New Star Markets, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1966

157 N.L.R.B. 467 (N.L.R.B. 1966)

NEW STAR MARKETS, INC 467
DETERMINATION OF THE DISPUTE
Pursuant to Section 10 (k) of the National Labor Relations Act, as
amended, and upon the basis of the foregoing findings and the entire
record in this proceeding, the National Labor Relations Board makes
the following Determination of the Dispute
1 Machinists employed by The Evening Star Newspaper Company,
who are represented by Washington Lodge No 193, District Lodge
No 67, International Association of Machinists, AFL-CIO, are en-
titled to perform the work of draining and replacing oil in the Employ-
er's halfdeck presses at its place of business in Washington, D C , while
completing the halfdeck repair program currently being carried out
2 Newspaper Web Pressmen's Union, Local 6, International Print-
ing Pressmen and Assistants' Union of North America, AFL-CIO, is
not entitled, by means proscribed by Section 8 (b) (4) (D) of the Act,
to force or iequire The Evening Star Newspaper Company to assign
the above work to pressmen
3 Within 10 days from the date of this Decision and Determination
of Dispute, Newspaper Web Pressmen's Union, Local 6, International
Printing Pressmen and Assistants' Union of North America, AFL-
CIO, shall notify the Regional Director for Region 5, in writing,
whether it will or will not refrain from forcing or requiring The Even-
ing Star Newspaper Company, by means proscribed by Section 8 (b)
(4) (D) of the Act, to assign the work in dispute to pressmen rather
than to machinists
New Star Markets , Inc. and Local No 229, Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO.
Case No 921-CA-6745 March 8,1966
DECISION AND ORDER
On November 29, 1965, Trial Examiner Irving Rogosin issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion Thereafter, the Respondent filed exceptions to the Trial Exami-
ner's Decision, supported by an accompanying memorandum 1
i The Respondent limited its exceptions to the remedy recommended by the Trial lix
aminer As urged by the Respondent contrary to the Trial Examiner we shall not order
the Respondent to reinstate Raul Alvarado inasmuch as the parties stipulated at the
hearing that he has been reinstated Otherwise , we find no merit in the Respondent's
exceptions
157 NLRB No 41
221-374-66-vol 157-31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to 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 case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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 Deci-
sion, the exceptions and memorandum, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified hereinafter.
The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete paragraphs 2(a) and 2(b) and substitute the following
for paragraph 2 (a) :
["(a) Make whole Raul Alvarado for any loss of pay suffered by
him, in the manner set forth in the section of the Trial Examiner's
Decision entitled `The Remedy.' "
[2. Reletter subsequent paragraphs.
[3. Substitute the following for the fourth indented paragraph of
the notice :
WE WILL make whole Raul Alvarado for any loss of pay he may
have suffered by reason of the discrimination against him.
[4. Delete the Armed Forces paragraph in the notice.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under the National Labor Relations Act, as amended (61 Stat. 136,
73 Stat. 519 , 29 U.S.C. Sec. 151, et seq.), herein called the Act, is based upon a com-
plaint issued July 28, 1965, alleging that New Star Markets, Inc., herein called
Respondent , has engaged in unfair labor practices within the meaning of Section 8
(a) (1), (3), and ( 5) and Section 2(6) and (7) of the Act .1
Specifically, the complaint alleges that Respondent ( 1) on or about May 29, 1965,
laid off Raul Alvarado and has since failed and refused to reinstate said employee,
because he joined or assisted the Union or e.gaged in other concerted protected
activities ; ( 2) since on or about May 14, 1965, has refused to bargain collectively with
the Union as exclusive representative of employees in an appropriate unit, concerning
the layoff and refusal to recall said employee; and (3), by the foregoing acts, has inter-
fered with , restrained , and coerced employees in the exercise of rights guaranteed in
the Act, thereby engaging in unfair labor practices within the meaning of Section
8(a)(1), (3 ), and (5) of the Act.
Respondent's answer admits the jurisdictional allegations of the complaint, the
status of the union as exclusive collective-bargaining agent of the employees in an
appropriate unit, but generally denies the remaining allegations in the complaint.
Pursuant to notice duly served , a hearing was held before Trial Examiner Irving
Rogosin , on October 14, 1965, at El Centro, California. The parties were represented
by counsel or a lay representative , were afforded full opportunity to be heard, to
examine and cross-examine witnesses , to introduce evidence , oral and documentary,
relevant and material to the issues, to argue orally, and to file briefs and proposed
findings of fact and conclusions of law. The parties declined to argue orally but the
I The original charge, filed June 3, 1965, was served the same day.
NEW STAR MARKETS, INC. 469
General Counsel 2 filed a brief and proposed findings of fact and conclusions of law,
on November 17, 1965. The proposed findings of fact and conclusions of law are
adopted to the extent they are consistent herewith.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, and Respondent's answer admits, that New Star Markets,
Inc., is a corporation engaged in the retail sale of groceries at two supermarkets
located in El Centro, California.
Respondent derives annually from its business operations a gross revenue in excess
of $500,000. Additionally, Respondent purchases and receives goods annually valued
in excess of $50,000 from Orange Empire and Certified Grocers, concerns located in
the State of California, which in turn receive said goods directly from points outside
the State of California.
Upon the basis of the foregoing, including the admissions in Respondent' s answer,
it is hereby found that Respondent is, and at all times material herein has been, an
employer engaged in commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 229, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. Discrimination in regard to hire and tenure of employment of Raul Alvarado
At the outset of the hearing, Respondent moved to amend its answer to the com-
plaint by (1) admitting that it laid off Raul Alvarado on or about May 29, 1965,
without regard to his seniority, and thereafter failed and refused to reinstate him
because he had joined or assisted the Union or engaged in other concerted activities,
but affirmatively alleging that he was reinstated to his former position on August 23,
1965; and (2) affirmatively alleging that since August 23, 1965, and particularly in
September, and again on October 4, 1965, Respondent notified the Union in writing
that in the event of future layoffs, it would adhere to the principle of seniority.
Thereupon, it was stipulated by the parties that said Raul Alvarado was reinstated to
his former position on August 23, 1965, without prejudice to his seniority or other
rights and privileges, and that, on October 4, 1965, Respondent notified the Union that
future layoffs would be made on the basis of seniority.
It has been stipulated, in accordance with the amendment to Respondent' s answer,
and it is, therefore, found that, on or about May 29, 1965, Respondent laid off Raul
Alvarado, without regard to his seniority, and thereafter failed and refused to rein-
state him to his former or substantially equivalent position, until August 23, 1965,
because he joined or assisted the Union or engaged in other concerted protected
activities for the purposes of collective bargaining or other mutual aid or protection.
By the foregoing conduct, Respondent had discriminated in regard to the hire and
tenure of employment of said employee to discourage membership in a labor organiza-
tion, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (3 )
and interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in the Act in violation of Section 8 (a) (1).
B. The refusal to bargain
1. The appropriate-unit and representation of majority therein
The complaint alleges , and Respondent's answer admits, that the following employ-
ees constitute an appropriate unit for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time butcher workmen and meatcutters and
their apprentices at the Employer's El Centro, California, stores, excluding
grocery clerks and grocery cashiers, office clerical employees, professional
employees, guards, and supervisors as defined in the Act.
2 All references herein to the General Counsel are to trial counsel appearing at the
hearing.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 14, 1965, pursuant to a Decision and Direction of Election , issued by the
Regional Director of Region 21, on April 8, 1965, in New Star Markets , Inc., Case
No. 21-RC-9432 , the Union was certified as the exclusive collective -bargaining repre-
sentative of the employees in said appropriate unit.
Since May 14, 1965, and continuing to date, the Union, by virtue of said certifica-
tion, has been the representative for the purposes of collective bargaining of a majority
of the employees in the above described unit, and, by virtue of Section 9(a) of the
Act, has been , and is now, the exclusive representative of all the employees in said
unit for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment , and other terms and conditions of employment . Since said
date, Respondent concedes , it has been under an obligation to bargain with the Union
as the exclusive collective-bargaining representative of the employees in the appro-
priate unit above described , concerning wages, hours, or other terms and conditions of
employment, specifically layoffs, and the method of selection of employees for layoff.
On or about May 29, 1965 , Respondent laid off employee Raul Alvarado , a member
of the appropriate unit, without regard to his seniority , and without bargaining with
the Union , upon demand , as the exclusive collective -bargaining representative of
employees in the appropriate unit concerning the manner of effecting layoffs, and the
method of selection of the employee to be laid off.
By the foregoing conduct, Respondent has refused to bargain collectively with the
Union, as exclusive representative of the employees in the appropriate unit, thereby
engaging in unfair labor practices within the meaning of Section 8(a)(5), and has
interfered with, restrained , and coerced employees in the exercise of rights guaranteed
in Section 7 of the Act , in violation of Section 8(a) (1) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation of
Section 8 ( a)(1), (3), and ( 5), I shall recommend that Respondent cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
It has been found that Respondent laid off Raul Alvarado on or about May 29,
1965, and thereafter failed and refused to reinstate him to his former or substantially
equivalent position, until August 23 , 1965, in violation of Section 8(a)(3) and (1) of
the Act. I, therefore , recommend that the Respondent be ordered to cease and
desist from such unlawful conduct and post the usual notices. I further recommend
that Respondent ensure that said reinstatement shall be without prejudice to his
seniority or other rights and privileges , and make him whole for any loss of earnings
he may have suffered by ieason of the discrimination against him , by payment of a
sum of money equal to that which he would have earned as wages from the date of
the discrimination against him to the date of his reinstatement , on August 23, 1965,
less his net earnings during said period, in the manner prescribed in F. W. Woolworth
Company , 90 NLRB 289 , with interest on the backpay due in accordance with Board
policy as set forth in Isis Plumbing & Heating Co ., 138 NLRB 716.
It has further been found that, from on or about May 14, 1965, to on or about
October 4 , 1965, Respondent has failed and refused to bargain collectively with the
Union , upon demand , as the exclusive collective -bargaining representative of its
employees , concerning wages, hours , or other terms and conditions of employment,
specifically layoffs, and the method of selection of employees for layoff. I, therefore,
recommend that Respondent bargain collectively with said Union as such exclusive
bargaining representative concerning future layoffs and the method of selection of
layoff when required.
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. Respondent , New Star Maikets, Inc., is, and at all times material herein has
been, engaged in ccmmerce and operations affecting commerce within the meaning
of Section 2 ( 6) and ( 7) of the Act.
2. Local No 229 , Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, is, and at all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. By laying off Raul Alvarado, on or about May 29, 1965 , and thereafter failing
and refusing to reinstate him to his former or substantially equivalent position until
August 23, 1965, because he joined or assisted the Union or engaged in other con-
certed activities for the purposes of collective bargaining or other mutual aid or pro-
tection, Respondent has discriminated in regard to the hire or tenure or terms or
NEW STAR MARKETS, INC 471
conditions of his employment to discourage membership in a labor organization,
thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) of
the Act
4 At all times material herein, the Union has been the exclusive representative for
the purposes of collective bargaining of all the employees in the following appropriate
unit, within the meaning of Section 9(a) and (b) of the Act
All full-time and regular part-time butcher workmen and meatcutters and their
apprentices at the Employer's El Centro, California, stores, excluding grocery
clerks and grocery cashiers, office clerical employees, professional employees,
guards, and supervisors as defined in the Act
5 By failing and refusing to bargain collectively with the Union as the exclusive
collective-bargaining representative of the employees in the appropriate unit described
above, concerning wages, hours, or other terms and conditions of employment, spe-
cifically layoffs, and the manner of selection of employees for layoff, Respondent has
engaged in unfair labor practices within the meaning of Section 8(a) (5) of the Act
6 By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, as found above, Respondent has engaged in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act
7 The aforesaid unfair labor practices are unfair practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire recoid, and pursuant to Section 10(c) of the National Labor Relations Act,
as amended, I recommend that Respondent, New Star Markets, Inc , its officers,
successors, and assigns, shall
i Cease and desist from
(a) Discouraging membership in Local No 229, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or any other labor organization,
by discriminating in regard to the hire and tenure of employment or any term or
condition of employment, except as authorized in Section 8(a)(3) of the Act
(b) Refusing or failing to bargain collectively concerning rates of pay, wages, hours
of employment, and other conditions of employment, as described above, with Local
No 229, Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, as the exclusive representative of all its employees in the appropriate unit
as described above
(c) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8(a)(3) oftheAct3
2 Take the following affirmative action, which I find will effectuate the policies
of the Act
(a) Ensure that Raul Alvarado has been reinstated to his former or substantially
equivalent position, without prejudice to his seniority and other rights and privileges,
and make him whole in the manner set forth in the section entitled "The Remedy "
(b) Notify Raul Alvarado, if presently serving in the Armed Forces of the United
States, of his right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces
8 Notwithstanding the fact that Respondent has engaged in unfair labor practices in
violation of Section 8(a) (3), in view of the fact that Respondent has manifested a dis-
position to comply with the provisions of the Act by voluntarily reinstating the employee
whom it laid off discriminatorily , and its willingness to bargain collectively with the
Union concerning layoffs, and the manner of selection of employees in the event of future
layoffs, it will not be recommended that Respondent be restrained from interfering with,
restraining and coercing employees in any other manner Cf N L R B v Entwti8tle
Mfg Go , 120 F 2d 532 ( C A. 4) May Department Stores d/b/a Famous Barr Company
v NLRB , 326 U S 376, Bethlehem Steel Company v NLRB , 120 F 2d 641 (C A D C )
Nevertheless, since Respondent has been found to have engaged in unfair labor practices
including discrimination in regard to hire and tenure of employment , an order is necessary
to effectively dissipate the effects of its unfair labor practices and to prevent recurrences
of similar unlawful conduct in the future See Standard Cable Corp , 99 NLRB 1252,
see also Kinard Trucking Co , Inc , 152 NLRB 449
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Preserve, until compliance with any order for reinstatement or backpay made
by the Board, and, upon request, make available to said Board and its agents for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records required to analyze and
determine the amount of backpay due.
(d) Post at its places of business in El Centro, California, copies of the attached
notice marked "Appendix." 4 Copies of this notice, to be furnished by the Regional
Director for Region 21, shall, after being duly signed by Respondent or its duly
authorized representative, be posted by it 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 by Respondent to insure that such notices are not altered, defaced, or covered
by any other material.
(e) Notify said Regional Director, in writing, within 20 days from the date of this
Decision, what steps Respondent has taken to comply therewith.5
It is further recommended that, unless, on or before 20 days from the date of
receipt of this Decision, Respondent notifies said Regional Director that it will comply
with the foregoing recommendations, the Board issue an order requiring Respondent
to take the action aforesaid.
* In the event 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 Ex-
aminer" 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 "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 shall be adopted by the Board this pro-
vision shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Decision, 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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership of our employees in Local No. 229,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, or in any other labor organization, by discriminating in any manner in
regard to hire, tenure, or any other term or condition of employment, except as
authorized in Section 8(a) (3) of the Act.
WE WILL NOT fail or refuse to bargain collectively with Local No. 229, Amal-
gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as
the exclusive collective-bargaining representative of all employees in the appro-
priate unit set forth below, specifically with regard to layoffs and the method of
election of employees for layoff if required in the future.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to join or assist
said Union, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in any other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities, except to the extent that such right
may be affected by an agreement in conformity with Section 8(a)(3) of the
National Labor Relations Act, as amended.
WE WILL ensure that Raul Alvarado has been reinstated to his former or sub-
stantially equivalent position, without prejudice to his seniority and other rights
and privileges, and make him whole for any loss of pay he may have suffered
by reason of the discrimination against him.
WE WILL, upon request, bargain collectively with said Union as the exclusive
collective-bargaining representative of all the employees in said appropriate unit,
specifically with regard to layoffs and the method of selection of employees for
layoff if required in the future.
The appropriate unit is:
All full-time and regular part-time butcher workmen and meatcutters and
their apprentices at the Employer's El Centro, California, stores, excluding
grocery clerks and grocery cashiers, office clerical employees, professional
employees, guards, and supervisors as defined in the Act.
AMERICAN SCHOOL SUPPLY COMPANY 473
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above -named or any other labor organization
NEW STAR MARKETS, INC,
Employer
Dated------------------- By-------------------------------------------
(Repre,entative) ( Title)
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 Selective Service Act and the Universal Military Training and
Service Act of 1948, after discharge 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 provi-
sions, they may communicate directly with the Board 's Regional Office, 849 South
Broadway, Los Angeles , California , Telephone No 688-5204
American Sanitary Products Co.,' d /b/a American School Supply
Company and International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , Local Union No.
905. Case No 27-CA-1790 March 8,1966
DECISION AND ORDER
On November 26, 1965, Tiial Examiner E Don Wilson issued his
Decision in the above-entitled proceed.ng finding that the Respond-
ent had engaged in and was engaging 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 cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision Thereafter , the Respondent and the General Counsel filed
cross-exceptions to the Trial Examiner's Decision and supporting
briefs and the Respondent filed an ansnering brief to the General
Counsel's cross-exceptions
Pursuant to the provisions of Section 3 (b) of the Act , the National
Labor Relations Board has delegated its powers in connection with
this case to a three -member panel [ Chairman McCulloch and Mem-
bers Brown and Zagoria]
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 the briefs, and the entire
record in the case, and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner , with the following modifica-
tions and additions
We find , in agreeiperlt with the Trial Examiner , that the Respondent
violated Section 8 ( a) (1), (3), and (5) of the Act by engaging in the
'The name of the Respondent appears as amended at the hearing
157 NLRB No 37