Happy Food Center, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1965

154 N.L.R.B. 702 (N.L.R.B. 1965)

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
units of employees at the Employer's Lihue, Hawaii, plant, as
follows: 17
(a) Case No. 37-RC-1162: All full-time and regular part-time
mechanical department employees including layout and pasteup em-
ployees, Linotype operators, stereotypers, pressmen, proofreaders,
photoengravers, teletype setters, binders, mailroom employees, com-
positors, and metal melters, but excluding guards and supervisors as
defined in the Art.
(b) Case No. 37-RC-1164: All full-time and regular part-time
nonmechanical department employees including employees in the
editorial, business, circulation, and advertising departments, the
truckdriver, and the building maintenance employee, but excluding
the circulation department manager and all guards and supervisors
as defined in the Act.
As noted, supra, since no union is seeking the unit advanced by the
Employer, and because the separate units petitioned for by the re-
spective Unions are appropriate, we shall dismiss the Employer's
petition in Case No. 37-RM-60.
[The Board dismissed the petition in Case No. 37-RM-60.]
[Text of Direction of Election omitted from publication.]
17 As the units found appropriate herein are broader than those sought by the Peti-
tioners, each Direction of Election is conditioned upon each Union Petitioner demon-
strating, in its own case, within 10 days from the date of this Decision , that it has an
adequate showing of interest in such broader unit.
In the event that either Petitioner does not wish to participate in an election in the
unit found appropriate in this case , we shall permit it to withdraw its petition upon
notice to the Regional Director within 5 days from the date of this Decision.
Happy Food Center, Inc. and Retail Store Employees Union Local
782, AFL-CIO. Case No. 17-CA-2551. August 26, 1965
DECISION AND ORDER
On May 21, 1965, Trial Examiner Herbert Silberman 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 Ex-
aminer's Decision. The Trial Examiner also found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint, and recommended that these allegations be
dismissed. Thereafter,- the General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief; the Respondent
filed an answering brief and cross-exceptions.
154 NLRB No. 61.
HAPPY FOOD CENTER, INC. 703
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 Jenkins].
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
Decision, the exceptions, cross-exceptions, briefs, and the entire rec-
ord in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the modifications
noted below.
Contrary to the Trial Examiner, we find that the Respondent
violated Section 8(a) (3) and (1) of the Act by refusing to rehire
employee Robert Conaty. Conaty had been employed as a sacker at
the Respondent's store until the week ending August 28, 1964.
Thereafter, he sought to return to work. Gary Priddy, the Respond-
ent's grocery manager, asked Conaty if he had signed a union card.
When Conaty replied that he had, Priddy told him that the Re-
spondent didn't need him. In view of the Respondent's demonstrated
union animus, the absence of evidence that no job vacancy existed
when Conaity applied for reemployment, and the fact that 'Conaty
was rejected only after admitting his adherence to the Union upon
questioning directed to that matter alone, we are convinced that the
Respondent's refusal to give Conaty employment was for a dis-
criminatory reason, in violation of the Act.
To remedy the Respondent's unfair labor practice against Conaty,
who was a summer student employee, we shall not require the Re-
spondent to reinstate him, as the record shows that he would have
returned to school after Labor Day, 1964. However, we shall order
the Respondent make Conaty whole for any loss of earnings he may
have suffered by reason of the aforesaid discrimination, by payment
to him of a sum of money which he would have earned from the date
of the refusal to employ him to the date he would have returned to
school, less his net earnings, if any, during this period. Backpay
shall be computed with interest at the rate of 6 percent per annum
on a quarterly basis in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716.
ADDITIONAL CONCLUSIONS OF LAW
We hereby delete the Trial Examiner' s conclusion of law No. 3,
renumber No. 2 to No. 3, and snake the following new conclusions of
law :
2. By refusing to employ Robert Conaty because of his member-
ship in or activities in behalf of the Union, the Respondent has
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in and is engaging in unfair labor practices within the
meaning of Section 8(3) and (1) of the Act.
4. The Respondent has not engaged in unfair labor practices
within the meaning of Section 8 ( a) (5) or 8 (a) (3) of the Act with
respect to employees Esther Trease Langton , James Vaughn, and
John Erk.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Happy Food Center, Inc.,
Independence, Missouri, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified :
1. Add the following as paragraph 1(c) to the Trial Examiner's
Recommended Order, the present paragraph 1(c) being renumbered
1(d):
"(c) Refusing to employ applicants because of their membership
in or activities in behalf of the Union or any other labor organization."
2. Add the following as paragraphs 2(a) and (b) to the Trial
Examiner's Recommended Order, the present paragraph 2(a) being
renumbered 2(c) :
"(a) Make whole Robert Conaty for any loss of pay he may have
suffered by reason of the discrimination against him, in the manner
set forth in this Decision.
"(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay
due under the terms of this Decision."
3 Add the following paragraph after the second indented para-
graph of the Appendix i attached to the Trial Examiner's Decision:
WE WILL NOT refuse to employ applicants because of their
membership in or activities in behalf of the Union or any other
labor organization.
4. Add the following paragraph as the last indented paragraph
of the aforesaid Appendix :
WE WILL make Robert Conaty whole for any loss of pay he
may have suffered by reason of our discrimination against him.
1 The telephone number for Region 17 , appearing at the bottom of the Appendix attached
to the Trial Examiner's Decision, is amended to read : Telephone No. 221-2732.
HAPPY FOOD CENTER, INC. 705
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on October 16 and December 9, 1964, by Retail Store Employ-
ees Union Local 782, AFL-CIO, herein called the Union, a complaint dated Jan-
uary 6, 1965, was duly issued alleging that Happy Food Center, Inc., herein called
the Respondent or the Company , has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(I), (3 ), and (5 ) and Section 2(6) and (7)
of the National Labor Relations Act, as amended , herein called the Act . The com-
plaint , as amended by an order dated January 18, 1965, in substance , alleges that the
Respondent on various days in August 1964 discharged Esther Trease Langton, John
Erk, James Vaughn , and Robert Conaty because of their support of and activity on
behalf of the Union, that since August 10, 1964, Respondent has unlawfully refused
to bargain collectively with the Union as the representative of the employees in an
appropriate unit, and that by reason of the aforesaid acts and other conduct set forth
in the complaint Respondent has interfered with, restrained , and coerced employees
in the exercise of the rights guaranteed in Section 7 of the Act. The Respondent
duly filed an answer to the complaint herein which, as amended at the hearing , gener-
ally denies that it has engaged in the alleged unfair labor practices . A hearing in
this proceeding was held before Trial Examiner Herbert Silberman at Kansas City,
Missouri , on March 2 and 3, 1965. Thereafter , briefs were duly filed by the General
Counsel and by the Respondent.
Upon the entire record in this case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent, a Missouri corporation, operates a store at 42d and Noland Road,
Independence , Missouri , where it sells at retail groceries and related products.
Respondent 's annual sales are in excess of $500,000 and , in the course and conduct of
its business, Respondent annually purchases and receives at its store from points
outside the State of Missouri merchandise valued at in excess of $100,000. Respond-
ent admits , and I find, that the Company is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, a voluntary association charted by the Retail Clerks International
Association, accepts as members persons who work as employees in retail grocery
establishments and, among other of its activities , engages in collective bargaining and
represents employees in connection with grievances . I find that the Union is a labor
organization as defined in Section 2(5) of the Act.
IH. THE UNFAIR LABOR PRACTICES
Respondent admits that , as alleged in the complaint , all regular and regular part-
time grocery department employees at its store , excluding meat department, office
clerical, and professional employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. The employees within this unit fall into three
general classifications ; namely, stockers , checkers, and sackers . Stockers arrange
the merchandise on the shelves in the store ; checkers wait on the trade and act as
cashiers ; and sackers , who for the most part are students who work part time, place
the customers' purchases in paper bags, carry such bags to customers ' automobiles,
and do other menial tasks.
The principals of the Company are William Raymond Rosser, who owns 98 percent
of the outstanding shares of its stock, and his father , William E. Rosser , who owns
the balance . The latter has an additional financial stake in the Company as the
endorser for his son of a banknote in a substantial amount. Although Rosser, Senior,
in his testimony was evasive with respect to , and attempted to minimize , his authority,
nevertheless , I find that he exercises managerial authority on behalf of the Company
and more specifically as concerns the issues in this case has charge of the Company's
personnel . In addition to the Rossers, the employees in the above-described unit are
supervised by Grocery Manager Gary Priddy.
The events with which this proceeding is concerned are related to the Union's
organizational campaign among the Company's employees which began about
August 6 , 1964, when the Union's business agent, Charles R. Spangler, at the
invitation of Elgean Cole, met with her and Rebecca Jennings and Esther Trease
206-446-66-vol. 154-46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Langton at Cole's home. The three women, all of whom were employed as checkers
by the Company, signed union authorization cards at that meeting. Thereafter,
Cole and Langton discussed the possibility of union representation with other
employees and Cole advised them of arrangements she had made for Spangler to be
in the vicinity of the store in order that they could sign union cards. In accordance
with such arrangements a number of employees signed union cards on August 8, 1964.
Shortly thereafter the Union made several demands for recognition upon the Com-
pany. On August 10, 1964, according to William E. Rosser, one of the clerks in the
store gave him a somewhat garbled message about "the Retail Clerks Union wanting
us to join their organization" or about Union Business Representative Harry Hess
requesting a meeting. Rosser sent a telegram to the Union that day advising that the
Company "will have to set meeting at later date preferably around latter part of
month ...." Additional demands for recognition were made upon the Company on
August 12, 19, and 25, 1964. The Company's refusal to accede to these demands is
the basis for the alleged violations of Section 8(a)(5) in this case.
The threshold question is whether as of about August 10, 1964, when the Union
first made its demand for recognition, it had authorization cards from a majority of
the employees in the appropriate unit i General Counsel introduced in evidence
authorization cards signed by the following 10 employees on the dates set forth along-
side their respective names:
Name Classification Date
Mike Bullock------------------- Sacker -------- 8/8/64
Elgean Cole-------------------- Checker ------- 8/6/64
Robert Comity------------------ Sacker -------- 8/8/64
Lawrence Dickstein------------- ----- do -_-----_ 8/9/64
John Erk------------------------ ----- do -------- 8/8/64
Marvin Grilev------------------ -----do-------- 8/9/64
Rebecca Jennings--------------- Checker ------- 8/6/64
William (Ronald) Lockert------- Stocker ------- 8/8/64
Esther Trease Langton ---------- Checker ------- 8/6/64
James Vaughn------------------ Sacker -------- 8/8/64
General Counsel contends that at the relevant times only the following eight addi-
tional employees were included in the appropriate unit, none of whom had signed
authorization cards:
Name Classification
John Dean 2--- --------------------- Sacker
James Hughes Do.
Gerland McKenzie--__ Stocker.
Betty McMillian 3----------------- Do.
Richard Mueller Do.
Wayne Phillips- Sacker
Dale Wilson Stocker.
Delores Wilson ---------- ----------- Checker.
Respondent contends that Marcel Flippin and Julia Chapman who were employed
as checkers during the relevant times should also be included in the unit, while Gen-
1 The only evidence of union majority adduced on behalf of the General Counsel are
authorization cards
2 John Dean who was still in the employ of the Company on the date of hearing was
hired in September 1963 He was absent from work between August 7 and 28, 1964.
Although Priddy testified that during this period Dean was "[ulnemployed He wasn't
with us," General Counsel takes the position that lie is included in the unit. I agree
with the General Counsel that, despite Priddy's testimony, Dean's absence from work
for 3 weeks during the summer of 1964 alone is not a sufficient basis for excluding him
from the unit.
3 Although Priddy testified that Betty McMillian "was not a checker and could not
be considered a real stocker either," there is no dispute that she is included in the unit
HAPPY FOOD CENTER, INC. 707
eral Counsel argues that they are supervisors and therefore should be excluded. Gen-
eral Counsel adduced no testimony whatsoever as to any instance when either Flippin
or Chapman had exercised any supervisory function. He argues that when Priddy
and the Rossers were absent from the store Flippin and Chapman were in charge.
But Respondent adduced evidence through the testimony of Priddy and William E.
Rosser that at all times when the store is open Priddy or one of the Rossers is in the
store. General Counsel points to testimony by John Erk and James Vaughn as
contradicting Priddy and Rosser in this respect. Erk testified that on one par-
ticular evening none of the three were in the store However, on cross-examina-
tion he acknowledged that, although at the same time in question he had not seen
any of the three, he had no way of knowing whether or not one of them was
somewhere out of his sight in the store. Vaughn's testimony to which General
Counsel adverts is similarly inconclusive. I find, therefore, that General Counsel
has failed to prove not only that Flippin and Chapman had ever been advised that
they were in charge of the store in the absence of Priddy and the Rossers but also that
an occasion ever arose when all three were absent. General Counsel argues that
Flippin and Chapman had authority to recommend the hire and discharge of employ-
ees. However, at most, the testimony shows that while Priddy might listen to their
recommendations when and if he hired or discharged any employee he exercised his
independent judgment and neither Flippin's nor Chapman's recommendations carried
effective weight.4 General Counsel further argues that Flippin "was the head cashier
who had keys to the office and to the cash drawer. She runs the front end of the
store for Mr. Priddy, the manager." Assuming that the record contains evidence to
such effect, these factors, which do not relate to the direction or supervision of other
employees, are not indicia of supervisory authority within the definition of Section
2(11) of the Act. Accordingly, I find that both Flippin and Chapman were included
within the unit during the relevant times.
In his brief General Counsel does not discuss John Burke who was employed as
a sacker from July 31 to September 11, 1964. Burke's employment experience with
the Company during the critical period was as extensive as that of Dickstein and
Lockert, so that if the latter two are properly included in the unit then Burke also
should be included.
On the basis of the foregoing, I find that the Union had obtained authorization
cards from only 10 employees out of a unit of 21 and therefore did not represent a
majority at the times relevant hereto .5 Accordingly, Respondent did not violate
Section 8(a)(5) by refusing to recognize the Union as the majority representative
of its employees within the above-described appropriate unit.
Respondent was opposed to the Union and an issue in this case is whether the
Company's opposition assumed a character and nature as to unlawfully infringe upon
its employees' statutory rights. Respondent became aware of the organizational
effort among its employees on August 10, 1964. Thereafter, Respondent questioned
various employees about their union interest and in at least one instance in a manner
intended to ridicule union supporters. Thus, John Dean testified that in August
1964 Priddy asked him if he had signed a union card mentioning that someone had
said that he had signed such card, and Dean replied that he had not. Sometime
thereafter Rosser 6 asked Dean to sign a paper which would indicate whether he had
signed or would like to sign a union card and which asked "if the main reason you
didn't sign a union card was because you didn't take a bath on Saturday night."
Rebecca Jennings, who signed a union card on August 6, 1964, testified that about
August 12 Rosser asked her if she had signed a union card and she denied that she
had. She also testified that about a week after Esther Trease Langton had been laid
off Priddy asked her if she knew whether Esther had signed a card.
4 General Counsel did not prove that at any time Flippin or Chapman had been advised
that they had authority to recommend the hire or discharge of employees and did not
adduce evidence as to a single specific instance where either had made any such recom-
mendation. Neither Flippin nor Chapman were witnesses and General Counsel's posi-
tion is based almost entirely on the testimony of Priddy. I do not find from this testi-
mony evidence sufficient to establish the supervisory status of Flippin or Chapman I
find no credible weight can be given to Vaughn's testimony that Flippin was "kind of
the head clerk, the leader in the front " Significantly, none of the checkers who testified
at the hearing identified Flippin or Chapman as their supervisor
5In reaching the foregoing conclusion I have not considered various arguments
advanced by Respondent concerning inclusions and exclusions from the appropriate unit
Among other things I have not considered is whether Dorothy Jean Andrews and
Kenneth Wayne Johnson should be included in the unit and whether students who work
part time for the Company should be excluded
6 All reference hereinafter to Rosser are to William E. Rosser
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elgean Cole, who was responsible for the initiation of the organizational activity
among Respondent's employees, testified that between August 20 and 27, 1964, she
began a conversation with Priddy about the Union. She asked Priddy if he knew
who had signed union cards and Priddy said he did not, but he was going to find out.
Priddy also said to her "that if he had to hire 150 people to keep the union out, he
would, that they couldn't have the union." About a week later Cole initiated a con-
versation with Rosser about the Union. According to Cole, "I told Mr. Rosser that
there had been a union man at my house who wanted me to sign a card, and he told
me not to sign it, that they were playing with the union, and he would let me know
how they came out." Again, about 3 weeks later, Cole began a conversation with
Rosser concerning the Union. She asked him if he had found out any more about
the Union. Rosser replied that "he had an idea of who had signed cards" and "that
anyone that he knew of that was participating, they'd have to let them go, something
to that effect."
James Vaughn testified that in August 1964, Rosser asked him if he had signed a
union card. After Vaughn acknowledged that he had, Rosser remarked, "You didn't
plan on working here long, did you?" Vaughn further testified that Rosser also asked
him if anybody else had joined the Union and to Vaughn's response that he thought
some others had joined Rosser remarked that "they would be fired for joining the
union." Later the same day, as Vaughn was passing Rosser in the store, the latter
said to him, "By the way, better have your union dues ready Friday ... It'll be $50."
I find that foregoing instances of interrogation, in the context of the direct and
veiled threats to discharge union supporters, constitued unlawful infringements upon
the rights guaranteed employees by Section 7 of the Act and that such interrogation
and the threats to discharge employees constitute violations of Section 8(a)(1) of
the Act.7
The complaint also alleged that Respondent discriminatorily discharged four
employees. One of the alleged discriminatees is Robert Conaty, who did not appear
as a witness at the hearing. The only evidence in the case concerning the alleged
termination of Conaty is the followin-, testimony given by John Dean.
Q. Do you know Bob Conaty?
A. Yes, I do.
Q. Did he work with you?
A. Yes, he did.
Q. (By Mr. FRISCH.) Was Bob Conaty absent from work?
A. Yes, he was.
Q. Did he come back after his absence?
A. Yes, he did.
Q. Were you present when he had a talk with Gary Priddy after his absence?
A. Yes, I was.
* * * * * * *
Q. (By Mr. FRISCH.) Can you tell me what was said at that time?
A. He asked Mr. Priddy if he could have his job back.
Q. What did Priddy say?
A. He asked him first if he had signed a union card.
Q. What did Conaty say?
A. He said yes.
Q. What did Mr. Priddy say?
A. He said he didn't need him.
Absent evidence concerning the nature of Conaty's absence from work, i.e., whether
he was on a leave of absence or had been terminated, and absent evidence that a
vacancy existed which Conaty was qualified to fill at the time of his alleged request
for reemployment, I do not find the quoted testimony by Dean establishes an unlaw-
ful discrimination against Conaty.
Another alleged discrimination involves Esther Trease Langton. Concerning her
alleged discharge, Langton testified that on a Saturday about 3 weeks after she had
signed a union card Priddy asked her to remain after work because he wanted to talk
to her. According to Langton, Priddy "first sat down by the side of the cash register
and he pointed his finger at me and said, `Well, it all boils down to you.' He said,
'Your work has been slacking off and your attitude has been poor.' Then he stopped
7 Cannon Electric Company, 151 NLRB 1465. Because I find Priddy was an unreliable
witness I do not credit his testimony that he did not interrogate any employees con-
cerning their union membership or activities and that he did not threaten any employees
with reprisals if they joined or worked on behalf of the Union.
HAPPY FOOD CENTER, INC. 709
and I said , `Does this mean that I'm fired ?' He said, `You can take it any way you
like." ' Although not entirely clear from the record , it appears that Langton did not
thereafter report for work . I find that in the described circumstances , Langton
voluntarily quit her employment and was not discharged . Furthermore , Rebecca
Jennings testified that a week later Priddy asked her if she knew whether Langton
had signed a union card. Thus , not only is there no direct evidence that Priddy or
any other principal of the Company knew that Langton had signed a union card at the
time of the above-described conversation , but Jennings ' testimony reflects the fact that
a week later they were still uncertain of the fact.
Finally, there is the question concerning the terminations of James Vaughn and
John Erk who are high school students who worked part time for the Company as
sackers. Both Vaughn and Erk testified at the hearings and in various respects their
testimony was contradictory. However, I find that the following is substantially what
occurred. On a Friday night in late August or early September 1964, Vaughn and
Erk were outside the store taking a break . Earl Stone 8 came out and told the two to
get busy. Later the same evening Stone asked Vaughn and Erk whether they had
plans for the next day and after they said they did not, Stone made a remark to the
effect that you will not be working here long anyway which the two boys interpreted
as notice of discharge .9 The next day they returned to the store and asked Priddy
for their pay. Priddy inquired why they wanted to be paid. (Normally the employees
are paid at the close of business on Saturday .) They replied that they had been
fired the previous evening. They did not tell Priddy who had discharged them or
why they had been discharged. Priddy responded that he did not know anything
about the matter. The boys did not ask whether they might return to work and Priddy
did not tell them they might do so. I find that General Counsel has not proved that
Respondent had discriminatorily discharged Vaughn and Erk . First, Stone had no
authority to discharge the boys and no evidence was adduced ( other than the
unfounded and unsupported statement by Vaughn that Stone was an assistant man-
ager) to establish that either Vaughn or Erk had any reasonable basis for believing
that Stone had such authority. Erk specifically testified that no one had ever advised
him that Stone was his supervisor or boss. Second, on the next day when they
returned to the store and discovered that Priddy did not know they had been dis-
charged they made no effort to ascertain whether they might return to work but only
asked for their pay.10 Third, even taking into account the remark Rosser made to
Vaughn several weeks earlier, General Counsel has not established by the necessary
preponderance of the evidence that the Company was discriminatorily disposed
toward Vaughn and Erk because they had signed union cards. Accordingly, I find
that General Counsel has not proved that the Company discharged Vaughn and Erk
or that their alleged discharges were in violation of Section 8(a) (3) of the Act.
8 At the time in question Earl Stone , who Is older than Vaughn and Erk, was working
part time for the Company . Vaughn testified that Stone was an assistant manager.
Vaughn is mistaken in his opinion that Stone held such position and I find that Gen-
eral Counsel has not proved that Stone was a supervisor or occupied such position with
the Company that the Respondent can be held responsible for his conduct.
90n cross - examination Vaughn testified that Stone 's statement was, "Tonight's your
last night anyway " In view of the fact that Vaughn and Erk were supposed to and did
return to high school on the following Monday, it is questionable whether Vaughn and
Erk were justified In construing the quoted remark as a notification of discharge rather
than merely as a statement by Stone to indicate that their supposed derelictions required
no disciplinary action because they would be quitting their jobs any way.
101 do not consider Priddy 's failure to take the initiative and advise Vaughn and Erk
that they were not discharged as a ratification of Stone's purported act in discharging
them. Furthermore, had Stone discharged the two boys it appears from the record that
It was because they were shirking their work. There is no evidence that Stone had any
knowledge that the boys had signed union cards or that he was hostile toward the Union.
The General Counsel Introduced in evidence the following testimony given by Priddy
in a prior representation proceeding:
Q. And John Erk is in that same category , I think that is what you testified to?
A. Yes, One of the main reasons we let him go is because his language around
customers was a little bit harsh
Q. Did you fire him?
A. Yes, we did.
Accepting the foregoing as an admission It does not establish that Erk was discharged for
any reason relating to his union activity.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
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 , I shall
recommend that Respondent cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1. By coercively interrogating its employees regarding their union membership
or their knowledge of the union membership of others and by threatening its employees
with loss of employment to discourage their affiliation with or support of any labor
organization , Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
3. Respondent has not engaged in any violations of the Act by reason of conduct
alleged in the complaint to have constituted unfair labor practices except insofar as
such conduct has been found heremabove to have violated Section 8 ( a)(1) of the
Act.
RECOMMENDED ORDER
Upon 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 Relations Act, as
amended , I hereby recommend that the Respondent , Happy Food Center , Inc, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating its employees regarding their union membership or
their knowledge of the union membership of others.
(b) Threatening its employees with loss of employment to discourage their affilia-
tion with or support of any labor organization.
(c) In any like or related manner interfering with , restraining , or coercing its
employees in the exercise of their right to self-organization , to form labor organiza-
tions, to join or assist Retail Store Employees Union Local 782, AFL-CIO, or any
other labor organization , to bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any or such activities.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act.
(a) Post at its store in Independence , Missouri , the attached notice marked
"Appendix ." ii Copies of such notice , to be furnished by the Regional Director for
Region 17 , shall, after being duly signed by an authorized representative of the
Respondent , be posted by it immediately upon receipt thereof, and be maintained by
it for a period of 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.
(b) Notify said Regional Director , in writing , whitin 20 days from the date of
receipt of this Decision , what steps Respondent has taken to comply herewith.iz
n In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order " shall be substituted for the fiords "the Recommended Order of it
Trial Examiner" in the notice In the further eient that the P. oaid'. Order is enforced
by -a decree of a United States Court of Appeals, the woids "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order".
' In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read* "Notify said Regional Director , in writing , within 10 daps
from the date of this Order , what steps the Respondent has taken to comply herewith."
HEMISPHERE PROGRESSIVE CORP., ETC. 711
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 NOT interrogate our employees regarding their union membeship or
their knowledge of the union membership of others.
WE WILL NOT threaten employees with the loss of employment to discourage
their affiliation with or support of any labor organization.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Retail Store Employees Local 782, AFL-CIO,
or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
HAPPY FOOD CENTER, INC.,
Employer.
Dated------------------- By'---------------------------------I---------
(Representative) (Title)
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
provisions, they may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone Baltimore
1-7000, Extension 2733.
Hemisphere Progressive Corp ., Hemisphere Press, Inc. and Local
1, Amalgamated Lithographers of America
Hemisphere Progressive Corp ., Hemisphere Press, Inc., Tru-Fit
Offset Plate Corp. and Local 1 , Amalgamated Lithographers of
America and N.Y. Printing Pressmen 's Union No. 51, I.P.P.
& A.U. of N.A., AFL-CIO, N.Y. Press Assistants' Union No. 23,
I.P.P. & A.U. of N.A., AFL- CIO, Parties to the Contracts.
Cases Nos. 2-CA-9860 and 2-CA-10089. August 27, 1965
DECISION AND ORDER
On June 8, 1965, Trial Examiner Paul Bisgyer issued his Decision
in the above-entitled proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor practices, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found that Respondents had
not engaged in certain other unfair labor practices alleged in the
complaint and recommended that the complaint be dismissed with
respect to these allegations. Thereafter, Respondents filed excep-
tions to the Trial Examiner's Decision and a supporting brief and
the General Counsel filed cross-exceptions with a supporting brief.
154 NLRB No. 64.