Midway Clover Farm Market, Inc.

National Labor Relations Board - Board Decisions

May 16, 1969

175 N.L.R.B. 1038 (N.L.R.B. 1969)

1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midway. : Clover Farm Market, Inc. and
Atnalgdrnated
"°
Fdod Employees Union Local 590,
Amalgamated- Meat Cutters and Butcher
Workmen of North America , AFL-CIO, and
International Union of District 50, United Mine
Workers of America , Party in Interest. Cases
8-CA-4738 and 8-CA-4783
May 16, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On May 13, 1968, Trial Examiner Ramey
Donovan issued his Decision in the above-entitled
proceeding,' finding that Respondent had engaged in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain, affirmative action, as set forth in
the attached Trial Examiner's Decision. He further
found that Respondent had not engaged in certain
other unfair labor practices and recommended that
such allegations be dismissed.
Pursuant tq the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner- made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision , the exceptions and briefs, and
the entire - record in this proceeding, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner, as
modified herein.
1. We do not agree with the Trial Examiner's
finding that Respondent violated Section 8(a)(2) by
allowing Amelia Zatezalo to solicit District 50
authorization cards.
The Trial Examiner found that Zatezalo, the
District 50 steward at Respondent's store, solicited
several employees to sign District 50 cards while
they were working as cashiers at Respondent's
checkout counters. The Trial Examiner ruled that
'As set forth more fully in the Trial Examiner 's Decision , a number of
voters were challenged in the election conducted on September 13, 1967, at
Respondent 's Wintersvllle, Ohio, store. Thereafter, the Regional Director
for Region 8 resolved certain of these challenges , consolidated the instant
unfair labor practice cases with the representation case (Case 8-RC-6812),
and ordered that the remaining challenges be resolved by the Trial
Examiner in the consolidated hearing . Following the Trial Examiner's
recommended resolutions of the challenged ballots in the consolidated
proceeding , the Board , by Decision and Order dalted,'December 17, 1968,
severed Case 8-RC-6812 from the instant unfair -labor practice cases. In
that Decision and Order , the Board ordered the Regional Director to issue
a Revised Tally of Ballots and to then return Case 8-RC-6812 to the
Board. By separate decision , issued this day, we set aside the election
conducted in that case and order that a new election be conducted.
"[b]ecause of the prominence of the location where
this occurred, during working hours while customers
were being serviced, this conduct at least implied the
support of management for such activity."
As there is no evidence that Respondent
prohibited employees from soliciting for Local 590,
we do not believe that the evidence relied upon by
the Trial Examiner is sufficient, without more, to
support his finding that Zatezalo's conduct "implied
the support of management for such activity." We
shall, therefore, reverse the Trial Examiner's
foregoing Section 8(a)(2) finding.
2. Respondent contends, and the Trial Examiner
found, that Stewart Prindle was discharged because
of legitimate business reasons. Local 590 and the
General Counsel except to this finding, contending
that the asserted reasons for discharge are pretextual
and that in truth Respondent discharged Prindle to
effectuate its threats to fire those employees who
supported Local 590. We find merit in the
exceptions of Local 590 and the General Counsel.
The record establishes that Prindle was employed
as an apprentice meatcutter from November 1966 to
September 13, 1967,2 the date the representation
election was held in the related representation case.
Around 5 p.m. on the latter date, Prindle was told
by Pauline Taylor, one of Respondent's coowners,
that his services as a meatcutter were being
terminated as of that day because of a slowdown in
business. Taylor then offered Prindle a job on the
night shift, starting approximately October 1,
stocking shelves at $1.45 per hour, which was $0.55
per hour less than his rate as a meatcutter and $0.35
per hour less than the rate paid to at least half of
the other night clerks. Prindle did not thereafter
return to accept the night job.
At the hearing, Respondent deviated from the
reason it had given Prindle for terminating him as a
meatcutter. It instead asserted that its decision to
terminate Prindle as a meatcutter was reached in
June when Radakovich, its new meat department
manager hired on June 12, complained to Pauline
Taylor that "you will have to get him [Prindle] out
of the meat department, he does not belong here."
According to Respondent, it thereafter ran
newspaper advertisements for an "experienced
meatcutter" on June 15, 16, and 29 in order to find
a replacement for Prindle, and it was first able to
implement the decision it had earlier made when, in
September it hired Archie Morris as Prindle's
replacement.
Pauline Taylor's stated reason to Prindle that the
discharge was necessitated by a business slowdown
was clearly pretextual, as is apparent from Morris's
subsequent hire, and from Respondent's hire of 11
part-time employees only 7 weeks prior to Prindle's
discharge. The inconsistent reason which
Respondent advanced at the hearing to justify
Prindle's discharge, we are persuaded, is equally
'nless otherwise noted. all dates hereinafter refer to 1967.
175 NLRB No. 151
MIDWAY CLOVER FARM MARKET 1039
pretextuous. If Radakovich made the statement to
Pauline Taylor that he asserts , it must have been
made between June 12, and the day Radakovich
commenced work, and on June 15, the day that the
first advertisement 'appeared. Radakovich testified,
however, that the alleged statement was made "after
I was there a week or so." If so, it follows that the
June 15 advertisement was placed prior to
Radakovich's complaint and that it was not placed
with the view to replace Prindle. Respondent's claim
in this respect is further weakened by the fact that
Prindle continued his employment after Respondent
hired Tom Wilks as a meatcutter on June 19. It
appears clear to us from the foregoing that the
advertisements reflected a desire on Respondent's
part to augment its workforce , and not, as it claims,
to replace Prindle. Moreover, in light of the fact
that Morris did not begin work until October 1,
approximately 18 days after Prindle's discharge, we
are not persuaded that Morris' hire was the
consideration that immediately led to Prindle's
discharge. As Morris started work only 1 or 2 days
prior to employee Wilks' expected termination (he
was returning to college) as a full-time meat
department employee, it is more likely that Morris
was hired to replace Wilks.
In these circumstances , and upon the entire
record, we are not persuaded, as was the Trial
Examiner, that Respondent discharged Prindle for
legitimate business reasons . The shifting and
unpersuasive reasons given for the discharge, and
Respondent's threats that "back in the meat shop
they thought they were cute about it (supporting
Local 590) and they were going to lose their jobs
over it" and "people were gonna start
disappearing", convince us that Respondent was
motivated by unlawful discriminatory reasons in
discharging Prindle as a meatcutter , and, therefore,
violated Section 8(a)(3) of the Act.'
3. The Trial Examiner found, and we agree, that
Respondent engaged in certain proscribed conduct
violative of Section, 8(a)(2). As set forth more fully
by the Trial Examiner, this conduct, among other
things, . included : ( 1) Supervisor Radakovich's
statements to employee Williamson , prior to the
election, that "we'-' should stick with District 50 in
order to insure that wages would be increased, and
that employees would not be able to measure up to
the exacting standards which would result from the
election of Local 590; (2) Radakovich's solicitation
of District 50 authorization cards from several
employees; (3) Pauline Taylor's statement to
employee Speaks, -prior to the election, that she
'The Trial Examiner implies that neithet Radakovich nor Pauline Taylor
knew whether Prindle favored or assisted Local 590. The record discloses,
however, that Prindle did not sign a District 50 card which was given to
him by Radakovich , and that he later signed a Local 590 card.
In view of Respondent's unlawful assistance to District 50, its belief that
all meat department employees supported Local 590, and its resultant
hostility to its meat department employees , it is reasonable to infer that
Prindle's refusal to sign the District 50 card led Respondent to conclude
that Prindle supported Local 590.
knew what was going on and would not like people
stabbing her in the back;' (4) Radakovich's warning
that employee Rickey was "too old to get another
job if she ever lost her job there . . ."; (5)
Radakovich's threatening command to employee
Wilks that Wilks should vote for District 50; (6)
James Taylor's threat to employee Hammond that
Respondent's meat department employees who were
being "cute" would lose their jobs after the election
and that he could get "rough" also; (7) James
Taylor's protestation to employee Hammond on the
night of the election, "you know very well which
union I want in, you really messed me up,"; and (8)
the statement made by Pauline and James Taylor
after the election to employee Mantos that if she
had not voted for Local 590, the whole matter
would be settled and she would be making more
money. It is clear, therefore, that by engaging in the
afore-mentioned conduct, Respondent unlawfully
assisted and supported District 50.5
REMEDY
Having found that Respondent discharged Stewart
Prindle on September 13, 1967, in violation of
Section 8(a)(3) and (1) of the Act, we shall order
Respondent to cease and desist therefrom, and
require that it take certain affirmative action which
we find necessary to remedy and remove the effects
of this unfair labor practice and to effectuate the
policies of the Act. Accordingly, we shall order that
Prindle be offered immediate and full reinstatement
to his former or substantially equivalent job without
prejudice' to his seniority or other rights and
privileges and that he be made whole for any loss of
pay suffered by him by reason of the discrimination
against him, from the date of his discharge on
September 13, 1967, to the date of the offer of
reinstatement. Loss of pay shall be computed as
prescribed in F. W. Woolworth Company, 90
NLRB 289, and interest on such backpay shall be
computed at 6 percent per annum in accordance
with Isis Heating & Plumbing Co., 138 NLRB 716.
We shall also order that the Respondent make
available to the Board upon request payroll and
other records in order to facilitate the computation
of the amount of backpay due. We also adopt the
Trial Examiner's remedial recommendations as to
employee Speaks and the other violations found.
CONCLUSIONS OF LAW
We hereby adopt the Trial Examiner's
Conclusions of Law, as modified below:
'While the Trial Examiner found that this conduct only violated Section
8(a)(l) it is clear from the context that this remark was an effort to
unlawfully assist District 50.
'As set forth in the related representation case [Case 8-RC-6812, not
printed in the Board's published volumes] the Board will not now certify
District 50, since it is an illegally assisted union.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Stewart Prindle on
September 13, 1967.
2. Respondent did not violate Section 8(a)(2) and
(1) of the Act by permitting Amelia Zatezalo to
solicit cards.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that Respondent,
Midway Clover Farm Market, Inc., Wintersville,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, with the following
modifications:
1. Substitute the following for paragraph 2(a) of
the Trial Examiner's Recommended Order:
"(a) Offer James Speaks, Jr., and Stewart Prindle
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 their discharges, in accordance
with and as set forth in the Section of this Decision
entitled "The Remedy." "
2. Insert the following as paragraph 2(b), and
reletter the following paragraphs accordingly:
"(b) Notify the above-named employees, if
presently serving in the Armed Forces of the United
States, of their right to full reinstatement, upon
application, in accordance with the Selective Act
and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces."
3. Substitute the following for the fifth indented
paragraph in the notice:
WE WILL offer to employees James Speaks, Jr.,
and Stewart Prindle immediate and full
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges previously
enjoyed, and we will pay to James Speaks, Jr.,
and Stewart Prindle, with interest at 6 percent,
any wages they lost from the date of their
discharges to the date of our offers of
reinstatement.
IT IS HEREBY FURTHER ORDERED that the
complaint be, and it hereby is, dismissed insofar as
it alleges violations of the Act not found herein.
CHAIRMAN MCCULLOCH, dissenting in part:
With the exception of my colleagues' conclusion
that employee Stewart Prindle was discharged in
violation of Section 8(a)(3), I agree with the
majority opinion in all respects. As to Prindle, I
note that the Trial Examiner credited the testimony
of meat department manager Radakovich that he
discharged Prindle because an experienced
meatcutter had been hired to replace him. I find
nothing in the arguments set out in the majority
decision to persuade me that the Trial Examiner's
finding is contrary to the clear preponderance of all
the relevant evidence . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner: A petition for
certification had been filed with respect to employees of
Midway Clover Farm Market, Inc., herein the Employer
and Respondent, by Amalgamated Food Employees
Union Local 590, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, herein
Local 590. On September 7, October 18 and November 6,
1967, Local 590 filed charges against Respondent. A
complaint under date of October 19, 1967 and alleging
violations of Section 8(a)(1) and (3) of the Act was issued
by the General Counsel of the Board. A complaint under
date of November 7, 1967 and alleging violations of
Section 8(a)(1), (2), and (3) of the Act was issued by the
General Counsel of the Board together with an Order
consolidating certain aspects of the representation case
with the unfair labor practice case for the purposes of
hearing.
Respondent in its answer denies the commission of the
alleged unfair labor practices.
With all parties represented, the case was heard by
Trial Examiner Ramey Donovan in Steubenville, Ohio, on
December 13, 14, 15, 1967.
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is an Ohio corporation with its principal
office and place of business in Wintersville, Ohio, where it
is engaged in the business of operating a retail grocery
store. Annually, in the course of its operations,
Respondent derives in excess of $500,000 in gross revenues
from the retail sale of groceries, meats and related items.
Annually, in the course and conduct of its operations,
Respondent receives goods valued in excess of $10,000
directly from points located outside Ohio.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Local 590, and International Union of District 50,
United Mine Workers of America, herein District 50, are
labor organizations within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Sometime in June, 1967, Lutz, a Local 590 organizer,
began organizational efforts among Respondent's
employees.' In June, Lutz met with employee Lauretta
Rickey at her home and discussed Local 590 with her. She
received some authorization cards from Lutz and
thereafter gave cards to some fellow employees who
signed the cards and returned them to her.
During this same period in June, Lutz met with
employee Amelia (Millie) Zatezalo at her home. Zatezalo
was the District 50 steward at the Respondent's store.
'District 50 was the incumbent contracting union at Respondent 's store
with a contract that expired September 1, 1967.
MIDWAY CLOVER FARM MARKET 1041
According to Zatezalo, she asked employees Ronnie
Taylor and Lois Watkins to be present on this occasion
and they were. Ronnie Taylor is an employee at the store
and the son of James and Pauline Taylor! Lois Watkins
is an employee who, according to Pauline Taylor, ".. .
helps me in the store in anything that is to be done."
Watkins and' Ronnie Taylor are the only employees who
have keys to the office in the store.
Rickey testified without contravention that there was
supposed to be a meeting at Zatezalo ' s home regarding
Local 590, Although Rickey subsequently discovered that
the meeting had been held "for a certain few,"' Zatezalo
informed her that the scheduled meeting had been
cancelled. The reason for this as explained by Zatezalo to
Rickey was that Zatezalo "had talked to Jim [James
Taylor, coowner] and their attorney to find out and they
said they had just better drop it ." In short,
Respondent became fully aware that Local 590 was
endeavoring to organize its employees and Respondent,
quite early, made known that it was opposed to such a
prospect.
Local 590 filed a petition for certification with the
Board's Regional office on June 30 , 1967. On July 14,
1967, the Board's Regional Director issued a notice of
hearing on the petition to be held July 27. A Board
Decision and Direction of Election issued on August 8,
1967, and an election was held on September 13, 1967.'
The Examiner takes notice of well-established Board
procedure regarding the processing and handling of
petitions for certification. After the filing of a petition the
employer and other parties are informed of the fact. In
the situation of a valid petition, as here, the possibility of
all parties consenting to an election is explored by the
Board . Where a consent election is not feasible , a notice
of hearing is issued. We are therefore satisfied that
between June 30 and July 14 and thereafter, Respondent
was aware of the effort of Local 590 to attain bargaining
status in its store and was aware of the probability of an
election being held among its employees!
With the foregoing view of the inception of Local 590's
organizational effort and Respondent 's awareness thereof,
we now come to instances of specific conduct.
Williamson, a meatcutter, testified credibly that in June
or early July 1967, Sam Radakovich, Sr., manager of the
meat department and a supervisor, told him that "we"
should stick with District 50 and that with District 50 the
wages would be increased . Radakovich also said that work
conditions under Local 590 would be very exacting and
the employees would not be able to measure up to such
standards; he said that the employees should be "careful"
since "it would be rough" on the employees in their jobs.
Sometime in August, Radakovich gave Williamson a
union card and asked him to sign . Williamson signed it
'There are three owners of Respondent' s store. James Taylor is a
one-third owner, his wife Pauline is a one -third owner; and Sarah Flohr,
Mrs. Taylor's mother, owns the remaining third . Mrs. Flohr is president of
the corporation ; Pauline Taylor is first vice president; James Taylor is
second vice president; and Mary Blackburn is secretary-treasurer Mary
Blackburn is Mrs . Flohr's sister and the aunt of Pauline Taylor and she
works in the office at the store Pauline Taylor is manager of the store and
James Taylor participates actively in the business and its running
'Compare Zatezalo 's testimony , above, regarding the meeting in her
home and the attendance of Ronnie Taylor, Watkins and one or two
others.
'In the election there were 16 votes for Local 590; 12 for District 50; and
18 challenged ballots. At the election , Rickey was the observer for Local
590, Zatezalo for District 50, and Lois Watkins for the Company.
'Sec. 102.62; 102.63; 102.67, Board' s Rules and Regulations , Series 8, as
amended , revised January 1, 1965.
and returned it to Radakovich. Although, at the hearing,
Williamson could not recall the color or other details of
the card, he testified that he had glanced at the card and
believed that it was a District 50 card. He states that
previously he had signed a Local 590 card at his home. In
the light of the foregoing and testimony of other
witnesses , we are satisfied that Radakovich gave
Williamson a District 50 card as he did to some other
employees. Radakovich gave out no Local 590 cards and
he was opposed to its attaining bargaining rights at the
store. We find the supervisor's statements and conduct
aforedescribed to constitute violations of Section 8(a)(1)
and (2) of the Act.
Sometime in July or possibly August, Radakovich told
Rickey, an employee in his department, that she had a lot
to lose if Local 590 came in and that she would not stand
a chance because of her age. Rickey, 51 years old, was the
oldest meat wrapper in the department both age-wise and
in point of service. Although there is some indication that
this was said laughingly, there was another occasion
during this period when Radakovich said, in the presence
of Chemelovski, another meat department employee, that
Rickey was "too old to get another job if she ever lost her
job there. " On other occasions Radakovich had
expressed to Chemelovski and employee Wilks his own
opposition to Local 590 because of alleged onerous
working conditions that would ensue. These remarks were
prefaced by Radakovich's inquiry of the two employees
whether they had "heard anything" of Local 590. In
overall context, we believe that Radakovich's remark to
Rickey was a thinly veiled threat of detriment to her
because of her age and the detriment was described as
wholly dependent on the advent of Local 590 as
bargaining agent. Such statements are violative of Section
8(a)(1) of the Act and in a situation where there are
competing unions, it also constitutes assistance to District
50 in violation of Section 8(a)(2) of the Act.
Employee Speaks, a stockboy, had signed a Local 590
card; he spoke to some of his fellow employees about
signing Local 590 cards and secured several signed cards
as a result. In July, Pauline Taylor spoke to Speaks on
the loading dock at the store. Taylor remarked that "she
knew what was going on and she wouldn't like people
stabbing her in the back .... She said people were gonna
start disappearing." We find these statements constitute a
violation of Section 8(a)(1) of the Act.
Employee Wilks testified that a few weeks before the
election he was in the store one evening before leaving and
was talking to James Taylor and Radakovich. They asked
him where he was going. He said "to a union meeting."
Radakovich, then, according to Wilks "told me to vote
for District 50 and said or gestured as though to cut his
throat."`
On separate occasions James Taylor did tell employee
Mantos and employee Hammond that it did not matter
which union came in. This evidence, being favorable to
`Although the exact way this testimony appears in the transcript does
not affect the substance of the testimony , the Examiner has some question
about the accuracy of the transcript at this point For instance, after the
above-quoted testimony of Wilks, the Examiner is shown as stating that
the parties should pay no attention to the gesture of the witness As the
Examiner recalls it, the witness testified that Radakovich told him to vote
for District 50 and the witness made a silent gesture with his hand across
his throat The Examiner then described the gesture for the record In
other words, the witness simply made the gesture and did not say "and
gestured as though to cut his throat " The verbal description , we believe
was by the Examiner. But, as stated, the variation is not material as to
substance
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, is 'mentioned as part of the total picture but,
in our opinion, it does not obviate other instances in the
record of a different nature.
Hammond had a number of conversations with James
Taylor about the unions . As indicated, when Hammond
volunteered that he had signed a Local 590 card, he was
told that it would not make any difference on election
day. James Taylor also said that the dues for Local 590
were $50 or $60 and that it exacted money after an
employee worked more than 40 hours. On another
occasion , Taylor told Hammond that the people in the
meat department who were being "cute" would lose their
jobs after the election and that he could get "rough" also.
The election was held September 13, 1967. That
evening James Taylor, apparently because of the outcome
of the' election, said to Hammond, that the latter had
made a "big mistake" and had really "messed up" Taylor
and that the latter no longer considered Hammond his
friend. Taylor also said that if Hammond reported
anything to a union, Taylor would deny it and would get
him some day. Taylor showed Hammond a magazine
article unfavorable to the Amalgamated Meat Cutters
Union and asked if that was the kind of a union
Hammond wanted. Hammond reminded Taylor of his
statement that it did not matter which union came in.
Taylor replied, "you know very well which union I want
in, you really messed me up."
The foregoing, apparently motivated by a belief that
Hammond had voted for Local 590, includes a threat of
reprisal and rather clear hostility to Local 590, all of
which is inconcistent with any one time statement of
neutrality on the employer's part regarding the two
competing unions.
Mantos, an employee to whom the Taylors had once
said that it did not matter which union came in, was told
by the same persons, after the election, that if she had not
voted for Local 590 the whole matter would be settled and
she would be making more money. These remarks about
knowing how employees voted certainly conveyed an
impression to employees of some type of surveillance or
awareness of supposedly non-public information.
There is evidence that the District 50 steward, Zatezalo,
solicited several employees to sign District 50 cards while
they were working as cashiers at the checkout counters in
the store. Because of the prominence of the location where
this occurred, during working hours while customers were
being serviced, this conduct at least implied the support of
management for such activity.
Several meetings chaired by the District 50 steward
were held in the store's employee lunchroom during the
month or two prior to the election. Some were held at 4
p.m. and some at noon but extending slightly beyond the
lunch period. Supervision gave express permission for
employees to attend these meetings and working time was
in part used for such meetings. We do not regard this
evidence as particularly significant other than indicating at
least that Respondent was well disposed toward District
50. There were no outside union representatives present at
the meetings and they occurred while District 50 was still
the incumbent contract union. As far as appears, the
steward told those present that the contract was expiring
and dues would no longer be checked off and that the
employees would be on their own. There was talk back
and forth at the meetings about the two unions but overall
the contents of the meetings have no particular
significance.
We conclude that the record adequately supports a
conclusion that Respondent violated Section 8(a)(1) and
(2). Although there are many litigated incidents in the
record, not all of which we have described, they do little
more than add to an accumulation of evidence of
violations of the two aforementioned sections of the Act.
The complaint alleges that Respondent, on July 14,
1967, discriminatorily reduced Rickey's wage rate from
$1.55 to $1.45 per hour.
Radakovich commenced work as Respondent's meat
department manager on June 12, 1967. At the time
Rickey had been receiving $1.55 per hour. She testified
that she received this 10 cents extra (over $1.45) because,
in addition to her duties as meat wrapper, she had charge
of ordering lunch meats for the department. When
Radakovich came to the department he changed Rickey's
working schedule and she evidently regarded her new
schedule as less desirable than her former hours.
According to Rickey, this change of hours led her to
speak to Radakovich about a day after he had become
manager. She told Radakovich that with her new hours
she did not think it was fair that she should continue to
have the responsibility of the lunch meats, a responsibility
the other wrappers did not have, "even though I made a
small amount more than the other girls." Radakovich,
according to Rickey, replied that he would eventually take
over the complete ordering of lunch meats and Rickey
said, "all right." Rickey continued ordering lunch meats
until the week of July 14, at which time Radakovich took
over the task. As soon as this occurred, Rickey found in
her paycheck that she had been reduced to $1.45 per hour.
Although nothing had been said to Rickey to the effect
that she would lose the extra 10 cents when she ceased
ordering lunch meats and although she testified that she
would not have asked to be relieved of the lunch meat
responsibility if she had known that it would entail a wage
reduction, we do not find that Respondent's action was
illegal . The record indicates that Respondent's wage rates
were conservative and that its rank-and-file employees
were paid on pretty much of a quid pro quo basis. In
short, if you received 10 cents more that your coworkers it
was because you did something to earn it. Rickey knew
why she had received 10 cents more than the other
wrappers and when that reason no longer existed, due to
her own initiative to be relieved of lunch meats, she
suffered the consequence.
The Examiner is not in a position to decide these
matters on a basis of fairness or equity alone . It may well
be that because Respondent and its meat department
manager were aware of Rickey's alignment with Local
590 and were hostile to her because of that fact, they
welcomed the opportunity presented. But the occasion did
arise as a result of Rickey's original instigation. We
cannot say that if it had been another employee rather
than Rickey in the same situation, the wage would not
have been reduced. Such a possibility would be no more
than suspicion or surmise. We therefore recommend
dismissal of the allegation regarding Rickey.
James Speaks, Jr., commenced his employment with
Respondent as a stockboy in November 1965 while going
to high school. His hours were 4 to 10 p.m. Upon
graduation in June, 1967, Speaks began working from 8
a.m. to 4 p.m., 40 hours a week, and his wage was
increased from $1.40 to $1.55. He was 18 years old.
Speaks signed a Local 590 card and successfully
solicited several other employees to sign such cards. He
also attended two District 50 meetings, one in the store's
lunchroom in the latter part of June and one in the
Grange Hall in July. At the Grange Hall meeting,
Zatezalo, the District 50 steward, wished to have an
MIDWAY CLOVER FARM MARKET 1043
employee aligned with Local 590 removed from a District
50 committee. In conjunction with the Local 590 situation,
the steward also said that they were going to compare
signatures on employees' cancelled paychecks with
signatures on Local 590 cards to determine whether the
latter contained forgeries. Speaks stated at the meeting
that he had not signed his Local 590 card in the same
manner as he signed his paychecks. In the course of the
meeting, someone said that Local 590 would disappear
from the picture. Speaks said that he had heard the same
thing, referring to a conversation that he had with Pauline
Taylor on the dock at the store.
This last mentioned reference was to a conversation
Speaks had had previously in July with Pauline Taylor on
the dock. Taylor had told Speaks that she knew what was
going on and she would not like people stabbing her in the
back. She said people would start disappearing. Taylor
also told Speaks that she had been good to him and that
she had given him days off on request and that he had not
been obliged to ask for the raise he had received.
Not long after the meeting in the Grange Hall, above,
Zatezalo the District 50 steward , told Speaks that he was
going to be called to the office in the store. This
information proved to be correct and Speaks was
summoned to the office over the intercom in the store.
When he arrived , he found himself in the presence of
Pauline and James Taylor and Zatezalo : Pauline said to
Speaks that he was slacking off in his work and she could
not afford paying him his present wage when he was not
doing his work . Zatezalo spoke up on this occasion and
said that she was present because Speaks had said at the
District 50 meeting that Pauline Taylor had threatened
him. Apparently Speaks - made some rejoinder, or
attempted to, and Pauline Taylor remarked that he must
have an awfully guilty conscience "about something."
James Taylor said that he had been good to Speaks
regarding days off and a raise.
Following the above meeting , Speaks found that in his
next paycheck of July 14, 1967, his wage had been
reduced from $ 1.55 to $ 1.45 per hour . Some time later, in
a conversation between employee Hammond and James
Taylor about unions , Taylor remarked "about a certain
stockboy that thought he was pretty cute and lost ten
cents over it." In view of the union context of the
conversation and the evidence of Respondent 's attitude
toward Local 590, and Speaks' union activities, as well as
the lack of evidence that any other stockboy received a
wage cut, it is reasonable to conclude that Taylor was
referring to Speaks.
After Speaks became aware of his pay cut in July he
took the matter up with the representative of District 50
and Zatezalo, the steward for that union. Evidently as a
result of their intervention , Speaks ' wage rate was
restored and he was reimbursed at the end of 3 weeks.'
'Respondent's payroll summary sheets for the week ending as follows
show Speaks' weekly wage during the relevant periods. Thus, 7/8-$66.25;
7/22-$56; 7/29-$56.54; 8/12-$86.58 . The 8/12 period was for 40 hours
which , at $1.55 per hour, would be $62. The additional $22 represented
reimbursement for 7/22 and 7/29 when he had been paid the reduced rate
of approximately $ 1.45. Eleven dollars reimbursement for each of these
weeks made him whole for his loss. Although Speaks testified that after his
3-week restoration of pay he again reverted to a lower rate, the payroll
summaries in evidence do not bear this out. For the week ending 8/19
Speaks worked 40 hours and earned $62. This is also true of 8/29-$62. For
9/2 he worked 32 hours and earned $49 .60. The hours and the total
earnings for these three periods indicate a rate of $1 .55. Speaks' last pay
period 9/9 shows 38 hours , apparently including Labor Day when he
probably was paid extra for whatever hours he worked . The pay for this
The next event occurred on September 7, a week before
the scheduled Board election. As usual, Speaks came to
work at 8 a.m. James Taylor told him not to punch his
timecard because Pauline wanted to talk to him. Speaks
waited around and was soon called to the office. Pauline
and James Taylor and Zatezalo were present. Pauline
Taylor there said to him, "I hear you want two weeks
vacation. You can take your vacation and hunt for
another job." Speaks said nothing. James Taylor, who
was present, said that he was "through" with Speaks,
remarking about how well he had treated Speaks. As
Speaks was leaving, James Taylor said, "You know the
time you mouthed off at the union meeting, that is what
caused you your job."8 Speaks left the store and returned
on Saturday for his pay and departed. His pay did not
include pay for his "vacation." He secured a job with
another employer about a month and a half later. He
testified that he had never discussed vacations with either
Pauline or James Taylor.
The General Counsel has alleged that Speaks' cut in
pay in July was discriminatory and that he was discharged
discriminatorily on September 7.
Although Speaks was not a precise witness as to times
and dates of various incidents, much of his testimony was
not controverted by Respondent's witnesses. James
Taylor's sole testimony regarding Speaks was to deny that
he told him that his mouthing off at the union meeting
cost him his job. Pauline Taylor' s testimony regarding
Speaks was limited to stating that she had cut his wages
before she went on vacation in July. She testified to no
reason for this action. Her other testimony regarding
Speaks was that before school was out in June, Speaks'
father had spoken to her husband, James Taylor, about a
vacation for his son and Speaks himself had spoken to
employee Lois Watkins about a vacation. Pauline Taylor
states that in the office, in the presence of James Taylor
and Zatezalo, on the day that Speaks left in September,
she, Pauline, told Speaks who had been called to the
office between 8 and 9 a.m., that he could start his
vacation "right then." She states that Speaks was not
discharged and states that she did not tell him to look for
another job.' According to Pauline Taylor, Speaks did not
return to work after his vacation. Zatezalo, who was
present during the vacation conversation, gave no
testimony about it. James Taylor limited himself to
denying a remark attributed to him by Speaks.
As to the reason for Speaks' reduction in wage rate in
July, we have Speaks' testimony that Pauline Taylor told
him that he was slacking off in his work. Respondent's
last period was $71.30.
'Apparently a reference to the District 50 meeting in the Grange Hall
concerning which Speaks had subsequently been called to the office where
Zatezalo, steward , referred to his statement at the meeting that Pauline
Taylor had threatened him.
'While attending school from November, 1965 to June 6, 1967, Speaks
worked 4 to 10 p in , 40 hours a week. In the summer he worked 8 a.m. to
4 p.m., 40 hours , and after his graduation in June 1967. The District 50
contract provided for a paid vacation. Speaks was not paid for his
September vacation When questioned about Speaks, Pauline Taylor
testified that under the contract , an employee had "to be there [employed]
a year" to be eligible for a paid vacation She was then asked , "How long
had Jimmy Speaks worked for you. A It wasn't a question of how long he
had worked, it was a question of how long he had belonged to the Union."
The least that can be said is that this shifting of explanations is not very
convincing and ends up with an explanation which , if true, was an illegal
standard on its face since it indicates that membership in the Union was
the criteria for paid vacations . In view of the presumption that the contract
was not an illegal one, we are not prepared to conclude that any such
illegal provision existed . In fact , there is no such provision in the contract.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses give no reason for the reduction . Respondent, in
its brief, points to - the above testimony of Speaks. While
this may establish what Pauline Taylor told Speaks, it
does not establish that the assertion of Pauline was true
or, still less , that it was the motivation or reason for the
action . Respondent then cites its cross-examination of
Hammond , an employee who was one of the General
Counsel ' s witnesses and whose affidavit was used by
Respondent in cross-examination. Respondent asked
Hammond, "After school was out, he [Speaks] let up on
the work, didn't he? A. He might have let up a little bit."
Counsel then had the witness acknowledge his affidavit
and read from it as follows : "Speaks worked harder than
some of the employees but after school let out Speaks
seemed to let up ." The witness was questioned no further.
We therefore have his testimony that after school let out
Speaks "might have let up a little bit" and a statement in
the witness' affidavit that after school let out "Speaks
seemed to let up." Since Counsel resorted to the affidavit
after Hammond had responded to his question as
described above, counsel may believe that "seemed to let
up" is stronger than "might have let up a little bit."
Perhaps it is, but the - witness ' testimony is as described
and he was not asked whether his testimony or his
affidavit was the more accurate . All he was asked to do
was to read the excerpts from his affidavit into the record.
He did so and he was then excused as a witness.
We-do not regard the difference between the testimony
and the affidavit as significant . Both impress us as rather
insubstantial since one says "seemed to . . ." and the
other says "might have . . . ." The evidence shows in fact
that Hammond had little or no opportunity to know
whether Speaks "might have" or "seemed to" let up in his
work in the period after they had both graduated from
school together on June 6 , 1967. After graduation,
Hammond worked the night shift , 4 to 10 p.m. and
Speaks worked the day shift , 8 a.m. to 4 p.m. It was only
"once in a while when there was a truck to unload or
something" that Hammond might work an hour or so
during the day.
It is reasonably clear that there is actually no
convincing evidence that'Speaks did slacken in his work in
the period after his June 6 graduation . If, contrary to the
evidence; we assume that there was some slackening after
June 6, there isno evidence as to whether this condition
existed from June 7 to July 14 or whether it suddenly
arose a few days before Speaks was summoned to the
office in July . The unexplained timing of the cut in wages
of a Local 590 a6tivist in the midst of the organizing
effort of that union cannot be ignored , particularly in view
of other circumstances previously described , e.g. Pauline
Taylor's conversation with Speaks in which she mentioned
stabbing her in the -back and that people would begin
disappearing ; Speaks' statement at the District 50 meeting
which was reported to the Taylors; and the fact that, when
Speaks was called to the office and was accused for the
fi'rstAime of slackening his work , it was in the context of,
and in the presence of, Zatezalo who said she was there
because Speaks had said at the Union meeting that
Pauline Taylor had threatened him.
It is our opinion that the alleged charge of slackening
in work and the cut in wages was a reprisal and a warning
to Speaks for his Local 590 activity and particularly his
statement about being threatened by Pauline Taylor. The
uncontroverted - truth of Speaks' statement and the fact
that it was made in the course of a union meeting place it
in the area of protected activity under Section 7 of the
Act. The wage reduction because of such activity by
Speaks was therefore in violation of Section 8(a)(1) and
(3) of the Act. The conclusion is the same if, arguendo, an
additional reason or a co-reason was some slackening of
work on the part of Speaks.
Regarding the circumstances of his alleged termination
on September 7, we credit Speaks. Pauline Taylor did not
impress the Examiner as a candid witness. Since we credit
Speaks, we believe it is clear that he was terminated on
September 7, a week before the Board election, because of
his Local 590 affiliation and activities. Pauline Taylor's
version that he was simply given a vacation and was not
told to look for another job is not convincing . The first
day of Respondent's pay period is Wednesday and the last
day is Tuesday. Allegedly, because in June while Speaks
was still in school, his father had spoken to Pauline
Taylor's husband about a vacation for Speaks and because
Speaks had talked to Lois Watkins about a vacation,
Taylor, suddenly, on September 7, Thursday, summoned
Speaks to the office. The setting is scarcely routine for
such a simple thing as granting a vacation since, in
addition to Pauline, James Taylor and Zatezalo, the
steward for District 50, are also present. Speaks had just
reported for work when he was summoned to the office.
Then, according to Pauline Taylor, she tells him forthwith
that his vacation starts "right then." It is of course neither
the end of a pay period nor any other normal time for
scheduling a vacation but is a day after the employee had
commenced a new pay period. Moreover, even the most
modest or routine vacation , in our opinion , requires some
advance knowledge to plan how the vacation is to be used
or at least knowledge that next week or a few days hence
the recipent of the vacation will be on vacation.'° But
Speaks is told to commence his vacation forthwith; in
fact, he was in effect placed on vacation while standing in
the office. These circumstances, in our opinion, are
consistent not with the simple granting of a normal
vacation but with Speaks' testimony that he was told to
take his vacation and look for another job. Confirmation
is furnished by the fact that Speaks received no vacation
pay although he had worked 40 hours a week since 1965;
and Pauline Taylor's vacillating attempts to explain this
situation further convince us that Speaks was indeed
discharged. We find a violation of Section 8(a)(1) and (3)
of the Act.
Stewart Prindle had worked for Respondent from
November 1966, until September 13, 1967, after the
Board election on the 13th. He was an apprentice
meatcutter and his work consisted principally of grinding
meat for hamburg, meat loaf, and such things.
Radakovich was hired as manager of the meat
department on June 12, 1967. He had 39 years experience
as a meatcutter. Shortly after he took charge of the meat
department, Radakovich told Pauline Taylor that "you
will have to get him [Prindle] out of the meat department,
he does not belong here." On June 15, 16, and 29, 1967,
the store ran a newspaper advertisement for an
"experienced meat cutter."
A few weeks before the September election,
Radakovich passed out District 50 cards to employees in
the meat department, including Prindle. The latter put the
card in his pocket without comment. What others did with
their cards at the time does not appear. At some
undetermined time , Prindle states that he signed a Local
590 card. This was the extent of his union activity. He
neither attended Local 590 meetings or asked others to
"The contract provides that as far as possible vacations will be granted
at the time most desired by the employee.
MIDWAY CLOVER FARM MARKET 1045
sign Local 590 cards. He told no one that he supported
Local 590 or that he would vote for it.
About 5 p.m. on September 13, when Prindle was
getting ready to punch out, Radakovich told him that he
would no longer need him in the meat department. He
told Prindle to see Pauline Taylor. Prindle spoke to
Taylor. She said business was down. She offered Prindle a
job that would be available October 1, in the store
stocking shelves from 10 p.m. to 7 a.m. The pay for that
job was $1.45 as compared to Prinple's pay in the meat
department of $2. Prindle did not return thereafter to
accept the offered job.
Radakovich testified that he let Prindle go on
September 13, because he had had previously interviewed
an experienced meat cutter named Morris. When Morris
became available, Prindle was let go. The Examiner
credits Radakovich. Morris is an experienced meatcutter
and was hired. It is fairly clear from the record that
Prindle was not an experienced journeyman meatcutter
but possessed limited ability to perform certain more or
less routine tasks in the department. Both Radakovich and
Pauline Taylor deny knowing that Prindle favored -or
assisted Local •590.
The allegation of the General Counsel that Prindle was
constructively discharged is, in our opinion, not sustained
by substantial evidence. We recommend dismissal of the
allegation.
Representation Case Issues
In the Board election on September 13, 1967, a number
of voters were challenged. Certain of the challenges were
resolved by the Regional Director of the Board under
whose supervision the election was conducted. The
following challenges are before the Examiner pursuant to
the consolidation of the unfair labor practice case with the
representation case for the purpose of hearing and the
making of findings and decisions by the Examiner:
Thomas Wilks was employed in the meat department at
the store in the latter part of June 1967. He had had
previous experience as a meatcutter in another store. At
the time he was hired, Radakovich discussed with him the
possibility of his continuing to work after he returned to
college in the fall.- Wilks at this time expressed a
willingness to work on weekends after he returned to
college but pointed out that, since he did not yet know his
college schedule, a great deal would depend on his
schedule. Overall, Wilks definitely manifested an interest
in continuing to work for Respondent after he returned to
college. Radakovich expressed confidence that the matter
could be worked out to the satisfaction of both parties,
the store and Wilks.
Wilks worked from June until October 2 or 3, when he
returned to school. In September, he had voted in the
election. After returning to school he spoke to
Radakovich about working on weekends as previously
discussed when he was first hired. The latter said he
needed a full-time employee and had someone coming in
in a few days; he told Wilks that if the store needed
someone on weekends he would get in touch with Wilks.
Wilks has not been called.
Since Wilks was hired and worked under a reasonable
understanding that arrangements, although somewhat
contingent, could be worked out so that he could and
would continue to work part time after his return to
college, we find him to have been an eligible voter on
September 13.
The 11 other challenged voters are also involved in an
allegation in the unfair labor practice case. It is alleged in
the latter that the I l employees were added to its payroll
by Respondent for the purpose of defeating Local 590 in
the election of September 13, all in violation of Section
8(a)(1) of the Act. In view of the intermeshed nature of
the unfair labor practice allegation, regarding the II
persons, with the representation issue of their challenged
ballots, we are considering both matters in this portion of
our decision.
Before departing on a long-planned European vacation
for Pauline and James Taylor for the period July 17 to
August 9, 1967, Pauline left a list of people with Mary
Blackburn, the bookkeeper who was also an officer of the
corporation. Blackburn was to be in charge of the store
during the absence of the Taylors. She is the aunt of
Pauline Taylor and the daughter of Sarah Flohr who is
the third co-owner of the store with the Taylors. At least
six or eight or more names were on the list. The list was
not available at the hearing and neither Pauline Taylor
nor Blackburn could testify as to the precise number
thereon. Blackburn's instructions were to hire the people
on the list if she needed them.
Since the petition for certification by Local 590 had
been filed on June 30, 1967 and a notice of hearing
thereon issued on July 14, we are satisfied that the
Taylors and Blackburn and others associated with the
Company were aware of a potential contest regarding
representation of their employees by Local 590 or District
50, the incumbent union . In view of the filing of the
petition, such a contest could be resolved only by a Board
election.
Denzil Hoover became an employee of Respondent's
for the first time on July 28; 1967. The son of Pauline and
James Taylor, who is a employee in the store, is married
to the daughter of Denzil and Mary Hoover. Hoover, in
July, 1967, was a permanent full-time employee of
Weirton Steel Company where he has been employed- for
29 years. In July he was on a 4-week vacation that ended
the second week in August. He testified that he came to
work in response to a request from Sarah Flohr, co-owner
and mother of Pauline.' While working at the store he
handled beer, "cashed some checks" and stocked some
cigarettes. For the payroll periods from August 2 to
September' 13, 1967, he is shown to have averaged
approximately 13 hours each week. He last worked as a
store employee in October, 1967.
Mary Hoover is the wife of Denzil. She came to work
in the store in July at the same time as her husband. Her
testimony is that she had no regular scheduled hours of
work and she came to the store when called. She could
not recall having worked at the' store at any time except
when her husband was there. For the same period as
Denzil, above, Mary Hoover is shown as averaging about
13 hours a week. Sarah Flohr had asked her to come to
work.- Neither of the Hoovers had filed or made
applications for employment. Mary Hoover, when at the
store, cashed checks and "gave out change." She ceased
working in October, 1967. Prior to this interlude at the
store, Mary Hoover, a woman of middle age ," had never
worked anywhere in her life and has not worked since.
Edith Flohr is' Pauline Taylor' s aunt . Prior to July 28,
1967, she had never worked at the store. According to
Pauline Taylor, Edith Flohr cleans the upstairs office.
"Pauline testified that her mother had called some people that were on
the list left by Pauline when she went on vacation.
"The record shows her to be a grandmother.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apparently she also does some other cleaning. Flohr is
"over sixty two" according to Pauline Taylor and she is
on Social Security. There is no evidence that she had
made an application for employment. For the payroll
periods, August 2 to September 13, 1967, she is shown as
averaging approximately 13 hours a week. The last check
paid to her by the store was November 17, 1967. She
received a check for $9.12 the week of October 14, 1967,
but her timecard was not punched.
James Blackburn is the husband of Mary Blackburn
and the uncle of Pauline Taylor. He has a full-time job
with Wayne Township, 5 days a week. Mary Blackburn
testified that her husband worked at the store only while
the Taylors were away, July 17-August 9." Since Mary
Blackburn was the bookkeeper in the store, was in charge
of the store during the Taylor's vacation, and hired the 11
employees involved, her foregoing statement of the period
an employee worked, especially when the employee was
her husband, is apparently correct. However, the payroll
summary sheets of Respondent show James Blackburn as
also working in the following payroll periods: 8/26/67-10
3/4 hours; 9/2/67-12 hours; 9/9/67-10 3/4 hours;
9/16/67-11 1/2 hours. From other testimony in the
record, discussed below, it would appear that James
Blackburn was shown as working in periods when he was
not, simply to lend authenticity to his alleged status as a
regular employee.
Mary Blackburn testified credibly that in the weeks
ending September 20, 27, and October 4, 1967, she
punched in and out the timecards of James Blackburn,
Denzil Hoover, Mary Hoover, and Edith Flohr, when
these people were actually not at work. She testified that
she did this at the instruction of Pauline Taylor. In fact,
Mary Blackburn stated that in addition to doing the
foregoing in the above-mentioned periods, she had
engaged in the same practice on James Blackburn's
timecard for 3 or 4 weeks previous although he was not
actually working.
Although it does not meet the issue revealed by the
foregoing evidence, Respondent cites the beer episode as a
reason for the hiring of new employees around the latter
part of July, 1967.
About July 26, Speaks, an 18 year old employee, raised
the question of why he should have to handle beer in the
store when it was illegal for one of his age to do so. Mary
Blackburn, when the matter was brought to her attention,
did not know the answer. She consulted the store's
accountant and the store's local beer distributor and
Respondent's attorney. The latter contacted the Ohio
Department of Liquor Control and the law was found to
be that no employee under 21 years of age could handle
beer or wine with an alcoholic content of over 3.2 percent.
The beer sold by Respondent exceeded 3.2 percent.
Therefore, since Mary Blackburn testified that the store
had 12 employees under 21 who handled beer, she hired
some additional employees over 21 to handle the beer.
Confining ourselves at this point to the four employees
we have been describing, only James Blackburn and
Denzil Hoover, are shown to have done any beer handling
at the store. Mary Hoover and Edith Flohr were not beer
handlers. Moreover, Denzil Hoover and James Blackburn,
when Mary Blackburn was punching their timecards for at
least 3 weeks when they were not at work, were not
handling beer during such periods but the beer apparently
"For the payroll period ending July 26 to the payroll period ending
August 16, hours worked by James Blackburn, as cited in Respondent's
brief, averaged 10 for each payroll period.
was handled in spite of their absence. It is to be borne in
mind also that the alleged beer crisis was wholly
fortuitous. At the time Pauline Taylor gave Mary
Blackburn the list of hirees or potential hirees before
leaving for vacation on July 17, there was no beer episode
and none was anticipated. In view of all the circumstances
previously described, including the falsification of
timecards, it is a fair conclusion that Mary and Denzil
Hoover, Edith Flohr, and James Blackburn would have
been hired and placed on the payroll sometime around the
same period in any event. Employees whose timecards
were punched for 3 weeks or longer when they were not at
work were obviously not hired because their services or
the work they performed were essential or because of the
beer situation.
On the evidence considered up to this point, we find
that the complaint allegation that various named
employees were added to Respondent's payroll to defeat
Local 590 in the prospective election is sustained by the
evidence, at least with respect to four employees. The
falsification of timecards was part and parcel of the
foregoing since it was an attempt to lend authenticity to
the facade that these employees were working regularly as
employees and would be thus qualified voters. We find a
violation of Section 8(a)(1) of the Act because of the
interference with the rights of employees set forth in
Section 7 of the Act.
As to the challenged ballots of the four employees
above-mentioned, we recommend that the challenges be
sustained. The Hoovers, Edith Flohr, and James
Blackburn were neither regular full-time nor regular
part-time employees. At best they were temporary, casual,
indeed very casual, part-time employees with no
community of interest with other regular part-time or
full-time employees.
Gary Blackburn is the son of Mary Blackburn. He first
came to work in the store on July 27, 1968. At that time
and at the time of the hearing he had a full-time job, 5
days a week, at Titanium Metals Company. His work at
the store was handling beer and he performed the beer
handling formerly performed by the 18 year old Speaks.
The amount of time actually devoted by Blackburn to
beer handling each day was not great, but, such work as
was required, he apparently performed. Thus, he might
finish work on a particular day in less than 2 hours but
was paid for 2 hours. This minimum of 2 hours pay was
required under the terms of the District 50 contract. For
the pay periods ending August 2 to September 20, 1967,
Blackburn is shown an averaging about 12 1/2 hours per
pay period. Thereafter, to December 6, he averaged
approximately 8 1/2 hours.
Although Blackburn's family relationship no doubt
entered into his being hired, the evidence indicates that he
came in as a regular part-time beer handler and that he
performed the beer handling that Speaks, an 18-year-old
employee, formerly took care of. It is true, as the General
Counsel points out, that the State Liquor Control
Commission never inspected or took steps regarding
Respondent's beer operation but we cannot say that
Respondent did not act reasonably and prudently in
relieving minors of beer handling chores and having the
beer handled as prescribed by the State law. We believe
that Gary Blackburn was an eligible regular part-time
employee and we recommend that the challenge to his
ballot not be sustained.
Carol Taylor is the wife of Ronald Taylor, an employee
who is also the son of Pauline and James Taylor, and the
grandson of Sarah Flohr. The Taylors and Sarah Flohr
MIDWAY CLOVER FARM MARKET
are the owners of the store . An employee testified at the
hearing that 3 years ago she had seen Carol Taylor
operating a'cash register at the store . Mary Blackburn
testified that Carol Taylor was hired on July 26, 1967, to
help her in the office and that Taylor was still working at
the store . Employee Plotts testified that Carol Taylor had
cashed a check for her at the store . Plotts states that at
the time Carol Taylor had her two 3- or 4-year-old
children with her. Carol Taylor' s timecard for the August
week shows - no time punched in or out . Mary Blackburn
wrote 12 hours on the timecard and Taylor was paid for
that time . Blackburn 's explanation is that she, Blackburn,
was so instructed . For the payroll periods from August 2
to December 6, 1967, Carol Taylor is shown as averaging
approximately 14 1/2 hours per week.
The rather` limited evidence regarding Carol Taylor
gives rise,to some questions but on the whole she appears
to qualify as a regular part-time employee. We
recommend that the challenge to her ballot be overruled.
Donna Dalrymple was hired on July 27, 1967. Mary
Blackburn testified that this employee was hired to help at
the cash registers and to sack beer that could no longer be
handled by under age employees . She was still working at
the time of hearing . Employee Rickey testified that
Dalrymple's husband is a salesman for a novelty company
that sells display items to the store . Rickey states that she
has seen Dalrymple working- at the store on display items
at various times . For-the payroll periods from August 2 to
December 6, 1967, Dalrymple is shown as averaging
approximately - 18 hours per week . In our opinion,
Dalrymple qualifies as a regular part-time employee. It is
recommended that the challenge to her ballot be
overruled.
Stella Vojvodich was hired July 27, 1967, and was still
working at the time of the hearing . She is the sister of
employee Amelia Zatezalo . Her work consisted of bagging
groceries and she evidently was qualified to bag beer. For
the payroll periods from August 2 to December 6, 1967,
this employee averaged approximately 10 1 /2 hours per
week. In our opinion , Vojvodich qualifies as a regular
part-time employee and it is recommended that the
challenge to her ballot be overruled.
Carole Barcus was hired July-28, 1967 to work in the
produce department. According to Mary Blackburn, there
were two girls "out of produce at the time. One was
Zatezalo, who was on a 2-week vacation, and a girl
named Rita who was evidently ill." For the payroll period
August 2 to September .20, 1967, Barcus worked 12 hours
per week . As far as appears she did not work beyond the
September 20 payroll period.
Although Barcus worked regularly for about 8 weeks
on a part-time basis, the evidence indicates that her
employement was relatively brief and of a temporary
nature, the latter being attributed to the fact that two
employees in produce were, respectively, on a 2-week
vacation and on sick leave." Because of the brief and
temporary nature of her employment , we recommend that
the challenge to the ballot of Barcus be sustained.'
"Mary Blackburn testified that three employees had quit in July and
that two employees were on sick leave , Rose Zende and Ruth
Weatherhead . Earlier she had stated that Rita was on sick leave . It is not
clear whether Rita and Ruth are the same or different persons.
"Blackburn testified that product employee Ruth Weatherhead worked
only a few hours in July and was on sick leave that month
"The September 30, 1967 payroll summary credits Barcus with 12 hours
although there is no timecard for the period and no evidence,or claim that
she actually worked in the period.
1047
Sam Radakovich, Jr., is the son of the manager of the
meat department. He was hired on August 1, 1967 as a
stock boy to stock shelves and carry out groceries." After
school started he worked on weekends, including Sundays.
He was still employed at the time of the hearing. For the
payroll periods from August 2 to December 6, 1967, he
averaged approximately 7 hours per week.'s This employee
appears to be on the whole a regular part-time employee
and it is recommended that the challenge to his ballot be
overruled.
Rose Zende commenced working at the store in
November, 1966. She stocked shelves, ordered
merchandise, and performed other assigned tasks. The
witness testified that she has "had polio" all of her life
and that in May, 1967, it became evident to her physician
that a condition of mechanical arthritis in one of her feet
had reached a point where surgery was necessary. Zelde
worked until about June 3, 1967 and has not worked since
that time. She then left to have an operation performed
with the understanding from her employer that she would
return to work after surgery. At the hearing she testified
that it had been 6 months since the operation on her foot.
She wore a cast for 3 months after the operation. The cast
was removed September 15. Her physician advised that it
would require another month for her to learn to use her
foot again. She testified that she has "only been walking
good one month." Then, her physician advised that a
similar operation would be necessary on her other foot
and this was scheduled for January, 1968. The witness
believed that the second operation would entail a period of
post-operative convalescence comparable to her original
operation on the other foot.
The evidence indicates that the employee and the
employer expect that Zende will return to work after her
second operation and when she is able. Under the
circumstances we regard this employee as being a regular
employee who is on sick leave. We recommend that the
challenge to her ballot be overruled.
Miriam Evans, in early July, 1967, had spoken to
Pauline Taylor about a job.1° Taylor told her that because
of employee vacations or possible illness there would be a
need for part-time help. Evans' testimony indicates that
because of circumstances at her home, Evans, who had
quit a full-time job in May, was interested only in a
part-time job.
On July 19, 1967, Mary Blackburn told Evans to report
for work to help in the produce department where one
employee was ill and another on vacation. Evans came to
work and apparently one of her principal duties had to do
with the receipt and stocking of frozen foods. For the
payroll periods July 19 to December 6, 1967, Evans had
averaged approximately 15 hours per week. She was still
employed at the time of the hearing. It is our opinion that
she was a regular part-time employee and that the
challenge to her ballot should be overruled.
Other than with respect to Edith Flohr, Mary and
Denzil Hoover , and James Blackburn, earlier discussed, it
is our opinion that the preponderance of the evidence does
not sustain the allegation that various challenged
employees were added to the payroll to defeat Local 590
in the election. There is room for suspicion along these
lines with respect to certain employees but on the whole
we do not find that the the evidence is substantial enough
"Another son of Radakovich also works at the store
"The average is affected by the fact that for 3 weeks in October and 1
or 2 weeks in November , Radakovich, Jr, worked no hours at the store.
"About 3 years previously Evans had worked for a few days at the store.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to support the conclusion that but for the election they
would not have been hired. If the employer believed that
these employees were favorably disposed to the employer
and would support its position regarding the election, this
is not in itself illegal if the employees are shown to have
qualified as regular bona fide employees.
CONCLUSIONS OF LAW
As set forth and found hereinabove Respondent has
violated Section 8 (a)(1) and (2) of the Act.
Also, as set forth and described, Respondent did not
violate Section 8(a)(1) and (3) by reducing the wage of
employee Rickey. Respondent did violate Section 8(a)(1)
and (3) of the Act by reducing the wage of employee
Speaks and by thereafter terminating his employment.
Respondent did not violate Section 8(a)(1) and (3) of the
Act by terminating the employment of employee Prindle.
accordance with and as set forth in the section of this
Decision entitled, "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, all payroll and other records
necessary to compute the earnings of Speaks if he had not
been discharged.
(c) Post at its store in Wintersville, Ohio, copies of the
attached notice marked Appendix." Copies of said notice,
on forms provided by the Regional Director for Region 8,
shall, after being signed by Respondent, be posted by it
for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by other material.
(d) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Decision,
what steps Respondent has taken to comply therewith."
THE REMEDY
It is recommended that Respondent cease and desist its
interference with the rights of its employees as guaranteed
in Section 7 of the Act and that it cease assisting District
50 in violation of the Act.
Further recommended is that Respondent offer to
employee Speaks immediate and full reinstatement to his
former or substantially equivalent position, without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings suffered by
reason of the discrimination against him by payment of
the amount of money he normally would have earned
from the date of his discharge to the date of the offer of
reinstatement , less his net earnings during said period,
with backpay computed on a quarterly basis with interest
at 6 percent. F. W. Woolworth Company, 90 NLRB 289;
Isis Plumbing & Heating Co., 138 NLRB 716.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions , and conclusions of law, and upon the entire
record , it is recommended that Respondent, Midway
Clover Farm Market, Inc., its officers, agents, successors,
and assigns , shall:
1. Cease and Desist from:
(a) Interfering with and threatening employees illegally
with regard to their right to join or assist Local 590 or
any other union of their choice; or giving employees the
impression of surveillance of their union activities.
(b) Assisting illegally District 50 or any other union.
(c) Discouraging union activity of its employees by
discharging an employee because of union activity or
affiliation.
(d) Adding employees to its payroll for the purpose of
influencing the outcome of a Board election and falsifying
attendance or work records pursuant to the
aforementioned purpose.
(e) In any like or related manner , interfering with,
restraining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer James Speaks, Jr., immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he
may have suffered by reason of his discharge, in
'"In the event that this Recommended Order be adopted by the Board,
the words , "a Decision and Order" shall be substituted for the words, "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order be enforced by a decree of the United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order be adopted by the Board
this provision shall be modified to read "Notify the 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 Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act (as amended) we hereby notify our
employees that:
WE WILL NOT interfere with or threaten our
employees illegally with regard to their right to join or
assist Local 590, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO or any
other union of their choice.
WE WILL NOT give employees the impression that we
have their legitimate union activities under surveillance.
WE WILL NOT illegally assist or aid District 50,
United Mine Workers of America, or any other union.
WE WILL NOT discourage union membership or
activity of employees by discharging employees because
of such union membership or activity.
WE WILL offer to employee James Speaks, Jr.
immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to
his seniority or other rights and privileges previously
enjoyed, and we will pay to James Speaks, Jr., with
interest at 6 percent, any wages he has lost from the
date of his discharge to the date of our offer of
reinstatement.
All our employees have the right to join or assist any
union of their choice or to refrain from any or all such
activities except to the extent that such rights might be
affected by a lawful contract requiring membership in a
MIDWAY CLOVER FARM MARKET 1049
union as a condition of employment as authorized in d th l Milih l i A t U ii h S i S versae ect ve erv ce c an e n taryt etSection 8 (a)(3) of the National Labor Relations Act.
w
Training and Service Act, as amended , after discharge
Dated By
MIDWAY CLOVER FARM
MARKET. INC.
(Employer)
(Representative) (Title)
from the Armed Forces.
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.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
Note: Notify the above-named employee if presently directly with the Board ' s Regional Office , 1695 Federal
serving in the Armed Forces of the United States of his office Building , 1240 East Ninth Street , Cleveland, Ohio
right to full reinstatement upon application in accordance 44115, Telephone 522-3715.