Phil's Sav-Mart Service

National Labor Relations Board - Board Decisions

Mar 7, 1973

202 N.L.R.B. 267 (N.L.R.B. 1973)

PHIL'S SAV-MART SERVICE 267
Philip David Sachs and Michael Sachs , a partnership,
d/b/a Phil's Sav-Mart Service, Peko Ltd., and
Sav-Co., Inc., d/b/a Sav-Mart, Jointly and Gary E.
Waligorski and David A. Templeman and Steve M.
Noel and John A. Pauline . Cases 14-CA-6540-1,
14-CA-6540-2, 14-CA-6540-3, and 14-CA-
6540-4
March 7, 1973
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 15, 1972, Administrative Law Judge
Paul E. Weil issued the attached Supplemental
Decision in this proceeding. Thereafter, the Respon-
dent Peko Ltd. and Sav-Co. filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and brief, and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended Order
as herein modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents,
Philip David Sachs and Michael Sachs, a Partner-
ship, d/b/a Phil's Sav-Mart Service, Peko Ltd., and
Sav-Co., Inc., d/b/a Sav-Mart, Jointly, Collinsville,
Illinois, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in a labor organiza-
tion by discriminating in regard to hire, tenure, or
other conditions of employment.
(b) Interrogating employees as to their or other
employees' union activities or as to the reasons
therefor or telling employees that they will lose their
jobs in the event they support the Union.
(c) In any manner interfering with, restraining, or
coercing their employees in the exercise of the right
to self-organization, to form labor organizations, to
join or assist any labor organization, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, and to refrain from any and all such
activities except to the extent such right to refrain
may be affected by an agreement requiring member-
ship in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the
Act.
2. Each jointly and severally take the following
affirmative action which is necessary to effectuate
the purposes of the Act:
(a) Offer to Gary E. Waligorski, David A.
Templeman, Steve M. Noel, and John A. Pauline
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions at
the gas station if it is presently open and under
control of Respondents at their shopping center at
Collinsville, Illinois; otherwise offer the said employ-
ees reinstatement at the existing operations at the
said shopping center in any substantially equivalent
jobs for which they may be qualified, without loss of
seniority or other rights or privileges, dismissing, if
necessary, any person hired after the discharge of the
above-named employees; and if there are still
insufficient job openings, distributing available
positions without discrimination against any of the
said employees because of union affiliation or
activities, following the system of seniority, if any,
customarily applied in the conduct of the Respon-
dent's business, and create a preferential hiring list
containing the names of any employees above named
for whom there are not sufficient job openings and,
as job openings occur thereafter, offer reinstatement
to said employees to any substantially equivalent
jobs for which they may be qualified.
(b) Make each such individual whole for any loss
of earnings suffered by reason of the discrimination
against him from the date of the termination of his
.employment, until the fulfillment of the obligation
imposed in paragraph 2(a) in the manner set forth in
the section of the Administrative Law Judge's
Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination 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 Order.
(d) Post at their place of business in Collinsville,
Illinois, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 14,
1 In the event that the Board 's Order is enforced by a Judgment of a to a Judgment of the United States Court of Appeals enforcing an Order of
United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board."
Order of the National Labor Relations Board" shall read "Posted pursuant
202 NLRB No. 48
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after being duly signed by their representative shall
be posted immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered
by any other material.
(e) Mail to each of the individuals named above, at
his last known address, a copy of the above-de-
scribed notice duly signed by their representative.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice and we
intend to carry out the Order of the Board and abide
by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represent-
atives of their choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with
or restrains or coerces employees with respect to
these rights.
WE WILL NOT discriminate against our employ-
ees for engaging in activities on behalf of the
Union or on their own behalf.
WE WILL NOT lay off or discharge employees
for engaging in union activities.
WE WILL offer Gary E. Waligorski, David A.
Templeman, Steve Noel, and John A. Pauline
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions at the gas station if it is open under our
control; otherwise WE WILL offer the said
employees reinstatement at the existing opera-
tions at our shopping center in Collinsville in any
substantially equivalent jobs for which they may
be qualified, without loss of seniority or other
rights or privileges, dismissing, if necessary, any
persons hired after the discharge of the above-
named employees; and if there are still insuffi-
cient job openings, WE WILL distribute available
positions without discrimination against any such
employees because of union affiliation or activi-
ties, following the system of seniority, if any,
customarily applied in the conduct of our
business , and WE WILL create a preferential hiring
list containing the names of any employees above
named for whom there are not sufficient job
openings and, as job openings occur thereafter,
offer reinstatement to said employees to any
substantially equivalent jobs for which they may
qualify.
WE WILL pay the above named employees for
any loss suffered because of our discrimination
against them, with 6-percent interest , for the
period from their termination until we fulfill the
foregoing provision.
PHILIP DAVID SACHS
AND MICHAEL SACHS, A
PARTNERSHIP, D/B/A
PHIL'S SAV-MART .
SERVICE PEKO LTD., AND
SAV-CO., INC., D/B/A
SAV-MART, JOINTLY
(Employer)
Dated By
(Representative ) (Title)
WE WILL notify immediately the above-named
individuals, if presently serving in the Armed Forces
of the United States , of the right to full reinstate-
ment, upon application after discharge from the
Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 210 North 12th Boulevard, Room
448, St. Louis, Missouri 63101, Telephone
314-622-4167.
SUPPLEMENTAL DECISION
PAUL E. WEIL, Administrative Law Judge: On June 6,
1972, I issued a decision in this proceeding dismissing the
complaint on jurisdictional grounds . On October 19, 1972,
the National Labor Relations Board, hereinafter the
Board, reversed my decision , finding that Phil's Sav-Mart
Service , Peko, Ltd., and Sav-Co., Inc., d/b/a Sav-Mart,
comprised an integrated enterprise conducting a unified
operation as a single employer, that Phillip Sachs is an
agent for the enterprise , and that the Board has jurisdiction
to determine whether or not the enterprise violated Section
8(a)(1) and (3) of the Act as alleged in the complaint. The
PHIL'S SAV-MART SERVICE 269
Board thereupon remanded the case to me for issuance of a
Supplemental Decision limited to consideration of that
issue and containing recommendations with respect there-
to.
The Alleged Unfair Labor Practices
Background
The operation of Phil's Sav-Mart Service, hereinafter
called the Station was apparently commenced by Phillip
Sachs in 1968. Shortly thereafter Phillip Sachs was
inducted into the Armed Services and his younger brother,
Harvey, became the ostensible manager on his behalf.
Harvey was armed with a rubber stamp bearing Phillip's
signature and, presumably, the $52 cash outlay which
Phillip had furnished upon becoming manager of the
station. Four employees were utilized, each on a part-time
basis, to operate the station during the hours that the Sav-
Mart store operated, 12 hours Monday through Saturday
and 10 a.m. to 6 p.m. on Sunday. Apparently occasionally
during this time Harvey took time from his studies for a
master's degree at a nearby university to supervise the
operation and his younger brother, Michael, a teenager,
appears also to have been present on occasion.
Sometime in May 1971, Michael, who was in the Coast
Guard Reserve, was called up for duty and served some 5
1 /2 months, returning October 22, 1971.
On September 29, 1971, the four charging parties, who
were the part-time employees, all signed authorization
cards for the Union. On October 2 or 3 David Templeman
was discharged by Respondent allegedly because of
shortages in the accounts. At the time he was discharged he
told Harvey that he could not be discharged because he
was a member of the Union. Harvey claims that this is the
first knowledge he had of the existence of union activity
among the employees. Templeman complained to Union
Business Agent Baum, who made arrangements through
Sidney Katz, to meet with Ben Sachs, Harvey's father, the
following morning, October 4. On this occasion Baum
demanded that Templeman be reinstated with backpay'
and that Respondent sign a contract with the Union. Ben
stated that he had no authority to sign a contract and that
Baum would have to talk with Harvey. Subsequently,
Baum arranged a meeting with Harvey, which was delayed
for a period of time because Harvey was not available due
to his educational activities. When Baum met with Harvey,
Harvey informed him that he had no authority to sign a
contract with the Union and agreed to send a contract to
his brother Phillip, who was stationed in Washington, D.C.
On October 4, on arriving at the service station for his
shift, employee Waligorski was informed that he had been
laid off because Respondent was required to put Temple-
man back on duty? Harvey and Ben Sachs followed
Waligorski into the backroom of the station when he went
to collect his belongings and Ben asked Waligorski who
made him join the Union. Waligorski responded that he
had joined on his own free will, to which Ben responded,
"Look what the Union got you, you owe a $25 initiation
fee and you're out of a job," and then asked why
Waligorski joined the Union.. Waligorski answered that the
Union had more to offer, the only way he could get
anything would be through the Union. Waligorski said that
he had another job lined up and left the station.
A day or two later Harvey informed the employees that
there were two new rules; no smoking would be allowed at
any time at the station and radios would not be played at
the station. According to the testimony of Harvey Sachs,
he had received complaints from management of Sav-Mart
and from employees about the loud radio playing and
about the type of music that was played.3 Templeman told
Waligorski about the changed rules, and Waligorski asked
Harvey Sachs if it was true, that there were new rules.
Harvey answered that the rules were in effect and that "if
the station was going to be a union station it was going to
be run like a union station."
According to the testimony of Waligorski, which I credit,
all the employees and Michael and Ben Sachs' smoked at
the station; occasionally the employees would absentmind-
edly continue smoking while they were pumping gas,
concededly a dangerous move. Also at most times radios
belonging to one or another of the employees were kept
running at the station. No complaint was made of this and
indeed Michael Sachs purchased a connector by which a
battery-operated radio could be plugged into the station's
electrical supply rather than furnishing batteries which all
employees including Michael had participated in prior to
the purchase of the transformer.
Some time in mid-October Union Representative Baum
contacted Harvey Sachs and inquired whether Phillip had
signed a contract. Harvey said that he had not done so,
whereupon Baum, again working through the principals of
Sav-Mart, attempted to get a contract signed. Failing in
doing so he mounted a picket line on October 23. All
employees engaged in the strike and from that time on it
appears that Michael Sachs, who had returned from his
Coast Guard assignment the day before, worked full time
at the station, a total 80 hours a week. After 4 days of
picketing, and after the intervention of the principals of
Peko and Sav-Mart, Harvey and Michael Sachs and their
father Ben came to the Union's office to sign a contract.
When they saw the striking employees present at the office,
they refused to sign a contract in their presence. Union
Agent Baum thereupon called Sidney Katz who spoke to
Ben Sachs and apparently changed his mind. Michael then
signed the contract and stamped Phillip Sachs' signature
beneath his own, writing after the signatures, "partners" in
parenthesis.
After Michael signed the contract he looked up at the
four employees and said "there is a work shortage so the
whole crew is laid off." None of the four employees have
ever resumed work at the station.
The record reveals that from October 28, the day on
which the contract was signed, until December 31, on
which day the Sachs boys discontinued operating the
service station, Michael worked every hour that the service
station was open with occasional assistance from his
brother, Harvey. No other employees were used during this
period of time. The record does not disclose whether the
1 It appears that Templeman lost only 2 hours' pay.
2 It appears that this layoff was rescinded . The General Counsel does not
complain of any action with regard to Waligorski on that date.
3 The boys apparently played rock music on the radio at all times.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
service station has been operated since January 1, 1972, or
by whom.
Discussion and Conclusion
The General Counsel contends that the conversation on
October 4 between Ben Sachs and Jerry Waligorski in the
presence of Harvey Sachs constituted a violation of Section
8(a)(1). Ben Sachs did not take the witness stand. Harvey
Sachs testified that the only question his father asked was
how long the employees had been members of the Union.
He denied that any other statements were made. I credit
Waligorski's testimony. I find that the conversation
constituted an unlawful interrogation of Waligorski and
constituted an additional threat of discharge because of his
union activities.
The General Counsel also contends that the rules against
smoking and playing the radio at the station were
instituted in retaliation for the union activities of the
employees. I credit Waligorski's testimony that in response
to his question as to the institution of the rule, Harvey
Sachs stated that if the station were going to be under
contract it would be run as a union station, and I find this
constitutes an admission by Harvey Sachs that the rules
were instituted in retaliation for the union activities of the
four employees.
I do not credit Harvey Sachs' testimony that the rules
were instituted (1) because of complaints from the
management of Sav-Mart, (2) because of complaints from
the customers, or (3) at the suggestion of Union Represent-
ative Baum. As to the first there is no evidence, other than
Harvey's assertion, that anyone from Sav-Mart or any
customer ever complained about the radio or smoking.
There is evidence that smoking was forbidden at the gas
pumps, but that not only the employees but members of
the Sachs family were guilty of this violation. There is no
explanation for the expansion of the rule to include
smoking anywhere on the premises. With regard to the
radio, it is clear that not only had management not warned
against the use of a radio in the past, but the Sachs family
had actively supported, by furnishing batteries and
electrical power, the custom of keeping a radio on at the
station at all times. With regard to the third point Harvey
admitted on cross-examination that the only topic of
conversation between him and Baum with regard to rules
was the discussion of the institution of a rule against the
use of manjuana on the premises. It appears that at the
discussion in question Harvey suggested that the station
should have rules and Baum suggested that if they
instituted rules they should do it in writing and he would
inform the Sachs brothers if any of the rules they proposed
to institute violated the contract. I do not credit Harvey's
assertion, which is denied by Baum, that Baum first
suggested the rules that were instituted. I find that by the
institution of the rules in retaliation for the employees
engaging in union activities Respondent violated Section
8(a)(3) and (1) of the Act.
Finally the General Counsel contends that by the layoff
of the four employees, Waligorski, Templeman, Noel, and
Pauline, Respondent violated Section 8(a)(3) of the Act.
Respondent contends that the layoff was occasioned by the
lack of business at the service station. However, it appears
that the hours that the four employees worked were the
same hours as those thereafter worked by Michael Sachs,
with occasional assistance from his father and his brother
Harvey. There is no evidence, other than the naked
assertion of Harvey Sachs, that the business in any way
decreased except during the period the Union was
picketing the station. No books or records of receipts or
sales were produced by Respondent to support Harvey
Sachs' assertion either as to the business prior to or after
the strike.
It may be noted that although in his testimony Harvey
Sachs attempted to characterize his brother Michael as an
employee, and indeed the senior employee, Sachs also
testified that in the period after the strike until the Sachs
brothers discontinued the management of the station
Michael was paid at the rate of $1.75 an hour, substantially
below the rate called for by the contract which Michael
signed with the union, as a partner in the enterprise. There
is no evidence that any fringe benefits were paid for him
such as are called for by the Union contract. I conclude
that the layoff was executed in retaliation against the
employees for joining the Union, which, with the fortuitous
release of Michael from the Coast Guard on October 22,
enabled Respondent to continue operating the station as a
nonunion enterprise in spite of its contractual commit-
ment. I conclude that the layoff of the four charging parties
was violative of Section 8(a) (3) and (1) of the Act.
Upon the foregoing factual findings and conclusions I
come to the following:
CONCLUSIONS OF LAW
1. Teamsters Local Union 971, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men, and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
2. By the layoff of its employees in retaliation for their
union activities Respondent discriminated against its
employees in regard to hire and tenure of their employ-
ment thereby discouraging membership in a labor organi-
zation in violation of Section 8(a)(3) of the Act.
3. By adversely changing conditions of employment, by
the unilateral institution of working rules , Respondent
discriminated against its employees in regard to the terms
and conditions of their employment thereby discouraging
membership in a labor organization in violation of Section
8(a)(3) of the Act.
4. By the acts set forth in subparagraphs 2 and 3 above,
by coercively interrogating employees about their union
membership, and by informing an employee that he had
been laid off because of his union membership, Respon-
dent interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act,
thereby violating Section 8(a)(1) of the Act.
5. The actions of Respondent described above consti-
tute unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they be
PHIL'S SAV-MART SERVICE
ordered to cease and desist therefrom and to take certain
joint and several affirmative action in order to effectuate
the policies of the Act . In the absence of evidence that the
service station is presently being operated , or under what
circumstances it is being operated , I deem it appropriate
that the discnminatees be offered immediate reinstatement
in any jobs for which they may be qualified in the existing
operations of Respondents without loss of seniority or
other rights or privileges and that the Respondents be
required to dismiss if necessary any persons hired in any
such jobs after the unlawful termination of the discrimina-
tees. I shall recommend that the Respondents shall make
them whole jointly and severably for their loss of earnings
suffered because of Respondent's acts for the period from
271
their respective losses of employment until they be thus
reinstated by the payment to them of the amount they
would have earned , less interim earnings , computed on a
quarterly basis with interest at the rate of 6 percent per
annum in the manner heretofore established by the Board.4
I shall also recommend , since any notice to employees
with respect to the unfair labor practices may not otherwise
come to the attention of the affected employees , appropn-
ate publication thereof in addition to the usual posting
requirements.
Upon the basis of the forgoing findings of fact and
conclusions of law and upon the entire record in the case I
hereby recommend that the Board issue the following.
[Recommended Order omitted from publication.]
4 Lees Shopping Center, Inc, 198 NLRB No. 73