L & L Shop Rite Market

National Labor Relations Board - Board Decisions

May 16, 1960

127 N.L.R.B. 767 (N.L.R.B. 1960)

L & L SHOP RITE MARKET
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
767
The activities of the Respondent set forth in section III, above, occurring in cdn-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade , traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It will be recommended that the Respondent offer Arthur York immediate and
full reinstatement to his former or substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and make him whole for any loss
of pay he may have suffered by reason of the discrimination against him, by payment
to him of a sum of money equal to that which he normally would have earned as
wages from the date of the discrimination to the date of the offer of reinstatement,
less his net earnings during such period, in accordance with the Board policy set
forth in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company,
8 NLRB 440.
It will be further recommended that the Respondent, upon reasonable request,
make available to the Board and its agents all payroll and other records pertinent to
the analysis of the amount of backpay due.
Since the violations of the Act which the Respondent committed are closely re-
lated to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is reasonably to be anticipated from its past conduct, the
preventive purposes of the Act may be thwarted unless the recommendations are co-
extensive with the threat. To effectuate the policies of the Act, therefore, it will be
recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS 'OF LAW
1. Local 312, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America , Independent , is a labor organization within the meaning of
Section 2(5) of the Act.
2. By discriminatorily discharging employee Arthur York to discourage member-
ship in and activity on behalf of the above-named labor organization, the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (3) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Stanley Levandowsky, d/b/a L & L Shop Rite Market and Re-
tail Grocery and Food Clerks Local No. 876, Retail Clerks
International Association , AFL-CIO. Case No. 7-CA-2289.
May 16, 1960
DECISION AND ORDER
On November 12, 1959, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in the unfair
127 NLRB No. 96.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices alleged in the complaint and recommending that he
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning],
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record 1
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only insofar as consistent with
our decision herein.
1. The Trial Examiner found that the Respondent had violated
Section 8(a) (1) of the Act by granting a general wage increase
shortly after learning of the Union's organizing campaign, and stat-
ing to an employee that the Walters brothers had been discharged for
organizing. As no exceptions were filed to these findings, we adopt
them pro forma.
2. The Trial Examiner found that the Respondent violated Section
8 (a) (3) and (1) of the Act by the discharge of Hazel Hanks. We
disagree, as, in our view the evidence establishes that Hanks was
discharged for cause.
Early in 1959, the Meatcutters 2 and the Retail Clerks attempted
to organize the Respondent's employees. Hanks was a union member,
but the record does not disclose that she engaged in organizing or
other union activities. The Respondent, however, was aware of her
prounion sentiments.
During the morning of February 16, Hanks weighed meats on a
hand scale that had recently been restored to service. She found that
the scale "stuck" before it "leveled off," and she reported to the meat
manager that she was finding errors in her own work. When she
went out to lunch, Levandowsky and Miles, a city inspector of weights
and measures, checked the packages Hanks had weighed and found
numerous errors. Miles recommended that Hanks be taken off weigh-
ing. She was discharged the same day; but, at the request of the
Meatcutters, the Respondent reinstated her for 4 weeks in the produce
department to give her an opportunity to find other employment.
At the end of the 4-week period she was released.
I Respondent 's motion to incorporate in the record the General Counsel's refusal to
issue a complaint in Case No 7-CA-2489 is denied as the Board judicially notices such
rulings of the General Counsel.
2 Local No. 539, Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO.
L & L SHOP RITE MARKET 769
Despite the foregoing circumstances pointing to a discharge for
cause, the Trial Examiner found that Respondent "utilized as a pre-
text this incident of weighing errors while the real reason for her
dismissal was her union activity, and his resolve to defeat self-organi-
zation." Accordingly, the Trial Examiner found that Hanks' dis-
charge violated Section 8 (a) (3) and (1) of the Act. We disagree.
The Trial Examiner's pretext finding was based primarily on the
following analysis of the evidence : Miles' recommendation that Hanks
be removed from weighing was not spontaneous, but was, in effect,
solicited by Respondent; the testimony of Respondent was unworthy
of credence because of his general lack of credibility as a witness;
and Hanks' errors in weighing were not her fault but due to a
defective scale. In our view, the Trial Examiner's analysis fails to
reflect the entire record.
As found by the Trial Examiner, Miles' recommendation to take
Hanks off weighing was in response to Respondent's query as to "what
could be done about the meat proposition." However, this query
was prompted in turn by Miles' remark to the effect that he did not
want to see the weighing errors happen again, and that, if they did,
lie would have to "get a warrant out" for the store.
The Trial Examiner bases his finding that Respondent was not a
credible witness on what he regards as conflicts between his testimony
and that of Miles and inconsistencies in Respondent's own testimony.
Thus, the Trial Examiner found an apparent conflict between (1)
Respondent's testimony that the week before Hanks' discharge, he
had notified Miles to come and check the old hand scale, and (2)
Miles' testimony that on February 16, he "just happened to be" in
the store. However, the undisputed testimony of Miles, not adverted
to by the Trial Examiner, is that he did, in fact, inspect the old scale
on February 5, presumably in response to a call by Respondent. The
Trial Examiner, also found an apparent conflict between Respond-
ent's testimony that Hanks' errors in weighing were "against the
store" and Miles' testimony that they were in favor of the store.
While Miles did so testify at one point, he later clarified or*qualified
this testimony by stating that the errors were of both types. Respond-
ent's testimony that he had received many complaints from super-
visors about Hanks' lack of industry was deemed incredible by the
Trial Examiner in view of Respondent's admission that he did not
reprimand her as a result of these complaints. Respondent testified,
without contradiction that he did not ordinarily reprimand employees
himself but leaves that to supervisors.
Accordingly, we find, in the matters relied upon by the Trial
Examiner, insufficient basis for discrediting Respondent.
The Trial Examiner's exoneration of Hanks from responsibility
for errors in weighing is apparently based on the evidence that the
560940-61-vol. 12 7-5 0
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scale stuck when she used it and the finding that the scale had not been
inspected before being restored to service. However, Hanks admitted,
as noted above, that although the scale did stick, it eventually "leveled
off," and Respondent and Miles testified without contradiction that
the scale was accurate when used by them, immediately after Hanks
used it to detect her errors. We further note that Hanks herself did
not testify that her errors were caused by the sticking of the scale
or that the scale was inaccurate. In fact, Hanks' testimony, which
the Trial Examiner credited, is that she did, in fact, commit weighing
errors. Accordingly, we find that the Trial Examiner erred in failing
to find Hanks responsible for her numerous weighing errors.
In the light of the foregoing, we find that the General Counsel has
failed to prove by a preponderance of the evidence that Hanks was
discharged for union activity. We shall therefore dismiss the allega-
tions of the complaint relating to her discharge.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Stanley Levan-
dowsky, d/b/a L & L Shop Rite Market, Lansing, Michigan, his
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Threatening employees with economic reprisals, and from
granting them benefits to discourage membership in any labor
organization.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organization,
to form, join, or assist Retail Grocery and Food Clerks Local No. 876,
Retail Clerks International Association, AFL-CIO, and Local No.
539, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, or any other labor organization, to bargain col-
lectively £hrough representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its store in Lansing, Michigan, the notice attached
hereto marked "Appendix." Copies of said notice, to be furnished by
L & L SHOP RITE MARKET 771
the Regional Director for the Seventh Region, shall , after being duly
signed by an authorized representative of Respondent , be posted by it
immediately upon receipt thereof and maintained for 60 consecutive
days thereafter , in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS YuRTIIER ORDERED that the complaint be dismissed insofar as it
alleges violations of the Act in respects other than those herein found.
APPENDIX
NOTICE TO ALL EMPLOYERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, I hereby notify you that :
I WILL NOT threaten employees with economic reprisals or grant
them economic benefits to discourage membership in or activity
on behalf of Retail Grocery and Food Clerks Local No. 876,
Retail Clerks International Association , AFL-CIO, and Local
No. 539, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, or any other labor organizations.
I WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of their right to self-
organization, to form, join , or assist the above-named or any
other labor organizations , to bargain collectively through repre-
sentatives of their own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activi-
ties, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as au-
thorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
STANLEY LEVANDOWSKY, D/B/A
L & L SIIOP RITE MARKET,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National Labor
Relations Board, and an answer having been filed by Stanley Levandowsky, d/'b/a
L & L Shop Rite Market, herein called Respondent , a hearing involving allegations
of unfair labor practices in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended , was held in Lansing, Michigan , on September 15
and 16, 1959, before the duly designated Trial Examiner.
All parties were represented at the hearing and were afforded full opportunity to
present evidence pertinent to the issues , to examine and cross -examine witnesses, to
argue orally, and to file briefs. Argument was waived . Briefs have been received
from the Respondent and General Counsel.
Disposition of the Respondent 's motion to dismiss, upon which ruling was re-
served at the hearing, is made by the following findings, conclusions , and recom-
mendations.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Stanley Levandowsky is an individual doing business as L & L Shop Rite Market,
with principal place of business in Lansing , Michigan, where he is engaged in the
retail sale of meats and groceries.
During the calendar year 1958 the Respondent sold meats and groceries valued
at more than $ 1,000,000. During the same period the Respondent purchased and
caused to be delivered to its store in Michigan products valued at more than $ 10,000
which originated outside the State of Michigan.
The Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Retail Grocery and Food Clerks Local No. 876 , Retail Clerks International As-
sociation , AFL-CIO, and Local No. 539, Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, are labor organizations admitting to mem-
bership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The chief issue in this proceeding arises from the Respondent 's admitted discharge
of employee Hazel Hanks on February 16, 1959, and (having thereafter reemployed
her on another job) again on March 18 , 1959. General Counsel alleges that both
discharges were violative of the Act, being for the purpose of discouraging member-
ship in a labor organization. The Respondent denies this allegation and claims that
the first dismissal was because of her errors in weighing meats and that the second
was pursuant to an agreement with the Amalgamated.
Subsidiary to this major issue is the question as to whether the Respondent also
interfered with employees ' organizing rights by granting increases to discourage such
efforts, by threatening reprisals, and by other conduct.
In brief outline, the setting is as follows:
Early in January 1959, the Amalgamated and the Retail Clerks began a joint or-
ganizational campaign among the Respondent 's employees : the Amalgamated in
the meat department where Hanks, three other employees , and a meat manager
worked; and the Retail Clerks among the grocery and produce employees . During
the day of Saturday, January 13, a representative of the Retail Clerks visited
Levandowsky at the store and claimed majority representation for the two organiza-
tions and requested recognition . Levandowsky asked for delay in order to consult
his counsel. Later the same day he summarily fired two brothers working in the
meat department: Richard Walters and John Walter.'
It is undisputed , and found , that the following Monday morning Levandowsky
told Urban Gaffke, called in as a replacement for one of the brothers, that he had
1 Although brothers , they spelled their name differently.
L & L SHOP RITE MARKET 773
"let them go Saturday night on account of they was going to organize a union in the
store." 2
As a witness, Levandowsky admitted that he had learned of union activity among
the employees a few days before the visit from the Retail Clerks' representative.
Upon protest promptly made by union representatives, the Respondent reem-
ployed the two brothers; a written agreement covering their return providing, among
other things, that they would not, during working hours, engage in union activity.3
When putting the two brothers back to work Levandowsky told them, and other
meat department employees whom he assembled, that he wanted "no more union
talk in the store."
B. The discharge of Hanks
On Tuesday, January 20, the day before Levandowsky reemployed the two
brothers, he called two other meat department employees, Hazel Hanks and Mary
Hall, into his office and, 'among other things, told them that the Union was trying
to "get in," and that he believed they did not need one, for it would do them "no
good." He further told them that he had talked in the same vein to other em-
ployees a day or two before.4 Levandowsky promised them both a raise.
During the hearing counsel stipulated as to certain facts appearing in the Re-
spondent's records which establish that within the period of 2 weeks after Levandow-
sky became aware of the organizational activity he granted a general increase to all
regular employees, except Hanks, of from 10 to 20 cents per hour.
On an undetermined date in early February, Hanks and Hall were at a nearby
drugstore on an authorized coffee break, in company with two of the Respondent's
stockboys. They discussed union wages. One of the boys, Darwin Maas, as a wit-
ness admitted that upon returning from the coffee break he reported their conversa-
tion to Levandowsky. That noon Levandowsky summoned Hanks and Hall to the
office and warned them "there was too much talking going around." He declared
that he knew that the meat department employees had signed up, but said he was
confident "that the grocery department wasn't going to go union," according to
Hanks' credible testimony.
On Monday, February 16, Hanks was summarily discharged by Levandowsky.
It is his claim that she was dismissed for making several errors in weighing meats,
while it is General Counsel's contention that such weighing errors, reasonably ex-
plained, were but a pretext, while the real reason was to discourage union activities.
The record contains a good deal of confused testimony regarding the relevant
events of that day.
According to Hanks' testimony, corroborated by that of the then meat manager,
John Walter, certain automatic scales had been removed from the department the
Saturday before (on February 14) and a set of scales which for some weeks had
not been in use were put back into service. It appears also from Hanks' testimony,
similarly corroborated by Walter, that on Monday morning she proceeded to re-
weigh a number of packages wrapped the previous Saturday-a required practice
on Mondays 5 She discovered that the old scales were sticking, that errors were
showing up, and so reported to the meat manager, a fact corroborated by Walter
and not disputed by Levandowsky. Walter came over, tried the scales, and found
that they were in fact sticking. Hanks went out to lunch, and while she was out
both Walter and Levandowsky checked previously weighed packages. When she
returned, Levandowsky called her attention to several packages which he referred
to as a "mess" and told her to reweigh them. While she was engaged in this task,
the city inspector of weights and measures, Xelle Miles, came into the store.
As to what precisely occurred upon this official's 'arrival, the relevant testimony
adduced by the Respondent is so inconsistent as to provide scant support for any
2 The quotation is from the testimony of Gaffke, one of the few witnesses at the hearing
who appeared to be wholly disinterested in its outcome
3 Although during the hearing General Counsel stated : ` . . my position is that
(although) we are not requesting reinstatement for these men, that perhaps . . . the
circumstances surrounding their discharge could, however, be an independent 8(a) (1) as
far as this case is concerned," the Trial Examiner assured all counsel during the hear-
ing that he would not, and here does not, draw any legal conclusions, in terms of any
section of the Act, as to the actual discharge of the two employees. The complaint in
this proceeding contains. no allegation as to the discharge of either brother, and it
appears that there is now pending a charge relating to one of them. The above facts,
however, are deemed relevant to the question of motive in the later discharge of Hanks.
4 Monday, January 19, had been a day off for both Hanks and Hall.
5 According to the testimony of the city inspector, more fully identified later, the "rule"
requires checking of the "counter" every Monday and Thursday "because meat shrinks."
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
definite finding. At one point in Miles account, he said he just happened to be in
the vicinity of the store, dropped in, and without anyone saying anything to him he
began "taking a few things from the counter and weighing them." Also according
to Miles, he called Walter's attention to errors he found. At another point in his
testimony, the inspector said: "I do know that she [Hanks] had re-checked meat
and asked me to check it and I did," and further admitted that this was before he
had found any errors. Also according to Miles, although both Levandowsky and
Walter told him the errors were "against the store," his own weighing found it "in
reverse."
Contrary to Miles' testimony that he just "happened" to be near the store and
dropped in that day, Levandowsky claimed that sometime the previous week he had
notified Miles' office to come and check the old scales which were to be put back
into use.
Also, according to Levandowsky's testimony, he told Miles of the errors he and
Walter "had found that morning" and that the inspector recommended that Hanks
not be allowed to "weigh anything." Miles, however, said that Levandowsky asked
him "what could be done about the meat proposition "
After Miles left the store, Levandowsky called Hanks to the office and dismissed
her, according to his testimony, for "the discrepancies" in weighing.
All witnesses agreed that errors were discovered on February 16. There is no
dispute that such errors occurred while the old scales were being used-scales which
had been out of use for several weeks-in violation of regulations which, according
to the city inspector, required that scales which had been out of service must be
rechecked before being again used. The responsibility for having the scales re-
checked was clearly that of Levandowsky, not of Hanks. Yet according to Miles'
own records, these scales were not rechecked until Monday afternoon-after they
had been returned to use.
The credible testimony of Hanks and Walter, finally and reluctantly corroborated
by Miles, is to the effect that it was Hanks herself who discovered and reported the °
errors and the sticking scales. It would appear that Hanks acted properly, both in
her duty to her employer and to the public. As to Levandowsky, on the contrary,
if Miles is to be believed as to the result of his own checking, then the store owner
himself erred seriously in his responsibility to the public. As noted above, Miles
said that both Levandowsky and Walter told him, before he checked the items, that
they had checked and found them "running against the store," but that his own
checking found the errors to be the other way.
The Trial Examiner is unable to rely upon Levandowsky's testimony as to why
he discharged Hanks. Not only are parts of it seriously inconsistent with that of
Miles, as noted above, but also other portions of it reveal clearly that the store owner,
as a witness, was striving gratuitously to blacken the employee character of Hanks,
who had been employed by him since the latter part of 1957. He claimed that he
had had many complaints about her work, that she was "con-wise"-a term which he
explained meant "she knew how to goof off intelligently without doing her work," but
then he admitted that he could not remember ever having brought such complaints
to her attention. Matters which, if existing, were of so little importance as to have
passed without even comment to the employee, could hardly have been factors in
her discharge.
The Trial Examiner is convinced and finds that Levandowsky utilized as a pretext
this incident of errors, which may well have occurred mainly as a result of his own
failure to abide by official regulations, while the real reason for her dismissal was
her union activity, and his resolve to defeat self-organization among the employees.
This conclusion is supported, in the opinion of the Trial Examiner, by the following:
(1) The undisputed fact that Levandowsky told Urban Gaffke, in January, that he
had fired the Walters brothers because of their organizing activities; (2) the undis-
puted fact that promptly upon the demand of the two Unions for recognition all
regular employees except Hanks were given a substantial wage increase; (3) the
undisputed fact that in February Hanks and Hall were warned, in effect, not to
discuss the Union (despite the fact that the one incident giving rise to the warning
had occurred off the premises on their own time); and (4) Miles' testimony that
after checking the errors he was asked by Levandowsky what "could be done about
the meat proposition." 6
6 Although,for -reasons noted below in this footnote--the Trial Examiner makes no find-
ing on the specific point, the above conclusion as to pretext finds additional support in
certain testimony of John Walter, to the effect that a few days before her discharge
Levandowsky told him he believed Hanks was a "union organizer" and that he "would
like to get rid of her" Walter further said that the owner asked him to suggest some
way to "do it " Levandowsky contradicted Walter as to this conversation Under the
L & L SHOP RITE MARKET '775
In summary, the Trial Examiner concludes and finds that Hanks was discharged on
February 16, 1959, to discourage membership in the Unions which had demanded
recognition, and that by such discriminatory discharge, by granting a general in-
crease under the circumstances above described, and by the clear threat implicit in
Levandowsky's statement to employee Gaffke that the two Walters (or Walter)
brothers had been dismissed for participating in organizational efforts, the Respond-
ent interfered with, restrained, and coerced employees in the exercise of rights
guaranteed by the Act.
As in the case of the two brothers, after protest by union representatives,
Levandowsky agreed to and did reemploy Hanks, in another department, for a period
of 4 weeks. At the expiration of this period she was dismissed permanently
Levandowsky makes no claim that her second dismissal was other than in compliance
with his agreement to put her back for a limited period. The final dismissal on
March 18, 1959, was an integral part of the first; its illegal cause was the same.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that he cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It will be recommended that the Respondent offer Hazel Hanks immediate and
full reinstatement to her former or substantially equivalent position, without prejudice
to her seniority or other rights and privileges, and make her whole for any loss of
pay she may have suffered by reason of the discrimination against her, by payment
to her of a sum of money equal to that which she would normally have earned as
wages from the date of the discrimination against her to the date of the offer of
reinstatement, less her net earnings during such period, in accordance with the
Board policy set forth in F. W. Woolworth Company, 90 NLRB 289, and Crossett
Lumber Company, 8 NLRB 440.
It will be further recommended that the Respondent, upon request, make available
to the Board and its agents all payroll and other records pertinent to the analysis of
the amount of backpay due.
Since the violations of the Act which the Respondent committed are closely related
to other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is reasonably to be anticipated from his past conduct, the
,preventive purposes of the Act may be thwarted unless the recommendations are
coextensive with the threat. To effectuate the policies of the Act, therefore, it will
be recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Retail Grocery and Food Clerks Local No. 876, Retail Clerks International
Association, AFL-CIO, and Local No. 539, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
2. By discriminatorily discharging employee Hazel Hanks to discourage member-
ship in and activity on behalf of the above-named labor organizations, the Respondent
circumstances of Walter's testimony the Trial Examiner believes it lacks sufficient weight
to warrant a finding of fact He was unable to testify about It until lie had read an
affidavit previously given by him to a Board agent In the main , however , Walter im-
pressed the Trial Examiner as a credible witness That he gave counsel for the Respond-
ent an unsworn statement as to his opinion of Hanks which was at variance with his
testimony as a witness does not discredit him, in the opinion of the Trial Examiner - He
explained , in effect and without refutation , that Levandowsky asked him to go to his
attorneys, make a statement , and that if they "got this union out of there and things
straightened out" be would "have a secure job and nothing to worry about "
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
3. By interfering with , restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
David B . Klain , Jeffery Klain , Stanley Klain , Natalie Klain,
and Bradley Klain , partners doing business as Sam Klain
and Sons and Local No . 716, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of Amer
-ica.Case No. 25-CA-758. May 17, 1960
DECISION AND ORDER
On July 8, 1958, Trial Examiner Reeves R. Hilton issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain other unfair
labor practices and recommended that the complaint be dismissed
with respect to such allegations. Thereafter the Respondents and the
General Counsel filed exceptions to the Intermediate Report and
supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed:
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following additions
andmodifications.
1. We agree with, and adopt, the Trial Examiner's finding that the
Respondents violated Section 8 (a) (1) of the Act by certain conduct
which, as shown by the parties' stipulation, occurred between the
dates of April 10 and 23, 1957, a period shortly preceding the filing
of the original charge in this proceeding.'
In so finding, we reject the Respondents' contention that any finding
of unfair labor practices in this proceeding is barred by Section 10(b)
'The record shows that the Union 's original charge was filed on April 26, 1957, and
that the Respondent was served with a copy of this charge on May 1, 1957 . The date of
filing, which erroneously appears in the Intermediate Report as April 10, 1957 , is hereby
corrected accordingly.
127 NLRB No. 99.