Kinter Brothers, Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1967

167 N.L.R.B. 57 (N.L.R.B. 1967)

KINTER BROS., INC.
Kinter Brothers , Inc. and Retail Store Employees
Union Local 880 , Retail Clerks International
Association , AFL-CIO.' Cases 8-CA-4037,
8-CA-4071, 8-CA-4178, and 8-CA-43 10
August 16, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On March 29, 1967, Trial Examiner Milton
Janus issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not en-
gaged in other unfair labor practices alleged in the
complaint. Thereafter, the Respondent and the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs, and the
Charging Party filed cross-exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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, cross-
exceptions and briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with
the following additions, modifications, and excep-
tions.
1. The Trial Examiner found, and we agree, that
the Respondent threatened, interrogated, and
polled its employees and granted them a bonus, in
violation of Section 8(a)(1) of the Act; discharged
and discriminated against employees with regard to
their hours of work and other conditions of employ-
ment, in violation of Section 8(a)(3), (4), and (1) of
the Act; and, on October 27, 1965, refused to bar-
gain with the Union, in violation of Section 8(a)(5)
of the Act.
2. The Trial Examiner found further that the
Respondent's second reduction in the working
hours of Helen Kolesar was not discriminatory, and
that the final termination of Joan Woc's employ-
ment was not an unlawful constructive discharge,
and recommended that these allegations of the com-
plaint be dismissed. The General Counsel and the
57
Charging Party have excepted to these findings and
recommendations. For the reasons set forth below,
we find merit in these exceptions.
(a) In July 1965, shortly after Kolesar, who per-
formed wrapping and cleaning work in the Respond-
ent's meat department, signed a union card, the
Respondent subjected her to unlawful interrogation
and reduced her hours from 33 to 22 a week. On
February 17, 1966, the day after Kolesar and Woc
testified at the first of the three hearings in these
proceedings, the Respondent's president, Kinter,
told a group of employees that there would be a
"freeze-out" campaign against those who had
signed up with the Union, naming Kolesar and Woc
among those to be subjected to this "freeze-out"
campaign.
In March 1966, when a meatcutter left, the
Respondent increased Kolesar's hours to 40 a
week. In July 1966, however, the Respondent hired
a second meatcutter, and again reduced Kolesar's
hours, this time to 16 a week. The Respondent con-
tended that it initially reduced Kolesar's hours
because of decreased sales in the meat department,
and later reduced them a second time, after it hired
the new meatcutter, although it no longer had any
need for her services. The Trial Examiner found
that the Respondent's first reduction in Kolesar's
hours was in reprisal for her union activities. He
found further, however, that when her hours were
increased in March 1966, the discrimination against
her ended, and that the reduction to 16 hours in July
1966, after the hiring of a new meatcutter, was
motivated by economic considerations.
The record shows that Kolesar and one meat-
cutter operated the department for about 4 months
before the Respondent hired a second full-time
meatcutter, and there is no evidence establishing
that they did not handle it adequately, or would be
unable to continue to do so. We are convinced,
under all the circumstances, that the Respondent
was continuing its campaign to freeze out Kolesar,
when it again reduced her hours of work in July
1966, as it had in July 1965, as part of this cam-
paign. Accordingly, we find that the Respondent,
by this discrimination against Kolesar in July 1966,
violated Section 8(a)(3), (4), and (1) of the Act.
As it is not clear from the record, however, how
many hours Kolesar would have worked absent the
Respondent's continuing discrimination against her,
we shall leave to the compliance stage of these
proceedings the determination of the amount of
backpay required to make her whole for the dis-
crimination against her.
(b) In July 1965, Woc called the Union, and a
meeting was held at her house at which she and
some other employees signed union cards. Shortly
thereafter, Kinter coercively interrogated her and,
on August 23, 1965, discharged her. On February
I The name of the Charging Party appears as amended at the hearing.
167 NLRB No. 7
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
17, 1966, the day after Woc testified at the first
hearing in these proceedings, Kinter made the re-
marks about his "freeze-out" campaign against
union adherents, specifically naming Woc. On
March 3, 1966, Woc was reinstated, but not to an
equivalent position.
Woc was a senior cashier, but, after her reinstate-
ment, she was given less desirable shifts than she
formerly was assigned; was given hours of work
which varied erratically, sometimes more and
sometimes less than her normal hours of work; was
assigned more of the arduous cleaning chores than
other cashiers; and, as the Trial Examiner found,
was "subjected to Kinter's open unfriendliness and
petty harassments." Woc endured these conditions
for about 4 months until, on July 16, she became ill
from constant nervousness and was unable to work.
When she returned to work on August 3, she was
assigned to washing shelves, while a recently hired
employee was assigned to work as a cashier. After
supper, Woc was assigned a register for a while, but
Kinter took her off that work, told her to clean up
the mess left at her register by other cashiers, to
dust shelves, and to put stock on the shelves. At the
close of the day, Kinter told her he did not like the
way she had been dusting the shelves.
The next day, Woc sent the Respondent a tele-
gram stating: "Due to your treatment and action
against me yesterday I have become ill and unable
to work. Will let you know when I will return."
After treatment by a doctor, Woc's health im-
proved, but she did not thereafter communicate
with the Respondent or return to work.
The Trial Examiner found that the Respondent
discriminatorily discharged Woc in August 1965;
that it reinstated her in March 1966, but to a job
which was not equivalent in hours or duties to her
previous job; and that it engaged in discriminatory
conduct toward Woc pursuant to its "freeze-out"
campaign. He recommended that Woc be reim-
bursed for any wages that she lost because of the
Respondent's discrimination against her including
the diminution in her wages after her reinstatement.
He found, however, that Woc quit and was not con-
structively discharged in August 1966, as alleged in
the complaint, because after her reinstatement she
had been able to continue working for 4 months
under the unpleasant conditions imposed upon her,
and the events of August 3 were no different in kind
from those which she suffered for 4 months. He,
therefore, stopped her backpay as of August 1966.
We find, however, that the Respondent's conduct
following Woc's reinstatement in March 1966
caused her to become so ill that she was unable to
continue working under those conditions. The fact
that she tolerated such treatment for 4 months does
not warrant finding that she had to continue to
2 See, for example, Bishop and Ma(co, dlb/a Walker's, 159 NLRB
1159, and cases in fn . 11 thereof.
tolerate it or give up her job. Accordingly, we find
that the Respondent , by its discriminatory treat-
ment , caused the termination of Woc's employment
on August 3, 1966, and thereby constructively
discharged her in violation of Section 8(a)(3), (4),
and (1) of the Act. In any event, we find that the
Respondent did not remedy its original discrimina-
tory discharge by the March 1966 reinstatement,
and must now offer Woc the appropriate remedy.
We shall therefore order that Woc be offered rein-
statement to her former or substantially equivalent
position and be made whole for any loss of pay suf-
fered by reason of the discrimination against her.
3. Because of the Respondent's widespread un-
fair labor practices beginning in July 1965, about
the time the Union initially obtained majority
status, we find that the policies of the Act would be
effectuated by ordering the Respondent to bargain
collectively with the Union, on request , even if the
Respondent's refusal of the Union' s bargaining
request of October 27, 1965, were found not to vio-
late Section 8(a)(5).2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Kintner Brothers , Inc., Mentor , Ohio, its of-
ficers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership of its employees
in Retail Store Employees Union Local 880, Retail
Clerks International Association , AFL-CIO, or
any other labor organization, by discharging em-
ployees , reducing their hours of work, changing
their shifts , or in any other manner discriminating
against them in regard to their tenure , terms , or con-
ditions of employment , because of their union or
other protected concerted activity.
(b) Polling or interrogating employees and appli-
cants for employment in a coercive manner con-
cerning their union activities or sympathies ; making
profit-sharing or bonus payments to induce them to
reject the Union, provided , however , that nothing
herein contained shall be construed as requiring the
Respondent to revoke any profit-sharing or bonus
payment it has heretofore granted ; or threatening
employees with loss of employment , bodily harm,
or other harassment if they continue to support the
Union.
(c) Refusing to bargain collectively concerning
rates of pay , wages, hours of employment, or other
terms and conditions of employment with Retail
Store Employees Union Local 880, Retail Clerks
International Association , AFL-CIO, as the exclu-
sive representative of its employees in the following
appropriate unit:
All selling and nonselling employees at the
KINTER BROS., INC. 59
Respondent ' s store at Mentor , Ohio, excluding
guards, professional employees , and super-
visors as defined in the Act.
(d) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of the right of self-organization , to form labor
organizations , to join or assist Retail Store Em-
ployees Union Local 880, Retail Clerks Interna-
tional Association , AFL-CIO, or any other labor
organization , to bargain collectively through
representatives of their own choosing , and to en-
gage in concerted activities for the purpose of mu-
tual aid or protection as guaranteed in Section 7 of
the Act , or to refrain from any or all such activities,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclo-
sure Act of 1959.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Offer to reinstate Joan Woc to her former or
substantially equivalent position , without prejudice
to her seniority or other rights and privileges.
(b) Notify Joan Woc if presently serving in the
Armed Forces of the United States of her right to
full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Make whole Joan Woc, Olga Grund, and
Helen Kolesar for any loss of earnings suffered by
reason of the discrimination against them, in the
manner set forth in the portion of the Trial Ex-
aminer's Decision entitled "The Remedy."
(d) Upon request, bargain collectively with
Retail Store Employees Union Local 880, Retail
Clerks International Association , AFL-CIO, as
the exclusive bargaining representative of its selling
and nonselling employees at its store at Mentor,
Ohio , and, if an understanding is reached, embody
such understanding in a signed agreement.
(e) Preserve and, upon request , make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records , timecards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at its store at Mentor , Ohio, copies of
the attached notice marked "Appendix ."3 Copies
of said notice , on forms provided by the Regional
Director for Region 8, after being duly signed by
the Respondent 's representative , shall be posted by
the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director for Region 8, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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:
WE WILL NOT discourage you from becom-
ing or remaining a member of Retail Store Em-
ployees Union Local 880, Retail Clerks Inter-
national Association , AFL-CIO, or any other
labor organization , by discharging you, reduc-
ing your hours of work , changing your shifts, or
in any other manner discriminating against you
in your hire or tenure of employment, or any
term or condition of employment because of
your union membership or activities.
WE WILL NOT poll or interrogate you or ap-
plicants for employment as to union activities
or sympathies ; nor make any profit -sharing or
bonus payments in order to induce you to re-
ject the Union , but we are not required to
revoke any profit-sharing or bonus payment
that we have heretofore granted ; nor will we
discourage your union membership or activi-
ties by threatening you with loss of employ-
ment , bodily harm , or other harassment.
WE WILL NOT refuse to bargain collectively
with Retail Store Employees Union Local 880,
Retail Clerks International Association,
AFL-CIO , as the exclusive representative of
all the employees in the bargaining unit
described below.
WE WILL NOT in any other manner interfere
with, restrain , or coerce you in the exercise of
your right to self-organization, to join or assist
the above -named or any other union , to bargain
through representatives of your own choice,
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 per-
mitted by Section 8(a)(3) of the Act.
WE WILL offer Joan Woc her former or sub-
stantially equivalent position , without preju-
dice to her seniority or other rights and
privileges.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole Joan Woc, Olga
Grund, and Helen Kolesar for any losses in
wages which they incurred as a result of our
discrimination against them.
WE WILL bargain collectively, upon request,
with Retail Store Employees Union Local 880,
Retail Clerks International Association,
AFL-CIO, as the exclusive representative of
all the employees in the bargaining unit
described below with respect to rates of pay,
wages, hours of employment, and other terms
and conditions of employment, and, if an un-
derstanding is reached, embody such an un-
derstanding in a signed agreement . The ap-
propriate bargaining unit is:
All selling and nonselling employees at our
store at Mentor, Ohio, excluding guards,
professional employees, and supervisors as
defined in the Act.
KINTER BROTHERS, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Joan Woc if presently serv-
ing in the Armed Forces of the United States of her
right to full reinstatement upon application in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue,
Cleveland, Ohio 44115, Telephone 621-4465, Ex-
tension 42.
TRIAL EXAMINER'S DECISION
MILTON JANUS , Trial Examiner : The Charging Party,
referred to at times as the Union or Local 880, filed
charges on October 12 and November 9, 1965. A com-
plaint based on the first of these charges was issued on
December 1, 1965, in Case 8-CA-4037. On December
28, 1965, an amended and consolidated complaint, based
on both charges , was issued as Cases 8-CA-4037 and
8-CA-4071. A hearing was thereafter held before me on
various dates in February 1966.
On March 14 , 1966, the Union filed a charge upon
which a complaint was issued in Case 8-CA-4178, on
April 5, 1966 . Upon the motions of the General Counsel
and the Union , and over the Respondent 's opposition, I
ordered that the latter case be consolidated with the
former cases, and that the hearing be reopened. It was
thereafter held before me on May 24, 1966.
Before I was able to prepare my Decision on the
proceeding as it then stood , the Union filed an original
and amended charges on July 29, September 15 and 21,
1966, and based thereon, the General Counsel issued a
complaint in Case 8-CA-4310, on September 22, 1966.
On October 10, I granted the General Counsel's motion
to consolidate this case with the others and to reopen the
hearing, and on November 14, 1966, it was held before
me. All parties were represented at the hearings , held at
Painesville, Ohio, and were afforded full opportunity to
present relevant evidence. Briefs received from the
General Counsel, the Union, and the Respondent have
been given due consideration.
Upon the entire record in these consolidated cases and
the briefs, and from my observation of the demeanor of
the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation whose principal
business is the operation of a retail grocery and meat mar-
ket in Mentor, Ohio . Its sales are in excess of $500,000
per year. It purchases annually groceries and meats
valued in excess of $10,000 from enterprises located in
Ohio which in turn receive such materials from sources
located outside that State. The Company admits, and I
find , that it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union Local 880, Retail
Clerks International Association , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent operates a self-service grocery and meat
market in Mentor, Ohio. The president of the corpora.
tion, its virtual owner and manager of all operations, is
James Harold Kinter, known to his employees and
referred to at the hearing as Harold Kinter. During the
period relevant here the store operated 12 hours per day,
7 days per week. Twelve or thirteen people were nor-
mally employed at the store , consisting of four salaried
men, one or two high school boys who worked after
school and evenings , and five or six women who manned
the checkout counters, placed stock on shelves, and did
housekeeping chores. A postal substation was located in
the store, operated by one or more of the women cashiers
during the day. The women worked varying shifts during
the day and evening hours , and the female wrapper in the
meat department worked a daytime shift on specified
days. The women were all hourly paid. None of them
regularly worked a full 40-hour per week schedule.
The Union' s drive to organize and represent Respond-
ent's employees began early in July 1965, when em-
ployee Joan Woc called the Union to seek its aid. On July
8, 1965,+a meeting was held at Woc's home, when the
decision was taken to obtain signed authorization cards.
Present were employees Woc, Vera Morley, and Olga
Grund, and two representatives of the Union. Signed
KINTER BROS., INC.
cards were also obtained in the next week or so from six
other employees, and on July 16, 1965, the Union filed a
petition for an election, a copy of which was duly served
on Respondent. This was apparently Respondent's first
indication that organization of its employees had begun.
On July 28, the Regional Director for Region 8 granted
the Union's request for permission to withdraw the peti-
tion.
No more cards were obtained until October 25, 1965,
when Theresa Reichard signed up. The next day, the
Union sent a letter to Respondent, received on October
27, in which it claimed to represent a majority of the em-
ployees at the store, requested recognition, and offered to
submit its cards for examination by an impartial third par-
ty. On November 8, Kinter answered the request for
recognition by claiming that a majority of his employees
had voluntarily come to him and had stated that they did
not want to be represented by the Union. He further said
that he would recognize the Union only after certification
by the Board.
The complaints consolidated in these proceedings al-
lege violations of Section 8(a)(1) through the coercive in-
terrogation of employees by Harold Kinter and his attor-
ney, Lewis Belkin; threats of discharge, layoff, bodily
harm, and other reprisals; and the distribution of a bonus.
Violations of Section 8(a)(3) or (4) are alleged through the
discharge of, or other discrimination against, employees
Grund, Woc, Kolesar, and Robert Horn; and violations
of Section 8(a)(5), by Respondent's refusal to recognize
and bargain with the Union as the majority representative
of its employees in an appropriate unit . The Respondent's
answers deny all the substantive violations alleged.
B. Alleged Violations of Section 8(a)(1) and (3) Before
the First Hearing
1. Following the filing of the petition
(1) A day or so after he received notice that the Union
had filed its petition, Kinter took a sheet of paper around
to most of his employees, which he asked them to sign.
The paper, which has since been lost, required the em-
ployees to indicate whether they had talked to anyone
from the Union or had joined it. Their various responses
gave Kinter the preliminary information he needed to
discover the Union's supporters. Laura Hunt refused to
sign the paper, and Kinter told her he now knew who his
loyal employees were. In this, or in other related conver-
sations with Hunt about this time, Kinter accused her of
being the one responsible for bringing the Union in, asked
her who had signed up with the Union, told her he would
find out who had, that he would get their houses, and that
from now on he was going to make the employees work
and run the store as if it were a union store.
Roger Johnson admitted, when Kinter asked him, that
he had signed a union card . Vera Morley refused to sign
Kinter's paper, nd Kinter said, "So you are in it too." He
also told her that if the Union got in he would not be able
to afford to keep her and Gladys, another new employee.
In other conversations he told her he knew she had been
at Woc's home for the initial union meeting, that Woc was
a trouble maker, and he would fire her and, after Woc was
fired, he said that he had told her he would do so.
' Nello L TeerCompany, 143 NLRB 787,791 Cf. Cosmodyne Manu-
facturing Company, 150 NLRB 97, 99-100.
61
Olga Grund and Joan Woc signed Kinter 's paper for him
when he asked them to, but Woc soon reconsidered and
erased her name. Grund testified that when she was
asked to sign , Kinter told her he would fire anyone who
joined a union. When Helen Kolesar refused to sign the
paper, Kinter accused her also of being the one who had
contacted the Union.
Kinter admitted that he had asked his employees to in-
dicate to him in writing whether they had joined the
Union, but that he had told them there would be no
reprisals if they refused to sign. I do not credit him in that
regard, in view of the uniform testimony of Hunt, Morley,
and Kolesar that Kinter took offense when he learned
from their actions that they would not support him, and
because his subsequent conduct revealed what seems to
me to have been his true intentions.
On or about July 26, Kinter posted a statement which
his employees initialed, to the effect that although Kinter
was opposed to the Union his employees had the right to
join or not to join, as they wished. They were also told
that the Company would not interfere with, threaten, or
coerce them in the exercise of their rights, and that any
prior inconsistent actions or statements were withdrawn.
I find that the posted statement did not vitiate the coer-
cive effect of Kinter's interrogations, accusations, and
threats made contemporaneously and later to employees
individually, as set out above, particularly in view of the
discriminatory changes in status instituted against union
adherents about the same time.'
(2) Laura Hunt had worked at the store since April
1962. She had become indebted to Kinter on her personal
grocery bill, so that by July 1965, she owed him over $60.
I credit her testimony that she and her husband had
recently offered to settle their debt with an income tax
refund, but that Kinter had said he knew they needed the
money and he would repay himself out of Hunt's last
payroll check when she quit her employment. On July 21,
Hunt came to the store to pick up her paycheck and was
told that the full amount, $61.60 was being applied to her
bill. Kinter attempted to justify his action by saying that
Hunt had told him she was having domestic problems,
and he wanted to make sure of his money. Hunt denied
telling Kinter of any domestic problems, nor had she
given him any indication at that time that she intended to
quit work, although she did in fact quit voluntarily a
month later.
I find that Kinter applied Hunt's wages against his bill
not because he was concerned about its ever being paid
off, but in retaliation for her lack of "loyalty" to him, in
refusing to sign his paper just a few days earlier, and
thereby indicating to him her support of the Union.2
(3) The complaint was amended at the first hearing to
allege that on or about July 16, 1965, Respondent pro-
vided Helen Kolesar with less employment than she
would normally have received, because of her activities
on behalf of the Union. Kolesar worked only in the meat
department, wrapping meat which was cut by the two
butchers, cleaning showcases and equipment, and prepar-
ing some delicatessen items. No work was done in the
meat department after 6 p.m., although meat was dis-
played and sold whenever the store was open. Her regu-
lar schedule during the first half of 1965 called for her to
work 33 hours per week: on Tuesdays and Saturdays she
z Cf Freskeeto Frozen Foods, Inc , 159 NLRB 342 (Edward Hook,
Sr.)
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked from 9 a.m. to 6 p.m., and on Mondays,
Thursdays, and Fridays she worked until 3:30 p.m.
Respondent's Exhibit 6, a record of Kolesar's hours and
earnings in 1965, shows that with the exception of a
period in May and June when she was ill, Kolesar had
never worked less than 33 hours per week, and in some
weeks had worked more. The week ending July 26 began
a marked change in her schedule. That was the first week
in which her schedule was made up after Kinter heard of
the petition being filed, and Kolesar's refusal to tell him
whether she had signed a union card. In that week she
worked 25 hours, and in the remaining weeks of 1965 she
did not again work as much as 33 hours except for I week
in August and 2 in September when she worked more
than 35 hours.3
Kinter's explanation for the abrupt reduction in
Kolesar's hours, hard on the filing of the petition, is that
the volume of sales in the meat department had fallen off.
He offered no details or substantiation. In the light of its
timing and other evidence of Kinter's opposition to the
Union, I reject his explanation and conclude that he
reduced Kolesar's hours in reprisal for her known or
suspected activities on behalf of the Union.
(4) Before the union campaign began in July, Joan
Woc usually worked from 9 a.m. to 3 p.m. on Mondays,
Tuesdays, and Wednesdays. Thursdays through Satur-
days, she and another cashier would alternate day and
evening shifts. She had one Sunday a month off, and
would alternate day and evening shifts on the other Sun-
days. After she returned from her vacation the second
week in July, her work schedule was gradually changed
so that she began working more evening shifts, until by
the time of her termination on August 23, she was work-
ing evenings almost exclusively.
When Woc came to work on Sunday, August 22, she
told Kinter that she had a doctor's appointment for 3 p.m.
Monday and would like to get off at 2 p.m. so that her
husband could drive her. According to Woc, Kinter told
her she could leave at 2 p.m. When she came in Monday
morning and looked at the schedule, she saw that she was
slated to work Monday to 3 p.m. and straight nights the
rest of the week. She told him that the next Sunday
should be her day off. He told her she knew what she
could do if she did not like the schedule, and she
responded that she was not going to quit, and that he
would have to fire her first.
There was apparently no single procedure for a cashier
to follow if she wanted to depart from her schedule. If she
wanted just an hour or two off she might try, on her own,
to get someone else to replace her. There was also some
latitude exercised in these matters, depending on how
busy the store was, so that there might be times when
only one cashier would be on duty although two had been
scheduled. Of course, there had to be at least one cashier
in the store at all times that it was open. Kinter and the
other men in the grocery departments were also available
to fill in as cashiers when necessary.
Woc testified that she had called two other cashiers to
take her place from 2 to 3 p.m. on Monday, but they were
not able to oblige her. There was another cashier on duty
3 During these 2 weeks in September, Howard Kinter, one of the meat-
cutters, was working in the produce department as a vacation replace-
ment
" Her admitted efforts to get a replacement indicates that she un-
derstood that Kinter's approval of her leaving at 2 p.m was apparently
that shift. At 2 p.m. Woc prepared to leave and told
Kinter so. Kinter objected, saying she was always sick
and if she could not work her schedule she was no darn
good to him. At that, Woc retorted that he was a darn liar,
whereupon Kinter told her she was fired. Their conversa-
tion had taken place in the small, partially enclosed store
office, near the checkout counters and the postal substa-
tion office. There were customers nearby who could have
overheard the conversation if their voices had been
raised.
Kinter testified that he had had more problems with
Woc's scheduling and work habits than with any other
employee. He denied that he had made any unusual
changes in her schedule after July 1. As to the particular
events of August 22 and 23 that led to her discharge,
Kinter said that he had already had the schedule up for
the next week when Woc told him that she had a doctor's
appointment for Monday afternoon. He said that he had
told her it was her responsibility to get a replacement for
herself. On Monday, when she was leaving, he testified
that he asked her if she had a replacement and when she
said she did not, he told her it would not be advisable for
her to leave. She then said she was leaving anyway, and
taunted him by asking him to fire her. When he said he
had more trouble with her than with the other girls, she
called him a damned liar, whereupon he fired her for in-
subordination.
There was a hint of bravado in Woc's action. It is true
she had tried to get a replacement, but her failure to tell
Kinter that there was no one to take her place before she
got ready to leave at 2 p.m. indicated that she was deter-
mined to leave regardless of what Kinter might do or say.4
It also seems established that there was some conversa-
tion between them that she would not quit voluntarily,
and that he would have to fire her to get rid of her.
Obviously there was already considerable friction in
their relationship, and it is to the cause of that friction that
one must look, both for explanation of Woc's disregard of
her obligation to get a replacement for herself, and to
Kinter's response to Woc's leaving an hour before the end
of her shift. The incident assumed the importance it did
because of their strained relations. Kinter knew that Woc
had been helpful in the Union's campaign to obtain
authorization cards, and he resented her efforts on its be-
half, as evidenced by his changes in her working
schedule, his remarks to Morley and Grund about firing
people who joined a union, and his other reprisals and
threats. I am satisfied that Woc's request for an hour off
would have been routinely granted despite her failure to
get a replacement if Kinter had not been anxious to seize
on an excuse to get rid of her. I find that Kinter
discharged Woc as a reprisal for her union activities, and
that Respondent thereby violated Section 8(a)(3).5
2. Following the request for recognition
(I) On Wednesday, October 27, 1965, Kinter
received in the mail the Union's claim of majority
representation and its request to be recognized. On the
same day Kinter paid all employees with 90 or more days'
conditioned on someone taking her place.
Bernhard Conrad Embroidery Company, 156 NLRB 1056, 1057
(Wayne Doan incident ), M & B Headwear Co., Inc, 146 NLRB 1634,
1642-45, enfd. 349 F 2d 170, 174 (C.A 4)
KINTER BROS., INC.
service a bonus which was included in their regular
weekly paycheck.
The complaint alleges that Respondent violated Sec-
tion 8(a)( 1) and (5 ) by distributing the bonus in order to
destroy the employees ' support of the Union The
Respondent contends , on the contrary , that the bonus
was given pursuant to a plan formulated and announced
to the employees the previous May, and that its payment
on the very day that the Union 's bargaining request was
received was mere coincidence.
Based mainly on Kinter ' s testimony , Respondent at-
tempted to show that it had definitely decided to engage
in an employees ' profit-sharing plan in April 1965,
although its profits were then low, and that it had an-
nounced such a plan at an employees ' meeting in May.
The payment in October 1965 is said to be based on
Respondent ' s profits in the third quarter of 1965. The
testimony on these points was most unpersuasive.
Respondent introduced minutes of two special
meetings of its board of directors , which were allegedly
attended by Harold Kinter , his brother Howard, the
secretary of the corporation and a meatcutter in the store,
and Harold 's daughter , Linda. At the first board meeting,
purportedly held April 15 , 1965, the directors adopted a
resolution to initiate a bonus or profit-sharing plan as
specified therein . The president was instructed to hold a
meeting with the employees to discuss and explain the
plan. The second board meeting , purportedly held on
May 26 , 1965, was called to permit the president to re-
port to the other two officials present , his brother and his
daughter , on the reaction of the employees to the
proposed plan. He reported that the employees all liked
the idea of the bonus plan and agreed to go along with the
corporation on it . The meeting was then adjourned.
At the hearing, Harold Kinter testified that the em-
ployee meeting to explain the bonus plan had been held in
May 1965, and his testimony as to the date was cor-
roborated by Tom Conti, a meat department employee.
Adversely affecting the probative value of their testimony
are the affidavits given by these two to the Regional Of-
fice officials who investigated this matter before the hear-
ing. Kinter ' s affidavit , received in evidence as General
Counsel Exhibit 8, has him saying that the profit-sharing
plan was never written out, and that he decided to in-
stitute the plan the latter part of June, which is at least 2
months after the directors ' meeting when , according to
the minutes , a detailed plan was set out, read , and ap-
proved . Conti testified that an employee meeting was
held in May , yet his affidavit says the meeting was held
the latter part of August . Again , Terry Radcliffe testified
that such a meeting was held about a month before the
bonus was distributed on October 27, 1965. Employees
Grund and Woc denied that Kinter had ever held an em-
ployee meeting in April or May to explain his profit-shar-
ing plan.
Based on their demeanor and their prior inconsistent
statements , I discredit the testimony of Kinter and Conti
that there had been an employees ' meeting in May 1965
to explain the institution of a bonus plan. Whether there
was such a meeting between the withdrawal of the peti-
tion, late in July, and the demand for recognition on Oc-
tober 27, is unclear . Only Radcliffe testified to the effect,
while Johnson , Grund , and Kolesar all testified that they
8 See Elliott- Williams Co, Inc , 149 NLRB 1242, 1257 fn 36 for cases
holding that a trier of facts may find that the contrary of what an uncon-
63
were unaware of what the extra payment included in their
paycheck on October 27 was meant to be. I think that
Radcliffe must have been mistaken about what was men-
tioned at the meeting , if one was held at all.
There remains for resolution the question whether
Harold Kinter was unaware of any pending interest of the
Union in organizing his employees when the bonus was
paid on October 27. Between July 27 , when it withdrew
its petition for representation, and October 26, when it
mailed its demand for recognition , Kinter had no reason
to know whether the Union was contemplating further ef-
forts to represent his employees . According to Kinter, his
accountant informed him about October 20 that the store
had shown a profit in the quarter July I to September 30,
and he decided to share these profits with his employees;
he included their bonus in their paychecks for the next
week and actually paid it to them on the next regular
payday, Wednesday , October 27 , 1965. According to
Kinter , he prepared the checks that Wednesday morning
and only learned of the Union 's demand that afternoon,
when the mail was delivered between I and 2 p.m. The
employees on the day shift picked up their checks at 3
p.m., and those on the evening shift , at 9 p.m.
Since Kinter prepared the checks and opened his mail
personally , there is no evidence to refute his testimony
that the checks had already been prepared before the mail
arrived . I do not credit his testimony , however, because
I believe that Kinter was concerned over the new
evidence that the Union ' s organizing campaign was still
alive, and decided to use a different tactic to scotch it.6
Threats, unfavorable work schedules , and Woc's
discharge had all apparently been unsuccessful . A bonus
perhaps might do the trick . I find that Kinter decided to
pay his employees a bonus only after he heard from the
Union on October 27. Among the considerations which
prompt me to reach that finding are my belief that (1)
Kinter had never planned to institute a profit -sharing plan
before the petition was filed, and would not have done so
if withdrawal of the petition had ended the Union's cam-
paign ; and (2) Kinter, shortly after October 27, again
went to his employees with a request that they openly in-
dicate to him whether they had designated the Union as
their representative , in the expectation that the recent
bonus might persuade them in his favor.
Payment of a bonus in these circumstances is clearly a
violation of Section 8(a)(1), and I so find.7
(2) In response to the Union 's demand, received on
October 27, Kinter informed it on November 9, that a
majority of his employees had come to him voluntarily to
say that they did not wish to be represented, and that he
would recognize it only after Board certification. The
basis for Kinter's claim that the employees did not desire
representation was an "affidavit " signed by nine of his
employees which he , or one of the nonsupervisory men,
had taken to them with the request that they sign it. The
affidavit read as follows.
We, the undersigned , being first duly sworn depose
and say that we of our free will and choice came to
our employer , Mr. J. Harold Kinter and advised him
that we had not signed any authorization card on be-
half of the Retail Clerks Union and we further state
that we have not done so.
tradicted but discredited witness testifies to is in fact true
7 Betts Baking Company, 155 N L RB 1313
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The alleged voluntariness of the employees' signatures
is suspect in view of Kinter's earlier efforts to learn who
had signed cards by circulating a similar statement in
July, and by his other interrogation and threats. Signifi-
cantly, four of the nine employees who stated that they
had not signed for the Union, had in fact done so. I be-
lieve that it is immaterial in the circumstances of this case
whether Kinter actually told the employees, as he
testified, that no reprisals would be taken regardless of
whether the employee did or did not sign the affidavit. In
view of the violations of Section 8(a)(1) and (3) com-
mitted before receipt of the recognition demand; and the
grant of the bonus immediately upon its receipt, I find
that Kinter's polling or interrogation of his employees as
to their union adherence was in itself coercive and a viola-
tion of Section 8(a)(1).8
(3) During the course of the first hearing, in February
1966, I granted the General Counsel's motion to amend
the complaint by alleging an additional violation of Sec-
tion 8 (a)(1) through the interrogation of the employees by
Louis Belkin , Respondent's attorney. I find, based on the
composite testimony of Olga Grund and Helen Kolesar,
that the employees were asked to report at the store at
8:30 a.m., January 21, 1966. Mr. Belkin presided, and
Mr. Kinter came in after the meeting had started . Belkin
said that any statements the employees made would be
voluntary, and there would be no reprisals. He then asked
them whether they had signed authorization cards, and
when no one responded, the meeting was closed. It lasted
altogether no more than 10 minutes.
The meeting occurred between the issuance of the first
amended complaint on December 28, 1965, and the first
hearing on February 15, 1966. This was the period in
which Mr. Belkin, as attorney for Respondent, was en-
gaged in investigating and preparing his case. The single
question asked by Mr. Belkin, whether they had signed
authorization cards, was clearly related to an issue on
which Respondent was preparing its defense. Under the
circumstances, and in view of the substantial compliance
with the safeguards required to be met in Johnnie's
Poultry Co., Inc. 146 NLRB 770, I find that there was no
violation of Section 8(a)(1) by Respondent at the January
21 meeting.9
C. Respondent's Refusal to Bargain
(1) The parties stipulated at the hearing, and I find,
that all selling and nonselling employees at Respondent's
store at Mentor, Ohio, excluding all guards, professional
employees and supervisors constitute an appropriate unit
for the purposes of collective bargaining under Section
9(b) of the Act.
(2) The complaint alleges that on or about July 16,
1965, and again, on or about October 25, 1965, a majori-
ty of Respondent's employees in an appropriate unit had
designated or selected the Union as their bargaining
representative, and that on November 9, 1965, in viola-
tion of Section 8(a)(5), Respondent refused to recognize
and bargain with the Union, notwithstanding that it was
at that time, and has been since July 16, 1965, the duly
designated exclusive bargaining representative.
It will be recalled that the petition which the Union
filed on July 16 was withdrawn less than 2 weeks later.
Not until October 27, 1965, did the Union claim that it
8 Madison Brass Works, Inc., 161 NLRB 1206; Griffith Ladder Cor-
poration , 159 NLRB 175; Johnnie's Poultry, Inc, 146 NLRB 770,
represented a majority of Respondent's employees and
demand recognition based thereon. On October 27, there
were then actually working at the store 13 employees, in-
cluding Harold Kinter, who is admittedly a supervisor,
but excluding Joan Woc who, I have found, was
discharged on August 23, in violation of Section 8(a)(3).
Of the 13 people who are thus potentially within the ap-
propriate unit (excluding Harold Kinter and including
Joan Woc), the Union had cards signed by the following:
Woc, Johnson, Grund, Kolesar, Horn, Terry Radcliffe,
and Theresa Reichard. Hunt and Morley, who had also
signed cards in July, had left their employment voluntari-
ly in August, about 2 months before the Union's demand
for recognition.
Besides Harold Kinter , the store manager and pres-
ident of the corporation, there were four adult men em-
ployed, all of whom worked 6 full days per week on a
salaried basis. They were Robert Horn, Barney Sabor,
Tom Conti, and Howard Kinter, Harold's brother. Sabor
constituted the one-man produce and dairy department,
and all parties agree that he is properly included in the
stipulated unit. The General Counsel contends that Conti
was the head of the meat department (which consisted of
himself and Howard Kinter, meatcutters, and Kolesar,
the part-time wrapper), and as such must be excluded as
a supervisor. As for Howard Kinter, the General Counsel
argues that he should also be excluded, either as a super-
visor , a management official, or because as Harold's
brother, he enjoyed a special status allying him to
management. As for Horn, whom Harold Kinter regarded
as his right-hand man and assistant manager, the General
Counsel argues that he was not a supervisor. The
Respondent, with more of a semblance of consistency,
does not specifically urge Horn's exclusion from the unit,
and contends that neither Conti nor Howard Kinter were
supervisors.
Although the store was open 12 hours per day, 7 days
per week, and Harold Kinter was not there all the time, it
is established that he was there almost every day for
much of the day. He was its sole effective operating offi-
cial, did all the hiring, firing, and scheduling of employees,
and made all but the most minor, routine decisions. The
scope for supervision, for others than Harold Kinter, was
extremely limited. Conti placed orders for those meat
items that were used every week, but needed Harold
Kinter's permission to order anything new. Kinter chose
the supplies. Conti and Sabor were paid $100 per week,
while Horn and Howard Kinter each received $110 per
week. Except for his limited additional responsibility in
ordering, Conti did the same work, cutting and displaying
meat, as Howard Kinter. Conti had on occasion per-
mitted Kolesar, the wrapper, to leave 10 or 15 minutes
before the end of her shift if all her work was completed.
Although Horn's duties were not developed in detail,
he apparently worked throughout the store on a variety of
tasks, and more than anyone else, assisted Harold Kinter
in carrying out the latter's functions. However, neither
Horn nor Conti, in my opinion, satisfy any of the disjunc-
tive indicia of supervisory authority enumerated in Sec-
tion 2(11), since they either did not exercise the types of
authority specified therein, or did so only in a routine
fashion. I find therefore that both Horn and Conti are
properly included within the appropriate unit.
enforcement denied 344 F. 2d 617 (C.A. 8).
'Madison Brass Works, Inc., supra.
KINTER BROS ., INC. 65
Howard Kinter's status presents a different problem.
He was the secretary of the corporation and the brother
of its president. He worked full time as a meatcutter with
no discernible special privileges as to hours or conditions
of employment, nor did he have even the glimmerings of
supervisory or management authority possessed by Con-
ti. The General Counsel urges that even if he was not a
supervisory or a management official, Howard Kinter
should nevertheless be excluded because of his special
status. In only one respect, so far as I can ascertain, was
Howard Kinter treated more favorably than Conti or
Sabor. Howard Kinter and Horn were each paid $110 per
week, according to General Counsel Exhibit 9, while
Conti, who had slightly more responsibility than Howard,
received $100 per week.
Harold Kinter testified that he paid Horn and his
brother bonuses of $10 per week. In Horn's case, he said,
it was for maintaining profitable operations in the store
and for acting as his right-hand man; but he offered no ex-
planation as to why his brother was paid a bonus which
raised his total remuneration above that of the meat de-
partment manager. Differences in pay between in-
dividuals performing similar services may be due to a
variety of legitimate business reasons, but where a close
relative of the owner receives a higher wage than others
for doing the same work, an inference that it is based on
the family relationship is warranted in the absence of any
other explanation. I find that Howard Kinter was paid a
$10-per-week bonus because he was the brother of
Respondent's president, that his interests were closely al-
lied with those of management because of the extra
remuneration paid him, and that as a consequence he
should be excluded from the unit. 10
I find, in accordance with the foregoing, that with Con-
ti, Horn, and Woc included, and Howard Kinter ex-
cluded, the stipulated appropriate unit comprised 12 em-
ployees on October 27, 1965, the date of the Union's
request for recognition.
(3) The Respondent contends that the authorization
cards admittedly signed by Terry Radcliffe and Theresa
Reichard were obtained by a misrepresentation on the
part of the union representatives who solicited their
signatures which was so serious as to nullify their effect,
and justifies their not being counted.
The authorization cards which Radcliffe, Reichard, and
the other employees signed are clear and unambiguous.
They read: "I, the undersigned, an employee of
hereby authorize Retail Store Employees Union Local
880 to represent me for the purpose of collective bargain-
ing."
Terry Radcliffe was a part-time employee and high
school student, who was 15 years old when he signed the
card. He testified that two union representatives, later
identified as Norman Rogers and Elwood Heabler, came
to his home on July 14, 1965, and spoke to him for about
a half hour in the presence of his parents. All he could re-
member of their conversation was that they said they
were union men and were trying to come into Mr.
Kinter's store, that some of the other employees wanted
it and had already signed up. He remembered nothing else
except that as they were ready to leave, they asked him to
sign a card to show that they had been there. Terry then
signed the card. His father, who is a union steward at his
place of employment, was present when he signed, but
did not look at the card or tell him what to do.
Mrs. Reichard was employed at the Kinter store
between September and December 1965 She signed an
authorization card on October 25, 1965. Norman Hanna
and Addison Mills, union representatives, visited her for
20 to 30 minutes at her home, in the presence of her
husband, on October 25. She testified that they told her
about a pending case against Mr. Kinter involving an em-
ployee who had been discharged and whom they were
trying to help. They then asked her to sign an authoriza-
tion card so that they could show their boss that they had
been out to see her. She read the card, filled it out, and
signed it. Thereafter, they said something about better
wages and working conditions and bringing a booth into
the store for voting. She asked them if this would "im-
plicate" her in any way and they said it would not, that
only they and their boss would see the card. If there was
more to the conversation, Mrs. Reichard was unable to
recall it after a fairly lengthy examination and cross-ex-
amination.
Rogers and Heabler denied telling Radcliffe that they
wanted him to sign the card to show that they had been
there; and Hanna and Mills also denied telling Reichard
that they asked her to sign a card so they could show their
boss that they had been out to see her.
The thrust of Respondent's defense as to the Radcliffe
and Reichard cards is that though they had read the cards
and thereafter signed them, they did so because of a
fradulent representation that their signatures were
wanted only to prove that the union representatives had
actually been out to see them.
The representatives who obtained these two cards
were full-time officials or employees of the Union. It
strikes me as unlikely that experienced union officials as
these were would resort to such a transparently irrelevant
appeal, particularly in the presence of adult members of
the signer's family. Simply as a conjecture, it may be that
the union representatives attempted to overcome some
initial reluctance to sign by urging Radcliffe and Reichard
to indicate then and there that they were favorably
disposed to what the Union was seeking, rather than have
the organizers return on some later occasion. But conjec-
ture aside, I am persuaded on the basis of the demeanor
of Rogers, Heabler, Hanna, and Mills, and the relative
probabilities of the situation, that they did not ask either
Radcliffe or Reichard to sign only that they might show
their superiors that they had been out to visit them.
In any event, I do not consider the representation, even
if made, to have been either fradulent or coercive' 1 The
alleged representation was that their signatures would
prove that the organizers had in fact visited them. The
signatures would thereby be physical evidence which the
organizers might rely on to show their superiors that Rad-
cliffe and Reichard had in fact decided to support the
Union. I find, therefore, that the authorizations signed by
Radcliffe and Reichard to have the Union represent them
for the purpose of collective bargaining are valid, having
been obtained without fraud or coercion.
10 Cherrin Corporation, 147 NLRB 527, in 2, enfd 349 F 2d 1001
(C A 6), cf Research Craft Mfg Corp, 129 NLRB 723, 726
11 The validity of signatures on an authorization card can be overcome
only by establishing that the union obtained the signatures through coer-
cion or by representing to the employees that, despite the purpose clearly
and expressly stated on the cards themselves, they would be used only for
a different or limited purpose Aero Corporation, 149 NLRB 1283, 1290
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To summarize my findings , the employees properly in-
cluded in the appropriate unit on October 27, 1965, are:
Pike, Kolesar, Conti, Grund, Horn , Johnson , Locker,
McGarry, Sabor, Radcliffe, Reichard , and Woc (who
although not on the payroll on that date is included
because she had been unlawfully discharged on August
23, 1965, and remained an employee of Respondent). As
the Union's request for recognition was supported by
seven valid authorization cards, I find that the General
Counsel has established that the Union was the repre-
sentative of a majority of Respondent 's employees on
October 27, 1965.
(4) Respondent justifies its refusal to recognize the
Union after the demand of October 27 by asserting that
Harold Kinter had a good -faith doubt of the Union's
majority in view of the withdrawal of its petition 2 months
previously, and the fact that at least nine employees had
advised him orally or in writing that they had not signed
union authorization cards.
In a recent statement of the principles applicable to
cases in which an employer rejects a request for bargain-
ing on the ground that an election is the best proof of a
union ' s claimed majority , the Board said, in Aaron
Brothers Company of California, 158 NLRB 1077, 1078,
1079: (Citations omitted.)
While an employer' s right to a Board election is
not absolute , it has long been established Board pol-
icy that an employer may refuse to bargain and insist
upon such an election as proof of a union 's majority
unless its refusal and insistence were not made with
a good-faith doubt of the union ' s majority . An elec-
tion by secret ballot is normally a more satisfactory
means of determining employees ' wishes, although
authorization cards signed by a majority may also
evidence their desires . Absent an affirmative show-
ing of faith , an employer, presented with a majority
card showing and a bargaining request, will not be
held to have violated his bargaining obligation under
the law simply because he refuses to rely upon cards,
rather than an election , as a method for determining
the union 's majority.
Whether an employer is acting in good or bad faith
in questioning the union 's majority is a determination
which of necessity must be made in the light of all the
relevant facts of the case , including any unlawful
conduct of the employer, the sequence of events, and
the time lapse between the refusal and the unlawful
conduct . Where a company has engaged in substan-
tial unfair labor practices calculated to dissipate
union support, the Board , with the courts' approval,
has concluded that employer insistence on an elec-
tion was not motivated by a good -faith doubt of the
union ' s majority, but rather by a rejection of the col-
lective-bargaining principle or by a desire to gain
time within which to undermine the union However,
this does not mean that any employer conduct found
violative of Section 8(a)(I) of the Act , regardless of
its nature or gravity , will necessarily support a
refusal - to-bargain finding For instance , where an
employer's unfair labor practices are not of such a
character as to reflect a purpose to evade an obliga-
tion to bargain , the Board will not draw an inference
of bad faith.
On the other hand , an employer 's bad faith may
also be demonstrated by a course of conduct which
does not constitute an unfair labor practice.
Here, the record reveals that as soon as Kinter learned
of the Union's organizing activities in mid -July, he took
steps calculated to interfere with his employees ' wishes
to organize . Thus, as soon as he received acopy of the
petition , he forced each employee to reveal whether he
had joined the Union or had talked to anyone from it. He
had not even an ostensibly legitimate reason for asking
them to reveal their union sentiments , since at that time
the Union was only requesting an election and not im-
mediate recognition . The only purpose for this intrusion
into their affairs was to learn what he could about who the
Union' s adherents were, and to use the information to
achieve its defeat. Hunt and Kolesar were dealt with
promptly-the former, by forcing her to pay her entire
grocery bill at once, and the latter by an immediate reduc-
tion in her scheduled hours. Woc was dealt with later, but
more harshly. Hunt , Morley, Grund, and Kolesar were all
the recipients of open threats or of veiled implications
that those who had signed union cards would suffer for it.
Thus, by the time the Union formally requested recog-
nition, the effects of Respondent 's violations of its em-
ployees' rights to engage in union activities were still
being felt by Kolesar and Woc-effects which were
visibly apparent to all the other employees , and which
would serve to inhibit their activities as well . It is in the
context of these earlier reprisals and threats that Kinter's
approach to the employees after October 27, requesting
them to subscribe to the affidavit "of our free will and
choice" that they had not signed union authorization
cards, must be evaluated . It should occasion no surprise
that four of the nine employees who signed the affidavit
chose to conceal the fact that they had signed cards, nor
can it reasonably be said that Kinter could, in good faith,
believe that the affidavit was a voluntary expression of
his employees ' desires or past actions.
Finally, the grant of an unexplained bonus to the em-
ployees on October 27 is further indicative of Respond-
ent's rejection of the collective-bargaining principle, and
its desire to gain time in which to dissipate the Union's
strength . Respondent ' s misconduct , contemporaneous
both with the inception of the Union' s campaign and its
request for recognition , belies its protestations of a good-
faith doubt as to the Union ' s majority status.12
I find, on the basis of the foregoing and upon the entire
record , that Respondent did not, on October 27, 1965, or
thereafter , entertain a good-faith doubt of the Union's
majority in an appropriate unit, but rather , that its refusal
to recognize the U nion was based on its opposition to the
self-organizational rights of its employees . I also find that
since the same date Respondent has refused to bargain
collectively with the Union as the exclusive representa-
tive of its employees in an appropriate unit, thereby
violating Section 8(a)(5), and has interfered with,
restrained , and coerced its employees in the exercise of
rights guaranteed in Section 7, in violation of Section
8(a)(1)
12 Joy Silk Mills, Inc 85 NLRB 1263, enfd 185 F 2d 732 (C A D C ),
cert denied 341 U S 914, Boot-Ster Manufacturing Company, Inc , 149
N LRB 933 , enfd 361 F 2d 325 (C A 6)
KINTER BROS, INC.
D. Alleged Violations of Section 8(a)(1), (3) and (4) At
and After the First Hearing
(1) On February 17, 1966, the third day of the first
hearing in this case, Norman Rogers, an official of the
Union, testified that he had solicited and obtained a
signed authorization card from Robert Horn on July 15,
1965. Kinter was then present at the hearing, while Horn
was at the store. This was Kinter's first indication that
Horn, whom he regarded as his right-hand man, had
signed a union card. When the hearing recessed that day
at 11 a.m., Kinter returned to the store. What allegedly
happened thereafter is graphically revealed by the
General Counsel's motion to amend the complaint, made
the next morning, that on February 17, Kinter threatened
Horn with bodily harm and terminated his employment
because he had joined or assisted the Union.
Kinter arrived at the store about 11:30 a.m., and before
removing his hat and overcoat, went to the meat depart-
ment at the rear of the store where he picked up a meat
cleaver. He then came back to the produce department to
confront Horn. In a loud voice Kinter called him a patsy
and a fink, and accused him of giving information about
the store to the Union. He raised the cleaver somewhere
between waist and shoulder level and swung it as he stood
facing Horn, who backed away. The testimony is unclear
as to where they then moved and who followed whom,
but at some point Horn asked Kinter what he intended to
do with the cleaver. Kinter said he would use it if he had
to, and then told Horn to get out. Kinter walked away and
Horn asked for his pay before he left. Kinter said he
would pay hem when he got the money, and Horn there-
upon left. The above recital is based on Horn's testimony.
Kinter testified that when he got back to the store on
February 17, he noticed that the sound system was off,
and immediately went to the meat department for a
cleaver to pry off the metal screen on the amplifier. He
met Horn and said to him, "I hope you can sleep well at
night," and accused him of lying to him for the last 8
months. He denied that he yelled or made any threatening
gesture with the cleaver, which he held at his side. As to
Horn's termination, Kinter said that Horn offered to ex-
plain himself but when Kinter said no explanation was
needed, Horn asked for his pay and said he would leave.
Barbara Locker, a cashier who was on duty at the store
that day, overheard part of the Horn-Kinter conversation
which took place near the produce rack and substantially
corroborated Kinter's version.
I credit Horn as against Kinter and Locker where their
testimony is in conflict. It seems improbable that Kinter's
first concern when he reached the store, considering his
agitated state over the disclosure that Horn had signed a
card, should be the absence of soothing music, or that he
would immediately pick up a cleaver to begin work on the
sound system. It is much more likely, and I so find, that
Kinter got the cleaver to intimidate Horn. Whether Horn
was actually fearful of violence is, of course, irrelevant.
No employee should have to decide whether his em-
ployer's anger over his union activities may actually
result in physical harm to him. I find that Kinter's con-
frontation with Horn and the accompanying threat to his
person on February 17 is a violation of Section 8(a)(1).
1 3 Horn's testimony that he was discharged was in effect corroborated
by Carol Thompson, who testified credibly at the second hearing that in a
conversation she had with Kinter during her application for employment
early in March 1966 he told her that Horn was a leader in the organiza-
67
I also credit Horn's testimony that Kinter told him to
get out, and I find that Horn correctly understood this to
mean that he was being discharged because of his support
of the Union.13 The discharge was therefore in violation
of Section 8(a)(3).
The next day, Louis Belkin , Respondent's attorney,
told Horn orally that he could have his job back, and also
handed him a letter telling him he could return to his job
with the same benefits and friendly circumstances of the
past few years. Again, while Horn was testifying on these
matters on February 23, the attorney extended him an
unconditional offer to return to his job with no strings at-
tached. I consider the two offers on February 18 and the
one on February 23 to have been bona fide unconditional
offers of reinstatement, and I therefore find that Respond-
ent's obligation to offer Horn reinstatement to his
former job has been fully satisfied.14 As Horn was paid a
weekly salary without deduction for hours not worked, he
would not have suffered any loss in pay if he had accepted
the reinstatement offers made him the day after his
discharge. There is therefore no need for me to order
restitution for loss of subsequent earnings, if any.
(2) Paragraph 9 of the complaint in Case 8-CA-4178
alleges that Respondent "interrogated employees con-
cerning their union membership, activities, sympathies
and desires ... " and threatened them with discharge,
layoff, and other economic reprisal if they selected the
Union as their collective-bargaining representative. I as-
sume that General Counsel adduced the testimony of
Carol Thompson, an applicant for employment, in partial
substantiation of these allegations. There is no allega-
tion in the complaint that Thompson's application for
employment was rejected for discriminatory reasons.
Thompson testified that in response to a "help-wanted"
newspaper advertisement she applied to Kinter for a job
early in March 1966. Kinter already knew her since she
then owed him more than $90 for groceries. She filled out
an application, and in the course of their conversation,
Kinter told her he had been having some trouble and that
the Union was trying to get in. He then asked her what
her opinion of the Union was, and what her husband
thought of it. In some unrevealed manner, Thompson
shortly thereafter gave an affidavit to the Board's Re-
gional Office on her interview, and in another unrevealed
manner, Kinter found out about it. On March 26, Thomp-
son went to the store to make a $10 payment on her bill.
Kinter asked her why she had run to the Labor Board,
and Thompson denied that she had. She then said that
she had only told the truth when she was asked to give
an affidavit, so that she would not have to go to court.
Kinter said to her, "If they don't take you to court,
I will."
I am satisfied from the context, that these remarks
about a court appearance actually relate to a Labor Board
hearing, and that Kinter was not threatening her with
legal process over the debt she owed him in retaliation for
having given an affidavit. I find, based on Thompson's
credited Testimony, that Kinter's questions as to what she
and her husband thought about the Union were coercive
and violative of Section 8(a)(1).15 Since the evidence fails
to establish that Kinter threatened her with economic
reprisal or failed to employ her because of the answers
tional campaign and that he had had to let him go
14 Elton-Williams Co., Inc , 149 NLRB 1242, 1244 and Howard Quar-
ries, Inc , 150 NLRB 873, 874
15 Ontario Foods, Inc , 144 NLRB 1057, 1058
310-5410-70-6
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she gave him or because of the affidavit she gave to the
Regional Office, I do not find any further violations based
on Thompson's two conversations with Kinter.
At the May hearing, Horn testified that the morning of
February 17, 1966, while the first hearing was in
progress, Harold Kinter met with Horn, Conti, and
Harold's brother, Howard, to brief them on what was to
he done with the union adherents in the store. Kinter told
them, since all were then in his confidence, that they
would have a freeze-out campaign with the ones who had
signed up with the Union, to make it rough on them so
that they would get disgusted and quit. There was to be
no conversation with them and they were to be given the
hard jobs. Horn further testified that Harold Kinter
specifically mentioned Olga Grund, Joan Woc, and Helen
Kolesar as being in this category. There is no evidence to
refute Horn's testimony on this point.
(3) I have already found that Woe had been dis-
criminatorily discharged on August 23, 1965. On Febru-
ary 24, 1966, just after the close of the first hearing, Kinter
wrote Woc instructing her to return to her job within a
reasonable length of time. Woc first telephoned him and
then sent him a telegram asking if his letter was an uncon-
ditional offer of reinstatement. On February 26, he wrote
her saying it was and instructing her to report on or before
March 3. She did so on that date, and thereafter worked
steadily into July 1966. The composite allegations of the
complaint in 8-CA-4178 (tried on May 24, 1966) and 8--
CA-4310 (tried on November 14, 1966) with respect to
Woe's employment between March 3 and August 3,
1966, when her employment again terminated, are that
Respondent discriminated against her in violation of Sec-
tion 8(a)(1), (3), and (4) by scheduling fewer hours of
work, less desirable shifts, and less desirable job tasks
than she had previously enjoyed, and that it constructive-
ly discharged her on August 3, 1966.
When Joan Woe was discharged in August 1965, she
had worked as a cashier longer than anyone in the store
except Olga Grund. Before Kinter learned of Woe's
union involvement, she worked five to seven shifts a
week, most of them days. Late in July and into August
1965, she was gradually assigned to the less desirable
evening shifts. When she returned on March 3, 1966, she
worked three evening shifts per week until the first week
in May. After May 9, she worked five evenings per week
and toward the end of that month she worked 15 consecu-
tive days without a day off. When she asked Kinter for
some time off, he told her he couldn't because he was
shorthanded, and if she did not like her schedule, the door
was open. She continued to work.
Before Kinter had learned of her union sympathies in
July 1965, Woe performed a cashier's normal duties, such
as checking out customers' purchases at a cash register,
changing prices, putting up stock when 'business was
slow, filling in at the postal substation, and occasionally
dusting shelves and doing other cleanup work. When she
returned on March 3, 1966, she was assigned only to
putting up stock and dusting shelves. On April 29 she
was told to wash the shelves. The record is unclear
whether she actually did so then, but after that date she
was reassigned to running a register for part of each shift.
Toward the end of June, Olga Grund, the oldest em-
ployee in point of service, quit, and Kinter hired some
new cashiers. Although it had always been understood
16 According to Woc, and corroborated by other testimony, the
schedule was never posted before Sunday evenings and was frequently
since she began working there (and Kinter had told her so
again in April 1965), that the most senior cashier had
some kind of priority on the choice of shifts, Woe was not
given the opportunity to work the day shift, which she
preferred.
One day in mid-July on reporting to work, she asked
Barney Sabor what she was to do. He told her to get a
bucket and wash the empty spaces on the shelves. She
asked what specific shelves, and was told the one where
the cake mixes were. She washed that shelf, put the
bucket away, and had started to put up stock again when
Kinter came by and said that he had told her to wash all
the shelves. She finished what she was doing, and Sabor
then brought her the bucket and repeated that all the
shelves were to be washed. She started to do so, at the
same time noticing that Kinter and one of the cashiers
were watching her and laughing.
On July 16, Woe went to see her doctor about her con-
stant nervousness. He gave her some medication and ad-
vised her to take at least a week off from work. Either that
day or the next, Woe sent Kinter a telegram that she was
under a doctor's care and would not report for work all
the next week. The following Sunday about noon, Woe
called Kinter to ask what her hours were for the next
week. He told her that she was not scheduled for that
week, and when she pointed out to him that her telegram
had said she would be off just one week he said the
schedule was already up and he would not change it.16
Woe then asked him if she was scheduled to work the
week after that, but Kinter hung up without answering.
The following Saturday she called Kinter to tell him she
was ready to go back to work, and the next day she sent
her daughter to the store to look at the schedule. It
showed that her first day of work was to be Wednesday,
August 3, from 3 to 9 p.m. When she reported on that
date, she asked Sabor what she was to do. He told her to
ask Kinter. She did, and Kinter told her to ask Sabor. She
returned to Sabor and this time, ceasing his childish game,
he told her to get a bucket and wash shelves until supper.
From 3 to 6 p.m. is a busy time at the store with two
cashiers at the registers. That day, however, there was
only one cashier, a woman who had recently been hired.
After Woe started on her shelf-washing duties, Kinter
took over the other register. Conti saw Woe at work,
came down the aisle laughing, and asked her if she was
the new scrubbing woman.
She worked until suppertime, and after returning she
put up stock for a while and was then assigned to a re-
gister. Kinter then came over, told her to clean up the
mess which had apparently been left at her register by
other cashiers, and then to put up stock and dust shelves.
She did so, and shortly after 9 p.m. she went to check out
her register with Kinter. He told her that she was to do
what he wanted her to, and that he did not like the way
she had been dusting shelves. The day's events had left
her upset and nervous and she was unable to sleep that
night. The next day she called the Union's attorney to tell
him that she could not go back to work, and that after-
noon sent Kinter the following telegram:
Due to your treatment and action against me yester-
day I have become ill and unable to work. Will let
you know when I will return.
Thereafter, she visited the doctor once for her ner-
vousness and for other unconnected ailments. Although
not posted until Monday or even later.
KINTER BROS., INC. 69
she has felt well since then , she has not communicated
with Kinter nor offered to return to work.
Kinter testified that during the period from May to Au-
gust 1966, Mrs. Woc had never complained to him about
her schedule, hours, or working conditions, or indicated
in any way that she was dissatisfied. As to the events of
August 3, he said that despite his instructions to Woc to
dust and face the shelves, she did practically no work for
3 hours, and that was why he reprimanded her privately
while she was being checked out.
Whether or not Woc had complained to him, it is clear
that Kinter's conduct was designed to carry out the plan
he had announced to Horn and the others some months
previously. Woc was not given the amount of daywork
she had formerly had, and which the senior cashier had
been entitled to, under Respondent's past practice. She
had not been given her formerly regular five to seven
shifts per week when she returned in March, but instead,
her scheduling was erratic, varying from too little to too
much.
Everything that Woc was assigned to do after her
return in March 1966 had been done and was being done
by other cashiers. Locker, for example, testified that she
had washed shelves on occasion , and it is established
from the testimony of both Woc and Grund that dusting,
cleaning up, and stocking shelves were all part of a cash-
ier's routine duties. But that Woc was assigned more of
the housekeeping duties than other cashiers , including
some who were newly hired, is as clear as the fact that she
was also subjected to Kinter's open unfriendliness and
petty harassments.
There is no exact standard against which one may
measure an employer's treatment of an employee, or the
extent of an employee's required toleration of an unpleas-
ant situation. Only those who do not need to work can
insist on ideal working conditions; the rest must always
put up to some extent with what they regard as unreason-
able demands of their supervisors, and the consequent
hurt to their self-esteem and dignity. By and large, those
cases in which the Board has found that an employee has
been constructively discharged have involved sudden
and massive changes in working conditions - for ex-
ample, assigning him work which he cannot do or has
never done before, or requiring him to work under de-
grading conditions , or under the most stringent super-
vision.17
My conclusion, after weighing all the factors involved,
is that Woc's separation on August 3, did not amount to
a constructive discharge . I have taken into account the
fact that she had already been discriminatorily discharged
once, a year before her final separation; that she had been
reinstated in March 1966 to a job which was not wholly
equivalent in hours or duties to her previous position; that
Kinter wanted her frozen out; and that he succeeded in
making her uncomfortable and unhappy.
Counterbalancing these considerations is, however, the
fact that Woc had been able to continue work for 4
months, from March to July 1966, under these unpleasant
circumstances. She had then taken a week off, on short
notice , on the ground that she was ill. She returned,
worked another day, and then informed Kinter that she
was again ill and would advise him when she was ready to
return. The events of August 3 were no different in kind
than what she had suffered through for the past 4 months.
I do not mean to be unduly technical in construing Woc's
telegram of August 4, but if Woc had intended to quit
because Kinter 's treatment had made her too ill to work,
one would expect her to say so. Instead , after discussing
the situation with the Union 's attorney , and setting out
her position in a formal communication , all she told
Kinter was that she was too ill to work (as had happened
before ) and that she would return (as she had also done
before). Kinter had no reason to suspect at that time that
she was taking more than a temporary leave of absence.
For 3 weeks, Woc did not let him know whether she in-
tended to return , and it was only when he received a
notice from the unemployment compensation office,
about August 22, that Kinter first learned that Woc con-
sidered the employment relationship to be severed.
I consider it is a reasonable conclusion under these cir-
cumstances to hold that Woc had not made up her mind
on August 4, as to whether it was impossible for her to
work any longer under the conditions of the past 4
months. The issue in constructive discharge cases is
whether it was the employer 's actions which forced the
employee to leave unwillingly . I am not persuaded that
Woc's situation had so deteriorated by August 4, that she
was justified in treating her continued employment as in-
consistent with her good health or dignity.
Although I will not recommend that Woc be reinstated,
I will recommend that she be reimbursed for any wages
she may have lost because of Kinter ' s discrimination
against her between March 3 and August 3, 1966.
(4) Grund had been employed longer than any of the
other cashiers . She had first call on the desirable day
shift , acted as mistress of the postal substation at the
store, and did some minor bookkeeping for Kinter. The
complaints in Cases 8-CA-4037 and 4071, as amended
at the hearing , alleged that beginning in February 1966,
Respondent provided Grund with less employment than
she would normally have received because of her activi-
ties on behalf of the Union. The complaint in Case
8-CA-4178 (tried in May 1966) alleged further that she
was discriminated against by assigning her less desirable
shifts and less desirable work tasks , and that she was
suspended in March 1966 , as a consequence of her union
activities , and her testimony at the hearing in February
1966. To complete her employment history with Re-
spondent , I note that Grund left her employment some-
time in June 1966, under circumstances not developed at
the last hearing , and not the subject of any allegation in
Case 8-CA-43 10.
Grund testified at the first hearing that in the week
from February 7 through 14 she had been scheduled for
22 hours per week, although formerly she had worked
from 27 to 38 hours per week at the second hearing,
Grund testified that on February 20, while the first hear-
ing was still in progress , Kinter told her not to work in the
post office and she saw Barbara Locker, one of the other
cashiers , take over her former duties there . On Saturday,
March 5, about 10 a.m., while she was putting up stock
and while Locker was working in the post office , Kinter
came up to her and told her she was suspended for a
week . Grund left without asking him the reason for the
sudden step . She returned after a week's suspension, and
on Monday, March 14, as she was working at her reg-
ister , Kinter told her that there was a customer waiting
17 Springfield Garment Manufacturing Company, 152 NLRB 1043,
1057-62, Tennessee Packers, Inc, 143 NLRB 494, 510, enfd 339 F.2d
203 (C A 6), and BelserAv,at,on Corporation, 135 NLRB 450
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the post office. She told him that he had restricted her
from working there, and he said nothing. Nevertheless,
she went to the post office and waited on those in line. As
she was leaving the office, Kinter told her she was again
suspended for 4 more days. She left without further con-
versation, and returned after the suspension period.
About 2 weeks later on a Thursday, as Grund was start-
ing to work, Kinter and Sabor came up to her, and Kinter
said that he understood she had not worked in the post of-
fice the day before. She admitted that she had not,
because he had told her not to. After calling her a liar, he
told her that from then on she was to work in the post of-
fice with the exception of the bookkeeping work. (This
refers to duties which Grund had been performing on
store records.) Then he suspended her for the rest of the
weekend. When she returned from this last suspension,
she went back to work in the post office as before. After
February 1966, Grund had been working as many or
more hours than before that time, but on an afternoon or
evening shift instead of 9 a.m to 3 p.m. hours she had
formerly worked.
Kinter testified that he had told Grund almost daily that
she was to wait on customers in the post office when she
was available, but that she refused to do so on the ground
that he had previously told her not to work there. He also
testified that he had never told Grund she was not to
work in the post office and further, that he had told her
each time he suspended her that it was because of her
refusal to do so.
Barbara Locker, a cashier, corroborated Kinter's
testimony that he had told Grund, on the occasion of each
suspension, that it was because of her refusal to wait on
the postal patrons.
Although there are gaps and unexplained circum-
stances in the testimony of all the witnesses concerning
Kinter's instructions to Grund about her duties at the
post office, I believe that the testimony, as best pieced
together, indicates that before the first hearing, Grund, as
the senior cashier and the one who was normally on duty
when the post office was open for business, was expected
to be the first to respond when patrons approached the
post office cage and to remain there as long as necessary
to serve them. She apparently also had some responsibili-
ty in accounting for the money taken in from the opera-
tion of the post office. I find that Kinter, because of his
animus against the Union and Grund's continued ad-
herence to it as revealed by her testimony at the February
hearing, decided to deprive her of the prestige accruing to
the cashier who was considered to be the postmistress,
and that he assigned Locker to replace Grund in that
position. This is also corroborated by the fact that an offi-
cial of the Mentor Post Office came to the store in
February to instruct Locker and another cashier on their
duties. These must have been additional duties relating to
accounting for postal receipts, since Locker was already
familiar, as were all the day cashiers, with the techniques
required to sell stamps and make out money orders. Thus,
Grund was deprived of her position of "first among
equals" with respect to the operations of the post office.
Apparently she resented it, and as a consequence, refused
to assume the responsibility of every cashier to step in
whenever the "post-mistress" was busy at her own re-
gister checking out store customers.
Kinter also removed Grund from her duties of keeping
some store records for him, ostensibly on the ground that
there were unexplained shortages of cash. Although his
testimony about the shortages is difficult to follow and
quite unbelievable, I find it no unlawful discrimination to
take away Grund's bookkeeping duties. In effect, Gerund
had certain responsibilities removed without any change
in wages, hours, working conditions, or classification. In
any event, since Grund has since left voluntarily, there is
no necessity, even though Kinter's actions may have been
based on Grund's union activities, to order her reinstated
to her former or substantially equivalent position, or to
decide whether the bookkeeping and postmistress parts
of her responsibilities were an essential element of her
job.
However, the three suspensions which Grund suffered
present the question whether Grund is entitled to be reim-
bursed for the losses in pay suffered thereby. If the
suspensions were imposed in retaliation for Grund's exer-
cise of her right to engage in union activities or because of
her testimony at the first hearing, then Section 8(a)(3) or
(4) has been violated, and Grund should be reimbursed
for the pay lost thereby. On the other hand, if Grund had
been suspended for insubordination in refusing to per-
form normal assigned duties, then Respondent has in-
curred no liability.
Although I have discredited Kinter with respect to
much of his testimony, I find that in this instance Kinter's
version, which was also corroborated by Locker, is more
credible than Grund's. As I have noted above, Kinter
gave Locker the added responsibilities and the attendant
prestige of being the postmistress. Grund seemingly con-
strued this as her justification for not stepping into the
post office cage under any circumstances. Having been
unfairly replaced, her willingness to cooperate with
Kinter or her successor in the post office was at the
vanishing point. In effect, Grund was opposing Kinter's
pettiness with technicalities. I find, based on Kinter's
credited testimony, that he had told her to assist in the
post office when it was necessary, even though she was
no longer clothed with her former status. Although this
constituted a demotion in her eyes, and was intended by
Kinter as such, I do not believe it follows that Grund
could therefore refuse to carry out her new duties which
were obviously not onerous, arduous, or demeaning. She
had suffered a blow to her pride, but her refusal to per-
form her cut-down postal duties was insubordination, for
which Kinter could properly discipline her.
I find that any losses in pay occasioned by Respond-
ent's rescheduling or reduction in the amount of work
Grund previously performed was due to Respondent's
discriminatory treatment of her in violation of Section
8(a)(3) and (4), but that her suspensions in February and
March were based on her insubordination and are not in
violation of those sections.
(5) 1 have previously held that Kolesar's hours of
work were discriminatorily reduced from a minimum of
33 hours per week to about 22 hours. This schedule
prevailed from approximately August 1965 to March
1966. About that time, Howard Kinter, Harold's brother,
left his employment as meatcutter at the store. As the
meat department was thus left short handed, Kolesar's
hours were increased to 40 per week at the end of March.
Early in July, a new meatcutter was hired, whereupon
Kolesar's hours were again reduced, this time to 16 per
week. The General Counsel contends that the hiring of a
new, inexperienced meatcutter, although perhaps justify-
ing some reduction in Kolesar's schedule, did not justify
a reduction from 40 to 16 hours per week. He urges that
KINTER BROS., INC.
Respondent 's failure to assign her to the same number of
hours which she worked before the advent of the Union
is attributable to Respondent ' s union animus and to
Kinter 's scheme to freeze out union adherents which he
revealed to Horn and Conti during the course of the first
hearing in February 1966.
It is Respondent 's position that it no longer has any
valid economic need for Kolesar 's services , and would
have laid her off completely for lack of work if it was not
anxious to avoid even the appearance of an unfair labor
practice . In effect , Respondent contends that the two
meatcutters it now employs could satisfactorily perform
all of Kolesar 's work.
Mrs. Kolesar has never done any meatcutting , nor has
she worked at any other jobs in the store in addition to her
wrapping and cleaning duties in the meat department.
While Howard Kinter occasionally did some work out-
side the meat department , the new cutter , William Elly,
does not. Before Elly was hired , the two meatcutters
worked 6 days per week , alternating Tuesdays and Sun-
days off. Now Elly and Conti also work 6 days, but both
of them are on duty Tuesdays and are off Sundays. Be-
fore Kolesar's hours were discriminatorily reduced from
33 per week , the meatcutters also did some wrapping
whenever Kolesar was not at work . After Elly was hired
in July 1966, and Kolesar 's hours were again reduced,
this time from 40 to 16 per week , the two meatcutters
continued their wrapping work whenever it was necessa-
ry.
Elly's rate of pay was not disclosed , but I assume that
it is greater than Kolesar 's since his primary Job requires
more skill than hers. Thus, from one point of view,
Respondent is paying him a higher rate for wrapping than
it pays Kolesar, but on the other hand , because Respond-
ent has more than enough work for one meatcutter but
not enough for two , it is more economical and efficient for
it to use Elly full -time, and to let him fill his time up with
whatever needs to be done in the meat department.
Conti and Kolesar alone were able to keep the meat de-
partment operating for about 4 months when there was no
second meatcutter , and with Conti and Elly both on duty
every day but Sunday , I am satisfied that the Respondent
no longer needs Kolesar's services for as much as 33
hours per week . It is not unheard of for an employer to
discover, after discriminating against an employee, that
with some shifting and changing of duties , the same quan-
tum of work can be performed'with fewer employees than
previously . I believe that that is what happened in August
1965, when Kolesar ' s hours were first reduced , and that
it was further borne out when Howard Kinter left, and the
meat department was able to operate with only two full-
time employees.
I am satisfied that when Kolesar's hours were in-
creased to 40 per week after Howard Kinter left, Re-
spondent ' s discrimination against her ceased , and that her
subsequent reduction to 16 hours per week in July 1966,
was motivated by economic rather than discriminatory
considerations . As to the earlier period , from August,
1965 to March 1966, 1 am unable to disentangle the per-
missible reasons for the reduction in her hours from the
impermissible reasons, and I shall therefore leave for the
compliance stage of the proceedings the question of how
long Kinter would have retained her at her former sched-
ule of 33 hours per week , absent the discrimination to
which she was subjected.
71
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with Respondent's
operations described in section I , above, have a close, in-
timate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V THE REMEDY
Having found that the Respondent has engaged in un-
fair labor practices violative of Section 8 (a)(1), (3), (4),
and (5) of the Act, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I have found that the Respondent for discriminatory
reasons discharged Joan Woc and Robert Horn . I do not,
however, recommend that they be reinstated as I have
found, in the case of Joan Woc, that she was not construc-
tively discharged after she returned to work following her
discharge in August 1965, and in the case of Robert
Horn , that he refused an unconditional offer of reinstate-
ment.
I shall recommend that Respondent make Woc, Grund,
and Kolesar whole for any losses in pay they may have
suffered because of the discrimination against them by
payment to them of such sums of money as they would
normally have earned as wages absent the discrimination.
Deductions shall be made from the backpay due these
employees of any interim earnings from other employers
on a quarterly basis in the manner provided in F. W.
Woolworth Company, 90 NLRB 298. Interest shall be
added to such adjusted backpay at the rate of 6 percent
per annum.
I shall also recommend that the Respondent bargain
with the Union upon its request.
Because of the Respondent 's failure to bargain in good
faith , its coercive interrogations and threats, its grant of
a bonus payment , and its discriminatory treatment of em-
ployees Hunt, Woc, Grund, Kolesar and Horn, it is
reasonable to conclude that the Respondent may in the
future, unless specifically enjoined , continue to deny its
employees their statutory rights not only in these, but in
other ways as well. I shall therefore recommend that the
Respondent be ordered to cease and desist in any other
manner, from interfering with , restraining , or coercing its
employees in the exercise of the rights guaranteed to
them by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following-
CONCLUSIONS OF LAW
1. By threatening its employees with bodily harm, loss
of work, harsher working conditions , or discharge; by
granting them a bonus; and by coercively polling its em-
ployees and interrogating employees and applicants for
employment about their desire for union representation
to discourage their support of the Union, the Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1).
2. By discharging employees , reducing their hours of
work , assigning them less desirable work shifts and tasks,
72 DECISIONS OF NATIONAL
and applying their wages to the payment of their personal
indebtedness in an unusual manner , Respondent has en-
gaged in unfair labor practices within the meaning of Sec-
tion 8 (a) (3), (4), and (1) of the Act.
3. At all times since October 27, 1965, Retail Store
Employees Union Local 880, Retail Clerks International
Association , AFL-CIO, has been the exclusive represent-
ative for the purposes of collective bargaining of a unit
consisting of all selling and nonselling employees at
Respondent 's store at Mentor , Ohio, excluding guards,
professional employees and supervisors as defined in the
Act.
LABOR RELATIONS BOARD
4. By refusing to bargain with the Union as the statu-
tory bargaining representative of its employees in the ap-
propriate unit described above , the Respondent has en-
gaged in an unfair labor practice within the meaning of
Section 8 (a)(5) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
6. Respondent did not engage in unfair labor practices
other than as found herein.
[Recommended Order omitted from publication.]