Dominick's Finer Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1965

156 N.L.R.B. 14 (N.L.R.B. 1965)

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dominick's Finer Foods , Inc. and Helen T. Avonts . Case No.
13-CA-6970. December 15, 1965
DECISION AND ORDER
On September 29, 1965, Trial Examiner Robert Cohn issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision, and
the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision,' the exceptions and briefs, and the entire record
in this case, and hereby adopts the finding, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order.]
'In finding , as did the Trial Examiner, that the Respondent is an Employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act, we rely on the
additional fact, established in the record but not set forth in the Trial Examiner's
Decision, that, during the calendar year 1964, the Respondent, whose stores are located
in Illinois , purchased goods and materials in excess of $50,000 from enterprises located
in Illinois which received said goods and materials from sources outside Illinois, thus
satisfying the requirement that the Board's statutory jurisdiction be proven.
2 The Trial Examiner noted that the Respondent's personnel manager, Henry Hentz, did
not deny the remarks attributed to him by employee Avonts to the effect that Avonts was
a "natural born leader," that the girls would follow her, and that "that could cause me
trouble." While it is true, as the Respondent urges in its exceptions, that Hentz testified
that "the way [Avonts] said it was not correct," Hentz did not explain in his testimony
what he specifically did say. Under the circumstances we find, as did the Trial Examiner,
that Hentz made the statements attributed to him by Avonts.
As the Trial Examiner 's credibility resolutions are not contrary to a clear preponder-
ance of the evidence, we adopt them. Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F. 2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, herein called the Act, with all parties represented, was heard before Trial
Examiner Robert Cohn in Chicago, Illinois, on July 14, 1965, on complaint of the
General Counsel of the National Labor Relations Board and answer of Dominick's
Finer Foods, Inc., herein called the Company or Respondent.' The pleadings raised
1 The complaint was issued May 17, 1965, based upon a charge filed April 1, 1965.
Unless indicated otherwise, all dates hereinafter refer to 1965.
156 NLRB No. 14.
DOMINICK'S FINER FOODS, INC. 15
the following issues: (1) Whether the particular operation of the Respondent involved
in this proceeding is subject to the Board's jurisdiction, and (2) whether Respondent
discharged the Charging Party on or about March 15 in order to discourage member-
ship in a labor organization and/or because she engaged in concerted activities pro-
tected by Section 7 of the Act, in violation of Section 8(a) (3) and (1) of the Act.
At the close of General Counsel's case-in-chief, Respondent moved to dismiss the
complaint. The motion was denied with leave to renew at the close of Respondent's
case-in-chief. The motion was renewed at that time, and ruling thereon was reserved.
The motion is disposed of by the findings and conclusion set forth herein. At the
close of the hearing, counsel for Respondent argued orally on the record. Both
counsel .for the General Counsel and counsel for Respondent filed posthearing briefs
which have been duly considered.
Upon the entire record, including my observations of the demeanor of the wit-
nesses while testifying, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Employer is engaged in the operation of retail food stores in the Chicago
area. At the time of the events in issue here, the Employer operated approximately
10 such retail stores; however, the particular facility where the Charging Party was
employed had only been owned and operated by Respondent at the time of her dis-
charge for a period of approximately a week or two.
Respondent concedes that the annual gross revenue from its entire operation ex-
ceeds $500,000. However, it raises the jurisdictional issue because it could not be
determined whether the particular facility involved herein, being so recently ac-
quired, would itself gross enough revenue to warrant assertion of the Board's juris-
diction. But this is not the question. The Board made clear in the leading case,
wherein jurisdictional standards for this type of operation were set forth,2 that it:
will assert jurisdiction over all retail enterprises which fall within its
statutory jurisdiction and which do a gross volume of business of at least
$500,000 per annum. The Board will apply this standard to the total operations
of an enterprise whether is consists of one or more establishments or locations,
and whether it operates in one or more States.
Applying the facts in this case to the quoted standard, I find and conclude that the
overall operations of Respondent satisfy said standard and that it would effectuate
the policies of the Act to assert jurisdiction over the Respondent in this case.
H. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and I find that Local 1504, Retail Clerks International As-
sociation , AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
As above noted, Respondent owns and operates a number of retail food stores in
the Chicago area. Shortly prior to the events at issue, Respondent acquired three
food stores from E. J. Korvette, Inc., one of which-the Oak Lawn, Illinois, store-
is involved in the instant proceeding. At the time of sale, Korvette's had a contract
with the Union covering the employees involved .3 Respondent was also in contrac-
tual relations with the Union, in an associationwide agreement,4 covering employees
in other of its stores. Shortly before the Respondent commenced operation of the
Oak Lawn store on March 15, it conducted collective-bargaining negotiations with
the Union relating to problems raised by the change in ownership and the difference
in the two contracts. This resulted in a supplemental agreement which contained
among other things, stipulations changing the wages of employees and providing a
longer escape period for Respondent to determine whether it desired to retain new
employees. Thus, all former employees of Korvette who desired to work for Re-
2 Carolina Supplies and Cement Co., 122 NLRB 88, 89.
8 General Counsel's Exhibit No. 3.
4 General Counsel 's Exhibit No. 2.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent were required to complete new application blanks which were subject to
approval by Respondent, and it was made clear both in the contract and to the
employees that:
During the first sixty (60) days of employment a new employee shall be on a
trial basis and may be discharged at the discretion of the Company.
Apparently all of Korvette's employees at the Oak Lawn store made such applica-
tion and were employed by Respondent, at least all of the cashier-checkers did, and
that is the classification with which we are most intimately concerned in the instant
case.
As noted previously, the Respondent formally took over the Oak Lawn facility on
March 15, and began operations as Dominick's on that date. On March 23, 8 days
later, it discharged Helen Avonts, the Charging Party herein, which gave rise to the
instant proceeding.
B. The alleged discrimination
Helen Avonts began working as a cashier-checker in Korvette's supermarket in
May 1963.5 At that time the employees in the food department of Korvette's were,
represented by the Union, and Avonts was a member thereof. In September or
October 1963, she became the union steward at that store and remained in such posi-
tion until Respondent took over the store on March 15, 1965. The contract between
the Union and Korvette's provided that the Union could select one of its members
in the supermarket to serve as a shop steward, and while not specifically defined in
the contract or in the record, it maybe reasonably assumed that the principal func-
tion of a person in such a position would be to take up any grievances of employee-
members with the proper representatives of management.6
Avonts first learned that the Respondent was purchasing the facility about March 1.
A notice to this effect was placed on the bulletin board, and a couple of days later
the employees were given application blanks to fill out in order to become employed
by the new company. A few days later, Personnel Manager Henry Hentz 7 held
informal meetings with the employees-about three or four at a time-in which he
welcomed them to the employ of Respondent. Apparently, the Respondent hired
all of Korvette's employees who made application, albeit on a 60-day trial basis.
As previously noted, the Respondent took over the operation of the store on
March 15. At the commencement of work that day, Personnel Manager Hentz had
an indoctrination meeting with the employees, the first 20 minutes of which Avonts
missed because she was instructed by Store Manager Caponi to man a cash register
to check out the customers who were already present in the store that morning.
She was then relieved by another employee and attended the last part of the discus-
sion, the purpose of which was to explain the personnel policies and practices of
Respondent and the new contract which had been agreed upon between the Union
and Respondent.8
At the meeting, Hentz bore down particularly on two principal points: (1) That
the cashier-checker was probably the only employee with whom a customer had
direct contact and therefore it was essential that the checker have a neat personal
appearance. In that connection, he advised the employees that they should (a) look
at the customer, (b) smile, and (c) speak to the customer. (2) He advised them of
the provision of the contract respecting a raise in wage rates, and also of the fact
that they were on a 60-day trial period.
At the close of the meeting, Hentz dismissed all of the employees except Avonts,
who remained behind. Hentz advised her of any matters which she had missed by
virtue of her working during the first part of the meeting. He then raised the
point that he understood that she had been the union steward during her employ-
ment at Korvette's, and stated: "I don't think you're going to be a union steward
under the Dominick regime as you were under the former regime." 9 Avonts pointed
5r, or an indeterminate period prior thereto, she had worked for Korvette 's in the
clothing and drug departments of their main store.
6 Although discussed more fully hereinafter, it is believed noteworthy to point out at
this juncture that the contract between Respondent and the Union did not provide for
such a steward, and this was made clear to Avonts by a representative of Respondent on
the first day that Respondent took over the operation.
7 Incorrectly spelled Hintz in the complaint.
8 Hentz testified that he did not elaborate on the latter point particularly because he
knew that this had been gone into at a union meeting held the previous evening.
6 Hentz testified that he was confident that he used precisely the quoted phrase because
he had previously checked with the counsel of the Associated Food Producers as to how
he should couch his language when advising Avonts on this point.
DOMINICK 'S FINER FOODS, INC. 17
out that there had not been many grievances under the old regime and that she
rarely went to the Union with them. However, she testified that Hentz advised her
she was a "natural born leader," that the girls would follow her, and "that could
cause me trouble." 10
Several days later , Avonts had a second conversation with Hentz at her register
during working hours, which can, perhaps ,be best explained by quoting her testimony:
He come over and he asked me how I was doing and I told him , I says, "Well,
you tell me how I'm doing." He says, "Well , you're doing fine, only smile a
little bit more ," and I told him, I says, "Well, I'm kind of embarrassed about
my teeth," and he told me, he says, "Well , that make no difference , you can
always have those taken care of. I have a mouthful of fillings myself ," which he
showed me , and I told him at that time, I says, "Well, Mr. Hentz, I have a little
rumor and I don't [know ] if I should even tell you, and he told me, he says,
"Well, you tell me and let me decide ," so I told him what Bernice Hunt had
told me and what Rose Clark had told me , about, when, at the time that the
girls were up in this meeting, Mr. Hentz evidently had told them all what their
wage back [sic] was going to be, and they was very discontented about it be-
cause Mrs . Gueniss was going to be earning more money than what they were
going to be on the register , and I spoke to Mr. Hentz about this , and he told me
he would check into it, and I says, "Well , at the same time, Helen Temco had
also come up to me and told me about her hearing this, and she has cards from
the Union showing she has been a Union employee for quite awhile, and she
told me she was entitled to more money."
Hentz said that he would check into the matter and let her know. A day or two
later she asked Hentz if he had found out anything and he said no.1'
On the morning of March 23 , Avonts was called into the office of Store Manager
Caponi . He said that he had had orders to cut the payroll and that he was sorry
but that he was going to have to let her go. He said that there would be several
more. She asked him if there is anything wrong with her work and he said no,
and then she asked if it was going to be temporary . He answered again in the nega-
tive and advised her to apply for unemployment compensation , and, also, that if she
could find another job to take it.12
In his testimony at the hearing , Caponi conceded that the reason given Avonts for
her termination in the exit interview was not the true one, which was that, in his
opinion, after observing her during the 7-day period, she did not measure up to
Dominick 's standards of what a cashier -checker should be. That is to say, she was not
neat, and she had a loud, harsh voice. He stated that he did not tell her the true
reason because he did not want to hurt her feelings.
C. Analysis and concluding findings
As may be seen , the facts in this matter are not unduly complicated . Nor is it
difficult to state the issue to be decided, which is whether or not General Counsel
sustained his burden in proving by a preponderance of the evidence that the termi-
nation of Avonts was to discourage membership in a labor organization in violation
of Section 8(a) (3), and /or because Avonts engaged in concerted activities protected
by Section 7, in violation of Section 8:(a) (1). Resolution of the issue , however, is
not so easy . Respondent vigorously denies that the discharge had anything to do
with Avonts ' activities as a union steward . It staunchly contends that even though,
10 The findings , respecting the above conversation are based upon the testimony of Avonts
and Hentz which is, in essence , mutually corroborative . The attribution to Hentz of the
remarks respecting Avonts ' leadership and the possible result that it could cause " trouble"
was not denied by Hentz, and I would credit Avonts that this statement was made
substantially as she testified.
u Hentz admitted having the conversation with Avonts in which she raised the question
of the salaries of Temco and Gueniss. He also testified that he told Avonts " in a nice
way" to have her teeth fixed and that he had a mouth full of teeth that had been fixed
by a dentist . He further testified that he subsequently checked into the matter of salaries
and found that Temco had not put down all of her experience on her application and that,
accordingly , he upped her rate; that he had found that Gueniss ' experience was correct,
that she was at the correct rate , and he left it there . He did not , however, report this
fact to Avonts because "he didn't think it was any of her concern."
12 The foregoing is based upon the testimony of Avonts and Capon! , which, in essence,
is mutually corroborative.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by its contract with the Union, it was privileged to terminate Avonts within the 60-
day period for any or no reason whatsoever, it did in fact have good and sufficient
cause to discharge her, i.e., because she did not measure up to Respondent's stand-
ards as a cashier-checker; that is has a history of harmonious labor relations with
some five different unions with whom it has contracts covering all of its operations;
that it has never been charged with the commission of unfair labor practices before,
nor has it ever had any dispute whatsoever with any labor organization-in short, that
it is not antiunion; and that, in any event, the store manager who did the firing did
not even know of Avonts' prior history as a union steward or of her conversations
with Hentz respecting the wage rates of her fellow employees.
In my view, as expressed at the hearing upon the denial of Respondent's motion
to dismiss at the close of General Counsel's case-in-chief, the General Counsel estab-
lished a prima facie case of discriminatory motivation when it was shown that the
Charging Party was discharged shortly after she had engaged in activities protected
by Section 7 of the Act; i.e., presenting grievances relating to working conditions
on behalf of fellow employees, contrary to Respondent's announced policy, under
circumstances which raised strong suspicions that the reason given for the discharge
was not the compelling one. While the burden of proof to establish a violation of
the Act remained with the General Counsel throughout the whole proceeding, it
became incumbent upon Respondent, following the establishment of a prima facie
case, to come forward with evidence which would reasonably explain its conduct.13
Like the Board in the recent case of Heinrich Motors, Inc.,14 I find the Respondent's
explanation not convincing.
It may be said at the outset that I am not in agreement with the argument of
General Counsel that a factor in assessing Respondent's motive is that Caponi gave
conflicting or inconsistent reasons for the discharge when he testified that he fired
Avonts for economic reasons rather than stating his "real reason," to wit: That she
did not measure up to Dominick's standards as a cashier. All other considerations
aside for the moment, I do not ascribe an improper motive to one who discharges
an employee for one reason and yet gives her another for the sake of not hurting
her .feelings on a personal matter. On the other hand, Respondent did not satisfy me
by the evidence it offered in support of the "real reason" it asserted. Thus, Re-
spondent called four of the Charging Party's fellow employees for the purpose of
showing that Avonts was a loud, boisterous, unattractive person who would be
wholly unsuited for the position of cashier of the type Respondent desired. These
employees testified that in their personal contact with Avonts, the latter often used
foul language and spoke of her bodily functions during coffee breaks or at eating
periods, which resulted in their requesting the booth girl not to schedule them with
Avonts for lunch. However, these employees were careful to testify that they never
heard Avonts use foul language or tell off-color stories in the presence of customers,
and, moreover, it appeared that substantially all this offensive conduct took place
before Dominick's commenced operation of the store. Indeed, the testimony was
unanimous that during the first week of operation under Respondent, all the em-
ployees were on their best behavior in an effort to make a good impression on their
new employer. Thus, only one incident occurred after Respondent took over the
operation which purported to show an "off-color" remark by Avonts: one evening
after the close of the store when there were no customers around, Avonts was said
to have made mention that her girdle was slipping.
Most significant is the fact that however displeased the employees may have been
with Avonts because of her personal derelictions, there was no testimony that any
of this was reported to any representative in the management of Respondent, so
that the probative value of such testimony as bears upon Respondent's motivation
in the discharge is practically nil. Accordingly, Respondent must rest its case solely
on the testimony of Store Manager Caponi who stated that he observed Avonts
during the first week of operation, and that she was loud and very rude to customers
and harsh with employees. However, he admitted that no customer had ever com-
plained to him, or to anyone else as far as he knew, respecting Avonts' rudeness;
and, as noted hereinabove, no employee was presented who testified that during
this period Avonts offended her. While I would not think it incumbent to sustain its
position for Respondent to adduce a customer witness in support of its position, it
would seem that some intimation of displeasure by customers at some time would
have been presented. However, the most that Respondent was able to muster in
139 Wigmore, Evidence § 2487 (3d ed.). See also N.L.R.B. v. Entwistle Mfg. Co., 120
F. 2d 532, 535-536 (C.A. 4).
24 153 NLRB 1575.
DOMINICK'S FINER FOODS, INC. 19
this regard was the testimony of an employee who stated that after the discharge
one customer opined that she felt that the reason was "her loud mouth." This hear-
say opinion certainly cannot be accorded much weight.15
Particularly important to me, as bearing upon motive, is Caponi's admission that
during the whole period he observed Avonts during which she was supposedly loud,
rude, dishevelled, and harsh, he did not once speak to her concerning any of these
imperfections prior to the discharge. In a company whose policies stressed such
attributes as neat appearance, harmonious relationships with customers, and whose
personnel practices were well-established and defined (Hentz utilized a company
manual during the indoctrination sessions although such manual was never intro-
duced in the record), it seems strangely incongruous for the extreme penalty of
discharge to be meted out without so much as a word of caution or suggestion having
been made. Indeed, the only evidence in the record on this point is a suggestion by
Hentz to Avonts that she have her teeth fixed so that she would not be embarrassed
to smile at the customers, but even this suggestion was assertedly not communicated
to Caponi since Respondent insists that these two management representatives did
not discuss the proposed disciplinary action to be imposed upon Avonts.16 This
queer and unexplained conduct, along with all the other circumstances of this case,
leads me to believe, and I am convinced, that another and more compelling reason
was the "real reason" for the discharge. The only other activity occurring was that
Avonts was pursuing her activities as a union steward, contrary to Respondent's
policies, and was engaging in activities which "could cause her trouble." This, taken
with the fact that there was concededly no fault found with her work, that she was
an experienced employee who came to Respondent with a good recommendation,
leads me to conclude that the compelling reason for the discharge was Respondent's
desire to nip this kind of conduct in the bud (particularly before it had to answer to
the Union for it).
Contrary to Respondent's contentions, the fact that there may have existed a good
reason (or no reason) for the discharge does not exculpate it from liability:
The mere existence of valid grounds for a discharge is no defense to a charge
that the discharge was unlawful, unless the discharge was predicated solely on
those grounds, and not by a desire to discourage union activity. [N.L.R.B. v.
Symons Mfg. Co., 328 F. 2d 835 (C.A. 7).] 17
In this connection, I have seriously considered Respondent's evidence and con-
tention that its long and sustained history of good labor-management relations is
unblemished by either labor disputes or charges of unfair labor practices before the
Board, and therefore it could not be held to have been motivated by antiunion con-
siderations. But I must reject this argument on two grounds: (1) It was not shown
that Respondent was ever faced with a militant union steward who was engaging
in activities contrary to Respondent's policies,18 and (2) the Supreme Court has
stated that:
. specific evidence of intent to encourage or discourage is not an indis-
pensable element of proof of violation of § 8(a)(3) .... This recognition that
specific proof of intent is unnecessary where employer conduct inherently en-
courages or discourages union membership but is an application of the common-
law rule that a man is held to intend the foreseeable consequences of his conduct.
[Radio Officers Union v. N.L.R.B., 347 U.S. 17, 44-45.] 19
15 Avonts' voice while testifying was not loud, although it did have a tonal quality
which tended to make it carry.
111 do not credit the testimony in this regard. First, it offends common sense and
ordinary prudent business practices that the store manager would not discuss a proposed
discharge with the management representative who, by his own admission, had taken over
the personnel problems and procedures at this particular time. Secondly, it is incredulous
that Hentz, who felt so sensitive about Avonts that he rehearsed his proposed phraseology
to her with counsel, would not discuss her activities-which were contrary to company
policy-with the store manager.
17 See also N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F. 2d 352 (C.A. 2)
Duo-Bed Corp. v. N.L.R.B., 337 F. 2d 850 (C.A. 10) ; N.L.R.B. v. Longhorn Transfer
Service, Inc., 346 F. 2d 1003 (C.A. 5).
18 See, e.g., N.L.R.B. v. Symons Manufacturing Co., 328 F. 2d 835 (C.A. 7).
19 See also Local 357, International Brotherhood of Teamsters, etc. (Los Angeles-Seattle
Motor Express) v. N.L.R.B., 365 U.S. 667.
217-919-66-vol. 156-3
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certainly here, where the dischargee was the union steward engaged in the basic
function of such person, i.e., presenting grievances of fellow employees relating to
wage rates, and the evidence not sustaining the contention that good and sufficient
cause existed, it is clear that the employer conduct had the inherent effect of dis-
couraging union membership and activities. I so find.
But even if it could not be said that the discharge here was affected by union con-
siderations, I would still find it violative of Section 8 (a) (1) of the Act since I have
determined that the motivating reason related to the Charging Party's presenting
grievances concerned working conditions on behalf of fellow employees 20 How-
ever, whether the discharge is considered to be a violation of Section 8(a)(3) or
8 (a) (1), the remedy of reinstatement and backpay would be the same.21
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent found to constitute unfair labor practices as set forth
in section III, above, occurring in connection with its operations described in section
I, above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain conduct proscribed by Sec-
tion 8(a)(3) and (1) of the Act, it will be recommended that it cease and desist
therefrom and take specific affirmative action, as set forth below, designed to effectu-
ate the policies of the Act. Although this case involves a discharge which I have
found to be violative of the statutes, I do not believe that under all the circum-
stances, including the isolated nature of the violation and Respondent's history of
good labor-management relations, a broad remedy is required. Cf. N.L.R.B. v.
Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
Having found that Respondent discriminated in regard to the hire and tenure of
employment of Helen T. Avonts, it will be recommended that Respondent offer
Avonts full and immediate reinstatement to her former or a substantially equivalent
position, without prejudice to her seniority or other rights and privileges she would
have acquired, absent the discrimination.22
It will be further recommended that Respondent make whole Avonts for any loss
of pay she may have suffered as a result of Respondent's discrimination against her
to the date when reinstatement is offered. Computation thereof shall be calculated
in accordance with the formula adopted in F.W. Woolworth Company, 90 NLRB
289, with interest thereon at 6 percent as computed in Isis Plumbing & Heating Co.,
138 NLRB 716. It will finally be recommended that Respondent retain and make
available to the Board or its agents, upon request, all pertinent records and data
necessary to determine the amount, if any, of backpay due.
Upon the basis of the foregoing findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire or tenure of employment of Helen T.
Avonts, thereby discouraging membership in a labor organization, and interfering
with employee rights protected by Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the purview of Section 8(a) (3) and
(1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2D See Sherry Manufacturing Company, Inc.,. 128 NLRB 739 , 740, and cases cited on 759.
a Ibid.
22I am not unconcerned with the legitimate requirement of Respondent that its checker-
cashiers maintain certain standards of neatness in appearance, attentiveness to customers,
and the like, and this Decision should not be construed as limiting Respondent in the
proper maintenance of those standards. I merely find here that any dereliction of the
Charging Party in this regard was not the compelling reason for the discharge, and that
reinstatement is an appropriate remedy in the circumstance.
DOMINICK'S FINER FOODS, INC. 21
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that Respondent, Dominick's Finer Foods,
Inc., Oak Lawn, Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any other labor organization, by
discharging employees or otherwise discriminating in any like or related manner in
respect to their hire or tenure of employment, or any term or condition of
employment.
(b) In any like or related manner interfering with, restraining, or coercing em-
ployees in the right to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or mutual aid
or protection, or to refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3) of the Act.
(2) Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer to Helen T. Avonts full and immediate reinstatement to her former or
a substantially equivalent position, without prejudice to her seniority or other rights,
and privileges previously enjoyed, and make her whole for any loss of pay she may
have suffered by reason of the discrimination against her.
(b) Notify the above-named employee if presently serving in the Armed Forces
of the United States of her right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and all other rights under the terms of this Recommended
Order.
(d) Post at its Oak Lawn, Illinois, store, copies of the attached notice marked
"Appendix." 23 Copies of said notice, to be furnished by the Regional Director for
Region 13, shall, after having been signed by an authorized representative of Re-
spondent, be posted by Respondent immediately upon receipt thereof, and be main-
tained 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 13 in writing, within 10 days from
the date of this Decision, what steps Respondent has taken to comply herewith 24
23 In the event that this Recommended Order Is adopter ; by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order".
24 If this Recommended Order is adopted by the Board, the provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer Helen T. Avonts full and immediate reinstatement to her
former or a substantially equivalent position, without prejudice to her seniority
or other rights and privileges, and make her whole for any loss she may have
suffered as a result of the discrimination against her.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in Local 1504, Retail Clerks Interna-
tional Association, AFL-CIO, or in any other labor organization, by discharging
employees, or in any like or related manner interfere with, restrain, or coerce
employees in the exercise of their rights to self-organization, to form, join, or
assist said Local 1504, Retail Clerks International Association, AFL-CIO, or
any other labor organization, to bargain collectively through representatives of
their own choosing, or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
DOMINICK'S FINER FOODS, INC.,
Employer.
Dated------------------- By---------------------- --------------- ------
(Representative) (Title)
NOTE.-We will notify Helen T. Avonts if presently serving in the Armed Forces
of the United States of her right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge .from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 291 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7597.
Southland Paint Company , Inc. and Oil , Chemical and Atomic
Workers International Union , AFL-CIO. Cases Nos. 16-CA-
0013,16-CA-2024,16-CA-2043,16-CA-2103,16-CA-(130,16-CA-
2201, and 16-CA-2215. December 15, 1965
DECISION AND ORDER
On August 2, 1965, Trial Examiner William W. Kapell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and the brief, and the entire record
156 NLRB No. 2.