Kosher Plaza Supermarket

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 74 (N.L.R.B. 1993)

74
313 NLRB No. 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel, the Charging Party, and the Respondent
have excepted to some of the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 The General Counsel excepts to the judge’s reliance on the trans-
fers of employees between the meat department and other depart-
ments occurring after the unlawful discharges and on a shared
breakroom in finding a separate meat department unit inappropriate.
We do not rely on the postdischarge transfers of employees in adopt-
ing the judge’s finding. We also do not rely on the finding that meat
department employees share common breakroom facilities with the
other employees. We do observe, however, that the record shows
that the meat department employees on occasion eat their meals with
employees from other departments in the corridor near the storage
room. Based on all the other circumstances cited by the judge, in-
cluding transfers and interchanges occurring before the discharges,
we agree that a separate unit of meat department employees is inap-
propriate for the purposes of collective bargaining.
3 We shall modify the judge’s recommended Order regarding ac-
cess to conform to his recommended remedy.
Kosher Plaza Supermarket and United Food and
Commercial Workers International Union,
Local 342-50, AFL–CIO. Cases 29–CA–16577
and 29–CA–16580
November 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 23, 1993, Administrative Law Judge Steven
B. Fish issued the attached decision. The Respondent,
the Charging Party, and the General Counsel filed ex-
ceptions and supporting briefs. The Respondent also
filed an answering brief, and the Charging Party filed
an answering brief and a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions2 and to adopt the rec-
ommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ko-
sher Plaza Supermarket, Brooklyn, New York, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(e).
‘‘(e) On request, grant to representatives of Local
342-50 access to its premises to meet with employees
during worktime as it had previously granted to rep-
resentatives of Local 5.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT interrogate our employees concerning
their support for or activities on behalf of United Food
and Commercial Workers International Union, Local
342-50, AFL–CIO or whether they signed authoriza-
tion cards for Amalgamated Local 5.
WE WILL NOT threaten our employees with dis-
charge unless they signed authorization cards for Local
5, or invite our employees to quit their employment
because of such employees’ exercise of activities on
behalf of Local 342-50, thereby threatening them with
discharge by implying that support for Local 342-50
and continued employment with us is not compatible.
WE WILL NOT engage in surveillance of the union
activities of our employees.
WE WILL NOT permit representatives of Local 5 to
meet with our employees or to distribute authorization
cards to the employees on our premises during
worktime, while denying representatives from Local
342-50 the same rights and access to meet with such
employees on worktime and on our premises.
WE WILL NOT order and instruct our employees to
attend a meeting with representatives of Local 5, or to
sign authorization cards for Local 5, or attend meetings
conducted by Local 5 with our employees, or phys-
ically assist our employees in filling out authorization
cards for Local 5.
WE WILL NOT discharge or change the work hours
of our employees, because of such employees’ support
for or activities on behalf of Local 342-50, or because
they engaged in other protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the Act.
WE WILL offer Ronald Feldman, Alex Rosenburg,
Sergio Alvarez, and Igor Broytman immediate and full
reinstatement to their former jobs, or if these positions
no longer exist, to substantially equivalent positions of
employment, without prejudice to their seniority or any
other rights and privileges previously enjoyed.
WE WILL make whole Feldman, Rosenburg, Alvarez,
and Broytman for any loss of earnings and other bene-
fits suffered as a result of our discrimination against
them, plus interest.
75KOSHER PLAZA SUPERMARKET
1 All dates here unless otherwise indicated are in 1992.
2 Although every apparent or nonapparent conflict in the evidence
may not have been specifically resolved here, my findings are based
on my examination of the entire record, my observation of the wit-
nesses’ demeanor while testifying, and my evaluation of the reliabil-
ity of their testimony. Accordingly, any testimony which is incon-
sistent with or contrary to my findings is discredited.
WE WILL remove from our files any reference to the
discharges of Feldman, Alvarez, Broytman, and
Rosenburg, and notify these employees in writing that
this has been done, and that evidence of these unlawful
actions will not be used against them in any way.
WE WILL restore the hours and schedule that existed
prior to June 1, 1992, for Ronald Feldman.
WE WILL, on request, grant to representatives of
Local 342-50 access to our premises to meet with our
employees during worktime as we had previously
granted to representatives of Local 5.
KOSHER PLAZA SUPERMARKET
Kevin Kitchen and Jacqueline Knight, Esqs., for the General
Counsel.
Ira Drogin (Todtman, Young, Tunick, Nachamis, Hendler,
Spitz & Drogin), of New York, New York, for the Re-
spondent.
Herbert A. Simon and Martin Milner, Esqs. (Simon & Mil-
ner), of Valley Stream, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed on June 1, 1992,1 by United Food and Com-
mercial Workers Union, Local 342-50, AFL–CIO (Local
342-50, the Union, or the Charging Party), the Regional Di-
rector for Region 29 issued a complaint and notice of hear-
ing, on July 30, alleging that Kosher Plaza Supermarket (Re-
spondent) has violated Section 8(a)(1), (2), (3), and (5) of the
Act by in substance various acts of unlawful interrogations,
threats, keeping employees’ union activities under surveil-
lance, rendering unlawful assistance to Amalgamated Local
5 (Local 5), discharging four employees because of their ac-
tivities on behalf of Local 342-50, and refusing to recognize
and bargain with Local 342-50, the majority representative of
its employees in an appropriate unit. The complaint was
amended by order dated February 4, 1992, to allege an alter-
native theory for the discharge of employee Ronald Feldman
as a constructive discharge.
The trial with respect to the issues raised by the complaint
was heard before me in Brooklyn, New York, on 9 days be-
tween February 23 and March 11, 1993, when the hearing
was closed.
Briefs have been filed by Respondent, the General Coun-
sel, and the Charging Party and have been carefully consid-
ered. Based on my review of the entire record,2 I make the
following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a New York corporation with its principal
place of business located at 1223 Coney Island Avenue,
Brooklyn, New York, where it is and has been engaged in
the retail sale of grocery products, meats, and other food
products. Based on a projection of its operations since March
15, 1992, at which time Respondent commenced its oper-
ations, Respondent will annually derive gross revenues there-
from in excess of $500,000, and will annually purchase and
receive at its Brooklyn, New York facility meat, groceries,
and other goods, supplies, and materials valued in excess of
$50,000 directly from points located outside the State of
New York.
It is admitted and I so find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
It is also admitted and I so find that the Union and Local
5 are labor organizations within the meaning of Section 2(5)
of the Act.
II. FACTS
A. Respondent’s Operation
Respondent opened its supermarket in mid-March. It is a
supermarket specializing in kosher products, and is owned by
three partners, Josh Handler, Richard Scher, and Mark
Neuhaus (Mutti). Respondent’s operation includes a super-
market located at 1223 Coney Island Avenue in Brooklyn, as
well as a warehouse located across the street. Handler was
in charge of supervising the warehouse, and Scher and
Neuhaus were responsible for the supervision of the super-
market itself. As of May 1992, Respondent employed be-
tween 40 and 50 employees in its supermarket and ware-
house.
With the exception of Ronald Feldman, who was hired as
meat department manager, all of its employees in the store
were hourly paid, earning from between $4.25 and $7 per
hour. None of Respondent’s employees receive any fringe
benefits. The retail store was opened from 7 a.m. to 8 p.m.
from Sunday through Tuesday; from 7 a.m. to 11 p.m. on
Wednesdays and Thursdays, and from 7 a.m. to 3 hours be-
fore sundown on Friday, and was closed on Saturdays.
Respondent’s store is divided into several departments, in-
cluding dairy, produce, bakery, grocery, paper goods, health
and beauty aids, and meat. It also employed cashiers and
warehouse employees.
The meat department is located in an enclosed area in the
rear of the store, where Respondent employed a total of nine
employees, who worked primarily in the meat department, or
performed work tasks associated with the sale of meat.
Ronald Feldman as noted was hired when the store opened
as the meat department manager. His salary was $550 per
week for a 40-hour workweek. The meat manager was re-
sponsible for assigning work to the other employees, making
sure the showcase was filled, and determining when the re-
maining meat department employees were to start work and
to leave. Although as noted the store opened at 7 a.m., the
meat department employees frequently were told to report
earlier, usually between 5:30 and 6 a.m., so that meat could
be in the showcases when the store opened. At times, the
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 On rare occasions, when Zielinski was not present, Feldman
would place an order if Respondent ran short of a particular item.
4 Respondent had only two bandsaws, and one was used primarily
for cutting chicken by the chicken cutter.
meat department employees would also work after the store
closed. Feldman, who generally left early, would leave in-
structions as to what work would be done. Feldman was also
an experienced butcher, and spent most of his time working
as a butcher, cutting and trimming meat and filling special
orders for customers.
Several weeks after the store opened, Respondent hired
Mike Zielinski, another experienced butcher, at a salary of $7
per hour. Shortly after Zielinski started, Zielinski told Feld-
man that he didn’t think that Feldman was ordering meat
properly. Feldman replied that Zielinski should speak to
Neuhaus. Zielinski did so, and Neuhaus subsequently in-
formed Feldman that from then on, Zielinski would do all
the ordering. Although Neuhaus did not specifically tell Feld-
man that he was no longer manager, Neuhaus did inform the
rest of the department in Feldman’s presence, that from that
point on, whatever Zielinski said the employees should do.
Neuhaus also told other employees directly, such as butchers
Alexander Rosenberg and Sergio Alvarez, that Zielinski was
the meat department manager.
Thereafter, Zielinski did nearly all the ordering of meat
and chicken,3 assigned the work to employees, and scheduled
their hours. Employees such as Igor Broytman, a meat wrap-
per, if they needed time off would and did inform Zielinski
and receive his permission. On occasion, Feldman would still
assign work to other employees, subsequent to the above in-
cidents, so that some employees considered both Feldman
and Zielinski to be comanagers. The assignment of work by
both Feldman and Zielinski did not involve extensive use of
independent judgment, because the employees basically knew
what to do and how to perform their work, which was fairly
routine. The assignments generally dealt with how much and
what types of chicken and meat to cut, so that the showcase
would be filled properly, or whether employees should grind
meat or pickle corned beef, or help unload a delivery. The
employees were authorized on their own and did in fact go
into the freezer or refrigerator to get more meat or chicken
if it was needed, and would also on their own fill the show-
case when they noticed that particular items were missing.
Sergio Alvarez was hired by Respondent as a butcher
starting on May 6. A few days before that Alvarez had seen
an ad in the paper for a butcher with Respondent’s phone
number. He called and asked to speak to the meat manager.
Alvarez was transferred to Zielinski. Zielinski explained that
Respondent was looking for an experienced butcher, with
similar experience to employees who worked at Waldbaum’s
supermarkets. Alvarez replied that he in fact had worked at
Waldbaum’s as a butcher and Zielinski instructed Alvarez to
come to the store. Alvarez did so, and Zielinski sent him to
speak to Feldman.
Feldman took Alvarez’ phone number and address, but in-
formed him that the position had been filled. The next day,
Alvarez was called by Feldman and told that a butcher’s po-
sition was available.
When Alvarez reported for work on May 6, Feldman told
him that his salary would be $6 per hour. Zielinski, however,
told Alvarez precisely what he would be doing, and what
work he would be performing. Prior to Alvarez being hired,
Feldman had recommended to Neuhaus that Respondent hire
Alvarez. Neuhaus after discussing the matter with Scher con-
curred, and gave Feldman the authorization to inform Alva-
rez that he would be hired by Respondent at a salary of $6
per hour.
Zielinski, in addition to the aforementioned responsibilities
of assigning work to employees, scheduling hours, and order-
ing meat, would also spend most of his time cutting and
trimming meat and filling special orders. Zielinski and Feld-
man, as the most experienced and most skilled butchers,
would perform the more difficult jobs, which involved the
extensive use of the bandsaw.
In this connection, it is noteworthy that Respondent, unlike
many traditional butcher shops, and some supermarkets, does
not purchase meat in full or half sides and does not have a
‘‘hook and rail’’ system for transporting such meat. All the
meat that Respondent receives, that its employees perform
work on, arrives in vacuum packed boxes, which has already
been koshered and separated into smaller pieces (primal
cuts), consisting of necks, shoulders, and ribs. For the most
part, the meat is received by Respondent deboned, which re-
quires only that the butchers cut it into smaller pieces some-
times only with a knife, without using the bandsaw, trim the
fat, clean off some bone chips, and send it to the wrappers
for wrapping and pricing.
For a few types of meat such as middle chuck, which is
used for export ribs, and lamb, the bandsaw must be used
and deboning is required to be performed. On one occasion,
at Passover, Respondent’s busiest time of the year, meat was
so scarce, that Respondent’s supplier ran out of deboned
shoulders and necks. Thus, Respondent was forced on that
occasion to order meat with bones, or else it would not have
enough meat for its customers. Thus at that time only, the
boning of the meat became more frequent by Respondent’s
employees.
In addition to Zielinski, Feldman, and Alvarez, Respondent
also employed Alex Rosenberg who was hired on March 17,
also as a butcher. Rosenberg was hired directly by Neuhaus,
and received a salary of $7 per hour. Rosenberg and Alvarez
had fewer years of experience than Feldman and Zielinski as
butchers, so they used the bandsaw less frequently, usually
when Feldman and Zielinski were not available.4
Alvarez and Rosenberg would spend most of their time
cutting meat into smaller pieces with a knife, and trimming
off the fat. Sometimes, after meat was cut on the bandsaw
by Feldman or Zielinski, it would be given to Alvarez or
Rosenberg to trim the fat off. In this connection, Alvarez
conceded that trimming fat off meat was a rather simple task,
which even a total beginner can learn to do in less than a
minute of training.
Another function performed by the butchers employed by
Respondent was the grinding of meat. This consists of put-
ting the trimmings of meat into a machine, and watching the
meat come out as chopped meat. Such work requires no skill
or training, and in fact this work was at times performed by
unskilled wrappers or the chicken helper-porter in the meat
department, as well as on some occasions by employees out-
side the meat department.
Additionally, Respondent’s butchers, more specifically
Rosenberg and Zielinski, performed the job of pickling
77KOSHER PLAZA SUPERMARKET
5 Broytman’s salary was $5 per hour. The record does not disclose
Kassam’s salary.
corned beef. This task which actually was not performed in-
side the meat room, but in the corridor outside the depart-
ment, involved the mixing of chemicals with water into a so-
lution, sticking needles into the meat while pressing a lever
while the solution went into the beef. The record does not
establish how much training or experience is required to per-
form this job.
Respondent also employed during May 1992 Joseph Izhak
as a chicken cutter, and Yakov Fardman as a helper of Izhak
and a porter-all around man. Izhak cut the chicken, for the
most part using a bandsaw, and occasionally would use a
knife to trim off the fat or make further cuts. His salary was
$5 per hour. Most of the cutting of the chicken for the band-
saw required only a single cut, which cut the chicken part,
i.e., bottoms in half. The chicken would then be placed on
the tray by Fardman, the helper, and then was wrapped and
priced by the wrappers.
Fardman, whose salary was also $5 per hour, in addition
to placing the chicken on the trays after they are cut, would
also assist Izhak by bolting up the chickens. Fardman would
also bring the chickens out from the meat room, and put
them into the showcase, and assist with the unloading of
meat and chicken when it was delivered. Fardman also was
the porter and all around man, wherein he would clean up
the meat department, transfer the chickens from the U-boat
(which transports the chicken from the truck into the store)
to the freezer, and occasionally help the wrappers wrap meat
or chicken. Additionally when necessary, Fardman would be
called on to help out with bagging of groceries outside the
meat department with cashiers. From time to time, Respond-
ent would also utilize Izhak to drive Respondent’s van and
either pick up an order for Respondent, or to make a delivery
to customers of groceries, which may or may not include
meat or chicken.
Respondent also employed two full-time wrappers during
the month of May, Igor Broytman5 and Alexander Kassam
(known as Sasha). They would wrap both meat and chicken,
using a very simple mechanical device which stretches a
plastic wrap over the product to be wrapped. The wrappers
would also weigh and price the meat and chicken and bring
them to the display cases. There is no dispute that meat
wrapping requires little or no skill. Indeed, Broytman con-
ceded that it took him 10 or 15 minutes to learn how to wrap
meat. The wrappers also assist in helping to unload deliveries
of meat and chicken from the truck.
The final employee employed by Respondent who works
primarily in the meat department is Schlomo Taub, who was
Respondent’s ‘‘Mashgiach,’’ who is responsible for making
sure that all food sold in the store is kosher and conforms
to the kosher laws. However, because at Respondent’s facil-
ity, the meat and chicken is delivered already koshered, the
koshering procedure called ‘‘trabering’’ having been per-
formed, Taub spends little of his time performing normal
Mashgiach functions, which usually involves the observation
of these procedures. However, it is essential for Respondent
to have a Mashgiach on the premises, so Taub was hired at
a salary of $4.25 per hour. His Mashgiach responsibilities
consist solely of checking the boxes of meat and chicken that
come in to see if the proper kosher seal is present. His other
functions in the meat department include ordering meat, tak-
ing special orders from customers (either in person or by
phone) and either filling them himself if no butchering is re-
quired, or transmitting the special order to one of the more
experienced butchers, where it is necessary to cut the meat
in order to fill the order. Taub is also responsible for making
sure that the showcase is filled, and he will either fill it him-
self, or instruct one of the other employees to bring what is
needed. Taub also is responsible for putting prepackaged
cold cuts (which require no work by butchers) into the show-
case for sale.
On rare occasions, when Respondent is very busy, Taub
will help out wrapping meat. In that connection, when wrap-
per Broytman was hired, it was Taub who informed him that
he would be employed, and who showed Broytman how to
wrap meat and chicken. Although Taub spends the majority
of his time in the meat department, performing the tasks de-
scribed above, he also spends a substantial amount of his
time outside the meat department performing various func-
tions in other parts of the store. These functions include sign-
ing on behalf of Respondent for the deliveries of different
products, closing the cash registers, making sure the aisles
are filled with different products, and even assisting in pack-
ing and bagging groceries at the cashiers, when Respondent
gets busy.
As noted above, Respondent’s employees from time to
time would be called on to fill special orders for either meat
or chicken. These special orders were necessary when a cus-
tomer wanted meat sliced to a different thickness or a dif-
ferent size package of meat, chopped meat, or chicken than
appeared in the showcase. These special orders, which are
taken either by phone or in person were generally taken by
Taub, Feldman, or Zielinski. Most of the time either Feldman
or Zielinski would actually fill the order, i.e., cut the meat
to the specified size, or inform the employee who was grind-
ing chopped meat that a different amount was required.
Where a special order involves chicken, Izhak generally
would be called on to cut the chicken in the desired manner.
These special orders filled by Respondent’s employees
amounted to approximately 5 percent of Respondent’s total
meat sales. Occasionally, a special order for chicken would
involve requests for a full case of chickens. These special or-
ders require no cutting or butchering, but are filled by var-
ious meat department employees bringing the case of chick-
ens from the freezer or refrigerator to the customer.
Respondent’s meat and chicken showcase also included 30
to 40 different types of prepackaged meats and poultry, such
as salami, bologna, corned beef, pastrami, frankfurters, tur-
key parts, ducks, turkey pies, as well as a full line of Empire
frozen chickens. These prepackaged products require no
work from meat department employees, other than putting a
price on the product, and placing the products in the show-
case, either directly from the deliveries, or from the freezer.
Thirty percent of Respondent’s meat department sales are de-
rived from the sale of these prepackaged products.
The record reveals substantial evidence of employee inter-
change into the meat department, from other areas of the
store. These instances occurred more frequently after Re-
spondent terminated wrappers Broytman and Kassam on May
31. However, even prior to that time, Respondent would as-
sign employees from other departments to help out in the
meat department when the meat department became busy,
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 At times these assignments would be made on Wednesday eve-
nings, another busy time for Respondent.
which would be most often Thursdays,6 which was Respond-
ent’s busiest day in the department, because it was the day
before the Jewish Sabbath begins.
On a daily basis, both before and after the discharges of
Broytman and Kassam, Respondent would assign various
nonmeat department employees, such as warehouse employ-
ees Christian Mojica and Joseph Tapia, or Ollie the porter,
to assist meat department employees in unloading deliveries
of meat and chicken, and bringing the products into the store.
Employee Danny, sometimes referred to as Dockie, was
regularly assigned to the dairy department. Prior to the dis-
charges of Broytman and Kassam, he would help out in the
meat department on an as-needed basis sometimes as much
as two or three times a week. He would primarily be used
as a wrapper, but on occasion he would also be assigned to
grind meat, to fill the showcase, or to help with deliveries.
After the discharge of Broytman and Kassam, for some
unspecified period of time until a new full-time wrapper was
hired, Danny spent from 2 to 7 hours a day, up to 3 days
a week in the meat department, wrapping meat and chicken.
Respondent also employed an employee named Anna
whose regular position was a cashier. However, when Re-
spondent was busy, sometimes as much as twice a week, she
would be asked to help out as a wrapper in the meat depart-
ment. After the discharge of Broytman and Kassam, Anna
was transferred permanently into the meat department as a
wrapper. She worked full time in that capacity for a while,
but did not care for the work, so at her request, she was
transferred back to her prior position as a cashier.
Respondent also employed an employee by the name of
Yaakov Sheinhouse, who is referred to on the record by em-
ployees as the ‘‘cookie man.’’ His primary job was working
in the cookie aisle, making sure the shelves were stocked
with cookies. However, prior to the discharge of Broytman
and Kassam, when Respondent was busy, he would be as-
signed to help out in the meat department, where he would
primarily take meat and chicken out to fill the showcase, but
would also on occasion be asked to grind meat or to help
the chicken cutter.
After the discharge of Broytman and Kassam, Sheinhouse
was assigned to work in the meat department on a more reg-
ular regular basis, and would spend from 3 to 4 hours a day,
three or four times a week performing the above tasks in the
meat department.
Employee Avram Kleinman was hired by Respondent to
work in the bakery department and as an ‘‘all around’’ man,
who helped out with deliveries and in stocking the grocery
shelves. Both before and after the discharge of Broytman and
Kassam, he would also be called on to help out in the meat
department mainly on Thursdays when Respondent was most
busy, where he would take out empty boxes, pack chicken,
and bring meat and chicken to the showcases. From time to
time, he would also be asked to grind meat, which he would
perform on an as-needed basis.
Larry Tirado was the manager of the dairy department,
who spent most of his time performing his responsibilities in
that department. However, when Respondent was busy, both
before and after the discharge of Broytman and Kassam, he
worked in the meat department filling the showcase, and
wrapping and grinding meat, usually for about 2 hours at a
time.
Respondent also employed Elizabeth Henry, primarily as
an employee in the health and beauty aids department, where
she was in charge of ordering the merchandise for these
items, which were located on aisle five of the store, and was
responsible for stocking the shelves of those products. When
Respondent was busy, she would also help out in the meat
department, as a wrapper. She was terminated for stealing
meat in late May.
Finally, the record reveals that Respondent also employed
a porter, whose name was not disclosed. This porter worked
‘‘part-time’’ in the meat department, helping out Fardman,
performing maintenance tasks, and ‘‘bolting’’ up the chick-
ens. The record does not disclose how frequently this porter
worked in the meat department, or whether he worked there
on a regular basis.
Additionally, employees in the meat department would
help out in other parts of the store. When the store was busy,
meat department employees would help other employees un-
load deliveries for other departments, and when products
other than meat were placed on U-boats and needed to be
pushed inside the store, meat department employees would
frequently assist employees from other departments in push-
ing the U-boats, which could be extremely heavy and dif-
ficult for one person to move. Also, when necessary, Re-
spondent has asked Izhak, normally the chicken cutter, to
drive Respondent’s van and either make a delivery of an
order (which may or not include meat) to a customer, or to
pick up an order of a product from a supplier and return it
to the store. Izhak, prior to being employed by Respondent,
had worked as a deliveryman. Finally, when Respondent was
busy, they would assign either their wrappers or helper-porter
Fardman to help bag groceries at the cashier’s. In fact,
Fardman started out as a bagger and was transferred to the
meat department shortly after he commenced his employ-
ment.
The record also reveals frequent daily contact between
meat department employees and employees in other parts of
the store. Employees from all departments including the meat
department would eat lunch together either in a storage area
inside the store, or in a side room located in the warehouse,
across the street from the store.
Additionally, as noted above, the pickling of the corned
beef was performed in the corridor outside the meat depart-
ment, which is located right next to the walk-in refrigerator
used to store dairy products. Thus, when dairy department
employees would need to go into that refrigerator to either
bring in or take out dairy products, these employees would
frequently stop to watch the corned beef being pickled,
which is a process that some of them had not seen, and con-
verse with the meat department employees, usually Rosen-
berg doing the pickling. Because of the close quarters, the
employees would often tell Rosenberg to watch his back,
while they were going in and out of the refrigerator, and at
times would request that Rosenberg stop or move his pick-
ling work, so they could get in and out.
Respondent also had a walk-in refrigerator which con-
tained both chickens and vegetables. Thus meat department
and fruit and vegetable department employees come into
contact with each other on a daily basis in this refrigerator,
which requires constant cooperation between the employees
79KOSHER PLAZA SUPERMARKET
7 As noted above, the record reveals one instance where Feldman
interviewed Alvarez and effectively recommended that he be hired
by Respondent, with Neuhaus making the final decision to do so,
after he in turn consulted with Scher.
in terms of rotating where the chickens or vegetables are to
be stored inside the refrigerator.
The employees in the meat department all wore white
gowns and aprons supplied by Respondent. However, there
were some other employees in other departments such as
dairy and produce and even the paper department, who also
requested and received from Respondent white gowns and/or
aprons to be worn during the workday.
The meat department employees generally, except for
Feldman, would report to work before the store opened, and
would frequently continue to work past the time that the
store closed. Some employees from other departments such
as dairy or produce would also at times report to work before
the store opened and/or continue to work after the store
closes.
All employees in the meat department, except for Feld-
man, were salaried employees, with salaries ranging from
$4.25 to $7 per hour, which is similar to the salary range of
the other 40 employees employed by Respondent during May
1992. Respondent provided no pension plan, health benefits,
or any other fringe benefits to any of its employees.
As related above, the overall supervision of the store is di-
vided between Neuhaus and Scher, with Handler supervising
the warehouse. Neuhaus is the owner of Respondent who is
in charge of the meat department, where he goes several
times a day to make sure that everything is okay, and in-
forms the meat department that the showcase needs to be
filled. All hiring and firing decisions in the meat department
are and have been made by Neuhaus,7 as well as the author-
ity to grant time off, to grant raises, and to transfer employ-
ees in and out of the meat department.
George Joyce, an organizer for the Union, testified that the
Union had traditionally represented separate units of meat
department employees in kosher and nonkosher supermarkets
located in the metropolitan area for many years. In support
of Joyce’s testimony, the General Counsel introduced two
unsigned form contracts, which Joyce further testified had
been executed by various kosher and nonkosher butcher
shops and supermarkets in the metropolitan area. The first
such contract which ran from January 1, 1990, to December
31, 1992, on its face covered a unit of butchers, wrappers,
cashiers, delivery clerks, and drivers. An amendment to the
contract added a new category of employees, utility workers.
According to Joyce, this contract covers kosher super-
markets and butcher shops represented by the Union. He as-
serts that the Union represents some 70 kosher butcher shops
and 5 or 6 kosher supermarkets in the area. He named Glatt
Mart, Chaimowitz, and Kosher City located in Brooklyn, Lit-
tle Neck, and Great Neck, Long Island, respectively, and
Super Sol located in Queens as the kosher supermarkets rep-
resented by the Union under the contract described above.
Joyce further testified to a distinction between butcher
shops, which are essentially shops which primarily sell meat,
but will also sell a small amount of grocery products, with
perhaps one row or aisle of grocery items, and supermarkets.
Butcher shops would normally employ between 5 and 10
employees. According to Joyce, it is in these kosher butcher
shops where the Union represents cashiers, clerks, drivers,
and utility workers, in addition to butchers and wrappers.
However, although conceding that the contract on its face
sets forth no distinction between butcher shops and super-
markets, Joyce insists that at the five or six supermarkets
represented by the Union, the cashiers, delivery clerks, driv-
ers, and utility workers (if there are any such employees) are
represented by other labor organizations and not by Local
342-50.
Joyce also identified another unsigned (by any employer)
form collective-bargaining agreement, running from October
15, 1989, to October 17, 1992, which he asserts had been in
effect between the Union and a number of nonkosher super-
markets, such as Waldbaum’s, Pathmark, and King Kullen.
The employees covered by this contract included meat de-
partment heads, journeyman meatcutters, apprentice meat-
cutters, wrappers, delicatessen appetizing department heads,
delicatessen-appetizing clerks, seafood department heads, and
seafood clerks. Joyce testified that the Union’s representation
of these employees is essentially consistent with the contract,
except that at some stores such as Waldbaum’s, the deli
clerks and department heads are also represented by another
labor organization.
Neuhaus testified, without contradiction, as to his knowl-
edge about the operations of two of the kosher supermarkets
mentioned in Joyce’s testimony as being represented by the
Union. According to Neuhaus, both Glatt-Mart and Kosher
City are supermarkets that utilize a hook and rail system,
rather than purchase prepackaged meat, as does Respondent.
Moreover, these supermarkets also kosher their meat on the
premises, which requires much more skill on the part of the
butchers working for these stores, than is required of Re-
spondent’s employees.
B. The Organizing Campaign
The Union began organizing Respondent’s meat depart-
ment employees in early May. Joyce was the union official
who solicited most of the authorization cards from employ-
ees. Joyce would park his car in front of the premises and
attempt to solicit employees as they leave and come into
work.
The first card obtained by Joyce was signed by employee
Joseph Izhak on May 7. This card as well as all the cards
given to employees authorizes the United Food and Commer-
cial Workers International Union, AFL–CIO or its chartered
local unions to represent the employee signing for the pur-
poses of collective bargaining. Izhak signed the card in
Izhak’s car located near the store. Joyce gave Izhak his busi-
ness card, which identifies him as vice president-representa-
tive of Local 342-50 UFCW, and includes the address and
phone numbers of the Local. Izhak took Joyce’s business
card and the authorization card, and signed the latter card,
after Joyce told Izhak that by signing the card he would be
authorizing the Union to represent him in a collective-bar-
gaining agreement. Izhak returned the card to Joyce after
signing it.
The next day, May 8, Joyce and Richard Abondolo, the
Union’s area director, approached employee Ronald Feldman
in Respondent’s parking lot. They asked Feldman if he
would be interested in the Union. Feldman read the card,
said yes, signed it, and returned it to the union officials.
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Rosenberg was a recent arrival from Russia.
On the same day, May 8, Alexander Rosenberg was ap-
proached by Joyce in the street as he was coming into work.
Joyce handed Rosenberg a card and his business card. Joyce
asked Rosenberg to sign the card so that the Union could
represent the employees in the meat department. Rosenberg
signed the card and returned it immediately to Joyce.
Sergio Alvarez signed his card on May 11 after being
asked by Union Representatives Cookie and Gerard to sign
the card for the Union to come into the store.
On May 27, Joyce spoke to Alexander Kassam in Joyce’s
car, parked around the corner from Respondent’s premises.
Joyce gave Kassam an authorization card, plus a business
card. He asked Kassam to sign the authorization card to au-
thorize Local 342-50 to represent him in collective bargain-
ing. Kassam filled out the card, signed it, and gave it back
to Joyce.
The next day, May 28, Joyce gave an authorization card
as well as his business card to Igor Broytman, again in
Joyce’s car. Joyce explained that by signing the authorization
card, he would be authorizing Local 342-50 to represent him
in collective bargaining. Broytman also filled out, signed,
and returned the card to Joyce at that time.
Finally, on May 29, at a meeting of employees of Re-
spondent, Joyce, Abandolo, and Lisa O’Leary, another union
official, held on East 10th Street, around the corner from Re-
spondent’s premises, Joyce handed an authorization card to
Yakov Fardman, along with his business card. Joyce ex-
plained that by signing the authorization card, Fardman
would be authorizing Local 342-50 to include him in a col-
lective-bargaining agreement. Fardman filled out, signed, and
returned the card to Joyce at that time.
C. The Alleged Unfair Labor Practices
As noted above, Joyce was the primary organizer for the
Union at Respondent’s facility, and he obtained authorization
cards from employees throughout the month of May. Joyce
would park his car in front of or around the corner from the
store and attempt to speak to employees either in his car, or
outside the car, as they were going to and from work.
Neuhaus admitted that he had observed Joyce during this pe-
riod across the street from the store in his car, and that he
also saw Joyce writing things down and speaking to the
workers. According to Neuhaus, although he had not been in-
troduced to Joyce, he ‘‘figured’’ based on a ‘‘sixth sense,’’
that Joyce was speaking to the workers on behalf of ‘‘some
kind of union.’’
On or about May 24, Joyce was waiting in his car at 6
p.m. to talk to employees as they were leaving work. He saw
Alex Rosenberg and offered to drive Rosenberg home.
Rosenberg accepted Joyce’s offer. After driving awhile,
Joyce noticed that a small silver car appeared to be following
them. Joyce asked Rosenberg to turn around and see if he
could identify the occupants of the other car. Rosenberg did
so, and informed Joyce that Josh Handler, one of Respond-
ent’s owners, and another employee were in the car. Rosen-
berg told Joyce that he didn’t want Respondent to know
where he lived. Joyce began to take evasive action, such as
making U-turns and doubling back, and drove for an hour
until stopping at a bar on Neptune Avenue in Brooklyn. The
car with Handler as an occupant followed them all the way
and parked across the street from the bar, where Joyce had
parked his car. During the time that they were being fol-
lowed, as well as while Handler’s car was parked, Handler
was observed by Rosenberg speaking into a walkie-talkie.
Rosenberg told Joyce that he was afraid to stay in the car
alone, so they both went into the bar so that Joyce could call
the union office. Joyce spoke to Abondolo and told him that
they were being followed by Rosenberg’s boss, and Rosen-
berg was afraid to go home. Abondolo instructed Joyce to
bring Rosenberg to the Union’s office on Staten Island.
Joyce then pulled away from the bar, and drove to the Belt
Parkway, toward the Verrazano Bridge. The car continued to
follow them until Joyce drove onto the ramp of the bridge
which goes into Staten Island, when the car continued driv-
ing on the parkway.
The next day, May 25, Rosenberg confronted Neuhaus at
work, and asked why he had been followed and told
Neuhaus that he didn’t like it and was going to make a po-
lice report. Neuhaus replied, ‘‘This is the American way.’’8
Rosenberg responded, ‘‘This is the American way, you teach
me good.’’
That same evening, once again Joyce gave Rosenberg a
ride home at around 6 p.m. On this occasion, as Joyce was
pulling away from the front of the store, a security guard
employed by Respondent, began to follow them in a car.
Joyce, not wanting to go through another incident like the
day before, made a sharp turn around the corner. The secu-
rity guard followed and was so close to Joyce that they near-
ly got into an accident. Joyce then pulled into the driveway
of a gas station. The security guard kept driving, and did not
continue to follow them.
Neither the security guard nor Handler testified, and Re-
spondent introduced no specific or direct evidence as to why
it followed Joyce on either of these occasions. Respondent
did introduce some general testimony from Scher that Re-
spondent had concerns about security and theft, and they
were always concerned with suspicious vehicles outside the
store. However, they did not testify that either of the two in-
cidents described above were motivated by security concerns.
Scher did testify that the security guard Scher employed by
Respondent was a retired policeman, and had a free hand to
check out anything that he believed was suspicious. He also
testified that Respondent gave no instructions to the security
guard to follow employees who might be engaged in union
activities, but only that he must be alert to ‘‘make sure
there’s no problem.’’
In the afternoon of May 27, while the meat department
employees were working, Zielinski interrupted them, and in-
structed the employees to stop working and pay attention.
Zielinski informed the employees that representatives from
Local 5 would be coming into the department to talk to the
employees about joining that Union. Zielinski added that the
bosses wanted everyone to sign cards for this union. Rosen-
berg protested that Local 5 was not a butchers’ union, and
Alvarez stated that he belonged to Local 342-58. Zielinski
responded that if employees did not sign cards for Local 5,
they would be fired.
Shortly thereafter, two representatives from Local 5 came
into the meat room, accompanied by Neuhaus. The Local 5
representatives discussed some benefits of representation by
Local 5, and distributed authorization cards to employees.
Some employees signed cards and returned them to Zielinski.
81KOSHER PLAZA SUPERMARKET
Zielinski looked at Feldman, and Feldman said that he was
not interested. Neuhaus, although present during the meeting,
did not say anything while the Local 5 representatives were
present.
About a half hour after the Local 5 representatives left,
Neuhaus returned to the meat department. He asked who had
not signed cards for Local 5, and asserted that all those who
had not signed the cards would be fired. At that time,
Broytman signed a card for Local 5, and returned it to
Zielinski. Neuhaus also asked Zielinski to give him the cards
that he (Zielinski) had collected.
Rosenberg replied to Neuhaus that he had not signed a
card for Local 5. Neuhaus took the card from Rosenberg and
began to fill it out for him. Neuhaus asked Rosenberg for his
social security number, and Rosenberg replied that his social
security card was at home. Neuhaus instructed Rosenberg to
sign the card and bring his social security card the next day.
Rosenberg scratched his signature on the card and gave it to
Neuhaus.
Alvarez had placed the Local 5 card in the pocket of his
white gown. Neuhaus reached into Alvarez’ pocket and re-
moved the card. Neuhaus instructed Alvarez that he had to
sign the card. Alvarez replied that he didn’t have his social
security number. Neuhaus replied that Alvarez should sign
the card anyway, and bring the social security number the
following day. Alvarez complied with Neuhaus’ instructions,
signed the card, and gave it back to Neuhaus.
The next day, Neuhaus came into the meat department and
asked Rosenberg for his social security number. Rosenberg
responded that he didn’t have it. Neuhaus looked mad and
walked out of the room.
My findings with respect to the events of May 27 is based
on a compilation of the credited testimony of employees
Broytman, Alvarez, Feldman, and Rosenberg. Although the
record reveals some inconsistencies between their versions of
the meeting, overall I found them to be essentially mutually
corroborative in most material respects, and much more be-
lievable than the insincere denials of Zielinski and Neuhaus.
In my view, Neuhaus’ testimony that he had no idea or
knowledge that Local 5 representatives were speaking to his
employees is simply incredible. Particularly, because Re-
spondent itself adduced evidence of how security conscious
it was, and how it instructed its security personnel to be on
the alert for suspicious behavior, I cannot believe that rep-
resentatives could have simply walked into the meat depart-
ment during working hours to meet with its employees with-
out Respondent’s permission or at least knowledge. Indeed,
if Respondent had not known about it, Zielinski as a man-
ager of the meat department would certainly have questioned
whether the Local 5 representatives should be there, or in-
formed Respondent’s officials of what had happened. Be-
cause Zielinski did not even assert that he took either of
these steps, I reject his contrived denials, as well as
Neuhaus’ professed lack of knowledge of the meeting, and
his denials that he made the statements attributed to him by
the employees, as detailed above.
On May 27, the Union filed a petition in Case 29–RC–
7992 seeking certification as the collective-bargaining rep-
resentative for Respondent’s employees in a unit of ‘‘all full-
time and regular part-time meat department employees.’’
On May 28, O’Leary and Abondolo plus another rep-
resentative of the Union, Anna Rosa, entered Respondent’s
store. They asked to speak to the owner, and were directed
to an employee named Mike. Abondolo told Mike that he
wanted to speak to one of the owners about the Union. Mike
replied that he was not an owner, and couldn’t talk to them.
Abondolo asked Mike to call and inform one of the owners
that he was there to speak about the Union. Five minutes
later, Mike returned and informed Abondolo that he had spo-
ken to an owner who had said that he didn’t need to talk
to Abondolo, because they already had Local 5 at the store.
Abondolo asked Mike what time did the owners usually ar-
rive, and was told 8:45.
The union officials then left the store and waited outside.
At about 8:45 a.m., Scher arrived and went into the store.
The union representatives followed him into the store, and
observed Mike talking to Scher and pointing to the union of-
ficials. Scher came over to them and asked if he could help
them. Abondolo handed Scher his business card, and identi-
fied himself as a representative of Local 342-50. Abondolo
continued that Local 342-50 represented a majority of Re-
spondent’s employees in the meat department, and that he
wanted the opportunity to go through the store to speak to
employees, just as representatives of Local 5 had been al-
lowed to do the day before. Scher replied that he was not
going to allow the union officials to do that.
Abondolo then mentioned that the Union filed a petition
with the NLRB, that he was demanding recognition on be-
half of Local 342-50 for the meat department employees, and
that it was his position that Local 342-50 and not Local 5
represented the employees. Scher responded no, no, no, as he
was picking his teeth with Abondolo’s business card.
Abondolo became agitated by that action, and told Scher that
he was being rude and disgusting. Scher continued saying no,
no, no and picking his teeth with the card. The union offi-
cials then left and returned to the union office.
O’Leary then prepared a telegram to be sent to Respond-
ent, which is dated May 29. The telegram stated that Local
342 demanded recognition as the exclusive bargaining rep-
resentative for Respondent’s meat department employees and
would prove majority status to a mutually selected third
party. The telegram was delivered to Respondent on May 29
at 5:47 p.m.
The above findings are based on the credited testimony of
O’Leary, plus the delivery report from Western Union. I re-
ject the testimony of Scher that no demand for recognition
was made by Abondolo or received by telegram. I rely on
the report delivery form of Western Union as probative evi-
dence that the telegram was received by Respondent, con-
trary to the testimony of its officials.
On May 29, the union representatives met with meat de-
partment employees around the corner from the store, during
their lunch hour. Present were Rosenberg, Broytman, Alva-
rez, Feldman, Kassam, Fardman, and Izhak. Joyce and
O’Leary were present for the Union. O’Leary explained that
the Union had filed a petition for an election, and explained
the procedures and processes. Employees asked about the
presence of Local 5, and asserted that they had been threat-
ened with discharge if they didn’t sign Local 5 cards. They
also asked if they could be fired for failing to so sign, or
if they signed cards for Local 342-50. O’Leary explained that
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The Union’s initial charge in Case 29–CA–16577 was dated
5/29/92, although not filed until 6/1/92. It appears that these charges
were mailed to the Board on 5/29. It alleges 8(a)(1) and (2) viola-
tions of threatening employees with termination unless they signed
cards for Local 5, and the denial to Local 342-50 the same oppor-
tunity to contact employees that Respondent afforded Local 5.
10 I have found above that Scher drove past the employees twice,
based on the credited testimony of Broytman and Rosenberg.
11 Scher further claimed that he thought there may be a fight or
some trouble, but admitted that his son did not say there was a fight
going on.
12 I credit Rosenberg’s testimony in this regard over the denials of
Scher and Neuhaus. I find Rosenberg’s testimony to be believable
with a ring of truth to it, and not likely to have been made up.
13 Note that Broytman had previously signed a Local 5 card at
Neuhaus’ insistence several days earlier.
14 An I–9 form is an immigration form entitled ‘‘Employee Eligi-
bility Form,’’ wherein the employee must state that he is a citizen
or a lawful alien. Although Neuhaus referred to a W–2 form, it ap-
pears that he really meant a W–4 form which is filled out by the
employee setting forth a social security number and the amount of
exemptions to be taken by the employee.
the Union had already filed charges9 about these matters, and
added that it would file additional charges with the Labor
Board if any employees were fired because of their support
for Local 342-50 or if they did not sign Local 5 cards.
O’Leary also added that if the employees were fired, the
Union might also call a strike. In that connection, O’Leary
explained the differences between an economic strike and an
unfair labor practice strike, and added that if the employees
were fired as Respondent had threatened, an unfair labor
practice strike was one of the Union’s options, in addition
to filing charges.
During the course of the meeting, Scher and his son drove
up the block in a car toward the group of employees. The
car slowed down as it passed the employees and Scher’s son
was speaking into a walkie-talkie. After Scher passed the
group of employees, the car pulled into a driveway, made a
U-turn, drove past the employees again, and drove away.
Five to ten minutes later, the car returned again with Scher
and his son speaking into the walkie-talkie, and again drove
past the employees, made a U-turn, and drove away.
Scher admitted driving past the employees on that date, al-
though he claimed that he did so only one time.10 Scher as-
serts that on that day his son Menachem reported to him that
he had observed a group of Respondent’s employees on the
street along with some people in suits. Menachem continued
that something looked ‘‘suspicious’’11 and that he (Scher)
should check it out. When Scher drove past the employees,
he conceded that he recognized Joyce and O’Leary and oth-
ers with the employees as union officials. Scher also testified
that he did not discuss the incident with either of his two
partners. Significantly, Neuhaus contradicts Scher on this
point, and admits that Scher ‘‘flew out’’ to his car with his
son. Neuhaus asked Scher what had happened when he re-
turned. Scher told Neuhaus that his son had informed him
that something suspicious was going on and his workers
were together in the street. Scher further informed Neuhaus
that he had gone to check it out and saw that the butcher
employees were meeting with representatives of Local 342-
50.
After the meeting, Feldman returned to work, where he
was approached by Neuhaus. Neuhaus informed Feldman
that he wanted to talk to him about his hours. Feldman re-
plied that it would be better if they had the discussion on
Monday, June 1, Feldman’s next scheduled day at work.
Neuhaus agreed.
On Sunday morning, May 31, Rosenberg was reporting to
work at 6 a.m., when he was asked to come into Joyce’s car,
where Joyce and O’Leary were present. O’Leary gave him
an envelope containing unfair labor practice charges that the
Union had filed, as well as the petition, and asked him to
give the envelope to his boss. She instructed him to tell the
boss that these were the charges that the Union had filed.
Rosenberg complied with O’Leary’s request, and in the
meat department attempted to give Neuhaus the envelope.
Neuhaus refused to accept it and asked Rosenberg to come
into his office. Rosenberg replied that he wanted to speak in
the meat room in order that everyone would know what was
happening. Neuhaus left.
A few hours later, Neuhaus asked Rosenberg to talk with
him. Rosenberg went with Neuhaus outside the store, where
Scher was present as well. Neuhaus asked if Rosenberg
wanted to work in the Union? Rosenberg said, ‘‘Yes.’’
Neuhaus responded that he should go to another city or State
if he was looking for a union job. Rosenberg replied that he
wanted to stay here in Brooklyn and that he liked Brooklyn.
Scher concluded the conversation by observing, ‘‘this is not
Russia.’’ Rosenberg then returned to work.12
At around 9:45 a.m., on May 31, Broytman was informed
by Kassam that Kassam had just been fired. At 10 a.m. Taub
asked Broytman to report to Neuhaus’ office. In the office,
Neuhaus asked Broytman if he signed any papers with any
other union.13 Broytman said, ‘‘Yes.’’ Neuhaus then in-
formed Broytman that he was fired. Neuhaus gave Broytman
a check for 2 days’ pay, and said good bye.
Neuhaus denied that he knew whether Broytman was a
member of any labor organization, and asserts that he was
fired because he refused and failed to fill out I–9 and W–
2 forms.14 According to Neuhaus, he had been after
Broytman to fill out the forms for several weeks, and
Broytman would respond that he would get to it. Finally, on
the date of the discharge, Neuhaus asserts that he again con-
fronted Broytman with his failure to sign these forms. When
Broytman again failed to sign the forms, Neuhaus allegedly
told him, ‘‘if you cannot fill out the card, I cannot keep you
here at the store.’’ At that point, Neuhaus claims Broytman
left.
In this connection, Neuhaus further testified that an office
employee named Peggy had given him a list of employees
who had not signed these forms, and he would from time to
time ask other employees about their failures to sign the
forms as well. Neuhaus could not, however, recall the names
of any other employee to whom he spoke about the matter,
nor could he explain why he decided to speak to Broytman
about it on that particular day, or why he decided on that day
to insist that Broytman sign or be terminated. His only expla-
nation was that Broytman happened to be walking by and
Neuhaus saw him, so Neuhaus asked him about it.
However, the record discloses that employees Alvarez,
Rosenberg, and Kassam never filled out either of these
forms, and it does not appear that Neuhaus ever asked them
about it. More significantly, employee Avram Kleinman who
83KOSHER PLAZA SUPERMARKET
was employed by Respondent at least by May, and perhaps
earlier, did not sign his W–4 form until June 3, and his I–
9 form until August 5, 1992. Employee Yakov Sheinhouse
also worked for Respondent since at least May, and his I–
9 form was not filled out until August 4. Finally, employee
Larry Tirado who also worked for Respondent since at least
May, if not earlier, did not sign his W–4 or I–9 form until
September 17. None of the above employees were terminated
by Respondent, for not having promptly filled out these
forms.
As noted above, on Friday, May 29, Neuhaus had in-
formed Feldman that he wanted to discuss Feldman’s hours,
but had agreed to postpone the discussion until Monday,
June 1, at Feldman’s request. On June 1, as agreed on,
Neuhaus and Feldman had their discussion concerning hours.
Neuhaus informed Feldman that the store was getting busier
and that he needed Feldman to work more hours. He stated
that he wanted Feldman to stay later at night, until 8, 9, or
10 o’clock, whatever it took, when the store got busy. Feld-
man reminded Neuhaus about his long commute from
Scarsdale, and the fact that at hire they had agreed on a 40-
hour week for a set salary. Neuhaus replied that the cir-
cumstances were now different, the store was getting busy at
night, and he needed Feldman there for more hours.
Feldman then asked if Neuhaus would be paying him
overtime for these additional hours. Neuhaus responded,
‘‘No.’’ Feldman asked if Neuhaus expected him to work
overtime without extra payment? Neuhaus answered, ‘‘You’ll
have to do what you have to do.’’ Feldman then asked if this
means he was fired? Neuhaus replied, ‘‘No, but you don’t
want to work the hours, so it is your decision.’’ Neuhaus at
that point agreed to give Feldman a week’s pay, and Feld-
man left.
Sometime in June, Feldman filed for unemployment insur-
ance. Feldman called Neuhaus on the phone. He told
Neuhaus that he was filing for unemployment insurance, and
rather that saying that he was fired was going to put down
that no work was available for him. Neuhaus said, ‘‘Fine.’’
Subsequently, Feldman confirmed this conversation in a let-
ter mailed to Neuhaus, postmarked June 15, where he af-
firmed that he told unemployment that the reason for his
leaving was lack of work, and his last day of work was June
5. Feldman explained that he used the June 5 last day of
work, because he received an extra week’s pay from Re-
spondent.
According to Neuhaus, the very first week after Respond-
ent opened, he had a problem with Feldman’s hours, particu-
larly on Wednesday and Thursday evenings, its busiest
nights. Neuhaus would find the shelves would be empty on
these nights, and he attributed this to Feldman’s absence, be-
cause he normally left at 5 p.m. Neuhaus asserts that he
spoke to Feldman about the problem on these nights, and for
nearly every week until Feldman finally left on June 1.
Neuhaus asserts that Feldman recognized the problem, and
replied that he would see what he could do, but in fact he
continued to leave at 5 p.m., and problems continued in the
department. Finally, according to Neuhaus, he ‘‘reached the
point where I couldn’t’’ work with Feldman anymore, and he
had to insist on Feldman’s working the extra hours.
Although I have credited Feldman’s version of their termi-
nation conversation, as well as the phone call concerning un-
employment, as related above, I do credit Neuhaus’ testi-
mony to the extent that he asserts that he had prior conversa-
tions with Feldman about his hours. In this regard, I note the
corroborative testimony of Zielinski, as well as my belief
that Feldman’s absence on busy evenings would be likely to
cause shortages in the showcase. Therefore, I find consistent
with Neuhaus’ testimony, and contrary to Feldman’s denials,
that Neuhaus did prior to June 1 complain to Feldman about
his hours, and that Feldman agreed to see what he could do
about the problem.
However, as noted, I have credited Feldman’s version of
the termination conversation, particularly his testimony that
he asked to be paid overtime, which Neuhaus denies was
ever brought up, as well as Feldman’s testimony that there
had been a prior agreement between him and Neuhaus that
Feldman would work 40 hours a week for a salary of $550.
On June 4, O’Leary went into Respondent’s store and told
Scher that the Union was going to put up an unfair labor
practice picket line in front of his store. Scher did not re-
spond. O’Leary and Abondolo then went to the meat depart-
ment and informed Alvarez that the picket line was ready
and that an unfair labor practice strike was going to start. Al-
varez then informed Rosenberg that Local 342-50 was call-
ing an unfair labor practice strike and it was starting. Alvarez
and Rosenberg left the meat department, and began walking
to join the picket line. Neuhaus, who had been standing near-
by, and apparently overheard the union representatives, ap-
proached Rosenberg and Alvarez, and told them that they
were fired.
The next day, Rosenberg and Alvarez went inside the store
to pick up their pay. Neuhaus told them to get out of the
store, and that he didn’t want to see either of them in the
store again because they no longer belonged there. Rosen-
berg asked about getting his job back, adding that he needed
the work. Neuhaus replied, ‘‘Let the Union give you work.’’
The above findings are based on a synthesis of portions
of the testimony of Alvarez and Rosenberg. I reject and do
not credit Neuhaus’ testimony that he never fired either one
of these employees, and they merely joined the picket line
and, as far as he was concerend, simply never returned.
Although the record does contain some contradictions be-
tween the testimony of Alvarez and Rosenberg, as to pre-
cisely when they were fired, I am convinced that they were
both testifying candidly and accurately that they were fired.
I note that they both were consistent in their testimony that
Neuhaus reconfirmed Respondent’s discharge of both of
them, when they went into the store the next day. I was not
overwhelmingly impressed with Neuhaus’ credibility in gen-
eral, and as related above in most instances where his testi-
mony conflicts with accounts of other witnesses, I have cred-
ited these other witnesses. I do so similarly in this instance,
despite the differences between Alvarez and Rosenberg as to
at what point Neuhaus discharged them.
Outside the store, from June 4 through mid-August, the
Union set up and conducted a picket line. Rosenberg and Al-
varez picketed regularly. Broytman and Feldman also pick-
eted from time to time. None of the other employees in the
meat department joined the picket line or went on strike. At
the start of the strike, Union Official Mike Marino told Alva-
rez on the picket line that the picket line was because of ille-
gal practices of Respondent. Alvarez, Rosenberg, and
Broytman all had conversations among themselves about
why they were striking. They stated that they were striking
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Nava had known Merino from the Union’s prior picketing.
because Respondent fired two people from the meat depart-
ment, Alex and Igor (Kassam and Broytman), and because
the employees wanted the Union in the meat department.
The decision to strike was made by the Union, according
to O’Leary, after Respondent discharged Broytman, Kassam,
and Feldman, and the Union felt that everyone was going to
get fired so it had better put up a picket line.
The picket line signs read that Respondent ‘‘is unfair and
does not employ Union kosher butchers and employees of
Kosher Plaza on strike, Local 342-50.’’
Additionally, during the course of the picketing, which as
noted lasted from June 4 through mid-August, the Union dis-
tributed various leaflets to employees, customers, and suppli-
ers. These leaflets contained various assertions, including,
inter alia, that Kosher Plaza illegally fired Russian Jewish
butchers, refused to recognize the employees’ legal right to
join the union of their choice, the owners did not follow the
labor laws, and finally in two leaflets the Union referred to
the Region’s issuance of a complaint against Respondent on
August 3, and summarized the various allegations set forth
there, including a bargaining order compelling Respondent to
recognize the Union as the representative of its meat depart-
ment employees.
The Union’s picketing between June and August consisted
generally of between 5 and 20 pickets. The pickets consisted
of at various times Rosenberg, Broytman, Alvarez, and Feld-
man, but mainly representatives of the Union or union mem-
bers employed at other stores represented by the Union. Dif-
ferent union representatives were present during the course
of the picketing, including O’Leary, Joyce, Abondolo, and
Mike Marino. For the most part, the picketing was peaceful
with no significant instances of violence or interference with
Respondent’s business.
However, on Labor Day, September 7, the Union con-
ducted a massive demonstration at Respondent’s premises,
which encompassed picketing by 4 busloads full of pickets,
numbering approximately 200 people. These pickets were
mainly union members employed at other employers, plus a
number of union representatives and officers. The demonstra-
tion was carefully planned by the Union, which assigned four
officials to be in charge of each busload of pickets. They
were Abondolo, Peter Lureano, and Ralph Quatrocchi, area
directors, and John Siv, safety director. These individuals
gave instructions to the pickets on their buses as to how they
were to conduct themselves. They were told to walk the
picket line, keep moving, hand out leaflets, and not to get
into any discussions or confrontations with customers or em-
ployees. The pickets were also told not to physically interfere
with deliveries, but only to ask the driver to please honor the
picket line. They were also instructed to allow cars to go in
and out of the parking lot.
During the course of the picketing, the pickets would
march up and down with picket signs, give out leaflets, and
shout various statements, such as ‘‘pass-em by,’’ ‘‘Kosher
Place unfair,’’ ‘‘don’t shop here,’’ ‘‘close them down,’’ ‘‘we
will rock you.’’ Most of the pickets wore white windbreakers
with the name of the Union written thereon.
During the course of the picketing, customers were per-
mitted to go into and out of the store, although at times the
customers had to step around the pickets in order to go into
the facility.
The record reveals some evidence that nails were thrown
by some of the pickets on the ground in Respondent’s park-
ing lot. There is no evidence that any union officials were
present in or near the parking lot while the nails were
dropped. Additionally, testimony was adduced that in the
parking lot, a car driven by a Hasidic man had his car
blocked by a group of pickets while attempting to pull into
the parking lot. Some of the pickets began to bounce the car
up and down, and one of the pickets pretended that he got
hit by the car, and he fell to the ground. At that point, Jo-
seph Tapia and Vincent Nava, two of Respondent’s nonstrik-
ing employees, approached the pickets blocking the car from
entering the lot. They asked the pickets to move out of the
way and let the car enter the lot. The pickets responded no,
that they weren’t going to let anybody come in. Mike Merino
responded to Nava,15 ‘‘No, why don’t you make me move.’’
Nava said, ‘‘fuck you,’’ and Merino answered, ‘‘Make me
move, mother fucker,’’ and invited Nava to go down the
block with him for a fight. Nava then began to laugh, at
which point he was surrounded by a group of pickets, who
began to bump him in his chest. Merino did not participate
in the bumping, but he was present and made no effort to
stop the pickets from bumping Nava.
Additionally, a group of 10 or 15 pickets also bumped
chests with Respondent’s partner Handler, and with employ-
ees Tapia and Christian Mojica. There is no credible evi-
dence that Merino or any other union official was present at
or observed these instances of pickets bumping chests with
Handler, Mojica, or Tapia.
At another point during the day, a group of about 25 pick-
ets, including Abondolo, entered the store, knocked down
Scher and the security guard, and walked up and down the
aisles throwing merchandise from the shelves onto the floor.
After the pickets left, Respondent noticed that wires had
been cut on the freezer, but no evidence was presented as to
who if anyone had actually cut the wires. Evidence was also
presented that Respondent’s front window was broken, but
no one could testify as to having seen the window broken,
or who was responsible for the broken window.
A significant amount of testimony was adduced concern-
ing an incident involving employees Mojica, Tapia, and
Nava and a large group of pickets who were massed in front
of the front door of Respondent’s store. Mojica attempted to
move through the crowd of pickets in order to enter the
store. As he neared the door, he was dragged by his hair by
one of the pickets away from the entrance and was punched
in the head and the face. Mojica punched the individual who
had dragged him by the hair, which resulted in his being
thrown to the ground when he was kicked in the ribs, back,
and legs and bitten on the hand by various of the pickets.
Employees Nava and Tapia, who observed the fracas, ran to
into the crowd to assist their fellow worker, and began to
punch Mojica’s assailants. Nava and Tapia were in turn
thrown to the ground and punched and kicked by a number
of the union pickets. The incident finally ended when Ruben,
another of Respondent’s employees, sprayed mace to dis-
burse the employees.
Mojica, Nava, and Tapia all were taken to the emergency
room for treatment by ambulance. Tapia subsequently spent
3 days in the hospital for a badly bruised spleen that he suf-
85KOSHER PLAZA SUPERMARKET
16 I note significantly that neither Merino nor Abondolo testified
in this proceeding.
fered from the attack. Nava was treated at the emergency
room for a badly bruised wrist. Mojica was given a tetanus
shot for the bite that he received, but apparently suffered no
other injuries, insofar as this record discloses. There is some
evidence although not conclusive that both Merino and
Abondolo16 were either directly involved in or stood by and
watched the above-described incident.
III. ANALYSIS
A. The Alleged 8(a)(1) and (2) Violations
I have found above that on May 27, Respondent permitted
representatives of Local 5 to meet with its meat department
employees on company times and premises to solicit mem-
bership and the signing of authorization cards for that labor
organization. In that connection, I have found that Respond-
ent’s admitted agent, Mark Neuhaus, entered the meat de-
partment with the representatives from Local 5, remained in
the room while they solicited Respondent’s employees to
sign cards, and a half hour after the meeting concluded re-
turned to the meat department and ordered, solicited, and in
fact assisted employees Alvarez and Rosenberg in filling out
cards for Local 5. This conduct of Neuhaus constitutes clear
actions of unlawful assistance to Local 5 in violation of Sec-
tion 8(a)(1) and (2) of the Act. Brown Transport Corp., 296
NLRB 552 (1989); Ella Industries, 295 NLRB 976 (1989);
Famous Castings Corp., 301 NLRB 404, 407 (1991); and
Ford Bros., 263 NLRB 92, 101 (1982).
When Neuhaus returned to the meat department on that
day, he also asked who had not signed cards for Local 5, and
added that all those who had not signed the cards would be
fired. These remarks constitute an unlawful interrogation,
Rossmore House, 269 NLRB 1156 (1984), and an unlawful
threat, Ford Bros., supra. Southland Knitwear, 260 NLRB
642, 655 (1982), in violation of Section 8(a)(1) of the Act,
as well as unlawful assistance to Local 5 in violation of Sec-
tion 8(a)(2) of the Act. Southland, supra; Ford Bros., supra.
Furthermore, I also conclude that Respondent is respon-
sible for the similarly unlawful conduct of Mike Zielinski in
connection with the meeting. In that regard, I have found that
Zielinski interrupted the meat department employees from
their work, instructed them to pay attention, and then an-
nounced that representatives from Local 5 would be coming
into the department to talk to employees about joining that
Union. Zielinski added that the bosses wanted everyone to
sign cards for Local 5 and, after employees protested, threat-
ened that employees would be discharged if they did not sign
cards for Local 5. Zielinski also collected some cards that
employees signed at the meeting.
Zielinski was, as I have concluded, designated by Re-
spondent to employees as a manager, employees were in-
structed to and did take orders from him, and he also as-
signed work and work hours to employees and ordered meat.
Although I do not find that he exercised sufficient independ-
ent judgment in these functions to warrant the conclusion
that he is a supervisor under Section 2(11) of the Act, these
quasi-supervisory responsibilities are also relevant in assess-
ing his status as an agent for Respondent. Quality Drywall
Corp., 254 NLRB 617, 620 (1981).
Thus, even absent supervisory status, an employer can be
responsible for the conduct of an employee, as an agent,
where under all the circumstances the employees would rea-
sonably believe that the employee was reflecting company
policy and acting on behalf of management. EDP Medical
Computer Systems, 284 NLRB 1231, 1265 (1987); United
Cloth Co., 278 NLRB 583, 586 (1986); Wm. Chalson & Co.,
252 NLRB 25, 33–34 (1980); Community Cash, 238 NLRB
265 (1978); and Ella Industries, supra.
Here, I have found that when Zielinski interrupted employ-
ees from their work and announced that Local 5 representa-
tives would be meeting with employees, he informed the
workers that the bosses wanted everyone to sign cards for
Local 5. EDP, supra; Wm. Chalson, supra. More importantly,
when the Local 5 representatives subsequently appeared, they
were accompanied by Neuhaus, who remained in the meat
room during the time that Local 5 representatives solicited
authorization cards from employees, which were collected by
Zielinski. United Cloth, supra; Ella Industries, supra. More-
over, a half hour after the meeting, Neuhaus ordered and
physically assisted Rosenberg and Alvarez with the signing
of their cards for Local 5, and threatened employees with
discharge if they didn’t sign Local 5 cards. Community Cash,
supra; EDP, supra. Accordingly, based on the foregoing, I
conclude that Respondent has placed Zielinski in a position
identifying him with management, so that employees could
reasonably believe that he spoke for management particularly
with respect to the signing of cards for Local 5. Ella Indus-
tries, supra; EDP, supra; and Community Cash, supra. There-
fore, Respondent is responsible for Zielinski’s conduct.
In that regard, Zielinski called the meeting of employees
on worktime, to speak with Local 5 representatives, told
them that the bosses wanted them to sign cards for Local 5,
and threatened them with discharge if they refused to sign
Local 5 cards. This conduct is clearly violative of Section
8(a)(1) and (2) of the Act, Ella Industries, supra; Famous
Castings, supra; Ford Bros., supra; Southland Knitwear,
supra, and I find that Respondent has violated these sections
of the Act by Zielinski’s actions.
Moreover, when on May 28, Local 342-50 representatives
requested similar access to Respondent’s facility that had
been granted to Local 5 the day before, Scher on behalf of
Respondent denied the request. Respondent has violated Sec-
tion 8(a)(1) and (2) of the Act by denying to Local 342-50
equal access to speak to its employees. Ella Industries, supra
at 980; Castaways Management, 285 NLRB 954, 970 (1987);
Monfort of Colorado, Inc., 256 NLRB 613, 618 (1981); and
River Manor H.R.F., 224 NLRB 227, 236 (1976).
Additional unlawful interrogations and threats have been
committed by Neuhaus in the following incidents. On May
31, after Rosenberg had attempted to give Neuhaus an enve-
lope containing material from Local 342-50, Neuhaus asked
Rosenberg if he wanted to work in the Union? After Rosen-
berg replied, ‘‘Yes,’’ Neuhaus responded that he should go
to another city or State if he was looking for a union job.
The latter remark of Neuhaus is clearly unlawful, as it con-
veys to employees the message that support for the Union
and continued employment with Respondent are not compat-
ible. Kenrich Petrochemicals, 294 NLRB 519, 531 (1989);
Bill Scott Oldsmobile, 282 NLRB 1073 (1987); and L. A.
Baker Electric, 265 NLRB 1579, 1580 (1982).
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Broytman began his employment for Respondent on May 10,
some 3 weeks before his discharge.
This unlawful threat by Respondent also serves to make
coercive the acompanying interrogation of Rosenberg as to
whether he wanted to work in a union shop. Cannon Indus-
tries, 291 NLRB 632, 636–637 (1988). Accordingly, I con-
clude that Respondent has further violated Section 8(a)(1) of
the Act by Neuhaus’ conduct of unlawful interrogations and
threats to discharge by these remarks to Rosenberg on May
31.
Similarly, also on May 31, Neuhaus summoned Broytman
into his office, and asked him if he had signed any papers
for any other union. After Broytman replied, ‘‘yes,’’
Neuhaus fired him. The questioning of Broytman in
Neuhaus’ office in these circumstances was clearly coercive
and violative of Section 8(a)(1) of the Act. I so find.
The complaint also alleges several instances of unlawful
surveillance by Respondent. The first such instance took
place on May 24, when Handler followed employee Rosen-
berg in Joyce’s car for well over an hour, despite attempts
by Joyce to double back and to stop at a bar. During the fol-
lowing, as well as while both cars were stopped near the bar,
Handler was observed by Rosenberg talking into a walkie-
talkie. Inasmuch as Respondent admittedly suspected who
Joyce was, by virtue of his prior presence in his car, talking
to employees in front of Respondent’s premises, there can be
little doubt that the purpose of Respondent in following the
car was to surveil the union activities of Rosenberg and
Joyce.
Respondent argues that because Joyce behaved in a sus-
picious manner, by parking in front of the premises, some-
times at odd hours, without identifying himself to Respond-
ent, that it was justified in believing that he may be engaged
in some unlawful activity. However, Respondent’s argument
has not been substantiated, particularly because Handler did
not testify, and gave no testimony as to why he followed
Joyce. Moreover, because as noted Neuhaus conceded that he
believed that Joyce was a union organizer, I find that Re-
spondent’s following of the car containing Joyce and Rosen-
berg on May 24 constituted unlawful surveillance and is vio-
lative of Section 8(a)(1) of the Act. Nueva Engineering, 269
NLRB 999, 1004 (1984).
Several days later, on May 29, while the employees were
meeting on the street with union officials during lunch hour,
Scher drove by the employees with his son in the car speak-
ing into a walkie-talkie. Scher’s testimony that he merely
drove by because his son reported something ‘‘suspicious’’
going on, and he thought there may be a fight, is unconvinc-
ing. Particularly, because I have found that Scher drove by
the employees twice, and that Respondent suspected that
Joyce was a union official, I conclude that the purpose of
Respondent’s driving by was to surveil its employees’ union
activities, in violation of Section 8(a)(1) of the Act. Lakepark
Industries, 293 NLRB 452 (1989); Mid Mountain Foods, 291
NLRB 693, 699 (1988). See also Action Auto Sales, 298
NLRB 875, 887 (1990).
Inasmuch as I have found these two instances of unlawful
surveillance, I find it unnecessary to decide whether the third
alleged instance of surveillance, concerning the actions of the
security guard is unlawful. In view of the questionable nature
of this allegation, which consisted of the following of a car
for less than a block, Heads & Threads, 261 NLRB 800, 808
(1982), plus the fact that a finding of such a violation would
be cumulative, and not change the remedy, I conclude that
it is not essential to decide whether this conduct was viola-
tive of the Act.
B. The Alleged Discriminatory Discharges
1. Igor Broytman
Broytman signed an authorization card for Local 5, on
May 27, in the context of the unlawful assistance of Re-
spondent as described above. However, the next day, May
28, he signed a card for Local 342-50 in Joyce’s car.
On the same day that Broytman signed his Local 342-50
card, Local 342-50 officials made a demand of Respondent
to represent its meat department employees, as well as asking
for the same access to employees as had been granted to
Local 5 representatives.
Then on May 29, Respondent by Scher unlawfully
surveilled its employees at a meeting at lunchtime with rep-
resentatives of Local 342-50, during which Broytman was
present. As a result of Broytman’s being seen by Respondent
at that meeting, it is clear that Respondent believed or sus-
pected (correctly as it turned out) that he was a supporter of
Local 342-50. Respondent confirmed this fact by unlawfully
interrogating Broytman on May 31, the next working day
after the meeting, when Broytman admitted that he had
signed a card for another ‘‘union’’ (clearly referring to Local
342-50, as opposed to Local 5, whose card Broytman had
signed at Respondent’s insistence). Immediately after
ascertaining this information, Respondent terminated
Broytman.
Based on the foregoing, coupled with the other unfair
labor practices discussed above, a strong prima facie case has
been established that a motivating factor in Broytman’s dis-
charge was his activities on behalf of Local 342-50. Wright
Line, 251 NLRB 1053 (1980), enfd. 662 F.2d 899 (1st Cir.
1981). The burden then shifts to Respondent to establish by
a preponderance of the evidence, that it would have taken the
same action against Broytman, absent his union activities.
Wright Line, supra; NLRB v. Transportation Management
Co., 462 U.S. 393 (1983).
Respondent has fallen far short of meeting its burden in
this regard. Respondent asserts that it discharged Broytman
because of his failure to sign I–9 and W–4 forms. Neuhaus
testified that he had been given a list by his clerical em-
ployee of employees who had not signed these forms, and
that he had spoken to Broytman as well as other employees
about it on several prior occasions, before finally on May 31
telling Broytman that unless he signed the forms, ‘‘I cannot
keep you at the store.’’
However, Neuhaus gave no explanation as to how he sud-
denly decided to insist that Broytman sign the forms on that
date, on penalty of discharge, and most importantly why he
did not act similarly with respect to other employees who
also did not sign these forms. In that regard, the evidence
discloses that several other employees who were employed
by Respondent at the time had also not signed these forms,
and they were permitted to continue to work for Respondent
for several more months, and were not discharged.
Broytman, on the other hand, who had been employed by
Respondent for less than a month,17 was fired on May 31,
87KOSHER PLAZA SUPERMARKET
18 Indeed, Neuhaus attempted to make the change in hours on the
day of the meeting, but Feldman persuaded him to postpone the dis-
cussion until the next workday.
on the same day and at the same time that Respondent con-
firmed its prior suspicions that he had signed a card for
Local 342-50. In these cirumstances, Respondent has failed
to meet its burden of establishing that it would have termi-
nated Broytman absent his union activities. Wright Line,
supra.
Respondent also relies on the fact that Neuhaus disputed
Broytman’s testimony that Kassam was fired, and that
Kassam was neither called as a witness nor alleged as a
discriminatee. Although I have found that Kassam informed
Broytman that Respondent had terminated him, absent
Kassam’s testimony, I make no finding as to whether
Kassam was discharged, discriminatorily or otherwise. How-
ever, this has little bearing on the question of Broytman’s
discharge, which as I have outlined above has been proven
to be discriminatorily motivated by compelling evidence of
knowledge of Broytman’s union activities, timing of the dis-
charge, plus substantial evidence of animus toward activities
of its employees, on behalf of Local 342-50.
Accordingly, based on the foregoing, I conclude that Re-
spondent has violated Section 8(a)(1) and (3) of the Act by
its discharge of Broytman.
2. Ronald Feldman
Respondent contends initially that Feldman was a super-
visor under Section 2(11) of the Act, thereby disqualifying
him from consideration as a discriminatee. However, I am
not persuaded that Respondent has established such status.
Although Feldman was hired as a meat manager at a salary
of $550, as opposed to the hourly salary of other meat de-
partment employees, this factor in and of itself is not suffi-
cient to confer supervisory status on Feldman.
It is noteworthy that after Zielinski was hired, Feldman’s
responsibilities were significantly diminished, as Respondent
gave the responsibility of ordering meat to Zielinski, and told
employees that Zielinski was their manager and to take or-
ders from Zielinski. Although even after these events, Feld-
man continued to along with Zielinski assign work to em-
ployees, the record doesn’t establish that either of them need-
ed to exercise independent judgment when making these as-
signments to the other workers. Clark Machine Corp., 308
NLRB 555 (1992). The evidence discloses that the butchers
and wrappers basically knew what to do, and how to perform
their work, which was fairly routine, and it did not require
constant supervision by Feldman or Zielinski for that matter.
Although the record did disclose that Feldman did become
involved in the hiring process of Alvarez, wherein his rec-
ommendation to hire Alvarez was approved by Respondent,
I note that it was Neuhaus who made the final decision. One
single isolated instance of an effective recommendation to
hire is not sufficient in my view to establish that Feldman
was a supervisor under Section 2(11) of the Act. Moreover,
the record is not clear whether Feldman’s involvement in the
hiring of Alvarez occurred before or after Zielinski was ap-
pointed as manager by Respondent, wherein Feldman’s re-
sponsibilities were substantially diminished, although he was
not specifically informed that he was removed as manager.
Accordingly, because it is Respondent’s burden to estab-
lish supervisory status of Feldman at the time of his dis-
charge, I conclude that it has failed to meet the burden, and
that he was an employee at the time of his termination on
June 1.
Turning to the merits of the complaint allegations, a sig-
nificant dispute exists as to whether Feldman was discharged
or quit his job. However, because the conflict involves
whether Feldman was fired because he refused to work addi-
tional hours assigned by Respondent, or whether he quit rath-
er than work the extra hours, this dispute is illusory and in-
consequential, because in either event, the significant issue is
the legality of Respondent’s decision to insist on Feldman’s
working the additional hours. Thus, if the change in hours
were unlawful, in these circumstances a constructive dis-
charge finding would be warranted, because such a change
would be sufficient to warrant the employee’s decision to
quit. See Kenrich Petrochemical, 294 NLRB 519, 539,
(1989), and cases cited there.
In assessing Respondent’s actions, once again the Wright
Line criteria must be evaluated. Here, Feldman, although
present at the meeting with Local 5 representatives on May
27, refused to sign a card for Local 5, although as noted Re-
spondent through both Zielinski and Neuhaus had urged their
employees to do so, and unlawfully threatened them with
discharge if they did not sign such cards.
Moreover, Feldman instead had signed a card for Local
342-50 on May 8, and more importantly was present at the
meeting of employees and Local 342-50 representatives on
the street, on May 29, that was observed by Scher. Imme-
diately after that meeting, Neuhaus asked to speak to Feld-
man about his hours, which Feldman successfully postponed
until his next working day, Monday, June 1. It is significant
to note that I have found above that Broytman, who was also
present at that meeting, was discriminatorily discharged on
May 31, the day before Feldman’s termination occurred.
In these circumstances, I conclude that a prima facie case
has been established that the decision of Respondent to
change Feldman’s hours on June 1, or to discharge him for
refusing to accept such a change, was motivated by protested
conduct, i.e., his refusal to sign a card for Local 5, Respond-
ent’s favored Union, and his decision to sign a card for and
support Local 342-50. Although as Respondent points out, no
antiunion statements concerning Local 342-50 were specifi-
cally directed toward Feldman, the significant animus de-
scribed above toward Local 342-50 supporters, including
threats of discharge, surveillance, and interrogation, plus the
unlawful discharge of Broytman and the assistance to Local
5, more than compensates for the failure to make any direct
antiunion remark to Feldman. Knowledge of Feldman’s pro-
tected conduct is demonstrated by his failure to sign a Local
5 card, and statement to Zielinski in Neuhaus’ presence that
he was not interested, plus his presence at the union meeting
that Respondent surveilled. The timing is also quite sus-
picious, coming the next working day after the meeting.18
The burden then shifts to Respondent to demonstrate by a
preponderance of the evidence that it would have taken the
same action against Feldman, absent his protected conduct.
Once more, Respondent has fallen far short of meeting such
burden.
In that connection, Neuhaus testified credibly that he had
spoken to Feldman previously about the problems that his
leaving at 5 p.m. was causing the department, particularly on
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Respondent has argued, as a general defense to all of its alleged
discriminatory discharges, that it took no action against card signers
Fardman and Izhak, and that the discharge of card signer Kassam
has not been shown to be unlawful. However, a discriminatory mo-
tive, otherwise established, is not disproved by an employer’s proof
that it did not take similar action against all union adherents. Reso-
lute Realty, supra at 689; Fredonia Valley Quarries, 272 NLRB 843,
847 (1989).
Wednesday and Thursday evenings, Respondent’s busiest
nights. I have also credited Neuhaus that Feldman replied
that he would see what he could do about staying later.
However, Neuhaus’ further testimony that on June 1 it fi-
nally ‘‘reached a point where I couldn’t’’ work with Feldman
anymore has not been substantiated, and I find to be
pretextual.
Respondent based on Neuhaus’ own testimony had toler-
ated Feldman’s going home at 5 p.m., and the consequent
problems in its meat department from the first week of his
employment back in March. It took no action against Feld-
man, either before or after its busiest time of the year, the
Passover holidays which occurred in April. Yet, on June 1
shortly after the appearance of Local 342-50, Feldman’s sup-
port for that Union and his failure to support Local 5, the
Union favored by Respondent, Respondent suddenly decided
to insist that Feldman work additional hours. It is noteworthy
that Neuhaus wanted Feldman to stay as many as 3–5 extra
hours on busy nights (at least twice a week according to
Neuhaus) and refused Feldman’s request for overtime or ad-
ditional pay for these hours.
Because Respondent has adduced no evidence as to why
on June 1, it felt it necessary to insist on the extra hours,
when it had not so insisted on prior occasions which in-
cluded the Passover holidays, the only logical conclusion that
can be drawn is that Feldman’s protected activities accounted
for this decision not to tolerate these problems any longer.
Resolute Realty Co., 297 NLRB 629, 688 (1990).
In these circumstances, Respondent has failed to establish
that it would have changed Feldman’s hours (causing him to
quit) and/or discharged him for refusing to agree to such
changes, absent his protected conduct. Therefore, Respondent
has violated Section 8(a)(1) and (3) of the Act. I so find.
3. Alex Rosenberg and Sergio Alvarez
Once more a strong prima facie case of discriminatory
conduct has been established in connection with the dis-
charges of Alvarez and Rosenberg. They were both card
signers for Local 342-50, attended the meeting observed by
Respondent, and were both subject to unlawful threats. More
importantly, however, they were terminated by Respondent
as they were leaving the store to go to join the Union’s pick-
et line. Therefore, I conclude that a motivating factor in their
discharge was their conduct and activities on behalf of and
in support of Local 342-50, including their participation in
a Local 342-50-conducted strike.
Because Respondent has contended, contrary to my factual
findings above, that these employees were not fired, they
presented no reasons as to why it discharged them, and con-
sequently have not shown that it would have terminated Al-
varez or Rosenberg, absent their protected conduct. There-
fore, I conclude that Respondent has violated Section 8(a)(1)
and (3) of the Act by its discharge of these employees.19
The complaint, as amended, also alleges that the strike en-
gaged in by these employees was an unfair labor practice
strike. Here, although the evidence does disclose that the
strike also had a recognitional objective, i.e., to persuade Re-
spondent to recognize the Union, it also had as an objective,
the protest of Respondent’s unfair labor practices. This is
demonstrated by the testimony of Alvarez, Rosenberg, and
O’Leary that the strike was an unfair labor practice strike in
protest of the discharge of Broytman and Feldman, the meet-
ing with employees in late May, when O’Leary explained
one of the Union’s options may be an unfair labor practice
strike, plus the handbills distributed during the course of the
strike, which clearly set forth such an objective of the picket-
ing and the strike.
Inasmuch as a strike is considered to be an unfair labor
practice strike, as long as one of the objectives is to protest
unfair labor practices of the employees, even though the
strike may also have another objective as well, Workroom for
Designers, 274 NLRB 840, 856 (1985); Mastro Plastics v.
NLRB, 350 U.S. 270 (1956), I conclude that the strike on
June 4 and thereafter was an unfair labor practice strike, and
that Alvarez and Rosenberg, even if they were not found to
be discriminatees here, are entitled to the status of unfair
labor practice strikers.
C. The Alleged Refusal to Bargain
The complaint alleges and the General Counsel contends
that Respondent refused to recognize and bargain with the
Union, the designed majority representative of its employees
in an appropriate unit consisting of all full- and part-time
meat department employees.
Respondent vigorously contests the General Counsel’s as-
sertions that the Union represented a majority of employees
in the meat department, and that a unit confined to meat de-
partment employees is an appropriate unit under the Act.
In order to resolve both of these issues, it is first necessary
to decide which employees should be included in a unit of
meat department employees. In that regard, all parties agree
that such a unit should consist of at least six employees.
These are Alvarez, Rosenberg, Broytman, Kassam, Izhak,
and Fardman. The General Counsel contends that Zielinski
should not be included because of his ‘‘identification with
management,’’ and Respondent contends that Feldman
should be excluded because he is a supervisor under Section
2(11) of the Act.
As noted above, I have found that neither Zielinski nor
Feldman was a statutory supervisor, and that although they
were both ‘‘managers’’ of the department, their work assign-
ment responsibilities were routine and did not require the ex-
ercise of independent judgment. I find that they were both
as experienced butchers, leadmen, but not 2(11) supervisors,
and should be included in the unit.
I have found above that Zielinski was an agent of Re-
spondent in connection with the solicitation of cards for
Local 5, and statements made by him in that regard. How-
ever, this finding doesn’t make him ineligible to be included
in the unit, and the General Counsel has cited no authority
in support of such a proposition, nor any case where such
a finding renders an individual ‘‘identified with manage-
ment,’’ and consequently not properly included in the unit.
Respondent also employed Schlomo Taub, as its
‘‘Mashgiach’’ who spent most of his time in the meat depart-
89KOSHER PLAZA SUPERMARKET
20 I note that some of the butchers employed by Respondent do
utilize a bandsaw to perform some of the cutting.
ment. The General Counsel, although not including Taub as
a unit employee in his calculations, has set forth no reason
or rationale for not considering him to be a unit employee.
Taub spends a majority of his time in the meat department,
performing various functions in the department similar to
that of other meat department employees, such as ordering
meat, taking and/or filling special orders, filling the show-
case, and wrapping meat, as well as his Mashgiach respon-
sibilities, which also relate to the meat department’s func-
tioning. In these circumstances, I conclude that Taub should
be included as a meat department employee of Respondent.
Respondent also contends that a number of other employ-
ees, who performed some work in the meat department dur-
ing the month of May, should also be included in the unit
as regular part-time employees. These employees include
Danny, Anna, Kleinman, Sheinhouse (the cookie man),
Tirado, and Henry. In addition, Respondent also appears to
contend that the unnamed part-time porter, who also per-
formed some work in the meat department, should also be
includable as a unit employee. However, in my view, Re-
spondent has not established that any of these employees
should be considered regular part-time employees in the meat
department at the time of the demand for recognition, May
28, which is the appropriate date to measure majority status.
These employees worked elsewhere in Respondent’s store,
and were called on to work in the meat department only
when the department became very busy on Wednesday
and/or Thursday nights. They had no regular schedule of
hours, and Respondent has not established any specific
amounts of hours worked for any of these employees, prior
to the demand for recognition.
Although after the discharge of Broytman and Kassam on
May 31, Danny worked on a more regular basis filling in as
a wrapper, and Anna was transferred into the department as
a full-time meat department employee for a short period of
time, these events are irrelevant to a determination of their
status as of May 28, the date of the demand.
Accordingly, I conclude that prior to May 28, these em-
ployees worked in the meat department on a sporadic and ir-
regular basis, and cannot be considered regular part-time em-
ployees in that department at that time. Delta Gas Co., 283
NLRB 391, 397 (1987); Mariposa Press, 273 NLRB 528,
530 fn. 12 (1984); Haag Drug Co., 146 NLRB 798, 800
(1964).
I therefore conclude that the unit of meat department em-
ployees as of May 28 consisted of nine employees, Alvarez,
Rosenberg, Feldman, Zielinski, Izhak, Fardman, Broytman,
Kassam, and Taub.
The Union obtained seven signed authorization cards from
Respondent’s employees, which constitutes a clear majority
of Respondent’s employees in a unit of meat department em-
ployees which I have found consisted of nine employees. Re-
spondent asserts that the cards were invalid as a proper des-
ignation of representation, because they only designate the
International as the representative without any mention of
Local 342-50. I do not agree.
Although the heading of the card refers only to the Inter-
national, underneath the authorization for representation
statement, the card authorizes the International or its char-
tered local unions (emphasis added) to represent the em-
ployee. Such a card is a clear designation of the International
or its local unions to represent the employees, and has been
so held. Atlas Boot Mfg. Co., 116 NLRB 565, 569 (1956).
Moreover, even absent the additional language referring to
the Local, a designation of parent organization is a valid des-
ignation of its affiliate local. Norfolk Southern Bus Corp., 76
NLRB 488, 489 (1948); Nubone Co., 62 NLRB 322, 326
(1945).
Moreover, I have also found that when Joyce solicited the
cards from the employees, he gave them his business card,
which identified himself as a representative of Local 342-50.
Therefore, I find that the cards were valid designations of
Local 342-50 to represent the employees, and that it did rep-
resent a majority of employees in a unit of meat department
employees. Whether such a unit is an appropriate unit for
collective bargaining is a more problematic issue, to which
I now turn.
Although the Board has often found that meat department
employees of a grocery store have a distinguishable commu-
nity of interest, warranting a funding of an appropriate unit,
Great Scot of Florida, 256 NLRB 885 fn. 1 (1981);
Buehler’s Food Markets, 232 NLRB 785 (1977); R-N Mar-
ket, 190 NLRB 292 (1971); Allied Discount Foods, 167
NLRB 361 (1967), and have in fact adopted a presumption
that a unit of meat department employees is appropriate, Big
Y Supermarkets, 161 NLRB 1263 (1966), this presumption is
not applicable where the employees do not exercise tradi-
tional meatcutting skills. Copps Food Center, 301 NLRB
398, 399 (1991); Hall’s Super Duper, 281 NLRB 1116,
1117–1118 (1986).
Thus, the crucial determination to be made here is whether
the meat department employees, employed by Respondent,
exercise or utilize ‘‘traditional meatcutting skills,’’ as defined
by Board precedent. My examination of such precedent re-
veals that, where as here, the employees do not handle car-
cass meat, but handle only prepackaged and boxed meats that
merely have to be cut into smaller pieces, and trimmed be-
fore being weighed and wrapped, such traditional meatcutting
skills were not exercised. Copps, supra; Hall’s, supra; and
Ashcraft’s Market, 246 NLRB 471 (1979). Thus, although
the cutting of boxed and precut beef into pieces required for
sale to consumers does require some specialized skill and
equipment,20 it does not require the sophisticated butcher
skills traditionally used by meatcutters. Savemart of Modesto,
293 NLRB 1190, 1191 (1989). The traditional skilled work
is instead performed by the meat distributor at its packing
house. Yoahan of California, 252 NLRB 309, 310 (1980).
Here, as in the above-cited cases, Respondent’s employees
work only on boxed or prepackaged meat, and their respon-
sibilities primarily entail the relatively simple task of cutting
the already precut meat into smaller pieces, and trimming the
fat off the meat. In connection with the latter task, employee
Alvarez candidly conceded that a beginner can learn to trim
fat in less than a minute. Respondent’s employees also per-
form the grinding of meat into chopped meat, which under
no stretch of the imagination can be considered a traditional
meatcutting skill, particularly because inexperienced non-
butchers have from time to time performed this work.
Although another task performed by Respondent’s meat
department employees is the pickling of corned beef, the evi-
dence here does not establish the training or experience re-
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Respondent also employed a porter who worked part time in the
meat department performing maintenance tasks and ‘‘bolting up
chickens.’’ The record does not disclose how much time he spent
in the meat department, or how much time working in the rest of
the store.
quired to perform this work, and I conclude that the General
Counsel has not demonstrated that pickling of corned beef is
a traditional meatcutting skill.
A small percentage of the work performed by Respond-
ent’s meat department employees is ‘‘special order’’ work
which the Board has held might be construed as involving
the exercise of traditional meatcutting skills. R-N Market,
supra; Copps, supra; and Hall’s, supra. However, the mini-
mal amount of such work performed by Respondent’s em-
ployees is not sufficient to warrant a finding that the unit
employees as a whole perform traditional meatcutting skills.
Copps, supra; Hall’s, supra.
It is also noteworthy in this regard that a substantial por-
tion of the meat department employees’ duties consists of un-
loading and loading trucks and unpacking cases of meat and
chicken products; stocking display cases with prepackaged
and prepriced meat, chicken, and cold cuts; traying; weigh-
ing; pricing; wrapping; and pricing meat and chicken, which
are clearly not traditional meatcutting skills. Great Scot,
supra; Ashcraft’s, supra; and Copps, supra.
Accordingly, based on the foregoing cases and analysis, I
conclude that the employees in Respondent’s meat depart-
ment do not perform ‘‘traditional meatcutting skills’’ under
Board standards, and that no presumption exists that a unit
confined to such employees is appropriate.
It then becomes necessary to examine other traditional fac-
tors used by the Board in making unit determinations in
these cases, which in my view do not support a finding that
such a unit is appropriate. One significant factor is that all
employees of the Respondent including the meat department
employees, with the exception of Meat Manager Feldman,
receive the same wage range of $4.25 to $7 per hour. Copps,
supra; Hall’s, supra; and Ashcraft’s, supra. It is notable that
the Board in the above cases distinguished prior cases such
as R-N Market, supra; Priced-Less Discount, 157 NLRB
1143 (1966); and Great Scot, supra, where the Board had re-
lied on the fact that meat department employees had received
significantly higher wages than other store employees in
finding such a unit appropriate.
Similarly, all of Respondent’s employees including meat
department employees are subject to a uniform policy with
respect to fringe benefits, share the same breakroom facili-
ties, and have frequent contacts with each other including
eating their meals together. Copp’s, supra; Ashcraft’s, supra;
Hall’s, supra; and Great Scot, supra. In that connection, it is
significant that one of the jobs performed by meat depart-
ment employees is the pickling of corned beef, which is done
outside the confines of the meat room in a corridor. There,
the work was performed near a refrigerator which at times
required the meat department employee to get out of the way
and temporarily stop work, when employees from other de-
partments would need to get in and out of the refrigerator.
Respondent also used a walk-in refrigerator which contained
both chickens and vegetables. This required constant contact
and cooperation between meat department employees and
produce department employees in coordinating the use of
that refrigerator.
Another factor which the Board has relied on in making
unit determinations in meat department cases is the presence
or absence of an apprenticeship program. Ashcraft’s, supra.
See also Hall’s, supra, where the Board distinguished Big Y,
supra, where an appropriate unit was found, in part based on
the presence of an apprenticeship program. Here, Respondent
has no apprenticeship program, which is consistent with its
practice of not paying significantly higher wages to its butch-
ers, and my previous finding that they not exercise traditional
meatcutting skills.
The Board also considers the question of common and/or
separate supervision of meat department employees. Here, al-
though Respondent employed Feldman and/or Zielinski as
meat department managers, I have found their responsibilities
in this regard primarily routine, Ashcraft’s, supra, and that
they are not supervisors under the Act. Great Scot, supra.
Moreover, Respondent’s principals, primarily Neuhaus in the
case of meat department employees, regularly appear in the
department, and make all major decisions regarding meat de-
partment employees such as hiring, firing, granting of wage
increases, and disciplining of employees. In these cir-
cumstances, I do not agree with the General Counsel’s con-
tention that significant separate supervision of the meat de-
partment employees has been established, Great Scot, supra;
Ashcraft’s, supra, and conclude that they share common su-
pervision with other employees in the unit.
Moreover, I would note that in Copps, supra, the most re-
cent Board case dealing with the issue of the appropriateness
of meat department units, it was found that such a unit was
not appropriate, even though the meat department managers
hired, fired, and disciplined employees within their depart-
ments.
Finally, the Board also frequently relies on the issue of
interchange between the employees of the meat department
and the other employees in the store. I have found above
with respect to this issue that prior and after the discharge
of Respondent’s two wrappers, it would assign as many as
six employees from other parts of the store (not necessarily
at the same time) to help out in the meat department in var-
ious tasks such as wrapping meat and chicken, packing
chickens, grinding meats, putting prices on items, and stock-
ing the showcase with meat and chicken. This would occur
primarily when Respondent was busy, which was most com-
monly Thursday nights, sometimes on Wednesdays, and prior
to Jewish holidays such as Passover. Additionally on a daily
basis, employees from other departments would assist meat
department employees in unloading deliveries.21
Moreover, I have also found that some meat department
employees would from time to time help out in other parts
of the store by helping other employees unload deliveries,
and assisting these employees in pushing U-boats filled with
products within the store. Additionally, Respondent has uti-
lized meat department employee Izhak to drive Respondent’s
van to pick up or deliver orders or supplies, and Fardman to
help bag groceries. In this connection, Fardman had started
out as a bagger while working for Respondent, before being
transferred into the meat department.
Also, unit employee Schlomo Taub regularly spends a sub-
stantial amount of his time outside of the meat room, per-
forming work in various other parts of the store, unrelated
to his meat department functions.
91KOSHER PLAZA SUPERMARKET
22 I note in this regard, that although I have not credited Neuhaus
or Scher in most instances with respect to their testimony concerning
the alleged unfair labor practices, I found them believable in this
area. I note that such testimony was corroborated in part by employ-
ees Zielinski, Mojica, and Tapia, as well as in some instances by
Alvarez or Rosenberg, General Counsel’s own witnesses.
After the discharge of the wrappers, Respondent trans-
ferred Anna, a cashier, who had previously filled in as a
wrapper when the store was busy, to work full time in the
meat department. Additionally, employee Danny, who had
also previously helped out in the department during busy
times, was assigned significantly more hours of work as a
wrapper, from 2–7 hours a day, up to three times a week,
until a new full-time wrapper was hired.
I do deem it appropriate to consider these latter two
events, as evidence of Respondent’s policy of interchange of
employees, notwithstanding the fact that they occurred subse-
quent to the demand for recognition. Although, I have not
considered these actions in assessing the status of these indi-
viduals as unit employees, because the appropriate time for
such evaluation is clearly the date of the demand, such is not
necessarily the case in evaluating unit issues. In my view, the
question of Respondent’s practices concerning the inter-
change of employees can take into account postdemand
events, because they bear on Respondent’s overall policies,
and are consistent with the credited22 testimony of Scher and
Neuhaus that Respondent’s store is run on a basis of employ-
ees constantly helping each other out.
Accordingly, based on the above, I find that the evidence
reveals substantial interchange between employees in and out
of Respondent’s meat department, particularly in view of the
fact that Respondent had been in operation for merely 3
months, making these instances of permanent or temporary
interchange more significant. Thus, this factor also militates
heavily against a finding that a separate unit of meat depart-
ment employees is appropriate. Ashcraft’s, supra; Great Scot,
supra.
Moreover, it is also noted that, even if it should be found
that the evidence of interchange was insubstantial, that factor
would not be dispositive, because Hall’s, supra; Copps,
supra; and Yaohan, supra, all found meat department units to
be inappropriate despite the absence of substantial inter-
change, asserting that the most significant factor in such a
decision is the question of the need for traditional
meatcutting skills.
The General Counsel places principal reliance on NLRB v.
Joe B. Foods, 953 F.2d 287, 293 (7th Cir. 1992), which
found a unit limited to meat department employees appro-
priate, despite the fact that 70–80 percent of the work of the
butchers was performed on boxed or prepackaged meat.
However, I find this case to be clearly distinguishable for a
number of reasons. The General Counsel conveniently ne-
glects to mention the essence of the Board and court deci-
sions in finding that traditional meatcutting skills were exer-
cised by the butchers in that case. Both decisions emphasized
that ‘‘the addition of ‘rails’ to the meat department requires
the employees to process full fore and hind quarters of
meat.’’ 296 NLRB at 950 and 953 F.2d at 293. Here, Re-
spondent does not have ‘‘rails’’ in the department, and the
employees do not process full fore and hind quarters of meat.
Moreover, the employees in Joe B. Foods, supra, worked
exclusively in the meat department which was separately su-
pervised, and there was no evidence of interchange between
meat department employees and other store employees.
These factors were also relied on by both the court and the
Board in finding the existence of a community of interest for
the meat department employees. As I have noted above, there
is substantial evidence of interchange between meat depart-
ment and other store employees, and the separate supervision
of the department by the managers is primarily routine, al-
though all store employees are commonly supervised by Re-
spondent’s partners.
Finally, the Board and the court there emphasized that a
separate meat department was the historically recognized
unit, which is in accord with longstanding Board policy to
give ‘‘substantial weight to prior bargaining history.’’ 953
F.2d at 293. Here, there is no bargaining history present, as
was the case in Joe B. Foods, supra.
Therefore, I find that the General Counsel’s reliance on
Joe B. Foods is misplaced, and that the more dispositive
precedent are the cases that I have detailed above such as
Copps, supra; Hall’s, supra; and Ashcraft’s, supra.
The General Counsel also makes reference to industry
practice in the New York geographical area, and argues that
the record supports the conclusion that the Union represents
separate units of meat department employees in both kosher
and nonkosher supermarkets in such an area. However, the
evidence presented in support of such an assertion is of dubi-
ous validity, inasmuch as Joyce’s testimony to this effect is
directly contradicted by the collective-bargaining agreements
themselves, which on their face indicate that the units also
include other nonmeat department employees, such as cash-
iers, drivers, delivery clerks, utility employees, and deli and
appetizer clerks.
Joyce sought to explain this discrepancy by asserting that
notwithstanding the terms of the agreement, in kosher shops,
other employees such as cashiers, clerks, and drivers are rep-
resented by the Union only in butcher shops as opposed to
supermarkets. Joyce further explained that a butcher shop
primarily sells meat, but will also have an aisle or two of
grocery products as well. Even accepting Joyce’s testimony
which appears to run afoul of the parol evidence rule, it
demonstrates that the Union has represented other categories
of employees such as cashiers, drivers, and clerks, which
seems to me to detract from its argument that the meat de-
partment employees by virtue of their specialized skills have
a separate community of interest warranting separate rep-
resentation. Moreover, Joyce admits that in nonkosher super-
markets, the Union represents deli and appetizing clerks,
along with meat department employees in one unit, unless
another labor organization represents these other categories
of employees. This testimony in addition to further detracting
from the contention that the meat department employees are
entitled to separate representation highlights clearly the sig-
nificance if any that should be given to Joyce’s testimony in
this area.
Thus, it appears that if Joyce is to be believed, industry
practice demonstrates that the decision as to which employ-
ees the Union represents in these butcher shops or super-
markets is determined not by any examination of community
of interest standards, or skills of meat department employees,
but solely based on what other labor organization, if any,
represents the other employees in the particular store. There-
fore, I conclude that even if Joyce is credited, his testimony
92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
does not establish an industry practice that supports the Gen-
eral Counsel’s contention that a separate unit of meat depart-
ment employees is appropriate. Indeed if anything, such testi-
mony as I have detailed above supports the contrary view.
I would also note that in Hall’s, supra, the Board found
the unit inappropriate notwithstanding evidence of industry
practice in separate units, observing that ‘‘evidence that this
Petitioner represents separate meat department units in other
area stores will not suffice to make appropriate a unit of
meat department employees who perform relatively simple
tasks in the handling of boxed and prepackaged meat.’’ 281
NLRB at 1117–1118.
Finally, the General Counsel falls back on the proposition
that a labor organization need not seek representation in the
most appropriate or the broadest appropriate unit, but only an
appropriate unit. Bamberger’s Paramus, 151 NLRB 748, 751
(1965); P. Ballantine & Sons, 141 NLRB 1103 (1963); Pu-
rity Food Stores, 160 NLRB 651 (1966). Although this state-
ment of the law is accurate and correct, it is insufficient to
establish that an appropriate unit has been proven in the in-
stant matter. The fact that meat department employees work
in an enclosed area, work primarily with or on meat prod-
ucts, and exercise some skills different from that of other
employees is not enough to warrant representation in a sepa-
rate unit. The General Counsel’s evidence has established lit-
tle more, and he has not, based on the overwhelming weight
of Board precedent which I have referred to above, met his
burden of proving that the Union has sought recognition in
an appropriate unit.
The General Counsel having failed to establish this crucial
allegation of the complaint, I cannot find that Respondent
was obligated to bargain with the Union or that it has vio-
lated the Act, by refusing to do so. I shall therefore rec-
ommend dismissal of these allegations in the complaint.
Having made such a finding, it becomes unnecessary for
me to decide whether a bargaining order would be warranted
under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
standards and/or whether as Respondent contends the vio-
lence committed by the Union on September 7 warrants a de-
nial of a bargaining order. Laura Modes Co., 144 NLRB
1592 (1963).
However, in the event that the Board finds the unit sought
to be appropriate, I do deem it helpful to briefly state my
views on these issues to avoid the necessity of a remand
should my unit findings be reversed.
I am in full agreement with the General Counsel that a
bargaining order would be warranted (assuming an appro-
priate unit) in view of the small size of the unit, the unlawful
discharge of nearly 50 percent of the unit, as well as the sig-
nificant 8(a)(1) and (2) conduct committed by high-level of-
ficials of Respondent. In these circumstances, the possibility
of holding a free and fair election is slight, the unfair labor
practices had a tendency to undermine the Union’s majority
strength, and a bargaining order is justified. NLRB v. Solboro
Knitting Mills, 572 F.2d 936, 944 (2d Cir. 1978); NLRB v.
Balsam Village Manage Co., 792 F.2d 29, 33–34 (2d Cir.
1986); Highland Plastics, 256 NLRB 146, 147 (1981).
I am also in agreement with the General Counsel and the
Charging Party that the conduct of the Union, during the
September 7 ‘‘demonstration,’’ does not warrant the with-
holding of a bargaining order under Laura Modes and its
progeny. Here, the violence and intimidation by the Union
and the pickets under its control, although serious, was lim-
ited to a short period of time on that day, balanced against
several prior months of peaceful and lawful picketing. More-
over, the Union pursued its legal remedies by filing charges
and a petition for an election, and the Respondent’s unfair
labor practices as I have found above were serious and pro-
vocative. In such circumstances, where ‘‘there were but few
instances of misconduct by a relatively small proportion of
strikers . . . against a background of Respondent’s frequent
and recurring unfair labor practices . . . . the extraordinary
sanction of withholding an otherwise appropriate bargaining
order would not best effectuate, the policies of the Act.’’
Massachusetts Coastal Sea Foods, 293 NLRB 496, 501
(1989); New Fairview Hall Convalescent Home, 206 NLRB
688, 689 (1973), enfd. 520 F.2d 1316 (2d Cir. 1975), cert.
denied 423 U.S. 1053 (1976). See also Grede Foundries, 235
NLRB 368 (1978), enfd. as modified 628 F.2d (D.C. Cir.
1982).
CONCLUSIONS OF LAW
1. The Respondent, Kosher Plaza Supermarket, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Food and Commercial Workers Union, Local
342-50, AFL–CIO and Amalgamated Local 5 are labor orga-
nizations within the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by
unlawfully interrogating its employees concerning their sup-
port for or activities on behalf of Local 342-50, by inviting
employees to quit their employment because of such employ-
ees’ exercise of activities on behalf of Local 342-50, thereby
threatening them with discharge by implying that support for
Local 342-50 and continued employment with Respondent
are not compatible, and by engaging in surveillance of the
union activities of its employees.
4. Respondent has violated Section 8(a)(1) and (2) of the
Act by ordering and instructing its employees to sign author-
ization cards for Amalgamated Local 5, physically assisting
employees in filling out authorization cards for Local 5, in-
terrogating its employees concerning whether they signed au-
thorization cards for Local 5, threatening its employees with
discharge unless they signed authorization cards for Local 5,
permitting representatives of Local 5 to meet with employees
on Respondent’s premises during worktime and to distribute
authorization cards to its employees, and denying representa-
tives from Local 342-50 the same rights and access to meet
with its employees on worktime on its premises.
5. Respondent has violated Section 8(a)(1) and (3) of the
Act by changing the working hours of Ronald Feldman, and
by discharging Feldman, Sergio Alvarez, Alex Rosenberg,
and Igor Broytman because of their activities on behalf of
and support for Local 342-50, and their exercise of other
protected conduct.
6. The strike engaged in by employees of Respondent
commencing on June 4, 1992, was caused in part by unfair
labor practices committed by Respondent and was an unfair
labor practice strike.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Respondent did not engage in any other unfair labor
practices alleged in the complaint.
93KOSHER PLAZA SUPERMARKET
23 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
24 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1), (2), and (3) of the
Act, I shall recommend that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily discharged
Feldman, Alvarez, Rosenberg, and Broytman, it is appro-
priate that Respondent be ordered to reinstate these employ-
ees to their former positions of employment, or if these posi-
tions no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and privi-
leges, and to make whole these employees for any loss of
earnings or benefits that they may have suffered. Loss of
earnings shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and shall in-
clude interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
I shall also order Respondent to restore the hours of Ron-
ald Feldman to the schedule that had existed prior to June
1, 1992 (i.e., 40 hours per week).
It is also appropriate to order Respondent to expunge from
its files any reference to the discharges of Feldman, Alvarez,
Broytman, and Rosenberg, and notify these employees in
writing that this has been done and that evidence of such ac-
tions will not be used by Respondent as a basis for any fu-
ture action against them. Sterling Sugars, 261 NLRB 172
(1982).
Finally, inasmuch as Respondent has unlawfully denied
Local 342-50 the same access to its premises and employees
as it had previously granted to Local 5, I shall order that Re-
spondent grant such access on request to representatives of
Local 342-50 (i.e., permission to meet with its employees on
working time on Respondent’s premises). River Manor,
supra, 224 NLRB at 228.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended23
ORDER
The Respondent, Kosher Plaza Supermarket, Brooklyn,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their support for
or activities on behalf of Local 342-50, or whether they
signed authorization cards for Local 5.
(b) Threatening its employees with discharge unless they
signed authorization cards for Local 5, or inviting employees
to quit their employment because of such employees’ exer-
cise of activities on behalf of Local 342-50 thereby threaten-
ing them with discharge by implying that support for Local
342-50 and continued employment with Respondent is not
compatible.
(c) Engaging in surveillance of the union activities of its
employees.
(d) Permitting representatives of Local 5 to meet with its
employees and to distribute authorization cards to the em-
ployees on Respondent’s premises during worktime, while
denying representatives from Local 342-50 the same rights
and access to meet with such employees on worktime and on
its premises.
(e) Ordering and instructing its employees to attend a
meeting with representatives of Local 5, or to sign authoriza-
tion cards for Local 5, or attending meetings conducted by
Local 5 with its employees, or physically assisting its em-
ployees in filling out authorization cards for Local 5.
(f) Discharging or changing the work hours of its employ-
ees, because of its employees’ support for or activities on be-
half of Local 342-50, or because they engaged in other pro-
tected concerted activity.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Ronald Feldman, Alex Rosenberg, Sergio Alva-
rez, and Igor Broytman immediate and full reinstatement to
their former jobs or, if those positions no longer exist, to
substantially equivalent positions of employment, without
prejudice to their seniority or any other rights and privileges
previously enjoyed.
(b) Make whole Feldman, Rosenberg, Alvarez, and
Broytman for any loss of earnings and other benefits suffered
as a result of the discrimination against them, in the manner
set forth in the remedy section of this decision.
(c) Remove from its files any reference to the discharges
of Feldman, Alvarez, Broytman, and Rosenberg and notify
these employees in writing that this has been done, and that
evidence of these unlawful actions will not be used against
them in any way.
(d) Restore the hours and schedule that existed prior to
June 1, 1992, for Ronald Feldman.
(e) On request, provide to representatives of Local 342-50
access to its premises and the right to meet with its employ-
ees on worktime.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Post at its facility in Brooklyn, New York, copies of
the attached notice marked ‘‘Appendix.’’24 Copies of the no-
tice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations not found.