Food Fair Stores, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1973

202 N.L.R.B. 347 (N.L.R.B. 1973)

FOOD FAIR STORES, INC.
Food Fair Stores, Inc. and Clarence McGrath. Case
4-CA-5760
March 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On November 17, 1972, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding . Thereafter , Respondent filed exceptions
and a supporting brief . The General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Food Fair Stores,
Inc., Philadelphia, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the said Order.
1 The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
DECISION
STATEMENT OF THE CASE
IRVING ROGOSIN , Administrative Law Judge: The
complaint , issued June 9, 1972, as amended at the hearing,
alleges that , 6n or about November 17, 1971, Respondent,
through named supervisors , discharged or terminated 21
named employees,' and has since failed and refused to
recall all but John Caruso and Vernon Jordan to their
1 Clarence McGrath, Raymond Brown, Samuel Ladd, Robert Driscoll,
Anthony Vercio, Frank Buchinsky, Vernon Jordan, George Medica, Gerald
Cohen, George Smith, Jr., Thomas Whelan, William Davis, Albert Evans,
Joseph Dittus, Nicholas Fantozzi, E. Connelly, R. Mager, Bennie Bardaji,
John Caruso, William Murtha, and William Barrett. The complaint alleges
that Caruso and Jordan were reinstated or recalled during the weeks ending
December 23, 1971, and February 25, respectively.
2 References herein are as follows: The General Counsel, unless
otherwise stated or required by the context, his representative at the
hearing; Food Fair Stores, Inc., Respondent, the Employer or the
Company; Clarence McGrath, the Charging Party; Food Drivers, Helpers
and Warehousemen Employees Local 500, the Union or Local 500; the
347
former or substantially equivalent positions because they
had participated in protected concerted activities, thereby
interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7, and
engaging in unfair labor practices, in violation of Section
8(axl) of the Act .2
Respondent's amended answer admits the procedural
and jurisdictional allegations of the complaint and the
supervisory status of its managerial employees but denies
generally and specifically the remaining allegations. Specif-
ically, Respondent denies that it discharged, terminated, or
refused to reinstate or recall the alleged discriminatees, and
denies that said persons had been engaging in protected
concerted activities because they had participated in an
unauthorized work stoppage in violation of collective-
bargaining agreement, and had resorted to the work
stoppage and picketing to induce and force other employ-
ees of Respondent, as well as carriers and drivers of said
carriers, to refuse to perform services for Respondent.
Hearing was held before me on July 31 and August 1, 2,
3, and 4, 1972, at Philadelphia, Pennsylvania. All parties
appeared and were represented by counsel, were afforded
full opportunity to be heard, to examine and cross-examine
witnesses, to introduce oral and documentary evidence
relevant and material to the issues, to argue orally and file
briefs and proposed findings of fact and conclusions of
law. Respondent argued orally on the record, but the
General Counsel waived oral argument, preferring to rely
on his brief. Pursuant to an extension of time duly granted,
the General Counsel and Respondent filed briefs on
September 18, 1972.3 Respondent simultaneously filed
proposed findings of fact and conclusions of law. They are
disposed of in accordance with the findings and conclu-
sions of law hereinafter made.
Upon the entire record in the case, and based upon the
appearance and demeanor of the witnesses, and the briefs
of the parties, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's amended answer
admits, and it is hereby found that, at all times material
herein, Food Fair Stores, Inc., Respondent herein, a
corporation duly organized under the laws of the Com-
monwealth of Pennsylvania, with its principal place of
business in Philadelphia, Pennsylvania, has been engaged
in the operation of food markets.
During the year preceding issuance of the complaint,
Respondent's total volume of business exceeded $500,000,
and during the corresponding period, Respondent pur-
National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29
U.S.C. Sec. 151, et seq.), the Act; the National Labor Relations Board, the
Board. The charge was filed on November 23, 1971, and duly served on
Respondent . Unless otherwise indicated or required by the context all dates
are in 1971.
3 On September 21, 1972, Respondent , without prior permission, filed a
reply brief. On September 27, the General Counsel filed a written objection
on the ground that the Board's Rules and Regulations make no provision
for the filing of reply briefs, and requested a similar opportunity to file such
a brief if Respondent were permitted to do so . Respondent 's reply brief has
not been considered in reaching the decision in this case.
202 NLRB No. 51
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chased goods valued in excess of $50,000 directly from
suppliers located outside the Commonwealth of Pennsylva-
nia.
It is, therefore, found, on the basis of the foregoing and
upon the entire record, that, at all times material herein,
Respondent has been an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Food Drivers, Helpers & Warehousemen Employees,
Local 500, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union or Local 500, is, and at
all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent operates a food distribution center located
at 11th Street and Pattison Avenue, Philadelphia, from
which it supplies its retail stores in Pennsylvania and
southern New Jersey. The center, occupying a city block,
comprises a large warehouse situated on the southern half
of the block, and a loading and parking area for tractor-
trailer trucks, covering the northern half of the site. The
truck entrance, some 50 feet wide, is located on the Darien
Street or east side of the premises; the employee entrance,
30 to 40 feet wide, is on the 11th Street or west side.
Respondent employs a substantial number of warehouse-
men, represented by Teamsters Local 169, and some 200
permanent or regular full-time truckdrivers, in addition to
20 or 30 casual truckdrivers (as of November 1971),
represented by Teamsters Local 500, whose members had
previously been represented by Highway Truck Drivers
and Helpers, Local No. 107.
Respondent and Local 500 are parties to a collective-
bargaining agreement, designated as the Master Food
Agreement, between Food Employers' Labor Relations,
Inc. (FELR), representing 18 employers, including Re-
spondent, and 4 local unions, including Local 500,4
covering the term January 1, 1971, to December 31, 1973,
automatically renewable annually thereafter in the absence
of specified notice.
Although casual truckdrivers, as such, are not specifical-
ly mentioned in article 1, Scope of Agreement, and article
2, Union Security, section 1, Recognition, the record leaves
4 The remaining locals are Produce, Poultry, Fish and Oystermen
Drivers and Helpers, Local No 929, General Teamsters, Chauffeurs,
Helpers and Yardmen, Local No. 470, and Truck Drivers and Helpers
Local 676, all affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America The prior Master
Food Agreement, covering the period January 1, 1968 to December 31,
1970, with 21 employer signatories, including Respondent, named Highway
Truck Drivers and Helpers, Local No. 107, predecessor of Local 500, as a
party,to the agreement
5 Art 5, Seniority Principles, sec 2. Seniority Rank and Posting,
provides, in pertinent part
After he has worked for an Employer at least thirty (30) days during
any ninety (90) consecutive calendar days, an employee shall gain
seniority status and his seniority date on the seniority list shall revert to
no doubt that they are covered by the agreement. With
regard to wage scales, health and welfare contributions,
union security, and dues deductions, they work, when
assigned, under substantially the same terms and condi-
tions as permanent truckdrivers. The casuals, however, do
not acquire permanent status or seniority.5
Respondent has maintained a roster of casual truckdriv-
ers, which it uses as a source of replacements for regular
drivers who may be absent or on vacation. Prior to
November 1971, at least until June of that year, the casual
roster had been compiled in some semblance of seniority,
roughly based on the date the casual was first hired, and
casuals were dispatched generally in that order. During this
period, between 25 and 30 casuals worked for Respondent
on a more or less steady basis. Early in June 1971,
however, according to Head Shop Steward Edward
Emberger's undisputed and credited testimony, Union
Secretary-Treasurer William Brown notified Emberger that
he was not to dispatch casuals from the list on the basis of
"seniority." Brown also removed the list, which had been
posted at the union headquarters.
Since June, Respondent has called and dispatched
casuals without regard to their previous length of service.
Frequently casuals will call Respondent to inquire if work
is available. They have no regular starting time and when
called may work anywhere from 1 to 4 days at a time,
depending on Respondent's requirements. Each casual
employee who is called is required to complete a printed
form, entitled "Casual Employee Notice," setting forth the
name of the "casual" employee, the date, the name of the
employee being replaced, the reason for the replacement
(on vacation or absent), and acknowledging that the casual
is being dispatched in conformity with article V, section 2,
paragraph 4 of the Master Food Agreement. Copies of the
notice are furnished the shop steward and the union
business agent.
Of the 20 to 30 casuals whose names appeared on the list,
some had worked for Respondent over a period of 2 years;
others, for a matter of months. Dissatisfaction was rife
among these men because of their inability to achieve
permanent status. Further discontent stemmed from their
claim that they had been denied resort to the grievance
procedure, having allegedly been advised by their union
that they had no right to file grievances, except with regard
to "monetary" matters. Nevertheless some of their com-
plaints were adjusted between the shop steward and
company representatives, if only temporarily. The casuals,
however, sought to persuade the Company to grant
permanent status to casuals, with appropriate seniority,
the first day of his ninety (90) day qualification period. No Employer
shall be permitted to deprive a qualified employee of the right to gain
seniority status by any subterfuge or by any refusal to hire such
qualified employee when work is available.
Employer shall submit to the Local Union together with a copy of
their monthly welfare and pension report a list of extra men who
worked during the preceding month. The list shall contain the names of
such extra men, with Social Security numbers, days worked, and
monies earned
An employee hired as a casual worker such as a vacation
replacement or a replacement for absenteeism shall not become a
seniority employee. A replacement for absenteeism is eligible for
holiday pay after sixty (60) days of work, provided he works three (3)
days in the holiday week
FOOD FAIR STORES, INC.
notwithstanding the seniority provisions of the contract, to
those in the group with longer service , a practice which
they claimed Respondent had followed until the past 2
years.6
B. Events Culminating in the Work Stoppage
On Saturday, November 6, between 14 and 18 casual
drivers assembled to review their grievance against the
Company. As already mentioned, uppermost among these
was their frustration in achieving permanent status as
truckdrivers. Other complaints related to the Company's
requirement that they sign casual employee forms which
did not contain the name of the employee being replaced,
and that they sign these forms in blank when working
Saturdays (not regular workdays), thereby depriving
casuals of the opportunity of acquiring eligibility for
permanent status; depriving casuals of holiday pay by
denying them employment for 3 days during a given
holiday week; dispatching drivers from the casual list
without regard to their prior length of service; and denying
them the opportunity of accumulating sufficient days of
work in a given quarterly period so as to render them
ineligible for health and welfare benefits. The men decided
to confer with Shop Steward Emberger about their
complaints.
Next day, Sunday, November 7, the group met with
Emberger at his home. After a general discussion of their
problems, Emberger agreed to arrange a meeting with the
union representatives. The meeting was held at union
headquarters on November 16. Present were Secretary-
Treasurer William Brown, Vice President William O'Far-
rell, Shop Steward Emberger, and substantially all the
casuals named in the complaint. Emberger and Gerald
Cohen, a casual driver, who was one of the most outspoken
members of the group, reiterated their grievances. Brown
announced that there was nothing the Union could do for
them. When it was suggested that an effort be made to
arrange a meeting with the Company, O'Farrell placed a
call for Robert J. McIntyre, Respondent' s assistant
director of industrial relations, but was unable to reach
him. Either at this meeting or one the following day,
mention was made of a "demonstration" to be conducted
at the Food Center to register their protest.
After the meeting, Emberger and O'Farrell (and proba-
bly Brown) remained behind to await a call from
McIntyre. When McIntyre did not return the call,
O'Farrell called him again, and requested a meeting.
McIntyre suggested a meeting Friday, November 19.7
O'Farrell told McIntyre that unless a meeting were held,
the casuals might "demonstrate" the following night.
6 That Respondent had recognized the right of casuals to file grievances,
including the right to acquire seniority as regular full-time truckdrivers, is
evident from settlement between the Company and Local 500, on March 23,
1970, of a grievance which had proceeded as far as arbitration. The
grievance, filed by the Union on behalf of seven casual employees, was
withdrawn from arbitration and settled by assigning six of them "as
permanent drivers on the seniority list . . . and slotted in on such list in
accordance with their original date of hire by the Company as casual
employees," without backpay. The remaining employee was denied
permanent status, as well as reemployment rights, without backpay for time
lost. The settlement agreement which , by its terms, provided that it
superseded any past practice between the parties or any arbitration award
inconsistent with it, further provided:
349
According to McIntyre, O'Farrell told him that he did not
know whether he could "hold these people because they
have said that unless they get an answer right away, they
are going to pull the doors down." McIntyre replied,
"Well, Bill, I want to make one thing very clear to you that
if they do, you can forget any meeting on Friday until we
resume operations. I will not negotiate or meet with you on
this kind of problem with a gun at my head." McIntyre
also reminded O'Farrell that, as union officials, he and
Brown had an obligation under the contract to ensure that
there was no interruption in the Company's operations,
and told him that if he expected any problem in that regard
it was incumbent on him personally to see that it was
resolved. O'Farrell assured him that he would do every-
thing possible to "keep the people in line."
Next day, some of the casuals who had been awaiting an
answer to their request for a meeting with the Company,
called the Union. When they learned that nothing had
materialized, they set about preparing picket signs for use
in their forthcoming "demonstration." Legends on the
picket signs read, "Food Fair Unfair to Casual Drivers,"
"Protesting Against Food Fair," and "Food Fair Unjust in
Treatment of Casual Drivers."
On November 17, between 8:30 and 10 p.m., some 18
casual drivers began picketing both the employee entrance
on 11th Street and the truck entrance (used by supervisory
personnel) on Darien Street. Estimates as to the number of
pickets at either gate at any given time varied from 4 to 12.
Except for the testimony of Robert L. Jones, director of
distribution for the Food Center, detailed later, the record
generally establishes that the picketing was peaceful and
orderly and that warehouse employees, truckdrivers, and
other personnel, as well as drivers of contract carriers, later
mentioned, were permitted ingress and egress without
hindrance or interference.
Beginning at about 8 o'clock on the night of November
17, drivers regularly scheduled to report for work began
calling the dispatchers to say that they would not be in.
Danford F. Fletcher, lead dispatcher supervisor, Richard
N. Pellulo, trucking supervisor, and Dispatcher Richard
Medoff, were on duty on the 4 p.m. to 12 midnight shift.
Earlier that day, at 4 o'clock, 10 regular drivers, the usual
number, had reported for work and were dispatched. At 9
p.m., four regular drivers, again , the usual number,
reported and were dispatched. The next crew, consisting of
approximately eight drivers and four helpers, was sched-
uled to report at 10 p.m. None of these reported. At I1
p.m., approximately 10 drivers and 8 helpers were due,
with another 12 drivers and 10 helpers scheduled to report
at midnight. Only two drivers, presumably Seabrooks and
4. It is agreed that the Company shall have the right to select
casual employees in any order at its discretion for casual employment
when they are employed by the Company without regard to their length
of service and to select from among such persons in any order at its
discretion in filling permanent driver jobs without regard to their length
of service.
The fact that Respondent later selected four casuals with the longest service
for employment as "jockeys" to handle the fueling of tractors for a period of
8 months, when the practice was abandoned , did not constitute a waiver of
this provision.
7 McIntyre testified that he was faced with a November 17 deadline for
negotiations with another union , not involved in this proceeding, and that
Friday was the earliest day he could meet with the Union.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pugh, reported and were dispatched as a team as driver
and helper. None of the remaining drivers or helpers
reported for the 11 o'clock or midnight shifts. Two
additional regular drivers, scheduled to report at 1 p.m.,
failed to appear. At 10 p.m., Fletcher himself attempted to
reach four casuals, who were needed as extra drivers,
besides those already scheduled as regular drivers, but was
unable to reach any of the casuals. Between 4 p.m., on
November 17, and 4:30 p.m. November 18, only one
casual driver, William Barrett (who later appeared on the
picket line) had called at about 8 p.m. on November 17, to
request work.
Rumors of a possible work stoppage had reached the
company officials sometime during the day on November
17. Shortly after the picketing began, Fletcher was notified
by the security guards about what was taking place. On
previous instructions from Armand D'Onofrio, trucking
superintendent in charge of the Company's entire trucking
operations at the Food Center, Fletcher called him to
report the state of affairs. D'Onofrio instructed him to take
matters in stride.
At about 10 p.m., Union Representatives Brown and
O'Farrell, accompanied by Shop Steward Emberger, went
to the trucking office and asked for the person in charge.
When Fletcher told them that he was in charge, Brown
asked him if John Batti, Fletcher's immediate superior, and
D'Onofrio were in. Told they were not, Brown said that he
wanted someone from management to accompany his
group to the gates. Fletcher said that he would have to
contact D'Onofrio. When he did so, D'Onofno instructed
him to comply with Brown's request, and to have Pellulo
accompany him.
The union representative, accompanied by Fletcher and
Pellulo, proceeded to the employees' gate, where 10 or 12
casuals were picketing. In the presence of the company
representatives, Brown announced to the pickets that their
activities were unauthorized and not sanctioned by the
Union, and told them to disperse. The pickets, with
apparent sarcasm, thanked Brown and continued picket-
ing. The union officials and the company representatives
then went to the truck entrance on Darien Street, where
Brown repeated what he had told the other pickets,
namely, that their activities were unsanctioned by the
Union.
Batti learned of the work stoppage from D'Onofrio at
about 9 o'clock in the evening on November 17. He drove
through the employees' gate without incident, and met
D'Onofno at the garage at about 9:45. According to Batti,
D'Onofrio told him that Brown had notified the pickets
that they were engaged in an unlawful work stoppage and
that they should disperse. Batti then walked to the
employee entrance, and later to the truck entrance, and
admonished the pickets to "picket properly" and not
interfere with any employees or trucks using the entrances.
Various casuals, as well as Shop Steward Emberger,
testified that after Brown stated to the pickets that they
were engaged in an unauthorized work stoppage,, Batti
announced that if the pickets did not go to work, they were
"done" or "through." Batti, who denied that he was
present at any time while Brown was there, at first, denied
telling the casuals that their employment was terminated or
that they were discharged because they were engaging in
an unauthorized work stoppage. Almost immediately
afterward, he testified that he had no recollection of having
made the statement. This conflict will be discussed later.
At about 1 or 1:30 next morning, November 18, as Batti
was driving through the employees' gate, he observed
Thomas E. Davis, union night steward, among the pickets.
Batti continued through the gate to the street, and
beckoned to Davis. When Davis joined him, Batti spoke of
the seriousness of the situation and expressed a desire to
resolve the problem. He proposed that Davis attempt to
persuade the casuals to go to work, and assured him that if
they did the Company would take no disciplinary action of
any nature, and would absorb the cost of the 5- or 6-hour
delay which had been incurred. According to Davis, he
asked Batti whether in the future casuals would be
dispatched "by semority." Batti said that he could not
agree to that. Batti told Davis that he would be at home
and that Davis could call him within the next half hour to
let him know what decision the men had reached. Davis
agreed to talk to the men and told Batti that if they decided
to go to work he would call him. Davis did not call Batti.
Beginning about 8:00 o'clock on the morning of
November 18, Respondent, through Traffic Manager
Leonard Schaffel and Truck Operations Manager Batti
made arrangements with six independent carriers to
perform hauling services. These carriers were used during
the remainder of the work stoppage, and continously
thereafter as late as January.
The casuals continued picketing throughout the remain-
der of the night and the following day until about 3:30 in
the afternoon, when 18 of them were served with a state
court injunction, and the picketing terminated.s The first
carriers began moving goods by 9:30 the same morning.
Despite Director of Distribution Jones' instructions to
Batti not to use any of the casuals who had engaged in the
work stoppage unless it was absolutely essential to the
operation of the center, Batti actually used two or three
casuals after January, and a total of seven as of the date of
the hearing.
The record leaves no doubt that the casuals here
involved engaged in an unauthorized work stoppage to
achieve economic objectives, without resorting to the
grievance procedure provided for in the contract, in
violation of the no-strike clause. The record further
establishes that the work stoppage lasted less than 24
hours, from between 8:30 and 10 p.m., November 17, to
between 3:30 and 4 o'clock the next day. The evidence
based on the credible testimony of various casuals, that
they were familiar with the contents of the 24-hour
provision, and that they had been advised by the Union of
the import of the provision, warrants the further finding
that the casuals did not intend to continue the work
stoppage and picketing beyond the 24-hour period even if
they had not been served with the injunction. The issue to
8 It was stipulated that on November 18, 1972, preliminary injunction violation of the no-stoke provision of the contract , and that the injunction
against picketing was issued at the behest of Respondent by the Court of was dissolved on February 7, 1972.
Common Pleas of Philadelphia County, based solely on the alleged
FOOD FAIR STORES, INC.
be determined is whether the 24-hour clause deprived
Respondent of the right to discharge, or discipline the
employees by action short of discharge, for engaging in the
unauthorized work stoppage.
C. The Applicable Provisions of the Collective-
Bargaining Agreement
ARTICLE 28
Mutual Guarantees
Section 5.
All grievances shall be processed in orderly fashion
through the steps provided in Article 8 of this
Agreement. There shall be no threats by any Steward,
Business Agent, Employer or his representative. There
shall be no work stoppages or threats thereof except as
specifically permitted under the provisions of Article 8.
s s s s s
ARTICLE 8
Grievance and Arbitration Procedure
Section 9.
It is further mutually agreed that the Local Union
will within two (2) weeks of the date of the signing of
this Agreement serve upon the Employer a written
notice, which notice will list the Union's authorized
representatives having the sole authority to act for the
Union in calling or instituting strikes or any stoppage
of work which are not in violation of this Agreement
and the Union shall not be liable for any activities
unless so authorized. It is further agreed that in all
cases of an unauthorized strike, slowdown, walk out or
any unauthorized cessation of work in violation of this
Agreement, the Union shall not be liable for damages
resulting from such unauthorized acts of its members.
While the Union shall undertake every reasonable
means to induce such employees to return to their jobs
during any such period of unauthorized stoppage of
work mentioned above, it is specifically understood and
agreed that the Employer, during the first twenty-four (24)
hour period of such unauthorized work stoppage, shall
have the sole and complete right of reasonable discipline
short of discharge and such union members shall not be
entitled to or have any recourse to any other provisions of
this Agreement. After the first twenty-four (24) hour
period of such stoppage and if such stoppage continues,
however, the Employer shall have the sole and complete
right to immediately discharge any Union member
participating in any unauthorized strike, slowdown, walk
out, or any other cessation of work, and such Union
member shall not be entitled to or have any recourse to
any other provisions of this Agreement. (Emphasis
supplied.)
ARTICLE 11
Discharge or Suspension
Section 1 . Cause for Dismissal or Suspension
351
No employee may be dismissed or suspended
without just cause , except for lack of business.
Nothing shall prohibit Union from investigating any
dismissale or suspension and resorting to the grievance
procedure provided in Article 8. Until the case has
been discussed with the Business Agent , no employee
may be dismissed or suspended except (a) where lack of
business causes the dismissal or suspension, or (b)
where the provisions of this Article provide for immediate
discharge.
The parties agree that causes for dismissal without
first discussing the matter with the Business Agent,
shall be the following.
1. Calling an unauthorized strike or walkout.
s s s
Section 2. Company Rules
Employer may establish such company rules as he
deems necessary or desirable, provided that such rules
are not in conflict with the terms and provisions of this
Agreement. A copy of such rules shall be sent promptly
to the Union. Union and FELR have agreed upon
Uniform Food Industry Rules which are made a part
of this Agreement.
Uniform Rules and Regulations
for Member Companies of Food Employer's
Labor Relations, Inc.
The following Rules and Regulations and the
penalties to be charged for violations of same are
placed into effect so that all employees of the Employer
may know what duties are required of them in the
general conduct of the Employer's business.
Nothing in these Rules and Regulations shall
abrogate the employee's right through the Union to
challenge a penalty through the regular grievance
machinery. Rules and Regulations herein contained
shall not supersede any Rules or Regulations of the
contract itself.
s s s s «
(3) CONDUCT
11
(b) Calling an unauthorized stoppage, strike or
walkout-Subject to discharge. [Emphasis supplied.]
Contentions of the Parties
Initially, the General Counsel contends that the casual
employees are not covered by the Master Food Agreement,
primarily because of their claim that they have been denied
recourse to the grievance and arbitration machinery, and
that the Union consequently had no authority to waive
their right to strike. The General Counsel maintains,
however, that assuming the casuals are covered by the
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract, the Union has not waived their right to engage in
unauthorized work stoppages of less than 24 hours'
duration.
Respondent, on the other hand, asserts that the casuals
are covered by the contract and, like other employees, are
entitled to certain benefits and subject to the obligations
imposed by the collective-bargaining agreement. Further-
more, Respondent argues, the casual employees engaged in
an unauthorized work stoppage, which, while lasting less
than 24 hours, was, nevertheless, in violation of the plain
provisions of article 28, section 5, forbidding work
stoppages, "except as specifically permitted under the
provisions of Article 8." (grievance and arbitration.) In this
regard, Respondent maintains that article 8, section 9,
quoted above, does not affirmatively grant employees the
right to engage in an unauthorized strike or work stoppage,
clearly prohibited by article 28, section 5, but, in effect,
"reinforces" the general prohibition against work stoppages
of any kind, and merely provides grievance machinery
under which reasonableness of Respondent's discipline
"short of discharge" may be determined.
The General Counsel's contention that casuals are
arguably not covered by the contract is lacking in merit.
Their wage scales and hours of work are regulated by the
labor contract; health and welfare contributions are made
by the Employer on their behalf; they are subject to the
union-security provisions; and, in general, they are treated
like permanent drivers, except that they acquire no
seniority for purposes of permanent employment. (See art.
5, sec. 2 supra, fn. 5.) Moreover, the fact that they seek in
this proceeding to avail themselves of the purported
protection of the 24-hour clause contained in article 8,
section 9, attests to the fact that the casuals recognize that
they are subject to the terms of the Master Food
Agreement.
The casuals, and the General Counsel on their behalf,
contend, however, that in the past they have been denied
the protection of the grievance and arbitration procedure
(except with regard to "monetary" issues), and that the
Union could not have waived their nght to strike since, as
a concomitant of such a waiver, employees must be
afforded access to grievance and arbitration procedure.
The contention that casual drivers were denied access to
the grievance procedure is not borne out by the record. The
record fairly establishes that shop stewards have actually
presented grievances, albeit orally and informally, with
favorable results, without resorting to the formal grievance
procedure. More importantly, at least one formal griev-
ance, involving the very issue for which the casuals
engaged in the work stoppage, was carried to the
arbitration stage and settled, without the intervention of
the arbitrator, by achieving what the casuals sought to
accomplish here, namely, the assignment of casual drivers
as permanent divers on the seniority list. (See, fn. 6.)
The casual employees here, however, testified that they
were informed by Union Representative Brown that
because of their status as casuals they had no right to file
9 The General Counsel contends that under art 11, sec I (discharge or
suspension), as well as the rules and regulations, only the calling of an
unauthorized strike constitutes cause for immediate discharge Since it has
not been shown which of the employees actually called the stake, he argues
that the casuals cannot be held responsible for the action taken This is any
grievances for any but "monetary" reasons. Neither Brown
nor O'Farrell testified in this proceeding but, assuming that
the casuals were so informed, the record establishes that
the Union has, in fact, presented at least one formal
grievance on behalf of the casuals, as has already been
seen. Moreover, even if the umon representatives may have
mistakenly informed the casuals that they were not covered
by the grievance procedure (except for monetary issues),
Respondent cannot be charged with refusal to process
grievances because of the Union's possible dereliction in
submitting grievances on behalf of the casuals.
It is, therefore, found that the casual drivers were
covered by the Master Food Agreement and by the
grievance and arbitration procedure provided thereunder.
Proceeding to a consideration of the action taken by the
casuals on November 17 and 18, despite the use of the
euphemism "demonstration," it cannot be denied that their
action amounted to a complete withholding of services
hence, a strike or work stoppage. Nor can it be denied that
the stoppage was in violation of article 28, section 5, unless
permitted under the provisions of article 8, section 9 (the
grievance procedure). Furthermore, it is undisputed that
the work stoppage was unauthorized by the Union, and
that the casuals were so notified by the umon representa-
tive in the presence of management officials.
Article 11, section 1 (discharge or suspension) expressly
permits dismissal or suspension of employees in instances
where the provisions of the article provide for immediate
discharge, such as the calling of an unauthorized strike.9
This right of the Employer to discharge employees for
calling an unauthorized stoppage, strike, or walkout is
further reaffirmed by the rules and regulations annexed to
and made part of the agreement. It should be noted
parenthetically that under article 11, section 1 , as well as
under the rules and regulations, the right of the Union to
resort to the grievance procedure and to challenge any
penalty imposed is preserved.
The gravamen of the General Counsel's case , however, is
that Respondent unlawfully discharged the casuals who
engaged in the unauthorized walkout which lasted no more
than 24 hours, contrary to the provisions of the so-called
24-hour clause contained in the grievance procedure. This
assumes that the discipline imposed by Respondent
exceeded the permissible penalty for unauthorized strikes
of less than 24 hours duration, since under these provisions
Respondent may impose only "reasonable discipline short
of discharge." This approach would ignore the other
pertinent provisions of the labor agreement recognizing
Respondent's right to discharge for calling an authorized
stoppage, strike, or walkout.
Respondent contends however, that the 24-hour clause
of article 8, section 9 may not be construed as authorizing a
work stoppage, which is prohibited in article 28, section 5,
except as specifically permitted under the provisions of
article 8. The only work stoppage permitted in article 8,
according to Respondent, appears in section 7, permitting
unduly narrow and technical interpretation of the phrase . It is evident that
this language was intended to outlaw unauthorized stokes not merely the
calling of such strikes In any event, the record amply establishes that the
casuals acted concertedly in their decision to "demonstrate," and to that
extent, it may be said that they called the stoke by common consent
FOOD FAIR STORES, INC.
a work stoppage only upon the failure to comply with an
arbitrator's award within 10 days after receipt thereof.10
Thus, Respondent maintains that the unauthorized work
stoppage mentioned in the 24-hour provision in article 8,
section 9 is not to be construed as within the exception
provided for in article 28, section 5.
Stated differently, the argument runs that the 24-hour
clause cannot convert an unauthorized work stoppage into
protected activity in the face of the general prohibition
against work stoppages of any kind. Had the parties
intended, Respondent argues, that the 24-hour clause
should further restrict Respondent's right to immediate
discharge, contained in article 11, section 1, or as an
exception to the no-strike clause contained in article 28,
section 5, they would have inserted such an exception to
the immediate right to discharge in article 11, section 1, the
provision dealing with cause for dismissal. Instead, the
parties inserted the 24-hour provision in the grievance and
arbitration provisions of the contract. Thus, Respondent
maintains , the 24-clause was in no way intended to restrict
its right of immediate discharge for an unauthorized work
stoppage, but merely to limit the right of an employee
engaging in such action to have recourse to the grievance
machinery.
This construction is supported, according to Respon-
dent, by the fact that in article 8, section 9 Respondent
relinquished its right to hold the Union responsible for
unauthorized work stoppages. Respondent argues that the
Union had a very considerable stake in being absolved of
any possible liability for wildcat strikes, and that it agreed
to the 24-hour clause as a quid pro quo for the release from
any such possible claim.
In further support of its interpretation of the 24-hour
provisions, Respondent introduced evidence, received over
the General Counsel's strenuous objection," of discussions
between Assistant Director of Industrial Relations McIn-
tyre and Union Secretary-Treasurer Brown, on December
31, 1970, during the last of some 14 negotiating sessions,
culminating in the agreement, that the Union's proposed
24-hour clause was merely intended to deny employees
engaging in unauthorized work stoppages access to the
grievance machinery under the stated conditions. Accord-
ing to McIntyre's undemed testimony, Brown expressed
concern regarding unauthorized work stoppages which
might undermine the Union's authority in view of the rash
of wildcat strikes which had occurred while Highway
Drivers Local 107 had represented Respondent's drivers.
Agreeing with Brown's approach, McIntyre proposed that
the Union agree to deny access to the grievance machinery
to any employee discharged for engaging in an unauthor-
ized work stoppage, regardless of its duration. Brown
refused and stated, according to McIntyre, that during the
first 24 hours of an unauthorized work stoppage Respon-
dent would have the right to discharge employees engaging
in such conduct, and the employee would be relegated to
10 Sec Treads
The decision of the arbitrator shall be final and binding upon all
parties Failure to comply with arbitrator's award within ten (10) days
after receipt thereof shall permit either party legal and economic
recourse
11 The objection, renewed in the General Counsel's brief, was on the
ground that receipt of this evidence violated the parol evidence rule The
353
the grievance procedure. Thus, Respondent contends, the
24-hour clause does not restrict its right to discharge
employees engaging in an unauthorized work stoppage, in
view of the "sole and complete right" granted the
Employer to take the specified action without the right of
the employees to have "recourse to any other provisions"
of the agreement. In the event of work stoppages lasting
longer than 24 hours, striking employees would be denied
recourse to the grievance procedure. If this is the result the
parties indeed intended, it is not reflected in the language
of the provision, which makes no distinction between
unauthorized strikes of less than 24 hours' duration and
those exceeding that period, insofar as the consequences to
the employees are concerned. To this extent, the under-
standing purportedly reached with the union representative
is at variance with the provisions of the 24-hour clause, and
constitutes an attempt to vary its terms. No reliance,
therefore, is placed on McIntyre's testimony regarding the
alleged understanding.
Respondent's position that it had an unqualified right to
discharge employees engaging in an unauthorized work
stoppage of less than 24 hours' duration, subject only to
recourse to the grievance procedure, fails to take into
account the full import of the proviso to article 28, section
5. To contend that the placement of the 24-hour clause in
the grievance provisions rather than in the section dealing
with the no-strike provisions or in the one setting forth the
causes for immediate discharge requires a finding that the
parties did not intend to restrict Respondent's right to
discharge employees engaging in unauthorized strikes of
less than 24 hours, would be to exalt form over substance.
Reasonably interpreted and viewed in light of the evident
purpose of the provision, it is found that the proviso
excludes from the prohibition against work stoppages those
of less than 24 hours as a cause for immediate discharge.
Respondent contends that the Board erred in Wagoner
Transportation,12 on which the General Counsel relies, but,
in any event, attempts to distinguish the case. The 24-hour
clause is substantially identical in both cases. There the
Board, adopting the decision of the Trial Examiner, held
. although unauthorized strikes are outlawed by
the Master Agreement, it is clear from the Agreement
itself that the parties agreed that the extreme penalty of
discharge would not be applicable to employees who
participate in unauthorized strikes of less than 24
hours' duration, as the Agreement gives the Respon-
dent as an Employer only the right to impose
"reasonable discipline short of discharge" upon such
employees. It is accordingly held that to the extent that
the Agreement prohibited the Respondent from exact-
ing the extreme penalty of discharge on employee-
participants in wildcat strikes of less than 24 hours'
duration, such strikes are protected activities under the
provisions of Section 7 of the Act which guarantees to
employees the right to engage in "concerted activities
evidence was received , and has been considered , not to vary the terms of the
labor contract, but for such aid as it may afford in resolving any ambiguity
in the language of the 24-hour clause or possible incompatibility with other
pertinent provisions of the contract
12 Wagoner Transportation Company, 177 NLRB 452, enfd . (per cur,am)
424 F 2d 628 (C A 6)
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of collective bargaining or other mutual
aid or protection."
Respondent attempts to distinguish this case on the
ground that the master agreement in the Wagoner case, a
copy of which was introduced in this proceeding, contains
no explicit provision in the comparable discharge clause,
permitting immediate discharge for the calling of an
unauthorized strike. Similarly, Respondent points out, the
uniform rules and regulations, appearing in the so-called
Michigan Rider, contain no mention of the right to
immediate discharge for unauthorized strikes. Granted
these differences, it is evident that in reaching its decision
the Board acted on the premise that the Employer would
have been entitled to discharge employees engaged in an
unauthorized stake in violation of the no-strike clause,
were it not for the language of the 24-hour provision. It is,
therefore, found that the absence of any express provision
in the Wagoner contract authorizing the Employer to
discharge any employee engaging in a wildcat strike does
not require a contrary result.13
Respondent further argues that to adopt the interpreta-
tion of the General Counsel regarding the 24-hour clause
would render it possible for employees to engage in a series
of intermittent wildcat strikes, provided only that each
stoppage were terminated within 24 hours. Conceivably
such a result is possible, but it must be assumed that the
parties were cognizant of the risk when they agreed on the
clause, and it is not within our province to reform the
contract freely entered into by the parties. Moreover, in
such an eventuality, the Employer could resort to other
remedies, including the grievance procedure. In any event,
the possibility of such recurring wildcat strikes did not
deter the Board from finding in the Wagoner case, that,
under the 24-hour clause of the contract there, the
Employer could not exact the extreme penalty of discharge
for unauthorized strikes of less than 24 hours' duration.
Respondent maintains, however, that, although it had
the right, under the applicable provisions of the contract,
to discharge the casuals who engaged in the unauthorized
work stoppage of less than 24 hours, the discipline which it
imposed constituted no more than "reasonable discipline
short of discharge."
To begin with, there is a direct conflict in the testimony
as to whether Dispatchers Fletcher and Pellulo notified the
picketing casuals that they were discharged. Although both
were admitted supervisors, they denied that they had
authority to discharge casual drivers, except under very
limited circumstances, such as where their competence as
truckdrivers was involved. Nevertheless, in view of their
supervisory status, their statement or threat of discharge, if
actually made, would constitute interference, restraint, or
coercion, even though they may have had no authority to
effect actual discharges. In view of their lack of authority
13 It has been noted that, in the recent case of National Tea Company,
Standard Grocery Division, 198 NLRB No 62, Trial Examiner (now
Administrative Law Judge) George L Powell arrived at the result argued for
by Respondent here, but recommended that the Board defer to the
tribunal's award The Board did so without reaching the merits of the case.
With all due deference, I must respectfully disagree with the Administrative
Law Judge's decision on the merits
14 Although Cohen had taken an active part in the events culminating in
the strike, it was not shown that Respondent was aware of this Cohen
testified, however, that earlier that month he had protested to one of the
to discharge, and in view of the exceptional circumstances
existing in regard to the unauthorized stoppage, it is highly
improbable that Fletcher and Pellulo would have assumed
authority to make such a critical decision without instruc-
tions from top level management. It is found that they did
not notify the casual pickets that they were discharged.
More serious, however, is the charge that on the night of
November 17, Batti, Fletcher's immediate supervisor and
D'Onofrio's subordinate, told the entire group of casuals
that they were ternnated. According to Gerald Cohen,
Batti and D'Onofno drove into the truck entrance on
Darien Street and, after a discussion between the two men,
Batti, with a sweeping gesture of his hand, told them,
"You're all done," and, singling out Cohen, said, "And
you, Cohen, you'll never work here again." 14
Without categorically denying Cohen's testimony, Batti,
at first, denied telling the men that they were terminated,
but later testified that he could not recall making such a
statement. In any event, Batti later told Shop Steward
Davis, as late as 1 a.m., November 18, that if the men
returned to work no disciplinary action would be taken
against them. Under these circumstances, it might be
argued that, even assuming that Batti made the statement
attributed to him by Cohen and other casuals, the
statement was probably intended as no more than a
tactical maneuver to persuade the casuals to go to work.
It is conceded, however, as Batti and Jones testified, that
on November 18, the Company decided that it would no
longer call casuals involved in the work stoppage as
substitute drivers unless it had no other alternative.
Fletcher also testified that, after the termination of the
strike, Batti and D'Onofno furnished him with a new list of
casuals, which he believed did not contain the names of the
casuals who had engaged in the unauthorized work
stoppage. After first denying that he had made a list of the
casuals picketing on November 17 and 18, when shown his
pretrial affidavit, he conceded that he compiled such a list
of names, probably after he returned to his office from the
picket line.
This evidence supports a finding that, by its decision not
to call the casuals who had engaged in the work stoppage,
unless it was unavoidable, Respondent evinced a determi-
nation not to use these casuals in the future, thereby
depriving them of any future opportunity for employment
and, in effect, terminating their employment. Respondent
denies, however, that these employees have actually been
discharged, contending that the fact that they subsequently
dispatched seven casual employees, who had engaged in
the unauthorized work stoppage, negates any inference
that the casuals were terminated. Respondent concedes
that it has imposed an "extended suspension" on these
casuals but maintains that this action constituted no more
than reasonable discipline short of discharge. On the other
dispatchers that another casual , Robert Driscoll, who had been working for
Respondent nearly twice as long as Cohen, had not been called . According
to Cohen, the dispatcher told him he would call "anybody" "whenever" he
wanted On another occasion, when Cohen, who had already worked 2 days
during a holiday week, called in and asked to be assigned in order to be
eligible for holiday pay, Fletcher told him that there was work for him, but
that he had been told not to use him When Cohen reported this to Business
Agent Brown , the latter called Fletcher and threatened him with the filing of
a grievance unless he used Cohen As a result , Cohen worked the third day
that week and received the holiday pay
FOOD FAIR STORES, INC. 355
hand, there was evidence from several of the casuals,
including Cohen and McGrath, the Charging Party, that
when the Company failed to call them after the strike
ended, they called the Company to ask for work but were
told that there was no work available, and finally
abandoned their efforts.
It will be recalled, however, that in consequence of the
strike, Respondent had been obliged to resort to the use of
independent carriers to perform the work previously done
by the casuals. In order to obtain the services of the
independent carriers, Respondent was obligated to make
them a commitment that it would not discontinue the use
of their services when the strike was terminated. Moreover,
Respondent asserts that reduction in the operating sched-
ules of its regular drivers and elimination of deliveries from
the Food Center to Allentown and Reading, Pennsylvania,
reduced its need for casual drivers. It is not surprising,
therefore, that there may not have been enough work
available to warrant hiring of casuals. Although the cost of
operating with outside carriers was admittedly higher than
it would have been to operate with casuals, Respondent
justified the increased cost by the dependability of the
carriers and increased efficiency of operation. The evidence
idoes not warrant an inference that Respondent resorted
to the use of outside carriers to penalize the casuals for
their unauthorized walkout.
As further indication that it did not discharge the casuals
who engaged in the unauthorized work stoppage, Respon-
dent points to its procedure under which it notifies the
Union by telegram or letter in the event of discharge of
permanent employees and, with regard to casuals, informs
the Union that it is removing the casual from the list. That
this procedure was not followed here may raise questions
concerning Respondent's possible failure to comply with
the contract, but furnishes no probative evidence to
support its claim that the casuals were not actually
terminated.
It is, therefore, found that by the conduct of its
responsible supervisors, including Batti's statements to the
pickets, and the removal of the names of the striking
casuals from the former roster, and establishing a new
roster, and by failing to call all but seven of the casuals
who had engaged in the work stoppage, Respondent has
deprived the casuals of their former employment opportu-
nities thereby, in effect, terminating their employment.15
As further justification for its action, Respondent asserts
that the casuals engaged in picket line misconduct which
warranted the discipline imposed.
Jones testified that between 11 and 11:30 on the first
night of the strike, he observed (from a considerable
distance , it might be noted), a number of warehousemen,
members of Local 169, "milling around" at the employees
gate , where Local 500 members of both the trucking and
garage group were congregated. Paul Hanlen, shop
chairman for Local 169, was at the picket line to assure
warehouse employees that they were not obliged to respect
the picket line. Local 500 Business Representative Brown,
who was also present, informed Local 169 employees that
the work stoppage was unauthorized and did not affect
them, and warehousemen were permitted to enter without
incident.
Jones remained at the center throughout that night and
until 8 o'clock the following night. At various times during
that interval, he testified, he observed pickets stopping
vehicles at the entrance in an apparent effort to identify
occupants of the vehicles. Jones concluded that this was
done to determine whether the occupants were warehouse-
men, in which case they were permitted to enter, or
truckdrivers, who "turn[ed] around" without entenng.16
Jones further testified that he also observed pickets at the
truck entrance converge on a "yellow tractor," allegedly
belonging to one of the common carriers, whom Respon-
dent had engaged after the work stoppage began, while
members of the labor squad of the police department were
seated in a vehicle at the side of the driveway. When Jones
sought to have the police intervene, he was told that in the
absence of an injunction or unless violence occurred, they
could not intervene, and that drivers had the choice of
entering or refraining from doing so. Some of the pickets,
according to Jones, engaged drivers in conversation, while
others remained standing in front of and on both sides of
the tractor, without moving, until the driver left the scene.
In addition, according to Jones, two regular drivers
employed by Respondent, whom he identified as Sea-
brooks and Pugh, and who had been dispatched by Zack
Johnson, passed through the picket line. Pugh later went to
the trucking office and, in Jones' presence, told Johnson
that he had been threatened that "his head would get
broken if he went out," presumably meaning if he drove a
truck out. Both drivers, however, drove their trucks out
without incident. According to Jones, no other regular
drivers reported for work during the strike.
The record generally establishes that, except for the
foregoing incidents, drivers and others seeking access to
the center, either through the employees' entrance or the
truck entrance, were permitted to do so without hindrance.
Those who sought information about the dispute were
either directed to read the picket signs or informed of the
grievances, and told that they were free to decide whether
to enter the gates. Even on the basis of Jones' testimony,
except for the hearsay testimony regarding the alleged
threat of violence against Pugh, there was no probative
evidence to establish that persons declining to enter the
center were deterred from doing so by anything more than
peaceful persuasion. Nor was there any identification of
pickets who allegedly engaged in picket line misconduct. In
any event, it has not been established that the action taken
by Respondent against the casuals was prompted by any
picket line misconduct.
In addition to the alleged picket line misconduct,
Respondent relies for its disciplinary action on the
"staggering" effect of the casuals' wildcat strike upon its
operations.
Wholly apart from whether the pickets engaged in
15 It may be noted that, despite the interpretation of the 24-hour clause
attributed by McIntyre to Brown, the Union declined to process a grievance
for the action taken by Respondent against the casuals, and that McGrath,
the Charging Party, filed an unfair labor practice charge against the Union
for denying casuals fair representation The charge was subsequently
withdrawn
16 According to Jones, he observed pickets "converge " on the car as soon
as it came through the gate , and concluded that the pickets were attempting
to establish the identity of the occupants He assumed that the occupants of
cars which did enter contained truckdrivers.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"obstructive" tactics, Respondent argues that the picketing
of Respondent's entrances was, at the very least, designed
to attempt to persuade regular truckdnvers employed by
Respondent, as well as outside carriers, to respect their
picket line, as a means of exerting economic pressure on
the Employer. Furthermore, Respondent emphasizes that
the strike was deliberately called at a crucial time, the pre-
Thanksgiving, Christmas, and New Year season. Accord-
ing to Respondent, some 250,000 turkeys were to be
delivered during this interval. Jones testified that the work
stoppage resulted in a loss of sales of over $200,000; that
the Company incurred further substantial expenses in
procuring outside carriers to help handle the loads
ordinarily handled during these periods; that for several
hours after the strike began, warehousemen were idled;
and that after the strike, Respondent was required to resort
to overtime to make up the time lost because of the strike.
Under these circumstances, Respondent argues, the
failure to utilize all the casuals after the strike constituted
no more than reasonable discipline short of discharge.
Moreover, Respondent asserts, the reason casuals, calling
in during the month or so after the strike was terminated,
were told that there was no work for them was that
Respondent had been obliged to keep its commitment to
the outside camers, as well as to avoid similar occurrences
of unauthorized work stoppages during the critical preholi-
day period.
Of course, if, despite their participation in the unauthor-
ized strike, the casuals were, nevertheless, protected from
discharge by reason of the 24-hour clause, the fact that
Respondent's operation may have undergone serious
disruption, loss of business, and extraordinary expense
would not justify Respondent's action in terminating the
casuals' employment status, though these factors might
have a bearing if the action taken were construed as
discipline short of discharge. Since it has already been
found that the conduct in which Respondent engaged
toward the striking casuals was tantamount to discharge, it
is unnecessary to decide whether the conduct in which
these employees engaged, and the consequences to the
Employer resulting therefrom, afforded sufficient justifica-
tion for removing these casuals from the roster and failing
to call them after November 18.
Upon the basis of the foregoing, and upon the entire
record, it is hereby found that, by notifying the casual
truckdrivers who engaged in the unauthorized work
stoppage for a period of less than 24 hours that they were
discharged; by removing the names of any or all of them
from the roster of casual drivers and establishing a new
roster; by admittedly failing and refusing to call or
dispatch all but seven of said casuals after November 18;
and by admittedly deciding not to dispatch any of said
casuals who had engaged in the unauthorized stoppage
unless it was essential to the normal operations of its Food
Center, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.17
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of
Respondent, described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act, it will be recommended that Respondent cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent penalized the casual
employees who engaged in the unauthorized work stop-
page on November 17-18, 1972, for a period of less than 24
hours, by notifying them that they were discharged;
removing the names of some or all of them from the roster
of casual drivers and establishing a new roster; admittedly
failing and refusing to call or dispatch all but seven of said
casuals after November 18, and deciding not to dispatch
any of said casuals who had engaged in the unauthorized
work stoppage unless it was essential to the normal
operations of its Food Center, all in violation of Section
8(a)(1) of the Act.
It will, therefore, be recommended that Respondent
immediately restore each of said casuals who had engaged
m the unauthorized work stoppage for less than 24 hours,
to the roster of casual truckdrivers previously maintained
by it, without prejudice to any of the rights and privileges
previously enjoyed by them, and call and dispatch said
casuals, as and when required, in the same manner and
order in which casuals were called and dispatched as
replacements for permanent or regular full-time truckdnv-
ers prior to their unauthorized work stoppage, and make
them whole for any loss of earnings they may have suffered
by reason of Respondent's conduct, by payment to each of
them of a sum of money equal to the amount he would
have earned from the date the casuals were notified of their
termination on November 17-18, 1971, until the date each
shall have been notified that he has been restored to the
roster of casual employees, less his net earnings during
such period. Backpay together with interest at the rate of 6
percent per annum shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Food Fair Stores, Inc., Respondent herein, is, and at
all times material herein has been, engaged in commerce
and in an industry affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
17 On the basis of these findings, Respondent's proposed findings of fact Proposed conclusion of law 4 is granted, 1, 2, 3, and 5 are denied
1, 2, 6, 9, 10, and 11 are granted, 3, 4, 5(a) and (c), 7, and 8 are denied
FOOD FAIR STORES, INC. 357
2. Food Drivers, Helpers & Warehousemen Employees,
Local 500, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, the Union herein, is, and at all times material
herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
3. By the conduct, described above, Respondent has
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7, thereby 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 commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I issue the following
recommended: 18
ORDER
Food Fair Stores, Inc., Respondent herein, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to impose or imposing the penalty of
discharge on employees for engaging in unauthorized work
stoppages lasting less than 24 hours.
(b) In any like or similar manner, interfering with,
restraining, or coercing employees in the exercise of the
rights to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all of
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 employment as authorized
in Section 8(a)(3) of the Act, as guaranteed in Section 7
thereof.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Immediately restore each of the casual employees
who engaged in the unauthorized work stoppage on
November 17-18, for less than 24 hours, to the roster of
casual truckdrivers previously maintained by it, without
prejudice to any of the rights and privileges enjoyed by
18 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
19 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board."
them, and call and dispatch said casuals, as and when
required, in the same manner and order in which casuals
were called and dispatched as replacements for permanent
or regular full-time truckdrivers prior to their unauthorized
work stoppage, and make them whole for any loss of
earnings they may have suffered by reason of the action
taken against them in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful in analyzing the amount of backpay
due under the terms of this recommended Order.
(c) Post at its Food Center in Philadelphia, Pennsylvania,
copies of the attached notice marked "Appendix"19
[the text of which is contained in the starred footnote below ].
Copies of the said notice, on forms provided by the
Regional Director for Region 4, after being duly signed by
Respondent's duly authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing , within 20
days from receipt of this Decision, what steps Respondent
has taken to comply herewith.
* The Appendix contained the following promises
WE WILL not threaten to impose or impose the penalty of discharge on
employees for engaging in unauthorized work stoppages lasting less than 24
hours
WE WILL not in any like or similar manner interfere with, restrain, or coerce
employees in the exercise of the rights to self-organization, to form, join or
assist any labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to refrain
from any or 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 employment as authorized in Section 8(a)(3), as guaranteed in
Section 7 of the Act
WE WILL immediately restore each of the casual employees who engaged in
the unauthorized work stoppage on November 17-18, 1971, for less than 24
hours, to the roster of casual truckdrivers previously maintained by us,
without prejudice to any of the rights and privileges enjoyed by them, and
call and dispatch said casuals, as and when required by us, in the same
manner and order in which casuals were called and dispatched as
replacements for permanent or regular full-time truckdrrvers prior to their
unauthorized work stoppage, and make them whole for any loss of earnings
they may have suffered by reason of the action taken against them, in the
manner set forth in the section of the Decision entitled "The Remedy " The
casual truckdrivers referred to are Clarence McGrath, Raymond Brown,
Samuel Ladd, Robert Driscoll, Anthony Vercio, Frank Buchinsky, Vernon
Jordan, George Medica, Gerald Cohen, George Smith, Jr. Thomas Whelan,
William Davis, Albert Evans, Joseph Dittus, Nicholas Fantozzi, E
Connelly, R Mager , Bennie Bardaji , John Caruso, William Murtha. and
William Barrett