Marsh Supermarkets Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1963

140 N.L.R.B. 899 (N.L.R.B. 1963)

MARSH SUPERMARKETS, IN C. 899
it will be recommended that the Respondent cease and desist from in any manner
infringing upon the rights of the employees guaranteed in the Act.
It will be recommended that the Respondent offer Reikard and Fish immediate
and full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make them whole
for any loss of pay they may have suffered by reason of the discrimination against
them by payment to each of a sum of money equal to that which she would have
earned as wages, absent the discrimination, from September 13, 1961, to the date
of offer of full reinstatement, less her net earnings during said period, and in a manner
consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289.
In his brief General Counsel urges that interest be added to the backpay award.
His argument is persuasive and well-documented. The Trial Examiner is in agree-
ment with it and urges that the Board give it full consideration in the event this
proceeding comes before it. In his opinion, however, it would be improper for him
to add to the usual recommended order a provision contrary to or inconsistent with
established Board policy 8 And so far as he has ascertained, the Board has not altered
its position on the interest issue since 1951, when it reversed on precisely the same
issue Trial Examiner Reeves Hilton in Earl I. Sifers, an individual doing business as
Sifers Candy Company, 92 NLRB 1220.
Upon the basis of the foregoing findings and conclusions of fact, and upon the
entire record in the case, the Trial Examiner makes the following-
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. By discriminating against employees Reikard and Fish to discourage membership
in and activity on behalf of the above-named labor organization and by depriving
them 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)(3) and (1)
of the Act.
3. 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.]
8 Despite the Supreme Court's ultimate reversal of the Board on the merits of the case,
the Trial Examiner does not consider that he is absolved of the duty to follow Board
policy, of which he was specifically and pointedly reminded in Insurance Agents' Inter-
national Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB
768
Marsh Supermarkets , Inc. and Retail Clerks International Asso-
ciation , Local Union No. 1441, AFL-CIO
Marsh Supermarkets, Inc. and Charles D. Dowling, Petitioner
and Local No. 1441 , Retail Clerks International Association,
AFL-CIO
Marsh Supermarkets , Inc. and Local No. 1441 , Retail Clerks
International Association , AFL-CIO. Castic.s Not. 25-CA-1407,
25-RD-120, and 25-RC-1865. January 28, 1963
DECISION AND ORDER
On February 16, 1962, Trial Examiner Horace A. Ruckel issued all
Intermediate Report in the above -entitled proceeding , finding that the
Respondent had engaged in and was engaging in certain unfair labor
140 NLRB No. 83.
681-492-63-vol. 140-58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices and recommending that it cease and desist therefrom and
take certain affirmative action, and recommending further that the
election held on April 21, 1961, in Case No. 25-RD-120, be set aside
and a new election held, as set forth in the attached Intermediate Re-
port. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices and recommended that
the complaint be dismissed with respect to such allegations, and further
recommended that the election held on April 21, 1961, in Case No.
25-RC-1865, not be set aside. Thereafter, the Respondent, the General
Counsel, and the Union filed exceptions to the Intermediate Report
and supporting briefs.
Subsequently, by order dated June 7, 1962, the Board remanded the
cases herein to the Trial Examiner for the preparation of a Supple-
mental Intermediate Report containing resolutions of credibility,
findings of fact, and conclusions of law which the Trial Examiner had
not made concerning certain testimony.
On June 21, 1962, the Trial Examiner issued his Supplemental In-
termediate Report finding that the Respondent had engaged in certain
additional unfair labor practices, as set forth in the attached Supple-
mental Intermediate Report. Thereafter, the Respondent, the General
Counsel, and the Union filed exceptions to the Supplemental Inter-
mediate Report, and the Respondent and General Counsel filed sup-
porting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has considered 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 Interme-
diate Report, the Supplemental Intermediate Report, the exceptions
and briefs, and the entire record herein, and hereby adopts the findings,
conclusions, a ad recommendations of the Trial Examiner with the fol-
lowing modifications.
As stated in the Intermediate Report, the Union on April 21, 1962,
lost both a decertification election (Case No. 25-RD-120) among gro-
cery employees at the Respondent's six retail stores in Muncie, In-
diana, and a representation election (Case No. 25-RC-1865) among
production, maintenance, and, warehouse employees in the Respondent's
Yorktown, Indiana, Food Center, or warehouse.
The Trial Examiner found, and we agree, that the Respondent inter-
fered with the Muncie election. For reasons stated herein, we find,
contrary to the Trial Examiner, that the Respondent interfered also
with the Yorktown election.
The Trial Examiner found, and we agree, that the Respondent en-
gaged in the following conduct at two of its stores which violated
MARSH SUPERMARKETS, INC. 901
8 (a) (1) of the Act : (1) On April 14, 1961, Kenneth Raisor, the Re-
spondent's supervisor of operations for all the stores, unlawfully in-
terrogated employee Roy Taylor at store No. 18, as to how he was going
to vote, and (2) Merritt Marsh, store manager at store No. 9, on the
day before the election, unlawfully promised a benefit to employee
Katherine Swoveland if she voted against the Union. The Trial Ex-
aminer also found that such Respondent officials as President Estel
Marsh, Vice President Chan Kintner, Personnel Director William
Ast, and Director of Retail Operations David Somers, during the week
preceding the elections, made speeches to the employees at the ware-
house and the stores in the course of which they referred to strike
violence at other companies, commented about the disadvantages of
unions, and the benefits accorded by the Respondent without a union,
and quoted excerpts from a book entitled "Power Unlimited-The
Corruption of Union Leadership," which charged that unions are
corrupt and destroy competitive enterprise. While the Trial Ex-
aminer found that these speeches, standing alone, did not inhibit a free
election, he concluded that the unlawful statements of Merritt Marsh
and Kenneth Raisor, when considered against the background of the
speeches, did improperly influence the result of the Muncie stores'
election. As the Trial Examiner found no independent violations of
Section 8 (a) (1) of the Act occurred at the warehouse, he concluded
that the speeches at that location did not by themselves prevent a free
and untrammeled choice of bargaining representative.
However, the Trial Examiner also stated that there was conflicting
testimony as to whether the speeches at the warehouse and the stores
included such statements as "If a union got in and we started nego-
tiating, that everything would be wiped clean-all the benefits," and
"If the Union got in you will have to start from scratch." The Trial
Examiner did not find it necessary to make credibility findings as to
the foregoing because he found that, even if such statements were
made, they would not be violative of Section 8(a) (1) of the Act as
they were no more than a statement of the situation arising from the
impending expiration of the collective-bargaining contract on May 1,
1961. We therefore ordered the Trial Examiner on June 7, 1962, to
make credibility findings as to the conflicting testimony in order to
enable the Board to decide whether the foregoing statements violated
Section 8 (a) (1) of the Act.
Accordingly, the Trial Examiner prepared a Supplemental Inter-
mediate Report in which he made the following findings of fact.
Estel Marsh and William Ast, at the warehouse meeting on April 15,
1961, and at the various stores of the Respondent in the week preced-
ing the election, stated, in effect, that if the Union won the elections
on April 21, 1961, Respondent's employees would lose some of the
benefits which they then enjoyed, particularly the existing vacation
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plan, and would have to "start from scratch." The Trial Examiner
found that in certain instances such statements were coupled with
references to the expiration of the Union's contract on May 1, 1961.
We have recently found in Dal-Tex Optical Company, Inc., 137
NLRB 1782, that preelection statements similar to those made by the
Respondent herein generated an atmosphere of fear of economic loss
and hostility to the Union which destroyed the laboratory conditions
in which the Board must hold its elections and prevented the em-
ployees' expression of a free choice in the elections. We therefore find
in accordance with Dal-Tex Optical that the Respondent's speeches
contained threats of loss of benefits and economic reprisal which in-
terfered with the conduct of both elections. In addition, we find that
these threats violated Section 8(a) (1) of the Act. We also find that
the unlawful statements of Respondent officials to store employees
Taylor and Swoveland, which violated Section 8(a) (1) of the Act,
interfered with the election at the Muncie stores. Accordingly, we
shall order that both elections be set aside and that new elections
be held.
2. The y rial Examiner found in his Intermediate Report no merit
in the General Counsel's contention that Respondent discriminated
against employee Zelpha Wulff, a union steward, by reducing her
straight-time hours of work at store No. 25 during the 3 weeks ending
June 3, 1961, and at store No. 69 for the succeeding 4 weeks. We dis-
agree with the Trial Examiner to the extent that we find for the
following reasons that Respondent was discriminatorily motivated
with respect to the hourly reduction for the 2-week period ending
June 3,1961.
Although the record shows that Wulff and Herbert Franklin, man-
ager of store No. 25, had conversations on April 28 and June 1, 1961,
as well as on May 15, 1961, the Trial Examiner in his Intermediate
Report did not refer to their conversations on the first two dates.
Accordingly, in our order of June 7, 1962, we instructed the Trial
Examiner to make findings concerning these conversations.
The Trial Examiner found in his Supnlemental Intermediate
Report that on April 28, 1961, Wulff asked Franklin how she would
be affected by the impending shutdown of store No. 1 and the transfer
of employees to other stores. Franklin replied that he did not know
what the effect would be, but that so far as Wulff was concerned he
had heard from "the boys" prior to the election on April 21, 1961,
that she would resign if the Union lost, and that it would "make it
easier on everyone" if she did so. Wulff denied having any such in-
tention. When Wulff pressed Franklin as to who "the boys" were, he
became profane and abusive, and upbraided her for criticizing the
Respondent during the election campaign, and stated that if he were
Wulff he would resign. The Trial Examiner found, and we agree,
MARSH SUPERMARKETS, INC. 903
that Franklin's statements amounted to an implied threat of discharge
because of her union activity and constituted a violation of Section
8 (a) (1) of the Act.
As indicated in the Intermediate Report, the Trial Examiner also
found that when Wulff returned from her illness on May 15, 1961,
and asked about a posted schedule of work hours according to which
her straight time was cut back from 31 to 23 hours a week, Franklin
explained that this was because she had been sick and he wanted to
see if she could carry her workload. He stated, however, that her
hours would be restored the following week. When this was not done,
she pointed this out to Franklin who said she could take it or leave it.
The Trial Examiner found in his Supplemental Intermediate Re-
port that Wulff again approached Franklin on June 1, 1961, concern-
mg her reduction in hours, and asked him why lie continued to take
hours away from her and give them to employees with less seniority.
Franklin cursed her and told her that there was no union any more and
that lie would assign hours of work to whomever he pleased. Frank-
lin also stated that he would run the store to suit himself and that he
wanted her to quit or transfer to another store,' reminding her again
that he had heard that she would quit if the Union "went out," i.e.,
lost the election. The Trial Examiner found, and we agree, that
Franklin's statements to Wulff on June 1, 1961, violated Section
8 (a) (1) of the Act.
It is clear from Franklin's statements to Wulff that his failure to
restore her straight-time hours during her last 2 weeks of employment
at store No. 25 was discriminatorily motivated in violation of Section
8 (a) (3) and (1) of the Act. As the decrease in hours for the week
ending May 20, 1961, appears to have been occasioned by Franklin's
desire to ease Wulff's workload because of her recent illness, we do
not find the reduction during that week discriminatory. In the ab-
sence of evidence that any curtailment in hours after Wulff's transfer
to store No. 69 was discriminatorily motivated, we do not find such
reduction to be unlawful.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
(1) The backpay obligation of the Respondent shall include the
payment of interest at the rate of 6 percent per annum to be computed
in the manner set forth in Isis Plumbing d Heating Co., 138 NLRB
716.
(2) Insert the following paragraph after Section 2(a) of the
Order:
The record shows that at Wulff's request Ralsor transferred Wulff to store No. 69
following the week ending June 3, 1961.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Make Zelpha Wulff whole for any loss of pay she may have suf-
fered by reason of the reduction in straight time during the 2-
week period ending June 3,1961.
(3) Insert the following paragraph after Section 2 (c) of the Order :
IT IS FURTHER ORDERED that the elections held on April 21,
1961, in Cases Nos. 25-RD-120 and 25-RC-1865 be, and they here-
by are, set aside. The Regional Director for the Twenty-fifth Re-
gion is directed to conduct new elections at such time as he deems
appropriate. The eligibility period shall be the payroll period
preceding the date of issuance of the notice of elections.
(4) The following paragraph is added to the notice :
WE WILL make Zelpha Wulff whole for any loss of pay suffered
by reason of the reduction in straight-time hours during the 2-
week period ending June 3, 1961.
(5) The following note shall be added to the bottom of the notice
immediately below the signature :
NoTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with the Se-
lective Service Act after discharge from the Armed Forces.
(6) The following paragraph shall be substituted for the present
penultimate paragraph appearing in the notice :
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by
any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
AND
REPORT ON OBJECTIONS
STATEMENT OF THE CASE
On April 21, 1961 , a representation election was held among the production,
maintenance , and warehouse employees of Marsh Supermarkets , Inc., herein called
Respondent , at its Yorktown , Indiana, Food Center (Case No. 25-RC-1865) The
Petitioner , Local No 1441, Retail Clerks International Association , AFL-CIO, herein
called the Union , lost the election , 87 to 69. On the same day , pursuant to a
decertification petition , an election was held among all grocery employees of Respond-
ent in its six retail stores located in Delaware County, Indiana (Case No. 25-RD-
120). The employees voted to decertify the Union by 66 to 64. Thereafter the
Union filed objections to both elections , the Regional Director for the Twenty-fifth
Region of the National Labor Relations Board , herein called the Board, filed
his report on objections to which report objections were filed by both the Union and
Respondent . The Board , on August 15, 1961, directed that a hearing be held on
certain of the objections and that the hearing officer conducting the hearing should
prepare and cause to be served upon the parties a "report containing resolutions
of the credibility of witnesses , findings of fact and recommendations to the Board
as to the disposition of said objections."
On June 22 , 1961, the Union filed a charge of unfair labor practices by Re-
spondent (Case No 25-CA-1407 ), and on August 11 the Regional Director issued
MARSH SUPERMARKETS, INC. 905
a complaint thereon. On August 31, 1961, the Union filed an amended charge and
on September 7 the Regional Director filed an amended complaint. At the hearing
the complaint was again amended. On September 1, the Regional Director issued an
order consolidating the complaint in Case No. 25-CA-1407 with the objections to
the election in Case No. 25-RD-120 and Case No. 25-RC-1865, for the purposes
of hearing.'
The complaint, as amended, alleges that Respondent committed unfair labor
practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7)
of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151 et seq.), herein
called the Act, by discharging John Farinella on June 2, 1961, by reducing the
number of hours worked by employee Zelpha Wulff, and on various dates by inter-
rogating its employees regarding their union activities, by threatening them with loss
of economic benefits if the Union won .the election, and by promising them economic
benefits if the Union lost the election. In its duly filed answer, as subsequently
amended, Respondent denies generally that it has engaged in any unfair labor
practices.
Pursuant to due notice, a hearing was held on the consolidated cases before Trial
Examiner Horace A. Ruckel at Muncie, Indiana, on October 31 and November 1, 2,
3, 6, and 7, 1961. All parties were represented at the hearing and were afforded
full opportunity to be heard and to examine and cross-examine witnesses. The
parties waived oral argument but filed briefs which I have fully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Indiana corporation, has its principal office, warehouse, and plant
at Yorktown, Indiana, and various other plants, retail stores, warehouses, and other
facilities in the States of Indiana, Ohio, South Carolina, North Carolina, and
Georgia, at all of which it is engaged in the manufacture, sale, processing, and
distribution of groceries, foodstuffs, and related products at retail. Respondent's
northern division, which is serviced out of Yorktown, Indiana, comprises 5'4 stores.
Annually, Respondent has sold and distributed products, the value of which
exceeds $500,000. Annually, Respondent shipped products valued in excess of
$1 million from its places of business in interstate commerce directly to States of
the United States other than the State of Indiana. During the same period of time,
Respondent received goods valued in excess of $1 million transported to its place
of business in interstate commerce directly from States of the United States other
than the State of Indiana.
Upon the basis of the above-admitted facts, I find, as Respondent admits in its
answer, that Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Local Union No 1441, AFL-CIO,
admits employees of Respondent to membership The complaint alleges, the answer
admits, and I find, that it is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE ELECTION
A. Interference, restraint, and coercion
The election among the employees at the Yorktown, Indiana, Food Center
(Case No. 25-RC-1865) and the election among the employees in Respondent's
six retail stores in Muncie, Indiana (Case No. 25-RD-120), were both held on
April 21, 1961 A few days prior to the election Respondent undertook a course
of action calculated to influence its employees in their choice of a bargaining repre-
sentative. Whether in its pursuit of this objective Respondent went beyond permis-
sible limits, is one of the questions posed by this case.
Respondent launched its campaign by convening a meeting of Yorktown employees
in the cafeteria on the evening of April 15, at which Estel Marsh and Chan Kintner,
Respondent's president and vice president, respectively, spoke. The highlight of
1 On October 25, 1961, Respondent moved to sever the unfair labor practice case from
the representation cases At the opening of the hearing, the Trial Examiner denied this
notion
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marsh's address consisted of reading excerpts from a book: "Power Unlimited-
The Corruption of Union Leadership," 2 by Sylvester Petro, a professor of law at New
York University. Some of the more lurid of the excerpted passages are as follows:
Unions do nothing for anyone but their own members; those members
are but a small minority, less than one fourth of the working force.
The truth about the big industry-wide trade unions is that they threaten
the health, the well-being, and the survival of American society to a degree never
before approached by either internal or external enemies. They are spreading
corruption of every kind and at every level-Freedom is the victim, freedom as
an idea and freedom as a way of life.
* *
. America has less cause to fear Russia than Russia has to fear us-
if we fail, it will be from internal corruption and the powers and privileges
accorded-trade unions will be among the principal causes of the collapse-
Put simply, the Communists are saying that the big trade unions and
their leaders, socialists and antisocialists alike, are helping to destroy America
as a free nation-Communists are professionals in destruction.
* * * *
. . . Unions are destroying the competitive enterprise system by imposing
upon it a rigid monopolistic structure, to the infinite abuse of the public, and
to the great national peril. Our survival is at stake.
* * * * * * *
This communication from the academic grove was relayed to the marketplace and
delivered to the grocery clerks, dairy clerks, errand boys, and others assembled in
evening meetings at the six Muncie stores to receive it. To the accompaniment of
"Power Unlimited," Marsh and Kintner, as well as Personnel Director Ast and
David Somers, director of retail operations, called attention to violence in the Kohler
and Perfect Circle strikes and gave their own opinions of the disadvantages of unions
and the benefits accorded by Respondent' s management , all in the American Tube
Bending tradition.3
While the Union's brief characterizes "Power Unlimited" as "unlimited slander,"
the General Counsel does not contend that its utterance by Respondent's officers, or
the expression of their own opinions in the above vein, constitute, in themselves, an
unfair labor practice, since they do not contain threats of reprisal or promises of
benefit. I find that they do not, and that they are privileged under the free speech
provision of Section 8(c) of the Act. No finding of a violation of Section 8(a)(1)
may be based upon them. The question remains whether they are of such a character
as to warrant setting aside the election under the General Shoe 4 doctrine on the
ground that they "created an atmosphere calculated to prevent a free and untram-
meled choice by the employees" of their bargaining representative. The differences
between the situation here and that existing in General Shoe are principally two:
In General Shoe the employer's activities were more varied and widespread, and took
place on the day before the election without an opportunity for the Union to reply,
whereas in the instant case the comments were uttered 5 or 6 days beforehand.
Under these circumstances, I do not find that, standing alone, they were calculated
to inhibit a free choice by Respondent's employees.
There is in the record, however, evidence of other statements by Respondent's
representatives to individual employees which are alleged to be coercive. Several
witnesses testified that Marsh told the employees present at the warehouse meeting
that "if a union got in and we started negotiations, that everything would be wiped
clean-all the benefits " including Respondent's vacation program, and that Ast. at a
meeting at store No. 9 stated- "If the Union gets in you will have to start from
scratch." Other witnesses present on these occasions denied that Marsh or Ast made
these statements. I do not find it necessary to resolve these contradictions Assuming
that they were made, they were not violative of Section 8(a)(1) as constituting
interference. restraint , or coercion, since they were no more than a statement of the
situation arising from the impending expiration of the collective-bargaining con-
tract on May 1, 1961. These were statements which Respondent had a right to make
2 The Ronald Press Company, 1959
2 American Tube Bending Co . Inc . 44 NLRB 121
4 General Shoe Corporation , 77 NLRB 124
MARSH SUPERMARKETS, INC. 907
since they were merely expressions of its legal position.5 Collective bargaining
would start from scratch.
Veda Schaef, checker at store No. 44, testified that on April 19 her store manager,
Leonard Cook, told her that no matter which way the election went the Respondent
would still "be the same" and that everything would be run according to seniority.
Her testimony was not denied. I find Cook's statement to be innocuous.
Zelpha Wulff testified that at a meeting at store No. 25 in March 1961, Ast said that
on a previous occasion when a union was trying to organize employees at the York-
town warehouse, Respondent got rid of the "troublemakers" after the election. This
testimony is unsupported by any other witness, and several witnesses, including Ast,
denied that any such statement was made. I credit the denials.
Barbara Erdel, employed at store No. 18, testified that at a meeting of employees
at store No 18 about April 13, after hours, President Marsh said that there was no
chance of employees being advanced so long as the Union was in the plant. Marsh
and others present testified that Marsh did not make this statement. I credit their
denials. Moreover it was known that advancements had occurred after the advent
of the Union.
Katherine Swoveland, cashier at store No. 9, testified that Merritt Marsh, store
manager, on the day before the election told her that the store would be a better
place to work without the Union, and that she would not have to work nights as
much if the Union was voted out. Night work was something which Swoveland
had objected to. Marsh denied making such a statement. Swoveland's testimony
was circumstantially given and I was impressed by her demeanor as a witness.
I credit her testimony. Marsh's statement constituted a promise of benefit to her
if she voted against the Union, and is violative of Section 8(a) (1) of the Act.
Roy Taylor, not presently employed by Respondent, but who at the time of the
election worked as a carryout boy at store No. 18 and voted in the election, testified
that on the evening of April 14, 1961, a week before the election, Raisor, operational
supervisor for the Muncie stores, came to him and asked him if he had any questions
about the election, and :f he was "going to make the right vote " Taylor replied
that he thought and hoped that he would. Taylor was not cross-examined and his
testimony was not denied. I credit it In the context of Respondent's open campaign
of opposition to the Union, the "right vote" meant a vote against the Union Inter-
rogation of an employee as to how he is going to vote in a collective-bargaining
election is violative of Section 8 (a) (1) of the Act.
Conclusions
I have found that Store Manager Marsh at store No. 9, shortly before the election
among the employees in the Muncie stores, unlawfully promised a benefit to employee
Swoveland if she voted against the Union, and that Raisor, Respondent's supervisor
of operations for all the stores, unlawfully interrogated employee Taylor, at store
No. 18, as to how he was going to vote, and that these activities of Respondent were
violative of Section 8(a)(1) of the Act. Respondent, in its brief, argues that these
should be considered only as isolated instances, insufficient to set aside an election.
I cannot agree. Against the background of Respondent's systematic campaign against
the Union, which penetrated into the six stores whose employees constituted the vot-
ing unit in the decertification election (Case No. 25-RD-120), and in the context of
Respondent's undisguised hostility to the Union as illustrated, among other things, by
the publication to its employees of the quoted passages from "Power Unlimited,"
these statements to Swoveland and Taylor were calculated to have a force and an
effect which, absent this background and this context, they might not have had. It
must be assumed that they influenced the result of the election.
It is my recommendation that the election in Case No. 25-RD-120 be set aside.
Since there is not any evidence in the record of any 8(a)(1) violations so far as
employees in the voting unit at the Yorktown warehouse (Case No. 25-RC-1865)
are concerned, and since the utterances of Respondent's officers, whether original or
derivative, standing alone did not in my opinion prevent the free and untrammeled
choice of a bargaining representative, I do not recommend that the election in that
case be set aside.
B. The discharge of John Farinella
1. Background
Farinella came to work for Respondent in 1951 as a produce manager. Prior to
that time he had been employed for 6 years by A & P. in the same capacity. Re-
spondent discharged him on June 2, 1961, allegedly for inadequate job performance.
5 Schick, Incorporated, 118 NLRB 1160 ; Universal Producing Company, 122 NLRB 548
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this time he had been since September 1959 in charge of the produce department
at store No . 9, one of Respondent 's six stores in Muncie , Indiana. Merritt Marsh
was store manager. Of all Respondent 's employees in its Muncie stores and its
warehouse at Yorktown ( the two units in which the election on April 21. 1961, was
conducted ), Farinella was the most active in the Union He joined it in 1957 when
it first began to organize Respondent 's employees , was steward for store No. 2
until he was transferred to store No . 9, served on the bargaining committee which
negotiated the 1958 and 1959 contracts , and was elected president of the Union in
April 1959, in which capacity he continues to serve. At the time of his discharge he
had greater seniority than any produce manager in the Muncie , Indiana, area.
As produce manager, Farmella 's duties were to display fruits, vegetables , and re-
lated products on racks and tables in his department , to keep them in salable condi-
tion, to replenish them from the cooler , and to order supplies from Respondent's
warehouse when necessary . A produce specialist works with the produce managers
in the various stores to see that the produce department is conducted in an efficient
manner. Over the produce specialist is the operational supervisor who has super-
vision of the managers of the produce , meat, dairy , and grocery departments in all
the stores . Except in unusual circumstances the produce specialist has no authority
to discharge produce department heads. This rests with the operational supervisor.
The store manager is responsible for the overall operation of his store and its
various departments . He does not, however , have authority to discharge department
managers except under unusual or emergency circumstances not present here. His
more precise authority and responsibility are hereinafter considered.
2. The events of June 2, 1961
Respondent 's stores normally work a 6-day week. Tuesday, May 30, 1961, how-
ever, was Memorial Day, and the stores were not open . In lieu of pay for a holiday
not worked , Respondent 's instructions were not to have its employees work more
than 32 hours the remainder of the week, since time above that would have to be
paid at time and one-half . To conform with this, the work schedule for this week
provided for Farinella 's taking a day off on Thursday , June 1, which he did. Nelson,
Farinella's only full-time assistant in the produce department , worked on Monday,
but was on vacation the rest of the week . Farmella, though it was his day off, came
to the store for an hour on Thursday afternoon to make out a delivery order for
the following day. Friday is the busiest day in the store , and on Thursday evening
the department managers usually set up their departments as completely as possible.
Farinella reported to the store at 6 a m on Friday , June 2, his usual starting time,
and found that the work of setting up green vegetable racks and tables, and the trim-
ming of the vegetables , had not been completed the night before. He set to work
getting the produce racks and tables in proper condition . Between 6.30 and 7
o'clock, while he was so engaged , the supply truck came in from the warehouse and
Farinella, with the help of the driver and Jack Hoover, the dairyboy, unloaded it.
Since Nelson , the only regular full-time employee in the produce department, was
on vacation , there was no one else to do the other work in the department while
Farinella was unloading . As a consequence , Farinella's regular work fell behind, and
about 11 a . m. according to his own testimony , he called the attention of Charles
Claspell, assistant store manager , to the fact that the Breen rack was not yet set up,
and asked for assistance . The point is in dispute . Claspell testified that Farinella
did not ask for help on this occasion , though admitting that he had on various other
occasions , and that he so told Raiser, director of operations , when Raisor later asked
him. Merritt Marsh testified that on various previous occasions Farinella had asked
for help, particularly since March when the delivery schedule of the warehouse truck
was changed Previous to March , grocery department employees had unloaded
the truck . Since then unloading had become the task largely of the employees in the
produce department Marsh testified that Farinella had often protested this arrange-
ment on the ground that unloading the truck resulted in his being behind in the
normal work of his department . Claspell , though denying that Farinella asked for
help, admitted that he did notice about noon that the produce tables and racks were
not as full as they should have been It does not appear that either he or Merritt
Marsh spoke to Farmella about this condition Farinella testified that he also asked
George Capp , grocery stockman , for help but Capp told him he could not rive him
any since the grocery department was running behind. Capp was not called as a
witness
In view of Nelson's absence and the resultant falling behind in the regular work
of the produce department on this, the store's busiest day of the week, and in view
of Farinella 's frequent requests for help on other days , I find it improbable that he
MARSH SUPERMARKETS, INC. 909
did not ask for help on this occasion. I credit his testimony that he did, and so
find.
At 1 p.m. Bartlett, who worked part time in the produce department assisting
Farmella and Nelson, arrived. Farinella worked until a little past his usual quitting
time of 3 p.m. He testified that when he left the produce department, in his opinion,
was well taken care of since Bartlett was there to keep the produce racks full and
Spence, another part-time employee, was due to arrive at 4 p.m ; Spence did arrive
On the previous day, Thursday, June 1, Raisor and Faye Houston, produce su-
pervisor, had visited store No. 18 whose produce department, according to Raisor,
was the least satisfactory of Respondent's various produce departments along with
that at store No. 9. Goveia, produce manager at store No. 18, was told by Raisor
that he would have to improve his department or his employment would be ter-
minated,G and was placed on 2 weeks' probation. While at store No. 18, Raisor
and Houston agreed to visit Farinella at store No. 9 on the following day.
Raisor arrived at store No. 9 shortly after Farinella had left, and proceeded to
make a list of things he found wrong with the produce.? A few minutes later Houston
appeared, the two of them further inspected the department, and they had Claspell
summon Farinella. While waiting for Farmella, Raisor telephoned Chan Kintner,
Respondent's vice president, and asked permission to discharge Farinella. Kintner,
according to his own testimony, asked him if Farinella had asked for help during
the day, and Raisor told him that he did not know but would check with Merritt
Marsh and Claspell. Raisor testified that he told Kintner that Farinella had not
asked for help, but rechecked to make sure. In any event, Kintner authorized Raisor
to discharge Farinella if he had not asked for help. Raisor did check and, accord-
ing to his testimony, was told by Claspell that this was the case.
Upon Farinella's arrival at the store, he, Raisor, and Houston discussed the condi-
tion of the produce department. Raisor testified that Merritt Marsh, manager of
store No. 9, though present in the store did not take part in the conversation.
Marsh's own testimony confirms this. Raisor told Farinella that Houston had found
a similar condition in his department the previous week, that it could no longer be
tolerated, and that "this was it." Farinella at that point, not understanding what
Raisor meant by "this is it," said he had not had enough help during the day.
Raisor replied, according to his own testimony, that Farinella had not made his
needs known and that so far as he, Raisor, was concerned "that was besides the point
now," since Farinella had just been discharged. Farinella left and Raisor and
Houston proceeded to straighten up the produce department and to cancel orders
for certain items of produce which Farinella had made for the following day.
3. Farinella's previous employment record
Farinella was assigned to store No. 9 in September 1959, upon the closing of
store No. 2. He was transferred to store No. 2 from store No. 1 about January
1958. A bulletin issued by Respondent's produce club covering the period from
March 8, 1957, to March 8, 1958, showing the relative standing of the produce de-
partments in Respondent's stores in the northern Indiana area, is in evidence It
shows the produce department in store No. 1, where Farinella was at that time
produce manager, in fourth place on the basis of "contributions to store results."
The same bulletin, under the heading "Big Ten in Vegetables Sales," shows Farinella's
department at store No. I in first place among the 32 produce departments as having
achieved 38.9 percent of gross store profits, which was close to management's an-
nounced goal of 40 percent.
Respondent contends that Farinella is not entitled to the credit for this showing,
since he was produce manager at store No. 1 for only the last 2 months of the 12-
month period covered by this bulletin. It submits evidence to show that during
January 1961, the percentage of gross profits of the produce department declined
from 33.3 percent the previous month to 28.8 percent, to rise again in March to
30 2 percent
On March 11, 12, and 13, 1958, during a period when Farinella was engaged in
negotiations for the contract of April 28, 1958, and a few days after the yearly
6 It was subsequently terminated about August 1, 1961
7 Ralcor's list included various items of fruits and vegetables in the cooler not enough
of which were on display, thus leaving the vegetable rack partially showing: various
kinds of vegetables in the cooler which needed reworking; certain kinds of vegetables
received on the truck that morning which had not been put in the cooler: and several
cases and bags of fruits and vegetables on hand in excess of what he believed was needed
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report of the produce club, John Altman, then operational supervisor, inspected
Farinella's department, made a list of things he found wrong, and procured Farinella's
signature to the list. At the same ,time he told Farinella that his department was
a poor department and that he could not understand how it got in such shape.
Farinella testified credibly that during a period of 2 weeks when he was engaged in
contract negotiations, Altman was in his department nearly every day.
Around the middle of 1958, while at store No. 2, Farinella was awarded a hi-fi
set as first prize in a contest between the Muncie stores, for the greatest conrtibu-
tion to gross sales profits.
Prior to his assignment to store No. 1 Farinella was produce manager at store No.
25. He joined the Union about September 1, 1957, and was placed on the Union's
negotiating committee in October. Dean Craig, then produce specialist, visited the
produce department at store No. 25 and, according to his testimony, criticized
Farinella's work and told him that he was being placed on probation for 3 weeks.
Farinella testified that he was not told by Craig or anyone else in management that
he was being placed on probation. I do not find it necessary to resolve the ques-
tion of whether Craig used the word "probation" in talking to Farinella There is
no evidence in the record of any formalized or graduated system of discipline in
Respondent's stores in which "probation" is given any particular significance I
find only that Craig did warn Farinella that his department was not in satisfactory
condition, and that it would have to improve.
In June 1958, while at store No. 2 (later closed down) Richard Wade, store
manager, issued a notice of corrective action to Farinella complaining of certain
conditions in the produce department, which Farinella signed, although stating on
the notice that in his opinion it was not accurate and the correction uncalled for.
There is no evidence in the record of any particular criticism of Farinella's work
over a 3-year period from the latest of the above instances (June 1958), until
May 26, 1961, a week before his discharge, except that Raisor and Houston testified
that "several times" during the year prior to his discharge, when visiting the various
stores (which they did about once a week), they criticized Farinella's work. The
substance of their testimony is that there were always things to be criticized in all
the departments in all the stores, and suggestions to be made for improvement, but
that they criticized Farinella more than the average produce manager. I do not
find criticisms of Farinella during this 3-year period to be more than routine. On
May 26, 1961, Houston, after a visit to store No. 9, expressed his dissatisfaction with
Farinella to William Ast, personnel director, and recommended that he be discharged.
In evaluating Farinella's efficiency as a produce manager, Respondent lays great
stress on an exhibit which compares "dollars per man hour" in the produce depart-
ment of the average store with the produce department at store No. 9. "Dollars
per man hour" is derived from computing the number of hours worked in a depart-
ment and comparing the result with the total sales of the department. During
the year preceding his discharge, Farinella's "dollars per man hour," according to
this computation, stayed close to the company average, until April 1961. For the
week endine the day after his discharge, however, the average produce department
was producing $28.60 per man-hour, while Farinella was producing $20 40 per
man-hour.
The testimony of Ast is that this statistical method is the fairest of measuring rods
because it is not influenced by store location. There is no evidence, however, as to
how it may be affected by the efficiency of general store management.
Conclusions
As has been found, Farinella had been employed for 10 years, and had the greatest
seniority of any of Respondent's produce managers when he was discharged on
June 2, 1961, within 6 weeks after Local 1441 lost the election conducted among
Respondent's employees, and a month after the expiration of the Union's contract.
Farinella was the most active in the Union of all Respondent's employees. He had
participated in negotiating the collective-bargaining contract and was president of
the Union. As has been found in section A, above, Respondent during the period
immediately preceding the election, undertook a campaign to defeat the Union.
It made no secret of its hostility to unions in general and to Local 1441 in par-
ticular. It also expressed to Farinella its disfavor of Farinella's own activity in the
Union. For example, Farinella testified without contradiction that about April 7,
1961. 2 weeks prior to the election and within 2 months of his discharge, Somers,
director of retail operations, said to him, "John, I don't know what's come over
you. Here you were a good company man and now you are president of Local
1441. We can't understand."
MARSH SUPERMARKETS, INC . 911
On the other hand it is axiomatic , as counsel 's brief points out, that membership
in a union , no matter how active it may be, is in no sense insurance against dis-
cipline or even discharge , the ultimate sanction . Farmella's work record, there-
fore, must be carefully considered, since Respondent asserts inefficiency as the reason
for his termination.
Respondent , in the operation of its retail stores , is in immediate touch with the
consuming public and largely dependent upon its vagaries . To some extent its busi-
ness is seasonal . To a greater extent it is affected by store location and by good
store management . Merchandise handled in the produce department , unlike that
in other departments , is 100 percent perishable . If the items do not move promptly
they must be freshened up, reduced in price, or thrown away. It is easy to over-
order from the warehouse and as easy to underorder . Good judgment by the
produce manager is an important factor . An ideal situation would be one where
there is enough of each variety of fruits or vegetables , but not too much. This
cannot be wholly attained.
In general , I am not impressed with the significance attributed by both the Gen-
eral Counsel and Respondent to the statistical and graphic evidence which they have
adduced . On the one hand Respondent asserts in its brief that in determining whether
or not Farinella was discharged for his union activity or because of inadequate job
performance , it is necessary only to examine the "dollars per man hour " graph.
The test imposed by the figures on which the graph is based is asserted to be the
fairest available, because it is said that store location is not a factor . The factor
of general store management , however, is present . Moreover , counsel mistakes
the reach of the Act. The question is not whether Farinella "should " have been
discharged . The question is why was he discharged , and this cannot be answered
solely on the basis of statistics.
On the other hand, the General Counsel attaches importance to the first place
award given Farinella 's produce department at store No. 1 for the period of March 8,
1957, to March 8, 1958. This was 3 years before his discharge. Moreover,
Farinella was at store No. 1 only during the last 2 months of this period. It is
a fair conclusion , however, which I draw, that Respondent would not have assigned
Farinella to what was at that time its banner produce department among all its
northern Indiana stores , had it not believed that he could maintain its standard.
In my judgment this largely serves to cancel out complaints , revived at the hearing,
as to his performance prior to March 1958, including his "probation " in October 1957.
I am more concerned with events nearer in time to Farinella's discharge. From
June 1958, when Farinella was given a notice of corrective action , to the week
before his discharge , a 3-year period , there appear to have been no serious complaints
as to Farinella 's work performance . The testimony of Raisor and Houston is only
to the effect that during this period they expressed dissatisfaction on several oc-
casions during their weekly rounds of the produce departments . I have found
these to have been no more than routine suggestions and criticisms . Nor do I find
that their inspection on May 26 resulted in much , if any, more than the usual
suggestions and criticisms made of every produce department.
The same conclusions apply to the criticisms made by Marsh , manager of store
No. 1. Although Marsh testified that the produce department at the time of
Farinella's discharge was the weakest in his store , before he made no criticisms
of Farinella different from those he made from time to time of other employees.
He testified on direct examination that during the period of a year previous to
June 2, 1961 , when Farinella was discharged , he "several times" spoke to him about
his work, but he could not cite any specific instance . He would go over the weekly
operations report from the office , and if Farinella showed low gross earnings he
would discuss the reasons for it with him, "just things in general like that." He
also did this with his other departmental managers . Occasionally , he issued a writ-
ten complaint against an employee for unsatisfactory work. He testified that he
did this once with respect to Bartlett , Farinella's part-time assistant , among others;
but never with respect to Farinella.
After 3 years , during which I find no serious criticism of Farinella 's work in
the record , Respondent on June 2, 1961 , discharged him. The immediate alleged
cause was the poor condition of the produce department . Farinella attributes any
failure in this respect to the absence on vacation of his only full-time helper, and
the necessity of his having to unload the produce truck himself. I have found
that he called this to the attention of the assistant store manager and asked for help,
and that this was refused.
As has been seen, Vice President Kintner made his consent to Farinella's dis-
charge dependent upon whether he had asked for help. Raisor was told by Claspell
that he had not . Farinella , however, was not asked . After Raisor told him he
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was discharged Farinella protested that he had not had sufficient help, only to be
told that he "had not made his needs known," and that, anyway , it was "besides the
point" since he had already been discharged . Hence not only was Farinella him-
self not asked before he was discharged if he had requested help, but when he at-
tempted to advance the lack of help as a reason for the condition of his depart-
ment, he was cut off. I conclude that Raisor was content to believe that Farinella
had not asked for help.
If there were .any substantial doubt in my mind that Farinella was discharged for
reasons other than his inefficiency as a produce manager, it would be dissipated by the
failure of Raisor and Houston to confer with Memtt Marsh , the store manager,
before the discharge was effectuated . Marsh himself testified on this point as follows-
TRIAL EXAMINER : When was pit determined that he couldn ' t do the work as a
result of which he was discharged?
The WITNESS : Well, I can't answer that.
TRIAL EXAMINER : Well, let's put it this way: Was the first you knew that
Farinella was going to be discharged the moment when he was told that that
was it, according to his testimony?
The WITNESS : That was the time I knew it, right , just before they told him,
I was told.
TRIAL EXAMINER : No previous discussion or decision in which you partici-
pated to discharge him? 1 am not saying discussion as to the nature of his work,
good or bad , but you didn ' t participate in any decision to discharge shim?
The WITNESS: No.
Mr ROBERTS Mr. Trial Examiner , if it would save any time , I might say
that the decision to discharge Farinella was made by Chan Kintner.
TRIAL EXAMINER : And this witness did not participate?
Mr ROBERTS This witness did not make the decision and it went on down
the line from Chan Kintner to Kenny Raisor and Faye Houston and they dis-
charged Farinella.
Q. When did you know that John was going-Did you know that John was
going to be fired before he did?
A. No, I did not.
It has previously been found that store managers do not have authority to dis-
charge department heads. But this is the only sense in which the "line of decision,"
as it Is referred to elsewhere in the record, does not include the store manager.
If there is anyth ing clear in this record it is that store managers are vitally concerned
with the efficient operations of their several departments , since they affect the profit-
able operation of the whole store. Merritt Marsh, himself, on various occasions
criticized the operations of the produce as well as other departments, consulted with
Fannella on matters of the displaying of produce and ordering , and went over with
him the weekly reports issuing from the office . He issued written complaints to
store employees , recommended disciplinary action , assigned extra help , and au-
thorized overtime work.
Herbert Franklin, manager of store No. 25, summarized as follows the responsi-
bilities of a store manager:
TRIAL EXAMINER : Would you please tell us what your duties as store manager
are?
The WITNESS: Supervising all department heads and employees ; making hour
checking of store scheduling and time schedules.
TRIAL EXAMINER: In other words , every one in the store is under your direc-
tion, is that correct)
The WITNESS- Yes, sir.
John Altman , grocery merchandiser and formerly operational supervisor , the posi-
tion now held by Raisor , testified as follows concerning the role of the store manager
when Farinella himself was transferred to store No 1 in January 1958.
Q. Any other gentleman who would have shared in that decision?
A. Well, possibly-naturally the store manager would have been involved. . . .
TRIAL EXAMINER . What do you mean, would have been involved?
The WITNESS ' Well, he would have been involved in it, the decision. He
would have been losing a man and gaining another man. So naturally he would
have been in the conversation about the change.
MARSH SUPERMARKETS, INC. 913
Altman further testified as to the practice of consulting a store manager when
a department head is to be discharged:
TRIAL EXAMINER: What about the discharge of a department head, wouldn't
he be consulted about that, too?
The WITNESS: Yes, he should be, I would say. Again, it would be a rare
occasion, I would think, that he wouldn't be consulted. . . .
Concluding Finding
Farinella, as president, was the most active of Respondent's employees in the
Union. Respondent was openly hostile to the organization of its employees and had
made this abundantly clear during its preelection campaign. It expressed to Farinella
personally, less than a -month before it discharged him, its disillusionment with
Farmella in his role as president of the Union. It discharged him within 6 weeks
after the Union lost the election, and 1 month after the termination of its contract
with the Union, when he no longer had the protection afforded by its grievance pro-
cedure and arbitration provisions. It did so on the ground of inefficiency, although
for a period of 3 years, or during the approximate life of its contract with the Union,
Farmeila's superiors made no more than routine complaints as to the operation of
his department. The discharge was made without consultation with Fannella's store
manager, without his recommendation, and without his prior knowledge. This was
a sharp and unexplained departure from Respondent's usual practice as testified to by
its own witnesses.
The discharge was made on a Friday, the busiest day of the week, when Farinella
was without the help of his only full-time assistant. Even if Farinella had not asked
for help, any ordinarily competent supervision would have, under the circumstances,
assigned it, particularly since Claspell, assistant store manager, noted at noon that
the department was behind. Kintner's authorization of Farinella's discharge was
stated to be conditioned upon whether he had asked for help. I have found that he
did ask for help and that it was refused. Farinella, an employee of 10 years' service
as a department manager, periods of which were recognized as being outstanding,
was not asked for any explanation of the assertedly poor condition of his department
before being told he was discharged When he attempted to explain that he had not
had sufficient help, he was told that it was "besides the point "
On the basis of these facts, and on the record as a whole, I conclude that Farinella
was discharged on June 2, 1961, not for reasons of inadequate job performance, but
because of his activity in behalf of the Union, and I so find.
C. The alleged discrimination against Zelpha Wulff
Zelpha Wulff is a checker at store No. 69. She has been employed by Respondent
for 4 years. She joined the Union in 1959, and a month before the election on
April 21, 1961, was elected as a steward. When Wulff returned from an illness on
May 15, 1961, she saw a posted schedule of work hours according to which her own
hours were cut back from 31 to 23 per week Franklin, her store manager, told her
that this was because she had been sick and he wanted to see if she could carry her
workload. He stated, according to her testimony, that her hours would be restored
the following week. Her hours were not restored the following week, however, and
when she pointed this out to Franklin he said, according to her testimony, that she
could take at or leave it.
On cross-examination Wulff admitted, and other evidence in the record shows,
that since May 15, 1961, she has averaged 14 percent more in wages per week
than she did prior to that date, although some of this was due to overtime work.
There is no evidence that any reduction in straight-time hours of work was dis-
criminatorily motivated. I shall recommend that the allegations of the complaint as
to her be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I find that the activities of Respondent set forth in section III, above, occurring in
connection with the operations of Respondent described in section 1, 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 commerce
and the free flow of commerce.
V THE REMEDY
It having been found that Respondent engaged in unfair labor practices in violation
of Section 8 (a) (1) and (3) of the Act, it will be recommended that the Respondent
cease and desist. therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As it has been found that Respondent discriminated with regard to the hire and
tenure of employment of John Farinella in violation of Section 8(a)(3) and (1)
of the Act, I will recommend that Respondent offer him immediate and full reinstate-
ment to his former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges. (See The Chase National Bank of the City
of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827.) It will be further
recommended that Respondent make the aforesaid employee whole for any loss
of pay suffered by reason of the discrimination against him. Loss of pay shall be
based upon earnings which Farinella normally would have earned from the date
of his discharge to the date of his reinstatement , less net earnings , computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S.
344. It will also be recommended that Respondent preserve and, upon request,
make available to the Board, payroll and other records to facilitate the computation
of the backpay due.
As the unfair labor practices committed by Respondent involved discrimination
and are therefore of a character striking at the root of employee rights safeguarded
by the Act, it will be-recommended that Respondent cease and desist from infringing
in any manner upon the rights guaranteed in Section 7 of the Act.
So far as the decertification election of April 21, 1961, is concerned (Case No.
25-RD-120), I recommend that the result of the election be set aside, and the
Regional Director be authorized to conduct another election in this unit as soon as
he is of the opinion that the effects of Respondent's unfair labor practices have been
sufficiently dissipated.
As to the objections to the conduct of the election among the employees of the
Yorktown warehouse (Case No. 25-RC-1865), I recommend that they be overruled.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Retail Clerks International Association, Local Union No. 1441, AFL-CIO, is
a labor organization within the meaning of the Act.
2. By promising a benefit to Katherine Swoveland if she voted against the Union
as the collective-bargaining agent of its employees, and by interrogating Roy Taylor
concerning his membership in, and activities in support of, the Union, Respondent
has engaged in unfair labor practices with the meaning of Section 8(a) (1) of the Act.
3. By discharging John Farinella on June 2, 1961, and thereby discriminating in
regard to his hire and tenure of employment and discouraging membership in the
Union, the Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (3) and (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.
5. Contrary to the allegations of the complaint, the Respondent did not com-
mit unfair labor practices by shortening the hours of work of Zelpha Wulff.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that he Respondent, Marsh Super-
markets, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Retail Clerks International Association, Local
Union No. 1441, AFL-CIO, or in any other labor organization, by discriminating
against its employees in regard to their hire or tenure of employment, or any terms
or conditions of their employment, or by interrogating employees as to their union
activities and promising benefits for withdrawing support of the Union
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form labor organizations, to
join or assist the above-named Union or any other labor organization, to bargain
collectively through representatives of their own choosing, or to engage in other
concerted activities for the purpose of mutual aid or protection as guaranteed in
Section 7 of the Act or to refrain from any or all such activities.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer to John Farinella immediate and full reinstatement to his former or
substantially equivalent job, without prejudice to any rights and privileges previously
enjoyed by him, and make him whole for any loss of pay he may have suffered
by reason of Respondent's discrimination against him , in the manner set forth in
the section of the Trial Examiner's Intermediate Report entitled "The Remedy."
MARSH SUPERMARKETS, INC. 915
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
the amounts of backpay due and the right of reinstatement as set forth in the section
of the Trial Examiner's Intermediate Report entitled "The Remedy."
(c) Post at its office in Yorktown, Indiana, and in each of its six Muncie, Indiana,
stores, copies of the attached notice marked "Appendix." 8 Copies of said notice,
to be furnished by the Regional Director for the Twenty-fifth Region, shall, after
being duly signed by Respondent or its representatives, be posted by the Respondent
immediately upon receipt thereof, and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps the Respondent has taken to comply
herewith.9
It is also recommended that the Board dismiss allegations in the complaint that
Respondent committed unfair labor practices by reducing the hours of work of
Zelpha Wulff.
8In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board ' s Order be enforced by a
decree of a United States Court of Appeals, the words " Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read- "Notify said Regional Director , in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Retail Clerks International Associa-
tion, Local Union No. 1441, AFL-CIO, or in any other labor organization of
our employees, by discriminating against our employees in regard to their hire
or tenure of employment, or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist the above-named Union, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection and to refrain from any or all such
activities.
WE WILL offer John Farinella immediate and full reinstatement to his former
or substantially equivalent job, without prejudice to any rights and privileges
previously enjoyed by him, and we will make him whole for any loss of wages
suffered as a result of his discharge.
All our employees are free to become, remain, or refrain from becoming members
of the above-named Union or any other labor organization.
MARSH SUPERMARKETS, INC.,
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.
Employees may communicate directly with the Board's Regional Office, 614
ISTA Center, 150 West Market Street, Indianapolis, Indiana, Melrose 2-1551, if
they have any question concerning this notice or compliance with its provisions.
681-492-63-vol. 140-59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
The complaint in this proceeding alleges that Respondent , Marsh Supermarkets,
Inc., committed unfair labor practices within the meaning of Section 8(a) (1) and
(3) of the National Labor Relations Act, as amended (29 U.S.C. Sec . 151, et seq.),
by discharging John Farinella , by reducing the number of hours worked by employee
Zelpha Wulff, by interrogating employees regarding their union activities and
threatening them with loss of economic benefits if the Union won a representation
election then pending, and promising them economic benefits if it lost.
The Union lost the election and filed objections thereto . The Regional Director
for the Twenty-fifth Region filed his report on objections , both the Union and
Respondent filed exceptions to his report , and the Board directed that the objections
be heard together with the evidence in the unfair labor practice case.
On February 16, 1962, I issued my Intermediate Report and Recommended Order
and on the same date the case was transferred to the Board . On June 7 , 1962, the
Board issued an order remanding this case to me for the preparation of a Supple-
mental Intermediate Report containing ( 1) resolutions of credibility and findings
of fact as to the testimony of all witnesses concerning preelection statements and
speeches in the stores and the warehouse, referred to in the last paragraph
on page 906 of my Intermediate Report; and (2) resolutions of credibility, findings
of fact and, if necessary, conclusions of law, concerning the testimony of Zelpha
Wulff and Herbert Franklin respecting their postelection consultations. Accord-
ingly, I make the following:
SUPPLEMENTAL FINDINGS OF FACT
A. Preelection statements and speeches in Respondent 's stores and warehouse
In my Intermediate Report I stated that several witnesses testified that prior
to the elections held on April 21, 1961, Estel Marsh, Respondent's president, Chan
Kintner, its vice president, and William Ast, its personnel manager, at meetings held
in the warehouse and at all Respondent's stores, told employees that "If a union
got in and we started negotiations, everything would be wiped clean . . . all the
benefits," including vacation program, and that "If the Union gets in you will have
to start from scratch." Other witnesses denied that these statements were made, or
interpreted them differently. I did not resolve these contradictions, stating that,
assuming that they were made, they were in my opinion not violative of the Act
since they correctly stated the legal situation which would exist upon termination
of the Union's contract on May 1, 1961. The Board has directed that these con-
tradictions be resolved and that I make findings of credibility concerning them.
1. The warehouse speech
As I have found, Estel Marsh, Respondent's president, made a speech to about
100 employees in the warehouse cafeteria during which he read excepts from "Power
Unlimited," by Sylvester Petro, and made comments of his own concerning the Union,
in the American Tube Bending vein. I found Marsh's remarks privileged under
Section 8(c) of the Act. Witnesses called by both the General Counsel and Re-
spondent testified, however, as to other statements made by Marsh pertaining to
certain existing employee benefits, including vacations. Hence, Alva Hoots, Howard
Brose, and Denver Willis, called by the General Counsel, testified that Marsh said
that the employees enjoyed many benefits which would be taken away if the Union
won the election, that they would "have to start from the bottom and work up,"
that everything would be "wiped clean," and they would start all over again." In
this connection he specifically cited Respondent's 3-week vacation program and said
that it would be taken away if the Union got in and negotiations began, which Hoots
understood to mean contract negotiations with the Union.
The testimony of Brose was the same, except that he testified that at the point
where Marsh said that if the Union came in the benefits which the employees
had would be taken away, and "they" would have to negotiate vacations from
scratch. He turned to Kintner, Respondent's vice president who was present, for
confirmation , and Kintner nodded his head in agreement.
Willis' testimony as to Marsh's statements and their confirmation by Kintner was
similar to that of Hoots and Brose.
MARSH SUPERMARKETS, INC . 917
The testimony of these witnesses was contradicted by that of witnesses whom
Respondent called. Paul Allman, a rank-and-file employee, denied that Marsh
said that if the Union came in fringe benefits such as vacations would be taken
away, or that the board would be wiped clean if the Union won the election, but
that he did refer to these benefits as having been granted by Respondent. Allman
stated that Marsh said nothing in this contention about contract negotiations.
The testimony of John Hensley was similar to that of Allman, but he testified
additionally that Marsh added that regardless of the election employee benefits
would not change.
Richard Richards testified similarly and in addition that Marsh said nothing about
negotiations or a contract in connection with employee benefits.
Rollin Ward also contradicted the testimony of the General Counsel's witness
on these points, and stated that union negotiations were not mentioned in connection
with fringe benefits.
Estel Marsh testified that he told the assembled employees that Respondent had
one of the most liberal vacation programs in the country but denied threatening to
abandon it if the Union won the election. He stated he did not recall saying anything
about contract negotiations, though he may have, and thought Kintner did so. He
believed that he might have made other statements which he could not recall.
Marsh's account of his speech was corroborated by that of Kintner and Ast who were
present. Each testified that Marsh said nothing about benefits being lost if the Union
won the election.
2. The speeches at the stores
During the week prior to the elections Marsh, and on occasion Ast, repeated
the substance of the warehouse speech at employee meetings at each of Respondent's
Muncie stores, varying it somewhat according to circumstances of time and place.
Marsh could not recall whether at any of these stores he mentioned contract nego-
tiations, but stated that he might have made reference as to what would happen to
vacation and other benefits if the Union won the election, though he could not recall
having done so because he had delivered about 30 similar speeches over a 2-year
period during organization drives at other of Respondent's stores.
Barbara Erdel testified that at a meeting at store No 18 Marsh said that there
was no chance for advancement so long as the Union was in the plant. Marsh
and two rank-and-file employees who were present denied that Marsh made this
statement I find that he did not.
Margaret Wedmore testified that Ast, at a meeting at store No. 9 said that if the
Union came in the employees would "have to start from scratch," but that she
did not know what he meant by this statement. Her testimony was contradicted by
that of Charles Bartlett and Jack Hoover, as well as Ast, but substantiated by that
of John Farinella.
Zelpha Wulff testified that at a meeting at store No. 25 Ast stated that Respondent
got rid of "troublemakers" at the Yorktown warehouse after a Teamster strike in
1954. This was denied by Ast as well as by two rank-and-file employees. Marcella
Mang, a witness called by the General Counsel, could not recall this statement having
been made. I find that it was not.
Concluding Findings
Except where I have specifically found to the contrary, I credit the witnesses called
by the General Counsel as to the statements of Marsh and Ast, and find that Marsh
and Ast, at the warehouse meeting on April 15 and at various Respondent's stores
in the week preceding the election, stated in effect, among other things, that if
the Union won the election on April 21 Respondent's employees would lose some of
the benefits which they then enjoyed, particularly the existing vacation plan and
would have to "start from scratch." In certain instances I find that he coupled such
statements with references to the expiration of the Union's contract on May 1, 1961.
I do not find that he explained what the connection was, or whether the effect of the
expiration of the contract upon employee benefits would be permanent or temporary,
pending a renegotiation of the contract.
B. Postelection conversations between Zelpha Wulff and Herbert Franklin
In my Intermediate Report I alluded to a conversation between Wulff and Franklin,
manager of store No. 25 , which took place around May 15 , 1961 , concerning a cut-
back in her hours of work from 31 to 23 per week . I found that thereafter Wulff,
because of more overtime , averaged 14 percent more per week in wages than
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previously, and that Respondent did not discriminatorily reduce her hours. I did
not discuss two conversations with Franklin, one of which took place on April 28,
and the other about June 1, 1961.
1. The conversation on April 28, 1961
Wulff, who was union steward in store No. 25, testified that on April 28, 1961, she
asked Franklin how she would be affected by the impending shutdown of store
No. 1 and the transfer of employees to other stores, including store No. 29, stating
that she had more seniority than most of those who would be transferred. Franklin,
according to Wulff, said that he did not know what the effect on the employees would
be, but that so far as Wulff was concerned he had heard from "the boys," prior to
the election on April 21, that she would resign if the Union lost, and that it would
"make it easier on everyone" if she did so. Wulff denied having any such intention
Still according to Wulff, when she pressed Franklin as to who "the boys" were, he
became profane and abusive, upbraided her for criticizing Respondent during the
election campaign, and stated that if he were Wulff he would resign.
Franklin, while testifying, admitted having a conversation with Wulff on this
date concerning employees being transferred to store No. 25, and that he did state
that he had heard that she might quit. He denied demanding that she resign or
requesting that she do so, or that he used profane and abusive language.
I credit Wulff's account of this conversation and find that Franklin made in sub-
stance the statements attributed to him, which are in part admitted by Franklin.
While Franklin did not in so many words demand that she quit her job, he did in
effect urge her to do so, basing it on her activity on behalf of the Union and the fact
that the Union had lost the election the previous week. In this context, I find that
Franklin's statements amounted to an implied threat of discharge because of her
union activity, and constituted interference, restraint, and coercion within the mean-
ing of Section 8(a)(1) of the Act.
2. The June conversation
About June 1, 1961, following Wulff's reduction in hours on or about May 15. 1961,
the conversation attending which I summarized briefly in my Intermediate Report,
Wulff approached Franklin again concerning her reduction in hours, and asked him
why he continued to take hours away from her and give them to employees with less
seniority. Franklin, according to Wulff, cursed her and told her that there was no
union any more and that he would assign hours of work to whomever he pleased.
Upon Wulff's reminding him that Ast. Respondent's personnel manager, and Somers,
director of retail operations, had said in preelection speeches that regardless of the
result of the election things would remain the same, Franklin replied that he would
run the store to suit himself. and that he wanted her to quit or transfer to another
store. When Wulff asked him if she could transfer, Franklin said that he did not
know, but to "get out one way or the other, either quit or transfer, just get out,"
reminding her again that he had heard she would quit if the Union "went out,"
which I find Franklin equated to the Union 's loss of the election.'
Franklin testified that he told Wulff that the reason her hours and those of other
employees were cut was because of the opening of a new store by Respondent which
was cutting into the business done by store No. 25. He denied using profane language
or demanding that Wulff quit. I find Wulff's account of this conversation to be sub-
stantially in accord with the facts, and that Franklin 's statements to her constitute
interference, restraint, and coercion within the meaning of Section 8(a)(1) of the
Act.
RECOMMENDATION
Since in my original Intermediate Report and Recommended Order I made formal
conclusions of law and recommendations as to remedial action to be taken by
Respondent designed to effectuate the policies of the Act, I do not find it necessary
to repeat such conclusions and recommendations here, since the supplemental matters
are only cumulative. I therefore recommend only that the Board take cognizance of
them in considering my Intermediate Report and Recommended Order and in issuing
its Order.
1 On June 4, Wulff was transferred to store No. 69, where she worked at the time of
the hearing.