Park Edge Sheridan Meats, Inc.

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Park Edge Sheridan Meats, Inc.; Park Edge McKinley Meats, Inc.; Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benatovich, d/b/a Park Edge Super Markets, Pro- duce Division ; Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benatovich, d/b/a Park Edge Super Markets, Grocery Division ; Harry Benatovich, Samuel Benato- vich, Louis Benatovich, Hyman Benatovich, and Max Bern- hardt, d/b/a Park Edge Groceries ; Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benatovich, d/b/a Benatovich Bros. and Local 34, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case No. 3-CA-1676. November 1, 1962 DECISION AND ORDER On June 19, 1962, Trial Examiner Thomas F. Maher issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs.' Pursuant to the provisions of ,Section 3(b) of the Act the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed 2 The Board has considered the Intermediate Report and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications and additions.' 1 The Respondent's request for oral argument is hereby denied as the record, exceptions, and briefs adequately present the issues and positions of the parties. 2 The Trial Examiner accepted offers of proof of the General Counsel that each of the employees listed in Appendix C attached to the Intermediate Report, if called to testify, would testify that he or she unconditionally requested reinstatement on June 24 , and that certain strikers listed on Appendix D attached to the Intermediate Report, if called to testify, would testify that they failed to personally apply for reinstatement because they were led to believe it would be futile to do so We do not rely upon such offers of proof. Other probative evidence accepted by the Trial Examiner establishes that unconditional offers to return to work were made on behalf of all the strikers by employee representatives on June 24, 1961. 3 The Respondent contends that the purpose of the strike called by Local 34 , Amalga- mated Meat Cutters and Butcher Workmen of North America , AFL-CIO, on June 15, 1961, was to compel the Respondent to comply with an exclusive recognition agreement which Local 34 had coerced the Respondent to execute by the strike and picketing on June 5, 1961, at a time when Local 34 did not represent a majority of employees in the affected bargaining unit From this position , the Respondent then asserts that the June 15, 1961, strike was an illegal strike, and that the Trial Examiner erred in finding it to be an unfair labor practice strike We do not agree, but assuming, arquendo, that the June 15, 1961, strike was for continued recognition by Respondent , the record does not show that Local 139 NLRB No. 48. PARK EDGE SHERIDAN MEATS, INC., ETC . 749 The Trial Examiner found that Mary K. Tracy, a discriminatee herein, is entitled to reinstatement as an unfair labor practice striker upon her unconditional request for reinstatement. He recommended, however, that she receive no backpay because she had failed to take any steps to appear for her job after she was physically able to re- sume work. We agree that Mary K. Tracy is entitled to reinstatement. However, we also find that she is entitled to a backpay award herein. The record reveals that Tracy was employed at the Respondent's McKinley Market as a part-time meatwrapper from June 1960 through June 1961, and that she participated in the June 15, 1961, strike. On June 24, 1961, unconditional offers to return to work were made on behalf of all the strikers including Tracy, by employee representatives. Subsequently, in August 1961, i racy gave birth to a baby, and on September 5, 1961, as of which date Respondent offered her reinstatement, she was still confined to the hospital. After learn- ing of the offer, she requested her husband to call the Union, and when he did, he was advised to call the Respondent and report Mrs. Tracy as being incapacitated. Tracy's husband thereupon called the Respondent and notified the girl in Respondent's office that his wife was interested in returning to work and that she would notify the Re- spondent when she was permitted by her doctor to return to work. Although Tracy did attempt to vote in a Board-conducted election in late September 1961, it does not appear that she has notified the Respondent of her intention to return to work. Upon the basis of the foregoing evidence it is clear, and we find, as did the Trial Examiner, that Mary K. Tracy is entitled to rein- statement as an unfair labor practice striker who has demonstrated a continuing interest in further employment with the Respondent by (1) having her husband call the Respondent concerning her physical incapacity after learning of the Respondent's telegram offering rein- statement, (2) attempting to vote in the September 1961 Board- conducted election, and (3) participating in the instant case as a claimant for her job. However, as Tracy has not specifically re- quested reinstatement since the Respondent offered to reinstate her in September 1961, we shall provide that the Respondent reinstate her upon her unconditional request for reinstatement. Moreover, the foregoing evidence establishes, and we find, that Tracy was an unfair labor practice striker after June 15, 1961, that unconditional reinstate- ment was sought for all strikers on June 24, 1961, and that Tracy did not become physically incapacitated until sometime in August 34 did not , in fact, represent a majority of the employees in the affected bargaining unit during the critical period. Like the Trial Examiner , therefore , we find that the strikers were unfair labor practice strikers who were entitled to reinstatement when the uncondi- tional requests for reinstatement were made on their behalf. In the absence of exceptions to the Trial Examiner 's treatment of the preelection state- ments in footnote 26 of the Intermediate Report, we adopt such disposition pro forma. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1961. Accordingly, we shall award her backpay for the period of discrimination against her from June 24, 1961, to the date of her physical incapacity. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following amendments : (1) Mary K. Tracy's name shall be added to Appendix E, the list of employees entitled to backpay, which is incorporated in the Trial Examiner's Recommended Order and notice. The period of her back- pay entitlement shall run from June 24, 1961, to the date of her physical incapacity. (2) Mary K. Tracy's name shall be removed from that part of paragraph 2(a) of the Order requiring the Respondent to offer Mary K. Tracy reinstatement, but we hereby order that the Respondent, its officers, agents , successors, and assigns , upon application , reinstate Mary K. Tracy to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, dismissing, if necessary, any employee hired on or after June 15, 1961. (3) Mary K. Tracy's name shall be removed from that paragraph of the notice concerning the reinstatement of DiSarno , Graham, Ginett, Tracy, and Zunner, and the following paragraph shall be added to the notice immediately below the foregoing paragraph : WE WILL offer Mary K. Tracy, upon her application, reinstate- ment to her former or substantially equivalent position , without prejudice to her seniority or other rights and privileges , dismiss- ing, if necessary , any employee hired on or after June 15, 1961, to replace Mary K. Tracy. (4) The date June 15,1961 , shall be substituted for the date June 24, 1961 , in that part of section 2 (a) of the Order requiring the Respond- ent to discharge certain replacements, and the same substitution shall be made in the corresponding paragraph of the notice.' (5) The backpay obligations of the Respondent shall include the payment of interest at the rate of 6 percent per annum , to be com- puted in the manner set forth in Isis Plumbing d Heating Co., 138 NLRB 716 5 ' The Trial Examiner found that the strikers herein were unfair labor practice strikers as of June 15, 1961, the date the strike began. Accordingly, he found that all such strikers who have not been reinstated by the Respondent are entitled to reinstatement, and he properly stated that any such reinstatements should be effected by dismissing, if necessary, employees hired after June 15, 1961 However, the Trial Examiner inadvertently recom- mended in his Order that such reinstatements were to be effected by dismissing, if neces- sary, employees hired on or after June 24, 1961. We have corrected his Order and notice by providing for the dismissal, if necessary , of any employees hired on or after June 15, 1961. B For the reasons set forth in his dissent in Isis, Member Rodgers would not grant interest on backpay, and does not approve such an award here. PARK EDGE SHERIDAN MEATS, INC., ETC. 751 (6) The following note shall be inserted immediately, below the signature in the notice : NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. (7) The penultimate paragraph in the notice beginning with the words "This notice must remain posted ..." shall be changed to read, "This notice must remain posted for 60 consecutive days from the date of posting ..." instead of stating "60 days from the date hereof." INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and an amendment dated August 7 and September 1, 1961, re- spectively, filed by Local 34, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein referred to as Local 34, the Regional Director for the Third Region of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on November 17, 1961, and an amended complaint on January 5, 1962, against Park Edge Sheridan Meats, Inc.; Park Edge McKinley Meats, Inc.; Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benatovich, d/b/a Park Edge Super Markets, Produce Division; Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benatovich, d/b/a Park Edge Super Markets, Grocery Division; Harry Benatovich, Samuel Benatovich, Louis Benatovich, Hyman Benato- vich, and Max Bernhardt, d/b/a Park Edge Groceries; Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benatovich, d/b/a Benatovich Bros., all herein collectively called Respondent, alleging violations of Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer Respondent, while admit- ting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice this proceeding, with all parties present and represented, was beard before Trial Examiner Thomas F. Maher in Buffalo, New York, on various dates between February 19 and March 8, 1962. On April 9, 1962, General Counsel and Respondent filed briefs with me. Upon consideration of the entire record 1 and the briefs of the parties, and upon my observation of each of the witnesses,2 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Park Edge Sheridan Meats, Inc., is a New York corporation engaged in the retail sale of meats and meat products at Respondent's retail store located at 2309 Eggert Road, Tonawanda, New York, hereinafter called Park Edge Sheridan. Park Edge McKinley Meats, Inc., is a New York corporation engaged in the retail sale of meats and meat products at Respondent's retail store located at 942 McKinley Parkway, Buffalo, New York, hereinafter called Park Edge McKinley. I The amended complaint was further amended, in minor respects , at the hearing and the document submitted in evidence as General Counsel's Exhibit No. 1(p), was physically corrected to reflect these amendments. 2 Unless specifically indicated to the contrary, any credibility evaluation I make of the testimony of any witness appearing before me is based, at least in part, upon his demeanor as I observed it at the time the testimony was given. Cf. Bryan Brothers Packing Com- pany. 129 NLRB 285 To the extent that I indicate that I do not rely on or reject in part or entirely the testimony of any given witness, it Is my intent thereby to indicate that such part or whole of the testimony, as the case may be, is discredited by me. Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benato- vich are copartners doing business under the trade name and style of Park Edge Super Markets, Produce Division, and at all tines material herein have been engaged in the retail sale of produce at Park Edge Sheridan. Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benatovich are copartners doing business under the trade name and style of Park Edge Super Markets, Grocery Division, and at all times material herein have been engaged in the retail sale of groceries at Park Edge Sheridan and Park Edge McKinley. Harry Benatovtch, Samuel Benatovich, Louis Benatovich, Hyman Benatovich, and Max Bernhardt are, and have been at all times material herein, copartners doing business under the trade name and style of Park Edge Groceries, and at all times material herein have been engaged in the retail sale of groceries at Park Edge McKinley. Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Bena- tovich are, and have been at all times material herein, copartners doing business under the trade name and style of Benatovich Bros., and are engaged, and at all times material herein have been engaged, in the wholesale purchase of produce and the retail sale of a portion of such produce at Park Edge Sheridan and Park Edge McKinley. Harry Benatovich, Samuel Benatovich, Louis Benatovich, Hyman Benatovich, and Max Bernhardt are copartners doing business under the trade name and style of Park Edge Super Markets, Grocery Division, and at all times material herein have been engaged in the retail sale of groceries at Park Edge McKinley. During the past 12 months, which period is representative of all times material herein, Respondent, in the course and conduct of its business operations, distributed and sold food products with a gross value in excess of $500,000, and for such purposes as detailed above have caused to be purchased and transported to its places of business in interstate commerce directly from States of the United States other than the State of New York, food products of a value in excess of $50,000. Respondent admits and I find that it is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 34 is a labor organization within the meaning of Section 2(5) of the Act and I so find . Local 212, Retail Clerks International Association , AFL-CIO, herein called Retail Clerks, is a labor organization within the meaning of Section 2(5) of the Act, and I so find. III. THE ISSUES INVOLVED 1. The ingredients of an unfair labor practice strike. 2. The discriminatory failure to reinstate unfair labor practice strikers. 3. The effect of unconditioned requests to return to work made in behalf of all, strikers. 4. The effect of Respondent's failure to discharge employees allegedly for cause- before they go on strike. 5. The burden upon strikers, as backpay claimants, to establish that they were available to work, when called. 6. Respondent's obligation to make whole unfair labor practice strikers for the period during which they are on strike. IV. THE UNFAIR LABOR PRACTICES Introduction An outline of the substance of this case is desirable as a guide to what follows- and is set forth here, not as a substitute for specific findings, but for the better understanding of those which follow. When Local 34 appeared Respondent took certain action calculated to avoid dealing with it. Principally, it indulged in efforts to dissuade the employees from their choice, and it actively participated in bringing into their organization another labor organization, the Retail Clerks. Local 34, however, to counter this opposition, to solidify the recognition it had already been granted, and to protest Respondent's inter- ference with the employees' organizing rights as well as its assistance to the Retail Clerks, called a strike on June,15 (not to be confused with an earlier, 1-day strike on June 5, called for the purpose of recognition). As the Retail Clerks had mean- while gained sufficient employee support to warrant a Board election it filed a- PARK EDGE SHERIDAN MEATS, INC., ETC . 753 representation petition with the Board 3 and an election was held on June 21. The results of the election were inconclusive because of the substantial number of voting challenges and the filing of objections. Meanwhile on June 21 the employees voted to return to work, but when, either individually or through their representatives, they presented themselves for work Respondent informed them they had been permanently replaced. The strike, briefly curtailed, was resumed. Again on August 21 the employees requested their jobs, this time by letter from Local 34 to Respondent, and on September 5, with certain exceptions to be considered individually, they were recalled by Respondent. Because the nature and purpose of the strike determines the rights of the striking employee to his job upon unconditional request for it,4 the relationship of Respond- ent's conduct, by way of interference with the employees and assistance to the Re- tail Clerks, becomes highly significant, not only as it may explain the reason for the strike in the first instance, but as it may explain the reason for the strike's prolonga- tion. The chronology which follows is set forth with this in view. A. The nature of Respondent's operations Respondent operates two supermarkets under the trade name "Park Edge," one referred to herein as the Sheridan Market, and the other as the McKinley Market. Each has the usual operational departments common to such retail establishments, with the Sheridan Market being under the general supervision of Respondent Hy- man Benatovich, and the McKinley Market under Respondent Samuel Benatovich. In addition Respondents Louis and Harry Benatovich, as partners in corporate offices, were active in the operation of the overall business. Prominent in their relationships with employees during 1961, all of whom I find to be supervisors within the meaning of the Act, were: McKinley Market-Al Lettman, grocery manager and buyer (companywide), Herbert Benatovich, produce depart- ment manager, Sanford Cohen, grocery department manager, and Mary Bonifacio, supervisor of cashiers; and Sheridan Market-Edward Kostecki, meat department manager, Steve Lakomski, grocery department manager,5 Chester Dimitroff, grocery department supervisor, and Mildred Gaik, produce department supervisor.6 B. The advent of Local 34 Organization among Respondent's employees had commenced by mid-1960 and between then and June 1961 , six or eight employee meetings were held with substan- tial numbers attending and signifying their wish to join Local 34. By June 1961, Local 34 became sufficiently established to seek recognition as the employees' rep- resentative and negotiate a collective agreement. By June 5, however, tension had developed to a critical degree and resulted in the calling of a short-lived strike which appears to have had recognition as its objective. Intermixed with the basic purpose of this strike, however, were overtones of protest over the discharge of employee Hazel Bauman . Miss Bauman had been active in the introduction of the Union to the employees and had signed up several. On June 1, she solicited the membership of a fellow employee, Millie Everett. Where- upon another employee, Helen Kasprzak, was sought out by Respondent Louis Benatovich and asked what she knew of union activities about the store . Benatovich then told her that the cashier, Everett, had been solicited by a girl in the meat department. Thereafter Everett was called to the office and, after considerable hesitancy, named Bauman as the one who had solicited her Local 34 membership. On the following day employee Kasprzak was again questioned; this time over the telephone by Respondents Hyman and Sam Benatovich, both of whom asked her if she was aware of Miss Bauman 's Local 34 card solicitation. Thereafter on June 3, at the close of the day, Miss Bauman was discharged by Supervisor Kostecki for the stated reason that there was insufficient work. When she protested that she possessed Case No 3-RC-2643 ( not published in NLRB volumes). 4 ti L.R B v Mackay Radio & Telegraph Co., 304 U.S. 333, 346. B Respondent's answer admits that the foregoing are supervisors within the meaning of the Act, but, except as to Lettman , denies that they are Respondent 's agents In view of their admitted supervisory status I find it unnecessary to belabor their alleged lack of agency. 0 Respondent denies the supervisory status of Dimitroff and Gaik The Board , however, by Decision , Order, and Direction of Election dated September 7, 1961, in Case No. 3-RC- 2643 ( not published in NLRB volumes ), involving the employees herein , has, over Respond- ent's exception , sustained a finding that both are supervisors. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more seniority than the other girls in the department Kostecki told her, "I got orders from the office," and paid her off.7 Thereafter Local 34 called a strike among the employees at both stores for the purpose of obtaining recognition,8 and after a day of picketing, Respondent, through its attorney, executed an agreement providing for the cessation of picketing, the recog- nition of the Union as representative of a majority of the employees, and arranged for the commencement of negotiations directed toward a collective agreement. The strike was thereupon called off and Hazel Bauman was returned to her job after losing a day of work, which day she spent on the picket line. C. Respondent's reaction to the Union While Local 34 was perfecting its final arrangements for recognition, and there- after while it enjoyed Respondent's tenuous blessings in this respect, Respondent's officials and supervisors were actively engaged in undoing whatever amicable rela- tions it had established by its June 5 recognition agreement. The details of this activity follow. 1. Interference, restraint, and coercion In addition to the earlier questioning of employees Everett and Kasprzak about employee Bauman's Local 34 activity by Respondents Louis, Sam, and Hyman Benatovich, as detailed above, other instances of the same character, by other management representatives, followed thereafter. Thus, on June 7 Hyman Bena- tovich sought out employee James Lawton and, after a conversation in which it was suggested that Lawton's sparse seniority would be detrimental to him "if this Union gets in," Benatovich asked him if he was going to a union meeting scheduled for that evening.9 Thereafter, on June 10, Hyman Benatovich called employee William B. Miller aside and asked him if he had signed a Local 34 card and Miller replied that he had. Significantly Miller's work schedule was reduced on the following week from 40 hours to 32 hours, and when he questioned Benatovich concerning it he received the reply that he "had pulled a dirty trick on him" and "one bad favor deserves another." 10 And again on June 15 employee Miller had a second encounter with management, this time with Supervisor Mary Bonaficio, who asked him if he had joined the Union or signed a card. And when he answered in the affirmative she inquired, "Why?" 11 During the same period, June 5 through 15, representatives of Respondent were heard to describe the dire consequences of adherence to Local 34. Thus Supervisor Dimitroff told employee Adelbert Collopy that Local 34 would not cover bag packers (a misstatement) and they would lose their jobs; and he told employee Andrew Kuziomko that he would not get full-time work if he "stuck" with the Union, and Respondent would cut part-time hours to the minimum permitted by the contract.12 During the same period, Respondent Herbert Benatovich told employee Miller that 7 The toregoing account is a composite of the credited testimony of Hazel Bauman and Helen Kasprzak. Neither Everett, Kostecki, nor Louis Benatovich were called as witnesses, and neither Sam nor Hyman Benatovich were questioned concerning this particular incident e Although Bauman was discharged for her activity in behalf of Local 34 and there is more than a suggestion that the strikers were protesting in her behalf, there is no allegation that this was anything but a strike for recognition and I limit my findings accordingly. 0 The undenied testimony of Lawton. 10 The credited and undenled testimony of employee Miller. 11 In addition to the foregoing instances of employee interrogation there Is also evidence that employee Bartok was asked by Hyman Benatovich "If she had heard anything?" Regardless of the context in which It was asked , such a question cannot suggest anything but idle curiosity as to matters generally , and I so find. There is also employee Carosi's credited testimony that on June 24 Supervisor Kostecki asked him how he voted in an election conducted by the Board. While this incident does not differ In nature from any of the others found above I do not include it with them, coming as it does after June 15, the date of a strike to be considered in detail hereafter. "' The credited testimony of the employees to whom the statements were made. When his recollection was refreshed, employee Lynch testified to the statement made to Collopy. Upon my observation of him, I do not rely on employee Schoen 's testimony of a similar statement made to him. PARK EDGE SHERIDAN MEATS, INC., ETC. 755 if Local 34 got in they would cut the help and the hours in half,13 and employee Robert Scarozza was told by Manager Cohen that there would be a cut in the schedule unless the proposed strike was called off and a company union was formed. He further stated that "he was going to have to get rid of some guys if the Union did come in and the only ones he would give hours would be good help, with the ones that stuck with him." 14 2. Assistance to the Retail Clerks For reasons not explained in the record, Respondent preferred the Retail Clerks over Local 34 which it had already recognized by the June 5 agreement. Its feelings in this respect were manifest by conduct of its officials and the supervisors who urged the employees to forsake Local 34 and join the Retail Clerks. Thus, prior to June 15, Grocery Department Manager Lakomski and Supervisors Mildred Gaik, Chester Dimitroff, and Mary Bonifacio sought out numerous employees and requested them to sign membership application cards for the Retail Clerks. The employees credibly testifying without denial to solicitation of applications from them were employee James Krier by Lakomski; employees DeGain, Hoffman, and Rose by Supervisor Gaik; 15 employees Collopy, Kuziomko, Lynch, and Krier by Chester Dimitroff; 16 and employees Lawton and Amelia Shear by Supervisor Bonifacio. In the process of their recruitment of members for the Retail Clerks, the super- visors and officials undertook the alternative project of suggesting the formation of a company union. In this respect Respondent received unsolicited, but not un- welcome, assistance from one Edward Berger, the father of one of the employees, who addressed a hastily assembled gathering of employees in one of the offices, and presented an impassioned tirade against Local 34, suggested that the employees get out of it, and urged that a committee be formed with a view to forming a company union which would be just the sort of arrangement that would make everyone happy. Actively herding the employees into this meeting, and standing by as Berger gave his talk, were Respondents Sam and Herbert Benatovich, and Supervisors Lettman and Bonifacio.17 Thereafter Supervisor Bonifacio spoke to the assembled employees urging them to revoke their Local 34 membership. Following the meeting several employees, including Colleran and Miller, were brought into a smaller office where they were urged by Lettman and Respondents Herbert and Sam Benatovich to form a committee as the beginnings of a company union. In addition to this Respondent Sam Benatovich, on a number of occasions, suggested to employee Miller that it would be wise for him to get out of the Union; and Bonifacio asked employee Shear to circulate for signatures among the employees a "petition to revoke our membership in Local 34." 19 Similarly, during the same June 5 to 15 period, Respondent, as an implement to its campaign to get employees out of Local 34, offered inducement to them for their change of heart. Thus employee Kuziomko credibly quotes Supervisor Dimitroff as assuring him that part-time people wishing full-time work would get it if they got out of Local 34. And even as the employees were walking out of the McKinley Market to join the strike Herbert Benatovich called to them to come back, that things were "going to be straightened out, Sam was going to do the thing all right." 19 1" The credited testimony of Miller. Similar testimony by employee Lawton was adduced after opportunity was given him to refresh his recollection by referring to a statement previously given. 14 The credited testimony of Scarozza. He also testified that Manager Lettman had previously told him, in the course of urging a company union, that there might be a cut- back in help. Lettman was not specific, however, as to how or why this would come about, and I do not rely upon this incident. 15 Employee Priscilla Heckman likewise testified to receiving a card from Gaik but her recollection of the nature of the card was so incomplete that I do not rely upon her testimony. 18 As I do not credit him generally, I do not rely upon employee Schoen's testimony that Dimitroff also solicited his membership. 17 The credited and undenied testimony of employees Colleran, Miller , and Scarozrii. 18 Shear's credited, undenied testimony 19 The credited testimony of employee Shear. There is also testimony by employee Miller of offers of a pay raise made to him by Herbert and Sam Benatovich , and testimony of 672010-63-vol 139-49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And finally on June 14, prior to a Local 34 meeting being called to discuss the possibility of strike action, Respondent Herbert Benatovich sought out employee Patricia Smith and asked her to go to the meeting and report back to him "everything that went on and what happened." This Miss Smith refused to do.20 D. The strike Active among the employees promoting Local 34 was Myles Lyons, meatcutter at the McKinley Market. Throughout the spring of 1961 Lyons solicited member- ships and actively participated in union meetings. On June 12, Lyons called Lo- cal 34's vice president, Smith, to express his concern with developments at both of the markets. Lyon's credited account of his action follows: I told him that I thought we ought to have a general union meeting because the employees inside were being harassed by the different supervisors, were being taken individually in the corner and talked to, and Local 34 was being discussed pro and con, and they were being pressured to sign cards for Local 212, and he said, "Well, I will try to arrange a meeting for Wednesday night." Accordingly, with picket lines established, the strike got under way on the morning of Wednesday, June 15. Thus, according to Lyons: On the day of the strike at approximately two o'clock in the afternoon Gerald Smith appeared at the Park Edge McKinley store and the employees left the store and went in the parking lot to talk to him and we talked in the parking lot and we wanted to know if we could cross the picket line that morning because there was a picket line at the store and we wanted to know the reasons for it and he gave us the reasons, the reasons that he had all these phone calls from different ones that were being harassed at the store, being approached about Local 34 and being pressured into signing cards for Local 212, plus the fact that 212 through the help of the company had obtained enough signatures for a petition for an election that day and we talked on the lot pro and con. In fact, myself, I wanted everybody to go back to work, but the majority said they felt they should stay out right then because if they went back in the store, they didn't know what was going to happen to them. TRIAL EXAMINER: Is this Wednesday morning? The WITNESS: Thursday morning, I believe. TRIAL EXAMINER: Had you had your meeting yet? The WITNESS: No. The meeting was going to be Thursday night; I, myself, if I can go on further, I, myself returned to the store at that time, the Meat Cutters, we went back and put the meat away, which we were working on. On June 15th, we had a union meeting at the Steel Workers' hall. That was the night of the strike .and after everything was explained fully and they all voted to stay out on strike or all agreed to stay out on strike. [Emphasis supplied.] It was explained about the amount of telephone calls he had had coming from individual employees in the store telling about being called into meetings, being pressured to forget about Local 34 or to sign with the Local 212, and everybody heard the explanation and then they were asked if there was anything further, if there was anybody else had any complaints and it was amazing the amount of people that stood up, that they had complaints that had never revealed them before. Q. Complaints of what nature? A. That they were called aside individually and wanting to know why they were having anything to do with the union or were asked to sign cards for Local 212. employee Cartonia of monetary gifts by Hyman Benatovich There is no definitive show- ing of the purpose of these gifts and I find nothing in the context of circumstances that would warrant an inference that they were made for an improper purpose, as were the promises referred to above in the text o There is also testimony in the record by employee Chester Samara concerning an earlier incident of the Benatovichs being observed near the locale of a union meeting. The witness claims to have recognized Herbert Benatovich at a distance of 60 feet, seated in a truck, in a lighted parking lot Because of the inherent improbability of such an identi- fication, as well as my general impression of the witness, I do not accept this testimony as evidence of unlawful conduct on the part of Herbert Benatovich or anyone else. PARK EDGE SHERIDAN MEATS, INC., ETC. 745 7 Q. (By Mr. LuxscH. ) Do you recall the names of any of the people who made the complaints? A. Well, Mollie Shear for one person, she complained about being called into a meeting by Mary Bonifacio talking to her and claiming about her being mixed up a union; Dan Colleran. A total of 98 employees at the Sheridan and McKinley Markets went on strike at this time 21 E. The intervening representation proceeding As a consequence of the Retail Clerks' membership campaign and Respondent's active efforts in its behalf a sufficient showing was made to warrant the filing of an election petition in Case No. 3-RC-2643 , on June 15, 1961, significantly the day on which the pickets appeared in front of both markets and on which the Local 3" meeting was thereafter held at which the employee members voted to strike. An election pursuant to stipulation was thereafter conducted on June 22 , with incon- clusive results due to an excessive number of challenges made to the votes of those who had replaced the striking employees, and due also to a number of challenges to the conduct affecting the outcome of the election 22 F. Further interference, restraint, and coercion Respondent did not relax its efforts to dissuade the employees of their allegiance to Local 34 as the strike continued. This was particularly evident during the period between June 15 and 22, the date scheduled for the election. Thus Supervisor Bonifacio spent a considerable amount of her time talking with the employees on the picket line. On one occasion she told employee Colleran and others to "go look for another job," and on another time told him that he "would never work there again." 25 Similarly, about the same time, in a conversation with employee Shear and others, she heckled the pickets by assuring them that the exercise would help their fat legs that they "looked pretty and to keep it up," and inquired if they were getting their usual coffee breaks. She then told Shear and her fellow pickets "she'd like to bash our heads in." 24 During the same preelection period one Michael Subkoviak applied for work as a strike replacement , was hired, and actually voted in the election under chal- lenge. As he was being hired Respondent Hyman Benatovich told him "he wasn't absolutely sure how long he could employ me because if the Union did get in I might lose my job." 25 After the election Meat Manager Kostecki's zeal was no less. When he spoke to employee Carosi who was then seeking his job back, fol- lowing a sick leave (supra, footnote 21, infra, footnote 34), he asked Carosi if he had voted in the election, and how he had voted; to which Carosi replied it was none of his business . Carosi was thereafter informed by Respondent Hyman Benatovich that he had been permanently replaced , having failed to "see him" before the voting, thus "going about it all wrong." 26 G. The strikers' offer to return to work Upon learning of the inconclusive outcome of the election a Local 34 meeting was held on June 23, at which time it was voted that the employees would offer to 21 The names of the strikers are listed in Appendix B of this report. Contrary to the stipulation of the parties it does not include the name of employee Fred Mario Caroni who credibly testified that he was on sick leave between May 18 and July 24, 1961, and there- fore was not capable of being a striker, at least for such period. Whether Respondent mistakenly considered him a striker at some later date, or whether he joined the strikers at some later date, are subjects for consideration elsewhere in this report (infra, footnotes 28, 34, and p. 761). The list also properly excludes James Brier who credibly testified he was out on workmen's compensation as of the date of the strike and never offered to return to work thereafter 22 Melvin Rupp, d/b/a Rupp Equipment Co., 112 NLRB 1315, footnote 2. 22 The credited, undenied testimony of Colleran. 24 The credited, undenied testimony of Shear. 25 The credited, undenied testimony of Subkoviak . As he is a strike replacement he is not involved in any claim for reinstatement or backpay. 2' In his brief General Counsel suggests that two preelection statements of Respondents Sam and Hyman Benatovich constitute unlawful promises of benefits Thus Sam exhorted an assemblage of employees to "stick by us and you'll always have a job" ; and Hyman promised "to be more considerate in the future " In the most unfavorable of contexts I could not class these as being any more serious than speeches against sin or favoring motherhood or an early spring. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD return to their jobs. On the following morning, Saturday, June 23, representatives selected by the striking employees entered each of the markets and sought out representatives of management. The picket lines were withdrawn at the same time.27 Employee Lyons, accompanied by 10 or 15 employees including Miller, Shear, Kor- wek, Caroviski, Vujamovich, and Dures,28 entered the McKinley Market and met Respondent Sam Benatovich near the checkout counters. Lyons, speaking for the group, stated that "We are here to return to work." Whereupon Benatovich re- plied, "There is no job available. You have been permanently replaced." Lyons then requested the paychecks for the group and was directed to await them outside the door.29 Thereafter Aloisio, Colleran, and Scarozza, with the former as spokes- man, entered the market, made the same request for their jobs, and were told by Sam Benatovich that they had been permanently replaced, and were thereupon paid off.30 In addition the other strikers at the McKinley Market appeared for their jobs at this time and were refused and paid off.31 Employee Lyons' credited account of this occasion best describes it and what followed thereafter: Well, there was some people went in to report to work and they all received the same answer, they were permanently replaced, there was no job available for them. There was approximately, I would say, thirty-five to forty that was there for the pay a few minutes after nine when they brought the pay down at the door, and during the day there was more people came in and went in and obtained their pay. Then we resumed picketing because we had been refused our jobs. Meanwhile at the Sheridan Market, Local 34 Representative Waters informed the pickets that the McKinley employees had gone for their jobs and suggested they should do likewise. Whereupon employee Jakubczak, accompanied by DeGain and Turner presented themselves to Respondent Hyman Benatovich and, stated, "We are here to speak for all the people on strike; we are all ready to return to our jobs unconditionally." 32 Benatovich replied that they had all been permanently replaced, whereupon pay checks and personal effects of the striking employees were delivered to them outside the market. Thereafter, upon prior instructions from the union representative, Jakubczak notified all the striking employees of their permanent replacement.33 In addition to the foregoing credible accounts upon which I find that the striking employees, all listed in Appendix B herein, by selected representatives, offered unconditionally to return to work and were refused, being told they were permanently replaced, 34 I also accept an offer of proof made by General Counsel that if all the striking employees listed in Appendix C, herein, as '° The credited testimony of employee William Miller. I do not credit Sam and Hyman Benatovich's denials of this fact 28 Lyons also included Mario Carosi in this group. Whether lie was there as an inter. ested spectator or Lyons erroneously included him is not material Carosi credibly testi- fled he did not apply for his job until July 24, at which time he was refused (supra, foot- note 21, infra, footnote 34). £9 The credited testimony of Lyons, corroborated by Millet and Shear. Upon my obser- vation of him I do not credit Sam Benatovich generally. Specifically I reject his account of the incident in which he denies, among other things, that he stated to the employees that they had been permanently replaced or that the offer was not unconditional. Nor do I attach significance to his protestation that the offer to return was actually a tactic to harass Respondent on a busy Saturday morning. Coming as it did immediately after the lost election and vote to return I find the timing was reasonable. Nor do I consider the group appearance inside the front door to be harassment. Certainly the front door is a usual and obvious place of entry and, if the store was as busy as Benatovich claimed it to be, then none of the unused grocery carts would have been stored in that area at that time, as he claimed they were. These carts should then have all been in use by the many customers he claimed were in and about the store. I therefore specifically reject the con- tention that the employees' offer to return was a form of harassment. 88 The credited testimony of Colleran and Scarozza 31 Employee Ginett credibly testified to her own application and rejection at this time. 22 The credited testimony of employee DeGain. 33 The credited testimony of Jakubczak, corroborated by employees DeGain and Turner. Upon my observation of Hyman Benatovich as a witness, I do not credit his denial of this or other conduct and statements attributed to him. 84 This does not include employee Mario Carosi who did not apply for reinstatement until July 24, and was told he had been permanently replaced as he had failed to see Respond- ent Benatovich before voting in the earlier election in which Carosi had voted while on sick leave (infra). PARK EDGE SHERIDAN MEATS, INC., ETC. 759 well as employees Tracy and Disarno not so listed, were called to testify they would state that they individually appeared at the McKinley Market on June 24, uncondi- tionally offered to return to work , and were informed by the Respondent that they had been permanently replaced.35 Wholly apart from the personal appearance of individual strikers to request their jobs and the several requests made by chosen representatives in behalf of all the strikers, a number of strikers testified to having heard individually or through their group representatives that strikers had been refused their jobs because of permanent replacement . They did not themselves apply for reinstatement, con- sidering it a useless gesture. Employees Lawton and Sarama so testified credibly and I now accept an offer of proof made for the same purpose previously stated (footnote 35) with respect to similar expected testimony of the striking employees listed in Appendix D. Following Respondent's rejection of their offer to unconditionally return to work the employees immediately thereafter resumed their strike and the picketing of Respondent's premises.36 It continued unabated through September 1, 1961. Mean- while on August 21, 1961, Local 34 reaffirmed the employees' earlier oral offers to return to work, including Mario Carosi's July 24 offer. Thus in a letter to Re- spondent acknowledged by it as an unconditional offer to return , Local 34 stated: This letter constitutes a reaffirmation of oral offers to return to work here- tofore made by the striking employees at your places of business. The Union, on behalf of the striking employees , unconditionally offers that these employees will return to work upon request by the employer. Thereafter on August 31 a telegram was sent to each striking employee stating: In view of the unconditional offer to return to work made in your behalf by Local 34, Amalgamated Meat Cutters Union, you are requested to report for work Tuesday morning, September 5. (S) BENATOVICH BROTHERS, PARK EDGE MARKETS.37 H. Conclusions respecting the Respondent 's statements, conduct, and activities The activities indulged in by Respondent's officers and supervisors, as found herein,38 present a resume of the classic forms of employee interference , restraint, and coercion. Thus employees were questioned concerning their Local 34 member- ship and activity, threatened with reprisal for their continued adherence to it, and to the strike which it was sponsoring, urged to engage in surveillance of its meeting and to withdraw their membership in it, rand promised rewards for their efforts against it. Citation of authority is quite unnecessary to conclude as I do that such conduct is proscribed by Section 8 (a) (1) of the Act. Similarly, the evidence clearly establishes that while all of the foregoing was taking place, Respondent's officials and supervisors were exhausting their best efforts to as This offer applies to witnesses not called , or pursuant to my instructions not ques- tioned on this matter. It was made by General Counsel at my suggestion and noted in the record over Respondent 's objection This was done in the interest of expedition and conservation of time and expense to Respondent and the Government . It is now accepted in lieu of repetitive testimony for the same purpose. Sunbeam Lighting Company, Inc., 136 NLRB 1248. sa Credited testimony of employees Lyons and Miller. 37 The following I find did not receive such a telegram : Pauline Disarno , Rose Ginett, Walter Graham , and Nancy Zunner. Betty Propster did not receive a telegram either but, as I conclude hereafter (infra ) she did not work immediately prior to the strike nor did she or anyone else testify that she participated in the strike. as By way of summary the following commentary on resolution of credibility is made : Throughout this report I have specifically noted, by appropriate footnote reference, the basis upon which findings have been made . Frequently, however, the recollection of witnesses at the hearing was refreshed by reference to previously adopted statements. Unless I have noted the contrary, nothing herein is based upon such refreshed recollection Fuithermoie , unless specifically noted otherwise , I have not relied upon the testimony of Gerald Smith, Jarosz , Schoen, Heckman , and Samuel and Hyman Benatovich And finally, to place the conduct attributed to them in the proper prospective, and to further assess the credited testimony upon which findings respecting them had been made, it is to be noted that the following did not testify at the hearing : Kostecki, Lettman, Cohen, Gaik , Dimitroff, Bonifacio , and Herbert and Louis Benatovich. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD promote the rival interests of another organizatic.i, the Retail Clerks. It is well established that in matters involving the employees' selection of their bargaining representatives an employer may assume no other position than a neutral one. It is clear throughout the whole record in this case, however, that Respondent was never neutral. On the contrary, the assistance disclosed by the credited testimony herein and detailed above demonstrates that the Respondent, by its urging of mem- bership in the Retail Clerks, as well as by its encouragement of employees to with- draw from Local 34, assisted the Retail Clerks immeasurably, indeed to a defeat of Local 34 in the election. Respondent thereby violated Section 8(a) (2) of the Act, and also thereby further interfered with, restrained, and coerced the employees in violation of Section (a) (1). 1. Conclusions respecting the strike- its causes and the consequences A review of the credited findings made above discloses that when the employees of the two markets walked out on July 15, and that evening voted to stay out, they did so as a protest as well as a demand that the Union be recognized, as previously agreed to (supra) 39 That it was a protest is clearly established by the testimony of employee Lyons, detailed above (supra). Thus it had been reported to the union president that employees "were being harassed at the store," "pressured into signing cards for Local 212," and "being called into a meeting by Mary Bonifacio." 40 Further, "it was amazing the amount of people stood up, that they had complaints that had never revealed them before." "And after everything was explained fully and they all voted to stay out on strike." Respondent's unfair labor practices "provide adequate ground for the orderly strike that occurred here. Under those circumstances, the striking employees do not lose their status and are entitled to reinstatement with backpay, even if replace- ments for them have been made." 41 Nor is it of consequence that other causes, economic in nature, also contribute to the calling of the strike , so long as it has been established that the unfair labor practices "had partly caused the strike." 42 As previously noted, rights to reinstatement and backpay are fixed upon the strikers' unconditional request to be taken back 43 It remains to be determined, therefore, whether this did in fact occur. As the facts demonstrate, it was determined by Local 34 and conveyed to the employees that, having lost the election, they should go back to work, and the leaders were selected to accomplish this end. Thus at the Sheridan Market employees Jakubczak, DeGain, and Turner unconditionally offered in behalf of all of the striking employees to return to their jobs, as did employee Lyons at the McKinley Market, and numerous other strikers either in company with the above, or individually. The evidence is equally clear that these offers were rejected by Respondent with the reply in every case that the strikers had been permanently replaced. When, thereafter, the striking employees resumed their strike, called off for the purpose of making their offer to return, I conclude and find that the strike then partook of an unfair labor practice character for the additional reason of protesting Respondent's blanket refusal to reinstate the group, or any of them. And in this respect I am not persuaded of the merit of Respondent's contention that the offer was not a sincere one but merely a device to heckle it on a busy Saturday morning. I know of no case that requires a precise setting or a specific time of day for the stopping of a strike and the requesting of job reinstate- ment. The pickets did the only thing the law would expect of them. They stopped picketing and went in by the front door of the market and asked for their jobs back. And indeed if they had proceeded as a group beyond the front area of the store, which they did not, or sought to enter by a rear door, they well might have been accused of creating obstruction in the selling aisles, or of attempting to use un- authorized entrances . Under all the circumstances, I find and conclude that the requests were made properly and as found above. Upon the rejection of their requests, the picket line resumed, while word filtered down through the ranks that they had been replaced. Accordingly, many strikers, The purposes of this July 15 strike are not to be confused with the stated purposes of the June 5 strike, which was concededly for recognition only. „' This evidence is corroborated by Acting Union President Smith, whose testimony I find it otherwise unnecessary to rely upon. Al Mastro Plastics Corp., et al. v N L R B , 350 U.S. 270, 278 4'4N.L R B. v Samuel J. Kobritz, d/b/a Star Beef Company, 193 F. 2d 8, 16-17 (C.A.1). General Drivers and Helpers, Local 662 (Rice Lake Creamery) v. N.L R B, 302 F 2d 908 (C.A.D.C ). 43 Ibid PARK EDGE SHERIDAN MEATS, INC., ETC. 761 their names being listed infra in Appendix D, deemed it to be a useless gesture to personally apply for their jobs, and consequently they resumed the strike 44 Upon the foregoing it is abundantly clear that the employees were engaged in a strike which, in part, was being prosecuted as a protest of the employer's unfair labor practices, and that the strike was thereafter prolonged by the Respondent's summary dismissal of them by informing them on June 24 that they were perma- nently replaced.45 While there is conceded evidence that a further unconditional request was made of Respondent in August, I find this only to be a reaffirmation of the original and crucial one of June 24. On that day each striker's right to im- mediate reinstatement vested, regardless of whether or not he had been replaced. Having then refused the strikers their jobs Respondent thereby discriminated against them in violation of Section 8(a) (3) of the Act, and I so find. J. Individual instances of discrimination and alleged discrimination 1. Hazel Bauman Hazel Bauman, the employee in the Sheridan Market meat department who was discharged following her solicitation of Local 34 memberships (supra), was clearly a victim of Respondent's efforts to impede Local 34's organizing campaign. This is particularly evident from the selection of Bauman for discharge at such a critical period of employee organizing activity, without reason and without regard to her seniority among those available for a reduction in force. Moreover, Respondent's interrogation of Bauman's fellow employees concerning her union activities crystalizes my impression that she was discharged for reasons of Local 34 membership and activity. I accordingly find that Respondent has thereby violated Section 8 (a) (3) by discharging Hazel Bauman on the evening of Saturday, June 3, 1961. 2. Catherine Bartok In addition to the discrimination which she suffered by virtue of alleged permanent replacement on or before June 24, Catherine Bartok testified that following her re- turn to work after the 1-day strike on June 5 her hours were altered to her detriment. Thus, whereas she had worked 4 days in the cheese department and 1 day (Friday) in the meat department for a total of 40 hours per w, ek before June 5, she claims she was given less hours to work per week thereafter, and what appears equally up- setting to her, she is being deprived of an opportunity to work "in cheese," a treasured assignment. Bartok's claim of receiving fewer hours after the strike than before does not com- port with her timecards whose accuracy I have no reason to doubt. Thus, in no week during the first quarter of 1961 did she ever work more than 33 hours. If, therefore, she received more time during April, after she had joined Local 34 and was thereafter "cut back" to a figure still higher than her previous time, she can hardly be heard to complain that she has suffered. Furthermore, I fail to see what, if any, hardship she suffered by being recalled to wrap meat rather than to cut and wrap cheese. Under all the circumstances, there- fore, I would recommend that so much of the complaint as alleges this additional discrimination against employee Bartok be dismissed. 3. Mario Carosi Interspersed throughout this report are references to Mario Carosi, a cutter in the meat department (supra, footnotes 21, 28, 34). To avoid confusion as to his case I shall summarize it at this point. Carosi was on sick leave when the strike occurred and therefore was not a striker and is not listed as a striker in Appendix B.46 It follows, therefore, he was not one of those for whom unconditional reinstatement could have been sought on June 24, 44 Although numerous strikers so testified and I accept an offer of proof that the remain- ing individuals listed in Appendix D would have likewise testified, I find and conclude that their personal request would have been unnecessary in view of my earlier finding that employees Jakubczak and Lyons had already spoken in behalf of all the strikers. I there- fore rely upon the evidence of futility of the offer only as support for the established fact that a general offer was made 48 Employee DeGain credibly testified : "If he had hired all of us back ; we all would have went back into work ; there would not have been a picket line." 4e In this respect Carosi's vote in the June election is not evidence upon which I can infer participation in the strike then in progress. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD irrespective of the fact he may have been physically present at that time (supra, footnote 34). Indeed, any finding of a request in his behalf then would be rebutted by the personal request he did make a month later, on July 24. On this occasion Hyman Benatovich, in the course of telling him that he had been permanently re- placed, also told Carosi that failing to have seen him before voting in the June elec- tion was "going about it all wrong." Clearly Respondent believed, however mistakenly, that Carosi had been one of the strikers, or at least that he had made common cause with them. In either event it may reasonably be inferred that Carosi was persona non grata for his affiliation with the Union. Accordingly, I conclude and find that by its action of July 24, Respond- ent discriminated against Mario Carosi for reasons proscribed by Section 8(a) (3) of the Act, regardless of his earlier absence from participation in the unfair labor practice strike. 4. Pauline Disarno Pauline Disarno, hired after the June 5 strike, and a participant in the June 15 strike, worked a total of 9 days and received no notice to return. It is Respondent's contention, supported by Respondent Sam Benatovich's testimony, that this employee did not satisfactorily perform her job of wrapping meat. Specifically it was found that meat packages known to have been wrapped by her leaked-a condition to be deplored by any customer with such a package in a full bundle of groceries. Although I have rejected Respondent Sam Benatovich's testimony generally, I p.m disposed to accept his explanation for failing to recall this employee. This I do upon the testimony of Disarno herself. Thus she testified she was inexperienced; and thereafter in her testimony contradicted herself by first stating she was complimented for her work by Supervisor Bonifacio and then admitting that she was being "picked on all day" for wrapping meat improperly. Were I to accept Respondent's testimony that Disarno was scheduled for discharge because of the leaky packages she had wrapped, the plain fact is that she was not discharged. Without substituting my judgment for Respondent's in matters of run- ning a meat counter, it occurs to me that the more reasonable system of insuring leak-proof meat packages would be to properly train the wrapper, not to fire her forthwith. And there is no evidence of any training program for Disarno during her brief tenure. Moreover, Respondent cannot be heard to insist in Septem- ber that it meant to fire an employee in June. Having failed to do so then, and hav- ing thereby permitted the employee to exercise the same privilege of striking enjoyed by the other employees, Respondent's defense comes far too late to foreclose Disarno from deriving the same benefits from the strike as do all the others. I accordingly reject Respondent's defense to the discrimination it has visited against Pauline Disarno as one of the striking employees who were told they had been permanently replaced as of June 24, and include her among the striking employees who became entitled to reinstatement when unconditioned request was made for her reinstatement on that date (supra). 5. Rose Ginett Rose Ginett, a college student employed part time in the office, went on strike with the other employees on June 15. Thereafter on June 24, she reported to Grocery Manager Cohen and unconditionally offered to return to her job. Cohen informed her that she had been permanently replaced; and when asked by Ginett if she had been fired he corrected her by stating that "no one has been fired." She did not receive a telegram to return to work on September 5 as did the other strikers, and she went immediately to the McKinley Market to find out why. She was refused her job at that time by Respondent Sam Benatovich who told her, "Do you know you didn't have any right to walk out. You work in the office. If we have any future openings in the office we will give you a call." 47 It is Respondent's contention that Ginett was hired as a part-time replacement for a full-time girl in the office and that during the period in which this condition existed the office operations were most confused. Therefore it was decided while the strike was still in progress to hire a full-time girl as a replacement, thus restoring the working arrangements in effect prior to Ginett's hiring. Respondent Sam Benatovich testified that after Ginett's walkout a part-time re- placement for her, Anna Ferrari, was hired in early July. When Ferrari left in +T The foregoing is based upon Ginett's credited testimony . I am aware that the chal- lenge of this employee 's vote in the election was sustained . It is well established, how- ever, that the placement of an employee in a bargaining unit in no way curtails his basic right to go on strike. PARK EDGE SHERIDAN MEATS, INC., ETC. 763 August a full-time girl was taken on in her place, and because the job required a full timer, and one was on the job in September, Respondent could not take Ginett back for part-time work. I cannot accept Respondent's reasoning. When Ginett offered to return to work on June 24 Grocery Manager Cohen told her she was permanently replaced. Yet Respondent Sam Benatovich testified that he did not replace her until July, and then with another part-tune employee, Ferrari. Without attempting to fathom the ap- parent contradictions inherent in this particular testimony it is sufficient to note that the presence of a full-time employee in Ginett's job at the time she sought to return to work in September provided nothing more than a convenient excuse to eliminate a former striker. I accordingly reject Respondent's defense with respect to Ginett and would include her among those entitled to their jobs on June 24, when their offer to return was first made. 6. Walter Graham Walter Graham was employed full time at a local industrial plant and supple- mented his earnings by part-time work at the McKinley Market when it suited his work and vacation schedules. Although he went on strike on July 15 I am not persuaded by his testimony that he participated in picketing, had any interest in the labor dispute then in progress, or even had any intention of seeking the return of his job. I observed this employee as a witness and have carefully studied his testi- mony which I find confused and uncertain.48 Illustrative of this is his "guess" that he picketed in June, and his failure to recognize what were the busiest and the slowest days in the market in which he was employed. In such a state of the record, as it pertains to Walter Graham, I find that he did not offer to return to the job which he left with the striking employees until some indefinite number of weeks after the employees had been called back in September 49 To the extent that Graham was thereafter deprived of employment, I find that it was because he participated in the June 15 strike, and I would therefore include him among those entitled to reinstate- ment. Because, however, his testimony was entirely lacking in credence, I find he has thereby foreclosed himself from consideration of any backpay, computation having been made impossible by his own confused, and discredited, statement. In finding as I have, I reject Respondent's contention that Graham was not taken back because of the scheduling problem he presented. Be the problem as it may, Respondent's intentions in this matter cannot override its failure before the June 15 strike to take such action as it deemed necessary. Accordingly, as in the case of Disarno (supra), I reject the defense as being untimely, and include Walter Graham, to the extent previously noted, among those with respect to whom Respondent has violated Section 8(a) (3) of the Act. 7. Nancy Zunner Nancy Zunner was employed in the meat department in the Sheridan Market and joined the other employees in the June 15 strike. Employee Jakubczak on June 24, offered, in behalf of all the striking Sheridan employees, which included Zun- ner, to return to their jobs. Unlike the other strikers, employee Zunner, for some unexplained reason, failed to receive a telegram telling her to report to work on September 5. When she learned during the second week of September that such telegrams had been sent she im- mediately called Respondent Hyman Benatovich and asked him if she could return to work. Benatovich told her that she should have gotten a telegram because she was on the list. He then told her there was no work for her and that she would be called back when business improved. She has never been recalled 50 When questioned at the hearing concerning Zunner, Respondent Hyman Bena- tovich confirmed her testimony.51 He sought to justify the failure to take Zunner back, however, on seniority, But he testified on cross-examination that during the strike as many as 40 employees had been hired, some for the meat department, and many of these were still there after September 5. "On numerous points his recollection required refreshment by reference to an earlier statement given by him to agents of the Regional Director 191 base this upon Respondent Sam Benatovich's admission In so finding I reject any of Graham's testimony that would suggest that he considered an earlier request for his job as futile `0 The credited testimony of employee Zenner 51 Ills testimony in this respect conforms to an affidavit which he gave to representa- tives of the Regional Director in October 1961. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An analysis of the record clearly demonstrates that a clerical mistake was made as to Zunner (as well as with respect to Propster, infra) and that Respondent sought to take advantage of its mistake and eliminate a returned striker. Thus the records of Western Union disclose that Zunner was not one of the employees receiving a telegram to report to work, and Hyman Benatovich's statement to her that her name was on the list and that she should have reported is not true. Were this all there was to the mistake then Respondent's refusal to reinstate Mrs. Zunner, and its con- tinuance to do so up to the hearing, would be understandable. however, in the course of investigation of this case, the Western Union file photocopy of the list of names submitted by Respondent, being those to whom telegrams were to be sent, was compared with the original list which Western Union had returned to Respond- ent after the transmission of the message and the photocopying of the list. Upon comparison of the lists, both of which appear in the record, it is to be noted that the names of Nancy Zunner and Betty Propster were added to the original list at some time after it had been photocopied by Western Union for its files and had been returned to Respondent. Thus Respondent's records would have it appear that Zunner had received a telegram-a conclusion refuted by the copy of the original and authentic list in the possession of Western Union. As Hyman Benatovich's assurance to Zunner that she was sent a telegram can thus only be supported by such a falsification, I necessarily reject it. Accordingly, I conclude and find that employee Zunner's rights of reinstatement earned by her unconditional offer to return to work made in her behalf on June 24 and again on August 21 were in no manner abrogated by any failure to receive a recall telegram at any time thereafter. 8. Betty Propster Betty Propster was also employed in the meat department of the Sheridan Market. Her situation is best described by an affidavit of Hyman Benatovich given to agents of the Regional Director on October 22, 1961, in connection Case No. 3-RC-2613: Betty Propster was a workmen's compensation case beginning in April, 1961. She was notified by telegram to return to work on September 5, 1961. She did not come in that day. I talked with her by telephone on or about September 18, 1961. She called me. She wanted to know why her name was not on the schedule. I told her that she did not report back to work as per the telegram. I consider her ineligible because she did not report to work on September 5 as per instructions in the telegram. Her name was on the list to receive a telegram. As in the case of employee Zunner, as described above, Propster's name was mistakenly omitted from the list of employees to be recalled, and was thereafter inserted, together with Zunner's name after the list had been photocopied by West- ern Union for its files, and returned to Respondent. Thus Hyman Benatovich's statement to Propster that she was sent a telegram is not true and the reason for this failure to hire her thereupon falls. On the other hand there is nothing in the record to suggest that she was refused reinstatement for reasons proscribed by the Act. Thus she was absent on sick leave beginning March 27, 1961, and has not since worked or, prior to her September 18 telephone call. sought to work. Nor is there evidence of any knowledge on Respondent's part of her membership in or her activity on behalf of Local 34 at any time then or thereafter,52 or indeed any evidence that she did belong to or was active in Local 34. Under such circum- stances, therefore, I do not feel that Respondent has any obligation to establish that he did not recall Propster for unlawful reasons. Accordingly, as I am not disposed to equate sloppy personnel practices with unfair labor practices, I shall recommend the complaint be dsimissed as to Betty Propster.53 9. Mary K. Tracy Mary K. Tracy, while a senior at Buffalo State Teachers College, was employed at the McKinley Market as a part-time meatwrapper through June 1961. She par- ticipated in the June 15 strike. Thereafter, in August, Mrs. Tracy gave birth to a -59 Mrs Propster credibly testified that when she was trying to get her job back in Sep- tember Meat Department Manager Kostecki asked her if she had voted in the June 22 election When she replied that she had, he said, "Well, there you are. I don't know." This is certainly no evidence of employer union knowledge , motivation, or animus, and I so find. 53 In view of my conclusions herein I find it unnecessary to evaluate the state of em- ployee Propster's health at the time she sought her job PARK EDGE SHERIDAN MEATS, INC., ETC. ! 65 child. As of the time she was sent Respondent's telegram directing her to report to work on September 5 Mrs. Tracy was still confined to the hospital, receiving medical care for complications that had developed as a result of childbirth. Upon learning of the telegram she requested her husband to call Local 34. T h's he did and was told to call the Respondent and report Mrs. Tracy as being incapacitated. He called as directed and spoke to a girl in the office whom he told that his wile would give them a call when she was cleared by t.1e doctor.54 Mrs. Tracy credibly testified that she never called back, as her husband had assured the girl in the office she would. She did report to vote in a second Board-conducted election in lute September 1961, at which time her vote was challenged, presumably for non- employment. There is nothing in the record to suggest, however, that Mrs. Tracy ever requested the return of her job following her participation in the strike. Inas- much as she sought to vote as an employee during a period when she wi s still unemployable, however, and thereafter participated in these proceedings as a claimrnt for her job,55 there is evidence of her continuing interest in further employment with Respondent, as distinct from a request for her job. But until such time as she does unconditionally request a job to which she is entitled as a participant in the June 15 unfair labor practice strike, I find Respondent has no obligation to .- el:.-state her and owes her no backpay. I accordingly would dismiss so much of the complaint as alleges an unlawful refusal to reinstate Mary K Tracy. I find, how- ever, that she is entitled to reinstatement as an unfair labor practice striker upon her unconditioned request for it. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. VI. THE REMEDY Since I have found that Respondent, by numerous acts and statements, has in- terfered with, restrained, and coerced its employees in violation of Section 8 (a)( I) and has unlawfully assisted the Retail Clerks in violation of Section 8(a)(2); and since I have further found that this unlawful conduct was the cause, in part, of the strike of Respondent's employees on June 15, and of its prolongation thereafter, thereby denominating the work stoppage an unfair labor practice strike, and since Respondent on June 24, 1961, and on various dates thereafter refused to reinstate the strikers upon their unconditioned request therefor, as required by law,55 thereby discriminating against them in violation of Section 8(a)(3) of the Act, 1 shall recommend that Respondent cease and desist from the foregoing unlawful conduct and from infringing in any manner upon the rights of the employees guaranteed by Section 7 of the Act.57 With respect to so much of this remedy as applied to those discriminated against by Respondent, clarification is in order. Thus it is to be noted that with the excep- tions noted and considered herein all striking employees had been recalled to work. As their reinstatement has been accomplished no further affirmative action is required. With respect to the backpay due these individuals and others whose circumstances have been considered herein varying periods of liability have been established, and appear, as appropriately noted, on Appendix E attached hereto and made a part hereof. In this Appendix E it is to be noted that for the striking employees, generally, June 24, 1961, is the date upon which their backpay com- mences; being the date upon which it has been found that. with the exceptions noted, they abandoned the strike and unconditionally requested their jobs, either personally or by representative,58 to September 5, the date upon which the strikers, with exceptions noted, were returned to their jobs Nor is it significant that im- mediately upon Respondent's rejection of their requests the strike resumed Unlike the usual situation where backpay is tolled during the pendency of an economic 51 The credited testimony of James Tracy. Is It Is to be noted that Section 148 of the New York State Labor Law precludes an employer from knowingly permitting a female to be employed within 4 weeks after giving birth 50 DT L R.B. v Mackay Radio & Telegraph Co . 304 U S . 333, 346. 57 N L R.B v . Express Publishing Company , 312 U. S. 426, 437. 58 N L R B v Mastro Plastics Corp ., et at., supra. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike the strikers here were ready and available for work and were deprived of it solely by Respondent's unlawful rejection of their request.59 Apart from the bulk of the strikers for whom backpay runs from June 24 to September 5, 1961, it is recommended that certain other claimants listed on Appendix E be treated differently or noted specially. Hazel Bauman was discharged at the close of the workday, on Saturday, June 3, and was reinstated on Tuesday, June 6. On the intervening June 5, she participated in the 1-day strike. Miss Bauman's presence on the picket line was not occasioned, however, by her voluntary quitting of her job for the purpose, which is the usual situation. She was available to picket because she was not permitted to work, having been discharged. Under such circumstances her backpay should not be withheld for that day on which she was on strike 60 Mario Carosi, absent on sick leave and not having been on strike before seeking his job on July 24, was not discriminated against until his rejection of that day (supra). Pauline Disarno being an employee in good standing when she joined the strike (supra), became an unfair labor practice striker entitled to reinstatement and back- pay. I shall accordingly recommend her reinstatement, offers to return having already been made in her behalf (supra and Appendix B), and I further recommend that her backpay extend to the date upon which Respondent reinstates her. Rose Ginett, having been found to be a participant in the June 15 unfair labor practice strike, is entitled to immediate reinstatement which I recommend be offered her, unconditioned requests to return having already been made by her personally on June 24 and September 5. I also recommend that her backpay extend to the date upon which Respondent reinstates her, dismissing if necessary anyone hired after June 24 to perform her work. Walter Graham has been credibly identified as having joined in the unfair labor practice strike and is therefore entitled to reinstatement upon unconditioned request therefor (supra). While I have found upon credible evidence that all of the strikers listed on Appendix B, by designated representatives (supra), offered to return, Graham's testimony convinces me that having once gone on strike he did nothing further, thus rebutting the presumption of availability arising out of the employees' blanket request to return (supra). Having so demeaned himself as to put his availability in doubt during all significant periods herein, I recommend he not be given backpay for the period prior to his September request for a job. Nancy Zunner, whose name appears to have been erroneously omitted from the list of those to receive recall telegrams, participated in the June 15 strike and was one of those for whom an unconditioned request to return was made on June 24 (Appendix B). I accordingly recommend that she be offered immediate reinstate- ment and that she receive backpay beginning on June 24, 1961. Mary K. Tracy, like the others considered herein, participated in the June 15 walkout. While her right to recall vested upon unconditioned request and while such a request made in her behalf established a presumption that she was available to work, it appears that her continued failure to take any positive steps to appear for her job, after she was physically able to resume work, rebutted the presumption that she was available for it (supra).61 I shall recommend, therefore, that she receive no backpay, but that following the issuance of this report, upon seasonable and unconditional request for her job, she be reinstated to it. Hazel Bauman was a participant in the June 15 strike and her name appears on Appendix E among those entitled to backpay for the period between June 24 and September 5, 1961. Miss Bauman, it has been found, was discriminatorily dis- charged on the occasion of the June 5 strike and, after a loss of 1 day's employ- ment, was returned to her job (supra). In this respect it is immaterial that as a discriminatorily discharged employee she participated in the 1-day strike 62 I shall recommend, therefore, that in addition to the foregoing remedy as it applies to Hazel Bauman, that she also be made whole for the loss incurred by Respondent's earlier discrimination against her. In recommending that Respondent make whole the aforementioned employees for the loss suffered because of the discrimination suffered by them the backpay, except 69Ra-Rich Manufacturing Corporation, 120 NLRB 503, 505. &' Ra-Rich Manufacturing Corporation, supra. 61 Cf Kansas Milling Company , 86 NLRB 925, 926. 62 Ra-Rich Manufacturing Corp , supra, footnote 59. PARK EDGE SHERIDAN MEATS, INC., ETC. 767 as noted above, should be computed in the customary manner.63 I shall further recommend that the Board order Respondent to preserve and make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of backpay due and the rights of employment. And finally, with respect to any and all of the foregoing who have not been re- instated to their former or substantially equivalent positions and whose reinstatement is contemplated by the recommendations herein it is to be understood that such reinstatements are to be effected by dismissing, if necessary, employees hired after June 15, 1961, the date upon which the unfair labor practice strike began. As there is no evidence that Respondent ever recognized the Retail Clerks whose campaign it supported and assisted, I find it unnecessary to recommend affirmatively that Respondent cease recognizing the assisted union.64 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. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 34 and the Retail Clerks are labor organizations within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, as found above, Respondent engaged in unfair labor practices violative of Section 8(a) (1) of the Act. 4. By rendering unlawful support and assistance to the Retail Clerks, as found above, Respondent has engaged in and is engaging in unfair labor practices violative of Section 8 (a) (2) and (1) of the Act. 5. By discriminating in regard to the hire and tenure of employment of its em- ployees, thereby discouraging membership in Local 34, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3). 6. By the aforesaid discrimination and rendering of unlawful support and assistance to the Retail Clerks, the Respondent has further interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby has additionally engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pur- suant to Section 10(c) of the National Labor Relations Act, as amended, it is recom- mended that the Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees as to their union membership and activities, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (b) Threatening its employees with layoff, discharge, physical harm, more arduous working conditions, less hours of work, or the withdrawal of benefits if they became or remained members of Local 34, or any other labor organization. (c) Promising its employees raises in pay, more hours of work, retention of em- ployment or other benefits if they refrained from becoming or remaining members of Local 34, or of any other labor organization. (d) Urging its employees to engage in surveillance of the meetings of Local 34, or any other labor organization. (e) Suggesting the setting up of an employee committee in opposition of Local 34, or to any other labor organization. (f) Urging and inducing its employees to revoke their membership in Local 34, or in any other labor organization. (g) Urging and soliciting its employees to join the Retail Clerks or any other labor organization. (h) Rendering support and assistance to the Retail Clerks. 63P W Woolworth Company, 90 NLRB 289. 64Lundy Manufacturing Corporation, 136 NLRB 1230; Ly7ce8 Bro8, Inc. of Georgia, 128 NLRB 606, 611. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (i) Discouraging membership in Local 34, or in any other labor organization of its employees, by discharging its employees or by discrimination in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. (j) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Offer to Pauline Disarno, Walter Graham, Rose Ginett, Mary K. Tracy, and Nancy Zunner immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired on or after June 24, 1961. (b) Make whole for any loss of pay they may have suffered as a result of the discrimination against them the employees listed in Appendix E, attached hereto and made a part hereof, for the periods listed opposite their respective names and in the manner set forth above in section VI entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for ex- amination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at each of its stores copies of the attached notice marked "Appendix A." as Copies of said notice, to be furnished by the Regional Director for the Third Region, Buffalo, New York, shall, after being duly signed by a representative of the Respond- ent, be posted by the Respondent 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 to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Third Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.66 It is further recommended that so much of the complaint as alleges a violation of the Act with respect to Catherine Bartok prior to June 15, 1961, and Betty Propster at any time alleged, be dismissed. It is further recommended that, unless the Respondent shall within the prescribed period notify the said Regional Director that it will comply with the foregoing recom- mendations, the National Labor Relations Board issue its order requiring the Re- spondent to take the aforesaid action. a In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." ' In the event this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Local 34, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization of our employees, by discharging or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT unlawfully question our employees about their union member- ship or activities. WE WILL NOT threaten them with layoff, discharge, physical harm, harder work, fewer hours, or the taking away of benefits they now have if they be- come or remain members of Local 34, or any other labor organization. WE WILL NOT promise our employees raises in pay, more hours of work, retention of jobs, or other benefits if they stay out of or resign from Local 34. PARK EDGE SHERIDAN MEATS, INC., ETC. 769 WE WILL NOT suggest that our employees set up a committee in opposition to Local 34 or any other labor organization. WE WILL NOT urge and induce them to revoke their membership in Local 34, or in any other labor organization. WE WILL NOT urge and solicit them to join the Retail Clerks, or any other labor organization. WE WILL NOT support or assist the Retail Clerks in any other manner. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor or- ganizations, to on or assist Local 34, 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. WE WILL offer Pauline Disarno, Walter Graham, Rose Ginett, Mary K. Tracy, and Nancy Zunner immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to do this we will dismiss, if necessary, any employee hired since June 24, 1961. WE WILL make whole for any loss of earnings they may have suffered as a result of the discrimination against them those employees listed on Appendix E, attached to this notice and made a part of it. The period for which each employee will receive backpay is set down opposite his or her name. All our employees are free to become or remain, and to refrain from becoming or remaining, members of the above-named or any other labor organization. PARK EDGE SHERIDAN MEATS, INC. PARK EDGE MCKINLEY MEATS, INC. PARK EDGE SUPER MARKETS, GROCERY DIVISION. PARK EDGE SUPER MARKETS, PRODUCE DIVISION. PARK EDGE GROCERIES. BENATOVICH BROTHERS, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo 2, New York, Telephone Number, Ti. 6-1782, if they have any question concerning this notice or compliance with its provisions. EMPLOYEES APPENDIX B WHO ENGAGED IN STRIKE BEGINNING ON JUNE 15, 1961 Aloisio, Louis, Jr. Damien, Arthur Jarosz, Daniel Balkin, Edward L. DeGain, Rita Kasprzak, Helen Baron, Leonard Disarno, Pauline Knooichsen, David Barnum, Burdett Doyle, Mary Korwek, Richard Bartok, Catherine Dures, Mary Ann Krajewski, Gerald Bauer, Mary Ann Dures, Jean Kroneiss, Marie Bauer, Robert Dwigun, Elvira Kuntor, Leslie Bauman, Hazel Ebert, Dennis Kuziomoko, Andrew Berger, George Ellis, Donna Larkowski, Ronald Blachowiak, Barbara Falvarcik, Barbara Latos, Gray Blachowiak, Robert Fassell, Robert Lawton, James Blair, Donna Fraccica (Rodzik), Julia Lynch, Kenneth Bovo, Vito Fraccica, Mary Ann Lyons, Myles Boginski, Roger Gambino, Elizabeth Machovic, Joseph Brett, Eleanor Gedra, Frank Manzella, Joan Carosi, Umberto Ginett, Rose Margowski, Helen Carovski, Valdo Graham, Walter Mariani, Dominic Cartonia, Drewcilla Hammond, Phyllis Martin (Bovo), Ann Celani, David Heckman, Priscilla McKowan, Judy Colleran, Daniel Heichberger, John McTigue, Raymond P., Jr. Collopy, Adelbert Hoffman, Marion Menna, Evelyn Coppola, Ralph Jakubczak, Thaddeus Miller, William 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EMPLOYEES WHO ENGAGED IN STRIKE BEGINNING ON JUNE 15, 1961-Continued Montando, Mary Quinn, Francis Shear, Amelia Moser, James Reif, Joseph Short, Shirley Nosbisch, Gerald Rodeghiero, Andrew Smith, Patricia Ann O'Scier, Peter Rog, Christine Torella, Armando Oyer, Gray Rose, Sharon Tarabula, Edward Panzarella, Frank Ryan, Michael Tracy, Mary K. Pasciak, Peggy San Filippo, Marie Turner, Margaret Patterson, Robert Saraceno, Rosario Vujanovich, Peter Pasco, Angela Sarana, Chester White, David L. Pagano, Peter Scarozza, Robert Zunner, Nancy Pietrocarlo, Mary Ann Schoen, George APPENDIX C EMPLOYEES WHO MADE PERSONAL UNCONDmONAL REQUESTS FOR REINSTATEMENT ON JUNE 24, 1961 Aloisio, Louis, Jr. Ellis, Donna Pasco, Angela Balkin, Edward L. Gambino, Elizabeth Pagano, Peter Baron, Leonard Ginett, Rose Pietrocarlo, Mary Ann Barnum, Burdett Jakubczak, Thaddeus Quinn, Francis Bauer, Robert Korwek, Richard Rog, Christine Berger, George Kuntor, Leslie Ryan, Michael Bretl, Eleanor Lyons, Myles Sarceno, Rosario Bovo, Vito Machovic, Joseph Scarozza, Robert Carosi, Umberto Manzella, Joan Shear, Amelia Carovski, Valdo Marian, Dominic Smith, Patricia Ann Colleran, Daniel Martin (Bovo), Ann Tarabula, Armando Damien, Arthur Menna, Evelyn Torella, Edward DeGain, Rita Miller, William Turner, Margaret Dures, Jean Montando, Mary Vujanovich, Peter Dwigun, Elvira APPENDIX D EMPLOYEES WHO CONSIDERED IT USELESS AND FUTILE To MAKE A PERSONAL REQUEST FOR REINSTATEMENT ON AND AFTER JUNE 24, 1961 Bauer, Mary Ann Fassell, Robert Nosbisch, Gerald Blachowiak, Barbara Fraccica (Rodzik), Julia O'Scier, Peter Blachowiak, Robert Fraccica, Mary Ann Patterson, Robert Capola, Ralph Heichberger, John Reif, Joseph Celan, David Larkowski, Ronald San Filippo, Marie Doyle, Mary Lawton, James Sarana, Chester Dures, Mary Ann McTigue, Raymond P., Jr. White, David L. APPENDIX E EMPLOYEES ENTITLED TO BACSPAY Period of back pay entitlement From- To- Aloisio, Louis, Jr---------------------------- June 24, 1961 Sept. 5, 1961 Balkin, Edward L___________________________ June 24, 1961 Sept. 5, 1961 Baron, Leonard_____________________________ June 24, 1961 Sept. 5, 1961 Barnum, Burdett____________________________ June 24, 1961 Sept. 5, 1961 Bartok, Catherine___________________________ June 24, 1961 Sept. 5, 1961 Bauer, Mary Ann___________________________ June 24, 1961 Sept. 5, 1961 Bauer, Robert______________________________ June 24, 1961 Sept. 5, 1961 June 5, 1961 Hazel_____ Bauman June 6, 1961 , ________________________ June 24, 1961 Sept. 5, 1961 Berger, George_____________________________ June 24, 1961 Sept. 5, 1961 Blachowiak, Barbara_________________________ June 24, 1961 Sept. 5, 1961 Blachowiak, Robert__________________________ June 24, 1961 Sept. 5, 1961 Blair, Donna_______________________________ June 24, 1961 Sept. 5, 1961 Boginski, Roger----------------------------- June 24, 1961 Sept. 5, 1961 PARK EDGE SHERIDAN MEATS, INC., ETC. 771 EMPLOYEES ENTITLED TO BACKPAY-Continued Period of backpay entitlement From- To- Bovo, Vito_________________________________ June 24, 1961 Sept. 5, 1961 Brett, Eleanor______________________________ June 24, 1961 Sept. 5, 1961 Carosi, Mario______________________________ July 24, 1961 Sept. 5, 1961 Carosi, Umberto____________________________ June 24, 1961 Sept. 5, 1961 Carovski, Valdo____________________________ June 24, 1961 Sept. 5, 1961 Cartonia, Drewcilla_________________________ June 24, 1961 Sept. 5, 1961 Celani, David_______________________________ June 24, 1961 Sept. 5, 1961 Colleran, Daniel____________________________ June 24, 1961 Sept. 5, 1961 Collopy, Adelbert ___________________________ June 24, 1961 Sept. 5, 1961 Coppola, Ralph_____________________________ June 24, 1961 Sept. 5,1961 Damien, Arthur____________________________ June 24, 1961 Sept. 5, 1961 DeGain, Rita_______________________________ June 24, 1961 Sept. 5, 1961 li 24 Di P J 1961 ne____________________________ une , sarno, au Doyle, Mary _______________________________ June 24, 1961 Sept. 5, 1961 Dures, Mary Ann___________________________ June 24, 1961 Sept. 5, 1961 Dures, Jean________________________________ June 24, 1961 Sept. 5, 1961 Dwigun, Elvira_____________________________ June 24, 1961 Sept. 5, 1961 Elbert, Dennis------------------------------ June 24, 1961 Sept. 5, 1961 Ellis, Donna________________________________ June 24, 1961 Sept. 5, 1961 Falvarcik, Barbara__________________________ June 24, 1961 Sept. 5, 1961 Fassell, Robert ______________________________ June 24, 1961 Sept. 5, 1961 Fraccica (Rodzik), Julia_____________________ June 24, 1961 Sept. 5, 1961 Fraccica, Mary Ann_________________________ June 24, 1961 Sept. 5, 1961 Gambino, Elizabeth_________________________ June 24, 1961 Sept. 5, 1961 Gedra, Frank_______________________________ June 24, 1961 Sept. 5, 1961 Ginett, Rose________________________________ June 24, 1961 Hammond, Phyllis-------------------------- June 24, 1961 Sept. 5, 1961 Heckman, Priscilla__________________________ June 24, 1961 Sept. 5, 1961 Heichberger, John__________________________ June 24, 1961 Sept. 5, 1961 Hoffman, Marion___________________________ June 24, 1961 Sept. 5, 1961 Jakubczak, Thaddeus________________________ June 24, 1961 Sept. 5, 1961 Jarosz, Daniel______________________________ June 24, 1961 Sept. 5, 1961 Kasprzak, Helen____________________________ June 24, 1961 Sept. 5, 1961 Knooichsen, David__________________________ June 24, 1961 Sept. 5, 1961 Korwek, Richard____________________________ June 24, 1961 Sept. 5, 1961 Krajewski, Gerald___________________________ June 24, 1961 Sept. 5, 1961 Kroneiss, Marie____________________________ June 24, 1961 Sept. 5, 1961 Kuntor, Leslie______________________________ June 24, 1961 Sept. 5, 1961 Kuziomko, Andrew__________________________ June 24, 1961 Sept. 5, 1961 Larkowski, Ronald__________________________ June 24, 1961 Sept. 5, 1961 Latos, Gary ________________________________ June 24, 1961 Sept. 5, 1961 Lawton, James ------------------------------ June 24, 1961 Sept. 5, 1961 Lynch, Kenneth____________________________ June 24, 1961 Sept. 5, 1961 Lyons, Myles_______________________________ June 24, 1961 Sept. 5, 1961 Machovic, Joseph___________________________ June 24, 1961 Sept. 5, 1961 Manzella, Joan _____________________________ June 24, 1961 Sept. 5, 1961 Margowski, Helen__________________________ June 24, 1961 Sept. 5, 1961 Marian, Dominic___________________________ June 24, 1961 Sept. 5, 1961 Martin (Bovo), Anna_______________________ June 24, 1961 Sept. 5, 1961 McKowan, Judy____________________________ June 24, 1961 Sept. 5, 1961 McTigue, Raymond P., Jr-------------------- June 24, 1961 Sept. 5, 1961 Menna, Evelyn_____________________________ June 24, 1961 Sept. 5, 1961 Miller, William_____________________________ June 24, 1961 Sept. 5, 1961 Montando, Mary ____________________________ June 24, 1961 Sept. 5, 1961 Moser, James_______________________________ June 24, 1961 Sept. 5, 1961 Nosbisch, Gerald___________________________ June 24, 1961 Sept. 5, 1961 O'Scier, Peter_______________________________ June 24, 1961 Sept. 5, 1961 Oyer, Gary _________________________________ June 24, 1961 Sept. 5, 1961 Panzarella, Frank___________________________ June 24, 1961 Sept. 5, 1961 Pasciak, Peggy______________________________ June 24, 1961 Sept. 5, 1961 Patterson, Robert ___________________________ June 24, 1961 Sept. 5, 1961 Pasco, Angela______________________________ June 24, 1961 Sept. 5, 1961 1 Date of reinstatement. 672010-63-vol. 139-60 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EMPLOYEES ENTITLED TO BAcKPAY-Continued Period of backpay entitlement From- To- Pagano, Peter______________________________ June 24, 1961 Sept. 5, 1961 Pietrocarlo, Mary Ann______________________ June 24, 1961 Sept. 5, 1961 Quinn, Francis______________________________ June 24, 1961 Sept. 5, 1961 Reif, Joseph________________________________ June 24, 1961 Sept. 5, 1961 Rodeghiero, Andrew_________________________ June 24, 1961 Sept. 5, 1961 Rog, Christine______________________________ June 24, 1961 Sept. 5, 1961 Rose, Sharon_______________________________ June 24, 1961 Sept. 5, 1961 Ryan, Michael______________________________ June 24, 1961 Sept. 5, 1961 San Filippo, Marie__________________________ June 24, 1961 Sept. 5, 1961 Saraceno, Rosario____ _______________________ June 24, 1961 Sept. 5, 1961 Sarana, Chester____ _________________________ June 24, 1961 Sept. 5, 1961 Scarozza, Robert ____________________________ June 24, 1961 Sept. 5, 1961 Schoen, George_____________________________ June 24, 1961 Sept. 5, 1961 Shear, Amelia______________________________ June 24, 1961 Sept. 5, 1961 Short, Shirley------------------------------- June 24, 1961 Sept. 5, 1961 Smith, Patricia Ann_________________________ June 24, 1961 Sept. 5, 1961 Torella, Armando___________________________ June 24, 1961 Sept. 5, 1961 Tarabula, Edward___________________________ June 24, 1961 Sept. 5, 1961 Turner, Margaret___________________________ June 24, 1961 Sept. 5, 1961 Vujanovich, Peter___________________________ June 24, 1961 Sept. 5, 1961 White, David L____________________________ June 24, 1961 Sept. 5, 1961 Zunner, Nancy_________ ____________________ June 24, 1961 'Date of reinstatement. Noritake Co., Inc. and District 65, Retail, Wholesale and Depart- ment Store Union, AFL-CIO. Case No. 2-CA-8469. November 1,1962 DECISION AND ORDER On July 5, 1962, Trial Examiner Lloyd Buchanan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices but finding that it had engaged in certain other unfair labor practices, as set forth in the attached Intermediate Report. However, he rec- ommended that the complaint be dismissed in its entirety. There- after, the Charging Party and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member, panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts the Recommended Order of the Trial Examiner. 139 NLRB No. 62.