Verscharen's Food Centers

National Labor Relations Board - Board Decisions

Dec 14, 1954

110 N.L.R.B. 1475 (N.L.R.B. 1954)

VERSCHAREN'S FOOD CENTERS 1475
respect to wages, rates of pay, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody such understanding
in a signed agreement. The appropriate bargaining unit is:
All production and maintenance employees at our plant in Picayune, Mis-
sissippi, excluding office clericals, professional employees, guards, and
supervisors as defined in the Act.
WE WILL offer to Percy McCraney, Alphonse Lossett, Jr., Leamon Pullens,
James A. Martin, Jeverley E. Saucier, James E. Saucier, Lonnie Pullens, and
B. J. Skipper, immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other rights and
privileges previously enjoyed by them and make them whole for any loss of
pay suffered as a result of the discrimination against them.
WE WILL make whole Warren Perette, Clarence Lizana, Harold C. Builteman,
Herman Bennett, Toxie Mitchell, and William J. Davis, for any loss of pay
suffered as a result of the discrimination against them from their layoff on June
17, 1952, to the respective dates on which they were reinstated or declined to
accept reinstatement.
All our employees are free to become, remain, or refrain from becoming mem-
bers of the above-named Union or any other labor organization except to the ex-
tent that this right may be affected by an agreement in conformity with Section 8
,(a) (3) of the Act. We will not discriminate against any employee because of
membership in or activity on behalf of any labor organization.
ALEXANDER MANUFACTURING COMPANY,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
HENRY VERSCHAREN , D/B/A VERSCHAREN'S FOOD CENTERS and AMAL-
GAMATED FOOD EMPLOYEES UNION, LOCAL 590, AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA , AFL. Case
No. 6-CA-727. December 14, 1954
Decision and Order
On December 2, 1953, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and the Respondent filed a
supporting brief.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
1 The General Counsel excepts only to the failure of the Trial Examiner formally to rec-
omnmend that Remo Iannacchione be offered immediate and full reinstatement, although he
finds that Iannacchione was discriminatorily discharged and recommends that he be
awarded back pay. It is obvious that the Trial Examiner omitted such recommendation
inadvertently because in that section of his Intermediate Report entitled "The Remedy"
he states his intention of making such a recommendation and in his recommended posting
order provides for Iannacchione's reinstatement.
110 NLRB No. 219.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed.' The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations with the modifications set forth below.
The Trial Examiner found, and we agree, that the Respondent vio-
lated Section 8 (a) (1) of the Act by : (1) Meat Department Mana-
ger Karkalla's remarks to Iannacchione at the time of his initial hir-
ing interview that he would have to drop his union card, and that the
Respondent could not afford to hire anybody that might bring a union
in; (2) the statement of Pat Verscharen, a management representa-
tive, to employee Hazel Barbour that "they would fix that" if the
Union came in-she would employ only part-time help ; (3) the state-
ment of June Verscharen, wife of the proprietor, Henry Verscharen,
to employee Kenneth Fritsch that she was transferring him to an-
other job not only because he was slack and making mistakes but also
because he was soliciting for the Union; (4) the action of Fritz Ver-
scharen and Pat Verscharen in going to the home of striking employee
Bertha Aiman and seeking to get her to reveal who the "ring leader"
was; (5) Fritz Verscharen's offer to employee Hazel Barbour, after
she and other girls had joined the strike, of additional pay if she
would get other girls to join her in coming back to work; and (6)
Fritz Verscharen's comment to striking employee Jean Aiman on the
picket line that the picket signs reading "I am a Verscharen employee
on strike" were wrong, and that "they don't work for us any more,
those signs should be reworded."
We also agree with the Trial Examiner that the Respondent dis-
criminatorily discharged Remo Iannacchione contrary to Section 8
(a) (3) of the Act. As found by the Trial Examiner and more fully
set forth in the Intermediate Report, the Respondent, from the time
of Iannacchione's first employment interview, was concerned with
the fact that he was a union adherent, as shown by Karkalla's remark
that he would have to drop his union card. Later, at the time of his
entry upon employment, Karkalla told him that although he was
hired on a trial basis, he need not worry, that he would have a job as
long as he kept his nose clean and did not mention a union around
the store. Then, after he had been working for the Respondent for
2 or 3 weeks, Karkalla called him to the office and upbraided him be-
cause of rumors that he was starting a union. As Iannacchione had
not as of that time engaged in organizing activities in the Respond-
ent's store, he denied Karkalla's accusation and explained that all
that had occurred was merely that one of the stock boys had asked
him about the Union. Although this explanation was accepted, the
2 The Respondent 's request for oral argument is hereby denied because the record, ex-
ceptions , and brief , in our opinion , adequately present the issues and positions of the
parties.
VERSCHAREN'S FOOD CENTERS 1477
Respondent nevertheless regarded the incident as of sufficient im-
portance to be the subject of discussion at a regularly scheduled
meeting of meat department employees that day. There Karkalla
mentioned the rumors that Iannacchione had been organizing a union,
but announced that he had investigated and found them groundless.
He said that Iannacchione had "promised not to do what he had been
doing and that he is going to work along with us." He asked Ian-
nacchione in the presence of the other employees if he was satisfied
at Verscharen's, and Iannacchione replied that he was.
However, Iannacchione at about that time did begin to attempt to
organize the Respondent's store, and secured the Union's agreement
to pay him for these services. The Respondent evidently soon be-
came aware of this activity, because on the evening of June 12, 1953,
after Iannacchione had been employed about 6 weeks, Karkalla an-
nounced to the employees present at a meeting of cashiers that there
was a "Judas" among the Respondent's employees selling out the
Respondent for 30 pieces of silver. In conversation after the meeting
he identified the "Judas" as Iannacchione. Shortly thereafter, the
Respondent summoned Iannacchione from the restaurant, where he
was eating dinner, to the Respondent's office for the interview that
terminated in his discharge.
We agree with the Trial Examiner's finding, based upon a resolu-
tion of conflicting testimony, that the principal subject of discussion
at this final interview was Iannacchione's activities on behalf of the
Union, and not the creation by Iannacchione of a "commotion" or
"disturbance" in the store as the Respondent contends.' Moreover,
it is clear from the testimony of the Respondent's own witnesses, that
during this interview the Respondent expressed its antipathy towards
Iannacchione because of his union activities in the store. Thus Henry
Verscharen, the proprietor, declared in excitement that Iannacchione
was a union "plant," that he was "up to trouble," and hence should
not be discharged. The record discloses that thereafter Verscharen
left the meeting and his wife, June Verscharen, and Karkalla sought
to get Iannacchione to resign. When it became apparent that their
efforts would not be successful, Fiedler, one of Respondent's man-
agers, said to Karkalla that he should fire Iannacchione for insub-
ordination, and left to get Iannacchione's timecard and pay. But
when offered his pay, Iannacchione refused to sign a release. Mrs.
Verscharen then said she would send Iannacchione a check, and those
present got up to leave. Iannacchione turned to Karkalla with the
,question "Am I done?" and Karkalla indicated by a motion that he
was finished.
3 We do not, however, adopt the Trial Examiner ' s finding that this interview was pre-
cipitated by Henry Verscharen 's receipt of a report that Iannacchione had been seen in
the parking lot with two union officials . Verscharen 's testimony as a whole does not sup-
port this conclusion , and the record otherwise discloses that Iannacchione was not with
the union officials in the parking lot before the time of the interview above described.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In these circumstances we are convinced that the Trial Examiner's
finding that Iannacchione was in fact discharged, and that such dis-
charge was because of his activities in attempting to organize the
Respondent's store, is proper and should be sustained. Unlike our
dissenting colleagues, we are unwilling to assume, solely because Ian-
nacchione received pay from the Union to carry on organizational
activities in the Respondent's store, that this fact renders his testi-
mony any less credible than if he had chosen to work for the Union
without pay." The Board has not in the past refused to credit a
witness merely because he was a union protagonist, nor on the other
hand has it refused to credit a management witness merely because
he was a paid management representative. In the light, of all the
unconcealed antipathy expressed by the Respondent, first toward
unions generally and then toward Iannacchione himself for having
engaged in union activity, we cannot regard the events of Iannac-
chione's final interview as revealing merely a scheme designed by
Iannacchione to get himself discharged. Rather we believe that the
record establishes that the Respondent, endeavoring to avoid the im-
plications involved in discharging Iannacchione because of his activi-
ties on behalf of the Union first sought vigorously to procure his
voluntary termination, but having failed in that, and as a last resort,
nevertheless for that reason discharged him.
Moreover, we do not, as do our dissenting colleagues, find any am-
biguity in the manner in which the Respondent's final interview with
Iannacchione terminated. As set forth above and in the Intermediate
Report, when Iannacchione remained adamant in his refusal either
to resign or to sign a release, Mrs. Verscharen, the proprietor's wife,
broke the impasse thus created by announcing simply that she would
send him a check. The obvious import of such announcement was
that Iannacchione was in fact discharged, and the others present
plainly so understood it and regarded the interview as ended, for they
immediately got up to leave. In these circumstances, it is hardly
likely that Karkalla's gesture to Iannacchione in response to the lat-
ter's question "Am I done?" though not specifically described could
have reflected any meaning other than that which those present
already understood.
4 Nor do we believe that Iannacchione ' s subsequent application for unemployment com-
pensation while still receiving payments from the Union necessarily negates his veracity.
The record indicates that lannacchione 's application , and his appeal from its initial de-
nial, were made with the advice and consent of the union officers, who apparently take
the position that the Union's payments to Iannacchione were not "remuneration" such
as to preclude his receipt of unemployment compensation , within the meaning of the
Pennsylvania statute This being so, whether or not this legal position is well founded,
we need not determine here For the same reason we find that Iannacchione 's failure to
disclose, on his application for unemployment compensation, the fact that he was receiv-
ing payments from the Union , does not so clearly establish his untrustworthiness and hence
unsuitability for further employment as to require that the Board withhold its usual
remedy, an order of reinstatement.
VERSCHAREN'S FOOD CENTERS 1479
In conclusion, we would note that our dissenting colleagues neces-
sarily do not accept the Trial Examiner's resolution of credibility
with respect to Iannacchione's testimony as against that of some other
witnesses with respect to the June 12 interview. Curiously, their
opinion seems limited to the expression of doubts about Iannacchione's
testimony and they fail to make any clear resolutions of credibility
to substitute for that made by the Trial Examiner which they discard.
The existence of doubt as to the correctness of a Trial Examiner's
credibility findings is not sufficient warrant to overturn them. The
accepted rule, laid down in the Standard Dry 1Vall Products case,' is
that the Board will not overturn credibility findings made by a Trial
Examiner who has had the opportunity to observe the witnesses, except
where such findings can be said to be contrary to a clear preponderance
of the evidence on the record as a whole. Plainly that test is not met
here. The test which our dissenting colleagues have used to reverse
the Trial Examiner is patently erroneous.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Henry Verscharen, d/b/a
Verscharen's Food Centers, his agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating employees concerning their membership in, or
activities on behalf of, Amalgamated Food Employees Union, Local
590, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL, or any other labor organization, in a manner con-
stituting interference, restraint, or coercion in violation of Section 8
(a) (1).
(b) Promising benefits on condition employees discontinue pro-
tected concerted activities.
(c) Threatening reprisals, including refusal to rehire, because of
protected concerted activities.
(d) Discouraging union membership by discriminating in regard
to hire or tenure of employment or any term or condition of employ-
ment.
(e) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Amalgamated Food Employees
Union, Local 590, Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bar-
5 91 NLRB 544
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining or other mutual aid or protection, or to refrain from any or
all of such activities, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3) of
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Remo Iannacchione immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges previously enjoyed, and
make him whole for any loss of pay he may have suffered by reason
of the discrimination against him, in the manner set forth in the sec-
tion of the Intermediate Report entitled "The Remedy."
(b) Upon request make available to the National Labor Relations
Board or to its agents, for examination and copying, all payroll rec-
ords, social-security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the amount of
back pay due and the right of reinstatement under the terms of this
Order.
(c) Post at his stores in the boroughs of Brentwood and Bethel
(Pittsburgh, Pennsylvania), copies of the notice attached hereto
marked "Appendix." 6 Copies of the said notice, to be furnished by
the Regional Director for the Sixth Region, shall, after being duly
signed in behalf of the Respondent, be posted by it immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Sixth Region, in writing
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
CHAIRMAN FARMER and MEMBER BF.ESON, dissenting in part:
We agree that the Respondent violated Section 8 (a) (1) of the Act.
We dissent, however, from our colleagues' finding that the Respondent
discharged Remo Iannacchione contrary to Section 8 (a) (3).
Evidence was adduced at the hearing concerning a number of events
that occurred during Iannacchione's brief 6 weeks of employment by
the Respondent, tending to show that Respondent knew of and re-
sented Iannacchione's activities on behalf of the Union among the
employees in its store. As found by the Trial Examiner, these events
resulted in Iannacchione being called to a final stormy interview in the
6 In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
VERSCHAREN'S FOOD CENTERS 1481
Respondent's office on the evening of June 12, 1953, which culminated
in his discharge. Although the record throughout reveals substan-
tial conflicts of testimony, both as between Iannacchione's and the
Respondent's version of events and as between the Respondent's wit-
nesses themselves, the conclusion seems amply warranted that at least
as of the evening of June 12 the Respondent was well aware of Ian-
nacchione's union activities. However, there is absent any clear or
positive evidence to establish that Iannacchione was in fact discharged.
And there is much in the record to cast substantial doubt upon Ian-
nacchione's version of events, including his interpretation of this in-
terview as having terminated in his discharge.
At the time Iannacchione applied for employment with the Re-
spondent he was, and for several years had been, employed at a branch
store of the A & P, an employer under contract with the Union, and
paying the union wage scale which was substantially higher than that
paid by the Respondent. Karkalla, the Respondent's meat department
manager , testified substantially without contradiction that Iannac-
chione explained his reasons for seeking to change employment as
being that the A & P branch store was about to close and that the
Respondent's store was so located that he could go home for lunch.
Yet, at the time of the hearing, about 8 months later, the A & P
store was still open, and Iannacchione seems never to have availed him-
self of the opportunity, while working for Respondent, of going home
to lunch. The record shows, however, that almost from the inception
of his employment Iannacchione was paid by the Charging Union to
attempt to organize the Respondent's store. The Union made up to
Iannacchione the difference between that which the Respondent paid
him and what he would have received in his former employment, plus
$15 a week. The Union also continued to make certain substantial
payments to Iannacchione after he ceased working for the Respondent.
The crux of the issue as to whether the Respondent discharged
Iannacchione lies in what occurred at the interview on June 12 in
the Respondent's office. The Trial Examiner, crediting fully Ian-
nacchione's testimony where it conflicts with testimony of other wit-
nesses and discrediting the testimony of all other witnesses where it
is not specifically corroborated by Iannacchione,' found, in brief, that
this interview proceeded as follows : First of all, Henry Verscharen
and Fritz Verscharen berated Iannacchione, accusing him of lying
7 The Trial Examiner 's stated reason for this credibility finding is that the testimony of
Respondent 's witnesses was "so confused and contradictory as to deprive their testimony
of credence except where consistent with" that of Iannacchione . However, some of their
testimony was essentially undisputed. And the record shows, moreover , that Iannacchi-
one's own testimony was not entirely consistent or free from self-contradiction. Thus,
for example, he testified originally that he himself was the first among the persons pres-
ent at this interview to leave. Later , he testified that he left after Henry Verscharen, who
was the first to leave. Still later he testified that June Verscharen , Fritz Verscharen, and
Fiedler, a management representative , left together at a time when he. Iannacchione was
still present.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about his interest in the Union and of having been placed by the
Union in the store. Then Karkalla, the meat department manager,
and Henry Verscharen's wife, June, sought to get Iannacchione to
quit. After considerable argument, during which Iannacchione re-
fused to quit, Fiedler 8 said to Karkalla "Go ahead, Frank, and fire
him for insubordination. We don't want him around here." There-
after Fiedler got Iannacchione's timecard from the rack, offered
Iannacchione the wages due him, and asked him to sign a release to get
his pay. But Iannacchione refused, whereupon June Verscharen said
she would send Iannacchione a check, and those present in the office
got up to leave.9 Iannacchione said to Karkalla "Am I done?" and
Karkalla "indicated by motioning that he was finished," at which
Iannacchione left the store.
This account of the June 12 interview omits reference to the testi-
mony of Respondent's witnesses that early in the interview Iannacchi-
one replied to Henry Verscharen's questioning as to why he didn't quit
if he was so dissatisfied with conditions at Verscharen's, by taunting
him with "Why don't you fire me? Are you afraid of the Union?"
and repeatedly said "Fire me, fire me." The record shows that it
was this that caused Verscharen to become excited and to shout that
Iannacchione had been planted by the Union. Upon the urging of
his wife, who felt that he was becoming overwrought, Henry Ver-
scharen then left the room. But before he left, according to the
testimony of Respondent's witnesses which Iannacchione did not
deny,10 Verscharen specifically instructed the others present that,
whatever they did, Iannacchione was not to be discharged. The rea-
son given by the Respondent for these instructions is that on a pre-
vious occasion the Union had filed charges with the State Labor
Relations Board that the Respondent had discharged certain employ-
ees for union activities, and Verscharen had thereafter reemployed
them. Hence Verscharen desired to avoid a repetition of this ex-
perience. It was in this setting that the representatives of manage-
ment remaining at the meeting sought to get Iannacchione to resign.
And it was in this light that thereafter, when Iannacchione continued
adamantly to refuse to resign, the remaining Respondent's represen-
tatives got up to leave the room. Thus when Iannacchione turned to
Karkalla with the question "Am I done?" Karkalla, according to his
testimony, interpreted this merely as an inquiry as to whether the
interview was over, and he replied by a gesture (not specifically de-
scribed in the record) intended merely to mean, "Yes, get back to
work."
8 Fiedler identified himself as "a sort of general manager "
9 These findings are based exclusively on Iannacchione 's testimony . The Respondent's
witnesses deny that Fiedler left to get the timecard , that he attempted to get Iannacchione
to sign a release , or that June Verscharen told Iannacchione she would send him a check
10 Iannacchione testified only that he did not recall whether Verscharen said anything
just before leaving.
VERSCHAREN'S FOOD CENTERS 1483
Further evidence in the record that casts doubt upon the singleness
of Iannacchione's motives, and upon his version of the asserted dis-
charge, is found in the testimony of employee Marie Sporio, who said
that she found that Iannacchione's card was still in the rack and, at
Iannacchione's suggestion, inquired of Mrs. Verscharen if he had
been fired. When she reported to Iannacchione on June 16 that
Mrs. Verscharen had said Iannacchione had not been fired and could
return to work any time he desired, Iannacchione replied, "I'll come
when I am good and ready. They will have to take me back."
Iannacchione did not specifically deny this portion of Sporio's
testimony.
In our opinion the entire record, including testimony which, though
'essentially undisputed, the Trial Examiner has disregarded, fails to
establish that the Respondent in fact discharged Iannacchione.
Rather we believe the record shows that Iannacchione entered the Re-
spondent's employ as an organizer paid by the Union to organize the
Respondent's store; that in pursuance of this purpose, when it became
evident that the Respondent was aware of his activities, he sought to
provoke his own discharge; and, failing in this, that he seized upon
the opportunity presented by the June 12 interview in the Respond-
ent's office to assert that he had been discharged.
It is incorrect to say that we would discredit testimony because it
is given by a paid organizer. We simply say that in making his
findings as to what occurred in the June 12 interview, the Trial Ex-
aminer has accepted unqualifiedly Iannacchione's version even where
it runs counter to other record facts, and has failed to make a critical
appraisal of the evidence as a whole. Upon the entire record, we
-cannot agree that Iannacchione's testimony is solely worthy of credit
and that other testimony, much of which is undisputed, must be
ignored. We regard the facts surrounding the June 12 interview,
which terminated, at best, in nothing but an ambiguous gesture by
the meat department manager, as insufficient to establish that Ian-
nacchione was discharged. We would dismiss the complaint insofar
as it alleges that the Respondent violated Section 8 (a) (3).
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Amalgamated Food
Employees Union, Local 590, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL, or any labor organ-
ization by discharging or refusing to reinstate any of them, or
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by discriminating in any other manner in regard to their hire
and tenure of employment, or any term or condition of
employment.
WE WILL NOT interrogate employees or applicants for employ-
ment concerning their membership in, or activities on behalf of,
the above-named labor organization or any other labor organ-
ization, in a manner constituting interference, restraint, or
coercion in violation of Section 8 (a) (1).
WE WILL NOT threaten reprisals, including refusal to rehire,
or promise benefits to employees engaging in protected concerted
activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ-
ization, to form labor organizations, to join or assist the above-
named labor organization, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer immediate and full reinstatement to Remo Ian-
nacchione and make him whole because of the discrimination
against him.
HENRY VERSCHAREN, D/B/A
VERSCHAREN'S FOOD CENTERS,
Employer.
Dated- --------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint, an amendment to the
complaint, and notice of hearing thereon having been duly served by the General
Counsel of the National Labor Relations Board, and an answer having been filed
by the above-named Respondent, a hearing involving allegations of unfair labor
practices in violation of Section 8 (a) (1) and (3) of the National Labor Rela-
tions Act, as amended, 61 Stat. 136, herein called the Act, was held in Pittsburgh,
Pennsylvania, on October 12, 13, 14, and 15, 1953, before the duly designated
Trial Examiner.
In substance, the amended complaint alleges and the answer denies that the
Respondent: (1) On June 12, 1953, discriminatorily discharged Remo lannacchione
to discourage membership in the above-named labor organization; (2) interrogated
its employees concerning their activities on behalf of the Union, threatened them
with reprisals and made promises of benefit, and solicited employees to abandon
protected concerted activities; (3) by its unfair labor practices caused its employees
to strike; and (4) by such conduct interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed by the Act.
VERSCHAREN'S FOOD CENTERS 1485
At the hearing all parties were represented, were afforded full opportunity to be
heard , to examine and cross -examine witnesses , to introduce evidence pertinent to
the issues, to argue orally upon the record, and to file briefs and proposed findings
of fact and conclusions of law. Briefs have been received from the Respondent and
General Counsel.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Henry Verscharen, d/b/a Verscharen's Food Centers, is an individual who is
engaged in the boroughs of Brentwood and Bethel, in the vicinity of Pittsburgh,
Pennsylvania, in the business of retailing groceries, meats, produce, and other food
products.
During the calendar year of 1953 the Respondent has purchased materials, sup-
plies, and equipment, as well as groceries , meat products, and other products for
resale, valued at about $4,500,000, of which about one-third were shipped to the
Respondent from points outside the Commonweath of Pennsylvania.
The Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Food Employees Union , Local 590 , Amalgamated Meat Cutters
and Butcher Workmen of North America , AFL, is a Labor organization admitting
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination and coercion
The major issues of this case arise from the sudden termination, on June 12,
1953, of the employment of Remo Iannacchione.I General Counsel claims that
this employee was either discriminatorily discharged or forced by management to
quit, in order to discourage union activity, while the Respondent denies discrimina-
tion and contends that the employee quit voluntarily. Other events occurring at
about the same time are alleged as independent violations of Section 8 (a) (1) of
the Act, and General Counsel further urges that a strike, begun about a month
after Remo left and still in effect at the close of the hearing, was caused by the
Respondent's unfair labor practices.
There is no dispute that Remo has not returned to work since he left the Respond-
ent's store the night of June 12 following a scene in the office which, according to
the testimony of the owner, Henry Verscharen, so upset him that his wife ordered
him to go home, and after Remo's superior, Frank Karkalla, had-according to
his own testimony-repeatedly demanded that the employee resign. And counsel
for the Respondent made it clear at the hearing that reinstatement is being denied
Remo. Thus termination and refusal to reinstate is established beyond question.
By June 12 Remo had been working for about 6 weeks at 1 of the Respondent's
2 stores as a butcher under the meat department manager, Karkalla.
The Respondent's stores are not and have not been organized-in the sense of
any contractual relationship with any union. Testimony elicited by counsel for the
Respondent from Henry Verscharen shows that sometime "between 1948 and the
present" the Charging Union attempted organization, that it filed charges with the
Pennsylvania Labor Relations Board claiming that "certain employees had been
discharged for union activities," and that Verscharen thereafter reemployed "those
persons." 2
Remo applied to Karkalla for work in early April, revealing at his first interview
that for some years he had been working for A & P stores, a competitor of the Re-
spondent. Karkalla asked him why he was willing to leave the A & P organization,
which was under contract with the Union and paid the higher union scale of wages.
i In the interest of brevity and consistent spelling, this individual is generally referred
to herein, as in the official transcript, as "Remo."
Z From the nature of counsel' s questions and other testimony of Verscharen it is ap-
parent that counsel adduced such evidence as foundation for the presumption that, having
thus run afoul of the Pennsylvania law, it would be unlikely that Verscharen thereafter
would discharge another employee for his union activities in violation of the Federal stat-
ute. The Trial Examiner hesitates to indulge in such presumption , in view of the evidence
In this case.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Remo gave him a number of reasons. Karkalla then told him that there was no
union at Verscharen's, that Verscharen could not afford to hire anyone who might
bring a union in, and that he would have to drop his union card if employed .3 Kar-
kalla's conduct in thus conditioning the hire of an applicant was plainly in violation
of the Act.
Remo was finally hired on May 3 and was told by Karkalla that it was on a trial
basis but that he had nothing to worry about as long as he kept his "nose clean" and
did not "mention any union" around the store.
Remo had been a member of the Charging Union for the preceding 5 years, but
paid no dues after April 1953, when he left the employment of A & P.
Two or three weeks after he began work at Verscharen's, Remo was called to the
office by Karkalla, who reproached him for rumors that he was starting a union.
Remo denied the accusation, but said that one of the stock boys had come to him for
union information and he had told him he wanted nothing to do with a union. Dur-
ing the heated discussion Henry Verscharen came in from an adjoining office. Remo
related the controversy to him, and Verscharen accepted his explanation, adding that
the `stock boy in question had quit the day before. Later the same day, at a regular
group meeting of the butchers, Karkalla told the assembled employees that although
there had been rumors around the store that Remo was organizing a union, he had
investigated and found them groundless .4
About the time Karkalla accused Remo of union activity the employee in fact be-
gan efforts to organize at the store. He approached officials of the Union, who
agreed to and thereafter did pay him to assist in such organization.
Sometime early in the evening of June 12, according to the testimony of Henry
Verscharen, it was reported to him (he said "June seen them, or some of the
cashiers") that Remo "was out on the lot there with a couple of Union officials."
About the same time, in a meeting of assembled cashiers, Karkalla announced
that there was "a Judas among the employees" who was "selling Verscharen's out
for thirty pieces of silver." At the end of the meeting some of the girls asked
Karkalla who he meant as a "Judas," and he told them "the butcher, Remo." 5 This
meeting closed at about 6:45 p. in.
Immediately after the meeting two of the cashiers went to the store restaurant
where Remo was eating his dinner alone. They asked him to move over one stool
so they could sit together. One of the girls, Vasilchak, asked Remo if he had at-
tended the meeting. He said he had not. She then voiced the opinion, in effect, that
if anyone were not satisfied there he should leave. Remo countered with the state-
ment that he believed employees had the right to join a union if they wanted to.
3 The findings as to this interview are based upon Remo's credible testimony, portions
of which were admitted by Karkalla. The Trial Examiner finds no merit in the Respond-
ent's contention, urged in its brief, that Remo's testimony should be discredited because
while working for the Respondent he was also receiving money from the Union to help
organize To receive remuneration for what an employee has a legal right to do can hardly
be held to affect his credibility To hold otherwise would be to discredit the testimony of
an attorney merely because he-presumably-receives a fee for representing a client.
4 The findings as to the interview and the butchers' meeting are based upon Reno's cred-
ible testimony. Neither Verscharen nor Karkalla were, in the opinion of the Trial Exam-
iner, reliable witnesses, on these or other points Karkalia admitted calling Remo into
the "conference," but denied any reference to union rumors and said his discussion with
Remo related to "complaints of the meat department, Remo had been wandering through-
out the store, annoying the girls, neglecting his work, the butchers were being upset and
angry because lie was not attending to his duties " On cross-examination, however, Kar-
kalla said that the only incident causing him to be "dissatisfied" with Remo during his
employment occurred many days later, on June 12 Verscharen said lie did not remember
the Karkalla interview. Both management officials admitted that Remo was singled out
for discussion at the subsequent butchers' meeting, but denied that any union activity
was mentioned. It is undisputed that a few days later, at a management party given to
the employees in the recreation room, Karkalla came to Renio and two other butchers, re-
marked what a "wonderful fellow Mr. Verscharen was," and asked them "what do we need
a union in this place for?" (The Trial Examiner does not consider that Karkalla's blanket
denial, on cross-examination, that he eves mentioned "the union in any way whatsoever"
as a specific contradiction of Remo's testimony concerning the party )
e The quotations are from the credible testimony of Virginia Bechter, which in general is
corroborated by other witnesses. Karkalla admitted referring to a "Judas" on this occa-
sion but proffered the wholly fantastic explanation that lie meant no one in particular but
any employee who might permit a waitress at the restaurant to underpunch a meal check
by 30 cents, thus depriving Verscharen of his "thirty pieces."
VERSCHAREN'S FOOD CENTERS 1487
At about this point in the conversation Fred (Fritz ) Verscharen , who was standing
behind them , called to his brother, Henry, and Remo was ordered upstairs into the
office.6
The two Verscharens took Remo to the office and closed the doors . Henry be-
rated Remo , calling him "a bastard ," "a rat," "a Communist ," and "a Judas" who
had "sold Christ for thirty pieces of silver ." Remo started out of the office, protest-
ing that he did not have to listen to such treatment . Verscharen barred his way,
shoved him against a desk, and said "God damn you, you are going to stay and listen
to it." Fritz began telling Henry the conversation he had overheard with the
cashiers . Remo disagreed with his account and asked Henry to send for the girls
themselves and prove it. Henry then commented : "Can't you see he is a professional?
He wants witnesses ." Verscharen then asked him why he had lied , at the previous
conference in the office, about his interest in the Union, and Remo replied that he
believed he had a right to belong to a union and that it was none of Karkalla 's busi-
ness. Fritz then declared : "Listen to him . He was schooled . He was placed here.
We know this isn't the first time you have done it. You have done this before, and
we are going to check on you."
In the meantime Karkalla, June Verscharen , and one Fiedler (who, as a witness,
described himself as a "sort of general manager ") came into the office. Karkalla
broke in, "To think I was the guy that hired him." He bemoaned information given
him when checking on references , to the effect that Remo was a good worker, and
threatened to tell his mother and father . Remo pointed out that he was 29 years
old and his own boss. Karkalla then said : "Please , Remo , if there is any decency
about you, let us alone . Give up this job . If they promised to buy you a Cadillac-
go to work and buy your own Cadillac ." Karkalla again urged him : "Sign a re-
lease and we won 't hold you back in any way . We won 't give you a bad reference or
anything like that, but just leave us alone "
June Verscharen also asked him to quit , and Remo declined . During the argument
with Karkalla , Fiedler spoke up - "Go ahead , Frank, and fire him for insubordination.
We don't want him around here " Fiedler then said he was going to punch Remo's
timecard out, pay him , and get rid of him. He left, came back with the timecard, a
written statement , and money in his hand . He asked Remo to sign his release. Remo
refused. Fiedler asked if he would not sign it to get his pay, and Remo refused.
Mrs. Verscharen said she would send him a check and they got up to leave. Remo
turned to Karkalla and asked • "Am I done?" Karkalla indicated by motioning that
he was finished , and Remo left the store.?
9 The findings as to the events just before Remo was called to the office are based upon
Remo's credible testimony and the probabilities inherent in the situation at the time. The
testimony of the two Verscharens and the two cashiers is so confused and contradictory
as to be untrustworthy For example, Fritz Verscharen said , at first , that while "I was
going over to the restaurant" he saw Renio "arguing" with a "bunch of girls" so he "mo-
tioned for Henry to come down ," and that he, himself, talked to none of the employee group
and none of them talked to him , but that Henry told him that Remo was arguing with the
girls. Two pages later in his testimony he said one of the girls told him, before Henry
came down , that Remo was arguing with them, and that it was he who told Henry that
there had been an argument Henry Verscharen, on the other hand, said first that he saw
Remo "holding" the giils standing at the cashier's booth, and yet "waving his arms" and
arguing with them. Later he admitted that the girls were sitting on the stools at the
counter at the time Nor is the testimony of the two cashiers, witnesses for the Respond-
ent, more credible . Although both said that one of them, Vasilchak , called Fritz over and
told him Remo was annoying her, the other, Zozom , when confronted with the document,
admitted that she had , before the hearing , given a written statement to a Board agent,
at a time " when I could have recalled better" to the effect that while Vasilchak and Remo
were discussing the Union Fritz walked up from behind them, tapped Remo on the shoul-
der, and asked him to come with him There is no credible evidence to support the claim
of "commotion" or "annoyance ," and the Trial Examiner specifically finds that Remo
caused no disturbance , annoyed no girls , and violated no rules on this occasion.
s The findings as to this final interview are based upon Remo 's credible testimony, cor-
roborated in part by witnesses for the Respondent The scene and events as described gen-
erally by the different management witnesses is so confused and contradictory as to deprive
their testimony of credence except where consistent with that of Remo Karkalla and June
Verscharen admitted having begged Remo to quit on this occasion , while Fritz Verscharen
stoutly denied that anyone asked Remo to quit. Fiedler did not deny telling Karkalla to
fire Renio for insubordination He did deny getting Reino's timecard and money , but this
denial is unsupported by the production of the timecard , reasonably within the Respond-
ent's power to produce Fiedlei testified both that he vas the first and last person to leave
the office
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner concludes and finds that there is no merit in the Respondent's
contention that Remo quit voluntarily.8
Remo was effectively and discriminatorily discharged. That point is well estab-
lished by the testimony of Karkalla, who hired him, that on the night of June 12
he repeatedly begged him to quit. And the precipitating motive, the Trial Examiner
believes, was revealed in the testimony of Henry Verscharen, who admitted that
just before the final interview it had been reported to him that Remo had been in
the company of two union officials-one of whom the owner admittedly resented
for bringing charges against him before the Pennsylvania Board. It would be wholly
unreasonable to believe that mere peaceable conversation with two other employees,
while on his lunch hour, would have caused so many top management officials to
summon Remo to the office for the abuse accorded him.
The preponderance of credible evidence establishes and the Trial Examiner finds
that the Respondent discriminatorily discharged Remo on June 12, 1953, to dis-
courage union activity, thereby interfering with, restraining, and coercing employ-
ees in the exercise of rights guaranteed by the Act.
The Respondent admits refusing to reinstate Remo, although claiming that the
employee quit voluntarily. The reason advanced is that sometime after June 12,
in applying for unemployment compensation before a Pennsylvania agency, Remo
stated that he was unemployed, at a time when union records show that he was
receiving money from it. It appears that the technical point as to whether such union
benefits constitute "employment" is still before that agency for final determination.
In any event, the Trial Examiner finds no merit in the Respondent's claim that it is
privileged to deny reinstatement. It is incumbent upon the Respondent to remedy
the unfair labor practice it has engaged in.
In addition to Karkalla's remarks to Remo at the time of his applying for work,
above related, the record contains credible evidence establishing and the Trial Ex-
aminer finds that the following independent violations of Section 8 (a) (1) of the
Act occurred: (1) In mid-July Pat Verscharen, wife of Fritz and also a management
official, told employee Hazel Barbour that "they would fix that" if the Union came
in-she would employ only part-time help; and (2) sometime in June, June Ver-
scharen told employee Kenneth Fritsch that she was transferring him to another job
not only because he was slack and making mistakes but also because he was solicit-
ing for the Union .9
B. The strike and threats
General Counsel urges that a strike of the Respondent's employees, which began
about July 16 and was still in effect at the time of the hearing, was caused by the
Respondent's unfair labor practices.
Although this issue is not free of doubt, the Trial Examiner is of the opinion that
the evidence is insufficient to sustain this allegation of the complaint. Mere sequence
of events does not establish a causal relationship. It is true that the strike occurred
8 Henry Verscharen's testimony, although contradictory, confusing , and incoherent, con-
tains outbursts of reasonable truth, revealing his motives in getting rid of Remo. When
asked if he had any "feelings" about the Union he said, in part : "No, I said that to the
girls ; when anything was said about union, I said, we want a fair deal here . . . but to be
pulled in like this by Remo, or by his performance and things, what he tried to do to us,
that ain't fair." He said he "wasn't mad," when calling Remo to the office. " I was sad,
because the dog got hit." The following colloquy then occurred :
Q. You were just worried about the dog 9
A. Yes, I worry about everything, everything that's human.
Sad though he may have been, according to his earlier testimony he got "pretty well worked
up" over Remo, so much so that his wife said, "What's the use of your working yourself
up over him? You might as well go "
8 General Counsel adduced a good deal of evidence concerning various meetings of em-
ployees called by management after Remo's discharge. While the credible evidence estab-
lishes clearly management's hostility toward organization of the Union to have been
displayed at such meetings, the Trial Examiner is unable to find that any threats of reprisal
or promises of benefit were uttered to discourage union membership or activity. At some
of them Attorney Hewitt, counsel for the Respondent spoke. While the opinion he ex-
pressed-to the effect that Remo voluntarily quit-is contrary to the Trial Examiner's
conclusion upon all the evidence, the expression of opinion was privileged. Nor is the Trial
Examiner able to find sufficient evidence to support the allegations of the complaint to the
effect that management officials solicited or induced employees to withdraw from the Union.
. VERSCHAREN 'S FOOD CENTERS 1489
after events which the Trial Examiner has found to be unfair labor practices, but
it does not follow that one was caused by the other.
In summary , the pertinent events leading up to the strike are as follows , accord-
ing to the testimony of Clifton C. Caldwell , president of Local 590 . Immediately
after learning of Remo's discharge , Caldwell and two other union officials had a
"first impulse" to strike, but made no decision , except "to see if we could sign Ver-
scharen employees into the Union ." A few days later, "the three officers discussed
the entire matter, and finally decided that it wasn 't, from all practical standpoints,
the smart thing to strike , because we actually didn 't have the manpower to do it with."
"We thought," said Caldwell , "we would make every effort to sign people up, rather
than strike this with Remo himself, and of course these other few people that we
had." Finally , a month later , Caldwell himself made the decision to call a strike.
His reasons , he said , were: ( 1) The firing of Remo; ( 2) the receipt of a "number of
resignations from the Union"; (3) the receipt of a report from an organizer that
"he was being rebuffed by the people"; (4) the failure of people to turn out at a
union meeting he called; and ( 5) all of these things added up.
The employees themselves did not vote to strike . The one striking employee to
be questioned on the point said that she struck because she "was dissatisfied with
the management ," and when asked if Remo's discharge had anything to do with her
striking she said, "No , not necessarily."
Another factor which militates against a reasonable inference that Caldwell
called the strike or the employees struck because of unfair labor practices is the
undisputed evidence that all employees who joined the strike were paid, by the
Union, not only their regular wages which they had been receiving at the store but
sums up to $10 a week more. And it is established that at least some of the striking
employees knew, before joining the picket line, that they would receive more money
by striking than by working.
There is credible evidence , however, that management , during the strike, (1) has
threatened strikers that they will not be rehired , when and if the strike is abandoned
and they seek reemployment ; and (2 ) has promised benefits to employees if they
would abandon their legal concerted activities.
On August 3, the day after she and other girls joined the strike , Hazel Barbour
was visited at her home by Fritz Verscharen , who offered her a substantial increase
in pay if she would get other girls to join her in coming back to work . She declined
the offer, and later was told by June Verscharen that neither she nor her sister, who
was also on the picket line, would be taken back , and that they were "no longer em-
ployees" of the Company.
On August 2, the first night of the strike , Fritz Verscharen and his wife , Pat, went
to the home of striking employee Bertha Aiman and tried to get her to reveal who
"the ring leader" was.
One morning when Karkalla and Fritz Verscharen were coming through the
picket line, where the girls were carrying picket signs reading "I am a Verscharen
employee on strike," Karkalla said to employee Jean Aiman: "Those signs are worded
wrong. They should have `I was a Verscharen employee.' . . . Isn't that right,
Fritz9" Fritz replied , "Yes, they don't work for us any more, those signs should
be reworded."
The above -described threats and promises of benefit clearly constitute interference,
restraint, and coercion in the exercise of rights guaranteed by the Act.
Such illegal acts on the part of management during the strike were not, however,
in the opinion of the Trial Examiner of a nature to support a finding that thereby
an economic strike was converted into an unfair labor practice strike.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce in the sev-
eral States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action which will effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire and
tenure of employment of Remo Iannacchione , the Trial Examiner will recommend
338207-55-vol 110-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it offer-him immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and other rights and privileges,
and make him whole for any loss of pay he may have suffered as a result of the dis-
crimination against him by payment to him of a sum of money equal to the amount
he would normally have earned from the date of such discrimination to the date of
offer of reinstatement, less his net earnings during such period, the back pay to be
computed on a quarterly basis in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289. It will also be recommended that the Respond-
ent preserve and upon reasonable request make all pertinent records available to
the Board or its agents.
In view of the nature of the unfair labor practices committed, the commission by
the Respondent of similar and other unfair labor practices may be anticipated-par-
ticularly in the event employees now on strike should seek reemployment. The
remedy should be coextensive with the threat. It will therefore be recommended
that the Respondents cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Food Employees Union, Local 590, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Remo
Iannacchione, and thereby discouraging membership in the above-named labor or-
ganization, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
SOUTHERN WYOMING UTILITIES COMPANY and Louis JOHNSTON. Case
No. 30-CA-3415. December 14,1954
Decision and Order
On February 18, 1954, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the Intermediate Report.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a brief in support of the exceptions.
The Respondent contends that the Board should not assert jurisdic-
tion herein. We agree. The Board has considered the jurisdictional
issues and finds, for the reason set forth below, that it would not ef-
fectuate the policies of the Act for the Board to assert jurisdiction
in this case.
The Respondent, a Wyoming corporation and a subsidiary of the
Union Pacific Railroad Company with its principal place of business
110 NLRB No. 190.