaines was the employee who got in
touch with a union organizer, and whose house accom-
modated the first union meeting . All three alleged discri-
minatees (Gaines, Lambus, and Cosby) attended this
meeting , where Lambus signed a union card. During the
following week, Gaines talked about the Union to the
other two alleged discriminatees and also to 10 other em-
ployees; if Respondents' work force was about the same
size then (November 1983) as in April 11984, Gaines en-
gaged in such discussions with more than a third of her
fellow employees. She was separated one week after
holding the union meeting at her house.
Thereafter, Lambus successfully solicited employee
signatures on about 6 union cards (more, probably, than
any other employee), arranged for a union meeting, and
attended another union meeting at the house of employee
Grover. A few days later Respondent Joseph Hoffer ex-
pressed suspicion that Lambus had held a union meeting
at her house, told her that anyone holding such a meet-
16 The General Counsel's brief contends that Respondents engaged in
unlawful interrogation when Joseph Hoffer asked Grover whether he
had signed a union card, and impliedly asked Lambus whether she had
had a union meeting at her house. However, the complaint does not
allege that Respondents interrogated anyone about signing a union card
Moreover, the complaint allegation of interrogation about a union meet-
ing is limited to one employee, and the inclusion of this allegation in a
paragraph, which is otherwise directed to allegations supported by
Grover's testimony, leads me to infer that this allegation, too, involved
Grover and not Lambus The 8(a)(1) allegations supported by Lambus'
testimony are set forth in the preceding paragraph of the complaint
ing at his house or having anything to do with the Union
would be fired on the spot, and told employee Grover
that Respondents would get rid of Lambus if she had at-
tended a union meeting at Grover's house (as she in fact
did). The day after the Union demanded recognition Re-
spondent Joseph Hoffer terminated both Lambus and
Cosby. At that time, he told Lambus that she was being
laid off because she and Gaines had "started this whole
union thing."
Particularly in view of Hoffer's remarks to Lambus
when terminating her, the foregoing sequence of events
renders virtually inescapable the conclusion that Gaines
and Lambus were terminated because of their union ac-
tivity. Further support for this conclusion is provided by
the peculiarities in the lawful reasons, which Respond-
ents have tendered for these terminations. At the outset
of the hearing, Respondents' counsel stated that Gaines
was discharged because of poor work performance.
However, Respondent Joseph Hoffer told cashier Gaines
that she was being let go because work was slow. When
she said that she was not the last one hired, he initially
disputed this and then said that the junior cashier named
by Gaines would also be let go, but he unexplainedly did
not do so. At the hearing, he testified that Gaines was
terminated because she read books or newspapers at the
cash register, r 7 was discourteous to a lot of customers,
and had failed to give Respondents prior notice before
starting to go to school, two afternoons a week, during
what had been the last hour and a half of her scheduled
shift. However, he admitted that when he terminated
Gaines, he did not tell her that he was not happy with
her performance. In view of the nature of his alleged
complaints, I do not credit his explanation that he failed
to tell her about them because he was afraid of hurting
her feelings . Moreover, although the record fails to show
the length of the period between the time she started
going to school and her termination on November 18,
1983, Hoffer's testimony makes it clear that he did not
discharge her immediately after learning that she had
started going to school ("I should have done something
. .. to discipline her then"), notwithstanding his further
testimony, in effect, that he objected to her conduct
solely because it did not give Respondents enough time
to make arrangements to have her work performed while
she was in school. As to Lambus, if Respondents really
discharged her for suspected theft and wanted to avoid a
lawsuit, it is rather unlikely that Respondents would
have waited for a month after the suspected theft and
then told her that she was being discharged (the day
after the Union's bargaining demand) because of her
union activity. Moreover, Joseph Hoffer 's testimonial at-
tribution of part of this delay to cautioning by counsel is
belied by Hoffer's admission that he did not retain coun-
sel until after Lambus was discharged. I find that Re-
spondents discharged Gaines and Lambus because of
their union activity, and for no other reason, in violation
of Section 8(a)(3) and (1) of the Act.
17 Gaines credibly testified that she had read her book while at the
cash register , but not "a lot "
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As to Cosby's termination, Respondents' principal de-
fense to the complaint allegations is that the record alleg-
edly fails to show that Respondents knew or suspected
her union activity. However, it was Cosby who gave out
union cards to Lambus and Gaines, both of whom
(Joseph Hoffer in effect admitted to Lambus during her
termination interview) were laid off for union activity.
Further, Cosby attended the union meeting held at
Gaines' house a week before Gaines' termination. More-
over, Respondents' entire active nonsupervisory work
force consisted of only 28 employees; Hoffer ran the
store (whose area is 6500 square feet) like a family busi-
ness and regularly worked with the employees in the
store, in an informal atmosphere; he displayed interest in
the identity of union supporters; he threatened to dis-
charge anyone who was caught having anything to do
with the Union; at least 4 employees were on Respond-
ent's premises when their signatures on union cards were
successfully solicited in late November 1983; and at least
3 such signatures were successfully solicited on Respond-
ents ' premises in late January 1984. Also, Hoffer demon-
strably sought to conceal the extent of his knowledge of
the union movement and its supporters, including Cosby.
Thus, although he in effect admitted to Lambus that
Gaines had been terminated on November 18, 1983, for
union activity, he testified before me at one point that it
was not until after Christmas 1983 that he found out
about union activities at Respondents' store; and later
testified that even after receiving the Union's oral bar-
gaining demand on April 18, 1984, he was not aware of
any union activities going on. Although the July 30, 1984
complaint alleged that Cosby had been discharged for
supporting the Union, Hoffer testified before me on the
second day of the hearing (October 11, 1984) that he had
not had any idea until the preceding day (the first day of
the hearing) that she was involved in the Union. Further,
when asked whether Cosby had ever said anything to
him about the Union, Hoffer testified, "She never said
anything to me about the Union, but she did make some
snide remarks lately, to the effect that I am going to be
sorry about something"; Hoffer testified that she made
these "snide remarks" about a month before her layoff,
and when he spoke to her about her conduct at the cash
register.
Furthermore, the reasons that Respondents advance
for her layoff wholly fail to explain why the layoff oc-
curred on Thursday, April 19, 1984, the day after the
Union's bargaining demand. Hoffer testified that he laid
her off because she had repeatedly asked to be laid off,
Respondents had trained another employee (Gullins) to
perform Cosby's duties as a cashier, and Cosby "lately
had developed some very bad habits"-more specifically,
reading newspapers and books at the cash register, and
embarrassing Hoffer by telling him in customers' pres-
ence that his efforts to help her were incompetent and
useless. However, Hoffer testified that her most recent
request to be laid off had been made about a month
before she was laid off, 18 and that it was about the same
18 Cosby credibly testified that she asked Joseph Hoffer "maybe about
two or three" times in 1983 to lay her off Grocery manager Joseph
Menus (not claimed to be a supervisor) credibly testified that on a date
time (that is , a month before her layoff), when he re-
proached her about her cash-register conduct. Further-
more , Gullins had been working as a cashier for at least
5 months before Cosby was laid off. In view of the fore-
going , I discredit Hoffer's testimony that at all material
times he was unaware of Cosby's union activity, t 9 con-
clude that knowledge or suspicion by Respondents of her
union activity played a part in Respondents' decision to
lay her off,20 and find that Respondents have failed to
show that she would in any event have been laid off for
lawful reasons.2 i
C. The Refusal to Bargain and the Requested
Bargaining Order
It has been found that as of April 18, 1984, the date of
the Union's bargaining demand, a majority of the em-
ployees in an appropriate bargaining unit had signed
union authorization cards. It has also been found that on
various dates between November 19, 1983, and about
April 21, 1984, Respondents engaged in unfair labor
practices that were calculated to procure the Union's
defeat in the representation election sought by the
Union's petition, of which Respondents were advised on
April 19, 1984. Under these circumstances, an 8(a)(5)
violation should be found and a "second-category" bar-
gaining order should issue to remedy unfair labor prac-
tices, which have the tendency to undermine majority
strength and impede the election process, if the possibili-
ty of erasing the effects of such unfair labor practices
and insuring a fair labor election by the use of "tradition-
al" remedies is slight and employee sentiment once ex-
pressed through cards would, on balance, be better pro-
tected by a bargaining order. Among the factors material
in making such a determination are the extensiveness of
the employer's unfair labor practices in terms of their
past effect on election conditions, the likelihood of their
recurrence in the future, and the likelihood that compli-
ance with a remedial order would erase from the em-
ployees' memories the coercive effect of the unfair labor
practices sought to be so remedied.22 I conclude that
between February and April 1984 she told Hoffer in Menna 's presence
that she would like to be laid off Menna further credibly testified that
about a month later she told Menna (who told Respondents) that she
would be better off being laid off than working only a few hours a day
Meat department manager Matthews credibly testified that she said about
March 1984 that she would like to be laid off for the summer, but that he
did not report this remark to his supervisors For demeanor reasons, I do
not credit either Cosby's testimony that after 1983 she never asked to be
laid off, or Joseph Hoffer's testimony that she asked "any place between
10 to 20 times" to be laid off and during their termination interview she
expressed a desire to be laid off
19 See NLRB v. Walton Mfg Co, 369 U S 404, 408 (1962)
20 Alumbaugh Coal Corp v NLRB, 635 F 2d 1380, 1384-1385 (8th Cir
1980), Florida Cities Water Co, 247 NLRB 755, 756 (1980)
21 See NLRB it Transportation Management Corp, 462 U S 393 (1983).
22 NLRB Y Gissel Packing Co, 395 U S 575, 613-615 (1969), NLRB V
Keystone Pretzel Bakery, 696 F 2d 257, 263-264 (3d Cir 1982) (en banc),
NLRB Y. Permanent Label Corp, 657 F 2d 512, 518-521 (3d Cir 1981),
cert denied 455 U S 940 (1982), NLRB Y Armcor Industries, 535 F 2d
239, 244 (3d Cir 1976), NLRB Y Garry Mfg Co, 630 F 2d 934, 945-946
(3d Cir 1980), Eastern Steel Co, 253 NLRB 1230, 1240-1241 (1981), enfd
671 F 2d 104 (3d Cir 1982), Daybreak Lodge Nursing & Home, 230
NLRB 800, 804-805 (1977), enfd 585 F 2d 79 (3d Cir 1978), J Coty Mes-
senger Service, 272 NLRB 268 (1984); Marchese Metal, 270 NLRB 293,
300 (1984)
FOOD CART MARKET 1029
Respondents' refusal to honor the Union's bargaining
demand violated Section8(a)(5) and (1) of the Act and
that a bargaining order should issue.
As found above, Respondents' unfair labor practices
included the discriminatory termination of the two em-
ployees who began the union movement and the employ-
ee who probably obtained more signed authorization
cards than any other employee. These terminations had
the effect of destroying the Union's majority. Discharge
is about the most severe penalty that an employer can in-
flict for union activity, and the coercive effect of a con-
sequent sudden loss of income cannot be completely
undone by Board-compelled or judicially compelled rein-
statement months or years later. Accordingly, such ter-
minations constitute "a most flagrant means of dissua-
sion" (Eastern Steel, supra, 671 F.2d at 103), which have
been described as "hallmark violations [which] will sup-
port the issuance of a bargaining order unless some sig-
nificant mitigating circumstances exist" (Horizon Air Serv-
ices, 272 NLRB 243 (1984)). Lambus' discharge for union
activity had a particularly coercive tendency because of
Respondents' eventual decision to use as a pretext there-
for an alleged suspicion of theft, a claim which might
well prejudice a victim's entire career. Martin-Brower
Co., 263 NLRB 194, 230 (1982), enfd. 711 F.2d 420 (D.C.
Cir. 1983). Further, Respondents committed additional
"hallmark" violations by threatening employee Lambus
that anyone having anything to do with the Union
would be fired automatically on the spot, and by threat-
ening employee Grover that if a union meeting had been
held at his house, Respondents were going to get rid of
him and other employees who had attended (Horizon Air
Services, supra); indeed, Grover testified that although
this statement was "maybe at the time .. . out of the
heat," it hung over my head about being fired. In addi-
tion, Respondents unlawfully threatened that if the
Union came in Respondents would cut the employees'
wages and hours (the exact opposite of the employees'
purpose in selecting the Union), and unlawfully interro-
gated Grover, who had held a union meeting at his
house, about who had attended it. The likely impact of
such unfair labor practices was augmented by the fact
that all of them were engaged in by Respondent Joseph
Hoffer himself" and that Respondents had a relatively
small work force of fewer than 30 enlployees.24 Nor
have Respondents made any efforts (so far as the record
shows) to counteract the coercive tendency of their un-
lawful conduct. Even assuming that a Board order will
deter further unlawful conduct, I think it unlikely that
the coercive impact of the unlawful terminations, and of
Respondents' threat to discharge anyone else who en-
gaged in union activity, would be negated by a cease-
and-desist order, reinstatement offers and backpay to the
discriminatees many months after their terminations, and
a notice to the employees that such action was taken and
Respondents will in the future respect employees' organi-
zational rights. Rather, such terminations, Respondents'
23 Eastern Steel, supra, 671 F 2d at 108 (3d Cir 1'982), Daybreak Lodge,
supra, 585 F 2d at 82 (3d Cir 1978), Horizon Air Services, supra, 272
NLRB 243
24 Eastern Steel, supra, 671 F 2d at 108 (3d Cir 1982), J & G Wall
Baking Co, 272 NLRB 1008 fn 3 (1984).
threats of like further reprisals, and Respondents' threat
to cut hours and wages if the Union came in , lead me to
conclude that the damage to the employees' ability to ex-
ercise a free choice has already been done (see Gissel,
supra, 395 U.S. at 612). Accordingly, I conclude that the
possibility of insuring a fair election through the use of
traditional "remedies is slight, and that employee senti-
ment once expressed through cards would be better pro-
tected by a bargaining order than by a cease-and-desist,
reinstatement/backpay, and notice-posting order alone."
Respondents ' bargaining obligation will be dated April
18, 1984, because by that date that Union had achieved
majority status and Respondents had commenced their
unfair labor practices. Justak Bros., supra, 253 NLRB
1054 fn. 3. I find unmeritorious Respondents' contention
that no bargaining order can issue because the evidence
fails to show whether the employees who signed union
cards constituted a majority of Respondents' work force
before April 18, 1984, whereas the complaint alleges that
"From on or about November 11, 1983 to on or about
March 19, 1984, a majority of the [unit] employees . . .
designated and selected the Union as their representative
for the purposes of collective bargaining ."25 Respond-
ents have overlooked the further complaint allegations
that "the Union has been at all times since April 18,
1984, and the Union is now, the [unit] employees' exclu-
sive representative"; and that the Union demanded rec-
ognition on April 18, 1984. Cf. J. & G. Wall Baking Co.,
supra, 272 NLRB 1008.
CONCLUSIONS OF LAW
1. Respondents are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondents constitute
a unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time employees; ex-
cluding guards and supervisors as defined in the
Act.
4. Respondents have violated Section 8 (a)(1) of the Act
by threatening to discharge employees for union activity,
by threatening to cut employees ' wages and hours if the
Union came in, and by interrogating an employee about
union activity.
5. Respondents have violated Section 8 (a)(3) and (1) of
the Act by terminating Winifred Gaines , Barbara
Lambus, and Juanita Cosby.
6. Respondents have violated Section 8(a)(5) and (1) of
the Act by refusing to recognize the Union as the exclu-
sive bargaining representative of the employees in the
unit described in Conclusion of Law 3.
7. The unfair labor practices described in Conclusions
of Law 4, 5, and 6 affect commerce within the meaning
of the Section 2(6) and (7) of the Act.
25 The dates recited in the complaint are the dates on the authorization
cards
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8. Respondents have not violated the Act by creating
the impression of surveillance.
THE REMEDY
Having found that Respondents have engaged in cer-
tain unfair labor practices, I shall recommend that Re-
spondents be required to cease and desist therefrom.
Such unfair labor practices included the discriminatory
termination of the two employees who started the union
movement and of the employee who was most successful
in obtaining signed union cards from her fellow employ-
ees, further included threats to commit unfair labor prac-
tices in the future, and were all committed by Regpond-
ent Joseph Hoffer personally. I conclude that, unless re-
strained, Respondents are likely to engage in continued
and varying efforts in the future to infringe on employee
rights . Accordingly, a broad order is called for. Hickmott
Foods, 242 NLRB 1357 (1979).
Affirmatively, Respondents will be required to offer
the discriminatees immediate reinstatement to the jobs of
which they were unlawfully deprived, or if such jobs no
longer exist, substantially equivalent jobs, without preju-
dice to their seniority and other rights and privileges
previously enjoyed.26 In addition, Respondents will be
required to make these employees whole for any loss of
pay they may have suffered by reason of the discrimina-
tion against them , less net interim earnings , to be com-
puted in the manner prescribed in F W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in Flori-
da Steel Corp., 231 NLRB 651 (1977).27 Also, Respond-
ents will be required to expunge from their files any ref-
erence to the unlawful terminations, and notify the em-
ployees that this has been done and that evidence of such
unlawful actions will not be used as a basis for future
personnel actions against them. Sterling Sugars, 261
NLRB 472 (1982). In addition, Respondents will be re-
quired to bargain with the Union, on request, and to post
appropriate notices. Because some of Respondents' em-
ployees speak Spanish as a native tongue and have limit-
ed ability to read English, notices are to be posted in
Spanish as well as English.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed28
ORDER
Respondents Manuel and Joseph Hoffer, t/a Food
Cart Market, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
28 I do not credit Lambus' disingenuous testimony that she did not
know why Joseph Hoffer had instructed her to leave her pocketbook up
front although other employees were permitted to keep theirs in the meat
room However, she denied having taken meat or canned shrimp from
Respondents without paying for it The evidence adduced by Respond-
ents in support of their contention that she was discharged for suspected
stealing falls far short of warranting the denial of remedial relief from her
for misconduct
27 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
28 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(a) Threatening to discharge employees for union ac-
tivity.
(b) Threatening to cut employees' wages and hours
upon the advent of a union.
(c) Interrogating employees about union activity in a
manner constituting interference, restraint, or coercion.
(d) Laying off or discharging employees, or otherwise
discriminating with regard to employees' hire or tenure
of employment or any term or condition of employment,
to discourage membership in United Food and Commer-
cial Workers United Food and Commercial Workers
International Union Local 1357, or any other labor orga-
nization.
(e) Refusing to recognize and bargain with Local 1357
as the exclusive bargaining representative of the follow-
ing appropriate unit of Respondents' employees:
All full-time and regular part-time employees; ex-
cluding guards and supervisors as defined in the
Act.
(f) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Winifred Gaines, Barbara Lambus, and Juani-
ta Cosby reinstatement to the jobs of which they were
unlawfully deprived or, if such jobs no longer exist, sub-
stantially equivalent jobs, without prejudice to their se-
niority or other rights and privileges previously enjoyed;
and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them, in
the manner set forth in the section of this decision enti-
tled "The Remedy."
(b) Remove from their files any reference to the termi-
nations of Gaines, Lambus, and Cosby, and notify them
in writing that this has been done and that evidence of
these unlawful terminations will not be used as a basis
for future personnel actions against such employees.
(c) On request, recognize and bargain with Local 1357
as the exclusive representative of the employees in the
appropriate unit, and embody in a signed agreement any
agreement reached.
(d) Post at their Philadelphia, Pennsylvania facility,
copies of the attached notice marked "Appendix."
Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondents
have taken to comply.
Paragraphs 5(a) and 6(c) of the complaint are dis-
missed.