Ralph's Wonder, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1960

127 N.L.R.B. 1280 (N.L.R.B. 1960)

1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ralph's Wonder, Inc. and Retail , Grocery & ' Food Clerks : Union,
Local 1445 , AFL-CIO, affiliated with Retail Clerks Interna-
tional Association , AFL-CIO and Amalgamated Meat Cutters,
Butchers,.Food Store and Allied Workers of North America,
District 2, AFL-CIO, affiliated with Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO.
Cases Nos. 1-CA-2728 and 1-CA-2729. June 17, 1960 =
DECISION AND ORDER
On February 4, 1960, Trial 'Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that the Respondent cease and
desist therefrom and" take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter, the
Respondent filed exceptions to the Intermediate Report with a sup-
porting brief, and also filed a request for oral argument.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Jenkins, 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 In-
termediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions; and recom-
mendations of the Trial Examiner 2
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Ralph's Wonder,
Inc., Worcester, Massachusetts, its officers, agents, - successors,';and
assigns, shall :
1. Cease and desist from :
(a) Attempting to bargain directly with its employees, threatening
not to recommend them for other employment because of their par-
ticipation in the strike and picketing, conditioning their reinstate-
3 The request for oral argument is hereby denied because the record , exceptions, and
briefs , in our opinion , adequately present the issues and positions of the parties.
z In adopting the Trial Examiner ' s finding that Respondent had knowledge of the union
'activities preceding the Respondent ' s action on the morning of December 8, Member
Rodgers does not adopt or rely, on ,the inferences and conclusions of the Trial Examiner
based on what he found to be the relatively small - size of the store in section J, 1, a, of
the Intermediate Report.
127 NLRB No. 153.
RALPH'S WONDER, INC. ,1281
ment upon abandonment of the Union or of further participation in
the strike and in picketing, and promising financial assistance if they
will cease participation in the strike and in picketing.
(b) Discouraging membership in Local 11, United Packinghouse
Workers Union, or in any other labor. organization of its employees,
by locking out, laying off, discharging; or by failing and -refusing
to reinstate' employees, because of, 'their union- membership or other
concerted activities, or discriminating in any other manner in regard
to hire or tenure of employment or any term or conditions of em-
ployment to discourage membership in a labor organization, except
to the extent authorized by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
(c) Refusing to' bargain with Amalgamated Meat Cutters,
Butchers, Food Store and Allied Workers of North America, District
2, AFL-CIO, affiliated with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the exclusive representa-
tive of its employees in 'the bargaining unit found to be appropriate.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
-join or assist the Meat Cutters Union, the Retail Clerks Union, the
Packinghouse Workers Union, 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, as guaranteed in Section
7 of the Act, or to refrain from any or all such activities, except to.
the extent that such right may be affected by an agreement authorized.
by Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and- Disclosure Act of 1959.
2. 'Take the following affirmative action which the Board finds will
effectuate the policies of the Act : -
(a) Offer to Ann Cooke, Edward Murphy, and David Cicio imme-
diate and full reinstatement to their former or substantially equivalent
positions, without ' prejudice to their seniority or' other rights and
privileges, and make each of them whole for any loss of pay he may
have suffered by payment to him of a sum of money equal to that.
which he normally would have earned'from December 8, 1958, to the
date of the offer of reinstatement, less his net earnings during said
period '(Crossett Lumber Company, 8 NLRB 440, 497-498), said
backpay to be computed on-,a-quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth- Company, 90 NLRB 289..
(b) Make-whole all other' employees whose names are' listed in_
"Appendix A" hereto, as provided in the section entitled "The Rem-
edy," In the Intermediate Report,-by payment of back wages to be-
computed in the manner described in the preceding paragraph.
560940-61-vol 127-82
,1282 DECISIONS . OF, NATIONAL LABOR RELATIONS BOARD
(c) • Preserve ..and, upon- request,` make available to the- Board or
its, agents, for examination , arid- copying, all payroll records, social
security payment records,, timecards, personnel records, and reports,
",and all other records necessary to analyze, the amounts of backpay due
,under these recommendations.
(d) Bargain collectively, upon request, witlf-Amalgamated Meat
Cutters, Butchers, Food Store and Allied Workers of North America,
District 2, AFL-CIO,,af&liated with Amalgamated Meat Cutters and
.Butcher Workmen of North America, AFL-CIO, as the exclusive
representative of its employees in the appropriate unit.
(e) Post in its store at Worcester, Massachusetts, copies of the
notices attached hereto marked `-`Appendix A" and "Appendix B." 3
Copies of said notices, to be furnished by the Regional Director for the
First Region, shall, after being signed by Respondent's representa-
tive, be posted by Respondent immediately upon receipt thereof and
maintained by -it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the First Region, in writ-
ing, within 10 days, from the date "of this Order, what steps Respond-
.ent has taken to comply herewith.
3In the event that this Order is enforced by a decree of 'a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a -Decision and Order" the
-words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
'APPENDIX A
Prudence Bassan Raymond, Stevens Mary, Kelly-,
,Gene Belsito Ronald Fors, . Arthur Lefebvre
David Cicio Howard Dimmick Leo Mulcahy
Ann Cooke John Letourneau Mary Paskalis
Edward Eressy Richard Urban Delila St. Laurent,
George Frascolla Joseph Wadowski- Irene Ratte - '
William Mitchell Ronald ' LaMonda Joan Garabedian
William Lees Edward Murphy Jean Doyle
Robert -Lees Robert Fors Georgianna Brunelle
Dorothy LeBlanc Robert Costa. Francis Carr
Stuart' Roberts Maurice, Farmer John Peletier
Constance Patruno .Jacqueline Ounanian Lillian Burns
.,Thomas Small Frances Germain Elmer Beckman
'Gerald Wambach Margaret Gully Frank Georgio
David LaRoache Myrtle Hannan Domenic, Fratantonio
,Shirley Roy Maureen, Haran
RALPH'S WONDER, INC.
APPENDIX B
NOTICE TO ALL EMPLOYEES
1283
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT attempt to bargain directly with our employees,
threaten not to recommend them for other employment because
of their participation in the strike and picketing, condition their
reinstatement upon abandonment of the Union or of further par-
ticipation in the strike and in picketing , nor will we promise
financial assistance to employees if they will cease further par-
ticipation in the strike and in picketing.
WE WILL NOT discourage membership in Local 11 , United
Packinghouse Workers Union, AFL-CIO, or in any other labor
organization of our employees , by locking out, laying off, dis-
charging, or by failing and refusing to reinstate employees
because of their union membership or other concerted activities,
nor will we discriminate in any other manner in regard to hire
,or tenure of employment , or any term or condition of employ-
ment, to discourage membership in a labor organization except
as authorized by Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to form, join,
or assist Amalgamated Meat Cutters, Butchers, Food Store and
Allied Workers of North America , District 2, AFL-CIO; Retail
Grocery & Food Clerks Union, Local 1445 , AFL-CIO; Local 11,
United Packinghouse Workers Union , AFL-CIO, or any other
labor organization , to bargain collectively through representa-
tives of their own choosing, or to engage in other concerted
activities for the purposes of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Act, or to
refrain from any or all such activities except to the extent that
such right might be affected by an agreement authorized by Sec-
tion 8 ( a) (3) of the Act , as modified by the Labor -Management
Reporting and Disclosure Act of 1959.
WE WILL offer to Ann Cooke , Edward Murphy, and David Cicio
immediate and full reinstatement to their former or substantially
=equivalent positions , without prejudice to their seniority or other
rights and privileges , and make them whole for any loss of pay
they may have :suffered as a result of our discrimination against
:them.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole all other employees whose names are
listed in "Appendix'A" attached hereto for any loss of pay they
may have suffered as a result of our discrimination against them.
- WE WILL bargain collectively, upon -request, with Amalga-
mated Meat Cutters, Butchers, Food Store and Allied Workers
of North America, District 2, AFL-CIO, as the exclusive repre-
sentative of all our`employees in the bargaining unit described
below with respect to,rates of pay, wages, hours of employment,
and other conditions of employment, and, if an agreement is
reached, embody,such understanding in a signed contract. The
bargaining unit is:
All meat department employees employed at our Worcester
store, exclusive of employees of the grocery, liquor, produce,
and dairy departments,, snack bar employees, office clerical
employees, professional employees, guards, and all super-
visors as defined in Section 2 (11) of the Act.
All our employees are free to become, or to remain, or to refrain
from becoming or remaining members of the above Unions, or any
other labor organization.
RALPH'S WONDER, INC.,
Employer.
Dated---------------- By------------=------------------------
(Representative ) - (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
-INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Star. 136), was heard at Worcester, Massachusetts, on October
13-16, 19, 27, and 28, 1959, pursuant to due notice and with all parties represented
by counsel. The consolidated complaint,-*issued by the General Counsel for the
National Labor Relations Board, on March 31, 1,959, and based on charges duly
filed and served, alleged, in substance that Respondent, engaged in unfair labor
practices in violation of Section'8(a)(1), (3),'and (5) of the Act in that: (1) On
December 8, 1958, Respondent locked out and discharged or laid off some 76
employees (reduced to 54 by amendments at the hearing-see Appendix A hereto)
because of joining unions or engaging in other concerted activities; (2) on December
18, Respondent refused to bargain with the Meat Cutters Union, supra, as the
majority representative of its employees in an appropriate unit; and (3) on December
19 and 22, Respondent engaged in certain specified acts of interference, restraint,
and coercion.
Respondent answered, denying the unfair labor practices.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following: - ' , - - -
FINDINGS OF FACT
I.' RESPONDENT'S BUSINESS ; ,THE LABOR- ORGANIZATIONS INVOLVED
I find, on the basis of facts alleged in the complaint and admitted by the answer
or by stipulation, that Respondent, a Massachusetts corporation, is engaged in com-
merce within the meaning of the Act (i.e., gross annual sales exceeding $500,000;
RALPH'S WONDER, INC. 1285
annual purchases exceeding $50,000 directly and indirectly from extrastate sources),
and that the Charging Unions are labor organizations within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
-A.-, Outline of, main events and issues
Respondent operates a retail supermarket in Worcester under the immediate man=
agement'of Harold Gould,-its treasurer`. David Gould, its president, acts as meat
buyer and merchandiser, but the major bulk of his time and attention is devoted to
another supermarket in Worcester (Dave's Market), which he owns and operates
individually. In December 1958 Respondent employed some 75 employees (ex-
cluding supervisors and office clericals) under the supervision of Harold Gould and
of the following department managers: Robert Campbell, meat department; Charles
Hannan, grocery department; Leonard Little, produce, dairy, and frozen foods
department; and Mildred Leschke, over cashiers, bundle boys, and office personnel.
In the first week of December, Local 11, United Packinghouse Workers, began
an organizational campaign, culminating' in a meeting of the employees on Sunday
evening, December 7, which was attended- by about 50 employees, and by the end
of which it had obtained about 45 signed cards.
On Monday morning, December 8, Respondent locked its doors, posted a sign
stating that the store was closed because of water damage, and, through its managerial
staff, notified the employees as they reported for work (except some 15-odd who were
admitted) that they were laid off or discharged,' assigning in some -cases shortages,
and pilferage and the necessity of taking an inventory, and in others, water damage.
Later arrivals were informed by the earlier ones that every one had been discharged.
A few hours after the lockout, a formal picket line was set. up and, was thereafter
maintained until about May 8, 1959. -
On the afternoon of December 8 the Packinghouse Workers wired Respondent
formally demanding recognition " in a storewide, unit and requesting a bargaining
meeting. Also on that afternoon Respondent mailed to all employees and super-,
visors (including Harold Gould) checks for wages which were due through the
preceding Saturday and separate checks for any accumulated savings? - The store
was opened for business at 9 a.m., December 9, and remained open thereafter.
On December 16 the State conciliation board wired Respondent and Packinghouse
Workers summoning them to a meeting at the statehouse in Boston on December 18.
On the night of December 16, Packinghouse Workers held a meeting of Respondent's
employees, attended by some 20 to 30-of them and also (by invitation) by repre-
sentatives of the Charging Unions. The employees voted to disaffiliate from the
Packinghouse, Workers, and thereupon-, application cards were circulated for the
Clerks and the Meat Cutters. - On December 17 the Packinghouse Workers wired Re-
spondent that it was withdrawing, its demand for recognition "in favor" of the Clerks
and the Meat Cutters, who thereafter took over the management of the strike and
-the picketing. I I . ,
. On December-18 Respondent's attorney, Malcolm V. McCabe, met with repre-
sentatives of the Charging Unions before a State conciliator. - During that meeting
the union representatives made demands for, recognition and bargaining which the
General, Counsel contends were separate demands in separate- units, but which
Respondent denies. McCabe responded by expressing,,a doubt of majority. On
December 19 the -Packinghouse Workers withdrew the charge which it had filed
with the State board.
-On May 2, 1959, Respondent mailed reinstatement offers to most of the strikers,
and thereafter the strike ended on May 8.
The principal issues in the case are (1) whether Respondent's lockout of the em- -
ployees on December 8 was motivated by knowledge of, and with intent to restrain,
the organizational campaign of the Packinghouse Workers; (2) whether the layoff
or discharge of the employees was similarly motivated; and (3) whether Respondent's
refusal to bargain with the Meat Cutters Union on and after December 18 was
justified because the General Counsel failed to- prove either (a) an appropriate unit,
(b) a 'proper request to bargain by Meat Cutters,-(c) an actual majority, or (d) lack
of good faith in Respondent's expressed doubt of majority. Further issues concerning
' With- two or three exceptions all of the numerous employee-witnesses testified they
were informed they were discharged. Respondent's managers testified the employees were
told they were temporarily laid off
2 Respondent paid wages in cash on Thursday of each week. Savings were normally
withdrawn only-twice a year, in June and before the first of December, and had been
refunded shortly before December 8.
1286'- DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
alleged incidents of interference , restraint, and-coercion around December 17, 19,-
and 22 and other incidents not pleaded as. Section 8(a)(4) violations3 bear sig
nificantly also on the question of Respondent 's knowledge of the organizational.
activities , its discriminatory motivation , and its alleged good -faith doubt of majority.
B. The Packinghouse Workers campaign ; Respondent's knowledge
Organizational ,activities on behalf of - the Packinghouse Workers were led by
Maurice Farmer , a meat cutter; "who procured authorization cards on December 3
and who distributed them among the employees on December 4, 5, and" 6. By the
night of the,6th , approximately 45 signatures had been obtained and 2 more were
obtained at the meeting on December ' 7 at which' Farmer was chosen as union
steward. - - -
Since a sharp issue exists on company knowledge , it' is necessary to go into some
detail as to the conditions under which the drive proceeded . Farmer himself solicited
and obtained most of the signatures , but he was assisted by Arthur Lefebvre, another
meat cutter, Raymond Stevens , a dairy clerk, and Constance Patruno , a cashier, each
of whom obtained a few signatures . Though most of the distribution and solicits-•
tion occurred within the store building ( of some 19,000 square feet in area); much
of that occurred on or around a rear mezzanine, which was located away from most
of the work and sales area and on which were located the lockers and restrooms
used by employees for rest "ilrid lunch purposes. In-'six eases the solicitations
occurred outside on the parking lot during lunch periods. In approximately 14
cases, however, the solicitations were made in sales and work areas during working
hours, i.e., 7 in the meat room, 3 at the cash registers , 1 in the snack bar, 1 in the
produce room , 1 in-an aisle, and 1 on 'entering the store to report to work.
Word of the' Sunday night meeting was also spread in the story during work on
December 5 and 6, and it was held from 7 to 11 p.m. on the 7th 'at the AOH (union)
hall with about 50 employees 'attendiiig. Farmer presided and was chosen steward.
The Union was authorized to seek recognition 'on Thursday , December 11, and the
employees voted to go on strike if recognition was withheld. •
There was no direct evidence of company knowledge of the foregoing activities
prior to the lockout , though the General ' Counsel made two attempts to show such
knowledge . The first attempt turned do the status of Delta Humphrey ( head of the
snack bar ), whom the General Counsel had included in the complaint as a dis-,
criminatorily discharged employe-e,, b"ut, as̀ to whom , he dismissed at' the hearing,,
claiming supervisory status.
The evidence failed to establish that Humphrey was a supervisor ; she was at
the most what might bd termed in other settings a working foreman. She did exactly
the same work as the other four or five eiriployees , i.e., cooking , making sandwiches„
waiting on customers, etc.' Her" shift did riot coincide with those of some of the other
erriployees , and the bar operated without ' her just as it did in her presence. There
was no evidence that she could hire or fire or responsibly direct the others , and she
had no independent authority in arranging their work schedules . Though she some-
times urged employees to get busy or chided them for talking _too much, other
employees sometimes did the same.
Humphrey-was at best only a conduit - for•the transmission to Harold Gould of
employee applications for tinie off (as Domenic Fratahtonio testified ) or of cus-
tomers' complaints ( as E1dra'Soule testified ). Significant also was Humphrey's
conspicuous omission from the meeting which the Goulds' called of the department
managers for early Monday morning and the fact that Humphrey was not included
with them to meet the employees in they reported after the store was locked (see ,
section C, infra ). The fact that Harold Gould told'some 'Of'the employees whom
he hired that Humphrey was a supervisor in charge _ of the snack bar does not
overcome the preponderant weight of the other evidence that Humphrey neither
had nor exercised authority responsibly to - direct the `snack bar employees and
that such authority as she exercised was of a routine nature which did not require
the use of independent judgment. -
The other attempt to show direct knowledge before the lockout was based on
the testimony of Gene Belsito . However , Belsito testified only that when he was
in the store with Little on Sunday night (to help ship out some lettuce ), Little
commented that something funny was going on but did not explain what he
meant . The General Counsel attempted to refresh Belsito 's recollection by a
3 As the General Counsel made no motion to amend his complaint and as he expressly
disclaimed any intention of seeking an 8(a) (1) finding , no finding is made herein of a
violation of that section by the incidents not covered by the pleadings . Crookston Times
Printing Company, 125 NLRB 304. _
RALPH'S WONDER, INC. 1287
written statement-given-during trial preparations. on the point that, Little had told
him on Sunday night about a union meeting which had started at .7 p.m. that evening,
and that the store, was going to-,go on strike; but Belsito explained that he had gotten
the Sunday and Monday events-confused in his statement, and that it was on
Monday afternoon- that Little told' him about the union meeting, and the strike.
Belsito also testified that he had informed the General Counsel of -his mistake before
he was called to the stand., In view of the time` factors, including particularly the
fact that the vote to strike could'scarcely have been known until after the meeting-
ended around 11 p.m., Belsito's testimony is credited? -
Whether, despite the absence of direct evidence, Respondent's knowledge of the-
organizational activities prior to the lockout can be inferred from all the evidence
in the case is a question which is considered under section J, 1, infra.
C.. The lockout; the discharge or layoff
When the employees reported for. work on Monday morning they found the
doors locked and:a posted sign stating,the store. was closed because of water damage.
Numerous employee witnesses testified to various statements made to them by the
department store managers to' the following effect: That Respondent was dis-
charging everyone, or^ was, firing the old crew and hiring a whole new crew, because
of pilferage, and that an inventory, or a "secret" inventory, taken on Sunday showed
shortages, of thousands of dollars worth of goods. However, grocery department
employees were informed by Hannan that they were "let go" because of water
damage, but he did not inform them, when they were to return or that he would get -
in touch with them. I -
News of Respondent 's action and message quickly reached all the employees.
Later arrivals were informed by the earlier ones, and others who were due to report
at other times learned by-telephone calls to the store or by messages from fellow,
employees.
Respondent 's managers testified -that they told the employees they' were being
laid off temporarily,5 because of shortages or pilferage (except Hannan); they
denied telling anyone he was firedor discharged, and' denied referring to an inven-
tory. Leschke admitted that she did not tell any of the employees when they might
expect td be recalled and that she did not-Hold out any hope in that respect. Indeed„
no claims to contrary effect were made by any of the other managers.
Though it is iminaterial to the legal -: issues herein whether the eliiployee-s were
told they were discharged or laid off; the overwhelming preponderance of the-
evidence requires the finding that ,they were informed' they were discharged (except -
for the two who called Harold Gould). Not only was the testimony :of some 15
employee witnesses consistently to that effect , but the testimony of Respondent's,
managers showed that they were themselves confused concerning Respondent's
instructions. Hannan, for example, had understood, contrary to the others, that
Harold Gould gave them the option of assigning water damage or pilferage as the
excuse for the action." Campbell had understood, contrary to the others, that Gould
direcfed the -layoff of all employees, testified tliat he took it upon himself to keep'
three employees working, -and denied that Gould said anything about taking an
s"The General Counsel and the Union attempted to show by other witnesses that Belsito
had attended the Sunday night meeting, presumably for the purpose of inferring that
Belsito was himself the source of Little's alleged knowledge on Sunday evening. Though
two of the General Counsel 's witnesses testified to Belsito 's presence at the meeting, a,
third one denied that he was present ( Edward M. Eressy , Sr.), and another was not sure.
Belsito denied being present, and was corroborated by Little that Belsito was at.Little's
home and at the stole at the time the meeting was going on. Belsito testified that he
did go- to one union meeting, and it is possible, of course, that the General Counsel's,
witnesses were confused as to the date of the' meeting at which they saw Belsito Sig-
nificantly, though many of the General Counsel's witnesses attended the Sunday meeting,
only four were questioned concerning Belsito's presence.- Under all the circumstances,
Belsito's testimony; corroborated by Little and Eressy, is credited that he did not attend
the meeting in question.
8 Stuart Roberta and Elmer Beckman, who called Harold Gould on Monday noon and
Monday night, respectively, testified that Gould referred to a temporary layoff. In
Roberts' case Gould informed him- that insurance men were going over and appraising
the losses from the missing merchandise, which explanation was similar to one which
David Cicio testified was made by Leschke, i.e, that everyone had been discharged on the
advice of the insurance company because of the shortages disclosed by an inventory.
Those explanations were false.
1288 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
inventory . Furthermore , Respondent 's mailing of final pay and savings checks
without explanation would seem in and of itself to indicate that its intention at the
time was to effect a permanent separation , particularly when viewed in the light of
its failure to recall the employees (see sections D and E , infra ). Its actions, in
any case, were plainly calculated to have the employees believe they were dischargd.
Actually, Respondent 's actions did not extend to all the employees . A total of
15 employees (excluding office employees and supervisors ) were admitted to-work
on Monday , none of whom had attended the union meeting on Sunday night. Each
of'the managers admitted a few employees whom they selected to come in to work.
Mary Eno and Ethel Garry, both of whom testified to statements by Little concerning
the discharge of all employees , testified that Little explained the discharge did not
apply to them , that Eno might come in as assistant manager of produce, and Garry
as produce manager, a position she had previously declined . Eno accepted, but
worked only 1 day. Garry declined , inquiring if the store was having labor trouble,
and Little asked her if she had signed a union card.
Though the managers ^ explained their selection of individual employees on the
basis of general reliability and trustworthiness , the following facts developed : Little,
who chose to work three of the four employees in the produce department , omitted
John Peletier , who normally took inventory and who had been employed for a year.
Little sought to explain Peletier's omission on the ground that he did not know
Peletier well enough , but admitted he had retained George Estaphen , who had been
employed only a week. . Estaphen was to be considered trustworthy , Little explained,
because he had not been there long enough to have any connection with the pil-
ferage. Hannan similarly had chosen as one of two employees to work in the
grocery department Ronald O'Toole, who had started working the previous. week.
Leschke chose only office employees (who were not in the unit involved in the
organizational activities ) and none of the cashiers or bundle boys . = Though Leschke
testified that Gould did! not specify who the "key personnel" were whom the
managers were to retain , the General Counsel offered a portion of a statement
which she had given during the Board 's investigation; as follows:
On Monday morning, December 8, 1958, Harold Gould informed all the
supervisors that they were instructed to lay off all employees except the key
personnel . Harold Gould had a master sheet and read off the names of the
employees and who are considered key personnel to keep.
David Gould in turn acknowledged that . his statement given during the Board's
investigation contained the statement , "On this day we picked only the key people
to work so that each department would be operative ; these personnel were all
managers and assistant managers."
Respondent's Explanations of the Lockout
-David Gould and Harold Gould testified for Respondent in explanation of the
lockout to a background of lessening profits, particularly on meats and cigarettes,
which they attributed to inventory losses . through pilferages . Respondent custom-
arily computed its gross profits on a departmental basis by means- of a regular
quarterly inventory in all, departments and by weekly inventories on meats and
cigarettes . The quarterly inventories were ordinarily taken on -Sundays by em-
ployee volunteers . The weekly meat inventory was usually taken on Saturday night
and. the gross profit figure computed early in the following week. The cigarette
inventory was usually taken on Sunday by Hannan , the grocery manager, who would
usually compute the gross profit figure at the time and furnish it to Harold Gould
on Monday . The cigarette profits during 1958 were at all times below the normal
expectations and grew increasingly worse from quarter to quarter . In the third
quarter , the meat ' profits̀ also declined substantially . Measures taken in both de-
partments to increase the profit level were unavailing.
Because of the indications of employee pilferage , Respondent decided in late
September on the advice of an insurance consultant to bond all its employees, and
it-distributed bonding applications among ,them . However, prior to the actual store
closing the bonding company had failed to process to completion a single applica-
tion , and it was sometime during the first week of the strike that the bond company
made its first report to Respondent that certain employees had been cleared. In the
meantime, there occurred in October and November unexplained disappearances of
a case of cigarettes ( 60 cartons ), a tray of expensive meats, a portable freezer, as
well as employee belongings in the lockerroom area.
On Sunday morning, December 7, when Hannan took the cigarette inventory, he
found the gross profit figure had declined to an alltime low of around 2.5 percent
(from 4 .8 percent during the third quarter and from the normal 18-19 percent of
RALPH'S WONDER, INC. 1289
optimum expectancy). Because the figure was so low, Hannan called Harold Gould
at noon, rather than waiting until Monday, and Harold in turn called David, and met
with him at David's home in the afternoon.
At that time the Goulds decided that in order to halt the losses they would close
the store on Monday to take an inventory, would instruct their managers to lay off
temporarily all employees except such key personnel as the managers might select
to take inventory, would press the bond company for action, would recall the laid-
off employees as soon as bonded, and would take a further inventory on the follow-
ing Sunday. In order to avoid public 'impression of employee dishonesty, they
decided to post signs ascribing the store closing to water damage.
The managers were thereupon notified to report early on Monday to meet the
Goulds. Harold testified that he then reviewed with them the history of disap-
pearances,. shortages, and pilferage, and told them to close the store, post the
water damage sign, and to prepare to take an inventory. He also directed the
managers to lay off all employees temporarily (except key personnel) and to assign
the serious losses in the store as the reason; he left to the discretion of the respective
managers the selection of the "proper people" to take the inventory.
D. The strike; Respondentreverses its position
Though there was some "milling around" outside the store after the lockout,
there was no formal picketing with signs until sometime between 11 a.m. and noon 6
No attempt was made to take an inventory before the picketing, and after it began
the Goulds decided to postpone the inventory until the next day, but after consulting
their attorney in the late afternoon they decided to open the store for business the
next morning. Actually, no inventory was taken at any time until the regular
quarterly inventory at the end of the year.
In the late afternoon on Monday-but without advice of counsel-David Gould
instructed Leschke to -prepare and mail to all employees checks for all wages due
them and for any accumulated savings. Gould's explanation was that he felt it
would save embarrassment, and that it would be "unwise to have the employees
coming into the store on Thursday (the regular payday), though he admitted that
the savings were not again subject to withdrawal until June. The checks were
mailed out later in the day, and. the evidence showed that they were received by
most of the employees either the next morning or on Wednesday.
Though claiming that the store was closed to take inventory and the layoff made
to await clearance of employees by the bonding company, David Gould testified that
once the strike started, Respondent's attitude changed completely, that "We forgot
about this bonding deal because we wanted everybody back to work." 7 The danger
of pilferage was no longer important, he testified,, and "this bonding meant nothing
as long as were were willing . . . to call everybody back to work."
However, when pressed to explain his failure to ask the employees to return,
Gould first answered, "How could we ask them? The doors were open." At an-
other point she stated he was acting on-advice of counsel, and finally stated he could
not do so because the employees were on the picket line. At still another point,
Gould claimed that he had "many times" made known to employees the fact that
he wanted everyone back to work, and he cited specifically his meeting with the
high school students on December 17, with Lefebvre on the 19th, and with Farmer
on the 21st or 22d. (See section E, infra.) There was no testimony and no claim,
however, that Respondent's wishes were communicated to or through the Packing-
house Workers prior to December 17, or to the Meat Cutters or the Clerks after
December 18.
Bearing directly on Respondent's claim that it wanted all the strikers to return is
the evidence concerning conversations and conferences between the Goulds and
certain strikers, both individually and in groups. That evidence may conveniently
be summarized here, though it will entail some disruption of the chronological
account. Reserved for later summary, under sections F, et seq., are the events
surrounding the withdrawal of the Packinghouse Workers Union, the majority status
and the request to bargain by the Meat Cutters, and other evidence concerning the
refusal-to-bargain issue.
O As the testimony of the General Counsel's witnesses is indefinite on the point, the
testimony of the Goulds is accepted
7 Indeed, Gould admitted he did not know whether the bonding company ever completed
its check of the employees on the first applications, and that it was not until alfter
Respondent', offer of reinstatement in May 1959 that the Company informed him for the
first time, that some of the applications were not properly filled out.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Conversations concerning reinstatement -
Several employees, including John R. Letourneau, returned to work on December
11 or 12, without being offered reinstatement . Letourneau called Harold Gould
and asked if there would be any "prejudice" against him if he came back. Gould
told him he. would be welcome, but that "you know, as far as the union 'is con-
-cerned, I'd rather see the place burn down than to let the union get in." 8
Beginning around December 17, David Gould held a series of meetings in his
home with some of the employees, singly and in groups. The first such meeting,
-on or about December 17,9 was with Margaret Gully, Jean Doyle, Maureen Haran,
Howard Dimmick, and Elmer Beckman, all of whom were part-time employees who
were attending high school and of whom except Beckman testified as the General
Counsel's witnesses concerning the meeting.io
The fullest and clearest account of the meeting was given by Dimmick, who
testified that David questioned the employees about why they were "outside" (i e.,
on strike) and what their grievances were, and that some of the employees referred
to the manner in which Harold treated them. Then, proceeding to give his "side
of the story," David stated, in material part, that he was not recognizing the union,
that there would never be a union in that store if he could help it, and that he
would sell the store before he would' let the union in. Gould also told the group
that if they would come back to work before the end of the week, nothing would
be held against them concerning past happenings, that if they did not want to cross
,the picket line, they should stay off the line "until this thing has blown over,"
and- that he would take them back then under the same conditions, and help
them out in the meantime if they need any financial assistance. Gould continued
that if the group didn't follow his suggestions, he would not recommend them if
they tried to get a job in another market. When the employees inquired whether
Gould meant to take back all the employees, he replied-that he would, take back
some but not all, and the employees thereupon told him they would not go back
unless he took the whole group.
The testimony of Gully, Doyle, and Haran was in substantial accord with
Dimmick's though there was some variation on details . Gully, for example, testified
.that David Gould referred to their picketing as a "black mark" against their record;
Doyle said he called it a mark against their names; and Dimmick testified that Gould
did not refer to the picketing as a black mark, but said it would be "bad on our
records." The other witnesses also testified, contrary to Dimmick, that Gould
referred to "troublemakers" whom he would not take back, and that he mentioned
Farmer as one of them.
Lefebvre (who participated with Farmer in the Packinghouse Workers drive and
who presided at the meeting of December 16) testified that on December 19 David
Gould called and invited him to the Christmas party, and then asked Lefebvre to
come to Gould's house. There Gould solicited Lefebvre's assistance (as a leader
who could get the employes together) in setting up a meeting with the employees
who were on strike so that Gould might talk to them without the Union's presence.
Gould stated in part that he wanted the employees to come back to work, but without
a union; that he would never have a union in the store; that if there were a union
8 This and other statements by Harold Gould, later referred to, were not included among
the Section 8(a) (1) allegations of the complaint. See footnote 3, supra.
8 The employee witnesses fixed the date variously as a week before Christmas and in the
week before Christmas. Gould placed it as about December 17.
"Beckman's examination was confined on direct to other matters, and the General
Counsel's objection was sustained to Respondent's attempt to cross-examine him con-
'cerning the meeting with Gould Though Respondent was given repeated opportunities"to
call Beckman as its own witness, it chose not to do so, and citing the Massachusetts rule,
-claimed prejudice from denial of the right to cross-examine Beckman on matter outside
the scope of direct examination The Trial Examiner, however, followed the Federal rule,
as thus stated in Cyclopedia of Federal Procedure, 2d ed., vol 7, sec 3153 :
It has long been the settled rule in the Federal Courts that cross-examination must
be confined to the subjects of direct examination, and if the cross-examiner wishes to
inquire as to other matters, the proper practice is to make the witness his own at
the proper time in presenting his own case [ Emphasis supplied.]
Wigmore recognizes the existence of the Federal rule but criticizes it severely. See
Wigmore on Evidence, 3d ed., vol III, sec 914, and vol. VI, sees. 1885-1889 Jones,
however, speaks approvingly of the rule (which he calls the American rule) as "more
conducive to the systematic and orderly trial of causes" Jones on Evidence, 5th ed.,
,vol. 4, sec. 908, at p. 1700.
;RALPH'S WONDER, INC. 1291
he would not be his own boss, and that the union would be running the business
'for him. Gould also referred "to Farmer as a troublemaker and as one, whom he
would not take back.
Farmer testified-that during Christmas week, Gould talked with.him, several times
asking him to go back to work, "and that on one occasion at Gould's home, Gould
stated that the Union,would not get into his market and that he was not "big enough"
at the time.
The remaining incidents concerned employee applications for reinstatement made
to Harold Gould in January. David Cicio testified that he applied both to Gould
and Leschke, and that Gould asked if he had signed a union card, and he affirmed
that he had. Gould asked further whether Cicio thought it would be right for
Respondent to hire him since he had gone against Respondent by signing a union
card. Cicio explained he did not consider he had gone against the Company as the
card only indicated a vote for the union. Though Cicio was not reinstated at Ralph's,
Leschke later offered him a job at Dave's Market.
Richard Urban testified that Gould agreed to give him his job back but stated
.that Urban could not play both ends against the middle, that he would have to make
a choice of one side or the other, and inquired as to the circumstances under which
Urban had left and had signed the union card: Urban replied there was no actual
reason. Gould reinstated him with a raise:
Thomas Small testified that Gould stated he could have his job back if he did not
have anything to do with the Union."
On Respondent's side we begin with Harold Gould's testimony, which contained
no denial of Letourneau's or Urban's testimony. Gould admitted holding conversa-
tions with Cicio and Small about their reinstatements, but denied that either the
Union or the signing of a union card was referred to or discussed. Leschke testified
in denial of 'soiree of Cicio's other testimony, but made no denial of his testimony
concerning the' conversation with her and Gould.
David Gould testified that he met with the high school employees as a result of a
call from Beckman who requested the-meeting, and that he told them he wanted
them all back to, work with the exception-6f Farmer because of a report that Farmer
had put sugar;in a gas tank. ' Gould denied mentioning the Union :and'denied making
the various statements attributed .to him, by the General Counsel's witnesses as
summarized above. He admitted that he referred to the picket line in • connection
with recommendations for employment, but testified he told the employees that if
a prospective-employer should'inquir'e whether an applicant was on the picket line,
he would have to tell the truth. He admitted offering to lend them money because
of the holiday season , but-he told them they would have to repay it.
Harold Gould, who came into the-meeting sometime after it started, gave testimony
which was insubstantial accord with David's although he was not present during all
the meeting. Both brothers testified that the only reference to a black mark or
blackballing in connection with the picketing was made by one of the employees.
David Gould testified that both Lefebvre and Farmer solicited the meetings at
his home, that he told Lefebvre'that everyone was welcome to come back to work
with the exception of Farmer, and that he could not pay Lefebvre any more than
he was getting before. Gould testified that Farmer emphatically denied the report
that he had put sugar in a gas tank , that he, Gould, believed Farmer was telling the
-truth, and told him he was welcome back if he wanted to come. Farmer refused,
but volunteered the information that he was the person "who started all this."
Gould also offered Farmer a job at Dave's Market, but Farmer did not accept it..
As is seen from the above, some 10 employee witnesses attributed to the Goulds
statements to the -same general effect concerning their intention of keeping the
Union out of the store and conditioning the return of the strikers on abandonment
of the Union, of the picketing, or of other concerted activities. In two of four
cases, Harold Gould made no denials of statements attributed to him, and in a
third case Respondent made no attempt to offer available corroboration. As to the
conflict between David Gould and the high school students, not only was their
testimony mutually corroborative, but the Trial Examiner was impressed with their
demeanor, with their obvious regard for their oaths, and their efforts to testify,
truthfully. On the other hand, Harold's corroboration of David's testimony lacked
even normal weight because he was not present during the entire meeting. David's
ii Small's testimony was taken as an offer of proof upon the General Counsel's dis-
claimer of reliance`on it as a Section 8(a) (1) violation. Since the other similar testimony
summarized above was later received because of relevancy to the other violations charged
. in the complaint and since Gould testified fully concerning Small's reinstatement, Small's
testimony is now received.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
later meetings with Lefebvre and Farmer showed a continuation of the same line
of conduct; his statements to them were plainly of the pattern with those made to
the students. Thus, all the circumstances require the acceptance of the testimony
of the General Counsel's witnesses over that of the Goulds.
F. The December 16 meeting; the Packinghouse Workers withdraws
The Packinghouse Workers, which had made a telegraphic demand for recognition-
on the afternoon of December 8, held its final meeting with the employees on the
evening of December 16. Somewhere between 20 and 30 employees attended the
meeting, at which Lefebvre presided, and which was also attended (by invitation)
by representatives of the Meat Cutters and the Clerks. There was a discussion of
the pros and cons of the various unions, and the employees voted to disaffiliate from
the Packinghouse Workers and to sign with the Charging Unions. The employees
were informed that the Meat Cutters would represent the employees in the meat
department, that the- Clerks would represent the employees in all other depart-
ments, and that there would be separate contracts. Those Unions then dis-
tributed separate authorization cards, colored differently, for signature by the em-
ployees. Other signatures were obtained on the picket line on the 17th and 18th.
On December 17, the Packinghouse Workers, by wire, withdrew its demand for
recognition "in favor of" the Clerks and the Meat Cutters, but the General Counsel
disclaims the telegram as a request for recognition on behalf of the latter Unions
because it was unauthorized. -
G. The statehouse meeting; the request to bargain
On December 16, the State conciliation board had summoned representatives
of Respondent and the Packinghouse Workers to a meeting at the statehouse on
December 18 for the purpose of exploring ways to end the strike. In attendance
were the conciliator, Respondent's attorney, Malcolm V. McCabe, and Bernard
S. Kenney and George Fitzpatrick representing, respectively, the Clerks and Meat
Cutters unions, who had also been invited. The Packinghouse Workers was not
represented, and there was reference during the meeting to the fact that that union
had withdrawn its claim for recognition.
Answering the conciliator's request for a statement of Respondent's position,
McCabe took the position that the matter was within National Labor Relations
Board jurisdiction and not that of the State Board. Kenney and Fitzpatrick testified
that each in turn answered the conciliator by stating that their prime interest was to
get the employees back to work, and then to bargain for a contract, each for his own
jurisdiction, i e., Fitzpatrick's union would represent. the employees in the meat
department, and Kenney's, the others. When McCabe questioned their representa-
tive status, each stated he had signed cards with him, but they refused McCabe's
request to see them, stating, however, that they had no objection to showing the
cards to a disinterested party. Fitzpatrick testified that McCabe also stated that
he could not bargain with them because he was contemplating legal action against
the Packinghouse Workers Union.
Kenney and Fitzpatrick also requested that McCabe put the employees back to
work, and McCabe first said he would put all but 12 back and later reduced the
figure to 8, but he would not divulge any of the names.
Following the meeting, the discussion was continued with McCabe on the steps
of the statehouse, during which Fitzpatrick testified that McCabe, reiterated his
position that all but eight employees would be taken back to work, and finally
promised to contact the Employer and then to get in touch with them in a day or
so about the whole situation, i.e., the representation claims and getting the employees
back to work However, McCabe did not contact him again.
Though McCabe's testimony conflicted with the foregoing on a number of points,
the chief and crucial point of conflict was in his denial that Kenney and Fitzpatrick
made separate claims of majority status in separate units and made separate demands
to bargain for their separate units. Without endeavoring to quote Kenney (who
spoke before Fitzpatrick), McCabe testified that to the best of his recollection "the
tenor" of Kenney's statement was "that the Union.requested recognition . . and
a contract for the entire store," and that Fitzpatrick simply indicated approval of
that position. Accordinely, McCabe testified that in expressing a doubt of majority
(as he did) he did not distinguish between them; he joined them together, and spoke
of them together, not separately.
McCabe admitted that he asked to see the cards and testified that though Kenney
and Fitzpatrick stated they had the cards in their pockets,-they refused to show
them, without saying why, though they produced for examination a sample card.
RALPH'S WONDER, INC. 1293-
McCabe denied saying that there were either 12 or 8 employees who would not be
taken back, and testified that he referred instead to the fact that 12 employees had
returned to work, and that there was 1 , Farmer , who would not be taken back.
McCabe testified that the conversation on the statehouse steps was a brief one,
with Kenney discussing the possibility of the Union writing a contract , that Fitz-
patrick said nothing "any more significant or any different ," and that he replied by
saying, "Just as I said upstairs , show us the majority, and we are ready to talk."
,On cross-examination , however , McCabe flatly , denied stating either in the meeting
-or on the steps'that if they represented a majority he was willing to talk , explaining,
"There was no occasion ' to tell them that, "no; . I doubted a majority."
McCabe also testified that after the meeting he reported back to David Gould
the position he had consistently taken that there was no showing of majority. McCabe
admitted , however, that he did not advise Gould that if the union or unions repre-
sented a majority , Gould should deal with them.
McCabe also testified that for some 17 years he had served as executive secretary
for the Massachusetts Retail Grocers Association , and that he was accordingly
familiar with the relationships between its members and various unions of their
respective employees , including the Meat Cutters and Clerks , and was aware that
the Meat Cutters Union represented employees in the meat departments in the
retail grocery field. However , in the case of the Clerks Union , he testified that
there was sometimes a broad representation , and an overlapping with other unions.
In resolving the credibility question posed by the foregoing conflicts , we start
with the fact that the testimony of Kenney and Fitzpatrick was mutually corrobora-
tive on the crucial point that ' they :made separate claims of representative status in
the separate units within their respective jurisdictions, as well as separate demands
to bargain . That their representative status was in fact separate and not joint was
corroborated by all the other evidence in the case , including the testimony of a
number of witnesses who attended the December 16 meeting , despite persistent
efforts by Respondent 's counsel on cross-examination to develop that contrary
representations were made.
It is difficult to believe that experienced -union representatives, having carefully
,organized in separate units, would advance claims of joint representation in a single
:unit and would seek a single contract after having informed the employees that
separate contracts would be taken . In any event the evidence as a whole supports
the mutually corroborative testimony of Kenney and-Fitzpatrick , which is credited.
H. Evidence relevant to the unit question
Respondent had no prior , bargaining history. Though David Gould , its president,
owned and operated individually another supermarket ( Dave's Market ) in Worces-
ter, the management of Ralph's was entrusted-to Harold Gould, who had complete
'control over the employees and who had no interest in Dave's Market. Each
market operated, separately ; each hired separately its own employees with seldom
any interchange ; there were different managers , separate payrolls, separate book-
-keeping, and separate administrative offices. Transfers of stock occurred very
seldom.
Insofar as the meat department was concerned , its employees seldom worked
,elsewhere . One employee sold flowers on two occasions on holidays , and one of
the bundleboys cleaned up : on Saturdays in the meat department . One meat depart-
ment employee worked at Dave 's Market a single day in 1955 , and another one a
-single day in • 1958..
1. Evidence concerning the majority
There were 19 employees working in the meat department on December 6, 1958,
and David J. Barrett ( formerly incapacitated ) had been ordered to return to work
on December 11 with a doctor's certificate , thus indicating a total of 20, positions
in the unlt . 12 Thirteen of the employees , including Barrett, testified to signing
application cards for the Meat .Cutters on either December 16 or 17. Three other
cards cannot be counted in determining a majority as of the time the demand for
-recognition was made.. Thus Maurice Farmer and Georgianna Brunelle testified
to signing cards on December 18, but it cannot be found from their testimony that
the signing occurred before the conference at the statehouse , which , began at 10:30
a.m. Myrtle•Hannan's card was signed on December,24.
It is therefore found that at the time of the lockout there were 20 employees in,
the unit. Respondent introduced a list of, 20 meat department employees who worked
'a When Barrett reported to work on December , 11, he found the picket line and joined
'the strike and the picketers. ' .
1294: DECISIONS OF NATIONAL LABOR''RELATIONS BOARD
the-weekending December 20 which included 4 old employees and 16 replacements,
8 of whom were hired on' December 10, 1 ;on December, 11, and'7 on- December 15,
again making a total of 20 employees, and apparently completing the complement.13
J. ,Concluding findings
1. Knowledge of the organizational activities
-As knowledge by Respondent of the Packinghouse Workers' organizational
activities is indispensable to any, fifinding--that- the,lockout and discharge or layoff
was discriminatorily motivated, we-review the evidence to, determine whether such
knowledge may be inferred, despite the absence of direct evidence,' from the record
as a whole. Wiese P.loiv Welding Co., Inc., 123 NLRB 616, and cases there cited
at footnote 1. Several factors are immediately apparent suggestive of such knowl-
edge, and though no single ones can or need be relied upon, standing alone, to
establish knowledge, yet considered, together they point to only one conclusion:
that Respondent was well aware of the. organizational campaign when it locked
the doors on Monday morning.- These include: •
(a) The relatively small size of the store 14 and number of employees involved,
and the fact that at least-a,substantial part,of the activity occurred in the work areas
and selling areas, including the checkout counters. Bituminous Material & Supply
Company, 124 NLRB 1007, and cases there cited in footnote 4; N.L.R:B. V. Abbott
Worsted Mills, Inc., 127 F. 2d439', 4410 (C.A.,1)., -
(b) The conflicting and false explanations- -(see e.g., footnote, -5) made by
Respondent's managers as the employees-reported for work, and',Little's inquiry of
Garry whether she had signed a union card.
(c) Respondent's unerring, selection for work of,15,employees, none of whom
had attended the- Sunday meeting. Assuming good faith in Respondent's denral-
of knowledge, the pure mathematical chances involved .would, correspond approxi-
mately to the possibility that a blindfolded person would draw 15 consecutive
white -balls from a. sack, which, contains _50_, black, balls and 25 white balls. The
mathematical - odds against; such a•r result are roughly 697.5 million to -I., - See,
Uspensky's Introduction to - Mathematical Probability (McGraw-Hill, 1937),
chapter 1. - r •
(d) Respondent's explanations of the lockout were completely exposed as -shams
and pretexts by its subsequent course of conduct, which showed that its real motive
was to restrain and defeat the organizational -activities. 15 We start with Respondent's
claim that because of employee pilferages, it locked the doors to take an inventory.
No inventory was taken on Mdnday,despite - direction to the managers to retain
key personnel for, that purpose; none was taken on Tuesday; and, despite the claim
that cigarette losses were the culminating-factor which led to the lockout, Respondent
did not take the regular weekly inventory the following Sunday, or at any time
before the regular quarterly inventory. Indeed, as David Gould conceded, the,
taking of an inventory' would have thrown no light on the identity of the pilferers;
it would have-been Valueless in accomplishing clearance of employees by the bonding
company.
The clairri`that key personnel were'ehosen to work was exposed in turn by the
selections- which some of the managers made and by their explanations of their-
choices. Indeed, the:resulfs indicated that the selections were in fact made or
suggested i the -Goulds; as shown 'by the affidavits of David Gould and Mildred
Leschke; and in some cases at least, the attempted qualification of "key" . 'personnel
was to admit them as pnrporfed managers and. assistant managers (as in the case
of Eno and Garry).
Turning, to Respondent'sclaiiri that the layoff was made to await clearance of the
employees` liy the Bonding company, that explanation also failed to stand scrutiny
in the light of its subsequent conduct. Indeed, the evidence showed that Respondent
11 Objection to the introduction of Barrett's'card, on which the Trial Examiner reserved'
ruling, is now hereby overruled a and the exhibit is received. • '
14 The 19,000 square feet of area indicate a structure-whose dimensions would be some=
what less than 100 x 200 feet. Assuming the mezzanine space was included in the total;
the outside dimensions would be even less.- '
1'The giving of implausible, shifting, inconsistent, or contradictory explanations of a-
lockout may be considered in determining the real motive, just as similar explanations are
considered as exposin'' the real motive- of a discharge. See, e g , N:L R B- v.` Condenser
Corporation of America, 128 F. 2d 67, 75 (CA. 3) ; N L.R.B. v. C W. Radcliffe et al ;
d/ti/a Homedale Tractor & Equitiment' Company, 211 F. 2d 309, 314 (C.A. 9) ; Sandy
Hill Iron it Brass Works, 69 NLRB 355, 377-378, enfd. 165 F. 2d 660 (C.A. 2).
RALPH'S' WONDER, INC. 1295, =
did nothing to expedite'the'alleged clearance' which it desired.- Though some par-
tial interim 'report' was received the first week of the strike, Respondent did not
purport to act ' upon it, claiming` only that it related mainly to supervisors. There-
after Respondent did nothing concerning the matter, despite failure to receive a
single clearance;- until' after it offered reinstatement to the strikers in May 1959.
Then it learned for the first time' that a, number of the applications which it had'
originally submitted to th'e Company'had not been-properly filled out, but it never-
theless reinstated the employees before the bonding process was completed. These
facts plainly indicated that no real desire existed on Respondent's part at the time
of the lockout to have its employees' cleared for bonding. '
That conclusion is-supported by Respondent 's further inconsistent explanations as.
to why it'abandoned' its alleged plan. Though the strike played into Respondent's'
hands by insuring it adequate-time within which to complete its plan (by keeping
the employees outside the store where the lockout had placed them), Respondent
'inmed'ately reversed its position and abandoned the plan. Testifying implausibly
that the strike changed every thing, David Gould claimed that the danger of pilferage,
became unimportant, that he and his brother forgot all about the inventory and
the bonding, which' now meant'nothing to'them, because they wanted all the em-
ployees back td work. But that claim was in turn completely exposed on three
separate fronts: ( 1')'by Respondent 's action in mailing final pay and saving checks,
which was plainly intended to-emphasize', the permanency of a separation which the:
eriiployees had-understood from ' the beginning was final ; ( 2) by its failure to recall
the employees, either iniinediately from the picket line where they were available,,
or.by notice to the Packinghouse1Workers, their designated representative; and (3) by
the repeated',occasions on which 'the Goulds conditioned the return of strikers, indi-
vidually:and in groups, on the abandonment of the Union, the picketing , and other
coricer"t`ed'activities. See section-E, supra.
What the foregoing evidence shows is that a succession of explanations was:
exposed by subsequent explanations and by Respondent 's own course of conduct.
None of its explanations rang true ; all were as phony as its original water-damage
sign'. As the explanations "did not stand up under scrutiny," (N.L.R.B. v. Bird Ma-
chine,Com'pany,- 161 F: 2d 589, 592), that very circumstance augments the weight
and the force-of the other factors outlined under paragraphs (a), (b), and (c),
supra. Considered- together with those factors, the evidence plainly established,
contrary to Respondent's-- denials, that it had knowledge of the organizational activi-
ties. Indeed, to credit Respondent's contrary claim with bona fides would require,
a, firiding'that it succeeded in the-face of odds which were nearly 700.niillion to 1
against -it.
2. Discriminatory motivation , and the extent of the discrimination
The discussions under , and the conclusions reached in, the foregoing section are,
also relevant , under , the circumstances in this case , to the issue of the Respondent's
motivation in locking out and discharging the employees.rs Though to find knowl-
edge does not-establish discriminatory motivation , much that was said above bears
with equal emphasis _ on the question vvfiether Respondent acted with intent to.
restrain and discourage the organizational' activities. Considering the above dis-
cussions as repeated here, only brief supplements is ;necessary.
We start with recognition that an employer's right to close his plant or to.
discharge or lay off his employees is circumscribed by the Act only' insofar as it--
does not impinge upon the, employees ' right to organize or to engage in other con-
certed_ activities ., -For, it _is well settled that , an employer is free to suspend opera-
tions for business reasons which are unconnected with protected employee activity.
Pepsi 'Cola Bottling,Company of ,Montgomery', 72 NLRB 601, 602; J. B. 'Wood, an
individual dib/a Wood • Manufacturing Company, et al., 95 NLRB 633, 639;
N'.L:R.B: v.'Somerset,,Shoe, Company, 111 F. 2d 681, 689 (C.A. 1). It is equally
true, however, that a lockout or, discharge , prompted not by business considerations
18 Though as previously stated, 'it is 'immaterial tofhe issues herein whether Respondent's
action constituted a layoff, or a discharge, it is fou'n'd fioiii the evidence as a whole that
Respondent effected, and` intended ito' effect, a di`schai•ge Though karo1-d Gould spoke to
Stuart Roberts and Elmer Beckman in terms of a temporary layoff, the mailing of -final-
pay and savings 'checks showed that Respondent intended the separations to be permanent-
(conforming with the statements of its managers td the other employees)'. Furthermore,
Gould also failed to continue Roberts' services as tutor to his son, which was incon-
sistent with any view that Roberts' layoff at the store was to'be only a temporary one',
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but by a purpose to defeat organizational or other concerted activities, is 'prima facie
violative of the Act. N L.R.B. v. Sam Wallick, et al., d/b/a Wallick .& Schwalm
.Company, et al., 198 F. 2d 477, 483 (C.A. 3); N.L.R.B. v. Somerset Classics, Inc.,
.et al.', 193 F. 2d 613, 615 (C.A. 2).
Though there was here no direct evidence of antiunion motivation,17 the factors
outlined under paragraphs (b), (c), and (d), in section 1, supra, plainly support the
conclusion that Respondent's purpose was to restrain and discourage the organiza-
tional activities. The precipitate lockout and discharges, the phony explanations,
the retention only of employ'ees' who did not attend the Sunday meeting (a 700
million-to-1 shot), the failure to'recall (in the face of the claim that it wanted all
the employees back), the attempts to bargain directly without the Union, the condi-
tioning of reinstatement on the abandonment of the Union and of the strike and
picketing, considered together, point to no other reasonable conclusion.
Respondent's evidence not only failed to overcome the preponderant weight of
the evidence, but tended to confirm the conclusion. Indeed, the numerous incon-
sistent and implausible explanations which Respondent successively advanced in
justification of its actions were themselves indicative of an antiunion motive.
Stokely Foods v. N.L.R.B., 193 F. 2d 736, 738 (C.A. 5); N.L.R.B. v. E. C. Brown
Co., et al., 184 F. 2d 829, 831-832 (C.A. 2); and see cases cited in footnote 15,
supra. Here as in the E. C. Brown case the conclusion is justified that many of
Respondent's explanations were contrived after the controversy arose. Such ex-'
planations, instead of be ing an answer to the inferences naturally following from
the sequences of events, serve only to confirm them. Id; and see N.L.R.B. v. Bird
Machine Co., supra. , -
Though it is concluded and found on the entire evidence that Respondent's action
in locking the doors and discharging the employees was with intent to restrain and
discourage the organizational activities, the evidence does not support the General
Counsel's claim that the discharge action extended to all 54 of the employees whose
dames finally remained in the complaint as amended. In considering those cases,
we may start by accepting as a basis for consideration the following convenient
(though not entirely accurate) groupings which Respondent advances in its ' brief:'
Group 1-8 employees who, on reporting for work at about 8 a.m. on
December 8, were advised of separation from employment by their supervisors.
Group 2-7 employees who contacted Respondent's supervisors on Decem-
ber 8 at various times after 8 a.m. and were advised of separation from
employment. t
Group 3-5 employees who were scheduled to report at or shortly after 8
a.m. on December 8, but who, on the strength of statement of fellow employees,
failed to report for_ work and began to picket after arrival.
Group 4-19 employees who were scheduled to report at various times from
around noon of December 8, but who, on the strength of statements by fellow
employees, failed to report,as scheduled and began to picket prior to receiving
their pay and/or savings checks and prior to their scheduled reporting time.
Group 5-6 employees who were scheduled to report at various times after
December 8, but who, on 'the strength of statements of fellow employees, failed
to report as scheduled and began picketing after their scheduled reporting time
and after receiving their pay and/or savings checks.
Group 6-2 employees (Mary Eno and Ethel Garry) who were asked to work
on December 8.
Group 7-2 employees (James A. Gregoire and Peter Arakelian) who failed
to report as scheduled during the week of December 8, and who remained away
from work throughout the strike without contacting either the Respondent or
their fellow employees and without picketing. -
Group 8-5 employees (Constance Montagne, Robert Madulka, James Robin-
son, John Peletier, 'and Jacqueline Ounanian) who did not testify or whose
testimony (allegedly) yields no clue as to the circumstances of cessation of work.
Respondent's discriminatory action plainly extended to all the employees in the
-first five of Respondent's groupings. The precipitate lockout and the numerous
statements by Respondent's managers that all the employees were being discharged
and replaced were obviously calculated to reach all employees .who were due to
",The absence of direct evidence is not,fatal to a finding of such a motivation, for it is
recognized that "direct evidence is seldom attainable when seeking to probe an employer's
-mind to determine the motivating cause of his actions." N.L R.B. v. Bird Machine Co.,
asupre, and cases there cited,.
RALPH'S WONDER, INC. 1297
report that day. Indeed , Respondent•'s managers continued to make similar state-
ments during the day to employees who called in to report or to inquire . Respondent
was thus itself the source of the information which later employees received , on which
they acted , and which Respondent authenticated and emphasized by mailing the final
pay and savings checks.
Just as plainly, however , Respondent 's action did not include Mary Eno and Ethel
Garry (group 6), because both of them were asked to work.
The employees listed in groups 7 and 8 require individual consideration.
Gregoire , who. had another full -time job as a busdriver, testified that he did not
report at Ralph 's on Monday because he was called to work on ' phis bus job. He
called no one at the store and testified to no information which he received regarding
the lockout or the discharge ., - However, he apparently learned about the strike on
Tuesday, for he testified that he ' failed to report on that day because he did not want
to become involved, and that he never picketed and never went back until ,the strike
was settled.
Arakelian, who also had a full-time job elsewhere and who was not scheduled
to report' at Ralph 's until Wednesday , testified to no information or knowledge which
he had concerning the lockout or discharge until the receipt of his final paycheck
sometime after he was scheduled to report .' In the meantime he had failed to report
because of the picketing , and he stayed out until the strike had ended.
As is seen , both Gregoire and Arakehan acted without knowledge of the lockout
or the discharge in choosing not to report when scheduled . They did not loin the
strike, but continued to work full time at their other jobs. Under the foregoing
circumstances , it is found that Respondent 's discriminatory action did not extend
to them.
Although Ounanian had extreme difficulty testifying in English , this much was
plain from her testimony and from exhibits in the record : When Ounanian came in
on Monday , she found the store closed and went home . She returned to work
during the week of December 20, and is still employed. Inasmuch as a list of
employees supplied by Respondent to the General Counsel showed that Ounanian
was not one whom it selected to work on December 8, and as it was plain from her
testimony that she failed to work because of the lockout , it is concluded and found
that Respondent 's discriminatory action extended to Ounanian. .
In Peletier 's case, Little's testimony itself showed that he spoke with Peletier as
Peletier reported on Monday morning. Credited testimony of other employee wit-
nesses was that Little spoke in terms of 'a discharge of all the employees. There
was also testimony by William L. Mitchell that Peletier picketed with him during
the first 'week of the strike . It is therefore concluded and found that Respondent's
discriminatory action extended to Peletier.
In the cases of Montague , Madulka, and Robinson , the General Counsel cites no
evidence , and I have been unable to find any, as to when each was scheduled to
report to work or as to the circumstances under which each failed to report. Of
course, the circumstance of the mailing of the final checks applied to them , but that
was true also as to all the 22 employees whom the General Counsel moved to dismiss
from the complaint . It is therefore concluded and found that the General Counsel
failed to establish by a preponderance of the' evidence that Respondent's discrim-
inatory action extended to Montagne, Madulka, and Robinson.
To summarize , it is concluded and found that Respondent discriminatorily locked
out and discharged each of the 47 employees whose names are listed in [Appendix
A, attached to the Decision and Order].
It is further concluded and found , on the basis of the evidence summarized in
section E . supra, and contrary to Respondent 's contentions , that Respondent made
no unconditional' offer of reinstatement to any employee prior to -May 2, 1959.
3. Interference , restraint, and coercion ,
Ifis concluded and found on the basis of the evidence summarized in section E,
supra, that Respondent engaged in interference, restraint , and coercion within the
meaning of Section 8 ( a)(1) of the Act by attempting to bargain directly with its
employees. by threatening not to recommend them for other employment because
of their participation in the strike and picketing , by conditioning their reinstatement
upon abandonment of the . Union and of fsirther participation in the strike and in
picketing, and, by promising . financial.assistance • if they would cease further par-
ticipation in the' strike and in picketing. ' '
No finding ' of violation of Section 8 (a) (1) is made on Respondent 's other conduct
as described in section E. See footnote 3. - - " ,
560940 61--vol. 127-S3. -
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The refusal to bargain
a. The appropriate unit
The complaint alleged that a unit composed of all meat department employees
(excluding employees of all other departments) constituted an appropriate unit for
purposes of collective bargaining. Respondent, without taking any position that
some different unit is appropriate, contends that the General Counsel failed to prove
that the unit as alleged was an appropriate one, citing Charles F. Reichert, et al.,
d/b/a Charles F. Reichert, 124 NLRB 28.
Respondent's contentions are rejected. The evidence summarized in section H,
supra, plainly made out a prima; facie case, in view of holdings by, the Board that
units confined to employees of meat departments constitute an appropriate unit-
indeed, "the traditional one"-in retail stores (Tom Thumb Stores Inc., 123 NLRB
833; Weis Markets Inc., 116 NLRB 1993), even though an overall unit would also
be appropriate, where there is no bargaining history and no request by any union
for a more comprehensive unit. And see Jefferson Grocery Company of Pittsburgh,
operating as Sparkle-McCann Markets, 101 NLRB 586, 588, where the Board found
under the circumstances in that case, including the bargaining history, either a single
unit or separate units of meat and grocery department employees to be appropriate.
It is therefore concluded and found that all meat department employees of
Respondent employed at its Worcester store, exclusive of employees of the grocery,
liquor, produce, and dairy departments, snackbar employees, office clerical em-
ployees, professional employees, guards, and all supervisors as defined in Section
2(11) of the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of•Section 9(b) of the Act.
b. The request to bargain
The resolution of the conflict between the testimony of McCabe, on the one hand,
and Fitzpatrick and Kenney, on the other (see section G, supra), leaves without
foundation Respondent's contention that no proper or adequate demand to bargain
was made by the Meat Cutters Union on December 18. There was no ambiguity
in the demand, which was clearly communicated and which clearly specified the
unit in which Meat Cutters was seeking recognition and bargaining.
Much of Respondent's argument to support McCabe's alleged contrary under-
standing is based on the fact that some 2 or 3 weeks later Kenney and Fitzpatrick
filed separate charges with the Board on behalf of their respective unions in which
each alleged that Respondent had refused to bargain not only with his own union 18
but with the other. But any ambiguity' in the wording of those charges could not
create retroactively ambiguity in a request to bargain which was certain and
unambiguous.
c. Majority representation
It has been found under section II, supra, that at the time of its request to bargain
on December 18, the Meat Cutters Union represented a total of 13 employees out
of 20 in the unit. Respondent argues that Barrett is not to be counted in the unit
at all, and that it should include some 16 new employees who were hired between
December 8 and 18.
Those contentions are rejected. Barrett was plainly an employee within the unit
for whom a position was obviously available, as shown by Respondent's direction
to him to report for work on December 11 (a week before the request to bargain).
The fact that Barrett joined the strike affected his status as an employee no more
than it did that of the other strikers
Respondent's contention as to the new employees was based on the testimonial
claims of Harold Gould that they were hired as permanent employees and were
therefore to be considered as permanent accretions to the meat department because
Respondent ultimately did not find it necessary to lay off any of them when it
finally recalled and reinstated the old employees in May. Initially, Respondent's
claims are inconsistent 'with its contention that it had made only a temporary
layoff of the old crew and that it wanted them all back. Despite their immediate
availability, Respondent refrained from recalling them, while it proceeded to hire
new employees. Its claims were also in conflict with all the other evidence, which
showed that Respondent was engaged in replacing "the old crew," as some of the
managers had stated, and that when it reached its former complement, it stopped
hiring replacements. '
The Clerks Union later dropped its refusal-to-bargain charge. The General Counsel
represented at the hearing that it did not attain majority representation in its unit.
RALPH'S WONDER, INC. 1299
Whatever promises of permanent employment were made could not, of course,
affect the rights of the discriminatorily discharged or laid-off strikers to full rein-
statement (Mastro Plastics Corp. et al. v. N.L.R.B., 350 U.S. 270, 278) nor auto-
matically increase the number of job positions in the unit. Indeed, the evidence
overwhelmingly refutes any view that the advent of the strike would have immedi-
ately increased the number of positions in the department from 20 to some 36.
Not only did Respondent stop its hiring when the complement reached the exact
20 which Barrett's return would have completed, but Harold Gould admitted that
Respondent did not immediately "replace" all the meat department employees on
the picket line because business did not warrant such replacement. That admission
squares, of course, with the only logical conclusion which could normally be
drawn, i.e., that in a strike situation the absence of a given number of employees
on strike would not create a corresponding number of new positions within the unit.
It is therefore concluded and found that at the time of the Meat Cutters' request
to bargain on December 18, it represented 13 employees out of 20, or a majority
in the unit in which it was seeking recognition.
d. The alleged doubt of majority; the refusal to bargain
Despite Meat Cutters' actual majority, as above found, Respondent might legally
have refused recognition if it entertained a good-faith doubt of that majority. The
question whether it acted in good or bad faith at the time of the refusal is one
which must of necessity be determined in the light of all relevant facts in the case,
including any unlawful conduct of Respondent, the sequence of events, and the
time lapse between the refusal and the unlawful conduct. Joy Silk Mills Inc. v.
N.L.R.B., 185 F. 2d 732, 741-742 (C.A., D.C.), cert. denied 341 U.S. 914.
Were McCabe's expressions at the meeting of December 18 viewed only in the
context of that meeting and of the events which immediately preceded it, justification
for his doubt might well be found. Thus, until the day before, Respondent had
been faced with the representation claims of the Packinghouse Workers, who had a
majority at least until the night of December 16. The withdrawal telegram of
December 17 did not; of course, constitute a legal assignment of its representative
status to the Clerks and the Meat Cutters, as the General Counsel concedes. Finally,
on December 18, though Kenney and Fitzpatrick made their separate claims of
majority representation, it is undisputed that the Clerks did not in fact have a
majority; and there was no showing and no claim that the Meat Cutters' campaign
had proceeded any differently from Clerks', or that Respondent had any different
information or knowledge concerning Meat Cutters' activities.
When we consider Respondent's contemporaneous and subsequent course of
conduct, however, it is plain that the doubts which Respondent advanced through
McCabe were not good-faith doubts. As early as December 11 or 12 Harold
Gould met Letourneau's application for reinstatement with the statement that he
would rather see the store burn down than to let the Union in.19 That statement
set the tone for what was to follow. Around and immediately after December 18,
-David Gould, while attempting to bargain directly with the high school students
and with Lefebvre and Farmer, made explicit, repeated statements that he was not
recognizing the Union, that there would never be a union in the store, and that he
wanted the employees to return only without a union. Again in January Harold
Gould continued to condition the reinstatement of employees on disavowal of the
Union and of union sympathies.
The foregoing circumstances plainly showed that in rejecting Meat Cutters'
request to bargain on December 18, Respondent did not advance its doubt of
majority in good faith, but to gain time to undermine and defeat the Union. Thus
its failure to offer reinstatement to a single employee who attended the previous
organizational meeting, its continual conditioning of reinstatement on abandonment
of the Union, and its repeated statements that it would never recognize a union or
permit one in the store.
It is therefore concluded and found on the entire evidence that Respondent did
not in good faith advance its alleged doubts of the Meat Cutters' majority on De-
cember 18, and that accordingly it has, on and since that date, refused to bargain
within the meaning of Section 8(a)(5) and (1) of the Act. Joy Silk Mills Inc. v.
N.L.R.B., supra; N.L.R.B. v. Samuel J. Kobritz d/bla Star Beef Company, 193 F.
•2d 8, 14•(C.A. 1); N.L.R.B. v. Ken Rose Motors, Inc., 193 F. 2d 769, 771 (C.A. 1).
'B Though at that time Respondent was faced with recognition claims by the Packing-
house Workers, the evidence showed plainly that it did not distinguish between the
unions in repeatedly stating its intention not to recognize a union.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type conventionally ordered in such cases, which I find necessary to
remedy and to remove the effects of the unfair labor practices and to effectuate the
policies of the Act. Some further discussion is necessary as to the appropriate
remedy for the discriminatory lockout and discharge.
Backpay will be recommended from December 8, 1958, to the date of reinstate-
ment of all discriminatorily discharged employees who were reinstated prior to May
2, 1959. Ra-Rich Manufacturing Corporation, 120 NLRB 503, 505. Backpay will
also be recommended from December 8 to and including May 2, 1959, as to all
other discriminatorily discharged employees, except as indicated below:
On May 2, 1959, Respondent mailed by registered mail, return receipt, to most of
the old employees who had not already been reinstated, -letters offering unconditional
reinstatement, and on'and after May 8 many of them accepted the offer and were
reinstated. In five cases employee witnesses testified they received no offer,20 but
in three of them (Jean Doyle, Gerald Wambach, and William L. Mitchell) the
employees in fact returned and were reinstated contemporaneously with the end of
the strike. The other two (Ann Cooke and Georgianna Brunelle) have not been
reinstated. However, Brunelle admitted that she had furnished Respondent, prior
to the lockout, with a letter from her physician to the effect that she would be
unable to work after January 1 because of pregnancy.
Edward Murphy testified that though he applied for reinstatement upon receipt of
Respondent's offer in May, he was refused on the ground that there was no
opening.
David Cicio was denied reinstatement on his application in January at Ralph's,
.though he was offered and accepted employment at Dave's Market.
The following recommendations are therefore made in the foregoing cases: That
Respondent shall offer reinstatement in the usual manner to Cooke, Murphy, and
Cicio with backpay to be computed in the usual manner from December 8, 1958,
until the date of such offer, and that the backpay period in the case of Doyle,
Wambach, and Mitchell shall, end with the dates of their respective reinstatements,
and in Brunelle's case on January 1, 1959.
No recommendation for backpay will be made as to May Eno or Ethel Garry,
who went on strike and who, were not discharged. See section J, 2, supra. Eno
was reinstated at the end of the strike, and there was no evidence that Garry applied
for and was denied reinstatement at the end of the strike.
For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60,•61,
and cases there cited, I shall recommend a broad cease-and-desist order.
' Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following: -
1 CONCLUSIONS OF LAW
1. Each of the Charging Unions and Local 11, United Packinghouse Workers of
America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act. '
2. By attempting to bargain directly with its employees, by threatening not to
recommend them for other, employment because of their participation in the strike
and picketing, by conditioning their reinstatement upon abandonment of the Union,
of further participation in-the strike and in picketing, and by promising financial
assistance to them if they would cease further participation an the strike and in
picketing, Respondent interfered with, restrained, and coerced employees in the
exercise of rights guaranteed,by Section 7 of the Act, and thereby engaged in unfair
labor practices within the meaning of Section 8(a)(1).
3. By locking out and discharging and by failing and refusing to reinstate the
employees whose names are' listed in [Appendix A attached to the Decision and
Order], Respondent discriminated in regard to hire or tenure of employment to
discourage membership in Local 11, United Packinghouse Workers of America,
AFL-CIO, and thereby engaged, in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of: the,,Act.
4. All meat department employees of Respondent employed at its Worcester store,
exclusive of employees of the grocery, liquor, produce, and dairy departments,
20 Though the Trial Examiner pointed out at the hearing that Respondent was in posi-
tion to refute those denials through production of the return receipts, Respondent offered
no contradiction , ,
S. FREDERICK SANSONE CO. 1301
snackbar employees , office clerical employees , professional employees , guards, and
all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of the
Act.
5. At all times on and after December 18, 1958, the Meat Cutters Union has
been the representative for the purpose of collective bargaining of a majority of
the employees in the aforesaid unit, and has been and is the exclusive representative
of all the employees in said unit for the purpose of collective bargaining in respect
to rates of pay, wages, hours of employment, or other conditions of employment.
6. By refusing to bargain collectively with the Meat Cutters Union on and after
December 18, 1958, Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
7. The strike by Respondent's employees, which began on December 8, 1958, was
caused by the discriminatory lockout and discharge , and was prolonged by Re-
spondent's other unfair labor practices as above found.
8. The aforesaid unfair labor practices, having occurred in connection with the
operation of Respondent 's business , as set forth in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States and substantially affect commerce within the meaning of Section 2(6) and
(7) of the Act.
[Recommendations omitted from publication.]
S. Frederick Sansone d/b/a S. Frederick Sansone Co. and Wine,
Liquor and Distillery Workers Union, Local 1 a/w Distillery,
Rectifying, Wine and Allied International Union, AFL-CIO.
Case No. 1-CA-?9R3. June 17, 1960
DECISION AND ORDER
On March 4, 1960, Trial Examiner Vincent M. Rotolo issued his
Intermediate Report in the above-entitled proceeding, and on March
11, 1960, an erratum, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices, and recommending
that he cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, and the Charging Union filed excep-
tions and a motion to reopen the record.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions,' the brief, and the entire record in
1 Counsel for the Union, who was not present at the hearing, filed, with the Union's
exceptions , a motion to reopen the record to present testimony of union representatives
127 NLRB No. 145.