Park Edge Sheridan Meats, Inc.

National Labor Relations Board - Board Decisions

Nov 1, 1962

139 N.L.R.B. 748 (N.L.R.B. 1962)

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Park Edge Sheridan Meats, Inc.; Park Edge McKinley Meats,
Inc.; Harry Benatovich, Samuel Benatovich , Louis Benatovich,
and Hyman Benatovich , d/b/a Park Edge Super Markets, Pro-
duce Division ; Harry Benatovich , Samuel Benatovich, Louis
Benatovich , and Hyman Benatovich , d/b/a Park Edge Super
Markets , Grocery Division ; Harry Benatovich , Samuel Benato-
vich, Louis Benatovich , Hyman Benatovich , and Max Bern-
hardt, d/b/a Park Edge Groceries ; Harry Benatovich , Samuel
Benatovich , Louis Benatovich , and Hyman Benatovich, d/b/a
Benatovich Bros. and Local 34, Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO. Case No.
3-CA-1676. November 1, 1962
DECISION AND ORDER
On June 19, 1962, Trial Examiner Thomas F. Maher issued his In-
termediate Report 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 Inter-
mediate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of ,Section 3(b) of the Act the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed 2 The
Board has considered the Intermediate Report and the entire record
in this case, including the exceptions and briefs, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
with the following modifications and additions.'
1 The Respondent 's request for oral argument is hereby denied as the record , exceptions,
and briefs adequately present the issues and positions of the parties.
2 The Trial Examiner accepted offers of proof of the General Counsel that each of the
employees listed in Appendix C attached to the Intermediate Report, if called to testify,
would testify that he or she unconditionally requested reinstatement on June 24 , and that
certain strikers listed on Appendix D attached to the Intermediate Report, if called to
testify , would testify that they failed to personally apply for reinstatement because they
were led to believe it would be futile to do so We do not rely upon such offers of proof.
Other probative evidence accepted by the Trial Examiner establishes that unconditional
offers to return to work were made on behalf of all the strikers by employee representatives
on June 24, 1961.
3 The Respondent contends that the purpose of the strike called by Local 34 , Amalga-
mated Meat Cutters and Butcher Workmen of North America , AFL-CIO, on June 15, 1961,
was to compel the Respondent to comply with an exclusive recognition agreement which
Local 34 had coerced the Respondent to execute by the strike and picketing on June 5,
1961, at a time when Local 34 did not represent a majority of employees in the affected
bargaining unit From this position , the Respondent then asserts that the June 15, 1961,
strike was an illegal strike, and that the Trial Examiner erred in finding it to be an unfair
labor practice strike We do not agree , but assuming , arquendo , that the June 15, 1961,
strike was for continued recognition by Respondent , the record does not show that Local
139 NLRB No. 48.
PARK EDGE SHERIDAN MEATS, INC., ETC . 749
The Trial Examiner found that Mary K. Tracy, a discriminatee
herein, is entitled to reinstatement as an unfair labor practice striker
upon her unconditional request for reinstatement. He recommended,
however, that she receive no backpay because she had failed to take
any steps to appear for her job after she was physically able to re-
sume work. We agree that Mary K. Tracy is entitled to reinstatement.
However, we also find that she is entitled to a backpay award herein.
The record reveals that Tracy was employed at the Respondent's
McKinley Market as a part-time meatwrapper from June 1960
through June 1961, and that she participated in the June 15, 1961,
strike. On June 24, 1961, unconditional offers to return to work
were made on behalf of all the strikers including Tracy, by employee
representatives. Subsequently, in August 1961, i racy gave birth to a
baby, and on September 5, 1961, as of which date Respondent offered
her reinstatement, she was still confined to the hospital. After learn-
ing of the offer, she requested her husband to call the Union, and
when he did, he was advised to call the Respondent and report Mrs.
Tracy as being incapacitated. Tracy's husband thereupon called the
Respondent and notified the girl in Respondent's office that his wife
was interested in returning to work and that she would notify the Re-
spondent when she was permitted by her doctor to return to work.
Although Tracy did attempt to vote in a Board-conducted election
in late September 1961, it does not appear that she has notified the
Respondent of her intention to return to work.
Upon the basis of the foregoing evidence it is clear, and we find,
as did the Trial Examiner, that Mary K. Tracy is entitled to rein-
statement as an unfair labor practice striker who has demonstrated
a continuing interest in further employment with the Respondent by
(1) having her husband call the Respondent concerning her physical
incapacity after learning of the Respondent's telegram offering rein-
statement, (2) attempting to vote in the September 1961 Board-
conducted election, and (3) participating in the instant case as a
claimant for her job. However, as Tracy has not specifically re-
quested reinstatement since the Respondent offered to reinstate her in
September 1961, we shall provide that the Respondent reinstate her
upon her unconditional request for reinstatement. Moreover, the
foregoing evidence establishes, and we find, that Tracy was an unfair
labor practice striker after June 15, 1961, that unconditional reinstate-
ment was sought for all strikers on June 24, 1961, and that Tracy
did not become physically incapacitated until sometime in August
34 did not , in fact, represent a majority of the employees in the affected bargaining unit
during the critical period. Like the Trial Examiner , therefore , we find that the strikers
were unfair labor practice strikers who were entitled to reinstatement when the uncondi-
tional requests for reinstatement were made on their behalf.
In the absence of exceptions to the Trial Examiner 's treatment of the preelection state-
ments in footnote 26 of the Intermediate Report, we adopt such disposition pro forma.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1961. Accordingly, we shall award her backpay for the period of
discrimination against her from June 24, 1961, to the date of her
physical incapacity.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following amendments :
(1) Mary K. Tracy's name shall be added to Appendix E, the list
of employees entitled to backpay, which is incorporated in the Trial
Examiner 's Recommended Order and notice. The period of her back-
pay entitlement shall run from June 24, 1961, to the date of her
physical incapacity.
(2) Mary K. Tracy's name shall be removed from that part of
paragraph 2(a) of the Order requiring the Respondent to offer Mary
K. Tracy reinstatement , but we hereby order that the Respondent, its
officers, agents , successors, and assigns , upon application , reinstate
Mary K. Tracy to her former or substantially equivalent position,
without prejudice to her seniority or other rights and privileges,
dismissing , if necessary , any employee hired on or after June 15, 1961.
(3) Mary K. Tracy's name shall be removed from that paragraph
of the notice concerning the reinstatement of DiSarno , Graham,
Ginett, Tracy, and Zunner , and the following paragraph shall be added
to the notice immediately below the foregoing paragraph :
WE WILL offer Mary K. Tracy, upon her application, reinstate-
ment to her former or substantially equivalent position , without
prejudice to her seniority or other rights and privileges , dismiss-
ing, if necessary , any employee hired on or after June 15, 1961,
to replace Mary K. Tracy.
(4) The date June 15,1961 , shall be substituted for the date June 24,
1961 , in that part of section 2 (a) of the Order requiring the Respond-
ent to discharge certain replacements , and the same substitution shall
be made in the corresponding paragraph of the notice.'
(5) The backpay obligations of the Respondent shall include the
payment of interest at the rate of 6 percent per annum , to be com-
puted in the manner set forth in Isis Plumbing d Heating Co., 138
NLRB 716 5
' The Trial Examiner found that the strikers herein were unfair labor practice strikers
as of June 15, 1961, the date the strike began. Accordingly, he found that all such strikers
who have not been reinstated by the Respondent are entitled to reinstatement, and he
properly stated that any such reinstatements should be effected by dismissing, if necessary,
employees hired after June 15, 1961 However, the Trial Examiner inadvertently recom-
mended in his Order that such reinstatements were to be effected by dismissing, if neces-
sary, employees hired on or after June 24, 1961. We have corrected his Order and notice
by providing for the dismissal, if necessary , of any employees hired on or after June 15,
1961.
B For the reasons set forth in his dissent in Isis, Member Rodgers would not grant
interest on backpay, and does not approve such an award here.
PARK EDGE SHERIDAN MEATS, INC., ETC. 751
(6) The following note shall be inserted immediately, below the
signature in the notice :
NoTE.-We will notify any of the above-named employees
presently serving in the Armed Forces of the United States of
their right to full reinstatement upon application in accordance
with the Selective Service Act after discharge from the Armed
Forces.
(7) The penultimate paragraph in the notice beginning with the
words "This notice must remain posted ..." shall be changed to read,
"This notice must remain posted for 60 consecutive days from the
date of posting ..." instead of stating "60 days from the date hereof."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and an amendment dated August 7 and September 1, 1961, re-
spectively, filed by Local 34, Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, herein referred to as Local 34, the Regional Director
for the Third Region of the National Labor Relations Board, herein called the
Board, issued a complaint on behalf of the General Counsel of the Board on
November 17, 1961, and an amended complaint on January 5, 1962, against
Park Edge Sheridan Meats, Inc.; Park Edge McKinley Meats, Inc.; Harry Benatovich,
Samuel Benatovich, Louis Benatovich, and Hyman Benatovich, d/b/a Park Edge
Super Markets, Produce Division; Harry Benatovich, Samuel Benatovich, Louis
Benatovich, and Hyman Benatovich, d/b/a Park Edge Super Markets, Grocery
Division; Harry Benatovich, Samuel Benatovich, Louis Benatovich, Hyman Benato-
vich, and Max Bernhardt, d/b/a Park Edge Groceries; Harry Benatovich, Samuel
Benatovich, Louis Benatovich, and Hyman Benatovich, d/b/a Benatovich Bros., all
herein collectively called Respondent, alleging violations of Section 8(a)(1), (2),
and (3) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151,
et seq.), herein called the Act. In its duly filed answer Respondent, while admit-
ting certain allegations of the complaint, denied the commission of any unfair
labor practice.
Pursuant to notice this proceeding, with all parties present and represented, was
beard before Trial Examiner Thomas F. Maher in Buffalo, New York, on various
dates between February 19 and March 8, 1962. On April 9, 1962, General Counsel
and Respondent filed briefs with me.
Upon consideration of the entire record 1 and the briefs of the parties, and upon
my observation of each of the witnesses,2 I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Park Edge Sheridan Meats, Inc., is a New York corporation engaged in the retail
sale of meats and meat products at Respondent's retail store located at 2309 Eggert
Road, Tonawanda, New York, hereinafter called Park Edge Sheridan.
Park Edge McKinley Meats, Inc., is a New York corporation engaged in the
retail sale of meats and meat products at Respondent's retail store located at 942
McKinley Parkway, Buffalo, New York, hereinafter called Park Edge McKinley.
I The amended complaint was further amended, in minor respects , at the hearing and
the document submitted in evidence as General Counsel's Exhibit No. 1(p), was physically
corrected to reflect these amendments.
2 Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his demeanor
as I observed it at the time the testimony was given. Cf. Bryan Brothers Packing Com-
pany. 129 NLRB 285 To the extent that I indicate that I do not rely on or reject in part
or entirely the testimony of any given witness, it Is my intent thereby to indicate that
such part or whole of the testimony, as the case may be, is discredited by me. Jackson
Maintenance Corporation, 126 NLRB 115, 117, footnote 1.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benato-
vich are copartners doing business under the trade name and style of Park Edge
Super Markets, Produce Division, and at all tines material herein have been
engaged in the retail sale of produce at Park Edge Sheridan.
Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benatovich
are copartners doing business under the trade name and style of Park Edge Super
Markets, Grocery Division, and at all times material herein have been engaged
in the retail sale of groceries at Park Edge Sheridan and Park Edge McKinley.
Harry Benatovtch, Samuel Benatovich, Louis Benatovich, Hyman Benatovich,
and Max Bernhardt are, and have been at all times material herein, copartners doing
business under the trade name and style of Park Edge Groceries, and at all times
material herein have been engaged in the retail sale of groceries at Park Edge
McKinley.
Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Bena-
tovich are, and have been at all times material herein, copartners doing business
under the trade name and style of Benatovich Bros., and are engaged, and at all
times material herein have been engaged, in the wholesale purchase of produce
and the retail sale of a portion of such produce at Park Edge Sheridan and
Park Edge McKinley.
Harry Benatovich, Samuel Benatovich, Louis Benatovich, Hyman Benatovich, and
Max Bernhardt are copartners doing business under the trade name and style of
Park Edge Super Markets, Grocery Division, and at all times material herein
have been engaged in the retail sale of groceries at Park Edge McKinley.
During the past 12 months, which period is representative of all times material
herein, Respondent, in the course and conduct of its business operations, distributed
and sold food products with a gross value in excess of $500,000, and for such
purposes as detailed above have caused to be purchased and transported to its
places of business in interstate commerce directly from States of the United States
other than the State of New York, food products of a value in excess of $50,000.
Respondent admits and I find that it is an employer engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 34 is a labor organization within the meaning of Section 2(5) of the Act
and I so find . Local 212, Retail Clerks International Association , AFL-CIO, herein
called Retail Clerks, is a labor organization within the meaning of Section 2(5) of
the Act, and I so find.
III. THE ISSUES INVOLVED
1. The ingredients of an unfair labor practice strike.
2. The discriminatory failure to reinstate unfair labor practice strikers.
3. The effect of unconditioned requests to return to work made in behalf of all,
strikers.
4. The effect of Respondent 's failure to discharge employees allegedly for cause-
before they go on strike.
5. The burden upon strikers , as backpay claimants, to establish that they were
available to work, when called.
6. Respondent 's obligation to make whole unfair labor practice strikers for the
period during which they are on strike.
IV. THE UNFAIR LABOR PRACTICES
Introduction
An outline of the substance of this case is desirable as a guide to what follows-
and is set forth here, not as a substitute for specific findings, but for the better
understanding of those which follow.
When Local 34 appeared Respondent took certain action calculated to avoid dealing
with it. Principally, it indulged in efforts to dissuade the employees from their
choice, and it actively participated in bringing into their organization another labor
organization, the Retail Clerks. Local 34, however, to counter this opposition, to
solidify the recognition it had already been granted, and to protest Respondent's inter-
ference with the employees' organizing rights as well as its assistance to the Retail
Clerks, called a strike on June,15 (not to be confused with an earlier, 1-day strike
on June 5, called for the purpose of recognition). As the Retail Clerks had mean-
while gained sufficient employee support to warrant a Board election it filed a-
PARK EDGE SHERIDAN MEATS, INC., ETC . 753
representation petition with the Board 3 and an election was held on June 21. The
results of the election were inconclusive because of the substantial number of voting
challenges and the filing of objections.
Meanwhile on June 21 the employees voted to return to work, but when, either
individually or through their representatives, they presented themselves for work
Respondent informed them they had been permanently replaced. The strike, briefly
curtailed, was resumed. Again on August 21 the employees requested their jobs,
this time by letter from Local 34 to Respondent, and on September 5, with certain
exceptions to be considered individually, they were recalled by Respondent.
Because the nature and purpose of the strike determines the rights of the striking
employee to his job upon unconditional request for it,4 the relationship of Respond-
ent's conduct, by way of interference with the employees and assistance to the Re-
tail Clerks, becomes highly significant, not only as it may explain the reason for the
strike in the first instance, but as it may explain the reason for the strike's prolonga-
tion. The chronology which follows is set forth with this in view.
A. The nature of Respondent's operations
Respondent operates two supermarkets under the trade name "Park Edge," one
referred to herein as the Sheridan Market, and the other as the McKinley Market.
Each has the usual operational departments common to such retail establishments,
with the Sheridan Market being under the general supervision of Respondent Hy-
man Benatovich, and the McKinley Market under Respondent Samuel Benatovich.
In addition Respondents Louis and Harry Benatovich, as partners in corporate offices,
were active in the operation of the overall business.
Prominent in their relationships with employees during 1961, all of whom I find to
be supervisors within the meaning of the Act, were: McKinley Market-Al Lettman,
grocery manager and buyer (companywide), Herbert Benatovich, produce depart-
ment manager, Sanford Cohen, grocery department manager, and Mary Bonifacio,
supervisor of cashiers; and Sheridan Market-Edward Kostecki, meat department
manager, Steve Lakomski, grocery department manager,5 Chester Dimitroff, grocery
department supervisor , and Mildred Gaik, produce department supervisor.6
B. The advent of Local 34
Organization among Respondent's employees had commenced by mid-1960 and
between then and June 1961 , six or eight employee meetings were held with substan-
tial numbers attending and signifying their wish to join Local 34. By June 1961,
Local 34 became sufficiently established to seek recognition as the employees' rep-
resentative and negotiate a collective agreement.
By June 5, however , tension had developed to a critical degree and resulted in the
calling of a short-lived strike which appears to have had recognition as its objective.
Intermixed with the basic purpose of this strike, however, were overtones of protest
over the discharge of employee Hazel Bauman . Miss Bauman had been active in
the introduction of the Union to the employees and had signed up several. On
June 1, she solicited the membership of a fellow employee, Millie Everett. Where-
upon another employee, Helen Kasprzak, was sought out by Respondent Louis
Benatovich and asked what she knew of union activities about the store . Benatovich
then told her that the cashier, Everett, had been solicited by a girl in the meat
department . Thereafter Everett was called to the office and, after considerable
hesitancy, named Bauman as the one who had solicited her Local 34 membership.
On the following day employee Kasprzak was again questioned; this time over the
telephone by Respondents Hyman and Sam Benatovich, both of whom asked her
if she was aware of Miss Bauman 's Local 34 card solicitation. Thereafter on June 3,
at the close of the day, Miss Bauman was discharged by Supervisor Kostecki for the
stated reason that there was insufficient work. When she protested that she possessed
Case No 3-RC-2643 ( not published in NLRB volumes).
4 ti L.R B v Mackay Radio & Telegraph Co., 304 U.S. 333, 346.
B Respondent ' s answer admits that the foregoing are supervisors within the meaning of
the Act , but, except as to Lettman , denies that they are Respondent 's agents In view of
their admitted supervisory status I find it unnecessary to belabor their alleged lack of
agency.
0 Respondent denies the supervisory status of Dimitroff and Gaik The Board , however,
by Decision , Order, and Direction of Election dated September 7, 1961, in Case No. 3-RC-
2643 ( not published in NLRB volumes ), involving the employees herein , has, over Respond-
ent's exception , sustained a finding that both are supervisors.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more seniority than the other girls in the department Kostecki told her, "I got orders
from the office," and paid her off.7
Thereafter Local 34 called a strike among the employees at both stores for the
purpose of obtaining recognition,8 and after a day of picketing, Respondent, through
its attorney, executed an agreement providing for the cessation of picketing, the recog-
nition of the Union as representative of a majority of the employees, and arranged
for the commencement of negotiations directed toward a collective agreement. The
strike was thereupon called off and Hazel Bauman was returned to her job after losing
a day of work, which day she spent on the picket line.
C. Respondent's reaction to the Union
While Local 34 was perfecting its final arrangements for recognition, and there-
after while it enjoyed Respondent's tenuous blessings in this respect, Respondent's
officials and supervisors were actively engaged in undoing whatever amicable rela-
tions it had established by its June 5 recognition agreement. The details of this
activity follow.
1. Interference, restraint, and coercion
In addition to the earlier questioning of employees Everett and Kasprzak about
employee Bauman's Local 34 activity by Respondents Louis, Sam, and Hyman
Benatovich, as detailed above, other instances of the same character, by other
management representatives, followed thereafter. Thus, on June 7 Hyman Bena-
tovich sought out employee James Lawton and, after a conversation in which
it was suggested that Lawton's sparse seniority would be detrimental to him "if this
Union gets in," Benatovich asked him if he was going to a union meeting scheduled
for that evening.9 Thereafter, on June 10, Hyman Benatovich called employee
William B. Miller aside and asked him if he had signed a Local 34 card and Miller
replied that he had. Significantly Miller's work schedule was reduced on the
following week from 40 hours to 32 hours, and when he questioned Benatovich
concerning it he received the reply that he "had pulled a dirty trick on him" and
"one bad favor deserves another." 10 And again on June 15 employee Miller
had a second encounter with management, this time with Supervisor Mary Bonaficio,
who asked him if he had joined the Union or signed a card. And when he answered
in the affirmative she inquired, "Why?" 11
During the same period, June 5 through 15, representatives of Respondent were
heard to describe the dire consequences of adherence to Local 34. Thus Supervisor
Dimitroff told employee Adelbert Collopy that Local 34 would not cover bag packers
(a misstatement) and they would lose their jobs; and he told employee Andrew
Kuziomko that he would not get full-time work if he "stuck" with the Union, and
Respondent would cut part-time hours to the minimum permitted by the contract.12
During the same period, Respondent Herbert Benatovich told employee Miller that
7 The toregoing account is a composite of the credited testimony of Hazel Bauman and
Helen Kasprzak. Neither Everett, Kostecki, nor Louis Benatovich were called as witnesses,
and neither Sam nor Hyman Benatovich were questioned concerning this particular
incident
e Although Bauman was discharged for her activity in behalf of Local 34 and there is
more than a suggestion that the strikers were protesting in her behalf, there is no
allegation that this was anything but a strike for recognition and I limit my findings
accordingly.
0 The undenied testimony of Lawton.
10 The credited and undenled testimony of employee Miller.
11 In addition to the foregoing instances of employee interrogation there Is also evidence
that employee Bartok was asked by Hyman Benatovich "If she had heard anything?"
Regardless of the context in which It was asked , such a question cannot suggest anything
but idle curiosity as to matters generally , and I so find.
There is also employee Carosi's credited testimony that on June 24 Supervisor Kostecki
asked him how he voted in an election conducted by the Board. While this incident does
not differ In nature from any of the others found above I do not include it with them,
coming as it does after June 15, the date of a strike to be considered in detail hereafter.
"' The credited testimony of the employees to whom the statements were made. When
his recollection was refreshed, employee Lynch testified to the statement made to Collopy.
Upon my observation of him, I do not rely on employee Schoen 's testimony of a similar
statement made to him.
PARK EDGE SHERIDAN MEATS, INC., ETC. 755
if Local 34 got in they would cut the help and the hours in half,13 and employee
Robert Scarozza was told by Manager Cohen that there would be a cut in the
schedule unless the proposed strike was called off and a company union was formed.
He further stated that "he was going to have to get rid of some guys if the Union
did come in and the only ones he would give hours would be good help, with the
ones that stuck with him." 14
2. Assistance to the Retail Clerks
For reasons not explained in the record, Respondent preferred the Retail Clerks
over Local 34 which it had already recognized by the June 5 agreement. Its feelings
in this respect were manifest by conduct of its officials and the supervisors who
urged the employees to forsake Local 34 and join the Retail Clerks. Thus, prior to
June 15, Grocery Department Manager Lakomski and Supervisors Mildred Gaik,
Chester Dimitroff, and Mary Bonifacio sought out numerous employees and
requested them to sign membership application cards for the Retail Clerks. The
employees credibly testifying without denial to solicitation of applications from
them were employee James Krier by Lakomski; employees DeGain, Hoffman, and
Rose by Supervisor Gaik; 15 employees Collopy, Kuziomko, Lynch, and Krier by
Chester Dimitroff; 16 and employees Lawton and Amelia Shear by Supervisor
Bonifacio.
In the process of their recruitment of members for the Retail Clerks, the super-
visors and officials undertook the alternative project of suggesting the formation
of a company union. In this respect Respondent received unsolicited, but not un-
welcome, assistance from one Edward Berger, the father of one of the employees,
who addressed a hastily assembled gathering of employees in one of the offices,
and presented an impassioned tirade against Local 34, suggested that the employees
get out of it, and urged that a committee be formed with a view to forming a company
union which would be just the sort of arrangement that would make everyone happy.
Actively herding the employees into this meeting, and standing by as Berger gave
his talk, were Respondents Sam and Herbert Benatovich, and Supervisors Lettman
and Bonifacio.17 Thereafter Supervisor Bonifacio spoke to the assembled employees
urging them to revoke their Local 34 membership. Following the meeting several
employees, including Colleran and Miller, were brought into a smaller office where
they were urged by Lettman and Respondents Herbert and Sam Benatovich to
form a committee as the beginnings of a company union.
In addition to this Respondent Sam Benatovich, on a number of occasions,
suggested to employee Miller that it would be wise for him to get out of the Union;
and Bonifacio asked employee Shear to circulate for signatures among the employees
a "petition to revoke our membership in Local 34." 19
Similarly, during the same June 5 to 15 period, Respondent, as an implement to
its campaign to get employees out of Local 34, offered inducement to them for their
change of heart. Thus employee Kuziomko credibly quotes Supervisor Dimitroff as
assuring him that part-time people wishing full-time work would get it if they got out
of Local 34. And even as the employees were walking out of the McKinley Market
to join the strike Herbert Benatovich called to them to come back, that things were
"going to be straightened out, Sam was going to do the thing all right." 19
1" The credited testimony of Miller. Similar testimony by employee Lawton was adduced
after opportunity was given him to refresh his recollection by referring to a statement
previously given.
14 The credited testimony of Scarozza. He also testified that Manager Lettman had
previously told him, in the course of urging a company union, that there might be a cut-
back in help. Lettman was not specific, however, as to how or why this would come
about, and I do not rely upon this incident.
15 Employee Priscilla Heckman likewise testified to receiving a card from Gaik but her
recollection of the nature of the card was so incomplete that I do not rely upon her
testimony.
18 As I do not credit him generally, I do not rely upon employee Schoen's testimony that
Dimitroff also solicited his membership.
17 The credited and undenied testimony of employees Colleran, Miller , and Scarozrii.
18 Shear's credited, undenied testimony
19 The credited testimony of employee Shear. There is also testimony by employee Miller
of offers of a pay raise made to him by Herbert and Sam Benatovich , and testimony of
672010-63-vol 139-49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And finally on June 14, prior to a Local 34 meeting being called to discuss the
possibility of strike action, Respondent Herbert Benatovich sought out employee
Patricia Smith and asked her to go to the meeting and report back to him "everything
that went on and what happened." This Miss Smith refused to do.20
D. The strike
Active among the employees promoting Local 34 was Myles Lyons, meatcutter
at the McKinley Market. Throughout the spring of 1961 Lyons solicited member-
ships and actively participated in union meetings. On June 12, Lyons called Lo-
cal 34's vice president, Smith, to express his concern with developments at both of
the markets. Lyon's credited account of his action follows:
I told him that I thought we ought to have a general union meeting because
the employees inside were being harassed by the different supervisors, were being
taken individually in the corner and talked to, and Local 34 was being discussed
pro and con, and they were being pressured to sign cards for Local 212, and
he said, "Well, I will try to arrange a meeting for Wednesday night."
Accordingly, with picket lines established, the strike got under way on the morning
of Wednesday, June 15. Thus, according to Lyons:
On the day of the strike at approximately two o'clock in the afternoon Gerald
Smith appeared at the Park Edge McKinley store and the employees left the store
and went in the parking lot to talk to him and we talked in the parking lot and
we wanted to know if we could cross the picket line that morning because there
was a picket line at the store and we wanted to know the reasons for it and he
gave us the reasons, the reasons that he had all these phone calls from different
ones that were being harassed at the store, being approached about Local 34
and being pressured into signing cards for Local 212, plus the fact that 212
through the help of the company had obtained enough signatures for a petition
for an election that day and we talked on the lot pro and con. In fact, myself,
I wanted everybody to go back to work, but the majority said they felt they
should stay out right then because if they went back in the store, they didn't
know what was going to happen to them.
TRIAL EXAMINER: Is this Wednesday morning?
The WITNESS: Thursday morning, I believe.
TRIAL EXAMINER: Had you had your meeting yet?
The WITNESS: No. The meeting was going to be Thursday night; I, myself,
if I can go on further, I, myself returned to the store at that time, the Meat
Cutters, we went back and put the meat away, which we were working on.
On June 15th, we had a union meeting at the Steel Workers' hall. That was
the night of the strike .and after everything was explained fully and they all voted
to stay out on strike or all agreed to stay out on strike. [Emphasis supplied.]
It was explained about the amount of telephone calls he had had coming from
individual employees in the store telling about being called into meetings, being
pressured to forget about Local 34 or to sign with the Local 212, and everybody
heard the explanation and then they were asked if there was anything further,
if there was anybody else had any complaints and it was amazing the amount
of people that stood up, that they had complaints that had never revealed them
before.
Q. Complaints of what nature?
A. That they were called aside individually and wanting to know why they
were having anything to do with the union or were asked to sign cards for
Local 212.
employee Cartonia of monetary gifts by Hyman Benatovich There is no definitive show-
ing of the purpose of these gifts and I find nothing in the context of circumstances that
would warrant an inference that they were made for an improper purpose, as were the
promises referred to above in the text
o There is also testimony in the record by employee Chester Samara concerning an
earlier incident of the Benatovichs being observed near the locale of a union meeting. The
witness claims to have recognized Herbert Benatovich at a distance of 60 feet, seated in a
truck, in a lighted parking lot Because of the inherent improbability of such an identi-
fication, as well as my general impression of the witness, I do not accept this testimony
as evidence of unlawful conduct on the part of Herbert Benatovich or anyone else.
PARK EDGE SHERIDAN MEATS, INC., ETC. 745 7
Q. (By Mr. LuxscH. ) Do you recall the names of any of the people who
made the complaints?
A. Well, Mollie Shear for one person, she complained about being called into
a meeting by Mary Bonifacio talking to her and claiming about her being
mixed up a union; Dan Colleran.
A total of 98 employees at the Sheridan and McKinley Markets went on strike at
this time 21
E. The intervening representation proceeding
As a consequence of the Retail Clerks ' membership campaign and Respondent's
active efforts in its behalf a sufficient showing was made to warrant the filing of an
election petition in Case No. 3-RC-2643 , on June 15, 1961, significantly the day on
which the pickets appeared in front of both markets and on which the Local 3"
meeting was thereafter held at which the employee members voted to strike. An
election pursuant to stipulation was thereafter conducted on June 22 , with incon-
clusive results due to an excessive number of challenges made to the votes of those
who had replaced the striking employees , and due also to a number of challenges
to the conduct affecting the outcome of the election 22
F. Further interference , restraint , and coercion
Respondent did not relax its efforts to dissuade the employees of their allegiance
to Local 34 as the strike continued . This was particularly evident during the period
between June 15 and 22 , the date scheduled for the election. Thus Supervisor
Bonifacio spent a considerable amount of her time talking with the employees on the
picket line . On one occasion she told employee Colleran and others to "go look for
another job ," and on another time told him that he "would never work there again." 25
Similarly, about the same time, in a conversation with employee Shear and others,
she heckled the pickets by assuring them that the exercise would help their fat legs
that they "looked pretty and to keep it up," and inquired if they were getting their
usual coffee breaks. She then told Shear and her fellow pickets "she'd like to bash
our heads in." 24
During the same preelection period one Michael Subkoviak applied for work
as a strike replacement , was hired , and actually voted in the election under chal-
lenge. As he was being hired Respondent Hyman Benatovich told him "he wasn't
absolutely sure how long he could employ me because if the Union did get in I
might lose my job ." 25 After the election Meat Manager Kostecki's zeal was no
less. When he spoke to employee Carosi who was then seeking his job back, fol-
lowing a sick leave (supra, footnote 21, infra, footnote 34), he asked Carosi if he
had voted in the election , and how he had voted ; to which Carosi replied it was
none of his business . Carosi was thereafter informed by Respondent Hyman
Benatovich that he had been permanently replaced , having failed to "see him"
before the voting , thus "going about it all wrong." 26
G. The strikers' offer to return to work
Upon learning of the inconclusive outcome of the election a Local 34 meeting was
held on June 23, at which time it was voted that the employees would offer to
21 The names of the strikers are listed in Appendix B of this report. Contrary to the
stipulation of the parties it does not include the name of employee Fred Mario Caroni who
credibly testified that he was on sick leave between May 18 and July 24, 1961, and there-
fore was not capable of being a striker, at least for such period. Whether Respondent
mistakenly considered him a striker at some later date, or whether he joined the strikers
at some later date, are subjects for consideration elsewhere in this report ( infra, footnotes
28, 34, and p. 761). The list also properly excludes James Brier who credibly testified he
was out on workmen's compensation as of the date of the strike and never offered to
return to work thereafter
22 Melvin Rupp, d/b/a Rupp Equipment Co., 112 NLRB 1315, footnote 2.
22 The credited, undenied testimony of Colleran.
24 The credited, undenied testimony of Shear.
25 The credited , undenied testimony of Subkoviak . As he is a strike replacement he is
not involved in any claim for reinstatement or backpay.
2' In his brief General Counsel suggests that two preelection statements of Respondents
Sam and Hyman Benatovich constitute unlawful promises of benefits Thus Sam exhorted
an assemblage of employees to "stick by us and you'll always have a job" ; and Hyman
promised "to be more considerate in the future " In the most unfavorable of contexts I
could not class these as being any more serious than speeches against sin or favoring
motherhood or an early spring.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return to their jobs. On the following morning, Saturday, June 23, representatives
selected by the striking employees entered each of the markets and sought out
representatives of management. The picket lines were withdrawn at the same time.27
Employee Lyons, accompanied by 10 or 15 employees including Miller, Shear, Kor-
wek, Caroviski, Vujamovich, and Dures,28 entered the McKinley Market and met
Respondent Sam Benatovich near the checkout counters. Lyons, speaking for the
group, stated that "We are here to return to work." Whereupon Benatovich re-
plied, "There is no job available. You have been permanently replaced." Lyons
then requested the paychecks for the group and was directed to await them outside
the door.29 Thereafter Aloisio, Colleran, and Scarozza, with the former as spokes-
man, entered the market, made the same request for their jobs, and were told by
Sam Benatovich that they had been permanently replaced, and were thereupon
paid off. 30 In addition the other strikers at the McKinley Market appeared for
their jobs at this time and were refused and paid off.31 Employee Lyons' credited
account of this occasion best describes it and what followed thereafter:
Well, there was some people went in to report to work and they all received
the same answer, they were permanently replaced, there was no job available
for them. There was approximately, I would say, thirty-five to forty that was
there for the pay a few minutes after nine when they brought the pay down
at the door, and during the day there was more people came in and went in
and obtained their pay. Then we resumed picketing because we had been
refused our jobs.
Meanwhile at the Sheridan Market, Local 34 Representative Waters informed
the pickets that the McKinley employees had gone for their jobs and suggested they
should do likewise. Whereupon employee Jakubczak, accompanied by DeGain
and Turner presented themselves to Respondent Hyman Benatovich and, stated,
"We are here to speak for all the people on strike; we are all ready to return to
our jobs unconditionally." 32 Benatovich replied that they had all been permanently
replaced, whereupon pay checks and personal effects of the striking employees were
delivered to them outside the market. Thereafter, upon prior instructions from
the union representative, Jakubczak notified all the striking employees of their
permanent replacement. 33 In addition to the foregoing credible accounts upon
which I find that the striking employees, all listed in Appendix B herein, by selected
representatives, offered unconditionally to return to work and were refused, being
told they were permanently replaced, 34 I also accept an offer of proof made by
General Counsel that if all the striking employees listed in Appendix C, herein, as
'° The credited testimony of employee William Miller. I do not credit Sam and Hyman
Benatovich's denials of this fact
28 Lyons also included Mario Carosi in this group. Whether lie was there as an inter.
ested spectator or Lyons erroneously included him is not material Carosi credibly testi-
fled he did not apply for his job until July 24, at which time he was refused (supra, foot-
note 21, infra, footnote 34).
£9 The credited testimony of Lyons, corroborated by Millet and Shear. Upon my obser-
vation of him I do not credit Sam Benatovich generally. Specifically I reject his account
of the incident in which he denies, among other things, that he stated to the employees
that they had been permanently replaced or that the offer was not unconditional. Nor do
I attach significance to his protestation that the offer to return was actually a tactic to
harass Respondent on a busy Saturday morning. Coming as it did immediately after the
lost election and vote to return I find the timing was reasonable. Nor do I consider the
group appearance inside the front door to be harassment. Certainly the front door is a
usual and obvious place of entry and, if the store was as busy as Benatovich claimed it to
be, then none of the unused grocery carts would have been stored in that area at that
time, as he claimed they were. These carts should then have all been in use by the many
customers he claimed were in and about the store. I therefore specifically reject the con-
tention that the employees' offer to return was a form of harassment.
88 The credited testimony of Colleran and Scarozza
31 Employee Ginett credibly testified to her own application and rejection at this time.
22 The credited testimony of employee DeGain.
33 The credited testimony of Jakubczak, corroborated by employees DeGain and Turner.
Upon my observation of Hyman Benatovich as a witness , I do not credit his denial of this
or other conduct and statements attributed to him.
84 This does not include employee Mario Carosi who did not apply for reinstatement until
July 24, and was told he had been permanently replaced as he had failed to see Respond-
ent Benatovich before voting in the earlier election in which Carosi had voted while on
sick leave ( infra).
PARK EDGE SHERIDAN MEATS, INC., ETC. 759
well as employees Tracy and Disarno not so listed , were called to testify they would
state that they individually appeared at the McKinley Market on June 24, uncondi-
tionally offered to return to work , and were informed by the Respondent that they
had been permanently replaced.35
Wholly apart from the personal appearance of individual strikers to request their
jobs and the several requests made by chosen representatives in behalf of all the
strikers , a number of strikers testified to having heard individually or through
their group representatives that strikers had been refused their jobs because of
permanent replacement . They did not themselves apply for reinstatement, con-
sidering it a useless gesture. Employees Lawton and Sarama so testified credibly
and I now accept an offer of proof made for the same purpose previously stated
(footnote 35) with respect to similar expected testimony of the striking employees
listed in Appendix D.
Following Respondent 's rejection of their offer to unconditionally return to work
the employees immediately thereafter resumed their strike and the picketing of
Respondent 's premises.36 It continued unabated through September 1, 1961. Mean-
while on August 21, 1961, Local 34 reaffirmed the employees ' earlier oral offers
to return to work , including Mario Carosi's July 24 offer . Thus in a letter to Re-
spondent acknowledged by it as an unconditional offer to return , Local 34 stated:
This letter constitutes a reaffirmation of oral offers to return to work here-
tofore made by the striking employees at your places of business.
The Union, on behalf of the striking employees , unconditionally offers that
these employees will return to work upon request by the employer.
Thereafter on August 31 a telegram was sent to each striking employee stating:
In view of the unconditional offer to return to work made in your behalf by
Local 34, Amalgamated Meat Cutters Union , you are requested to report for
work Tuesday morning , September 5.
(S) BENATOVICH BROTHERS,
PARK EDGE MARKETS.37
H. Conclusions respecting the Respondent 's statements, conduct , and activities
The activities indulged in by Respondent 's officers and supervisors , as found
herein ,38 present a resume of the classic forms of employee interference , restraint,
and coercion . Thus employees were questioned concerning their Local 34 member-
ship and activity , threatened with reprisal for their continued adherence to it, and
to the strike which it was sponsoring , urged to engage in surveillance of its meeting
and to withdraw their membership in it , rand promised rewards for their efforts against
it. Citation of authority is quite unnecessary to conclude as I do that such conduct
is proscribed by Section 8 (a) (1) of the Act.
Similarly, the evidence clearly establishes that while all of the foregoing was taking
place, Respondent's officials and supervisors were exhausting their best efforts to
as This offer applies to witnesses not called , or pursuant to my instructions not ques-
tioned on this matter. It was made by General Counsel at my suggestion and noted in
the record over Respondent ' s objection This was done in the interest of expedition and
conservation of time and expense to Respondent and the Government . It is now accepted
in lieu of repetitive testimony for the same purpose. Sunbeam Lighting Company, Inc.,
136 NLRB 1248.
sa Credited testimony of employees Lyons and Miller.
37 The following I find did not receive such a telegram : Pauline Disarno , Rose Ginett,
Walter Graham , and Nancy Zunner. Betty Propster did not receive a telegram either but,
as I conclude hereafter (infra ) she did not work immediately prior to the strike nor did
she or anyone else testify that she participated in the strike.
as By way of summary the following commentary on resolution of credibility is made :
Throughout this report I have specifically noted, by appropriate footnote reference,
the basis upon which findings have been made . Frequently , however, the recollection of
witnesses at the hearing was refreshed by reference to previously adopted statements.
Unless I have noted the contrary, nothing herein is based upon such refreshed recollection
Fuithermoie , unless specifically noted otherwise , I have not relied upon the testimony
of Gerald Smith, Jarosz , Schoen, Heckman , and Samuel and Hyman Benatovich
And finally , to place the conduct attributed to them in the proper prospective, and to
further assess the credited testimony upon which findings respecting them had been made,
it is to be noted that the following did not testify at the hearing : Kostecki, Lettman,
Cohen, Gaik , Dimitroff, Bonifacio , and Herbert and Louis Benatovich.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promote the rival interests of another organizatic.i, the Retail Clerks. It is well
established that in matters involving the employees' selection of their bargaining
representatives an employer may assume no other position than a neutral one. It
is clear throughout the whole record in this case, however, that Respondent was
never neutral. On the contrary, the assistance disclosed by the credited testimony
herein and detailed above demonstrates that the Respondent, by its urging of mem-
bership in the Retail Clerks, as well as by its encouragement of employees to with-
draw from Local 34, assisted the Retail Clerks immeasurably, indeed to a defeat
of Local 34 in the election. Respondent thereby violated Section 8(a) (2) of the Act,
and also thereby further interfered with, restrained , and coerced the employees in
violation of Section (a) (1).
1. Conclusions respecting the strike- its causes and the consequences
A review of the credited findings made above discloses that when the employees
of the two markets walked out on July 15, and that evening voted to stay out, they
did so as a protest as well as a demand that the Union be recognized, as previously
agreed to (supra) 39 That it was a protest is clearly established by the testimony of
employee Lyons, detailed above (supra). Thus it had been reported to the union
president that employees "were being harassed at the store," "pressured into signing
cards for Local 212," and "being called into a meeting by Mary Bonifacio." 40
Further, "it was amazing the amount of people stood up, that they had complaints
that had never revealed them before." "And after everything was explained fully
and they all voted to stay out on strike."
Respondent's unfair labor practices "provide adequate ground for the orderly
strike that occurred here. Under those circumstances, the striking employees do
not lose their status and are entitled to reinstatement with backpay, even if replace-
ments for them have been made." 41 Nor is it of consequence that other causes,
economic in nature, also contribute to the calling of the strike , so long as it has been
established that the unfair labor practices "had partly caused the strike." 42
As previously noted, rights to reinstatement and backpay are fixed upon the
strikers' unconditional request to be taken back 43 It remains to be determined,
therefore, whether this did in fact occur. As the facts demonstrate, it was determined
by Local 34 and conveyed to the employees that, having lost the election, they
should go back to work, and the leaders were selected to accomplish this end. Thus
at the Sheridan Market employees Jakubczak, DeGain, and Turner unconditionally
offered in behalf of all of the striking employees to return to their jobs, as did
employee Lyons at the McKinley Market, and numerous other strikers either in
company with the above, or individually. The evidence is equally clear that
these offers were rejected by Respondent with the reply in every case that the strikers
had been permanently replaced. When, thereafter, the striking employees resumed
their strike, called off for the purpose of making their offer to return, I conclude
and find that the strike then partook of an unfair labor practice character for the
additional reason of protesting Respondent's blanket refusal to reinstate the group,
or any of them. And in this respect I am not persuaded of the merit of Respondent's
contention that the offer was not a sincere one but merely a device to heckle it on
a busy Saturday morning. I know of no case that requires a precise setting or a
specific time of day for the stopping of a strike and the requesting of job reinstate-
ment. The pickets did the only thing the law would expect of them. They stopped
picketing and went in by the front door of the market and asked for their jobs back.
And indeed if they had proceeded as a group beyond the front area of the store,
which they did not, or sought to enter by a rear door, they well might have been
accused of creating obstruction in the selling aisles, or of attempting to use un-
authorized entrances . Under all the circumstances, I find and conclude that the
requests were made properly and as found above.
Upon the rejection of their requests, the picket line resumed , while word filtered
down through the ranks that they had been replaced. Accordingly, many strikers,
The purposes of this July 15 strike are not to be confused with the stated purposes
of the June 5 strike, which was concededly for recognition only.
„' This evidence is corroborated by Acting Union President Smith, whose testimony I
find it otherwise unnecessary to rely upon.
Al Mastro Plastics Corp., et al . v N L R B , 350 U.S. 270, 278
4'4N.L R B. v Samuel J. Kobritz, d/b/a Star Beef Company, 193 F. 2d 8, 16-17 (C.A.1).
General Drivers and Helpers, Local 662 (Rice Lake Creamery) v. N.L R B, 302 F 2d 908
(C.A.D.C ).
43 Ibid
PARK EDGE SHERIDAN MEATS, INC., ETC. 761
their names being listed infra in Appendix D, deemed it to be a useless gesture to
personally apply for their jobs, and consequently they resumed the strike 44
Upon the foregoing it is abundantly clear that the employees were engaged in
a strike which, in part, was being prosecuted as a protest of the employer's unfair
labor practices, and that the strike was thereafter prolonged by the Respondent's
summary dismissal of them by informing them on June 24 that they were perma-
nently replaced.45 While there is conceded evidence that a further unconditional
request was made of Respondent in August, I find this only to be a reaffirmation
of the original and crucial one of June 24. On that day each striker's right to im-
mediate reinstatement vested, regardless of whether or not he had been replaced.
Having then refused the strikers their jobs Respondent thereby discriminated against
them in violation of Section 8(a) (3) of the Act, and I so find.
J. Individual instances of discrimination and alleged discrimination
1. Hazel Bauman
Hazel Bauman, the employee in the Sheridan Market meat department who was
discharged following her solicitation of Local 34 memberships (supra), was clearly
a victim of Respondent's efforts to impede Local 34's organizing campaign. This
is particularly evident from the selection of Bauman for discharge at such a critical
period of employee organizing activity, without reason and without regard to her
seniority among those available for a reduction in force. Moreover, Respondent's
interrogation of Bauman's fellow employees concerning her union activities crystalizes
my impression that she was discharged for reasons of Local 34 membership and
activity. I accordingly find that Respondent has thereby violated Section 8 (a) (3)
by discharging Hazel Bauman on the evening of Saturday, June 3, 1961.
2. Catherine Bartok
In addition to the discrimination which she suffered by virtue of alleged permanent
replacement on or before June 24, Catherine Bartok testified that following her re-
turn to work after the 1-day strike on June 5 her hours were altered to her detriment.
Thus, whereas she had worked 4 days in the cheese department and 1 day (Friday)
in the meat department for a total of 40 hours per w, ek before June 5, she claims
she was given less hours to work per week thereafter, and what appears equally up-
setting to her, she is being deprived of an opportunity to work "in cheese," a
treasured assignment.
Bartok's claim of receiving fewer hours after the strike than before does not com-
port with her timecards whose accuracy I have no reason to doubt. Thus, in no
week during the first quarter of 1961 did she ever work more than 33 hours. If,
therefore, she received more time during April, after she had joined Local 34 and
was thereafter "cut back" to a figure still higher than her previous time, she can
hardly be heard to complain that she has suffered.
Furthermore, I fail to see what, if any, hardship she suffered by being recalled to
wrap meat rather than to cut and wrap cheese. Under all the circumstances, there-
fore, I would recommend that so much of the complaint as alleges this additional
discrimination against employee Bartok be dismissed.
3. Mario Carosi
Interspersed throughout this report are references to Mario Carosi, a cutter in
the meat department (supra, footnotes 21, 28, 34). To avoid confusion as to his
case I shall summarize it at this point.
Carosi was on sick leave when the strike occurred and therefore was not a striker
and is not listed as a striker in Appendix B.46 It follows, therefore, he was not one
of those for whom unconditional reinstatement could have been sought on June 24,
44 Although numerous strikers so testified and I accept an offer of proof that the remain-
ing individuals listed in Appendix D would have likewise testified, I find and conclude
that their personal request would have been unnecessary in view of my earlier finding that
employees Jakubczak and Lyons had already spoken in behalf of all the strikers. I there-
fore rely upon the evidence of futility of the offer only as support for the established
fact that a general offer was made
48 Employee DeGain credibly testified : "If he had hired all of us back ; we all would
have went back into work ; there would not have been a picket line."
4e In this respect Carosi's vote in the June election is not evidence upon which I can
infer participation in the strike then in progress.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
irrespective of the fact he may have been physically present at that time (supra,
footnote 34). Indeed, any finding of a request in his behalf then would be rebutted
by the personal request he did make a month later, on July 24. On this occasion
Hyman Benatovich, in the course of telling him that he had been permanently re-
placed, also told Carosi that failing to have seen him before voting in the June elec-
tion was "going about it all wrong."
Clearly Respondent believed, however mistakenly, that Carosi had been one of the
strikers, or at least that he had made common cause with them. In either event it
may reasonably be inferred that Carosi was persona non grata for his affiliation with
the Union. Accordingly, I conclude and find that by its action of July 24, Respond-
ent discriminated against Mario Carosi for reasons proscribed by Section 8(a) (3) of
the Act, regardless of his earlier absence from participation in the unfair labor
practice strike.
4. Pauline Disarno
Pauline Disarno, hired after the June 5 strike, and a participant in the June 15
strike, worked a total of 9 days and received no notice to return. It is Respondent's
contention, supported by Respondent Sam Benatovich's testimony, that this employee
did not satisfactorily perform her job of wrapping meat. Specifically it was found
that meat packages known to have been wrapped by her leaked-a condition to be
deplored by any customer with such a package in a full bundle of groceries.
Although I have rejected Respondent Sam Benatovich's testimony generally, I p.m
disposed to accept his explanation for failing to recall this employee. This I do
upon the testimony of Disarno herself. Thus she testified she was inexperienced; and
thereafter in her testimony contradicted herself by first stating she was complimented
for her work by Supervisor Bonifacio and then admitting that she was being
"picked on all day" for wrapping meat improperly.
Were I to accept Respondent's testimony that Disarno was scheduled for discharge
because of the leaky packages she had wrapped, the plain fact is that she was not
discharged. Without substituting my judgment for Respondent's in matters of run-
ning a meat counter, it occurs to me that the more reasonable system of insuring
leak-proof meat packages would be to properly train the wrapper, not to fire her
forthwith. And there is no evidence of any training program for Disarno
during her brief tenure. Moreover, Respondent cannot be heard to insist in Septem-
ber that it meant to fire an employee in June. Having failed to do so then, and hav-
ing thereby permitted the employee to exercise the same privilege of striking enjoyed
by the other employees, Respondent's defense comes far too late to foreclose
Disarno from deriving the same benefits from the strike as do all the others. I
accordingly reject Respondent's defense to the discrimination it has visited against
Pauline Disarno as one of the striking employees who were told they had been
permanently replaced as of June 24, and include her among the striking employees
who became entitled to reinstatement when unconditioned request was made for her
reinstatement on that date (supra).
5. Rose Ginett
Rose Ginett, a college student employed part time in the office, went on strike
with the other employees on June 15. Thereafter on June 24, she reported to Grocery
Manager Cohen and unconditionally offered to return to her job. Cohen informed
her that she had been permanently replaced; and when asked by Ginett if she had been
fired he corrected her by stating that "no one has been fired." She did not receive
a telegram to return to work on September 5 as did the other strikers, and she went
immediately to the McKinley Market to find out why. She was refused her job
at that time by Respondent Sam Benatovich who told her, "Do you know you didn't
have any right to walk out. You work in the office. If we have any future openings
in the office we will give you a call." 47
It is Respondent's contention that Ginett was hired as a part-time replacement
for a full-time girl in the office and that during the period in which this condition
existed the office operations were most confused. Therefore it was decided while
the strike was still in progress to hire a full-time girl as a replacement, thus restoring
the working arrangements in effect prior to Ginett's hiring.
Respondent Sam Benatovich testified that after Ginett's walkout a part-time re-
placement for her, Anna Ferrari, was hired in early July. When Ferrari left in
+T The foregoing is based upon Ginett's credited testimony . I am aware that the chal-
lenge of this employee 's vote in the election was sustained . It is well established, how-
ever, that the placement of an employee in a bargaining unit in no way curtails his basic
right to go on strike.
PARK EDGE SHERIDAN MEATS, INC., ETC . 763
August a full-time girl was taken on in her place, and because the job required a full
timer, and one was on the job in September, Respondent could not take Ginett
back for part-time work.
I cannot accept Respondent's reasoning. When Ginett offered to return to work
on June 24 Grocery Manager Cohen told her she was permanently replaced. Yet
Respondent Sam Benatovich testified that he did not replace her until July, and then
with another part-tune employee, Ferrari. Without attempting to fathom the ap-
parent contradictions inherent in this particular testimony it is sufficient to note that
the presence of a full-time employee in Ginett's job at the time she sought to return
to work in September provided nothing more than a convenient excuse to eliminate
a former striker. I accordingly reject Respondent's defense with respect to Ginett
and would include her among those entitled to their jobs on June 24, when their offer
to return was first made.
6. Walter Graham
Walter Graham was employed full time at a local industrial plant and supple-
mented his earnings by part-time work at the McKinley Market when it suited his
work and vacation schedules. Although he went on strike on July 15 I am not
persuaded by his testimony that he participated in picketing, had any interest in the
labor dispute then in progress, or even had any intention of seeking the return of
his job. I observed this employee as a witness and have carefully studied his testi-
mony which I find confused and uncertain.48 Illustrative of this is his "guess" that
he picketed in June, and his failure to recognize what were the busiest and the slowest
days in the market in which he was employed. In such a state of the record, as
it pertains to Walter Graham, I find that he did not offer to return to the job which
he left with the striking employees until some indefinite number of weeks after the
employees had been called back in September 49 To the extent that Graham was
thereafter deprived of employment, I find that it was because he participated in the
June 15 strike, and I would therefore include him among those entitled to reinstate-
ment. Because, however, his testimony was entirely lacking in credence, I find
he has thereby foreclosed himself from consideration of any backpay, computation
having been made impossible by his own confused, and discredited, statement.
In finding as I have, I reject Respondent's contention that Graham was not taken
back because of the scheduling problem he presented. Be the problem as it may,
Respondent's intentions in this matter cannot override its failure before the June 15
strike to take such action as it deemed necessary. Accordingly, as in the case of
Disarno (supra), I reject the defense as being untimely, and include Walter Graham,
to the extent previously noted, among those with respect to whom Respondent has
violated Section 8(a) (3) of the Act.
7. Nancy Zunner
Nancy Zunner was employed in the meat department in the Sheridan Market
and joined the other employees in the June 15 strike. Employee Jakubczak on
June 24, offered, in behalf of all the striking Sheridan employees, which included Zun-
ner, to return to their jobs.
Unlike the other strikers, employee Zunner, for some unexplained reason, failed
to receive a telegram telling her to report to work on September 5. When she learned
during the second week of September that such telegrams had been sent she im-
mediately called Respondent Hyman Benatovich and asked him if she could return
to work. Benatovich told her that she should have gotten a telegram because she
was on the list. He then told her there was no work for her and that she would
be called back when business improved. She has never been recalled 50
When questioned at the hearing concerning Zunner, Respondent Hyman Bena-
tovich confirmed her testimony.51 He sought to justify the failure to take Zunner
back, however, on seniority, But he testified on cross-examination that during the
strike as many as 40 employees had been hired, some for the meat department,
and many of these were still there after September 5.
"On numerous points his recollection required refreshment by reference to an earlier
statement given by him to agents of the Regional Director
191 base this upon Respondent Sam Benatovich's admission In so finding I reject any
of Graham's testimony that would suggest that he considered an earlier request for his
job as futile
`0 The credited testimony of employee Zenner
51 Ills testimony in this respect conforms to an affidavit which he gave to representa-
tives of the Regional Director in October 1961.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An analysis of the record clearly demonstrates that a clerical mistake was made
as to Zunner (as well as with respect to Propster, infra) and that Respondent sought
to take advantage of its mistake and eliminate a returned striker. Thus the records
of Western Union disclose that Zunner was not one of the employees receiving a
telegram to report to work, and Hyman Benatovich's statement to her that her name
was on the list and that she should have reported is not true. Were this all there
was to the mistake then Respondent's refusal to reinstate Mrs. Zunner, and its con-
tinuance to do so up to the hearing, would be understandable. however, in the
course of investigation of this case, the Western Union file photocopy of the list
of names submitted by Respondent, being those to whom telegrams were to be sent,
was compared with the original list which Western Union had returned to Respond-
ent after the transmission of the message and the photocopying of the list. Upon
comparison of the lists, both of which appear in the record, it is to be noted that
the names of Nancy Zunner and Betty Propster were added to the original list at
some time after it had been photocopied by Western Union for its files and had
been returned to Respondent. Thus Respondent's records would have it appear that
Zunner had received a telegram-a conclusion refuted by the copy of the original
and authentic list in the possession of Western Union. As Hyman Benatovich's
assurance to Zunner that she was sent a telegram can thus only be supported by such
a falsification, I necessarily reject it. Accordingly, I conclude and find that employee
Zunner's rights of reinstatement earned by her unconditional offer to return to work
made in her behalf on June 24 and again on August 21 were in no manner abrogated
by any failure to receive a recall telegram at any time thereafter.
8. Betty Propster
Betty Propster was also employed in the meat department of the Sheridan Market.
Her situation is best described by an affidavit of Hyman Benatovich given to agents
of the Regional Director on October 22, 1961, in connection Case No. 3-RC-2613:
Betty Propster was a workmen's compensation case beginning in April, 1961.
She was notified by telegram to return to work on September 5, 1961. She did
not come in that day. I talked with her by telephone on or about September
18, 1961. She called me. She wanted to know why her name was not on the
schedule. I told her that she did not report back to work as per the telegram.
I consider her ineligible because she did not report to work on September 5
as per instructions in the telegram. Her name was on the list to receive a
telegram.
As in the case of employee Zunner, as described above, Propster's name was
mistakenly omitted from the list of employees to be recalled, and was thereafter
inserted, together with Zunner's name after the list had been photocopied by West-
ern Union for its files, and returned to Respondent. Thus Hyman Benatovich's
statement to Propster that she was sent a telegram is not true and the reason for this
failure to hire her thereupon falls. On the other hand there is nothing in the record
to suggest that she was refused reinstatement for reasons proscribed by the Act.
Thus she was absent on sick leave beginning March 27, 1961, and has not since
worked or, prior to her September 18 telephone call. sought to work. Nor is there
evidence of any knowledge on Respondent's part of her membership in or her
activity on behalf of Local 34 at any time then or thereafter,52 or indeed any
evidence that she did belong to or was active in Local 34. Under such circum-
stances, therefore, I do not feel that Respondent has any obligation to establish
that he did not recall Propster for unlawful reasons. Accordingly, as I am not
disposed to equate sloppy personnel practices with unfair labor practices, I shall
recommend the complaint be dsimissed as to Betty Propster.53
9. Mary K. Tracy
Mary K. Tracy, while a senior at Buffalo State Teachers College, was employed at
the McKinley Market as a part-time meatwrapper through June 1961. She par-
ticipated in the June 15 strike. Thereafter, in August, Mrs. Tracy gave birth to a
-59 Mrs Propster credibly testified that when she was trying to get her job back in Sep-
tember Meat Department Manager Kostecki asked her if she had voted in the June 22
election When she replied that she had, he said, "Well, there you are. I don't know."
This is certainly no evidence of employer union knowledge , motivation, or animus, and
I so find.
53 In view of my conclusions herein I find it unnecessary to evaluate the state of em-
ployee Propster 's health at the time she sought her job
PARK EDGE SHERIDAN MEATS, INC., ETC. ! 65
child. As of the time she was sent Respondent's telegram directing her to report
to work on September 5 Mrs. Tracy was still confined to the hospital, receiving
medical care for complications that had developed as a result of childbirth. Upon
learning of the telegram she requested her husband to call Local 34. T h's he did
and was told to call the Respondent and report Mrs. Tracy as being incapacitated.
He called as directed and spoke to a girl in the office whom he told that his wile
would give them a call when she was cleared by t.1e doctor.54 Mrs. Tracy credibly
testified that she never called back, as her husband had assured the girl in the office
she would. She did report to vote in a second Board-conducted election in lute
September 1961, at which time her vote was challenged, presumably for non-
employment. There is nothing in the record to suggest, however, that Mrs. Tracy
ever requested the return of her job following her participation in the strike. Inas-
much as she sought to vote as an employee during a period when she wi s still
unemployable, however, and thereafter participated in these proceedings as a claimrnt
for her job,55 there is evidence of her continuing interest in further employment
with Respondent, as distinct from a request for her job. But until such time as
she does unconditionally request a job to which she is entitled as a participant in the
June 15 unfair labor practice strike, I find Respondent has no obligation to .-
el:.-state her and owes her no backpay. I accordingly would dismiss so much of the
complaint as alleges an unlawful refusal to reinstate Mary K Tracy. I find, how-
ever, that she is entitled to reinstatement as an unfair labor practice striker upon
her unconditioned request for it.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
VI. THE REMEDY
Since I have found that Respondent, by numerous acts and statements, has in-
terfered with, restrained, and coerced its employees in violation of Section 8 (a)( I)
and has unlawfully assisted the Retail Clerks in violation of Section 8(a)(2); and
since I have further found that this unlawful conduct was the cause, in part, of
the strike of Respondent's employees on June 15, and of its prolongation thereafter,
thereby denominating the work stoppage an unfair labor practice strike, and since
Respondent on June 24, 1961, and on various dates thereafter refused to reinstate
the strikers upon their unconditioned request therefor, as required by law,55 thereby
discriminating against them in violation of Section 8(a)(3) of the Act, 1 shall
recommend that Respondent cease and desist from the foregoing unlawful conduct
and from infringing in any manner upon the rights of the employees guaranteed
by Section 7 of the Act.57
With respect to so much of this remedy as applied to those discriminated against
by Respondent, clarification is in order. Thus it is to be noted that with the excep-
tions noted and considered herein all striking employees had been recalled to
work. As their reinstatement has been accomplished no further affirmative action
is required. With respect to the backpay due these individuals and others whose
circumstances have been considered herein varying periods of liability have been
established, and appear, as appropriately noted, on Appendix E attached hereto and
made a part hereof. In this Appendix E it is to be noted that for the striking
employees, generally, June 24, 1961, is the date upon which their backpay com-
mences; being the date upon which it has been found that. with the exceptions
noted, they abandoned the strike and unconditionally requested their jobs, either
personally or by representative,58 to September 5, the date upon which the strikers,
with exceptions noted, were returned to their jobs Nor is it significant that im-
mediately upon Respondent's rejection of their requests the strike resumed Unlike
the usual situation where backpay is tolled during the pendency of an economic
51 The credited testimony of James Tracy.
Is It Is to be noted that Section 148 of the New York State Labor Law precludes an
employer from knowingly permitting a female to be employed within 4 weeks after giving
birth
50 DT L R.B. v Mackay Radio & Telegraph Co . 304 U S . 333, 346.
57 N L R.B v . Express Publishing Company , 312 U . S. 426, 437.
58 N L R B v Mastro Plastics Corp ., et at., supra.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike the strikers here were ready and available for work and were deprived of it
solely by Respondent's unlawful rejection of their request.59
Apart from the bulk of the strikers for whom backpay runs from June 24 to
September 5, 1961, it is recommended that certain other claimants listed on Appendix
E be treated differently or noted specially.
Hazel Bauman was discharged at the close of the workday, on Saturday, June 3,
and was reinstated on Tuesday, June 6. On the intervening June 5, she participated
in the 1-day strike. Miss Bauman's presence on the picket line was not occasioned,
however, by her voluntary quitting of her job for the purpose, which is the usual
situation. She was available to picket because she was not permitted to work,
having been discharged. Under such circumstances her backpay should not be
withheld for that day on which she was on strike 60
Mario Carosi, absent on sick leave and not having been on strike before seeking
his job on July 24, was not discriminated against until his rejection of that day
(supra).
Pauline Disarno being an employee in good standing when she joined the strike
(supra), became an unfair labor practice striker entitled to reinstatement and back-
pay. I shall accordingly recommend her reinstatement, offers to return having
already been made in her behalf (supra and Appendix B), and I further recommend
that her backpay extend to the date upon which Respondent reinstates her.
Rose Ginett, having been found to be a participant in the June 15 unfair labor
practice strike, is entitled to immediate reinstatement which I recommend be
offered her, unconditioned requests to return having already been made by her
personally on June 24 and September 5. I also recommend that her backpay
extend to the date upon which Respondent reinstates her, dismissing if necessary
anyone hired after June 24 to perform her work.
Walter Graham has been credibly identified as having joined in the unfair labor
practice strike and is therefore entitled to reinstatement upon unconditioned request
therefor (supra). While I have found upon credible evidence that all of the
strikers listed on Appendix B, by designated representatives (supra), offered to
return, Graham's testimony convinces me that having once gone on strike he did
nothing further, thus rebutting the presumption of availability arising out of the
employees' blanket request to return (supra). Having so demeaned himself as
to put his availability in doubt during all significant periods herein, I recommend
he not be given backpay for the period prior to his September request for a job.
Nancy Zunner, whose name appears to have been erroneously omitted from the
list of those to receive recall telegrams, participated in the June 15 strike and was
one of those for whom an unconditioned request to return was made on June 24
(Appendix B). I accordingly recommend that she be offered immediate reinstate-
ment and that she receive backpay beginning on June 24, 1961.
Mary K. Tracy, like the others considered herein, participated in the June 15
walkout. While her right to recall vested upon unconditioned request and while
such a request made in her behalf established a presumption that she was available
to work, it appears that her continued failure to take any positive steps to appear
for her job, after she was physically able to resume work, rebutted the presumption
that she was available for it (supra).61 I shall recommend, therefore, that she
receive no backpay, but that following the issuance of this report, upon seasonable
and unconditional request for her job, she be reinstated to it.
Hazel Bauman was a participant in the June 15 strike and her name appears on
Appendix E among those entitled to backpay for the period between June 24 and
September 5, 1961. Miss Bauman, it has been found, was discriminatorily dis-
charged on the occasion of the June 5 strike and, after a loss of 1 day's employ-
ment, was returned to her job (supra). In this respect it is immaterial that as a
discriminatorily discharged employee she participated in the 1-day strike 62 I shall
recommend, therefore, that in addition to the foregoing remedy as it applies to
Hazel Bauman, that she also be made whole for the loss incurred by Respondent's
earlier discrimination against her.
In recommending that Respondent make whole the aforementioned employees for
the loss suffered because of the discrimination suffered by them the backpay, except
69Ra-Rich Manufacturing Corporation, 120 NLRB 503, 505.
&' Ra-Rich Manufacturing Corporation, supra.
61 Cf Kansas Milling Company , 86 NLRB 925, 926.
62 Ra -Rich Manufacturing Corp , supra, footnote 59.
PARK EDGE SHERIDAN MEATS, INC., ETC. 767
as noted above, should be computed in the customary manner.63 I shall further
recommend that the Board order Respondent to preserve and make available to the
Board, upon request, payroll and other records to facilitate the checking of the amount
of backpay due and the rights of employment.
And finally, with respect to any and all of the foregoing who have not been re-
instated to their former or substantially equivalent positions and whose reinstatement
is contemplated by the recommendations herein it is to be understood that such
reinstatements are to be effected by dismissing, if necessary, employees hired after
June 15, 1961, the date upon which the unfair labor practice strike began.
As there is no evidence that Respondent ever recognized the Retail Clerks whose
campaign it supported and assisted, I find it unnecessary to recommend affirmatively
that Respondent cease recognizing the assisted union.64
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 is an employer within the meaning of Section 2(2) of the Act and
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Local 34 and the Retail Clerks are labor organizations within the meaning of
Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, as found above, Respondent engaged in unfair
labor practices violative of Section 8(a) (1) of the Act.
4. By rendering unlawful support and assistance to the Retail Clerks, as found
above, Respondent has engaged in and is engaging in unfair labor practices violative
of Section 8 (a) (2) and (1) of the Act.
5. By discriminating in regard to the hire and tenure of employment of its em-
ployees, thereby discouraging membership in Local 34, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(3).
6. By the aforesaid discrimination and rendering of unlawful support and assistance
to the Retail Clerks, the Respondent has further interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed them in Section 7 of the
Act, and thereby has additionally engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor 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 pur-
suant to Section 10(c) of the National Labor Relations Act, as amended, it is recom-
mended that the Respondent, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees as to their union membership and activities, in a
manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1)
of the Act.
(b) Threatening its employees with layoff, discharge, physical harm, more arduous
working conditions, less hours of work, or the withdrawal of benefits if they became
or remained members of Local 34, or any other labor organization.
(c) Promising its employees raises in pay, more hours of work, retention of em-
ployment or other benefits if they refrained from becoming or remaining members
of Local 34, or of any other labor organization.
(d) Urging its employees to engage in surveillance of the meetings of Local 34,
or any other labor organization.
(e) Suggesting the setting up of an employee committee in opposition of Local
34, or to any other labor organization.
(f) Urging and inducing its employees to revoke their membership in Local
34, or in any other labor organization.
(g) Urging and soliciting its employees to join the Retail Clerks or any other labor
organization.
(h) Rendering support and assistance to the Retail Clerks.
63P W Woolworth Company, 90 NLRB 289.
64Lundy Manufacturing Corporation, 136 NLRB 1230; Ly7ce8 Bro8, Inc. of Georgia,
128 NLRB 606, 611.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(i) Discouraging membership in Local 34, or in any other labor organization of
its employees, by discharging its employees or by discrimination in any other manner
in regard to their hire or tenure of employment, or any term or condition of
employment.
(j) In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is necessary to effectuate the policies
of the Act:
(a) Offer to Pauline Disarno, Walter Graham, Rose Ginett, Mary K. Tracy, and
Nancy Zunner immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights and privileges,
dismissing, if necessary, any employees hired on or after June 24, 1961.
(b) Make whole for any loss of pay they may have suffered as a result of the
discrimination against them the employees listed in Appendix E, attached hereto and
made a part hereof, for the periods listed opposite their respective names and in the
manner set forth above in section VI entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for ex-
amination and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary to analyze the amount
of backpay due under the terms of this Recommended Order.
(d) Post at each of its stores copies of the attached notice marked "Appendix A." as
Copies of said notice, to be furnished by the Regional Director for the Third Region,
Buffalo, New York, shall, after being duly signed by a representative of the Respond-
ent, be posted by the Respondent immediately upon receipt thereof, and be maintained
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 to insure that such notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for the Third Region, in writing, within 20 days
from the date of the receipt of this Intermediate Report and Recommended Order,
what steps the Respondent has taken to comply herewith.66
It is further recommended that so much of the complaint as alleges a violation of
the Act with respect to Catherine Bartok prior to June 15, 1961, and Betty Propster
at any time alleged, be dismissed.
It is further recommended that, unless the Respondent shall within the prescribed
period notify the said Regional Director that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue its order requiring the Re-
spondent to take the aforesaid action.
a In the event that this Recommended Order be adopted by the Board , the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
' In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Local 34, Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO, or any other
labor organization of our employees, by discharging or in any other manner
discriminating against them in regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT unlawfully question our employees about their union member-
ship or activities.
WE WILL NOT threaten them with layoff, discharge, physical harm, harder
work, fewer hours, or the taking away of benefits they now have if they be-
come or remain members of Local 34, or any other labor organization.
WE WILL NOT promise our employees raises in pay, more hours of work,
retention of jobs, or other benefits if they stay out of or resign from Local 34.
PARK EDGE SHERIDAN MEATS, INC., ETC. 769
WE WILL NOT suggest that our employees set up a committee in opposition
to Local 34 or any other labor organization.
WE WILL NOT urge and induce them to revoke their membership in Local 34,
or in any other labor organization.
WE WILL NOT urge and solicit them to join the Retail Clerks, or any other
labor organization.
WE WILL NOT support or assist the Retail Clerks in any other manner.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor or-
ganizations, to on or assist Local 34, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
WE WILL offer Pauline Disarno, Walter Graham, Rose Ginett, Mary K.
Tracy, and Nancy Zunner immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority or other
rights and privileges, and to do this we will dismiss, if necessary, any employee
hired since June 24, 1961.
WE WILL make whole for any loss of earnings they may have suffered as
a result of the discrimination against them those employees listed on Appendix
E, attached to this notice and made a part of it. The period for which each
employee will receive backpay is set down opposite his or her name.
All our employees are free to become or remain, and to refrain from becoming
or remaining, members of the above-named or any other labor organization.
PARK EDGE SHERIDAN MEATS, INC.
PARK EDGE MCKINLEY MEATS, INC.
PARK EDGE SUPER MARKETS,
GROCERY DIVISION.
PARK EDGE SUPER MARKETS,
PRODUCE DIVISION.
PARK EDGE GROCERIES.
BENATOVICH BROTHERS,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo 2, New York, Telephone
Number, Ti. 6-1782, if they have any question concerning this notice or compliance
with its provisions.
EMPLOYEES
APPENDIX B
WHO ENGAGED IN STRIKE BEGINNING ON JUNE 15, 1961
Aloisio, Louis, Jr. Damien, Arthur Jarosz, Daniel
Balkin, Edward L. DeGain, Rita Kasprzak, Helen
Baron, Leonard Disarno, Pauline Knooichsen, David
Barnum, Burdett Doyle, Mary Korwek, Richard
Bartok, Catherine Dures, Mary Ann Krajewski, Gerald
Bauer, Mary Ann Dures, Jean Kroneiss, Marie
Bauer, Robert Dwigun, Elvira Kuntor, Leslie
Bauman, Hazel Ebert, Dennis Kuziomoko, Andrew
Berger, George Ellis, Donna Larkowski, Ronald
Blachowiak, Barbara Falvarcik, Barbara Latos, Gray
Blachowiak, Robert Fassell, Robert Lawton, James
Blair, Donna Fraccica (Rodzik), Julia Lynch, Kenneth
Bovo, Vito Fraccica, Mary Ann Lyons, Myles
Boginski, Roger Gambino, Elizabeth Machovic, Joseph
Brett, Eleanor Gedra, Frank Manzella, Joan
Carosi, Umberto Ginett, Rose Margowski, Helen
Carovski, Valdo Graham, Walter Mariani, Dominic
Cartonia, Drewcilla Hammond, Phyllis Martin (Bovo), Ann
Celani, David Heckman, Priscilla McKowan, Judy
Colleran, Daniel Heichberger, John McTigue, Raymond P., Jr.
Collopy, Adelbert Hoffman, Marion Menna, Evelyn
Coppola, Ralph Jakubczak, Thaddeus Miller, William
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
EMPLOYEES WHO ENGAGED IN STRIKE BEGINNING ON JUNE 15, 1961-Continued
Montando, Mary Quinn, Francis Shear, Amelia
Moser, James Reif, Joseph Short, Shirley
Nosbisch, Gerald Rodeghiero, Andrew Smith, Patricia Ann
O'Scier, Peter Rog, Christine Torella, Armando
Oyer, Gray Rose, Sharon Tarabula, Edward
Panzarella, Frank Ryan, Michael Tracy, Mary K.
Pasciak, Peggy San Filippo, Marie Turner, Margaret
Patterson, Robert Saraceno, Rosario Vujanovich, Peter
Pasco, Angela Sarana, Chester White, David L.
Pagano, Peter Scarozza, Robert Zunner, Nancy
Pietrocarlo, Mary Ann Schoen, George
APPENDIX C
EMPLOYEES WHO MADE PERSONAL UNCONDmONAL REQUESTS FOR REINSTATEMENT
ON JUNE 24, 1961
Aloisio, Louis, Jr. Ellis, Donna Pasco, Angela
Balkin, Edward L. Gambino, Elizabeth Pagano, Peter
Baron, Leonard Ginett, Rose Pietrocarlo, Mary Ann
Barnum, Burdett Jakubczak, Thaddeus Quinn, Francis
Bauer, Robert Korwek, Richard Rog, Christine
Berger, George Kuntor, Leslie Ryan, Michael
Bretl, Eleanor Lyons, Myles Sarceno, Rosario
Bovo, Vito Machovic, Joseph Scarozza, Robert
Carosi, Umberto Manzella, Joan Shear, Amelia
Carovski, Valdo Marian, Dominic Smith, Patricia Ann
Colleran, Daniel Martin (Bovo), Ann Tarabula, Armando
Damien, Arthur Menna, Evelyn Torella, Edward
DeGain, Rita Miller, William Turner, Margaret
Dures, Jean Montando, Mary Vujanovich, Peter
Dwigun, Elvira
APPENDIX D
EMPLOYEES WHO CONSIDERED IT USELESS AND FUTILE To MAKE A PERSONAL REQUEST
FOR REINSTATEMENT ON AND AFTER JUNE 24, 1961
Bauer, Mary Ann Fassell, Robert Nosbisch, Gerald
Blachowiak, Barbara Fraccica (Rodzik), Julia O'Scier, Peter
Blachowiak, Robert Fraccica, Mary Ann Patterson, Robert
Capola, Ralph Heichberger, John Reif, Joseph
Celan, David Larkowski, Ronald San Filippo, Marie
Doyle, Mary Lawton, James Sarana, Chester
Dures, Mary Ann McTigue, Raymond P., Jr. White, David L.
APPENDIX E
EMPLOYEES ENTITLED TO BACSPAY
Period of back pay entitlement
From- To-
Aloisio, Louis, Jr---------------------------- June 24, 1961 Sept. 5, 1961
Balkin , Edward L___________________________ June 24, 1961 Sept. 5, 1961
Baron, Leonard_____________________________ June 24, 1961 Sept. 5, 1961
Barnum, Burdett____________________________ June 24, 1961 Sept. 5, 1961
Bartok, Catherine___________________________ June 24, 1961 Sept. 5, 1961
Bauer, Mary Ann___________________________ June 24, 1961 Sept. 5, 1961
Bauer, Robert______________________________ June 24, 1961 Sept. 5, 1961
June 5, 1961Hazel_____Bauman June 6, 1961, ________________________ June 24, 1961 Sept. 5, 1961
Berger, George_____________________________ June 24, 1961 Sept. 5, 1961
Blachowiak, Barbara_________________________ June 24, 1961 Sept. 5, 1961
Blachowiak, Robert__________________________ June 24, 1961 Sept. 5, 1961
Blair, Donna_______________________________ June 24, 1961 Sept. 5, 1961
Boginski, Roger----------------------------- June 24, 1961 Sept. 5, 1961
PARK EDGE SHERIDAN MEATS, INC., ETC. 771
EMPLOYEES ENTITLED TO BACKPAY-Continued
Period of backpay entitlement
From- To-
Bovo, Vito_________________________________ June 24, 1961 Sept. 5, 1961
Brett, Eleanor______________________________ June 24, 1961 Sept. 5, 1961
Carosi, Mario______________________________ July 24, 1961 Sept. 5, 1961
Carosi, Umberto____________________________ June 24, 1961 Sept. 5, 1961
Carovski, Valdo____________________________ June 24, 1961 Sept. 5, 1961
Cartonia, Drewcilla_________________________ June 24, 1961 Sept. 5, 1961
Celani, David_______________________________ June 24, 1961 Sept. 5, 1961
Colleran, Daniel____________________________ June 24, 1961 Sept. 5, 1961
Collopy, Adelbert ___________________________ June 24, 1961 Sept. 5, 1961
Coppola, Ralph_____________________________ June 24, 1961 Sept. 5,1961
Damien, Arthur____________________________ June 24, 1961 Sept. 5, 1961
DeGain, Rita_______________________________ June 24, 1961 Sept. 5, 1961
li 24Di P J 1961ne____________________________ une ,sarno, au
Doyle, Mary _______________________________ June 24, 1961 Sept. 5, 1961
Dures, Mary Ann___________________________ June 24, 1961 Sept. 5, 1961
Dures, Jean________________________________ June 24, 1961 Sept. 5, 1961
Dwigun, Elvira_____________________________ June 24, 1961 Sept. 5, 1961
Elbert, Dennis------------------------------ June 24, 1961 Sept. 5, 1961
Ellis, Donna________________________________ June 24, 1961 Sept. 5, 1961
Falvarcik, Barbara__________________________ June 24, 1961 Sept. 5, 1961
Fassell, Robert ______________________________ June 24, 1961 Sept. 5, 1961
Fraccica (Rodzik), Julia_____________________ June 24, 1961 Sept. 5, 1961
Fraccica, Mary Ann_________________________ June 24, 1961 Sept. 5, 1961
Gambino, Elizabeth_________________________ June 24, 1961 Sept. 5, 1961
Gedra, Frank_______________________________ June 24, 1961 Sept. 5, 1961
Ginett, Rose________________________________ June 24, 1961
Hammond, Phyllis-------------------------- June 24, 1961 Sept. 5, 1961
Heckman, Priscilla__________________________ June 24, 1961 Sept. 5, 1961
Heichberger, John__________________________ June 24, 1961 Sept. 5, 1961
Hoffman, Marion___________________________ June 24, 1961 Sept. 5, 1961
Jakubczak, Thaddeus________________________ June 24, 1961 Sept. 5, 1961
Jarosz, Daniel______________________________ June 24, 1961 Sept. 5, 1961
Kasprzak, Helen____________________________ June 24, 1961 Sept. 5, 1961
Knooichsen, David__________________________ June 24, 1961 Sept. 5, 1961
Korwek, Richard____________________________ June 24, 1961 Sept. 5, 1961
Krajewski, Gerald___________________________ June 24, 1961 Sept. 5, 1961
Kroneiss, Marie____________________________ June 24, 1961 Sept. 5, 1961
Kuntor, Leslie______________________________ June 24, 1961 Sept. 5, 1961
Kuziomko, Andrew__________________________ June 24, 1961 Sept. 5, 1961
Larkowski, Ronald__________________________ June 24, 1961 Sept. 5, 1961
Latos, Gary ________________________________ June 24, 1961 Sept. 5, 1961
Lawton, James ------------------------------ June 24, 1961 Sept. 5, 1961
Lynch, Kenneth____________________________ June 24, 1961 Sept. 5, 1961
Lyons, Myles_______________________________ June 24, 1961 Sept. 5, 1961
Machovic, Joseph___________________________ June 24, 1961 Sept. 5, 1961
Manzella, Joan _____________________________ June 24, 1961 Sept. 5, 1961
Margowski, Helen__________________________ June 24, 1961 Sept. 5, 1961
Marian, Dominic___________________________ June 24, 1961 Sept. 5, 1961
Martin (Bovo), Anna_______________________ June 24, 1961 Sept. 5, 1961
McKowan, Judy____________________________ June 24, 1961 Sept. 5, 1961
McTigue, Raymond P., Jr-------------------- June 24, 1961 Sept. 5, 1961
Menna, Evelyn_____________________________ June 24, 1961 Sept. 5, 1961
Miller, William_____________________________ June 24, 1961 Sept. 5, 1961
Montando, Mary ____________________________ June 24, 1961 Sept. 5, 1961
Moser, James_______________________________ June 24, 1961 Sept. 5, 1961
Nosbisch, Gerald___________________________ June 24, 1961 Sept. 5, 1961
O'Scier, Peter_______________________________ June 24, 1961 Sept. 5, 1961
Oyer, Gary _________________________________ June 24, 1961 Sept. 5, 1961
Panzarella, Frank___________________________ June 24, 1961 Sept. 5, 1961
Pasciak, Peggy______________________________ June 24, 1961 Sept. 5, 1961
Patterson, Robert ___________________________ June 24, 1961 Sept. 5, 1961
Pasco, Angela______________________________ June 24, 1961 Sept. 5, 1961
1 Date of reinstatement.
672010-63-vol. 139-60
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
EMPLOYEES ENTITLED TO BAcKPAY-Continued
Period of backpay entitlement
From- To-
Pagano, Peter_ _____________________________ June 24, 1961 Sept . 5, 1961
Pietrocarlo, Mary Ann______________________ June 24, 1961 Sept. 5, 1961
Quinn, Francis______________________________ June 24, 1961 Sept. 5, 1961
Reif, Joseph________________________________ June 24, 1961 Sept. 5, 1961
Rodeghiero, Andrew_________________________ June 24, 1961 Sept . 5, 1961
Rog, Christine______________________________ June 24, 1961 Sept. 5, 1961
Rose, Sharon_______________________________ June 24, 1961 Sept . 5, 1961
Ryan, Michael______________________________ June 24, 1961 Sept. 5, 1961
San Filippo , Marie__________________________ June 24, 1961 Sept. 5, 1961
Saraceno, Rosario____ _______________________ June 24, 1961 Sept . 5, 1961
Sarana, Chester____ _________________________ June 24, 1961 Sept. 5, 1961
Scarozza, Robert ____________________________ June 24, 1961 Sept . 5, 1961
Schoen, George_____________________________ June 24, 1961 Sept . 5, 1961
Shear, Amelia______________________ ________ June 24, 1961 Sept . 5, 1961
Short, Shirley----------------------- -------- June 24, 1961 Sept . 5, 1961
Smith, Patricia Ann_________________________ June 24 , 1961 Sept . 5, 1961
Torella, Armando___________________________ June 24, 1961 Sept . 5, 1961
Tarabula, Edward__ _________________________ June 24, 1961 Sept . 5, 1961
Turner, Margaret___________________________ June 24, 1961 Sept . 5, 1961
Vujanovich , Peter___________________________ June 24, 1961 Sept. 5, 1961
White, David L____________________________ June 24, 1961 Sept . 5, 1961
Zunner, Nancy_________ ____________________ June 24, 1961
'Date of reinstatement.
Noritake Co., Inc. and District 65, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO. Case No. 2-CA-8469. November
1,1962
DECISION AND ORDER
On July 5, 1962, Trial Examiner Lloyd Buchanan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in certain unfair labor practices but
finding that it had engaged in certain other unfair labor practices,
as set forth in the attached Intermediate Report. However, he rec-
ommended that the complaint be dismissed in its entirety. There-
after, the Charging Party and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member,
panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, exceptions and briefs, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
139 NLRB No. 62.