Haring Meats & Delicatessen, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 709 (N.L.R.B. 1969)

HARING MEATS & DELICATESSEN, INC. 709
Haring Meats & Delicatessen , Inc. and
Amalgamated Meat Cutters & Butcher Workmen
of N.: A., AFL-CIO, Local 346. Cases 8-CA-5107
and 8-CA-5130
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On February 10, 1969, Trial Examiner Ramey
Donovan issued his Decision in the above-entitled
proceeding,' finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended they be dismissed.
Thereafter, the General Counsel filed limited
exceptions to the Trial Examiner's Decision and a
supporting brief, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the Trial Examiner's findings, conclusions, and
recommendations, to the extent consistent with the
Decision herein.
We find, in agreement with the Trial Examiner,
that the Respondent violated Section 8(a)(1) of the
Act by interrogating its employees concerning their
union activities, giving the impression that the
employees' union activities were under surveillance,
threatening employees with reprisals for supporting
a union, and promising and granting wage increases
if employees abandon union activities.
We find merit in the General Counsel's exceptions
to the Trial Examiner's failure to find that the
illegal temporary layoff of Jere Hill on July 9 was
discriminatorily converted to a permanent layoff on
July 31. In our view, Hill's change in layoff status
from temporary to permanent was a further step in
the Respondent's unlawful campaign to thwart its
employees' organizational efforts.
'This case was consolidated for hearing with Case 8 -RC-7186 which was
thereafter severed and remanded to the Regional Director for further
appropriate action.
The Trial Examiner found, and we agree, that
Hill was temporarily laid off in violation of Section
8(a)(3) on July 9, the day before the parties executed
a consent-election agreement. At that time Hill,
despite his length of service with Respondent and
reputation as a good worker, was not offered
alternative employment but was told that his layoff
was temporary, that business was "down," and that
when business picked up after school started in
September he would be called back. Hill's role in
the Union's campaign was well known to
Respondent, and prior to his layoff he was the direct
object of certain 8(a)(1) conduct. On July 31, 1968,
the day of the election, when Hill appeared at the
polling area to act as the Union's observer,
Respondent informed Hill and the Board agent that
Hill was permanently laid off and no longer an
employee. The Trial Examiner, in dismissing the
8(a)(3) allegation based on this incident, sustained
the Respondent's contention that this discharge was
justified by elimination of the need for Hill's
services. We disagree.
On the basis of the entire record, Respondent's
precipitous action in permanently severing this
known union adherent despite its earlier indications
that Hill would be recalled when business picked up
in the fall, and under conditions where Respondent's
action would render Hill ineligible to vote, can only
be explained as an attempt on Respondent's part to
influence the outcome of the election. Considering
Hill's length of service, his good work record, his
known role in the organizational campaign,
Respondent's failure to offer alternative
employment, the unlawful temporary layoff,
Respondent's union animus, the timing and
conditions under which it terminated Hill, and the
fact that it acted precipitously without deferring any
permanent layoff until it could be determined
whether the school reopening would produce an
increase in volume sufficient to require Hill's
services in the fall, we find that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
Hill on July 31, 1968.
THE REMEDY
In accordance with the above finding, we shall
order that the Respondent offer Jere Hill immediate
and full reinstatement to his former or substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and make
him whole for any loss of earnings he may have
suffered by reason of the discrimination against him,
by payment to him of a sum equal to that which he
normally would have earned from the aforesaid date
of his layoff to the date of the Respondent's offer of
reinstatement, less his net earnings during such
period. The backpay provided herein shall be
computed on the basis of calendar quarters, in
accordance with the method prescribed in F. W.
Woolworth Company, 90 NLRB 289. Interest at the
177 NLRB No. 100
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rate of 6 percent per annum shall be added to such
net backpay and shall be computed in the manner
set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Haring Meats &
Delicatessen, Inc., Mansfield, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified.
1. Change subparagraph (e) of paragraph 1 of the
Trial Examiner's Recommended Order to
subparagraph (f) and insert the following as
subparagraph (e):
"(e) Discharging or otherwise discriminating
against Jere Hill, or any other employee, because of
his interests or sympathies in, or activities on behalf
of, the Amalgamated Meat Cutters & Butcher
Workmen of N. A., AFL-CIO, Local 346, or any
other labor organization."
2. Change subparagraphs (b), (c), and (d) of
paragraph 2 of the Trial Examiner's Recommended
Order to subparagraphs (c), (d), and (e),
respectively, and insert the following as
subparagraphs (a) and (b):
"(a) Offer to Jere Hill immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to his
seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of
earning he may have suffered as a result of the
discrimination against him in the manner set forth
in "The Remedy" provision of this Decision and
Order.
"(b) Notify Jere Hill if presently serving in the
Armed Forces of the United States of his right to
full reinstatement upon application in accordance
with the Selective Service Act and Universal
Military Training and Service Act, as amended,
after his discharge from the Armed Forces."
3. Insert as the third, fourth, and fifth indented
paragraphs in the Appendix attached to the Trial
Examiner's Recommended Order the following three
indented paragraphs:
WE WILL NOT discharge or otherwise
discriminate against Jere Hill, or any other
employee, because of his interests or sympathies
in, or activities on behalf of Amalgamated Meat
Cutters & Butcher Workmen of N. A.,
AFL-CIO, Local 346, or any other labor
organization.
WE WILL offer Jere Hill immediate and full
reinstatement to his former or substantially
equivalent job, without prejudice to his seniority
or other rights and privileges he previously
enjoyed, and WE WILL make Jere Hill whole for
the discrimination against him by payment to him
of any loss of earnings he may have suffered, with
interest thereon at 6 percent per annum.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the
United States of his right to full reinstatement
upon application in accordance with the Selective
Service Act and Universal Military Training and
Service Act, as amended, after his discharge from
the Armed Forces.
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN,'Trial Examiner: The charge in Case
8-CA-5107 was filed on August 2, 1968 by Amalgamated
Meat Cutters & Butcher Workmen of N. A., AFL-CIO,
Local 346, herein the Union. Under date of September 11,
1968, the General Counsel of the National Labor
Relations Board , herein the General Counsel , issued a
complaint against Haring Meats & Delicatessen, Inc.,
herein Respondent or the Company. The complaint
alleged various acts and conduct , including the layoff or
termination of employee Hill, as violations of Section
8(a)(1) and (3) of the Act. On August 21, 1968, the above
Union filed a charge against Respondent which was
designated Case 8-CA-5130. A complaint based on this
charge issued under date of October 3, 1968 alleging
violations of Section 8(a)(1) and (3) of the Act, including
the termination of employee Filipak. In its answers,
Respondent has denied the allegations of unfair labor
practices in the complaints.
Consolidated with the aforementioned unfair labor
practice cases for the purpose of hearing are certain
challenges and objections in an election that was held on
July 31, 1968, among Respondent's employees in Case
8-RC-7186. The challenges relate to the ballots case in the
July 31, 1968, election by Betsch (Curt) Haring, Grogg,
and Hill and the objections are based on the termination
of Hill; the granting of wage increases; and the alleged
threatening of reduction in hours.
The consolidated proceeding was tried at Mansfield,
Ohio on October 29 and 30, 1968, before me, with all
parties represented by counsel.
1. JURISDICTION
Respondent is an Ohio corporation with its principal
office and place of business in Mansfield, Ohio, where it is
engaged in the meat packing business . Annually, in the
course and conduct of its business , goods and materials
valued in excess of $50,000 are purchased, transferred and
delivered to Respondent at its place of business in
Mansfield, either directly from points outside the State or
from enterprises located within the State, and the
aforesaid enterprises had received the said goods and
materials from states other than Ohio.
Respondent is an employer engaged in commerce
within the meaning of the Act.
The Union is a labor organization within the meaning
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent corporation came into being in about 1960
and had been organized by Joseph Haring who was the
sole stockholder. In 1964, the business was purchased by
HARING MEATS & DELICATESSEN, INC. 711
Frank and James Haring, sons of Joseph, with financing
by Joseph Haring . The sons thereupon became the sole
owners of the common stock in equal shares, with the
father being the owner of the preferred stock. Frank
Haring became president of the corporation; Joseph
Haring was vice president; and James Haring was
secretary-treasurer. The foregoing officers also constituted
the Board of Directors. Dan Haring, brother of Joseph
and uncle of Frank and James, also worked for the
corporation, apparently as office manager. At the time of
hearing, Frank Haring was 34 years of age. I would
estimate that James Haring was in the same general age
bracket as his brother, give or take a few years. Curt
Haring , the third son of Joseph Haring , was 22 years of
age and a college student in 1968. As had been the case in
other college vacation periods, Curt Haring had worked
for Respondent in the summer of 1968 as a truckdriver
and in various other manual jobs. He returned to college
in the latter part of August 1968. His ballot is one of
those challenged at the Board election on July 31, 1968.
Further facts relating to this aspect are described at a
later point in this Decision.
Pursuant to a decision to go into the wholesale meat
business exclusively and to abandon its retail meat store,
Respondent moved to a newly acquired plant in April
1968. The new plant was 4 miles distance from the retail
store and the latter was sold in June 1968.
The evidence is sparse concerning the meat cutting
personnel at the store in the period prior to the move to
the new plant in April. Hill was a retail meat cutter and,
according to James Haring, Hill was the "main meat
cutter" in the retail operation. Grogg, who was a more
experienced meat cutter than Hill, appears to have been in
charge of the wholesale aspect of the work although Hill
states that Grogg was also his immediate supervisor. Hill
was transferred to the wholesale operation in April at the
time of the move to the new plant. Beasley, another meat
cutter from the retail store, left the Company about April.
Grogg transferred to the new plant together with Hill.
Kopp, a highly skilled meat cutter with many years of
experience was hired in April 1968 at the new plant.
Several weeks later, Karst, a meat cutter of substantial
skill and experience at least comparable to Kopp, was also
hired at the new plant.
In addition to Grogg, Hill, Kopp, and Karst, who were
the meat cutters at the new plant, there were other
employees who ran hamburger grinding and hamburger
pattie stamping machines. There were some truck drivers
who loaded trucks and delivered orders to customers and
there were employees engaged in sausage operations.'
Early in April 1968, a two-page document signed by
James Haring appeared at the new plant.' Each page was
on a company letterhead and dated April 1, 1968. The
first page bore the opening "To Each Employee." It then
mentioned that another milestone in the business had been
achieved and commended past performance by the
employees and exhorted them to work together as "we
begin operations in this new plant...." The second page
read:
The sausage kitchen had been located about a half mile from the retail
store The sausage operation did not come to the new plant immediately
but it was located at the new plant by June or earlier
'James Haring was in charge of Respondent 's production , maintenance
and personnel Frank Haring was in charge of sales and ordering These
were apparently general areas of normal responsibility but not inflexible
since the record discloses that Frank as president also concerned himself
with the condition of the business, its policies and personnel. However,
Frank had been hospitalized from January 1968 until about July 12, 1968,
Policies At New Plant - Effective April 1, 1968
1. Operations
A. Duane Grogg is Plant Superintendent over all
operations.
II. Working Days
A. All employees are to report to work at 6:30 a.m.
unless otherwise instructed by Duane Grogg.
B. [the workday]
C. [lunch breaks]
D. [punching time clock]
E. [coffee breaks]
III. Sale of Meat to Employees
A.
B.
C.
IV. Absenteeism
A.
Grogg testified that no one had spoken to him
beforehand about the notices. He states that he came in
one morning in April, saw the above documents on the
desk, and he then distributed them to the employees in the
fresh meat department. From the names of those
employees he mentioned as distributees, it appears that all
but the sausage operation received copies from him.
Grogg mentions Such, a truck driver who made in-town
deliveries of Respondents products, as one of the
distributees.' Grogg states that his own duties were the
same after as before the above notices.' James Haring in
his testimony does not refer to the above notices. In
addition to Grogg's limited testimony about the
documents, the record contains no evidence that the
notices were rescinded or changed, verbally or in writing,
or that any other subsequent notices on the subject
appeared.
Continuing chronologically, we come to the end of May
1968 when employee Hill contacted the Union. In 2 or 3
days in the week of June 3, Monday, between about June
4-6, Hill, principally; and with employee Filipak assisting,
secured the signatures of approximately 10 employees on
union authorization cards.
Thereafter certain conversations took place in which
Grogg made various remarks to individual employees on
the subject of the Union. The General Counsel and the
Union contend that Grogg is a supervisor whereas
Respondent contends, in substance, that he is not, but that
he is simply a group leader possessing no supervisory
authority. In addition to Grogg's role in the alleged unfair
labor practices, his ballot at the July 31, 1968, election
was challenged on the ground that he is a supervisor and
is before us as a challenge ballot to be resolved. We
therefore consider the status of Grogg.
Grogg is an experienced and capable meat cutter. He
was first employed by Respondent in 1961, when he was
on layoff from a tire company. After working for
and was out of the business for all practical purposes during that period.
'Elsewhere Grogg and James Haring testified that Grogg was the group
leader in fresh meat department ; that Such was the group leader in
shipping; that Tobin was group leader in sausage operations.
'Hill testified that while employed at the retail store, prior to the move
to the new plant, there had been a notice posted over the telephone stating
that Grogg was in charge . Although Hill was the principal or main retail
meat cutter at the store, he testified that Grogg was his immediate
supervisor both at the store and later at the new plant . He recounts an
incident at the store where Grogg told him that he, Grogg , had forced
three female retail clerks to quit. Grogg considered these individuals to be
incompetent and had brought about their quitting by assigning them tasks
that they disliked.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent until about 1962 he returned to the tire
company and then, in January 1964, he worked for
Respondent until the present . We are concerned with his
status in the period from April through July 1968.
It is obvious that as owners and as officers of the
relatively small business of some 15-17 employees, the
management and ultimate supervisory authority resided in
Frank and James Haring . But the evidence, in our
opinion , reveals that in the immediate day-to-day work
relationship of at least the employees in the fresh meat
operation and the truck drivers, who comprised the unit
employees except for those in sausage work , Grogg was
the immediate supervisor. The April 1 notice, described
above , which Respondent has not even attempted to
explain away , makes it quite apparent that, next to, and
under , the Haring brothers , Grogg was , to the employees,
the man in charge . On July 10, 1968, when Respondent
entered into a consent election agreement with the Union
and with the participation of the Board agent , Respondent
produced a `job description list" of its employees. Prior
to coming to the July 10 meeting , James Haring had
written out the list with the names and job descriptions.
His secretary then typed the list and Haring and his
counsel produced the list on July 10 . Among the names on
the list was:
Duane Grogg, Foreman in charge of fresh meat
production and putting up orders . Cuts meat about 50%
of the time.
The matter of Grogg ' s supervisory status and eligibility of
Grogg to be a voter in the election was discussed at the
July 10 conference. Haring and his counsel went aside and
conferred among themselves . They came back and agreed
to exclude Grogg from the list of eligible voters and
initialed the physical crossing out of Grogg ' s name from
the list.
Cates has been a hamburg grinder for Respondent since
September 1967.' His rate, when hired, was $2.21 per
hour and at the time of hearing he was receiving $2.60.
We consider Cates a credible witness . He was hired by
Frank Haring who told him when he was hired in
September that Grogg was his, Cates ', boss.' Cates
testified that, throughout this period of employment up to
the hearing , Grogg laid out Cates' work and told him
everything he was to do. Grogg would tell him how many
batches of hamburg to grind and would from time to time
tell him to stop work on this or that type of ground meat
and work on another type or to set up a machine. Grogg
would check on Cates ' work during the course of the day.
If Grogg was absent , Cates would go to James Haring for
work assignments . In March 1968, Cates spoke to Grogg
about taking his vacation during the summer , even though
Cates would not have completed until September his year
of employment entitling him to a vacation . Grogg replied
that Cates could take his vacation during the summer as
long as it did not occur on a holiday weekend but told
Cates to speak to James Haring about the vacation pay
aspect . In short, Grogg made the decision to allow Cates
to take his vacation that summer before he had completed
his year but referred Cates to Haring on the matter of
whether he would receive his vacation pay before his year
was up . Cates thereafter spoke to Haring and the latter
said that he could take the vacation that summer as long
as it was not a holiday weekend and that he would receive
his vacation pay even though his year was not completed.
'He worked for Respondent briefly , on a temporary basis, previously.
`The witness was uncertain whether the term used was boss or foreman.
Normal hours at the plant were 6:30 a.m. to 3:45 p.m.
and 6:30 to 12 on Saturday. On one occasion Cates told
Grogg that he would like to leave at 10 a.m. on a
particular Saturday to attend a local festival. Cates said
he was willing to come , in at 6 a . m. instead of 6:30 if he
could leave at 10 a.m. Grogg told Cates that he could
leave at 10 and that he did not have to come in at 6 but
could come in at the regular starting time . On another
occasion, at quitting time, Grogg asked Cates to drop off
a meat order for a customer on Cates' way home. Grogg
told Cates that he would give him 30 minutes time.'
Grogg was, of course , not an executive sitting behind a
desk. He was a working supervisor and he did not make
basic policy. This latter was in the hands of the Harings.
But, on day-to-day matters, with Cates and similar
employees , Grogg was the immediate supervisor. It is
apparent that Grogg was closest to and knew the work
performance of such people as Cates. If Cates was a
careless worker, lazy, reluctant to follow orders or was
otherwise a problem , it is our opinion that Grogg was in
the best position to know it and to report it, and to make
recommendations. Conversely, if an employee was a good,
dedicated worker, Grogg would know it. And, in our
opinion , Grogg did exercise his discretion and judgment in
his responsible directing of employees such as Cates. It is
well to bear in mind that Respondent did not have
hundreds of employees nor was it involved in building
hydroelectric dams or sophisticated machines or some
other operation entailing numerous decisions and
judgments of a complex nature by those individuals in
charge of seeing that the work was performed.
Respondent ' s production operation was cutting meat,
grinding meat, and delivering it; the immediate
supervision and such judgment and direction as the tasks
and the employees required was, in our view, exercised by
Grogg , under the Harings.
Kopp testified credibly that he was hired in April 1968
as a meat cutter by James Haring . The latter interviewed
Kopp in the presence of Grogg. When Kopp described his
experience and qualifications as a meat cutter , Haring
asked Grogg if he was satisfied that Kopp was qualified
and Grogg said , he was . Kopp was thereupon hired and
Haring told him that Grogg was his supervisor . Kopp, a
man of 53, has been cutting meat since he was 17 and he
is a highly skilled meat cutter, requiring little or no
direction in the actual cutting . However , it was Grogg
who showed him, when he first commenced working, what
Respondent' s basic method of meat cutting was.' In
day-to-day work, Grogg writes on a piece of paper the
number and kinds of steaks , roasts, and so forth that he
wants Kopp to cut that day and he gives the paper to
Kopp. The information that Grogg uses to write out these
assignments is obtained from written purchase orders
received in the office or from orders that Grogg may
receive over the telephone from customers . During the
day, Grogg may tell Kopp to stop work on some
particular uncompleted assignment and to work on
another assignment . This happens several times a day. On
an occasion in June 1968, Kopp asked Grogg if he could
leave 30 minutes early to keep an appointment. Grogg
told him that it was all right to do so.
That is, Grogg would credit Cates for 30 minutes additional worktime
for which he would be paid in addition to his regular work.
'It appears that different companies in the business have certain basic
methods of breaking down and cutting meat but thereafter the meatcutting
skills are of general application
HARING MEATS & DELICATESSEN, INC. 713
Hill, a meat cutter, testified credibly that when he came
to work in the morning he would go to Grogg to find out
what work he was to do and Grogg would lay out his
work for him. During the course of the day, Grogg would
take Hill off one order and assign him to another. If,
during the course of his work, Hill trimmed a steak too
closely or left too much meat on a bone, Grogg would
speak to him about it and say that he did not want the
meat cut that way and that it was costing him money.'
Hill wanted to take a week of his vacation in the last
week of July. He spoke to Grogg about it. It appears that
another employee had planned on the same week. Hill
spoke to the other employee who was Cates and the latter,
in effect, relinquished the last week in July. Hill came
back to Grogg and the latter said that if it was all right
with Cates it was all right with Grogg for Hill to have the
July week.
Filipak was hired in July 1967 by Frank Haring. We
credit his testimony that Haring introduced him to Grogg,
saying that Grogg would be his immediate supervisor and
when Filipak came to work he reported to Grogg. In June
1968, Filipak asked Grogg if he could be off work on a
Wednesday to attend a funeral . Grogg asked if he would
be out the entire day. The employee said he did not know.
Grogg told him to come back to work on Wednesday if
the funeral finished in time . Filipak was absent the entire
day of the funeral and returned to work the next day
without further comment. Filipak was a truckdriver who
made out-of-town deliveries for Respondent on a daily
basis . He would report to Grogg in the morning and the
latter would hand him invoices or tell him where they
were. Filipak would load his truck and tell Grogg when he
was ready to leave. Frequently, Grogg would tell Filipak
the order in which the deliveries were to be made and
Filipak would act accordingly even when the order of
delivery entailed backtracking on the route or delivering in
other than in geographical sequence according to the
customers' locations.
Grogg punches a timeclock, cuts meat, assigns work,
sees to it that orders are filled and placed on trucks for
delivery. During president Frank Haring 's hospitalization
from January to the middle of July 1968, Grogg also
performed much of Haring 's work in buying meat and
selling to customers on the telephone, in addition to
Grogg' s usual duties . Grogg's hourly rate is $3.36 per
hour which is higher than all other production employees
except Karst, a highly skilled meat cutter, who receives
$3.50. However, in 1967, Grogg also received a bonus of
$1,200 computed as a definite percentage of Respondent's
profits. No other employee received a comparable bonus
and while other employees did receive bonuses in various
amounts, the bonuses were not computed on a percentage
of the profits. The bonus for other employees was an
arbitrary figure determined by what the Harings thought
the particular employee deserved. On a list of production
and maintenance employees produced by Respondent to
show wages and pay increases, the next highest bonus to
Grogg was $200, received by employee Hill.'° Grogg also
receives fringe benefits greater than other employees. He
receives $10,000 of life insurance coverage which no others
receive; he has sick pay coverage of $100 per week
whereas other employees receive sick pay based on a
percentage of pay, with a maximum of $60 per week."
'As we shall see , Grogg, in addition to his wages, received a percentage
of Respondent ' s profits.
"In his testimony, James Haring opined , without much certainty, that an
outside salesman , DeCarlo, who was not in the production and
James Haring testified that Grogg neither has, nor
exercises, authority on hiring, firing, promoting, pay
raises, promotions or vacations and that Grogg was "not
in a position to recommend." Grogg testified to the same
effect including the assertion that he also did not grant
time off to employees. According to these witnesses,
Grogg was one of three group leaders, the others being
Such in shipping and Tobin in sausage . The evidence
shows nothing regarding Tobin and his duties. However,
Such was Respondent's in-town truck driver. The other
two drivers were Gleason and Filipak, the out-of-town
drivers. Such was hired in a permanent basis in January
1968. Respondent has revealed nothing concerning his
pay. Grogg, who distributed the April 1, 1968, notice,
above described, wherein Respondent informed all
employees that Grogg was "Superintendent over all
operations", testified that he gave the notices only to
those in his department. He testified that he gave one to
Such.'2 In the job description list that Respondent
prepared and presented on July 10, 1968 in the
pre-election conference, Such's job and duties are
described as, "Puts up orders and delivers them." On the
same list , Grogg's job is described as "Foreman .
Such was admittedly out delivering orders much of the
time and there is no evidence that he functioned as a
group leader in any respect, in or out of the plant. Grogg,
however, admittedly saw to the cutting of meat, filling of
orders, loading of trucks and delivery. As both Hill and
Filipak testified, Grogg gave the drivers instructions
regarding the order of delivery to the various customers.
As far as appears no employee ever heard the term group
leader used in the plant and Respondent never used the
term orally or in writing." I conclude that Grogg was a
working supervisor and that his immediate and ultimate
superiors were the owners and officers of the corporation,
James and Frank Haring , who, of course, constituted the
ultimate management.
We now return to the union activity among
Respondent's employees. As we have seen , early in the
week of June 3, 1968, a substantial number of employees
signed union cards.
In the above week, a few days after Cates has signed a
card, Grogg told Cates during working hours to step out
in the hall at the plant and that Grogg wanted to talk to
him. In the hall, Grogg asked Cates if anyone had
brought a union card to him for signature. Cates said, yes.
Grogg asked if he had signed. Again affirmative. Grogg,
then, "really blew up." He said the Union would never get
in the plant because it would run into him first; that if a
union came in, Grogg would make it so tough on Cates
that he would quit; that there would be no coffee breaks;
that the vending machine would be removed; that you will
get your vacation when "I", Grogg, want you to have it;
that you will have the day off that "I", Grogg, want you
to have and that Grogg might give him Wednesday as his
maintenance unit, might have received a bonus of $600.
"DeCarlo, abovementioned , receives the same insurance and sick pay
coverage as Grogg Respondent , in its brief, endeavors to attribute the
greater fringe benefits of Grogg and DeCarlo to length of service. The sole
evidence of DeCarlo 's length of service is James Haring ' s testimony that
DeCarlo has been with the Company "over 3 years." Employee Hill who
received no such benefits , however, had been with the Company since June
1964 or 4 years Except for temporary employment in 1961, Grogg's
employment dates from June 1964.
"There is not a word about group leaders in the notice.
"James Haring testified that he did not know when he first heard the
term , group leader, used, whether in conference with his attorney or
otherwise
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day off and have him work all Saturday.' °
Kopp, who had also signed a union card at the same
time as Cates, received substantially the same treatment
from Grogg as had Cates, a few days after the signing.
Kopp was working in the cutting room when Grogg called
him to the shipping room about 100 feet away."
In the same week , Hill was subjected to substantially
the same treatment by Grogg, of interrogation and
threats, as had Cates and Kopp. When Hill admitted
having signed a union card , Grogg said that he would
make Hill's job so miserable for him that he would quit
and Grogg said he would cut Hill ' s hours to 40 a week.
Grogg also asked Hill why he had signed a union card.
Hill said that it was because he was not making enough
money in comparison to the union scale . Grogg asked him
what he thought he was worth . Hill, who was earning
$2.45, said, about $3.00 per hour . Grogg said , " Well, I'll
talk to Jim Haring about it and we'll see what we can do
if you will agree , if you will just forget this union deal."
This conversation was about June 5-7, 1968, and , effective
June 17 , Hill received a 30-cent pay increase from $2.45
to $2.75."
In the same week as all the foregoing Grogg contacts
with employees , Grogg took Filipak aside in the plant and
asked him if he had signed a union card . Although Filipak
had signed a card, he denied it to Grogg . The latter said
he did not think a union would be good in the plant. The
next day, when Filipak came to work , Grogg immediately
accosted him, calling him a liar and stating that he had
signed a card . Filipak admitted that he had signed. Grogg
said that if you think a union is going to get in here, you
will run into me and that Grogg would make things so
rough that Filipak would quit . Grogg told the employee
that he could discharge him and that he might do that. A
few days later Grogg again spoke to Filipak , saying that
he knew who was pushing the Union and referred to the
latter as "Jere Hill's and your [Filipak ' s] union ." He said
that , if or when the Union got in , the Company" will pay
the union scale but the employees would never get more
than 40 hours work.'"
Hazel Siwek , who ran a hamburg pattie machine,
signed a union card on June 6. A week or two after this,
Grogg came over to her as she was working and asked if
she had heard anything about a union coming into the
plant. She said , no. Grogg asked if anyone had brought
union cards around for her to sign . She said, no. Grogg
left and returned in a few minutes . He again asked her
about union cards and she again denied seeing any. Grogg
said that he thought she was not telling the truth and that
"Cates and the other employees , who testified concerning Grogg's
statements to them regarding the Union and what Grogg would do,
impressed me as honest witnesses not given to exaggeration or
embroidering of testimony.
"This ordering about of employees and their obedience is also relevant
with respect to Grogg's supervisory status. Grogg questioned Kopp about
the Union and signing a card as he had questioned Cates . Kopp admitted
signing but refused to tell, although asked , who had given him the card
Grogg said that , if "you fellows" get the Union in, you will be sorry,
because Grogg would make things so rough on you that you will regret
having joined the Union.
"In his 4 years of employment by Respondent, Hill had received a large
number of pay increases but the June 17 increase of 30 cents was the
largest he had ever received. In the list of employee pay raises produced by
Respondent at the hearing , no employee on the list received a raise
equaling Hill's and there is no testimony that anyone received a raise of
equal amount in 1968
"Grogg said "we."
"As earlier appears, the employees worked more than 40 hours , Monday
through Friday and 6 30 a . m to 12 on Saturdays.
she did know who was passing out cards. Siwek again
denied it. The next morning she went to Grogg, admitted
having lied to him and said that she had signed a card. He
asked why she had lied and she said that she did not want
to jeopardize anyone's job. Grogg said that he knew who
was for the Union and who was signing cards. A week or
two before the July 31 election, Siwek was in the shipping
room and she asked Grogg if he knew where she could
find a skid, a piece of equipment relating to her work.
Grogg said, no, and added, that if Siwek thought it was
rough now, she should see what it was when the Union
got in because he would make it so rough she would want
to quit and she would not be the only one. On Monday,
June 17, 1968, Grogg told Siwek that James Haring had
said that, if Siwek was not in favor of the Union, she
would receive a raise in pay effective that morning. Siwek
said that she was undecided and Grogg said that it was all
right. Siwek did receive a 20-cent-per-hour increase,
effective Monday, June 17. This was the largest raise she
had ever received since she was hired in April 1967. The
June 17 raise is not only noteworthy as to Siwek because
it was double any of her previous raises but because she
had received a raise in May 1968, and a previous raise in
January 1968. There is nothing in the record regarding
increased responsibility or greater productivity on Siwek's
part to explain the third raise in 6 months and the fact
that the employee had received a raise in May, just
shortly before June 17 raise. On July 31, the day before
the election, Frank Haring asked Grogg if he could spare
Siwek for 10 minutes. Grogg said, yes, and Haring then
had a private conversation with Siwek. Haring reminded
Siwek of the consideration shown to her in the past by
Respondent and Siwek acknowledged that such was the
fact. Haring then asked her to "give this matter
consideration, about the union" and she said she would.
In the same conversation, the subject of employee Hill
arose but Siwek did not recall just how this aspect first
came up. However, she did testify that Haring said that
Hill "should have been fired a long time ago."
As we have seen , in the week of June 3, 1965, about 10
employees had signed union cards. We have also seen
Grogg's interrogations , threats, and awareness of the
union activity. At the end of the week, on Saturday, June
8, as Hill, Cates, and Kopp were punching out from work,
James Haring told them that he would like to speak with
them and the three men acceded to the request. A careful
consideration of the testimony of Cates, Kopp, and Hill,
as to what transpired at this meeting, leads me to the
following synthesis of the credited testimony.=" Haring said
that he had had a great deal on his mind with his brother
hospitalized and with the new plant and that he had not
realized there was this trouble with respect to the
employees and the Union. He said that he would like to
"Siwek responded that Hill should have been fired when they were in the
retail store in the period prior to the move to the new plant in April 1968
Siwek said, however, that since moving to the new plant Hill had
"straightened up" Haring made no comment . At the hearing, Siwek stated
that while they were in the retail store , Hill used to be late for work but as
far as she knew Hill was never late in the new plant and she worked in the
same department, fresh meat . In the store, according to Siwek, Hill once
came in wearing a beard and Haring had made him shave it off.
"Although James Haring testified at the hearing, he gave no specific
testimony about the meeting or what he had said to the employees on that
occasion . His reference to the meeting , in his testimony, was that Cates
told him " in our little meeting , that he definitely was in favor of the
Union." Grogg, who was standing in the doorway throughout practically
the entire meeting , gave no testimony about what transpired.
HARING MEATS & DELICATESSEN, INC. 715
work something out and said that because it was a small
company he believed that, if it was necessary to have a
union, it would be better to have a company union but
that if the employees in an election voted for the
international union he would go along with the result of
the election. Haring asked if there were any questions and
Cates spoke up and told Haring what Grogg had said to
him about the Union. Cates said that he, Cates, favored a
union but that, if he had any doubts, Grogg's treatment of
him regarding the Union confirmed him in his belief that
he should support the Union. Grogg was standing in the
doorway during Cates' remarks. Grogg said nothing at the
time and Haring said nothing other than as described
above. Cates and Kopp left and Hill started to leave and
as he was leaving Grogg accused him of having instigated
the whole union matter and that he was pushing people
into signing union cards. Hill admitted talking to people
about the advantages of a union but denied twisting
anyone's arm to sign a card.
In concluding that the above accurately reflects what
transpired, I have been aware that in cross-examining
Cates, Hill, and Kopp, Respondent's counsel asked each
witness , inter alia, whether it was not true that, after
Cates had spoken about Grogg at the meeting, Haring
had said that Grogg did not make policy "around here."
Cates answered that he did not remember Haring making
such a statement. The same question was addressed to
Hill by Respondent's Counsel and Hill said that he did
not remember Haring making such a remark. When the
same question was put to Kopp, the latter said that
Haring said something "to that extent" since Haring said
that if the employees voted a union in "that he would go
along with it."
As I appraised the witnesses and the entire testimony,
described in the second preceding paragraph above, we are
satisfied that Haring did not say anything about, or to,
Grogg at the meeting. Confirmation of this conclusion is
to be found in the fact that neither Haring nor Grogg
testified that Haring had said anything about Grogg, let
alone saying that Haring had told the men that Grogg did
not make policy.
I do not consider that Haring's remarks to three
employees on June 8 obliterates or repudiates the strong
antiunion interrogations, threats, and promises made by
Grogg to various employees both before and after June 8.
For one thing, Haring's remarks were made to only three
employees and the record reveals that at least two other
employees, Filipak and Siwek, had also been recipients of
the Grogg antiunion treatment. On June 8, or before or
after, Respondent issued no statement or repudiation of
Grogg's conduct to the employees in the production and
maintenance unit, either orally or in writing.
The most that can be said is that as to three employees,
Haring had stated that he favored a company union but
that he would abide by the result of a Board election, i.e.,
he would recognize an affiliated union if it won the
election. Such a statement was, of course, quite legal, but
our interest in it is with regard to Respondent's contention
that Haring thereby repudiated all Grogg's antiunion
activities and absolved Respondent from all responsibility
for such conduct. In our opinion, Haring did no more
than to tell three employees that Respondent, as it was
legally required to do, would recognize the Union if it
won an election. We are prepared to conclude that, as to
the three employees present , this statement neutralized or
repudiated Grogg's remarks to the extent that, in
substance, he, Grogg, had said that he would stand in the
way of a union ever getting into the plant. But the
principal thrust of Grogg's threats to various employees
had been that if the Union got into the plant, (presumably
by winning an election), Grogg would make working
conditions so rough on the union adherents that they
would quit; he threatened to reduce hours and eliminate
overtime; to alter, to the detriment of individuals, the
allocation of days' off and vacations; and he promised
wage increases to several employees if they abandoned the
Union. Since, at the meeting on June 8, Haring was aware
of the type of conduct that had been engaged in by Grogg,
Haring's statement that he would go along with the
election and recognize the Union if it won, was not
enough to insulate Respondent from responsibility for
Grogg's conduct. In our view insulation from Grogg's
conduct required at least a statement to all employees by
Haring that, in addition to recognizing the Union if it won
an election, there would be no reprisals or harassing of
employees for union adherence and that Grogg would not
do the various things he had threatened when the Union
was recognized and was in the plant and that existing
conditions of work would not be changed by Grogg to the
detriment of employees as a reprisal for union adherence.
Further, the insulation contention, to be effective, would
require, in our view, evidence that Haring had specifically
told Grogg to cease his conduct and not to carry out his
threats and evidence that such an order from Haring to
Grogg was brought to the attention of all employees by a
notice or otherwise. Grogg's conduct and threats, we must
recognize, were about as heavy handed and pervasive as
can be found in an antiunion campaign and required
reasonably related steps before any contention of
insulation or repudiation is convincing."
Regarding pay increases given to production employees
on June 17, 1968, Respondent in its brief states that "such
raises were uniform to all employees in the hamburg unit
and sausage kitchen ...."Zr James Haring testified that
over a period of years Respondent had given raises to
individual employees based on their merit, efficiency, and
integrity. He also said that groups of employees received a
raise in February 1968. This last statement we find
unconvincing. On the list of employees produced by
Respondent showing raises from June 1964 to, and
including, June 1968, there are no group raises shown; i.e.,
raises to a group in the same month. The raises on the list
were obviously granted on an individual basis to
employees at various times. As to a group raise on
February 1968, there is no evidence to show this. In fact,
on Respondent's list the only employee who received a
raise in February 1968 was Filipak.
Respondent points to the fact that the June 17 raises
were given to employees in the sausage kitchen and to
meat cutter Betsch, all of whom Respondent admittedly
"We are persuaded , for reasons previously stated, and we have found,
that Haring did not say that Grogg does not make policy Even if the
remark had been made, the remark , by its words, related to such policy as
recognizing or not recognizing the Union if it won an election or other
matters at a policy level, such as buying meat by the carload rather than
small lots and such things. The small (but important to employees) nitty
gritty of the day-to-day work relationship between the employees and their
immediate supervisor, Grogg , which was the area of Grogg 's threats, would
not be covered by a statement that Grogg does not make policy, even if
such a statement had been made.
"The evidence also shows that Hill , who was neither in hamburg or
sausage, received the largest raise on June 17 that he had received in 4
years of employment. Betsch , a skilled meat cutter, also received a raise on
June 17.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew were opposed to the Union. Respondent then states
that since raises were also given to employees who favored
the Union, this demonstrates that the raises were uniform.
The observation may be correct but uniformity has no
significance in the circumstances of this case. There is no
evidence, indeed no contention, that each or any of the
recipients of the June 17 raises had shown any increase in
productivity or efficiency or that they had assumed or
were given additional work responsibilities, so that they
merited wage increases on June 17. Nor, as we have seen,
is there evidence that Respondent had previously granted
general increases to all employees or groups of employees
at the one time. Of course Respondent had granted
individual increases in the past at various times but there
is no evidence as to any legitimate or normal reason for
the group increases on June 17. The inference is
compelling that the increases of June 17 were granted to
thwart the Union and to affect the election. As we have
seen, as early as the week of June 3, a few days after
employees had signed union cards, Respondent was aware
of the fact. The raises were quite apparently part of an
antiunion campaign and this is a matter of legitimate
inference from the timing and other circumstances of the
increases. There is, as we have seen, direct evidence of
employees, who had told Grogg that they had signed
union cards, being told by Grogg, in substance, that he
would speak to Haring about a raise for them if they
would forget about the Union. In each instance, each
employee aforementioned, Hill and Siwek, shortly
thereafter received the largest raise each had ever received
from Respondent. It is therefore clear why the raises were
given. The message of the raises to each recipient was also
that Respondent was taking care of its employees and a
union was not needed to secure wage increases. This
would confirm those employees who were opposed to the
Union in their opposition to the Union. Moreover, since
Respondent was granting increases to prounion people to
wean them away from the Union in the impending
election, it could not very well omit the antiunion people
except at the risk of alienating them and thrusting them in
the union's direction.
On the evidence and findings heretofore set forth I find
that Respondent has violated Section 8(a)(1) of the Act by
coercive interrogation of its employees regarding protected
union activities such as the signing of union cards; by
creating an impression of surveillance by picking out and
questioning and threatening, regarding their union
activities, the exact employees who had, a day or so
before signed union cards, and by telling employees, who
had in fact signed union cards but who denied the fact to
supervisor Grogg, that they were liars - all this creating
the impression that through some means of surveillance,
possibly including an informer or other means,
Respondent was aware of the union activities that had
taken place among the employees outside the plant and
supposedly without Respondent's knowledge; by
threatening its employees with economic and other
detriment regarding working conditions, including fewer
hours of work, an unaccommodating method of
scheduling vacations and days or time off, and the making
of conditions of work so intolerable that employees would
be forced to quit; by promising to grant and granting
wage increases to employees in an effort to forestall or
defeat the Union in its effort to organize and to secure
collective bargaining rights with Respondent on behalf of
the employees.
The Discharges
Hill had worked for Respondent since June 1964.
During his first 2 years of employment Hill was a
truckdriver delivering meat orders to Respondent's
customers. Thereafter he was a retail meat cutter at
Respondent's store." Prior to Respondent's move to its
new plant, in April 1968, Hill had been Respondent's
principal or head retail meat cutter. When the new plant
was opened, Hill and Grogg were the only two employees
with meat cutting skill who had moved to and remained
at, the new operation." The new plant, being in the
wholesale business, entailed wholesale meat cutting.
Almost immediately after the move to the new plant, two
highly skilled and experienced meat cutters, Kopp and
Karst, were hired. Respondent's complement of meat
cutters therefore consisted of Kopp, Karst, and Grogg, the
latter being, as we have found, a working foreman or
working supervisor, and Hill." The first three men,
aforenamed, were all highly skilled and experienced
wholesale meat cutters. Hill was the least skilled and least
experienced at wholesale meat cutting, having been, as we
have seen, a retail meat cutter prior to coming to the new
plant.
There is no dispute that retail and wholesale meat
cutting involve differences in cutting the meat and, on the
evidence before him, I find that the wholesale cutting
entails greater skill and experience. It is also found that
Kopp, Karst, and Grogg were more experienced and more
skillful meat cutters than Hill. Kopp and Karst, for
instance, had worked at the trade for many years and
Grogg's experience and skill is not disputed. In the new
plant, therefore, Hill's principal work was cutting down
the quarters (e.g. hindquarters of beef). He also cut
portions of butt steak, rolled roasts, and sliced liver, but
the more sophisticated cutting, after the quarters were
broken down by Hill, was performed by the others
aforementioned. Occasionally, in this period, when the
need arose, Hill also drove a truck for Respondent
although this was not his regular job.
None of Respondent's witnesses, Frank and James
Haring and Grogg, testified that Hill was an
unsatisfactory employee and in point of service with
Respondent, Hill had substantially more service than
Kopp or Karst.=b The aforementioned list of employees,
showing dates of hires and wage increases, records eight
wage increases for Hill, the last being a 30-cent increase
in June 1968. According to the list, Hill had received
more wage increases than any other employee on the list.
James Haring testified that he did not know of any
employee that had received as many increases but he said
"I don't know that there are not [some employees who
received as many increases] or that there is not a person
that got that many." In any event, there is no evidence of
any employee who had received as many increases as Hill.
"Hill had had about 2 years of meat cutting work in the past but he had
worked for an electronics firm in the period immediately prior to being
hired by Respondent in 1964.
'Grogg had initially cut retail meat at the store But since 1965 he had
principally cut wholesale meat in addition to other duties previously
described.
"Betsch, a skilled meat cutter , who was employed elsewhere, had a
regular part-time job with Respondent , working Saturdays for about 2
years, performing boning work.
"On the list of employees in the fresh meat department that Respondent
produced at the hearing , no employee except Betsch, the part-time worker,
had been with Respondent as long as Hill Both men were hired in June
1964 The next most senior employees in the department had been hired by
HARING MEATS & DELICATESSEN , INC. 717
We have seen that Hill was the leader in the union
movement among the employees . Grogg interrogated him
about signing a union card during the week of June 3,
1968, and threatened to force him to quit by making his
job miserable . Grogg , when told by Hill that he had
signed a union card because of dissatisfaction with his
wages , promised to talk to James Haring about a raise for
Hill if Hill would forget about the Union . At the end of
the June 8 meeting in James Haring ' s office, Grogg
accused Hill of being the instigator of the union
movement and the one who was pushing employees into
signing union cards . Hill admitted that he spoke to
employees about the advantages of a union but denied
pressuring anyone . On another occasion , when Grogg was
speaking to employee Filipak , who had helped Hill secure
signatures on some of the union cards , Grogg referred to
the Union as Hill 's and Filipak ' s union movement among
the employees . Thereafter, at some date between Grogg's
conversation with Hill about a raise , above , and the time
in June when Hill received a 30-cent raise, Hill
encountered James Haring in the ice room of the plant. In
the course of the conversation , Haring told Hill that he
was planning on giving him a raise and that not too far in
the future , when the new plant was better established, he
planned to move Grogg up to the shipping office and
make Hill foreman in the backroom.l7
On Tuesday, July 9, 1968, Hill had finished his day's
work and had just punched out. James Haring at that
point asked him to step into his office . Haring then told
Hill that business was down and it was necessary to lay
off one of the meatcutters . Haring said that Hill was the
man being laid off but that , when business picked up after
school started in September , he would be called back. Hill
was upset , pointing out his years of service compared with
the 2 and 3 months of service of Kopp and Karst. Haring
admitted this fact but said that the other men were better
meat cutters and more valuable to the Company. Hill
acknowledged the superior ability of the other men which
he attributed to their 30 years of experience in the trade.
Hill was thereupon laid off . James Haring in his
testimony states that on July 9 the layoff of Hill was
temporary and that he told Hill that the reason for the
layoff was that business was "down."
On July 10, at a conference attended by a Board agent,
James Haring and his attorney and the Union
representative , who was accompanied by Hill, an
agreement was reached for a consent election to be held
on July 31 . It is apparent that this tripartite conference
and its subject matter had been arranged beforehand and
did not just happen on July 10 . Prior to the conference
and in preparation therefor , Haring had written out and
had his secretary type a list of employees in the unit with
attendant job descriptions, and this list was used at the
conference in discussing and agreeing about voter
eligibility or ineligibility. I conclude therefore that the
prospect of or possibility of an election was known to
Haring on July 9, when he laid off Hill at the end of that
day. As a matter of fact on June 8, when Haring had
discussed with Hill and other employees the matter of the
union organizing activities, Haring had spoken of an
election.
On July 31 , the election was scheduled for the hours
3:15 p.m . to 4 p . m., in the plant . Hill who was to be the
union ' s observer at the election , came to the plant between
3 and 3 : 15 p.m. When Hill came to the election area,
Haring was talking with the Board agent . Haring turned
to Hill and said that the Company was not making any
money on steaks and it did not need Hill as a meatcutter.
A short conference was then held between the Board
agent, Hill, and the union representative, and another
employee was appointed as union observer for the election
in view of Haring ' s statement that , in effect , Hill was
permanently laid off and was no longer an employee.
Shortly thereafter , when Hill came in to vote , he voted
under challenge and the Board agent wrote on the
challenged ballot envelope "permanent layoff." Hill
testified that this was the first indication he had had
between July 9 and 31 that his temporary layoff had been
converted to a permanent layoff . The foregoing version by
Hill of the events of July 31 is the sole testimony in the
record regarding this incident.
Without controverting the foregoing description of
when and how it first appeared that Hill's temporary
layoff had been actually converted into a permanent
layoff, Frank and James Haring testified that the reason
Hill was permanently laid off and terminated was as
follows: Both before the move to the new plant in April
1968 and thereafter , it was the Respondent' s practice to
purchase quarters of meat , such as hindquarters. The
quarters would be broken down , cut down , into primal
cuts. This cutting down of the quarters was the principal
task of Hill at the new wholesale plant . A quarter would
yield seven primal cuts and the latter , according to type,
would yield different products , such as various steaks or
roasts and so forth . Kopp and Karst were the meat cutters
who worked on the primal cuts . They cut whatever type or
character of portions were ordered by a customer , such as
a hotel, that might order a certain kind and number of
steaks of a certain thickness . Hill did not possess the skill
and experience for the portion cutting of the primal cuts
although occasionally , in an emergency , he had helped out
on portion cutting.28
According to the testimony of Frank and James
Haring , the Respondent had been losing money on its
sales . As Respondent states it in its brief, ". . over a
period of time the records of Haring meats reflected that
the Corporation was not making its percentage margin of
profit and, in fact , was loosing money." As we have seen,
president Frank Haring, who normally handled the buying
of meat for the Company, was hospitalized and was out of
the business from January to about July 12 , 1968.29 He
testified that when he came back and resumed his duties
he and his brother saw that they had been losing money
and concluded that the weakness was in the buying of
meat by quarters. Both Harings testified on this aspect
and it comes down to this : When Respondent purchased
quarters from a supplier it was , of course , at a particular
price. Thereafter, after Respondent cut the quarters into
primal cuts , it found that fluctuations in the market price
of the various primal cuts were of such an extent , that it
was extremely difficult to determine whether the prices
charged to customers for the portions cut from the various
Respondent in 1967.
"This testimony is not controverted . In fact , virtually all Hill's testimony
about the union topic , involving himself and Grogg and/or James Haring
is uncontroverted except for Grogg ' s testimony that he had no
conversations with Hill regarding the Union and that he never questioned
Hill on the matter of union cards . I have found this testimony of Grogg to
be unconvincing.
"Frank Haring testified that retail and wholesale pnmal cuts are
completely different and entail different cutting . James Haring testified
that Kopp and Karst were master meat cutters and that he would classify
Hill as an apprentice meatcutter We have seen the substantially higher
wage rate of Karst and Kopp as compared to Hill although they had
worked for Respondent only a few months as compared to Hill's 4 years.
"During this period Grogg was taking care of the purchasing.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
primal cuts were correct in order to insure the desired
profit margin from the entire quarter of meat.3° Prior to
July, Respondent, although principally purchasing
quarters, had bought a few primal cuts directly but was
never able to secure a satisfactory source of supply. It was
found, for instance, that most packers would not sell
primal cuts at what Respondent considered a reasonable
price. Respondent had experimented with buying primal
cuts directly from Chicago packers but found that the
time entailed in securing delivery was too great.
Shortly before Frank Haring returned from the
hospital, Akron Packing in Akron, Ohio, that had
previously sold meat by the quarter, began selling primal
cuts. Respondent bought a few of these cuts from the
Akron Company and after Frank Haring returned to the
plant and looked into the state of Respondent' s business,
aforedescribed, it was decided to shift substantially to
buying primal cuts from Akron Packing and thus rectify
the poor profit situation that Respondent attributed to its
prior quarter purchasing. After Hill was laid off on July
9, and up to July 31, James Haring testified that the
purchase of primal cuts increased 60 to 70 percent.
Respondent states, that although it still purchases some
quarters, it had largely shifted its purchases into primal
cuts. The cutting of quarters now entailed, according to
the Harings, which is the type of work in which
Respondent considered Hill to be principally qualified,
would require no more than a half or I day's work per
week by a meat cutter with Hill's qualifications. This and
the more skilled work on the primal cuts is handled by
Kopp and Karst with some assistance from Grogg.
Respondent has hired no meat cutters since Hill's
termination but did hire a truckdriver in September 1968.
I have considered Respondent's entire explanation,
aforedescribed, in the light of the entire record. Various
questions and observations have occurred to us. We also
are aware that no books and records were introduced to
support statements regarding the business and the kind
and type of purchases. But the Harings stated that their
books and records supported their testimony. Neither the
General Counsel nor the Union subpoenaed such records
or asked Respondent to produce them. Because of
evidence before him I have not credited Respondent's
witnesses on various aspects of the case but we perceive
no valid or substantial reason why we should not credit
the testimony of the Harings regarding the business
conditions aforedescribed. There is insufficient evidence to
warrant rejection of that testimony. We therefore credit
the testimony since it is not inherently or otherwise
implausible or unconvincing.
The evidence persuades me, however, that the
admittedly temporary layoff of Hill on July 9 and the
conversion of the layoff to a permanent layoff and
termination , on July 31 , are distinguishable in an
important respect. I believe that the termination on July
31 was, as Respondent contends, for the reasons described
above, namely, a substantial change in the type of meat
purchased. More specifically, the purchase of primal cuts
in preference to quarters, as was the predominant past
practice, was due to business reasons. This change in
purchasing between the period after July 9 and including
"Part of the problem was the customers' buying pattern. When a
customer ordered 100 sirloin butts, this required 100 hindquarters as the
source, and after cutting out the primal cuts of the aforementioned butts
Respondent might have an overstock and possible spoilage as to other
parts of the 100 quarters that had been used
July 31 led Respondent to make a final decision to
terminate Hill on July 31 and it did so on that date.
Whatever suspicion may exist, the evidence, in our
opinion, is such that we accept the fact that the change in
purchasing and Hill's comparatively limited skill as a
meat cutter on other than quarters, led to his July 31
termination.
But the change in purchasing from quarters to primal
cuts, as far as the record shows, was not the reason for
Hill's July 9 layoff. The decision that the problem of, and
the solution of, Respondent's profit picture lay in
changing from the purchase of quarters to primal cuts was
made after July 9 and after Frank Haring returned from
the hospital on July 12. Between that time and July 31 the
purchase of primal cuts was substantially increased until
the new type of purchasing had been sufficiently tested so
that, by July 31, Respondent reached a decision to
terminate Hill, and did announce the action and did
terminate him on that date. This reason for termination,
being the change in the type or form of purchases, had
nothing to do with the existing volume of sales to
customers. The new method or type of purchase simply
increased the profit margin on sales.
The July 9 layoff of Hill was due, so Haring told Hill
at the time, to the fact that business was slow and that,
when business picked up after the schools started up in
September, he would be recalled. Haring also told Hill on
that occasion that a "couple" of other employees would
also be laid off presumably for the same reason. The
foregoing, in our opinion, demonstrates that Hill was told,
in effect, that the volume of business was down, due
apparently from what Haring said, to the fact that the
schools were closed and that when the schools reopened in
September and volume increased, he would be recalled.
The complaint alleges that Respondent laid off,
discharged or otherwise terminated Hill on July 9 because
of his union activities. As the Examiner views the record,
the critical element is not whether it was a temporary
layoff on July 9, or a permanent layoff or termination, as
the General Counsel contends in his brief." What I must
resolve is whether or not the layoff on July 9 was due to
legitimate reasons or whether it was due to Hill's union
activities.
In resolving the foregoing, I have found no convincing
legitimate explanation for the July 9 layoff of Hill. We
have Hill's testimony abovedescribed as to what Haring
told him when he was laid off and we have Haring's
testimony that he told Hill at the time that the layoff was
temporary because business was down." Hill, of course,
could testify only as to what he was told. He could not
and did not attempt to testify as to the reason why he was
told certain things . But Haring was obviously in a position
to inform us why he laid off Hill on July 9 and why, what
he told Hill, was in fact the true reason for the layoff.
This, however, has not been done. We do not have
testimony or explication as to the reason for the layoff
nor any books or records to show that what was told to
Hill on July 9 was true. We simply have Haring's
"Whether the July 9 layoff was permanent at the time although
ostensibly temporary, or whether it was temporary, we believe that July 31
was the cutoff date in the event that either of the foregoing is found to
have been discriminatorily motivated. In the last mentioned situation, the
economic reason for the July 31 action would be the cutoff date for either
back pay or reinstatement
"There is virtually no conflict in the testimony on this aspect. Hill's
testimony, which we credit , is slightly more detailed but Haring did not
undertake to controvert any of the details but simply gave a brief summary
of the event
HARING MEATS & DELICATESSEN, INC.
testimony as to what he told Hill at the time." We
therefore have on the one side the evidence that the July 9
layoff was discriminatorily motivated and, on the other
side, we have evidence as to what Haring told Hill at the
time of layoff.
After careful consideration I conclude that on July 9,
Hill was given a temporary but substantial 2-month
layoff. It was a temporary layoff because that was what
Haring told Hill that it was and Haring testified that it
was temporary. There is inadequate evidence on which to
conclude otherwise although there are grounds for
suspicion.
I believe that the July 9 layoff was because of Hill's
union activities. Hill was a union adherent and the
ringleader of the union movement and preeminent in the
attempt to bring the Union into the plant. The evidence
establishes that Respondent was aware of this fact as
described in detail at an earlier point." Respondent did
not want the Union in its plant and illegal steps in the
form of threats and wage increases were promised and
then granted to Hill and others. Grogg had specifically
told Hill that he would speak to Haring about a raise for
him if he would forget about the Union. The raise was
soon forthcoming. Hill gave no indication thereafter that
he had forsaken the Union. A conference regarding a
consent election was scheduled for July 10. On the day
before, July 9, a Tuesday, Hill was laid off and the
reasons given were as described above. We note the timing
of the layoff since Frank Haring testified that
Respondent's pay period was Monday through Saturday,
with payday on Friday. The layoff of Hill on Tuesday, for
the asserted reason that volume of business was down
because the schools were closed (but that Hill would be
recalled in September when schools reopened), is not
convincing. The selection of Tuesday rather than the end
of the work week or the beginning of the workweek,
although not necessarily or absolutely inconsistent with
normal business procedure , is to some degree indicative of
other than normal action, particularly in the
circumstances of the instant case. We have no reason to
believe that Ohio schools do not close in June, early in the
month, or in the middle or soon after in that month.
Moreover, such closings are predictable. Schools have
closed in June for as long as I can recall. The July 9
Tuesday layoff has therefore merited our scrutiny.
Further, Respondent has been in business over a period of
years. In one period, it cut meat both retail and wholesale
and in the new plant it was confined to wholesale. There is
no evidence of past layoffs or that Respondent had ever
laid off a meat-cutter for any period because of a drop off
in business, due to school closings or otherwise. And there
certainly is no evidence of such a layoff from July 9 to
September for any reason." Like schools, other wholesale
customers of Respondent such as hotels, hospitals,
restaurants and so forth, have been operating for years.
As far as appears, in these days, hospitals are crowded
year round and hotel and restaurant business in many, if
not most instances, is as good or better during the
summer vacation period as at other times . Moreover, in
these times , with the stress on education and getting into
college and taking courses , schools and colleges are prone
to be more active than in the past, with makeup courses,
"This aspect is of course to be contrasted with the detailed explanation
by the Harings regarding the July 31 termination which was allegedly due
to the change in purchasing in the period after Frank Haring's return to
the business . I have credited the explanation of the July 31 termination
including the business change after Hill's July 9 layoff.
719
enrichment courses and activities of that nature during the
summer . Therefore, not only do we have no evidence from
Respondent to show that the reason given to Hill for the
July 9 layoff was the fact or the true reason, but we find,
upon analysis that the reason given to Hill is lacking in
any perceivable substance.
I am persuaded that Hill was laid off on July 9 because
of his union activities. The layoff for 2 months was a
substantial one and to the employees it certainly could
have a dampening effect in their attitude on the
advisability of union adherence. Although Hill was told
that he would be called back, there was no guarantee of a
job and, to the worldly wise employee, Hill's situation, as
the employee who was the union leader, could not have
been very appealing. We find that the layoff of Hill from
July 9 to July 31, 1968, inclusive, was in violation of
Section 8(a)(3) and (1) of the Act."
Filipak had worked for Respondent from July 1967 to
August 17, 1968, when he was discharged. He was an
out-of-town truckdriver who daily delivered Respondent's
products to customers such as hotels, restaurants, and
institutions , in surrounding cities and communities. His
starting salary was $85 per week and he testified that
within a week or two, Frank Haring told him that Grogg
had informed Haring that Filipak was doing an excellent
job and he was raised to $90." On Respondent's pay raise
list in evidence, Filipak's increases are listed as October
1967, $1.76 per hour;38 January 1968, $2.04 per hour;
February 1968, $2.22 per hour. Frank Haring states that
Filipak never received a merit wage increase. He states
that when Filipak was hired that he was told that he
would receive an automatic $5 after the first month and
that there would be other $5 increases. According to
Respondent' s list, the increases received by Filipak were
not general increases . No other employee is shown as
having received an increase in February 1968; one other
employee received an increase in January 1968; and two
other employees received increases in October 1967. If
Filipak' s increases were not merit increases or general
increases, we are at a loss to describe them since the raise
in January and again in February 1968 seem to eliminate
the characterization as annual increases or semiannual or
quarterly increases . In any event, this employee had
received several wage increases although none since
Respondent was in its new plant.
The record, earlier described, shows that Respondent
was aware of Filipak's prominent role in the attempt to
organize the plant and that he was a coactivist with Hill
in getting cards signed.
Filipak testified that, about the middle of July or about
2 weeks before the July 31 election, Frank Haring called
him to his office and accused him of cheating the
"Among other evidence, Grogg , in Haring's presence told Hill that he
was the one who was pushing the Union. On another occasion , Respondent
referred to the Union as Hill 's and Filipak 's union.
"There is no evidence that anyone but Hill was laid off in 1968.
"The General Counsel has argued that, in view of Hill's prior service
with Respondent as a truckdriver, the failure to offer Hill a truckdriving
job in September 1968, when Respondent hired a new truck driver, is
evidence of discrimination. We have considered the point and do not reject
it lightly . However, there is no evidence of any past practice of Respondent
to contact terminated employees in situations where, a few months later, a
job opened up Some employers do contact former employees and some do
not. On the evidence available to us, we cannot find that Respondent's
inaction regarding Hill in September warrants the conclusion the General
Counsel would have us draw.
"Respondent's list of pay raises shows Filipak's starting wage as $90
"For the 55-hour week that the employee worked , this would be $96.80
at a straight time rate of $1 76.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company on time . Haring said that on the same delivery
run on two different days the records showed that in one
day he made the deliveries in 4 hours and the next time he
showed 6 hours . Filipak testified that he, Filipak,
explained that sometimes he had to wait longer for the
customer to check and sign the invoice ." Filipak states
that Haring said that thereafter he wanted Filipak to
mark the time of delivery on each invoice . According to
Filipak , "we got into quite a discussion over this ... and
I said it was unjust and he said it had to be ." Filipak
finally agreed to do as directed "to the best of my
ability." Thereafter , Filipak states that he put the time on
invoices "as best I could" but that he did not do it
regularly . He said that , at some restaurants and hotels
where he delivered , the clocks were not visible , "so I could
not see wasting any time hunting for a clock and then I
would just omit it." About a week later , according to
Filipak , Haring again called him to the office and told
him that he was not putting the delivery time on all his
invoices; Filipak replied about the availability of clocks as
described in his testimony above; Haring told him to
estimate the time and put it down if he was unable to
ascertain the precise time ; Haring further told the
employee, according to the latter, that he was not to omit
the time on any invoice and that, if he had to talk to him
once more about it, he would fire him; Filipak said he
would comply to the best of his ability.
The following day Filipak states that he spoke to the
other out-of-town driver , Gleason , and asked him if he
was putting the time of delivery on his invoices . Gleason
said he was not going to do so . Filipak asked Such, the
in-town driver , the same question . Such said he was not
putting the time down and was never told to do so.
At some time during this period when the
Filipak-Haring matter about writing down the time of
delivery was going on, there was one morning when Grogg
had a typed statement . The statement was to the effect
that the drivers were to write their delivery times on the
invoices . All the drivers signed the statement when Grogg
presented it. Haring testified that the requirement applied
only to the out-of-town drivers and drivers making
out-of-town deliveries , and this may find some degree of
confirmation in the fact that Such told Filipak that he,
Such , had never been told to write down his time on his
invoices.
Filipak states that, on July 26 , Frank Haring called
him to the office and "asked me if I was unhappy with
working at Haring and we talked about the Union.""
Haring said that the Company did not want unhappy
people who were dissatisfied with how things were being
run and that if Filipak was unhappy he should quit.
Haring asked the employee if he felt he was underpaid
and Filipak said , yes, and asked Haring if he could live on
his salary. Filipak said he would not quit. Early in
August, according to Filipak , Haring again called him to
his office and told him that he would be laid off because
business was slow . Haring said that he would keep him on
a few weeks while he looked for another job."
On August 17, Saturday, at the end of Filipak's
workday, about 4 p.m., Dan Haring , the office manager,
"Haring testified that his brother, Curt Haring, who was working for the
Company that summer during college vacation, had told him that on a trip
to Mount Vernon, involving eight stops, it took Filipak 6 hours but that, in
the following week, on the same eight stops, it took 3 hours.
"There is no explication of what was said by either party about the
Union or who initiated the union topic.
"Haring does not refer to either of the two foregoing sessions
specifically in his testimony
read to him a note that had been written and left by
Frank Haring. The note said that he was discharged for
failure to comply with a direct order from Haring. The
reference was quite evidently to the order to write the time
of delivery on invoices. Filipak said nothing on August 17.
Haring testified that the reason he discharged Filipak
was because of his disobedience of the direct order to
write down the time of his deliveries and that this was the
straw, in his words , that broke the camel ' s back . Haring
states that on August 17 he looked over Filipak's invoices
for the preceding day and found that, on at least 20
delivery stops, the employee had written the time on only
one invoice . Haring states that he then typed the notice of
discharge . The witness recounts past situations involving
Filipak . Before Haring was hospitalized , the Company
had found that Filipak had transacted personal business
on an hour or 45 minutes of company time and the
Company made the employee deduct this period from his
worktime." Haring relates the report from his brother
Curt about the variation in Filipak's delivery time on the
same route and delivery stops, abovedescribed. He also
states that Dan Haring had reported that Filipak was
constantly short on his deliveries and the Company
believed that Filipak was taking the difference between the
order and what was delivered but was unable to prove it.
The witness ' s testimony is substantially the same as
Filipak's about the order to write the time of delivery. He
states that Filipak was argumentative and recalcitrant
over the matter and that Haring spoke to him about three
different times regarding the order and that on one of the
occasions Filipak asked Haring why he did not fire him if
he did not trust him. Haring replied that he was not
interested in firing him. Haring asserts that he did not
check on Gleason's invoices to see whether he wrote down
the time because Gleason was one of the best men the
Company ever had and the Company was convinced of his
reliability."
There are some elements in Filipak ' s case that give rise
to some questions . For instance , the apparent attempt to
have him resign and the statement that he would be laid
off. But , in some respects, the foregoing are not entirely
inconsistent with Respondent' s dissatisfaction with
Filipak's qualities as an employee. We note that this
employee did not receive a raise in the new plant or in
June 1968 , when others, including union activists such as
Hill, did receive raises to influence their relationship with
the Union.
The complaint alleges that Respondent discriminatorily
enacted the rule about writing down the time of delivery
and that it discriminatorily applied the rule to Filipak. We
do not agree. The rule, in the circumstances shown in the
record, was not unreasonable . Its requirements were not
excessive and we believe that an average individual could
comply without undue difficulty. Moreover, Filipak was
told to estimate the time if he did not know the precise
time. This is not to be compared to a rule with arduous
and almost impossible requirements , e.g., if an employee
normally made eight deliveries on a route , a rule that he
must make sixteen deliveries on the same route in the
same time period could well manifest an ulterior purpose
in the rule . Haring had no reason to believe initially that
Filipak would not or could not comply with the rule.
Filipak could have obviated his situation of rather
"Filipak testified to having voluntarily deducted personal business time
from company time on one occasion.
"Gleason had signed a union card Such, the in - town driver, had refused
to do so
HARING MEATS & DELICATESSEN, INC. 721
blatantly violating a direct order by simply doing what he
was told to do. Nor do we believe that the fact that
Haring did not check on the other out-of-town driver
manifests illegal discrimination. As far as Haring was
concerned the problem was Filipak. Initially, there was no
rule but there was a direct order to Filipak. After failure
to secure compliance, Haring then, apparently felt that the
formality of a written rule might bring results , but it was
primarily directed to Filipak. Filipak was discharged after
substantial refusal to obey a direct order and after a prior
specific warning of discharge. We conclude that the
General Counsel has not sustained his burden of proof
and dismissal of the allegations regarding Filipak is
recommended.
The Objections
The objections to the election filed by the Union that
have been referred to me in this consolidated hearing are:
(1) the discharge of Jere Hill; (2) granting wage increases;
(5) threatening the reduction of hours. Since the foregoing
were among the unfair labor practices alleged in the
complaint, our disposition appears above. In sum, we have
found that Hill was discriminatorily laid off on July 9,
1968;00 we have also previously found that Respondent
engaged in the conduct referred to in objections 2 and 5.
However, it is our understanding that the Board has
adopted the position that it will not consider election
objections based upon interference that occurred prior to
the date of execution of a consent election agreement.i5 In
the instant case, therefore, the cutoff date is July 10, 1968.
Since Hill's discriminatory layoff occurred on July 9, we
recommend overruling objection no. 1. Both the effective
date and the date of receipt of the wage increases were in
June 1968. The conduct referred to in objections no. 2 and
5 occurred prior to July 10 and we therefore recommend
overruling these objections in accordance with the doctrine
of the A & P decision, above.
The Challenges
Andrew Betsch This employee is a skilled meat cutter
who has worked as a regular part-time employee for
Respondent since 1964. Betsch has another full-time job.
When working for Respondent he punches a timeclock; he
is hourly paid; he works on Saturdays when Respondent's
other employees also work; and the boning work he
performs is the same type of work, inter alia, performed
by other of Respondent' s meat cutters during the week. In
its brief, the Union states that, in the light of the evidence,
it withdraws the challenge to Betsch's ballot. We
recommend that the withdrawal be recognized and that
the ballot be counted since , absent the withdrawal, we
recommend overruling the challenge. Duane Grogg We
have found that Grogg was and is a supervisor within the
meaning of the Act. We recommend that the challenge to
his ballot be upheld. Jere Hill We have found that
although Hill was discriminatorily laid off on July 9,
1968, the cutoff date was July 31, 1968 when he was
terminated for cause. He was terminated before the
election on July 31 and therefore we recommend that the
challenge to his ballot be sustained. Curt Haring This 22
year old employee was the brother of Frank and James
Haring and the son of Joseph Haring . We have earlier
'The termination of Hill for cause on July 31 , 1968, was previously
described.
"The Great Atlantic & Pacific Tea Company, 101 NLRB 1118.
described in detail the corporate and ownership setup of
Respondent. It is reasonably apparent that in this family
business of Respondent's, Curt Haring's relationship alone
distinguishes him from the other rank-and-file employees
in the voting unit. It would be extremely difficult to
conclude otherwise than that he did not share the same
community of interest as did the other employees among
themselves with respect to the owners and operators of
Respondent, the employer. Frank Haring testified that
one of the main causes of his distrust of Filipak and one
of the underlying factors that resulted in Filipak's
discharge in August 1968 over disobedience of a
subsequent direct order was a report that Frank Haring
had received earlier that summer from his brother Curt.
The latter was working that summer during his college
vacation as a truckdriver for Respondent. According to
Frank Haring, Curt had reported to him that, one week
on a particular route involving eight stops, Filipak had
taken 6 hours but that, in the following week, the same
eight stops took only 3 hours of Filipak's working time.
In our opinion , the average employee would probably not
have had access to records showing another driver's
detailed work performance or, if he did, he probably
would not have reported another driver's work
discrepancies to the president of the Company, both
because he would have been reluctant to draw any
conclusions from such information and because he might
well have felt no obligation to do so or to inform on a
fellow employee. It is apparent that Curt Haring's family
relationship, since he was not a supervisor, prompted his
action in reporting to his brother as described above.
However normal and reasonable may be his action in view
of the family relationship, it reflects a distinguishing
element between Curt Haring and other rank and file
employees.
Curt Haring, in 1968, was a student at Capital
University in Columbus, Ohio." As far as appears, he was
a sophomore or a junior. When Capital's school term
ended in May 1968, Haring returned to Mansfield and
was employed as a truckdriver by Respondent during the
summer vacation period. He returned to the University
when school resumed in September. In previous years,
Haring had also worked for Respondent during vacation
periods such as on holidays like Christmas and in the
summer . There is no evidence that Respondent employed
or had employed other students on a part-time basis at
any time of the year." In August 1968, Curt Haring
married and he and his wife returned to Columbus soon
after, he to resume his studies at the University, and his
wife to a job in that city.
Employee Cates testified credibly that Curt Haring had
told him, while both were working for Respondent, that
he, Haring was going to get married and return to school.
Kopp testified substantially along the same lines . Filipak
testified that Haring had told him that he was going to get
married and return to school and that his wife's working
would help to support him. Siwek had been told the same
thing by Haring . °8 James Haring testified that he was
"Previously he had studied at Franklin Business College and Ohio State
University . Both these schools are also in Columbus, which is about 70
miles from Mansfield
"While many businesses or operations may employ students for
relatively extended periods, such as the summer months, or on a regular
part-time year-round basis, there are relatively few places where a student
is able to secure work during brief vacation periods in the course of the
school year. Exceptions are, of course, such seasonably affected operations
as the post office and department stores, and, of course, a father's or
family's business.
"Curt Haring did not testify.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aware on July 10 that Curt was getting married. James
Haring states that "we [Frank and James Haring] were
hoping that he [Curt] wouldn't consider going back to
school." Curt Haring told his brother about concern over
having enough money to return to school and made no
definite commitment about his future plans at that point.
However, as we have seen , Curt did tell others of his plan
to return to school and he did in fact return. On July 10,
1968, at the conference arranging for a consent election,
Respondent and its counsel agreed to the exclusion of
Curt Haring from the list of eligible voters.
I conclude that Curt Haring was a temporary
employee, a student who worked for Respondent on his
vacation, and that he, as a close relative of all the owners
and operators of the business, had a status and
relationship different from that of other employees
engaged in Respondent's production and maintenance
work. We recommend that the challenge to his ballot be
sustained.
It is recommended that the challenge ballots be counted
or eliminated, respectively, each in accordance with the
foregoing findings and recommendations and that a final
count of all valid ballots be made and the result certified,
with the customary appropriate steps being taken
thereafter in accordance with whatever result the final
count of all valid ballots may disclose.
CONCLUSIONS OF LAW
Our conclusions of law regarding the various allegations
of violations of Section 8(a)(1) and (3) of the complaints
have been set forth in detail above." To repeat them at
this point would add to the length of this Decision which
is already substantial in scope.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects we shall recommend that it cease and
desist from such conduct. With respect to employee Hill,
we recommend that Respondent make him whole for the
wages and any fringe benefits that he normally would
have received but his discriminatory layoff in the period
from July 9 to July 31, 1968, inclusive, with interest at 6
percent , S° and less intermediate earnings in such period.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record , it is recommended that
Respondent , its officers, agents, successors and assigns
shall:
1. Cease and desist from:
(a) Coercively and illegally interrogating its employees
regarding their own or other employees' protected union
activity.
(b) Giving the impression to its employees of
surveillance of their union activities.
(c) Threatening its employees with economic and other
detriment regarding their conditions of employment or
related reprisals, all because of legitimate union activities
on the part of employees
"Inter aba , we have not sustained the allegation that by expressing a
preference for, and by verbally counseling , that a Company Union would
be better for the employees , Respondent has violated the Act
"Isis Plumbing & Heating Co. 138 NLRB 714
(d) Promising wage increases or other benefits if
employees change or abandon legitimate union adherence,
support, or activities.
(e) In any other like or related manner, interfering
with, restraining , or coercing its employees in their right
to self-organization, to form, join or assist labor
organizations , to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that
such right might become affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of said Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Make whole Jere Hill for any loss of earnings he
suffered as set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards,
personnel records and reports, and all other records
necessary or useful in computing the amount of backpay
due, as hereinabove provided.
(c) Post at its premises in Mansfield, Ohio, copies of
the attached notice, marked "Appendix."" Copies of said
notices, on forms to be provided by the Regional Director
of Region 8, Cleveland, Ohio, after being duly signed by
an authorized representative, shall be posted 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
Respondent to insure that said notices are not altered,
defaced or covered by any other material.
(d) Notify the aforesaid Regional Director, in writing,
within 20 days from receipt of this Decision, what steps
Respondent has taken to comply herewith.52
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 8, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
As the result of a trial before a Trial Examiner of the
National Labor Relations Board, at which the General
Counsel of the Board , the Company, and the Union were
represented by attorneys, and at which witnesses testified
and were examined and cross-examined, and evidence was
introduced, the Trial Examiner, who heard the testimony
and considered all the evidence, has found that we have
HARING MEATS & DELICATESSEN, INC.
violated the National Labor Relations Act in the respects
set forth in his Decision , and to remedy these unfair labor
practices , he has recommended that we advise you that:
WE WILL NOT coercively question any employee
regarding his own or other employees ' lawful union
activity.
WE WILL NOT give employees the impression that we
are engaged in surveillance of their union activity.
WE WILL NOT threaten any employee that he or she
will suffer the loss of any existing benefits or conditions
of employment or will be treated less favorably because
of union activity.
WE WILL NOT promise wage increases to employees
for abandoning their union activity.
WE WILL NOT in any like or related manner interfere
with or restrain any employee in the exercise of his or
her right to join or assist any union , to bargain
collectively through their representatives , or to engage
in other concerted activity , or to refrain from such
activity except as such right may be affected by some
agreement as provided in Section 8(a)(3) of the
723
National Labor Relations Act.
WE WILL pay Jere Hill the wages or earnings he may
have lost from July 9 to July 31, 1968 in the manner
set forth in the Trial Examiner's Decision.
All our employees are free to support or to become or
remain members of any union or to refrain from such
activity, subject to Section 8(a)(3) of the Act.
HARING MEATS &
DELICATESSEN, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board ' s Regional Office, 1695 Federal Office Building,
1240 East Ninth Street, Cleveland, Ohio 44199, Telephone
216-522-3738.