Smitty's Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1973

201 N.L.R.B. 283 (N.L.R.B. 1973)

SMITTY'S FOODS, INC. 283
Smitty's Foods, Inc. and Retail Clerks Union # 25,
Retail Clerks International Association, AFL_
CIO. Cases 25-CA-4560 and 25-CA-4663
January 16, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On August 22, 1972, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
Charging Party filed exceptions and supporting
briefs. The General Counsel filed limited exceptions
and a supporting brief, and the Respondent filed a
brief in answer to the exceptions filed by the
Charging Party and the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.'
reprisals on various dates between September 18 and
October 7 , 1971,1 discriminatorily discharged John D.
Wagoner on September 19 and Linda Gick on September
28, and refused to bargain with the Union as the exclusive
representative of Respondent 's employees on and after
September 29.
On December 2, the charge in Case 25-CA-4663 was
filed by the Union, and on January 18, 1972, a complaint
issued alleging that Respondent had discriminatonly
discharged Edwin Rihn on October 11, and Eugene
Matusz on November 6. The two complaints were
consolidated for purposes of hearing and decision . Respon-
dent filed answers denying the commission of any unfair
labor practices.
Prior to the hearing and at the hearing the complaint in
Case 25-CA-4560 was amended to allege September 28
and 30 and October 4 as additional dates on which
Respondent refused to bargain and to add further
allegations of threats and interrogation . Respondent
denied the allegations in the amendments.
A hearing was held before me in Lafayette, Indiana, on
February 22, 23, 24, and 29 and March 1, 1972. At the
conclusion of the hearing the parties waived oral argument
and were given leave to file briefs which have been
received from the General Counsel and Respondent.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Smitty's Foods, Inc.,
West Lafayette, Indiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
1 The General Counsel and the Respondent have excepted to certain
credibility findings made by the Administrative Law Judge . It is the Board's
established policy not to overrule an Administrative Law Judge's resolu-
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions were incorrect . Standard
Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3). We
have carefully examined the record and find no basis for reversing his
findings
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S . DAVIDSON , Trial Examiner : On October 4,
1971, the charge in Case 25-CA-4560 was filed by Retail
Clerks Union #25, Retail Clerks International Associa-
tion , AFL-CIO, hereinafter called the Union . On Novem-
ber 30, 1971, a complaint issued alleging that Respondent
interrogated its employees and threatened them with
I All dates which follow occurred in 1971, unless otherwise indicated
1. BUSINESS OF THE RESPONDENT
Respondent is an Indiana corporation engaged in the
retail sale of groceries and allied products at a single
location in West Lafayette, Indiana. During the 12 months
prior to the issuance of the complaint, a representative
period, Respondent sold and distributed products having
gross value in excess of $500,000. During that period
Respondent received goods having value in excess of
$50,000 which were transported to its place of business
from points outside the State of Indiana. I find that
Respondent is an employer engaged in commerce and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Respondent operates a single retail grocery store at West
Lafayette, Indiana. Respondent is solely owned by Mrs.
Georgina Smith and the store is managed by Gilbert
Amato, brother of Mrs. Smith. Mary Tucker is bookkeeper
and supervisor of cashiers and Francis Hoefer is grocery
manager. Amato, Tucker, and Hoefer are conceded to be
201 NLRB No. 47
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors within the meaning of the Act. Respondent's
store employs a normal complement of employees,
including cashiers, sacker-stock boys, meat department
employees, delicatessen employees, produce department
employees, a meat manager, a produce manager, a dairy
manager, and a frozen foods manager.
In mid-September, the Union started an organizing
campaign among Respondent 's employees . Between then
and September 30 it obtained signed authorization cards
from a number of employees. On or about September 28,
29, and 30, the Union made oral and telegraphic requests
for recognition, which were rejected by Respondent.
In addition to factual and conclusionary issues relating
to the four alleged discriminatory discharges and the
alleged threats and interrogation, also at issue are the
supervisory status of Produce Manager Marvin Davis,2 the
eligibility of certain part-time sacker-stock boys for
inclusion in the appropriate unit , the Union's alleged
majority, the adequacy of the Union' s demands for
recognition , and the lawfulness of Respondent 's refusal to
bargain with the Union in the light of N.L.R.B. v. Gissel
Packing Company, 395 U.S. 575.
The evidence contains numerous conflicts in testimony
relating to the alleged violations of Section 8(a)(1) and (3).
In support of these allegations the General Counsel relied
on the testimony of the alleged discriminatees, three
former employees,3 and three who were still employed at
the time of the hearing.4 Respondent relied on the
testimony of Store Manager Gilbert Amato, Grocery
Manager Francis Hoefer, Office Manager Mary Tucker,
Produce Manager Marvin Davis, Owner Georgina Smith,
employee Kevin Hart, and cashiers Ruth Leclitner and
Wanda Westfall.
As in most cases, resolution of the credibility issues is not
a simple matter, and the testimony of each witness must be
evaluated both standing alone and in its relation to the
record as a whole. One cannot readily conclude that all the
testimony for one side is either credible or unworthy of
belief. Indeed, it appears that with respect to individual
witnesses , some discrimination is required to separate out
those portions of their testimony which are worthy of belief
from those which are not. I have attempted to be thorough
in my consideration of these issues and to set forth below
the reasons which lead me to the conclusions I have
reached, although it is not always easy to articulate in toto
all of the interrelated considerations which contribute to
credibility resolutions.
As will be seen, a number of statements were attributed
to Amato, Hoefer, and Tucker by the various witnesses for
the General Counsel. Some of this testimony I have
discounted because others who appeared as witnesses and
were in a position to corroborate testimony did not do so.
Some of this testimony I have discounted because of
internal deficiencies . But I am not persuaded that all the
witnesses who testified to these statements were fabricating
their testimony or were inaccurate in their perceptions or
recollection. In particular, both Guard and Mary McNeely
2 This issue bears on Respondent's responsibility for certain conduct
attributed to Davis as well as the composition of the appropriate unit
3 Patrice Murphy , John Durajczyk , and Carl Robert Reagan
• Kevin Hart , Pat Guard , and Mary McNeely
5 Also significantly bearing on my assessment of Tucker's credibility is
were still employed at the time of the hearing and had clear
interests as continuing employees not to misstate facts
before their supervisors for whom they continued to work.
I am persuaded that both were substantially truthful and
accurate in their testimony.
In reaching these conclusions, I have considered the
denials of Respondent 's principal witnesses , Amato,
Hoefer, and Tucker, of statements and conduct attributed
to them. If they are to be believed, none of them
questioned any employee about the union activities and
with the exception of one statement by Tucker on
September 28 at an employee meeting and a later
statement by Hoefer to Rihn, none of them threatened any
reprisals. Indeed, if they are to be believed, Hoefer did not
even become aware of the union campaign until September
28, and Tucker did not even talk to Amato about the
Union except on one occasion when she asked Amato to
point out a union representative in the store . While I credit
these witnesses in part , I am satisfied that much of their
testimony is overstated, shaded, and lacking in candor.
It is clear that from September 22 on , union representa-
tives frequently appeared in the store and on the parking
lot to the displeasure of Amato who viewed them, with
some cause, as bothering employees while at work. Linda
Gick , much of whose testimony is in issue , testified without
contradiction that, when union representatives appeared in
the store, Tucker called other supervisors to the front of the
store and that one of them followed the union representa-
tives around the store. Tucker concededly sought to stop
employee Reagin from soliciting in the store and to confine
his activities to the parking lot and off-duty employees.
Although both Tucker and Amato told employees that the
September 28 employee meeting had nothing to do with
the Union, one would have to be naive to view a meeting at
that time at which a statement of store employment policy
was read as anything but a response to the Union's
organizing campaign . It is incredible that all these things
happened in the absence of discussion of the Union
between Tucker and Amato, and I find her contrary
testimony unworthy of belief and lacking in candor.5
In the case of Hoefer , his testimonial deficiencies are
even more glaring . Hoefer denied any knowledge of the
union activities until the day of the employee meeting,
despite the frequent presence of union organizers in the
store. When asked how he learned on that day that the
Union was organizing, Hoefer first indicated that the
meeting was about the union organizers , then denied that it
was, and then stated that he had seen three men on the
parking lot on the previous night who he assumed were
union organizers . When asked why he assumed that, he
testified "they just looked like them, that's all ." He denied
having heard any talk about the Union in the store or
having discussed the Union with Tucker or Amato. When
asked again on what he based his assumption he replied,
"Something, that's all."
Moreover , despite Hoefer's insistence that he did not
learn of the Union until September 28, when asked
her testimony relating to her handling of Hart 's withdrawal letter and return
receipt which is in conflict with Hart 's testimony and portrays total lack of
concern over the contents of these documents when he asked her to keep
them for him in the store safe
SMITTY'S FOODS , INC. 285
whether during the previous week Wagoner twice asked
him if the Union had something to do with his discharge
and whether he admitted that it did as described in more
detail below, Hoefer weakly denied what Wagoner had
attributed to him, and pleaded lack of recollection. Surely,
if Hoefer knew nothing about the Union until September
28, he should have had no difficulty in recalling that he
had no conversation with Wagoner about the Union before
that date. I find Hoefer's denial of knowledge of the union
activities before September 28 and his denial of communi-
cation with Amato and Tucker about them patently
lacking in candor and incredible.
The deficiencies in Amato's testimony are less glaring,
but also present. I am struck by the number of times in his
testimony when called as an adverse witness by the
General Counsel that he pleaded lack of recollection of
various events, some of which he later testified to when
recalled as a witness by Respondent. I have also noted
some inconsistencies in his testimony as to his own
observation of union activity in the store and his response
to it.
As I have noted, these observations do not mean that I
have uniformly discredited the testimony of these witness-
es. Indeed, I have not. But I do not accept the basic
premises of their testimony as to their awareness , concern,
and response to the union activities in the store.
B. The Alleged Supervisory Status of Marvin Davis
The complaint, as amended, alleges that Marvin Davis,
manager of the produce department, is a supervisor.
Respondent contends that he is not.
The admitted supervisors at the store are paid on a
salaried basis. The remaining employees, including Davis
and other department managers, are hourly paid and
punch a timeclock. Apart from the meat department
manager whose status is not at issue herein,6 it is agreed
that the other department managers are not supervisors
and should be included in the appropriate unit.
Davis' duties consist basically of two parts, those
performed by him in the produce department and those
performed by him throughout the store at times when no
salaried supervisor is present. It is the latter part of his
duties from which the General Counsel contends Davis'
supervisory status arises and upon which this discussion
therefore focuses.
Respondent's store is open weekdays from 9 a.m. to 9
p.m., and Sundays from 9 a.m. to 6 p.m. On Monday and
Wednesday from 6 p.m. to 9 p.m. and on alternate Sundays
no salaried supervisor is present at the store. Davis works
each of those evenings and every fourth Sunday. Meat
Department Manager Adwell works on the other alternate
Sunday when no salaried supervisor is present. Thus, Davis
is at the store approximately 6 hours each week and an
additional Sunday every fourth week without higher
supervision present.? Davis has a key to the store and is
responsible for locking the safe and the store at closing
time on these occasions. Usually approximately 10 other
employees work at the store with Davis during the evening
hours , including cashiers , sacker-stock boys , a delicatessen
employee, a produce employee, a meat department
employee, and an employee responsible for the frozen food
and dairy departments.
On Mondays and Wednesdays the store receives deliver-
ies of grocery products, and there usually is merchandise to
be placed on the shelves during the evening hours . Before
leaving on those days at 6 p.m. Amato or Hoefer tells
Davis what needs to be done during the evening hours.
They also instruct the sacker-stock boys as to what they are
expected to do during the evening. Davis has been told that
he is to see to it that the work is done and that everyone is
kept busy. Two of the employees who work nights are older
than most of the sacker-stock boys and have also been told
by Amato to keep an eye on the younger boys to see that
they keep at work and out of mischief.
During the evening hours Davis roams through the store,
straightens shelves , and sees that everything is running
right. At times Davis also stocks shelves or goes to the
produce department to trim produce or relieve the part-
time employee who weighs produce for customers.
If business is slow and sackers have nothing to do at the
front of the store, Davis tells them to go to the back of the
store and stock shelves. On Monday nights Ruth Leclitner,
who is known as the head cashier, works and she may also
send sackers to the rear of the store to stock shelves. If
additional sackers are needed at the front of the store
either Davis or the cashiers call them forward on the store
intercom and they are expected to respond.
If during the course of the evening there is not enough
work to keep all the sacker-stock boys busy, Davis has
standing instructions to send excess help home . On these
occasions Davis seeks volunteers who want to leave early
and usually finds them. He does not send anyone home
involuntarily. On occasion employees ask to be released
early, and Davis grants their requests if they are not
needed. Otherwise he does not. Davis has similar authority
to send cashiers home if they are not busy, and Leclitner
has the same authority on Monday nights.
On most evenings Amato telephones the store between 7
and 8 p.m. to ask how things are going. On these occasions
Amato discusses with Davis whether employees should be
sent home. On nights when Amato does not call Davis
exercises his own judgment. No one has ever asked Davis
to be released because of an emergency or injury, but
Davis testified that if an employee were injured, he would
take him to the hospital and would also call Amato to tell
him about it. If other kinds of emergencies, such as
equipment failures apse, Davis calls Amato to discuss with
him what should be done.
On Monday nights Ruth Leclitner has access to the
office and the safe and takes care of most of the cashiers'
needs. On some Wednesdays Laurie Smith, daughter of the
owner, works as a cashier and has similar access to the
office and safe . However, when Leclitner or Smith are busy
6 It is agreed that the meat department employees should be excluded r There is evidence that Davis also works some Saturday evenings in
from the appropriate unit . There were two prior elections held among the place of Hoefer who usually works on that night. The evidence also
meat department employees , the most recent in June 1971. The meat indicates that on those Saturdays he performs the same duties as on
department manager voted in both elections , but his supervisory status was Monday and Wednesday nights . The record does not indicate how
not litigated and the Charging Party was not involved in those elections frequently he works on Saturday night.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or are not present, Davis obtains change for the cashiers
from the safe and sees that money is put in the safe before
closing up.
During the evening hours , if Davis encounters employees
doing anything improper, he instructs them to stop it. His
instructions have never been defied . In some instances
Davis reports incidents to Amato on the following
morning, but Davis does not send employees home or
otherwise discipline them. Leclitner does likewise with
respect to cashiers and sackers when she is at the store on
Monday evenings.
Davis has no authority to hire or fire employees.8 If
anyone asks him about employment, he takes the name
and address and gives it to Hoefer the next day .9 Davis
also has no authority to promote or grant increases to
employees , but before promoting or giving a wage increase
to any employee Amato asks the manager of the depart-
ment in which the employee works his opinion as to how
the employee is working.
Insofar as the record shows Davis' duties and authority
on the Sundays that he works are the same as on the week
nights when he works without other supervision present.10
Every fourth Sunday when Meat Department Manager
Adwell works, he apparently has the same authority as
Davis.
Davis is paid $2.75 an hour. Several employees in the
meat department, including Adwell, are paid at a higher
hourly rate than Davis and one grocery department
employee, Arthur Davis, receives the same rate of pay as
Marvin Davis. Five other employees are paid from $2.50 to
$2.70 an hour including Leclitner who is paid $2.50 an
hour.
Although Davis was hesitant to concede that he is in
charge of the store on nights and Sundays that he works, it
is apparent that he is in charge of all or a portion of the
store at these times, and several employees testified that
they considered Davis the boss when he is in charge of the
store. t i There is little doubt that at these times Davis has
authority to direct employees in their work, to move
employees from one task to another , and to release
employees from work early under the circumstances
described above. However, Leclitner has similar authority
with respect to cashiers and sackers on the one night a
week when she works with Davis, and there is no evidence
that Davis had authority to hire, discharge, promote,
discipline, or otherwise affect employee status at any
time . 12 Excluding the occasional Saturday nights when
Davis worked, it appears that he was in charge on an
average of 8 hours a week or less than 20 percent of the
time he worked.13
a Although Carl Robert Reagin testified that Tucker once told Davis to
fire him , as set forth more fully below. I do not credit Reagin 's testimony in
that regard
9 Davis so testified Eugene Matusz testified that Davis interviewed a
student for employment after Carl Reagin quit . However, there is no other
evidence that Davis participated in hiring employees other than to the
extent that Davis testified I find that Davis' interview at most amounted to
obtaining for Hoefer the information which Davis described
iu Davis testified that he is there on Sundays "to see that nothing
happens" and that in case "something happens" Amato wants someone
there who knows what to do to get it corrected
11 Thomas Higbee, Mary K McNeely, and Warts Cowlas McNeely
testified that when she was told she would work Wednesday nights she
I conclude that Davis' authority to direct employees and
release them early if business was slow did not amount to
authority responsibly to direct employees but consisted of
routine direction comparable to that exercised by a
nonsupervisory leadman . In transferring employees Davis
in the main moved them between two regularly assigned
functions of sacking and stocking , and Hoefer or Amato
regularly instructed the employees as to what they were to
stock each day before they left. Although Davis could
release employees from work early, he only sent home
volunteers , he only did so when business was slow, and he
usually communicated with Amato by telephone and
discussed whether employees should be asked to go home
before sending them home. With respect to cashiers and
sackers , Davis' authority was shared to some extent with
Leclitner who is concededly not a supervisor. I find that
Davis was not a supervisor within the meaning of the
Act.14
C. The Beginning of the Union Organizing
Campaign
The union organizing campaign at Respondent store
started in mid-September 1971. From September 13
through September 17, six employees signed union authori-
zation cards. Two of them, Mary McNeely and Kevin
Hart, signed cards away from the store. Linda Gick, who
signed a card on September 15 at home, was given the card
by McNeely at the store and returned it to Union
Representative Ronald Gross at the store the next day. On
that day Gick gave blank cards to cashiers Pat Guard and
Patrice Murphy at the store. They signed them in the
breakroom and ladies' room, respectively, and returned
them to Gick. The record does not indicate where the sixth
employee , Reagin , was solicited or signed his card.
On Sunday, September 19, Hoefer telephoned John D.
Wagoner at home and told him that he was discharged. On
the following morning Wagoner came to the store and
spoke with Amato, Hoefer, and Mary Tucker about the
reasons for his discharge. Wagoner concededly asked
Tucker if his discharge was caused by the union activity at
the store and mentioned that she might not have been
aware of it but that he was sure that Amato was. Although
Respondent denies that Amato, Hoefer, or Tucker had
earlier knowledge of the union activity, it is conceded that
Tucker and Amato were aware of it from this time
forward.
asked Mary Tucker who was in charge , and Tucker told her that Davis was
and that if she needed anything to ask Davis However , Linda Gick testified
that to her knowledge Davis was not a supervisor
i2 Although Eugene Matusz testified that Davis told him he could
schedule his working hours around his school schedule , there is no evidence
that Davis scheduled work for Matusz or any other employee. I do not
credit Matusz in this regard
i3 The evidence indicates that Davis consistently worked substantially
an excess of 40 hours a week
14 Metcalfe Inc, d/b/a Sentry Food Store, 184 NLRB No 40. Buckeye
Village Market, Inc, 175 NLRB 271. 273. The Great Atlantic and Pacific Tea
Company, 132 NLRB 799, 801.
SMITTY'S FOODS, INC.
D. The Alleged Violations of Section 8(a)(1) of the
Act and Related Events
1. On September 20, the morning that Wagoner spoke
to Tucker about the union activity, Mary Tucker asked
cashier Pat Guard if she knew anything about the Union.
Guard replied that she did not, and Tucker said "someone
has started this and I wish they hadn't as we are going to
have to cut help." Later in the day, Tucker told Guard that
if the Union got in, Gloria Smith would work days and
Linda Gick would work nights. Guard asked if she would
be laid off. Tucker said she would, and Guard said that she
might as well start looking for another job.15
I find that the threat of a general cut in help and the later
threat that Guard would be laid off violated Section 8(a)(1)
of the Act. I also find that the interrogation of Guard in
these circumstances was coercive and violated Section
8(a)(1).
2. On September 22, union representatives started
visiting the store on a regular basis several times a day.
Also on September 22, Harry McNeely, husband of cashier
Mary McNeely appeared on the parking lot to hand out
leaflets, and he reappeared to do so at other times
thereaf ter.
On September 22, Respondent became aware of the
presence of the union representatives in the store and of
McNeely's presence on the parking lot. During the next
several days, Amato spoke with Union Representative
Stone in the store on a number of occasions. It is clear that
Amato objected to Stone's presence in the store and
accused him of harassing employees while at work.
Although Amato denied threatening Stone with legal
action or arrest, I credit Stone that Amato made such
threats. 16
3. On the night of September 22, Marvin Davis spoke
to Mary McNeely about the presence of the union
representatives and her husband on the parking lot.
According to Mary McNeely during the course of the
evening Davis asked McNeely if she was interested in
getting the Union in and if she was going to help organize
the store. She testified that, in response to the last question,
she told Davis she was interested in getting more money,
and Davis said it would not help her make more money
because they would not get overtime.17 However, as I have
found that Davis is not a supervisor, I find no violation of
the Act in this interrogation.
4. Starting on September 22, the union representatives
held several meetings with employees at various locations.
There is no indication that Respondent was aware of any
of these meetings , except for one held on the night of
September 23 at a restaurant not far from Respondent's
store. It is conceded that during that meeting, Amato came
to the gas station next door, where he regularly traded, and
noticed the group in the restaurant. There is no contention
that Amato's visit was more than coincidental or constitut-
15 As indicated above , I have credited Guard as to this incident.
16 1 note in this connection that Amato was inconsistent in his testimony
as to whether he threatened to take legal action , and testified that Stone at
one point told him he had been in jail before , a statement likely to have
been prompted by a threat to have Stone arrested . These threats do not
appear to be alleged as violations of Sec. 8(ax1) of the Act.
17 McNeely placed this conversation in the previous week . However,
287
ed surveillance, but it is contended that Amato became
aware of the identities of those present, including Linda
Gick, Edwin Rihn, and Eugene Matusz, alleged as
discriminatees in the complaint.18 Amato testified that he
recognized only a union representative, to whom he waved,
and Maguire among those present. I do not credit Amato
in this regard. His affidavit given during the investigation
of this case states that he saw a number of employees in, the
restaurant, and Matusz testified, without contradiction;
that while Amato's car was being serviced he walked
toward the back of the gas station driveway and looked
toward the restaurant, indicating that Amato took more
than a casual glance and was in a position to recognize the
employees at the meeting. In any event, there is additional
evidence that Respondent was aware of the union activities
of the alleged discriminatees before their terminations.
5. On or about September 24 Edwin Rihn had a
conversation with Amato in a small room next to Amato's
office in the basement of the store. A policeman, who
raises apples and sells them to the store, was in Amato's
office when Rihn entered the office. The versions of Amato
and Rihn as to what was said are in sharp conflict. The gist
of Rihn's testimony is that Amato asked him if he was for
the Union and told him that if he signed an authorization
card there would be layoffs, possibly affecting him, a
reduction in his hours, and the elimination of overtime.
According to Rihn at the end of their conversation Mary
Tucker entered, Amato told her to ask Rihn if he had any
questions about the Union, and she asked him if he was for
the Union and said essentially the same things Amato did.
According to Rihn, he left with Tucker and went upstairs
with her where he heard her ask Reagin if he was interested
in the Union.
Amato testified that Rihn came to his office and asked to
talk to him, and that he took Rihn into the small side room
for privacy, where Rihn told him he wanted to get away
from the Union and asked Amato what he could do to help
him. According to Amato, he replied that there was
nothing he could do personally and that Rihn would have
to do it himself, either by going to the Union in person or
sending a registered letter asking for his card back. He
testified that nothing more was said and denied Rihn's
version of their conversation. Tucker was not questioned
specifically about this incident but denied interrogating
any employee.
Although there is some basis to doubt that the conversa-
tion was quite as innocuous as described by Amato, I do
not credit Rihn as to this conversation. Rihn testified
initially that the conversation took place in the presence of
the police officer and later Mary Tucker as well in Amato's
office to which Amato called him as he was walking to the
breakroom. However, on rebuttal he testified that Amato
called him to his office and their conversation took place in
a "little cubby hole" used for painting signs two steps
around the corner from Amato's office. He testified that
McNeely conceded a poor memory as to dates, and her estimates appear to
be about a week off as to several incidents . I find that this conversation
occurred at the time her husband first appeared on the parking lot
However. I find her testimony otherwise credible.
iX Mary McNeely, Carl Reagan , Pat Guard, Mike Bogon , Hal Kline, and
Dan Maguire were also present as were several union representatives
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the policeman stood next to him and Mary Tucker later
entered. Yet if Amato called Rihn to his office and did not
wish to conduct a private conversation with Rihn, it is
difficult to understand why three people went into a cubby
hole to talk instead of staying in Amato's office. The locale
of the conversation gives support to Amato's version of
how it started. In addition, when Rihn was asked on cross-
examination whether he ever asked Amato how he could
get out of the Union, Rihn answered first "I don't believe I
did," then that he did not recall , and finally, "I'll say, no,
completely." Although Rihn thereafter adhered to a firm
denial, his initial responses show uncertainty as to a matter
he should have had little doubt about. Moreover, in Rihn's
initial version, he testified that Amato said he didn't know
whether Rihn signed an authorization card and then said if
Rihn signed an authorization card it would mean the layoff
of employees. Yet on rebuttal he testified that he did not
recall his authorization card coming up in the discussion.
Finally, although Reagin appeared as a witness for the
General Counsel, he was not asked about Tucker's alleged
interrogation of him described by Rihn. In these circum-
stances and in the light of my findings below relating to
Rihn's testimony concerning his discharge, I do not credit
Rihn as to these events.
Rihn testified that 3 or 4 days after Amato spoke to him
in the sign room, Amato talked to him and Matusz in the
stockroom. Matusz and Amato were not questioned about
this conversation, but even if Rihn were credited, nothing
in it appeared to constitute interrogation or a threat. Rihn
testified that on another occasion when he was alone in the
stockroom Amato said he could not understand why Rihn
was for the Union and if he was and the Union got in his
hours would be cut with a possible layoff. According to
Rihn, Amato said that if Rihn thought that things were
rough around there then, they would get a lot rougher if
the Union did get in. Amato denied making these
statements. As between Rihn and Amato, I have credited
Amato.
6. On Saturday morning, September 25, while Linda
Gick was at her cash register Hoefer asked her who the
men were she was talking to the previous night.19 She
asked why. He said that they looked like union representa-
tives. She said that they were. Hoefer asked her if she had
signed a card, and she said that she had. Hoefer asked her
if she knew what she was getting into, and she replied by
asking Hoefer if he knew what he was getting into. Hoefer
turned and walked away.20 I find that Hoefer's interroga-
tion of Gick violated Section 8(a)(1) of the Act.
7. On one occasion before September 28 Mary McNee-
ly heard Hoefer ask Tucker who a new cashier was,21 and
Tucker replied that they had a new cashier and were going
to have more, because Amato had said to get rid of the old
ones. McNeely laughed and asked if that meant her.
19 Hoefer had observed Gick in the store parking lot the night before
when she was talking with union representatives
20 These findings are based on the credited testimony of Linda Gick.
corroborated in part by Mary McNeely who overheard a portion of the
conversation McNeely placed the incident a week earlier than Gick, but as
noted above appears to have been in error as to a number of dates There
are additional allegations of violation of Sec 8(a)(1) based on the testimony
of Gick relating to statements made to her by Tucker. As this testimony is
closely related to the circumstances surrounding her discharge, it is
considered below in connection with her discharge
Tucker said yes. McNeely asked why, and Tucker said that
the only thing that Amato had ever said about her was that
her husband worked at a competing store. McNeely said
that Amato had known that for at least 6 months.22
Tucker did not mention the Union in her remarks to
Hoefer or to McNeely. However, Tucker gave no reason
for her statement that they were going to have to get rid of
old cashiers, and with specific reference to McNeely
suggested as a reason for her possible discharge only the
employment of Harry McNeely, who was then actively
assisting in the union organizing campaign . Bearing in
mind the similarily of Tucker's remarks to Hoefer and
McNeely to those addressed to Guard, I find that Tucker
meant to convey that the cashiers would be fired because
of the Union. I find that these statements violated Section
8(a)(1) of the Act.
8. Eugene Matusz testified to two incidents on Mon-
day, September 27, involving Produce Manager Marvin
Davis. According to Matusz, on one occasion Matusz was
touring the store with Union Representative Stone. Matusz
testified that Davis followed them and told Matusz to
watch his step. Stone was not questioned about this
incident , and Davis denied that he ever saw Matusz in the
store with a union representative . In the absence of
corroboration from Stone and in the face of Davis' denial,
I do not credit Matusz as to this incident.
Matusz also testified that, at a time when he and Reagin
had union authorization cards visible in their shirt pockets,
he heard Davis tell Reagin that if he did not watch his step
and if he tried to get people to sign cards he would lose his
job. Reagin was not asked about this incident. As the
alleged threat was directed at Reagin, I do not credit
Matusz' uncorroborated testimony.
9. John Durajczyk who worked for Respondent only 2
weeks testified that on one occasion shortly after Septem-
ber 25, he heard Davis threaten to fire or reduce the hours
of another employee if he saw his union card. According to
Durajczyk the employee then gave his cards to Davis and
said nothing. Durajczyk did not identify the employee and
his testimony was not corroborated by the employee to
whom the threat was allegedly made. There is no evidence
to indicate the identity of the employee to whom
Durajczyk referred, other than possibly Reagin, and Davis
was cross-examined as to this incident on the assumption
that Durajczyk was referring to Reagin. Davis denied that
he threatened any employee or ever had a union card in his
hand. I do not credit Durajczyk.
Durajczyk also testified that he overheard Tucker tell
Leclitner23 that the boys would be doing themselves an
injustice if they signed cards. Only after he was shown his
affidavit to refresh his recollection did he add that Tucker
also said that it would endanger their working hours or
their jobs. Tucker generally denied making such state-
21 There was a new cashier at work that morning. The exhibits show that
Sharon Bergstrom was employed on September 22, which was during the
period in which McNeely placed this conversation and a day or two after
Tucker's conversation with Guard
22 1 have credited McNeely as to this incident Hoefer was not asked
about his conversation with Tucker, and I have not credited Tucker's
denials
23 Durajczyk did not identify Leclitner by name , but it is clear from his
physical description and the register at which she was working that
Durajczyk was referring to Leclitner.
SMITTY'S FOODS, INC.
ments, and Leclitner testified she never heard Tucker talk
to Amato or Hoefer or any employee about the Union.
While I do not credit Tucker's general denial and am
inclined to doubt Leclitner's sweeping disclaimer as well, in
view of the fact that Durajczyk was not a party to this
conversation and could not give his brief testimony
without having his recollection refreshed, I credit Durajc-
zyk only as to that portion of which he initially recalled. I
find no violation in this incident.
10. On the morning of September 28, Linda Gick was
discharged in circumstances described below. Also on that
morning Carl Reagin came to the store while off duty and
stood near Mary McNeely's cash register with authoriza-
tion cards and sample contracts which the Union had
given him to pass out. Mary Tucker told him over the store
intercom to stop bothering the cashier. Thereafter Reagin
went to the produce department where he offered a
contract to an employee who was at work. Shortly
thereafter, according to Reagin, Tucker and Marvin Davis
approached him, and Tucker told Davis that Reagin had
been passing out cards and contracts and to fire him.
Reagin testified that Davis told him he was through.
According to Tucker, she merely told Reagin not to
bother personnel while they were on duty and to go to the
parking lot where he could talk to employees on their own
time. According to Davis, he asked Reagin why he was in
the store so early, Reagin said he was passing out union
cards, and Davis told him that he would get himself into a
mess of trouble if he did not quit. Both Tucker and Davis
denied Reagin's version of the incident.
I do not credit Reagin. It is clear that Respondent was
disturbed by solicitation of employees during working
time, but the evidence is not persuasive that Reagin was
fired by Davis or anyone else at that time. Reagin
concededly reported for work at 3 p.m., his normal starting
time. Although the General Counsel's brief states that the
Union got Reagin's job back, there is no evidence to
support that assertion. Rather, Reagin testified that union
representatives merely advised him to report at his normal
starting time, and he did so. Moreover, when Reagin was
asked if Tucker told him to go out on the parking lot if he
wanted to pass out contracts or cards, he replied that he
did not remember and that she might have. He next
testified that there was no discussion of the parking lot at
that time, and finally testified that he was not denying that
there was. In these circumstances, I credit Tucker and
Davis. As Reagin concededly was attempting to distribute
contracts and cards to employees while at work, I find no
violation of Section 8(a)(1) in Tucker's instructions to him
to stop bothering employees and to go to the parking lot to
talk to employees on their own time.
Later that day, Reagin reported to the store at his usual
starting time, spoke first with Davis, and then spoke with
Davis and Amato. Reagin asked if he could tape record the
employee meeting which was scheduled to be held that
night at the store by Amato. Amato said that he did not
tape Reagin's meetings with the Union and that Reagin
24 The complaint does not allege any violation of Sec. 8(a)(3) based on
Reagin 's alleged discharge by Davis or his alleged reduction of hours by
Amato.
25 Murphy placed this incident around October I, but it is clear that she
was referring to the incident involving Reagin described above
289
could not tape Amato's meeting. According to Reagin,
Amato then told him he would have a new work schedule
reducing his hours from 40 to 18 a week. Reagin testified
that he told Amato that he should forget it and that he
quit. According to Amato, he said something to Reagin
about passing out cards in the store when others were on
duty, and Reagin became angry and quit. According to
Davis, when Amato denied Reagin permission to tape
record the meeting, Reagin became angry and quit.
Lacking confidence in Reagin's testimony as to his earlier
encounter with Tucker and Davis that morning, I also do
not credit Reagin's testimony as to his conversation with
Amato and Davis.24
11. On September 28, Patrice Murphy was standing
near the office when she heard Tucker tell Reagin to get
away from the cashiers.25 Then Tucker turned to her and
said, "He's trying to get them to sign union cards, don't get
involved with the Union; if you do sign a union card, and
the Union gets in , you will probably be fired, being low in
the seniority list, and the Union does not care about that."
Tucker then said, "You haven't signed a union card, have
you." Murphy did not reply, and Tucker said, "Don't sign
one." Murphy backed away and went back to her
register.26 I find that Tucker threatened and interrogated
Murphy in violation of Section 8(a)(1).
12. On September 28, Harry McNeely spoke with
Amato in the store. It is clear from both versions of the
conversation that Amato accused McNeely of harassing
his employees and that during the conversation McNeely
gave Amato a slip of paper with telephone numbers of the
president and area supervisor of Eisner's, the corporation
for which McNeely worked, telling Amato that if he
wanted to get him fired to call them. According to
McNeely and Matusz who was nearby, Amato said he
would call them to get him fired. Amato denied that he
made any reply and denied that he had any desire to do
more than put a stop to McNeely 's interference with the
work of sackers carrying groceries to the parking lot.
Although I am inclined to credit McNeely, I find it
unnecessary to resolve this conflict as the incident is not
mentioned in the General Counsel's brief and does not
appear to be alleged as a violation of Section 8(a)(1) of the
Act.
13. On or before September 28 a notice was posted near
the timeclock informing employees that a meeting was to
be held at the store on the night of September 28 after the
close of business. All employees were asked to attend, and
they were paid for the time at the meeting . A few days
before the meeting copies of a statement of company
employment policy were distributed to at least some of the
employees, and Amato read the policy statement at the
meeting.27
During Amato's reading of the policy statement, Matusz
interrupted several times to ask questions relating to the
Union. Amato told him to be quiet . According to Matusz,
Amato ultimately threatened to fire him for insubordina-
tion if he said anything else. According to Amato and
26 Murphy so testified , contrary to Tucker . I have credited Murphy.
27 Although referred to in testimony by Amato, Tucker , and others as an
agreement . it was not an agreement but a statement of Respondent 's policy
concerning seniority , promotions , overtime , holidays, vacations , hours, jury
leave , death leave , on-the -job injuries , and insurance.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tucker, he threatened merely to put Matusz out of the
meeting if Matusz continued to interrupt. Although Pat
Guard and Mary McNeely both testified about the
meeting, neither mentioned that Amato threatened to fire
Matusz. I credit Amato and find no violation in Amato's
threat to eject Matusz from the meeting.
After Amato finished reading the policy statement, he
asked for questions, and the subject of the Union was
again raised. McNeely accused Respondent of trying to set
her up for a charge of stealing and mentioned her
conversation with Tucker in Hoefer's presence about the
layoff of cashiers. Tucker disputed the accuracy of
McNeely's version, and McNeely asserted that her version
was accurate and that Hoefer had heard it. Hoefer said
nothing.28 Amato said that if the Union caine in he could
not afford to keep help, and Tucker said that Respondent
would have to lay off sackboys and the newer cashiers.29
I find that the threat to layoff cashiers and sackboys if
the Union got in violated Section 8(a)(1) of the Act. While
phrased in terms of necessity and what Respondent could
afford, it was not conditioned on any wage or contract
demand of the Union but simply upon the advent of the
Union and cannot be dismissed simply as a prediction of
the possible consequences of agreement to particular
demands of the Union.30
After the meeting adjourned, Matusz spoke privately to
Amato for about 15 minutes, explaining to Amato that
what he had said during the meeting was not personal but
merely reflected his strong support of the Union. They
discussed the advantages and disadvantages of a union,
but there is no indication that Amato's statements to
Matusz contained any further violations of the Act 31
14. On September 30, Kevin Hart mailed 4 registered
letter to the Union seeking withdrawal of the authorization
card he had signed on September 14. Hart gave a statement
concerning his withdrawal to the General Counsel during
the investigation of this case and testified as a witness for
the General Counsel, although it was apparent that he was
a reluctant witness. Hart sought to convey, as Tucker also
testified, that Hart merely went to Tucker to obtain advice
as to how to withdraw his card. However, he testified that
Tucker asked him if he had definitely signed a card and
stated to him that she knew about all those in the store who
had signed cards. He testified that he had more than one
conversation with Tucker about his card and was uncertain
as to when Tucker asked him whether he had signed a card
and whether in the same conversation she stated that she
28 McNeely so testified . While others did not mention these statements
of McNeely in their versions , Amato testified that he could not remember
what McNeely said, Hoefer was not questioned about the meeting at all.
and Tucker was not asked about these statements . It is clear that McNeely
believed she was being set up for discharge , and Amato conceded that she
spoke to him about it on an unspecified occasion I credit McNeely as to
what she said as a preface to the statements of Amato and Tucker which
followed.
29 Amato denied that he said anything about layoffs and testified that he
could not recall whether Tucker said anything about them . McNeely,
Guard, and Matusz testified to slightly varying versions of the statements of
Tucker and Amato, all of which were the same in substance, and Tucker
conceded that with reference to Union she said that if this "thing"
happened they could not possibly keep all the employees on duty that they
would like to, referring first to Respondent's longstanding policy of
providing work for students and student's wives . I credit the somewhat
blunter versions of McNeely, Guard, and Matusz However, although
knew about all those who had. He testified that when he
sent the letter he gave Tucker a copy and asked her if she
wanted to put it with the rest of the union material she had.
Tucker testified that she had only one conversation with
Hart when he came to her and asked for advice on how to
get his card back. According to Tucker, she replied, "A
card. What card? Have you signed some kind of a card."
She testified that she then advised Hart to write a letter or
contact his attorney, and that in substance was their whole
conversation. She testified that when Hart later brought
the letter to her he merely said that he had some
"important information" that he wanted her to keep in a
safe place for him, that he did not tell her its contents, and
that she did not read it. When told on cross-examination
that Hart had testified that it was a copy of his letter, she
testified that Hart could have said that but she did not read
it. Then she testified that Hart told her it was a letter but
did not say what it pertained to.
I find it impossible to credit either Hart or Tucker that
Hart merely voluntarily came to Tucker to inquire about
withdrawing his card. However reluctant Hart's affirma-
tion of the statement in his affidavit that Tucker told him
she knew about all those who had signed cards, he did not
recant from that testimony but indeed reaffirmed it several
times. I find that Tucker made that statement. Hart's
difficulty in placing that statement in the context of his
version of his conversations with Tucker otherwise is
understandable, for it does not fit unless Tucker made this
statement before Hart decided that the politic thing would
be for him to withdraw his card. Further evidence that
Hart's withdrawal was less than voluntary lies in his
delivery of a copy of the letter and the return receipt to
Tucker to put with the other union material. Hart not only
wanted to withdraw but also wanted Respondent to know
he had withdrawn, and Tucker's professed ignorance of
what Hart gave her is patently incredible. While it may be
that Hart took the initiative in going to Tucker for advice
after Tucker's initial statement that she knew all those who
signed cards, her initial statement created an impression of
surveillance, was coercive, and taints Hart's attempt to
withdraw his card.
15. Around October 4 Hoefer talked to Rihn in the
back room of the store. Hoefer asked him if he was for the
Union. Rihn said he was not. Hoefer said it was a good
thing because if he was and if the Union got in he would be
kept to 40 hours a week 32
Hoefer conceded that Rihn had been getting overtime in
Matusz also testified that Amato threatened to eliminate overtime , absent
corroboration from McNeely or Guard I do not credit Matusz in this
regard.
30 Components Inc, 197 NLRB No 25. Indeed the same conclusion
would follow even if Tucker' s more guarded version of her statements were
credited.
31 Although Matusz testified that Amato asked him if he was working for
the Union or was sent to the store by the Union, and Amato 's denial was
less than forceful , even if Amato asked these questions in the context of this
conversation they were not coercive.
32 Rihn so testified. While I have not credited him in some other
respects , I find his version of this conversation more credible that Hoefer's.
While Hoefer denied that he asked Rihn if he was for the Union , he testified
that one day when Rihn looked downhearted about something, Hoefer
asked what was the matter and then said . "You know I can't give you any
more overtime if the union gets in here " He later testified that probably he
was the first to mention the Union in this conversation "because Ed was
SMITTY'S FOODS, INC. 291
the past and that Hoefer had given him as much
opportunity as possible to work overtime. I find that
Hoefer's interrogation of Rihn and the threat to deny him
overtime violated Section 8(a)(1) of the Act.
E. The Discharge of John D. Wagoner
John D. Wagoner was a full-time employee of the post
office and worked part-time for Respondent as a sacker-
stock boy from January 1968 until he was discharged on
September 19, 1971. Wagoner worked mornings Monday
thru Friday leaving each day at 1 p.m.
On Friday, September 17, as Wagoner was punching in,
Kevin Hart asked Wagoner to sign a union authorization
card. No one else was present to overhear their conversa-
tion. Hart told Wagoner that they were trying to get a
union in. Wagoner said he did not want to express himself
one way or the other at that time and would let Hart know
on the following Monday. Wagoner told Hart that he
thought it would cost Respondent more to have the Union
in the store but that if Respondent paid higher wages there
would be better help and less turnover and that in the long
run Respondent might save money. Hart asked why
Wagoner would not sign a card then, if that was the way he
felt, but Wagoner said he would not and that he would let
Hart know on the following Monday. Hart offered him a
blank card but Wagoner refused to take it.33 Wagoner left
work at 1 p.m. that day and was not scheduled to work
again until the following Monday.
On Sunday, September 19, Hoefer called Wagoner at
home and told him that Amato had let Wagoner go.
Wagoner said that Hoefer had to be kidding and asked
why he was fired. Hoefer said that he had not been doing
his work for the last month and a half. Wagoner said that
he could not be out back checking in deliveries and up
front stocking at the same time. Wagoner asked if it would
do any good to come over the next day and talk about it,
and Hoefer told him to do so.34
There is a sharp conflict in the testimony as to what was
said when Wagoner visited the store on the next day.
According to Wagoner, he first spoke to both Amato and
Hoefer. He testified that Hoefer told Amato to keep
Wagoner because he was a good worker and "all the
instigators were out of the store." According to Wagoner,
Amato initially replied that it was up to Hoefer if he
wanted to keep Wagoner, but Amato and Hoefer then
absented themselves briefly after which Hoefer returned
and said that Amato did not want to keep him. At this
time, according to Wagoner, he told Hoefer he believed
Amato discharged him because Amato thought he was
heading a union drive and not because of his work
performance, and Hoefer replied that that was "more or
less" the reason he was being let go and that he did not
want to discuss it further because Amato might come back
and catch them. Wagoner testified further that on the
following Thursday after bowling with Hoefer, he asked
Hoefer if the Union was the main reason he was fired, and
Hoefer said that it was.
Hoefer testified that he did not recall making either of
the alleged admissions attributed to him by Wagoner.
According to Hoefer and Amato, Wagoner was discharged
because Amato had found him standing and talking to
other employees instead of doing his work on a number of
occasions, the last of which occurred on the previous
Friday morning when Amato instructed Hoefer to dis-
charge Wagoner.
On the surface Wagoner was a more impressive witness
than Hoefer. He appeared to be candid in describing his
limited contact with the Union before his discharge, and
his demeanor while testifying gave no suggestion that he
lacked credibility. Hoefer, as already noted, appeared to be
far from candid in his testimony that he did not become
aware of the Union until September 27, a week after
Wagoner's discharge, and his demeanor indicated both
discomfort and uncertainty at significant points. Nonethe-
less, the critical weight which attaches to Hoefer's alleged
admissions requires that the testimony of all concerned be
carefully scrutinized.
There are aspects of Wagoner's testimony which raise
doubt. First, if the alleged statement by Hoefer that all the
instigators were out of the store has any meaning, its
reference must have been to instigators of the union
campaign, for there is no indication of any other
instigation to which it might have referred. Yet, insofar as
the record shows, all those who signed cards before
Wagoner's discharge, with one possible exception, were
still employed.35 Second, there is reason to doubt Wagon-
er's testimony that Hoefer said he was a good worker who
should be kept and that Amato said that it was up to
Hoefer whether he kept Wagoner. Although Wagoner
initially did not indicate that Amato voiced any criticism
of his work at this time, Wagoner on rebuttal testified that
Amato that morning spoke to him about leaving sections
of shelves bare. This testimony, elicited in response to
questions as to whether he had even been criticized for his
work, makes it apparent that his initial version of this
conversation omitted a significant portion. Moreover,
Wagoner also initially testified that he could not recall any
occasion when he had been spoken to about work
deficiencies. Yet he later conceded that he had been
spoken to about his work a few times over the entire course
of his employment, and his response to Hoefer at the time
Hoefer notified him of his discharge indicates that he was
aware of some dissatisfaction with his work.
feeling low and something was bothering him. Something awful . I asked him
what was the matter, and he says, I don't feel right. And I says, what's
happened? Is the union bothering you? And he said , no, not exactly, but
some of it is. And I told him that if the union gets in there the hours would
be cut down to forty hours, and there won't be no more overtime for you
like I did in the past." I do not believe that Hoefer's intuition was any more
operative in this instance than in the case of his alleged assumption that the
men in the parking lot were union men. In any event , even from Hoefer's
version it is clear that he threatened Rihn with loss of overtime if the Union
got in.
33 Wagoner so testified. Hart denied that this conversation occurred or
that he solicited anyone to sign a card . Hart did not impress me as candid in
describing his role in the early union activity. Wagoner on the other hand
appeared to be forthright in describing his limited contact with union
activity before his discharge . I have credited Wagoner.
34 Wagoner so testified . Hoefer gave a brief version of this conversation,
not contradicting Wagoner but adding that he told Wagoner he had been
warned.
35 The General Counsel in his brief asserts that one other employee had
signed a card at the outset of the campaign but that his card was not offered
in evidence because he was no longer on the payroll when the Union
requested recognition . The record does not show when he left.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, the limited evidence of Wagoner's contact with
the organizing campaign and the absence of evidence of
Respondent 's knowledge of that contact must raise a
question as to the likelihood that Hoefer made the
admissions attributed to him.
However, these considerations do not end the matter, for
Respondent 's version of Wagoner 's discharge is itself not
persuasive. Although Amato's decision to discharge Wag-
oner was allegedly triggered by Amato's observation of
Wagoner standing and talking to another employee on
Friday morning around 10 or 1 l a.m., for which Amato
testified he reprimanded Wagoner on the spot, Amato did
not discharge Wagoner at that time. Although Amato
testified that immediately thereafter he told Hoefer to
discharge Wagoner, Hoefer did not carry out Amato's
alleged instruction to discharge Wagoner before Wagoner
left for the day, and it was not until Sunday afternoon that
Hoefer called Wagoner to tell him of his discharge. Given
Amato's failure to discharge Wagoner at the time of his
alleged reprimand and Hoefer's failure to tell Wagoner of
his discharge until Sunday , there is substantial reason to
question this version of the cause of Wagoner's discharge,
particularly when one considers that, unlike most of
Respondent's sacker-stock boys, Wagoner had been
employed by Respondent for more than 3 years.
Moreover, despite Wagoner 's seeming awareness that
Amato was dissatisfied with him, it is clear that whatever
Hoefer said to Wagoner on Sunday, Wagoner harbored
suspicions on Monday morning that his discharge was
related to the union organizing campaign , for Mary Tucker
testified that Wagoner asked her if he had been fired
because of the Union when he came to the store that
morning. One cannot say, therefore, that Wagoner's
suspicions came only as an afterthought or that it is
unlikely that he questioned Hoefer about them. Indeed,
Hoefer's denial of Wagoner's version of their conversation
was accompanied by statements that he did not recall
Wagoner's question or the response Wagoner attributed to
him. In addition although Hoefer initially testified that he
never spoke to Wagoner about his discharge after
September 20, Hoefer conceded that they did a lot of
talking after bowling on September 23 and testified that he
could not recall if Wagoner asked if his union activities
played a role in the discharge or if he replied that they were
part of the reason for his discharge. Bearing in mind that
Hoefer insisted, with little credibility, that he did not
become aware of the union activity until the following
week, and that it is highly unlikely that he and Wagoner
talked a lot after bowling without mentioning Wagoner's
discharge , Hoefer's disclaimers of recollection were weak
refutations of Wagoner's testimony.
Furthermore, the affirmative testimony of Hoefer and
Amato as to Wagoner's work record does not inspire
confidence. According to Hoefer he had talked to
Wagoner four or five times about not doing his work right
and Amato had told him to fire Wagoner 3 or 4 months
earlier. Yet Hoefer offered no explanation for his failure to
discharge Wagoner at that time and when asked to specify
when he spoke to Wagoner about his work, he replied that
it was some time in June or July when he "reminded"
Wagoner about not doing his work nght. Although Amato
testified that he had talked to Wagoner many times about
talking on the job and not keeping his shelves stocked, he
did not testify that he had ever previously instructed
Hoefer to discharge Wagoner. Amato, Hoefer, and Tucker
also testified that they had spoken to Wagoner about
refusing to sack groceries for two specific cashiers.
However, it appears from their testimony that these
refusals occurred some 6 months before Wagoner's
discharge , and Amato testified that , after he spoke, to
Wagoner about it at that time, he had no further
complaints about Wagoner in this regard and did not
speak to him about it again . Thus, the testimony concern-
ing Wagoner's work record is largely lacking in specificity
as to the time of prior incidents and complaints, includes
reference to only one specific time by Hoefer when he
reprimanded Wagoner at least 2 months before the
discharge, includes one complaint that was both stale and
long since remedied, and leaves uncorroborated and
unexplained Hoefer's testimony that Amato had previously
told him to discharge Wagoner.
Consideration of all the testimony relating to Wagoner's
discharge persuades me that despite the questions that
apse as to Wagoner's version, he is to be credited rather
than Hoefer as to the critical testimony concerning
Hoefer's admissions. It is true that the burden rests with
the General Counsel to establish the alleged violation by a
preponderance of the credible evidence and that without
Wagoner's testimony as to Hoefer's admissions the burden
could not be sustained . It is theoretically possible to
discredit Hoefer and Amato and still conclude that
Wagoner should not be credited. However, the weak
testimony of Hoefer relating to his alleged admissions and
his patently incredible denial of knowledge of the union
activity until September 27 are substantial contributors to
the conclusion that he cannot be credited, and as a
practical matter it is impossible to conclude that Hoefer's
very denials of the alleged admissions were untruthful
without also reaching the conclusion that Wagoner's
testimony concerning them was truthful.
In sum , while I do not rely on Wagoner's testimony that
Hoefer stated that all the instigators were out of the store,
and find that Amato in the past had voiced some
dissatisfaction with Wagoner for not attending to and
completing his work, I credit his testimony that on
Monday morning Hoefer, in response to his direct
question, admitted that Amato's belief that he was heading
a union drive was "more or less" the reason for his
discharge and later on Thursday conceded that it was the
main reason for it.
I find further that these admissions are sufficient to
sustain the allegation of the complaint that Wagoner's
discharge violated Section 8(a)(3) and (1) of the Act. As I
have noted, although there is no direct evidence of
Respondent's knowledge of the union activity before
Wagoner came to the store on Monday morning, there is
evidence that there was union activity at the store. The
admissions of Hoefer provide ample basis to infer that
knowledge of the union activity came to Respondent's
attention before Wagoner was discharged. Although
Wagoner had done no more than indicate the possibility
that he might sign a card, it is sufficient to establish the
SMITTY 'S FOODS , INC. 293
violation if Amato acted in the belief that Wagoner had an
active role in the union activity. Although by all accounts
Amato rather than Hoefer decided to discharge Wagoner,
Hoefer clearly discussed the discharge with Amato before
telephoning Wagoner and again on Monday, Hoefer
occupied a responsible position in the store, and his
admissions cannot be written off as mere speculation or
insufficient as a basis to attribute to Amato the motive
Hoefer conceded. Finally, the evidence as to Wagoner's
work record and the hiatus between the alleged triggering
incident and the notification to Wagoner of his discharge
adds further support to the conclusion that the motivation
admitted by Hoefer was the cause of Wagoner's discharge.
F. The Discharge of Linda Gick
Linda Gick started to work for Respondent as a cashier
on April 5, 1971. She was discharged on September 28. At
the time of her hire she was paid $1.60 an hour. At the time
of her discharge she was paid $1.80 an hour.
Gick attended three union meetings prior to her
discharge including the September 23 meeting which
Amato happened to observe. She signed a union authoriza-
tion card on September 15, solicited cashiers Murphy and
Guard to sign cards in the store on September 16, and
obtained a signature from Michael McCue on September
24 while on her lunch hour in her car on the store parking
lot. She also spoke to a number of other employees about
signing cards. She was observed by Hoefer talking to union
representatives on the parking lot on the Friday night
before her discharge.
When Gick reported for work on September 28, Tucker
and Amato were in Tucker's office. Gick heard Amato ask
Tucker if she was going to tell her "now," and Tucker
called Gick to the office. Amato told her that her
appearance was sloppy and that she should comb her hair.
Gick did so and then went to her register and started
work.36
A short while later Tucker called Gick to her office.
Tucker questioned Gick about a shortage on her register
and money left in a register drawer on the previous
Sunday. Tucker told her that she was sloppy, that she was
rude to elderly people, and that Tucker was afraid that she
was going to have 'to fire Gick. Tucker said they would go
talk to Amato. Gick said little or nothing in response to
Tucker.37
Tucker and Gick then went to Amato's office. Tucker
mentioned the shortage, Gick's personal appearance, and
her rudeness. Amato asked Gick what she had to say for
herself. Gick offered no explanation and shrugged her
shoulders. Tucker told Amato that she had talked to him
several times about Gick and that it had come to the point
that either Gick or Tucker had to go because she had too
much on her hands to put up with Gick. Amato told
Tucker she had his permission to let her go.38
Tucker and Gick then returned to Tucker's office where
Tucker made out a slip required for unemployment
compensation purposes. At this time, Gick took issue with
the reasons advanced by Tucker for her discharge.39
The form prepared by Tucker stated the following as the
reasons for the discharge:
Would not stay on register warned 5 or 6 times. Left
large amounts of money in register over nite-Short-
ages that didn't show up. Rude to elderly people
especially-
There is some evidence to support the allegation that
Gick's union activities led to her discharge. Tucker had
threatened McNeely that the cashiers would be replaced,
and Hoefer on the previous Saturday had questioned Gick
about talking to union representatives on the store parking
lot. During the previous week Tucker had instructed Gick
not to work on register 5, which was adjacent to the
register at which McNeely worked, without stating any
reason 40
There is also cause to question some of the reasons relied
upon by Tucker in discharging Gick. Tucker charged Gick
with failing to remove money from register 5 on the
Sunday before her discharge and with the shortage on
register 2 which Gick operated that day. The facts relating
to that incident are basically undisputed. On Sunday, Gick
reported for work at 2 p.m. and worked half a day. When
she arrived she replaced Rat Guard who worked the first
half of the day. Although register 5 had been set up for
operation and was not in use when Gick arrived, Gick took
over register 2 which Guard had run in the morning. In
accord with usual practice when one cashier replaced
another on a register, the money in the register was not
counted at the time Gick took over. At the end of the day
Gick followed usual closing time procedures with respect
to register 2. She counted out $100 which was set aside in a
separate bag for use in setting up the register the next
morning. Without counting the remainder, she put it in a
separate envelope which she sealed and signed with her
name and register number. She gave both the bag and the
envelope to Hoefer to place in the office safe. However, she
did nothing with respect to the money in register 5 and, as
no one else removed it, it remained in the register
overnight. Gick explained that she did not use or close
down register 5 because of the instruction given her during
the previous week to stay away from that register.
On the following day Gick did not work. However, that
morning the money in register 5 was discovered, and when
Tucker checked the receipts for register 2 she found a
shortage of approximately $40. During that day Pat Guard
learned of the shortage and asked Tucker about it. Tucker
confirmed that there was a shortage. Guard said that she
36 Gick so testified, without contradiction.
37 Gick initially testified that she said nothing and "I just agreed with
her" explaining that she did not know how Tucker might react to anything
she said. She then testified that she told Tucker that it did not happen
before she signed a union card to which Tucker responded, "Oh now,
Linda."
38 These findings are based on the testimony of Tucker and Amato.
Gick's version of this conversation was brief, conclusionary, and not
contradictory in any essential.
39 Gick so testified. Tucker did not describe this conversation in any
detail.
40 Although Tucker testified that she instructed Gick not to work at
register 5 in July or August because Gick and McNeely laughed and talked
too much, the testimony of Mrs. Smith and Wanda Westfall that Gick had
left checks and coupons in the drawer of register 5 early in the week of
September 20 corroborates Gick that the instruction was given her during
that week . Tucker's testimony as to the timing of this instruction would
appear to be less an inadvertancy than an attempt to dissociate its cause
from the union activity of Gick and McNeely.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had operated the register before Gick, but Tucker said that
Gick had closed it down and that Gick was responsible for
the shortage. On the following morning when Tucker
checked register 2 receipts for Monday, she found an
overage of approximately $33. She assumed that the
overage was due to a miscount of the money placed by
Gick in the bag on Sunday night and accounted for that
much of the Sunday shortage.41 There remained approxi-
mately $8 of the shortage for which Tucker could not
account, and she called Gick to her office to see if she
could account for it. However, although Tucker testified
that it was not possible to determine whether Gick or
Guard was responsible for the remaining shortage, there is
no evidence that,she ever questioned Guard about it.
There are three elements of the Sunday incident for
which Gick was criticized: One of them, her apparent
miscount of the money placed in the bag for use in the
register the following day, was fairly attributed to her. As
for the second, the remaining $8 shortage, despite Tucker's
testimony at the hearing that she could not tell whether
Gick or Guard was responsible for it, Tucker charged Gick
with responsibility for it on the morning of her discharge,
and indeed her failure to question Guard about it on either
Monday or Tuesday indicates some predisposition to find
fault with Gick. The third element, the failure to remove
the money from register 5, does not appear to be fairly
chargeable to Gick at all. There is no evidence that cashiers
were held responsible for closing down registers other than
those they operated. Tucker had told Gick not to operate
register 5. This was the first Sunday that Gick worked after
the instruction was given, and there was no evidence
offered to show that Gick was not to have regarded the
instruction as applicable to that day. Indeed, it would
appear that Hoefer, who was in charge of the store at
closing time, rather than Gick, bore the responsibility for
seeing that register 5 was emptied that night.
One reason set forth by Tucker in the written notice
quoted above, Gick's alleged rudeness to elderly people, is
unsupported by any evidence. Although Tucker stated this
as a reason for Gick's discharge on Tuesday morning, Gick
denied that she had been rude, and no evidence was
offered as to any incidents or complaints on which this
charge might have been based. Furthermore, although not
mentioned in the written statement given Gick, Tucker
criticized Gick's personal appearance separately and
before Amato. Apart from the comment by Amato earlier
that morning, there is no evidence to controvert Gick's
testimony that her appearance had never previously been
criticized.
With respect to shortages attributed to Gick other than
on the Sunday before her discharge, Gick testified that she
never had been told she was short before the morning of
her discharge. Respondent's contrary evidence was general
in nature and lacking in specifics. Tucker testified that she
spoke to Gick once or twice a week about her duties.
According to Tucker, the most outstanding complaint
related to Gick's leaving her register, but she also spoke to
41 It was not uncommon for a shortage on a register on one day to be
followed by an overage the following day, counterbalancing the previous
day's shortage.
42 The evidence as to Respondent 's practice in closing down registers
her about carelessness, overages, and shortages. She
testified that Gick usually came to the office when she
came to work and asked how she did the previous day, and
that Tucker told her if she. was a dollar or two off and
questioned Gick if there was a variance she could not
account for to see if Gick could explain it. Wanda Westfall
testified that she had heard Tucker talk to Gick about
shortages, overages, and leaving the register. When asked
for specifics, Westfall described one incident about 2
months before Gick's discharge when she heard Tucker ask
Gick if she could explain a shortage and another shortly
before Gick left when Tucker spoke to Gick about leaving
her register. Ruth Leclitner, who was in charge of the
cashiers on Monday nights, testified that she spoke to
cashiers about their work and spoke to Gick more than
anyone else. She could not recall specific incidents, but
testified that she spoke to Gick many times about staying
on her register and not talking to the cashier next to her,
and remembered once "jokingly" scolding her about
leaving things under the tray in her drawer.
It was conceded that all cashiers occasionally made
mistakes and had shortages or overages, and indeed it is
likely that Gick, no less than other cashiers, on occasion
had them. To this extent I am inclined to doubt that Gick
was unaware that she had any shortages before the
morning of her discharge. However, the evidence offered
hardly shows that Gick was any different in this respect
from other cashiers. Tucker's own description of conversa-
tions with Gick about shortages indicates that these
conversations were usually started by Gick and the only
amounts she mentioned were $1 or $2 variances.42 Westfall
described only one conversation between Tucker and Gick
about a shortage, and Leclitner mentioned none.
The testimony summarized above indicates greater
support for the charge that Gick did not stay on her
register and was reprimanded for it even before the union
activity started. Gick testified that a few days before her
discharge Tucker had talked to her about this and she then
made no response. She conceded that Tucker spoke to her
about this once before that, but denied that Tucker spoke
to her about it five or six times. The testimony of Tucker,
Westfall, and Leclitner in this regard is more specific, and I
find that this deficiency in Gick's work existed and had
been noted before the union activity began.
With respect to the charge that Gick left large amounts
of money in the register overnight, apart from the Sunday
incident described above, there is evidence as to a second
incident early in the previous week when Gick left checks
and coupons under the metal tray in her drawer and failed
to put them in her sealed envelope when she closed the
register down. Although Gick denied that she ever heard of
this incident until the hearing, I do not credit her denial in
this regard.
The incident occurred during the week of September 20
at a time when Tucker was away from the store because of
illness . Mrs. Smith, who worked in Tucker's place on this
occasion, testified that she discovered a shortage of
each night shows that cashiers did not count change but estimated it,
making small daily variances likely without signifying either an actual
shortage or overage.
SMITTY'S FOODS, INC. 295
approximately $300 in Gick's envelope, and she and
Wanda Westfall testified that they located the missing
amount in the form of checks and coupons under the metal
tray in the drawer of Gick's register.
There is no testimony that anyone said anything to Gick
about this incident until Tucker returned to work on the
following day. However, Tucker testified that she did so
and according to Tucker when she asked Gick why she left
the money in the drawer, Gick replied that the Union had
her scared and worried to death, that she could not sleep
well, and could not do her work. Gick in her rebuttal
testimony testified that she did tell Tucker during the week
before her discharge that the Union upset her, although she
denied saying that it had her scared or worried to death.
According to Gick, they had been talking imthe,office "I
don't know what about" when the Union came up, and
Tucker told her she was hurting the children of the store
owner by signing a union card. She testified that Tucker
then asked her what she thought of the Union and she then
said the union representatives upset her when she came in
the store. In her initial testimony relating to this conversa-
tion, she stated that Tucker first talked to her about her
work, then asked if she had gone to any union meetings,
and then made the remark about hurting the Smith
children. She said nothing at that time about her remark to
Tucker that the Union upset her. There can be little doubt
that Tucker and Gick were both referring to the same
conversation. In Gick's initial version she indicated that
she and Tucker had been talking about her work when the
Union came up. In her second version she said she did not
know what they had been talking about. In her initial
version she portrayed her responses to Tucker's questions
and statements in aggressive terms and hardly indicative of
upset. In her second version her reply to Tucker's final
question appears defensive. While it is possible that neither
Tucker nor Gick described the full conversation between
them at this time, with each selecting out the elements most
favorable to her position, I do not credit Gick that Tucker
never mentioned to her the checks and coupons that were
found in her drawer and find that this was the aspect of
their work that prefaced the conversation. I also find it
more plausible that Gick's remarks about being upset by
the Union were offered by way of apology for the incident
than in response to Tucker's question about what she
thought of the Union. While there is cause to suspect that
Tucker may well have continued in this conversation along
the lines indicated by Gick, I do not have sufficient
confidence in Gick's version of this conversation to rely on
it. However, with respect to the incident which gave rise to
the conversation, there is evidence that other cashiers on
occasions forgot to remove checks and coupons from their
drawers, and there is no evidence that Gick's oversights in
this regard were more egregious than those of other
employees.
In sum, the evidence relating to the reasons advanced for
Gick's discharge is mixed.
On the one hand, while I have not found Tucker or
Amato entirely credible, I have also discredited Gick as to
some critical aspects of her -testimony. There is cause to
conclude that Gick in the past had been criticized for her
absences from her register, she had left checks and
coupons in her register the previous week, she had
miscounted her money on Sunday night, and there was a
shortage for which she bore possible responsibility.
On the other hand, there is substantial cause to conclude
that Tucker overreached in the accumulation of complaints
she leveled at Gick. The charges of rudeness and sloppiness
were unsupported. Despite Tucker's earlier instruction that
Gick was not to operate register 5, Tucker held her
responsible for leaving money in it overnight, and Tucker
also held Gick responsible for the shortage for which she
could not account, while failing even to question Guard
about it. It does not appear that Gick's record as to
shortages or leaving items in her register otherwise was
unusual among the cashiers, all of whom had shortages or
left items in registers on occasion.
In the light of the threat to McNeely, Hoefer's interroga-
tion of Gick, and the evidence of Respondent's animus
otherwise, I conclude that whatever cause for dissatisfac-
tion Gick had furnished Respondent expanded that cause
with pretextual reasons in order to justify her discharge
based on her union activities, in violation of Section 8(a)(3)
of the Act.
G. The Termination of Edwin Rihn
Edwin Rihn started to work for Respondent on October
8, 1968, as a stock and sack boy. He worked until October
11, 1971, with one hiatus during the summer of 1970 when
he left for about a month to take a construction job.
Rihn signed an union authorization card on September
23 and obtained a signature from Durajczyk in the front of
the store on September 25. He attended the September 23
restaurant meeting.
On October 11, Rihn mismarked some stale bread,
putting the price for fresh bread on it. This came to
Amato's attention, and Amato spoke to him about it. As a
consequence of that conversation Rihn left the store at 11
a.m., well before his normal quitting time.
Rihn, Amato, and Davis all testified concerning this
conversation. Although there are some conflicts between
their versions, Rihn's ultimate testimony did not contradict
that of Amato as to the critical portion of the conversation
at the point when Rihn left the store. It is clear that Amato
approached Rihn near the bread, reprimanded Rihn for
mismarking the bread, and voiced general criticism of
Rihn's work. Rihn told Amato that if he did not like the
way Rihn was doing his job, Amato could get someone
else.43 Amato then asked Rihn to accompany him to the
produce department where Davis was, and the conversa-
tion continued. According to Rihn, he told Davis that he
was getting fed up with Amato "always yelling at me" and
that he wanted him to get someone else to perform his
duties. According to Rihn, Amato started to discuss the
matter with Davis, and he testified initially that he got the
impression that Amato wanted him to leave and return the
next day so he just went out the door. However, when
asked what Amato said to give him this impression, Rihn
43 According to Rihn, he meant that Amato should get someone else to
do the specific duties to which he was assigned and assign him to other
duties.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that he did not remember clearly what Amato said
while he was in the produce department. Then when asked
if Amato said anything directly to him, Rihn replied "he
wanted me to stay there and he was yelling; not yelling,
really, but he was raising his voice, and I just took it that he
was angry at me." Rihn testified that he left because he
could only take so much and "I was fed up with him,
yelling at me constantly." He testified further "if I had
stayed around much longer I would have gotten real angry
and I might have said something that I would have
regretted later." Although he testified initially that when he
walked out of the store no one asked him to come back, on
cross-examination he conceded that Amato said something
further, that Amato might have said "come back," and
could very well have said that he was not through talking
to Rihn. He testified further that he thought Amato also
said that he was not firing him.
In these circumstances , whatever else preceded Rihn's
departure, it is clear , as Amato and Davis testified, that as
Rihn left Amato told Rihn that he was not firing him and
was not through talking to him. Despite Rihn' s initial
testimony that he had the impression that Amato wanted
him to leave and return the next day, his own further
testimony indicates the contrary.
Rihn reported for work the next morning and found that
his timecard was missing from the rack. Later he saw
Amato in the parking lot and asked why. Amato said that
Rihn had quit. Rihn said that he did not quit and that if he
had, he would have said so. According to Rihn, Amato
said he had walked out and he did not ever want to see him
in the store again . Amato denied the latter statement.
The General Counsel contends that Rihn was dis-
charged. Respondent contends that he quit, and there is
testimony by Amato and Davis that when Rihn walked out
of the store he said something which indicated that he was
quitting. But even assuming that Respondent discharged
Rihn because he walked out in midday, I find little
evidence to support the allegation of the complaint that he
was discriminatorily discharged.
It is true that in Rihn's version of the October II
conversation there are indications that Amato' s anger was
excessive for the provocation, and there is a suggestion in
Rihn's testimony that Amato's attitude toward Rihn had
undergone a recent change.44 Yet Rihn also testified that in
the past Amato had criticized his work on a couple of
occasions before "this all started happening." There is no
indication that prior to October 11 and after the organizing
campaign started Amato harassed or abused Rihn on any
other occasion in conjunction with his work. It is difficult
to read into the total circumstances any pattern of conduct
designed to provoke Rihn to walk off the job or to make
his working conditions so intolerable that he would quit.
Assuming that Amato was unreasonably angry and harsh
44 According to Rihn 2 weeks before his discharge Amato indicated that
he was pleased with his work and would have given him a raise but for the
wage freeze then in effect . If Rihn's estimate of the time of this remark was
correct, this would have been after the union activity started and after the
union meeting Amato allegedly observed.
45 According to Matusz, in their separate conversation, Amato told him
he believed Matusz was the one person in the store who could really hurt
Amato by his support for the Union. Amato denied making this statement,
and I credit his denial.
in his reprimand of Rihn, the facts do not permit the
conclusion that Amato sought to cause Rihn to leave or
that Amato's treatment of Rihn on this occasion was
discriminatorily motivated and justified Rihn's departure
from the store. Even if Respondent discharged Rihn by
insisting that he had quit when he sought to return to work,
I cannot conclude that it did so for discriminatory reasons
rather than simply because he walked out on the previous
day. In these circumstances I shall recommend dismissal of
the allegation of the complaint as to Rihn's discharge.
H. The Discharge of Eugene Matusz
Eugene Matusz started to work for Respondent on
September 15, 1971, as dairy manager. He was paid a $1.80
an hour. He worked through November 6, 1971, and left
under circumstances described below.
Matusz signed an authorization card for the Union on
September 22, he obtained signatures of two other
employees on September 24 and 28. Matusz attended all
union meetings. It will be recalled that, at the employee
meeting held on September 28 and immediately thereafter
in separate conversation with Amato, Matusz made it clear
that he strongly supported the Union.45
On Saturday, November 6, Matusz reported for work.
However, early that morning he told Hoefer that he had a
personal problem and wanted to leave. Hoefer asked why
and pointed out that it was going to be a busy day and that
he needed Matusz. Matusz told Hoefer that he and his
fiancee had broken their engagement the previous night
and that he did not feel that he could work. Hoefer said
that should not bother his work. Matusz said he was not in
the right frame of mind to work because someone might
say the wrong thing and he was afraid of what he might say
or do in response.46 According to Matusz when he
repeated that he could not work, Hoefer told him, "if that's
the way you feel about it, you had better go home."
According to Hoefer, when Matusz said he could not stay
because he was terribly upset and might do something
nasty, Hoefer said nothing more, and Matusz just took off.
Matusz then left the store.47
On the following Monday morning Matusz reported for
work as usual and started to work. Amato arrived
somewhat later, and Tucker told him that Matusz had
walked out of the store the previous Saturday.48 Thereafter
Amato spoke with Hoefer and then told Matusz he was
through and that Amato could no longer use him at the
store.49
According to Matusz after Amato told him he was
through, he told Amato that Hoefer had given him
permission to leave, and he and Amato went to Hoefer
who confirmed that he had given Matusz permission to
leave. However, Matusz testified that Amato then asked
Hoefer if he would have allowed Matusz to leave if he
46 The testimony of Matusz and Hoefer up to this point is not in essential
conflict.
47 As Matusz left, Tucker spoke to him about his leaving. Although there
is conflict in their testimony as to what was said , it is clear that Tucker did
not give him permission to leave.
48 Amato was not at the store on Saturday.
49 According to Matusz earlier that morning, Amato had told him he was
half an hour late for work, Matusz had told him his hours were changed,
and Amato had said he would check with Hoefer.
SMITTY'S FOODS, INC.
didn't have his problem, that Hoefer said no, and that
Amato then reaffirmed that Matusz was through. Amato
and Hoefer testified that Hoefer did not tell Amato that he
had given Matusz permission to leave 50
Although there are some reasons to doubt the accuracy
of aspects of the testimony of Amato and Hoefer as to this
incident,51 I am nonetheless persuaded that Amato and
Hoefer, rather than Matusz, are to be credited as to the
critical conflicts relating to the alleged permission given
Matusz to leave on the previous Saturday and Hoefer's
alleged confirmation of it on Monday. In any event I am
persuaded that this incident was not seized upon by
Respondent as a pretext to rid itself of Matusz because of
his union activity.
In Matusz' initial testimony he described two incidents
after Matusz' union activities were known when Amato
reprimanded him, once for the condition of the dairy case
and once for not getting to work on time. According to
Matusz in connection with the first incident, Amato gave
him 3 days within which to straighten up the case or be
fired. According to Matusz, in connection with the second
reprimand after Matusz explained that he had never been
given a fixed starting time, Amato gave him a definite
starting time and told him that the next time he was I
minute late he would be fired. Matusz testified that Amato
also reprimanded him on other occasions as well. While
this testimony might suggest that Amato was seeking cause
to discharge Matusz, the testimony of Matusz on rebuttal
shows the opposite to be the case.
Thus, Matusz conceded after he started work as dairy
manager, Amato told him on several occasions that he was
not doing a good job, and finally in mid-October, Matusz
asked if he could move to the frozen food department
where he thought he might do better. Amato agreed, and
Matusz changed jobs with Kevin Hart, becoming frozen
food manager. Amato's dissatisfaction with Matusz contin-
ued. Finally, Matusz missed 2 days of work, and Amato
told him he could not return without a doctor's excuse.
Matusz told Amato he had a sinus problem and did not go
to a doctor because there was nothing a doctor could do to
help. Amato then told him he would relieve him as frozen
foods manager and assign him to a janitor's job, apparent-
ly, with no change in pay. Matusz worked I day as janitor
before he walked out on November 6.
It is apparent from this history that if Amato was seeking
a pretext to discharge Matusz because of union activity, he
had ample opportunity throughout his employment to find
one. If anything, Amato's willingness to allow Matusz to
change work assignments indicates restraint and a desire to
avoid his discharge. In these circumstances, I am inclined
not to credit Matusz' version that he was given permission
to leave work on November 6 and that Amato persisted in
terminating him even after Hoefer confirmed that he had
50 Hoefer testified that Matusz was not present when Amato spoke to
him Amato testified that he could not remember
51 Amato displayed an uncertain recollection as to aspects of it,
particularly when called initially as an adverse witness by the General
Counsel , and there are some discrepancies between the versions of Hoefer
and Amato
52 Although Teeters testified that they spoke to Amato on September 29,
Duckett placed the conversation about September 28, and Amato testified
that the conversation occurred on the same day as the employee meeting at
297
told Matusz he could leave . Rather I find it more plausible
that , as Hoefer testified , Matusz was persistent in stating
that he could not work and simply turned and left when
Hoefer told him that he was needed. In any event , even if
Hoefer had indicated acquiescence , I would not conclude
that his discharge was discriminatory, for the implied
threat by Matusz that he would say or do something
harmful if he stayed at work on November 6 in the light of
Matusz' work history furnished more than arguable cause
to regard Matusz as no longer of use to Respondent as an
employee. Accordingly, I shall recommend dismissal of
this allegation of the complaint.
I. The Alleged Refusal To Bargain
1. The Union's requests for recognition and
Respondent 's response
On September 28, Duckett and Teeters, representatives
of the Union, visited the store, and spoke to Amato.52
Duckett started out by saying, "Say, Gil, such a deal I have
for you." Then he told Amato he represented the Union,
that the Union represented the majority of Amato's
employees, and that they wanted to be recognized and to
bargain for a contract. Amato said that if they had
anything to say about the organizing drive, they should
talk to his attorney, whose name he had previously given to
them, and that as far as he was concerned they should go
to an election. Duckett tried to persuade Amato to agree to
a card check and told Amato that, if they could sit down
and bargain, he would be in a much better position to
negotiate a contract which would be fair to Amato and the
employees, because if they had to gain recognition the hard
way, in preparing the people for an election, they would
have to make commitments to the employees that they
would have to keep. Duckett did not state to Amato what
he considered to be an appropriate unit, and the compos-
ition of the unit was not discussed.53
On September 29 at 6 p.m. Duckett telephoned Respon-
dent's attorney , Peterson, at his home. He told Peterson he
called because he was trying to find out if they could work
out a card check for Respondent and gave his reasons for
wanting a card check rather than election. Peterson stated
that he had a good-faith doubt that they had a majority
and questioned whether they could reach an agreement on
an appropriate unit . Peterson raised questions as to the
inclusion of part -time employees and meat department
employees in the unit, and those issues were discussed.
Peterson said he would do his best to expedite an election
contingent on what unit was sought . Although it is clear
that the appropriate unit was discussed , there is no
evidence that Duckett took a position as to the unit the
Union sought.54
On either September 28 or 29, Teeters had a short
the store.
5' Duckett . Teeters, and Amato testified concerning this conversation
According to Amato, Duckett and Teeters did not claim majority
representation , but simply asked him to sign a contract, explaining that they
could give him a better contract if he would sign a contract without an
election. I credit Duckett and Teeters , who were experienced union
representatives , that they claimed to represent a majority at this time
51 Only Duckett testified as to this conversation
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telephone conversation with Mrs. Smith , owner of Respon-
dent , in which he claimed to represent a majority in the
store and asked if they could get together to discuss the
situation in the store . She indicated that she would meet
with him a day or two later , but later called back and said
she could not meet them.55
On the evening of September 29 Teeters sent telegrams
with substantially identical contents to Amato at the store
and to Mrs. Smith at her home . The telegrams were
delivered early in the morning on September 30. The
telegram to Amato read:
LOCAL 25 RETAIL CLERKS INTERNATIONAL
ASSOCIATION DEMANDS RECOGNITION =BY
CARD CHECK FOR YOUR STORE LOCATED
1812 NORTHWASTERN AVE =WEST LAFAY-
ETTE AS THE BARGAINING REPRESENTATIVE
FOR ALL FULL TIME =AND PART TIME
EMPLOYEES EXCLUDING THE MEAT DEPT
EMPLOYEES =
On October 4, Respondent 's attorney by letter stated
that Respondent did not believe that the Union represent-
ed an uncoerced majority of the employees in the unit set
forth in the telegram , that Respondent did not believe the
unit was appropriate , and that the appropriate method to
determine the unit and the desires of the employees was
through a Board proceeding in which Respondent would
cooperate.
2. The appropriate unit
The complaint alleges that all full-time and part-time
employees of Respondent employed at its facility , exclusive
of meat department employees , guards, and all supervisors
as defined in the Act, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
Respondent agrees to the exclusion of the meat depart-
ment employees , but contends that only those sacker-stock
boys who had been on Respondent's payroll for more than
18 consecutive weeks should be included , citing Albers
Super Markets, Inc., 110 NLRB 474, The Liberal Market,
Inc., 110 NLRB 66, and The Eavey Company, 115 NLRB
1779.
The evidence shows that at any one time Respondent
employs from 20 to 30 sacker -stock boys . While most
appear to be regular part-time employees, some in this
category work full time. Most of them are high school
students and some are college students. Each has a regular
weekly work schedule tailored to his school schedule and
availability for work . During 1971, a total of 86 names
appeared on Respondent 's payroll in this category. The
record does not show the average length of employment for
those who left Respondent prior to the dates of the Union's
requests for recognition . While a number of those then
employed were hired only a short time before , the record
shows that of 27 in this category on October 1, 1971, 16
55 Only Teeters testified as to these conversations.
Se Lewis & Coker Super Markets, Inc, 145 NLRB 970, Winn-Dixie
Stores, Inc, 124 NLRB 908. 1 note further that in the cases relied on by
Respondent there is indication that in addition to high turnover among the
were still employed at the time of the hearing, and another
was on sick leave.
The record also shows substantial turnover in two other
categories of employees . During the week ending October
2, 1971, Respondent employed 12 cashiers , 6 full time and
6 part time . Five of the cashiers were hired in September
1971, and one in August . During 1971 a total of 20 cashiers
appeared on Respondent's payroll. Of those on the
October 2 payroll, seven were still employed at the time of
the hearing . During the week ending October 2, 1971,
Respondent had five delicatessen employees on its payroll,
one of whom worked only 1 day. Three were long-time
employees and were still employed at the time of the
hearing, but during the year 1971 a total of 17 delicatessen
employees appeared on Respondent's payroll.
As the record does not show the average length of
employment of the sacker-stock boys, except for those
employed at the time of the Union's requests for recogni-
tion , and as it appears that the rate of turnover among the
employees in this classification is not substantially greater
than among the cashiers and delicatessen employees, I
conclude that the rule of exclusion urged by Respondent
should not be applied 56
3. The Union's majority
The General Counsel contends that the Union made
effective requests for recognition on September 28, 29, and
30, and that it is sufficient to establish the Union's majority
on any of these dates or October 4 when Respondent's
letter denying recognition was sent. Respondent contends
that none of the Union's demands constituted an adequate
demand for recognition.
I have found that Duckett and Teeters spoke with Amato
on September 28, claimed to represent a majority of his
employees, and asked for recognition and bargaining.
However, in that conversation Duckett and Teeters did not
mention the unit in which they sought bargaining.
Although on the next afternoon they discussed unit issues
with Respondent's attorney, there is no evidence that they
told him whether or not they sought inclusion of all the
sacker-stock boys or the meat department employees in the
unit. Insofar as the record shows, it was in the telegrams
received by Respondent on September 30 that the Union
for the first time spelled out its position with respect to
these categories and the unit in which it sought recognition.
I find that the initial conversations of Duckett and
Teeters with Amato and Respondent's attorney did not
constitute adequate demands for recognition because of
the lack of evidence that in either conversation the union
representatives stated the unit in which recognition was
sought S7 As the meat department employees were no
longer separately represented and as the Union did not
seek to represent them, there was in fact a real need for
more than the broad request made by Teeters to Amato.
However, I find that the telegrams received by Respondent
on September 30 remedied that defect and perfected the
Union's demand. Although the telegrams did not repeat
employees in question their employment was intermittent , unlike that of the
sacker-stock boys in this case . See Swift & Company, I I I NLRB 545
57 Wolf Lake Food Center, Inc, 172 NLRB No 75
SMITTY'S
the claim of majority representation, that claim was orally
made to Amato on September 28, and Duckett asked
Respondent's attorney for a card check on September 29.
It is immaterial that the telegram did not modify the term
"part-time employees" by the adjective "regular" or state a
position with respect to the sacker-stock boys who had
worked less than 18 weeks , as the evidence shows that all
part-time employees were "regular" and the Union sought
all part-time employees, including those who had worked
18 weeks or less. The failure of the Union to include its
return address on the telegrams does not indicate that its
demand for recognition was not genuine , for the conduct
of Duckett and Teeters indicates otherwise, the Union had
a regular office and telephone in Lafayette, and there is no
indication that Respondent's attorney had any difficulty in
replying to the Union's demand on October 4. 1 conclude
that September 30 is the date on which the Union
completed an adequate demand for recognition and is the
date on which its majority is to be measured.58
The following is a list of the names of employees on
Respondent's payroll on September 30.59 The column at
the right shows those who had signed authorization cards
as of the date. There is no contention that any of the
authorization cards was obtained under circumstances
which would render it invalid for purposes of determining
the Union's majority 60
CARD
NAME SIGNED
1. Sharon Bergstrom X
2. Merrilee Dye
3. Sandra Gouchenour
4. Pat Guard X
5. Josephine Justice
6. Ruth Leclitner
7. Mary McNeely X
8. Patrice Murphy X
9. Sandra Odorozynsky
10. Cassie Pelfry
11. Vonna Shumate
12. Wanda Westfall
13. Denzil McKenzie X
14. Gil Amato, Jr.
15. James Bartlett X
16. Warts Cowlas X
17. William Creamer X
18. Gary Davis
19. Pat Doyle X
20. John Durajczyk X
58 Federal Stainless Sink Div of Unarco Industries , Inc, 197 NLRB No.
76.
59 The names of Linda Gick and John D . Wagoner have been included
as I have found that their discharges before September 30 violated Sec
8(a)(3) of the Act
60 The card of Kevin Hart has been counted as I have found his
withdrawal invalid and his letter of withdrawal in any event was not
received by the Union until October 4.
61 The above list of names is taken from an exhibit prepared by the
General Counsel from Respondent 's records , which was received on the
next to last day of the hearing , subject to Respondent's opportunity to
check it for accuracy . At the hearing Respondent raised no question as
to the accuracy of the exhibit, but in its brief it points to testimony of
FOODS, INC. 299
21. John Eberlee
22. Dennis Harris
23. Kevin Hart
24. H. Haug
25. Thomas Higbee X
26. H. Kline X
27. H. Lawson
28. M. McCue X
29. D. McGuire X
30. J. Miller
31. Mickey Newton X
32. Robert Page X
33. Mike Renaldi X
34. Ed Rihn X
35. J. Roberts
36. D. Sanders
37. Kirk Stewart
38. J. Thompson
39. W. Zopp
40. Marvin Davis
41. R. Pierce
42. Eugene Matusz
43. D. Gath
44. V. Mooney
45. D. Owens
46. J. White
X
X
X
47. Linda Gick X
48. John D . Wagoner X
Total employees - 48 61/ Total
Cards - 24
I find accordingly that the Union lacked a majority on
September 30. During the next several days the Union
obtained no additional cards. However, D. Wright and G.
Dela were employed on October 1 and John Durajczyk
and Dennis Harris left their jobs on September 30. Thus,
the total number of employees on October 1 remained 48
and the number of cards declined to 23 . There were no new
hires on October 2, 3, or 4 but V. Mooney last worked on
October 1, and Robert Page , G. Dela, and Merrilee Dye
last worked on October 2. Thus, on October 2 there were
47 employees and 23 cards ,82 and on October 3 and 4 there
were 44 employees and 22 cards . There is no evidence to
show that the Union thereafter achieved a majority among
the employees in the unit . Accordingly , I conclude that the
Union on and after September 30, 1971, did not represent a
majority of the employees in the appropriate unit and will
recommend dismissal of the allegation that Respondent
refused to bargain in violation of Section 8(a)(1) and (5) of
the Act.
Mary Tucker in connection with the issue of the supervisory status of
Marvin Davis that another employee, Arthur Davis , was employed during
the payroll period ending October 2. Tucker testified that Arthur Davis
received shipments of merchandise , assisted Grocery Manager Hoefer, and
was paid at the rate of $2.75 an hour. There is no other mention of
Arthur Davis in the record. As the Union lacked a majority even if
Davis is excluded, I find it unnecessary to decide whether Arthur Davis
should be added to the list of names of those in the appropriate unit
on September 30.
62 1 have considered G. Dela as an employee on October I and 2, as
there is no evidence that Dela was hired other than as a regular employee
However , the exclusion of Dela would not result in a union majority on
either of these dates.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
6. By discharging John D. Wagoner on September 19,
1971, and Linda Gick on September 28, 1971, because of
their union activities , Respondent has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(3) and (1) of the Act.
7. Respondent has not otherwise violated the Act as
alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:63
V. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent discriminatorily
discharged John D. Wagoner on September 19, 1971, and
Lihda Gick on September 28, 1971, 1 shall recommend that
Respondent be ordered to offer them immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges, and
to make them whole for any loss of earnings they may have
suffered by payment to them of the amounts they normally
would have earned as wages from the dates of their
discharges to the dates of offers of reinstatement, less net
earnings, to which shall be added interest at the rate of 6
percent per annum, in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Smitty's Foods, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Retail Clerks Union #25, Retail Clerks Internation-
al Association, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time and part-time employees of Respondent
at its West Lafayette, Indiana, store, excluding meat
department employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. On and after September 30, 1971, the Union was not
the exclusive representative of the employees in said unit
for the purpose of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By threatening employees with reprisals if they
engaged in union activities, and by interrogating employ-
ees concerning their union activities and those of other
employees, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sections
8(a)(1) and 2(6) and (7) of the Act.
ORDER
Respondent, Smitty's Foods, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with layoff, discharge, loss of
overtime, or any other reprisals if they engage in union
activity or choose to be represented by a union.
(b) Interrogating its employees as to their union activities
or those of other employees.
(c) Discouraging membership in Retail Clerks Union
#25, Retail Clerks International Association, AFL-CIO,
or any other labor organization, by discriminating against
its employees in regard to their hire or tenure of
employment or any term or condition of their employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to engage
in, or to refrain from engaging in, any or all of the activities
specified in Section 7 of the Act, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer John D. Wagoner and Linda Gick immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges, and make them whole for any loss of pay that
they may have suffered by reason of the discrimination
against them in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
63 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board , the findings.
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations . be adopted by the Board and b come
its findings, conclusions , and Order, and all objections thereto shall
deemed waived for all purposes
SMITTY'S FOODS, INC.
Selective Service Act and the Universal Military Training
and Service Act.
(d) Post at its West Lafayette, Indiana, place of business
copies of the attached notice marked "Appendix."64
Copies of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by
Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt thereof, and be
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.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith 85
The complaint will be dismissed insofar as it alleges that
Respondent violated Section 8(a)(5) of the Act or other
unfair labor practices not found herein.
64 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
65 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 25. in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with layoff,
discharge, loss of overtime, or any other reprisals if
they engage in union activity or choose to be
represented by a union.
WE WILL NOT question our employees about their
union activities or those of other employees.
WE WILL NOT discharge or otherwise discriminate
against employees in order to discourage membership
301
in Retail Clerks Union #25 , Retail Clerks Internation-
al Association , AFL-CIO, or any other labor organiza-
tion.
WE WILL offer John D . Wagoner and Linda Gick,
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist , to substantially
equivalent positions , without loss of seniority or other
rights or privileges , and we will make them whole for
any pay they lost, with interest , because of the
discrimination against them.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to engage in, or to refrain from engaging in, any
or all the activities specified in Section 7 of the Act,
except to the extent that such rights may be affected by
an agreement requiring membership in a labor organi-
zation as a condition of employment , as authorized in
Section 8(a)(3) of the Act , as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
Dated By
SMITTY'S FOODS, INC.
(Employer)
(Representative) (Title)
Note : We will notify immediately the above-named
individuals , if presently serving in the Armed Forces of the
United States , of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office , 614 ISTA Center, 150 West
Market Street , Indianapolis , Indiana 46204 , Telephone
317-633-8921.